J-S28018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TYRONE ARMSTRONG

                            Appellant                No. 1963 EDA 2015


             Appeal from the Judgment of Sentence March 31, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006618-2011


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JUNE 01, 2016

        Tyrone Armstrong appeals from his judgment of sentence, entered in

the Court of Common Pleas of Delaware County.         Armstrong’s convictions

stem from his involvement in a tri-county drug distribution enterprise

headquartered in Coatesville, Chester County.        After careful review, we

affirm.

        On March 25, 2013, a jury convicted Armstrong of one count of

corrupt organizations,1 three counts of criminal conspiracy,2 one count of


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 911(b)(3).
2
    18 Pa.C.S. § 911(b)(4).
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dealing in proceeds of illegal activity,3 one count of criminal use of a

communication facility,4 and one count of possession with intent to deliver

(PWID).5      On May 6, 2013, Armstrong was sentenced by the Honorable

Patricia H. Jenkins to an aggregate term of 9-18 years’ imprisonment,6

which included a mandatory minimum sentence of 7-14 years in prison on

the basis of the weight of the drugs (cocaine) pursuant to 18 Pa.C.S. §

7508(a)(3).

         On May 16, 2013, Armstrong filed post-sentence motions that the trial

court denied. Armstrong filed a timely direct appeal. On appeal, our Court

affirmed Armstrong’s convictions, but vacated his judgment of sentence and

remanded for resentencing on the basis that the court imposed an illegal

____________________________________________


3
    18 Pa.C.S. § 5111(a)(3).
4
    18 Pa.C.S. § 7512.
5
    35 P.S. § 780-113(a)(30).
6
    Specifically, Armstrong was sentenced as follows:

        Count   1 - 24-48 months;
        Count   2 - 21-48 months (concurrent to count 1);
        Count   3 – 24-48 months (consecutive to counts 1 & 2);
        Count   5 – 21-42 months (concurrent to count 3);
        Count   6 – guilty with no further penalty;
        Count   7 – 12-24 months (concurrent to counts 1,2, 3 & 5); and
        Count   10 – 7-14 years (consecutive to counts 1, 2, 3, 5, & 7).

Counts 4, 9, 11 and 12 were withdrawn and Armstrong was found not guilty
on count 8.




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section 7508(a)(3) mandatory minimum sentence under the dictates of

Alleyne v. United States, 133 S. Ct. 2151 (2013).7 See Commonwealth

v. Armstrong, No. 1803 EDA 2013 (Pa. Super. filed Dec. 23, 2014).

         On March 31, 2015, the Honorable John P. Capuzzi, resentenced

Armstrong to an aggregate term of 6½-13 years’ imprisonment,8 with credit

for time served.       Armstrong filed a motion for reconsideration of sentence

that was denied. This timely appeal followed.

         On appeal, Armstrong presents the following issues for our review:

         (1)     Where a case is remanded for resentencing, can a
                 sentence be imposed by the resentencing court on any
                 count for which, on the date of resentencing, the
                 defendant had already served the maximum time that had
                 been imposed at the time of his original sentence?

         (2)     Where a case is remanded for resentencing by the
                 Superior Court because it deemed the imposition of a
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7
  In Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014), our
Court deemed section 7508(a)(3) unconstitutional based on the right
recognized by Alleyne. In Alleyne, our Supreme Court held that any fact
that increases the mandatory minimum sentence for a crime is an element
of the crime which must be found by the jury beyond a reasonable doubt.
8
    Specifically, Armstrong was resentenced as follows:

        Count   1 – 27-54 months;
        Count   2 – 18-36 months (concurrent to count 1);
        Count   3 – 27-54 months (consecutive to counts 1 & 2);
        Count   5 – 18-36 months (concurrent to count 3);
        Count   6 – guilty but no further penalty;
        Count   7 – 9-18 months (consecutive to counts 1,2,3, & 5); and
        Count   10 – 15-30 months (consecutive to counts 1, 2, 3, 5, & 7).




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              mandatory minimum sentence to be unlawful, and where
              the resentencing judge is not the same judge who imposed
              the original sentence, and where, at resentencing, no new
              facts are added to the record regarding the defendant, the
              crime, the impact of the crime or the original judge’s
              sentencing scheme, can the resentencing court impose a
              harsher sentence and one that does not properly reflect
              the elimination of the mandatory minimum sentence or the
              original court’s sentencing scheme of sentencing on all
              counts at the middle of the standard range of the
              sentencing guidelines and running all but two concurrent,
              by increasing the penalty on some counts and by running
              others consecutive?

       Armstrong first complains that the trial court improperly resentenced

him to 9-18 months’ imprisonment on his criminal use of a communication

facility charge where he had already completed serving the original 12-24

month sentence at the time of resentencing. As the Commonwealth points

out, Armstrong does not support his argument with any legal authority in his

appellate brief. Thus, we find this claim waived. See Pa.R.A.P. 2119(a).9

       Next, Armstrong complains that his sentence is illegal 10 where the

court, upon resentencing “impos[ed] a harsher sentence and one that does

____________________________________________


9
  However, even if we were to address the merits of the issue, we recognize
that the resentencing court gave Armstrong credit for time served.
Therefore, because Armstrong would be credited any time he had served on
his criminal use of a communication facility sentence, his claim is moot.
10
   Although Armstrong terms this issue as one of an illegal sentence, the
Commonwealth contends that the issue could be construed as a
discretionary aspect of sentence claim. If in fact it were, it would be waived
as Armstrong has failed to include a required Pa.R.A.P. 2119(f) statement.
See Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (1987). However,
since the claim raises legality issues, see Commonwealth v. Johnson, 860
A.2d 146 (Pa. Super. 2004), we will address its merits.



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not properly reflect the elimination of the mandatory minimum sentence or

the original court’s sentencing scheme of sentencing on all counts[.]”

Appellant’s Brief, at 14.

      When only one count of a sentence has been vacated on appeal, if

remanding for resentencing would upset the trial court’s sentencing scheme,

an appellate court can remand for resentencing on all bills of information.

Under such circumstances, no double jeopardy violation is implicated so long

as the aggregate sentence upon resentencing does not exceed the

defendant’s original aggregate sentence. Commonwealth v. Sutton, 583

A.2d 500 (Pa. Super. 1990).

      Instantly,   there    is    no   question   that   when    our   Court   vacated

Armstrong’s mandatory minimum sentence of 7-14 years’ incarceration, the

trial court’s sentencing scheme was upset.               Accordingly, the court was

required to vacate Armstrong’s entire sentence and resentence him on all

counts, provided that it did not exceed its original, aggregate sentence of 9-

18 years of imprisonment. Upon resentencing, the trial judge imposed an

aggregate sentence of 6½-13 years’ incarceration.               Therefore, no double

jeopardy violations were implicated. Sutton, supra.

      Moreover, the court did not impose an illegal sentence in choosing to

run   one   of   the   original    concurrent     sentences     (criminal   use   of    a

communication facility) in a consecutive fashion upon resentencing.                    As

Judge Capuzzi acknowledged:




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     [T]his Court did keep with the original sentencing scheme, which
     was to make sure the punishment was appropriate to the
     severity of the crime. In her well-reasoned opinion, [Judge
     Jenkins] outline[s] how severe [Armstrong’s] role was within the
     drug enterprise.    Her desire to fashion a sentence that fit
     [Armstrong’s] actions was made abundantly clear when the
     aggregate of [Armstrong’s] sentence was 9-18 years, running
     Corrupt Organizations and PWID consecutive[ly]. On remand,
     this Court recognized that intention and fashioned a sentence
     that was align[ed] with the sentencing judge’s overall intentions.

                                    *    *    *

     Simply because this Court selected to run certain sentences
     consecutive that were originally run concurrent does not
     automatically make the sentence harsher than the original.

Trial Court Opinion, 8/26/15, at 4-5. Here, not only was Armstrong’s overall

sentence reduced, but the court permissibly adjusted the sentences to

preserve the integrity of Judge Jenkins’ original sentence.             Compare

Commonwealth v. Grispino, 521 A.2d 950 (Pa. Super. 1987) (court

permissibly   increased   robbery   sentence      on   resentencing   where   total

sentence was substantially same as original sentence for all offenses;

increase effected to maintain original sentence) with Johnson, supra

(defendant’s sentence vacated as illegal where resentencing court lacked

record from original sentencing proceeding, doubled defendant’s initial

sentence by changing sentences from concurrent to consecutive, and gave

no legitimate reasons for imposing harsher sentence).

     Judgment of sentence affirmed.

     BOWES, J., joins the memorandum.

     PLATT, J., concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2016




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