J-S69018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER LEE GESSNER                    :
                                               :
                       Appellant               :   No. 821 MDA 2018

            Appeal from the Judgment of Sentence March 22, 2018
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0003249-2011,
                           CP-22-CR-0005329-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.:                          FILED NOVEMBER 20, 2018

       Christopher Lee Gessner appeals from the judgment of sentence,

entered in the Court of Common Pleas of Dauphin County, following his

convictions on two dockets for criminal attempt (homicide), aggravated

assault, arson and endangering another person (docket #3249 CR 2011); and

criminal solicitation to commit murder (docket #5329 CR 2014). On appeal,

Gessner claims that his aggregate re-sentence of 28-56 years’ incarceration,

plus two years of probation, is excessive and vindictive. Counsel has also filed

a petition to withdraw, pursuant to Anders/McClendon.1                After careful

review, we affirm and grant counsel’s petition to withdraw.
____________________________________________


1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981). On August 15, 2018, counsel filed
with this Court her initial Anders/McClendon petition seeking to withdraw on
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       The trial court aptly summarized the relevant facts underlying this

criminal case as follows:

       Gessner was accused of setting his trailer on fire with his girlfriend
       and her dogs inside. He poured gasoline all over the house and
       splashed it on her. She had to run through fire to escape. The
       victim was severely burned and the dogs perished in the fire. The
       victim described the manner in which he started the fire - trapping
       her in the trailer without a means of escape other than running
       through fire. [Gessner] made admissions at the scene that he had
       started the fire with gasoline. Arson investigators were able to
       determine that the fire was started in a manner consistent with
       the victim’s testimony.

       While in prison awaiting trial, [Gessner] solicited a former cellmate
       to kill the victim in order to make the charges go away. The
       informant testified that Gessner approached him while they were
       incarcerated together to discuss killing the victim. There was a
       two[-]year period of conversations surrounding this, some of
       which were recorded. Payment was made to the informant.

Post-Sentence Motion Memorandum Opinion, 1/9/17, at 2 (citations to notes

of testimony omitted).2        In addition to the charges on docket #3249, on

August 5, 2015, Gessner was also charged with criminal solicitation to commit

murder on docket #5329; the cases were consolidated for trial. Following a


____________________________________________


appeal. On August 20, 2018, our court denied counsel’s request, noting that
counsel had not complied with the withdrawal requirements. On September
19, 2018, Gessner filed a pro se response to counsel’s request to withdraw.
On October 19, 2018, counsel filed the instant amended petition to withdraw,
which substantially complies with the requirements set forth in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

2 Although not relevant to this appeal, Gessner filed a pre-trial motion to
suppress claiming that he did not knowingly and intelligently waive his
Miranda rights when he was interviewed by police in connection with the
solicitation charge. Following a hearing, the court denied the motion.


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three-day jury trial held in August 2015, Gessner was found guilty at both

dockets on the above-cited charges. Gessner was sentenced on October 14,

2015, to an aggregate term of imprisonment of 240-480 months on docket

#3249 and a consecutive term of imprisonment of 96 months to 192 months

on docket #5329, with two years of probation.

       Gessner filed timely post-trial motions, which were denied on January

29, 2016. Gessner filed an appeal and our Court affirmed Gessner’s judgment

of sentence.     See Commonwealth v. Gessner, No. 322 MDA 2016 (filed

Feb. 23, 2017).      Gessner filed a timely Post Conviction Relief Act (PCRA)3

petition.   Following an evidentiary hearing, the court resentenced Gessner,

on March 22, 2018, to an aggregate sentence of 35-50 years’ incarceration,

with a consecutive term of two years of probation. On March 27, 2018, the

court issued an amended sentencing order correcting the sentence to reflect

an aggregate sentence of 28-56 years of incarceration, with a consecutive 2-

year probationary tail.      The same day that Gessner received the amended

sentence, he filed a post-sentence motion claiming that his sentence was

excessive and vindictive. Gessner later filed an amended motion making the

same claims with regard to his sentence. On April 26, 2018, the court denied

Gessner’s amended post-sentence motions.

       Counsel filed a timely notice of appeal and served on the trial judge a

statement of intent to file an Anders/McClendon brief in lieu of filing a

____________________________________________


3   See 42 Pa.C.S. §§ 9541-9546.

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Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 1925(c)(4). On appeal, Gessner

presents one issue for our consideration: Whether the sentence received was

excessive and vindictive?

     Gessner’s issue implicates the discretionary aspect of his sentence. In

order to reach the merits of a discretionary aspects claim, we must engage in

a four-part analysis to determine:

           (1) whether the appeal is timely; (2) whether [the
           appellant] preserved his [or her] issue; (3) whether [the
           appellant's] brief includes a concise statement of the
           reasons relied upon for allowance of appeal with respect to
           the discretionary aspects of sentence; and (4) whether the
           concise statement raises a substantial question that the
           sentence is appropriate under the [S]entencing [C]ode.

Commonwealth v. Ali, 2018 PA Super 273, *38 (Pa. Super. 2018) (citations

omitted). Gessner has complied with the first three prongs of the test set

forth: he has filed a timely appeal; he has preserved his discretionary claims

in a post-sentence motion; and he has included a Pa.R.A.P. 2119(f) concise

statement in his brief. With regard to the fourth prong, we note that:

     The determination of what constitutes a substantial question must
     be evaluated on a case-by-case basis. A substantial question
     exists 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.


Id. at *39 (citations omitted). Based on these requirements, we conclude

that Gessner presents a substantial question.      See Commonwealth v.

Robinson, 931 A.2d 15 (Pa. Super. 2007) (en banc) (claim of vindictiveness

must be viewed as one implicating discretionary aspects of sentence). While

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a court’s exercise of discretion in imposing sentences consecutively does not

ordinarily raise a substantial question, Commonwealth v. Mastromarino, 2

A.3d 581 (Pa. Super. 2010), a defendant may raise a substantial question

where he receives consecutive sentences within the guideline ranges, if the

case involves circumstances where the application of the guidelines would be

clearly unreasonable, resulting in an excessive sentence. Commonwealth v.

Dodge, 77 A.3d 1263 (Pa. Super. 2013). See Commonwealth v. Caldwell,

117 A.3d 763 (Pa. Super. 2015) (defendant’s challenge to imposition of

consecutive sentences as unduly excessive, together with claim that court

failed to consider rehabilitative needs upon fashioning sentence, presents

substantial question). Thus, we grant Gessner’s petition for review and will

address the merits of his claim.

      Gessner claims that the court’s resentence of 28-56 years of

imprisonment, the same sentence that the trial court originally imposed, is

excessive because the court did not give any consideration to his rehabilitative

needs.   Moreover, Gessner alleges that his solicitation charge on docket

#5329 was part of a “crime spree” and, thus, his sentence on that charge

should have run concurrent to his other charges on docket #3249.

      When imposing sentence, the trial court is granted broad discretion, as

it is in the best position to determine the proper penalty for a particular offense

based upon an evaluation of the individual circumstances before it.

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2017).                 An abuse of

discretion is shown when the appellant establishes, by reference to the record,

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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. Raven, 97 A.3d at 1253.

      In Commonwealth v. Fries, 523 A.2d 1134 (Pa. Super. 1987), our

Court stated:

      A “transaction” is a crime or crimes which were committed by a
      defendant at a single time or in temporally continuous actions that
      are part of the same episode, event, or incident, or which are
      conspiracy and the object offense. “Spree” crimes are not part of
      the same transaction unless they occurred as continuous actions
      not separated in time by law abiding behavior.

Id. at 1136, citing Pa.C.Sent.2d, at 58. Additionally, it is a matter for judicial

determination as to whether those related crimes are so temporally

continuous, unseparated by law abiding behavior, as to constitute a

“transaction.” Id. at 1139.

      Gessner believes his solicitation of a prison inmate to kill his originally

intended victim was part of the same transaction and a continuous action of

his original criminal activity in setting the victim’s trailer on fire. Because of

this alleged “crime spree,” Gessner claims his sentences should have run

concurrently, not consecutively, to one another. We disagree.

      Here, Gessner attempted to kill the victim by setting fire to her trailer

in July 2011; he solicited his cellmate to kill the victim later, in May and June

2014. The fact that it was the same victim in both cases does not, by that

fact alone, make this a spree crime.        The crimes did not occur in one

continuous “spree” or episode; they were committed almost three years apart.


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Additionally, Gessner cannot articulate any justifiable reason why his

consecutive sentences are unreasonable.     Thus, we find this claim meritless.

      In Gessner’s second claim, that his sentence was vindictive, we note

that claims of vindictiveness ordinarily arise where a defendant has been

resentenced to a more severe sentence after successfully having his first

conviction overturned on appeal. See North Carolina v. Pearce, 396 U.S.

711 (1969). The prohibition against vindictiveness is designed to prevent

courts from punishing defendants for freely exercising their legal rights.

Commonwealth v. Speight, 854 A.3d 450, 455 (Pa. 2004). Thus, if the

court imposes a harsher sentence after a retrial, a presumption of

vindictiveness applies. Id. That presumption can be overcome by pointing to

“objective information in the record justifying the increased sentence.” Id.

(citation omitted).

      Here, not only did the trial court fail to impose a harsher sentence upon

resentencing, but the court also pointed to objective information in the record

justifying its sentence, stating:

      The heinous nature of the crimes is in large part why the sentence
      on the two dockets ran consecutive. Defendant was incarcerated
      awaiting trial on an attempted homicide when he solicited another
      inmate to kill the victim of the attempted homicide. While the
      general public appears to be safe from him[,] clearly the victim’s
      life has been terribly impacted by these events. She has been
      victimized twice over, once while she believed her attacker was
      safely behind bars. [Gessner’s] concerted efforts to commit yet
      another crime even while incarcerated on the first shows that
      rehabilitation is going to be a long and difficult road.




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Post-Sentence Motion Memorandum Opinion, 4/26/18, at 2. After a careful

review of the record and facts of the case, we find no vindictiveness in the

court’s resentence.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2018




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