J-A28018-18

                                   2019 PA Super 2

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL A. LEHMAN                          :
                                               :
                       Appellant               :   No. 1556 MDA 2017

              Appeal from the Judgment of Sentence April 4, 2017
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002000-1988


BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

OPINION BY OLSON, J.:                          FILED: JANUARY 4, 2019

       More than 28 years ago, the trial court sentenced Appellant, Michael A.

Lehman, to the then-mandatory term of life imprisonment without the

possibility of parole for a murder committed when he was 14 years old. On

April 4, 2017, he was resentenced to 30 years to life imprisonment in light of

intervening decisions of the Supreme Court of the United States. See Miller

v. Alabama, 567 U.S. 460 (2012); see also Montgomery v. Louisiana,

136 S.Ct. 718 (2016). In addition, the trial court ordered him to pay costs

associated with that resentencing.1 Appellant appeals from that judgment of

sentence, challenging the trial court’s authority to sentence him for first-

degree murder and to require payment of the costs.                After careful

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1  The total costs imposed were $15,150.28. The bulk of the costs—
$8,950.00—involved the examination and testimony of the Commonwealth’s
expert witness, Dr. Larry Rotenberg, who did not find Appellant to be
irreparably corrupt.
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consideration, we hold that, although Appellant’s sentence of imprisonment is

lawful, a trial court lacks authority to impose costs associated with a

resentencing proceeding necessitated by the imposition of a prior illegal

sentence. We, therefore, affirm in part, vacate in part, and remand for further

proceedings consistent with this opinion.

        In June 1988, Appellant was 14 years old. He and two other residents

escaped from the Children’s Home of York County (“the Home”). Appellant

was apprehended. The same day, however, he fled the Home again. He,

along with his confederates, then plotted to murder one of the Home’s staff

members. They returned to the Home and Appellant served as a lookout while

his confederates viciously murdered the staff member by stabbing him 21

times.

        Appellant was convicted of first-degree murder,2 burglary,3 robbery,4

and criminal conspiracy.5        On October 22, 1990, the trial court sentenced

Appellant to the then-mandatory term of life imprisonment without the

possibility of parole.     See 18 Pa.C.S.A. § 1102(a) (West 1988) (requiring

sentence of life imprisonment); 61 Pa.C.S.A. § 6137(a)(3) (West 1988)



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2   18 Pa.C.S.A. § 2502(a).

3   18 Pa.C.S.A. § 3502.

4   18 Pa.C.S.A. § 3701.

5   18 Pa.C.S.A. § 903.

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(barring parole for individuals sentenced to life imprisonment). This Court

affirmed. Commonwealth v. Lehman, 606 A.2d 1231 (Pa. Super. 1991)

(unpublished memorandum).

      On October 8, 1998, Appellant filed his first petition pursuant to the

Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. On May 26,

1999, the PCRA court denied the petition.       This Court affirmed and our

Supreme Court denied allowance of appeal.      Commonwealth v. Lehman,

754 A.2d 19 (Pa. Super. 2000) (unpublished memorandum), appeal denied,

764 A.2d 1066 (Pa. 2000). On July 1, 2010, Appellant filed his second PCRA

petition. The PCRA court dismissed that petition on August 26, 2010. Again,

this Court affirmed and our Supreme Court denied allowance of appeal.

Commonwealth v. Lehman, 34 A.3d 221 (Pa. Super. 2011) (unpublished

memorandum), appeal denied, 34 A.3d 827 (Pa. 2011).

      On August 21, 2012, Appellant filed his third PCRA petition in which he

alleged that Miller entitled him to relief. In Miller, the Supreme Court of the

United States held that juvenile homicide offenders may not be sentenced

pursuant to schemes that impose mandatory life imprisonment without the

possibility of parole.    Miller, 567 U.S. at 469-489.          Thereafter, in

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), our Supreme Court

held that Miller did not apply retroactively. Id. at 4-11. On November 20,

2013, the PCRA court dismissed Appellant’s third petition based on

Cunningham.          Bound    by    Cunningham,       this   Court   affirmed.


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Commonwealth v. Lehman, 122 A.3d 1131 (Pa. Super. 2015) (unpublished

memorandum).

       The following year, resolving a split amongst state courts of last resort,

the Supreme Court of the United States held that Miller applied retroactively.

Montgomery, 136 S.Ct. at 732-737. On March 16, 2016, Appellant filed his

fourth PCRA petition. Prior to the PCRA court ruling on that petition, the United

States District Court for the Middle District of Pennsylvania granted Appellant

a writ of habeas corpus and ordered the trial court to resentence Appellant.6

Lehman v. Commonwealth, 15cv843 (M.D. Pa. Aug. 8, 2016).

       On April 7, 2017, the trial court resentenced Appellant to an aggregate

term of 30 years to life imprisonment. The trial court also ordered Appellant

to    pay   costs   associated     with    the   resentencing   proceedings.   The

Commonwealth filed a post-sentence motion challenging the discretionary

aspects of Appellant’s sentence.          On September 18, 2017, the trial court

denied the post-sentence motion. This timely appeal followed.7

       Appellant presents three issues for our review:

     1. Was [Appellant] granted relief under the [PCRA] or pursuant to a
        petition for a writ of habeas corpus?

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6 Although it was not titled as such, nor did it include the normal language
associated therewith, we believe that it was a conditional writ.

7 Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.




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     2. [Did the trial court impose an illegal sentence by ordering
        Appellant to serve 30 years to life imprisonment?

     3. Did the trial court impose an illegal sentence by ordering Appellant
        to pay the costs associated with the resentencing proceedings?]

Appellant’s Brief at 3.8

        In his first issue, Appellant argues that he obtained relief pursuant to

the writ of habeas corpus issued by the United States District Court for the

Middle District of Pennsylvania and not because the PCRA court granted him

relief. This issue is moot because the trial court resentenced Appellant. Cf.

In re S.H., 71 A.3d 973, 976 (Pa. Super. 2013) (citation omitted) (“If events

occur to eliminate the claim or controversy at any stage in the process, the

[issue] becomes moot.”). For purposes of the central issues presented in this

appeal from Appellant’s judgment of sentence, it is immaterial whether

Appellant was before the trial court for resentencing pursuant to an order

issued under the PCRA or the writ of habeas corpus issued by the United States

District Court for the Middle District of Pennsylvania. Accordingly, we decline

to address Appellant’s first issue.

        In his second issue, Appellant argues that the trial court imposed an

illegal sentence by ordering him to serve 30 years to life imprisonment for his

first-degree murder conviction.9           According to Appellant, there was no


____________________________________________


8   We have re-numbered the issues for ease of disposition.

9 We note that this argument was made by an attorney that withdrew his
appearance during the pendency of this appeal.

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statutory authority by which the trial court could sentence Appellant for first-

degree murder because 18 Pa.C.S.A. § 1102, when combined with 61

Pa.C.S.A. § 6137(a)(3), was deemed unconstitutional in Miller.        Appellant

argues that the trial court was required to (1) sentence him for third-degree

murder, a crime he was not convicted of committing, or (2) discharge him.

We review an illegal sentencing claim de novo and our scope of review is

plenary. Commonwealth v. White, 193 A.3d 977, 985 (Pa. Super. 2018)

(citation omitted).

       Our Supreme Court and this Court have rejected Appellant’s argument

on numerous occasions. E.g. Commonwealth v. Batts, 163 A.3d 410, 421

(Pa. 2017); Commonwealth v. Olds, 192 A.3d 1188, 1193 (Pa. Super.

2018); Commonwealth v. Foust, 180 A.3d 416, 430 (Pa. Super. 2018);

Commonwealth v. Seskey, 170 A.3d 1105, 1106 (Pa. Super. 2017).10

Pursuant to these binding decisions, the trial court was required to impose a

sentence for first-degree murder. The sentencing options available to the trial

court offered no mandatory minimum and a mandatory maximum term of life




____________________________________________


10 Appellant was sentenced after our General Assembly enacted 18 Pa.C.S.A.
§ 1102.1(a), which sets forth the mandatory minimum for juveniles convicted
of first-degree murder. That statute, however, only applies to juveniles
convicted of committing crimes that occurred after June 24, 2012. See 18
Pa.C.S.A. § 1102.1(a). Nonetheless, we note that a 14-year-old convicted of
first-degree murder for an offense that occurred after June 24, 2012 faces a
25-year mandatory minimum. See 18 Pa.C.S.A. § 1102.1(a)(2).

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imprisonment. The trial court imposed such a sentence. Hence, Appellant’s

sentence of 30 years to life imprisonment was legal.

      In his final issue, Appellant argues that the trial court imposed an illegal

sentence by ordering him to pay costs associated with his resentencing

proceedings, which came about because of the illegality of his original

sentence. In essence, Appellant’s claim is that expenses incurred by reason

of resentencing proceedings undertaken after the initial imposition of an

unlawful sentence fall outside the trial court’s authority to impose costs. The

Commonwealth, on the other hand, contends that Appellant’s claim challenges

the discretionary aspects of his sentence. Because Appellant challenges the

trial court’s authority to impose costs as part of its resentencing order, we

conclude that the Appellant’s claim implicates the legality of his sentence and,

thus, he was not required to include a statement pursuant to Pennsylvania

Rule of Appellate Procedure 2119(f) in his brief or to raise the issue before the

trial court. See Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super.

2010). We apply a de novo standard of review to such a claim and our scope

of review is plenary. See White, 193 A.3d at 985 (citation omitted).

      Preliminarily, we set forth the legal framework governing this issue. It

is unclear from the record whether the trial court imposed costs pursuant to




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the common law, pursuant to 16 P.S. § 4403,11 or both.12           Ultimately, we

conclude that it is immaterial for purposes of this decision whether costs were

imposed under the common law, section 4403, or both because the result is

the same. Hence, we set forth the framework for both the common law and

section 4403.




____________________________________________


11   Section 4403 provides that

        All necessary expenses incurred by the district attorney or his
        assistants or any officer directed by him in the investigation of
        crime and the apprehension and prosecution of persons charged
        with or suspected of the commission of crime shall be paid by the
        county from the general funds of the county, upon the approval
        of the bill of expenses by the district attorney and the court. In
        any case where a defendant is convicted and sentenced to pay the
        costs of prosecution and trial, the expenses of the district attorney
        in connection with such prosecution shall be considered a part of
        the costs of the case and be paid by the defendant.

16 P.S. § 4403.

In its opinion, the trial court cited 16 P.S. § 7708, however, section 7708 only
governs cases in counties of the first-class. Section 4403 governs cases in
counties of the second-class. As Montgomery County is a county of the
second-class, Feldman v. Hoffman, 107 A.3d 821, 823 n.1 (Pa. Cmwlth.
2014), appeal denied, 121 A.3d 497 (Pa. 2015), section 4403 is the relevant
statute.

12The Commonwealth cites 42 Pa.C.S.A. § 9728(g) in support of its argument
that Appellant was responsible for costs related to his resentencing. That
statute is inapposite because that statute addresses “costs associated with the
collection of restitution, transportation costs and other costs associated with
the prosecution[.]” 42 Pa.C.S.A. § 9728(g). It does not address costs borne
by the district attorney in prosecuting a case. Such costs are governed by
Section 64 and section 4403. Cf. 1 Pa.C.S.A. § 1933 (a specific statute
controls over a general statute).

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      The Judicial Code provides that, “The governing authority shall prescribe

by general rule the standards governing the imposition and taxation of costs,

including the items which constitute taxable costs, the litigants who shall bear

such costs, and the discretion vested in the courts to modify the amount and

responsibility for costs in specific matters.”   42 Pa.C.S.A. § 1726(a).     Our

Supreme Court has not, pursuant to section 1726(a), prescribed by general

rules such standards in criminal cases.

      As our Supreme Court explained:

      The Judicial Code was created by the Judiciary Act of 1976, which,
      in conjunction with the Judiciary Act Repealer Act ([“]JARA[”]) and
      the Judiciary Act Repealer Act of 1980 [], represented the
      culmination of a ten year effort to achieve the first complete
      judicial      codification     in      Pennsylvania’s      history.

      Although the Judicial Code was enacted in 1976, it did not take
      effect until June 27, 1978, the effective date of JARA. The primary
      purpose of JARA [], was to repeal those statutes which had been
      supplanted by the Code. [JARA] expressly repealed parts or all of
      more than 1500 statutes, comprising approximately 6000 sections
      of Purdon’s Pennsylvania Statutes, enacted between 1700 and
      1977.

Chartiers Valley Sch. Dist. v. Twp. of Ross, 462 A.2d 673, 675 (Pa. 1983)

(cleaned up).

      JARA contained a savings clause, which provided that:

      General rules promulgated pursuant to the Constitution of
      Pennsylvania and the Judicial Code in effect on the effective date
      of the repeal of a statute, shall prescribe and provide the practice
      and procedure with respect to the enforcement of any right,
      remedy or immunity where the practice and procedure had been
      governed by the repealed statute on the date of its repeal. If no
      such general rules are in effect with respect to the repealed
      statute on the effective date of its repeal, the practice and

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       procedure provided in the repealed statute shall continue in full
       force and effect, as part of the common law of the Commonwealth,
       until such general rules are promulgated.

Act 53 of 1978 § 3(b), 1978 P.L. 202, 352.

       At the time the Judicial Code was enacted, costs in criminal cases were

primarily governed by Section 64 of the Criminal Procedure Act of 1860

(“Section 64”), 1860 P.L. 427, 445. See 19 P.S. § 1223 (repealed).13 Hence,

pursuant to JARA’s savings clause, Section 64 is part of our Commonwealth’s

common law. Section 64 provided that “in all cases of conviction of any crime,

all costs shall be paid by the party convicted; but where such party shall have

been discharged, according to law, without payment of costs, the costs of

prosecution shall be paid by the county[.]” Id.

       As previously noted, section 4403 sets forth the statutory language that

controls the costs at issue in this case. That statute governs the payment of

all necessary expenses incurred by the district attorney, and his or her

assistants and officers.

       Having set forth the legal framework governing the assessment of costs,

we now consider whether Section 64 and section 4403 permit the imposition

of costs for resentencing following an illegal sentence. Under both provisions

“trial court[s] must carefully examine [the totality of the circumstances.



____________________________________________


13The Criminal Procedure Act of 1860 was repealed by JARA. See Act 53 of
1978 § 2, 1978 P.L. 202, 232.


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Assessable] costs are those which are necessary for prosecution when

considered in light of the peculiar facts and circumstances of each case[.]”

Commonwealth v. Garzone, 993 A.2d 1245, 1258 (Pa. Super. 2010), aff’d,

34 A.3d 67 (Pa. 2012).

      We are aware of only two, non-binding, decisions addressing the

assessment of costs after an original judgment of sentence was imposed. In

Commonwealth v. Morales-Rivera, 67 A.3d 1290 (Pa. Cmwlth. 2013), the

Commonwealth Court held that the trial court had the authority to order the

defendant to pay costs associated with his PCRA hearing. Id. at 1294. In

United States ex rel. Brink v. Claudy, 96 F.Supp. 220 (W.D. Pa. 1951), the

district attorney sought costs associated with defending a federal habeas

corpus petition. The United States District Court for the Western District of

Pennsylvania found that the district attorney was entitled to such costs under

Pennsylvania law; however, the district attorney must seek those costs in

state court. Id. at 224. We do not find Morales-Rivera or Brink persuasive

for the issue presented in this case. In both Morales-Rivera and Brink, the

defendants were denied relief within the context of their respective post-

conviction proceedings. In this case, the resentencing hearing was the result

of Appellant’s successful litigation of his habeas corpus petition in the United

States District Court for the Middle District of Pennsylvania. Hence, we turn




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to analogous cases and general tools of statutory interpretation14 to guide our

decision.

       We acknowledge that Section 64’s language differs from section 4403’s

language insofar as section 4403 uses the words “necessary expenses” and

Section 64 uses the words “all costs.” We conclude, however, that construing

Section 64 differently than section 4403 would lead to absurd results. Under

the current Statutory Construction Act, and the law that preceded it, we must

interpret statutes to avoid such absurd results. See 1 Pa.C.S.A. § 1922(1).15

If we interpreted the word “all” literally, a defendant could be forced to pay

costs associated with lighting and heating the courtroom in which he or she

was tried. A defendant could also be forced to pay for out-of-town jurors to

stay at the Ritz-Carlton. These are absurd results. Hence, we conclude that

the word “all” in Section 64 means “necessary” as in section 4403. For this

reason, we conclude that if costs are not “necessary” they are not authorized

under either Section 64 or section 4403.

       We agree with the learned trial judge that this case is most analogous

to Commonwealth v. Weaver, 76 A.3d 562 (Pa. Super. 2013), aff’d, 105


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14 Although Section 64 is now part of our common law and is no longer a
statute, we believe that as it was formerly a statute it should be interpreted
according to the general tools of statutory construction.

15 Prior to passage of the Statutory Construction Act, statutes were construed
pursuant to Act 282 of 1937, 1937 P.L. 1019. Act 282 contained operative
language identical to that of section 1922(1). See Act 282 of 1937 § 52(1),
1937 P.L. 1019, 1024.

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A.3d 656 (Pa. 2014) (per curiam). In that case, the Commonwealth charged

the defendant with driving under the influence of drugs.          The criminal

information alleged that morphine was present in his blood while he operated

his motor vehicle.     Similarly, a pre-trial report presented to the defendant

indicated that a laboratory found morphine in his blood.          At trial, the

Commonwealth called a laboratory employee to testify regarding the test

results. That witness, however, testified that benzodiazepines were found in

the defendant’s blood. At that point, the trial court declared a mistrial and

permitted the Commonwealth to amend the criminal information.

      At the retrial, a different laboratory employee testified and the

defendant was convicted. At sentencing, the trial court ordered the defendant

to pay costs associated with the laboratory employees’ testimony at both

trials. The defendant filed a post-sentence motion arguing that he should not

be responsible for paying costs associated with the laboratory employee’s

testimony at the second trial.      The trial court granted the post-sentence

motion and amended the judgment of sentence so that the defendant was

responsible for paying the costs for the laboratory employee’s testimony only

at the first trial. The Commonwealth appealed that determination to this Court

and this Court affirmed the trial court’s decision not to impose costs related

to the second trial.

      The costs of resentencing in this case arose because Appellant elected

to exercise his rights under Miller and Montgomery.         This is akin to the


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circumstances in Weaver, where the defendant “chose” to exercise his

constitutional right to due process of law by being informed of the charges

against him prior to trial. In Weaver, this Court held that the Commonwealth

was responsible for the costs of the second trial. This is sensible because it is

well-settled that a defendant may not be punished for exercising his or her

constitutional rights. Commonwealth v. Speight, 854 A.2d 450, 455 (Pa.

2004); United States v. Goodwin, 457 U.S. 368, 372 (1982). If we held

that Appellant was responsible for paying the costs associated with

resentencing, we would punish him for exercising his constitutional right to

receive a sentence that comports with the Eighth Amendment of the United

States Constitution (as incorporated against the states via the Fourteenth

Amendment). Thus, although Appellant “chose” to receive a constitutional

sentence by filing his PCRA petition and petition for a writ of habeas corpus,

that does not entitle the Commonwealth to recover the costs associated with

the resentencing process.

      Additionally, in affirming the      trial   court’s decision   limiting   the

defendant’s payment of costs associated with the laboratory employee’s

testimony in only the first trial, this Court in Weaver explained that a

defendant is not responsible for costs that are a result of certain actions by

the Commonwealth. Weaver, 76 A.3d at 574. In reaching that decision, this

Court relied on our Supreme Court’s decision in Commonwealth v. Coder,

415 A.2d 406 (Pa. 1980).       In Coder, our Supreme Court held that the


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defendant was responsible for paying the costs associated with a change in

venue. Our Supreme Court explained, however, that when “the prosecution

is primarily responsible for the conditions which necessitate the change of

venue, the defendant should be absolved of the costs incident to the change

of venue.” Id. at 409 n.4. This Court reasoned that Coder indicates that the

Commonwealth must bear the costs of prosecution when the Commonwealth

is responsible for the increase in costs. Weaver, 76 A.3d at 574. In other

words, costs are not “necessary” if they would not have arisen but for the

Commonwealth’s actions. See id.

     While we recognize that the situation in Weaver does not align perfectly

with the circumstances presently before us, we nonetheless believe that

Weaver supplies the principle to be applied here. In Weaver, the costs were

accrued as a result of actions taken by the Commonwealth through the district

attorney. We see no reason to differentiate between the actions taken by the

Commonwealth in prosecuting an action from the actions taken by the

Commonwealth     in   enacting   a   statute   that   is   later   declared   to   be

unconstitutional. There was no action taken by the defendant in Weaver or

Appellant in this case which necessitated the further proceedings for which

costs were imposed.    In both situations, the additional costs would not have




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arisen but for the actions of the Commonwealth.16           Thus, when further

proceedings are not necessitated by the actions of the defendant and the

defendant obtains relief as a result of those proceedings, the Commonwealth

should bear the risk of paying the additional costs.

       Finally, a defendant can expect to be held financially liable for the costs

associated with a sentencing proceeding when he or she commits a crime. A

defendant does not, however, reasonably expect to be financially responsible

for the costs associated with resentencing necessitated by changes in law

many years later. This reasonable expectation has played an important role

in our Supreme Court’s jurisprudence in this area of the law. In Coder, our

Supreme Court justified requiring the defendant to pay the costs associated

with the change in venue by noting that

       when a person commits a crime which stirs wide community
       interest, either because the crime is heinous or its perpetrator is
       a person invested with a public trust, publicity will follow
       inevitably. The ensuing publicity should be readily foreseeable
       by the perpetrator of the crime, so that it is neither arbitrary,
       capricious nor unreasonable to hold him responsible for the
       dysfunction his conduct caused the criminal justice system.




____________________________________________


16 We are cognizant of the fact that, at the time our General Assembly passed
18 Pa.C.S.A. § 1102(a) and 61 Pa.C.S.A. § 6137(a)(3), they were
constitutional as applied to juveniles and the Supreme Court of the United
States upheld similar statutes for decades after their enactment. However,
we believe that, once the sentencing statutes are declared to be
unconstitutional necessitating a resentencing, a defendant, who originally
received what is deemed to be an illegal sentence, should not be responsible
for the costs associated with the resentencing.

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Coder, 415 A.2d at 409 (emphasis added; citation omitted). In other words,

our Supreme Court held that the defendant could be required to pay the costs

associated with the change in venue because that change in venue was

reasonably foreseeable at the time the defendant committed the crime in

question.   As explained above, it was not reasonably foreseeable that

Appellant would receive an illegal sentence and later be resentenced.

Accordingly, we hold that the trial court lacked the authority to order Appellant

to pay costs associated with the resentencing proceedings.

      In sum, the trial court had the authority to sentence Appellant to 30

years to life imprisonment for his first-degree murder conviction. We hold

that the trial court lacked the authority to order Appellant to pay the costs

associated with the resentencing necessitated by evolution of constitutional

law. Accordingly, we affirm Appellant’s judgment of sentence in part, vacate

it in part, and remand for further proceedings consistent with this opinion.

      Judgment of sentence affirmed in part and vacated in part.           Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/04/2019




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