Commonwealth v. Barnes, No. 947 MDA 2014.

• Court: Superior Court of Pennsylvania
• Writing for the Court: OPINION BY STABILE, J.
• Citation: 167 A.3d 110
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Kwame Lamar BARNES, Appellant
• Docket Number: No. 947 MDA 2014.
• Decision Date: 10 July 2017

167 A.3d 110

COMMONWEALTH of Pennsylvania, Appellee
v.
Kwame Lamar BARNES, Appellant

No. 947 MDA 2014.

Superior Court of Pennsylvania.

Argued December 13, 2016
Filed July 10, 2017

Richard S. Roberts, Jr., Harrisburg, for appellant.

Katie L. Adam, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE, DUBOW, MOULTON, and RANSOM, JJ.

OPINION BY STABILE, J.:

Appellant Kwame Lamar Barnes appeals from the January 30, 2014 judgment of sentence entered in the Common Pleas Court of Dauphin County ("trial court"), following his jury convictions for criminal attempt-homicide, aggravated assault, kidnapping, and recklessly endangering another person ("REAP").¹ Upon review, we vacate and remand for resentencing.

The facts and procedural history underlying this appeal are undisputed. On December 19, 2010, the victim, who was sixteen at the time of trial, was sleeping alone at her mother's home in Steelton when she received a text message from Appellant, her ex-boyfriend. N.T. Trial, 2/28/12, at 136–39. Although they were no longer dating, the victim and Appellant still had an amicable relationship. Id. at 139. Appellant indicated in the text message that he was at the back door of the residence and the victim allowed Appellant to enter the home. Id. at 140. The victim and Appellant went upstairs to the victim's bedroom where they talked, engaged in sexual intercourse, and then talked again. Id. at 140–41. They then had an argument. The victim asked Appellant to leave and she escorted him downstairs to the back door. Id. at 141–42. Prior to leaving, Appellant threatened to hit the victim with a vacuum. Id. at 143–44. Subsequently, Appellant strangled the victim from behind by using his arm. Id. at 144–45. She lost consciousness. Id. at 145. When she regained consciousness, Appellant said to the victim, "you're gonna die today," and proceeded to strangle her again until she lost consciousness a second time. Id. at 145–47. When the victim finally regained consciousness, she was wrapped in a blanket and lying head-first in a recycling dumpster under the State Street Bridge. Id. at 147–50. She eventually freed herself and managed to get to the side of a roadway, where the driver of a passing vehicle stopped and took her to the hospital. Id. at 149. The victim suffered a broken vertebra in her neck, various facial injuries, a lacerated and swollen tongue, a large contusion to her right eye, and hypothermia. Id. at 16–21.

On December 20, 2010, Appellant was charged with criminal attempt to commit

167 A.3d 115

homicide ("attempted murder"), aggravated assault, kidnapping, REAP, terroristic threats, and theft by unlawful taking.² On February 28, 2012, at the conclusion of a jury trial, Appellant was found guilty of attempted murder, aggravated assault, kidnapping, and REAP. The jury found Appellant not guilty for the charge of terroristic threats. On May 18, 2012, Appellant was sentenced to a term of incarceration of 20 to 40 years for the conviction of attempted murder, a consecutive term of incarceration of 2½ to 5 years for his conviction of aggravated assault, and a consecutive term of incarceration of 2½ to 5 years for his conviction of kidnapping. The trial court imposed no additional sentence for the conviction of REAP. Appellant timely appealed to this Court.

On December 3, 2013, a panel of this Court ("2013 decision") determined that the convictions of aggravated assault and attempted homicide should have merged because the crimes arose from a single set of facts, i.e. , Appellant choked the victim to unconsciousness. Accordingly, the panel vacated the judgment of sentence, and remanded for resentencing. Commonwealth v. Barnes, No. 691 MDA 2013, unpublished memorandum, at 2–3, 2013 WL 11247615 (Pa. Super. filed December 3, 2013). On January 30, 2014, upon remand, the trial court resentenced Appellant to 20 to 40 years' imprisonment for attempted murder and a consecutive term of incarceration of 5 to 10 years for the conviction of kidnapping. On February 5, 2014, Appellant filed a post-sentence motion, which the trial court denied on May 12, 2014. The instant appeal followed.³

Appellant raises four issues on appeal:

[I.] Apprendi doctrine. The United States Constitution mandates that juries should decide all facts that increase a crime's statutory maximum sentence. Here, a jury convicted [Appellant] of attempted murder, generally—a 20 year maximum sentence. If the trial court submits the crime of attempted murder resulting in serious bodily injury to the jury, the maximum sentence increases to 40 years. But [the trial] court didn't submit this element. Is [Appellant's] legal attempted murder maximum sentence 20 years?

[II.] Substantial questions. To appeal the discretionary aspects of a sentence, an appellant must present a "substantial question" why the sentencing court's actions are inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process. This sentencing court: (1) increased a crime's sentence where the only changed fact was the exercise of appellate rights; and (2) failed to provide reasons for its new sentence on the record. Does [Appellant] raise substantial questions?

[III.] Judicial Vindictiveness. A presumption of vindictiveness arises where a sentencing court imposes a more severe sentence absent objective evidence justifying an increased sentence. This trial court doubled [Appellant's] kidnapping sentence at his resentencing. It based the increased sentence on the same facts and information as at the

167 A.3d 116

time of the original sentence. Is [Appellant's] new kidnapping sentence void?

[IV.] Record reasons for an imposed sentence. On resentencing, following remand, the court shall make as a part of the record, and disclose in open court at the time of sentence, a statement of reason or reasons for the imposed sentence. In [Appellant's] five-minute resentencing this record does not make such a statement. Should this Court vacate [Appellant's] current sentence and resentence him to provide a reasoned statement?

Appellant's Brief at 8–9.⁴

On March 16, 2016, a panel of this Court vacated Appellant's judgment of sentence and remanded the case to the trial court for resentencing. The Honorable Jacqueline Shogan filed a dissenting memorandum. On March 30, 2016, the Commonwealth filed an application for reargument. On May 26, 2016, we issued an order granting the Commonwealth's application for reargument and withdrawing the March 16, 2016 panel decision. We listed this matter for en banc review wherein we now address the following issues: (1) Whether, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the jury was required to render a separate finding of serious bodily injury for the crime of attempted murder to subject Appellant to the 40–year maximum sentence for such crime? (2) Whether the law of the case doctrine applies here based on the 2013 decision issued by a panel of this Court?

Appellant first argues that the trial court erred in applying Section 1102(c) of the Crimes Code, 18 Pa.C.S.A. § 1102(c), when it imposed a maximum term of imprisonment of 40 years for the offense of attempted murder in the absence of a jury finding of serious bodily injury arising from such offense. As a result, Appellant argues that his sentence for attempted murder violates the United States Supreme Court's decision in Apprendi, wherein the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 ; accord Commonwealth v. Gordon, 596 Pa. 231, 942 A.2d 174, 175 n.1 (2007), cert. denied, 553 U.S. 1024, 128 S.Ct. 2094, 170 L.Ed.2d 826 (2008) ; Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa. Super. 2014), appeal denied, 632 Pa. 679, 118 A.3d 1107 (2015). We agree.

At the outset, we note that Appellant's claim implicates the legality of a sentence. Commonwealth v. Aponte, 579 Pa. 246, 855 A.2d 800, 802 n.1 (2004). "Issues relating to the legality of a sentence are questions of law .... Our standard of review over such questions is de novo and our scope of review is plenary." Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super. 2009) (citation omitted).

Section 1102(c) of the Crimes Code provides, "a person who has been convicted of attempt ... to commit murder ... where serious bodily injury^{[5 ]} results may be sentenced to a term of imprisonment which shall be fixed by the court at no more than 40 years."

167 A.3d 117

18 Pa.C.S.A. § 1102(c) (emphasis added). "Where serious bodily injury does not result, the person may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 20 years." Id. Indeed, in Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super. 2006), appeal denied, 592 Pa. 766, 923 A.2d 1173 (2007), we explained that Section 1102(c)"imposes a condition precedent to the imposition of a maximum term of imprisonment of up to 40 years, specifically, that ‘serious bodily injury’ must have resulted from the attempted murder. Otherwise, the sentence shall be not more than...