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holding that a claim of a vindictive sentence was cognizable under the PCRA as a challenge to the legality of sentence
Summary of this case from Commonwealth v. HookerOpinion
No. 23 WAP 2021
06-30-2022
COMMONWEALTH of Pennsylvania, Appellee v. Mark Allen PRINKEY, Appellant
Joel Christopher Seelye, Esq., Altoona, for Appellant. Jonathan David Thomas, Esq., Bedford County District Attorney's Office, for Appellee.
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"). 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 . 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.
42 Pa.C.S. §§ 9541 -46.
See Part II, Section A of this Opinion (discussing the caselaw establishing the four categories of illegal sentencing claims).
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"). 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.
See generally 42 Pa.C.S. § 9792 (defining, inter alia , "sexually violent predator" for purposes of the sexual offender registration and reporting scheme that was in effect in 2008, the year of Prinkey's designation as an SVP) (expired Dec. 20, 2012, pursuant to 42 Pa.C.S. § 9799.41 ).
In 2010, Prinkey timely filed his first PCRA petition. 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.
Recently, in Commonwealth v. Wharton , ––– Pa. ––––, 263 A.3d 561 (2021), this Court summarized the timeliness requirements of Section 9545(b) of the PCRA as follows:
A PCRA petition, including a second or subsequent petition, must be filed within one year of the date that judgment of sentence becomes final, unless at least one of three timeliness exceptions applies. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence becomes final for purposes of the PCRA "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S. § 9545(b)(3).
Wharton , 263 A.3d at 570.
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 ." 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.
Commonwealth v. Prinkey , 777 WDA 2012, 2013 WL 11256397, at *5 (Pa. Super. Aug. 30, 2013). See 18 Pa.C.S. § 901(a) ("A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime."); 18 Pa.C.S. § 3123(a) -(b) (defining the offense of involuntary deviate sexual intercourse with a child).
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. Prinkey moved to dismiss the Commonwealth's notice of its intention to seek the mandatory sentence.
See 42 Pa.C.S. § 9718.2(c) (requiring that, inter alia , the Commonwealth provide the defendant with "reasonable notice of the Commonwealth's intention to" pursue the mandatory minimum sentence). Per 42 Pa.C.S. § 9718.2(a)(1), "[a]ny person who is convicted" of attempted indecent assault "shall, if at the time of the commission of the current offense the person had previously been convicted of an offense set forth in" 42 Pa.C.S § 9799.14 (relating to sexual offenses and tier system), "be sentenced to a minimum sentence of at least [twenty-five] years of total confinement."
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." 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]." The Commonwealth expressed its "wish ... that [the court] had the discretion to sentence up to [twenty-five] years." The Commonwealth stated that it would have settled for a prison sentence of "ten to twenty years," which it described as a "good sentence," but nonetheless ultimately chose to request Section 9718.2(a)(1) ’s mandatory minimum sentence.
Notes of Testimony ("N.T."), Resentencing Hr'g, 2/19/2014, at 7.
Id . at 9.
Id . at 7.
Id . at 8.
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). 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.
Tr. Ct. Op., 5/8/2014, at 10.
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 appears to be a blatant example of prosecutorial vindictiveness."
Prinkey , 2020 WL 3469698 at *4 n.3 ; see also Commonwealth v. Jordan , 772 A.2d 1011, 1016 (Pa. Super. 2001) (stating that "a challenge to the discretionary aspects of sentencing is a matter that must be reviewed in the context of a direct appeal and cannot be reviewed in the context of the PCRA").
We granted Prinkey's petition for allowance of appeal, wherein he stated the following question:
Should Commonwealth v. Robinson , 931 A.2d 15 (Pa. Super. 2007) (en banc ) 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 that cannot be raised under the Pennsylvania Post-Conviction Relief Act?
Commonwealth v. Prinkey , ––– Pa. ––––, 262 A.3d 456 (2021) (per curiam ).
II. Discussion
The PCRA frames the scope of a court's authority to grant relief on collateral review as follows:
This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis .
42 Pa.C.S. § 9542. Eligibility for relief requires the petitioner to plead and prove that his or her conviction or sentence resulted from at least one of the following:
(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable
issue existed and was properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
This Court long has held that challenges to the legality of a sentence fall within the purview of the PCRA. We have explained that Subsection 9543(a)(2)(vii) provides textual support for that principle, and its accuracy or viability is not at issue in this case. The question here is whether a claim characterizing a prosecutor's pursuit of a mandatory minimum sentence as presumptively vindictive falls within that category of sentences.
E.g. , Commonwealth v. Fahy , 558 Pa. 313, 737 A.2d 214, 223 (1999) (holding that a timely challenge to "the legality of sentence is always subject to review within the PCRA").
See Commonwealth v. Moore , –––Pa. ––––, 247 A.3d 990, 998 (2021) (holding that a challenge to a provision of the Sentencing Code as unconstitutionally vague was a challenge to the legality of the sentence, "thus qualifying ... for relief under Section 9543(a)(2)(vii)")
Prinkey assails the Superior Court's determination that his vindictive sentencing claim is a challenge to the discretionary aspects of his sentence, i.e. , one that is not cognizable under the PCRA. He calls upon this Court to overrule the Superior Court's en banc decision in Robinson , and he posits that his challenge goes to the legality of the sentence he received. The question of whether a challenge to a sentence implicates its discretionary aspects or its legality presents a pure question of law. As such, our scope of review is plenary, and our standard of review is de novo . See Commonwealth v. Weir , ––– Pa. ––––, 239 A.3d 25, 30 (2020).
A. Categories of Challenges Implicating the Legality of a Sentence
Differentiation between the two types of sentencing claims has, at times, proved challenging for this Court. See Commonwealth v. Spruill , 622 Pa. 299, 80 A.3d 453, 460 (2013) ("This Court's experience with claims allegedly implicating sentencing legality has not always been smooth."). In a series of decisions over the past several years, however, we have made strides towards clarity with respect to the standards for assessing whether a challenge implicates the discretionary aspects of a sentence on the one hand or the legality of a sentence on the other.
Commonwealth v. Foster , 609 Pa. 502, 17 A.3d 332 (2011) (plurality) laid the groundwork for what would become our present approach to the legality of sentencing doctrine. There, Foster raised an as-applied constitutional challenge to the mandatory minimum sentence found at 42 Pa.C.S. § 9712 (requiring at least five years’ imprisonment for a person who visibly possesses a firearm during the commission of a crime of violence). The lead opinion in Foster reasoned that, "when a sentencing court has no alternative but to impose a certain minimum sentence," even one that might later be determined to be unconstitutional, "its authority to act has been infringed upon[,]" thus rendering the sentence "illegal." Foster , 17 A.3d at 344–45. Proceeding from that principle, the plurality held that Foster's challenge implicated the legality of the sentence because the trial court possessed no authority to refrain from imposing a mandatory minimum at sentencing, even though the application of that sentence would have been unconstitutional.
In Commonwealth v. Barnes , 637 Pa. 493, 151 A.3d 121 (2016), our seminal decision on the distinction between the two sentencing challenges, we adopted the approach to illegal sentencing claims espoused in Foster ’s lead opinion. Unlike the as-applied challenge at issue in Foster , the Barnes Court addressed a facial challenge to a sentencing statute imposing a mandatory minimum sentence. Specifically, Barnes claimed that 42 Pa.C.S. § 9712.1 ’s five-year mandatory minimum sentence facially was unconstitutional under the Supreme Court of the United States’ decision in Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding that any fact that increases a mandatory minimum sentence is an element of an aggravated offense, thereby requiring pretrial notice to a defendant, the submission of any such fact to a factfinder, and the factfinder's conclusion that the element has been established beyond a reasonable doubt). We held that, "where the mandatory minimum sentencing authority on which the sentencing court relied is rendered void on its face, and no separate mandatory authority supported the sentence, any sentence entered under such purported authority is an illegal sentence for issue preservation purposes on direct appeal." Barnes , 151 A.3d at 127.
By adopting the standard set forth by the lead opinion in Foster , Barnes settled the broad parameters of an illegal sentencing claim. We made clear that, where " ‘the sentencing court's authority to act has been infringed upon[,]’ " the sentence is " ‘illegal’ for issue-preservation purposes." Id. at 125 (brackets in original) (quoting Foster , 17 A.3d at 344–45 ). Put simply, Barnes defined an illegal sentence as one that was imposed without authority. Although Barnes went a long way in clarifying whether a claim implicates the legality of the sentence, this Court has continued to grapple with how the Barnes rule applies in particular cases.
Two years later, in Commonwealth v. DiMatteo , 644 Pa. 463, 177 A.3d 182 (2018), we considered whether Barnes ’ holding—i.e ., the principle that mandatory minimum sentences imposed under the procedure found unconstitutional pursuant to Alleyne are illegal sentences—applied with equal force in the PCRA context. We held that it did:
We are cognizant that Section 9543 specifically delineates the availability of relief and includes relief from "[t]he imposition of a sentence greater than the lawful maximum" or "[a] proceeding in a tribunal without jurisdiction." 42 Pa.C.S. §§ 9543(vii)-(viii). However, the traditional view of sentence illegality claims was limited to either a sentence that exceeded that statutory maximum or one imposed by a court lacking jurisdiction. See Foster , 17 A.3d at 349 (Castille, C.J. concurring); id . at 356 (Eakin, J. concurring). In Barnes , this Court adopted a test to determine whether a sentencing claim is illegal, thereby expanding the concept of illegal sentencing. See Barnes , 151 A.3d at 127. That the PCRA speaks to addressing illegal sentences and specifically sentences exceeding the lawful maximum or imposed by a court without jurisdiction, does not preclude DiMatteo from obtaining relief from his unquestionably illegal sentence, as the "legality of the sentence is always subject to review within the PCRA" where, as here, the petition is timely. Fahy , 737 A.2d at 223 ; accord 42 Pa.C.S. § 9542. Because DiMatteo's sentence was rendered illegal before his judgment
of sentence became final and he presented his claim in a timely petition for post-conviction relief, he is entitled to have his illegal sentence remedied.
DiMatteo , 177 A.3d at 192 (citations modified). In both the PCRA and issue preservation contexts, we have applied the principles espoused in Barnes and DiMatteo to claims beyond those implicating Alleyne .
Four broad categories of challenges have emerged in our caselaw that fall within Barnes ’ definition of an illegal sentencing challenge. First, a claim that a sentence was imposed pursuant to a facially unconstitutional sentencing statute is a legality challenge because, if the claim prevails, the sentence was imposed under statutory authority that never lawfully existed. See Commonwealth v. Monarch , 650 Pa. 394, 200 A.3d 51, 57 (2019) (providing that a claim that "enhanced mandatory minimum sentences authorized by the statute are unconstitutional when based on a refusal to submit to a warrantless blood test" constitutes a challenge to the legality of the sentence); see also Moore , 247 A.3d at 997 (explaining that, because a sentencing court does not have authority to sentence a defendant under a sentencing statute that is unconstitutionally vague, a void-for-vagueness challenge "is exactly the type of claim" that we held "implicated the legality of the sentence in Barnes and found cognizable under the PCRA in DiMatteo "). Alleyne challenges fall into this first category. See, e.g. , Barnes, 151 A.3d at 127 ; DiMatteo , 177 A.3d at 192.
The second category encompasses allegations that a sentence was imposed without the fulfillment of statutory preconditions to the court's sentencing authority. See, e.g. , Commonwealth v. Ford , 655 Pa. 255, 217 A.3d 824, 831 (2019) (holding that a challenge to the imposition of a fine on the basis that the sentencing court failed to consider the defendant's ability to pay before imposing fines, in contravention of 42 Pa.C.S. § 9726(c), amounts to a challenge to the legality of the sentence); cf. Weir , 239 A.3d at 38 (holding that a challenge to the authority to impose restitution in a case is a legality challenge, whereas a challenge to the amount of restitution is a discretionary one). Here too, a successful challenge means that the court issued a sentence that it lacked the statutory authority to impose. In other words, if the sentencing statute at issue conditions the court's authority to impose a sanction upon the existence of attendant circumstances, and if those circumstances were not present, then the court lacked statutory authority to impose the sentence, even though the unfulfilled conditions may not raise an issue of constitutional dimension. See Commonwealth v. Finnecy, ––– Pa. ––––, 249 A.3d 903, 912 (2021) ("Appellant's contention that the court failed to impose a [Recidivism Risk Reduction Incentive] Act sentence where his criminal history did not render him ineligible implicates sentencing illegality" because it "necessarily involves a challenge to the sentencing court's authority to impose a particular sentence.")
The third category of legality challenges encompasses those claims that allege a violation of a substantive restriction that the Constitution places upon a court's power to apply the statutory sentence to the defendant. Here, the linchpin is that there is a constitutional barrier to the court's ability to wield the sentencing power granted by a facially constitutional statute, not that the trial court exercised its statutory power in a way that violated the Constitution. If either the United States Constitution or the Pennsylvania Constitution places a restriction upon the power of a court to impose a particular sentence in certain circumstances, and if the appellant's claim is that those circumstances exist in his or her case, then the challenge necessarily sounds in legality. For example, in Commonwealth v. Hill , ––– Pa. ––––, 238 A.3d 399 (2020), we held that a defendant's claim that his sentence violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution implicated the legality of his sentence, not the trial court's exercise of discretion:
The federal double jeopardy clause offers several protections. Chief among those protections is the clause's safeguard against "multiple punishment for the same offense at one trial." Commonwealth v. Mills , 286 A.2d 638, 641 (1971). In the matter sub judice , Appellant maintains that the trial court sentenced and, therefore, punished him twice for the same DUI offense. If this claim is correct, then the trial court was constitutionally prohibited from punishing Appellant for his second DUI conviction. We, therefore, are convinced that Appellant did not waive this portion of his sentencing claim, as it implicates the legality of sentence, rendering the issue non-waivable, despite the fact that Appellant raised it for the first time in his PAA.
Hill , 238 A.3d at 409.
Finally, a sentence is illegal where the statutory support for the underlying conviction is void ab initio . Commonwealth v. McIntyre , 659 Pa. 428, 232 A.3d 609, 616 (2020) ("Appellant's assertion that the statute under which he was convicted was void ab initio because it was passed in an unconstitutional fashion necessarily implicates the trial court's authority to impose a sentence of incarceration for that conviction, given that a trial court is not empowered under our Commonwealth's Sentencing Code to sentence an individual for a non-existent criminal offense."). This fourth class of legality challenges is distinct from the others inasmuch as it implicates the validity of the conviction. Nevertheless, because "a conviction is the essential supporting infrastructure for a sentence, ... ‘illegality’ with respect to the former extends to the latter as well. The alternative is for courts to accept as legal a sentence which is grounded upon an illegal conviction." Spruill , 80 A.3d at 464 (Saylor, J., concurring).
A review of our decisions reveals commonalities among the various legality challenges that, in close cases, lend assistance in identifying the character of the claim. As explained, all four categories employ the definition adopted in Barnes . In each, the inquiry is whether, assuming the appellant's claim prevails, the result would be that the trial court lacked authority to impose the sentence at issue. If so, then the appellant's challenge implicates the legality of his sentence. Conversely, if the challenge is not to the existence of certain authority but to the exercise of that authority, then the challenge goes to the discretionary aspects of a sentence, not to its legality. Relatedly, as the nomenclature suggests, all legality challenges implicate a question of law, which is reviewed by appellate courts de novo . A mere disagreement with the trial court's weighing of various sentencing considerations, on the other hand, is a claim implicating only the discretionary aspects of sentencing. Finally, many legality challenges involve the applicability of a mandatory minimum sentence. As Chief Justice Baer cogently has explained, "because a sentencing court loses its authority to exercise discretion when a mandatory minimum sentence applies, the question of the propriety of applying a mandatory minimum sentencing provision implicates legality." Commonwealth v. Wolfe , 636 Pa. 37, 140 A.3d 651, 663–64 (2016) (Baer, J., concurring) (referencing Foster , 609 Pa. 502, 17 A.3d 332 ). We now apply these principles to Prinkey's vindictive sentencing claim.
The four categories of legality challenges described above are not necessarily exhaustive; they are descriptive and intended as guideposts for the bench and bar in assessing whether a challenge sounds in legality or in discretionary aspects.
See also Commonwealth v. Batts, 640 Pa. 401, 163 A.3d 410, 434-35 (2017) (reviewing distinct kinds of legality challenges and concluding that "a claim challenging a sentencing court's legal authority to impose a particular sentence presents a question of sentencing legality"), abrogated on other grounds by Jones v. Mississippi, ––– U.S. ––––, 141 S. Ct. 1307, 209 L.Ed.2d 390 (2021).
See, e.g. , Moore , 247 A.3d at 998 ("If the sentencing statute under which the sentencing court imposed [the] sentence is void, and there is not another applicable sentencing statute, the sentencing court had no authority to impose any sentence at all on Appellant.").
See, e.g. , Weir , 239 A.3d at 38 ("Weir's discontent with the amount of restitution and the evidence supporting it is a challenge to the sentencing court's exercise of discretion, not to the legality of the sentence.").
See, e.g., Commonwealth v. Shiffler , 583 Pa. 478, 879 A.2d 185, 189 (2005) ("[A]ppellant's present claim raises a question of statutory construction, which is a pure question of law and which, under the circumstances, implicates the legality of appellant's sentence.").
See Commonwealth v. Tuladziecki , 513 Pa. 508, 522 A.2d 17, 19-21 (1987) (explaining that, when the sentencing court is directed to determine the appropriate sentence based upon its "opinion" of the "weight" to be assigned to a "multitude of factors," an attack relating to the court's weighing of those factors is a challenge to the discretionary aspects of the sentence).
B. Prinkey presents a challenge to the legality of his sentence.
Prinkey's claim does not fall within the first category of legality challenges, because he does not argue that 42 Pa.C.S. § 9718.2(a)(1), the sentencing statute containing the mandatory minimum sentence imposed upon him, is unconstitutional on its face. Nor does Prinkey assert that the trial court failed to make any necessary eligibility determinations required by Section 9718.2(a)(1), thus removing his challenge from the second category. He also cannot avail himself of the fourth category because his argument is not that the statutory provisions under which he was convicted were constitutionally void ab initio . However, Prinkey's vindictive sentencing claim squarely falls within the third category of legality challenges: claims asserting a constitutional barrier to the exercise of sentencing authority conferred in a facially constitutional statute.
Before the courts below, Prinkey argued that, under Pearce , the Commonwealth was prohibited from pursuing the mandatory minimum sentence of twenty-five years. In Pearce , the Supreme Court of the United States considered "what constitutional limitations there may be upon the general power of a judge to impose upon reconviction a longer prison sentence than the defendant originally received." Pearce , 395 U.S. at 719, 89 S.Ct. 2072. The Court held that the Due Process Clause of the Fourteenth Amendment indeed circumscribes that power. Id . at 724-25, 89 S.Ct. 2072. If the lengthier sentence was motivated by a desire to punish the accused for exercising his or her right to an appeal, the new sentence constitutionally is prohibited. Id . at 725, 89 S.Ct. 2072.
Noting that "[t]he existence of a retaliatory motivation would, of course, be extremely difficult to prove in any individual case," id . at 725 n.20, 89 S.Ct. 2072, the Pearce Court held 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." Id . at 726, 89 S.Ct. 2072. The judge's on-the-record statement must detail "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id . "Otherwise, a presumption arises that a greater sentence has been imposed for a vindictive purpose." Smith , 490 U.S. at 798–99, 109 S.Ct. 2201. Stated differently, the lengthier sentence is deemed presumptively unconstitutional in the absence of an on-the-record statement that the increased term of incarceration was the product of "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Pearce , 395 U.S. at 726, 89 S.Ct. 2072.
Subsequent Supreme Court decisions narrowed the reach of Pearce ’s presumption of vindictiveness. In Alabama v. Smith , the Supreme Court held that the Pearce presumption "does not apply in every case where a convicted defendant receives a higher sentence on retrial." 490 U.S. at 799, 109 S.Ct. 2201 (cleaned up). In the Smith Court's view, Pearce was not designed to prevent the imposition of an increased sentence following retrial "for some valid reason associated with the need for flexibility and discretion in the sentencing process." Id . Thus, the Court held that the Pearce presumption applies only in "circumstances ... in which there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority." Id . (citing United States v. Goodwin , 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) ). "Where there is no ... reasonable likelihood [of vindictiveness], the burden remains upon the defendant to prove actual vindictiveness." Id .
While circumscribing the "sweeping dimension" of the Pearce presumption, id. at 799, 109 S.Ct. 2201, the Smith Court noted that the presumption nonetheless remains and persists unless some event occurs after the successful appeal, such as retrial, which provides the court with a "greater amount of sentencing information." Id . at 803, 109 S.Ct. 2201. Thus, the Pearce presumption will not apply when the resentencing that results in a higher sentence follows some post-appeal occurrence that makes it likely that the court obtained new details about the defendant's "moral character and suitability for rehabilitation." Id. at 801, 109 S.Ct. 2201. Where no such event occurs, yet the defendant's new sentence is higher than the original sentence, the Pearce presumption applies with full vigor. And when it does, it acts as a "prophylactic" measure that "forbid[s] ... the imposition of a greater punishment than was imposed after the first trial, absent specified findings." Colten v. Kentucky , 407 U.S. 104, 115, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).
This legal paradigm emanates from the protections safeguarded to individuals by the Due Process Clause. The Pearce presumption creates a constitutional barrier to the court's authority to impose a sentence found in a facially constitutional statute. Prinkey maintains that the barrier was in effect here because the circumstances of this case demonstrate a reasonable likelihood that the Commonwealth invoked the mandatory minimum sentence on remand in order to punish him for successfully appealing his IDSI conviction. More specifically, Prinkey argues that, because he was not retried, but was only resentenced, there was no post-remand event that could have revealed valid sentencing considerations that were unavailable during his original sentencing. As such, Prinkey insists that the increased sentence must be deemed an unconstitutionally vindictive punishment for his successful appeal. In Prinkey's view, there is no on-the-record determination that new information warranted the application of the mandatory minimum that would overcome the applicable presumption.
While Pearce and Smith addressed judicial vindictiveness, the same due process principles, including the presumption, apply when the retaliatory decision is made by a prosecutor. See Smith, 490 U.S. at 800 n.3, 109 S.Ct. 2201 (discussing the presumption of vindictiveness in cases involving a prosecutor's allegedly unconstitutional retaliatory conduct); see also Goodwin , 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (declining to apply a presumption of prosecutorial vindictiveness where, after the defendant declined to plead guilty to a misdemeanor charge and decided to go to trial instead, the prosecutor modified the charge from a misdemeanor to a felony); Bordenkircher v. Hayes , 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (declining to find a presumption of vindictiveness where the prosecutor carried out a threat he made during plea negotiations to have the accused reindicted on more serious charges if the accused refused to plead guilty to the original charges); Blackledge v. Perry , 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (holding that the defendant was entitled to a presumption of vindictiveness where the defendant sought de novo review of his misdemeanor conviction and, in response, the prosecutor charged the defendant with a felony).
If Prinkey is correct that the presumption applies and that the requisite on-the-record justification is absent—an aspect of his claim upon which we need not rule here, where our only task is identifying the character of his claim—then the Commonwealth lacked the authority on remand to invoke the mandatory minimum sentence under 42 Pa.C.S. § 9718.2(a)(1). By invoking Section 9718.2(a)(1), the Commonwealth stripped the sentencing court of its traditional discretionary power over sentencing. Assuming that the presumption of vindictiveness controls here, the Commonwealth lacked the authority to do so in the absence of the specific findings required by Pearce , and the trial court retained its traditional discretion. See Barnes , 151 A.3d at 126 ("[A] sentence is illegal ... where the sentencing court lacked authority to avoid entering the particular sentence that is later found to be unconstitutional."). Accordingly, we hold that Prinkey's claim is a challenge to the legality of his sentence.
Cf. Batts , 163 A.3d at 435 (holding that a challenge to the imposition of a life-without-parole sentence upon a juvenile offender implicated the legality of sentencing because, under our now abrogated understanding of the relevant decisions by the United States Supreme Court, such a sentence could be imposed "upon a juvenile offender only if [the sentencing court determines that] the crime committed is indicative of the offender's permanent incorrigibility") (emphasis in original); Ford , 217 A.3d at 831 (holding that a challenge to the imposition of a fine on the basis that the sentencing court failed to consider the defendant's ability to pay before imposing fines, in contravention of Section 9726(c) of the Sentencing Code, is a challenge to the legality of the sentence).
The Superior Court here concluded otherwise, opining it was "constrained" to apply its en banc decision in Robinson , 931 A.2d at 15. In that case, the defendant claimed that the trial court had unconstitutionally increased his sentence based upon judicial vindictiveness. Id . at 19. The Commonwealth argued that the defendant failed to preserve that claim for appellate review and had been required to do so because he challenged the discretionary aspects of his sentence. Id . The Superior Court agreed with the Commonwealth, holding that "a claim of vindictiveness is a waivable challenge to the discretionary aspects of the sentence." Id. at 22. In arriving at that conclusion, the Robinson en banc panel applied the then-valid framework for distinguishing between legality and discretionary aspects challenges, which provided as follows:
The term "illegal sentence" is a term of art that [Pennsylvania courts] apply narrowly, to a relatively small class of cases. This class of cases includes: (1) claims that the sentence fell outside of the legal parameters prescribed by the applicable statute; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey , 530 U.S. 466 [, 120 S.Ct. 2348, 147 L.Ed.2d 435] (2000). These claims implicate the fundamental legal authority of the court to impose the sentence that it did.
Most other challenges to a sentence implicate the discretionary aspects of the sentence. This is true even though the claim may involve a legal question, a patently obvious mathematical error, or an issue of constitutional dimension. Moreover, the mere fact that a rule or statute may govern or limit the trial court's exercise of discretion in sentencing does not necessarily convert the claim into one involving the legality of the sentence. For example, we recently held that the denial of the right of allocution was a challenge to the discretionary aspects of the sentence, even though both a statute and a rule of criminal procedure mandated that a court provide allocution before sentencing.
Robinson , 931 A.2d at 21 (cleaned up). The Superior Court viewed the vindictive sentencing argument as "essentially claiming that the court exercised its discretion in a way that is harsh, unreasonable, and motivated by impermissible factors," which the court construed as presenting "the very hallmarks of a claim that implicates the discretionary aspects of a sentence." Id . (emphasis in original).
Unlike the circumstances at issue in Robinson , Prinkey's Pearce claim turns upon the Commonwealth's allegedly vindictive decision to seek the mandatory minimum, which by its very nature purported to strip the trial court of its traditional sentencing authority. Indeed, the trial court here "believe[d] the law required that it impose the mandatory sentence and that [it lacked] discretion to do otherwise." Tr. Ct. Op., 5/8/2014, at 10 (emphasis added). For the reasons outlined above, a challenge alleging that the Commonwealth exercised its power to strip the sentencing court of its discretion in a way that violates the Constitution is a challenge to the legality of the subsequently imposed sentence. See Foster , 17 A.3d at 345 ("[W]here a sentencing court is required to impose a mandatory minimum sentence, and that mandatory minimum sentence affects a trial court's traditional sentencing authority, ... a defendant's challenge thereto sounds in legality of sentence.").
More fundamentally, Robinson ’s approach suggests that only claims involving a sentence that exceeds the lawful maximum can be characterized as involving the legality of sentence. See Robinson , 931 A.2d at 21. But the holding in Robinson relied upon a bygone understanding of legality challenges. Under this Court's modern approach, "a sentence is illegal ... where the sentencing court lacked authority to avoid entering the particular sentence that is later found to be unconstitutional." Barnes , 151 A.3d at 126. It is beyond cavil that Prinkey's presumptive vindictiveness claim satisfies that definition. His contention is that the resentencing court lacked authority to extend his term of incarceration beyond the length of his original sentence because, under Pearce and Smith , no event occurred between the two sentencing hearings that could (or would) have justified the imposition of a lengthier sentence; his appeal thus squarely falls within Barnes ’ definition of an illegal sentencing claim. To the extent that the Superior Court's opinion in Robinson is inconsistent, it is overruled.
III. Conclusion
Prinkey's vindictive sentencing claim implicates the legality of his sentence because, if it is correct, the trial court possessed no authority to impose the twenty-five-year mandatory minimum sentence. Put simply, Prinkey's challenge is to the court's authority to impose a greater sentence on remand, not to the exercise of valid sentencing discretion. As challenges to the legality of sentence are cognizable under the PCRA, the Superior Court committed an error of law in concluding that Prinkey's challenge to his sentence as presumptively vindictive was not within the PCRA's ambit.
Accordingly, we reverse the order of the Superior Court affirming the PCRA court's dismissal of Prinkey's timely PCRA petition. Because the narrow question presented asks only that we address the scope of the PCRA and the continued vitality of the Superior Court's decision in Robinson , we remand the matter to the Superior Court with instructions to consider, in the first instance, the merits of Prinkey's Pearce claim. If the Superior Court concludes that the PCRA court's factual determinations are insufficient to permit a decision on the merits, the Superior Court shall remand the matter to the PCRA court to address further Prinkey's challenge to the legality of his sentence under Pearce .
See Pa.R.A.P. 1115(a)(4) ("Only the questions set forth in the petition, or fairly comprised therein, will ordinarily be considered by [this Court] in the event an appeal is allowed.").
In her dissenting opinion, Justice Mundy disagrees that Prinkey raises an illegal sentencing claim because the circumstances of Prinkey's new sentence do "not strike [her] as the type of scenario in which it is so likely that the prosecution's selection of the higher of the two available sentences is motivated by a vindictive purpose that a presumption must be imputed by operation of law." Dissenting Op. at 575 (Mundy, J.). Justice Mundy arrives at that view based upon "the aggregate package" theory, which applies when "the defendant is sentenced, at the second hearing, on a different set of offenses than at the first hearing." Id . at 574. As Justice Mundy observes, the "aggregate package theory" has not been adopted by either this Court or the United States Supreme Court. See id . at 573–75.
The basis for Justice Mundy's finding of waiver is her disagreement with Prinkey's assertion that the circumstances of his case entitle him to the presumption of vindictiveness, a position at which she arrives by answering an unsettled question of law. It is contradictory to suggest that a claim is waived because of a hypothetical answer to a question concerning the merits. Waiver precludes an assessment of the merits. Yet, in deeming Prinkey's claim waived, Justice Mundy's analysis turns upon her view of the merits. See id . at 574–76. Our caselaw makes clear that, in deciding whether a sentencing claim implicates legality, we assume that the challenge would be successful. See Moore , 247 A.3d 990, 997 (holding that a void-for-vagueness claim implicated the legality of sentence because, " [i]f Section 1102(a) is void for vagueness, the sentencing court would not have been permitted to sentence Appellant to life without the possibility of parole") (emphasis added); Hill , 238 A.3d at 409 (" If this claim is correct , then the trial court was constitutionally prohibited from punishing Appellant for his second DUI conviction. We, therefore, are convinced that Appellant did not waive this portion of his sentencing claim, as it implicates the legality of sentence, rendering the issue non-waivable, despite the fact that Appellant raised it for the first time in his [Petition for Allowance of Appeal].") (emphasis added).
This is not to say, however, that an appellant can attempt to repackage a claim that plainly implicates the discretionary aspects of sentencing as one that implicates legality by, for example, baldly asserting that the trial court lacked the authority to impose the sentence. See Weir , 239 A.3d at 38 (holding that, despite the appellant's unsupported assertion that the trial court lacked the authority to impose restitution, he was actually challenging the court's weighing of the evidence as to the amount of restitution, which is a discretionary matter). But that is not what Prinkey does here. Under the law that binds us, Prinkey has a non-frivolous argument that he is entitled to the presumption of vindictiveness. See infra pp. 564–66. Neither the Supreme Court of the United States nor this Court has held that circumstances like those of the instant case either preclude or warrant application of the Pearce presumption. Contrary to Justice Mundy's suggestion, we do not here reach a conclusion one way or the other as to the presumption's ultimate applicability. We hold only that Prinkey presents a colorable argument that he is entitled to the presumption of vindictiveness, thereby questioning both the authority to impose the sentence and its legality.
While Justice Mundy's discussion of the "aggregate package" theory raises an interesting question, the merits of Prinkey's claim are beyond the scope of our allocatur grant. The narrow question presented asks whether Prinkey's claim implicates the legality of his sentence, whether his claim is cognizable under the PCRA, and whether we should overrule the Superior Court's decision in Robinson . We are not tasked with assessing the accuracy of his presumptive vindictiveness claim at this juncture.
Chief Justice Baer and Justices Todd, Donohue and Dougherty join the opinion.
Justice Mundy files a dissenting opinion in which Justice Brobson joins.
JUSTICE MUNDY, dissenting
The second time Appellant was sentenced, the set of convictions had changed, and the entity alleged to have acted vindictively – here, the prosecution – had to choose between a substantially lower sentence or a substantially higher one. In my view, the cases in which the Supreme Court has endorsed a presumption of vindictiveness do not encompass this situation. And without that presumption, Appellant's claim – which, throughout this litigation, has been that the sentence was per se vindictive – cannot be deemed an attack on the legality of his sentence so as to avoid the PCRA's waiver rule. See 42 Pa.C.S. § 9544(b) (providing an issue is waived if the PCRA petitioner could have raised it on direct appeal but failed to do so).
See Brief in Support of the Defendant's Petition for Post-Conviction Collateral Relief, at 4 (filed Aug. 24, 2018); Concise Statement of Matters Complained of on Appeal Pursuant to Rule 1925, at Issue 1 (filed Oct. 9, 2018); Commonwealth v. Prinkey , No. CP-05-CR-0000242-2007, slip op . at 4 (C.P. Bedford Aug. 28, 2018); Commonwealth v. Prinkey , 2020 WL 3469698, at *2, 237 A.3d 1083 (Pa. Super. June 25, 2020).
Prior to the underlying events in this matter, Appellant was convicted in 1998 of involuntary deviate sexual intercourse ("IDSI") as a first-degree felony, see 18 Pa.C.S. § 3123, and he was sentenced to seven-to-twenty years in prison. Shortly after his release on parole, Appellant took the seven-year-old victim of the present offense into a barn against her will and asked if she had ever kissed a boy. When she answered "no," Appellant got down on his knees and placed his hands on her shoulders. At that point, the victim fled the barn and told her sister and mother. Appellant made certain admissions to law enforcement concerning his intended actions with the young girl, see Majority Opinion, op . at 556, and he was ultimately convicted of attempted IDSI with a child, see 18 Pa.C.S. § 3123(b), attempted indecent assault of a person less than 13 years of age, see id . § 3126(a)(7), and corruption of minors. See id . § 6301; see also id . § 901 (relating to criminal attempt).
At Appellant's first sentencing, as now, the repeat-sex-offender statute directed that a person convicted of a Megan's Law predicate crime for the second time was to be sentenced to at least 25-to-50 years in prison. See 42 Pa.C.S. § 9718.2(a) (2006). These offenses included indecent assault and attempted indecent assault, see 42 Pa.C.S. § 9795.1(a)(1), (2) (superseded), as well as IDSI. See id . § 9795.1(b)(2), (3) (superseded). Because Appellant had previously been convicted of IDSI, he was a two-strike sex offender, thus potentially triggering the mandatory minimum:
At that time, the predicate crimes were listed in Section 9751.1 of the Judicial Code, which has since been replaced by Section 9799.14.
Any person who is convicted in any court of this Commonwealth of an offense set forth in section 9799.14 (relating to sexual offenses and tier system) shall, if at the time of the commission of the current offense the person had previously been convicted of an offense set forth in section 9799.14 ..., be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary.
42 Pa.C.S. § 9718.2(a)(1). The "potentially" qualifier is important because, although the above provision appears to make the sentence mandatory in all cases, other language within Section 9718.2 suggests it is only applicable if the Commonwealth gives notice of its intent to proceed under that provision:
(c) Proof at sentencing. --The provisions of this section shall not be an element of the crime, and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing . The applicability of this section shall be determined at sentencing.
Id . § 9718.2(c) (emphasis added). As this case shows, the emphasized language above has been understood to mean that the Commonwealth has discretion whether to invoke the provision between conviction and sentencing – and if the Commonwealth does not do so, the provision does not apply. Where the Commonwealth does provide such notice, however, the sentencing court lacks discretion not to apply it. See id . § 9718.2(d) ("There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsections (a) and (b) or to place the offender on probation or to suspend sentence.").
The Commonwealth does not presently challenge that understanding.
Subsection (b) indicates that the defendant is to be sentenced to a maximum of twice the mandatory minimum. See id . § 9718.2(b).
As the majority relates, when Appellant initially proceeded to sentencing on the above convictions, the Commonwealth had not provided notice, and thus, the common pleas court imposed an aggregate prison sentence of 10-to-25 years. After the most serious conviction, attempted IDSI with a child (a first-degree felony), was reversed on appeal, two convictions remained: attempted indecent assault, a third-degree felony, and corruption of minors, a first-degree misdemeanor. Because the attempted IDSI conviction was nullified based on evidentiary inadequacy, double-jeopardy principles prevented retrial on that count; thus, the Commonwealth recognized it had to proceed to sentencing knowing that, absent the mandatory minimum, Appellant would receive a lower sentence than before. The Commonwealth perceived the maximum possible sentence at that juncture to be seven-to-fourteen years in prison, which was lower than it preferred. Before resentencing occurred, therefore, it filed notice of its intent to proceed under Section 9718.2 so as to invoke the mandatory minimum.
At the resentencing hearing, Appellant expressed his view that imposition of the mandatory minimum at that juncture would violate due process because it was not imposed the first time and it would result in a longer sentence. The Commonwealth's attorney responded by explaining his reasoning as follows:
Your Honor, mandatories are one of those issues that the legislature often debates, judges debate them. And I think they're actually in a lot of circles frowned upon, because they take the discretion away from a judge. And prosecutors are often chastised for abusing the use of mandatories. So, if a prosecutor exercises discretion to not seek a mandatory in a case, and then the – because, because the guidelines and the charges seem to adequately address the defendant's conduct and history, should the prosecutor then be prohibited from seeking that mandatory later on, if the sentencing scheme has been disturbed?
In other words, the defendant when he was originally convicted was facing 52 years in prison. Judge Howsare could have sentenced him to 26 to 52 years in prison. And the Commonwealth made a recommendation close to that at the time of the original sentencing. However, we left the discretion to the Court to sentence whatever seemed appropriate. And the judge sentenced him to 10 years to 25 years .... If we're supposed to exercise these mandatories with discretion, and I believe that we do in my office ... – should we then be penalized for not seeking them in the first instance, when the circumstances have changed, and changed drastically?
This defendant who was once facing 52 years in jail for the same exact conduct, is now only facing 14 years in jail for that conduct. In other words, the mandatory is so much more necessary than it was in the first instance, where the judge could have sentenced him up to 52 years. Quite frankly, your Honor, I wish the mandatory was worded so that you had the discretion to sentence up to 25 years, but you don't ... You either sentence the 50 years or you don't, because of the mandatory. ... To tell you the truth if the defendant could be sentenced to the ten to twenty years that he was originally sentenced, I think that would be a good sentence. But I can't make that recommendation when the Court can't impose that sentence[.]
This is a man, who ... was out of jail for a couple months, a couple months before he re-offended. He's a pedophile. He's a sexually violent predator. ... He has a sincere interest in having sex with children. That's what he is and there's only one way to keep society safe from him and that's to keep him behind bars. And that's why this mandatory is there. So, we had the discretion in the instant case to not seek the mandatory and we didn't. But now we think it's appropriate. It's all the more important now that the offenses are lesser.
N.T., 2/19/14, at 6-8 (some paragraph breaks altered). The court, lacking discretion, imposed the mandatory minimum.
At the hearing on the current PCRA petition, the above was incorporated as representing the Commonwealth's reasons for seeking the mandatory minimum. See N.T., 4/21/17, at 30-31. A different attorney was representing the Commonwealth at that time, and the PCRA court offered to continue the hearing so Appellant could call the prosecutor who made the above remarks as a witness and examine him further as to his reasoning. See id . at 41. This opportunity may have been of assistance to Appellant because, even where no presumption of vindictiveness is found to exist, a defendant can obtain relief by showing actual vindictiveness in his resentencing. See Texas v. McCullough , 475 U.S. 134, 139, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). However, Appellant declined the court's offer, opting instead to rely on presumed vindictiveness arising from the increased sentence, which he referred to as "ipso facto" vindictiveness. N.T., 4/21/17, at 42.
After denying the PCRA petition, the common pleas court issued an explanatory opinion in which it quoted the February 2014 reasoning of the prosecutor (above) and concluded it did not reflect vindictiveness. See Commonwealth v. Prinkey , No. CP-05-CR-0000242-2007, slip op . at 9 (C.P. Bedford Aug. 28, 2018).
As the majority recognizes, North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), dealt with a situation where a defendant was granted a new trial on appeal, was reconvicted on the same offense, and was then resentenced to a longer term of incarceration after the second conviction. The Supreme Court recognized that the trial judge
is not constitutionally precluded ... from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's life, health, habits, conduct, and mental and moral propensities. Such information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other sources.
Id . at 723, 89 S.Ct. 2072 (internal quotation marks and citation omitted). Nevertheless, the Court observed the Fourteenth Amendment's Due Process Clause bars imposition of a harsher sentence if its purpose is to punish the defendant for exercising his appellate rights or to deter other defendants from doing so. See id . at 725, 89 S.Ct. 2072 ("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."). As a prophylactic rule "to assure the absence of such a motivation," the Court held 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.
Id . at 726, 89 S.Ct. 2072.
This holding was subsequently limited in Alabama v. Smith , 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), where the Court ruled that no presumption of vindictiveness arises from a longer sentence imposed after a trial than after a guilty plea that has been vacated on appeal. The Court articulated several reasons, including that a trial can bring to light new information about the defendant's conduct in committing the crime that was not available in the context of a plea hearing. See id . at 801, 109 S.Ct. 2201. The Court contrasted that situation with the one in Pearce , where the sentencing judge ordinarily "operate[s] in the context of roughly the same sentencing considerations after the second trial as he does after the first," and hence, an unexplained increase in the sentence is presumed to be vindictive. Id . at 802, 109 S.Ct. 2201.
Post- Pearce , the Supreme Court has never expanded upon the circumstances in which a presumption of vindictiveness will arise. See generally Plumley v. Austin , 574 U.S. 1127, 135 S.Ct. 828, 190 L.Ed.2d 923 (2015) (Thomas, J., dissenting from denial of certiorari ) (describing the Pearce presumption as "an anomaly in our law"). It has, however, clarified such a presumption does not come about by virtue of a longer sentence alone, but only in scenarios where there is a "reasonable likelihood that the increase in sentence is the product of actual vindictiveness by the sentencing authority." Smith , 490 U.S. at 799, 109 S.Ct. 2201 (internal quotation marks and citation omitted). Thus, in Colten v. Kentucky , 407 U.S. 104, 116-19, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the Court determined there is no presumption of vindictiveness when a defendant receives a longer sentence after a trial de novo in a general criminal court after appealing a conviction from an inferior court; Chaffin v. Stynchcombe , 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), held no such presumption arose where a second jury, which was not aware of the 15-year sentence meted out by the first jury, imposed a life sentence after a trial eliciting roughly the same facts; and in Texas v. McCullough , 475 U.S. 134, 138-39, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986), the Court found no presumption of vindictiveness where initially the jury sentenced the defendant to 20 years, his request for a new trial was granted, and the judge after the retrial sentenced him to 50 years. In that matter, the sentencing judge expressed that the harsher sentence was based on new information which came to light at the second trial about the defendant's role in the crime and his then-recent release from prison.
These cases all involved assertions of vindictiveness in sentencing as opposed to prosecutorial vindictiveness, which was claimed in Bordenkircher v. Hayes , 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), where the defendant argued (unsuccessfully) that his due process rights were violated when the prosecutor filed additional, more serious, charges after he refused to plead guilty to a lower charge. And ordinarily, challenges to longer sentences on the same or fewer charges are couched in terms of "vindictive sentencing " or "judicial vindictiveness." See, e.g. , McCullough , 475 U.S. 134 at 139, 106 S.Ct. 976, 89 L.Ed.2d 104 ; id . at 144, 106 S.Ct. 976 (Brennan, J., concurring); Colten , 407 U.S. at 116, 92 S.Ct. 1953. Here, however, although we are dealing with sentencing, the focus is on prosecutorial vindictiveness because the prosecution invoked its statutory authority to eliminate the court's sentencing discretion by filing notice of its intent to proceed under the mandatory-minimum provision. See Majority Opinion, op . at 565–66 (expressing that the Commonwealth "stripped the sentencing court of its traditional discretionary power over sentencing"). Regardless, the two topics – prosecutorial and judicial vindictiveness – have been addressed almost interchangeably by the Supreme Court insofar as due process is concerned. Accordingly, the contours of the Court's vindictiveness jurisprudence as it has developed in the context of judicial sentencing applies equally to the present prosecutorial sentencing decision.
See also United States v. Goodwin , 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (finding no presumption of vindictive charging arose where additional indictments were sought after the defendant exercised his right to a jury trial instead of pleading guilty). But cf. Blackledge v. Perry , 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (finding vindictiveness likely where a convicted misdemeanant asserts his right to a trial de novo and the prosecutor responds by increasing the charges against him).
Notably, the Supreme Court's decisions do not directly address a situation in which the defendant is sentenced, at the second hearing, on a different set of offenses than at the first hearing. Here, as the majority develops, one of several convictions was vacated on appeal and Appellant was resentenced on the remaining counts.
There has been debate among appellate tribunals about whether the same sentence is permissible on remand on the theory that the resentencing court has discretion to increase the sentence for some of the individual remaining counts. Most reviewing courts have determined this may occur without raising a presumption of vindictiveness under the "aggregate package" theory. The concept is that the original sentencing structure has been disrupted and the resentencing judge has discretion to enlarge some of the individual sentences in light of that new reality. Under the aggregate package approach, "the trial court may reconstruct the sentence in any way necessary to ensure that the punishment fits both the crime and the defendant, as long as the final sentence does not exceed the original sentence." State v. Wade , 297 Conn. 262, 998 A.2d 1114, 1121 (2010) (internal quotation marks and brackets omitted)).
[W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the ... court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture ... within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal.
State v. Johnson , 316 Conn. 34, 111 A.3d 447, 451 (2015) (cleaned up).
United States v. Fowler , 749 F.3d 1010 (11th Cir. 2014), illustrates the point. The defendant was convicted of witness tampering and using a firearm during a crime of violence – both charges stemming from his murder of a police officer – and he was originally sentenced to life imprisonment on the witness-tampering conviction with a consecutive ten-year sentence on the firearm charge. After he successfully challenged the witness tampering conviction on direct appeal, he was resentenced to life imprisonment on the firearm count. The sentencing court explained its original sentence "was obviously a package" and it never would have imposed a ten-year sentence on the firearm charge alone. The appellate court held, under the aggregate package theory, that no presumption of vindictiveness arose because the guidelines range recommended a life sentence under the circumstances and the sentencing court's package-sentence explanation adequately supported the penalty. Johnson and Fowler demonstrate that, per the aggregate package theory, a greater penalty on resentencing for a given individual count does not necessarily lead to a presumption of vindictiveness. As I read the present record, the logic underlying the aggregate package theory explains how the new sentence in this case came about. The Commonwealth was concerned about the overall sentencing "package" as a legitimate response to Appellant's criminal conduct. If the Commonwealth could have obtained the same or a similar sentence as it did originally, it would have been satisfied with that. See N.T., 2/19/14, at 7 (reflecting the prosecutor's statement to the court that "I wish the mandatory was worded so that you had the discretion to sentence up to 25 years, but you don't ... if the defendant could be sentenced to the ten to twenty years that he was originally sentenced, I think that would be a good sentence"). The Commonwealth was unable to obtain that sentence, and hence, unlike in Pearce and Blackledge , the government was put to a choice between a much lower or much higher sentence. This does not strike me as the type of scenario in which it is so likely that the prosecution's selection of the higher of the two available sentences is motivated by a vindictive purpose that a presumption must be imputed by operation of law. It may be observed that the Supreme Court's jurisprudence in this arena has been developed based on whether the scenario at hand is one that, as a general matter, lends itself to a likelihood that vindictiveness is at the base of the government's actions:
In addition to most federal appellate courts, a number of state courts have adopted the aggregate package approach. See State v. Wade , 297 Conn. 262, 998 A.2d 1114, 1127 (2010) ; State v. Febuary , 361 Or. 544, 396 P.3d 894, 905-06 (2017) ; see also Twigg v. State , 447 Md. 1, 133 A.3d 1125, 1142 (2016) (listing reported state appellate court decisions, as well as federal decisions). But see, e.g. , United States v. Weingarten , 713 F.3d 704, 711 (2d Cir. 2013) (using the "remainder aggregate" or "count-by-count" approach, under which appellate courts compare the original aggregate sentence on the non-reversed counts on appeal with the original sentence on those same counts before appeal). See generally United States v. Campbell , 106 F.3d 64, 67-68 (5th Cir. 1997) (surveying cases and describing the two approaches).
Motives are complex and difficult to prove. As a result, in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to "presume" an improper vindictive motive. Given the severity of such a presumption, however – which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct – the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.
Goodwin , 457 U.S. at 373, 102 S.Ct. 2485. As noted, I do not see the present scenario as one "in which a reasonable likelihood of vindictiveness exists." I would therefore find that Appellant's claim is not governed by Pearce – and, as such, that his contention does not sound in sentence illegality so as to avoid the PCRA's waiver directive.
Alternatively, to the extent an explanation is needed to rebut a presumption of vindictiveness, see McCullough , 475 U.S. at 980, 106 S.Ct. 1610 (observing that, even where such a presumption applies, a rational explanation stated on the record can overcome it); Wasman v. United States , 468 U.S. 559, 569-70, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984) (finding the Pearce presumption applied but the judge's explanation rebutted it), the Commonwealth expressed at the time of resentencing that it wanted to avoid a result it found unpalatable, namely, that Appellant would be given a sentence significantly lower than that which, in the Commonwealth's judgment, was needed to protect the public. That being the case, the Commonwealth's reasons do "affirmatively appear" as required by Pearce . I agree with the PCRA court's conclusion that the Commonwealth's reasoning did not reflect vindictiveness, as there is no suggestion the Commonwealth was motivated by a desire to penalize Appellant for exercising his appellate rights or to chill others from doing so – which is all the Due Process Clause forbids in this context. See Goodwin , 457 U.S. at 372 n.4, 102 S.Ct. 2485 ; Smith , 490 U.S. at 798, 109 S.Ct. 2201. As noted, moreover, Appellant declined the opportunity the court gave him to cross-examine the original prosecuting attorney further on the topic. See supra note 1.
Whether we agree with the Commonwealth's judgment in this respect is immaterial. The question under the Pearce rule concerns the Commonwealth's reasons for seeking a higher sentence, not whether that sentence was actually necessary to protect the public.
The majority criticizes the above analysis, stating it is beyond the scope of this appeal to determine whether the illegal-sentencing claim is meritorious. See Majority Op. at 568–69 n.24. I would note, however, this Court has never held that a mere allegation that one's sentence is illegal is alone sufficient to avoid waiver. Rather, the illegal-sentence claim must at least be potentially meritorious. As previously explained, because there is no evidence in the record of actual vindictiveness, Appellant's claim must fall within the scope of the Pearce line of cases to raise a presumption of vindictiveness. Without that presumption, Appellant's proposition that his sentence was illegal does not even have potential merit, a circumstance that distinguishes this case from those in which this Court has indicated that, if the PCRA petitioner's claim is correct , then the sentence was illegal. See id . (citing, inter alia , Commonwealth v. Moore , ––– Pa. ––––, 247 A.3d 990, 997 (2021) ). Thus, my position is based on the claim's classification, not its ultimate merit.
If, for example, a PCRA petitioner stated, without any proof, that a lower sentence imposed at resentencing was motivated by vindictiveness (which if true would render the sentence illegal), that type of claim would likewise fail to trigger Pearce ’s prophylactic rule. As such, it would not escape waiver. The only way to understand the distinction between that scenario and the present one is that the majority is effectively holding that the present claim either (a) falls within the scope of the existing Pearce rule, or (b) falls within the scope of an expansion of the Pearce presumption beyond the limits thus far recognized by the Supreme Court. I have already explained why I believe the first of these options is false. As for the second, I acknowledge this Court has concurrent jurisdiction with the federal courts to interpret federal law in new situations. However, if the Court is indeed rendering an independent interpretation of the Due Process Clause of the Fourteenth Amendment, first, I believe it should say so, and second, I would refrain from expanding the Pearce rule absent an issue framed for our review which is more closely tailored to that question, together with advocacy directly targeted to it.
This could occur if the defendant believed the second sentence, although lower than the original, was not sufficiently lower.
From my perspective, the only alternative to these two possibilities is that the majority's holding is that a bare allegation of vindictiveness is sufficient in all circumstances to overcome waiver and invoke merits review. However, that would make application of the PCRA's waiver directive depend on the use of "magic words," which is generally disfavored in our jurisprudence. See, e.g. , Commonwealth v. Collins , 598 Pa. 397, 957 A.2d 237, 259 (2008) (observing that the "mere incantation of magic words of counsel ineffectiveness is insufficient to overcome waiver") (quoting Commonwealth v. Washington , 592 Pa. 698, 927 A.2d 586, 609 (2007) ).
By way of rejoinder, the majority clarifies it agrees this situation falls outside those previously recognized by the Supreme Court as giving rise to a presumption of vindictiveness. It indicates Appellant is nonetheless entitled to merits review because, "[u]nder the law that binds us," he "presents a colorable argument that he is entitled to the presumption of vindictiveness," Majority Op. at 569 n.24, that is, a colorable argument the Pearce rule should be extended to this situation. But if an extension of that rule is necessary for a presumption of vindictiveness to apply, it is difficult to see how the claim can have potential merit under the law that currently binds us. And if we do not know whether Appellant's vindictiveness claim is valid, see id . ("We are not tasked with assessing the accuracy of [Appellant's] vindictiveness claim at this juncture."), it is difficult to discern a basis on which to direct the Superior Court to overlook waiver, see id . (remanding for the Superior Court to consider the merits of Appellant's Pearce claim).
Finally, even accepting the majority's conclusion the Pearce presumption applies in the current scenario, it is worth asking the purpose of the remand. As developed above, the prosecutor stated on the record his reasons for seeking a mandatory minimum sentence, Appellant declined the opportunity to expand the factual record associated with his resentencing, and the PCRA court determined the new sentence was not motivated by vindictiveness. Although the question this Court accepted for review was limited in scope, we need not ignore the record in deciding how to rule. The majority's mandate expressly leaves open the possibility of an evidentiary hearing on remand. See Majority Op. at 568–69 ("If the Superior Court concludes that the PCRA court's factual determinations are insufficient to permit a decision on the merits, the Superior Court shall remand the matter to the PCRA court to address further Prinkey's challenge to the legality of his sentence under Pearce ."). If the PCRA court had denied an evidentiary hearing on the factual issue of whether Appellant's higher sentence was motivated by vindictiveness based on the view that that fact was immaterial to Appellant's entitlement to relief, a new evidentiary hearing might be appropriate. But that did not happen. Approving a potential hearing in the PCRA court at this juncture improperly gives Appellant a second bite at the evidentiary apple.
As I would affirm the order of the Superior Court, I respectfully dissent.
Justice Brobson joins this dissenting opinion.