J-S32006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                   Appellee                 :
                                            :
              v.                            :
                                            :
MARK ALLEN PRINKEY,                         :
                                            :
                   Appellant                :           No. 925 WDA 2014

   Appeal from the Judgment of Sentence entered on February 19, 2014
             in the Court of Common Pleas of Bedford County,
              Criminal Division, No. CP-05-CR-0000242-2007

BEFORE: SHOGAN, OLSON and MUSMANNO, JJ.

DISSENTING MEMORANDUM STATEMENT BY MUSMANNO, J.: FILED JULY 28, 2015

      While the Majority provides a well-reasoned legal analysis, I write

separately to note my concern over the doubling of Appellant’s sentence on

remand.

      Previously, Appellant was convicted of attempted involuntary deviate

sexual intercourse with a child less than thirteen years old (“attempted

IDSI”), attempted indecent assault of a person less than thirteen years of

age, and corruption of a minor. For these convictions of one felony and two

misdemeanors, the trial court sentenced Appellant to an aggregate prison

term of ten to 25 years.

      On prior appeal, this Court reversed Appellant’s conviction for

attempted IDSI and vacated his sentence for that offense. Because vacating

Appellant’s    sentence   for   attempted   IDSI   disrupted   the   trial   court’s
J-S32006-15


sentencing scheme, this Court remanded for resentencing as to the

remaining misdemeanor offenses. On remand, however, the Commonwealth

sought the imposition of the mandatory minimum sentence, pursuant to 42

Pa.C.S.A. § 9718.2.     Applying section 9718.2, the trial court sentenced

Appellant to twenty-five to fifty years in prison.   Thus, for Appellant’s two

remaining misdemeanor convictions, the trial court more than doubled

Appellant’s sentence.

      In his brief, Appellant argued that he should not be penalized for

proving his innocence to a charge on appeal.         Brief for Appellant at 10.

Undoubtedly, by vacating Appellant’s sentence for his felony conviction of

attempted IDSI, this Court disrupted the trial court’s sentencing scheme.

However, on remand, doubling Appellant’s sentence, even by application of a

statutory mandatory minimum sentencing provision, appears suspect and

vindictive.

      As our United States Supreme Court has long recognized, “due process

of law … requires that vindictiveness against a defendant for having

successfully attacked his first conviction must play no part in the sentence

he receives after a new trial.”   See North Carolina v. Pearce, 395 U.S.

711, 725 (1969). Because, the doubling of Appellant’s sentence appears to

be “punishment” for Appellant’s successful appeal, I respectfully dissent.




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