Commonwealth v. Wallace

Justice BAER

dissenting.

Contrary to the majority, I believe the first Superior Court panel’s disposition of the issue concerning the maximum term available to the trial court upon resentencing was not dicta and therefore represents the law of the case. Accordingly, I believe this issue was waived by the Commonwealth, when, after the first Superior Court panel’s decision, it failed to seek allocatur. Moreover, assuming arguendo that the first Superi- or Court’s panel directive was dicta, this does not justify the ' Commonwealth’s failure to appeal and the trial court’s refusal to follow the Superior Court’s directive.1

As the majority accurately recounts, pursuant to a negotiated guilty plea, Appellee was sentenced to concurrent terms of imprisonment of twenty-one (21) to forty-two (42) months followed by two years of probation and a $5,000 fine. Appellee served this sentence and was released. He does not dispute that he then violated probation. After an appropriate hearing, the trial court resentenced him to three consecutive terms of imprisonment of five to ten years, the maximum available for his original crimes under the Sentencing Code. Appellee appealed to the Superior Court, arguing, inter alia, that his sentence was illegal under Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109 (1994), which will be discussed infra.

*245A panel of the Superior Court agreed that, based on Anderson, the trial court was bound to impose concurrent sentences under the terms of the negotiated plea agreement, and therefore the trial court’s sentence was invalid, as it altered the sentencing scheme by substituting consecutive terms for concurrent terms. The same panel then turned its attention to the question of Appellee’s potential maximum sentence and opined that a new sentence premised upon probation revocation could not exceed the maximum computable time of the original sentence. Accordingly, the Superior Court determined that the trial court’s sentence after probation revocation was flawed both because it imposed consecutive terms and because it was longer than the maximum computable sentence under the initial plea bargain. Thus, the Superior Court vacated the judgment of sentence, and remanded to the trial court for resentencing consistent with its decision.

On remand, the trial court decided that the Superior Court incorrectly stated the law regarding the maximum sentence permitted upon resentencing in what the trial court characterized as dicta. The trial court opinion explained:

This Court’s April 8, 2002 order was not an illegal sentence. As the Court stated on the record, the Superior Court Opinion incorrectly stated the law in this area, and as such this Court considered it merely dicta since it did not go to the facts of the case.

Common Pleas Court Op. at 3. Aimed with this justification, the trial court disregarded the portion of the Superior Court’s opinion concerning the maximum allowable sentence, and sentenced Appellee to three concurrent terms of five to ten years imprisonment.

Appellee again appealed arguing that the sentence imposed by the trial court following remand was illegal because, although it imposed concurrent terms, the aggregate term was in excess of the maximum time cognizable under the original sentence, in contravention of the first Superior Court panel’s directives. Upon review, a second Superior Court panel conceded that the first panel erred, but, nevertheless, reversed *246and remanded holding that the “law of the case” doctrine bound the trial court and it to the first Superior Court panel decision. Specifically, the second Superior Court panel stated:

To our dismay, the trial court treated our [the first panel’s] directive on the issue of the length of the sentence as “an incorrect statement of the law” and “dicta,” because in its opinion, the issue on appeal concerned solely the distinction between concurrent and consecutive terms. We disagree first with the “dicta” characterization; the issue on the original appeal concerned both the length and the manner of the sentencing terms imposed ... The trial court was and this Court is bound by the earlier panel’s disposition of this issue. It is the law of the case.

Superior Court Op., 7/30/03, at 4 (emphasis added).

I believe that the second Superior Court was correct in its assertion that the original appeal concerned both the manner and length of sentencing terms and, therefore, the position of the first Superior Court panel’s decision concerning the maximum allowable sentence was not dicta; moreover, as properly held by the second Superior Court panel, even assuming arguendo the first Superior Court panel’s decision was dicta, the trial court and the second Superior Court panel were nevertheless bound by the original panel’s disposition of the issue.

In the original appeal from the trial court’s order, Appellee presented the following issue to the Superior Court, clearly raising both the length and the manner of sentencing terms imposed:

1. Were not the three sentences of five to ten years incarceration imposed consecutively on Informations CP 9505-0257, CP 9507-0920 and CP 9508-0096 for an aggregate term of fifteen to thirty years illegal because the original sentence, imposed pursuant to a negotiated plea, was twenty-one to forty two months plus two years probation, all three sentences running concurrently?
Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109 (1994).

*247Superior Court Op., 12/18/01, at 2 (emphasis added). The majority construes this issue to have encompassed only the question of the propriety of the court’s imposition of consecutive sentences, rather than also scrutinizing the length of the total sentence. Specifically, the majority finds that neither the Commonwealth nor Appellee ever raised before the first Superior Court panel the question of whether the trial court was bound by the maximum term contemplated in the plea agreement and, thus, the only issue before the first panel was whether the imposition of consecutive sentences was prohibited. To the contrary, as seen in the above quotation of Appellee’s issue, he clearly raised the propriety of both the manner and length of the new sentence.

In Anderson, the defendant pled guilty to two counts of burglary and was sentenced to a total of eleven and one-half to twenty-three months imprisonment to be followed by five years of probation. Two months later, the defendant entered a negotiated guilty plea to one count each of theft by unlawful taking and receiving stolen property. Under the terms of a negotiated plea agreement, the defendant was sentenced to five years’ probation to run concurrently with her sentence for the prior burglary convictions. Subsequently, the defendant violated the terms of her probation. Following a hearing, the trial court revoked her probation and sentenced her to two to five years of incarceration on the burglary convictions and two to four years on the theft convictions. The trial court ordered these sentences to run consecutively for an aggregate four to nine year term of confinement.

On appeal, the defendant claimed the trial court erred in imposing consecutive sentences and thereby exceeding the maximum sentence calculable under the bargained for initial plea-bargain sentence. The defendant contended that following probation revocation, the trial court was limited to imposition of concurrent sentences not exceeding eighty-three (83) months, which was the maximum sentence under the plea bargain.2 A panel of the Superior Court agreed. The Superi- *248or Court determined that once a court has acquiesced in a plea bargain and sentenced pursuant thereto, upon resentencing following the revocation of probation, the court is bound by the plea bargain:

First, the trial court’s sentencing alternatives at the time of initial sentencing were circumscribed by the plea agreement. The imposition of consecutive sentences upon probation revocation was in direct abrogation of the plea agreement, and enlarged the sentencing options which had been available to the court at the time of the original sentencing. Second, by imposing consecutive sentences following probation revocation, the trial court exceeded the maximum sentence originally imposed. On resentencing, the trial court imposed an aggregate term of four to nine years’ incarceration, which exceeded the maximum limit of the original sentence.
We hold that the trial court was without authority in this case to alter the sentencing scheme from concurrent to consecutive sentences when resentencing upon probation revocation. In doing so, the trial court imposed a sentence that directly abrogated the accepted and enforced plea agreement and exceeded the maximum limit of the original sentence.

Anderson, 643 A.2d at 114 (citations and footnotes omitted). As the forgoing language makes clear, in Anderson, the court disposed of both the issues of whether a trial court, upon resentencing, is bound by the scheme set forth in the plea (consecutive versus concurrent) as well as whether the court is bound by the maximum term computable by the original plea agreement.

In the instant case, through the explicit language used in the statement of the issue raised before the first' Superior Court panel in his original appeal, as well as his citation to Anderson in his statement of the issue, Appellee questioned not only the propriety of the court’s imposition of consecutive *249sentences, but also the validity of the term of sentence imposed by the court. Accordingly, in its Opinion, the first Superior Court panel determined that:

The trial court’s imposition of three consecutive terms of five to ten years’ imprisonment was invalid, as it altered the sentencing scheme from concurrent to consecutive sentences. Moreover, although we recognize the sentence imposed was within the statutory limits, it exceeded the maximum limit of the original sentence. On resentencing, the trial court imposed an aggregate term of fifteen to thirty years which exceeded the maximum limit of the original sentence which had an outside limit of five and one-half years.
Accordingly, we vacate the judgment of sentence and remand for resentencing.

Superior Court Op., 12/18/01, at 6.

Based on this directive, there is simply no way the Superior Court’s discussion and its directive can be characterized as dicta. The trial court was obligated to follow the Superior Court’s order, pursuant to the “law of the case” doctrine.3 If the Commonwealth was dissatisfied with this ruling, it was incumbent upon it to seek allocatur at that juncture. As it did not, this Court should have held that such failure resulted in waiver of the issue.4

*250Additionally, even if the language in the Superior Court’s opinion, regarding the maximum term available upon resentencing was dicta, such should not be deemed to justify a trial court’s disregard of an appellate court’s directive or the failure to appeal by a party against whose interest the ruling was entered. To the contrary, a trial court must follow the directive of an appellate court5 and an aggrieved party is bound to appeal an adverse decision by the lower court. Pa.R.A.P. 501.6 To hold otherwise is inconsistent with our orderly system of justice, and has the potential to create much mischief. As has happened in this case, it permits a trial court to characterize an appellate court directive as dicta, and on that basis, to decline to follow it. Also, as in this ease, it permits an attorney to characterize a holding by either a trial or an appellate court as dicta, and to decline to appeal, and presumably, by logical extension, decline to follow such a ruling. It is shocking that the majority seems to create this loophole allowing for trial courts and lawyers to engage in wholly subjective analysis, conclude that a court’s pronouncement is dicta, and, premised upon that conclusion, choose to ignore such holding.

I would affirm the Superior Court’s order finding that we may not properly address the merits of the Commonwealth’s previously waived claim.

. It is noted that there is a distinction between dicta contained in prior authority, which clearly does not constitute binding precedent on litigants in general and, as in this case, a court directive addressed specifically to the parties.

. The initial sentence was eleven and one half (11-1/2) to twenty-three (23) months followed by five years probation. Adding the maximum *248period of incarceration of twenty-three (23) months to the maximum period of incarceration should probation revocation occur of five years or sixty months, yields twenty-three (23) months plus sixty months or eighty-three (83) months.

. In Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1331 (1995), this Court noted that the "law of the case” doctrine refers to a family of rules which embodies the concept that a court involved in the later phases of a litigation matter should not reopen questions decided by another judge of that same court or by a higher court in an earlier phase of the matter.

Among the related but distinct rules which make up the “law of the case” doctrine are that: (1) upon remand for further proceedings, a trial court may not alter the resolution of a legal question previously decided by the appellate court in the matter; (2) upon a second appeal, an appellate court may not alter the resolution of a legal question previously decided by the same appellate court; and (3) upon transfer of a matter between trial judges of coordinate jurisdiction, the transferee trial court may not alter the resolution of a legal question previously decided by the transferor trial court.

. The irony of this case is that the trial court provided the Commonwealth with the proverbial second bite at the apple by declining to *250follow the directive of the Superior Court, and thereby entering a new appealable decision. Clearly, if the trial court would have conducted itself properly, the Commonwealth could not have appealed the trial court's disposition entered in accordance with the instructions from the Superior Court.

. Starr at 1331.

. Pa.R.A.P. 501, entitled, "Any Aggrieved Party May Appeal,” provides as follows: Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom.