Commonwealth v. Prinkey, M., Aplt

[J-31-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 23 WAP 2021
:
Appellee : Appeal from the Order of the
: Superior Court entered June 25,
: 2020 at No. 1380 WDA 2018,
v. : affirming the Order of the Court of
: Common Pleas of Bedford County
: entered August 28, 2018 at No. CP-
MARK ALLEN PRINKEY, : 05-CR-0000242-2007.
:
Appellant : SUBMITTED: February 23, 2022
OPINION
JUSTICE WECHT DECIDED: JUNE 30, 2022
This appeal presents the question of whether a particular type of claim constitutes
a challenge to the legality of the sentence, such that it is cognizable under the Post-
Conviction Relief Act (“PCRA”).1 Appellant here claims that his sentence resulted from a
prosecutor’s unconstitutionally vindictive decision to pursue a mandatory minimum term
of years. Proceeding from the general principle that a sentence is unlawful if the
sentencing court lacks the legal authority to impose that sanction, our law recognizes four
broad types of legality challenges: (1) a claim that a sentence was imposed pursuant to
a facially unconstitutional sentencing statute; (2) an assertion that statutory preconditions
to the court’s sentencing authority were not present; (3) a challenge alleging a violation
or nonfulfillment of a substantive, constitutional restriction upon the court’s authority to
1 42 Pa.C.S. §§ 9541-46.
impose the sentence; and (4) an argument that the statutory support for the conviction is
void ab initio.2 Today, we hold that a challenge to a sentence as presumptively vindictive
falls within the third category of legality challenges and, thus, is cognizable under the
PCRA.
I. Background
In 2007, Mark Allen Prinkey placed his hands upon the shoulders of his seven-
year-old stepdaughter and asked her if she had ever kissed a boy. The girl ran away and
told her mother, Prinkey’s wife, that Prinkey had attempted to kiss her. Prinkey’s wife
relayed her daughter’s account to law enforcement authorities, prompting an
investigation. When interrogated by police officers, Prinkey stated that, although he made
no actual attempt to do so, he had intended to kiss the young girl. Prinkey then speculated
to the investigating officers that, if he had done so, other sexual acts, such as fellatio,
might have followed. Based upon these statements, the officers arrested Prinkey and
charged him with attempted involuntary deviate sexual intercourse (“IDSI”) with a child,
attempted indecent assault with a person less than thirteen years of age, and corruption
of the morals of a minor.
In April 2008, Prinkey proceeded to a jury trial. The jury convicted Prinkey of the
above-listed offenses. The trial court imposed an aggregate sentence of ten to twenty-
five years’ imprisonment, and designated Prinkey as a sexually violent predator (“SVP”).3
On direct appeal, Prinkey challenged the sufficiency and weight of the evidence, as well
2 See Part II, Section A of this Opinion (discussing the caselaw establishing the four
categories of illegal sentencing claims).
3 See generally 42 Pa.C.S. § 9792 (defining, inter alia, “sexually violent predator” for
purposes of the sexual offender registration and reporting scheme that was in effect in
2008, the year of Prinkey’s designation as an SVP) (expired Dec. 20, 2012, pursuant to
42 Pa.C.S. § 9799.41).
[J-31-2022] - 2
as the propriety of the SVP designation. The Superior Court found that Prinkey’s counsel
waived the weight and sufficiency challenges. The Superior Court affirmed Prinkey’s SVP
designation.
In 2010, Prinkey timely filed his first PCRA petition.4 He raised an ineffective
assistance of counsel claim, arguing, in relevant part, that his direct appeal counsel was
ineffective for failing to raise and preserve a challenge to the sufficiency of the evidence
underlying the attempted IDSI conviction. Following a January 2012 hearing, the PCRA
court denied Prinkey’s petition. Prinkey appealed to the Superior Court.
The Superior Court agreed with Prinkey, holding that the Commonwealth did not
demonstrate at trial that Prinkey, “with intent to commit IDSI, committed an act constituting
a substantial step toward engaging in sexual intercourse per os or per anus.”5 Given the
Commonwealth’s failure to meet its burden of proof, the court held that Prinkey’s trial
counsel was ineffective for waiving the challenge to the sufficiency of the evidence on
direct appeal. Accordingly, the Superior Court vacated Prinkey’s judgment of sentence
as to the IDSI conviction and remanded for resentencing on the remaining convictions.
4 Recently, in Commonwealth v. Wharton, 263 A.3d 561 (Pa. 2021), this Court
summarized the timeliness requirements of Section 9545(b) of the PCRA as follows:
A PCRA petition, including a second or subsequent petition, must be filed
within one year of the date that judgment of sentence becomes final, unless
at least one of three timeliness exceptions applies. 42 Pa.C.S.
§ 9545(b)(1). A judgment of sentence becomes final for purposes of the
PCRA “at the conclusion of direct review, including discretionary review in
the Supreme Court of the United States and Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review.” 42
Pa.C.S. § 9545(b)(3).
Wharton, 263 A.3d at 570.
5 Commonwealth v. Prinkey, 777 WDA 2012, 2013 WL 11256397, at *5 (Pa. Super.
Aug. 30, 2013). See 18 Pa.C.S. § 901(a) (“A person commits an attempt when, with
intent to commit a specific crime, he does any act which constitutes a substantial step
toward the commission of that crime.”); 18 Pa.C.S. § 3123(a)-(b) (defining the offense of
involuntary deviate sexual intercourse with a child).
[J-31-2022] - 3
On remand, the Commonwealth for the first time notified Prinkey that it was
seeking a twenty-five-year mandatory minimum sentence for the attempted indecent
assault conviction.6 Prinkey moved to dismiss the Commonwealth’s notice of its intention
to seek the mandatory sentence.
On February 19, 2014, Prinkey proceeded to a resentencing hearing. Before
imposing Prinkey’s new sentence, the resentencing court heard argument on the
Commonwealth’s decision to pursue the mandatory minimum sentence. The
Commonwealth maintained that its choice not to seek the twenty-five-year minimum
sentence at the time of Prinkey’s original sentencing had no bearing upon its ability to
pursue the mandatory sentence following the Superior Court’s vacatur of Prinkey’s
judgment of sentence on the IDSI conviction. The Commonwealth informed the
resentencing court that, if it declined to pursue the mandatory minimum for the attempted
indecent assault conviction, then, at most, the court could order Prinkey, “who was once
facing [up to fifty-two] years in jail for the same exact conduct,” to serve a maximum
sentence of “[fourteen] years in jail for that conduct.”7 The Commonwealth averred that
a sentence of seven to fourteen years was inadequate because, in its view, Prinkey is “a
man who needs to be locked up for as long as he can [be].”8 The Commonwealth
expressed its “wish . . . that [the court] had the discretion to sentence up to [twenty-five]
6 See 42 Pa.C.S. § 9718.2(c) (requiring that, inter alia, the Commonwealth provide
the defendant with “reasonable notice of the Commonwealth’s intention to” pursue the
mandatory minimum sentence). Per 42 Pa.C.S. § 9718.2(a)(1), “[a]ny person who is
convicted” of attempted indecent assault “shall, if at the time of the commission of the
current offense the person had previously been convicted of an offense set forth in” 42
Pa.C.S § 9799.14 (relating to sexual offenses and tier system), “be sentenced to a
minimum sentence of at least [twenty-five] years of total confinement.”
7 Notes of Testimony (“N.T.”), Resentencing Hr’g, 2/19/2014, at 7.
8 Id. at 9.
[J-31-2022] - 4
years.”9 The Commonwealth stated that it would have settled for a prison sentence of
“ten to twenty years,” which it described as a “good sentence,”10 but nonetheless
ultimately chose to request Section 9718.2(a)(1)’s mandatory minimum sentence.
Over Prinkey’s objection, the resentencing court imposed the mandatory minimum,
sentencing Prinkey to twenty-five to fifty years’ incarceration for the conviction of
attempted indecent assault, as well as a consecutive term of eighteen to thirty-six months’
incarceration for the conviction of corrupting the morals of a minor. Although the new
sentence was imposed for attempted indecent assault—a crime graded lower than
attempted IDSI—the sentence was double Prinkey’s original aggregate sentence of ten
to twenty-five years for attempted IDSI, attempted indecent assault, and corruption of the
morals of a minor.
On February 28, 2014, Prinkey filed a motion for post-sentence relief, challenging
the imposition of the mandatory minimum sentence. On May 8, 2014, the resentencing
court entered an opinion and an order denying the motion. Therein, the court stated that
it “believe[d] the law required that it impose the mandatory sentence and that [it] lacked
discretion to do otherwise” because “the Commonwealth has properly served notice, and
[Prinkey] falls within [the] provisions” of 42 Pa.C.S. § 9718.2(a)(1).11 Prinkey timely
appealed, and, on July 28, 2015, the Superior Court affirmed the judgment of sentence.
On February 3, 2016, this Court denied Prinkey’s petition for allowance of appeal.
On May 16, 2016, Prinkey filed another timely PCRA petition, and it is that petition
that underlies the instant appeal. Relevant here, Prinkey argued that the doubling of his
sentence amounted to retaliation for his successful challenge of his original judgment of
9 Id. at 7.
10 Id. at 8.
11 Tr. Ct. Op., 5/8/2014, at 10.
[J-31-2022] - 5
sentence, a practice deemed unconstitutional by the Supreme Court of the United States
in North Carolina v. Pearce, 395 U.S. 711 (1969), overruled in part by Alabama v. Smith,
490 U.S. 794 (1989). Prinkey recognized that “there is no absolute bar that prevents a
defendant from receiving a more severe sentence upon resentencing after a successful
appeal.” Prinkey’s Br. Supp. PCRA Pet., 8/24/2018, at 5 (citing Pearce, 395 U.S. at 723).
But, according to Prinkey, the imposition of a mandatory sentence “after a partially
successful appeal that dramatically increases his sentence is per se vindictive” and thus
unconstitutional. Id. at 7. Following a hearing, the PCRA court denied relief.
Prinkey appealed, and the Superior Court affirmed the PCRA court’s order. Before
the appellate panel, Prinkey again raised his vindictive sentencing claim. He urged the
panel to hold that a request to impose a mandatory sentence following a successful
appeal presumptively is unconstitutional when the prosecution did not seek the
mandatory minimum at the initial sentencing. Prinkey also argued that the
Commonwealth failed to cite any evidence arising during the seven-year gap between the
imposition of the original sentence and Prinkey’s resentencing hearing that would have
sufficed to overcome the presumption. According to Prinkey, the Commonwealth was
required to, but did not, offer evidence related to his character, propensity for
rehabilitation, and the effects of his crime that the Commonwealth lacked at the time of
his original sentencing.
The Superior Court first addressed whether Prinkey’s claim was cognizable under
the PCRA. Prinkey argued that “his challenge to the sentence, as being vindictive, should
be considered as a challenge to the legality of his sentence.” Commonwealth v. Prinkey,
1380 WDA 2018, 2020 WL 3469698 at *3 (Pa. Super. June 25, 2020). The panel
acknowledged that legality challenges fall within the PCRA but decided that Prinkey did
not raise such a challenge. The court explained that, in Commonwealth v. Robinson, 931
[J-31-2022] - 6
A.2d 15 (Pa. Super. 2007) (en banc), an en banc panel had held that claims alleging that
a sentence was imposed to retaliate against the defendant for exercising the right to an
appeal constitutes a challenge to the discretionary aspects of a sentence, not a challenge
to its legality. Because the Superior Court has held that challenges involving the
discretionary aspects of a sentence are not cognizable under the PCRA, the panel here
determined that it was “constrained” to affirm the PCRA court’s order, even though it was
“troubled that this case appears to be a blatant example of prosecutorial vindictiveness.”12
We granted Prinkey’s petition for allowance of appeal, wherein he stated the
following question:
Should Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007) (en
banc) be overturned so that Pennsylvania law will treat an appellate
challenge to a sentence on the basis of a claim of vindictiveness as a
challenge to the legality of the sentence as opposed to the discretionary
aspects of sentencing that cannot be raised under the Pennsylvania Post-
Conviction Relief Act?
Commonwealth v. Prinkey, 262 A.3d 456 (Pa. 2021) (per curiam).
II. Discussion
The PCRA frames the scope of a court’s authority to grant relief on collateral review
as follows:
This subchapter provides for an action by which persons convicted of
crimes they did not commit and persons serving illegal sentences may
obtain collateral relief. The action established in this subchapter shall be
the sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that exist when
this subchapter takes effect, including habeas corpus and coram nobis.
12 Prinkey, 2020 WL 3469698 at *4 n.3; see also Commonwealth v. Jordan, 772 A.2d
1011, 1016 (Pa. Super. 2001) (stating that “a challenge to the discretionary aspects of
sentencing is a matter that must be reviewed in the context of a direct appeal and cannot
be reviewed in the context of the PCRA”).
[J-31-2022] - 7
42 Pa.C.S. § 9542. Eligibility for relief requires the petitioner to plead and prove that his
or her conviction or sentence resulted from at least one of the following:
(i) A violation of the Constitution of this Commonwealth or the Constitution
or laws of the United States which, in the circumstances of the particular
case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it
likely that the inducement caused the petitioner to plead guilty and the
petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner’s right
of appeal where a meritorious appealable issue existed and was properly
preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of
the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S. § 9543(a)(2).
This Court long has held that challenges to the legality of a sentence fall within the
purview of the PCRA.13 We have explained that Subsection 9543(a)(2)(vii) provides
textual support for that principle,14 and its accuracy or viability is not at issue in this case.
The question here is whether a claim characterizing a prosecutor’s pursuit of a mandatory
minimum sentence as presumptively vindictive falls within that category of sentences.
13 E.g., Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding that a timely
challenge to “the legality of sentence is always subject to review within the PCRA”).
14 See Commonwealth v. Moore, 247 A.3d 990, 998 (Pa. 2021) (holding that a
challenge to a provision of the Sentencing Code as unconstitutionally vague was a
challenge to the legality of the sentence, “thus qualifying . . . for relief under Section
9543(a)(2)(vii)”)
[J-31-2022] - 8
Prinkey assails the Superior Court’s determination that his vindictive sentencing
claim is a challenge to the discretionary aspects of his sentence, i.e., one that is not
cognizable under the PCRA. He calls upon this Court to overrule the Superior Court’s en
banc decision in Robinson, and he posits that his challenge goes to the legality of the
sentence he received. The question of whether a challenge to a sentence implicates its
discretionary aspects or its legality presents a pure question of law. As such, our scope
of review is plenary, and our standard of review is de novo. See Commonwealth v. Weir,
239 A.3d 25, 30 (Pa. 2020).
A. Categories of Challenges Implicating the Legality of a Sentence
Differentiation between the two types of sentencing claims has, at times, proved
challenging for this Court. See Commonwealth v. Spruill, 80 A.3d 453, 460 (Pa. 2013)
(“This Court’s experience with claims allegedly implicating sentencing legality has not
always been smooth.”). In a series of decisions over the past several years, however, we
have made strides towards clarity with respect to the standards for assessing whether a
challenge implicates the discretionary aspects of a sentence on the one hand or the
legality of a sentence on the other.
Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011) (plurality) laid the groundwork
for what would become our present approach to the legality of sentencing doctrine.
There, Foster raised an as-applied constitutional challenge to the mandatory minimum
sentence found at 42 Pa.C.S. § 9712 (requiring at least five years’ imprisonment for a
person who visibly possesses a firearm during the commission of a crime of violence).
The lead opinion in Foster reasoned that, “when a sentencing court has no alternative but
to impose a certain minimum sentence,” even one that might later be determined to be
unconstitutional, “its authority to act has been infringed upon[,]” thus rendering the
sentence “illegal.” Foster, 17 A.3d at 344–45. Proceeding from that principle, the plurality
[J-31-2022] - 9
held that Foster’s challenge implicated the legality of the sentence because the trial court
possessed no authority to refrain from imposing a mandatory minimum at sentencing,
even though the application of that sentence would have been unconstitutional.
In Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016), our seminal decision on
the distinction between the two sentencing challenges, we adopted the approach to illegal
sentencing claims espoused in Foster’s lead opinion. Unlike the as-applied challenge at
issue in Foster, the Barnes Court addressed a facial challenge to a sentencing statute
imposing a mandatory minimum sentence. Specifically, Barnes claimed that 42 Pa.C.S.
§ 9712.1’s five-year mandatory minimum sentence facially was unconstitutional under the
Supreme Court of the United States’ decision in Alleyne v. United States, 570 U.S. 99(2013) (holding that any fact that increases a mandatory minimum sentence is an element
of an aggravated offense, thereby requiring pretrial notice to a defendant, the submission
of any such fact to a factfinder, and the factfinder’s conclusion that the element has been
established beyond a reasonable doubt). We held that, “where the mandatory minimum
sentencing authority on which the sentencing court relied is rendered void on its face, and
no separate mandatory authority supported the sentence, any sentence entered under
such purported authority is an illegal sentence for issue preservation purposes on direct
appeal.” Barnes, 151 A.3d at 127.
By adopting the standard set forth by the lead opinion in Foster, Barnes settled the
broad parameters of an illegal sentencing claim. We made clear that, where “‘the
sentencing court’s authority to act has been infringed upon[,]’” the sentence is “‘illegal’ for
issue-preservation purposes.” Id. at 125 (brackets in original) (quoting Foster, 17 A.3d at
344–45). Put simply, Barnes defined an illegal sentence as one that was imposed without
authority. Although Barnes went a long way in clarifying whether a claim implicates the
[J-31-2022] - 10
legality of the sentence, this Court has continued to grapple with how the Barnes rule
applies in particular cases.
Two years later, in Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018), we
considered whether Barnes’ holding—i.e., the principle that mandatory minimum
sentences imposed under the procedure found unconstitutional pursuant to Alleyne are
illegal sentences—applied with equal force in the PCRA context. We held that it did:
We are cognizant that Section 9543 specifically delineates the availability
of relief and includes relief from “[t]he imposition of a sentence greater than
the lawful maximum” or “[a] proceeding in a tribunal without jurisdiction.” 42
Pa.C.S. §§ 9543(vii)-(viii). However, the traditional view of sentence
illegality claims was limited to either a sentence that exceeded that statutory
maximum or one imposed by a court lacking jurisdiction. See Foster, 17
A.3d at 349 (Castille, C.J. concurring); id. at 356 (Eakin, J. concurring). In
Barnes, this Court adopted a test to determine whether a sentencing claim
is illegal, thereby expanding the concept of illegal sentencing. See Barnes,
151 A.3d at 127. That the PCRA speaks to addressing illegal sentences
and specifically sentences exceeding the lawful maximum or imposed by a
court without jurisdiction, does not preclude DiMatteo from obtaining relief
from his unquestionably illegal sentence, as the “legality of the sentence is
always subject to review within the PCRA” where, as here, the petition is
timely. Fahy, 737 A.2d at 223; accord 42 Pa.C.S. § 9542. Because
DiMatteo’s sentence was rendered illegal before his judgment of sentence
became final and he presented his claim in a timely petition for post-
conviction relief, he is entitled to have his illegal sentence remedied.
DiMatteo, 177 A.3d at 192 (citations modified). In both the PCRA and issue preservation
contexts, we have applied the principles espoused in Barnes and DiMatteo to claims
beyond those implicating Alleyne.
Four broad categories of challenges have emerged in our caselaw that fall within
Barnes’ definition of an illegal sentencing challenge. First, a claim that a sentence was
imposed pursuant to a facially unconstitutional sentencing statute is a legality challenge
because, if the claim prevails, the sentence was imposed under statutory authority that
never lawfully existed. See Commonwealth v. Monarch, 200 A.3d 51, 57 (Pa. 2019)
(providing that a claim that “enhanced mandatory minimum sentences authorized by the
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statute are unconstitutional when based on a refusal to submit to a warrantless blood test”
constitutes a challenge to the legality of the sentence); see also Moore, 247 A.3d at 997
(explaining that, because a sentencing court does not have authority to sentence a
defendant under a sentencing statute that is unconstitutionally vague, a void-for-
vagueness challenge “is exactly the type of claim” that we held “implicated the legality of
the sentence in Barnes and found cognizable under the PCRA in DiMatteo”). Alleyne
challenges fall into this first category. See, e.g., Barnes, 151 A.3d at 127; DiMatteo, 177
A.3d at 192.
The second category encompasses allegations that a sentence was imposed
without the fulfillment of statutory preconditions to the court’s sentencing authority. See,
e.g., Commonwealth v. Ford, 217 A.3d 824, 831 (Pa. 2019) (holding that a challenge to
the imposition of a fine on the basis that the sentencing court failed to consider the
defendant’s ability to pay before imposing fines, in contravention of 42 Pa.C.S. § 9726(c),
amounts to a challenge to the legality of the sentence); cf. Weir, 239 A.3d at 38 (holding
that a challenge to the authority to impose restitution in a case is a legality challenge,
whereas a challenge to the amount of restitution is a discretionary one). Here too, a
successful challenge means that the court issued a sentence that it lacked the statutory
authority to impose. In other words, if the sentencing statute at issue conditions the
court’s authority to impose a sanction upon the existence of attendant circumstances, and
if those circumstances were not present, then the court lacked statutory authority to
impose the sentence, even though the unfulfilled conditions may not raise an issue of
constitutional dimension. See Commonwealth v. Finnecy, 249 A.3d 903, 912 (Pa. 2021)
(“Appellant’s contention that the court failed to impose a [Recidivism Risk Reduction
Incentive] Act sentence where his criminal history did not render him ineligible implicates
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sentencing illegality” because it “necessarily involves a challenge to the sentencing
court’s authority to impose a particular sentence.”)
The third category of legality challenges encompasses those claims that allege a
violation of a substantive restriction that the Constitution places upon a court’s power to
apply the statutory sentence to the defendant. Here, the linchpin is that there is a
constitutional barrier to the court’s ability to wield the sentencing power granted by a
facially constitutional statute, not that the trial court exercised its statutory power in a way
that violated the Constitution. If either the United States Constitution or the Pennsylvania
Constitution places a restriction upon the power of a court to impose a particular sentence
in certain circumstances, and if the appellant’s claim is that those circumstances exist in
his or her case, then the challenge necessarily sounds in legality. For example, in
Commonwealth v. Hill, 238 A.3d 399 (Pa. 2020), we held that a defendant’s claim that his
sentence violated the Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution implicated the legality of his sentence, not the trial court’s exercise of
discretion:
The federal double jeopardy clause offers several protections. Chief among
those protections is the clause’s safeguard against “multiple punishment for
the same offense at one trial.” Commonwealth v. Mills, 286 A.2d 638, 641
(Pa. 1971). In the matter sub judice, Appellant maintains that the trial court
sentenced and, therefore, punished him twice for the same DUI offense. If
this claim is correct, then the trial court was constitutionally prohibited from
punishing Appellant for his second DUI conviction. We, therefore, are
convinced that Appellant did not waive this portion of his sentencing claim,
as it implicates the legality of sentence, rendering the issue non-waivable,
despite the fact that Appellant raised it for the first time in his PAA.
Hill, 238 A.3d at 409.
Finally, a sentence is illegal where the statutory support for the underlying
conviction is void ab initio. Commonwealth v. McIntyre, 232 A.3d 609, 616 (Pa. 2020)
(“Appellant’s assertion that the statute under which he was convicted was void ab initio
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because it was passed in an unconstitutional fashion necessarily implicates the trial
court’s authority to impose a sentence of incarceration for that conviction, given that a
trial court is not empowered under our Commonwealth’s Sentencing Code to sentence
an individual for a non-existent criminal offense.”). This fourth class of legality challenges
is distinct from the others inasmuch as it implicates the validity of the conviction.
Nevertheless, because “a conviction is the essential supporting infrastructure for a
sentence, . . . ‘illegality’ with respect to the former extends to the latter as well. The
alternative is for courts to accept as legal a sentence which is grounded upon an illegal
conviction.” Spruill, 80 A.3d at 464 (Saylor, J., concurring).
A review of our decisions reveals commonalities among the various legality
challenges that, in close cases, lend assistance in identifying the character of the claim.15
As explained, all four categories employ the definition adopted in Barnes.16 In each, the
inquiry is whether, assuming the appellant’s claim prevails, the result would be that the
trial court lacked authority to impose the sentence at issue. If so, then the appellant’s
challenge implicates the legality of his sentence.17 Conversely, if the challenge is not to
the existence of certain authority but to the exercise of that authority, then the challenge
15 The four categories of legality challenges described above are not necessarily
exhaustive; they are descriptive and intended as guideposts for the bench and bar in
assessing whether a challenge sounds in legality or in discretionary aspects.
16 See also Commonwealth v. Batts, 163 A.3d 410, 434-35 (Pa. 2017) (reviewing
distinct kinds of legality challenges and concluding that “a claim challenging a sentencing
court’s legal authority to impose a particular sentence presents a question of sentencing
legality”), abrogated on other grounds by Jones v. Mississippi, ___ U.S. ____, 141 S. Ct.
1307 (2021).
17 See, e.g., Moore, 247 A.3d at 998 (“If the sentencing statute under which the
sentencing court imposed [the] sentence is void, and there is not another applicable
sentencing statute, the sentencing court had no authority to impose any sentence at all
on Appellant.”).
[J-31-2022] - 14
goes to the discretionary aspects of a sentence, not to its legality.18 Relatedly, as the
nomenclature suggests, all legality challenges implicate a question of law, which is
reviewed by appellate courts de novo.19 A mere disagreement with the trial court’s
weighing of various sentencing considerations, on the other hand, is a claim implicating
only the discretionary aspects of sentencing.20 Finally, many legality challenges involve
the applicability of a mandatory minimum sentence. As Chief Justice Baer cogently has
explained, “because a sentencing court loses its authority to exercise discretion when a
mandatory minimum sentence applies, the question of the propriety of applying a
mandatory minimum sentencing provision implicates legality.” Commonwealth v. Wolfe,
140 A.3d 651, 663–64 (Pa. 2016) (Baer, J., concurring) (referencing Foster, 17 A.3d 332).
We now apply these principles to Prinkey’s vindictive sentencing claim.
B. Prinkey presents a challenge to the legality of his sentence.
Prinkey’s claim does not fall within the first category of legality challenges, because
he does not argue that 42 Pa.C.S. § 9718.2(a)(1), the sentencing statute containing the
mandatory minimum sentence imposed upon him, is unconstitutional on its face. Nor
does Prinkey assert that the trial court failed to make any necessary eligibility
determinations required by Section 9718.2(a)(1), thus removing his challenge from the
second category. He also cannot avail himself of the fourth category because his
18 See, e.g., Weir, 239 A.3d at 38 (“Weir’s discontent with the amount of restitution
and the evidence supporting it is a challenge to the sentencing court’s exercise of
discretion, not to the legality of the sentence.”).
19 See, e.g., Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005) (“[A]ppellant’s
present claim raises a question of statutory construction, which is a pure question of law
and which, under the circumstances, implicates the legality of appellant’s sentence.”).
20 See Commonwealth v. Tuladziecki, 522 A.2d 17, 19-21 (Pa. 1987) (explaining that,
when the sentencing court is directed to determine the appropriate sentence based upon
its “opinion” of the “weight” to be assigned to a “multitude of factors,” an attack relating to
the court’s weighing of those factors is a challenge to the discretionary aspects of the
sentence).
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argument is not that the statutory provisions under which he was convicted were
constitutionally void ab initio. However, Prinkey’s vindictive sentencing claim squarely
falls within the third category of legality challenges: claims asserting a constitutional
barrier to the exercise of sentencing authority conferred in a facially constitutional statute.
Before the courts below, Prinkey argued that, under Pearce, the Commonwealth
was prohibited from pursuing the mandatory minimum sentence of twenty-five years. In
Pearce, the Supreme Court of the United States considered “what constitutional
limitations there may be upon the general power of a judge to impose upon reconviction
a longer prison sentence than the defendant originally received.” Pearce, 395 U.S.
at 719. The Court held that the Due Process Clause of the Fourteenth Amendment
indeed circumscribes that power. Id. at 724-25. If the lengthier sentence was motivated
by a desire to punish the accused for exercising his or her right to an appeal, the new
sentence constitutionally is prohibited. Id. at 725.
Noting that “[t]he existence of a retaliatory motivation would, of course, be
extremely difficult to prove in any individual case,” id. at 725 n.20, the Pearce Court held
that “whenever a judge imposes a more severe sentence upon a defendant after a new
trial, the reasons for his doing so must affirmatively appear.” Id. at 726. The judge’s on-
the-record statement must detail “objective information concerning identifiable conduct
on the part of the defendant occurring after the time of the original sentencing
proceeding.” Id. “Otherwise, a presumption arises that a greater sentence has been
imposed for a vindictive purpose.” Smith, 490 U.S. at 798–99. Stated differently, the
lengthier sentence is deemed presumptively unconstitutional in the absence of an on-the-
record statement that the increased term of incarceration was the product of “objective
information concerning identifiable conduct on the part of the defendant occurring after
the time of the original sentencing proceeding.” Pearce, 395 U.S. at 726.
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Subsequent Supreme Court decisions narrowed the reach of Pearce’s
presumption of vindictiveness. In Alabama v. Smith, the Supreme Court held that the
Pearce presumption “does not apply in every case where a convicted defendant receives
a higher sentence on retrial.” 490 U.S. at 799 (cleaned up). In the Smith Court’s view,
Pearce was not designed to prevent the imposition of an increased sentence following
retrial “for some valid reason associated with the need for flexibility and discretion in the
sentencing process.” Id. Thus, the Court held that the Pearce presumption applies only
in “circumstances . . . in which there is a reasonable likelihood that the increase in
sentence is the product of actual vindictiveness on the part of the sentencing authority.”
Id. (citing United States v. Goodwin, 457 U.S. 368, 373 (1982)). “Where there is no . . .
reasonable likelihood [of vindictiveness], the burden remains upon the defendant to prove
actual vindictiveness.” Id.While circumscribing the “sweeping dimension” of the Pearce presumption, id. at
799, the Smith Court noted that the presumption nonetheless remains and persists unless
some event occurs after the successful appeal, such as retrial, which provides the court
with a “greater amount of sentencing information.” Id. at 803. Thus, the Pearce
presumption will not apply when the resentencing that results in a higher sentence follows
some post-appeal occurrence that makes it likely that the court obtained new details
about the defendant’s “moral character and suitability for rehabilitation.” Id. at 801.
Where no such event occurs, yet the defendant’s new sentence is higher than the original
sentence, the Pearce presumption applies with full vigor. And when it does, it acts as a
“prophylactic” measure that “forbid[s] . . . the imposition of a greater punishment than was
imposed after the first trial, absent specified findings.” Colten v. Kentucky, 407 U.S. 104,
115 (1972).
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This legal paradigm emanates from the protections safeguarded to individuals by
the Due Process Clause. The Pearce presumption creates a constitutional barrier to the
court’s authority to impose a sentence found in a facially constitutional statute. Prinkey
maintains that the barrier was in effect here because the circumstances of this case
demonstrate a reasonable likelihood that the Commonwealth invoked the mandatory
minimum sentence on remand in order to punish him for successfully appealing his IDSI
conviction.21 More specifically, Prinkey argues that, because he was not retried, but was
only resentenced, there was no post-remand event that could have revealed valid
sentencing considerations that were unavailable during his original sentencing. As such,
Prinkey insists that the increased sentence must be deemed an unconstitutionally
vindictive punishment for his successful appeal. In Prinkey’s view, there is no on-the-
record determination that new information warranted the application of the mandatory
minimum that would overcome the applicable presumption.
If Prinkey is correct that the presumption applies and that the requisite on-the-
record justification is absent—an aspect of his claim upon which we need not rule here,
where our only task is identifying the character of his claim—then the Commonwealth
21 While Pearce and Smith addressed judicial vindictiveness, the same due process
principles, including the presumption, apply when the retaliatory decision is made by a
prosecutor. See Smith, 490 U.S. at 800 n.3 (discussing the presumption of vindictiveness
in cases involving a prosecutor’s allegedly unconstitutional retaliatory conduct); see also
Goodwin, 457 U.S. 368 (1982) (declining to apply a presumption of prosecutorial
vindictiveness where, after the defendant declined to plead guilty to a misdemeanor
charge and decided to go to trial instead, the prosecutor modified the charge from a
misdemeanor to a felony); Bordenkircher v. Hayes, 434 U.S. 357 (1978) (declining to find
a presumption of vindictiveness where the prosecutor carried out a threat he made during
plea negotiations to have the accused reindicted on more serious charges if the accused
refused to plead guilty to the original charges); Blackledge v. Perry, 417 U.S. 21 (1974)
(holding that the defendant was entitled to a presumption of vindictiveness where the
defendant sought de novo review of his misdemeanor conviction and, in response, the
prosecutor charged the defendant with a felony).
[J-31-2022] - 18
lacked the authority on remand to invoke the mandatory minimum sentence under 42
Pa.C.S. § 9718.2(a)(1). By invoking Section 9718.2(a)(1), the Commonwealth stripped
the sentencing court of its traditional discretionary power over sentencing. Assuming that
the presumption of vindictiveness controls here, the Commonwealth lacked the authority
to do so in the absence of the specific findings required by Pearce, and the trial court
retained its traditional discretion. See Barnes, 151 A.3d at 126 (“[A] sentence is
illegal . . . where the sentencing court lacked authority to avoid entering the particular
sentence that is later found to be unconstitutional.”). Accordingly, we hold that Prinkey’s
claim is a challenge to the legality of his sentence.22
The Superior Court here concluded otherwise, opining it was “constrained” to apply
its en banc decision in Robinson, 931 A.2d at 15. In that case, the defendant claimed
that the trial court had unconstitutionally increased his sentence based upon judicial
vindictiveness. Id. at 19. The Commonwealth argued that the defendant failed to
preserve that claim for appellate review and had been required to do so because he
challenged the discretionary aspects of his sentence. Id. The Superior Court agreed with
the Commonwealth, holding that “a claim of vindictiveness is a waivable challenge to the
discretionary aspects of the sentence.” Id. at 22.
22 Cf. Batts, 163 A.3d at 435 (holding that a challenge to the imposition of a life-
without-parole sentence upon a juvenile offender implicated the legality of sentencing
because, under our now abrogated understanding of the relevant decisions by the United
States Supreme Court, such a sentence could be imposed “upon a juvenile offender only
if [the sentencing court determines that] the crime committed is indicative of the offender’s
permanent incorrigibility”) (emphasis in original); Ford, 217 A.3d at 831 (holding that a
challenge to the imposition of a fine on the basis that the sentencing court failed to
consider the defendant’s ability to pay before imposing fines, in contravention of Section
9726(c) of the Sentencing Code, is a challenge to the legality of the sentence).
[J-31-2022] - 19
In arriving at that conclusion, the Robinson en banc panel applied the then-valid
framework for distinguishing between legality and discretionary aspects challenges,
which provided as follows:
The term “illegal sentence” is a term of art that [Pennsylvania courts] apply
narrowly, to a relatively small class of cases. This class of cases includes:
(1) claims that the sentence fell outside of the legal parameters prescribed
by the applicable statute; (2) claims involving merger/double jeopardy; and
(3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466(2000). These claims implicate the fundamental legal authority of the court
to impose the sentence that it did.
Most other challenges to a sentence implicate the discretionary aspects of
the sentence. This is true even though the claim may involve a legal
question, a patently obvious mathematical error, or an issue of constitutional
dimension. Moreover, the mere fact that a rule or statute may govern or
limit the trial court’s exercise of discretion in sentencing does not
necessarily convert the claim into one involving the legality of the sentence.
For example, we recently held that the denial of the right of allocution was
a challenge to the discretionary aspects of the sentence, even though both
a statute and a rule of criminal procedure mandated that a court provide
allocution before sentencing.
Robinson, 931 A.2d at 21 (cleaned up). The Superior Court viewed the vindictive
sentencing argument as “essentially claiming that the court exercised its discretion in a
way that is harsh, unreasonable, and motivated by impermissible factors,” which the court
construed as presenting “the very hallmarks of a claim that implicates the discretionary
aspects of a sentence.” Id. (emphasis in original).
Unlike the circumstances at issue in Robinson, Prinkey’s Pearce claim turns upon
the Commonwealth’s allegedly vindictive decision to seek the mandatory minimum, which
by its very nature purported to strip the trial court of its traditional sentencing authority.
Indeed, the trial court here “believe[d] the law required that it impose the mandatory
sentence and that [it lacked] discretion to do otherwise.” Tr. Ct. Op., 5/8/2014, at 10
(emphasis added). For the reasons outlined above, a challenge alleging that the
Commonwealth exercised its power to strip the sentencing court of its discretion in a way
[J-31-2022] - 20
that violates the Constitution is a challenge to the legality of the subsequently imposed
sentence. See Foster, 17 A.3d at 345 (“[W]here a sentencing court is required to impose
a mandatory minimum sentence, and that mandatory minimum sentence affects a trial
court’s traditional sentencing authority, . . . a defendant’s challenge thereto sounds in
legality of sentence.”).
More fundamentally, Robinson’s approach suggests that only claims involving a
sentence that exceeds the lawful maximum can be characterized as involving the legality
of sentence. See Robinson, 931 A.2d at 21. But the holding in Robinson relied upon a
bygone understanding of legality challenges. Under this Court’s modern approach, “a
sentence is illegal . . . where the sentencing court lacked authority to avoid entering the
particular sentence that is later found to be unconstitutional.” Barnes, 151 A.3d at 126.
It is beyond cavil that Prinkey’s presumptive vindictiveness claim satisfies that definition.
His contention is that the resentencing court lacked authority to extend his term of
incarceration beyond the length of his original sentence because, under Pearce and
Smith, no event occurred between the two sentencing hearings that could (or would) have
justified the imposition of a lengthier sentence; his appeal thus squarely falls within
Barnes’ definition of an illegal sentencing claim. To the extent that the Superior Court’s
opinion in Robinson is inconsistent, it is overruled.
III. Conclusion
Prinkey’s vindictive sentencing claim implicates the legality of his sentence
because, if it is correct, the trial court possessed no authority to impose the twenty-five-
year mandatory minimum sentence. Put simply, Prinkey’s challenge is to the court’s
authority to impose a greater sentence on remand, not to the exercise of valid sentencing
discretion. As challenges to the legality of sentence are cognizable under the PCRA, the
[J-31-2022] - 21
Superior Court committed an error of law in concluding that Prinkey’s challenge to his
sentence as presumptively vindictive was not within the PCRA’s ambit.
Accordingly, we reverse the order of the Superior Court affirming the PCRA court’s
dismissal of Prinkey’s timely PCRA petition. Because the narrow question presented
asks only that we address the scope of the PCRA and the continued vitality of the Superior
Court’s decision in Robinson,23 we remand the matter to the Superior Court with
instructions to consider, in the first instance, the merits of Prinkey’s Pearce claim.24 If the
23 See Pa.R.A.P. 1115(a)(4) (“Only the questions set forth in the petition, or fairly
comprised therein, will ordinarily be considered by [this Court] in the event an appeal is
allowed.”).
24 In her dissenting opinion, Justice Mundy disagrees that Prinkey raises an illegal
sentencing claim because the circumstances of Prinkey’s new sentence do “not strike
[her] as the type of scenario in which it is so likely that the prosecution’s selection of the
higher of the two available sentences is motivated by a vindictive purpose that a
presumption must be imputed by operation of law.” Dissenting Op. at 10-11 (Mundy, J.).
Justice Mundy arrives at that view based upon “the aggregate package” theory, which
applies when “the defendant is sentenced, at the second hearing, on a different set of
offenses than at the first hearing.” Id. at 8. As Justice Mundy observes, the “aggregate
package theory” has not been adopted by either this Court or the United States Supreme
Court. See id. at 8-10.
The basis for Justice Mundy’s finding of waiver is her disagreement with Prinkey’s
assertion that the circumstances of his case entitle him to the presumption of
vindictiveness, a position at which she arrives by answering an unsettled question of law.
It is contradictory to suggest that a claim is waived because of a hypothetical answer to
a question concerning the merits. Waiver precludes an assessment of the merits. Yet,
in deeming Prinkey’s claim waived, Justice Mundy’s analysis turns upon her view of the
merits. See id. at 10-12. Our caselaw makes clear that, in deciding whether a sentencing
claim implicates legality, we assume that the challenge would be successful. See Moore,
247 A.3d 990, 997 (holding that a void-for-vagueness claim implicated the legality of
sentence because, “[i]f Section 1102(a) is void for vagueness, the sentencing court would
not have been permitted to sentence Appellant to life without the possibility of parole”)
(emphasis added); Hill, 238 A.3d at 409 (“If this claim is correct, then the trial court was
constitutionally prohibited from punishing Appellant for his second DUI conviction. We,
therefore, are convinced that Appellant did not waive this portion of his sentencing claim,
as it implicates the legality of sentence, rendering the issue non-waivable, despite the fact
that Appellant raised it for the first time in his [Petition for Allowance of Appeal].”)
(emphasis added).
[J-31-2022] - 22
Superior Court concludes that the PCRA court’s factual determinations are insufficient to
permit a decision on the merits, the Superior Court shall remand the matter to the PCRA
court to address further Prinkey’s challenge to the legality of his sentence under Pearce.
Chief Justice Baer and Justices Todd, Donohue and Dougherty join the opinion.
Justice Mundy files a dissenting opinion in which Justice Brobson joins.
This is not to say, however, that an appellant can attempt to repackage a claim
that plainly implicates the discretionary aspects of sentencing as one that implicates
legality by, for example, baldly asserting that the trial court lacked the authority to impose
the sentence. See Weir, 239 A.3d at 38 (holding that, despite the appellant’s unsupported
assertion that the trial court lacked the authority to impose restitution, he was actually
challenging the court’s weighing of the evidence as to the amount of restitution, which is
a discretionary matter). But that is not what Prinkey does here. Under the law that binds
us, Prinkey has a non-frivolous argument that he is entitled to the presumption of
vindictiveness. See infra pp. 16-19. Neither the Supreme Court of the United States nor
this Court has held that circumstances like those of the instant case either preclude or
warrant application of the Pearce presumption. Contrary to Justice Mundy’s suggestion,
we do not here reach a conclusion one way or the other as to the presumption’s ultimate
applicability. We hold only that Prinkey presents a colorable argument that he is entitled
to the presumption of vindictiveness, thereby questioning both the authority to impose the
sentence and its legality.
While Justice Mundy’s discussion of the “aggregate package” theory raises an
interesting question, the merits of Prinkey’s claim are beyond the scope of our allocatur
grant. The narrow question presented asks whether Prinkey’s claim implicates the
legality of his sentence, whether his claim is cognizable under the PCRA, and whether
we should overrule the Superior Court’s decision in Robinson. We are not tasked with
assessing the accuracy of his presumptive vindictiveness claim at this juncture.
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