J-S52043-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
              Appellee                  :
                                        :
                  v.                    :
                                        :
KWAME LAMAR BARNES,                     :
                                        :
              Appellant                 :   No. 279 MDA 2018

          Appeal from the Judgment of Sentence October 18, 2017
             in the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0000426-2011

BEFORE:    BENDER, P.J.E., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 29, 2018

     Kwame Lamar Barnes (Appellant) appeals from the October 18, 2017

judgment of sentence of an aggregate term of 20 to 40 years of incarceration,

after being convicted by a jury of attempted murder, aggravated assault,

kidnapping, and recklessly endangering another person (REAP). We affirm.

     This Court has summarized the facts of this case as follows.

     On December 19, 2010, the victim, who was sixteen at the time
     of trial, was sleeping alone at her mother’s home in Steelton when
     she received a text message from Appellant, her ex-boyfriend[,
     who was eighteen years old at the time]. Although they were no
     longer dating, the victim and Appellant still had an amicable
     relationship. Appellant indicated in the text message that he was
     at the back door of the residence and the victim allowed Appellant
     to enter the home. The victim and Appellant went upstairs to the
     victim’s bedroom where they talked, engaged in sexual
     intercourse, and then talked again. They then had an argument.
     The victim asked Appellant to leave and she escorted him
     downstairs to the back door. Prior to leaving, Appellant threatened
     to hit the victim with a vacuum.          Subsequently, Appellant
     strangled the victim from behind by using his arm. She lost
     consciousness. When she regained consciousness, Appellant said


* Retired Senior Judge assigned to the Superior Court.
J-S52043-18


     to the victim, “you’re gonna die today,” and proceeded to strangle
     her again until she lost consciousness a second time. When the
     victim finally regained consciousness, she was wrapped in a
     blanket and lying head-first in a recycling dumpster under the
     State Street Bridge. She eventually freed herself and managed to
     get to the side of a roadway, where the driver of a passing vehicle
     stopped and took her to the hospital. The victim suffered a broken
     vertebra in her neck, various facial injuries, a lacerated and
     swollen tongue, a large contusion to her right eye, and
     hypothermia.

             On December 20, 2010, Appellant was charged with criminal
     attempt to commit homicide (“attempted murder”), aggravated
     assault, kidnapping, REAP, terroristic threats, and theft by
     unlawful taking. On February 28, 2012, at the conclusion of a jury
     trial, Appellant was found guilty of attempted murder, aggravated
     assault, kidnapping, and REAP. The jury found Appellant not guilty
     for the charge of terroristic threats. On May 18, 2012, Appellant
     was sentenced to a term of incarceration of 20 to 40 years for the
     conviction of attempted murder, a consecutive term of
     incarceration of 2½ to 5 years for his conviction of aggravated
     assault, and a consecutive term of incarceration of 2½ to 5 years
     for his conviction of kidnapping. The trial court imposed no
     additional sentence for the conviction of REAP. Appellant timely
     appealed to this Court. [This resulted in an aggregate sentence of
     25 to 50 years of incarceration.]

            On December 3, 2013, a panel of this Court (“2013
     decision”) determined that the convictions of aggravated assault
     and attempted homicide should have merged because the crimes
     arose from a single set of facts, i.e., Appellant choked the victim
     to unconsciousness. Accordingly, the panel vacated the judgment
     of sentence, and remanded for resentencing. Commonwealth v.
     Barnes, [93 A.3d 497 (Pa. Super. 2013) (unpublished
     memorandum at 2-3)]. On January 30, 2014, upon remand, the
     trial court resentenced Appellant to 20 to 40 years’ imprisonment
     for attempted murder and a consecutive term of incarceration of
     5 to 10 years for the conviction of kidnapping. [Once again, this
     resulted in an aggregate sentence of 25 to 50 years of
     incarceration.] On February 5, 2014, Appellant filed a post-
     sentence motion, which the trial court denied on May 12, 2014.




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Commonwealth v. Barnes, 167 A.3d 110, 114–15 (Pa. Super. 2017) (en

banc) (citations to notes of testimony and footnotes omitted).

      On appeal after re-sentencing, this Court again vacated Appellant’s

sentence. This Court considered whether the trial court’s decision to impose

      a maximum term of imprisonment of 40 years for the offense of
      attempted murder in the absence of a jury finding of serious bodily
      injury … violates the United States Supreme Court’s decision in
      Apprendi[ v. New Jersey, 530 U.S. 466 (2000)], wherein the
      Court held that “[o]ther than the fact of a prior conviction, any
      fact that increases the penalty for a crime beyond the prescribed
      statutory maximum must be submitted to a jury and proved
      beyond a reasonable doubt.”

Barnes, 167 A.3d at 117. This Court concluded that “the jury was never

presented with, nor rendered a decision on, the question of whether a serious

bodily injury resulted from the attempted murder.” Id. at 122. Thus, this

Court vacated Appellant’s sentence for attempted murder and remanded for

re-sentencing. Id.

      Appellant was re-sentenced on October 18, 2017. At that hearing, the

sentencing court heard testimony from Appellant’s parents about Appellant’s

good conduct since being incarcerated.       In addition, Appellant took the

opportunity to tell the trial court about his accomplishments and changes since

being in prison. The victim and her relatives also testified. The trial court

recounted Appellant’s crimes, pointing out that he “not only strangled [the

victim], [he] beat her senseless, and then [he] strangled her again and left

her for dead.” N.T., 10/19/2017, at 30. Appellant was sentenced to 10 to 20




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years of incarceration on the attempted murder charge and 10 to 20 years of

incarceration on the kidnapping charge to run consecutively. Id.

      Appellant timely filed a post-sentence motion, which was denied by the

trial court. Appellant timely filed a notice of appeal, and both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant challenges the discretionary aspects of his

sentence. In particular, Appellant argues that the trial court’s quadrupling of

his kidnapping sentence at resentencing was vindictive. Appellant’s Brief at 4.

We consider this issue mindful of the following.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

                                    ***

            When imposing [a] sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant. In considering these factors, the court should refer
      to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

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            (1) whether appellant has filed a timely notice of
            appeal, see Pa.R.A.P. 902 and 903; (2) whether the
            issue was properly preserved at sentencing or in a
            motion to reconsider and modify sentence, see
            Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
            fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
            is a substantial question that the sentence appealed
            from is not appropriate under the Sentencing Code,
            42 Pa.C.S.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Instantly, Appellant has satisfied the first three requirements: he timely

filed a notice of appeal, sought reconsideration of his sentence in a post-

sentence motion, and his brief contains a Pa.R.A.P. 2119(f) statement. We

now consider whether Appellant has presented a substantial question for our

review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,

828 (Pa. Super. 2007). “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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation and

quotation marks omitted).

      “[I]t is settled that Appellant’s claim that his sentence on remand was a

product of vindictiveness presents a substantial question for our review. See



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Commonwealth v. Tapp, 997 A.2d 1201, 1202–03 (Pa. Super. 2010)

(noting that “alleging judicial vindictiveness ... constitute[s] a substantial

question mandating appellate review”).” Barnes, 167 A.3d at 123. Thus, we

address the merits of Appellant’s vindictiveness claim, by setting forth the

following based upon the similar issue addressed in Appellant’s prior appeal

to this Court.

            When a due process violation is raised regarding
      resentencing, this court must satisfy itself that an increase in a
      sentence is not the result of judicial vindictiveness. In North
      Carolina v. Pearce, 395 U.S. 711 [] (1989), the United States
      Supreme Court remarked:

                   Due process of law, then, 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. And
            since the fear of such vindictiveness may
            unconstitutionally deter a defendant’s exercise of the
            right to appeal or collaterally attack his first
            conviction, due process also requires that a defendant
            be freed of apprehension of such a retaliatory
            motivation on the part of the sentencing judge.

                  In order to assure the absence of such a
            motivation, we have concluded that whenever a judge
            imposes a more severe sentence upon a defendant
            after a new trial, the reasons for his doing so must
            affirmatively appear. Those reasons must be based
            upon objective information concerning identifiable
            conduct on the part of the defendant occurring after
            the time of the original sentencing proceeding. And
            the factual data upon which the increased sentence is
            based must be made part of the record, so that the
            constitutional legitimacy of the increased sentence
            may be fully reviewed on appeal.

      Pearce, 395 U.S. at 725–26 [] (footnote omitted) []. Although
      Pearce dealt with an increased sentence following the grant of a

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     new trial, we have held that Pearce’s rationale for providing
     reasons on the record applies also when the original sentence is
     vacated and a second sentence is imposed without an additional
     trial. See Commonwealth v. Greer, 554 A.2d 980, 987 n.7 ([Pa.
     Super.] 1983) (noting that Pearce applies to harsher sentence
     imposed by trial court after trial court granted post-trial request
     for resentencing). Thus, under Pearce, whenever a trial court
     imposes upon a defendant a more severe sentence following
     resentencing, the reasons for such sentence must be made a part
     of the record. “Absent evidence [that] a sentencing increase is
     justified due to objective information concerning a defendant’s
     case, the presumption of vindictiveness cannot be rebutted.”
     Commonwealth v. Serrano, 727 A.2d 1168, 1170 (Pa. Super.
     1999).

            Here, the trial court originally sentenced Appellant on the
     kidnapping conviction to a consecutive term of 2½ to 5 years of
     incarceration. On remand, however, the trial court was obligated
     to merge the offenses of aggravated assault with attempted
     homicide. In so doing, the trial court doubled the kidnapping
     sentence to a consecutive term of 5 to 10 years’ imprisonment. In
     its opinion, the trial court explained that it “merely maintained its
     original sentencing structure by increasing the kidnapping
     [sentence] when the aggravated assault charge merged into the
     criminal attempt charge. In doing so, the [trial] court was able to
     maintain the original sentence.” Trial Court Opinion, 5/12/14 at 4.

            We find Appellant’s argument that he received an enhanced
     sentence to be wanting. Appellant’s argument requires us to look
     only at one part of his new sentence and compare it to one part
     of his old sentence without examining the overall sentencing
     scheme of both the new and old sentences. Appellant fails to note
     the trial court’s overall sentencing scheme. Before his successful
     appeal in 2013, his aggregate sentence was 25 to 50 years’
     imprisonment. Thereafter, on remand, the trial court resentenced
     him to the same aggregate sentence. We have held that
     preserving the integrity of a prior sentencing scheme is a
     legitimate sentencing concern. See [Commonwealth v.]
     Walker, 568 A.2d [201,] 205 [(Pa. Super. 1989)] (“Upon
     resentencing, a court has a valid interest in preserving the
     integrity of a prior sentencing scheme.”) (citation omitted).
     Indeed, a trial court properly may resentence a defendant to the
     same aggregate sentence to preserve its original sentencing
     scheme. See Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.

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     Super. 1999) (noting a resentence of 7½ to 15 years for burglary
     was lawful after not receiving a sentence for burglary and having
     been given previously the same sentence for theft by unlawful
     taking) []. “[I]n most circumstances, a judge can duplicate the
     effect of the original sentencing plan by adjusting the sentences
     on various counts so that the aggregate punishment remains the
     same.” Walker, 568 A.2d at 206. However, “[i]f a judge could
     have imposed the same aggregate sentence he handed down at
     the original sentencing hearing, and ... instead imposes a harsher
     aggregate sentence, the presumption of vindictiveness could not
     be rebutted by invoking the need to preserve the original
     sentencing plan.” Id. In Commonwealth v. McHale, 924 A.2d
     664, 667 (Pa. Super. 2007), overruled in part on other grounds
     as stated in Commonwealth v. Robinson, 931 A.2d 15 (Pa.
     Super. 2007), we upheld the trial court’s resentencing of the
     defendant when his conviction on the most serious charges, two
     counts of aggravated assault, previously had been reversed based
     on insufficient evidence. McHale, 924 A.2d at 673–74. After
     remand, to maintain the same total aggregate sentence as
     originally imposed, the trial court increased the overall sentence
     on the surviving counts. Id. at 667. Noting that the aggregate
     sentence remained unchanged, we upheld the new sentence. Id.
     at 674. In so doing, we noted:

                [O]ur conclusion is not altered by the fact that
          remand and resentencing were prompted by reversal
          of two of [the defendant’s] convictions. ... Whether
          remand is the result of reversal of one or more
          convictions or vacation of an illegal sentence, we
          conclude that the trial court has the same discretion
          and responsibilities in resentencing.

     Id. at 673–74.

           Appellant here was not the victim of a vindictive sentence
     on the part of the trial court, as his aggregate sentence after
     remand remained the same. Put differently, consistent with
     Greer, Walker, and McHale, the trial court’s resentencing did
     not rise to vindictiveness because the trial court here sought to
     preserve the integrity of the original sentencing scheme by
     imposing the same aggregate sentence. See Commonwealth v.
     Vanderlin, [] 580 A.2d 820, 831 ([Pa. Super.] 1990) (recognizing
     authority of the trial court, after reducing sentence on one count
     to accord with the law, to impose greater sentence on another

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      count in order to insure appellant remained in prison for a certain
      length of time); Commonwealth v. Grispino, 521 A.2d 950, 954
      ([Pa. Super.] 1987) (noting that trial court does not violate double
      jeopardy principles by increasing sentence on remand where
      aggregate term is not increased) []. Accordingly, Appellant is not
      entitled to relief on his due process claim under Pearce.

Barnes, 167 A.3d at 124-125.

      Instantly, Appellant received an aggregate sentence of 20 to 40 years

of incarceration following remand, which is actually less than either of his prior

aggregate sentences.      Again, Appellant asks this Court to look only at his

kidnapping sentence without considering the sentence as a whole. We have

not done so previously, and we will not do so now. Accordingly, we conclude

that Appellant is not entitled to relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2018




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