J-E03001-16


                              2017 PA Super 215

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
KWAME LAMAR BARNES                      :
                                        :
                  Appellant             :   No. 947 MDA 2014

          Appeal from the Judgment of Sentence January 30, 2014
             In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0000426-2011


BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE,
        DUBOW, MOULTON, and RANSOM, JJ.

CONCURRING STATEMENT BY RANSOM, J.:                  FILED JULY 10, 2017

     I join the Majority opinion in all respects.     Nevertheless, I write

separately to note that Appellant raised two claims challenging discretionary

aspects of his sentence, asserting that (1) his sentence on remand was the

product of vindictiveness and (2) the court failed to place on the record

reasons for the sentence imposed, in violation on 42 Pa.C.S. § 9721(b).

See Appellant’s Br. at 18-19. The Majority does not address the latter.

     A claim that a court failed to provide a statement of reasons for the

sentence imposed presents a substantial question.       Commonwealth v.

Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006).

     Section 9721 provides:

     In every case in which the court … resentences following
     remand, the court shall make as part of the record, and disclose
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       in open court at the time of sentencing, a statement of the
       reason or reasons for the sentence imposed.

42 Pa.C.S. § 9721(b) (emphasis added). Thus, the duty to state reasons in

open court applies to the original sentencing hearing, as well as all

subsequent resentencing hearings. Commonwealth v. Thomas, 537 A.2d

9, 12 (Pa. Super. 1988).

       According to Appellant, the court abused its discretion when it failed to

provide any reasons for the sentence imposed. In my view, Appellant has

accurately portrayed the substance of the resentencing hearing. See Notes

of Testimony (N.T. Resentencing), 01/30/2014, 2-6. The transcript does not

reveal the court’s familiarity with the underlying facts of this case; there is

no reference to the Sentencing Code or the norms that underlie the

sentencing process; nor is there any suggestion the court relied upon

considerations that previously informed its sentencing decision. Id. 1

       A sentencing court’s explanation of its sentence is not merely a

perfunctory exercise. To the contrary,

       [t]he policy underlying the requirement that the sentencing
       judge state of record the reasons for the sentence is found in the
       need to make public the thought process by which [s]he arrives
       at a particular sentence. By affording appellate courts some
       basis upon which to fully comprehend and fairly review the
       actions of the sentencing court, this directive acts as a shield
____________________________________________


1
  It is with some concern that I infer the sentencing court was well aware of
the Apprendi issue, resolved by this appeal, at the time of resentencing, yet
nonetheless chose to impose an illegal sentence. See N.T. Resentencing at
3-4.



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     against arbitrary sentencing decisions while, at the same time,
     discouraging the entertainment of improper or irrelevant factors.

     Although our courts have never required that the statement of
     reasons cite to specific language of the Sentencing Code, … it
     should, nonetheless, evince the court's reflection on the
     standards mentioned in the Code and should contain some
     explanation of how consideration of those guidelines affected the
     determination of sentence.

Thomas, 537 A.2d at 13 (quoting Commonwealth v. Mills, 480 A.2d

1192, 1198 (Pa. Super. 1984)) (internal citations omitted; some punctuation

modified).

     In its appellate brief, the Commonwealth contends that, because the

court’s reasons for the original sentence were placed on the record and

because the merger issue that necessitated resentencing did not call those

reasons into question, the court’s earlier reasoning was adequate to support

the new sentence imposed. Commonwealth’s Br. at 14.        According to the

Commonwealth, “to restate the reasons would be redundant.” Id.

     I reject the Commonwealth’s contention.      As this Court has noted

previously, “the mere presence in the record of evidence the court could

have relied on does not meet the requirement that the judge state what it

was the court did rely on in imposing sentence.” Thomas, 537 A.2d at 14

(rejecting a similar contention by the Commonwealth that this Court should

“simply assume” the same considerations applied at resentencing) (citation

omitted).    To the extent a previous statement of reasons in support of a

sentence may adequately explain the court’s considerations upon remand


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and resentencing, the court should specifically incorporate those reasons by

reference. Id.

     Here, in light of our disposition, the sentencing court will have another

opportunity to make public the reasons for Appellant’s sentence.       In my

view, the court should do so.


     Judge Dubow joins this Concurring Statement.




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