J-S48034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
             v.                             :
                                            :
MICHAEL JOSEPH EVANICSKO,                   :
                                            :
                   Appellant                :          No. 1975 WDA 2015

           Appeal from the Judgment of Sentence November 6, 2015
              in the Court of Common Pleas of Somerset County,
              Criminal Division, No(s): CP-56-CR-0000792-2012

BEFORE: BOWES, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 31, 2016

        Michael Joseph Evanicsko (“Evanicsko”) appeals from the judgment of

sentence imposed upon resentencing. We affirm.

        In February 2013, Evanicsko pled guilty to attempt to acquire or obtain

a controlled substance by misrepresentation.1 In May 2014, the trial court

sentenced Evanicsko to serve four to eight years in prison.       Notably, the

court ordered this sentence to run concurrently with any other sentence that

Evanicsko was then serving.2 Evanicsko did not file a direct appeal.

        In February 2014, Evanicsko filed a pro se PCRA Petition, and later, an

Amended PCRA Petition.         Evanicsko alleged, inter alia, that he had been

advised by the Pennsylvania Department of Corrections that, pursuant to 61

1
    18 Pa.C.S.A. § 901(a); 35 P.S. § 780-113(a)(12).
2
  At the time of sentencing, Evanicsko was serving a sentence, imposed in
March 2009 in Cambria County, of one to seven years in prison. Importantly
to the instant appeal, this sentence concerned the revocation of his parole
from a state correctional institution.
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Pa.C.S.A. § 6138 (governing convicted parole violators),3 it could not honor

the trial court’s Order that his sentence run concurrently with any other

sentence, since the prior sentence that he was then serving stemmed from

the revocation of his state parole.     The PCRA court conceded that section

6138 mandates that Evanicsko must serve his new sentence consecutively to

his parole revocation sentence.        Nevertheless, the PCRA court rejected

Evanicsko’s claim of an illegal sentence, essentially determining that the

sentencing court’s stated desire for the sentences to run concurrently is of

no significance given the mandate of section 6138(a)(5)(i). On this basis,

the PCRA court denied Evanicsko’s PCRA Petition.




3
    Section 6138 provides, in relevant part, as follows:

      (1) A parolee under the jurisdiction of the board released from a
      correctional facility who, during the period of parole or while
      delinquent on parole, commits a crime punishable by imprisonment,
      for which the parolee is convicted or found guilty by a judge or jury
      or to which the parolee pleads guilty or nolo contendere at any time
      thereafter in a court of record, may[,] at the discretion of the
      board[,] be recommitted as a parole violator.

                                    ***

      (5) If a new sentence is imposed on the parolee, the service of the
      balance of the term originally imposed by a Pennsylvania court shall
      precede the commencement of the new term imposed in the
      following cases:

         (i) If a person is paroled from a State correctional institution
         and the new sentence imposed on the person is to be served in
         the State correctional institution.

61 Pa.C.S.A. § 6138(a)(1), (a)(5)(i) (emphasis added).


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      Evanicsko appealed the denial of his PCRA Petition. This Court vacated

the PCRA court’s Order, and remanded with instructions to make a factual

finding.   We stated that, under the plain language of section 6138, “if

[Evanicsko] was paroled from a state correctional institution and his new

sentence must be served in a state correctional institution, then the portion

of his new sentence requiring him to serve his new sentence concurrently

with his state parole sentence is illegal.”   Commonwealth v. Evanicsko,

125 A.3d 454 (Pa. Super. 2015) (unpublished memorandum at 12); see

also Commonwealth v. Berry, 877 A.2d 479, 483 (Pa. Super. 2005) (en

banc) (stating that “a sentence is illegal where a statute bars the court from

imposing that sentence.”).

      On remand, the trial court (1) confirmed that Evanicsko was, in fact,

serving a state parole revocation sentence at the time of sentencing in the

instant case; and (2) conceded that the sentencing court thus erred by not

sentencing Evanicsko to a consecutive sentence under section 6138(a)(5)(i).

Accordingly, on November 6, 2015, Evanicsko was sentenced to three to

eight years in prison, to      be    served   consecutively to   the   sentence




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he was then serving.4         On that same date, the trial court issued a

Memorandum explaining its reasoning.         Evanicsko timely filed a Notice of

Appeal.     In response, the trial court ordered Evanicsko to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.           Evanicsko

timely filed a Concise Statement. Thereafter, the court issued a Statement

pursuant to Rule 1925(a), relying upon the rationale set forth in its

November 6, 2015 Memorandum in rejecting Evanicsko’s allegations of

error.

         Evanicsko now presents the following questions for our review:

         1. Whether changing [Evanicsko’s] sentence from concurrent to
            consecutive resulted in an increase in his aggregate
            sentence?

         2. Whether the court below failed to rebut the presumption of
            vindictiveness that arose when it increased [Evanicsko’s]
            aggregate sentence?

         3. Whether it was reversible error for the court below to increase
            [Evanicsko’s] aggregate sentence[,] absent some new,
            legitimate sentencing concern?

         4. Whether the Superior Court should amend [Evanicsko’s]
            sentence directly rather than remand the case to the trial
            court again for resentencing?




4
  The minimum sentence the court imposed on resentencing was one year
less than the sentence that Evanicsko had initially received. However, the
maximum aggregate sentence (including Evanicsko’s “hanging” parole
revocation time) increased, due to the consecutive nature of the sentence,
from 8 years to 15 years in prison.


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Brief for Appellant at 4.5   We will address Evanicsko’s claims together, as

they are related.

      Evanicsko argues that the trial court, on resentencing, improperly

attempted to remedy its prior error at the original sentencing hearing “by

simply     changing   [Evanicsko’s]    original[,]   concurrent   sentence   to   a

consecutive one[,] without considering how this change would dramatically

increase the length of the aggregate sentence.” Id. at 9; see also id. at 8

(stating that the original, “concurrent sentence ordered by the court – if not

prohibited by statute – would have increased the maximum [aggregate]

term of [Evanicsko’s] imprisonment no more than 12 months.”). Evanicsko

contends that “under North Carolina v. Pearce[, 395 U.S. 711 (1969),]

and its progeny, the sentencing court may not increase the aggregate

sentence upon resentencing absent some new, legitimate sentencing

concern.    The court [in the instant case] offered no lawful justification for

increasing [Evanicsko’s] sentence on resentencing.”         Brief for Appellant at

11.

      This Court has explained the ruling in Pearce as follows:

           In Pearce, 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


5
  We observe that Evanicsko phrased these issues differently in his court-
ordered Pa.R.A.P. 1925(b) Concise Statement, stating them as a single
issue. Nevertheless, we will overlook this defect, and decline to find waiver.


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     Pearce, 395 U.S. at 725. Finding such motivation inimical to
     due process, the Court held specifically that:

         In order to assure the absence of such a motivation, …
         whenever a judge imposes a more severe sentence upon
         a defendant after a new trial,[6] 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 “[i]n sum, [Pearce] applied a presumption of
     vindictiveness, which may be overcome only by objective
     information in the record justifying the increased sentence.”
     U.S. v. Goodwin, 457 U.S. 368, 374, 102 S. Ct. 2485, 73 L. Ed.
     2d 74 (1982).

Commonwealth v. Tapp, 997 A.2d 1201, 1203-04 (Pa. Super. 2010)

(footnote added).

     In the instant case, Evanicsko argues that the trial court offered no

reasons at resentencing for the increased aggregate sentence to rebut the

presumption of vindictiveness, and the sentence thus runs afoul of Pearce.

See Brief for Appellant at 9-10; see also id. at 14 (wherein Evanicsko urges

this panel to vacate his allegedly illegal sentence and directly amend his

sentence in such a fashion that the new, maximum aggregate sentence does

not exceed the original aggregate sentence).


6
  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 case is remanded for resentencing to
correct an illegal sentence. See Commonwealth v. Hermankevich, 286
A.2d 644, 646 (Pa. Super. 1971).


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      Initially, we must address whether Evanicsko properly preserved his

claim for our review.   Specifically, we must determine whether the claim

implicates the legality of Evanicsko’s sentence (and is, therefore, non-

waivable7) or the discretionary aspects of the sentence.       This Court has

explained the difference between these two types of claims, insofar as issue

preservation is concerned, as follows:

      Criminal defendants do not have the automatic right to
      challenge the discretionary aspects of their sentence. Rather,
      they must seek permission. Pa.R.A.P. 2119(f)[.] If a defendant
      fails to include an issue in his Rule 2119(f) statement, and the
      Commonwealth objects, then the issue is waived and this Court
      may not review the claim. In contrast, a defendant need not
      include within his Rule 2119(f) statement any challenges to the
      legality of the sentence.

Commonwealth v. Robinson, 931 A.2d 15, 19 (Pa. Super. 2007) (en

banc) (case law citations and paragraph break omitted).

      In Robinson, the Court observed that “the term ‘illegal sentence’ is a

term of art that our Courts apply narrowly, to a relatively small class of

cases[,]” and “the mere fact that a rule or statute may govern or limit the

trial court’s exercise of discretion in sentencing does not necessarily convert

the claim into one involving the legality of the sentence.” Id. at 21 (citation

omitted).   The Robinson Court held that a claim of judicial vindictiveness

under Pearce is a challenge to the discretionary aspects of the sentence,




7
  See Commonwealth v. Milhomme, 35 A.3d 1219, 1221 (Pa. Super.
2011) (stating that a challenge to the legality of sentence is non-waivable).


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and not a non-waivable challenge to the legality of sentence.8           Id. at 22;

see also Tapp, 997 A.2d at 1202-03 (stating that “challenges to the length

of the sentence following retrial citing judicial vindictiveness implicate a

discretionary aspect of the sentencing process.”).

      Here, the Commonwealth argues that Evanicsko’s claim is a challenge

to the resentencing court’s discretion, and is waived based on Evanicsko’s

failure   to   include   a   Pa.R.A.P.   2119(f)   statement      in    his   brief.9

Commonwealth’s Brief at 2; see also Robinson, supra. To the contrary,

Evanicsko asserts that his claim implicates the legality of his sentence on

resentencing, pointing to the decision of a panel of this Court in

Commonwealth v. Johnson, 860 A.2d 146, 149 (Pa. Super. 2004) (stating

that “[a] claim that a court increased the punishment for a crime upon

resentencing    implicates   the   Due   Process   Clause    of   the   Fourteenth

Amendment as interpreted in … Pearce …, and is regarded as an attack on

the legality of the sentence.”). Brief for Appellant at 9.

      The en banc Court in Robinson expressly disapproved of the above-

mentioned holding in Johnson. See Robinson, 931 A.2d at 22; see also

8
  The Robinson Court stated that the appellant “is not arguing that the trial
court lacked the legal authority/jurisdiction to impose a sentence of that
length or type. Instead, [he] is essentially claiming that the court exercised
its discretion in a way that is harsh, unreasonable, and motivated by
impermissible factors such as personal animus or revenge. These are the
very hallmarks of a claim that implicates the discretionary aspects of a
sentence.” Robinson, 931 A.2d at 21.
9
  The Commonwealth objected to Evanicsko’s failure to include a Rule
2119(f) statement in his brief. Commonwealth’s Brief at 2.


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Commonwealth v. Jacobs, 900 A.2d 368, 377 n.9 (Pa. Super. 2006) (en

banc) (stating that this Court sitting en banc may overrule the decision of a

three-judge panel of this Court). Accordingly, Evanicsko waived his issues

on appeal, challenging the discretionary aspects of his sentence, by failing to

raise them in a Pa.R.A.P. 2119(f) statement. See Robinson, supra.10

      Nevertheless, even if Evanicsko’s issues were not waived, he is not

entitled to relief. The “presumption of vindictiveness,” discussed in Pearce

and its progeny, is inapplicable here, as the trial court was required, by

statute, to fashion a sentence on resentencing that ran consecutively to his

state parole sentence.    In other words, the trial court’s resentencing of

Evanicsko, which necessarily resulted in an increase of his aggregate

maximum sentence, was not a “vindictive” choice within the discretion of the

court; rather, it was the statutorily-mandated result.

      Judgment of sentence affirmed.




10
   Additionally, the Commonwealth correctly points out that Evanicsko did
not raise his claims at the resentencing hearing or in a post-sentence
motion. Commonwealth’s Brief at 2 (citing Commonwealth v. Foster, 960
A.2d 160, 163 (Pa. Super. 2008) (stating that “[c]laims relating to the
discretionary aspects of a sentence are waived if not raised either at
sentencing or in a post-sentence motion.”)). Accordingly, Evanicsko’s claims
are waived on this basis as well.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2016




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