J-S57010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SAMUEL KEMP                                :
                                               :
                       Appellant               :   No. 2618 EDA 2017

               Appeal from the Judgment of Sentence July 6, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013505-2014


BEFORE:      PANELLA, J., PLATT, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, J.                           FILED DECEMBER 14, 2018

        Samuel Kemp appeals from the judgment of sentence entered in the

Philadelphia County Court of Common Pleas. Kemp alleges the trial court

abused its discretion by imposing on remand the same total aggregate term

of imprisonment as was imposed during his initial sentencing hearing. We

affirm.

        On October 8, 2011, while driving under the influence of narcotics, Kemp

hit a man with his car. Kemp was arrested and charged with various offenses

arising from this incident. Following a bench trial, the trial court convicted

Kemp of aggravated assault, possessing an instrument of crime (“PIC”),

simple assault, two counts of recklessly endangering another person,


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
    Retired Senior Judge assigned to the Superior Court.
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aggravated assault by vehicle while driving under the influence (“aggravated

assault-DUI”), accidents involving death or personal injury while not properly

licensed, driving under the influence–general impairment (“DUI”), three

counts of DUI–controlled substance, and driving without a license. The trial

court sentenced Kemp to 9 to 18 years’ imprisonment, followed by 2 years’

probation, for aggravated assault, a consecutive term of 7 years’ probation

for aggravated assault-DUI, and a concurrent term of 3 months to 5 years’

imprisonment for DUI-combined impairment. Kemp received no further

penalties on his additional convictions.

       Kemp appealed his sentence, alleging, in part, that the Commonwealth

presented insufficient evidence to support his aggravated assault conviction.

A panel of this Court agreed, reversed Kemp’s conviction for aggravated

assault, vacated his judgment of sentence, and remanded to the trial court for

resentencing on the remaining convictions.1 See Commonwealth v. Kemp,

No. 873 EDA 2016 at 19-20 (Pa. Super. filed Feb. 17, 2017) (unpublished

memorandum).

       At resentencing, the trial court sentenced Kemp to 5 to 10 years’

imprisonment for aggravated assault–DUI, 3.5 to 7 years’ imprisonment for

accidents involving death or personal injury while not properly licensed, and

6 to 12 months’ imprisonment for PIC, followed by 2 years’ probation. As the

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1  The Court also determined that Kemp’s sentence for DUI-combined
impairment should have merged with his sentence for aggravated assault-DUI
for sentencing purposes. See id.

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trial court ordered Kemp to serve these sentences consecutively, the

aggregate sentence of 9–18 years’ imprisonment mirrored the aggregate

sentence of imprisonment imposed at Kemp’s first sentencing hearing.2 This

timely appeal follows.

       On appeal, Kemp contends the trial court abused its discretion in

imposing more severe sentences for aggravated assault–DUI, accidents

involving death or personal injury while not properly licensed, and PIC than it

did during his original sentencing. Kemp argues that the increase in sentence

could only have been caused by judicial vindictiveness, as he received the

same sentence on remand despite the reversal of his most serious conviction.

Ultimately, Kemp asserts that this led to an unduly harsh and excessive

sentence.

       Kemp concedes his argument raises a challenge to the discretionary

aspects of his sentence. See Appellant’s Brief, at 25. “A challenge to the

discretionary aspects of a sentence must be considered a petition for

permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation

omitted). “An appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction by satisfying a four-part test.”


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2 However, Kemp’s aggregate sentence on resentencing included only 2 years’
probation—7 less than the probationary sentence Kemp received during his
initial sentencing.


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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted). This test requires us 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; brackets in original).

       Here, Kemp has met the first three parts of the test by filing a timely

notice of appeal, preserving his challenge in a post-sentence motion, and

including the requisite Rule 2119(f) statement in his brief. Thus, we look to

his Rule 2119(f) statement to determine whether he has met the fourth part

of this test by raising a substantial question for our review.

       To raise a substantial question, Kemp must show that his “sentence

violates either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)

(citation omitted). Kemp contends that his sentence was a result of judicial

vindictiveness, as the trial court improperly considered his previous sentence

in fashioning his sentence on remand.3 We have previously found that this

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3 Kemp’s 2119(f) statement spanned 15 pages and did not provide clear
arguments as to what he believed raised substantial questions for our review.



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assertion    raises   a   substantial     question   for   our   review.   See,   e.g.,

Commonwealth v. Tapp, 997 A.2d 1201, 1203 (Pa. Super. 2010) (finding

claims of judicial vindictiveness constitute substantial questions for review).

As such, we will address Kemp’s claim.

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

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. 2006) (citation

omitted).

       Kemp contends the imposition of the same sentence on remand as was

originally imposed was a result of judicial vindictiveness.

       Due process of law … 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 fear of such vindictiveness may unconstitutionally deter
       a defendant’s exercise of the right to appeal or collaterally attack
       his first conviction, due process also requires that a defendant be
       freed of apprehension of such a retaliatory motivation on the part
       of the sentencing judge.
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See Appellant’s Brief, at 25-40. Therefore, we have discerned Kemp’s
arguments to the best of our ability. To the extent Kemp intended to challenge
the consecutive nature of his sentences and/or the trial court’s failure to
adequately consider mitigating factors, we note that these claims do not even
raise a substantial question for our review. See Commonwealth v. Moury,
992 A.2d 162, 171-172 (noting the imposition of consecutive rather than
concurrent sentences only raises a substantial question in the most extreme
circumstances); Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
2013) (claim of inadequate consideration of mitigating factors does not raise
a substantial question for review).

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

North Carolina v. Pearce, 395 U.S. 711, 725-726 (1969), overruled on other

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

      Our Court has held that “Pearce’s rationale for providing reasons on

the record applies also when the original sentence is vacated and a second

sentence is imposed without an additional trial.” Commonwealth v. Barnes,

167 A.3d 110, 123 (Pa. Super. 2017) (citation omitted). “Absent evidence

[that] a sentencing increase is justified due to objective information

concerning a defendant’s case, the presumption of vindictiveness cannot be

rebutted.” Commonwealth v. Serrano, 727 A.2d 1168, 1170 (Pa. Super.

1999).

      However, as recently noted by an en banc panel of our Court, this

presumption is rebutted where a trial court imposes higher sentences on

certain counts during resentencing to reach the same aggregate sentence as

previously imposed and preserve its sentencing scheme. See Barnes, 167

A.3d at 124 (noting, “a judge can duplicate the effect of the original sentencing

plan by adjusting the sentences on various counts so that the aggregate

punishment remains the same”). In reaching this conclusion, the Barnes


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Court analyzed our decision in a remarkably similar case, Commonwealth v.

McHale, 924 A.2d 664 (Pa. Super. 2007), overruled in part on other grounds

by Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007):

      In … McHale …, we upheld the trial court’s resentencing of the
      defendant when his conviction on the most serious charges, two
      counts of aggravated assault, previously had been reversed based
      on insufficient evidence. After remand, to maintain the same
      aggregate sentence as originally imposed, the trial court increased
      the overall sentence on the surviving counts. Noting that the
      aggregate sentence remained unchanged, we upheld the new
      sentence. In doing so, we noted:

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

Barnes, 167 A.3d at 124-125 (internal citations omitted; brackets in original).

      Consistent with Barnes and McHale, it is readily apparent that the trial

court increased Kemp’s sentence on aggravated assault-DUI, accident

involving death or personal injury while not properly licensed, and PIC not out

of vindictiveness, but instead in an attempt to preserve the integrity of its

original sentencing scheme by imposing the same aggregate sentence of

imprisonment. As a trial court’s desire to preserve its previous sentencing

scheme defeats the presumption of vindictiveness, and Kemp’s sentence was

not increased at resentencing, we do not find evidence that his sentence was




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a result of judicial vindictiveness. Therefore, we do not find that the trial court

abused its discretion.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/18




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