Com. v. Batts, Q. , 125 A.3d 33 ( 2015 )

J-A21019-15
2015 PA Super 187COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
QU’EED BATTS
Appellant No. 1764 EDA 2014
Appeal from the Judgment of Sentence May 2, 2014
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001215-2006
BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*
OPINION BY MUNDY, J.: FILED SEPTEMBER 04, 2015
Appellant, Qu’eed Batts, appeals from the May 2, 2014 aggregate
judgment of sentence of life imprisonment without the possibility of parole,
which was reimposed after our Supreme Court vacated the decision of a
prior panel of this Court and remanded to the trial court for resentencing.
After careful review, we affirm.
We summarize the relevant facts and procedural history as follows. A
jury found Appellant guilty of first-degree murder, attempted murder, and
aggravated assault.1 These convictions arose from a February 7, 2006
gang-related shooting. On that day, Appellant, then 14 years old, shot two
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2501, 901, 2702(a), respectively.
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other teenage boys, Corey Hilario and Clarence Edwards, on the front porch
of Edwards’ residence. Appellant first shot 18-year-old Hilario in the back as
he attempted to escape, causing serious bodily injuries from which Hilario
ultimately recovered. Appellant then fatally shot 16-year-old Edwards, who
had fallen, twice in the head.
After an investigation, police apprehended Appellant, who, during an
interview, eventually confessed to shooting Edwards and Hilario. Appellant
admitted he shot Edwards and Hilario, but claimed he only did so because he
believed an older gang member, Vernon Bradley, would kill him if he did not
follow Bradley’s orders to shoot the two other young men.
Appellant explained that he had recently been inducted into a gang,
the Bloods. On the night of the shooting, he was a passenger with Bradley
and other members of the Bloods in a vehicle driven by Rasheeda McClain.
The gang members drove to Edwards’ residence, where McClain identified
Edwards and Hilario as two boys who had previously robbed her. Appellant
did not know either of the victims. Bradley then asked which gang member
would “put work in,” and gave Appellant a gun and a mask.
Appellant exited the car in front of Edwards’ house and put on the
mask and a glove. McClain drove the car down the block and parked at the
corner to wait for Appellant. Appellant then walked up the front steps of the
house and onto the porch, where Hilario, Edwards, and Edwards’ father were
present. Appellant ordered the three men to get down. Edwards’ father
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escaped into the house. As Hilario attempted to follow Edwards’ father,
Appellant shot him in the back, but Hilario still managed to make it inside
the house. Appellant then turned to Edwards, who had fallen and was lying
on the porch. Appellant stood over Edwards and shot him twice in the head.
Appellant then ran back to the car, and the group drove away. Edwards died
at the hospital. Because of the shootings, Appellant was promoted to the
higher rank of “universal sergeant” within the gang.
The Commonwealth charged Appellant with the above-listed offenses
and two counts of criminal conspiracy.2 Because Appellant was charged with
murder, the case was automatically placed in the jurisdiction of the criminal
court. See 42 Pa.C.S.A. § 6302 (excluding murder from the definition of a
“delinquent act”); id. § 6322 (providing that a case charging a child with
murder may be transferred to the juvenile court if the child shows that the
transfer serves the public interest based on the factors in 42 Pa.C.S.A. §
6355(a)(4)(iii). After an extensive evidentiary hearing on Appellant’s motion
to transfer the case to the juvenile justice system under Section 6322 of the
Juvenile Act,3 the trial court denied Appellant’s motion. Hence, Appellant
was tried as an adult.
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2
18 Pa.C.S.A. § 903(a)(1).
3
42 Pa.C.S.A. § 6301-6375.
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At trial, Appellant testified consistently with the statement he gave to
the police and contended that he committed the shootings under duress
because he felt he would be killed if he disobeyed Bradley’s order to shoot
Edwards and Hilario. Despite his duress defense, on July 31, 2007, the jury
convicted him of first-degree murder, attempted murder, and aggravated
assault. The jury acquitted Appellant of the two conspiracy charges.
On October 22, 2007, the trial court sentenced Appellant to a
mandatory term of life imprisonment, which automatically made him
ineligible for parole. See 18 Pa.C.S.A. § 1102(a)(1) (providing “a person
who has been convicted of a murder of the first degree… shall be sentenced
to death or a term of life imprisonment…[]”), superseded, relative to juvenile
offenders, by 18 Pa.C.S.A. § 1102.1; 61 Pa.C.S.A. § 6137(a)(1) (stating that
the Board of Probation and Parole cannot release on parole any inmate
serving life imprisonment). For the conviction of attempted murder, the trial
court imposed a concurrent sentence of six to twenty years’ imprisonment.4
Appellant filed a timely post-sentence motion, which the trial court
denied. Appellant appealed to this Court, arguing, among other things, that
the United States Supreme Court’s decision in Roper v. Simmons, 543 U.S.
551 (2005), made the sentence of mandatory life imprisonment without the
possibility of parole for a juvenile unconstitutional. Commonwealth v.
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4
Aggravated assault merged with attempted murder for purposes of
sentencing.
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Batts, 974 A.2d 1175 (Pa. Super. 2009) (unpublished memorandum at 12)
(Batts I), vacated, 66 A.3d 286 (Pa. 2013) (Batts II). In Batts I, this
Court noted that Roper did not apply to this case because Roper held that
the imposition of the death penalty on juvenile offenders was
unconstitutional under the Eighth and Fourteenth Amendments, but did not
prohibit sentencing juveniles to life imprisonment, and Appellant in this case
had received a mandatory life sentence. Id., citing Commonwealth v.
Wilson, 911 A.2d 942, 946 (Pa. Super. 2006). Notably, this Court also
rejected Appellant’s claim that due process required the sentencing court to
consider evidence of mitigating factors before imposing a sentence of life
without parole on a juvenile. Id. at 15-16, citing Summer v. Shuman, 483
U.S. 66, 76 (1987) (requiring the sentencing court to consider mitigating
evidence before imposing the death penalty), and Harmelin v. Michigan,
501 U.S. 957, 994-995 (1991) (holding the sentencing court does not have
to consider mitigating evidence before sentencing an adult to a mandatory
term of life imprisonment without parole). Accordingly, this Court affirmed
Appellant’s judgment of sentence of mandatory life imprisonment without
the possibility of parole.
Our Supreme Court granted allowance of appeal to consider both
whether Roper rendered Appellant’s sentence unconstitutional and whether
the mandatory nature of the life without parole sentence offended the Eighth
and Fourteenth Amendments. Batts II, supra at 290. The Court held the
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case pending the United States Supreme Court’s decision in Graham v.
Florida, 560 U.S. 48 (2009). Id. After the Supreme Court issued Graham,
holding that sentencing juvenile non-homicide offenders to life imprisonment
without the possibility of parole violates the Eighth Amendment, our
Supreme Court heard argument in this case. Id. Following argument,
however, the Court again reserved consideration pending the disposition of
Miller v. Alabama and Jackson v. Hobbs, --- U.S. ---, 132 S. Ct. 2455(2012), which were argued together before the United States Supreme
Court. On June 25, 2012, the United States Supreme Court announced its
decision in Miller, holding “that the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without the possibility of parole for
juvenile offenders.” Miller, supra at 2469, citing Graham, supra at 74.
While the Court declined to categorically ban the sentence of life without
parole for juveniles, the Court explained that it believed that such a
sentence would be “uncommon.” Id. Nonetheless, the Court confirmed that
its holding “d[id] not foreclose a sentencer’s ability to make that judgment in
homicide cases, [but] we require it to take into account how children are
different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.” Id. (footnote omitted).
The decision in Miller unequivocally rendered Appellant’s mandatory
life without parole sentence unconstitutional. Therefore, our Supreme Court
instructed the parties in this case to submit supplemental briefs, addressing
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the appropriate remedy for a Miller violation on direct appeal generally and
the relief due to Appellant, as a 14-year-old convicted of first-degree murder
specifically. Batts II, supra at 293.
On October 25, 2012, while Batts II was awaiting decision, a new
statutory sentencing scheme for juveniles convicted of murder, Section
1102.1, took effect. See 18 Pa.C.S.A. § 1102.1. Section 1102.1 is our
legislature’s response to Miller, but applies only to juveniles who were
convicted of murder on or after June 25, 2012, the date Miller was issued.
Id. § 1102.1(a). The sentencing scheme in Section 1102.1(a) separates
juveniles who have been convicted of first-degree murder into two
categories based on their age. Id. Those who were younger than 15 at the
time of the first-degree murder are subject to either life imprisonment
without parole, or a term of imprisonment that is at a minimum 25 years to
life. Id. § 1102.1(a)(2). On the other hand, those who were 15 to 18 years
old must be sentenced to either life imprisonment without parole or a term
of at least 35 years to life. Id. § 1102(a)(1). The new statute provides that
the sentencing court must make findings on the record regarding a number
of factors related to the nature of the offense and the offender’s
characteristics, including specific age-related characteristics, when deciding
whether to impose life without parole on a juvenile. Id. § 1102.1(d).
However, the new Section 1102.1 did not apply to Appellant because
Appellant was convicted of murder in 2007, before the effective date of
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Section 1102.1. Instead, Appellant was subject to the version of Section
1102 that was in effect at the time of his sentencing. Accordingly, in Batts
II, our Supreme Court examined “the appropriate remedy for the Eighth
Amendment violation that, under Miller, occurred when Appellant was
mandatorily sentenced to life imprisonment without the possibility of parole
upon his conviction for first-degree murder[]” in context of the then-existing
statutory scheme in Section 1102. Batts II, supra.
In Batts II, our Supreme Court explained that Miller’s holding is
narrow, i.e., mandatory sentences of life imprisonment without the
possibility of parole are not constitutional when imposed on juveniles
convicted of murder. It accordingly rejected Appellant’s argument that
Miller rendered Section 1102 unconstitutional in its entirety as applied to
juveniles, reasoning as follows.
Section 1102, which mandates the imposition of a
life sentence upon conviction for first-degree murder,
see 18 Pa.C.S. § 1102(a), does not itself contradict
Miller; it is only when that mandate becomes a
sentence of life-without-parole as applied to a
juvenile offender—which occurs as a result of the
interaction between Section 1102, the Parole Code,
see 61 Pa.C.S. § 6137(a)(1), and the Juvenile Act,
see 42 Pa.C.S. § 6302—that Miller’s proscription
squarely is triggered. Miller neither barred
imposition of a life-without-parole sentence on a
juvenile categorically nor indicated that a life
sentence with the possibility of parole could never be
mandatorily imposed on a juvenile. Rather, Miller
requires only that there be judicial consideration of
the appropriate age-related factors set forth in that
decision prior to the imposition of a sentence of life
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imprisonment without the possibility of parole on a
juvenile.
Batts II, supra at 295-296 (some citations omitted). The Court also noted
that it would not expand the holding of Miller absent a common law history
or a legislative directive. Id. at 296 (citation omitted). Accordingly, our
Supreme Court remanded to the trial court with instructions to consider the
following age-related factors in resentencing Appellant.
[A]t a minimum [the trial court] should
consider a juvenile’s age at the time of the
offense, his diminished culpability and capacity
for change, the circumstances of the crime, the
extent of his participation in the crime, his
family, home and neighborhood environment,
his emotional maturity and development, the
extent that familial and/or peer pressure may
have affected him, his past exposure to
violence, his drug and alcohol history, his
ability to deal with the police, his capacity to
assist his attorney, his mental health history,
and his potential for rehabilitation.
[Commonwealth v.] Knox, 50 A.3d [732,] 745
[(Pa. Super. 2012)] (citing Miller, []132 S. Ct. at
2455) [(remanding for resentencing a juvenile who
had previously received a mandatory life without
parole sentence in violation of Miller, and instructing
trial court to resentence juvenile to either life with
parole or life without parole), appeal denied, 69 A.3d
601 (Pa. 2013)]. We agree with the Commonwealth
that the imposition of a minimum sentence taking
such factors into account is the most appropriate
remedy for the federal constitutional violation that
occurred when a life-without-parole sentence was
mandatorily applied to Appellant.
Batts II, supra at 297 (first brackets in original).
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Justice Baer authored a concurring opinion, joining in the majority’s
decision to “remand[] the case to the trial court for it to resentence
Appellant based upon his individual circumstances to a sentence of life
imprisonment either with the possibility of parole or without the possibility of
parole for his conviction of first[-]degree murder committed when he was a
fourteen year old juvenile.” Id. at 299-300 (Baer, J., concurring). Justice
Baer further opined that, to achieve uniformity in sentencing, trial courts
should be guided by Section 1102.1 in resentencing juveniles whose life
without parole sentences violated Miller, but would not otherwise be
resentenced under Section 1102.1 because they were convicted before
Miller was decided. Id. at 300 (Baer, J., concurring).
On May 2, 2014, after a two-day sentencing hearing, the trial court
reimposed a sentence on Appellant of life imprisonment without the
possibility of parole. In doing so, the trial court explained that it considered
appropriate age-related factors in accordance with Miller as instructed by
the Batts II majority, and it also took guidance from Section 1102.1 as
suggested by Justice Baer’s concurring opinion. Trial Court Opinion,
8/27/14, at 14, quoting N.T., 5/2/14, at 3-8. The trial court noted that in
preparation for the resentencing hearing, it had reviewed the record; trial
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transcripts;5 the parties’ sentencing memoranda; an October 11, 2013
presentence investigation report; a July 26, 2013 report by forensic
psychologist Dr. Kraus; two reports by forensic psychiatrist Dr. Michals of
January 16, 2007 and March 12, 2014; a January 12, 2007 report by
forensic psychologist Dr. Samuel; a November 21, 2013 report by forensic
psychologist Dr. Dattilio, a defense expert; a December 31, 2013 sentencing
memorandum by Dana Cook, a defense expert; and an October 29, 2013
letter from Delores Howell, murder victim Edwards’ grandmother.
Moreover, at the resentencing hearing, the trial court received the
following evidence. The Commonwealth presented Lieutenant Thomas
Serbin, Howell, and Dr. Michals. Lieutenant Serbin interviewed Appellant
when he was transferred to State Correctional Institution (SCI) Retreat in
2009. Serbin testified that Appellant admitted that he was a Blood and
frequently associated with other Bloods in prison. Id. at 19-20. Howell
spoke of the impact of the murder of her grandson on her and her family.
Id. at 25.
Dr. Michals, a forensic psychiatrist, testified that Appellant committed
the murder consciously, to gain the acceptance of the Bloods. Id. at 26.
Dr. Michals opined that it is possible for a juvenile to change while maturing,
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5
At the time of remand, the Honorable William F. Moran, who presided over
Appellant’s 2007 trial, had retired. The president judge reassigned the case
for resentencing to the Honorable Michael J. Koury, Jr.
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but that altering basic personality traits is very difficult. Id. Specifically, he
testified that Appellant’s basic traits, including anger, instability, impulsivity,
poor judgment, and his need to see himself as strong, have persisted over
time and are resistant to change. Id. Accordingly, Dr. Michals concluded
that Appellant is not amenable to treatment or rehabilitation. Id.
On the other hand, Appellant presented Dr. Dattilio, the defense’s
forensic psychologist. Dr. Dattilio testified that Appellant was susceptible to
gang influence because he did not have any strong familial bonds during
childhood. Id. at 20. Dr. Dattilio further explained that Appellant knew
killing was wrong, but his youth and inexperience inhibited his judgment.
Id. Dr. Dattilio related generally that the consensus of research on brain
development was that brains of 14-year-olds are not fully formed, which
contributes to an inability to make sound judgments. Id. at 21. Dr. Dattilio
ultimately opined that Batts would be amenable to treatment and
rehabilitation even though he showed some hardened personality
characteristics, including narcissism and antisocial behavior. Id. at 22.
Similarly, the trial court read a letter written by Gregory Troxell,
principal of Appellant’s middle school and high school, in which Troxell stated
that Appellant had taken responsibility for his crimes and worked to
rehabilitate himself. Id. at 23-24. Likewise, Appellant’s mother read a
letter in which she admitted Appellant lacked appropriate parenting. She
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further asserted that Appellant has matured during his time in prison and
now deserves a second chance. Id. at 24.
Appellant, testifying on his behalf, apologized to the victim’s family for
killing Edwards and stated that he felt he had grown into “a very mature
young man.” Id. at 24-25, quoting N.T., 5/1/14, at 170-171. Appellant
also denied being an active gang member. Id. at 25.
The trial court analyzed this evidence according to the sentencing
factors listed in Section 1102.1, Section 9721(b) of the Sentencing Code,
and the age-specific factors listed in Knox, as well as additional factors the
trial court found relevant. Id. at 28-57; see also 18 Pa.C.S.A. 1102.1(d)
(listing considerations when determining to impose a sentence of life without
parole on a juvenile); 42 Pa.C.S.A. § 9721(b) (stating general sentencing
principles); Knox, supra (providing 13 age-related factors for deciding
whether to sentence a juvenile to life without parole). In total, the trial
court explained its analysis of 23 factors. Trial Court Opinion, 8/27/14, at
44-57. The trial court then weighed the 23 factors, noting that some were
not in Appellant’s favor and others were in his favor. Id. at 57-61.
Specifically, the trial court found the following factors were not in
Appellant’s favor: the premeditated, brutal, and senseless nature of the
shootings; that Appellant acted alone; Appellant acted without justification
as his duress defense was not credible; the particular vulnerability of the two
unarmed and unsuspecting teenage victims; Appellant’s lack of cooperation
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with the police; the impact of the crimes on the victims and community; the
need to avoid minimizing the seriousness of the crimes; the uncertainty of
Appellant’s amenability to treatment; and the need to protect the public.
Id. On the other hand, the trial court explained that a number of factors
were in Appellant’s favor, such as his childhood experiences; his age of 14;
his lack of a criminal record and his regular school attendance; expert
opinions that his psychological condition could improve; and the lack of
evidence that he engaged in any violent gang-related activity in prison. Id.,
quoting, N.T., 5/2/14, at 56-65. Further, the trial court considered “the
extent to which [Appellant’s] youth and immaturity, his troubled childhood,
his need for acceptance, and his desire to prove himself contributed to his
crime. We have considered those factors, including the disruption and
emotional pain Mr. Batts suffered as a child.” Id. at 60, quoting, N.T.,
5/2/14, at 56-65.
After weighing all of the sentencing factors, the trial court “conclude[d]
that the factors not in [Appellant’s] favor significantly outweigh[ed] the
factors in his favor.” Id. at 61, quoting, N.T., 5/2/14, at 65. Accordingly,
on May 2, 2014, the trial court reimposed a sentence of life without parole
on Appellant and a concurrent sentence of ten to twenty years’
imprisonment on the attempted murder conviction. Id., quoting, N.T.,
5/2/14, at 65-68.
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On May 12, 2014, Appellant filed post-sentence motions, which the
trial court denied the next day. On June 10, 2014, Appellant filed a timely
notice of appeal.6
On appeal, Appellant presents three issues for our review.
1. Whether the evidence was insufficient to
establish beyond a reasonable doubt that
[Appellant] is one of the rare incorrigible
juveniles who deserve a life without parole
sentence?
2. Whether [Appellant]’s re-sentencing
proceeding was unconstitutional because it
provided him with fewer procedural safeguards
than an adult facing capital punishment?
3. Whether the [Appellant]’s sentence of life
without parole violated the Pennsylvania
Supreme Court’s directive that Defendant be
sentenced to “a mandatory maximum sentence
of life imprisonment as required by Section
1102(a), accompanied by a minimum sentence
determined by the common pleas court upon
resentencing?”
Appellant’s Brief at 4, quoting Batts II, supra at 297 (footnote omitted).
Appellant’s first claim purportedly presents a challenge to the
sufficiency of the evidence to support the trial court’s imposition of a life
without the possibility of parole sentence. Appellant’s Brief at 48.
Specifically, Appellant contends that this appeal is an opportunity for us to
create a different standard of review and burden of proof in cases of
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6
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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juveniles receiving sentences of life without parole, because this Court has
not yet reviewed the pre-Miller discretionary imposition of a life without
parole sentence on a juvenile. Id. Appellant invites us to heighten our
standard of review from the “abuse of discretion” standard under which we
review all other criminal sentences and instead provide a de novo standard
of review for sentences of life without parole imposed on juveniles using a
“beyond a reasonable doubt” burden of proof, which is ordinarily reserved
for review of death sentences. Id. at 47, 49-50. Such standard of review,
Appellant reasons, enforces a presumption against imposing life without
parole on a juvenile and implements the suggestion in Miller that, “we think
appropriate occasions for sentencing juveniles to this harshest possible
penalty will be uncommon.”7 Id. at 49, quoting, Miller, supra at 2466.
Accordingly, Appellant contends in reviewing a sentence of life without
parole imposed on a juvenile, our standard of review should be de novo, our
scope of review should be plenary, and our standard of proof should be that
the Commonwealth must show beyond a reasonable doubt that Appellant is
one of the rare juveniles who is “incorrigible.” Id. at 52.
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7
The Juvenile Law Center, the Defender Association of Philadelphia, and the
Pennsylvania Association of Criminal Defense Lawyers have collectively filed
an amici brief on behalf of Appellant. It reiterates Appellant’s contention
that Miller contained a presumption against a sentence of life without parole
for a juvenile, that we must implement, to guide the common pleas courts
tasked with determining whether to sentence a juvenile to life without
parole. Amici Brief at 16-22.
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Presuming that we will conduct a de novo review of whether the
Commonwealth presented evidence sufficient to show beyond a reasonable
doubt that Appellant is incorrigible, Appellant proceeds to contest the weight
the trial court gave the evidence it reviewed in resentencing Appellant to life
without parole. Id. at 55-89. Specifically, Appellant contends that the trial
court gave too much weight to the Commonwealth’s expert, Dr. Michals,
who opined Appellant was not amenable to rehabilitation. Id. at 55-59. In
contrast, Appellant maintains that three other experts concluded that
Appellant’s development since he committed the murder showed
rehabilitation was possible. Id. at 59-64. Appellant then points to
statements of the trial court that, taken in isolation, arguably do not lead to
a conclusion that Appellant is incorrigible. Id. at 64-65. Further, Appellant
argues that the trial court improperly rejected several mitigating factors,
including duress, gang affiliation, peer pressure, youth, immaturity, and
youthful incompetence in dealing with law enforcement. Id. at 65-85. In
addition, Appellant contends the trial court erred in finding that his prison
record was an aggravating factor.8 Id. at 85-86.
In response, the Commonwealth asserts that Appellant’s first issue is
actually a challenge to the discretionary aspects of his sentence, and, as
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8
Similarly, the amici brief contends that the trial court improperly gave too
much weight to the circumstances of the homicide and other aggravating
factors and not enough weight to the mitigating factors, including Appellant’s
youth and immaturity. Amici Brief at 26-50.
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such, Appellant did not preserve the issue on appeal. Commonwealth’s Brief
at 7. Specifically, the Commonwealth argues that this Court has treated
challenges to the imposition of a sentence of life without parole on a juvenile
as going to the discretionary aspects of a sentence. Id. at 19, citing,
Commonwealth v. Seagraves, 103 A.3d 839 (Pa. Super. 2014), appeal
denied, 116 A.3d 604 (Pa. 2015). As a challenge to the discretionary
aspects of Appellant’s sentence, the Commonwealth asserts Appellant did
not preserve the issue because his brief does not include a concise
statement of reasons relied on under Pennsylvania Rule of Appellate
Procedure 2119(f). Id. at 21.
We agree with the Commonwealth. In Batts II, our Supreme Court
instructed the trial court to resentence Appellant after considering age-
related factors. Batts II, supra. Specifically, our Supreme Court explained
that “Miller requires only that there be judicial consideration of the
appropriate age-related factors set forth in that decision prior to the
imposition of a sentence of life imprisonment without the possibility of parole
on a juvenile.” Id. at 296, citing Miller, supra at 2467-2468. The Batts II
Court then noted that the appropriate age-related factors for the trial court
to consider were contained in Knox. Id. at 297, citing Knox, supra.
Appellant contends we should go beyond the affirmative constitutional
holdings of Miller and Batts II to impose a heightened burden of proof, and
a corresponding more stringent appellate review, in juvenile life without
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parole cases, akin to death penalty cases. Absent a specific directive from
our Supreme Court or the General Assembly to do so, we decline to expand
the narrow holding in Miller. See PA. CONST. art. V, § 10(c) (providing our
Supreme Court has the exclusive “power to prescribe general rules
governing practice, procedure and the conduct of all courts”); Batts II,
supra at 296, 299 n.6 (stating the Court’s refusal to go beyond the “actual
constitutional command [of] Miller’s binding holding,” and noting the
legislature’s superior position to implement legal standards to address social
policy concerns); see also 18 Pa.C.S.A. § 1102.1 (providing that post-
Miller, before imposing a sentence of life without parole on a juvenile, the
court should consider age-related factors).
Accordingly, we review Appellant’s challenge to the trial court’s
weighing of sentencing factors, including those age-related ones, as a
challenge to the discretionary aspects of his sentence. See Seagraves,
supra at 842 (reviewing a juvenile appellant’s challenge to a life without
parole sentence reimposed on remand following Miller and Batts II for an
abuse of discretion); see also Commonwealth v. Zeigler, 112 A.3d 656,
662 (Pa. Super. 2015) (noting a discretionary aspects challenge based on a
claim of an excessive sentence along with an assertion that the trial court
did not consider a mitigating factor may present a substantial question);
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (treating a
claim challenging the weight the trial court gave to various sentencing
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factors as one going to the discretionary aspects of the sentence). A
challenge to the discretionary aspects of a sentence is not appealable as of
right; instead, an appellant must petition for permission to appeal.
Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014), appeal
denied, 109 A.3d 678 (Pa. 2015). We evaluate the following factors to
determine whether to grant permission to appeal a discretionary aspect of
sentencing.
Before we reach the merits of this issue, we must
engage in a four part analysis to determine: (1)
whether the appeal is timely; (2) whether Appellant
preserved his issue [at sentencing or in a motion to
reconsider and modify sentence]; (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 [as
required by Pennsylvania Rule of Appellate Procedure
2119(f)]; and (4) whether the concise statement
raises a substantial question that the sentence is
appropriate under the sentencing code. The third
and fourth of these requirements arise because
Appellant’s attack on his sentence is not an appeal
as of right. Rather, he must petition this Court, in
his [Rule 2119(f)] concise statement of reasons, to
grant consideration of his appeal on the grounds that
there is a substantial question. [I]f the appeal
satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the
case.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013). Further, “[i]f a
defendant fails to include an issue in his Rule 2119(f) statement, and the
Commonwealth objects, then the issue is waived and this Court may not
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review the claim.” Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.
Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013).
In this appeal, Appellant filed a timely notice of appeal and preserved
his claims in his timely post-sentence motion. However, Appellant’s brief did
not contain a Rule 2119(f) concise statement of the reasons relied upon for
allowance of appeal. The Commonwealth, in its brief, objected to Appellant’s
failure to include a Rule 2119(f) statement in his brief. Commonwealth’s
Brief at 21-22. Hence, we are precluded from addressing the discretionary
aspects claim.9 See Edwards, supra; Karns, supra.
In his second issue, Appellant asserts that he was entitled to the same
procedural due process afforded to an adult facing capital punishment under
the Eighth Amendment and Article I, Section 13 of the Pennsylvania
Constitution. Appellant’s Brief at 89. Our Supreme Court has explained our
standard of review for procedural due process claims as follows.
____________________________________________
9
In his reply brief, Appellant asserts that “[t]he omission of a Rule 2119(f)
statement is not fatal if the presence or absence of a substantial question
can easily be determined from the appellant’s brief.” Appellant’s Reply Brief
at 3, citing Commonwealth v. Davis, 734 A.2d 879, 882 n.4 (Pa. Super.
1999). Appellant’s reliance on Davis is misplaced and actually supports our
conclusion that we may not review Appellant’s claim. In Davis, the
Commonwealth did not object to the lack of a Rule 2119(f) statement. Id.The Davis court noted, “if the Commonwealth had raised an objection to the
Appellant’s failure to include a Rule 2119(f) statement in his brief, we would
be precluded from addressing the merits of a challenge to the discretionary
aspects of sentencing.” Id., citing Commonwealth v. Minnich, 662 A.2d
21, 24 (Pa. Super. 1995). In this case, the Commonwealth objected to
Appellant’s failure to include a Rule 2119(f) statement; therefore, we are
precluded from addressing the claim. Id.- 21 -
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A due process inquiry, in its most general
form, entails an assessment as to whether the
challenged proceeding or conduct offends some
principle of justice so rooted in the traditions and
conscience of our people as to be ranked as
fundamental and that define[s] the community’s
sense of fair play and decency. While not capable of
an exact definition, basic elements of procedural due
process are adequate notice, the opportunity to be
heard, and the chance to defend oneself before a fair
and impartial tribunal having jurisdiction over the
case.
Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008) (brackets in
original; internal citations and quotation marks omitted).
Specifically, Appellant contends a juvenile facing a sentence of life
imprisonment without parole is entitled to the same due process as an adult
facing the death penalty, namely the right to be sentenced by a jury, a
burden of proof weighted against the Commonwealth, the requirement of a
unanimous verdict, and automatic review by our Supreme Court. Appellant’s
Brief at 93. Appellant bases his argument on the procedure for sentencing
adults to the death penalty given in Section 9711 of the Sentencing Code as
well as the United States Supreme Court’s opinion in Graham v. Florida,
560 U.S. 48, 69-70 (2010), which compared life without parole to the death
penalty. Id.We conclude Appellant’s argument lacks merit. We cannot discern any
constitutional due process basis or statutory ground to provide juveniles
facing life imprisonment without parole with the same procedural due
process protections as adults facing the death penalty. Indeed, the Miller
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Court concluded that a mandatory sentence of life without parole for a
juvenile was unconstitutional because “Graham, Roper, and our
individualized sentencing decisions make clear that a judge or jury must
have the opportunity to consider mitigating circumstances before imposing
the harshest possible penalty for juveniles.” Miller, supra at 2475
(emphasis added). In Miller, however, the Court did not hold that a specific
procedure to consider age-related factors was constitutionally required.
Further, in Batts II, our Supreme Court stated that it was determining
“the appropriate remedy for the Eighth Amendment violation that, under
Miller, occurred when Appellant was mandatorily sentenced to life
imprisonment without the possibility of parole upon his conviction for first-
degree murder.” Batts II, supra at 293. It remanded with instructions to
the common pleas court to resentence Appellant after considering the
factors listed in Knox. Id. at 297. It did not instruct the trial court as to a
heightened burden of proof or different procedure for considering those age-
related factors.
Moreover, while Appellant is not entitled to a sentence under the new
sentencing scheme in Section 1102.1 because he was convicted before its
effective date, we find our legislature’s response to Miller instructive.
Section 1102.1(d) instructs the court to make certain findings, including
age-related factors, on the record in determining whether to impose a
sentence of life without parole on a juvenile. 18 Pa.C.S.A. § 1102.1(d);
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accord Batts II, supra at 300 (Baer, J., concurring) (encouraging the trial
court to apply Section 1102.1 to resentence Appellant).
Therefore, we find no constitutional due process ground or statutory
support for Appellant’s argument that the procedure in Section 9711 should
apply to his resentencing. Cf. Seagraves, supra at 850 (concluding the
trial court did not abuse its discretion in reimposing a life without parole
sentence on juvenile); Knox, supra (instructing the trial court on remand to
consider listed age-related factors in deciding whether to sentence juvenile
to life with or without the possibility of parole). Accordingly, Appellant’s
argument is without merit because the trial court followed the procedure
outlined by our Supreme Court to resentence Appellant after considering
age-related factors. Batts II, supra at 297.
In his third issue, Appellant argues that his sentence was illegal
because the trial court did not adhere to the instructions of our Supreme
Court that it impose “a mandatory maximum sentence of life imprisonment
as required by Section 1102(a), accompanied by a minimum sentence
determined by the common pleas court upon resentencing.” Appellant’s
Brief at 94, quoting Batts II, supra.
Our standard of review for examining the legality of a sentence on
appeal is as follows.
A challenge to the legality of a sentence … may be
entertained as long as the reviewing court has
jurisdiction. It is also well-established that if no
statutory authorization exists for a particular
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sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated.
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 quotation marks omitted).
In this case, Appellant was subject to a sentence of life without parole
pursuant to Section 1102(a) following his conviction for first-degree murder.
Before Miller, life without parole was mandatory for a first-degree murder
conviction in Pennsylvania. Miller held a sentence of life without parole
could not be mandatory for juveniles. Our Supreme Court specifically held
that Miller did not render Section 1102(a) unconstitutional. Batts II,
supra at 295-296. Further, Miller did not prohibit either the imposition of a
sentence of life without parole or even a mandatory sentence of life with
parole for a juvenile. Batts II, supra at 296. Instead, “Miller requires
only that there be judicial consideration of the appropriate age-related
factors … prior to the imposition of a sentence of life imprisonment without
the possibility of parole on a juvenile.” Id., citing Miller, supra at 2467-
2468. Our Supreme Court noted that its holding in Batts II was
coextensive with the protections announced in Miller. Id. (citation omitted)
(refusing to expand the narrow holding of Miller).
Despite this, Appellant contends that his sentence was illegal because
our Supreme Court, in Batts II, categorically precluded the imposition of a
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sentence of life without parole on juveniles convicted of first-degree murder
prior to the effective date of Section 1102.1. In arguing that the trial court
is required to impose a minimum sentence (i.e., a sentence of life with
parole), Appellant reads one sentence of our Supreme Court’s opinion in
Batts II in isolation and contends that it required the trial court to impose a
minimum sentence (i.e., a sentence of life with parole). We decline to read
Batts II as categorically prohibiting a sentence of life without parole for
juveniles sentenced before Miller, which would afford those juveniles a
greater protection than the United States Supreme Court held was
constitutionally necessary in Miller, a result that our Supreme Court
specifically condemned. Id. It would also subject the juveniles convicted
before Miller was decided and Section 1102.1 was effective to a lesser
sentence than those convicted after Miller and subject to Section 1102.1.
We decline to interpret Miller and Batts II as categorically prohibiting a
sentence of life without parole for juveniles, such as Appellant, convicted of
murder before Miller was issued. See Batts II, supra at 296; see also id.
at 300 (Baer, J., concurring) (stating that the Court’s decision was to
“remand[] the case to the trial court for it to resentence Appellant based
upon his individual circumstances to a sentence of life imprisonment either
with the possibility of parole or without the possibility of parole…[]”).
Therefore, we conclude that the trial court herein imposed a legal sentence,
consistent with Miller and Batts II, of life without parole after considering
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Appellant’s individual circumstances, including his age-related
characteristics.
Based on the foregoing, we conclude all of Appellant’s issues are
without merit or not preserved. Accordingly, we affirm the May 2, 2014
judgment of sentence.
Judgment of sentence affirmed.
Judge Allen joins this opinion.
Justice Fitzgerald files a concurring and dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2015
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