Commonwealth v. Lekka ( 2019 )

J-A04044-19
2019 Pa. Super. 155
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN LEKKA :
:
Appellant : No. 772 EDA 2018
Appeal from the Judgment of Sentence October 4, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001295-1978
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS*, J.
OPINION BY COLINS, J.: FILED MAY 10, 2019
Appellant, John Lekka, appeals from the judgment of sentence, imposed
upon resentencing for his 1978 conviction for first-degree murder,1 of a
minimum term of 45 years and a maximum term of life imprisonment and an
order to pay restitution in the amount of $1,000 to his victim’s family. We
vacate the order of restitution and affirm the judgment of sentence in all other
respects.
We briefly recount the underlying facts in this matter, which are set forth
in a stipulation by the parties that was entered into the record at the
sentencing hearing. Court’s Ex. 2. On November 13, 1978, Appellant, then
aged 17, and Robert Buli, then aged 16, were working on Buli’s pickup truck
at Buli’s house when Diana Goeke, Buli’s ex-girlfriend who was aged 17,
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1 18 Pa.C.S. § 2502(a).
* Retired Senior Judge assigned to the Superior Court.
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arrived. Appellant, Buli and Goeke walked to a woody area behind a school
where Buli grabbed Goeke in a headlock, yelling at Appellant repeatedly to hit
Goeke. Appellant grabbed a piece of wood and hit her on the head, knocking
Goeke to the ground. Buli and Appellant then each hit Goeke multiple times
in the head with a metal pipe. Appellant and Buli proceeded to drag Goeke’s
body to a dug-out, earthen fort and left her there. Appellant and Buli returned
later that evening with Appellant’s sister’s boyfriend at which point they heard
Goeke gurgling inside the fort. The three young men then carried a 225-
pound piece of concrete and placed it over the opening of the fort. Buli
stomped on the concrete and it fell inside the fort onto Goeke, crushing her
skull.
On November 16, 1978, Appellant and Buli confessed to their crimes in
police interviews, and they were charged with first-degree murder and
conspiracy.2 On September 17, 1979, Appellant and Buli pleaded guilty to
criminal homicide3 and conspiracy. A degree of guilt hearing took place on
September 20, 1979, at which point Appellant and Buli were found guilty by
the trial court of first-degree murder. On November 15, 1979, Appellant was
sentenced to life imprisonment on the murder charge and a consecutive period
of 5 to 10 years of incarceration on the conspiracy charge.
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2 18 Pa.C.S. §§ 2502(a) and 903, respectively.
3 18 Pa.C.S. § 2501.
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On July 8, 2010, Appellant filed a petition under the Post Conviction
Relief Act (PCRA)4 in which he argued that his mandatory life sentence was
unconstitutional under the Eighth and Fourteenth Amendments of the United
States Constitutions. The PCRA court denied the petition without a hearing
pursuant to Rule of Criminal Procedure 907. Appellant appealed the denial to
this Court, which affirmed the PCRA court’s decision.
In 2012, the United States Supreme Court held in Miller v. Alabama,
567 U.S. 460 (2012), that a mandatory sentence of life without possibility of
parole for individuals who were under the age of 18 at the time of the offense
violates the prohibition on cruel and unusual punishment in the Eighth
Amendment of the United States Constitution. Id. at 479-80. In Miller, the
Supreme Court listed various factors that a court must consider when
imposing a life-without-parole sentence on a juvenile offender including the
“hallmark features” of youth, such as “immaturity, impetuosity, and failure to
appreciate risks and consequences.” Id. at 476-78. This Court summarized
the Miller factors in Commonwealth v. Knox, 50 A.3d 732 (Pa. Super.
2012), which were subsequently adopted by our Supreme Court in
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) (Batts I), as follows:
[A]t a minimum [the sentencing 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
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4 42 Pa.C.S. §§ 9541–9546.
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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.
Id. at 297 (quoting Knox, 50 A.3d at 745).
Appellant filed a second PCRA petition on August 23, 2012, seeking the
vacation of his life sentence pursuant to Miller. The PCRA court entered an
order denying Appellant’s second PCRA petition on November 7, 2014, which
Appellant appealed to this Court. While the appeal of Appellant’s second PCRA
petition was pending before this Court, the U.S. Supreme Court ruled in
Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that Miller’s prohibition
of mandatory life-without-parole sentences for juvenile offenders was a
substantive rule that is retroactive in state cases on collateral review. Id. at
736. On March 23, 2016, this Court issued a decision vacating Appellant’s
mandatory life-without-parole sentence in light of Montgomery and
remanding for resentencing.
Appellant’s resentencing hearing took place over the course of three
days in October 2017. At the conclusion of the hearing, the sentencing court
sentenced Appellant to a minimum of 45 years and a maximum of life
imprisonment on the first-degree murder charge with credit for time served.
Sentencing Order, 10/5/17; N.T., 10/5/17, at 6. This sentence was ordered
to run concurrently with the 5-to-10 year term of incarceration sentence
previously imposed in 1979 for the conspiracy charge. Sentencing Order,
10/5/17; N.T., 10/5/17, at 7. In addition, the sentencing court ordered
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Appellant to pay $1,000 in restitution to the victim’s heirs for funeral
expenses.5 Sentencing Order, 10/5/17; N.T., 10/5/17, at 6-7. Appellant filed
a motion for reconsideration of the sentence; at the hearing for the motion,
Appellant attempted to submit his Exhibit D-1, which analyzed the disposition
of the resentencing for each of the 120 juvenile offenders in Pennsylvania who
were resentenced pursuant to Miller and Montgomery. On March 5, 2018,
the sentencing court denied Appellant’s motion for reconsideration and the
admission of Exhibit D-1 into evidence. N.T., 3/5/18, at 3, 5-6. Appellant
then filed a timely appeal of the judgment of sentence.6
Appellant presents six issues for our review:
1. Was the Appellant’s sentence, ten years higher than that
decreed by the Pennsylvania Supreme Court as a starting point
for sentencing pre-2012 juveniles previously sentenced to life
without parole, an abuse of discretion when the departure from
that starting point was not explained?
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5 The sentencing court also initially directed Appellant to pay costs associated
with his resentencing. Sentencing Order, 10/5/17; N.T., 10/5/17, at 7. At
the January 18, 2018 hearing on Appellant’s motion for reconsideration of
sentence, the sentencing court acknowledged that the imposition of costs was
in error, and the sentencing court later amended the sentencing order to
reflect that costs were waived and notified the Department of Corrections.
Sentencing Order, 10/5/17 (as amended on 5/3/18); N.T., 1/18/18, at 47-
48; Letter of Bucks County Clerk of Courts, 5/7/18; see also
Commonwealth v. Davis, ___ A.3d ___, 2019 Pa. Super. 99, *6-9 (filed
March 29, 2019) (imposition of costs in resentencing a juvenile offender
pursuant to Miller and Montgomery was an illegal sentence under 16 P.S.
§ 1403 because that statute only permitted that the “costs of prosecution” be
imposed).
6Appellant filed his statement of errors complained of on appeal on March 29,
2018, and the sentencing court entered its opinion on May 16, 2018.
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2. Was the Appellant’s sentence excessive when the sentencing
court focused on what it inaccurately felt was the [Appellant]’s
lack of insight and lack of acknowledgment of his role in the
offense, and the nature of the crime, to the exclusion of an
exemplary prison record and uncontradicted evidence that he was
unlikely to re-offend?
[3]. Did the sentencing court err in excluding evidence of
sentences imposed throughout the Commonwealth in similar
cases to measure whether its sentence promoted uniformity and
certainty in sentencing?
[4]. Did the sentencing court err in not applying the [] factors set
forth in Miller v. Alabama?
[5]. Is a sentence of forty-five years to life to a 17-year-old
convicted of first degree murder an illegal de facto life sentence
that cannot be imposed when the Commonwealth certified it will
not seek a life sentence?
[6]. Was a sentence of restitution imposed in the absence of any
claim for it or evidence of the amount illegal?
Appellant’s Brief at 3-4 (questions reordered to facilitate disposition;
duplicative question omitted).
Appellant’s first two issues relate to the discretionary aspect of his
sentence. Where an appellant challenges the discretionary aspect of a
sentence, we must engage in a four-part analysis to determine:
(1) whether the appeal is timely; (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 [pursuant to Rule
of Appellant Procedure 2119(f), Pa.R.A.P. 2119(f)]; and (4)
whether the concise statement raises a substantial question that
the sentence is [not] appropriate under the [S]entencing [C]ode.
Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018)
(citation omitted).
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Appellant filed a timely notice of appeal, preserved his appellate issue
in a post-sentence motion, and included in his brief the concise statement
required by Rule 2119(f). Appellant’s Brief at 34-38.7 Therefore, we will
address the issue of whether Appellant has raised a substantial question that
his sentence is not appropriate under the Sentencing Code.
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)
(internal citations and quotation marks omitted).
In his first issue, Appellant argues that the sentencing court abused its
discretion by not considering our Supreme Court’s statement in
Commonwealth v. Batts, 163 A.3d 410, 457-58 (Pa. 2017) (Batts II), that
a sentencing court resentencing a juvenile offender should “seek guidance”
from the 35-year mandatory minimum for a 17-year old offender convicted of
first-degree murder under Section 1102.1(a)(1) of the Crimes Code, 18
Pa.C.S. § 1102.1(a)(1). Appellant contends that this claim is a substantial
question because the sentencing court imposed a sentence 10 years beyond
____________________________________________
7 While Appellant did not include within his Rule 2119(f) statement a
discussion of the reasons relied upon for his appeal with respect to the
argument that the sentencing court erred by not considering the Miller
factors, the Commonwealth has not objected, and therefore we will not find
that the absence of a Rule 2119(f) statement with respect to this issue results
in waiver. White, 193 A.3d at 982.
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the minimum without articulating any explanation for why it deviated from the
minimum proposed by our Supreme Court. We find this claim does present a
substantial question that warrants our review. See Commonwealth v.
Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (failure to set forth adequate
reasons for the sentence imposed presents a substantial question).
Our standard of review for challenges to the discretionary aspects of
sentencing is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (citation
omitted).
Section 1102.1 of the Crimes Code was enacted in the wake of Miller
and sets forth the sentences to be imposed upon juvenile offenders who are
convicted of first- or second-degree murder on or after June 25, 2012, the
date Miller was issued. Under this statute, a juvenile offender convicted of
first-degree murder who was less than 18 years old but at least 15 years old
at the time of the offense would be subject to a sentence of a minimum of 35
years in prison and a mandatory maximum of life imprisonment, while an
offender who was 14 years old or under would be subject to a minimum of 25
years’ imprisonment and a mandatory maximum of life imprisonment. 18
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Pa.C.S. § 1102.1(a). Section 1102.1 does not prohibit a sentencing court
from imposing a minimum sentence greater than provided in the statute. 18
Pa.C.S. § 1102.1(e). The statute also sets forth a separate set of factors that
a court must consider when determining whether to sentence a juvenile
offender to life without possibility of parole, including age-related
characteristics such as the defendant’s mental capacity, maturity and degree
of criminal sophistication. 18 Pa.C.S. § 1102.1(d).
In Batts II, our Supreme Court reviewed the life-without-parole
sentence of the defendant, a juvenile offender who had been convicted in 2007
of first-degree murder and originally received a mandatory life-without parole,
but then was ordered to be resentenced following Miller. Batts II, 163 A.3d
at 418-21; see also Batts I, 66 A.3d at 295-97. The Court concluded that,
in light of the sentencing court’s own findings that the defendant was capable
of rehabilitation, the life-without-parole sentence imposed upon resentencing
violated the Eight Amendment prohibition on cruel and unusual punishment.
Batts II, 163 A.3d at 436-39. The Court held that, in cases such as this
where the Commonwealth does not seek to impose a life-without-parole
sentence upon resentencing, the sentencing court should apply the traditional
sentencing considerations of Section 9721(b) of the Sentencing Code, 42
Pa.C.S. § 9721(b), when fashioning its sentence. 163 A.3d at 460. In
addition, the Court stated that “sentencing courts should be guided by the
minimum sentences contained in section 1102.1(a) of twenty-five years for a
first-degree murder committed when the defendant was less than fifteen years
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old and thirty-five years for a first-degree murder committed when the
defendant was between the ages of fifteen and eighteen.” Id. at 458.
In this case, there is no doubt that the sentencing court followed the
Supreme Court’s instruction in Batts II to be guided by Section
1102.1(a)(1)’s 35-year minimum sentence. During the closing remarks at the
sentencing hearing, both counsel for Appellant and counsel for the
Commonwealth addressed the 35-year minimum of Section 1102.1(a)(1).
N.T., 10/4/17, at 194-96, 199, 201, 217. Moreover, the sentencing court
made comments during closing remarks that made clear that the court was
aware of Section 1102.1(a). Id. at 195, 199. Indeed, the Sentencing Court
explicitly recognized that the 35-year minimum of Section 1102.1(a)(1)
operated as the “mandatory minimum.”8 Id. at 199 (“[COUNSEL FOR
APPELLANT:]…He has served 39 years, which is going to be five years more
than the guidelines [of Section 1102.1(a)] for a murder case. THE COURT:
It’s not the guidelines, it’s the mandatory minimum.”).
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8 Though not argued by the parties, we note that this Court has held that the
Section 1102.1(a) 35-year minimum that is mandatory by the statute’s own
terms for individuals convicted on or after June 25, 2012 is not mandatory for
the resentencing of juveniles who were convicted prior to the effective date of
that statute. Commonwealth v. Hicks, 151 A.3d 216, 227-28 (Pa. Super.
2016). Though the Supreme Court in Batts II expressed that sentencing
courts should look to Section 1102.1 as guidance and that this would further
the goal of uniformity among the sentences of juveniles convicted of first-
degree murder regardless of their date of conviction, the Court did not
overrule Hicks and specifically declined to hold that Section 1102.1 was
mandatory upon resentencing of a juvenile offender originally convicted before
June 25, 2012. Batts II, 163 A.3d at 458 n.25.
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While the sentencing court did not explicitly reference Section 1102.1
when issuing the sentence, it provided ample explanation for imposing the
sentence of 45-years-to-life imprisonment. N.T., 10/5/17, at 2-6; see infra.
Contrary to Appellant, we do not believe that Batts II imposes a requirement
that sentencing courts state their exact reasons for departing from the 35-
year minimum of Section 1102.1(a)(1). Rather, the sentencing court here
followed the directive of Batts II and addressed the general sentencing
criteria of Section 9721(b) of the Sentencing Code in crafting its sentence.
Accordingly, we conclude that Appellant’s first issue lacks merit. Cf.
Commonwealth v. Rush, 162 A.3d 530, 543 n.10 (Pa. Super. 2017)
(“[W]hen the record demonstrates that the sentencing court was aware of the
guideline ranges and contains no indication that incorrect guideline ranges
were applied or that the court misapplied the applicable ranges, we will not
reverse merely because the specific ranges were not recited at the sentencing
hearing.”) (citation omitted); Commonwealth v. Rodda, 723 A.2d 212, 215-
16 (Pa. Super. 1999) (en banc) (stating that there is no requirement that a
sentencing court “evoke ‘magic words’ in a verbatim recitation of the
guidelines range” and affirmance is proper “where the record has reflected
that the court acted on a sound understanding of the sentencing range and
imposed sentence accurately” (citation omitted)).
Next, Appellant argues that his sentence of 45 years to life
imprisonment was unduly harsh and the sentencing court focused on his
apparent lack of insight into his role in the murder of Goeke without
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recognizing the extensive evidence that he presented of his rehabilitation
during his years in prison. This issue presents a substantial question, and we
therefore proceed to address the issue on its merits. See Commonwealth
v. Caldwell, 117 A.3d 763, 769-70 (Pa. Super. 2015) (en banc) (holding an
excessive sentence claim, in conjunction with an assertion that the court failed
to consider mitigating factors, raises a substantial question).
As stated above, a sentencing court has broad discretion, and a
sentence will only be reversed where the court misapplied or ignored the law,
exercised its judgment for reasons of partiality, prejudice, bias, or ill will, or
arrived at a manifestly unreasonable decision. Conte, 198 A.3d at 1176. “In
every case in which the court imposes a sentence for a felony or a
misdemeanor, the court shall make as a part of the record, and disclose in
open court at the time of sentencing, a statement of the reason or reasons for
the sentence imposed.” Commonwealth v. Antidormi, 84 A.3d 736, 760
(Pa. Super. 2014) (quoting Commonwealth v. Mouzon, 812 A.2d 617, 620-
21 (Pa. 2002)). The sentencing court is required to consider the particular
circumstances of the offense and the character of the defendant, with
reference to the defendant’s prior criminal record, age, personal
characteristics, and potential for rehabilitation. Id. at 761.
At the sentencing hearing, Appellant presented evidence regarding his
rehabilitation while in prison, including his education and work training and
his role in counseling other prisoners. Appellant presented the testimony of a
Catholic priest who stated that Appellant was a model inmate and described
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his role in religious services and ministry. Appellant also presented the
testimony of two former inmates who stated that discussions with Appellant
had a positive impact on them and helped them to turn their lives around and
live positive lives upon release from prison. A forensic psychologist who
examined Appellant testified that he suffered physically abusive behavior from
his father as a child that stunted his intellectual and emotional development,
but that Appellant had shown extensive growth while in prison and testing
revealed that he had an extremely low risk of recidivism. Finally, Appellant
addressed the court regarding his difficult childhood, his role in the murder of
Diana Goeke, and the work, educational, religious, and counseling programs
he participated in while incarcerated. When asked during direct examination
by his counsel why he went along with co-defendant Buli’s plan to kill Goeke
and then struck her at Buli’s direction, Appellant said “I don’t know.” N.T.,
10/4/17, at 82.
When announcing the sentence, the sentencing court acknowledged that
it had considered all of the evidence presented by Appellant and read all of
the exhibits he had presented. N.T., 10/5/17, at 6. The sentencing court
analyzed the case pursuant to the three factors set out in Section 9721(b) of
the Sentencing Code: protection of the public, the gravity of the offense and
the rehabilitative needs of the defendant. 42 Pa.C.S. § 9721(b); see also
Batts II, 163 A.3d at 460. The sentencing court first noted that Appellant
had a difficult childhood, but had done “extremely well by all accounts since
he’s been incarcerated” and had no evidence of disciplinary problems in
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prison. N.T., 10/5/17, at 3. The court stated that, while Appellant
acknowledged his guilt, he had not offered a “true explanation” or “true
insight” as to his role in the murder for which he was convicted. Id. at 3-4.
Turning to the protection of the public, the sentencing court noted
Appellant’s low risk of recidivism and his actions in avoiding the ever-present
violence in prison. Id. at 4-5. Nevertheless, the sentencing court expressed
reservation regarding Appellant’s “lack of acknowledgement” for the murder
of Goeke. Id. at 5. Finally, when discussing the gravity of the offense, the
sentencing court stated that the murder was one of the “most serious of
crimes,” consisting of multiple brutal assaults over a period of time. Id. at 5-
6.
We conclude that, in rendering the sentence on Appellant, the
sentencing court applied the correct law, exercised its judgment without
partiality, prejudice, bias, or ill will, and did not arrive at a manifestly
unreasonable decision. The record reflects that the sentencing court engaged
in a reasoned analysis of the Section 9721(b) sentencing factors with
reference to the evidence presented at the sentencing hearing. The court
discussed Appellant’s difficult family history prior to the commission of the
murder, his rehabilitation and work in assisting others while in prison, and his
low predicted chance of recidivism. In addition, the sentencing court
recognized the brutal nature and circumstances of the murder for which
Appellant was convicted and Appellant’s lack of insight into his role in the
murder.
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Appellant challenges the fact that the sentencing court overemphasized
his apparent lack of insight into his role in the murder compared to his self-
improvement that he has demonstrated while incarcerated. Such an
argument is beyond the scope of review of an appellate court reviewing a
sentencing decision. The balancing of the Section 9721(b) sentencing factors
is the sole province of a sentencing judge. Commonwealth v. Bricker, 41
A.3d 872, 876 (Pa. Super. 2012). Furthermore, in evaluating Appellant’s lack
of insight, the “sentencing court is in a superior position to review the
defendant’s character, defiance or indifference, and the overall effect and
nature of the crime.” Conte, 198 A.3d at 1177 (citation and quotation marks
omitted).
Next, Appellant challenges the decision of the sentencing court to deny
admission to his Exhibit D-1 that he sought to introduce with his motion to
reconsider his sentence. This exhibit included information compiled by the
Juvenile Law Center on January 15, 2018 concerning the terms of the
resentencing for the 120 juvenile offenders in Pennsylvania who had, as of the
date of the report, been resentenced pursuant to Miller and Montgomery
after originally being convicted of first-degree murder and receiving a life-
without-parole sentence. According to the exhibit, Appellant falls into the
group of 15% of the juvenile offenders who received a new minimum sentence
in excess of 35 years’ imprisonment and the amount of time they had already
served. Ex. D-1, Ex. B. Appellant contends Exhibit D-1 was relevant to the
sentencing court’s determination of his sentence because it demonstrates the
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disparity between Appellant and the great majority of similarly situated
defendants and promotes uniformity and certainty in the sentencing, which,
in the absence of sentencing guidelines applicable to post-Miller
resentencings, the Supreme Court stressed as its rationale in Batts II for
directing sentencing courts to take guidance from Section 1102.1. 163 A.3d
at 458. The sentencing court did not state its rationale for denying admission
of Exhibit D-1 at the sentencing hearing, but the court explained in its 1925(b)
opinion that the exhibit was denied because it was not relevant to the
determination of an individualized sentence for Appellant. Sentencing Court
Opinion, 5/16/18, at 35-36.
“The admissibility of evidence is a matter within the sound discretion of
the trial court and will be reversed only where there is a clear abuse of
discretion.” Commonwealth v. Clemons, 200 A.3d 441, 474 (Pa. 2019)
(citation omitted). Our standard of review of a challenge to an evidentiary
ruling is therefore limited. Conte, 198 A.3d at 1180. “Abuse of discretion is
not merely an error of judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.” Id. (citation
omitted).
The purpose of a motion for reconsideration or modification of sentence
is to afford the sentencing court the opportunity to correct any errors that
may have occurred at sentencing prior to appellate review. Commonwealth
v. Burtner, 453 A.2d 10, 12 (Pa. Super. 1982); see also Pa.R.Crim.P. 720
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Comment (“As a general rule, the motion to modify sentence…gives the
sentencing judge the earliest opportunity to modify the sentence.”). A
sentencing court has the authority to receive additional evidence upon a
motion for reconsideration, but the court “is not required to afford the
defendant a second opportunity to present evidence not related to any alleged
error occurring at a prior proceeding.” Burtner, 453 A.2d at 12. “Where the
sentencing procedure has been properly conducted, it is within the court’s
discretion whether to receive additional evidence or rely on the sentencing
record.” Id.
In this case, Appellant offered the information regarding other
resentencings of juvenile offenders in Exhibit D-1 in order to demonstrate the
disparity between Appellant’s sentence and other sentences rendered and to
provide an additional resource to the sentencing court in reevaluating
Appellant’s sentence. Ex. D-1 at 1-3. The exhibit did not relate to an error
at the sentencing hearing and could have been offered at that prior
proceeding. Thus, the sentencing court acted within its authority in not
allowing the admission of Exhibit D-1 at the hearing on the reconsideration
motion. Burtner, 453 A.2d at 12.
Furthermore, the sentencing court did not abuse its discretion in denying
the admission of Exhibit D-1 on the basis of relevancy. Evidence is relevant
“if it tends to establish a material fact, makes a fact at issue more or less
probable, or supports a reasonable inference supporting a material fact.”
Clemons, 200 A.3d at 474; see also Pa.R.E. 401. “Evidence that is not
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relevant is not admissible.” Pa.R.E. 402. Exhibit D-1 merely lists the
sentences imposed on the other 120 juvenile offenders who were required to
be resentenced for first-degree murder following Miller and Montgomery,
and includes the docket sheet for each case. The exhibit does not contain any
information regarding the nature of the criminal offense, the background or
other characteristics of the defendant, or any other item of information that
the courts in the other cases would have considered in fashioning the
sentences. Consideration of merely the sentences of the 120 juvenile
offenders without any information regarding the particular cases does not
shed any light on the Section 9721(b) factors that the sentencing court was
required to consider. The consideration of the sentences by themselves is
also contrary to Pennsylvania’s individual sentencing scheme, which mandates
that courts consider in each case the nature and circumstances of the crime
and character of the defendant rather than only looking to the mere fact of
the offense committed. Commonwealth v. Luketic, 162 A.3d 1149, 1160
(Pa. Super. 2017). While our Supreme Court in Batts II instructed sentencing
courts to look to the minimum sentences set forth in Section 1102.1 of the
Crimes Code in resentencing juvenile offenders in order to promote the goals
of uniformity and certainty, the Court recognized that uniformity in sentencing
does not obviate the requirement that the sentence be individualized with
respect to the factors of the particular defendant and criminal offense. 163
A.3d at 457-58.
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In his final three issues on appeal, Appellant challenges the legality of
his sentence. “When reviewing the legality of a sentence, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Seskey, 170 A.3d 1105, 1107 (Pa. Super. 2017). Where a sentence is found
to be illegal, it must be vacated. Commonwealth v. Rivera, 95 A.3d 913,
915 (Pa. Super. 2014).
Appellant’s fourth appellate issue challenges the sentencing court’s
failure to consider the factors enunciated in Miller concerning the “hallmark
features” of youth, including the defendant’s family background, maturity
level, potential for rehabilitation, and susceptibility to peer pressure or familial
influence. 576 U.S. at 476-78; see also Batts I, 66 A.3d at 297; Knox, 50
A.3d at 745. Appellant contends that Miller and Montgomery command that
the youth-related factors of Miller must be considered in every case in which
a life-without-parole sentence is statutorily permissible. Appellant argues
that, because the sentencing court did not address the Miller factors when
imposing his sentence, the sentence was illegal and must be vacated.9
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9 The Commonwealth contends that this argument is a challenge to the
discretionary aspects of his sentence, rather than a challenge to the legality
of the sentence. However, our Supreme Court explained in Commonwealth
v. Machicote, ___ A.3d ___, No. 14 WAP 2018 (Pa. filed April 26, 2019), that
a claim that a sentence was not imposed in compliance with the substantive
rule of law announced in Miller and Montgomery implicates the court’s legal
authority to impose such a sentence and therefore is a challenge to the legality
of the sentence. Id., slip op. at 14-15.
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In Batts II, the Supreme Court established a two-part framework for
the sentencing of juvenile offenders who are convicted of offenses for which a
life-without-parole sentence is authorized. The Court stated that in cases
where the Commonwealth requests a sentence of life imprisonment without
parole for a juvenile offender, it must provide reasonable notice to the
defendant and then must prove beyond a reasonable doubt that the offender
“exhibits such irretrievable depravity that rehabilitation is impossible.” Batts
II, 163 A.3d at 455 (emphasis omitted) (quoting Montgomery, 136 S. Ct. at
733). As the Court explained, the Commonwealth may seek to meet its
burden by producing evidence relevant to the Miller and Section 1102.1(d)
factors, and the court must examine each of the Miller and Section 1102.1(d)
factors prior to weighing whether to sentence a juvenile offender to life without
parole. Id. at 455 & n.23.
In contrast, the Court in Batts II stated that in cases where a
sentencing court sentences a juvenile offender to life with the possibility of
parole, the sentencing court should be guided by the minimum terms of
incarceration set forth in Section 1102.1(a) and apply the “traditional
sentencing considerations” of Section 9721(b) of the Sentencing Code. Id. at
460. The Court did not impose a requirement that courts in such cases
consider the Miller factors or the Section 1102.1(d) factors when rendering
the sentence. Thus, after reviewing Batts II, this Court concluded in
Commonwealth v. White, 193 A.3d 977 (Pa. Super. 2018), that “a
sentencing court must consider these Miller factors only in cases where the
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Commonwealth is attempting to meet its burden of overcoming the
presumption against juvenile [life-without-parole] sentences.” Id. at 983. In
cases where the Commonwealth does not seek a life-without-parole sentence,
the application of the Miller factors is not required. Id.
In Commonwealth v. Machicote, ___ A.3d ___, No. 14 WAP 2018
(Pa. filed April 26, 2019), our Supreme Court revisited the circumstances in
which a sentencing court must consider the Miller factors when resentencing
a juvenile offender. In that case, the appellant was originally convicted of
second-degree murder in 2004 for a crime committed when he was 17 and
received a life-without-parole sentence as required by Section 1102 of the
Crimes Code.10 Id., slip op. at 1-2. At the appellant’s resentencing hearing
pursuant to Miller and Montgomery, the Commonwealth requested a life-
without-parole sentence, but the sentencing court ultimately imposed a
sentence of 30 years to life imprisonment. Id., slip op. at 9-10. The court,
____________________________________________
10 Section 1102 imposes a mandatory sentence of life imprisonment on
offenders convicted of first- or second-degree murder. 18 Pa.C.S. § 1102(a)-
(b). Though the General Assembly amended this section to make it not
applicable to juvenile offenders at the time that the new sentencing scheme
of Section 1102.1 was enacted, these amendments only apply to offenders
who were convicted of first- or second-degree murder after the date Miller
was decided. Id.; 18 Pa.C.S. § 1102.1(a), (c). Offenders convicted of first-
or second-degree murder prior to Miller remain subject to mandatory
maximum sentences of life imprisonment pursuant to Section 1102, albeit
those offenders will not be subject to a life-without-parole sentence unless the
sentencing court determines that they are incapable of rehabilitation pursuant
to the substantive and procedural protections outlined in Miller and
Montgomery. See Machicote, slip op. at 7-8, 15-16; Batts II, 163 A.3d at
445; Batts I, 66 A.3d at 295-97; Commonwealth v. Ligon, ___ A.3d ___,
2019 Pa. Super. 96, *6 (filed March 28, 2019).
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however, did not consider the Miller factors as they pertained to the appellant
on the record at the resentencing hearing, and the appellant argued on appeal
that the failure to consider the Miller factors rendered his new sentence
unconstitutional. Id., slip op. at 10-11. The Supreme Court agreed, holding
that a court that performs a resentencing pursuant to Miller and
Montgomery of a juvenile offender exposed to a potential life-without-parole
sentence must conduct an individualized sentencing with reference to the
Miller factors, as well as the criteria listed in Section 1102.1(d), even where
the sentencing court ultimately does not impose a life-without-parole
sentence. Id., slip op. at 16-17. As the Supreme Court explained:
The [sentencing] court’s misstep was not considering the Miller
factors on the record when the Commonwealth had asked for a
sentence of life without parole, and when [the offender] was
exposed to said sentence as a result of his conviction prior to
Miller and the statutory language of Section 1102.
Id., slip op. at 16. To not consider the Miller factors in such cases, according
to the High Court, would “effectively nullif[y] the procedural protections set
forth in Montgomery and solidified by this Court in Batts II.” Id.
In light of our Supreme Court’s decisions in Batts II and Machicote
and our opinion in White, we conclude that the sentencing court in this matter
did not err when imposing the 45-years-to-life sentence upon Appellant
without considering the Miller factors. In this case, while the Commonwealth
did initially file a notice of intent to seek a life-without-parole sentence, the
Commonwealth withdrew its notice of intent with leave of the court prior to
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the resentencing hearing. Notice of Intent to Seek Sentence of Life Without
Parole, 7/28/17; Motion for Leave to Withdraw Notice of Intent, 9/8/17;
Order, 9/14/17. This case is thus distinguishable from Machicote and the
class of cases described in Batts II where the consideration of the Miller
factors were held to be necessary because the sentencing court both had the
statutory authorization to impose a life-without-parole sentence and the
Commonwealth had requested that sentence. Accordingly, because the
Commonwealth here did not seek, and the sentencing court did not impose, a
life-without-parole sentence, there was no error by the sentencing court in
failing to consider the Miller factors. See White, 193 A.3d at 983.
In his fifth issue, Appellant argues that his sentence of 45 years to life
imprisonment, with credit for time served from the date he originally entered
the correctional system, constitutes a de facto life-without-parole sentence.
This Court has rejected similar arguments in several recent cases in which a
juvenile offender originally sentenced to life without parole was resentenced
following Miller and Montgomery. See White, 193 A.3d at 986 (35-years-
to-life sentence with earliest opportunity for parole at age 52);
Commonwealth v. Bebout, 186 A.3d 462, 469-70 (Pa. Super. 2018) (45-
years-to-life sentence with earliest opportunity for parole at age 60);
Commonwealth v. Foust, 180 A.3d 416, 438 (Pa. Super. 2018) (two
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consecutive 30-years-to-life sentences).11 In Foust, following an extensive
review of Miller, Montgomery, and the precedent on which they rely, we
held that “a trial court may not impose a term-of-years sentence on a juvenile
convicted of homicide if that term-of-years sentence equates to a de facto
[life-without-parole] sentence unless it finds, beyond a reasonable doubt, that
the juvenile is incapable of rehabilitation.” 180 A.3d at 433. We concluded
that the two consecutive sentences of 30 years to life imprisonment that were
imposed on the defendant in Foust for two first-degree murder charges must
be examined separately and that viewed as such each 30 year sentence was
not an unconstitutional de facto life sentence. Id. at 434-38. While noting
that there are certain terms-of-years sentences which are clearly
constitutional and others that are clearly not, we “explicitly decline[d] to draw
a bright line…delineating what constitutes a de facto [life-without-parole]
sentence and what constitutes a constitutional term-of-years sentence.” Id.
at 438.
Our decision in Bebout is especially relevant here. In that case, the
defendant also received a 45-years-to-life sentence upon resentencing
pursuant to Miller and Montgomery, albeit he was 15 years old at the time
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11 We also decided in Commonwealth v. Felder, No. 660 EDA 2015,
unpublished memorandum at 3-9 (Pa. Super. filed Dec. 20, 2017), that a
sentence of 50-years-to-life in prison issued to a juvenile offender upon
resentencing following Miller and Montgomery did not constitute a de facto
life-without-parole sentence. Our Supreme Court has granted a petition for
allowance of appeal to address our resolution of this issue. Commonwealth
v. Felder, 187 A.3d 909 (Pa. 2018).
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he began serving his sentence and would be eligible for parole at age 60.
Bebout, 186 A.3d at 468. This Court concluded that, in determining whether
a sentence is a de facto life sentence, “it must at least be plausible that one
could survive to the minimum release date with some consequential likelihood
that a non-trivial amount of time at liberty awaits.” Id. at 468 (emphasis in
original). We rejected the defendant’s argument based on statistical data
regarding life expectancy as inconclusive, and observed that the data alone
did not resolve the difficulty of devising a standard to determine when a term-
of-years sentence crosses the threshold into being a de facto life sentence.
Id. at 468-69. While we noted that the 45-years-to-life sentence “falls
between the ‘clearly’ constitutional and unconstitutional parameters
suggested by the Foust Court,” we held that the defendant had failed to show
that a sentence which authorized his release at age 60 was the functional
equivalent of a life-without-parole sentence. Id. at 467, 469-70 (quoting
Foust, 180 A.3d. at 438).
In light of our binding precedent, we conclude that Appellant has not
demonstrated that he has no meaningful chance of survival until he completes
his 45-year minimum sentence to enjoy his time at liberty at parole, should
he be granted release. While Appellant will not be eligible for parole until age
62, two years longer than the defendant in Bebout, Appellant has not shown
any significant difference between the ages at the earliest possible point of
release that would distinguish his case from Bebout. Furthermore, though
Appellant has cited statistical data concerning life expectancy and case law of
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other states, as in Bebout, we must conclude that Appellant has not offered
a workable standard as to what types of terms-of-years sentences are the de
facto equivalent of life-without-parole sentences.
Finally, Appellant argues that the order of restitution in the amount of
$1,000 to the heirs of the victim for the victim’s funeral expenses was illegal
under Section 1106 of the Crimes Code, 18 Pa.C.S. § 1106, because
restitution had not been imposed in his original sentence and there was no
request for restitution at the resentencing hearing.12 The Commonwealth
concedes that the award of restitution was improper, Commonwealth’s Brief
at 41-42, and the sentencing court agrees and requests that the award be
vacated. Sentencing Court Opinion, 5/16/18, at 36.
Pursuant to Section 1106, the Commonwealth is responsible for making
a recommendation to the sentencing court as to the amount of the restitution
to be ordered based on information provided by the victim or other available
information. 18 Pa.C.S. § 1106(c)(4)(i)-(ii). “[R]estitution is proper only if
there is a direct causal connection between the crime and the loss.”
____________________________________________
12 Appellant’s claim that the sentencing court erred in awarding restitution
where the Commonwealth made no showing that it was entitled to restitution
under Section 1106 implicates the legality of the sentence rather than the
discretionary aspect of the sentence. See Commonwealth v. Weir, 201
A.3d 163, 172-74 (Pa. Super. 2018) (drawing distinction between claims
which assert that the Commonwealth did not demonstrate each of the
elements under Section 1106, which implicate the sentencing court’s statutory
authority and thus challenge the legality of the sentence, and claims asserting
that the restitution order was excessive, which implicates the discretionary
aspects of the sentence).
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Commonwealth v. Harriott, 919 A.2d 234, 238 (Pa. Super. 2007).
“Because restitution is a sentence, the amount ordered must be supported by
the record, and may not be speculative.” Commonwealth v. Weir, 201 A.3d
163, 171 (Pa. Super. 2018). In addition, the amount of restitution awarded
“must be determined under the adversarial system with considerations of due
process.” Id. Because, as all parties agree, the Commonwealth did not
recommend restitution, there was no discussion of the propriety of a
restitution award at the sentencing hearing, and there is no support in the
record for the amount of restitution ordered, the portion of Appellant’s
sentence requiring that he pay restitution in the amount of $1,000 to the
victim’s heirs was in error.
“If this Court determines that a sentence must be corrected, we are
empowered to either amend the sentence directly or to remand the case to
the trial court for resentencing.” Commonwealth v. Benchoff, 700 A.2d
1289, 1294 (Pa. Super. 1997). “[I]f we determine that a correction by this
[C]ourt may upset the sentencing scheme envisioned by the [sentencing]
court, the better practice is to remand.” Id. (citation and quotation marks
omitted). In this case, the correction does not upset the sentencing scheme
and no further action is required of the sentencing court; therefore remand
for resentencing is not warranted. Accordingly, we vacate the restitution
portion of Appellant’s sentence, and affirm the sentence in all other respects.
Judgment of sentence vacated in part and affirmed in part. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/19
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