J. A34012/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

KWAME LAMAR BARNES, : No. 947 MDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, January 30, 2014,

in the Court of Common Pleas of Dauphin County

Criminal Division at No. CP-22-CR-0000426-2011

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 16, 2016

Kwame Lamar Barnes appeals from the judgment of sentence imposed 

following his convictions of criminal attempt-homicide, aggravated assault, 

kidnapping, and recklessly endangering another person.1 We vacate and 

remand for resentencing.

We assume the parties’ familiarity with the facts of the case. Briefly, 

the charges stem from an incident where Barnes choked the victim to 

unconsciousness.

On May 18, 2012, Barnes was sentenced to a term of 20 to 40 years’ 

imprisonment for his conviction of attempted homicide, a consecutive term

of 21⁄2 to 5 years for aggravated assault, and a consecutive term of 21⁄2 to 

 

1 The jury found Barnes not guilty of terroristic threats.
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5 years for kidnapping. Following a direct appeal, a panel of this court 

vacated judgment of sentence and remanded for resentencing, finding that 

the conviction of aggravated assault should have merged with the attempted 

homicide conviction since the crimes arose from a single set of facts. 

Commonwealth v. Barnes, No. 691 MDA 2013, unpublished memorandum 

(Pa.Super. filed December 3, 2013).

Thereafter, on January 30, 2014, Barnes was re-sentenced to the 

following: 20 to 40 years’ for criminal attempt homicide and a consecutive 

sentence of 5 to 10 years’ for kidnapping. On February 5, 2014, Barnes filed 

a post-trial motion. On May 12, 2014, the trial court denied the motion. On 

June 4, 2014, Barnes filed a notice of appeal and complied with the trial 

court’s order to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has 

filed an opinion. 

The following issues have been presented for our review: 

[1.] Apprendi doctrine. The United States 

Constitution mandates that juries should 

decide all facts that increase a crime’s 

statutory maximum sentence. Here, a jury 

convicted Barnes of attempted murder, 

generally—a 20 year maximum sentence. If 

the trial court submits the crime of attempted 

murder resulting in serious bodily injury to the 

jury, the maximum sentence increases to 

40 years. But Barnes court didn’t submit this 

element. Is Barnes’ legal attempted murder 

maximum sentence 20 years?
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[2.] Substantial questions. To appeal the 

discretionary aspects of a sentence, an 

appellant must present a “substantial question” 

why the sentencing court’s actions are 

inconsistent with the Sentencing Code or 

contrary to the fundamental norms underlying 

the sentencing process. This sentencing court: 

(1) increased a crime’s sentence where the 

only changed fact was the exercise of appellate 

rights; and (2) failed to provide reasons for its 

new sentence on the record. Does Barnes[] 

raise substantial questions?

[3.] Judicial Vindictiveness. A presumption of 

vindictiveness arises where a sentencing court 

imposes a more severe sentence absent 

objective evidence justifying an increased 

sentence. This trial court doubled Barnes’ 

kidnapping sentence at his resentencing. It 

based the increased sentence on the same 

facts and information as at the time of the 

original sentence. Is Barnes’ new kidnapping 

sentence void?

[4.] Record reasons for an imposed sentence. 

On resentencing, following remand, the court 

shall make as a part of the record, and disclose 

in open court at the time of sentence, a 

statement of reason or reasons for the 

imposed sentence. In Barnes’ five-minute 

resentencing this record does not make such a 

statement. Should this Court vacate Barnes’ 

current sentence and resentence him to 

provide a reasoned statement?

Barnes’ brief at 8-9.

The first issue presented concerns the sentence imposed for the 

conviction of criminal attempt homicide and involves the application of 

Section 1102 of the Crimes Code, and in particular, the “serious bodily 

injury” requirement. “[T]he statute imposes a condition precedent to the 
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imposition of a maximum term of imprisonment of up to 40 years, 

specifically, that ‘serious bodily injury’ must have resulted from the 

attempted murder. Otherwise, the sentence shall be not more than 

20 years.” Commonwealth v. Johnson, 910 A.2d 60, 66 (Pa.Super. 

2006), appeal denied, 923 A.2d 1173 (Pa. 2007). Barnes concludes that 

the sentence imposed is illegal under Apprendi v. New Jersey, 530 U.S. 

466 (2000), wherein the United States Supreme Court held that “[o]ther 

than the fact of a prior conviction, any fact that increases the penalty for a 

crime beyond the prescribed statutory maximum must be submitted to a 

jury, and proved beyond a reasonable doubt.” Id. at 490. Barnes notes 

that the docket sheet does not show that he was charged with criminal 

attempt resulting in serious bodily injury; nor does the verdict sheet in this 

case mention serious bodily injury with respect to the attempted homicide 

charge. Barnes also contends that the jury instruction does not contain any 

instruction as to making a finding of whether serious bodily injury resulted 

from the criminal attempt; rather, the instruction referenced aggravated 

assault. His argument suggests a finding cannot be implied by virtue of the 

fact that the jury found him guilty of aggravated assault and the court 

instructed the jury on serious bodily injury.

Barnes’ claim involves the legality of the sentence. Commonwealth 

v. Aponte, 855 A.2d 800, 802 n.1 (Pa. 2004). “Issues relating to the 

legality of a sentence are questions of law . . . Our standard of review over 
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such questions is de novo and our scope of review is plenary.” 

Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009) 

(citation omitted).

We agree with Barnes that the failure of the jury to render a separate 

finding regarding serious bodily injury requires that we vacate the conviction 

and remand for resentencing. We find support for our conclusion in 

Johnson, supra. In Johnson, this court held that a defendant convicted of 

attempted murder and aggravated assault was sentenced illegally where the 

jury did not determine that serious bodily injury occurred relative to the

attempted murder charge. The trial court therein concluded that serious 

bodily injury was proven because the jury convicted the defendant of 

aggravated assault causing serious bodily injury. The Johnson court found 

that the jury’s consideration of serious bodily injury for the aggravated 

assault count was not relevant to the attempted murder conviction.

Relying on Apprendi, supra, the Johnson court held that it was not 

the prerogative of the trial court but solely the responsibility of the jury to 

find, beyond a reasonable doubt, whether a serious bodily injury resulted 

from the attempted murder. The court held that to sentence a defendant to 

a maximum term of incarceration of 40 years for attempted murder, the jury 

must determine that the Commonwealth proved serious bodily injury as it 

specifically pertained to the attempted murder charge.
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Instantly, as in Johnson, “the jury was never presented with, nor 

rendered a decision on, the question of whether a serious bodily injury 

resulted from the attempted murder.” Johnson, supra at 67 (footnote 

omitted). Thus, we are constrained to vacate the sentence on this count 

and remand for resentencing.

Barnes next contends that the trial court erred by sentencing him to a 

more severe sentence for kidnapping on remand than his original sentence. 

He avers that such action results in a presumption of vindictiveness. 

(Barnes’ brief at 26.)

“Challenges to the discretionary aspect of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162, 

170 (Pa.Super. 2010). Prior to reaching the merits of a discretionary 

sentencing issue,

[This court conducts] a four-part analysis to 

determine: (1) whether appellant has filed a timely 

notice of appeal, 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 defect, Pa.R.A.P. 

2119(f); and (4) whether there is a substantial 

question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.A. 

§ 9781(b).

Id. (citation omitted).

Instantly, Barnes filed a timely notice of appeal, preserved his claim in 

a timely post-sentence motion, and included in his appellate brief a separate 
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Rule 2119(f) statement. As such, he is in technical compliance with the 

requirements to challenge the discretionary aspect of a sentence. We will 

proceed to determine whether a substantial question has been presented for 

our review. Challenges to the length of the sentence following resentencing, 

citing judicial vindictiveness, implicate a discretionary aspect of the 

sentencing process. See Commonwealth v. Tapp, 997 A.2d 1201, 

1202-1203 (Pa.Super. 2010); Commonwealth v. Robinson, 931 A.2d 15, 

20-21 (Pa.Super. 2007) (en banc). Accordingly, we grant review of Barnes’ 

claim. 

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. Walker, 568 A.2d 201 

(Pa.Super. 1989), disapproved of on other grounds by Robinson, 

supra.

2

 In North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on 

other grounds by Alabama v. Smith, 490 U.S. 794 (1989), the United 

States Supreme Court stated:

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 

 

2 Walker and prior cases had held that a claim of judicial vindictiveness in 

resentencing was a challenge to the legality of the sentence that could be 

raised as a matter of right. In Robinson, supra, an en banc panel of this

court held claims of judicial vindictiveness in sentencing, and any due 

process concerns arising therefrom, implicate discretionary aspects of 

sentence. 
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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.

Id. at 725-726 (footnote omitted). While Pearce dealt with an increased 

sentence following the grant of a new trial, this court held that the same 

rationale applies where the original sentence is vacated and the second 

sentence is imposed without an additional trial. See Commonwealth v. 

Greer, 554 A.2d 980, 987 n.7 (Pa.Super. 1989).3 Absent evidence an 

increase in a sentence is justified due to objective information concerning 

the case, the presumption of vindictiveness cannot be rebutted. 

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

 

3 We disagree with the trial court that the instant case is distinguishable 

from Pearce based on the fact that appellant did not proceed to a new trial 

but rather was resentenced after this court found a sentencing error. (Trial 

court opinion, 5/12/14 at 4.)
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Barnes was originally sentenced on the kidnapping conviction to a 

consecutive term of 21⁄2 to 5 years of incarceration; after remand, the 

conviction of aggravated assault merged with the attempted homicide 

conviction and the kidnapping sentence was doubled to a consecutive five to 

ten years of imprisonment. In its opinion, the trial court explained that it 

“merely maintained its original sentencing structure by increasing the 

kidnapping [sentence] when the aggravated assault charge merged into the 

criminal attempt charge. In doing so, the court was able to maintain the 

original sentence.” (Trial court opinion, 5/12/14 at 4.) 

We find Barnes’ argument that he received an enhanced sentence to 

be questionable. Barnes’ argument requires us to only look at one part of 

his new sentence and compare it to one part of his old sentence without 

examining the overall sentencing scheme of both the new and old sentences. 

Barnes fails to note the trial court’s overall sentencing scheme. Before his 

successful appeal, his aggregate sentence was 25 to 50 years’ 

imprisonment; after his successful appeal, the trial court resentenced Barnes 

to this very sentence. Accordingly, he was not the victim of a vindictive 

sentence on the part of the trial court. See Commonwealth v. Vanderlin, 

580 A.2d 820 (Pa.Super. 1990) (recognizing authority of the trial court, after 

reducing sentence on one count to accord with the law, to impose greater 

sentence on another count in order to insure appellant remained in prison 

for a certain length of time); Commonwealth v. Grispino, 521 A.2d 950 
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(Pa.Super. 1987) (noting that trial court does not violate double jeopardy 

principles by increasing sentence on remand where aggregate term is not 

increased).

In the third issue, Barnes states that the trial court abused its 

discretion when it resentenced him as it failed to provide a statement in 

open court of the reasons for the sentence imposed. Due to the disposition 

of appellant’s first claim, we need not address this issue. However, we 

remind the trial court that “[r]eimposing a judgment of sentence should not 

be a mechanical exercise.” Commonwealth v. Losch, 535 A.2d 115 

(Pa.Super. 1987). When a sentence is vacated and the case remanded for 

resentencing, the sentencing judge should start afresh; the requirement to 

state reasons for the imposition of sentence applies both to the original 

sentencing hearing and to all subsequent resentencing hearings. Id. at 

123 n.9.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

Stabile, J. joins the Memorandum.

Shogan, J. files a Dissenting Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2016