J-S21013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JERRY SINGLETON,

                            Appellant                  No. 486 EDA 2014


         Appeal from the Judgment of Sentence September 20, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0003235-2010


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED AUGUST 19, 2015

       Jerry Singleton appeals from the September 20, 2013 judgment of

sentence of ten to twenty years imprisonment.         The instant sentence was

imposed following a prior direct appeal to this Court, wherein we affirmed

the underlying convictions for aggravated indecent assault of a child,

unlawful contact with a minor, and corruption of a minor, but vacated an

illegal sentence and remanded for resentencing. We affirm.

       Since the underlying facts are not relevant to our disposition, we do

not include a full recitation of the facts herein.1    Suffice it to say, during

January 2010, Appellant was charged with several offenses stemming from

____________________________________________


1
 A complete factual history of the case can be found at Commonwealth v.
Singleton, 75 A.3d 545 (Pa.Super. 2013) (unpublished memorandum at 1-
2).



*
    Retired Senior Judge assigned to the Superior Court.
J-S21013-15




his sexual abuse of A.L., a twelve year-old family friend. Appellant’s mother

and the victim’s mother were stepsisters, and the assaults occurred while

A.L. was sleeping overnight at Appellant’s mother’s home. On November 12,

2010, a jury convicted Appellant of aggravated indecent assault of a child,

unlawful contact with a minor, and corruption of a minor. He was acquitted

of rape and sexual assault.

       On February 18, 2011, the trial court imposed an aggregate term of

thirteen   to    twenty-six    years    imprisonment   consisting   of   consecutive

sentences of ten to twenty years for aggravated indecent assault of a child,

three to six years for unlawful contact with a minor, and no further penalty

for corruption of a minor. In fashioning the judgment of sentence, the trial

court applied the mandatory minimum term of ten years imprisonment for

aggravated indecent assault of a child under the version of 42 Pa.C.S. §

9718(a)(3) that became effective on January 1, 2007.2 Appellant failed to
____________________________________________


2
  Prior to the effective date of the 2007 revisions, the mandatory minimum
sentence for aggravated indecent assault of a child was five years
imprisonment. That version of the statute stated:

       § 9718.  Sentences for offenses against infant persons
       (a) Mandatory sentence.—

       (1) A person convicted of the following offenses when the victim
       is under 16 years of age shall be sentenced to a mandatory term
       of imprisonment as follows:

                ....
(Footnote Continued Next Page)


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file a direct appeal; however, following a petition for post-conviction relief,

the trial court reinstated his appellate rights nunc pro tunc.

      During the prior direct appeal, Appellant raised issues that challenged

(1) the trial court’s evidentiary decisions; (2) the weight and sufficiency of

the evidence; (3) the court’s refusal to grant a mistrial; and (4) the

discretionary aspect of sentencing.               After addressing the merits of

Appellant’s three substantive issues, we affirmed the three convictions but

vacated the judgment of sentence because it was unclear from the certified

record whether Appellant committed the aggravated indecent assault of a

child before or after the effective date of the 2007 amendments to the
                       _______________________
(Footnote Continued)


      (3) A person convicted of the following offenses shall be
      sentenced to a mandatory term of imprisonment as follows:

         18 Pa.C.S. § 3121(c) and (d)--not less than five years.

         18 Pa.C.S. § 3125(a)(7)--not less than two and one-half
         years.

         18 Pa.C.S. § 3125(b)--not less than five years.

42 Pa.C.S. § 9718(a) (effective prior to January 1, 2007). As discussed in
detail in the body of this memorandum, we highlight that the pre-2007
version of this mandatory minimum sentencing statute did not include the
problematic subsection entitled “Proof at sentencing,” which Pennsylvania
court’s have found to be unconditional under Alleyne v. United States, __
U.S.__, 133 S.Ct. 2151, 2163 (2013). See Commonwealth v. Hopkins,
No. 98 MAP 2013 (Pa. filed June 15, 2015); Commonwealth v. Newman,
99 A.3d 86 (Pa.Super. 2014) (en banc).




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mandatory minimum provision.3 As we explained in our prior memorandum

decision, if the assaults occurred prior to January 1, 2007, “the imposition of

the ten-year, rather than five–year mandatory minimum, [would] have

resulted in an improper application of the terms of § 9718[,]” i.e., potential

violations of the ex post facto clauses in the United States Constitution and

Pennsylvania Constitution, respectively. Commonwealth v. Singleton, 75

A.3d 545 (Pa. Super. 2013) (unpublished memorandum at 8); see also U.S.

Const. Article I, § 10, Pa. Const. Article I, § 17.

        On remand, the trial court resentenced Appellant to consecutive terms

of five to ten years incarceration for aggravated indecent assault and

unlawful contact with a minor, respectively. As it relates to the issues that

are central to this case, the new sentence imposed the mandatory minimum

for aggravated indecent assault of a child that was effective prior to January

2007 and increased the term of imprisonment for unlawful contact with a

minor from three to six years to five to ten years. Once more, the trial court

declined to impose any further penalty for the corruption of a minor

conviction.     As a result, the trial court essentially crafted a sentencing

scheme similar to that originally imposed on February 18, 2011. This timely

appeal followed the denial of Appellant’s post-sentence motions.

        Appellant presents the following questions for our review:
____________________________________________


3
    Accordingly, we did not confront Appellant’s discretionary sentencing claim.



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      A.    The trial court’s sentence was excessive        under   the
      circumstances and an abuse of discretion.

      B.   The trial court erred in precluding the admission of pictures
      and information regarding the relationship between the
      defendant and the complainant.

      C.    The evidence was insufficient and against the weight of the
      evidence where the complainant’s testimony was incredible and
      did not make out the elements of the crime where they did not
      prove that she was under the age of 12 when the incident
      occurred.

      D.    The trial court erred by not granting a mistrial where the
      complainant’s mother referenced an incident that occurred ten
      years ago between the complainant and the defendant and was
      not admissible at trial.

Appellant’s brief at 5.

      At the outset, we observe that, with the exception of Appellant’s first

issue, this Court confronted the merits of Appellant’s issues during the

previous appeal and rejected the identical assertions based upon the trial

court’s comprehensive and sound Rule 1925(a) opinion.        See Singleton,

supra (unpublished memorandum at 4-7).           Appellant did not seek an

allowance of appeal from our decision to affirm the underlying convictions.

Accordingly, that aspect of our disposition is final, and Appellant cannot

revive these arguments at this juncture. See Commonwealth v. Mathis,

463 A.2d 1167, 1169 (Pa.Super. 1983) (where defendant asserts trial court

errors in appeal following remand for resentencing, “Any such alleged errors

have either been resolved against appellant in his first appeal before this



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court, or have been waived by his failure to present them in his first

appeal.”). Thus, we do not address the merits of these claims.

     Next, before we review Appellant’s remaining argument challenging

the discretionary aspects of the judgment of sentence, we first must

determine whether the trial court’s imposition of the mandatory minimum

sentence of five years imprisonment pursuant to the pre-2007 version of §

9718(a)(3) created an illegal sentence in light of our Supreme Court’s recent

pronouncement in Commonwealth v. Hopkins, No. 98 MAP 2013 (Pa. filed

June 15, 2015) and this Court’s holdings in Commonwealth v. Newman,

99 A.3d 86 (Pa.Super. 2014) (en banc), and its progeny. The application of

a mandatory    minimum sentencing      statute   implicates the   legality of

sentence, which this Court may address sua sponte.       Commonwealth v.

Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en banc).

     A brief review of the salient cases is warranted.    In Newman, this

Court struck down the mandatory minimum sentence outlined in 42 Pa.C.S.

§ 9712.1 concerning drug offenses committed with firearms because

subsection (c) of that provision violated the United States Supreme Court’s

holding in Alleyne v. United States, __ U.S.__, 1333 S.Ct. 2151, 2163

(2013), which requires that “facts that increase mandatory minimum

sentences must be submitted to the jury” and proven beyond a reasonable




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doubt.4 The Newman Court reasoned that, since the constitutionally infirm

subsection relating to burden of proof was “essentially and inseparably

connected” to subsection (a), which identified the triggering facts, the entire

statute had to be struck down as unconstitutional and could not be applied

absent     future    legislative   guidance.     Newman,   supra   at   101-102.

____________________________________________


4
    Specifically, § 9712.1 provides:

        (a) Mandatory sentence.--Any person who is convicted of a
        violation of section 13(a)(30) of the act of April 14, 1972 (P.L.
        233, No. 64), [FN1] known as The Controlled Substance, Drug,
        Device and Cosmetic Act, when at the time of the offense the
        person or the person's accomplice is in physical possession or
        control of a firearm, whether visible, concealed about the person
        or the person's accomplice or within the actor's or accomplice's
        reach or in close proximity to the controlled substance, shall
        likewise be sentenced to a minimum sentence of at least five
        years of total confinement.

              ....

        (c) Proof at sentencing.— Provisions of this section shall not
        be an element of the crime, and notice thereof to the defendant
        shall not be required prior to conviction, but reasonable notice of
        the Commonwealth's intention to proceed under this section
        shall be provided after conviction and before sentencing. The
        applicability of this section shall be determined at
        sentencing. The court shall consider any evidence
        presented at trial and shall afford the Commonwealth and
        the defendant an opportunity to present any necessary
        additional     evidence     and    shall    determine,     by    a
        preponderance of the evidence, if this section is
        applicable.

42 Pa.C.S. § 9712.1 (a) and (c) (emphasis added).



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Subsequently, in Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super

2014), which concerned the mandatory minimum sentencing provisions of

42 Pa.C.S §§ 9712 and 9713, this Court held that, since Newman

determined that the offending provisions were not severable, the trial court’s

use of a special verdict to allow a jury to determine the factual predicates for

the application of mandatory minimum sentences by the beyond a

reasonable doubt standard of proof did not cure the unconstitutionality of

the mandatory minimum sentencing statutes. We explained, “Our decision

in Newman . . . holds that the unconstitutional provisions of § 9712(c) and

§ 9713(c) are not severable but ‘essentially and inseparably connected’ and

that the statutes are therefore unconstitutional as a whole.” Id. at 811-812.

Our Supreme Court recently reaffirmed this severability analysis, at least as

it relates to 18 Pa.C.S. § 6317(a), which imposes a mandatory minimum

sentence for delivery or possession with intent to deliver within 1000 feet of

a school. See Commonwealth v. Hopkins, 2015 WL 3949099 (Pa. 2015).

      As it relates to the specific mandatory minimum statute implicated in

the case at bar, this Court concluded in Commonwealth v. Wolfe, 106

A.3d 800 (Pa.Super. 2014), that the current version of § 9718(c) aligned

with the constitutionally infirm proof-at-sentencing provisions that allowed

sentencing courts to determine the applicability of the various mandatory

minimum sentencing statutes by the preponderance of the evidence

standard in violation of Alleyne. Thus, consistent with the constitutionality


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and severability analyses proffered in Newman, the Wolfe Court struck

down § 9718 in its entirety as facially unconstitutional.

      In reaching this conclusion, we first highlighted that the current

version of § 9718 included the following constitutionally infirm provision

regarding the burden of proof used to determine whether the mandatory

minimum was applicable:

      (c) Proof at sentencing.--The provisions of this section shall
      not be an element of the crime, and notice of the provisions of
      this section to the defendant shall not be required prior to
      conviction, but reasonable notice of the Commonwealth's
      intention to proceed under this section shall be provided after
      conviction and before sentencing. The applicability of this
      section shall be determined at sentencing. The court shall
      consider any evidence presented at trial and shall afford
      the Commonwealth and the defendant an opportunity to
      present any necessary additional evidence and shall
      determine, by a preponderance of the evidence, if this
      section is applicable.


42 Pa.C.S. § 9718(c) (emphasis added). Thereafter, we observed that this

basic format appeared in Newman insofar as both provisions identified a

fact that triggered the imposition of a mandatory minimum sentence and

“state[d] that this fact shall be found by the trial court by a preponderance

of the evidence at sentencing.” Wolfe, supra at 803. Thus, we resolved,

“As Section 9718 is indistinguishable from the statutes struck down in

Newman and Valentine, we are constrained to conclude that Section 9718

is also facially void.” Id. at 806. As referenced supra, our Supreme Court

recently determined that an indistinguishable proof-at-sentence provision in

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18 § Pa.C.S. § 6317(b) was not severable from the remaining portions of the

statute. See Hopkins, supra (slip opinion at 23-24).

      However, notwithstanding our Supreme Court’s holding in Hopkins

relating to § 6317(b) and the Wolfe Court’s express application of the

Newman rationale to 42 Pa.C.S. § 9718(c), we do not find that the trial

court’s imposition of the five-year mandatory minimum sentence under the

pre-2007 version of § 9718 created an illegal sentence.        Stated simply,

despite our Supreme Court’s proposition that the legislature would not have

enacted this type of legislation absent the offending proof-at-sentencing

provisions, the pre-2007 version of § 9718 did not include the offending

proviso. That is to say, the mandatory sentencing statute that was applied

herein is not facially unconstitutional in light of Alleyne because it does not

direct that (1) the provisions of this section shall not be an element of the

crime; (2) notice shall not be required prior to conviction; or (3) the court

shall determine by a preponderance of the evidence whether this section is

applicable.

      Moreover, the fact that triggered the imposition of the mandatory

minimum sentence herein, the victim’s age, was an element of the

underlying crime of aggravated indecent assault of a child. See 18 Pa.C.S. §

3125(b) (“A person commits aggravated indecent assault of a child when the

person violates subsection (a)(1), (2), (3), (4), (5) or (6) and the

complainant is less than 13 years of age.”). Therefore, in order to convict


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Appellant of that offense, the jury was required to find beyond a reasonable

doubt that the victim was less than 13 years old.        Instantly, the victim

testified that she was twelve years old when the incidents occurred. Thus,

by convicting Appellant of aggravated indecent assault of a child pursuant to

§ 3125(b), the jury in the case at bar determined the triggering element

under § 9718(a) beyond a reasonable doubt.

      Employing parallel reasoning in Commonwealth v. Matteson, 96

A.3d 1064 (Pa.Super. 2014), which preceded Newman, this Court upheld a

trial court’s imposition of the ten-year mandatory minimum sentence under

the current version of § 9718 despite the existence of the unconstitutional

provision regarding proof of sentencing. Essentially, we held that, since the

jury determined the victim’s age beyond a reasonable doubt in convicting

the defendant of aggravated indecent assault of a child pursuant to 3125(b),

the imposition of the mandatory minimum under § 9718 did not run afoul of

Alleyne. Id. at 1066-1067. While we subsequently rejected this rationale

based upon the Newman Court’s severability analysis, Matteson remains

particularly instructive in the limited scenario where, as here, a mandatory

minimum sentence is imposed pursuant to a version of a statute that does

not include the constitutionally infirm subsection regarding proof at

sentencing.

      As the pre-2007 version of § 9718 did not include the constitutionally

infirm subsection that directed the trial court to determine the triggering fact


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by the preponderance of the evidence standard of proof, it was not facially

unconstitutional.   Accordingly,   the   severability   analysis   employed   in

Hopkins and Newman is inapt in the case at bar. Furthermore, the jury

was instructed on the victim’s age as an element of the offense, and thus, it

determined beyond a reasonable doubt the triggering element that the

victim was less than sixteen years old. We therefore find that, under these

facts, the imposition of the mandatory minimum sentence of five years

imprisonment pursuant to the pre-2007 version of the statute did not violate

the High Court’s holding in Alleyne.

      Next, we address the portion of Appellant’s argument challenging the

discretionary aspects of the judgment of sentence imposed for unlawful

contact, and for the following reasons, we find that no relief is due. Before

we reach the merits of a discretionary sentencing issue, we must ascertain

whether (1) a timely appeal was filed from the judgment of sentence; (2)

the issue was preserved during the trial court proceedings; (3) the appellant

complied with Pa.R.A.P. 2119(f); and (4) the Rule 2119(f) statement reveals

a substantial question that the sentence was not appropriate under the

sentencing code.     Commonwealth v. Lebarre, 961 A.2d 176, 178

(Pa.Super. 2008).

      Herein, Appellant’s notice of appeal was filed timely.          Likewise,

Appellant raised his sentencing issue in a post-sentence motion and leveled

the challenge in his Rule 1925(b) statement.            Additionally, Appellant

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included in his brief a concise statement of reasons for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).     Accordingly, we must determine whether

Appellant’s sentencing issue raises a substantial question.       “A substantial

question exists only when the appellant advances a colorable argument that

the sentencing judge's actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.” Commonwealth v. Buterbaugh,

91 A.3d 1247 (Pa.Super. 2014) (en banc) (quoting Commonwealth v.

Glass, 50 A.3d 720, 727 (Pa.Super. 2012)).

      Appellant asserts that the judgment of sentence was manifestly

excessive and unreasonable.      Specifically, he argues that the trial court

erred in failing to explain its reasons for increasing its penalty for unlawful

contact with a minor from three to six years imprisonment to five to ten

years imprisonment and, to a much lesser degree, for imposing the two

sentences consecutively. In Commonwealth v. Treadway, 104 A.3d 597,

599   (Pa.Super.   2014)   (citation    omitted),   we   reiterated,   “Generally,

Pennsylvania law affords the sentencing court discretion to impose its

sentence concurrently or consecutively to other sentences being imposed at

the same time or to sentences already imposed.”           We further explained,

“[a]ny challenge to the exercise of this discretion ordinarily does not raise a

substantial question.” Id. (citations omitted).      Essentially, “[t]he key to



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resolving the preliminary substantial question inquiry is whether the decision

to sentence consecutively raises the aggregate sentence to, what appears

upon its face to be, an excessive level in light of the criminal conduct at

issue in the case.” Id. (quoting Commonwealth v. Mastromarino, 2 A.3d

581, 587 (Pa.Super. 2010)).

      Instantly, Appellant’s contention is not simply a bare allegation of

excessiveness based upon the consecutively imposed sentences.           While

Appellant references that component of the judgment of sentence, he chiefly

assails the trial court for increasing the penalty for unlawful contact of a

minor, failing to explain its reasons for the increase, and considering the

seriousness of the sex offenses over the remaining sentencing factors.

Thus, we find Appellant’s claims raise a substantial question that the

sentence was not appropriate under the sentencing code. Commonwealth

v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014) (quoting Commonwealth

v. Mouzon, 812 A.2d 617, 627 (2002) (“excessiveness claim raises a

substantial question when [it] ‘sufficiently articulates the manner in which

the sentence violates either a specific provision of the sentencing scheme set

forth in the Sentencing Code or a particular fundamental norm underlying

the sentencing process.’”)).      Accordingly, we address the merits of

Appellant’s argument.

      Our standard of review for sentencing claims is well settled.



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     Sentencing is a matter vested within the discretion of the trial
     court and will not be disturbed absent a manifest abuse of
     discretion.   Commonwealth v. Johnson, 967 A.2d 1001
     (Pa.Super. 2009). An abuse of discretion requires the trial court
     to have acted with manifest unreasonableness, or partiality,
     prejudice, bias, or ill-will, or such lack of support so as to be
     clearly erroneous. Commonwealth v. Walls, 592 Pa. 557, 926
     A.2d 957 (2007).

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).

     In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), our Supreme

Court observed that appellate review of the discretionary aspects of a

sentence is outlined in 42 Pa.C.S. § 9781(c) and (d).    As it relates to the

assertion Appellant levels herein, § 9781(c) provides that a reviewing court

may vacate a sentence if it finds, “the sentencing court sentenced outside

the sentencing guidelines and the sentence is unreasonable.”      42 Pa.C.S.

§ 9781(c)(3). This Court subsequently defined “unreasonable” as follows:

           The Walls Court noted that the term “unreasonable”
     generally means a decision that is either irrational or not guided
     by sound judgment. It held that a sentence can be defined as
     unreasonable either upon review of the four elements contained
     in § 9781(d) or if the sentencing court failed to take into account
     the factors outlined in 42 Pa.C.S. § 9721(b).1
     __________________________________________________
     1
       Section 9721(b) states in pertinent part:

       [T]he court shall follow the general principle that the
       sentence imposed should call for confinement that is
       consistent with the protection of the public, the gravity of
       the offense as it relates to the impact on the life of the
       victim and on the community, and the rehabilitative needs
       of the defendant.     The court shall also consider any
       guidelines for sentencing adopted by the Pennsylvania
       Commission on Sentencing[.]
     ___________________________________________________

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Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa.Super. 2011).

      Section 9781(d) directs that we assess the reasonableness of a

sentence based upon the following factors:

      (d) Review of record.--In reviewing the record the appellate
      court shall have regard for:

      (1) The nature and circumstances of the offense and the history
      and characteristics of the defendant.

      (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

      (3) The findings upon which the sentence was based.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      As noted, Appellant asserts that the trial court abused its discretion in

imposing an aggregate term of ten to twenty years imprisonment. Although

Appellant refers to the imposition of consecutive sentences as evidence of

excessiveness, he does not specifically invoke this aspect of the sentencing

scheme as an independent basis for relief or support his reference with legal

argument or citation to relevant case law.            Thus, while we necessarily

consider the reasonableness of the aggregate term of ten to twenty years

imprisonment in light of the two convictions for sex offenses against

children,   we   do   not   separately     address   whether   the   imposition   of

consecutive sentences in this case was de facto unreasonable.



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      Appellant levels a two-part argument.            The first aspect of the

argument implicates the trial court’s decision to impose a greater penalty for

unlawful contact with a minor. Appellant contends that the trial court lacked

a legal basis to increase the sentence for this offense on remand and that it

failed to place its reasons for the elevated sentence on the record.           The

second component of Appellant’s excessiveness claim relates to the court’s

consideration of the seriousness of the offenses to the exclusion of other

mitigating factors. We address the issues seriatim.

      First, as to the trial court’s decision to increase the penalty that it

initially imposed for unlawful contact of a minor from three to six to five to

ten years imprisonment, we observe that, after this Court vacated the prior

sentence and remanded for resentencing, the trial court had discretion to

structure its entire sentencing scheme anew.           See Commonwealth v.

Goldhammer, 517 A.2d 1280, 1283–84 (Pa. 1986) (where appellate court

upsets trial court's overall sentencing scheme by vacating judgment of

sentence in multiple count appeal, it must remand for re-sentencing because

sentencing    lies   within   sole   discretion   of   trial   court);   see   also

Commonwealth v. Wilson, 934 A.2d 1191, 1196 (Pa. 2007) (citing

Commonwealth v. Jones, 640 A.2d 914, 919–20 (Pa.Super. 1994) and

Commonwealth v. Losch, 535 A.2d 115 (Pa.Super. 1987) for the

proposition “that when a sentence is vacated and the case is remanded to



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the sentencing court for resentencing, the sentencing judge should start

afresh”).

      Having upheld the trial court’s authority to structure its sentencing

scheme anew following remand, we next turn to the specific question

regarding the reasonableness of trial court’s decision to increase the

sentence imposed for unlawful conduct in order to account for its mandatory

decrease of the sentence imposed for aggravated indecent assault of a child.

For the following reasons, we reject Appellant’s assertion of error.

      We confronted a similar issue in Commonwealth v. Vanderlin, 580

A.2d 820, 831 (Pa.Super. 1990), and concluded that the trial court had

discretion to manipulate multiple sentences to achieve the sentencing

scheme that it originally envisioned. In that case, a trial court recognized

that the judgment of sentence that it had announced in open court had

imposed an illegal sentence on one of several offenses stemming from an

attempted rape and sexual assault.      Within four days of announcing that

sentence, the court sua sponte entered an order decreasing the illegal

penalty while increasing a consecutively-imposed sentence on another

conviction. Thus, the court achieved the essence of the originally intended

sentence. The defendant appealed the revised judgment of sentence, and

we affirmed.




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      Significantly, in rejecting the defendant’s contentions of error, we

adopted the Commonwealth’s interpretation of our earlier holding in

Commonwealth v. Lezinsky, 400 A.2d 184 (Pa.Super. 1979), overruled on

different grounds, In Interest of Rodriguez, 537 A.2d 854 (Pa.Super.

1988) (en banc), regarding the well-ensconced principle “where we cannot

determine whether the declared invalidity of a conviction on one count may

have affected the lower court's sentencing on the remaining counts, we must

remand to give the lower court an opportunity to reconsider sentencing.”

Vanderlin, supra at 831.        We found that the trial court would have

structured a different sentencing scheme at the outset had it known that one

of its sentences was illegal. The Court explained,

      We agree with the Commonwealth that “the principle behind the
      Lezinsky decision is that if a trial court errs in its sentence for
      one count in a multi-count case, then all sentences for all counts
      will be vacated so that the court can re-structure its entire
      sentencing scheme. The Commonwealth posits that this is in
      recognition of the fact that probably the court would have
      sentenced the defendant differently had it known that one of its
      sentences was illegal.”

Id. at 831 (quotations, brackets, and citations omitted).

      In rejecting Appellant’s post-sentence motions in the case at bar, the

trial court stated its reasoning for increasing the judgment of sentence for

the conviction for unlawful contact with a minor.          Trial Court Opinion,

6/30/14, at 4-5. The court explained that, in light of the initial application of

the ten-year mandatory minimum for aggravated indecent assault of a child


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under § 9718(a), it elected to impose a mitigated range sentence of three to

six years imprisonment on the unlawful contact offense.         Id. at 5.   In

essence, the court believed that an aggregate sentence in excess of thirteen

to twenty-six years imprisonment would be inappropriate.       Id.   However,

after this Court vacated the previously imposed ten-to-twenty year sentence

for aggravated indecent assault and remanded for resentencing, the trial

court imposed the mandatory five to ten years confinement for that offense

and increased the consecutively imposed sentence for unlawful contact with

a minor from the mitigated range of three to six years imprisonment to the

standard range of five to ten years in order to reflect the original sentencing

scheme. Id.

      As the trial court was free to restructure the entire sentencing scheme

upon remand, we cannot find that it abused its discretion in adjusting the

terms of imprisonment for the unlawful contact with a minor conviction so

that it could maintain the essence of the originally intended sentence. See

Goldhammer, supra; Wilson, supra at 1196.               Thus, this aspect of

Appellant’s claim fails.

      Finally, we address Appellant’s argument that the court disregarded

evidence that he adduced during sentencing regarding his remorse, family

support, and utilization of programs while incarcerated.     Appellant asserts




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that his evidence warranted maintaining a mitigated range sentence for

unlawful contact with a minor. Again, we disagree.

      Instantly, the trial court explained that its sentence of five to ten years

imprisonment for unlawful contact accounted for all of the Appellant’s

mitigating factors as well as the seriousness of the violation, Appellant’s

rehabilitative needs, and the need to protect the community under 42

Pa.C.S. § 9721(b).     See N.T., 9/20/13, at 28-30; Trial Court Opinion,

6/30/14, at 5-6. As the trial court considered the relevant factors prior to

imposing the standard-range sentence for unlawful contact, Appellant’s

challenge to the discretionary aspect of that sentence fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2015




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