J-S52005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BILLY WHITE                                :
                                               :
                       Appellant               :   No. 796 EDA 2018

            Appeal from the Judgment of Sentence January 26, 2018
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0002429-2012,
                            CP-46-CR-0002430-2012


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.:                              FILED DECEMBER 03, 2019

        Billy White appeals, pro se,1 from the judgment of sentence entered on

January 26, 2018, in the Court of Common Pleas of Montgomery County, after

remand, on the charges of possession of a controlled substance, possession

with intent to deliver, and possession of drug paraphernalia2 (Docket Number

2429-2012) and burglary, VUFA, criminal trespass, terroristic threats, and

paraphernalia3 (Docket Number 2430-2012). The terms of White’s current



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1 A Grazier hearing was held and White was given permission to represent
himself by order of November 8, 2018.

2   35 P.S. §§ 780-113(16), 780-113(30), and 780-113(32), respectively.

318 Pa.C.S. §§ 3502(c)(1), 6106(a)(1), 3503(a)(1)(i), 2706, and 35 P.S. §
780-113(32), respectively.
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sentence are unclear.4 In this timely appeal, White argues his new aggregate

sentence is illegal because the trial court took sentences that had been

running concurrently and made them consecutive, the trial court failed to

grant him credit for time served, the trial court erred in re-imposing costs and

fees, and he was improperly given probation sentences.        After a thorough

review of the submissions by the parties, relevant law, and the certified

record, we vacate the judgment of sentence and remand for resentencing.5

       A brief history of this matter provides needed context to understand the

current issues.     White was originally sentenced on two separate cases on

February 8, 2013. One was a drug case and the other, burglary. Having

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4 Although the trial court announced the aggregate sentence as 10 to 22 years’
incarceration, see N.T. Sentencing, 1/26/2018, at 19, the Commonwealth
asserts the actual sentence is 10 to 24 years’ incarceration. See Appellee’s
Brief, at 7, n. 1. However, as announced in court and as is written on the
sentencing forms, it appears White received a 12.5-34 year term of
incarceration. Given our resolution of this matter, the actual maximum date
is immaterial.

5All interested parties, White, the Commonwealth and the resentencing court,
agree that this matter requires resentencing, although all three provide
different reasoning. White posits the resentencing court illegally made
previously concurrent sentences consecutive. The Commonwealth asserts the
resentencing court imposed an illegal sentence when it issued a lengthened
sentence without providing justification. The resentencing court claims it
improperly sentenced White to separate sentences on charges that legally
merged. Regardless of the reasons asserted, White received a greater
sentence than was originally imposed. Our review of the certified record
reveals conflicts between notes of testimony for sentencing and written
sentencing sheets (which will be described, infra) that makes it virtually
impossible for this Court to accurately review this matter.




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reviewed the original notes of testimony from the February 8, 2013,

sentencing hearing, it is apparent the 10-20 year aggregate sentence the trial

court imposed was meant to represent an overall sentencing scheme.6 On

direct appeal of the drug case (Docket Number 2429-2012), a panel of our

court identified an illegal sentence regarding the possession with intent to

deliver and simple possession charges.           Simple possession should have

merged; however, since those sentences ran concurrently, vacating the

simple possession sentence did not upset the trial court’s sentencing scheme.

Hence, the case was not remanded for resentencing. Additionally, White was

afforded no relief on the direct appeal of the burglary case (Docket Number

2430-2012).

       White then filed PCRA petitions for both cases, and, on appeal, this

Court, sua sponte, granted sentencing relief in both due to Alleyne7 issues.8

Both cases had imposed mandatory minimum sentences without the jury

having determined the facts upon which the mandatory sentences were based.

White was resentenced on January 26, 2018, to the aggregate term of

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6 The fact that both sentences together represent a sentencing scheme is
important to this matter.

7 Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013).

8  Commonwealth v. White, 3255 EDA 2016, filed 12/19/2017
(memorandum) and Commonwealth v. White, 3130 EDA 2016, filed
12/26/2017 (memorandum).



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incarceration noted above.        Additionally, the court imposed costs and fees

associated with sentencing, as well as adding probationary tails to the

incarceration sentences. White filed the instant appeal.9

       The entire sentencing scheme, from original sentence to the current

sentence, is perplexing. Accordingly, we will set forth the specifics of each.

This information is taken from notes of testimony from both sentencing

hearings, sentencing forms from 2013 and 2018, and the Montgomery County

Dockets.

       In 2013, White was sentenced as follows:

       1) At Docket Number 2429-2012 –

                 5-10 years – Possession with intent to deliver
                 1-3 years - Possession (concurrent to PWID)

       Resulting in an aggregate sentence of 5-10 years’ incarceration.

       2) At Docket Number 2430-2012 –

                 5-10 years – Burglary
                 3-7 years – VUFA (concurrent to PWID at 2429-2012)
                 1-7 years – Trespass (concurrent to PWID at 2429-2012)
                 1-5 years – Terroristic Threats (concurrent to PWID at 2429-
                  2012)

       Resulting in an aggregate sentence of 5-10 years’ incarceration.




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9 A single notice of appeal was filed for both docket numbers. However, the
appeal was filed prior to our Supreme Court’s decision in Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), that requires a separate notice of appeal
for every docket number affected by the order in question.


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       At the sentencing hearing, the trial court announced the sentence for

Docket Number 2430-2012 would run consecutive to the sentence for Docket

Number 2429-2012, resulting in a total sentence imposed on February 8,

2013, of 10-20 years’ incarceration.             However, the sentencing forms

submitted indicated the sentences for the two docket numbers would run

concurrently with each other, thereby resulting in a total sentence of 5-10

years’ incarceration.10

       In 2018, after the remand to address the mandatory minimum sentence

issues, the trial court resentenced White as follows:

       1) At Docket Number 2429-2012 –

                 2.5–10 years – PWID
                 .5 (6 months)–2 years – Possession (consecutive to
                  PWID and consecutive to 2430-2012)

       Resulting in an aggregate sentence of 3-12 years’ incarceration.

       2) At Docket Number 2430-2012 –

               5-10 years – Burglary
               3.5-7 years – VUFA (consecutive to Burglary)
              Merger – Trespass
               1-5 years – Terroristic threats (consecutive to VUFA)

       Resulting in an aggregate sentence of 9.5-22 years’ incarceration.

       The notes of testimony from the resentencing hearing and the docket

sheet for Docket Number 2429-2014 indicate the aggregate sentence is to run


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10 We have not reviewed the entire certified record to determine if this
discrepancy was ever clarified. Given our resolution of this matter, we will
leave it to the resentencing court upon remand to reconcile this issue.

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consecutive to the aggregate sentence at Docket Number 2430-2012. This

appears to result in a total sentence of both dockets of 12.5-34 years’

incarceration.

       As noted above, the trial court, at the time of resentencing on January

26, 2018, announced the aggregate sentence was 10-22 years.                   The

Commonwealth believes the actual sentence is 10-24 years. As demonstrated

above, we have calculated the possibility of a 12.5-34 year term of

incarceration.     Whatever the actual sentence, it is clearly more than the

original 2013 sentence of either 5-10 years or 10-20 years.

       The rules regarding an appeal of resentencing are not entirely clear,11

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

banc) is the most recent pronouncement from this Court.

       When a due process violation is raised regarding resentencing,
       this court must satisfy itself that an increase in a sentence is not
       the result of judicial vindictiveness. See Commonwealth v.
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11 There is some confusion whether a due process challenge to an increased
aggregate sentence/vindictive sentencing is a challenge to the legality of the
sentence or discretionary aspects of the sentence. (See Commonwealth v.
Walker, 568 A.2d 201 (Pa. Super. 1989) and Commonwealth v. Johnson,
860 A.2d 146 (Pa. Super. 2004) legality of sentence, and Commonwealth v.
Robinson, 931 A.2d 15 (Pa. Super. 2007) (en banc) disapproving of Walker
and Johnson, but not overruling those cases.)            A challenge to the
discretionary aspect of sentence requires the appellant to include a Pa.R.A.P.
2119(f) statement of the reasons why the challenge raises a substantial
question appropriate for appellate review. White did not include a Rule
2119(f) statement. However, the Commonwealth did not object to that
failure, and, in fact, agrees that the sentence must be amended. We will not
find waiver of the issue. In addition, because the sentencing court correctly
acknowledged it mistakenly failed to merge certain crimes, that is a
non-waivable legality of sentence issue.

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     Walker, 390 Pa.Super. 76, 568 A.2d 201 (1989), disapproved of
     on other grounds by Commonwealth v. Robinson, 931 A.3d 15,
     20-22 (Pa. Super. 2007) (en banc). In North Carolina v. Pearce,
     395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled
     on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct.
     2201, 104 L.ed.2d 865 1989), the United States Supreme Court
     remarked:

        Due process of law, then, requires that vindictiveness
        against a defendant for having successfully attacked his
        first conviction must play no part in the sentence he
        receives after a new trial. And since the fear of such
        vindictiveness may unconstitutionally deter a defendant's
        exercise of the right to appeal or collaterally attack his first
        conviction, due process also requires that a defendant be
        freed of apprehension of such a retaliatory motivation on
        the part of the sentencing judge.

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

     Pearce, 395 U.S. at 725-26, 89 S.Ct. 2072, (footnote omitted)
     (emphasis added). Although Pearce dealt with an increased
     sentence following the grant of a new trial, we have held that
     Pearce’s rationale for providing reasons on the record applies
     also when the original sentence is vacated and a second sentence
     is imposed without an additional trial. See Commonwealth v.
     Greer, 382 Pa.Super. 127, 554 A.2d 980, 987 n.7 (1983) (noting
     that Pearce applies to harsher sentence imposed by trial court
     after trial court granted post-trial request for resentencing). Thus,
     under Pearce, whenever a trial court imposes upon a defendant
     a more severe sentence following resentencing, the reasons for
     such sentence must be made a part of the record. “Absent
     evidence [that] a sentencing increase is justified due to objective
     information concerning a defendant's case, the presumption of

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       vindictiveness cannot be rebutted.” Commonwealth v. Serrano,
       727 A.2d 1168, 1170 (Pa. Super. 1999).

Commonwealth v. Barnes, 167 A.3d 110, 123-24 (Pa. Super. 2017) (en

banc) (footnotes omitted) (emphasis in original).

       Barnes makes it apparent that White’s sentence imposed on January

26, 2018, whether the maximum sentence is 22 years, 24 years or 34 years,

is improper as the court imposed a lengthier sentence than originally imposed,

without providing any objective information supporting the sentencing

increase. Accordingly, we are compelled to vacate White’s January 26, 2018

sentence pursuant to Barnes.

       Furthermore, as noted previously, the trial court did not address White’s

claims regarding payment of fees and costs at resentencing. The court may

not re-impose the routine costs and fees incurred in resentencing when that

resentencing was occasioned by changes in the law or imposition of an illegal

sentence.     See Commonwealth v. Lehman, 201 A.3d 1279 (Pa. Super.

2017).12 We see nothing in the prior decisions of this Court in this matter, to

suggest fees and costs were vacated; the cases were simply remanded for

resentencing pursuant to the dictates of Alleyne. Therefore, any duplicative


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12 Our Supreme Court has accepted Lehman for review, limited to the
question of whether charging the cost of expert testimony in a contested
resentencing is allowable. See Commonwealth v. Lehman, 215 A.3d 967
(Pa. 2019) (Table). Such costs do not appear to be at issue herein.




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fees and costs previously imposed are vacated. The court may not impose

such routine fees and costs upon the instant remand and resentencing.13

       The court also failed to address White’s claim he was not properly

credited with time served. We cannot determine the merits of this claim based

upon the certified record before us. Upon remand, the sentencing court will,

undoubtedly, take care to ensure White is properly credited for any and all

time served he is legally entitled to.

       White’s last unaddressed issue involved a claim the court improperly

issued concurrent one-year probationary sentences although he had already

completed said probation. We do not understand the substance of this claim

and cannot address it. However, because White is to be resentenced upon

remand, which may well include some aspect of probation, the court is

permitted to restructure White’s sentence, as it sees fit, to preserve the

integrity of the original sentence. See Commonwealth v. Fields, 197 A.3d

1217 (Pa. Super. 2018) (en banc).

       Finally, at resentencing, the court shall clarify the contradictions found

in the certified record concerning the original sentences issued in 2013.

Specifically, the contradictions noted above regarding the aggregate sentence

as announced in open court and as found in the written 2013 sentencing



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13If the certified record is incomplete and the original costs and fees were
vacated, the sentencing court may re-impose that which it was originally
entitled.

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forms. This is necessary as the original sentence provides the baseline for

comparison for subsequent resentencing.

      Judgment of sentence is vacated. This matter is remanded for action

consistent with this decision and for resentencing. Jurisdiction relinquished.

      Judge Kunselman joins this memorandum.

      Judge McLaughlin concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/19




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