Commonwealth v. King

Decision Date21 July 2020
Docket NumberNo. 3 EAP 2019,3 EAP 2019
Citation234 A.3d 549
Parties COMMONWEALTH of Pennsylvania, Appellee v. Jimel KING, Appellant
CourtPennsylvania Supreme Court


We granted allowance of appeal in this matter to consider the legality of Jimel King's enhanced sentence for attempted murder resulting in serious bodily injury under 18 Pa.C.S. § 1102(c) when the Commonwealth failed to provide formal notice of its intent to seek the enhancement in the charging documents. We also consider whether King's consecutive sentences for the two inchoate crimes of attempted murder and conspiracy, which arose out of the same incident, were precluded by 18 Pa.C.S. §§ 903(c) and 906.1 For the reasons that follow, we affirm the judgment of sentence as to the enhanced murder sentence, but we vacate the judgment of sentence at the conspiracy count. As our disposition disrupts the sentencing scheme, we vacate the judgment of sentence and remand to the Superior Court with instructions to remand for resentencing.

I. Factual and Procedural History 2

On June 17, 2015, Jimel King jumped out of a vehicle driven by Ramir Porter and fired at least nine bullets towards Arielle Banks, with one striking her ankle and another her lower back. Banks survived, but her hip and ankle were shattered. She provided information to the police that linked King and Porter to the crime.

On August 14, 2015, the Commonwealth filed a criminal information charging King with attempted murder, aggravated assault, conspiracy, carrying a firearm without a license, possession of a firearm by a person prohibited, and possessing an instrument of crime. The attempted murder charge alleged that King "[i]ntentionally and with malice attempted to cause the death of another human being[.]" Information, 8/14/15, at 1. The Commonwealth provided notice of its intent to seek a mandatory minimum of at least five years of incarceration pursuant to 42 Pa.C.S. § 9712 based on King's possession of a firearm while committing a crime of violence. Id. The information made no reference to 18 Pa.C.S. § 1102(c) (providing that maximum sentence for attempted murder is forty years where serious bodily injury occurs, and twenty years otherwise).

King rejected a plea offer of eight to twenty years of incarceration in exchange for a plea of guilty to attempted murder, conspiracy, and possession of a firearm by a person prohibited. The Commonwealth informed King that based on the sentencing guidelines, the recommended minimum sentence for attempted murder was seventeen and one-half years of incarceration, and stated that the maximum possible sentence on all charges was eighty-seven years of incarceration.3 King's Brief at 6. King rejected the offer and proceeded to trial on May 24, 2016.4 King stipulated that Banks suffered a shattered hipbone and anklebone, requiring multiple surgeries and high intensity inpatient occupational and physical therapy. See N.T., 5/25/16, at 171-72. His defense was that another (unknown) individual shot Banks.

Before the jury retired to deliberate, the parties reviewed and agreed to the content and form of the verdict sheet which, in addition to listing all of the charges, contained the following interrogatory: "Answer only [i]f you find [King] guilty of Attempted Murder. Do you find beyond a reasonable doubt that the victim suffered serious bodily injury? YES or NO[.]" Id . at 200; Verdict Sheet, 5/26/16, at 1. The jury found King guilty of all charges.5 The jury also concluded that Banks suffered serious bodily injury as a result of King's attempted murder. See Verdict Sheet at 1.

King was originally sentenced to consecutive terms of imprisonment of twenty to forty years for attempted murder, ten to twenty years for conspiracy to commit murder, and five to ten years for possession of a firearm by a person prohibited. N.T., 8/31/16, at 31-32. King also received concurrent terms of five years of probation for carrying a firearm without a license and carrying a firearm on public streets in Philadelphia. Id. The court merged aggravated assault with attempted murder and imposed no further penalty on the remaining convictions. Id . The trial court issued a written sentencing order later that day, correcting King's sentence of ten to twenty years of incarceration for conspiracy to commit murder to no further penalty, instead imposing that same term for conspiracy to commit aggravated assault. Corrected Sentencing Order, 8/31/2016, at 1. King filed a post-sentence motion raising several claims not pertinent to the instant appeal, which was denied.

King appealed to the Superior Court, arguing that his sentence for attempted murder was illegal because the Commonwealth never charged "attempted murder causing serious bodily injury" or provided formal notice that it intended to seek the enhanced sentence under Section 1102(c). See Pa.R.A.P. 1925(b) Statement, 4/13/17, at 2-3. As previously noted, the maximum sentence for attempted murder where the victim did not suffer serious bodily injury6 is twenty years. Hence, according to King, the failure to properly charge attempted murder resulted in an illegal sentence.

The trial court recognized that the charging documents failed to specifically allege attempted murder causing serious bodily injury or reference Section 1102(c), but nonetheless rejected King's claim. Trial Court Opinion, 5/15/17, at 15. In reaching this conclusion, the trial court relied primarily on Commonwealth v. Johnson , 910 A.2d 60 (Pa. Super. 2006). Id. Johnson was convicted of attempted murder generally and received a sentence of seventeen and one-half to forty years of incarceration under Section 1102(c). Johnson , 910 A.2d at 63. The Superior Court vacated Johnson's sentence based on the United States Supreme Court's decision in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding "any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt"). Id. at 67-68. The panel based its decision on three findings. First, the Commonwealth did not charge Johnson with attempted murder causing serious bodily injury. Id. at 67. Second, the Commonwealth did not provide notice that it intended to prove serious bodily injury at trial or seek an enhanced penalty. Id. Finally, the jury never found serious bodily injury in the context of attempted murder, although it did find serious bodily injury with respect to aggravated assault. Id. Accordingly, Johnson's maximum permissible sentence was twenty years because the jury's verdict was "limited to a finding of guilt on the crime of attempted murder generally[.]" Id. at 68.

The trial court distinguished Johnson from the instant case, reasoning that the dispositive fact in Johnson was the failure to present the question of serious bodily injury to the jury, resulting in an Apprendi violation. Trial Court Opinion, 5/15/17, at 15. The trial court then concluded that the other two factors highlighted in Johnson were dicta. Id. The trial court ultimately concluded that King's sentence was proper in light of the special interrogatory, the description of the incident in the indictment, and testimony presented at the grand jury hearing. Id. The trial court also noted that the Commonwealth's opening statement discussed serious bodily injury, albeit in the context of aggravated assault. Id. Accordingly, the trial court found King's sentence for attempted murder causing serious bodily injury permissible in this case. Id . at 16.

In an unpublished memorandum decision the Superior Court reversed King's conviction for carrying a firearm on public streets in Philadelphia, but otherwise affirmed the judgment of sentence.7 Commonwealth v. King , 2883 EDA 2016, 2018 WL 4271212 (Pa. Super. Sept. 7, 2018). In addition to his Apprendi claim, King argued for the first time on appeal that the trial court illegally imposed consecutive sentences for attempted murder and conspiracy to commit murder in violation of Sections 903 and 906. According to King, his convictions for conspiracy to commit murder, conspiracy to commit aggravated assault, and attempted murder were all the result of conduct designed to commit or culminate in the commission of the same offense, specifically murder.

Before addressing King's claims, the panel explained that legality of sentencing claims involve questions of law for which the standard of review is de novo and the scope of review is plenary. See King , 2883 EDA 2016 at 3 (citing Commonwealth v. Barnes , 167 A.3d 110, 116 (Pa. Super. 2017) (en banc)). The panel also recognized that challenges implicating the legality of sentencing are not subject to waiver and may be raised for the first time on appeal. Id. (citing Commonwealth v. Berry , 877 A.2d 479, 482 (Pa. Super. 2005) ).

In addressing the Apprendi claim, the panel first noted that serious bodily injury resulting from attempted murder is a fact that must be proven prior to imposing the enhanced sentence. Id. (citing Commonwealth v. Johnson , 910 A.2d 60, 66-67 (Pa. Super. 2006) ). The panel also explained that the Commonwealth must place an offender on notice where it intends to seek the forty-year maximum sentence under Section 1102(c). Id. The court examined Commonwealth v. Reid , 867 A.2d 1280, 1281 (Pa. Super. 2005), wherein Reid pleaded nolo contendere to attempted murder for stabbing the victim eleven times before slashing the victim's throat. Id . at 1280-81. The criminal information "did not explicitly state that the victim suffered ‘serious bodily injury’ using those precise words[.]" Id . at 1281. The court conducted a colloquy and imposed a sentence of eighteen to forty years of incarceration for attempted murder. Id. at 1281. On appeal, Reid argued that the failure to provide notice of intent to seek the enhanced sentence violated Apprendi . Id. The Reid Court disagreed, explaining that Reid "agreed to the...

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