Commonwealth v. Wilson

OPINION BY

KLEIN, J.:

¶ 1 Appellant Omari K. Wilson, a/k/a Kevin Weedon, appeals pro se from his sentence of 4-10 years’ imprisonment for unlawful delivery of a controlled substance. We hold that when the only issue is a statutory sentencing enhancement, such as the sale of drugs within 1,000 feet of a school, the Commonwealth must present its evidence at the initial sentencing hearing. This may include evidence from the trial and additional evidence presented at the sentencing hearing. If the Commonwealth fails to present such evidence, the defendant must be re-sentenced without the school zone enhancement, considering the guideline sentence absent the enhancement. The Commonwealth does not have the opportunity to undo its mistake and present new evidence at the re-sentencing hearing.

¶ 2 In this case, that is not what happened. At the resentencing hearing, the trial judge gave the opportunity to the Commonwealth to present new evidence to establish that the sale took place within 1,000 feet of a school zone. He reimposed the initial sentence as if the school zone enhancement applied. Therefore, we reverse and remand for re-sentencing using the guidelines that would be appropriate absent the school zone enhancement.

¶ 3 We note that this does not mean that the trial court cannot impose the same sentence if he can state sufficient reasons to deviate from the guideline sentence that applies absent the school zone enhancement. However, in this case it seemed clear that the reason for the length of the sentence was that it was within the standard range for a school zone case, and nothing was stated by the trial judge that would justify a sentence other than in the standard range.

¶ 4 We also note that it would be appropriate for a trial judge to refashion a sentence if there are multiple charges and the reversal of the school zone enhancement would upset a sentencing scheme. However, that is not the circumstance in this case, since the only charge was the one sale of narcotics,

¶ 5 As noted, this is the second time this matter has been before this Court. Initially, the trial court sentenced Wilson to an identical 4-10 year term. This Court reversed the judgment of sentence because the trial judge applied the school zone enhancement when the Commonwealth presented no evidence at all, either at trial or at the sentencing hearing, that the sale was within 1,000 feet of a school. Commonwealth v. Wilson, 829 A.2d 1194 (Pa.Super.2003) (“Wilson I”). The trial court then held a new sentencing hearing in which the Commonwealth did present evidence that the sale was within 1,000 feet of a school.

¶ 6 The trial judge said in his opinion after re-sentencing, P. 4:

[W]hen a defendant challenges his sentence on appeal, he loses any expectation of finality and a remand for re-sentencing implicates no double jeopardy violation. Commonwealth v. Sutton, 400 Pa.Super. 291, 583 A.2d 500 (Pa.Super.1990; see also Pa. v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985); Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404, 408 (1977) (vacated sentence is a nullity and defendant is restored to the status of the unsentenced).

Accordingly, it was proper for the trial court to receive evidence at the re-sentencing hearing which established that defendant’s drug delivery took place within 1,000 feet of a school and to follow the enhanced sentencing guidelines in imposing sentence.

¶ 7 Therefore, it is clear that the trial judge never considered sentencing within the guideline range absent the school enhancement. The Pennsylvania Legislature requires that evidence regarding such enhancements must be presented at the time of sentencing.¹ See 18 Pa.C.S. § 6317(b). The Commonwealth failed to do so and should not be allowed to present new evidence after a defendant raises this issue. Allowing the Commonwealth to present evidence in a situation such as this is a classic Catch-22. If a defendant does not complain about an improperly imposed sentencing enhancement, he or she is forced to serve a longer sentence that was not based upon statutorily mandated evidence. If a defendant does complain about an improperly imposed enhancement, the Commonwealth simply says “Oops” and presents the evidence it was required to present in the first place. The defendant is left in the same position he or she started in. The result fairly well renders an appeal on the issue moot. We cannot believe this was the intent of the legislature in enacting section 6371(b). Further, reading the statute in the above manner would produce an absurd result, which is specifically forbidden by 1 Pa.C.S. § 1922(1).

¶ 8 It is true that Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super.1999), stands for the proposition that where a defendant appeals the judgment of sentence, he accepts the risk that the Commonwealth may seek a remand for re-sentencing if the appellate court upsets the original sentencing scheme of the trial court. The Bartrug decision, in turn, relies upon the Supreme Court decision in Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1980). However, these cases turn on the relevance of a “sentencing scheme .” The Supreme Court stated in Goldhammer: “[w]hen a defendant challenges one of several interdependent sentences, he, in effect, challenges the entire sentencing plan.” Id. at 1283.

¶ 9 Here, Wilson has not challenged the sentencing scheme — one portion of several interdependent sentences — he has challenged the fact that the Commonwealth presented no evidence to support the application of a sentence enhancement. The enhancement was placed on a single sentence regarding a single conviction.

¶ 10 In Commonwealth v. Kunkle, 817 A.2d 498 (Pa.Super.2003), this Court refused to allow the Commonwealth to present evidence regarding' the imposition of the school zone enhancement at a re-sentencing hearing, stating, “[S]eetion 6317 does not contemplate a second sentencing hearing where the Commonwealth failed to meet its burden at the first sentencing hearing.” Id. at 500. The difference between Kunkle and Wilson is that in Kun-kle the Commonwealth filed a motion to modify the sentence, while here it is the defendant who challenged the sentence. This difference does not change the outcome.² No matter who challenges the sufficiency of the evidence, section 6317 still does not allow the Commonwealth to present new evidence where it failed to meet its burden on the first go-around.

¶ 11 The ability to present evidence at the re-sentencing hearing was suggested in a footnote in Wilson I that stated:

We leave it to the Commonwealth to decide whether it will present evidence at re-sentencing that the drug buy occurred within a school zone, thereby allowing the sentencing court to conclude that the Commonwealth has met its burden.

829 A.2d at 1202 n. 6 (Pa.Super.2003).

This footnote does not address any issue specifically raised in the original appeal.³ A review of the briefs in that appeal reveals nothing but silence on the issue of evidence regarding the re-sentencing hearing. Thus, it appears that the footnote is nothing more than dicta and is not binding on us.

¶ 12 The issue of submitting new evidence at a re-sentencing hearing was addressed in Commonwealth v. Decker, 433 Pa.Super. 402, 640 A.2d 1321 (1994).⁴ Decker involved the application of the statutory enhancement for causing serious bodily injury while driving while intoxicated. 204 Pa.Code § 303.5(b). As is the case here, in Decker no evidence was presented at sentencing as to the injuries suffered by Decker’s passenger. A pre-sentence report did state the passenger had suffered a leg amputation. That was most certainly serious bodily injury. Nonetheless, because no evidence was formally presented, our court vacated the sentence and specifically stated that the lower court was bound to re-sentence solely on the underlying conviction without reference to the enhancement. While this decision may not be binding, the result does speak to the essence of the appeal. Therefore, we find the logic of Decker to be more persuasive than that found in a footnote that does not address an issue either raised or briefed.

¶ 13 We hold it is more appropriate to extend the logic of Kunkle and Decker in refusing the Commonwealth the opportunity to present evidence at a second sentencing hearing, than it is to extend the rationale of Bartrug, which applies to re-sentencing where an entire sentencing scheme has been upset.

¶ 14 Accordingly, we reverse and remand for still another sentencing hearing where the trial judge should disregard any sentencing enhancement in considering the guidelines and imposing sentence.

¶ 15 Judgment of sentence reversed and remanded for re-sentencing. Jurisdiction retained.

¶ 16 POPOVICH, J., files a Dissenting Opinion.

1 . This is not a particularly onerous requirement. Someone simply needs to go to the scene with a tape measure and then testify that the point of sale was "X” number of feet from a school.

2 .I note that in Kunkle, in a concurring statement, I discussed the situation where the judge on his or her own initiative vacated the sentence within 30 days while he or she still had jurisdiction. In dicta in a concurrence I indicated that in that circumstance, at a new sentencing hearing, the Commonwealth could present additional evidence to justify an enhancement. On further reflection, I believe I was wrong in Kunkle and should have just joined my distinguished colleagues, Judges Musmánno and Lally-Green. There is a balance between a judge's power to modify sentence and the requirement that the Commonwealth not have two bites at the sentencing apple. In Kunkle, 1 tipped the scales the wrong way. It does not matter whether the trial judge on his or her own motion vacates the sentence to conduct a new sentencing hearing within 30 days, or the case goes back to the trial judge after we find the evidence insufficient. The Commonwealth cannot go back to correct its mistake by presenting new evidence.

3 . Rather like the concurring statement I authored in Kunkle.

4 . Decker does not necessarily represent binding precedent either. Although a published opinion, it was authored by Judge Brosky with Judges Wieand and McEwen concurring in the result.