Com. v. White, N. , 193 A.3d 977 ( 2018 )

J-S30033-18
2018 Pa. Super. 214
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NICHOLAS ANDREW WHITE, :
:
Appellant : No. 1689 WDA 2017
Appeal from the Judgment of Sentence October 18, 2017
in the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0011435-1998
BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED JULY 20, 2018
Nicholas Andrew White (Appellant) appeals from the October 18, 2017
judgment of sentence imposed following a resentencing hearing pursuant to
Miller v. Alabama, 567 U.S. 460 (2012),1 and Commonwealth v. Batts
(Batts II), 163 A.3d 410 (Pa. 2017). We affirm.
On July 31, 1998, Appellant, then 17 years old, shot and killed his
father and disposed of his body. Following a jury trial, Appellant was
convicted of first-degree murder and abuse of a corpse. On September 28,
1999, the trial court sentenced Appellant to life imprisonment without parole
(LWOP) for first-degree murder, and two to four months’ imprisonment for
1 In Miller, the United States Supreme Court held that a “mandatory
[sentence of] life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition on cruel and
unusual punishments.” 567 U.S. at 465 (internal quotations omitted).
*Retired Senior Judge assigned to the Superior Court.
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abuse of a corpse. This Court affirmed Appellant’s judgment of sentence on
September 26, 2000. Commonwealth v. White, 79 WDA 2000 (Pa. Super.
2000) (unpublished memorandum). Appellant did not file a petition for
allowance of appeal to our Supreme Court.
On July 9, 2010, Appellant filed his first petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel was
appointed and filed three amended petitions. In the second amended
petition, Appellant relied on Miller to establish an exception to the PCRA’s
timeliness requirements. Second Amended PCRA Petition, 7/5/2012, at ¶ 6.
The PCRA court stayed the proceedings pending our Supreme Court’s
decision in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),
wherein our Supreme Court ultimately concluded that the holding in Miller
did not apply retroactively to cases on collateral appeal. Accordingly, the
PCRA court dismissed Appellant’s petition as untimely filed. Appellant filed a
notice of appeal to this Court, and we affirmed the PCRA court’s order.
Commonwealth v. White, 125 A.3d 450 (Pa. Super. 2015) (unpublished
memorandum).
Thereafter, the United States Supreme Court held that Miller applied
retroactively, essentially overruling Cunningham. Montgomery v.
Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016). Following that decision,
Appellant filed a second PCRA petition on March 7, 2016. The PCRA court
appointed counsel, who filed an amended PCRA petition.
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On October 18, 2017, after a hearing, the PCRA court granted
Appellant’s PCRA petition and resentenced Appellant to 35-years-to-life
imprisonment. Appellant filed a post-sentence motion on October 26, 2017,
alleging that the PCRA court did not state on the record how it weighed the
Miller factors. Further, Appellant contended the PCRA court impermissibly
imposed a mandatory sentence pursuant to 18 Pa.C.S. § 1102.1, and, even
if it did not impose the mandatory sentence, Appellant’s sentence was
excessive because “it does not give [Appellant], who has demonstrated
rehabilitation, an individualized sentence with a meaningful opportunity for
parole[.]” Appellant’s Post-Sentence Motion, 10/26/2017, at ¶¶ 4, 9-12.
The PCRA court denied Appellant’s motion without a hearing, and this
timely-filed notice of appeal followed.2
On appeal, Appellant presents the following issues for our
consideration.
A. Whether the [PCRA] court erred in not articulating its analysis
of the Miller[] factors when sentencing [Appellant.]
B. Whether the [PCRA] court erred and abused its discretion by
failing to consider evidence that [Appellant] had been
rehabilitated while incarcerated, which resulted in an
excessive sentence for a juvenile being sentenced pursuant to
Miller[.]
C. Whether the [PCRA] court erred in applying the sentencing
mandatory in 18 Pa.C.S. §[ ]1102.1 to [Appellant], in
2 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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violation of due process and the prohibition against ex post
facto laws[.]
D. Whether the [PCRA] court erred in impos[]ing a sentence that
does not offer a meaningful chance of parole for [Appellant],
a juvenile offender [who] has not been found to be incapable
of rehabilitation, said “meaningful chance of parole” being a
requirement of Miller[.]
Appellant’s Brief at 5-6 (unnecessary capitalization and suggested answers
omitted; reordered for ease of disposition).
Appellant’s first two claims implicate the discretionary aspects of his
sentence.
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to the
discretionary aspects of a sentence], we must engage in a four
part analysis to determine: (1) whether the appeal [was timely-
filed]; (2) whether Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code.... [I]f the appeal
satisfies each of these four requirements, we will then proceed to
decide the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Appellant has satisfied the first two requirements: he timely filed a
notice of appeal and he sought reconsideration of his sentence in a post-
sentence motion. However, Appellant has failed to comply with the
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requirements of Pa.R.A.P. 2119(f).3 Nonetheless, because the
Commonwealth has not objected, we will not find Appellant’s discretionary-
aspects-of-sentencing claims waived. See Commonwealth v. Brougher,
978 A.2d 373, 375 (Pa. Super. 2009). Therefore, we now consider whether
Appellant has raised a substantial question for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (citation and quotation marks omitted).
3 Appellant has not included a separate statement of reasons relied upon for
appeal in his brief. Pa.R.A.P. 2119(f) (“An appellant who challenges the
discretionary aspects of a sentence in a criminal matter shall set forth in a
separate section of the brief a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects of a
sentence.”). Instead, he included a short statement only as to his second
claim on appeal within that argument section. Appellant’s Brief at 23-24.
Even if we ignored Appellant’s failure to set forth his 2119(f) statement in a
separate section, his attempt at compliance still does not meet the minimum
requirements. See Commonwealth v. Mastromarino, 2 A.3d 581, 585–
86 (Pa. Super. 2010) (“At a minimum, the Rule 2119(f) statement must
articulate what particular provision of the code is violated, what fundamental
norms the sentence violates, and the manner in which it violates that
norm.”).
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Appellant contends that his sentence is excessive because (1) the
PCRA court did not articulate its analysis of the Miller factors on the record,
leaving Appellant “with no way to determine if the [PCRA] court fairly
considered the factors[;]” and (2) the PCRA court failed to consider evidence
of Appellant’s rehabilitation. Appellant’s Brief at 14, 23.
As the Court in Batts II explained,
[t]he Miller Court concluded that sentencing for juveniles must
be individualized. This requires consideration of the defendant’s
age at the time of the offense, as well as “its hallmark features,”
including:
immaturity, impetuosity, and failure to appreciate
risks and consequences[;] ... the family and home
environment that surrounds him—and from which he
cannot usually extricate himself—no matter how
brutal or dysfunctional[;] ... the circumstances of the
homicide offense, including the extent of his
participation in the conduct and the way familial and
peer pressures may have affected him[;] ... that he
might have been charged and convicted of a lesser
offense if not for incompetencies associated with
youth—for example, his inability to deal with police
officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own
attorneys[;] ... [and] the possibility of rehabilitation
... when the circumstances [i.e. (the youthfulness of
the offender)] most suggest it.
Batts II, 163 A.3d at 431 (citations omitted). However, a sentencing court
must consider these Miller factors only in cases where the Commonwealth is
attempting to meet its burden of overcoming the presumption against
juvenile LWOP sentences. Commonwealth v. Melvin, 172 A.3d 14, 24
(Pa. Super. 2017). Because the Commonwealth did not seek a LWOP
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sentence, “this issue is moot as application of the Miller factors is
immaterial. However, to the extent that Appellant’s issue can be read to
raise a claim that the court failed to consider relevant sentencing factors
outlined in the sentencing code, we consider such arguments under the
discretionary-aspects-of-sentencing scheme [].” Commonwealth v.
Machicote, 172 A.3d 595, 602 n.3 (Pa. Super. 2017), appeal granted, ___
A.3d ___, 2018 WL 2324339 (Pa. May 22, 2018).4
Accordingly, Appellant’s claims amount to an allegation that
Appellant’s minimum sentence is manifestly excessive because the PCRA
court failed to consider various mitigating factors. In that regard,
“this Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a
substantial question for our review.” []Disalvo, 70 A.3d [at]
903 [] (internal citation omitted).
However, “prior decisions from this Court involving
whether a substantial question has been raised by claims that
4 Appellant also asks this Court to create an “additional procedural safeguard
to assure the Miller factors truly are considered” by requiring sentencing
courts to articulate their analysis of the Miller factors on the record.
Appellant’s Brief at 15. That issue is before our Supreme Court currently.
Machicote, ___ A.3d ___, 2018 WL 2324339 (granting review as to
“[w]hether[] a court sentencing a juvenile defendant for a crime for which
[LWOP] is an available sentence must review and consider on the record the
Miller factors [] regardless [of] whether the defendant is ultimately
sentenced to [LWOP]”). Because that case is still pending, our Court’s
conclusion in Machicote that application of the Miller factors is unnecessary
when a LWOP sentence is not sought remains controlling law. Thus, we will
only review Appellant’s first claim insofar as it challenges the discretionary
aspects of his sentence.
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the sentencing court ‘failed to consider’ or ‘failed to adequately
consider’ sentencing factors [have] been less than a model of
clarity and consistency.” Commonwealth v. Seagraves, 103
A.3d 839, 842 (Pa.[ ]Super.[ ]2014) (citing [Commonwealth v.
Dodge, 77 A.3d 1263 (Pa. Super. 2013)]). In []Dodge, this
Court determined an appellant’s claim that the sentencing court
“disregarded rehabilitation and the nature and circumstances of
the offense in handing down its sentence” presented a
substantial question. Dodge[, 77 A.3d] at 1273.
This Court has also held that an excessive sentence
claim—in conjunction with an assertion that the court failed to
consider mitigating factors—raises a substantial question.
Commonwealth v. Caldwell, 117 A.3d 763, 769–70 (Pa. Super. 2015) (en
banc) (some citations and quotation marks omitted). Based on the above
precedent, we find that Appellant has raised a substantial question and will
review the merits of his claim.
We review discretionary-aspects-of-sentence claims under the
following standard.
If this Court grants appeal and reviews the sentence, the
standard of review is well-settled: sentencing is vested in the
discretion of the trial court, and will not be disturbed absent a
manifest abuse of that discretion. An abuse of discretion involves
a sentence which was manifestly unreasonable, or which
resulted from partiality, prejudice, bias or ill will. It is more than
just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252–53 (Pa. Super. 2006)
(citations omitted).
In Batts II, our Supreme Court held, inter alia, that a lower court, in
resentencing a juvenile offender convicted of first-degree murder prior to
Miller, may impose a minimum term-of-years sentence and a maximum
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sentence of life imprisonment, thus “exposing these defendants to parole
eligibility upon the expiration of their minimum sentences.” Batts II, 163
A.3d at 439. In determining the minimum term-of-years sentence, the
Court mandated that lower courts consult the sentencing requirements
codified at 18 Pa.C.S. § 1102.1 for guidance. Id. at 457. Specifically for a
juvenile convicted of first-degree murder pre-Miller, the portion of section
1102.1 that a lower court must consider is the guidelines set forth in
subsection 1102.1(a). Subsection 1102.1(a)(1) provides, in relevant part,
as follows.
(a) First degree murder.--A person who has been convicted
after June 24, 2012, of a murder of the first degree, first degree
murder of an unborn child or murder of a law enforcement
officer of the first degree and who was under the age of 18 at
the time of the commission of the offense shall be sentenced as
follows:
(1) A person who at the time of the commission of the
offense was 15 years of age or older shall be sentenced to
a term of life imprisonment without parole, or a term of
imprisonment, the minimum of which shall be at least 35
years to life.
18 Pa.C.S. § 1102.1(a)(1).
At the resentencing hearing, the PCRA court heard testimony from
Appellant, wherein he accepted responsibility for his actions and apologized;
Appellant’s mother on Appellant’s behalf; and Appellant’s uncle on behalf of
the victim. In addition to the testimony and arguments of counsel, the PCRA
court reviewed Appellant’s extensive sentencing memorandum, which
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included transcripts from the decertification hearing, witness statements
from Appellant’s jury trial, and the mitigation expert’s report. N.T.,
10/18/2017, at 3, 6-60. See Commonwealth v. Boyer, 856 A.2d 149,
154 (Pa. Super. 2004) (stating that where the sentencing court has the
benefit of a pre-sentence investigation (PSI) report, it is presumed to have
considered all relevant information).5 Moreover, the PCRA court stated that
it was guided by the legislative intent behind 18 Pa.C.S. § 1102.1(a) and the
goal of uniformity announced in Batts II for sentencing pre- and post-Miller
cases, and imposed a thirty-five-year-to-life sentence. N.T., 10/18/2017, at
59-60. Because Appellant’s sentence is compliant with subsection
1102.1(a)(1) and Batts II, and the PCRA court had the benefit of the
comprehensive sentencing memorandum, we find the PCRA court considered
5While the record does not indicate that the PCRA court had the benefit of a
PSI report, the sentencing memorandum was the functional equivalent of a
PSI report, and therefore provided the PCRA court with the requisite
background information to make an informed decision about what minimum
sentence to impose.
The first responsibility of the sentencing judge [is] to be sure
that he ha[s] before him sufficient information to enable him to
make a determination of the circumstances of the offense and
the character of the defendant. Thus, a sentencing judge must
either order a PSI report or conduct sufficient presentence
inquiry such that, at a minimum, the court is apprised of the
particular circumstances of the offense, not limited to those of
record, as well as the defendant’s personal history and
background....
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725–26 (Pa. Super. 2013)
(citation omitted).
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the relevant mitigating factors, and did not abuse its discretion in fashioning
Appellant’s sentence.
Next, Appellant claims that the PCRA court erred in applying the
mandatory sentence set forth in 18 Pa.C.S. § 1102.1(a)(1), in violation of
due process and the prohibition against ex post facto laws. Appellant’s Brief
at 16. This claim implicates the legality of Appellant’s sentence. “Issues
relating to the legality of a sentence are questions of law[.] ... Our standard
of review over such questions is de novo and our scope of review is plenary.”
Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)
(citations and quotations omitted).
As detailed supra, the lower court must consider the sentencing
requirements codified at 18 Pa.C.S. § 1102.1 in fashioning a term-of-years-
to-life sentence for offenders convicted pre-Miller. Batts II, 163 A.3d at
457. Appellant acknowledges this, but argues there is no difference between
a trial court being guided by the statute and imposing it ex post facto.
Appellant’s Brief at 18-19. We disagree. The PCRA court did not apply the
mandatory minimum, but rather did as Batts II requires, and considered
subsection 1102.1(a)(1) for guidance, along with the testimony and exhibits
presented at his resentencing hearing, in fashioning Appellant’s minimum
sentence of 35 years’ imprisonment. See PCRA Court Opinion, 12/20/2017,
at 2 (unnumbered) (clarifying that “the [PCRA c]ourt did not impose the
mandatory minimum sentence contained in 18 Pa.C.S.[] § 1102.1”).
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Accordingly, Appellant has not convinced us that the PCRA court imposed an
illegal sentence.
Finally, Appellant claims that the PCRA court imposed a de facto LWOP
sentence because his minimum sentence of 35 years does not offer
Appellant a meaningful opportunity for parole. Appellant’s Brief at 20.
“[A] trial court may not impose a term-of-years sentence, which
constitutes a de facto LWOP sentence, on a juvenile offender convicted of
homicide unless it finds, beyond a reasonable doubt, that he or she is
incapable of rehabilitation.” 6 Commonwealth v. Foust, 180 A.3d 416, 431
(Pa. Super. 2018). “There are certain term-of-years sentences [that] clearly
constitute de facto LWOP sentences. For example, a 150-year sentence is a
de facto LWOP sentence. Similarly, there are clearly sentences [that] do not
constitute de facto LWOP sentences. A sentence of 30 years to life falls into
this category.” Id. at 438.
Appellant’s minimum sentence of 35 years of imprisonment falls
between these two categories. This Court “decline[d] to draw a bright line in
[Foust] delineating what constitutes a de facto LWOP sentence and what
constitutes a constitutional term-of-years sentence.” Id. However, this
6 The Commonwealth conceded at Appellant’s resentencing hearing that a
LWOP sentence was not an option in this case because it could not meet the
burden necessary to prove that Appellant was incapable of rehabilitation.
N.T., 10/18/2017, at 56.
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Court recently outlined the procedure for determining where such “in-
between” minimum sentences fall on the Foust spectrum.
The key factor in considering the upper limit of what
constitutes a constitutional sentence, in this narrow
context, appears to be whether there is “some meaningful
opportunity to obtain release based on demonstrated maturity
and rehabilitation.” Graham[ v. Florida], 560 U.S. [48,] 75[
(2010)]. Implicit in this standard is the notion it would not be
meaningful to provide an opportunity for release based solely on
the most tenuous possibility of a defendant’s surviving the
minimum sentence imposed. To be meaningful or, at least,
potentially meaningful, it must at least be plausible that one
could survive until the minimum release date with some
consequential likelihood that a non-trivial amount of time at
liberty awaits. Thus, though it expressly declined to do so,
the Foust Court seemed to suggest some sort of meaningful-
opportunity-for-release standard by declaring that a 150–years–
to–life sentence constitutes a de facto LWOP sentence.
Commonwealth v. Bebout, ___ A.3d ___, 2018 WL 2076083 at *3 (Pa.
Super. filed May 4, 2018) (footnote omitted; emphasis in original). Applying
this test, we concluded in Bebout that a sentence of 45-years-to-life
imprisonment did not constitute a de facto LWOP sentence.
[Bebout’s] opportunity for release [was] meaningful, especially
in light of the gravity of his crime, because he has the potential
to live for several decades outside of prison if paroled at his
minimum.
Thus, based on the record and arguments before us we
conclude that [Bebout] has simply failed to meet his burden of
demonstrating that the lower court sentenced him to a de
facto LWOP sentence. There simply is no comparison between
the opportunity to be paroled at 60 years of age and 100+ years
of age. The difference is, quite literally, a lifetime. As such, we
are not convinced that [Bebout’s] sentence is the functional
equivalent of LWOP.
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Id. at *5 (emphasis in original; footnote omitted).
Here, the PCRA court sentenced Appellant to a minimum term of 35
years’ imprisonment. Appellant has been incarcerated for this crime since
he was 17 years old. Accordingly, Appellant will be eligible for parole when
he is 52 years old. Based on the record before us, we conclude that
Appellant’s term-of-years minimum sentence does not constitute a de facto
LWOP sentence, and his claim that his sentence offers him no meaningful
opportunity for parole is without merit.
Accordingly, after a thorough review of the record and briefs, we find
Appellant has presented no issue on appeal that would convince us to
disturb his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2018
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