Com. v. Evans, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN ROBERT EVANS, :
:
Appellant : No. 269 EDA 2018
Appeal from the Judgment of Sentence December 12, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0007888-1976
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 19, 2018
Appellant Kevin Robert Evans appeals from his judgment of sentence for
second-degree murder following a successful Post Conviction Relief Act1
(PCRA) petition, in which he sought relief from a life sentence without
possibility of parole under Miller v. Alabama2 and Montgomery v.
Louisiana.3 Appellant asserts that his new sentence, which includes a
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1 42 Pa.C.S. §§ 9541-9546.
2 Miller v. Alabama, 567 U.S. 460 (2012). In Miller, the United States
Supreme Court held that a sentencing scheme that mandates life in prison
without possibility of parole for juvenile homicide offenders is forbidden by the
Eighth Amendment. See Miller, 567 U.S. at 470.
3 Montgomery v. Louisiana, 136 S. Ct. 718 (2016). In Montgomery, the
United States Supreme Court held that “Miller announced a substantive rule
that is retroactive in cases on collateral review.” Montgomery, 136 S. Ct. at
732.
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maximum of lifetime incarceration, is a violation of the prohibition against
cruel and unusual punishment in the United States and Pennsylvania
Constitutions. We affirm.
The trial court summarized the relevant factual and procedural
background of this case as follows:
After a non-jury trial, [Appellant], a juvenile age 17 at the time of
the offense, [in which he struck and killed a woman while breaking
into her home,] was convicted on May 5, 1976 of second-degree
murder; burglary; theft by unlawful taking; and robbery. The
[t]rial [c]ourt imposed a mandatory sentence of life imprisonment
without the possibility of parole on the second[-]degree murder
charge. The [t]rial [c]ourt imposed a sentence of guilt without
penalty on the robbery, burglary, and theft charges, effectively
suspending them.
After being convicted and sentenced to life imprisonment without
parole, [Appellant] spent forty-two years in prison. In 2012, the
[United States] Supreme Court ruled in Miller [and decided
Montgomery in 2016.]
Pursuant to Miller and Montgomery, [Appellant successfully]
challenged his conviction and was resentenced on December 12,
2017[,] to thirty years to life with the possibility of parole. . . .
[Appellant] filed a timely appeal to the Pennsylvania Superior
Court.
Trial Ct. Op., 6/20/18, at 1-2. Appellant filed a timely court-ordered concise
statement of matters complained of on appeal under Pa.R.A.P. 1925(b). The
trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issue for our review:
Whether the [trial] court erred by imposing an illegal sentence,
which included a mandatory maximum term of life imprisonment
for a second-degree murder that [Appellant] committed when he
was under the age of eighteen years old, in violation of the Eighth
and Fourteenth Amendments of the United States Constitution, as
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well as Article 1, Sections 9 and 13 of the Pennsylvania
Constitution.
Appellant’s Brief at 4.
Appellant asserts that his “mandatory maximum term of life
confinement is unconstitutionally cruel and unusual, especially in light of his
young age at the time of the offense, his lack of intent to kill, and the
rehabilitation he has demonstrated during his incarceration.” Id. at 17
(citations and footnote omitted). Appellant argues that “[a] mandatory life
maximum for children who did not intend to kill [fails] to provide an
individualized sentence . . . and lack[s] legitimate penological justifications.”
Id.
Initially, we note that “Appellant’s lone appellate issue challenges the
legality of his sentence. Challenges to the legality of a sentence present pure
questions of law; therefore, our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Olds, 192 A.3d 1188, 1192 (Pa.
Super. 2018) (citation and footnote omitted).
In Olds, the defendant, who was fourteen years old at the time of the
crime, was convicted of second-degree murder and sentenced to a mandatory
term of life imprisonment without the possibility of parole in 1980. Olds, 192
A.3d at 1190.
After the United States Supreme Court’s decisions in Miller and
Montgomery, the defendant received a new sentencing hearing in 2016. Id.
The trial court sentenced the defendant to a sentence of twenty years to life
imprisonment. Id. On appeal to this Court, the defendant argued that the
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maximum term of life imprisonment imposed violated the Eighth Amendment
of the United States Constitution. Id. This Court rejected the defendant’s
argument and held that “a mandatory life maximum for a juvenile convicted
of second-degree murder is not cruel and unusual punishment.” Id. at 1191.
In making the determination that a mandatory maximum of life
imprisonment for a juvenile convicted of second-degree murder was not cruel
and unusual, the Olds Court noted that “our Supreme Court’s . . . decision in
Commonwealth v. Batts, [163 A.3d 410 (Pa. 2017) (Batts II)] requires
that an individual convicted of first or second-degree murder for a crime
committed as a minor be sentenced to a maximum term of life imprisonment.”
Id. at 1193 (citing Commonwealth v. Seskey, 170 A.3d 1105, 1105-06 (Pa.
Super. 2017)). In particular, the Court noted that Seskey held that
[f]or those defendants [convicted of first-degree murder prior to
June 25, 2012] for whom the sentencing court determines a
[lifetime sentence without the possibility of parole] is
inappropriate, it is our determination here that they are subject to
a mandatory maximum sentence of life imprisonment as required
by [18 Pa.C.S. §] 1102(a), accompanied by a minimum sentence
determined by the common pleas court upon resentencing[.]
Id. (citing Seskey, 170 A.3d at 1108). The Olds Court concluded:
Seskey implicitly held that there was no reason to follow a
different approach when assessing the constitutionality of section
1102(b). As our Supreme Court did in Batts II with respect to
section 1102(a), we hold that it is not the term of life
imprisonment that makes applying section 1102(b) to juvenile
offenders unconstitutional.
Id. at 1195.
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The Olds Court then addressed the defendant’s cruel and unusual
punishment claim as follows:
Presently, mandatory life maximums for juveniles convicted of
felony murder represent conventional sentencing practices. Our
society deems the taking of a life, either directly or as an
accomplice or co-conspirator, sufficiently grievous as to require
that the defendant not be entitled to release without first going
through the parole process. Accordingly, we hold that the Eighth
Amendment permits imposition of section 1102(b)’s mandatory
maximum term of life imprisonment for juveniles convicted of
second-degree murder . . . . In this case, [the defendant] was
made eligible and received a meaningful opportunity for release
as he was paroled after resentencing. Accordingly, his sentence
does not constitute cruel and unusual punishment.
Id. at 1197-98 (citations omitted).4
Here, the trial court noted that it sentenced Appellant
in conformity with the decision of the Pennsylvania Supreme Court
in Batts [II]. This, as well as the examination of [Appellant’s]
hallmark characteristics, was done at this [t]rial [c]ourt’s
discretion. The case at bar did not involve any circumstances
where the exercises of its discretion would be clearly
unreasonable. Additionally, because of the heinous nature of the
crime itself and the risk to society of another possible victim, this
[t]rial [c]ourt determined that additional incarceration was
appropriate because any lesser sentence would depreciate the
seriousness of the case and the crime. These factors effectively
created an individualized and proportionate sentence in
accordance to the Miller requirements.
Trial Ct. Op., 6/20/18, at 5 (citation omitted).
We agree with the trial court that it imposed a legal sentence, since
Olds controls this matter. As set forth in Olds, a maximum sentence of life
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4 We note that in Olds, the defendant was a participant in a robbery, but did
not actually kill the victim. Olds, 192 A.3d at 1191. Nevertheless, the
reasoning of Olds is equally applicable to a juvenile who kills the victim.
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imprisonment for second-degree murder committed by a juvenile was
required and did not constitute a cruel and unusual punishment. See Olds,
192 A.3d at 1193. Accordingly, we affirm Appellant’s judgment of sentence
of thirty years to life imprisonment with the possibility of parole.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/18
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