Com. v. Lehman, M. , 201 A.3d 1279 ( 2019 )

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2019 PA Super 2COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL A. LEHMAN :
:
Appellant : No. 1556 MDA 2017
Appeal from the Judgment of Sentence April 4, 2017
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002000-1988
BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.
OPINION BY OLSON, J.: FILED: JANUARY 4, 2019
More than 28 years ago, the trial court sentenced Appellant, Michael A.
Lehman, to the then-mandatory term of life imprisonment without the
possibility of parole for a murder committed when he was 14 years old. On
April 4, 2017, he was resentenced to 30 years to life imprisonment in light of
intervening decisions of the Supreme Court of the United States. See Miller
v. Alabama, 567 U.S. 460 (2012); see also Montgomery v. Louisiana,
136 S.Ct. 718 (2016). In addition, the trial court ordered him to pay costs
associated with that resentencing.1 Appellant appeals from that judgment of
sentence, challenging the trial court’s authority to sentence him for first-
degree murder and to require payment of the costs. After careful
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1 The total costs imposed were $15,150.28. The bulk of the costs—
$8,950.00—involved the examination and testimony of the Commonwealth’s
expert witness, Dr. Larry Rotenberg, who did not find Appellant to be
irreparably corrupt.
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consideration, we hold that, although Appellant’s sentence of imprisonment is
lawful, a trial court lacks authority to impose costs associated with a
resentencing proceeding necessitated by the imposition of a prior illegal
sentence. We, therefore, affirm in part, vacate in part, and remand for further
proceedings consistent with this opinion.
In June 1988, Appellant was 14 years old. He and two other residents
escaped from the Children’s Home of York County (“the Home”). Appellant
was apprehended. The same day, however, he fled the Home again. He,
along with his confederates, then plotted to murder one of the Home’s staff
members. They returned to the Home and Appellant served as a lookout while
his confederates viciously murdered the staff member by stabbing him 21
times.
Appellant was convicted of first-degree murder,2 burglary,3 robbery,4
and criminal conspiracy.5 On October 22, 1990, the trial court sentenced
Appellant to the then-mandatory term of life imprisonment without the
possibility of parole. See 18 Pa.C.S.A. § 1102(a) (West 1988) (requiring
sentence of life imprisonment); 61 Pa.C.S.A. § 6137(a)(3) (West 1988)
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2 18 Pa.C.S.A. § 2502(a).
3 18 Pa.C.S.A. § 3502.
4 18 Pa.C.S.A. § 3701.
5 18 Pa.C.S.A. § 903.
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(barring parole for individuals sentenced to life imprisonment). This Court
affirmed. Commonwealth v. Lehman, 606 A.2d 1231 (Pa. Super. 1991)
(unpublished memorandum).
On October 8, 1998, Appellant filed his first petition pursuant to the
Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. On May 26,
1999, the PCRA court denied the petition. This Court affirmed and our
Supreme Court denied allowance of appeal. Commonwealth v. Lehman,
754 A.2d 19 (Pa. Super. 2000) (unpublished memorandum), appeal denied,
764 A.2d 1066 (Pa. 2000). On July 1, 2010, Appellant filed his second PCRA
petition. The PCRA court dismissed that petition on August 26, 2010. Again,
this Court affirmed and our Supreme Court denied allowance of appeal.
Commonwealth v. Lehman, 34 A.3d 221 (Pa. Super. 2011) (unpublished
memorandum), appeal denied, 34 A.3d 827 (Pa. 2011).
On August 21, 2012, Appellant filed his third PCRA petition in which he
alleged that Miller entitled him to relief. In Miller, the Supreme Court of the
United States held that juvenile homicide offenders may not be sentenced
pursuant to schemes that impose mandatory life imprisonment without the
possibility of parole. Miller, 567 U.S. at 469-489. Thereafter, in
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), our Supreme Court
held that Miller did not apply retroactively. Id. at 4-11. On November 20,
2013, the PCRA court dismissed Appellant’s third petition based on
Cunningham. Bound by Cunningham, this Court affirmed.
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Commonwealth v. Lehman, 122 A.3d 1131 (Pa. Super. 2015) (unpublished
memorandum).
The following year, resolving a split amongst state courts of last resort,
the Supreme Court of the United States held that Miller applied retroactively.
Montgomery, 136 S.Ct. at 732-737. On March 16, 2016, Appellant filed his
fourth PCRA petition. Prior to the PCRA court ruling on that petition, the United
States District Court for the Middle District of Pennsylvania granted Appellant
a writ of habeas corpus and ordered the trial court to resentence Appellant.6
Lehman v. Commonwealth, 15cv843 (M.D. Pa. Aug. 8, 2016).
On April 7, 2017, the trial court resentenced Appellant to an aggregate
term of 30 years to life imprisonment. The trial court also ordered Appellant
to pay costs associated with the resentencing proceedings. The
Commonwealth filed a post-sentence motion challenging the discretionary
aspects of Appellant’s sentence. On September 18, 2017, the trial court
denied the post-sentence motion. This timely appeal followed.7
Appellant presents three issues for our review:
1. Was [Appellant] granted relief under the [PCRA] or pursuant to a
petition for a writ of habeas corpus?
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6 Although it was not titled as such, nor did it include the normal language
associated therewith, we believe that it was a conditional writ.
7 Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
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2. [Did the trial court impose an illegal sentence by ordering
Appellant to serve 30 years to life imprisonment?
3. Did the trial court impose an illegal sentence by ordering Appellant
to pay the costs associated with the resentencing proceedings?]
Appellant’s Brief at 3.8
In his first issue, Appellant argues that he obtained relief pursuant to
the writ of habeas corpus issued by the United States District Court for the
Middle District of Pennsylvania and not because the PCRA court granted him
relief. This issue is moot because the trial court resentenced Appellant. Cf.
In re S.H., 71 A.3d 973, 976 (Pa. Super. 2013) (citation omitted) (“If events
occur to eliminate the claim or controversy at any stage in the process, the
[issue] becomes moot.”). For purposes of the central issues presented in this
appeal from Appellant’s judgment of sentence, it is immaterial whether
Appellant was before the trial court for resentencing pursuant to an order
issued under the PCRA or the writ of habeas corpus issued by the United States
District Court for the Middle District of Pennsylvania. Accordingly, we decline
to address Appellant’s first issue.
In his second issue, Appellant argues that the trial court imposed an
illegal sentence by ordering him to serve 30 years to life imprisonment for his
first-degree murder conviction.9 According to Appellant, there was no
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8 We have re-numbered the issues for ease of disposition.
9 We note that this argument was made by an attorney that withdrew his
appearance during the pendency of this appeal.
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statutory authority by which the trial court could sentence Appellant for first-
degree murder because 18 Pa.C.S.A. § 1102, when combined with 61
Pa.C.S.A. § 6137(a)(3), was deemed unconstitutional in Miller. Appellant
argues that the trial court was required to (1) sentence him for third-degree
murder, a crime he was not convicted of committing, or (2) discharge him.
We review an illegal sentencing claim de novo and our scope of review is
plenary. Commonwealth v. White, 193 A.3d 977, 985 (Pa. Super. 2018)
(citation omitted).
Our Supreme Court and this Court have rejected Appellant’s argument
on numerous occasions. E.g. Commonwealth v. Batts, 163 A.3d 410, 421
(Pa. 2017); Commonwealth v. Olds, 192 A.3d 1188, 1193 (Pa. Super.
2018); Commonwealth v. Foust, 180 A.3d 416, 430 (Pa. Super. 2018);
Commonwealth v. Seskey, 170 A.3d 1105, 1106 (Pa. Super. 2017).10
Pursuant to these binding decisions, the trial court was required to impose a
sentence for first-degree murder. The sentencing options available to the trial
court offered no mandatory minimum and a mandatory maximum term of life
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10 Appellant was sentenced after our General Assembly enacted 18 Pa.C.S.A.
§ 1102.1(a), which sets forth the mandatory minimum for juveniles convicted
of first-degree murder. That statute, however, only applies to juveniles
convicted of committing crimes that occurred after June 24, 2012. See 18
Pa.C.S.A. § 1102.1(a). Nonetheless, we note that a 14-year-old convicted of
first-degree murder for an offense that occurred after June 24, 2012 faces a
25-year mandatory minimum. See 18 Pa.C.S.A. § 1102.1(a)(2).
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imprisonment. The trial court imposed such a sentence. Hence, Appellant’s
sentence of 30 years to life imprisonment was legal.
In his final issue, Appellant argues that the trial court imposed an illegal
sentence by ordering him to pay costs associated with his resentencing
proceedings, which came about because of the illegality of his original
sentence. In essence, Appellant’s claim is that expenses incurred by reason
of resentencing proceedings undertaken after the initial imposition of an
unlawful sentence fall outside the trial court’s authority to impose costs. The
Commonwealth, on the other hand, contends that Appellant’s claim challenges
the discretionary aspects of his sentence. Because Appellant challenges the
trial court’s authority to impose costs as part of its resentencing order, we
conclude that the Appellant’s claim implicates the legality of his sentence and,
thus, he was not required to include a statement pursuant to Pennsylvania
Rule of Appellate Procedure 2119(f) in his brief or to raise the issue before the
trial court. See Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super.
2010). We apply a de novo standard of review to such a claim and our scope
of review is plenary. See White, 193 A.3d at 985 (citation omitted).
Preliminarily, we set forth the legal framework governing this issue. It
is unclear from the record whether the trial court imposed costs pursuant to
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the common law, pursuant to 16 P.S. § 4403,11 or both.12 Ultimately, we
conclude that it is immaterial for purposes of this decision whether costs were
imposed under the common law, section 4403, or both because the result is
the same. Hence, we set forth the framework for both the common law and
section 4403.
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11 Section 4403 provides that
All necessary expenses incurred by the district attorney or his
assistants or any officer directed by him in the investigation of
crime and the apprehension and prosecution of persons charged
with or suspected of the commission of crime shall be paid by the
county from the general funds of the county, upon the approval
of the bill of expenses by the district attorney and the court. In
any case where a defendant is convicted and sentenced to pay the
costs of prosecution and trial, the expenses of the district attorney
in connection with such prosecution shall be considered a part of
the costs of the case and be paid by the defendant.
16 P.S. § 4403.
In its opinion, the trial court cited 16 P.S. § 7708, however, section 7708 only
governs cases in counties of the first-class. Section 4403 governs cases in
counties of the second-class. As Montgomery County is a county of the
second-class, Feldman v. Hoffman, 107 A.3d 821, 823 n.1 (Pa. Cmwlth.
2014), appeal denied, 121 A.3d 497 (Pa. 2015), section 4403 is the relevant
statute.
12The Commonwealth cites 42 Pa.C.S.A. § 9728(g) in support of its argument
that Appellant was responsible for costs related to his resentencing. That
statute is inapposite because that statute addresses “costs associated with the
collection of restitution, transportation costs and other costs associated with
the prosecution[.]” 42 Pa.C.S.A. § 9728(g). It does not address costs borne
by the district attorney in prosecuting a case. Such costs are governed by
Section 64 and section 4403. Cf. 1 Pa.C.S.A. § 1933 (a specific statute
controls over a general statute).
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The Judicial Code provides that, “The governing authority shall prescribe
by general rule the standards governing the imposition and taxation of costs,
including the items which constitute taxable costs, the litigants who shall bear
such costs, and the discretion vested in the courts to modify the amount and
responsibility for costs in specific matters.” 42 Pa.C.S.A. § 1726(a). Our
Supreme Court has not, pursuant to section 1726(a), prescribed by general
rules such standards in criminal cases.
As our Supreme Court explained:
The Judicial Code was created by the Judiciary Act of 1976, which,
in conjunction with the Judiciary Act Repealer Act ([“]JARA[”]) and
the Judiciary Act Repealer Act of 1980 [], represented the
culmination of a ten year effort to achieve the first complete
judicial codification in Pennsylvania’s history.
Although the Judicial Code was enacted in 1976, it did not take
effect until June 27, 1978, the effective date of JARA. The primary
purpose of JARA [], was to repeal those statutes which had been
supplanted by the Code. [JARA] expressly repealed parts or all of
more than 1500 statutes, comprising approximately 6000 sections
of Purdon’s Pennsylvania Statutes, enacted between 1700 and
1977.
Chartiers Valley Sch. Dist. v. Twp. of Ross, 462 A.2d 673, 675 (Pa. 1983)
(cleaned up).
JARA contained a savings clause, which provided that:
General rules promulgated pursuant to the Constitution of
Pennsylvania and the Judicial Code in effect on the effective date
of the repeal of a statute, shall prescribe and provide the practice
and procedure with respect to the enforcement of any right,
remedy or immunity where the practice and procedure had been
governed by the repealed statute on the date of its repeal. If no
such general rules are in effect with respect to the repealed
statute on the effective date of its repeal, the practice and
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procedure provided in the repealed statute shall continue in full
force and effect, as part of the common law of the Commonwealth,
until such general rules are promulgated.
Act 53 of 1978 § 3(b), 1978 P.L. 202, 352.
At the time the Judicial Code was enacted, costs in criminal cases were
primarily governed by Section 64 of the Criminal Procedure Act of 1860
(“Section 64”), 1860 P.L. 427, 445. See 19 P.S. § 1223 (repealed).13 Hence,
pursuant to JARA’s savings clause, Section 64 is part of our Commonwealth’s
common law. Section 64 provided that “in all cases of conviction of any crime,
all costs shall be paid by the party convicted; but where such party shall have
been discharged, according to law, without payment of costs, the costs of
prosecution shall be paid by the county[.]” Id.
As previously noted, section 4403 sets forth the statutory language that
controls the costs at issue in this case. That statute governs the payment of
all necessary expenses incurred by the district attorney, and his or her
assistants and officers.
Having set forth the legal framework governing the assessment of costs,
we now consider whether Section 64 and section 4403 permit the imposition
of costs for resentencing following an illegal sentence. Under both provisions
“trial court[s] must carefully examine [the totality of the circumstances.
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13The Criminal Procedure Act of 1860 was repealed by JARA. See Act 53 of
1978 § 2, 1978 P.L. 202, 232.
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Assessable] costs are those which are necessary for prosecution when
considered in light of the peculiar facts and circumstances of each case[.]”
Commonwealth v. Garzone, 993 A.2d 1245, 1258 (Pa. Super. 2010), aff’d,
34 A.3d 67 (Pa. 2012).
We are aware of only two, non-binding, decisions addressing the
assessment of costs after an original judgment of sentence was imposed. In
Commonwealth v. Morales-Rivera, 67 A.3d 1290 (Pa. Cmwlth. 2013), the
Commonwealth Court held that the trial court had the authority to order the
defendant to pay costs associated with his PCRA hearing. Id. at 1294. In
United States ex rel. Brink v. Claudy, 96 F.Supp. 220 (W.D. Pa. 1951), the
district attorney sought costs associated with defending a federal habeas
corpus petition. The United States District Court for the Western District of
Pennsylvania found that the district attorney was entitled to such costs under
Pennsylvania law; however, the district attorney must seek those costs in
state court. Id. at 224. We do not find Morales-Rivera or Brink persuasive
for the issue presented in this case. In both Morales-Rivera and Brink, the
defendants were denied relief within the context of their respective post-
conviction proceedings. In this case, the resentencing hearing was the result
of Appellant’s successful litigation of his habeas corpus petition in the United
States District Court for the Middle District of Pennsylvania. Hence, we turn
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to analogous cases and general tools of statutory interpretation14 to guide our
decision.
We acknowledge that Section 64’s language differs from section 4403’s
language insofar as section 4403 uses the words “necessary expenses” and
Section 64 uses the words “all costs.” We conclude, however, that construing
Section 64 differently than section 4403 would lead to absurd results. Under
the current Statutory Construction Act, and the law that preceded it, we must
interpret statutes to avoid such absurd results. See 1 Pa.C.S.A. § 1922(1).15
If we interpreted the word “all” literally, a defendant could be forced to pay
costs associated with lighting and heating the courtroom in which he or she
was tried. A defendant could also be forced to pay for out-of-town jurors to
stay at the Ritz-Carlton. These are absurd results. Hence, we conclude that
the word “all” in Section 64 means “necessary” as in section 4403. For this
reason, we conclude that if costs are not “necessary” they are not authorized
under either Section 64 or section 4403.
We agree with the learned trial judge that this case is most analogous
to Commonwealth v. Weaver, 76 A.3d 562 (Pa. Super. 2013), aff’d, 105
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14 Although Section 64 is now part of our common law and is no longer a
statute, we believe that as it was formerly a statute it should be interpreted
according to the general tools of statutory construction.
15 Prior to passage of the Statutory Construction Act, statutes were construed
pursuant to Act 282 of 1937, 1937 P.L. 1019. Act 282 contained operative
language identical to that of section 1922(1). See Act 282 of 1937 § 52(1),
1937 P.L. 1019, 1024.
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A.3d 656 (Pa. 2014) (per curiam). In that case, the Commonwealth charged
the defendant with driving under the influence of drugs. The criminal
information alleged that morphine was present in his blood while he operated
his motor vehicle. Similarly, a pre-trial report presented to the defendant
indicated that a laboratory found morphine in his blood. At trial, the
Commonwealth called a laboratory employee to testify regarding the test
results. That witness, however, testified that benzodiazepines were found in
the defendant’s blood. At that point, the trial court declared a mistrial and
permitted the Commonwealth to amend the criminal information.
At the retrial, a different laboratory employee testified and the
defendant was convicted. At sentencing, the trial court ordered the defendant
to pay costs associated with the laboratory employees’ testimony at both
trials. The defendant filed a post-sentence motion arguing that he should not
be responsible for paying costs associated with the laboratory employee’s
testimony at the second trial. The trial court granted the post-sentence
motion and amended the judgment of sentence so that the defendant was
responsible for paying the costs for the laboratory employee’s testimony only
at the first trial. The Commonwealth appealed that determination to this Court
and this Court affirmed the trial court’s decision not to impose costs related
to the second trial.
The costs of resentencing in this case arose because Appellant elected
to exercise his rights under Miller and Montgomery. This is akin to the
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circumstances in Weaver, where the defendant “chose” to exercise his
constitutional right to due process of law by being informed of the charges
against him prior to trial. In Weaver, this Court held that the Commonwealth
was responsible for the costs of the second trial. This is sensible because it is
well-settled that a defendant may not be punished for exercising his or her
constitutional rights. Commonwealth v. Speight, 854 A.2d 450, 455 (Pa.
2004); United States v. Goodwin, 457 U.S. 368, 372 (1982). If we held
that Appellant was responsible for paying the costs associated with
resentencing, we would punish him for exercising his constitutional right to
receive a sentence that comports with the Eighth Amendment of the United
States Constitution (as incorporated against the states via the Fourteenth
Amendment). Thus, although Appellant “chose” to receive a constitutional
sentence by filing his PCRA petition and petition for a writ of habeas corpus,
that does not entitle the Commonwealth to recover the costs associated with
the resentencing process.
Additionally, in affirming the trial court’s decision limiting the
defendant’s payment of costs associated with the laboratory employee’s
testimony in only the first trial, this Court in Weaver explained that a
defendant is not responsible for costs that are a result of certain actions by
the Commonwealth. Weaver, 76 A.3d at 574. In reaching that decision, this
Court relied on our Supreme Court’s decision in Commonwealth v. Coder,
415 A.2d 406 (Pa. 1980). In Coder, our Supreme Court held that the
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defendant was responsible for paying the costs associated with a change in
venue. Our Supreme Court explained, however, that when “the prosecution
is primarily responsible for the conditions which necessitate the change of
venue, the defendant should be absolved of the costs incident to the change
of venue.” Id. at 409 n.4. This Court reasoned that Coder indicates that the
Commonwealth must bear the costs of prosecution when the Commonwealth
is responsible for the increase in costs. Weaver, 76 A.3d at 574. In other
words, costs are not “necessary” if they would not have arisen but for the
Commonwealth’s actions. See id.While we recognize that the situation in Weaver does not align perfectly
with the circumstances presently before us, we nonetheless believe that
Weaver supplies the principle to be applied here. In Weaver, the costs were
accrued as a result of actions taken by the Commonwealth through the district
attorney. We see no reason to differentiate between the actions taken by the
Commonwealth in prosecuting an action from the actions taken by the
Commonwealth in enacting a statute that is later declared to be
unconstitutional. There was no action taken by the defendant in Weaver or
Appellant in this case which necessitated the further proceedings for which
costs were imposed. In both situations, the additional costs would not have
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arisen but for the actions of the Commonwealth.16 Thus, when further
proceedings are not necessitated by the actions of the defendant and the
defendant obtains relief as a result of those proceedings, the Commonwealth
should bear the risk of paying the additional costs.
Finally, a defendant can expect to be held financially liable for the costs
associated with a sentencing proceeding when he or she commits a crime. A
defendant does not, however, reasonably expect to be financially responsible
for the costs associated with resentencing necessitated by changes in law
many years later. This reasonable expectation has played an important role
in our Supreme Court’s jurisprudence in this area of the law. In Coder, our
Supreme Court justified requiring the defendant to pay the costs associated
with the change in venue by noting that
when a person commits a crime which stirs wide community
interest, either because the crime is heinous or its perpetrator is
a person invested with a public trust, publicity will follow
inevitably. The ensuing publicity should be readily foreseeable
by the perpetrator of the crime, so that it is neither arbitrary,
capricious nor unreasonable to hold him responsible for the
dysfunction his conduct caused the criminal justice system.
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16 We are cognizant of the fact that, at the time our General Assembly passed
18 Pa.C.S.A. § 1102(a) and 61 Pa.C.S.A. § 6137(a)(3), they were
constitutional as applied to juveniles and the Supreme Court of the United
States upheld similar statutes for decades after their enactment. However,
we believe that, once the sentencing statutes are declared to be
unconstitutional necessitating a resentencing, a defendant, who originally
received what is deemed to be an illegal sentence, should not be responsible
for the costs associated with the resentencing.
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Coder, 415 A.2d at 409 (emphasis added; citation omitted). In other words,
our Supreme Court held that the defendant could be required to pay the costs
associated with the change in venue because that change in venue was
reasonably foreseeable at the time the defendant committed the crime in
question. As explained above, it was not reasonably foreseeable that
Appellant would receive an illegal sentence and later be resentenced.
Accordingly, we hold that the trial court lacked the authority to order Appellant
to pay costs associated with the resentencing proceedings.
In sum, the trial court had the authority to sentence Appellant to 30
years to life imprisonment for his first-degree murder conviction. We hold
that the trial court lacked the authority to order Appellant to pay the costs
associated with the resentencing necessitated by evolution of constitutional
law. Accordingly, we affirm Appellant’s judgment of sentence in part, vacate
it in part, and remand for further proceedings consistent with this opinion.
Judgment of sentence affirmed in part and vacated in part. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/04/2019
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