Sentencing • Maximum Term • ‘Apprendi v. New Jersey’ • Serious Bodily Injury

Commonwealth v. Barnes, PICS Case No. 17-1183 (Pa. Super. July 10, 2017) Stabile, J.; Ransom and Dubow, J.J., concurring (29 pages).

The trial court erred in sentencing defendant to the maximum term of imprisonment of 40 years for attempted murder in the absence of evidence of serious bodily injury to the victim. The court vacated the judgment of sentence and remanded.

Defendant was involved in an incident with his former girlfriend on Dec. 19, 2010. Twice that day, defendant strangled the victim until she lost consciousness. He told the victim “you’re gonna die today.” When the victim regained consciousness after the second instance of strangling, she found herself wrapped in a blanket and lying head-first in a recycling dumpster. The commonwealth charged defendant with multiple criminal offenses, including attempted murder. A jury convicted him of attempted murder, aggravated assault, kidnapping and recklessly endangering another person. Ultimately, the trial court sentenced defendant to 20 to 40 years of imprisonment for attempted murder and a consecutive term of incarceration of five to 10 years for kidnapping. After the trial court denied his post-sentence motion for relief, defendant filed an appeal. He argued that the trial court erred in applying Section 1102 of the Crimes Code, at 18 Pa. C. S. §1102(c), when the court imposed a maximum term of 40 years of imprisonment for attempted murder in the absence of a jury finding of serious bodily injury arising from the offense. Section 1102(c) provides that a person who has been convicted of attempt to commit murder where serious bodily injury results may be sentenced to a term of imprisonment which shall be fixed by the court at no more than 40 years. According to defendant, his sentence for attempted murder violated the U.S. Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the court held that, other 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 proven by a reasonable doubt. The docket in this case failed to reveal that defendant was charged with attempted murder resulting in serious bodily injury. In fact, neither the complaint nor the information sub judice alleged that defendant caused serious bodily injury to the victim. Thus, defendant was not on notice that the commonwealth sought either to prove that a serious bodily injury resulted from his attempted murder or to invoke the maximum sentence. Moreover, the issue of serious bodily injury resulting from the attempted murder was never submitted to the jury as an element of the crime or as a special interrogatory. The court also noted that any finding by the jury of serious bodily injury for aggravated assault could not be used to infer that the jury found serious bodily injury from the charge of attempted murder. As such, the court determined that the trial court erred in sentencing defendant to the maximum term of imprisonment of 40 years for attempted murder where the jury did not find that serious bodily injury occurred relative to the attempted murder charge.

Judge Ransom concurred, noting her agreement with defendant’s contention that the trial court abused its discretion when it failed to provide any reasons for the sentence.