Commonwealth v. Prinkey

• Decision Date: 30 June 2022
• Docket Number: 23 WAP 2021
• Citation: 277 A.3d 554
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Mark Allen PRINKEY, Appellant
• Court: Pennsylvania Supreme Court

277 A.3d 554

COMMONWEALTH of Pennsylvania, Appellee

v.Mark Allen PRINKEY, Appellant

No. 23 WAP 2021

Supreme Court of Pennsylvania.

Submitted: February 23, 2022

Decided: June 30, 2022

Joel Christopher Seelye, Esq., Altoona, for Appellant.

Jonathan David Thomas, Esq., Bedford County District Attorney's Office, for Appellee.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE WECHT

This appeal presents the question of whether a particular type of claim constitutes a challenge to the legality of the sentence, such that it is cognizable under the Post-Conviction Relief Act ("PCRA").¹ Appellant here claims that his sentence resulted from a prosecutor's unconstitutionally vindictive decision to pursue a mandatory minimum term of years. Proceeding from the general principle that a sentence is unlawful if the sentencing court lacks the legal authority to impose that sanction, our law recognizes four broad types of legality challenges: (1) a claim that a sentence was imposed pursuant to a facially unconstitutional sentencing statute; (2) an assertion that statutory preconditions to the court's sentencing authority were not present; (3) a challenge alleging a violation or nonfulfillment of a substantive, constitutional restriction upon the court's authority to impose the sentence; and (4) an argument that the statutory support for the conviction is void ab initio .² Today, we hold that a challenge to a sentence as presumptively vindictive falls within the third category of legality challenges and, thus, is cognizable under the PCRA.

I. Background

In 2007, Mark Allen Prinkey placed his hands upon the shoulders of his seven-year-old stepdaughter and asked her if she had ever kissed a boy. The girl ran away and told her mother, Prinkey's wife, that Prinkey had attempted to kiss her. Prinkey's wife relayed her daughter's account to law enforcement authorities, prompting an investigation. When interrogated by police officers, Prinkey stated that, although he made no actual attempt to do so, he had intended to kiss the young girl. Prinkey then speculated to the investigating officers that, if he had done so, other sexual acts, such as fellatio, might have followed. Based upon these statements, the officers arrested Prinkey and charged him with attempted involuntary deviate sexual intercourse ("IDSI") with a child, attempted indecent assault with a person less than thirteen years of age, and corruption of the morals of a minor.

In April 2008, Prinkey proceeded to a jury trial. The jury convicted Prinkey of the above-listed offenses. The trial court imposed an aggregate sentence of ten to twenty-five years’ imprisonment, and designated Prinkey as a sexually violent predator ("SVP").³ On direct appeal, Prinkey challenged the sufficiency and weight of the evidence, as well as the propriety of the SVP designation. The Superior Court found that Prinkey's counsel waived the weight and sufficiency challenges. The Superior Court affirmed Prinkey's SVP designation.

In 2010, Prinkey timely filed his first PCRA petition.⁴ He raised an ineffective assistance of counsel claim, arguing, in relevant part, that his direct appeal counsel was ineffective for failing to raise and preserve a challenge to the sufficiency of the evidence underlying the attempted IDSI conviction. Following a January 2012 hearing, the PCRA court denied Prinkey's petition. Prinkey appealed to the Superior Court.

The Superior Court agreed with Prinkey, holding that the Commonwealth did not demonstrate at trial that Prinkey, "with intent to commit IDSI, committed an act constituting a substantial step toward engaging in sexual intercourse per os or per anus ."⁵ Given the Commonwealth's failure to meet its burden of proof, the court held that Prinkey's trial counsel was ineffective for waiving the challenge to the sufficiency of the evidence on direct appeal. Accordingly, the Superior Court vacated Prinkey's judgment of sentence as to the IDSI conviction and remanded for resentencing on the remaining convictions.

On remand, the Commonwealth for the first time notified Prinkey that it was seeking a twenty-five-year mandatory minimum sentence for the attempted indecent assault conviction.⁶ Prinkey moved to dismiss the Commonwealth's notice of its intention to seek the mandatory sentence.

On February 19, 2014, Prinkey proceeded to a resentencing hearing. Before imposing Prinkey's new sentence, the resentencing court heard argument on the Commonwealth's decision to pursue the mandatory minimum sentence. The Commonwealth maintained that its choice not to seek the twenty-five-year minimum sentence at the time of Prinkey's original sentencing had no bearing upon its ability to pursue the mandatory sentence following the Superior Court's vacatur of Prinkey's judgment of sentence on the IDSI conviction. The Commonwealth informed the resentencing court that, if it declined to pursue the mandatory minimum for the attempted indecent assault conviction, then, at most, the court could order Prinkey, "who was once facing [up to fifty-two] years in jail for the same exact conduct," to serve a maximum sentence of "[fourteen] years in jail for that conduct."⁷ The Commonwealth averred that a sentence of seven to fourteen years was inadequate because, in its view, Prinkey is "a man who needs to be locked up for as long as he can [be]."⁸ The Commonwealth expressed its "wish ... that [the court] had the discretion to sentence up to [twenty-five] years."⁹ The Commonwealth stated that it would have settled for a prison sentence of "ten to twenty years," which it described as a "good sentence,"¹⁰ but nonetheless ultimately chose to request Section 9718.2(a)(1) ’s mandatory minimum sentence.

Over Prinkey's objection, the resentencing court imposed the mandatory minimum, sentencing Prinkey to twenty-five to fifty years’ incarceration for the conviction of attempted indecent assault, as well as a consecutive term of eighteen to thirty-six months’ incarceration for the conviction of corrupting the morals of a minor. Although the new sentence was imposed for attempted indecent assault—a crime graded lower than attempted IDSI—the sentence was double Prinkey's original aggregate sentence of ten to twenty-five years for attempted IDSI, attempted indecent assault, and corruption of the morals of a minor.

On February 28, 2014, Prinkey filed a motion for post-sentence relief, challenging the imposition of the mandatory minimum sentence. On May 8, 2014, the resentencing court entered an opinion and an order denying the motion. Therein, the court stated that it "believe[d] the law required that it impose the mandatory sentence and that [it] lacked discretion to do otherwise" because "the Commonwealth has properly served notice, and [Prinkey] falls within [the] provisions" of 42 Pa.C.S. § 9718.2(a)(1).¹¹ Prinkey timely appealed, and, on July 28, 2015, the Superior Court affirmed the judgment of sentence. On February 3, 2016, this Court denied Prinkey's petition for allowance of appeal.

On May 16, 2016, Prinkey filed another timely PCRA petition, and it is that petition that underlies the instant appeal. Relevant here, Prinkey argued that the doubling of his sentence amounted to retaliation for his successful challenge of his original judgment of sentence, a practice deemed unconstitutional by the Supreme Court of the United States in North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Prinkey recognized that "there is no absolute bar that prevents a defendant from receiving a more severe sentence upon resentencing after a successful appeal." Prinkey's Br. Supp. PCRA Pet., 8/24/2018, at 5 (citing Pearce , 395 U.S. at 723, 89 S.Ct. 2072 ). But, according to Prinkey, the imposition of a mandatory sentence "after a partially successful appeal that dramatically increases his sentence is per se vindictive" and thus unconstitutional. Id . at 7. Following a hearing, the PCRA court denied relief.

Prinkey appealed, and the Superior Court affirmed the PCRA court's order. Before the appellate panel, Prinkey again raised his vindictive sentencing claim. He urged the panel to hold that a request to impose a mandatory sentence following a successful appeal presumptively is unconstitutional when the prosecution did not seek the mandatory minimum at the initial sentencing. Prinkey also argued that the Commonwealth failed to cite any evidence arising during the seven-year gap between the imposition of the original sentence and Prinkey's resentencing hearing that would have sufficed to overcome the presumption. According to Prinkey, the Commonwealth was required to, but did not, offer evidence related to his character, propensity for rehabilitation, and the effects of his crime that the Commonwealth lacked at the time of his original sentencing.

The Superior Court first addressed whether Prinkey's claim was cognizable under the PCRA. Prinkey argued that "his challenge to the sentence, as being vindictive, should be considered as a challenge to the legality of his sentence." Commonwealth v. Prinkey , 1380 WDA 2018, 2020 WL 3469698 at *3 (Pa. Super. June 25, 2020). The panel acknowledged that legality challenges fall within the PCRA but decided that Prinkey did not raise such a challenge. The court explained that, in Commonwealth v. Robinson , 931 A.2d 15 (Pa. Super. 2007) (en banc ), an en banc panel had held that claims alleging that a sentence was imposed to retaliate against the defendant for exercising the right to an appeal constitutes a challenge to the discretionary aspects of a sentence, not a challenge to its legality. Because the Superior Court has held that challenges involving the discretionary aspects of a sentence are not cognizable under the PCRA, the panel here determined that it was "constrained" to affirm the PCRA court's order, even though it was "troubled that this case...