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COMMONWEALTH PENNSYLVANIA v. ENOS BRENIZER (04/28/78)

decided: April 28, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ENOS BRENIZER, APPELLANT (TWO CASES)



COUNSEL

Lester G. Nauhaus, John H. Corbett, Jr., Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.

Author: O'brien

[ 477 Pa. Page 536]

OPINION OF THE COURT

On February 11, 1975, appellant, Enos Brenizer, was convicted by a jury of murder of the second degree and kidnapping. Post-verdict motions were denied. On April 8, 1975, the court below imposed a sentence of life imprisonment for murder of the second degree and a concurrent term of not less than ten nor more than twenty years' imprisonment on the kidnapping indictment. Appellant appealed the murder conviction to this court and also appealed the kidnapping conviction to the Superior Court, which in turn certified the record to this court on July 3, 1975. On May 12, 1976, this court reversed appellant's judgments of sentence and remanded the case for a new trial. Commonwealth v. Brenizer, 467 Pa. 347, 356 A.2d 784 (1976).

On September 27, 1976, appellant pled guilty to the charges of murder and kidnapping. The court below determined the degree of guilt as murder of the third degree. The court then imposed a term of imprisonment of ten to twenty years for the murder of the third degree conviction, and a consecutive two to four year term for the kidnapping conviction. Appellant appealed the judgment of sentence imposed on the murder of the third degree conviction to this court and the judgment of sentence for kidnapping to the Superior Court, which certified that appeal to this court.

Appellant argues that the court below violated his Fifth Amendment protection against double jeopardy by imposing a "harsher" sentence pursuant to his guilty plea than he received after his first trial. We do not agree.

[ 477 Pa. Page 537]

Appellant contends that because the court below imposed a ten-to-twenty-year judgment of sentence for his conviction of murder of the third degree with a consecutive two-to-four-year sentence for the kidnapping conviction, in comparison to his judgments of sentence after his initial conviction of life imprisonment for murder of the second degree and a concurrent ten-to-twenty-year sentence for the kidnapping conviction, the court increased his punishment by requiring him to wait longer before he became eligible for parole.

The United States Supreme Court, in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), stated:

"We hold, therefore, that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's 'life, health, habits, conduct, and mental and moral propensities.' Williams v. New York, 337 U.S. 241-245, 69 S.Ct. 1079, 93 L.Ed. 1337. . . .

"To say that there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial is not, however, to end the inquiry. There remains for consideration the impact of ...


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