J-S13041-22
2022 PA Super 91
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN C. CONKLIN :
:
Appellant : No. 1141 MDA 2021
Appeal from the Judgment of Sentence Entered July 13, 2021
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000472-2015
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MAY 18, 2022
Appellant, Shawn C. Conklin, appeals from the judgment of sentence
entered in the Court of Common Pleas of Wyoming County after he pled guilty
to three counts of Aggravated Assault committed during his unprovoked knife
attack on family and friends in his residence. After careful review, we affirm.
The trial court opinion sets forth the relevant facts and procedural
history, as follows:
On April 19, 2015, an Affidavit of Probable Cause was filed setting
forth that on April 18, 2015, at 10:38 pm, a 911 call was received
at the Wyoming County 911 Center from a man named Matt
Christofferson, stating his uncle was running around the residence
stabbing people.
Police and EMS arrived on scene at 10:48 p.m. and were met by
multiple people yelling for help. The police were informed that the
suspect was inside and may still be stabbing people. Officers
entered the residence and announced their presence.
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* Former Justice specially assigned to the Superior Court.
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The suspect, later identified as Shawn Conklin (hereafter
[“Appellant”]), came out from a hallway and surrendered to police
and was taken into custody. The police observed blood stains on
the clothing of the Appellant as well as blood stains on multiple
locations throughout the inside and outside of the residence. The
police observed a victim lying in the hallway behind the Appellant
along with a knife by the victim’s head. The knife was a folding
hunting knife and was also covered in blood.
On April 19, 2015, at 1:40 a.m., the homeowner Selee Conklin,
sister of the Appellant, was interviewed by the Police. She advised
there were eleven people in the residence at the time of the
incident. Selee was sleeping in the basement at the time the
stabbing started and was awoken by people screaming for help
and yelling to call 911.
A seventeen-year-old female, hereinafter referred to as L.C., was
interviewed by the police and stated she was in the basement of
the residence, and when she went upstairs she observed the
Appellant stabbing his wife Karen Conklin. Karen was on the
couch at the time and Appellant was behind Karen stabbing her.
L.C. then ran outside. When she went back into the residence
another seventeen-year-old female, hereinafter referred to as
S.S., was with her. Once in the hallway, L.C. attempted to call
911 but was unsuccessful. When she looked up from her phone
she observed Appellant stab S.S. in the face, shoulders, and
stomach.
Then L.C.’s father attempted to stop Appellant from stabbing S.S.
As a result of this, S.S. was able to escape and jump out of a
bedroom window. L.C. then observed Appellant stab her father.
At this time, L.C. was on the phone with 911 and yelling at
Appellant to stop stabbing her father. L.C. then ran outside and
did not go back into the residence.
At approximately 1:30 a.m., the police conducted a cursory check
of the exterior of the residence and observed blood droplets
around a vehicle and a large amount of blood on the inside of the
passenger side of the vehicle. Matt Christofferson’s injuries
observed by the EMS at the scene included multiple stab wounds
from his neck to his torso. Injuries were determined to be life
threatening.
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Appellant was interviewed by the police, wherein his Miranda
rights were read to him and Appellant signed a waiver form and
consented to be interviewed. Appellant admitted to the police that
he repeatedly stabbed his wife, Karen Conklin, as she sat on the
couch. Appellant further admitted to stabbing his brother-in-law
Harold Chistofferson.1 Additionally, Appellant admitted that he
stabbed [S.S.] because she jumped on Appellant’s back which
prevented him from continuing to stab Harold. Appellant further
stated that “if I had a gun I would have sprayed them all.”
On April 22, 2015, the police spoke with Appellant’s wife, Karen
Conklin at the Geisinger Wyoming Valley Medical Center regarding
the investigation. Karen advised she and the Defendant had an
argument early Sunday. She spent the day away from Appellant
shopping and upon returning to the residence that evening she
sat on the couch and Appellant sat next to her, so she got up to
move. She then sat between her son and her nephew, both
minors, so Appellant could not be near her. Appellant then went
to the back of the couch behind her and proceeded to stab her.
Karen advised she did not know she was being stabbed at the time
she thought Appellant was punching her in the face. Karen stated
Appellant was angry and quiet prior to the attack and the attack
came out of nowhere.
Appellant then stopped stabbing her for unknown reasons and
Karen felt blood rushing down her face. She then went out the
backdoor of the residence to get away from Appellant and sat in
a van located in the driveway. While leaving the residence, Karen
observed Appellant holding someone in the hallway by the
bathroom. She related that the person was pretty bloody. While
in the van, Karen told her niece and nephew, both minors, to call
911.
While at the hospital, the police observed Karen to have a cut on
her right cheek and chin, along with lacerations on both triceps,
left elbow, and her left hand. Karen’s right wrist was also
bandaged. She related that she was stabbed on both breasts and
had a total of ten to eleven stab wounds. She was unable to
provide a written statement at that time due to her arms being
injured, but related when she was released from the hospital that
____________________________________________
1 The trial court record makes varying references to this single victim as either
“Matt Christofferson” or “Harold Kristofferson.”
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she would provide the police with a written statement and follow
up interview.
...
Thereafter, on January 7, 2016, a Criminal Information was filed
in the Court of Common Pleas of Wyoming County docket number
472-2015, charging Appellant with [three counts of Criminal
Attempt/Murder Third Degree,[fn 1] three counts of Criminal
Attempt/Criminal Homicide,[fn 2] three counts of Criminal
Attempt/Voluntary Manslaughter,[fn 3] six counts of Aggravated
Assault,[fn 4] and three counts of Simple Assault. [fn 5]]
Fn 1 18 Pa.C.S. § 901(a), 18 Pa.C.S. §2502(c).
Fn 2 18 Pa.C.S. § 901(a), 18 Pa.C.S. 2501(a).
Fn 3 18 Pa.C.S. § 901(a), 18 Pa.C.S. 2503(a)(1).
Fn 4 18 Pa.C.S. § 2702(a)(1) and (a)(4).
Fn 5 18 Pa.C.S. § 2701(a)(1).
Defense Counsel and the Commonwealth each motioned the trial
court to have a mental evaluation completed on Appellant to
determine if Appellant was competent to stand trial. Said motions
were granted and by Order dated August 17, 2015, upon receipt
and review of said evaluations performed by Dr. Richard Fischbein
and Dr. Brett DiGiovanna for the Pennsylvania Department of
Human Services, it was determined Appellant was competent to
stand trial.
Appellant pled guilty but mentally ill on January 8, 2016, to count
one Criminal Attempt/Murder of the Third Degree, a felony in the
first degree, and count ten and count eleven Aggravated Assault,
felonies in the first degree.
After review of an extensive Pre-Sentence Investigation Report,
which included the mental health evaluation, Appellant was
sentenced on February 10, 2016, [to an aggregate sentence of
360 to 720 months’ imprisonment, which comprised consecutively
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run, standard range sentences of 240 to 480 months for
attempted murder of the third degree, and 60 to 120 months for
each of two counts of aggravated assault.] The consecutive
sentences were imposed due to three separate victims.
On or about February 16, 2016, Defense Counsel filed a Post-Sentence Motion for Reconsideration of Sentence & Motion for
mental Health Determination and to Vacate Sentence. Said
motion was denied due to the reports of Richard E. Fischbein, M.D.
and the Pennsylvania Department of Human Services reports
finding that Appellant was not severely mentally disabled at the
time of sentence. [No direct appeal was filed].
Trial Court Opinion, 10/7/21, at 1-6.
Appellant filed a [timely] pro se PCRA [petition] on June 28, 2016,
alleging, inter alia, that counsel never filed a requested direct appeal and that
the trial court failed to consider his guilty, but mentally ill, plea at sentencing.
After the appointment of counsel, but before an amended counseled petition
was filed, the PCRA court held a hearing during which the parties stipulated
that Appellant was entitled to a new sentencing hearing because the trial court
did not hear testimony and make a finding on the issue of whether Appellant
at the time of sentencing was severely mentally disabled and in need of
treatment pursuant to the Mental Health Procedures Act. See 42 Pa.C.S. §
9727(a), P.S. §§ 7101-7503. The PCRA court, therefore, entered an order
remanding for completion of a supplemental Mental Health Evaluation of
Appellant, to be followed by a resentencing hearing.
On remand, the trial court conducted a resentencing hearing on
November 16, 2017. Based on both the testimony of a forensic psychologist
and the agreement of counsel, the trial court determined Appellant was
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“severely mentally disabled [] and in need of treatment pursuant to the Mental
Health Procedures Act.” N.T., 11/16/17, at 39. In receipt of an updated PSI
report, the trial court resentenced Appellant to the same sentence as it had in
2016. Appellant filed a direct appeal, and this Court affirmed. See
Commonwealth v. Conklin, 1979 MDA 2017 (unpub. memo.) (Pa. Super.
filed October 10, 2018).
On January 17, 2019, Appellant filed pro se a PCRA petition, and counsel
was appointed. Counsel filed a petition to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998) and Commonwealth
v. Finley,
550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court granted
counsel’s motion to withdraw and, by order of February 24, 2020, which was
clarified by subsequent order of April 20, 2020, the court denied PCRA relief.
Appellant filed a timely pro se appeal to the Superior Court. In our
memorandum decision vacating Appellant’s entire guilty plea and judgment of
sentence, and remanding for further proceedings, we indicated that our review
of the record “revealed a defect in Appellant’s guilty plea that has, thus far,
been overlooked – his plea to attempted murder in the third degree.”
Specifically, we explained that a person cannot commit the crime of
attempted second or third degree murder. Instead, “[a]n attempt to commit
murder can only constitute an attempt to commit murder of the first degree,
because both second and third degree murder are unintended results of a
specific intent to commit a felony or serious bodily harm, not to kill.”
Commonwealth v. Conklin, 562 MDA 2020, at *14 (unpub. memo.) (Pa.
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Super. filed October 28, 2020) (quoting Commonwealth v. Spells, 612 A.2d
458, 461 n.5 (Pa. Super. 1992)). See also Commonwealth v. Predmore,
199 A.3d 925, 929 n.1 (Pa. Super. 2018) (en banc) (“Attempted murder is,
by definition, attempted first-degree murder”).
We continued:
Because Appellant pled guilty to a crime that is not cognizable, we
conclude his sentence for attempted third degree murder is illegal.
The fact that Appellant voluntarily entered a guilty plea to the
crime is of no moment: ‘[o]ur cases clearly state that a criminal
defendant cannot agree to an illegal sentence, so the fact that the
illegality was a term of his plea bargain is of no legal significance.’
Conklin, 562 MDA 2020 at *15 (citing Commonwealth v. Rivera, 154 A.3d
370, 381 (Pa. Super. 2017) (en banc).
On remand, Appellant entered a plea of guilty but mentally ill to three
counts of Aggravated Assault. See Guilty Plea, 7/9/21. On July 13, 2021,
the trial court sentenced Appellant to an aggregate sentence of 228 to 528
months’ incarceration, which represented a reduced aggregate sentence from
Appellant’s previous sentence of 360 to 720 months.
Like the previous sentencing scheme, the new aggregate sentence
comprised consecutively run sentences. The individual sentences included an
aggravated range sentence of 84 to 120 months on the new Aggravated
Assault count based on conduct that had previously been charged as
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attempted murder,2 and a standard range sentence of 72 to 144 months on
each of the two remaining counts of Aggravated Assault, Counts (B) and (C),
which represented an increase from the previous standard range sentences of
60 to 120 months on the same counts.
Appellant timely filed post-sentence motions which challenged, inter
alia, that the court increased the sentences on the Aggravated Assault Counts
at (B) and (C) without providing adequate explanation or justification for doing
so. The trial court denied Appellant’s post-sentence motions, and this timely
appeal followed. Herein, Appellant raises the following questions for our
consideration:
1. Did the trial court violate Appellant’s rights under the Double
Jeopardy provisions of both the Commonwealth and Federal
Constitutions by sentencing Appellant to a term of incarceration
of seventy-two months to one hundred forty-four months
consecutive in counts (B) and (C) where the court had
previously imposed sentences of sixty to one hundred twenty
months on each count and where no factors were presented at
sentencing hearing justifying such an increase?
2. Was the sentence of seventy-two months to one hundred forty-four months on counts (B) and (C) a product of vindictiveness
where the court had previously sentenced Appellant to terms
of sixty to one hundred twenty months on each of the said
counts and where no additional justification was presented at
the time of sentencing to warrant an increase?
____________________________________________
2 At the sentencing hearing of July 13, 2021, the Commonwealth sought an
aggravated range sentence for the new count of Aggravated Assault, as the
victim, Harold Kristofferson, was stabbed about 50 times in his torso causing
him to suffer extreme injuries to his abdomen. N.T., 7/13/21, at 10-111.
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3. Did the trial court error [sic] in imposing an aggravated range
sentence undr [sic] the guidelines as to count (A) where the
sentence imposed was eighty-four months to two hundred forty
months of incarceration where the court failed to place on the
records sufficient reasons justifying an aggravated range
sentence?
Brief of Appellant, at 6.
For expediency of review, we first address Appellant’s second issue
alleging that the increase of his sentences for Aggravated Assault at Counts
(B) and (C) was a product of the court’s vindictiveness. With this claim,
Appellant challenges the discretionary aspects of his sentence.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
…
When imposing [a] sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant's prior criminal record, age, personal characteristics
and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an appellant
challenging the discretionary aspects of his sentence must invoke this Court's
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jurisdiction. We determine whether the appellant has invoked our jurisdiction
by considering the following four factors:
(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.[ ] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
In the case sub judice, Appellant has satisfied the first three
requirements: he timely filed a notice of appeal, sought reconsideration of his
sentence in a post-sentence motion, and his brief contains a Pa.R.A.P. 2119(f)
statement.
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). We have found that
a substantial question exists “when the appellant advances a
colorable argument that the sentencing judge's actions were
either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa. Super. 2008) (citation omitted), appeal denied,
600 Pa. 745,
964 A.2d 895 (2009). “[W]e cannot look beyond the
statement of questions presented and the prefatory [Rule] 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013),
aff'd, 633 Pa. 389,
125 A.3d 394 (2015). Indeed, it is settled
that Appellant's claim that his sentence on remand was a product
of vindictiveness presents a substantial question for our review.
See Commonwealth v. Tapp, 997 A.2d 1201, 1202–03 (Pa.
Super. 2010) (noting that “alleging judicial vindictiveness ...
constitute[s] a substantial question mandating appellate review”),
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appeal denied, 608 Pa. 654,
12 A.3d 752 (2010). Accordingly,
we address the merits of Appellant's vindictiveness claim.
Commonwealth v. Barnes, 167 A.3d 110, 122–23 (Pa. Super. 2017) (en
banc). Thus, we address the merits of Appellant's vindictiveness claim.
The United States Supreme Court in Carolina v. Pearce, 395 U.S. 711
[ ] (1989) stated:
Due process of law ... 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 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 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.
This Court has 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.” Barnes, 167 A.3d at 110
(citation omitted). Absent evidence that a sentencing increase is justified,
“the presumption of vindictiveness cannot be rebutted.” Commonwealth v.
Serrano,
727 A.2d 1168, 1170 (Pa. Super. 1990).
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However, the presumption can be rebutted where a trial court imposes
higher sentences on certain counts during re-sentencing to effect the same
aggregate sentence as previously imposed and preserve its sentencing
scheme. Barnes, 167 A.3d at 124 (“[A] judge can duplicate the effect of the
original sentencing plan by adjusting the sentences on various counts so that
the aggregate punishment remains the same.”). This Court in Barnes
analyzed our decision in Commonwealth v. McHale,
924 A.2d 664 (Pa.
Super. 2007), overruled in part on other grounds by Commonwealth v.
Robinson,
931 A.2d 15 (Pa. Super. 2007):
In [McHale], we upheld the trial court's resentencing of the
defendant when his conviction on the most serious charges, two
counts of aggravated assault, previously had been based on
insufficient evidence. After remand, to maintain the same total
aggregate sentence as originally imposed, the trial court increased
the overall sentence on the surviving counts. Noting that the
aggregate sentence remained unchanged, we upheld the new
sentence. In so doing, we noted:
[O]ur conclusion is not altered by the fact that remand and
resentencing were prompted by reversal of two of [the
defendant's] convictions.... Whether remand is the result of
reversal of one or more convictions or vacation of an illegal
sentence, we conclude that the trial court has the same discretion
and responsibilities in resentencing.
Barnes, 167 A.3d at 124-25 (citations omitted).
Here, we decline to hold the trial court imposed a “vindictive sentence”
on Appellant where his aggregate sentence after remand was decreased
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considerably, a fact which Appellant does not dispute,3 and where it is
apparent that the trial court increased Appellant's sentences for Aggravated
Assault at Counts (B) and (C) not out of vindictiveness, but in an attempt to
achieve as much as possible the purpose and effect of its original sentencing
scheme.
In the trial court’s post-remand sentencing order, it noted this Court’s
opinion that the trial court’s and parties’ collective misapprehension regarding
the count of attempted third-degree murder affected the entire original guilty
plea, which necessarily bore upon the corresponding sentence.
The court’s acknowledgment in this regard is reflected in the new
aggregate sentence it imposed that includes both an aggravated range
sentence for the new count of Aggravated Assault replacing the standard
range sentence for Attempted Third Degree Murder, and increased standard
range sentences for the remaining Aggravated Assault offenses at Counts (B)
and (C). The court also imposed the latter sentences consecutively, as it did
in the original sentencing scheme.
In increasing Counts (B) and (C) while keeping them within the standard
guideline range, it is apparent that the trial court sought to conform the new
____________________________________________
3 Indeed, Appellant’s challenge that he improperly received a heightened
sentence asks us to look only at one part of his new sentence and compare it
to one part of his old sentence without regard for the overall sentencing
scheme of both the new and old sentences. We have not done so previously,
and we will not do so now.
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aggregate sentence as closely as possible to the intent behind the original
aggregate sentence. At the sentencing hearing, the court explained that it
based all of its sentences upon the extreme nature of Appellant’s stabbing
attacks against separate, innocent victims—one of whom was a minor—who
each sustained serious injuries. These were the same considerations that
informed the trial court’s original sentencing scheme. See N.T., 2/10/16.
Accordingly, because we do not find that Appellant’s resentencing was
a result of judicial vindictiveness, Appellant is entitled to no relief on this claim.
Essentially the same rationale defeats Appellant’s double jeopardy
claim, which challenges the legality of his sentence. See Commonwealth v.
Robinson, 931 A.2d 15, 21 (Pa. Super. 2007) (noting double jeopardy claims
challenge the legality of sentence).4 Specifically, we have recognized that
double jeopardy concerns are not implicated when a lower court responds to
such a remand order by increasing sentences on the remaining counts in an
attempt to give effect to the purpose of the original aggregate sentencing
scheme. For example, in Commonwealth v. Grispino,
521 A.2d 950 (Pa.
Super. 1987), the appellant had been convicted of robbery, burglary,
____________________________________________
4 Appellant contends that the new sentencing order violated double jeopardy
principles when it increased his sentences for Aggravated Assault at Counts
(B) and (C), respectively. In his brief, Appellant acknowledges that no double
jeopardy violation occurs with the modification of an original, illegal sentence,
but he posits that the original sentences at counts (B) and (C) were legal and
not the subject of this Court’s memorandum decision granting PCRA relief by
vacating Appellant’s entire sentence and remanding for resentencing. Brief
for Appellant, at 25.
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aggravated assault, recklessly endangering another person (“REAP”), and
theft. He was sentenced to 48 to 96 months’ incarceration for robbery and to
lesser terms for each of the other offenses that, in total, formed an aggregate
sentence of 94 to 188 months in prison. Id. at 951.
Following post-sentence motions, the trial court acknowledged that the
offenses of aggravated assault, REAP, and theft merge with robbery for
sentencing purposes. Accordingly, it vacated Grispino’s original sentence and
re-sentenced him on only the robbery and burglary offenses, imposing an
increased prison term of 72 to 144 months for robbery and a lesser sentence
for burglary, for an aggregate sentence of 84 to 168 months.
Grispino appealed, claiming that the increase in his robbery sentence
violated the prohibition against double jeopardy. This Court disagreed, noting
the trial court's determination that a lengthy aggregate sentence of
incarceration was warranted and recognizing that the increased sentence for
robbery was imposed in order to form a new aggregate sentence nearly as
long as the original aggregate sentence. Id. at 953. We explained:
[W]hen a defendant appeals a judgment of sentence, he or she
accepts the risk that the Commonwealth may seek a remand for
resentencing if the decision in the lower court upsets the original
sentencing scheme. Commonwealth v. Goldhammer, supra
at 592, 517 A.2d at 1283. In addition, in Commonwealth v.
Ford, 315 Pa. Superior Ct. 281, 300-01,
461 A.2d 1281, 1291
(1983), this Court, quoting the United States Court of Appeals for
the Third Circuit, stated that:
[W]hen a defendant has been convicted after trial and sentenced
under a multicount indictment and on appeal his conviction and
sentence as to certain counts is set aside because such counts
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enhanced the sentence for the predicate felony which contained
its own enhancement provision, the constitutional guarantee
against double jeopardy does not preclude vacating the sentence
on the predicate felony counts and the imposition of a new
sentence by the trial judge on the remaining counts, which may
be greater than, less than, or the same as the original sentence.
Id. (quoting United States v. Busic,
639 F.2d 940, 953 (3d Cir.),
cert. denied, 452 U.S. 918,
101 S.Ct. 3055,
69 L.Ed.2d 422
(1981)).
Here, both appellant and the Commonwealth filed motions to
modify the sentence. The court agreed with appellant that three
of the charges merged. The court vacated the entire sentence
and resentenced on only the burglary and robbery charges. The
sentence on the robbery charge was increased from the original
sentence on that charge, yet the aggregate sentence after
resentencing was lower than the original aggregate sentence.
Under the reasoning expressed in Goldhammer and Ford then,
it is not relevant that the lower court's increase in appellant's
sentence was not in response to the Commonwealth's petition to
sentence him within the aggravated range because the court was
not precluded from resentencing him to conform the overall
sentence to that originally intended.
Accordingly, we are compelled to conclude that the lower court did
not violate double jeopardy principles by increasing appellant's
sentence, and we affirm the judgment of sentence.
Grispino, 521 A.2d at 953–54.
As discussed in our resolution of Appellant’s vindictiveness claim, it is
apparent from the record that the trial court imposed a considerably reduced
aggregate sentence but with an increase in the standard guideline range
sentences at Counts (B) and (C) and the imposition of an aggravated range
sentence for the new Aggravated Assault charge to retain, to the degree
possible, the intent behind the original aggregate sentence. For the reasons
expressed both in Grispino and in our discussion denying relief on Appellant’s
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discretionary aspects claim, we discern no double jeopardy violation with the
court’s sentence.
In Appellant’s final issue, he asserts a second discretionary aspects
challenge that the trial court failed to place adequate reasons on the record
to support its aggravated range sentence on the new count of Aggravated
Assault as it applied to victim Matt Christofferson. Appellant's Brief at 18, 29.
See Commonwealth v. Fullin, 892 A.2d 843, 849 (Pa. Super. 2006)
(concluding that the appellant raised a substantial question by alleging that
the trial court failed to place adequate reasons on the record for imposing an
aggravated range sentence).
The relevant portion of 42 Pa.C.S.A. § 9721(b) states:
In selecting from the alternatives set forth in subsection (a), the
court shall follow the general principle that the sentence imposed
should call for confinement that is consistent with the protection
of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the
rehabilitative needs of the defendant.... In every case in which the
court imposes a sentence for a felony or misdemeanor ... the court
shall make as a part of the record, and disclose in open court at
the time of sentencing, a statement of the reason or reasons for
the sentence imposed.
Id.
In addition:
In imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant's prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed
that he or she was aware of the relevant information regarding
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the defendant's character and weighed those considerations along
with mitigating statutory factors. Additionally, the sentencing
court must state its reasons for the sentence on the record. 42
Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the
record by indicating that he or she has been informed by the presentencing report; thus properly considering and weighing all
relevant factors.
Commonwealth v. Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006) (citing
Commonwealth v. Boyer,
856 A.2d 149, 154 (Pa. Super. 2004)) (some
citations omitted).
“A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question[.]” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super.
2010) (citation omitted). “[W]hen a trial court imposes a sentence that is
within the statutory limits, there is no abuse of discretion unless the sentence
is manifestly excessive so as to inflict too severe a punishment.”
Commonwealth v. Mouzon,
812 A.2d 617, 625 (Pa. 2002) (original
quotation marks omitted).
On the second day of Appellant’s sentencing hearing, counsel for the
defense informed the trial court that “Mr. Conklin recognizes that—the serious
nature of these charges and they are as about as serious as they come.” N.T.,
7/13/21, at 6. The Commonwealth, in turn, asked for an aggravated range
sentence for the first-degree felony Aggravated Assault count in question,
where the victim had sustained “horrific injuries to his abdomen”, which
required extensive hospitalization and surgeries, as part of receiving about 50
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stab wounds to his neck and torso at the hands of Appellant. N.T. at 10; N.T.,
7/9/21, at 15-16.
Before imposing the aggravated range guideline sentence, the court
indicated its receipt of the presentence investigation (“PSI”) report and
observed that the attack on this victim was severe, such that any lesser of a
sentence would depreciate the serious nature of Appellant’s actions. N.T. at
13.
The court also acknowledged Appellant’s progress with therapy during
his incarceration. N.T. at 14. In the trial court’s Pa.R.A.P. 1925(a) opinion,
it again noted the extensive PSI report which included victim statements and
the psychiatric reports, and it reiterated the reasons for an aggravated range
sentence were the severe attack on Mr. Christofferson, the serious nature of
the offense, and that any lesser sentence would depreciate the serious nature
of Appellant’s actions. Trial Court Opinion, 10/7/21, at 10.
Appellant argues that the court failed to indicate how the nature of the
attack against Mr. Christofferson substantially differed from the nature of the
attacks against the other two victims in Counts (B) and (C). We disagree.
The record as developed at the sentencing hearing confirmed that while
multiple victims sustained serious injuries, Mr. Christofferson’s were
particularly extreme, life threatening, and required prolonged and extensive
medical intervention. The court’s stated reasons in support of the aggravated
range sentence reflect these distinctions present in both the PSI report and
the record at large, such that we find no merit to Appellant’s claim otherwise.
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For the foregoing reasons, the present appeal affords Appellant no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2022
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