Com. v. Walker, S. ( 2019 )

J-S15035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SCOTT FONTAINE WALKER :
:
Appellant : No. 1216 WDA 2018
Appeal from the Judgment of Sentence Entered April 26, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009861-1994
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED JUNE 04, 2019
Appellant, Scott Fontaine Walker, appeals from the new judgment of
sentence entered in the Allegheny County Court of Common Pleas, following
his jury trial conviction for first-degree murder.1 We affirm and grant
counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows. On
July 24, 1994, Appellant fatally shot Victim. Appellant was 15 years old at the
time. A jury convicted Appellant of first-degree murder on May 11, 1995. The
court sentenced Appellant on June 26, 1995, to life imprisonment without the
possibility of parole (“LWOP”). This Court affirmed the judgment of sentence
on June 4, 1996, and our Supreme Court denied allowance of appeal on
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1 18 Pa.C.S.A. § 2501(a).
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* Retired Senior Judge assigned to the Superior Court.
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October 22, 1996. See Commonwealth v. Walker, 683 A.2d 315 (Pa.Super.
1996) (unpublished memorandum), appeal denied, 546 Pa. 665, 685 A.2d 545(1996). Subsequently, Appellant unsuccessfully litigated four PCRA petitions
between 2000 and 2010.
On July 6, 2012, Appellant filed pro se his fifth PCRA petition, requesting
relief under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d
407 (2012). The PCRA court appointed PCRA counsel on October 19, 2012.
The PCRA court issued notice on March 11, 2014, of its intent to dismiss
Appellant’s petition without a hearing per Pa.R.Crim.P. 907; Appellant filed a
response on April 10, 2014. On January 27, 2015, the PCRA court dismissed
Appellant’s petition, and Appellant timely appealed. On March 1, 2016, this
Court vacated the PCRA order and the judgment of sentence, and remanded
for resentencing pursuant to Miller and Montgomery v. Louisiana, ___ U.S.
___, 136 S.Ct. 718, 191 L.Ed.2d 599 (2016). See Commonwealth v.
Walker, 144 A.3d 185 (Pa.Super. 2016) (unpublished memorandum).
Upon remand, the court resentenced Appellant on April 26, 2018, to
thirty-five (35) years to life imprisonment. On May 7, 2018, Appellant timely
filed a post-sentence motion, which the court denied on August 2, 2018. On
August 27, 2018, Appellant timely filed a notice of appeal. The court ordered
Appellant on September 5, 2018, to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b). Following an extension,
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counsel filed a Pa.R.A.P. 1925(c)(4) statement of intent to file an Anders2
brief on November 8, 2018. Counsel filed a petition for leave to withdraw as
counsel and an Anders brief in this Court on January 30, 2019.
As a preliminary matter, counsel seeks to withdraw his representation
pursuant to Anders, supra and Commonwealth v. Santiago, 602 Pa. 159,
978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition
the Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; (2)
file a brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After confirming that counsel has met the antecedent requirements to
withdraw, this Court makes an independent review of the record to confirm
that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,
1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d
266 (Pa.Super. 2018) (en banc).
In Santiago, supra, our Supreme Court addressed the briefing
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2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4)
state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel has filed a petition to withdraw. The
petition states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
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worthy of this Court’s attention. In the Anders brief, counsel provides a
summary of the facts and procedural history of the case. Counsel’s argument
refers to relevant law that might possibly support Appellant’s issues. Counsel
further states the reasons for the conclusion that the appeal is wholly
frivolous. Therefore, counsel has substantially complied with the technical
requirements of Anders and Santiago.
Appellant has not responded to the Anders brief pro se or with newly-
retained private counsel. Counsel raises the following issue on Appellant’s
behalf:
WHETHER THE TRIAL COURT IMPOSED AN ILLEGAL
SENTENCE OF THIRTY-FIVE (35) YEARS TO LIFE
IMPRISONMENT FOR FIRST-DEGREE MURDER WHEN THE
SENTENCE WAS AN UNLAWFUL DE FACTO LIFE SENTENCE
WITHOUT THE POSSIBILITY OF PAROLE?
(Anders Brief at 4).
Appellant argues his sentence of thirty-five years to life imprisonment
constitutes a de facto LWOP sentence. Appellant concludes his sentence is
illegal under Miller. We disagree.
A claim that a court sentenced a juvenile defendant to a de facto LWOP
sentence goes to the legality of the sentence. Commonwealth v. Foust,
180 A.3d 416, 422 (Pa.Super. 2018). A challenge to the legality of a sentence
is a question of law. Commonwealth v. Barnes, 167 A.3d 110, 116
(Pa.Super. 2017) (en banc). Thus, our standard of review is de novo and our
scope of review is plenary. Id.-5-
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In 2012, the United States Supreme Court held LWOP sentences for
those under 18 years old at the time of their crimes constitute cruel and
unusual punishments in violation of the Eighth Amendment to the United
States Constitution. Miller, supra. In the wake of Miller, the Pennsylvania
General Assembly enacted 18 Pa.C.S.A. § 1102.1, which provides in relevant
part as follows:
§ 1102.1. Sentence of persons under the age of 18
for murder, murder of an unborn child and murder of
a law enforcement officer
(a) First degree murder.—A person who has been
convicted after June 24, 2012, of a murder 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.
* * *
(e) Minimum sentence.—Nothing under this section shall
prevent the sentencing court from imposing a minimum
sentence greater than that provided in this section.
Sentencing guidelines promulgated by the Pennsylvania
Commission on Sentencing may not supersede the
mandatory minimum sentences provided under this section.
* * *
18 Pa.C.S.A. § 1102.1(a)(1), (e) (emphasis added). “Section 1102.1 does
not prescribe minimum sentences for juvenile homicide defendants who…were
convicted of first or second-degree murder before June 24, 2012.” Foust,
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supra at 428 (emphasis added). Juvenile offenders convicted of first-degree
murder prior to Miller, however, are subject to a minimum term-of-years
sentence, which the sentencing court may determine, and a mandatory
maximum life imprisonment sentence. Commonwealth v. Batts, 640 Pa.
401, 450-51, 163 A.3d 410, 439 (2017) (“Batts II”) (holding rebuttable
presumption exists against sentencing juveniles to LWOP, which
Commonwealth can rebut if it proves beyond reasonable doubt that juvenile
defendant cannot be rehabilitated).
In Foust, this Court held “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…is
incapable of rehabilitation.” Foust, supra at 431. This Court noted “[t]here
are certain term-of-years sentences which clearly constitute de facto LWOP
sentences. For example, a 150-year sentence is a de facto LWOP sentence.
Similarly, there are clearly sentences which do not constitute de facto LWOP
sentences. A sentence of 30 years to life falls into this category.” Id. at 438.
The Foust Court, however,
decline[d] to draw a bright line…delineating what constitutes
a de facto LWOP sentence and what constitutes a
constitutional term-of-years sentence. But see
Commonwealth v. Dodge, 77 A.3d 1263, 1276 (Pa.Super.
2013), appeal denied, 625 Pa. 648, 91 A.3d 161 (2013)
(appearing to hold that…defendant must be parole eligible
before he…turns 90 for it not to be considered…de facto
LWOP sentence). We similarly decline[d] to set forth factors
that trial courts must consider when making this
determination, i.e., whether they must look to the life
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expectancy of the population as a whole or a subset thereof
and whether the defendant must be given a chance at a
meaningful post-release life.
Id. at 438.
In applying Foust, this Court has outlined a method to determine
whether a sentence constitutes a de facto LWOP sentence:
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. 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, 186 A.3d 462, 467 (Pa.Super. 2018) (internal
quotations marks and citations omitted) (concluding sentence of 45 years to
life imprisonment did not constitute de facto LWOP sentence in violation of
Miller, where appellant had been incarcerated for underlying offense since he
was 15 years old and will be eligible for parole at age 60). See also
Commonwealth v. Blount; ___ A.3d ___, 2019 PA Super 108 (filed April 4,
2019) (deciding sentence of 35 years to life imprisonment was not illegal de
facto LWOP sentence; noting appellant was incarcerated for related offense at
age 17 and will be eligible for parole at age 52); Commonwealth v. White,
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193 A.3d 977 (Pa.Super. 2018) (holding sentence of 35 years to life
imprisonment imposed upon was not illegal de facto LWOP sentence;
explaining appellant had been incarcerated for underlying crime since he was
17 years old and will be eligible for parole at age 52).
Instantly, the resentencing court sentenced Appellant to thirty-five
years to life imprisonment. Appellant has been incarcerated since he was 15
years old and will be eligible for parole when he is 50 years old. Therefore,
Appellant’s sentence does not constitute a de facto LWOP sentence and is not
an illegal sentence per Miller. See Blount, supra; White, supra; Bebout,
supra. Following our independent review of the record, we conclude the
appeal is wholly frivolous. See Dempster, supra; Palm, supra.Accordingly, we affirm the judgment of sentence and grant counsel’s petition
to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/2019
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