Commonwealth v. Kunish

602 A.2d 849, 529 Pa. 206, 1992 Pa. LEXIS 28
CourtSupreme Court of Pennsylvania
DecidedJanuary 28, 1992
Docket62 Western District Appeal Docket, 1989
StatusPublished
Cited by20 cases

This text of 602 A.2d 849 (Commonwealth v. Kunish) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kunish, 602 A.2d 849, 529 Pa. 206, 1992 Pa. LEXIS 28 (Pa. 1992).

Opinions

OPINION

McDERMOTT, Justice.

In this appeal we must resolve the question of whether the trial court violated the double jeopardy clause when, after sentencing the appellee to a term of two and one-half to five years of incarceration, the court recalled the appellee and resentenced him for the same criminal offense to a term of three and one-half to seven years of incarceration. The double jeopardy clause set forth in the Pennsylvania Constitution is coextensive with federal constitutional standards.1 Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986).

The facts of this case are essentially undisputed. The appellee, following his conviction for voluntary manslaughter, was first sentenced in August of 1984, to a term of three and one-half to seven years of incarceration. The Honorable Judge Gilfert M. Mihalich of the Court of Common Pleas of Westmoreland County imposed the judgment [208]*208of sentence. Following a direct appeal from the judgment of sentence, the Superior Court remanded for resentencing, holding that the sentencing court had erred in relying upon a one to two year sentence enhancement for the use of a deadly weapon, which was prescribed by a statute not yet in effect at the time of appellee’s criminal offense. Upon remand, a second sentencing hearing was held before Judge Mihalich, commencing at 9:30 a.m. on April 26, 1986. During this proceeding appellee’s counsel argued that the intent of the Superior Court’s decision was for the trial court to impose a two and one-half to five year term of incarceration for the voluntary manslaughter conviction. The Commonwealth responded by emphasizing the many factors considered by the court in imposing its original sentence, aside from the deadly weapons enhancement, and argued to the court that “... there is reason to keep the sentence as you originally gave it, and at least, Your Honor, we would ask that you resentence no lower than the two and a half to five.” N.T., April 29, 1986, at 4.

The trial court then imposed a sentence of two and a half to five years, and in so doing, the court provided the following comments:

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, 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 [sic] sentence, the Court took into consideration the type of sentence that fits the crime, took into consideration the impact of [209]*209the offense upon the community, and the sentence was justified under the circumstances.

Id. at 5-6.

Within minutes after the appellee was escorted from the courtroom to be transferred to a correctional facility, the trial court recalled the appellee to the courtroom, and resentenced him to a term of three and one-half to seven years of incarceration:

I didn’t realize until I was talking to my clerk that I made a mistake in reading the years. It was my intent to impose the same sentence, if you look at my reasons that I set forth. And I was making some notes; when Mr. Galloway was talking he mentioned two and a half to five years, and I marked that down. I am vacating my prior sentence because of an error, and the reasons that I set forth will indicate that there was an error____ I indicated to you when I gave my reasons that if I had not considered the weapons enhancement, my sentence would have been greater for the voluntary manslaughter____

Id. at 7-8. The trial court later denied appellee’s motion challenging the propriety of this enhanced sentence. Upon appeal to the Superior Court appellee’s sentence was modified to a term of two and one-half to five years on the grounds that the imposition of the enhanced sentence on April 29, 1986, subjected the appellant to double jeopardy. 363 Pa.Super. 639, 522 A.2d 661. The Superior Court relied upon our decision in Commonwealth v. Brown, 455 Pa. 274, 314 A.2d 506 (1977), which has been overruled. See Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989). The Commonwealth has sought relief in this Court.

We have most recently addressed the protections afforded by the double jeopardy clause in Commonwealth v. Jones, id., wherein the trial court had imposed concurrent sentences of forty-eight to sixty-four months for rape, involuntary deviate sexual intercourse, and aggravated assault charges; a concurrent sentence of twenty-four to forty-eight months for possessing instruments of crime; and a consecutive three year term of probation for robbery. Im[210]*210mediately following the imposition of sentence the judge realized that the sentences of forty-eight to sixty-four months were illegal, because the minimum sentences imposed were not equal to one-half of the maximum sentences as required by 42 Pa.C.S.A. § 9756(b). The court thus modified the sentences to reflect a maximum term of ninety-six months. The appellant was called before the court the following day, and at that time, he was advised of the modification of his sentence.

In Jones, we relied upon the decision of the United States Supreme Court in U.S. v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), in concluding that there had been no double jeopardy violation in the modification of the original illegal sentence. We noted that, due to the mandatory statutory provision, the sentence originally imposed “would certainly have been corrected on appeal.” Jones, supra 520 Pa. at 390, 554 A.2d at 52. We expressly overruled our prior decision in Commonwealth v. Brown, supra, which had relied upon decisions of the United States Supreme Court predating U.S. v. DiFrancesco for the proposition that a court is without power to increase an existing sentence once the defendant has begun to serve that sentence.

While the factual underpinnings of the United States Supreme Court’s decision in DiFrancesco and our decision in Jones were analogous, the case presently before us is distinguishable from both of these decisions. In the case sub judice, the sentence first imposed by the trial court on April 29, 1986, was not illegal. No statute precluded the imposition of a sentence of two and one-half to five years. Thus, we must reach beyond our decision in Jones to resolve the matter before us. Accordingly, we first return to U.S. v. DiFrancesco for a closer examination. There, the defendant was convicted of federal racketeering offenses and sentenced as a dangerous special offender under 18 U.S.C. § 3576 to two ten-year prison terms to be served concurrently with a nine year sentence imposed in an unrelated federal trial.

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Commonwealth v. Kunish
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Cite This Page — Counsel Stack

Bluebook (online)
602 A.2d 849, 529 Pa. 206, 1992 Pa. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kunish-pa-1992.