J-S73039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellee                :
                                            :
              v.                            :
                                            :
RICHARD BALSAVAGE,                          :
                                            :
                    Appellant               :           No. 691 MDA 2014

      Appeal from the Judgment of Sentence entered on January 23, 2014
                in the Court of Common Pleas of Berks County,
                Criminal Division, No. CP-06-CR-0001210-2005

BEFORE: BOWES, WECHT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED DECEMBER 18, 2014

        Richard Balsavage (“Balsavage”) appeals from the judgment of

sentence imposed on seven counts of sexual abuse of children,1 following

the revocation of his probation. We affirm.

        The trial court set forth the relevant factual and procedural history in

its Opinion, which we adopt herein for purposes of this appeal.       See Trial

Court Opinion, 7/23/14, at 2-6.

        On appeal, Balsavage raises the following issues for our review:

        1. Did the trial court err by increasing [Balsavage’s] sentence
           and not overcoming or correcting the judicial vindictiveness
           that the trial court (by way of a different judge) earlier
           exhibited in the case?

        2. Did the trial court’s increasing of [Balsavage’s] sentence
           punish [Balsavage] for previously exercising his right to

1
    See 18 Pa.C.S.A. § 6312(d) (child pornography).
J-S73039-14


         allocution, which violates the standards set forth in the
         Pennsylvania Rules of Criminal Procedure and decisional law?

      3. Did the trial court’s increasing of [Balsavage’s] sentence,
         without citing any new objective evidence of record, violate
         [Balsavage’s] [d]ue [p]rocess rights under the United States
         Constitution?

Brief for Appellant at 9 (citations omitted).

      Balsavage challenges the discretionary aspects of his sentence.

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

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

170 (Pa. Super. 2010); see also Commonwealth v. Yanoff, 690 A.2d

260, 267 (Pa. Super. 1997) (stating that, when an appellant challenges the

discretionary aspects of his sentence, we must consider his brief on this

issue as a petition for permission to appeal). 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, [see] 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, [see] 42
      Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      In the instant case, Balsavage filed a timely Notice of Appeal,

preserved his claims in a timely post-sentence Motion, and included in his




                                    -2-
J-S73039-14


appellate brief a separate Rule 2119(f) statement.2      As such, he is in

technical compliance with the requirements to challenge the discretionary

aspects of a sentence. Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa.

Super. 2010). Thus, we will proceed to determine whether Balsavage 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. See Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007).    “A substantial question exits 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, 936 (Pa.

Super. 2013) (internal quotation marks and citations omitted).

     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, 1202-03 (Pa.

Super. 2010). Accordingly, we grant review of Balsavage’s claims and will

address the merits of his argument.

     As Balsavage’s issues are related, we will address them together.

Balsavage asserts that, because the sentences imposed by Judge Stephen


2
 In his Rule 2119(f) Statement, Balsavage disputes that his claims involve a
challenge to the discretionary aspects of his sentence.       See Brief for
Appellant at 26.


                                 -3-
J-S73039-14


Lieberman (“Judge Lieberman”) in 2007 (“the 2007 sentence”)3 and 2009

(“the 2009 sentence”)4 were reversed, we must look to the 2007 sentence

as the basis from which to evaluate the sentence at issue, which was

imposed by Judge Paul Yatron (“Judge Yatron”) following the January 23,

2014 resentencing hearing (“the 2014 sentence”).5 Id. at 28-29. Balsavage

contends that because no new evidence was presented at the January 23,

2014 resentencing hearing, there was no basis for Judge Yatron to increase

Balsavage’s sentence beyond the 2007 sentence.     Id. at 29.   Balsavage

claims that Judge Yatron failed to acknowledge that the purpose of the

January 23, 2014 resentencing hearing was for Balsavage to exercise his

right of allocution, which had been denied by Judge Lieberman at the 2007




3
  Following Balsavage’s admission to a probation violation of his original
sentence, which was imposed in 2005, Judge Lieberman conducted a hearing
pursuant to Gagnon v. Scarpelli, 411 U.S. 778, (1973) (“Gagnon II
hearing”) before imposing the 2007 sentence, which consisted of a prison
term of 3½ to 7 years, followed by 42 years of probation.
4
  Following Balsavage’s successful appeal of the 2007 sentence, Judge
Lieberman conducted a second Gagnon II hearing before imposing the
2009 sentence, which consisted of a prison term of 24½ to 49 years,
followed by 7 years of probation.
5
  Following Balsavage’s successful Petition for a writ of habeas corpus
regarding the 2009 sentence, Judge Yatron conducted a third Gagnon II
hearing before imposing the 2014 sentence, which consists of a prison term
of 4½ years to 24 years in prison, followed by 7 years of probation.



                                -4-
J-S73039-14


sentencing hearing.6    Id.   Balsavage asserts that Judge Yatron erred by

regarding the January 23, 2014 resentencing hearing as a complete “do-

over,” and thereby failed to overcome the judicial vindictiveness exhibited by

Judge Lieberman.7 Id.

      Balsavage further claims that a presumption of judicial vindictiveness

applies to the 2014 sentence based on Judge Yatron’s imposition of a

sentence greater than the 2007 sentence. Id. at 30. Balsavage asserts that

Judge Yatron violated his rights by effectively punishing him for successfully

appealing his 2009 sentence, just as Judge Lieberman violated his rights

when Balsavage appealed his 2007 sentence.        Id. at 31.   Balsavage also

claims that Judge Yatron erred by conducting his resentencing on a de novo

basis.8 Id. at 34. Balsavage contends that Judge Yatron’s justification for

increasing his sentence, based on the fact that Balsavage took the subject



6
  In contrast to the position taken in Balsavage’s appellate brief, his counsel
asserted at the January 23, 2014 resentencing hearing that Balsavage did
not wish to exercise his right of allocution, and that Judge Yatron should
instead take into consideration the apology made by Balsavage at the 2009
resentencing hearing when imposing his sentence. See N.T., 1/23/14, at 8,
12-13.
7
 In contrast to the position taken in Balsavage’s appellate brief, his counsel
asserted at the January 23, 2014 resentencing hearing that Judge Yatron’s
role was, in fact, to conduct a “do-over” of the 2009 resentencing hearing.
See N.T., 1/23/14, at 8.
8
 In contrast to the position taken in Balsavage’s appellate brief, his counsel
agreed with Judge Yatron at the January 23, 2014 resentencing hearing that
Judge Yatron’s evaluation of the case should be “de novo.” See N.T.,
1/23/14, at 4-5.



                                  -5-
J-S73039-14


pornographic photos himself as opposed to obtaining them from the

Internet,9 does not constitute new objective evidence that would justify an

increased sentence. Id. Balsavage asserts that, by failing to cite any new

objective evidence as the basis for an increased sentence, Judge Yatron

violated his due process rights under the United States Constitution. Id. at

35.10

        In North Carolina v. Pearce, 395 U.S. 711 (1969), the United States

Supreme Court recognized the possibility that a trial court’s imposition of an

enhanced sentence after retrial may be motivated by reasons personal to

the judge, including vindictiveness toward the defendant for having secured

relief from the original sentence on appeal. See id. at 725. Finding such

motivation inimical to due process, the Court ruled that


9
 Balsavage admitted to taking the subject pornographic photographs, which
depicted his ex-girlfriend’s two-year-old son in a nude or semi-nude state
with his genitals exposed, and in positions which suggested that he had been
posed, for the purpose of using them to masturbate. See N.T., 6/16/05, at
3-4.

10
   Although Balsavage fails to specify which of his rights were violated by
Judge Yatron when he imposed the 2014 sentence, Balsavage relies on a
rescinded rule of criminal procedure, and corresponding case law, addressing
a defendant’s right of allocution at sentencing in support this argument.
See Brief for Appellant at 31. However, our review of the January 23, 2014
resentencing hearing reveals that Judge Yatron twice afforded Balsavage his
right of allocution, which Balsavage declined to exercise. See N.T., 1/23/14,
at 8, 12-13. Moreover, Balsavage concedes that he elected not to exercise
his right of allocution at the January 23, 2014 resentencing hearing. See
Brief for Appellant at 29. Thus, to the extent that Balsavage claims that
Judge Yatron denied him his right of allocution, such claim is without support
in the record.



                                 -6-
J-S73039-14


      [i]n order to assure the absence of such a motivation, . . .
      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.

Id. at 726.    Clarifying this holding in subsequent decisions, the Court

recognized that Pearce applied a presumption of vindictiveness, which may

be overcome only by objective information in the record justifying the

increased sentence. See Alabama v. Smith, 490 U.S. 794, 798-99 (1989).

      However, the Pearce requirements do not apply in every case where a

convicted defendant receives a greater sentence upon resentencing.         See

Texas v. McCullough, 475 U.S. 134, 138 (1986).                  Relevantly, the

presumption of judicial vindictiveness does not apply where the enhanced

sentence imposed upon resentencing was imposed by a sentencing authority

different from the one that imposed the earlier sentence. See id. at 138-39

(stating that, where the sentencer is not the same in the two proceedings,

the sentencer imposing the second sentence has no personal stake in the

prior conviction and no motivation to engage in self-vindication, rendering

the threat of vindictiveness far more speculative than real).

      Additionally, when different sentencers have assessed the varying

sentences that a defendant has received, “a sentence ‘increase’ cannot truly

be said to have taken place.” McCullough, 475 U.S. at 140; see also id.

(explaining that “[it] may often be that the [second sentencer] will impose a



                                  -7-
J-S73039-14


punishment more severe than that received from the [first]. But it no more

follows that such a sentence is a vindictive penalty for seeking a [new] trial

than that the [first sentencer] imposed a lenient penalty.” (quoting Colten

v. Kentucky, 407 U.S. 104, 117 (1972)).

      In Pennsylvania, no presumption of vindictiveness arises when

sentences have been imposed by two different judges. See Tapp, 997 A.2d

at 1205. In the absence of a presumption of vindictiveness, the defendant

must affirmatively prove actual vindictiveness.     Id.   When a defendant

makes no attempt to prove vindictiveness by affirmative evidence, his right

to due process has not been infringed, and he is not entitled to be

resentenced. See id.

      Here, because Balsavage was resentenced in 2014 by a different judge

than the judge who sentenced him in 2007, the presumption of judicial

vindictiveness does not apply.11 See id. Additionally, because Balsavage’s


11
   In support of his claim that judicial vindictiveness applies to the 2014
sentence, Balsavage relies on the Opinion entered by the federal district
court in Balsavage v. Wetzel, 936 F. Supp. 2d 505 (E.D. Pa. 2013),
affirmed in part, vacated in part, remanded, 545 Fed. Appx. 151 (3d Cir.
2013). See Brief for Appellant at 32-34. However, the issue before the
district court was whether the presumption of judicial vindictiveness applied
to the 2009 sentence, which involved an increased sentence imposed by the
same judge (i.e., Judge Lieberman) who had imposed the 2007 sentence.
Thus, because the same judge imposed both of those sentences, the district
court determined that the presumption of judicial vindictiveness applied to
the 2009 sentence, requiring the identification of objective information in the
record to justify the increased sentence. Because no presumption of judicial
vindictiveness applies to Balsavage’s 2014 sentence, the Pearce
requirement that new objective evidence be presented to justify the
increased sentence does not apply.


                                  -8-
J-S73039-14


sentences were imposed by different judges, there has been no “increase” in

his sentence.   See McCullough, 475 U.S. at 140 (stating that where a

different judge imposes the second sentence, no sentence “increase” has

occurred). Indeed, it no more follows that the 2014 sentence imposed by

Judge Yatron is a vindictive penalty for Balsavage’s pursuit of a writ of

habeas corpus than that the 2007 sentence imposed by Judge Lieberman

was too a lenient penalty. See id.; see also Tapp, 997 A.2d at 1205.

     Although a defendant may seek to establish judicial vindictiveness by

affirmative evidence, Balsavage has presented no evidence of actual

vindictiveness, and nothing in the record suggests that Judge Yatron was

motivated by vindictiveness.    Accordingly, Balsavage’s claim of judicial

vindictiveness, resulting in a due process violation, must fail under both

federal and Pennsylvania state law.

     The standard of review applicable to resentencing following the

revocation of probation applies to the 2014 sentence:

     In general, the imposition of sentence following the revocation of
     probation is vested within the sound discretion of the trial court,
     which, absent an abuse of that discretion, will not be disturbed
     on appeal. Our standard of review is limited to determining the
     validity of the probation revocation proceedings and the
     authority of the sentencing court to consider the same
     sentencing alternatives that it had at the time of the initial
     sentencing. Once probation has been revoked, a sentence of
     total confinement may be imposed if any of the following
     conditions exist:   (1) the defendant has been convicted of
     another crime; or (2) the conduct of the defendant indicates that
     it is likely that he will commit another crime if he is not
     imprisoned; or, (3) such a sentence is essential to vindicate the
     authority of court.


                                 -9-
J-S73039-14



Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013)

(citations omitted); see also 42 Pa.C.S.A. § 9771.

      Here, the record reflects that Judge Yatron reviewed ample testimony

and numerous documents, which led him to conclude that the 2014 sentence

he imposed was justifiable and necessary in this case.       Specifically, Judge

Yatron had the benefit of extensive evidence of Balsavage’s likelihood to

reoffend, including the testimony of Balsavage’s probation officer, cellmate,

two sex offender therapists, and a sex offender treatment specialist who

prepared a Treatment Summary of Balsavage’s treatment while he was on

probation. See Trial Court Opinion, 7/23/14, at 2. Judge Yatron also had

the benefit of evidence regarding Balsavage’s (1) admission that he had

victimized twelve additional minor victims; (2) struggles with pedophilia

fantasies, to which he sometimes masturbates, and a sexual interest in

urophilia and coprophilia; (3) addiction to marijuana and alcohol; and (4)

fantasies about doing something like the Amish schoolhouse murders. See

id.

      Additionally, Judge Yatron had available to him the same sentencing

alternatives   that   were   available   to   Judge   Lieberman   at   the   2007

resentencing hearing. See Edwards, 71 A.3d at 327. Notably, Balsavage

does not challenge the legality of the individual sentences which comprise

the 2014 sentence, or the fact that those sentences were imposed

consecutively. Having reviewed the record, we find no error and discern no


                                  - 10 -
J-S73039-14


abuse of discretion regarding the 2014 sentence.   Accordingly, we affirm

Balsavage’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2014




                               - 11 -
                               (
                               I.
                                                                           (      Circulated 11/21/2014 02:49 PM




 COMMONWEALTH OF                                    IN THE COURT OF COMMON PLEAS
 PENNSYLVANIA,                                      OF BERKS COUNTY, PENNSYLVANIA
                                                    CRIMINAL DIVISION
               v.
                                                    No. CP-06-CR-0001210-2005
 RICHARD BALSAVAGE,
      Defendant                                     PAUL M. YATRON, PRESIDENT JUDGE

 Melissa Noyes, Esq., Attorney for the Commonwealth
 Osmer S. Deming, Esq., Attorney for the Appellant on Appeal


1925(a) Opinion                                                                       July 22, 2014

       Richard Balsavage ("Appellant") pled guilty to eight counts of sexual abuse of children l
on May 23,2005. Appellant was sentenced to nine (9) to twenty-three (23) months'
imprisonment. After his release from prison, Appellant quickly violated the terms of his
probation. A lengthy procedural history ensued, which is detailed infra. This Court resentenced
Appellant on January 23, 2014. Appellant filed a notice of appeal on April 21, 2014. We ordered
the filing of a concise statement of errors pursuant to Rule 1925(b) of the Pennsylvania Rules of
Appellate Procedure, and Appellant filed a timely concise statement.
       Defendant raises the following matters for appellate review:
   1. Did the trial court err by increasing the Defendant's sentence and not overcoming or
       correcting the judicial vindictiveness that the trial court (by way of a different judge)
       earlier exhibited in this case?
   2. Did the trial court's increasing of the Defendant's sentence punish the Defendant for
       previously exercising his right to allocution, which violates the standards set forth in the
       Pennsylvania Rules of Criminal Procedure and decisional case law? See Pa.R.Crim.P.
       1409(c)(l); Commonwealth v. Thomas, 553 A.2d 918,919 (Pa. 1989); Commonwealth v.
       Barzyk, 692 A.2d 211,215 (Pa.Super. 1997); and Commonwealth v. Tigney, 730 A.2d
       968 (Pa.Super. 1999).

                                                                  -.: ..
                                                                     "




       1   18 Pa. C.S.A. § 6312(d).
                                                                                  Circulated 11/21/2014 02:49 PM




   3. Did the trial court's increasing of the Defendant's sentence, without citing any new
       objective evidence of record, violate the Defendant's Due Process rights under the
       United States Constitution?
   4. Did the trial court's increasing of the Defendant's sentence, without citing any.illill:
       objective evidence of record, violate the decisions of both Balsavage v. Wetzel, 936 F.
       Supp. 2d 505, 2013 WL 1148398 at *9 (E.D. Pa., March 20,2013) and Balsavage v.
       Wetzel, 545 Fed. Appx. 151,2013 WL 6044291 (3d Cir. 2013)?
CONCISE STATEMENT, APR. 29, 2014.
                          Factual Summary and Procedural History
       The United States District Court for the Eastern District of Pennsylvania usefully
summarized the facts and procedural history relevant to the instant appeal:
               On May 23,2005, Balsavage pled guilty to eight counts of sexual abuse of
       children, in violation of 18 Pa. Cons. Stat. Ann. § 6312(d) .. Specifically,
       Balsavage admitted to knowingly possessing eight photographs of his girlfriend's
       son, who was approximately two years old, posing in the nude or partially nude.
       On September 13,2005, the Original Sentencing Judge sentenced Balsavage to a
       term of 9 to 23 months of incarceration on Count I, followed by a total of 7 years
       of probation for Counts II through VIII.
               On December 20, 2006, Balsavage completed his sentence on Count I and
       began serving his 7 year period of probation on Counts II through VIII. Shortly
       after his release, Balsavage violated his probation. On May 21, 2007, at the initial
       proceedings for his Gagnon II Hearing, Balsavage admitted to one violation of
       probation, for viewing pornography. The Gagnon Judge was a different judge
       than the Original Sentencing Judge.
               A few days later, on May 31, 2007, the Gagnon Judge conducted an
       extensive Gagnon sentencing hearing to determine the appropriate sentence for
       Balsavage in light of his probation violation. The Gagnon Judge heard the most
       damning testimony from Balsavage's probation officer, his cellmate, two sex
       offender therapists, and a sex offender treatment specialist. The Gagnon Judge
       relied upon a Treatment Summary that was prepared by the sex offender treatment
       specialist that summarized Balsavage's treatment while he was on probation. This
       Treatment Summary was discussed at length during the hearing, and the Gagnon
       Judge admitted it into evidence ..
               At the Gagnon sentencing hearing, the Gagnon Judge learned an
       abundance of information about Balsavage's sex offender treatment history, his
       mental disorders, and his capacity for rehabilitation. The Gagnon Judge learned
       that Balsavage admitted to: (1) victimizing twelve additional minors and provided
       intimate details of these victimizations; (2) ongoing struggles with pedophilia
       fantasies to which he sometimes masturbated, and a sexual interest in urophilia
       and coprophilia; (3) an addiction to marijuana and alcohol that began at age


                                                 2
                                                                       Circulated 11/21/2014 02:49 PM




twelve; and (4) fantasies about doing. something like the Amish schoolhouse
murders. Several witnesses relayed these admissions to the Gagnon Judge, and the
Treatment Summary explicitly detailed each of Balsavage's admissions. After.
learning this information, the Gagnon Judge concluded that Balsavage is "not
amenable to treatment."
         [I]n closing, the Commonwealth argued to the Gagnon Judge that the
testimony of the witnesses led to the conclusion "that [Balsavage] is at a high risk
of reoffending, that he is a danger to the community, and that at this time total
confinement is necessary .... " Based on the evidence presented of Balsavage's
ongoing deviant thoughts, which he continued to act upon, the Gagnon Judge
concluded: "[O]nly total confmement for a lengthy period of time will afford the
community at large any hope of real protection from [Balsavage's] predatory
behavior. And I believe that lengthy incarceration followed by lengthy
supervision is also necessary to make sure that Mr. Balsavage continues to
comply with treatment and to conform his behavior to societal norms." The
Gagnon Judge substantially increased Balsavage's original sentence of 9 to 23
months of imprisonment, followed by 7 years of probation, and sentenced
Balsavage to 3 Y2 to 7 years of imprisonment, followed by 42 years of probation.
The Gagnon Judge emphasized that this was a "very lengthy sentence. It may for
Mr. Balsavage end up being a life sentence, but at least until he's a very elderly
man." The Gagnon Judge justified this lengthy increase based on the need to
protect minor children, protect the community, and rehabilitate Balsavage to
prevent him from reoffending.
         Balsavage appealed and the Pennsylvania Superior Court, without
commenting on the propriety of the sentence, affirmed the sentence on March 12,
2008, 953 A.2d 593 (Pa.Super.2008). On August 4, 2008, Balsavage filed for
relief under the Post Conviction Relief Act ("PCRA"), 42 Pa. Const. Stat. Ann. §§
9541-46. In his PCRA petition, Balsavage alleged that he was denied his right of
allocution during the May 31, 2007 Gagnon sentencing hearing~ On April 17,
2009, the Gagnon Judge granted Balsavage's PCRA petition based solely on the
denial of the right to allocution and ordered a Gagnon resentencing hearing.
         On May 27, 2009, the Gagnon Judge held the Gagnon resentencing
hearing. While the Gagnon Judge acknowledged that he had reviewed an
amended presentence investigation report, the Gagnon Judge himself noted that
"[t]here's very little that-virtually nothing that's new or different from the time
of the prior sentencing .... Obviously, nothing has changed except Mr. Balsavage
has been incarcerated this entire period of time." At the beginning of the Gagnon
resentencing hearing, Balsavage addressed the court and stated that he took full
responsibility for his wrongs and was truly sorry for what he had done. Following
this statement, the Gagnon Judge proceeded to question Balsavage, who was not
under oath, about information that had been given to the Gagnon Judge at
Balsavage's original Gagnon sentencing hearing on May 31, 2007. Specifically,
the Gagnon Judge asked Balsavage questions about hi~ admissions to his sex
offender treatment specialist contained in the Treatment Summary and about the
allegation that Balsavage had fantasies about the Amish schoolhouse murders. No
witnesses testified at the Gagnon resentencing hearing, no testimony under oath

                                        3
                   (                                                      Circulated 11/21/2014 02:49 PM




was given, and no exhibits were considered. Moreover, no new, or newly
discovered, information was presented at the Gagnon resentencing hearing.
         At the conclusion of the Gagnon resentencing hearing, the Gagnon Judge
repeated what he had said at the original Gagnon sentencing hearing, that
Balsavage's probation violation merited "a very lengthy resentencing." As
justification for this lengthy sentence, the Gagnon Judge explicitly relied on "the
fact that you appealed every decision and sentence this Court ever imposed on
you." Among the other factors the Gagnon Judge considered were Balsavage's
history, his high risk of recidivism, his lack of remorse, and his inability to
comply with probation, all of whic~ led the Gagnon Judge to conclude that the
maximum sentence was "absolutely required to protect the most vulnerable
members of our community." The Gagnon Judge then sentenced Balsavage to 24
Yz to 49 years of imprisonment, a term of imprisonment that was seven times
longer than Balsavage received at the original Gagnon sentencing hearing. As
justification for this new "lengthy sentence" the Gagnon Judge told Balsavage: "It
is, obviously, this Court's intention to keep you in custody and away from any
minor children and to protect the members of the community for as long a period
of the time as is available to this Court."
         Because the Gagnon Judge resentenced Balsavage to a term outside the
guidelines adopted by the Pennsylvania Commission on Sentencing, the Gagnon
Judge had to "provide a contemporaneous written statement of the reason or
reasons for the deviation from the guidelines to the commission." In his § 9721(b)
statement, the Gagnon Judge explained that he resentenced Balsavage outside the
guidelines for "the protection of the public," to address the "gravity of the
offenses," and "the rehabilitative needs, or in this case the prospect of
rehabilitation, of the Defendant." The Gagnon Judge based his sentencing
decision on Balsavage's failure to comply with probation and the information he
had learned from the Treatment Summary; specifically, Balsavage's admissions
that he had twelve other victims and struggled with pedophilia fantasies to which
he sometimes masturbated, as well as the report's conclusion that Balsavage had a
high risk of recidivism. The Gagnon Judge concluded that Balsavage needed the
maximum period of incarceration in order to protect minors in the community. In
sum, the Gagnon Judge used the same facts .and justifications relied upon at the
original Gagnon sentencing hearing to increase Balsavage's period of
incarceration sevenfold.
         Balsavage filed a Post-Sentence Motion to Modify Sentence, which was
denied by the Gagnon Judge on June 15, 2009. Balsavage then appealed his
sentence. On May 13, 2010, 4 A.3d 191 (Pa. Super.20 10), the Pennsylvania
Superior Court affirmed Balsavage's judgment of sentence without addressing
Balsavage's claim that his sentence violated his due process rights as articulated in
North Carolina v. Pearce, 395 U.S. 711, 89S.Ct. 2072, 23 L.Ed.2d 656 (1969).
Balsavage filed a Petition for Allowance of Appeal. On September 27,2010,608
Pa. 614, 8 A.3d 340 (2010), the Supreme Court of Pennsylvania denied his
Petition for Allowance of Appeal.



                                         4
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Balsavage v. Wetzel, 936 F. Supp. 2d 505,508-11 (E.D. Pa. 2013) (citations omitted), affd in
part, vacated in part, remanded, 545 F. App'x 151 (3d Cir. 2013).
          Thereafter, Appellant filed a petition for a writ of habeas corpus under 28 U.S,C. § 2254
in the United States District Court for the Eastern District of Pennsylvania. Appellant argued that
his sentence was the product of judicial vindictiveness, therefore violating his due process rights
under North Carolina v. Pearce, 395 U.S. 711 (1969). The District Court agreed, and it
conditionally granted Appellant's petition. The Court ordered that a writ of habeas corpus would
issue unless Appellant was resentenced within 120 days to his original term of imprisonment-
3.5 to 7 years. !d. at   519~

          The District Court reasoned that Appellant "has objectively proven that the Gagnon
Judge's sole reason for increasing his sentence was to penalize him for exercising a guaranteed
legal right. Thus, he has proven actual vindictiveness and established that his increased sentence
violates due process." Id. at 518. The Court also wrote that Appellant could have also established
a due process violation without the showing of actual vindictiveness; though no new objective
evidence was presented on the record, the Gagnon Judge increased Appellant's sentence
sevenfold after his successful appeal. Id.
          The Berks County District Attorney appealed the District Court's decision, and the Third
Circuit conducted a plenary review of Appellant's petition. The Court agreed that Appellant had
met his evidentiary burden and that his current sentence was the product of judicial
vindictiveness. Balsavage v. Wetzel, 545 F. App'x 151, 156 (3d Cir. 2013). The District Court's
remedy, however, was found to violate principles of federalism: "Because it is possible that
[Appellant] could be resentenced above his original sentence in a manner that comports with due
process, we conclude that imposing a cap on [Appellant's] new sentence would impermissibly
limit the state court's exercise of sentencing discretion and exceed the federal court's authority to
act on the body of a habeas petitioner." Id. The Court also noted its applicable precedent
"describing the relief permissible under § 2254 provides that a habeas court should not interfere
with the state criminal process more than is necessary to ensure compliance with constitutiol!al
law." Id. at n.7 (citing McKeever v. Warden SCI-Graterford, 486 F.3d 81, 85 (3d Cir. 2007);
Dickerson v. Vaughn, 90 F.3d 87, 92 (3d Cir. 1996); Barry v. Brower, 864 F.2d 294,301 (3d Cir.
1988)).



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        Subsequent to these federal decisions, the original Gagnon Judge recused himself, and
Appellant's case was reassigned to this Court. We held a sentencing hearing on January 23,
2014. The hearing included a lengthy discussion regarding which evidence this Court was
entitled to consider in imposing its sentence. See NOTES OF TESTIMONY ("N.T."), January 23,
2014 at 5-13. In fashioning a sentence, we. took into account the .various documents connected to
this case, including transcripts of the three proceedings, orders of the courts, and the
miscellaneous judicial opinions. Id at 15. We also noted the underlying circumstances of
Appellant's original case:
       There were, of course, a number of things that are very unusual about this case,
       predominantly, of course, the procedural posture and the tortured path it has taken
       to getting here today. But it was also very unusual in that the charge that the
       Defendant faces, ordinarily, in the run-of-the-mill case, consists of photographic
       images that people acquire over the Internet, sometimes by accessing sites, other
       times by directly receiving them from someone, whereas in this case, the images
       that were the subject of the 8 counts against the Defendant were taken by the
       Defendant himself of this very young child.
Id at 13-14. Based on these factors, we imposed an aggregate sentence of fifty-four (54) months
to twenty-four (24) years of incarceration, followed by seven (7) years' probation.
                                             Discussion
       Appellant makes several related claims challenging the propriety of the sentence imposed
by this Court. First, Appellant contends that we erred by increasing Defendant's sentence and not
overcoming or correcting the judicial vindictiveness that the trial court-by way of a different
judge-earlier exhibited in this case. CONCISE STATEMENT at ~1. Second, Appellant also
contends that our increasing of Defendant's sentence was a form ofpunishrnent for Defendant's
previous exercising his right to allocution. Id at ~2. Third, Appellant contends that t~is Court, by
increasing Defendant's sentence without citing any new objective evidence of record, violated
Defendant's Due Process rights afforded by the United States Constitution. Id at ~3. Finally,
Appellant contends that this Court's increasing of Defendant's sentence, without citing any new
objective evidence of record, violated the decisions of both Balsavage v. Wetzel, 936 F. Supp. 2d
505 (E.D. Pa. 2013) and Balsavage v. Wetzel, 545 Fed. Appx. 151 (3d Cir. 2013). Id at ~4.
       The starting point for all these claims is the United States Supreme Court's decision in
North Carolina v. Pearce, 395 U.S. 711 (1969). Pearce held that due process "requires that
vindictiveness against a defendant for having successfully attacked his first conviction must play


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no part in the sentence he receives after a new trial." Id. at 726. To ensure the absence of
vindictiveness, a judge imposing a more severe sentence after a new trial must affinnatively state
"the reasons for his doing." Id. The Court subsequently refined the Pearce standard:
       The presumption of vindictiveness "may be overcome only by objective
       infonnation in the record justifying the increased sentence," Goodwin, 457 U.S. at
       374, 102 S.Ct. 2485, that sheds "new light upon the defendant's life, health,
       habits, conduct, and mental and moral propensities." Pearce, 395 U.S. at 723, 89
       S.Ct. 2072. This infonnation includes both "identifiable conduct on the part of the
       defendant occurring after the time of the original sentencing proceeding," id. at
       726, 89 S.Ct. 2072, and newly discovered infonnation about conduct that
       occurred before the original sentencing that objectively supports an increased
       sentence. See Texas v. McCullough, 475 U.S. 134, 141, 106 S.Ct. 976, 89 L.Ed.2d
       104 (1986).
Balsavage, 545 F. App'x at 154-55. Accordingly, the main goal ofthe applicable precedents is to
avoid judicial vindictiveness. Evident vindictiveness may be remedied by the objective
consideration of new evidence.
       The posture of this case presents a challenge because this Court only became involved at
Appellant's most recent sentencing. Our separation from the initial proceedings necessarily
affects the analysis of due process and judicial vindictiveness. The Supreme Court has
acknowledged this reality in the context of retrials. Texas v. McCullough involved a situation in
which sentences had been imposed by multiple judges:
       In such circumstances, a sentence "increase" cannot truly be said to have taken
       place. In Colten v. Kentucky, . . . , which bears directly on this case, we
       recognized that when different sentencers are involved, "[i]t may often be that the
       [second sentencer] will impose a punishment more severe than that received from
       the [first]. But it no more follows that such asentence is a vindictive penalty for
       seeking a [new] trial than that the [first sentencer] imposed a lenient penalty." Id.,
       407 U.S., at 117, 92 S.Ct., at 1960. Here, the second sentencer provides an on-the-
       record, wholly logical, nonvindictive reason for the sentence. We read Pearce to
       require no more particularly since trial judges must be accorded broad discretion
       in sentencing, see Wasman, supra, 468 U.S., at 563-564, 104 S.Ct., at 3220-
       3221.
475 U.S. 134, 140 (1986). The Court's analysis in McCullough "reflects its recognition that
where the sentencer is not the same in the two proceedings, the sentencer imposing the second
sentence has 'no personal stake in the prior conviction and no motivation to engage in self-
                         :- ..

vindication[,]' rendering the threat of vindictiveness far more speculative than real."
Commonwealth v. Tapp, 997 A.2d 1201, 1204 (Pa. Super. 2010) (citing McCullough, 475 U.S. at


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139 (citations omitted)). Though McCullough and Colten concerned retrials, they both confront
the reality of multiple judges imposing sentence in the same case. In such situations, the second
judge generally should retain the broad sentencing discretion that he would ordinarily be
afforded.
       Critically here, the Third Circuit explicitly provided that Appellant "could be resentenced
above his original sentence in a manner that comports with due process." This contravenes
Appellant's apparent stance that this Court was obligated to merely re-impose the sentence from
his first Gagnon hearing. Concerning that initial hearing, the Third Circuit noted, "the only
change between the original sentencing and the resentencing was that [Appellant's] responses to
the sentencing judge's queries corroborated some of the facts on which the Gagnon court relied
in imposing the original sentence." Balsavage, 545 F. App'x at 155. Appellant's most recent
sentencing hearing remedied this problem. We expressly considered the unusual and troubling
circumstances of the underlying case, namely that the photographs in question had been taken by
Appellant himself. This evidence was not considered at Appellant's initial Gagnon hearing.
Before imposing sentence at that hearing, the judge placed his rationale on the record:
               The Court really does not need nor do the parties really have to
       overcomplicate the situation. [Appellant], after serving ajail sentence on Count 1,
       was released on probation, specifically with probation conditions that he
       participate in treatment programs specifically including sex offender therapy as
       required by the supervising officer which was the Berks County Probation Office.
       He was out on probation for only several months. He was aware of the specific
       terms. He, by his own admission, violated the specific condition of his sex
       offender therapy treatment by viewing pornography while-I guess it was online.
       And that was by his own admission to both the treatment counselor, to the
       probation office, and to this Court at our last hearing.
               The sentencing guidelines and the structure of sentencing in this
       Commonwealth and basically in this country pursues two goals. First is the
       rehabilitation of the defendant, hopefully to give them the tools that they will need
       to prevent them from reoffending, becoming law abiding, productive citizens of
       this Commonwealth. The second goal is not second in order of importance; but,
       again, the sentencing guidelines and the sentencing scheme and the sentencing
       statute indicates that along with the goal of rehabilitation, the protection of the
       community is of paramount concern.
               [Appellant], even though he divulged information during his therapy about
       ongoing deviant thoughts, also indicated that he continued to act on those
       thoughts by masturbating to various deviant sexual fantasies that occurred while
       he was on probation; and this behavior was disclosed to the Berks Counseling



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        therapist. And this was ongoing from the time that he was actually being treated at
        Berks County Prison.

                This Court is committed to protecting minor children, and the Court is
        committed to protecting the community. [Appellant] through his ongoing deviant
        fantasies, acting out on them, and specifically violating the terms and conditions
        of his sex offender therapy, which was a Court Ordered condition .of his
        probation, believes that only total confinement for a lengthy period of time will
        afford the community at large any hope of any real protection from his predatory
        behavior. And I believe that lengthy incarceration followed by lengthy
        supervision is also necessary to make sure that [Appellant] continues to comply
        with treatment and to conform his behavior to societal norms.
                Accordingly, I would also note that the Berks County Probation Office
        and the County of Berks has offered everything that is available to this particular
        Defendant as far as treatment alternatives. A significant amount of time,
        resources, energy, and money have been spent on [Appellant] to no avail, and I
        believe that accordingly a state sentence is warranted. Hopefully through the State
        Department of Corrections and then through the State Department of Parole and
        Probation there'll be other services that may be available to [Appellant] that will
        give him the tools that he will need to finally be able to have his behavior
        conform with the law and with our community's expectations.
N.T., May 23,2005 at 69-72.
        The nature of the underlying charges was plainly unstated as a factor in the original
imposition of sentence. By considering such evidence, this Court entered new objective
information in the record to justify Appellant's increased sentence. As such, the sentence did not
evince any degree of vindictiveness; this Court was considering the case for the very first time,
and we were entitled to consider the nature of the underlying charges in the initial case. To
require otherwise would strip sentencing courts of all flexibility, restricting our ability to sensibly
analyze a case in its whole. Accordingly, we respectfully submit that our sentence exhibited no
vindictiveness or intent to punish Appellant for his allocution, and that the sentence comported
with due process and the edicts of the federal opinions in this case.


                                             Conclusion
       For all ofthe foregoing reasons, this Court requests that the instant appeal be DENIED
and the judgment of sentence AFFIRMED.




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