J-S52013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MAHARAJI M. HEMINGWAY,

                        Appellant                  No. 1834 WDA 2014


           Appeal from the Judgment of Sentence June 23, 2014
             In the Court of Common Pleas of Clearfield County
            Criminal Division at No(s): CP-17-CR-0000043-2009


BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED OCTOBER 27, 2015

      Appellant, Maharaji M. Hemingway, appeals from the judgment of

sentence entered for his convictions of multiple drug-related offenses after

this Court vacated his previous judgment of sentence and remanded for

resentencing. We affirm.

      The trial court summarized the protracted procedural history of this

case as follows:

            [Appellant] was convicted of twelve charges relating to
      drug distribution activities occurring between 2005 and 2007. At
      the start of 2005[, Appellant] was 2[6] years old, and did not
      turn 28 until January 30th, 2006.         Criminal Complaint, CR-
      000036-08.      [Appellant] has a significant criminal history,
      including a juvenile record. On January 8th, 2009, as a result of
      a grand jury investigation commencing in 2006, drug related
      charges were filed against Clearfield County residents Michael
      Styers and Charles Gearhart as well as [Appellant], from
      Philadelphia, Pennsylvania. The Grand Jury determined that
      Styers was the head of a cocaine distribution network operating
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     primarily out of his garage/residence in Clearfield, Clearfield
     County with Gearhart being one of Styers’ principal cocaine
     dealers.1 [Appellant] was named as Styers’ main source of
     cocaine out of Philadelphia between 2005 and 2007. [Appellant]
     was alleged to have sold Styers and others cocaine in
     Philadelphia and in Clearfield County multiple times each month
     during the duration of their association.
          1
            The 26th Statewide Investigating Grand Jury based
          in   Allegheny   County,    Pennsylvania[,]  issued
          Presentment Number 32 on September 25, 2008.

           As a result, a Criminal Complaint was filed against
     [Appellant] in the above captioned matter on January 16, 2009,
     charging [Appellant] with various counts of possession with
     intent to deliver and delivery of controlled substance, criminal
     conspiracy, criminal use of communication facility, dealing in
     proceeds of unlawful activity, and corrupt organizations. After
     lengthy pre-trial proceedings, including an appeal to the Superior
     Court by the Commonwealth, a consolidated trial for all three
     defendants was held before the Clearfield County Court of
     Common Pleas on January 23, 2012 through February 1, 2012.

           During the course of this eight day trial, the
     Commonwealth presented the testimony of twenty-four
     witnesses who were connected with or participated in the
     cocaine distribution ring alleged in this case. Of those, at least
     ten witnesses provided testimony directly regarding [Appellant]
     and/or his involvement in selling cocaine in Clearfield County.
     For example, Arianne Brocious testified that she first met
     [Appellant], known to her as “Bean,” through her cousin, Kara
     Butler, to purchase cocaine. Trial Tr. Day 3 of 8, Test. of
     Arianne Brocious, 9, Jan. 25, 2012. She testified that she then
     introduced Styers to [Appellant], and made multiple trips with
     Styers and/or with Gearhart to Philadelphia to purchase cocaine
     from [Appellant]. Id. at 11. In her testimony, Ms. Brocious
     estimated that four ounces of cocaine were purchased per trip,
     with the trips occurring regularly. Id. at 11, 13. She testified
     that she made around or more than fifteen trips with Styers
     and/or Gearhart, and that they would also make trips without
     her. Id. at 13-14.

           Tara Swatsworth (Osborn) testified that she became
     involved with the use of cocaine in March of 2006, buying from

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     Richard Smeal and Jacob Pittman. Trial Tr. Day 2 of 8, Test. of
     Tara Swatsworth, 4-5, Jan. 24, 2012. She first met [Appellant]
     when he came to her house in Curwensville, Clearfield County,
     Pennsylvania. Id. at 10. She testified that he arrived with a
     shoebox containing a half full half-gallon bag of loose cocaine.
     Id. at 11-12. Ms. Swatsworth then witnessed [Appellant] give
     Mr. Pittman ten one-gram bags of cocaine to sell, according to
     her testimony. Id. at 12. She then recalled that Mr. Pittman
     and herself went around selling the bags and then returned to
     her residence where they picked up twenty more one-gram bags
     of cocaine to sell and/or use. Id. at 13. She had further contact
     with [Appellant] through cell phone calls and a trip to
     Philadelphia, testifying that she took Mr. Smeal along to meet
     [Appellant] and obtain cocaine. Id. at 15-16. Ms. Swatsworth
     testified that she had sexual intercourse with [Appellant] and
     was given an “eightball”, approximately three grams of cocaine,
     and Mr. Smeal was fronted approximately an ounce of cocaine
     by [Appellant]. Id. at 17.

            Kristen Wilsoncroft testified that she met [Appellant] in
     approximately 2005 through Styers at her father’s residence in
     Clearfield, and that she then drove [Appellant] back to
     Philadelphia. Trial Tr. Day 1 of 8, Test. of Kristin Wilsoncroft, 4,
     7, 18, Jan. 23, 2012. She apparently became [Appellant’s]
     pseudo-chauffeur, testifying that [Appellant] would call her on
     his cell phone, she would pick him up in Philadelphia, drive him
     to Clearfield, and then back home to Philadelphia in exchange for
     free cocaine. Id. 9-14. Ms. Wilsoncroft testified that she made
     approximately seven such trips with [Appellant] to and from
     Philadelphia in the spring/summer of 2005. Id. at 11. She also
     testified to having a sexual relationship with [Appellant] over the
     course of their association. Trial Tr. Day 2 of 8, Test. of Kristin
     Wilsoncroft, 23, Jan. 24, 2012.

           Rick Wilkinson testified that he met [Appellant] in the
     summer of 2005 on a trip to Philadelphia with B.J. Kifer and his
     ex-wife, Jodi Wilkinson, where he purchased cocaine from
     [Appellant]. Trial Tr. Day 4 of 8, Test. of Rick Wilkinson, 20-23,
     Jan. 26, 2012. According to his testimony, Mr. Wilkinson lent his
     car to Styers, who used it to make trips to Philadelphia to obtain
     cocaine from [Appellant] throughout 2005. Id. at 23-25. He
     also testified that [Appellant] came to his (Wilkinson) residence
     in Clearfield County, and that [Appellant] contacted him in 2006
     and wanted him to sell cocaine. Id. at 27-29.

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           Other witnesses who testified to events regarding
     [Appellant] included Charles Gearhart (through Grand Jury
     transcript), Brandon Kifer, Joseph Hunter, Danielle Gearhart,
     Richard Smeal, and Jacob Pitman. The testimony established
     that [Appellant] was a main supplier of cocaine to Styers and
     made numerous trips to Clearfield County to sell cocaine, staying
     in hotel rooms or Tara Swatswor[t]h’s house. Testimony was
     also provided that there were sightings of [Appellant] at the
     Styers residence, the Wilsoncroft residence, the Wilkinson
     residence, and the Gearhart residence during this time period.
     Witnesses testified to purchasing cocaine from [Appellant], being
     approached to sell for [Appellant], and that [Appellant] was seen
     in possession of a large amount of loose cocaine. Although
     many of the witnesses had prior criminal records and were co-
     conspirators in the drug organization, these matters were fully
     explored on direct and cross-examination, along with any plea
     agreements with the Attorney General.

           Following deliberations, the jury found [Appellant] guilty
     on all counts except on the charge of False Imprisonment.
     Styers and Gearhart were also convicted of multiple drug-related
     offenses. Sentencing occurred before this Court on May 24,
     2012, where all defendants received lengthy periods of state
     incarceration.

           For his role in the crimes, [Appellant] was given an uneven
     sentence of 17 to 26 years of incarceration. See Sentencing
     Order, CP-17-CR-43-2009 (May 24, 2012). Notably, [Appellant]
     was sentenced to three to six years of incarceration for count 3,
     Delivery of a Controlled Substance (10 grams to less than 50
     grams/cocaine); seven to ten years of incarceration for count 1,
     Delivery of a Controlled Substance (100 grams to 1,000
     grams/cocaine); and seven to ten years of incarceration for
     count 2, Delivery of a Controlled Substance (100 grams to 1,000
     grams/cocaine). These sentences were imposed consecutively,
     for a combined sentence of 17 to 26 years of incarceration. The
     remaining charges (counts 4-12) for which [Appellant] was
     convicted were imposed concurrently to the sentences for counts
     3, 1, and 2. See Sentencing Order, CP-17-CR-43-2009 (May 24,
     2012).

           [Appellant] appealed his conviction and sentence. While
     his convictions were upheld, his sentence was vacated by the
     Superior Court and remanded for resentencing. Upon remand,

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     [Appellant] was resentenced to 17 to 34 years of incarceration.
     Though this is largely the same sentence as that imposed at his
     original sentencing, [Appellant] claims that the trial court was
     vindictive against him for exercising his right to appeal. A
     review of the record reveals otherwise.

            [Appellant’s] appeal from the original judgment of
     sentence challenged, inter alia, “the sufficiency of the evidence
     supporting the application of a mandatory minimum sentence.”
     Commonwealth v. Hemingway, 1664 WDA 2012 (Pa. Super.
     2014) (unpublished). The Superior Court of Pennsylvania did
     not directly address [Appellant’s] challenge to the sufficiency of
     the evidence supporting his sentence but rather, concluded, sua
     sponte, that [Appellant’s] sentence was illegal under Alleyne v.
     United States, 133 S.Ct. 2151, 2156 (2013) because the trial
     court found the weight of the cocaine by a preponderance of the
     evidence      rather   than     beyond    a   reasonable    doubt.
     Commonwealth v. Hemingway, 1664 WDA 2012 (Pa. Super.
     2014) (unpublished). After conviction, the trial court held a
     hearing to determine the weight of the drugs as required for
     sentencing purposes pursuant to 18 PA. C. S. § 7508(a)(2). As
     a result of the weight determination, [Appellant] received
     mandatory fines collectively in excess of $145,000 and two
     mandatory sentences, each of seven to ten years. Importantly,
     the maximum of each of these mandatory sentences was less
     than twice the minimum sentence. This issue with the maximum
     sentence on these mandatory sentences is what has caused the
     difficulty with [Appellant’s] resentencing.

           At resentencing [on June 18, 2014], the trial court was
     forced to disregard any evidence concerning the weight of the
     cocaine in question.         Accordingly, when resentencing
     [Appellant], the trial court set the weight of the controlled
     substances for each conviction at the lowest guideline amount;
     less than 2.5 grams. Therefore, [Appellant] was sentenced to
     21-42 months for counts 1,2,3,4,5,6,7,9, and 11; and 15 to 30
     months for counts 8 and 18 to 36 months for count 12. All
     sentences were to be run consecutively, except count 12 was to
     be run concurrent to count 3. See Sentencing Order, CP-17-CR-
     43-2009 (June 18, 2014). This resulted in a total sentence with
     a minimum of 17 years just as his original sentence, but now
     carried a possible maximum of 34 years of incarceration. These
     sentences were imposed within the standard sentencing


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        guideline range.   See Sentencing Order, CP-17-CR-43-2009
        (June 18, 2012); accord 204 Pa. Code §§ 303.1 et seq.

Trial Court Opinion, 11/3/14, at 1-6 (emphasis in original).

        Appellant filed a timely post-sentence motion on June 24, 2014. The

trial court held a hearing on September 9, 2014. On October 21, 2014, the

trial court denied Appellant’s post-sentence motion.         This timely appeal

followed.    Both Appellant and the trial court have complied with Pa.R.A.P.

1925.

        Appellant presents the following issues for our review:

        1. Did the trial court correctly calculate [Appellant’s] prior
        record score?

        2.    Did the trial court overcome the presumption of
        vindictiveness by imposing a harsher sentence of seventeen (17)
        to thirty-four (34) years after successfully appealing his original
        sentence of seventeen (17) to twenty-six (26) years?

Appellant’s Brief at 10.

        In his first issue, Appellant argues that the trial court improperly

calculated his prior record score by including a juvenile adjudication that he

claims lapsed from such calculation.      This Court has long determined that

the question regarding whether juvenile adjudications may properly be

included in computing prior record scores implicates a discretionary aspect of

sentencing and not the legality of one’s sentence.         Commonwealth v.

Krum, 533 A.2d 134 (Pa. Super. 1987) (en banc); Commonwealth v.

Tilghman, 531 A.2d 441 (Pa. Super. 1987) (en banc). In his second issue,

Appellant contends that the trial court acted in a presumptively vindictive

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manner at the time of his resentencing.    We have concluded that a claim

that a sentence imposed by the trial court was “vindictive” also amounts to a

challenge to the discretionary aspect of the sentence. Commonwealth v.

Gould, 912 A.2d 869, 872 (Pa. Super. 2006).

     Thus, Appellant’s issues each challenge the discretionary aspects of his

sentence. Our standard of review is one of abuse of discretion. 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. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.

2006).

     Where an appellant challenges the discretionary aspects of a sentence,

there is no automatic right to appeal, and an appellant’s appeal should be

considered to be a petition for allowance of appeal.    Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).            As we observed in

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:

           We conduct 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).

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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

      Whether particular issues constitute a substantial question about the

appropriateness of a sentence is a question to be evaluated on a case-by-

case basis.   Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001).    As to what constitutes a substantial question, this Court does not

accept bald assertions of sentencing errors. Commonwealth v. Malovich,

903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code. Id. “A

substantial question will be found where the defendant advances a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009) (citations omitted).

      Herein, the first three requirements of the four-part test are met:

Appellant brought an appropriate appeal, raised both challenges in his post-

sentence motion, and included in his appellate brief the necessary separate

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).   Therefore, we will next determine whether

Appellant has raised substantial questions requiring us to review the

discretionary aspects of the sentence imposed by the trial court.




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      In his first issue, Appellant contends that in calculating his prior record

score the trial court improperly included a prior juvenile adjudication of

burglary, which raised his prior record score from two to four. We have long

held that a claim that a trial court’s improper consideration of a prior

conviction, with a resulting improper prior record score, raises a substantial

question that a fundamental norm underlying the sentencing process has

been violated.   See Commonwealth v. Anderson, 830 A.2d 1013, 1018

(Pa. Super. 2003) (holding contention trial court miscalculated prior record

score raises a substantial question); Commonwealth v. Medley, 725 A.2d

1225, 1228 (Pa. Super. 1999) (finding substantial question was raised where

the appellant alleged trial court miscalculated prior record score). Therefore,

we will address this issue on appeal.

      Again, 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.    Shugars, 895 A.2d at 1275.        An abuse of

discretion is more than a mere error of judgment; thus, a sentencing court

will not have abused its discretion unless the record discloses that the

judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will. Commonwealth v. Provenzano, 50 A.3d 148,

154 (Pa. Super. 2012) (quoting Commonwealth v. Walls, 926 A.2d 957

(Pa. 2007)).




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      In addressing prior juvenile adjudications in calculating a prior record

score we turn to the Sentencing Guidelines.              We are mindful that the

applicable sentencing guidelines are those in effect at the time that the

offense was committed.            Commonwealth v. Maneval, 688 A.2d 1198,

1200 (Pa. Super. 1997). We observe that the 5th Edition of the Sentencing

Guidelines became effective June 13, 1997, and were in effect until the 6th

Edition of the Sentencing Guidelines became effective June 3, 2005. The 6th

Edition of the Sentencing Guidelines was revised, effective December 5,

2008. Therefore, because Appellant’s criminal activity was committed over a

period from January 2005 through June 2007, we conclude that both the 5th

and   the   6th   Editions   of    the   Sentencing   Guidelines   were   applicable.

Coincidentally, both the 5th Edition and the 6th Edition of the Sentencing

Guidelines contain the following, identical language pertaining to prior

juvenile adjudications in relation to the computation of a prior record score:

      §303.6. Prior Record Score - prior juvenile adjudications.

      (a) Juvenile adjudication criteria. Prior juvenile adjudications are
      counted in the Prior Record Score when the following criteria are
      met:

             (1) The juvenile offense occurred on or after the
             offender’s 14th birthday, and

             (2) There was an express finding by the juvenile
             court that the adjudication was for a felony or one of
             the Misdemeanor 1 offenses listed in §303.7(a)(4).

      (b) Only the most serious juvenile adjudication of each prior
      disposition is counted in the Prior Record Score. No other prior
      juvenile adjudication shall be counted in the Prior Record Score.

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      (c) Lapsing of juvenile adjudications.             Prior juvenile
      adjudications for four point offenses listed in §303.7(a)(1) shall
      always be included in the Prior Record Score, provided the
      criteria in subsection (a) above are met:

            (1) All other juvenile adjudications not
            identified above in subsection (a) lapse and
            shall not be counted in the Prior Record Score if
            the offender was 28 years of age or older at the
            time the current offense was committed.

            (2) Nothing in this section shall prevent the
            court    from     considering    lapsed  prior
            adjudications at the time of sentencing.

204 Pa. Code § 303.6 (emphasis added).              Hence, pursuant to the

emphasized language stated above, juvenile adjudications lapse and shall

not be counted in a prior record score for crimes committed when the

offender is twenty-eight years of age or older.

      Appellant argues that, pursuant to §303.6(c)(1), because he turned

twenty-eight years old on January 30, 2006, which was during the time

frame encompassing his various offenses, his prior juvenile adjudication of

burglary should have lapsed, and the trial court should not have added two

points to Appellant’s prior record score. Appellant notes that he was over

the age of twenty-eight for a significant portion of the period encompassing

the crimes, and thus, his juvenile conviction of burglary should not have

been included in his prior record score.

      The trial court offered the following reasoning for determining that this

issue lacked merit:




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                [Appellant] argues that he was improperly sentenced
         because his juvenile record should not have been considered in
         calculating his [prior record score]. [Appellant] maintains that,
         under the applicable sentencing guidelines, his juvenile record
         lapsed for sentencing purposes. Therefore, he concludes that his
         [prior record score] should have been 2 rather than 4, as
         computed by the trial court. However, all applicable editions of
         the sentencing guidelines indicate that [Appellant] must be over
         the age of 28 at the time the crime was committed to avail
         himself of the juvenile lapsing provision. See 204 Pa. Code §
         303.6(c)(5th Edition); 204 Pa. Code § 303.6(c)(6th Edition); see
         also 204 Pa. Code § 303.6(c)(6th Edition Revised) (limiting
         lapsing provision to those defendants who have remained crime
         free for the previous 10 years).

                [Appellant] is not eligible for the lapsing provision of the
         sentencing guidelines because he was under the age of 28 when
         the criminal activity for which he was convicted began. See Jury
         Verdict, Comm. v. Hemingway, No. CP-17-CR-43-2009. The
         record reveals that [Appellant] was merely 26 years old when he
         began committing the crimes for which he was convicted. Quite
         clearly, he is not eligible for the lapsing provision under any
         applicable edition of the sentencing guidelines. Thus, the trial
         court correctly calculated [Appellant’s] prior record score.

Trial Court Opinion, 11/3/14, at 6-7.

         Our review of the record reflects support for the trial court’s conclusion

that the jury determined Appellant’s criminal conduct commenced before

Appellant turned twenty-eight years-old. Specifically, the jury returned the

following verdicts indicating that Appellant’s criminal activity began in

January 2005, at the time when Appellant was under the age of twenty-

eight:

         1.    DELIVERY OF CONTROLLED SUBSTANCE:
               Cocaine to Michael Styers
               January 2005 – June 2007    VERDICT Guilty




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     2.    DELIVERY OF CONTROLLED SUBSTANCE:
           Cocaine to Charles Gearhart
           January 2005 – June 2007    VERDICT Guilty

     3.    DELIVERY OF CONTROLLED SUBSTANCE:
           Cocaine to Brandon Kifer
           January 2005 – June 2007    VERDICT Guilty

     4.    DELIVERY OF CONTROLLED SUBSTANCE:
           Cocaine to Joseph Hunter
           January 2005 – June 2007    VERDICT Guilty

     5.    DELIVERY OF CONTROLLED SUBSTANCE:
           Cocaine to Richard Smeal
           January 2005 – June 2007    VERDICT Guilty

     6.    DELIVERY OF CONTROLLED SUBSTANCE:
           Cocaine to Kristin Wilsoncroft
           January 2005 – June 2007       VERDICT Guilty

     7.    CRIMINAL CONSPIRACY TO COMMIT POSSESSION
           W/INTENT TO DELIVER AND DELIVERY OF CONTROLLED
           SUBSTANCE: Cocaine
           January 2005 – June 2007    VERDICT Guilty

     8.    CRIMINAL USE OF COMMUNICATION FACILITY:
           January 2005 – June 2007    VERDICT Guilty

     9.    DEALING IN PROCEEDS OF UNLAWFUL ACTIVITIES:
           January 2005 – June 2007    VERDICT Guilty

     10.   FALSE IMPRISONMENT: Autumn Kifer
           Summer 2007                   VERDICT NOT Guilty

     11.   CORRUPT ORGANIZATIONS:
           January 2005 – June 2007       VERDICT Guilty

     12.   CORRUPT ORGANIZATIONS: Conspiracy with other persons
           January 2005 – June 2007     VERDICT Guilty

Verdict Sheet, 2/1/12, at 1-2.




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      Thus, as the verdict sheet indicates, the jury specifically found that

Appellant’s criminal activity for each conviction began before Appellant’s

twenty-eighth birthday, which was January 30, 2006. Accordingly, because

the jury returned a verdict indicating that Appellant was under the age of

twenty-eight when he began committing the current offenses, we cannot

conclude that the trial court abused its discretion by including Appellant’s

prior juvenile adjudication of burglary when it computed Appellant’s prior

record score. Hence, Appellant’s contrary claim lacks merit.

      We next address Appellant’s second issue wherein he argues that the

trial court engaged in vindictive sentencing upon remand.        As previously

stated, an issue challenging the length of a sentence citing judicial

vindictiveness raises a challenge to the discretionary aspects of sentencing.

Gould, 912 A.2d at 872.         This Court has recognized that such claims

constitute    a   substantial    question     mandating     appellate   review.

Commonwealth v. Robinson, 931 A.2d 15, 20-21 (Pa. Super. 2007) (en

banc).

      Appellant avers that upon remand, the trial court improperly increased

his punishment for his convictions.         Appellant observes that his initial

aggregate sentence was a term of imprisonment of seventeen to twenty-six

years. However, following remand, the trial court sentenced Appellant to an

aggregate term of incarceration of seventeen to thirty-four years.




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       The U.S. Supreme Court considered the issue of increased sentences

in a line of cases beginning with North Carolina v. Pearce, 395 U.S. 711

(1969), reversed in part, Alabama v. Smith, 490 U.S. 794 (1989).1             In

Pearce, the Court determined that due process concerns are triggered

whenever a court sentences a defendant to a higher term of imprisonment

after a second trial or some manner of post-sentencing review.2 The Pearce

Court stated the following:

              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
       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
       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

____________________________________________


1
   The Smith Court reversed in part the holding in Simpson v. Rice, 395
U.S. 711 (1969), which was a companion case to Pearce. However, the
rule established in Pearce remained unaffected by the decision in Smith.
2
   While Pearce dealt with an increased sentence following the grant of a
new trial, this Court has held that the same rationale applies where the
original sentence is vacated and the second sentence is imposed without an
additional trial. Commonwealth v. Greer, 554 A.2d 980, 987 n.7 (Pa.
Super. 1989).



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      record, so that constitutional legitimacy of          the   increased
      sentence may be fully revealed on appeal.

Pearce, 395 U.S. at 725-726.

      Subsequently, in Texas v. McCullough, 475 U.S. 134 (1986), the

United States Supreme Court modified and expanded the Pearce Court’s

approach to resentencing and due process and explained that judicial

vindictiveness is the retaliation of a sentencing judge against a defendant for

having successfully attacked a first conviction.      Generally, it is “the judge

who has been reversed” who potentially harbors a “motivation to engage in

self-vindication.” Id. at 139 (citing Chaffin v. Stynchcombe, 412 U.S. 17

(1973)).     To ensure the absence of such motivation, the reasons for an

enhanced sentence following retrial must affirmatively appear on the record.

Id. at 138. The reasons must be based on objective information concerning

(1) identifiable conduct on the part of the defendant occurring after the time

of the original sentencing proceeding, or (2) legitimate sentencing concerns,

or other new objective information, not previously available to the court.

Id.

      Where a subsequent sentence imposes a greater penalty than

previously    was   imposed,   a   presumption   of    vindictiveness   attaches.

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

(citing Commonwealth v. Campion, 672 A.2d 1328 (Pa. Super. 1996)).

Therefore, we first consider whether a presumption of vindictiveness arises

in the instant case.   Here, Appellant was tried by a jury, convicted, and

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sentenced to an aggregate term of incarceration of seventeen to twenty-six

years.    Appellant then filed a direct appeal, and this Court vacated his

judgment of sentence and remanded for resentencing after sua sponte

determining that the sentence was illegal due to the application of

mandatory minimum sentences set forth in 18 Pa.C.S. § 7508(a)(2). Upon

remand, the original sentencing judge then presided over Appellant’s

resentencing hearing and imposed a harsher sentence, that being an

aggregate term of incarceration of seventeen to thirty-four years.               Based

upon     these   facts,   we   are   left    to   conclude   that   a   presumption   of

vindictiveness is present in this matter.

       We next consider whether the trial court rebutted the presumption of

vindictiveness.     As previously stated, the Pearce Court held that the

presumption was controlling unless the new sentence was based upon

“objective information concerning identifiable conduct on the part of the

defendant occurring after the time of the original sentencing proceeding.”

Pearce, 395 U.S. at 726.         Again, in McCullough, the Court modified this

rule and held that the presumption could also be overcome by other forms of

objective information or legitimate sentencing concerns that were not

presented to or considered by the trial court at the original sentencing

hearing. McCullough, 475 U.S. at 138.




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          In this case, the trial court expressly disavowed any vindictive purpose

in resentencing Appellant and stated the following in its written opinion of

November 3, 2014:

          Given [Appellant’s] role in the cocaine trafficking scheme which
          underlies this case, a minimum sentence of 17 years of
          incarceration is entirely appropriate. Further, when resentencing
          [Appellant] on remand, the trial court was constrained to impose
          a “balanced” sentence which resulted in [Appellant’s] maximum
          period of incarceration increasing from 26 years to 34 years.
          This was clearly and objectively the result of application of the
          Pennsylvania Sentencing Guidelines, and not the result of
          vindictiveness on the part of the trial court.

Trial Court Opinion, 11/3/14, at 8.

          The reasons for Appellant’s enhanced maximum sentence following

remand affirmatively appear on the record. Those reasons are based upon

the legitimate sentencing concerns of imposing a balanced sentence. Thus,

we are satisfied that the trial court has rebutted any presumption of

vindictiveness that may have attached to its sentence imposed upon

remand. Therefore, Appellant’s claim that the trial court was vindictive and

violated his due process rights by sentencing him to a harsher maximum

sentence upon remand fails. Accordingly, Appellant’s claim does not warrant

relief.

          Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2015




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