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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

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


            Appeal from the Judgment of Sentence, January 30, 2014,
                in the Court of Common Pleas of Dauphin County
                Criminal Division at No. CP-22-CR-0000426-2011


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MARCH 16, 2016

        Kwame Lamar Barnes appeals from the judgment of sentence imposed

following his convictions of criminal attempt-homicide, aggravated assault,

kidnapping, and recklessly endangering another person.1         We vacate and

remand for resentencing.

        We assume the parties’ familiarity with the facts of the case. Briefly,

the charges stem from an incident where Barnes choked the victim to

unconsciousness.

        On May 18, 2012, Barnes was sentenced to a term of 20 to 40 years’

imprisonment for his conviction of attempted homicide, a consecutive term

of 2½ to 5 years for aggravated assault, and a consecutive term of 2½ to



1
    The jury found Barnes not guilty of terroristic threats.
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5 years for kidnapping.     Following a direct appeal, a panel of this court

vacated judgment of sentence and remanded for resentencing, finding that

the conviction of aggravated assault should have merged with the attempted

homicide conviction since the crimes arose from a single set of facts.

Commonwealth v. Barnes, No. 691 MDA 2013, unpublished memorandum

(Pa.Super. filed December 3, 2013).

      Thereafter, on January 30, 2014, Barnes was re-sentenced to the

following: 20 to 40 years’ for criminal attempt homicide and a consecutive

sentence of 5 to 10 years’ for kidnapping. On February 5, 2014, Barnes filed

a post-trial motion. On May 12, 2014, the trial court denied the motion. On

June 4, 2014, Barnes filed a notice of appeal and complied with the trial

court’s order to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has

filed an opinion.

      The following issues have been presented for our review:

            [1.]    Apprendi doctrine.         The United States
                    Constitution mandates that juries should
                    decide all facts that increase a crime’s
                    statutory maximum sentence. Here, a jury
                    convicted Barnes of attempted murder,
                    generally—a 20 year maximum sentence. If
                    the trial court submits the crime of attempted
                    murder resulting in serious bodily injury to the
                    jury, the maximum sentence increases to
                    40 years. But Barnes court didn’t submit this
                    element. Is Barnes’ legal attempted murder
                    maximum sentence 20 years?




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            [2.]   Substantial questions.          To appeal the
                   discretionary aspects of a sentence, an
                   appellant must present a “substantial question”
                   why the sentencing court’s actions are
                   inconsistent with the Sentencing Code or
                   contrary to the fundamental norms underlying
                   the sentencing process. This sentencing court:
                   (1) increased a crime’s sentence where the
                   only changed fact was the exercise of appellate
                   rights; and (2) failed to provide reasons for its
                   new sentence on the record. Does Barnes[]
                   raise substantial questions?

            [3.]   Judicial Vindictiveness. A presumption of
                   vindictiveness arises where a sentencing court
                   imposes a more severe sentence absent
                   objective evidence justifying an increased
                   sentence.    This trial court doubled Barnes’
                   kidnapping sentence at his resentencing. It
                   based the increased sentence on the same
                   facts and information as at the time of the
                   original sentence. Is Barnes’ new kidnapping
                   sentence void?

            [4.]   Record reasons for an imposed sentence.
                   On resentencing, following remand, the court
                   shall make as a part of the record, and disclose
                   in open court at the time of sentence, a
                   statement of reason or reasons for the
                   imposed sentence.      In Barnes’ five-minute
                   resentencing this record does not make such a
                   statement. Should this Court vacate Barnes’
                   current sentence and resentence him to
                   provide a reasoned statement?

Barnes’ brief at 8-9.

      The first issue presented concerns the sentence imposed for the

conviction of criminal attempt homicide and involves the application of

Section 1102 of the Crimes Code, and in particular, the “serious bodily

injury” requirement.    “[T]he statute imposes a condition precedent to the


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imposition of a maximum term of imprisonment of up to 40 years,

specifically, that ‘serious bodily injury’ must have resulted from the

attempted murder.       Otherwise, the sentence shall be not more than

20 years.”   Commonwealth v. Johnson, 910 A.2d 60, 66 (Pa.Super.

2006), appeal denied, 923 A.2d 1173 (Pa. 2007). Barnes concludes that

the sentence imposed is illegal under Apprendi v. New Jersey, 530 U.S.

466 (2000), wherein the United States Supreme 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.”      Id. at 490.   Barnes notes

that the docket sheet does not show that he was charged with criminal

attempt resulting in serious bodily injury; nor does the verdict sheet in this

case mention serious bodily injury with respect to the attempted homicide

charge. Barnes also contends that the jury instruction does not contain any

instruction as to making a finding of whether serious bodily injury resulted

from the criminal attempt; rather, the instruction referenced aggravated

assault. His argument suggests a finding cannot be implied by virtue of the

fact that the jury found him guilty of aggravated assault and the court

instructed the jury on serious bodily injury.

      Barnes’ claim involves the legality of the sentence. Commonwealth

v. Aponte, 855 A.2d 800, 802 n.1 (Pa. 2004).          “Issues relating to the

legality of a sentence are questions of law . . . Our standard of review over



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such questions is     de novo     and our    scope   of review    is plenary.”

Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009)

(citation omitted).

      We agree with Barnes that the failure of the jury to render a separate

finding regarding serious bodily injury requires that we vacate the conviction

and remand for resentencing.        We find support for our conclusion in

Johnson, supra. In Johnson, this court held that a defendant convicted of

attempted murder and aggravated assault was sentenced illegally where the

jury did not determine that serious bodily injury occurred relative to the

attempted murder charge.      The trial court therein concluded that serious

bodily injury was proven because the jury convicted the defendant of

aggravated assault causing serious bodily injury. The Johnson court found

that the jury’s consideration of serious bodily injury for the aggravated

assault count was not relevant to the attempted murder conviction.

      Relying on Apprendi, supra, the Johnson court held that it was not

the prerogative of the trial court but solely the responsibility of the jury to

find, beyond a reasonable doubt, whether a serious bodily injury resulted

from the attempted murder. The court held that to sentence a defendant to

a maximum term of incarceration of 40 years for attempted murder, the jury

must determine that the Commonwealth proved serious bodily injury as it

specifically pertained to the attempted murder charge.




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      Instantly, as in Johnson, “the jury was never presented with, nor

rendered a decision on, the question of whether a serious bodily injury

resulted from the attempted murder.”       Johnson, supra at 67 (footnote

omitted).   Thus, we are constrained to vacate the sentence on this count

and remand for resentencing.

      Barnes next contends that the trial court erred by sentencing him to a

more severe sentence for kidnapping on remand than his original sentence.

He avers that such action results in a presumption of vindictiveness.

(Barnes’ brief at 26.)

      “Challenges to the discretionary aspect of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa.Super. 2010).      Prior to reaching the merits of a discretionary

sentencing issue,

            [This court conducts] a four-part analysis to
            determine: (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.A.
            § 9781(b).

Id. (citation omitted).

      Instantly, Barnes filed a timely notice of appeal, preserved his claim in

a timely post-sentence motion, and included in his appellate brief a separate



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Rule 2119(f) statement.      As such, he is in technical compliance with the

requirements to challenge the discretionary aspect of a sentence. We will

proceed to determine whether a substantial question has been presented for

our review. Challenges to the length of the sentence following resentencing,

citing judicial vindictiveness, implicate a discretionary aspect of the

sentencing process.        See Commonwealth v. Tapp, 997 A.2d 1201,

1202-1203 (Pa.Super. 2010); Commonwealth v. Robinson, 931 A.2d 15,

20-21 (Pa.Super. 2007) (en banc). Accordingly, we grant review of Barnes’

claim.

      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.    See Commonwealth v. Walker, 568 A.2d 201

(Pa.Super. 1989), disapproved of on other grounds by Robinson,

supra.2 In North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on

other grounds by Alabama v. Smith, 490 U.S. 794 (1989), the United

States Supreme Court stated:

                  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

2
  Walker and prior cases had held that a claim of judicial vindictiveness in
resentencing was a challenge to the legality of the sentence that could be
raised as a matter of right. In Robinson, supra, an en banc panel of this
court held claims of judicial vindictiveness in sentencing, and any due
process concerns arising therefrom, implicate discretionary aspects of
sentence.


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              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.

Id. at 725-726 (footnote omitted).       While Pearce dealt with an increased

sentence following the grant of a new trial, this court held that the same

rationale applies where the original sentence is vacated and the second

sentence is imposed without an additional trial.      See Commonwealth v.

Greer, 554 A.2d 980, 987 n.7 (Pa.Super. 1989).3            Absent evidence an

increase in a sentence is justified due to objective information concerning

the   case,    the   presumption   of   vindictiveness   cannot   be   rebutted.

Commonwealth v. Serrano, 727 A.2d 1168, 1170 (Pa.Super. 1999).




3
  We disagree with the trial court that the instant case is distinguishable
from Pearce based on the fact that appellant did not proceed to a new trial
but rather was resentenced after this court found a sentencing error. (Trial
court opinion, 5/12/14 at 4.)


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      Barnes was originally sentenced on the kidnapping conviction to a

consecutive term of 2½ to 5 years of incarceration; after remand, the

conviction of aggravated assault merged with the attempted homicide

conviction and the kidnapping sentence was doubled to a consecutive five to

ten years of 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 court was able to maintain the

original sentence.” (Trial court opinion, 5/12/14 at 4.)

      We find Barnes’ argument that he received an enhanced sentence to

be questionable. Barnes’ argument requires us to only look 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.

Barnes fails to note the trial court’s overall sentencing scheme. Before his

successful   appeal,   his     aggregate   sentence   was   25   to   50   years’

imprisonment; after his successful appeal, the trial court resentenced Barnes

to this very sentence.       Accordingly, he was not the victim of a vindictive

sentence on the part of the trial court. See Commonwealth v. Vanderlin,

580 A.2d 820 (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 count in order to insure appellant remained in prison

for a certain length of time); Commonwealth v. Grispino, 521 A.2d 950



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(Pa.Super. 1987) (noting that trial court does not violate double jeopardy

principles by increasing sentence on remand where aggregate term is not

increased).

      In the third issue, Barnes states that the trial court abused its

discretion when it resentenced him as it failed to provide a statement in

open court of the reasons for the sentence imposed. Due to the disposition

of appellant’s first claim, we need not address this issue.   However, we

remind the trial court that “[r]eimposing a judgment of sentence should not

be a mechanical exercise.”    Commonwealth v. Losch, 535 A.2d 115

(Pa.Super. 1987). When a sentence is vacated and the case remanded for

resentencing, the sentencing judge should start afresh; the requirement to

state reasons for the imposition of sentence applies both to the original

sentencing hearing and to all subsequent resentencing hearings.     Id. at

123 n.9.

      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.



      Stabile, J. joins the Memorandum.

      Shogan, J. files a Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2016




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