J-S52005-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BILLY WHITE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 796 EDA 2018

Appeal from the Judgment of Sentence January 26, 2018

In the Court of Common Pleas of Montgomery County 

Criminal Division at No(s): CP-46-CR-0002429-2012, 

CP-46-CR-0002430-2012

BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.: FILED DECEMBER 03, 2019

Billy White appeals, pro se,

1

from the judgment of sentence entered on 

January 26, 2018, in the Court of Common Pleas of Montgomery County, after 

remand, on the charges of possession of a controlled substance, possession 

with intent to deliver, and possession of drug paraphernalia2 (Docket Number 

2429-2012) and burglary, VUFA, criminal trespass, terroristic threats, and 

paraphernalia3 (Docket Number 2430-2012). The terms of White’s current 

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1 A Grazier hearing was held and White was given permission to represent 

himself by order of November 8, 2018.

2 35 P.S. §§ 780-113(16), 780-113(30), and 780-113(32), respectively.

3 18 Pa.C.S. §§ 3502(c)(1), 6106(a)(1), 3503(a)(1)(i), 2706, and 35 P.S. § 

780-113(32), respectively.
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sentence are unclear.

4

 In this timely appeal, White argues his new aggregate 

sentence is illegal because the trial court took sentences that had been 

running concurrently and made them consecutive, the trial court failed to 

grant him credit for time served, the trial court erred in re-imposing costs and 

fees, and he was improperly given probation sentences. After a thorough 

review of the submissions by the parties, relevant law, and the certified 

record, we vacate the judgment of sentence and remand for resentencing.5

A brief history of this matter provides needed context to understand the 

current issues. White was originally sentenced on two separate cases on 

February 8, 2013. One was a drug case and the other, burglary. Having 

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4 Although the trial court announced the aggregate sentence as 10 to 22 years’ 

incarceration, see N.T. Sentencing, 1/26/2018, at 19, the Commonwealth 

asserts the actual sentence is 10 to 24 years’ incarceration. See Appellee’s 

Brief, at 7, n. 1. However, as announced in court and as is written on the 

sentencing forms, it appears White received a 12.5-34 year term of 

incarceration. Given our resolution of this matter, the actual maximum date 

is immaterial.

5 All interested parties, White, the Commonwealth and the resentencing court, 

agree that this matter requires resentencing, although all three provide 

different reasoning. White posits the resentencing court illegally made 

previously concurrent sentences consecutive. The Commonwealth asserts the 

resentencing court imposed an illegal sentence when it issued a lengthened 

sentence without providing justification. The resentencing court claims it 

improperly sentenced White to separate sentences on charges that legally 

merged. Regardless of the reasons asserted, White received a greater 

sentence than was originally imposed. Our review of the certified record 

reveals conflicts between notes of testimony for sentencing and written 

sentencing sheets (which will be described, infra) that makes it virtually 

impossible for this Court to accurately review this matter.
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reviewed the original notes of testimony from the February 8, 2013, 

sentencing hearing, it is apparent the 10-20 year aggregate sentence the trial 

court imposed was meant to represent an overall sentencing scheme.6 On 

direct appeal of the drug case (Docket Number 2429-2012), a panel of our 

court identified an illegal sentence regarding the possession with intent to 

deliver and simple possession charges. Simple possession should have 

merged; however, since those sentences ran concurrently, vacating the 

simple possession sentence did not upset the trial court’s sentencing scheme. 

Hence, the case was not remanded for resentencing. Additionally, White was 

afforded no relief on the direct appeal of the burglary case (Docket Number

2430-2012).

White then filed PCRA petitions for both cases, and, on appeal, this 

Court, sua sponte, granted sentencing relief in both due to Alleyne7issues.8

Both cases had imposed mandatory minimum sentences without the jury 

having determined the facts upon which the mandatory sentences were based. 

White was resentenced on January 26, 2018, to the aggregate term of 

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6 The fact that both sentences together represent a sentencing scheme is 

important to this matter.

7 Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 

(2013).

8 Commonwealth v. White, 3255 EDA 2016, filed 12/19/2017 

(memorandum) and Commonwealth v. White, 3130 EDA 2016, filed 

12/26/2017 (memorandum).
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incarceration noted above. Additionally, the court imposed costs and fees 

associated with sentencing, as well as adding probationary tails to the

incarceration sentences. White filed the instant appeal.

9

The entire sentencing scheme, from original sentence to the current 

sentence, is perplexing. Accordingly, we will set forth the specifics of each. 

This information is taken from notes of testimony from both sentencing 

hearings, sentencing forms from 2013 and 2018, and the Montgomery County 

Dockets. 

In 2013, White was sentenced as follows:

1) At Docket Number 2429-2012 –

 5-10 years – Possession with intent to deliver

 1-3 years - Possession (concurrent to PWID)

Resulting in an aggregate sentence of 5-10 years’ incarceration.

2) At Docket Number 2430-2012 –

 5-10 years – Burglary

 3-7 years – VUFA (concurrent to PWID at 2429-2012)

 1-7 years – Trespass (concurrent to PWID at 2429-2012)

 1-5 years – Terroristic Threats (concurrent to PWID at 2429-

2012)

Resulting in an aggregate sentence of 5-10 years’ incarceration.

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9 A single notice of appeal was filed for both docket numbers. However, the 

appeal was filed prior to our Supreme Court’s decision in Commonwealth v. 

Walker, 185 A.3d 969 (Pa. 2018), that requires a separate notice of appeal 

for every docket number affected by the order in question.
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At the sentencing hearing, the trial court announced the sentence for 

Docket Number 2430-2012 would run consecutive to the sentence for Docket 

Number 2429-2012, resulting in a total sentence imposed on February 8, 

2013, of 10-20 years’ incarceration. However, the sentencing forms 

submitted indicated the sentences for the two docket numbers would run 

concurrently with each other, thereby resulting in a total sentence of 5-10 

years’ incarceration.10

In 2018, after the remand to address the mandatory minimum sentence 

issues, the trial court resentenced White as follows:

1) At Docket Number 2429-2012 –

 2.5–10 years – PWID

 .5 (6 months)–2 years – Possession (consecutive to 

PWID and consecutive to 2430-2012)

Resulting in an aggregate sentence of 3-12 years’ incarceration.

2) At Docket Number 2430-2012 –

 5-10 years – Burglary

 3.5-7 years – VUFA (consecutive to Burglary)

Merger – Trespass

 1-5 years – Terroristic threats (consecutive to VUFA)

Resulting in an aggregate sentence of 9.5-22 years’ incarceration. 

The notes of testimony from the resentencing hearing and the docket

sheet for Docket Number 2429-2014 indicate the aggregate sentence is to run 

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10 We have not reviewed the entire certified record to determine if this 

discrepancy was ever clarified. Given our resolution of this matter, we will 

leave it to the resentencing court upon remand to reconcile this issue.
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consecutive to the aggregate sentence at Docket Number 2430-2012. This 

appears to result in a total sentence of both dockets of 12.5-34 years’ 

incarceration.

As noted above, the trial court, at the time of resentencing on January 

26, 2018, announced the aggregate sentence was 10-22 years. The 

Commonwealth believes the actual sentence is 10-24 years. As demonstrated 

above, we have calculated the possibility of a 12.5-34 year term of 

incarceration. Whatever the actual sentence, it is clearly more than the 

original 2013 sentence of either 5-10 years or 10-20 years.

The rules regarding an appeal of resentencing are not entirely clear,11

however, Commonwealth v. Barnes, 167 A.3d 110 (Pa. Super. 2017) (en 

banc) is the most recent pronouncement from this Court.

When a due process violation is raised regarding resentencing, 

this court must satisfy itself that an increase in a sentence is not 

the result of judicial vindictiveness. See Commonwealth v. 

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11 There is some confusion whether a due process challenge to an increased 

aggregate sentence/vindictive sentencing is a challenge to the legality of the 

sentence or discretionary aspects of the sentence. (See Commonwealth v. 

Walker, 568 A.2d 201 (Pa. Super. 1989) and Commonwealth v. Johnson, 

860 A.2d 146 (Pa. Super. 2004) legality of sentence, and Commonwealth v. 

Robinson, 931 A.2d 15 (Pa. Super. 2007) (en banc) disapproving of Walker

and Johnson, but not overruling those cases.) A challenge to the 

discretionary aspect of sentence requires the appellant to include a Pa.R.A.P. 

2119(f) statement of the reasons why the challenge raises a substantial 

question appropriate for appellate review. White did not include a Rule 

2119(f) statement. However, the Commonwealth did not object to that 

failure, and, in fact, agrees that the sentence must be amended. We will not 

find waiver of the issue. In addition, because the sentencing court correctly 

acknowledged it mistakenly failed to merge certain crimes, that is a 

non-waivable legality of sentence issue.
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Walker, 390 Pa.Super. 76, 568 A.2d 201 (1989), disapproved of 

on other grounds by Commonwealth v. Robinson, 931 A.3d 15, 

20-22 (Pa. Super. 2007) (en banc). In North Carolina v. Pearce, 

395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled 

on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 

2201, 104 L.ed.2d 865 1989), the United States Supreme Court 

remarked:

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. And since the fear of such 

vindictiveness may unconstitutionally deter a defendant's 

exercise of the right to appeal or collaterally attack his first 

conviction, due process also requires that a defendant be 

freed of apprehension of such a retaliatory motivation on 

the part of the sentencing judge.

In order to assure the absence of such a motivation, we 

have concluded 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. And the factual data upon which 

the increased sentence is based must be made part of the 

record, so that the constitutional legitimacy of the 

increased sentence may be fully reviewed on appeal.

Pearce, 395 U.S. at 725-26, 89 S.Ct. 2072, (footnote omitted) 

(emphasis added). Although Pearce dealt with an increased 

sentence following the grant of a new trial, we have held that

Pearce’s rationale for providing reasons on the record applies 

also when the original sentence is vacated and a second sentence 

is imposed without an additional trial. See Commonwealth v. 

Greer, 382 Pa.Super. 127, 554 A.2d 980, 987 n.7 (1983) (noting 

that Pearce applies to harsher sentence imposed by trial court 

after trial court granted post-trial request for resentencing). Thus, 

under Pearce, whenever a trial court imposes upon a defendant 

a more severe sentence following resentencing, the reasons for 

such sentence must be made a part of the record. “Absent 

evidence [that] a sentencing increase is justified due to objective 

information concerning a defendant's case, the presumption of 
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vindictiveness cannot be rebutted.” Commonwealth v. Serrano, 

727 A.2d 1168, 1170 (Pa. Super. 1999).

Commonwealth v. Barnes, 167 A.3d 110, 123-24 (Pa. Super. 2017) (en 

banc) (footnotes omitted) (emphasis in original).

Barnes makes it apparent that White’s sentence imposed on January 

26, 2018, whether the maximum sentence is 22 years, 24 years or 34 years, 

is improper as the court imposed a lengthier sentence than originally imposed, 

without providing any objective information supporting the sentencing 

increase. Accordingly, we are compelled to vacate White’s January 26, 2018 

sentence pursuant to Barnes.

Furthermore, as noted previously, the trial court did not address White’s 

claims regarding payment of fees and costs at resentencing. The court may 

not re-impose the routine costs and fees incurred in resentencing when that 

resentencing was occasioned by changes in the law or imposition of an illegal 

sentence. See Commonwealth v. Lehman, 201 A.3d 1279 (Pa. Super. 

2017).12 We see nothing in the prior decisions of this Court in this matter, to 

suggest fees and costs were vacated; the cases were simply remanded for 

resentencing pursuant to the dictates of Alleyne. Therefore, any duplicative 

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12 Our Supreme Court has accepted Lehman for review, limited to the 

question of whether charging the cost of expert testimony in a contested 

resentencing is allowable. See Commonwealth v. Lehman, 215 A.3d 967 

(Pa. 2019) (Table). Such costs do not appear to be at issue herein.
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fees and costs previously imposed are vacated. The court may not impose 

such routine fees and costs upon the instant remand and resentencing.13

The court also failed to address White’s claim he was not properly 

credited with time served. We cannot determine the merits of this claim based 

upon the certified record before us. Upon remand, the sentencing court will, 

undoubtedly, take care to ensure White is properly credited for any and all 

time served he is legally entitled to.

White’s last unaddressed issue involved a claim the court improperly 

issued concurrent one-year probationary sentences although he had already 

completed said probation. We do not understand the substance of this claim 

and cannot address it. However, because White is to be resentenced upon 

remand, which may well include some aspect of probation, the court is 

permitted to restructure White’s sentence, as it sees fit, to preserve the 

integrity of the original sentence. See Commonwealth v. Fields, 197 A.3d 

1217 (Pa. Super. 2018) (en banc). 

Finally, at resentencing, the court shall clarify the contradictions found 

in the certified record concerning the original sentences issued in 2013. 

Specifically, the contradictions noted above regarding the aggregate sentence 

as announced in open court and as found in the written 2013 sentencing 

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13 If the certified record is incomplete and the original costs and fees were 

vacated, the sentencing court may re-impose that which it was originally 

entitled.
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forms. This is necessary as the original sentence provides the baseline for 

comparison for subsequent resentencing.

Judgment of sentence is vacated. This matter is remanded for action 

consistent with this decision and for resentencing. Jurisdiction relinquished.

Judge Kunselman joins this memorandum.

Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/3/19