Commonwealth v. Robinson

OPINION BY LALLY-GREEN, J.:

¶ 1 Appellant, Andre Robinson, appeals from the judgment of sentence entered on October 27, 2004, as made final by the denial of post-sentence motions on November 9, 2004. We affirm.

¶ 2 The factual and procedural history of the case is somewhat complex. The Commonwealth charged Appellant with various offenses arising from three different incidents involving Appellant’s daughter, A.E. The first incident took place in the fall of 1997, when Appellant touched A.E.’s breasts and vagina while she was asleep in his bed. The second incident took place in the summer of 1999, when Appellant asked A.E. to sleep in his room. When she awoke in the morning, her bra was unsnapped and her vagina was hurting. The third incident took place in August 2000, when Appellant fondled A.E.’s breasts and stomach while she was lying in his bed.

¶ 3 The case proceeded to a bench trial. The court found Appellant guilty of three counts of corruption of minors and two counts of indecent assault.¹ On February 26, 2003, the court sentenced Appellant to an aggregate prison term of 11$ to 23 months, followed by five years of probation. Appellant filed post-sentence motions, challenging the weight and sufficiency of the evidence. The Commonwealth also filed post-sentence motions, seeking an increase in the sentence. On March 31, 2003, the trial court denied Appellant’s post-sentence motions and granted the Commonwealth’s post-sentence motions. The court re-sentenced Appellant to an aggregate prison term of three to six years, plus a term of probation.

¶4 Appellant appealed to this Court, raising the following claims: (1) weight of the evidence for all charges; (2) sufficiency of the evidence for all charges; (3) merger of indecent assault and corruption of minors for sentencing purposes; and (4) abuse of discretion in sentencing. In an unpublished memorandum, this Court rejected the weight, sufficiency, and merger claims. We then sua sponte declared that the sentence for indecent assault was illegal, because the six-year maximum term imposed by the court exceeded the five-year statutory maximum for first-degree misdemeanors. Thus, we remanded for resentencing without considering Appellant’s challenges to the discretionary aspects of the sentence.

¶ 5 On remand, the trial court again imposed an aggregate prison sentence of three to six years, with a consecutive probation term of five years. Specifically, the court imposed a sentence of two and one-half to five years for one count of corruption of minors, a consecutive term of six to 12 months for a second count of corruption of minors, and a consecutive probation term of five years on the third count of corruption of minors. The court also imposed a term of six to 12 months on the first count of indecent assault, concurrent to the first count of corruption of minors. No penalty was imposed for the second count of indecent assault. Thus, the court imposed the same aggregate prison term without any single sentence exceeding the statutory maximum for that charge.

¶ 6 Appellant filed a motion for reconsideration, which the trial court denied without a hearing. This appeal followed. Appellant argued, inter alia, that the trial court acted vindictively when sentencing him. The three-judge panel that was scheduled to hear this appeal petitioned the full Court to grant en banc review on the question of whether a claim of vindictiveness in sentencing implicates the legality of the sentence. As noted infra, conflicting Superior Court case law exists on this issue. One function of en banc review is to harmonize or overrule prior precedent if necessary. Pa.R.A.P. 2543 (note); Superi- or Court I.O.P. § 65.38(B)(1). Thus, we will consider that issue in this opinion.

¶ 7 Appellant raises the following issues on appeal:

1. Did the trial court err and/or abuse discretion, thereby committing reversible error, in resentencing Mr. Robinson to 2% to 5 years [sic] term where the resentence was illegal in that it stemmed from vindictiveness by significantly increasing the initial 11% to 23 months sentence without justifiable reason and included a 5-year probation element to the sentence although the offenses of indecent assault and corruption of a minor merge for sentencing purposes?

2. Did the trial court err and/or abuse discretion, thereby committing reversible error, in resentencing Mr. Robinson manifestly outside the guidelines without appreciation of the guidelines; had exceeded the guidelines without articulating adequate reason on the record; had double counted the offense gravity score and/or prior record score, and had re-sentenced without considering all the relevant factors or otherwise without formulating an individualized sentence?

Appellant’s Brief at l.²

¶ 8 First, Appellant argues that the court acted vindictively by increasing the sentence from the original aggregate term (11% to 23 months) to its current aggregate term (three to six years). Appellant argues that the court vindictively increased the original sentence as a result of his decision to file post-sentence motions.

¶ 9 First, we must address the Commonwealth’s claim that this issue is waived under Pa.R.A.P. 2119(f). Criminal defendants do not have the automatic right to challenge the discretionary aspects of their sentence. Rather, they must seek permission. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17, 19-20 (1987); Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa.Super.2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (Pa.2000). If a defendant fails to include an issue in his Rule 2119(f) statement, and the Commonwealth objects, then the issue is waived and this Court may not review the claim. Commonwealth v. Roser, 914 A.2d 447, 457 (Pa.Super.2006), appeal denied, 592 Pa. 788, 927 A.2d 624 (2007).

¶ 10 In contrast, a defendant need not include within his Rule 2119(f) statement any challenges to the legality of the sentence. A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained so long as the reviewing court has jurisdiction. Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super.2005), appeal denied, 591 Pa. 688, 917 A.2d 844 (Pa.2007).

¶ 11 Here, the Commonwealth objected to the fact that Appellant did not include the vindictiveness issue in his Rule 2119(f) statement. In response, Appellant argues that this was unnecessary, because his claim implicates the legality of the sentence. Again, this is the issue for which we granted en banc review.

¶ 12 We begin with the cases cited by Appellant. Appellant relies on three late 1980’s panel decisions: Commonwealth v. Walker, 390 Pa.Super. 76, 568 A.2d 201 (1989), appeal denied, 527 Pa. 645, 593 A.2d 418 (Pa.1990); Commonwealth v. Maly, 384 Pa.Super. 369, 558 A.2d 877 (1989); and Commonwealth v. Mikesell, 371 Pa.Super. 209, 537 A.2d 1372 (1988), appeal denied, 520 Pa. 587, 551 A.2d 214 (Pa.1988).³ In Walker, this Court wrote in a footnote that “[a] claim that a court increased the punishment for a crime in violation of the due process clause as interpreted in [North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ] is regarded as an attack on the legality of [the] sentence.” Walker, 568 A.2d at 203 n. 1. This statement in Walker was dicta, because there is no indication that waiver was ever at issue in that case. Similarly, in Maly, this Court described the defendant’s claim of vindictiveness as a challenge to the “legality” of the sentence, without significant analysis or any indication that waiver was at issue. Maly, 558 A.2d at 878.

¶ 13 In Mikesell, the imposition of a more severe sentence and double jeopardy were addressed. There, this Court held that the defendant’s claim of vindictiveness implicated the legality of the sentence even though Judge Beck, in dissent, argued that the claim implicated the discretionary aspects of the sentence. In a footnote, the Mikesell majority reasoned:

Appellant does not argue, as the dissent suggests, that the sentencing judge abused his discretion by failing to state adequate reasons on the record for imposing an enhanced sentence. He argues, instead, that imposition of the more severe sentence constitutes double jeopardy, and violates North Carolina v. Pearce, 395 U.S. 711[, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ].

Mikesell, 537 A.2d at 1380 n. I.⁴

¶ 14 Almost ten years after that trio of decisions, this Court issued a seminal en banc opinion addressing the distinction between the legality of the sentence and the discretionary aspects of the sentence. Commonwealth v. Archer, 722 A.2d 203, 209-210 (Pa.Super.1998) (en banc). Since Archer, this Court en banc has revisited the topic several times. See, e.g., Commonwealth v. Williams, 900 A.2d 906 (Pa.Super.2006), appeal denied, 591 Pa. 673, 916 A.2d 1102 (Pa.2007); Commonwealth v. Jacobs, 900 A.2d 368 (Pa.Super.2006); Berry; Goggins.

¶ 15 Through these en banc cases, we have established the principle that “the term ‘illegal sentence’ is a term of art that our Courts apply narrowly, to a relatively small class of cases.” Berry, 877 A.2d at 483. 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See Jacobs, 900 A.2d at 372-373 (citations omitted). These claims implicate the fundamental legal authority of the court to impose the sentence that it did. Id.

¶ 16 Most other challenges to a sentence implicate the discretionary aspects of the sentence. Archer, 722 A.2d at 209-210. This is true even though the claim may involve a legal question, a patently obvious mathematical error, or an issue of constitutional dimension. Id.; Jacobs, 900 A.2d at 373-374.⁵ Moreover, the mere fact that a rule or statute may govern or limit the trial court’s exercise of discretion in sen-fencing does not necessarily convert the claim into one involving the legality of the sentence. Id. at 373-375. 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. Jacobs, 900 A.2d at 377; Williams, 900 A.2d at 909.⁶

¶ 17 Here, Appellant’s claim is one of vindictiveness. In light of recent en banc case law, such a claim must be viewed as one implicating the discretionary aspects of the sentence. Appellant’s claim does not fall within the “narrow class of cases” described above; he is not claiming that the sentence fell outside of the parameters prescribed by a statute, or that the claim implicates double jeopardy or Apprendi principles. More generally, he is not arguing that the trial court lacked the legal authority/jurisdiction to impose a sentence of that length or type. Instead, Appellant is essentially claiming that the court exercised its discretion in a way that is harsh, unreasonable, and motivated by impermissible factors such as personal animus or revenge. These are the very hallmarks of a claim that implicates the discretionary aspects of a sentence. See, e.g., Goggins; Archer; Berry; see also Commonwealth v. Gould, 912 A.2d 869, 872 (Pa.Super.2006); Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa.Super.2001). For the reasons set forth above, we are constrained to disapprove Walker, Maly, Mikesell, Johnson, and McHale to the extent that they suggest that a claim of vindictiveness is a non-waivable challenge to the legality of the sentence.

¶ 18 We recognize that a claim of vindictiveness implicates due process concerns. Commonwealth v. Speight, 578 Pa. 520, 854 A.2d 450, 455 (2004), citing Pearce, 395 U.S. at 725, 89 S.Ct. 2072; see also McHale, 2007 PA Super 131, ¶ 14, 924 A.2d 664. In Speight, our Supreme Court reasoned that a sentencing court may not punish a defendant for exercising his constitutional rights, or chill the exercise of those rights by resentencing a defendant vindictively. Id. at 455.

¶ 19 These concerns do not compel a different result in the instant case. Speight did not hold that a claim of vindictiveness implicated the legality of the sentence. Indeed, to date, our Supreme Court has not squarely decided whether a constitutional violation in sentencing necessarily implicates the legality of the sentence. Jacobs, 900 A.2d at 373 n. 6, citing McCray v. Pa. Dep’t of Corr., 582 Pa. 440, 872 A.2d 1127, 1134 (2005). (Saylor, J., concurring) (there exists a “prevailing uncertainty concerning the breadth of the legality-of-sentence exception to general principles of waiver and preclusion”). Until and unless our Supreme Court holds otherwise, we hold that any due process concerns arising from vindictiveness in sentencing are waivable as well. Such a holding is consistent with our Supreme Court’s longstanding precedent that claims of a constitutional dimension can be waived,⁷ and with our own recent en banc precedent.⁸

¶ 20 As stated above, a claim of vindictiveness is a waivable challenge to the discretionary aspects of the sentence. Appellant failed to include this claim within his Rule 2119(f) statement; The Commonwealth has objected. Thus, we hold that this issue is waived. Tuladziecki; Gog-gins; Roser.

¶ 21 Even assuming arguendo that Appellant’s claim implicated the legality of the sentence, he would not be entitled to relief. As noted above, claims of vindictiveness ordinarily arise where a defendant has been resentenced to a more severe sentence after successfully having his first conviction overturned on appeal. Pearce. The prohibition against vindictiveness is designed to prevent courts from punishing defendants for freely exercising their legal rights. Speight, 854 A.2d at 455. Thus, if the court imposes a harsher sentence after a retrial, a presumption of vindictiveness applies. Id. That presumption can be overcome by pointing to “objective information in the record justifying the increased sentence.” Id. (citation omitted); see also Commonwealth v. Campion, 449 Pa.Super. 9, 672 A.2d 1328 (1996), appeal denied, 545 Pa. 668, 681 A.2d 1340 (Pa.1996).

¶ 22 This Court has extended those same principles to situations where the trial court increased a sentence after the defendant filed post-sentence motions, and where the court did not justify the increase in any way. Hernandez, 783 A.2d at 787-788; see also Commonwealth v. Serrano, 727 A.2d 1168, 1170 (Pa.Super.1999).⁹ Finally, in Speight, our Supreme Court set forth the following broader principles for determining whether a presumption of vindictiveness applies:

A court may not punish an Appellant for exercising appellate rights. In cases where there is no actual vindictiveness, but instead there is an apprehension on the part of a defendant to exercise his legal rights due to a fear of retaliation from the court, a presumption of vindictiveness may arise. In such cases, a court may reverse the defendant’s conviction only if it applies a presumption of vindictiveness, which would then be applicable to all cases. A court may adopt the presumption of vindictiveness only where there is a reasonable likelihood of vindictiveness. The inquiry is whether there is a reasonable danger a state may have retaliated against the accused for exercising a legal right.

Speight, 854 A.2d at 455 (citations and brackets omitted).

¶ 23 With that background in mind, we turn to the unusual procedural history of this case. Appellant argues that during the original sentencing hearing, where the court imposed an aggregate sentence of 11)£ to 23 months, the trial court explicitly warned him against filing a motion for reconsideration of that sentence:

THE COURT: Mr. Robinson, you have ten days to ask me for reconsideration. It is perfectly within your right. You contact [your counsel] and he will submit the paperwork. If you ask me for reconsideration, I am already struggling with this. I’m being candid with you. If you ask me for reconsideration, I’ll put myself at peace by sending you to the state. Because then I won’t have to sweat this anymore. I am trying to figure out what is right to do to protect [the victim], to protect your other children. But also not to deny your other children the right to a father. I am just not at peace. You ask me for reconsideration and I’m taking this out of my hands and I’ll make my life easy.

N.T., 2/26/2003, at 29. The record reflects that, in response, Appellant did not file a motion challenging the length of his sentence. Rather, he challenged the weight and sufficiency of the evidence.

¶ 24 On the other hand, the Commonwealth filed a motion to reconsider the sentence, claiming that the sentence was too lenient. The Commonwealth also argued that Appellant was not eligible for work release. N.T., 3/31/2003, at 10-12. The trial court granted the Commonwealth’s motion, and imposed a higher aggregate sentence of three to six years. Appellant argues that this sequence of events raises a presumption of vindictiveness.

¶ 25 Initially, we stress that we do not in any way condone the trial court’s remarks. The trial judge’s ominous warning to refrain from filing a motion to reconsider the sentence was inappropriate. Indeed, it can be interpreted as creating a legitimate “apprehension on the part of a defendant to exercise his legal rights due to a fear of retaliation from the court[.]” Speight, 854 A.2d at 455. We further caution trial judges from making similar remarks in the future.

¶ 26 On the other hand, the record does not reflect that the trial court actually acted vindictively against Appellant. A fair reading of the record reflects that the trial court increased the sentence based on the Commonwealth’s motion to reconsider the sentence, not on Appellant’s motion regarding the weight and sufficiency of the evidence. See Speight, 854 A.2d at 455-456 (where PCRA court vacates death sentence but then reinstates death sentence in response to Commonwealth’s motion to reconsider, “[t]his is not retaliatory or vindictive, but rather reflects the legal error of the prior order.”). Given that the trial court has the discretion to modify its own sentence in response to a Commonwealth motion for reconsideration, we are disinclined to apply a presumption of vindictiveness. See id. Moreover, even assuming arguendo that the presumption did apply, for reasons set forth infra we would conclude that the trial court adequately justified the increased sentence. Appellant’s first claim fails because it is waived; even assuming it was not waived, Appellant would not be entitled to relief.

¶ 27 We now turn to Appellant’s second claim: that the court illegally imposed separate sentences for corruption of minors and indecent assault, because those offenses merge.¹⁰ Initially, we note that merger is a nonwaivable challenge to the legality of the sentence. Jacobs. The issue is a pure question of law, allowing for plenary review. Commonwealth v. Johnson, 874 A.2d 66, 70 (Pa.Super.2005), appeal denied, 587 Pa. 720, 899 A.2d 1122 (Pa.2006).

¶ 28 Our Courts have long held that where a defendant commits multiple distinct criminal acts, concepts of merger do not apply. Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994); Johnson, 874 A.2d at 70; see also 42 Pa. C.S.A. § 9765 (“no crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense.”) (emphasis added).

¶ 29 Here, the record reflects that Appellant was convicted of three separate counts of corruption of minors. These three counts arose from three separate incidents in the fall of 1997, the summer of 1999, and August of 2000. These three incidents, separated by great lengths of time, undeniably constituted three separate criminal acts. Thus, concepts of merger do not apply for those three counts. Anderson; Johnson.

¶ 30 Next, the record reflects that Appellant was sentenced to a term of six to 12 months for indecent assault on Bill # 1, concurrent to the charge of corruption of minors at Bill #4. Unfortunately, the certified record is not clear on which charges correspond to which incidents or acts. Nevertheless, the record supports a finding that Appellant committed both indecent assault and corruption of minors during the 1997 incident. See footnote 1, p. 2. Thus, we will consider the merger question with respect to that incident.

¶ 31 In the 1997 incident, Appellant fondled the victim’s breasts and touched her vagina. The threshold question is whether Appellant committed one solitary criminal act. The answer to this question does not turn on whether there was a “break in the chain” of criminal activity. Commonwealth v. Wesley, 860 A.2d 585, 592 (Pa.Super.2004), appeal dismissed as improvidently granted, 586 Pa. 621, 896 A.2d 564 (2006). Rather, the answer turns on whether “the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime[J” Id. at 592, quoting Commonwealth v. Belsar, 544 Pa. 346, 676 A.2d 632 (1996). If so, then the defendant has committed more than one criminal act. Id. This focus is designed to prevent defendants from receiving a “volume discount on crime” of the sort described in our Supreme Court’s decision in Anderson:

If multiple acts of criminal violence were regarded as part of one larger criminal transaction or encounter which is punishable only as one crime, then there would be no legally recognized difference between a criminal who robs someone at gunpoint and a criminal who robs the person and during the same transaction or encounter pistol whips him in order to effect the robbery. But in Pennsylvania, there is a legally recognized difference between these two crimes. The criminal in the latter case may be convicted of more than one crime and sentences for each conviction may be imposed where the crimes are not greater and lesser included offenses.

Wesley, 860 A.2d at 592, quoting Anderson, 650 A.2d at 22.

¶ 32 Here, we conclude that Appellant’s touching of the minor victim’s breasts constitutes corruption of minors. See Commonwealth v. Smith, 863 A.2d 1172, 1177 (Pa.Super.2004); 18 Pa.C.S.A. § 6301. Appellant also touched the victim’s vagina. This act constituted indecent assault. Smith, 863 A.2d at 1177; 18 Pa. C.S.A. § 3126. The indecent assault was a separate criminal act, involving a separate part of the victim’s body. Moreover, this second touching went beyond what was necessary to complete the first crime of corruption of minors. Thus, we conclude that merger does not apply, and the trial court did not commit a legal error by imposing separate sentences for corruption of minors and aggravated assault. Wesley; Anderson. Appellant’s second claim fails.¹¹

¶ 33 Finally, Appellant argues that the trial court abused its discretion when sentencing him. Appellant raises five distinct sub-claims in support of this position. First, he argues that the trial court sentenced him outside the sentencing guidelines without first understanding and considering the guidelines themselves.

¶ 34 Where the trial court orders an Appellant to file a concise statement of matters complained of on appeal under Pa.R.A.P.1925, any issue not contained in that statement is waived on appeal. Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005); Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998). The record reflects that Appellant failed to include this issue in his concise statement. Accordingly, it is waived. Id.

¶ 35 Second, Appellant argues that the trial court imposed an unreasonable and excessive sentence, reflecting a fixed animus against child molesters. Again, the record reflects that Appellant failed to include this issue in his concise statement. Accordingly, it is waived.

¶ 36 Third, Appellant argues that the trial court imposed an unreasonable and excessive sentence, outside of the guidelines, without providing an adequate explanation.¹² As noted above, in order to obtain permission to hear this claim on the merits, Appellant must include it in his Rule 2119(f) statement. Goggins, 748 A.2d at 726. The statement must raise a substantial question that the sentence is inconsistent with a particular provision of the Sentencing Code, or is contrary to the fundamental norms underlying the sentencing process. Id. at 727. Appellant has done so. Id. at 728 (a claim that the court imposed a sentence outside the guidelines without stating adequate reasons raises a substantial question). Thus, we turn to the merits. Our standard of review is well settled:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Fullin, 892 A.2d at 847, quoting Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super.1999) (en banc).

¶ 37 If a court chooses to sentence a defendant outside of the sentencing guidelines, it should state on the record adequate reasons for the deviation. Commonwealth v. Walls, 846 A.2d 152, 158 (Pa.Super.2004), reversed on other grounds, 592 Pa. 557, 926 A.2d 957 (2007).

¶ 38 Here, the record reflects that the trial court imposed a statutory maximum term of two and one-half to five years for one of the counts of corruption of minors, a first-degree misdemeanor. This sentence does exceed the sentencing guidelines, which sets forth a standard range of 12 to 18 months (plus or minus three months) for offenders with a prior record score of five (such as Appellant). See 204 Pa.Code § 303.16. The record also reflects that the trial court did not specifically state why the sentence for that particular count exceeded the sentencing guidelines. On the other hand, we must bear in mind that the court imposed highly mitigated sentences, or no sentence at all, on the other four first-degree misdemean- or charges.¹³

¶ 89 We do not in any way condone the trial court’s noncompliance with Walls as to the first count of corruption of minors. Nevertheless, we will not conclude that the court abused its discretion without first addressing the more relevant question of whether the trial court imposed adequate reasons for the sentence as a whole, given the court’s obvious intent to impose an aggregate sentence of three to six years. See Commonwealth v. Marts, 889 A.2d 608, 613-615 (Pa.Super.2005).

¶40 We also note that this aggregate sentence was significantly lower than the aggregate would have been if the court had imposed consecutive, standard-range sentences for all five charges. In fact, the aggregate sentence is roughly equivalent to three standard-range, consecutive sentences: ie., a standard-range sentence for each of the three criminal incidents. Moreover, the record reflects that the court did state adequate reasons for the sentence as a whole. At the initial sentencing hearing in February 2003, the court extensively considered and discussed Appellant’s presentence report, his criminal history, issues surrounding the fact that he has nine children with five different women, the facts of the case, and Appellant’s failure to show remorse. On reconsideration in March 2003, the court increased the aggregate sentence based on Appellant’s ineligibility for work release, the Commonwealth’s arguments for a higher sentence, Appellant’s low prospects for rehabilitation, and his continuing refusal to show remorse because he insisted on his innocence. N.T., 3/31/2003, at 19-20.

¶ 41 On remand from this Court in October 2004, the court corrected its prior legal error, reiterated its position from March of 2003, and added that a “standard range sentence”¹⁴ was appropriate because the case involved incest, and because of the lasting effect of the crimes on Appellant’s young and credible victim. N.T., 10/27/2004, at 18. In summary, the record reflects that the court stated adequate reasons for the aggregate sentence that it imposed. This claim fails.

¶42 In his fourth and fifth arguments concerning the discretionary aspects of the sentence, Appellant argues that the court imposed a manifestly excessive sentence by failing to carefully consider all relevant factors, and by impermissibly double-counting factors that are already incorporated into the guidelines. Both of these claims raise substantial questions. Walls; Commonwealth v. Parlante, 823 A.2d 927 (Pa.Super.2003). For the reasons set forth above, however, we conclude that they are meritless. Accordingly, we affirm the judgment of sentence.

¶ 43 Judgment of sentence affirmed.

¶ 44 KLEIN, J.: files a Dissenting Opinion, which is joined by BENDER, J. and BOWES, J. ¶ 45 BENDER, J.: files a Dissenting Opinion, which is joined by KLEIN, J. and BOWES, J. concurs in the result.

1 . Unfortunately, the trial transcript and the certified record are not particularly clear on which charges correspond to which incidents. According to a prior panel of this Court, the verdict reflected findings of guilt as follows: corruption of minors and indecent assault for the 1997 incident; corruption of minors for the 1999 incident; and corruption of minors and indecent assault for the 2000 incident. Commonwealth v. Robinson, 859 A.2d 835 (Pa.Super. July 22, 2004) (unpublished memorandum). After reviewing the record, we see no reason to disagree with the panel’s assessment on this point.

2 . On December 16, 2004, the trial court ordered Appellant to file a concise statement of matters complained of on appeal under Pa. R.A.P. 1925. Appellant timely complied on December 23, 2004. The trial court issued a Rule 1925 opinion on June 24, 2005.

3 . See also Commonwealth v. Johnson, 860 A.2d 146, 149 (Pa.Super.2004) (citing Walker for the proposition that a claim of vindictiveness implicates the legality of the sentence); Commonwealth v. McHale, 2007 PA Super 131, ¶ 6, 924 A.2d 664 (citing Johnson for the same proposition).

4 . We observe that if the Mikesell defendant’s claim sounded in double jeopardy, that claim was misplaced because the Pearce Court had held explicitly that a claim of vindictiveness does not implicate double jeopardy concerns. Pearce, 395 U.S. at 722-723, 89 S.Ct. 2072. Thus, Mikesell is not persuasive authority that a claim of vindictiveness implicates the legality of the sentence, at least on a double jeopardy theory. Indeed, the instant case is somewhat different from the usual Pearce-type claim, where the defendant is resentenced after his conviction or judgment of sentence has been overturned. Here, Appellant is arguing that the trial court increased the original sentence (from a minimum term of less than one year to a minimum term of three years) because Appellant filed post-sentence motions. Particularly in light of Pearce, we cannot conclude that double jeopardy concerns arise from such a situation.

5 . Even ten years before Archer, this Court issued an en banc opinion advising that “if a sentencing court considers improper factors in imposing sentence upon a defendant, the court thereby abuses its discretion, but the sentence imposed is not rendered illegal. Otherwise, every erroneous consideration by a sentencing court will render the sentence illegal in a manner which cannot be waived by a defendant. This is not the law. Indeed, even issues of constitutional dimensions can be waived.” Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134, 136 (1987) (en banc) (citations omitted).

6 . In Jacobs, we wrote that the right of allocution "is not a statutory mandate.” Jacobs, 900 A.2d at 371 (citation omitted). That is not accurate. As we noted in the companion case to Jacobs, the right to allocution is set forth in a statute, as well as in our Rules of Criminal Procedure. Williams, 900 A.2d at 910, citing 42 Pa.C.S.A. § 9752(a)(2).

7 . Commonwealth v. Edmondson, 553 Pa. 160, 718 A.2d 751, 753 (1998).

8 .We respectfully urge our Supreme Court to provide further guidance on this complex and recurring issue.

9 .The Serrano Court expanded the Pearce rule. In Pearce, the United States Supreme Court wrote: "In order to assure the absence of such a [vindictive] motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear.” The Serrano Court omitted the words "after a new trial.” Serrano, 727 A.2d at 1170.

10 . Unfortunately, Appellant’s argument on this point is somewhat convoluted, and is interspersed with arguments involving the sufficiency of the evidence for certain counts. See Appellant’s Brief at 11-15. We will respond to Appellant’s arguments as best as we are able.

11 . We note that in a prior appeal, a three judge panel of this Court considered whether indecent assault and corruption of minors merged for sentencing purposes. Given this prior ruling, the parties debate whether the law of the case doctrine applies. In general, the doctrine provides that "a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of the same court or by a higher court in the earlier phases of the matter.” Commonwealth v. Wallace, 582 Pa. 234, 870 A.2d 838, 842 n. 4 (2005) (citation omitted). We decline to apply the doctrine because the trial court’s most recent sentence was structured differently from the sentence that the prior panel considered.

Moreover, as a result of our disposition, we need not address our Supreme Court’s decision in Commonwealth v. Jones, 590 Pa. 356, 912 A.2d 815 (2006). In Jones, our Supreme Court issued its most recent opinion discussing the law of merger in situations where a single criminal act is involved. In the instant case, we have concluded that the two acts in the 1997 incident were separate criminal acts. Thus, Jones does not apply.

12 . The record reflects that Appellant preserved this issue by raising it in post-sentence motions, in a timely concise statement, and in his Rule 2119(f) statement. See Commonwealth v. Fullin, 892 A.2d 843, 847 n. 2 (Pa.Super.2006).

13 . Again, aside from the statutory maximum sentence on the one count of corruption of minors, the court imposed a consecutive term of six to 12 months for a second count of corruption of minors, and a consecutive probation term of five years on the third count of corruption of minors. The court also imposed a term of six to 12 months on the first count of indecent assault, concurrent to the first count of corruption of minors. No penalty was imposed for the second count of indecent assault.

14 . While the court was incorrect in its assessment that the sentences were "standard range," we do agree that the practical effect of the sentence was indeed to impose three standard-range, consecutive sentences. Again, we note that Appellant has waived his claim that the trial court sentenced him without first appreciating and understanding the guidelines.