Commonwealth v. Mikesell

BECK, Judge,

dissenting:

I join in the majority’s insightful analysis of appellant’s allegations of trial errors and counsel ineffectiveness.

I dissent from the majority’s limited analysis of appellant’s sentencing issue: whether the lower court erred in imposing a more severe sentence on Mikesell and declining to modify that sentence on reconsideration. The majority considers appellant’s challenge as a challenge to the legality of sentence. I disagree. Legality of sentence relates to the court’s power to impose a particular sentence. The defect in an illegal sentence “will go to the power of the court to impose sentence.” Commonwealth v. Tolassi, 303 Pa.Super. 177, 181, 449 A.2d 636, 638 (1982). Since the court had *227the power to impose concurrent sentences under the Code, there is no question that the sentence was legal.

The challenge applies to a discretionary aspect of sentencing: i.e., upon resentencing, whether the court failed to give adequate reasons for imposing consecutive rather than concurrent sentences. I find that the court failed to give adequate reasons for imposing two consecutive life sentences.

Following his second conviction, appellant was sentenced to two concurrent life sentences. After a successful appeal, he was again convicted in a third trial. The sentencing judge, who was different from the previous sentencing judge, increased appellant’s total sentence by imposing two consecutive life sentences. See Commonwealth v. Hermankevich, 220 Pa.Super. 197, 286 A.2d 644 (1971). Appellant now claims the judge erred in imposing consecutive sentences instead of reimposing concurrent sentences. In his argument, appellant specifies that, “since no reasons affirmatively appeared in this Court’s enhanced sentence, Mikesell applied for modification believing the sentence was in error.” His motion to modify sentence states that no facts appear of record indicating why the defendant was given an increased sentence after this third trial. On appeal, his allegation of error is premised on the argument that the new sentencing judge abused his discretion by not stating on the record reasons for the enhanced sentence.

A challenge to the adequacy of a statement of reasons is an appeal of a discretionary aspect of sentencing. Commonwealth v. Osborn, 364 Pa.Super. 505, 520, 528 A.2d 623, 630 (1987). The right to appeal from a discretionary aspect of a sentence is not absolute. In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the Pennsylvania Supreme Court held that such an appeal should comply with the requirements of both Pa.R.A.P. 2119(f) and section 9781(b) of the Sentencing Code, 42 Pa.Cons.Stat.Ann. § 9781(b) (Purdon 1982). Appellant’s brief failed to raise this sentencing issue properly pursuant to Pa.R.App.P. 2119(f). However, this court can overlook this deficiency *228because the Commonwealth is silent as to this defect. Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc).

Before considering the merits of appellant’s challenge, the reviewing court must consider whether appellant has raised a substantial question under the Sentencing Code as a whole. Commonwealth v. Krum, 42 Pa.Cons.Stat.Ann. § 9781(b). Failure to state adequate reasons at an initial sentencing hearing raises a substantial question, Commonwealth v. Lapcevich, 364 Pa.Super. 151, 155 n. 2, 527 A.2d 572, 573 n. 2 (1987), because the Sentencing Code requires the sentencing judge to place on the record at the hearing reasons for the sentence imposed. 42 Pa.Cons.Stat.Ann. § 9781(b), Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), Pa.R.Crim.P. 1405.

The requirement to provide adequate reasons also applies to subsequent resentencing hearings. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987); therefore, I conclude that appellant’s challenge to the adequacy of reasons on resentencing raises a substantial question.

The importance of requiring the judge upon resentencing to state adequate reasons on the record is brought into sharper focus when the applicable United States Supreme Court precedents are considered. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) established a presumption of vindictiveness when an appellant received a harsher sentence upon retrial after an appeal. This presumption assured not only the actual absence of retaliatory motivation but also the absence of the appearance of retaliatory motivation. Pearce also required that reasons for a more severe sentence appear on the record, “so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” More recently, Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) modified Pearce by holding that the Pearce presumption was not applicable' where the resentencing judge was different from the original judge. McCullough did not specifically address the Pearce require*229ment that reasons be placed on the record where the sentence is increased.

If we assume, arguendo, that the instant case does not carry with it the Pearce presumption of vindictiveness,1 then it is all the more important that judges commit their reasons on the record in order to make clear that the judge was not motivated by vindictiveness but had sound reasons for the harsher sentence imposed. A defendant should not forgo his legitimate right of appeal because he fears that if he prevails on appeal and is retried, he will be exposed to a harsher sentence without good reason. Such a situation would chill a defendant’s decision as to whether to pursue an appeal.

Therefore I would review the merits of the adequacy of the statement of reasons. At the first day of the resentencing hearing, the judge indicated his intention to impose consecutive life sentences. When told that Judge Ridge, the previous sentencing judge, had imposed concurrent sentences, the sentencing judge stated:

I’m going to find out what the situation is. I’m going to ask Judge Ridge and we’ll do what he did____ I think we better have [appellant] come back for sentence because if Judge Ridge said one thing, I got to do the same thing. I feel I should do it anyway.

N.T. Feb, 5, 1982 at 7. On the second day of hearing, the judge stated,

“Well, we consulted with Judge Ridge. He gave two life sentences. One he didn’t specify. One was to be concurrent to the other. So, we’ll have to sentence him consecutively.

N.T. Feb. 8, 1982 at 8-9. The sentencing judge places no further statement of reasons on the record for imposing consecutive sentences.

In his subsequent opinion of November 10, 1986, denying post-trial motions, the sentencing judge states: “The impo*230sition of consecutive life sentences was not inadvertant. This court imposed such a sentence because two lives were taken by the defendant.” The adequacy of this brief subsequent explanation is not at issue. An adequate statement of reasons must be placed on the record at the time of sentencing. Pa.R.Crim.P. 1405.

Here the resentencing judge failed to provide on the record that, in resentencing appellant, he did so in accordance with the standards established by the Code. In the final analysis, there is an unexplained imposition of consecutive sentences.

Therefore I would remand for resentencing.

. It is not at all clear whether under state constitutional law the attenuated standard of McCullough would prevail over the stricter standard of Pearce.