Com. v. Lorenz, C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHRISTINA LAREA LORENZ :
:
Appellant : No. 49 WDA 2021
Appeal from the Judgment of Sentence Entered October 26, 2020
In the Court of Common Pleas of Greene County Criminal Division at
No(s): CP-30-CR-0000108-2017
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: DECEMBER 21, 2021
Appellant, Christina Larea Lorenz, appeals from the judgment of
sentence of 20 months to 5 years’ incarceration that was imposed by the Court
of Common Pleas of Greene County on resentencing for her convictions of
aggravated assault, simple assault, and reckless endangerment. 1 After
careful review, we affirm.
On September 27, 2018, Appellant was convicted by a jury of the above
crimes for stabbing her then-fiancé in the torso. On January 18, 2019, the
trial court sentenced Appellant to 20 months to 5 years’ incarceration for
aggravated assault and imposed no sentence for simple assault and reckless
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2702(a)(4), 2701(a)(2), and 2705, respectively.
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endangerment because those offenses merged with the aggravated assault
conviction. Sentencing Order, 1/18/19, at 2. Appellant filed a timely post-
sentence motion, which was denied, and timely appealed from the judgment
of sentence on March 4, 2019. While the appeal was pending, Appellant filed
an application to remand the case to the trial court based on after-discovered
evidence. On January 13, 2020, this Court granted Appellant’s application,
vacated Appellant’s judgment of sentence, and remanded the case to the trial
court to hold an evidentiary hearing on whether Appellant’s claim met the
requirements for granting a new trial based on after-discovered evidence.
Commonwealth v. Lorenz, No. 363 WDA 2019, unpublished memorandum
at 4-5 (Pa. Super. filed January 13, 2020).
Following this remand, Appellant was released on bail on April 16, 2020.
Trial Court Opinion, 3/2/21, at 4. On August 4, 2020, at the hearing on
Appellant’s after-discovered evidence claim, Appellant’s counsel conceded that
after further review and investigation, he had determined the
Commonwealth’s statement on which the after-discovered evidence claim was
based was not accurate and that there was no basis for a new trial based on
after-discovered evidence. Trial Court Order, 8/10/20, at 2. The trial court
accordingly scheduled a hearing to resentence Appellant.
At the resentencing hearing on October 26, 2020, Appellant argued that
before her original sentence was vacated, she had been approved for parole
and was scheduled to be paroled on May 27, 2020 at the expiration of her
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minimum sentence, and that reimposition of the original sentence would have
a chilling effect on her right to challenge her conviction because it was likely
that the state parole board would not complete evaluating her for parole
before she had served more than her minimum sentence. N.T. Resentencing,
10/26/20, at 3, 8, 12-14, 16-17. The trial court reimposed the same sentence
that it had originally imposed, sentencing Appellant to the 20 months to 5
years’ incarceration for aggravated assault and imposing no sentence for
simple assault and reckless endangerment because those offenses merged
with the aggravated assault conviction. Id. at 24-25; Sentencing Order,
10/26/20, at 2-3. In its sentencing order, the trial court specifically gave
Appellant credit for all of the time that she had served and noted that Appellant
had only 40 days left to serve on her 20-month minimum sentence.
Sentencing Order, 10/26/20, at 2.
Appellant filed a timely post-sentence motion to modify sentence in
which she argued that the re-imposition of the 20-month-to-5-year sentence
was improper because it had a chilling effect on her right to appeal her
conviction. Docket Entry 167; Trial Court Opinion, 3/2/21, at 5-6. On
December 21, 2020, the trial court denied Appellant’s post-sentence motion.
This timely appeal followed.
Appellant presents a single argument in this appeal, that her sentence
is illegal because it subjects her to increased incarceration as a result of her
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after-discovered-evidence claim and therefore has a chilling effect on her right
to challenge her conviction.
Due process of law prohibits imposition of a harsher sentence on a
defendant in retaliation for the defendant’s successful challenge to his or her
conviction or sentence. North Carolina v. Pearce, 395 U.S. 711, 723-25
(1969); Commonwealth v. Speight, 854 A.2d 450, 455 (Pa. 2004);
Commonwealth v. Ali, 197 A.3d 742, 761 (Pa. Super. 2018);
Commonwealth v. Barnes, 167 A.3d 110, 123 (Pa. Super. 2017) (en banc).
Due process of law … 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.
Pearce, 395 U.S. at 725. To ensure that such retaliation does not occur, a
presumption of vindictiveness arises where the same judge who originally
sentenced the defendant following a conviction at trial resentences the
defendant to a harsher sentence after the original sentence is vacated.
Speight, 854 A.2d at 455; Commonwealth v. Watson, 228 A.3d 928, 937
(Pa. Super. 2020); Commonwealth v. Robinson, 931 A.2d 15, 22 (Pa.
Super. 2007) (en banc).
Appellant’s assertion that this is a challenge to the legality of her
sentence is incorrect. A claim that a new sentence is invalid under Pearce is
a challenge to the discretionary aspects of sentence. Barnes, 167 A.3d at
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122; Robinson, 931 A.2d at 21-22. But see Commonwealth v. Prinkey,
319 WAL 2020 (Pa. filed August 31, 2021) (granting appeal on the question
whether Robinson should “be overturned so that Pennsylvania law will treat
an appellate challenge to a sentence on the basis of a claim of vindictiveness
as a challenge to the legality of the sentence as opposed to the discretionary
aspects of sentencing”).
To obtain review of the discretionary aspects of sentence, the appellant
must have preserved the issue in the trial court at sentencing or in a post
sentence motion, must demonstrate that the challenge to the sentence raises
a substantial question that the sentence appealed from is not appropriate, and
must include in her brief a concise statement of reasons for allowing appeal
with respect to the discretionary aspects of sentence in accordance with Rule
2119(f) of the Rules of Appellate Procedure. Watson, 228 A.3d at 935;
Barnes, 167 A.3d at 122; Pa.R.A.P. 2119(f). Appellant has satisfied the first
two of these requirements. Appellant preserved the issue in the trial court by
raising this claim both at sentencing and in her post sentence motion. N.T.
Resentencing, 10/26/20, at 12-13, 16-17; Trial Court Opinion, 3/2/21, at 5-
6. The law is clear that a claim that a new sentence is invalid on the ground
that it imposed a post-appeal increase in the defendant’s sentence raises a
substantial question for this Court’s review. Watson, 228 A.3d at 936;
Barnes, 167 A.3d at 123; Commonwealth v. Tapp, 997 A.2d 1201, 1203
(Pa. Super. 2010).
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Appellant did not include in her brief a Rule 2119(f) concise statement
of reasons for allowing appeal with respect to the discretionary aspects of
sentence. The Commonwealth has not, however, objected to Appellant’s
failure to comply with Rule 2119(f). Failure to comply with Rule 2119(f) does
not bar consideration of an otherwise properly preserved challenge to the
discretionary aspects of sentence where it is clear from the appellant’s brief
that a substantial question is raised and the Commonwealth does not object
to the absence of a Rule 2119(f) statement. Commonwealth v. Antidormi,
84 A.3d 736, 759 (Pa. Super. 2014); Commonwealth v. Kneller, 999 A.2d
608, 614 (Pa. Super. 2010) (en banc). We therefore consider Appellant’s
challenge to her sentence.
Appellant’s claim, however, fails on the merits. The sentence that the
trial court imposed on resentencing was the same sentence that it originally
imposed, with full credit for time served. It was therefore not a longer
sentence or harsher sentence than Appellant’s original sentence. Because the
trial court did not increase Appellant’s sentence, no presumption of
vindictiveness or retaliation arises and there is no violation of Appellant’s due
process rights under Pearce. Commonwealth v. Rominger, 199 A.3d 964,
971 (Pa. Super. 2018); Barnes, 167 A.3d at 124-25; Commonwealth v.
McHale, 924 A.2d 664, 673 (Pa. Super. 2007), overruled on other issue,
Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007).
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The fact that the timing of the vacatur of her original sentence adversely
affected Appellant’s ability to be released on parole as soon as she finished
serving her minimum sentence does not bar the trial court from imposing a
proper, non-retaliatory sentence on resentencing. Pearce and its progeny do
not insulate a defendant from all risk of an increased sentence or of serving a
longer period of imprisonment after a conviction or sentence is vacated.
Chaffin v. Stynchcombe, 412 U.S. 17, 18-19, 29-35 (1973) (increased
sentence on retrial of life imprisonment imposed by different sentencer where
original sentence was 15 years did not violate defendant’s due process rights);
Commonwealth v. Sattazahn, 763 A.2d 359, 368-69 (Pa. 2000), aff’d sub
nom. Sattazahn v. Pennsylvania,, 537 U.S. 101 (2003) (imposition of
death sentence by jury on retrial where life sentence had previously been
imposed because of jury deadlock did not impermissibly chill defendant’s right
to challenge murder conviction); Tapp, 997 A.2d at 1203-05 (imposition
following retrial of a sentence twice as long as defendant’s original sentence
did not violate defendant’s rights under Pearce where second sentence was
imposed by a different judge). “[T]he possibility of a harsher sentence … does
not place an impermissible burden on the right of a criminal defendant to
appeal … his conviction.” Sattazahn, 763 A.2d at 368 (quoting Chaffin)
(emphasis omitted) (ellipses in original).
Rather, increased sentences are prohibited due to their chilling effect on
the right to challenge a conviction or sentence only where the new sentence
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could be reasonably viewed as retaliation for the defendant’s exercise of his
or her rights. Alabama v. Smith, 490 U.S. 794, 798-802 (1989); Chaffin,
412 U.S. at 24-35; Tapp, 997 A.2d at 1203-05; McHale, 924 A.2d at 671.
Here, the reimposition of the same sentence that the trial court originally
imposed with full credit for time served cannot be viewed as retaliation for
Appellant’s attempt to set her conviction aside.
None of the cases relied on by Appellant hold that imposition of an
identical sentence on resentencing is improper. In each of the cases where a
new sentence was invalidated, the period of incarceration imposed by the
sentence was longer than the original sentence. Pearce, 395 U.S. at 713 &
n.1 (second sentence increased the length of the defendant’s minimum
sentence by almost 3 years); Commonwealth v. Silverman, 275 A.2d 308,
309 (Pa. 1971) (trial court increased defendant’s sentence from 7 months to
3 years to 2 to 5 years); Commonwealth v. Tomlin, 336 A.2d 407, 408 (Pa.
Super. 1975) (en banc) (trial court increased defendant’s sentence from 1 to
5 years to 31/2 to 7 years).2 The remaining case relied upon by Appellant,
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2 In addition, Silverman and Tomlin are not applicable here at all, as both
involved an alteration by the trial court of an existing sentence, not a
resentencing after the original sentence had been vacated on appeal.
Silverman, 275 A.2d at 310, 312; Tomlin, 336 A.2d at 408-09. Where, as
here, a conviction or sentence has been set aside on appeal, double jeopardy
does not restrict a court’s authority in resentencing, provided that the time
that the defendant has already served is taken into account. Pearce, 395
U.S. at 717-21, 723; Sattazahn, 763 A.2d at 366, 368; Commonwealth v.
Martorano, 634 A.2d 1063, 1068 (Pa. 1993).
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Commonwealth v. Bailey, 378 A.2d 998 (Pa. Super. 1977) (en banc), held
that imposition of the same sentence on remand would not violate the
defendant’s rights. Id. at 1003.
Because the trial court reimposed the same sentence with full credit for
time served and did not sentence Appellant to any longer period of
incarceration, the sentence does not violate Appellant’s due process rights.
We therefore affirm the trial court’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
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