J-S52013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. MAHARAJI M. HEMINGWAY, Appellant No. 1834 WDA 2014

Appeal from the Judgment of Sentence June 23, 2014 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000043-2009

BEFORE: SHOGAN, OLSON, and WECHT, JJ. MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 27, 2015 Appellant, Maharaji M. Hemingway, appeals from the judgment of sentence entered for his convictions of multiple dr ug-related offenses after this Court vacated his previous judgment of sentenc e and remanded for resentencing. We affirm. The trial court summarized the protracted procedur al history of this

case as follows: [Appellant] was convicted of twelve charges relati ng to drug distribution activities occurring between 2005 and 2007. At the start of 2005[, Appellant] was 2[6] years old, and did not turn 28 until January 30 th , 2006. Criminal Complaint, CR000036-08. [Appellant] has a significant criminal history, including a juvenile record. On January 8 th , 2009, as a result of a grand jury investigation commencing in 2006, drug related charges were filed against Clearfield County reside nts Michael Styers and Charles Gearhart as well as [Appellant], from Philadelphia, Pennsylvania. The Grand Jury determi ned that Styers was the head of a cocaine distribution netwo rk operatingJ-S52013-15

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primarily out of his garage/residence in Clearfield , Clearfield County with Gearhart being one of Styers’ principal cocaine dealers. 1 [Appellant] was named as Styers’ main source of cocaine out of Philadelphia between 2005 and 2007. [Appellant] was alleged to have sold Styers and others cocaine in Philadelphia and in Clearfield County multiple time s each month during the duration of their association.

1 The 26th Statewide Investigating Grand Jury based in Allegheny County, Pennsylvania[,] issued Presentment Number 32 on September 25, 2008. As a result, a Criminal Complaint was filed agains t [Appellant] in the above captioned matter on Januar y 16, 2009, charging [Appellant] with various counts of possess ion with intent to deliver and delivery of controlled substa nce, criminal conspiracy, criminal use of communication facility, dealing in proceeds of unlawful activity, and corrupt organiza tions. After lengthy pre-trial proceedings, including an appeal to the Superior Court by the Commonwealth, a consolidated trial for all three defendants was held before the Clearfield County Co urt of Common Pleas on January 23, 2012 through February 1 , 2012. During the course of this eight day trial, the Commonwealth presented the testimony of twenty-four witnesses who were connected with or participated i n the cocaine distribution ring alleged in this case. Of those, at least ten witnesses provided testimony directly regarding [Appellant] and/or his involvement in selling cocaine in Clearf ield County. For example, Arianne Brocious testified that she fi rst met [Appellant], known to her as “Bean,” through her co usin, Kara Butler, to purchase cocaine. Trial Tr. Day 3 of 8, Test. of Arianne Brocious, 9, Jan. 25, 2012. She testified that she then introduced Styers to [Appellant], and made multiple trips with Styers and/or with Gearhart to Philadelphia to purc hase cocaine from [Appellant]. Id . at 11. In her testimony, Ms. Brocious estimated that four ounces of cocaine were purchase d per trip, with the trips occurring regularly. Id . at 11, 13. She testified that she made around or more than fifteen trips wit h Styers and/or Gearhart, and that they would also make trip s without her. Id . at 13-14. Tara Swatsworth (Osborn) testified that she became involved with the use of cocaine in March of 2006, buying fromJ-S52013-15

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Richard Smeal and Jacob Pittman. Trial Tr. Day 2 o f 8, Test. of Tara Swatsworth, 4-5, Jan. 24, 2012. She first met [Appellant] when he came to her house in Curwensville, Clearfie ld County, Pennsylvania. Id . at 10. She testified that he arrived with a shoebox containing a half full half-gallon bag of l oose cocaine. Id . at 11-12. Ms. Swatsworth then witnessed [Appella nt] give Mr. Pittman ten one-gram bags of cocaine to sell, a ccording to her testimony. Id . at 12. She then recalled that Mr. Pittman and herself went around selling the bags and then r eturned to her residence where they picked up twenty more one- gram bags of cocaine to sell and/or use. Id . at 13. She had further contact with [Appellant] through cell phone calls and a tri p to Philadelphia, testifying that she took Mr. Smeal al ong to meet [Appellant] and obtain cocaine. Id . at 15-16. Ms. Swatsworth testified that she had sexual intercourse with [App ellant] and was given an “eightball”, approximately three grams of cocaine, and Mr. Smeal was fronted approximately an ounce of cocaine by [Appellant]. Id . at 17. Kristen Wilsoncroft testified that she met [Appell ant] in approximately 2005 through Styers at her father’s r esidence in Clearfield, and that she then drove [Appellant] bac k to Philadelphia. Trial Tr. Day 1 of 8, Test. of Krist in Wilsoncroft, 4, 7, 18, Jan. 23, 2012. She apparently became [Appel lant’s] pseudo-chauffeur, testifying that [Appellant] would call her on his cell phone, she would pick him up in Philadelph ia, drive him to Clearfield, and then back home to Philadelphia i n exchange for free cocaine. Id . 9-14. Ms. Wilsoncroft testified that she made approximately seven such trips with [Appellant] to and from Philadelphia in the spring/summer of 2005. Id . at 11. She also testified to having a sexual relationship with [App ellant] over the course of their association. Trial Tr. Day 2 of 8, Test. of Kristin Wilsoncroft, 23, Jan. 24, 2012. Rick Wilkinson testified that he met [Appellant] i n the summer of 2005 on a trip to Philadelphia with B.J. Kifer and his ex-wife, Jodi Wilkinson, where he purchased cocaine from [Appellant]. Trial Tr. Day 4 of 8, Test. of Rick W ilkinson, 20-23, Jan. 26, 2012. According to his testimony, Mr. Wil kinson lent his car to Styers, who used it to make trips to Philade lphia to obtain cocaine from [Appellant] throughout 2005. Id . at 23-25. He also testified that [Appellant] came to his (Wilkin son) residence in Clearfield County, and that [Appellant] contacte d him in 2006 and wanted him to sell cocaine. Id . at 27-29.J-S52013-15

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Other witnesses who testified to events regarding [Appellant] included Charles Gearhart (through Gran d Jury transcript), Brandon Kifer, Joseph Hunter, Danielle Gearhart, Richard Smeal, and Jacob Pitman. The testimony est ablished that [Appellant] was a main supplier of cocaine to Styers and made numerous trips to Clearfield County to sell co caine, staying in hotel rooms or Tara Swatswor[t]h’s house. Testi mony was also provided that there were sightings of [Appella nt] at the Styers residence, the Wilsoncroft residence, the Wi lkinson residence, and the Gearhart residence during this t ime period. Witnesses testified to purchasing cocaine from [App ellant], being approached to sell for [Appellant], and that [Appel lant] was seen in possession of a large amount of loose cocaine. Although many of the witnesses had prior criminal records an d were coconspirators in the drug organization, these matter s were fully explored on direct and cross-examination, along wit h any plea agreements with the Attorney General. Following deliberations, the jury found [Appellant ] guilty on all counts except on the charge of False Impriso nment. Styers and Gearhart were also convicted of multiple drug-related offenses. Sentencing occurred before this Court on May 24, 2012, where all defendants received lengthy periods of state incarceration. For his role in the crimes, [Appellant] was given an uneven sentence of 17 to 26 years of incarceration. See Sentencing Order, CP-17-CR-43-2009 (May 24, 2012). Notably, [ Appellant] was sentenced to three to six years of incarceratio n for count 3, Delivery of a Controlled Substance (10 grams to les s than 50 grams/cocaine); seven to ten years of incarceration for count 1, Delivery of a Controlled Substance (100 grams to 1, 000 grams/cocaine); and seven to ten years of incarcera tion for count 2, Delivery of a Controlled Substance (100 gr ams to 1,000 grams/cocaine). These sentences were imposed conse cutively, for a combined sentence of 17 to 26 years of incarc eration. The remaining charges (counts 4-12) for which [Appellan t] was convicted were imposed concurrently to the sentence s for counts 3, 1, and 2. See Sentencing Order, CP-17-CR-43-2009 (May 24, 2012). [Appellant] appealed his conviction and sentence. While his convictions were upheld, his sentence was vacat ed by the Superior Court and remanded for resentencing. Upon remand,J-S52013-15

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[Appellant] was resentenced to 17 to 34 years of in carceration. Though this is largely the same sentence as that im posed at his original sentencing, [Appellant] claims that the tr ial court was vindictive against him for exercising his right to appeal. A review of the record reveals otherwise. [Appellant’s] appeal from the original judgment of sentence challenged, inter alia , “the sufficiency of the evidence supporting the application of a mandatory minimum s entence.” Commonwealth v. Hemingway , 1664 WDA 2012 (Pa. Super. 2014) (unpublished). The Superior Court of Pennsyl vania did not directly address [Appellant’s] challenge to the sufficiency of the evidence supporting his sentence but rather, co ncluded, sua sponte , that [Appellant’s] sentence was illegal under Alleyne v. United States , 133 S.Ct. 2151, 2156 (2013) because the trial court found the weight of the cocaine by a preponderance of the evidence rather than beyond a reasonable doubt

. Commonwealth v. Hemingway , 1664 WDA 2012 (Pa. Super. 2014) (unpublished). After conviction, the trial c ourt held a hearing to determine the weight of the drugs as req uired for sentencing purposes pursuant to 18 PA. C. S. § 7508 (a)(2). As a result of the weight determination, [Appellant] r eceived mandatory fines collectively in excess of $145,000 and two mandatory sentences, each of seven to ten years. I mportantly, the maximum of each of these mandatory sentences wa s less than twice the minimum sentence. This issue with t he maximum sentence on these mandatory sentences is what has c aused the difficulty with [Appellant’s] resentencing. At resentencing [on June 18, 2014], the trial cour t was forced to disregard any evidence concerning the wei ght of the cocaine in question. Accordingly, when resentencin g [Appellant], the trial court set the weight of the controlled substances for each conviction at the lowest guidel ine amount; less than 2.5 grams. Therefore, [Appellant] was se ntenced to 21-42 months for counts 1,2,3,4,5,6,7,9, and 11; an d 15 to 30 months for counts 8 and 18 to 36 months for count 1 2. All sentences were to be run consecutively, except coun t 12 was to be run concurrent to count 3. See Sentencing Order, CP-17-CR43-2009 (June 18, 2014). This resulted in a total sentence with a minimum of 17 years just as his original sentence , but now carried a possible maximum of 34 years of incarcera tion. These sentences were imposed within the standard sentenci ngJ-S52013-15

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guideline range. See Sentencing Order, CP-17-CR-43-2009 (June 18, 2012); accord 204 Pa. Code §§ 303.1 et seq

. Trial Court Opinion, 11/3/14, at 1-6 (emphasis in o riginal). Appellant filed a timely post-sentence motion on J une 24, 2014. The trial court held a hearing on September 9, 2014. O n October 21, 2014, the trial court denied Appellant’s post-sentence motion . This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P.

1925. Appellant presents the following issues for our re view: 1. Did the trial court correctly calculate [Appell ant’s] prior record score? 2. Did the trial court overcome the presumption of vindictiveness by imposing a harsher sentence of se venteen (17) to thirty-four (34) years after successfully appeal ing his original sentence of seventeen (17) to twenty-six (26) years ? Appellant’s Brief at 10. In his first issue, Appellant argues that the tria l court improperly calculated his prior record score by including a ju venile adjudication that he claims lapsed from such calculation. This Court ha s long determined that the question regarding whether juvenile adjudicatio ns may properly be included in computing prior record scores implicate s a discretionary aspect of sentencing and not the legality of one’s sentence. Commonwealth v.

Krum , 533 A.2d 134 (Pa. Super. 1987) ( en banc ); Commonwealth v. Tilghman , 531 A.2d 441 (Pa. Super. 1987) ( en banc ). In his second issue, Appellant contends that the trial court acted in a presumptively vindictiveJ-S52013-15

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manner at the time of his resentencing. We have co ncluded that a claim that a sentence imposed by the trial court was “vin dictive” also amounts to a challenge to the discretionary aspect of the senten ce. Commonwealth v.

Gould , 912 A.2d 869, 872 (Pa. Super. 2006). Thus, Appellant’s issues each challenge the discret ionary aspects of his

sentence. Our standard of review is one of abuse o f discretion. Sentencing

is a matter vested in the sound discretion of the s entencing judge, and a sentence will not be disturbed on appeal absent a m anifest abuse of

discretion. Commonwealth v. Shugars , 895 A.2d 1270, 1275 (Pa. Super. 2006). Where an appellant challenges the discretionary asp ects of a sentence, there is no automatic right to appeal, and an appel lant’s appeal should be considered to be a petition for allowance of appeal

. Commonwealth v.

W.H.M. , 932 A.2d 155, 162 (Pa. Super. 2007). As we obser ved in Commonwealth v. Moury , 992 A.2d 162 (Pa. Super. 2010): An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by s atisfying a four-part test: We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appe al, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defe ct, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed fro m is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).J-S52013-15

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Id . at 170 (citing Commonwealth v. Evans , 901 A.2d 528 (Pa. Super. 2006)). Whether particular issues constitute a substantial question about the appropriateness of a sentence is a question to be e valuated on a case-bycase basis. Commonwealth v. Kenner , 784 A.2d 808, 811 (Pa. Super. 2001). As to what constitutes a substantial questi on, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich , 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellan t must articulate the reasons the sentencing court’s actions violated the sentencing code. Id . “A substantial question will be found where the defend ant advances a colorable argument that the sentence imposed is either incons istent with a specific provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process.” Commonwealth v. Ventura , 975 A.2d 1128, 1133 (Pa. Super. 2009) (citations omitted). Herein, the first three requirements of the four-p art test are met: Appellant brought an appropriate appeal, raised bot h challenges in his postsentence motion, and included in his appellate brie f the necessary separate concise statement of the reasons relied upon for al lowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether Appellant has raised substantial questions requirin g us to review the discretionary aspects of the sentence imposed by th e trial court.J-S52013-15

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In his first issue, Appellant contends that in cal culating his prior record score the trial court improperly included a prior j uvenile adjudication of burglary, which raised his prior record score from two to four. We have long held that a claim that a trial court’s improper con sideration of a prior conviction, with a resulting improper prior record score, raises a substantial question that a fundamental norm underlying the sen tencing process has

been violated. See Commonwealth v. Anderson , 830 A.2d 1013, 1018 (Pa. Super. 2003) (holding contention trial court m iscalculated prior record score raises a substantial question); Commonwealth v. Medley , 725 A.2d 1225, 1228 (Pa. Super. 1999) (finding substantial q uestion was raised where the appellant alleged trial court miscalculated pri or record score). Therefore, we will address this issue on appeal. Again, sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be distur bed on appeal absent a

manifest abuse of discretion. Shugars , 895 A.2d at 1275. An abuse of discretion is more than a mere error of judgment; t hus, a sentencing court

will not have abused its discretion unless the reco rd discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. Commonwealth v. Provenzano , 50 A.3d 148, 154 (Pa. Super. 2012) (quoting Commonwealth v. Walls , 926 A.2d 957 (Pa. 2007)).J-S52013-15

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In addressing prior juvenile adjudications in calc ulating a prior record score we turn to the Sentencing Guidelines. We are mindful that the applicable sentencing guidelines are those in effec t at the time that the

offense was committed. Commonwealth v. Maneval , 688 A.2d 1198, 1200 (Pa. Super. 1997). We observe that the 5 th Edition of the Sentencing Guidelines became effective June 13, 1997, and were in effect until the 6 th Edition of the Sentencing Guidelines became effecti ve June 3, 2005. The 6 th Edition of the Sentencing Guidelines was revised, e ffective December 5, 2008. Therefore, because Appellant’s criminal acti vity was committed over a period from January 2005 through June 2007, we conc lude that both the 5 th

and the 6 th Editions of the Sentencing Guidelines were applica ble. Coincidentally, both the 5 th Edition and the 6 th Edition of the Sentencing Guidelines contain the following, identical languag e pertaining to prior juvenile adjudications in relation to the computati on of a prior record score: §303.6. Prior Record Score - prior juvenile adjudicati ons. (a) Juvenile adjudication criteria. Prior juvenile adjudications are counted in the Prior Record Score when the followin g criteria are met: (1) The juvenile offense occurred on or after the offender’s 14th birthday, and (2) There was an express finding by the juvenile court that the adjudication was for a felony or one of the Misdemeanor 1 offenses listed in §303.7(a)(4). (b) Only the most serious juvenile adjudication of each prior disposition is counted in the Prior Record Score. No other prior juvenile adjudication shall be counted in the Prior Record Score.J-S52013-15

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(c) Lapsing of juvenile adjudications. Prior juvenile adjudications for four point offenses listed in §30 3.7(a)(1) shall always be included in the Prior Record Score, provi ded the criteria in subsection (a) above are met: (1) All other juvenile adjudications not identified above in subsection (a) lapse and shall not be counted in the Prior Record Score if the offender was 28 years of age or older at the time the current offense was committed. (2) Nothing in this section shall prevent the court from considering lapsed prior adjudications at the time of sentencing. 204 Pa. Code § 303.6 (emphasis added). Hence, purs uant to the emphasized language stated above, juvenile adjudica tions lapse and shall not be counted in a prior record score for crimes c ommitted when the offender is twenty-eight years of age or older. Appellant argues that, pursuant to §303.6(c)(1), b ecause he turned twenty-eight years old on January 30, 2006, which w as during the time frame encompassing his various offenses, his prior juvenile adjudication of burglary should have lapsed, and the trial court sh ould not have added two points to Appellant’s prior record score. Appellan t notes that he was over the age of twenty-eight for a significant portion o f the period encompassing the crimes, and thus, his juvenile conviction of bu rglary should not have been included in his prior record score. The trial court offered the following reasoning fo r determining that this

issue lacked merit:J-S52013-15

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[Appellant] argues that he was improperly sentence d because his juvenile record should not have been co nsidered in calculating his [prior record score]. [Appellant] maintains that, under the applicable sentencing guidelines, his juv enile record lapsed for sentencing purposes. Therefore, he conc ludes that his [prior record score] should have been 2 rather than 4, as computed by the trial court. However, all applicab le editions of the sentencing guidelines indicate that [Appellant] must be over the age of 28 at the time the crime was committed t o avail himself of the juvenile lapsing provision. See 204 Pa. Code § 303.6(c)(5th Edition); 204 Pa. Code § 303.6(c)(6th Edition); see also 204 Pa. Code § 303.6(c)(6th Edition Revised) (limi ting lapsing provision to those defendants who have rema ined crime free for the previous 10 years). [Appellant] is not eligible for the lapsing provis ion of the sentencing guidelines because he was under the age of 28 when the criminal activity for which he was convicted be gan. See Jury Verdict, Comm. v. Hemingway , No. CP-17-CR-43-2009. The record reveals that [Appellant] was merely 26 years old when he began committing the crimes for which he was convic ted. Quite clearly, he is not eligible for the lapsing provisi on under any applicable edition of the sentencing guidelines. T hus, the trial court correctly calculated [Appellant’s] prior reco rd score. Trial Court Opinion, 11/3/14, at 6-7. Our review of the record reflects support for the trial court’s conclusion that the jury determined Appellant’s criminal condu ct commenced before Appellant turned twenty-eight years-old. Specifica lly, the jury returned the following verdicts indicating that Appellant’s crim inal activity began in January 2005, at the time when Appellant was under the age of twentyeight:

1. DELIVERY OF CONTROLLED SUBSTANCE: Cocaine to Michael Styers January 2005 – June 2007 VERDICT GuiltyJ-S52013-15

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2. DELIVERY OF CONTROLLED SUBSTANCE: Cocaine to Charles Gearhart January 2005 – June 2007 VERDICT Guilty

3. DELIVERY OF CONTROLLED SUBSTANCE: Cocaine to Brandon Kifer January 2005 – June 2007 VERDICT Guilty

4. DELIVERY OF CONTROLLED SUBSTANCE: Cocaine to Joseph Hunter January 2005 – June 2007 VERDICT Guilty

5. DELIVERY OF CONTROLLED SUBSTANCE: Cocaine to Richard Smeal January 2005 – June 2007 VERDICT Guilty

6. DELIVERY OF CONTROLLED SUBSTANCE: Cocaine to Kristin Wilsoncroft January 2005 – June 2007 VERDICT Guilty

7. CRIMINAL CONSPIRACY TO COMMIT POSSESSION W/INTENT TO DELIVER AND DELIVERY OF CONTROLLED SUBSTANCE: Cocaine January 2005 – June 2007 VERDICT Guilty

8. CRIMINAL USE OF COMMUNICATION FACILITY: January 2005 – June 2007 VERDICT Guilty

9. DEALING IN PROCEEDS OF UNLAWFUL ACTIVITIES: January 2005 – June 2007 VERDICT Guilty

10. FALSE IMPRISONMENT: Autumn Kifer Summer 2007 VERDICT NOT Guilty

11. CORRUPT ORGANIZATIONS: January 2005 – June 2007 VERDICT Guilty

12. CORRUPT ORGANIZATIONS: Conspiracy with other person s January 2005 – June 2007 VERDICT Guilty Verdict Sheet, 2/1/12, at 1-2.J-S52013-15

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Thus, as the verdict sheet indicates, the jury spe cifically found that Appellant’s criminal activity for each conviction b egan before Appellant’s twenty-eighth birthday, which was January 30, 2006. Accordingly, because the jury returned a verdict indicating that Appella nt was under the age of twenty-eight when he began committing the current o ffenses, we cannot

conclude that the trial court abused its discretion by including Appellant’s prior juvenile adjudication of burglary when it com puted Appellant’s prior record score. Hence, Appellant’s contrary claim la cks merit. We next address Appellant’s second issue wherein h e argues that the trial court engaged in vindictive sentencing upon r emand. As previously stated, an issue challenging the length of a senten ce citing judicial vindictiveness raises a challenge to the discretion ary aspects of sentencing.

Gould , 912 A.2d at 872. This Court has recognized that such claims constitute a substantial question mandating appella te review.

Commonwealth v. Robinson , 931 A.2d 15, 20-21 (Pa. Super. 2007) ( en banc ). Appellant avers that upon remand, the trial court improperly increased his punishment for his convictions. Appellant obse rves that his initial aggregate sentence was a term of imprisonment of se venteen to twenty-six years. However, following remand, the trial court sentenced Appellant to an aggregate term of incarceration of seventeen to thi rty-four years.J-S52013-15

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The U.S. Supreme Court considered the issue of inc reased sentences in a line of cases beginning with North Carolina v. Pearce , 395 U.S. 711 (1969), reversed in part , Alabama v. Smith , 490 U.S. 794 (1989). 1 In

Pearce , the Court determined that due process concerns ar e triggered whenever a court sentences a defendant to a higher term of imprisonment after a second trial or some manner of post-sentenc ing review. 2 The Pearce Court stated the following: Due process of law, then, requires that vindictive ness against a defendant for having successfully attacke d his first conviction must play no part in the sentence he rec eives after a new trial. And since the fear of such vindictivene ss may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such retaliatory motivation on the part of the sentencin g judge.

In order to assure the absence of such a motivatio n, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the re asons for doing so must affirmatively appear. Those reasons must be based upon objective information concerning identif iable conduct on the part of the defendant occurring after the ti me of the original sentencing proceeding. And the factual da ta upon which the increased sentence is based must be made part o f the

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1 The Smith Court reversed in part the holding in Simpson v. Rice , 395 U.S. 711 (1969), which was a companion case to Pearce . However, the rule established in Pearce remained unaffected by the decision in Smith

.

2 While Pearce dealt with an increased sentence following the gra nt of a new trial, this Court has held that the same ration ale applies where the original sentence is vacated and the second sentenc e is imposed without an additional trial. Commonwealth v. Greer , 554 A.2d 980, 987 n.7 (Pa. Super. 1989).J-S52013-15

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record, so that constitutional legitimacy of the in creased sentence may be fully revealed on appeal.

Pearce , 395 U.S. at 725-726. Subsequently, in Texas v. McCullough , 475 U.S. 134 (1986), the United States Supreme Court modified and expanded t he Pearce Court’s approach to resentencing and due process and explai ned that judicial vindictiveness is the retaliation of a sentencing j udge against a defendant for having successfully attacked a first conviction. G enerally, it is “the judge who has been reversed” who potentially harbors a “m otivation to engage in

self-vindication.” Id . at 139 (citing Chaffin v. Stynchcombe , 412 U.S. 17 (1973)). To ensure the absence of such motivation, the reasons for an enhanced sentence following retrial must affirmativ ely appear on the record.

Id . at 138. The reasons must be based on objective i nformation concerning (1) identifiable conduct on the part of the defenda nt occurring after the time of the original sentencing proceeding, or (2) legit imate sentencing concerns, or other new objective information, not previously available to the court.

Id

. Where a subsequent sentence imposes a greater pena lty than previously was imposed, a presumption of vindictive ness attaches.

Commonwealth v. Serrano , 727 A.2d 1168, 1170 (Pa. Super. 1999) (citing Commonwealth v. Campion , 672 A.2d 1328 (Pa. Super. 1996)). Therefore, we first consider whether a presumption of vindictiveness arises in the instant case. Here, Appellant was tried by a jury, convicted, andJ-S52013-15

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sentenced to an aggregate term of incarceration of seventeen to twenty-six years. Appellant then filed a direct appeal, and t his Court vacated his judgment of sentence and remanded for resentencing after sua sponte determining that the sentence was illegal due to th e application of mandatory minimum sentences set forth in 18 Pa.C.S. § 7508(a)(2). Upon remand, the original sentencing judge then presided over Appellant’s resentencing hearing and imposed a harsher sentence , that being an aggregate term of incarceration of seventeen to thi rty-four years. Based upon these facts, we are left to conclude that a pr esumption of vindictiveness is present in this matter.

We next consider whether the trial court rebutted the presumption of vindictiveness. As previously stated, the Pearce Court held that the presumption was controlling unless the new sentence was based upon “objective information concerning identifiable cond uct on the part of the defendant occurring after the time of the original sentencing proceeding.”

Pearce , 395 U.S. at 726. Again, in McCullough , the Court modified this rule and held that the presumption could also be ov ercome by other forms of objective information or legitimate sentencing conc erns that were not presented to or considered by the trial court at th e original sentencing hearing. McCullough , 475 U.S. at 138.J-S52013-15

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In this case, the trial court expressly disavowed any vindictive purpose in resentencing Appellant and stated the following in its written opinion of November 3, 2014: Given [Appellant’s] role in the cocaine trafficking scheme which underlies this case, a minimum sentence of 17 years of incarceration is entirely appropriate. Further, wh en resentencing [Appellant] on remand, the trial court was constrai ned to impose a “balanced” sentence which resulted in [Appellant’ s] maximum period of incarceration increasing from 26 years to 34 years. This was clearly and objectively the result of appl ication of the Pennsylvania Sentencing Guidelines, and not the res ult of vindictiveness on the part of the trial court. Trial Court Opinion, 11/3/14, at 8. The reasons for Appellant’s enhanced maximum sente nce following remand affirmatively appear on the record. Those r easons are based upon the legitimate sentencing concerns of imposing a ba lanced sentence. Thus,

we are satisfied that the trial court has rebutted any presumption of vindictiveness that may have attached to its senten ce imposed upon remand. Therefore, Appellant’s claim that the tria l court was vindictive and violated his due process rights by sentencing him t o a harsher maximum sentence upon remand fails. Accordingly, Appellant ’s claim does not warrant

relief. Judgment of sentence affirmed.J-S52013-15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/27/2015