Com. v. Twiggs, M. ( 2019 )

J-S48029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL TWIGGS :
:
Appellant : No. 3309 EDA 2018
Appeal from the PCRA Order Entered October 22, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1017181-1975
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 12, 2019
Appellant, Michael Twiggs, appeals from the order denying his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546. We affirm.
On March 31, 1976, a jury convicted Appellant of first-degree murder.
The conviction stemmed from an incident on September 30, 1975, during
which Appellant shot Christopher Ross with a sawed-off shotgun. Appellant
was seventeen years old at the time of the crime. On February 7, 1977, the
trial court denied Appellant’s post-verdict motions and sentenced him to serve
a mandatory term of life imprisonment. On July 6, 1979, our Supreme Court
affirmed the judgment of sentence. Commonwealth v. Twiggs, 402 A.2d
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* Retired Senior Judge assigned to the Superior Court.
J-S48029-19
1374 (Pa. 1979). Thereafter, Appellant filed seven petitions seeking post-
conviction relief, all of which proved to be unfruitful. On July 16, 2010,
Appellant filed another PCRA petition. While the PCRA petition was pending,
the United States Supreme Court issued its decision in Miller v. Alabama,
567 U.S. 460 (2012). The PCRA court set forth the remaining procedural
history of this matter as follows:
On July 24, 2012, Appellant filed an amended PCRA petition,
seeking resentencing pursuant to Miller. On March 4, 2016,
Appellant filed an amended PCRA petition, raising a Montgomery
[v. Louisiana, 136 S.Ct. 718 (2016)] claim. The Appellant
entered into negotiations with the Commonwealth[,] which
concluded when the Appellant agreed to accept the
Commonwealth’s recommended sentence of thirty-five years to
life. The Appellant’s decision to accept the recommended
sentence resulted in a negotiated resentencing, which occurred on
November 30, 2016. N.T. 11/30/2016. Before the Appellant’s
original sentence was vacated, this Court conducted a colloquy of
the Appellant which, inter alia, advised the Appellant that he was
not required to accept the sentence the Commonwealth was
recommending to the Court, advised him of his absolute right to
have a resentencing hearing before a judge, and advised that if
he accepted the Commonwealth’s recommended sentence he
gave up the right to a resentencing hearing. Id. at 9-10. The
Appellant stated he understood his right to a resentencing hearing
and wanted to accept the recommended sentence and proceed
with a negotiated resentencing. Id.
Further, the Appellant was advised that if he agreed to
accept the sentence offered by the Commonwealth his appellate
rights would be extremely limited to challenging the jurisdiction of
the Court, the legality of the sentence imposed, and the
voluntariness of his decision to accept the recommended
sentence. Id. at 10-11. The Appellant stated that he understood
his appeal rights. Id. at 12. At the conclusion of the colloquy,
this Court found that the Appellant’s decision, to accept the
recommended sentence, was made voluntarily, knowingly, and of
his own free will. Id. at 14. The original sentence imposed on
February 7, 1977, was vacated and a new sentence of thirty-five
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years to life was imposed for the conviction of first degree murder.
Id. at 44. The Appellant received credit for all original credit time
awarded and all time previously served in this case. Id. at 45. At
the time of the resentencing, the Appellant had served forty-one
years of his original sentence. The newly imposed sentence of
thirty-five years to life made the Appellant immediately eligible for
parole consideration. Id. The Appellant was subsequently
granted parole by the state of Pennsylvania and was released from
prison.
On April 15, 2017, the Appellant filed a pro se PCRA petition,
asserting that his new sentence was illegal. James F. Berardinelli,
Esquire, was appointed counsel for the Appellant, and on March
31, 2018, counsel filed the “Defendant’s Amended Post-Conviction
Relief Act Petition” (“Amended Petition”). In the Amended
Petition, counsel raised four claims concerning the illegality of the
Appellant’s sentence of thirty-five years to life: (1) that his
sentence violated the holding of Miller and Montgomery; (2)
that the imposition of a maximum term of life violates the
constitutional mandate of proportionality; (3) that the imposition
of the maximum term of life violated the requirement of
meaningful release based on demonstrated maturity; and (4) that
no statutory sentencing scheme exists which authorizes the
imposition of the sentence of thirty-five years to life.
On September 6, 2018, the Commonwealth filed a
“Response to Petition for Post-Conviction Relief” (“Commonwealth
Response”). The Commonwealth agreed that the imposition of a
mandatory maximum term of life was illegal in the Appellant’s
case. Commonwealth Response, p. 1. The Commonwealth
asserted that “where defendants have demonstrated that they
have been rehabilitated or that they have the capability of being
rehabilitated, the mandatory imposition of continued, lifetime
punishment is disproportionate, and violates the requirements of
individualized sentencing set forth in Miller.” Commonwealth
Response, p. 3. However, the Commonwealth acknowledged that
the Pennsylvania Superior Court has ruled otherwise, and
admitted that, based on the current applicable law, the Court had
no alternatives but to deny the Appellant’s PCRA Petition.
Commonwealth Response, p. 1.
PCRA Court Opinion, 1/15/19, at 2-5.
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J-S48029-19
On September 24, 2018, the PCRA court issued a Pa.R.Crim.P. 907
notice of intent to dismiss. Appellant did not respond, and on October 22,
2018, the PCRA court entered an order dismissing Appellant’s PCRA petition.
This timely appeal followed. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. Did the lower court err in denying defendant’s PCRA petition on
the ground that the imposition of a maximum sentence of life
imprisonment is unconstitutional in light to the United States
Supreme Court’s holdings in Miller v. Alabama, 567 U.S. 460(2012) and Montgomery v. Louisiana, __ U.S. __, 136 S.Ct.
718 (2016)?
II. Did the lower court err in denying defendant’s PCRA petition on
the ground that the imposition of a maximum sentence of life
imprisonment violates the constitutional mandate of
proportionality?
III. Did the lower court err in denying defendant’s PCRA petition
on the ground that the imposition of a maximum sentence of life
imprisonment is unconstitutional since it deprives him of a
meaningful opportunity for release and to be free of supervision
based upon demonstrated maturity?
IV. Did the lower court err in denying defendant’s PCRA petition
on the ground that the imposition of a maximum sentence of life
imprisonment is unconstitutional since defendant can be
sentenced to no more than 20-40 years for third degree murder
since the only existing sentencing scheme in Pennsylvania for
juveniles convicted prior to 2012 of first or second-degree murder
has been invalidated?
Appellant’s Brief at 3.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
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J-S48029-19
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014). Moreover, “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) (citation
omitted).
We have reviewed the briefs of the parties, the relevant law, the certified
record before us on appeal, and the PCRA court opinion filed on January 15,
2019. It is our conclusion that the PCRA court’s opinion adequately and
accurately addresses each of the challenges to the legality of his sentence
presented by Appellant and properly concluded that each lacks merit. PCRA
Court Opinion, 1/15/19, at 8-23. Consequently, Appellant’s contrary
arguments fail.1 Accordingly, we affirm on the basis of the PCRA court’s
____________________________________________
1 We conclude that Appellant’s challenges to the legality of his sentence were
resolved by our Supreme Court in Commonwealth v. Batts, 163 A.3d 410(Pa. 2017) (“Batts II”). Since Batts II, this Court has repeatedly rejected
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opinion and adopt its analysis as our own.2
Order affirmed.
____________________________________________
the claim that the imposition of a mandatory maximum sentence of life
imprisonment for a juvenile convicted of first or second-degree murder is
illegal. See Commonwealth v. Olds, 192 A.3d 1188, 1197-1198 (Pa. Super.
2018) (holding imposition of mandatory maximum term of life imprisonment
for juvenile defendant convicted of second-degree murder prior to Miller was
constitutional), appeal denied, 199 A.3d 334 (Pa. 2018); Seskey, 170 A.3d
at 1109 (holding trial court imposed an illegal sentence when it resentenced
juvenile defendant convicted of first-degree murder prior to Miller to term of
13 to 26 years of imprisonment; court was required to impose mandatory
maximum sentence of life imprisonment); Commonwealth v. Battles, 169
A.3d 1086, 1089-1090 (Pa. Super. 2017) (holding trial court’s imposition of
mandatory maximum term of life imprisonment upon resentencing of juvenile
defendant convicted of first-degree murder prior to Miller was legal).
Nevertheless, Appellant and the Commonwealth have essentially urged this
Court to reconsider our holdings in Olds and Seskey. However, we must
follow the decisional law established by our own Court. Blumenstock v.
Gibson, 811 A.2d 1029, 1039 (Pa. Super. 2002). Moreover, we observe that,
following our decision in Olds, the Pennsylvania Supreme Court denied a
subsequently filed petition for allowance of appeal. Commonwealth v. Olds,
199 A.3d 334 (Pa. 2018). Therefore, unless or until Olds and Seskey are
overturned by an en banc panel of this Court, or by a decision of the
Pennsylvania Supreme Court, they continue to be viable precedent for this
Court and for the courts of common pleas. See also Sorber v. American
Motorists Ins. Co., 680 A.2d 881, 882 (Pa. Super. 1996) (holding that, even
though petition for allowance of appeal was pending before the Pennsylvania
Supreme Court, decision remains binding precedent as long as the decision
has not been overturned by our Supreme Court). Hence, we cannot grant
Appellant and the Commonwealth the relief sought.
We note further that, to the extent Appellant and the Commonwealth rely
upon Songster v. Beard, 201 F.Supp.3d 639 (E.D.Pa. 2016) for support of
their argument, in Olds we expressly rejected an appellant’s reliance on
Songster. See Olds, 192 A.3d at 1197 n.18 (“[W]e do not agree with
Songster and hold that it is not binding authority in Pennsylvania.”).
2 The parties are directed to attach a copy of that opinion in the event of
further proceedings in this matter.
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J-S48029-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/19
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Circulated 11/20/2019 09:52 AM
,_
! FILED. CP-51-CR-1017161-1975 Comm v Twiggs, Micheal
Opinion
COMMONWEAL TH
(Appellee) CP-51-CR-1017181-1975
.vs. j
I SUPERIOR COURT
MICHAEL TWIGGS No. 3309 EDA 2018
(Appellant)
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OPINION
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By: The Honorable Kathryn S. Lewis, Senior Judge
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The Appellant
. appeals his sentence of thirty-five years to life, which was the
. .
result of a negotiated resentencing pursuant to Miller v. Alabama, 567 U.S. 460,
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(2012), and Montgomery
'
v. Louisiana, 136 S.Ct. 718 (2016). The Appellant asserts
.
that the maximum sentence of life is unconstitutional under the United States
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Constitution and the Pennsylvania Constitution. In this case, the holdings of the
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United States Supreme Court in Miller and Montgomery do not prohibit a defendant
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convicted of first olr second degree murder, for a crime committed as a juvenile, from
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receiving a maximum sentence of life as long as the sentence sets a minimum term
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of years which affdrds the defendant time outside of prison walls. Supra. Therefore,
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sentence
the Appellant's is constitutional and should be affirmed.
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STATEMENT OF FACTS/PROCEDURAL HISTORY
The Appellant was born on March 2, l 958. On September 30, 1975, the
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Appellant shot and killed Christopher Ross. The two had previously fought over
Dede Thorpe, who:both considered their girlfriend. On the day of the shooting, Mr.
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Ross was walking with Ms. Thorpe and others, when the Appellant appeared from a
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vacant house and called them over. After a short conversation, the Appellant pulled
out a sawed-off sh�tgun, and pulled the trigger twice, but the gun misfired. The third
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time that the Appellant pulled the trigger, the gun went off, wounding Mr. Ross in
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the stomach. Mr. Ross died three days later. At the time of the killing, the Appellant
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was 17 years and 6I months old.
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AppellJnt
The was convicted of first degree murder on March 31, 1976. On
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February 7, 1977, he was sentenced to life imprisonment without the possibility of
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parole on the charge of first degree murder.
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On July 24, 2012, Appellant filed an amended PCRA petition, seeking
pur.lant
resentencing to Miller. On March 4, 2016, Appellant filed an amended
laising
PCRA petition, a Montgomery claim. The Appellant entered into
negotiations with the
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Commonwealth which concluded when the Appellant agreed
Commonwealth's
to accept the recommended sentence of thirty-five years to life.
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The Appellant's decision to accept the recommended sentence resulted in a
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negotiated resentehcing, which occurred on November 30, 2016. N.T. 11/30/2016.
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Before the Appellant's original sentence was vacated, this Court conducted a
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colloquy of the Appellant which, inter alia, advised the Appellant that he was not
required to accept the
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sentence the Commonwealth was recommen d'mg to the Court,
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advised him ofhislabsolute right to have a resentencing hearing before a judge, and
advised that ifhe accepted the Commonwealth's recommended sentence he gave up
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the right to a resentencing hearing. Id. at 9- I 0. The Appellant stated he understood
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resen�encing
his right to a hearing and wanted to accept the recommended sentence
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and proceed with negotiated resentencing. Id.
the/
Further, Appellant was advised that if he agreed to accept the sentence
Co�monwealth
offered by the his appellate rights would be extremely limited to
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juLsdiction
challenging the of the Court, the legality of the sentence imposed, and
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the voluntariness his decision to accept the recommended sentence. Id. at 1 0-1 1.
silted
The Appellant that he understood his appeal rights. Id. at tz. At the
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conclusion of the colloquy, this Court found that the Appellant's decision, to accept
/sentence,
the recommended was made voluntarily, knowingly, and of his own free
will. Id. at 14. The original sentence imposed on February 7, I 977, was vacated
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sentence
and a new of thirty-five years to life was imposed for the conviction of first
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degree murder. Id. at 44. The Appellant received credit for all original credit time
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awarded and all t\me previously served in this case. Id. at 45. At the time of the
�ppellant
resentencing, the had served forty-one years of his original sentence. The
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newly imposed sentence of thirty-five years to life made the Appellant immediately
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eligible for parole consideration. Id. The Appellant was subsequently granted parole
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by the state of Pennsylvania and was released from prison.
,
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On April 15 � 201 7, the Appellant filed a pro se PCRA petition, asserting that
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his new sentence was illegal. James F. Berardinelli, Esquire, was appointed counsel
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for the Appellant, �nd on March 31, 2018, counsel filed the "Defendant's Amended
Post-Conviction Relief Act Petition" ('�Amended Petition"). In the Amended
Petition, counsel raised four claims concerning the illegality of the Appellant's
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.thirtyjfive
sentence of years to life: (I) that his sentence violated the holding of
Miller and Montgomery; (2) that the imposition of a maximum term of life violates
the constitutional' mandate of proportionality; (3) that· the imposition of the
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maximum term of life violated the requirement of meaningful release based on
mailrity;
demonstrated and (4) that no statutory sentencing scheme exists which
imJosition
authorizes the of the sentence of thirty-five years to life.
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On September 6; 2018, the Commonwealth filed a "Response to Petition for
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Post-Conviction Relief' (HCommonwealth Response"). The Commonwealth agreed
that the imposition of a mandatory maximum term of life was illegal in the
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Appellant's case. '.Commonwealth Response, p. 1. The Commonwealth asserted that
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"where defendants have demonstrated that they have been rehabilitated or that they
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have the capability of being rehabilitated, the mandatory imposition of continued,
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lifetime punishment rs disproportionate, and violates the requirements of
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individualized sentencing set forth in Miller." Commonwealth Response, p. 3.
However, the Commonwealth acknowledged that the Pennsylvania Superior Court
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has ruled otherwise, and admitted that, based on the current applicable law, the Court
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had no alternativej but to deny the Appellant's PCRA Petition. Commonwealth
Response, p. 1. ;
SeptemJer
On 24, 2018, after independent review, this Court found that the
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claims raised by the Appellant were without merit, and issued a "Notice of Intent to
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Dismiss Pursuant �o Pennsylvania Rule of Criminal Procedure 907" (4'907 Notice").
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The 907 Notice was filed and sent to the Appellant via certified mail. The Appellant
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did not respond. By order entered on October 22, 2018, this Court dismissed the
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Appellant's PCRA Petition, as amended.
On November 14, 2018, Appellant filed a "Notice of Appeal." On November
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16, 2018, the Appellant was ordered to file a concise statement of matter raised on
appeal, pursuant to Pa.R.A.P. 1925(b). On November 30, 2018, the Appellant filed
his "Concise Stailment of Errors Complained of on Appeal Filed Pursuant to Rule
of Appellate Procedure 1925(b )" (" 1925(b) Statement").
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ISSUES
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The following four issues were raised in the Appellant's I 925(b) Statement.
•
1) Did the lower court err in denying the defendant's PCRA Petition on the ground
that the imposition of a maximum sentence of life imprisonment is
5
unconstitutionalI in light to the United States Supreme Court holdings in Miller v.
Alabama, 567 l.J.S. 460(2012) and Montgomery v. Louisiana,_ U.S._, 136
S.Ct. 718 (2016)? [sic]
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2) Did the Lower court err in denying defendant's PCRA petition on the ground that
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the imposition of a maximum sentence of life imprisonment violates the
constitutional mandate of proportionality?
3) Did the lower court err in denying defendant's PCRA petition on the ground that
of
the imposition a maximum sentence of life imprisonment is unconstitutional
since it deprives him of a meaningful opportunity for release and to be free of
supervision baskd upon demonstrated maturity?
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4) Did the lower court err in denying defendant's PCRA petition on the ground that
the imposition of a maximum sentence of life imprisonment is unconstitutional
since the only existing sentencing scheme in Pennsylvania for juveniles
convicted prior'to 2012 of first or second-degree murder has been invalidated?
DISCUSSION
I. Timeliness
In order to be considered by the courts, there must first be a determination that
the PCRA petition was filed timely. Commonwealth v. Hutchins, 760 A.2d 50 (Pa.
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Super. 2000). A ,CRA petition is considered timely when filed within one year of
when the judgment of sentence becomes final, which occurs at the conclusion of
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direct review. 4� Pa.C.S. § 9545(b). The Appellant had 30 days after being
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sentenced to take � direct appeal. Pa.R.A.P. 903. The Appellant was re-sentenced
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on November 30, 2016, and had until December 30, 2016, to file a direct appeal. A
�not
direct appeal was filed. Therefore, the Appellant had until December 30, 2017,
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to file a timely PCRA petition. The Appellant filed his PCRA on April 15, 2017,
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which was within the time limit to file a timely PCRA petition.
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2. Standard ofReview
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When reviewing the denial of PCRA relief, the Superior Court is "limited to
determining whether the PCRA court's findings are supported by the record and
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without legal error;" Commonwealth v. Wojtaszek, 951 A.2d 1169, 1 I 70 (Pa. Super.
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2008). When the PCRA court dismisses a petition without a hearing, the appellate
court reviews the dismissal for an abuse of discretion. Commonwealth v. Collins,
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888 A.2d 564, 579 (Pa. 2005). "The determination as to whether the trial court
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imposed an illegal sentence is a question of law; [the] standard of review in cases
dealing with questions of law is plenary." Commonwealth v. Stradley, 50 A.3d 769,
'
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772 (Pa. Super. 2Q 12) (internal citations omitted).
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3. Merits I
''
When a defendant enters into a negotiated sentence, he waives his right to
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"[ c ]hal!enge on appeal all non-jurisdictional defects except the legality of his
talidity
sentence and the of his plea." Commonwealth v. Rush, 909 A.2d 805, 807
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(Pa. Super. 2006). Challenges to the legality of sentence imposed pursuant to a
negotiated sentence cannot be waived. Commonwealth v. Smith, 669 A.2d 1008,
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All of the issues raised in the Appellant's l 925(b) Statement concern the
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legality of the maximum sentence of life that the Appellant received in accord with
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a negotiated plea agreement.
a) Did the lower court err in denying the defendant's PCRA Petition on the
ground that the imposition of a maximum sentence of life imprisonment
is unconstitutional in light to the United States Supreme Court holdings
in Miller v. 'Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana,
_ u.s. _, I136 s.o, 11s (2016)?
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In Miller v. Alabama, the United States Supreme Court held that "mandatory
life without parole; for those under the age of 18 at the time of their crimes violates
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the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" 567 U.S.
460, 465 (2012). Juveniles differ from adults in their lack of maturity and by being
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more vulnerable tp negative outside pressures. Id. Children's overall character,
ar�
traits, however, less fixed and are "less likely to be 'evidence of irretrievabl[e]
deprav[ity]. "' Id.; at 4 71 · (internal citations omitted). Due to these differences,
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mandatory life without parole for juvenile offenders ran afoul of the Eighth
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Amendment because it "prevent] ed] the sentencer from taking account of these
central considerations." Id. at 47 4. Therefore, before sentencing a juvenile offender
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to life without thelpossibility of parole, the sentencer must be given the opportunity
to consider the mitigating circumstances that come from being a juvenile. Id.I
In Montgomery v. Louisiana, the United States Supreme Court held that its
Miller decision cr�ated a new substantive rule of constitutional law and that the U.S.
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Constitution requited state collateral review courts to give retroactive effect to that
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rule. 136 S.Ct. 718, 736 (2016). These combined holdings mandate that all inmates
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serving sentences of life without parole, received as a result of a killing committed
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while under the age of eighteen, be resentenced, or paroled, in accordance with
Miller, supra. The fact that the United States Supreme Court acknowledged that
state courts could! comply with Miller by granting parole, indicates that a life
maximum sentence is legal, as long as the defendant, after consideration of the
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factors enumerated in Miller, is eligible for release.
The Miller Court only determined that it was a violation of the Eighth
juteniles,
Amendment for convicted of homicide, to be mandatorily sentenced to life
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without the possibility of parole without the sentencer first considering the
qualitie�
mitigating of youth. 1 Id. The Court did not hold that a maximum sentence
of life was, in and bf itself, unconstitutional. In fact, the Court found that a juvenile
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may still be sentenced to life without the possibility of parole, as long as the
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qualitie)s of
mitigating youth are considered. Id. at 480. The Miller Court did not
find that a sentencl of life with the possibility of parole was unconstitu�ional.
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This consideration ipcludes: (1) the juvenile's susceptibility to influence and psychological
damage, (2) the transient nature of the juvenile's irresponsibility, impetuousness, and
recklessness, (3) the juvenile's background; and (4) the juvenile's mental and emotional
development. Miller, at 4 76 .
.
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Therefore, the Appellant's claim that the imposition of a maximum life
sentence is unconstitutional under Miller and Montgomery is meritless.
b) Did the Lower court err in denying defendant's PCRA petition on the
ground that the imposition of a maximum sentence of life imprisonment
violates the'constitutional mandate of proportionality?
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In his 1925(,b) statement, the Appellant did not cite to any legal authority for
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the claim that a maximum life sentence violates the constitutional mandate of
proportionality. However, in the Amended Petition, the Appellant cited Songster v.
Beard, 201 F.Supp.3d 639, 642 (E.D. Pa., 2016) and Garnett v. \Vetzel,
.
_F.Supp.3d_,.2016 WL 4379244 at *3 (E.D. Pa. 2016). See Amended Petition,
p. 2.2
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"The concept of proportionality is central to the Eighth Amendment,
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Embodied in the Constitution's ban on cruel and unusual punishment is the 'precept
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of justice that punishment for crime should be graduated and proportioned to [the]
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offense." Graham v. Florida, 560 U.S. 48, 59 (2010) (internal citation omitted).
"The Eighth Amehdment does not require strict proportionality between crime and
sentence.
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Rath1er it forbids only extreme sentences which are grossly
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disproportionate to the crime." Commonwealth v. BakerJ 78 A.3d 1044, 104 7 - 48
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(internll
(Pa. 2013) citations omitted).
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2 The Commonwealth also cited Songster for the proposition that the Appellant's maximum life
sentence violated the constitutional mandate of proportionality. See Commonwealth Response,
p. 2. i
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The Miller Court found that the automatic imposition of a mandatory sentence
of life without the possibility of parole, without consideration of the mitigating
qualities of youth, "violate]s] the principle of proportionality, and so the Eighth
Amendment's ban' on cruel and unusual punishment." Miller, 567 U.S., at 489. In
order to correct this violation the Miller Court mandated that the mitigating qualities
of youth be considered before sentencing a juvenile who has been convicted of
homicide to life Without parole. Id. Montgomery then made the ruling in Miller
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retroactive and applicable to the Appellant. Montgomery, 136 S.Ct., at 736.
In accordance with Miller and Montgomery, the Appellant was entitled to a
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new sentencing he1aring. The Appellant's sentence of life without the possibility of
parole was vacated and, after a negotiated sentencing procedure, the Appellant was
resentenced in accord with the negotiated sentence as recommended by the
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Commonwealth. The Appellant's new sentence for his conviction of first degree
murder is thirty-five to life, and he has sincebeen paroled. The Appellant offers no
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authority holding that such a sentence is disproportionate to the crime of first degree
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murder. t
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However, i� his Amended Petition, the Appellant relies on Songster and
Garnett for his assertion that his sentence violates the principle of proportionality of
the Eighth Amendment. See Amended Petition, p. 2. Both Songster and Garnett
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concernjuvenile lifers, who filed habeas corpus petitions seeking to vacate sentences
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of life without parole, though convicted before Miller, and those petitions were
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pending when Montgomery made Miller retroactive. Songster v. Beard, 201
F.Supp.3d 639 (E.D. Pa., 2016); Garnett v. Wetzel, _F.Supp.3d_, 2016 WL
43 79244 at * 1 (E.D. Pa. 2016). The United States District Court for the Eastern
District of Pennsylvania, granted both Songster's and Garnett's habeas petitions, and
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remanded the casesI to state court for resentencing pursuant to the dictates of Mi lier
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and Montgomery. Id; Id. The Court stated in both opinions what the requirements
for re-sentencing should be:
ln Pennsylvania, the sentencing judge must fix both the
minimum and the maximum of the term of imprisonment
after an individualized hearing taking into consideration
all relevant facts. Routinely fixing the maximum of each
sentence at life contradicts a sense of proportionality and
smacks of categorical uniformity. A sentencing practice
that results in every juvenile's sentence with a maximum
term bf life, regardless of the minimum term, does not
reflect individualized sentencing.
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Id. at 642; Id. at *2. However, it is significant to note that both opinions ended with
the following:
It is not our role to interpret Pennsylvania law in these
circuinstances. We do not attempt to usurp the authority of
the �tate court to impose the sentence it deems
appropriate so long as it adheres to the constitutionally
mandated requirements as set forth
in Miller and Montgomery.
'
I
Id. at 643; Id. at *4.
12
While the court in Songster and Garnett expressed the view that a mandatory
maximum life sentence, with or without the possibility of parole, "contradicts the
I
sense of proportionality," it was also noted that it was not the place of the federal
I
courts to dictate how the state would resentence a juvenile lifer.
I
As noted in Commonwealth v. Seskey, "decisions of the federal district courts
are merely persuasive authority. On the other hand, this Court is duty-bound to
effectuate our Supreme Court's decisional law. Batts 11,3 which our Supreme Court
decided after Montgomery, explicitly holds that the trial court was required to
eel
sentence Appell to a maximum term ofl i fe imprisonment." 170 A.3d 1105, 1109
(Pa. Super. 2017); See Commonwealth v. Olds, 192 A.3d 1188 (Pa. Super. 2018).
H is clear tJat the Pennsylvania Supreme Court mandated sentencing courts
to resentence juvenile lifer's to a maximum term of life. The Appellant was
I
f
resentenced in accord with applicable and controlling precedent. The Appellant's
I
I
claim that his sentence of thirty-five years to life for the crime of first degree murder
. 1 ates
v10 I .
t h e man d ate o f proportiona 1·tty .is wit. h out rnent.
.
I
I
3
Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017).
I 13
c) Did the lower court err in denying defendant's PCRA petition on the
ground that the imposition of a maximum sentence of life imprisonment
is unconstitutional since it deprives him of a meaningful opportunity for
release and to be free of supervision based upon demonstrated maturity?
The question of whether a juvenile convicted of first or second degree murder
l
must be given a !meaningful opportunity to be free of supervision based upon
I
demonstrated maturity was not raised before this Court, and therefore should not be
considered on appeal.
I
In his Amended Petition, the Appellant claimed that "[d]efendant's maximum
term of life would also violate the requirement that a juvenile must have a
I
I
meaningful opportunity for release based upon demonstrated maturity. Graham v.
t
I
Florida, 560 U.S.18, 75 (201 O)." See Amended Petition, p. 2.
I
It wasn't until the 1925(b) Statement was filed that the Appellant asserted that
I
"the imposition ofia maximum life sentence of life imprisonment is unconstitutional
I
since it deprives him of a meaningful opportunity for release and to be free of
supervision based upon demonstrated maturity." See 1925(b) Statement, p. 1
(emphasis addedj.: Claims not raised before the PCRA court cannot be raised for the
I
appell,
first time on !
therefore, the Appellant waived his claim that his sentence is
I
!
unconstitutional because it does not give him the opportunity "to be free of
supervision" based on demonstrated maturity. Commonwealth v. Bond, 819 A.2d
33, 52 (Pa. 2002); Further, there is no legal authority to support the Appellant's
contention that his sentence is illegal, because he was released from incarceration.
14
The Appellant's sentence of thirty-five years to life is legal. If the Appellant
wishes to seek early termination of parole at some time in the future based on
"demonstrated maturity", he may consider filing a petition with the Board of Pardons
for the Commonwealth of Pennsylvania. Pennsylvania Constitution, Article 4, § 9.
A request for early termination of parole, or to modify any conditions of parole, is
I
I
not properly before this Court.
<
While the Appellant's assertion that his maximum sentence of life is
,
unconstitutional because it deprives him of a meaningful opportunity of release is
I
properly before tHe Superior Court on appeal, the claim is factually incorrect and
meritless.
Again, in his 1925(b) Statement, the Appellant does not cite to any legal
authority for the ;assertion that a maximum sentence of life is unconstitutional
I
because it deprives him of the meaningful opportunity for release based on
!
demonstrated maturity. See 1925(b), p. 1. However, in his Amended Petition, the
Appellant cited Graham v. Florida, 560 U.S 48, 75 (2010). See Amended Petition,
p. 2.
In Graham, 'a precursor to Miller, the United States Supreme Court held that
sentencing juveniles to life Without the possibility of parole for hon-homicide
offenses violated the Eighth Amendment. Id. To cure the violation the Graham
Court found that "[a] State is not required to guarantee eventual freedom to a juvenile
15
I
l
offender convicted of a nonhomicide [sic] crime. What the State must do, however,
is give defendants ... some meaningful opportunity to obtain release based on
demonstrated maturity and· rehabilitation." Id. at 75. In light of the principle in
Graham, "that imposition of the State's most severe penalties on juvenile offenders
as!
cannot proceed though they were not children," the Miller Court held that the
Eighth Amendment mandated the sentencing court to consider the mitigating
qualities of youth before imposing a life without the possibility of parole sentence.
Miller, at 474.
At a negotiated resentencing on November 30, 2016, before accepting the
recommended sentence, this Court considered the evidence presented in the
Sentencing Memorandum, which included information about: (1) the crime; (2) the
Appellant's background; and (3) his accomplishments while incarcerated. The
Appellant's sentence of life without the possibility parole was then vacated and he
was resentenced to thirty-five years to life. As a result of the sentence imposed, the
Appellant was eligible for parole consideration. The Appellant was granted parole
and released from state incarceration and remains on parole. The Appellant has been
afforded the relief mandated by the Miller Court.
Therefore, the AppelJant's claim that he has been denied the opportunity for
release based on a. demonstrated maturity and rehabilitation during the time he was
incarcerated, is factually inaccurate and without merit.
16
d) Did the lower court err in denying defendant's PCRA petition on the
ground that the imposition of a maximum sentence of life imprisonment
is unconstitutional since the only existing sentencing scheme in
Pennsylvania for juveniles convicted prior to 2012 of first or second-
degree murder has been invalidated?
As a result of the United States Supreme Court's decision in Miller, the
Pennsylvania General Assembly passed, and the Governor signed into law, a new
1
sentencing statute for offenders under the age of eighteen convicted of first or second
degree murder. 1ls Pa. C.S. § 1102.1. The statute is not retroactive and is not
i
applicable to juvenile offenders convicted before Miller. Under section 1102.1, a
juvenile convicted of second degree murder, which was committed when the
I
juvenile was over the age of 15, would be sentenced to a "term of imprisonment the
I
minimum of which shall be at least 30 years to life." 18 Pa. C.S. § 1102.l(c)(l).
I
I
The Pennsylvania Supreme Court has held that resentencing a juvenile
I
offender convicted of first degree murder to a sentence with a maximum of life is
I
constitutional and jin accordance with Miller and Montgomery. Commonwealth v.
I
Batts, 66 A.3d 287 (Pa. 2013)("Batts I"). Qu'eed Batts ("Batts"), was convicted of
I
I
first degree murder and sentenced, under 18 Pa. C.S. § 1102( a), to life without the
I
possibility of parole for a killing committed when Batts was fourteen years old. Id.
I
While the case was on direct appeal, the United States Supreme Court decided Miller
and section 1102.1 was enacted by the Pennsylvania General Assembly and signed
into law in Pennsylvania. Id.
17
I . .
On appeal, Batts argued that any "remedy that would permit a court to impose
'
a sentence of life imprisonment with the possibility of parole" on a juvenile
I
'
convicted of first degree murder was unconstitutional under the Eighth Amendment,
l'
because the nature of such a sentence "fails to take into account the age-related
bylthe
factors set forth [Miller] Supreme Court." Id. at 294. Specifically Batts argued
that section 1102(a) mandated a maximum sentence of life without parole, which
I
Miller made unconstitutional as applied to juveniles, and section 1102.1 could not
apply to him because it was not retroactive. Id. Therefore, Batts 'argued, his sentence
j
"should be based on the most severe lesser included offense, namely, third-degree
I
murder, with a maximum term of forty years' imprisonment." Id. at 294 (internal
citations omitted) ..
I
However, the Pennsylvania Supreme Court held that "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
I
on a juvenile." Id. at 296 (internal citations omitted). Miller only mandated a
I
I
"judicial consideration of the appropriate age-related factors" set forth in Miller
I
before the imposition of a sentence oflife without parole upon a juvenile. Id. at 296.
Further, the Pennsylvania Supreme Court agreed with the Commonwealth's
I
assertion that the offending portion of the Pennsylvania sentencing scheme was 61
I
I
Pa. C.S. § 6137, which mandates that parole may not be granted for those serving
18
life sentences, could be severed from section 1102(a) as it applied to juveniles,
leaving the remaining provisions intact. Id. After severing the offending provision,
section 1102(a) "still require[s] that the court impose a sentence of life imprisonment
for a juvenile corvicted of first-degree murder." Id. at 294 (internal citations
omitted). Therefore, for "those subject to non-final judgements of sentence for
I
I
murder as of Miller's issuance" would be "subject to a mandatory maximum
.
I
sentence of life imprisonment as required by .Section 1102(a), accompanied by a
I
sentence
minimum determined by the common pleas court upon resentencing." Id.
at 297. The case was remanded for Batts to be re sentenced in accordance with the
I
l
Court's opinion. Id.
On remand,iagain, Batts was sentenced to life without the possibility of parole
and appealed. Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) ("Batts 11"). While
Batts did not raise the legality of his. sentence on this appeal, the arguments raised
by way of an amicus brief filed by the Pennsylvania Association of Criminal Defense
I
I
Lawyers C'PACDL") and adopted by Batts "implicatejd] the legality of his sentence,
I
and therefore [was] not subject to waiver" Id. at 441. The PACDL argued that the
Batts I holding was an impermissible use of the Court's severance authority because
I
42 Pa. C.S. § 9756(b)(l) required that a minimum term of imprisonment cannot be
I
"greater than half.of the maximum sentence - a mathematical impossibility when
!
the maximum term of incarceration is life." Id. at 440. The PACDL also argued
19
that severance was improper because section 1102. l excluded convictions pre-
Miller, and therefore the Court could not "presume that the General Assembly would
have enacted the remaining portions of section 613 7(a) without the limitations on
the ability to parole a juvenile sentenced to life in prison." Id. at 440. Therefore,
.
I
Batts should be resentenced on the charge of third-degree murder.
The Pennsylvania Supreme Court found, that while the PACDL's argument
was not raised or addressed in Batts I, the "holding implicitly required severance of
section 9756(b)(l)'s requirement that a minimum sentence can be no more than half
of the maximum sentence
r
for juveniles convicted of first-degree murder prior to
I
Miller." Id. at 442. The severance of section 9756 did not create an impermissible
I
obstacle since 1 Pa. C.S. § 1925 provides that "[t]he provisions of every statute
I
I
(are] severable." Id. at 442 (emphasis in original) (internal citation omitted).
' must sever invalidated portions of a statute, while leaving the
Pennsylvania courts
I
valid portions intact, unless:
I
(1) The remaining valid provisions depend on and "are so
essentially and inseparably connected with" the voided
provision that the court could not presume that the General
Assembly would have enacted the valid portion of the
statute without the now-voided provision, or (2) the
remaining portions of the statute "are incapable of being
executed in accordance with legislative intent.
Id. at 441.
20
The Court found that the removal of the mandate set forth in section
9756(b)(l) did "nothing more than eliminate the ceiling for the minimum term of
imprisonment a juvenile sentenced to life with parole may receive." Id. at 442. The
elimination aligned with the expression of legislative intent for sentencing juveniles
i
convicted of murder under section 1102.1. J d. Section 1102 .1 ( e) made clear that
I
only the minimum sentences stated in the statute is required and that "[n]othing
I
under this section shall prevent the sentencing court from imposing a minimum
I
sentence greater than that provided in the section." Id. at 443; 18 Pa. C.S. §
t
1102.l(e). On � other hand, if the Court could not sever section 6137(a)(l) and
th
l
section 97 56(b )( 1) from section 1102( a), then the only other "option would be to
i
release each of the hundreds of juveniles convicted of first degree murder and
!
sentenced to life without parole." Id. at 444.
I
The Court rtoted that though section 1102.1 did not apply to Batts due to the
I
date of his conviction, it nonetheless provided clear expression of legislative intent
senlencingjuveniles
as it related to convictedof first degree murder:
l
The General Assembly would preserve the remainder of
the parole statute, sever the minimum sentence ceiling of
section 9756(b)(l) and permit these defendants to be
sentenced to life with the possibility of parole, rather than
have i no sentence at all for juveniles convicted of first
j
degree murder .
•
Id. at 444.
21
In the four· years that passed between Batts I and Batts II, the General
Assembly did not pass a statute addressing sentencing for juveniles convicted of
murder pre-Miller' and did not amend the provisions severed in Batts I. Id. The
General Assembly. not taking these action gave rise to the presumption that it is in
agreement with the holding of Batts I. Id.
'
While section 1102.1 does not retroactively apply to those juveniles sentenced
to life without parole pre-Miller, the Court noted that "we cannot ignore the policy
determination made by the General Assembly as to the minimum sentence a juvenile
'
convicted of first-degree murder must receive." Id. at 457. Intending to advance the
goals of uniformity and certainty in sentencing decisions:
[W]e believe that section 1102.1 will "help frame the
exercise of judgment by the court imposing a sentence"
and "may provide an essential starting point. .. that must be
respected and considered" when determining the
appropriate minimum sentence for a juvenile convicted of
first-degree murder prior to the Miller decision.
I '
I
I
Id. at 458 (internal citations omitted).
'
1
Even though section 1102.1 is inapplicable to the Appellant because of the
date of his conviction, it allows courts to infer that the legislative intent of the
General Assembly for juveniles over the age of fifteen who are convicted of first
degree murder to i;)e sentenced to a term not less than that of thirty-five years to life.
I
18 Pa. C.S. § 1102.1 ( c )(1 ). Through a negotiated resentencing, the Appellant was
sentenced to thirty-five years to life for his conviction of first degree murder, and
22
because he had served forty-one years of his original sentence, the Appellant became
immediately eligible
I
for parole consideration. N.T. 4/20/2017 p. 36, 45. The
Appellant was subsequently paroled. For the above reasons, the Appellant's
maximum sentence of life is constitutional under the Eighth Amendment.
CONCLUSION
For all the �easons set forth herein, the Appellant's sentence of thirty-five .
I
I
years to life is not .illegal and should be affirmed.
23