The Pennsylvania Supreme Court has ordered the lower courts to review the claims of a Bedford County man who maintains he received an excessive sentence on a charge of attempted indecent assault of a minor because of the “vindictiveness” of the county’s former District Attorney William Higgins.

A former Hyndman resident, Mark Allen Prinkey, 53, is incarcerated in the State Correctional Institution at Laurel Highlands, Somerset County, where he is serving a 25- to 50-year sentence for an incident that occurred in 2007.

Prinkey was originally found guilty of attempted aggravated indecent assault, attempted involuntary deviate sexual intercourse and corruption of a minor.

Bedford County Judge Thomas S. Ling sentenced Prinkey to 10 to 25 years in prison.

A subsequent appeal resulted in the dismissal of the attempted involuntary deviate sexual intercourse charge and a referral back to Bedford County for resentencing on the remaining two convictions.

At that point, Higgins notified the defense that this time around he was seeking a 25-year mandatory minimum sentence.

The prosecution indicated that it was seeking an increased sentence because “Prinkey is a man who needs to be locked up for as long as he can be.”

Prinkey then challenged the new sentence, but the judge indicated that upon receiving the notice of the commonwealth’s request for a mandatory sentence, “it lacked the discretion to do otherwise,” according to the Supreme Court opinion issued late last week.

In 2016, Prinkey, through his defense attorney, filed a post-conviction petition contending “the doubling of his sentence amounted to retaliation for his successful challenge of his original judgment of sentence.”

Such a vindictive sentence, he challenged, is forbidden by 1969 and 1989 U.S. Supreme Court decisions.

There is no bar against a judge’s decision during a resentencing hearing to impose a more severe sentence, according to the Supreme Court.

The latest appeal by Prinkey is complicated by whether the defense is contesting the Ling sentence based on a challenge to the court’s “discretionary” power to impose a sentence or whether it is challenging the “legality” of the sentence.

Under Pennsylvania law, challenges to a judge’s discretionary powers are not permitted with the filing of a post-conviction petition.

When the state Superior Court addressed Prinkey’s vindictiveness argument two years ago, a panel ruled that “Because Prinkey’s claim is not cognizable under the Post Conviction Hearing Act, we cannot grant him relief on his challenge to the sentence as vindictive.”

But, in reviewing the case, the panel stated it was “troubled” by its decision, noting, “this case appears to be a blatant example of prosecutorial vindictiveness.”

The Supreme Court in its opinion last week did an in-depth review of how the law has evolved in defining whether a defendant is challenging the legality of a sentence compared to the proper exercise by a judge of his discretionary powers.

One of the points made in last week’s opinion was that if a judge feels he had no other choice but to impose a sentence (as Ling stated), the question would focus on the legality of the opinion as opposed to the discretionary aspects of a sentence by the judge.

“Prinkey’s vindictive sentencing claim implicates the legality of his sentence because, if it is correct, the trial court possessed no authority to impose the 25-year mandatory minimum sentence” according to the Supreme Court decision.

It continued, “Put simply, Prinkey’s challenge is to the court’s authority to impose a greater sentence on remand, not to the exercise of valid sentencing discretion.”

“Accordingly, we reverse the order of the Superior Court affirming the (post-conviction court’s) dismissal of Prinkey’s timely (petition).”

The Supreme Court opinion was written by Justice David N. Wecht and joined by Justices Max Baer, Debra Todd, Christine Donohue and Kevin Dougherty.

Justices Sallie Mundy and P. Kevin Brobson dissented, contending Prinkey should have raised his issue earlier in the appeal process.

The case will now be sent back to the Superior Court to rule whether Prinkey has raised a valid issue as to the constitutionality of his sentence.

The Superior Court, if it determines it needs more facts surrounding the vindictiveness charge, is to send the case back to Judge Ling for a possible hearing in the case.

The case began in 2007 when Prinkey put his hands on the shoulders of a 7-year-old girl and asked if she had ever been kissed.

The girl’s mother summoned police, and when asked by police what occurred, he said he had intended to kiss the child.