holding that when a defendant challenges the original sentence, appeals from the conviction, or otherwise challenges the conviction or sentence, no legitimate expectation of finality will attach
How later courts described this case
- holding that when a defendant challenges the original sentence, appeals from the conviction, or otherwise challenges the conviction or sentence, no legitimate expectation of finality will attach
- with regard to the protections of the double jeopardy clause, statutes relevant to the length of a defendant’s sentence may defeat a legitimate expectation of finality to a criminal sentence; a defendant is charged with knowledge of applicable statutory provisions
- "We expressly overruled our prior decision in Commonwealth v. Brown, [455 Pa. 274, 314 A.2d 506 (1974)] which had relied upon decisions of the United States Supreme Court predating U.S. v. DiFrancesco ■ ■ ■"
- a criminal defendant is charged with knowledge of all applicable statutory provisions
Written by the judges who cited it.
The opinion
CAPPY, Justice,
concurring.
Although I agree with the result reached by the majority in reversing the decision of the Superior Court, I disagree with the rationale relied upon in reaching that conclusion. I write separately because I believe the majority should have reinstated the original sentence of the trial court, three and one-half to seven years, for a more elementary reason. Namely, as the two and one-half to five year sentence imposed by the trial court on remand was an obvious mistake resulting in an internal inconsistency, it could not be deemed final for purposes of double jeopardy.
Kunish had originally been sentenced to two and one-half to five years on voluntary manslaughter and one to two years for the use of a deadly weapon for a total of three and one-half to seven years. On the first appeal, the Superior Court remanded for resentencing upon a determination that the deadly weapon enhancement imposed by the trial court was not applicable at the time the offense was committed. 1 On remand, the trial court mistakenly resen *216 tenced Kunish on the voluntary manslaughter charge to two and one-half to five years, but quickly corrected its mistake and resentenced Kunish to three and one-half to seven years. Thereafter, Kunish timely appealed and the Superior Court modified his sentence by imposing two and one-half to five years. That court determined that the trial court's correction of its error through resentencing subjected Kunish to double jeopardy. Allocatur was then granted by this Court.
Upon review of the transcript of the sentencing proceeding held by Judge Mihalich on April 29, 1986,1 believe it is clear that on remand, Judge Mihalich intended to resentence Kunish to the same three and one-half to seven year sentence as originally imposed. On remand, Judge Mihalich stated that the only reason the original sentence on voluntary manslaughter was split two and one-half to five years plus one to two years was because of the deadly weapon enhancement. Accordingly, Judge Mihalich’s imposition on remand of three and one-half to seven years for voluntary manslaughter without enhancement due to the use of a deadly weapon, was consistent with his original intent in sentencing Kunish for this crime. Judge Mihalich’s many references to the original sentence imposed against Kunish further support this conclusion. While the original sentence was three and one-half to seven years, Judge Mihalich repeatedly referred to an original sentence of two and one-half to five years. Specifically, in resentencing Kunish, Judge Mihalich stated:
It's the sentence of this Court that the defendant pay the costs of prosecution, and is committed to the Bureau of Corrections for a period of not less than two and a half years, not more than five years, on the conviction of *217 voluntary manslaughter, because any lesser sentence would degrade the seriousness of that crime.
In this court’s prior sentence, the sentence for voluntary manslaughter — that’s the verdict the jury found— was not as great because this Court did take into consideration the weapons enhancement provision. In this Court’s prior sentence, the sentence for voluntary manslaughter would have been greater if the Court was not taking into consideration the weapons enhancement provision.
In imposing the sentence of two and a half years to five years, the Court took into consideration the totality of the circumstances, including the weapons enhancement provision. In imposing the two-and-a-half-to-five-year sentence, the Court took into consideration the type of sentence that fits the crime, took into consideration the impact of the offense upon the community, and the sentence was justified under the circumstances.
And those are the reasons that I’m setting forth the imposition of the two-and-a-half-to-five-year sentence.
Stand committed. (N.T. p. 5). [emphasis added].
There is little doubt that Judge Mihalich intended to resentence Kunish to three and one-half to seven years incarceration. Given Judge Mihalich’s expressed intent on remand and his mistaken references to a prior sentence of two and one-half years to five years, his imposition of a sentence of only two and one-half to five years contained an internal inconsistency.
Based upon this internal inconsistency, the initial resentencing of Kunish to two and one-half to five years could not give rise to a reasonable degree of finality. Therefore, the decision of the trial court to have Kunish returned to the court room within thirty minutes for imposition of the corrected sentence of three and one-half to seven years did not subject Kunish to double jeopardy.
Accordingly, as the initial resentencing was not final for this reason, I find it unnecessary in this instance to address *218 the other factors addressed by the majority concerning finality of sentence for purposes of double jeopardy.
PAPADAKOS, J., joins this concurring opinion.
. Although not specifically cited by either the Superior Court opinion or the majority opinion herein, I presume that the deadly weapon enhancement provision of the sentencing guidelines found inapplica *216 ble by the Superior Court is that set forth at 42 Pa.C.S.A. § 9721, Guideline § 303.4(a), which provides:
When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applicable.