Com. v. Robinson

• Decision Date: 02 August 2007
• Docket Number: No. 3361 EDA 2004.,3361 EDA 2004.
• Citation: 931 A.2d 15
• Parties: COMMONWEALTH of Pennsylvania, v. Andre ROBINSON, Appellant.
• Court: Pennsylvania Superior Court

931 A.2d 15

COMMONWEALTH of Pennsylvania, v. Andre ROBINSON, Appellant.

No. 3361 EDA 2004.

Superior Court of Pennsylvania.

Argued October 26, 2006.

Filed August 2, 2007.

J. Garland Giles, Philadelphia, for appellant.

Max Kaufman, Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: FORD ELLIOTT, P.J., STEVENS, MUSMANNO, ORIE MELVIN, LALLY-GREEN, TODD, KLEIN, BENDER, and BOWES, JJ.

OPINION BY LALLY-GREEN, J.:

¶ 1 Appellant, Andre Robinson, appeals from the judgment of sentence entered on October 27, 2004, as made final by the denial of post-sentence motions on November 9, 2004. We affirm.

¶ 2 The factual and procedural history of the case is somewhat complex. The Commonwealth charged Appellant with various offenses arising from three different incidents involving Appellant's daughter, A.E. The first incident took place in the fall of 1997, when Appellant touched A.E.'s breasts and vagina while she was asleep in his bed. The second incident took place in the summer of 1999, when Appellant asked A.E. to sleep in his room. When she awoke in the morning, her bra was unsnapped and her vagina was hurting. The third incident took place in August 2000, when Appellant fondled A.E.'s breasts and stomach while she was lying in his bed.

¶ 3 The case proceeded to a bench trial. The court found Appellant guilty of three counts of corruption of minors and two counts of indecent assault.¹ On February 26, 2003, the court sentenced Appellant to an aggregate prison term of 11½ to 23 months, followed by five years of probation. Appellant filed post-sentence motions, challenging the weight and sufficiency of the evidence. The Commonwealth also filed post-sentence motions, seeking an increase in the sentence. On March 31, 2003, the trial court denied Appellant's post-sentence motions and granted the Commonwealth's post-sentence motions. The court re-sentenced Appellant to an aggregate prison term of three to six years, plus a term of probation.

¶ 4 Appellant appealed to this Court, raising the following claims: (1) weight of the evidence for all charges; (2) sufficiency of the evidence for all charges; (3) merger of indecent assault and corruption of minors for sentencing purposes; and (4) abuse of discretion in sentencing. In an unpublished memorandum, this Court rejected the weight, sufficiency, and merger claims. We then sua sponte declared that the sentence for indecent assault was illegal, because the six-year maximum term imposed by the court exceeded the five-year statutory maximum for first-degree misdemeanors. Thus, we remanded for resentencing without considering Appellant's challenges to the discretionary aspects of the sentence.

¶ 5 On remand, the trial court again imposed an aggregate prison sentence of three to six years, with a consecutive probation term of five years. Specifically, the court imposed a sentence of two and one-half to five years for one count of corruption of minors, a consecutive term of six to 12 months for a second count of corruption of minors, and a consecutive probation term of five years on the third count of corruption of minors. The court also imposed a term of six to 12 months on the first count of indecent assault, concurrent to the first count of corruption of minors. No penalty was imposed for the second count of indecent assault. Thus, the court imposed the same aggregate prison term without any single sentence exceeding the statutory maximum for that charge.

¶ 6 Appellant filed a motion for reconsideration, which the trial court denied without a hearing. This appeal followed. Appellant argued, inter alia, that the trial court acted vindictively when sentencing him. The three-judge panel that was scheduled to hear this appeal petitioned the full Court to grant en banc review on the question of whether a claim of vindictiveness in sentencing implicates the legality of the sentence. As noted infra, conflicting Superior Court case law exists on this issue. One function of en banc review is to harmonize or overrule prior precedent if necessary. Pa.R.A.P. 2543 (note); Superior Court I.O.P. § 65.38(B)(1). Thus, we will consider that issue in this opinion.

¶ 7 Appellant raises the following issues on appeal:

1. Did the trial court err and/or abuse discretion, thereby committing reversible error, in resentencing Mr. Robinson to 2½ to 5 years [sic] term where the resentence was illegal in that it stemmed from vindictiveness by significantly increasing the initial 11½ to 23 months sentence without justifiable reason and included a 5-year probation element to the sentence although the offenses of indecent assault and corruption of a minor merge for sentencing purposes?

2. Did the trial court err and/or abuse discretion, thereby committing reversible error, in resentencing Mr. Robinson manifestly outside the guidelines without appreciation of the guidelines; had exceeded the guidelines without articulating adequate reason on the record; had double counted the offense gravity score and/or prior record score, and had resentenced without considering all the relevant factors or otherwise without formulating an individualized sentence?

Appellant's Brief at 1.²

¶ 8 First, Appellant argues that the court acted vindictively by increasing the sentence from the original aggregate term (11½ to 23 months) to its current aggregate term (three to six years). Appellant argues that the court vindictively increased the original sentence as a result of his decision to file post-sentence motions.

¶ 9 First, we must address the Commonwealth's claim that this issue is waived under Pa.R.A.P. 2119(f). 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); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17, 19-20 (1987); Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa.Super.2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (Pa.2000). 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. Commonwealth v. Roser, 914 A.2d 447, 457 (Pa.Super.2006), appeal denied, ___ Pa. ___, 927 A.2d 624 (2007).

¶ 10 In contrast, a defendant need not include within his Rule 2119(f) statement any challenges to the legality of the sentence. A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained so long as the reviewing court has jurisdiction. Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super.2005), appeal denied, 591 Pa. 688, 917 A.2d 844 (Pa.2007).

¶ 11 Here, the Commonwealth objected to the fact that Appellant did not include the vindictiveness issue in his Rule 2119(f) statement. In response, Appellant argues that this was unnecessary, because his claim implicates the legality of the sentence. Again, this is the issue for which we granted en banc review.

¶ 12 We begin with the cases cited by Appellant. Appellant relies on three late 1980's panel decisions: Commonwealth v. Walker, 390 Pa.Super. 76, 568 A.2d 201 (1989), appeal denied, 527 Pa. 645, 593 A.2d 418 (Pa.1990); Commonwealth v. Maly, 384 Pa.Super. 369, 558 A.2d 877 (1989); and Commonwealth v. Mikesell, 371 Pa.Super. 209, 537 A.2d 1372 (1988), appeal denied, 520 Pa. 587, 551 A.2d 214 (Pa.1988).³ In Walker, this Court wrote in a footnote that "[a] claim that a court increased the punishment for a crime in violation of the due process clause as interpreted in [North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)] is regarded as an attack on the legality of [the] sentence." Walker, 568 A.2d at 203 n. 1. This statement in Walker was dicta, because there is no indication that waiver was ever at issue in that case. Similarly, in Maly, this Court described the defendant's claim of vindictiveness as a challenge to the "legality" of the sentence, without significant analysis or any indication that waiver was at issue. Maly, 558 A.2d at 878.

¶ 13 In Mikesell, the imposition of a more severe sentence and double jeopardy were addressed. There, this Court held that the defendant's claim of vindictiveness implicated the legality of the sentence even though Judge Beck, in dissent, argued that the claim implicated the discretionary aspects of the sentence. In a footnote, the Mikesell majority reasoned:

Appellant does not argue, as the dissent suggests, that the sentencing judge abused his discretion by failing to state adequate reasons on the record for imposing an enhanced sentence. He argues, instead, that imposition of the more severe sentence constitutes double jeopardy, and violates North Carolina v. Pearce, 395 U.S. 711[, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)].

Mikesell, 537 A.2d at 1380 n. 1.⁴

¶ 14 Almost ten years after that trio of decisions, this Court issued a seminal en banc opinion addressing the distinction between the legality of the sentence and the discretionary aspects of the sentence. Commonwealth v. Archer, 722 A.2d 203, 209-210 (Pa.Super.1998) (en banc). Since Archer, this Court en banc has revisited the topic several times. See, e.g., Commonwealth v. Williams, 900 A.2d 906 (Pa.Super.2006), appeal denied, 591 Pa. 673, 916 A.2d 1102 (Pa.2007); Commonwealth v. Jacobs, 900 A.2d 368 (Pa.Super.2006); Berry; Goggins.

¶ 15 Through these en banc cases, we have established the principle that "the term `illegal sentence' is a term of art that our Courts apply narrowly, to a relatively small class of cases." Berry, 877 A.2d at 483. This class of cases includes: (1) claims that the sentence fell "outside of the legal parameters prescribed by the applicable statute"; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See Jacobs, 900 A.2d at 372-373 (citations omitted). These claims implicate the fundamental legal authority of...