Com. v. Rose, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
STEVENSON LEON ROSE
Appellant No. 1832 WDA 2016
Appeal from the Judgment of Sentence July 6, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000810-2008
BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 28, 2018
Stevenson Leon Rose appeals from his July 6, 2016 judgment of
sentence of ten to twenty years incarceration, imposed after he was
convicted of third-degree murder. The trial court ran it consecutively to
Appellant’s original judgment of sentence, resulting in an aggregate
sentence of twenty-five to fifty years imprisonment.1 After careful review,
we vacate Appellant’s judgment of sentence and remand for resentencing.
____________________________________________
1 Appellant was originally convicted of aggravated assault, recklessly
endangering another person, conspiracy, involuntary deviate sexual
intercourse, and criminal attempt, based on the 1993 incident discussed
infra. In 1994, he received a sentence of ten to twenty years incarceration
for aggravated assault and a consecutive sentence of five to ten years
incarceration for conspiracy, with no addition penalty for the remaining
charges, for an aggregate sentence of fifteen to thirty years imprisonment.
(Footnote Continued Next Page)
* Former Justice specially assigned to the Superior Court.
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Our High Court previously set forth the salient factual and procedural
background:
The facts of this case are particularly heinous. On July 13,
1993 [Appellant] and Shawn Sadik brutally attacked Mary
Mitchell in a park in the East Liberty neighborhood of Pittsburgh.
During the attack, the men kicked the victim in the head
approximately 60 times, stabbed her in the throat, and inserted
a 16-inch piece of aluminum framing into her vagina, causing
serious internal injuries. The victim was left naked and bleeding
until she was discovered by two individuals. The attack left the
victim in a vegetative state. An investigation led police to
[Appellant] and Sadik, and police recovered bloody clothing and
shoes from [Appellant’s] apartment later that day. [Appellant]
provide police with a statement in which he admitted that he and
Sadik attacked the victim after drinking and doing drugs.
In March 1994, a jury convicted [Appellant] of attempted
murder, aggravated assault, involuntary deviate sexual
intercourse, recklessly endangering another person, and criminal
conspiracy, and, on March 16, 1994, he was sentenced to 15 to
30 years incarceration. His judgment of sentence was affirmed
on appeal by the Superior Court, and this Court denied his
petition for allowance of appeal. Commonwealth v. Rose, 664
A.2d 1059 (Pa.Super. 1995), appeal denied, 672 A.2d 306(1995).
On September 17, 2007, the victim succumbed to the
injuries she sustained in the attack 14 years earlier, and, on
October 9, 2007, the Commonwealth charged [Appellant] with
criminal homicide. Rejecting his diminished capacity defense,
the jury convicted [Appellant] of third-degree murder. At
sentencing, [Appellant] maintained that he could be sentenced
only to a maximum term of incarceration of 10 to 20 years,
because, at the time he assaulted the victim, that was the
(Footnote Continued) _______________________
In 2010, Appellant was sentenced to twenty to forty years incarceration,
concurrent to his original sentence, for third degree murder following the
death of the victim. That sentence was vacated in 2016, and he was
resentenced to the sentence at issue herein.
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maximum allowable sentence for third-degree murder under 18
Pa.C.S. § 1103(1), which provides that a person convicted of a
felony of the first degree may be sentenced “for a term which
shall be fixed by the court at not more than 20 years.” 18
Pa.C.S. § 1103(1). The Commonwealth argued, however, that
because the victim’s death did not occur until 2007, [Appellant’s]
crime of homicide was not “complete” until that time, and,
therefore, [Appellant] was subject to the 20 to 40 year sentence
for third-degree murder prescribed under 18 Pa.C.S. § 1102,
which was amended in 1995 (two years after the attack) and
provides: “Notwithstanding section 1103, a person who has
been convicted of murder of the third degree . . . shall be
sentenced to a term which shall be fixed by the court at not
more than 40 years.” 18 Pa.C.S. § 1102(d). The sentencing
court agreed with the Commonwealth, and sentenced [Appellant]
to 20 to 40 years incarceration. [Appellant] was credited with
approximately 17 ½ years of time served for his prior conviction.
[Appellant] appealed, and a panel of the Superior Court
vacated his sentence and remanded for resentencing. The
Commonwealth requested, and was granted en banc review by
the Superior Court . . . The en banc panel concluded
[Appellant’s] sentence of 20 to 40 years violated the Ex Post
Facto Clauses of both the United States and Pennsylvania
Constitutions. . . . The Commonwealth filed a petition for
allowance of appeal with this Court, which we granted in order to
consider whether the Superior Court erred in holding that
sentencing [Appellant] pursuant to 18 Pa.C.S. § 1102(d), which
became effective after he committed the deadly assault on the
victim, but before the victim died, would violate the prohibition
against ex post facto laws.
Commonwealth v. Rose, 127 A.3d 794, 796-797 (Pa. 2015) (internal
footnotes omitted).
The Supreme Court affirmed and held that the imposition of a longer
sentence based upon an amendment to the statute that occurred after
Appellant committed the assault in question violated his rights under the Ex
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Post Facto Clause. Id. Thus, the High Court remanded for resentencing
pursuant to the statute in effect at the time of the assault.
Meanwhile, on June 14, 2016, Appellant was granted parole after
serving twenty-three years of his original sentence of fifteen to thirty years
imprisonment. However, he remained incarcerated on a detainer for his
then-upcoming resentencing. Since his 2010 sentence of twenty to forty
years imprisonment, which ran concurrent to his original sentence, was
vacated, the trial court resentenced Appellant on July 6, 2016. At that
proceeding, Appellant received a sentence of ten to twenty years
imprisonment for third-degree murder, the statutory maximum, and the trial
court imposed that sentence to run consecutively to his original sentence.
Thus, Appellant received an aggregate sentence of twenty-five to fifty years
incarceration, which was in excess of the twenty to forty year sentence he
received in 2010.
Appellant filed a post-sentence motion challenging his sentence, which
was denied by operation of law on November 21, 2016. He then filed a
timely notice of appeal and complied with the trial court’s order to file a Rule
1925(b) concise statement of errors complained of on appeal. The trial
court authored its Rule 1925(a) opinion, and this matter is now ready for our
review.
Appellant raises two questions for our consideration:
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I. Whether the sentence imposed by the trial court is manifestly
excessive, unreasonable, or an abuse of discretion?
II. Whether the trial court’s imposition of a consecutive sentence
constitutes vindictiveness?
Appellant’s brief at 1.
Appellant’s issues challenge the discretionary aspects of his sentence.
We have long held that “[t]he right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Barnes, 167 A.3d 110, 122
(Pa.Super. 2017) (citation omitted). Instead, such challenges are
considered petitions for allowance of appeal. Id. An appellant who wishes
to challenge the discretionary aspects of his sentence must satisfy a four-
part test to invoke this Court’s jurisdiction:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect pursuant to Pa.R.A.P. 2119(f);
and (4) whether there is a substantial question that the sentence
appeal from is not appropriate under the Sentencing Code.
Id. (citation omitted). Finally, “[w]hether a particular issue constitutes a
substantial question about the appropriateness of sentence is a question to
be evaluated on a case-by-case basis.” Id. (citation omitted).
Here, Appellant preserved his claimed errors in a post-sentence motion
and filed a timely notice of appeal after that motion was denied by operation
of law. In addition, he appended to his appellate brief a statement pursuant
to Pa.R.A.P. 2119(f) entreating this Court to review the merits of his
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challenge to the discretionary aspects of his sentence. Hence, we must only
determine whether his claims raise a substantial question.
A substantial question exists when an appellant raises “a colorable
argument that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.” Id. at 122-
123. Appellant first argues that his sentence is excessive and unreasonable
because the resentencing court emphasized the seriousness of his offense
and failed to consider his rehabilitative needs and other mitigating
circumstances, which militated in favor of a lesser sentence. Appellant’s
brief at 18-19. We have previously held that such a claim raises a
substantial question. See Commonwealth v. Knox, 165 A.3d 925, 929-
930 (“[The] claim that the trial court focused exclusively on the seriousness
of the crime while ignoring other, mitigating circumstances, such as his
mental health history and difficult childhood, raises a substantial question.”).
Next, Appellant claims that the imposition of his sentence
consecutively to his previous judgment of sentence following remand from
the Supreme Court evinces judicial vindictiveness. Appellant’s brief at 19.
We have also previously determined that a claim of judicial vindictiveness
following a remand for resentencing raises a substantial question. Barnes,
supra at 123 (“[I]t is settled that Appellant’s claim that his sentence on
remand was a product of vindictiveness presents a substantial question for
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our review.”) As such, Appellant has invoked our jurisdiction, and we may
reach the merits of this appeal.
Since we find that Appellant’s second issue is dispositive, we will
consider it first. Appellant alleges that his sentence constituted a violation of
due process, as it reflects judicial vindictiveness. We observe,
Due process of law, then, requires that vindictiveness against a
defendant for having successfully attacked his first conviction
must play no part in the sentence he receives after a new trial.
And since the fear of such vindictiveness may unconstitutionally
deter a defendant’s exercise of the right to appeal or collaterally
attack his first conviction, due process also requires that a
defendant be freed of apprehension of such a retaliatory
motivation on the part of the sentencing judge.
In order to assure the absence of such a motivation, we have
concluded that whenever a judge imposes a more severe
sentence upon a defendant after a new trial, the reasons for his
doing so must affirmatively appear. Those reasons must be
based upon objective information concerning identifiable conduct
on the part of the defendant occurring after the time of the
original sentencing proceeding. And the factual data upon which
the increased sentence is based must be made part of the
record, so that the constitutional legitimacy of the increased
sentence may be fully reviewed on appeal.
Commonwealth v. Barnes, 167 A.3d 110, 123 (Pa.Super. 2017) (citing
North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on other
grounds by Alabama v. Smith, 490 U.S. 794 (1989) (emphasis omitted)).
The Pearce rationale also “applies when the original sentence is
vacated and a second sentence is imposed without an additional trial.” Id.(citation omitted). As such, “whenever a trial court imposes upon a
defendant a more severe sentence following resentencing, the reasons for
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such sentence must be made part of the record.” Id. at 124. “Absent
evidence [that] a sentencing increase is justified due to objective
information concerning a defendant’s case, the presumption of
vindictiveness cannot be rebutted.” Id. (citation omitted).
In addition, we have previously held that
when a sentence is vacated and the case is remanded to the
sentencing court for resentencing, the sentencing judge should
start afresh. Reimposing a judgment of sentence should not be
a mechanical exercise. Given the important nature of the
interests involved, the judge at the second sentencing hearing
should reassess the penalty imposed on the defendant –
especially where defense counsel comes forward with relevant
evidence which was not previously available. Thus, appellant’s
conduct since the prior sentencing hearing is relevant at
resentencing. The sentencing judge must take note of this new
evidence and reevaluate whether the jail term which appellant
received is a just and appropriate punishment.
Commonwealth v. Serrano, 150 A.3d 470, 473 (Pa.Super. 2016) (cleaned
up) (citing Commonwealth v. Jones, 640 A.2d 914, 919-920 (Pa.Super.
1994)).
To recap, in 2010, after he was convicted for third degree murder
following the victim’s death, Appellant was sentenced to a term of
incarceration of twenty to forty years incarceration. The sentencing court at
that time did not run Appellant’s sentence consecutive to his original
sentence of fifteen to thirty years imprisonment, but rather, ran them
concurrently for a total sentence of twenty to forty years imprisonment.
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Upon appeal, we vacated the sentence for third degree murder, and
the Supreme Court affirmed our holding, finding that Appellant’s sentence
was unconstitutional. After remand, the same sentencing court resentenced
Appellant to ten to twenty years imprisonment, based on the statutory
maximum applicable at the time he assaulted Ms. Mitchell. However, the
court imposed that sentence consecutive to his prior aggregate sentence of
fifteen to thirty years incarceration for a total sentence of twenty-five to fifty
years.
Appellant argues that the sentencing court’s imposition of his sentence
of ten to twenty years incarceration consecutive to his prior sentence
represents judicial vindictiveness since it resulted in a longer aggregate
sentence than what he faced prior to resentencing. He maintains that the
circumstances between his sentencing in 2010 and 2016 were largely
unchanged, and in fact, favored a lesser sentence. Thus, the trial court had
no basis for extending his sentence in this way.
Specifically, Appellant argues that his post-offense conduct, especially
his behavior following the imposition of sentence in 2010, was salutary. He
emphasizes the reasoning employed by the Pennsylvania Board of Parole
and Probation when it granted his parole. Appellant alleges that he was
granted parole “because of his participation in and completion of all
prescribed programs; the positive recommendation made by the Department
of Corrections on his behalf (the direct result of exemplary institutional
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comportment); his demonstrated motivation for success; his acceptance of
responsibility for the offense; and his state of remorse for the offense
committed.”2 Appellant’s brief at 31 (citations to the record omitted). He
maintains that the court did not mention any of these factors in rendering
his sentence, and that the court could not rely solely on its review of his
presentence report since it was authored in 2010, and thus, it did not
include the mitigating conduct he had engaged in since that time.3
Essentially, Appellant’s argument reduces to the claim that, where a
sentencing court imposes a longer sentence following remand for
resentencing, the reasons for doing so must be expressed on the record, and
that the court’s failure to enunciate such reasons herein raises a
presumption of vindictiveness that cannot be overcome based on the record
before us.4
____________________________________________
2 We note that the Department of Corrections and the Board of Probation
and Parole entered into a memorandum of understanding (“MOU”) in
October 2017. The MOU set forth the agencies’ agreement to consolidate
and coordinate overlapping functions under the auspices of the Department
of Corrections, including the full integration of the community reentry and
parole supervision functions of those departments. However, the Board of
Probation and Parole continues to exercise exclusive and independent power
of parole decisions.
3 The presentence investigation report was not made part of the certified
record.
4Appellant also raises the claim that the Supreme Court determined that his
sentence could not exceed ten to twenty years incarceration, and thus, the
(Footnote Continued Next Page)
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Instantly, we observe that, during the sentencing hearing, counsel for
Appellant apprised the court of the sentencing guidelines that were in effect
at the time of Ms. Mitchell’s assault in 1993. N.T. Sentencing, 7/6/16, at 3-
5. He also summarized Appellant’s accomplishments and the evidence of his
good behavior, including his exemplary conduct while imprisoned,
completion of educational courses, employment, and his remorse. Id. at 7-
8. Counsel indicated that Appellant had been recently paroled, and read to
the court portions of a letter from the Department of Corrections outlining
the reasons Appellant was granted parole. Id. at 9-10. Appellant spoke on
his own behalf, and reiterated his regret for Ms. Mitchell’s injuries. Id. at
12.
The trial court offered the following remarks when imposing
Appellant’s sentence:
The Court: It was at – he was found guilty of the charge of
murder of the third degree, and so at that, that’s what I’m
sentencing at and I’m imposing the following sentence. This is
based on the guidelines, everything I’ve heard, everything I
heard at trial, just totality of the circumstances really. I
reviewed the entire case file before coming in today and I am
imposing sentence.
(Footnote Continued) _______________________
sentence imposed represents an abuse of the sentencing court’s discretion.
We note that the Supreme Court’s determination that Appellant’s sentence
was unconstitutional had no bearing on the sentencing court’s discretion to
run his term of imprisonment consecutively to his original sentence.
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N.T. Sentencing Hearing, 7/6/16, at 27.5
Pursuant to Pearce, supra, in order to increase Appellant’s sentence,
the sentencing court was mandated to affirmatively state its reasons for
doing so on the record. Barnes, supra; Pearce, supra. We do not find
that the trial court’s pronouncement that Appellant’s sentence was based on
“everything [it] heard” satisfied this burden. Our conclusion is bolstered by
the fact that defense counsel apprised the court of Appellant’s progress
towards rehabilitation while incarcerated, and that progress undoubtedly
militated in favor of a lighter sentence.
It is beyond cavil that the purposes underlying our system of criminal
punishment is premised in part upon a theory of rehabilitation.
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5 In its Rule 1925(a) opinion, the trial court offered that “[t]he sentence
imposed by this [court] was sufficient, but not greater than necessary to
reflect the seriousness of the offense, and to provide a just punishment for
the offense. The sentence will afford adequate deterrence to criminal
conduct, and will protect the public from further crimes by [Appellant].”
Trial Court Opinion, 3/27/17, at 3. This reasoning was not offered on the
record at the sentencing proceeding, and we are cognizant that we cannot
consider the court’s rationale as stated in a later opinion. Commonwealth
v. Flowers, 149 A.3d 867 (Pa.Super. 2016) (citing Commonwealth v.
Giles, 449 A.2d 641 (Pa.Super. 1982)).
Further, we observe that the trial court may have been confused as to the
effect of its sentence based on assurances by the Commonwealth that such
a sentence would merely “maximiz[e] the parole time that [Appellant] would
have[.]” N.T. Sentencing, 7/6/16, at 14. Nonetheless, defense counsel
apprised the court that the sentence imposed herein would lead to the
aggregate sentence of twenty-five to fifty years imprisonment, and thus, the
court was aware of the effect of its sentence. Id. at 24-25.
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Commonwealth v. Williams, 652 A.2d 283, 285 n.1 (Pa. 1994).
Rehabilitation has always been the noblest pursuit of our criminal justice
system. In addition to the protection of the public and deterrence, the time
a convicted criminal spends incarcerated is designed to provide the
treatments necessary, and the skills required, for that individual to reenter
society with the requisite tools to cope with the challenges of modern living
without resorting to criminal conduct. Here, the evidence demonstrated
Appellant significantly benefitted from programs geared towards his
rehabilitation. As stated, he was poised for release on parole immediately
prior to resentencing, when the Board of Probation and Parole had fully
considered all of the facts of his case, including the subsequent death of Ms.
Mitchell.
In light of the evidence of Appellant’s rehabilitation, which, as noted
above, the sentencing court was not only aware of, but was required to
consider, Serrano, supra, the court was obligated to provide objective
information on the record as to why the protection of the public and the
gravity of the offense outweighed Appellant’s rehabilitative progress. See
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006)
(noting that, when imposing a sentence, the court must consider the factors
set forth in 42 Pa.C.S. § 9721(b), that is, the protection of the public, the
gravity of the offense in relation to the impact on the life of the victim and
on the community, and the rehabilitative needs of the defendant.). This is
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especially significant since the Board of Probation and Parole, only a month
prior to resentencing, had determined that Appellant’s conduct while
incarcerated was laudable, and on that basis, granted him parole. Indeed,
on the record before us, we are unable to determine the extent to which, if
any, the sentencing court considered the evidence proffered by Appellant, or
on what basis an increased sentence was justified. Hence, we must
presume that Appellant’s sentence resulted from judicial vindictiveness,
vacate Appellant’s judgment of sentence, and remand for resentencing
consistent with this writing. Barnes, supra; Serrano, supra. As we find
that Appellant’s second issue warrants relief, we need not consider his first
claimed error.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judge Ransom joins the memorandum.
P.J.E. Stevens files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2018
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