Com. v. Bailey, M. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MAURICE BAILEY :
:
Appellant : No. 173 WDA 2018
Appeal from the Judgment of Sentence October 23, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014654-1993
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED JUNE 14, 2019
Maurice Bailey appeals, from the judgment of sentence entered on
October 23, 2017, in the Allegheny County Court of Common Pleas. The trial
court resentenced Bailey to a term of 35 years to life imprisonment for his
1994 conviction of first-degree murder, after he was granted post-conviction
collateral relief pursuant to Montgomery v. Louisiana, 136 S. Ct. 718 (U.S.
2016), from his original sentence of life imprisonment without the possibility
of parole (“LWOP”). On appeal, Bailey challenges the discretionary aspects of
his sentence. For the reasons below, we affirm.
The facts of Bailey’s underlying conviction are not pertinent to our
disposition of his appeal. We briefly note that, on September 24, 1994, a jury
convicted Bailey of stabbing and beating his pregnant, fifteen-year-old
girlfriend to death. Bailey was also fifteen at the time of the offense.
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On April 10, 1995, the court sentenced him to LWOP. This Court
affirmed the judgment of sentence on May 17, 1996, and Bailey did not seek
leave to appeal to the Pennsylvania Supreme Court. See Commonwealth v.
Bailey, 679 A.2d 842 (Pa. Super. 1996) (unpublished memorandum).
Pertinent to the instant appeal, on July 9, 2012, Bailey filed a serial
petition for collateral relief pursuant to the Post Conviction Relief Act
(“PCRA”),1 in which he argued his sentence was illegal pursuant to the United
States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012).2
After the filing of several amended PCRA petitions and several stays, Bailey
filed a motion for resentencing pursuant to Montgomery, supra.3 On April
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1 42 Pa.C.S.A. §§ 9541-9546.
2 The Miller Court held that “mandatory life without parole for those under
the age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments.’” Id. at 465. The Court also
held that a trial court is not foreclosed from imposing a sentence of life
imprisonment without parole on a juvenile; however, before doing so the court
is required to “take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in
prison.” Id. at 480.
In response to Miller, in October of 2012, the Pennsylvania legislature
enacted 18 Pa.C.S.A. § 1102.1. The statute provides that juvenile offenders
convicted of first- or second-degree murder must receive a mandatory
minimum sentence. See 18 Pa.C.S.A. § 1102.1(a), (c). However, the statute
applies only to those “convicted after June 24, 2012.” 18 Pa.C.S.A. §§ (a)(1)
and (c)(1).
3 The Montgomery court held that the Miller decision constituted a new
substantive rule that courts must apply retroactively to cases on collateral
review. Montgomery, supra at 732-737.
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28, 2016, the Commonwealth filed an answer to Bailey’s motion agreeing to
resentencing.
On October 23, 2017, after a lengthy hearing, the trial court resentenced
Bailey as delineated above. On October 25, 2017, the Commonwealth filed a
motion for reconsideration, seeking a sentence of 40 years to life
imprisonment. Bailey filed an answer on October 27, 2017. The trial court
denied the motion on November 3, 2017. The instant, timely appeal followed.4
On appeal, Bailey challenges the discretionary aspects of his sentence
claiming it is unreasonable and excessive, that the trial court failed to place
sufficient reasons on the record to justify the sentence, that the court did not
consider his rehabilitative needs and only focused on the seriousness of the
offense. Bailey’s Brief, at 19-22.
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Our Supreme Court subsequently decided Commonwealth v. Batts, 163
A.3d 410 (Pa. 2017) (Batts II), which addressed the procedural requirements
for sentencing a juvenile homicide defendant in this Commonwealth. See id.
at 459-460 (holding there is presumption against imposition of life without
parole sentence for juvenile murder defendants; Commonwealth must provide
notice of its intent to seek such sentence; Commonwealth must rebut
presumption with proof beyond reasonable doubt that “juvenile offender is
permanently incorrigible and thus is unable to be rehabilitated[;]” and court
must consider the factors announced in Miller and [18 Pa.C.S.A. §]
1102.1(d)” before imposing sentence of life without parole).
4 On March 26, 2018, in response to the trial court’s order, Bailey filed a timely
concise statement of errors complained of on appeal. On February 4, 2019,
the trial court issued an opinion.
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A challenge to the discretionary aspects of a sentence is not absolute,
but rather, “must be considered a petition for permission to appeal.”
Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citation and
internal citation omitted). To reach the merits of such a claim, this Court must
assess:
(1) whether the appeal is timely; (2) whether [the defendant]
preserved [the] issue; (3) whether [the defendant’s] brief includes
a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013). “[I]ssues
challenging the discretionary aspects of a sentence must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.” Commonwealth v. Cartrette, 83 A.3d
1030, 1042 (Pa. Super. 2013) (en banc).
Here, Bailey failed to challenge the discretionary aspects of his sentence
at sentencing or in a timely filed post-sentence motion.5 See Pa.R.Crim.P.
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5 As noted above, Bailey did not file a post-sentence motion; rather he filed
an answer to the Commonwealth’s post-sentence motion. The entire
document is devoted to responding to the Commonwealth’s allegations. See
Answer to Commonwealth’s Motion and Motion to Reduce Sentence, 10/27/17,
at 1-4. Despite the title of the document, there is no motion to reduce
sentence. At most, in the answer, Bailey states, “[w]e are extremely grateful
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720 (A)(1). Therefore, Bailey waived any claims regarding the discretionary
aspects of his sentence on appeal.6
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2019
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for the 35-year minimum but we move this Honorable Court to deny the
Commonwealth’s Motion and/or reduce the minimum to 30 years.” Id. at 4
¶ 29.
6 Even if we were to find that Bailey’s response somehow constituted a post-
sentence motion, his claim would not merit relief. The on-the-record
disclosure requirement does not require the trial court to make “a detailed,
highly technical statement.” Commonwealth v. Hunzer, 868 A.2d 498, 514
(Pa. Super. 2005) (citation omitted), appeal denied, 880 A.2d 1237 (Pa.
2005). Our review of the resentencing hearing transcript demonstrates that
the trial court considered all the evidence before it and adequately explained
the reasons for the sentence imposed. See N.T. Resentencing, 10/23/17, at
170-172. We see nothing in Bailey’s argument that demonstrates that a
sentence of 35 rather than 30 years’ was harsh or unreasonable.
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