Com. v. Jones, S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
STEVEN JONES JR.
Appellant No. 3495 EDA 2018
Appeal from the Judgment of Sentence Entered October 17, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0001881-2002
BEFORE: OLSON, J., STABILE, J. AND NICHOLS, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 28, 2020
Appellant, Steven Jones, Jr., appeals from his judgment of sentence of
thirty years to life in prison for second-degree murder,1 a crime committed in
2002, while he was a juvenile. Appellant argues that the sentencing court
failed to consider Appellant’s youth, mental development and potential for
rehabilitation at the time of sentencing. We affirm.
The sentencing court summarized the evidence adduced during
Appellant’s trial as follows:
At about 9:15 p.m. on Sunday, April 20, 2002, [Appellant] and
three others, Kareem Strickland, Brandon Cobb and Fareed
Nelson, were together, standing outside of “Showell’s Seafood
Store” on Ninth Street in Chester. The victim, Feras Cheikho,
drove his Jack & Jill truck up the street. Strickland flagged down
the truck and asked his companions if they wanted to “snatch
some ice cream.” The truck stopped and the four actors
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1 18 Pa.C.S.A. § 2502(b).
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approached. The actors engaged Cheikho, asking for ice cream.
Cheikho asked for money. The interaction continued and
[Appellant] asked Fareed Nelson whether he had a gun on him.
Nelson handed [Appellant] a .25 caliber semi-automatic gun and
[Appellant] put it in the pocket of his hoodie. [Appellant] said,
“I’m about to get him.”
The interaction continued with the actors asking for ice cream and
Cheikho asking for money in exchange. [Appellant] pulled the gun
from the pocket of his hoodie sweatshirt and demanded money
from Cheikho, saying, “give up the fucking money. I ain’t playing
with you. This ain’t no game.” [Appellant] and Strickland
continued to threaten Cheikho with [Appellant] pointing the gun
at him. After claiming that he had no money, Cheikho capitulated
and handed over a cardboard box that was filled with dollar bills.
Strickland and [Appellant] demanded more money. [Appellant]
was holding the gun inside the truck window. He was directing
Cheikho with the gun, jerking the gun toward him. Cheikho
retrieved more cash from a black book bag in the truck and placed
it in the cardboard box. Strickland took the money and
[Appellant] continued to demand more. Strickland demanded ice
cream. Cheikho turned, returning the book bag to the back of the
truck, and [Appellant] shot him. Cheikho screamed and the four
actors ran.
The bullet entered Cheikho’s back and travelled through his left
kidney, through his pancreas, stomach, small intestine, liver and
into his abdominal wall. The gunshot wound caused his death. A
firearms expert called by the Commonwealth testified. He
examined the murder weapon and conducted “shock and drop
tests” and opined, inter alia, that the weapon’s trigger pull
required six pounds of pressure to discharge, and that a bullet
would discharge only if the trigger was pulled.
After the robbery, the actors shared the proceeds and hid the gun.
The gun was found along with a second firearm secreted in the
wall of an abandoned house. It was loaded with four live rounds
of ammunition. [Appellant] was taken into custody on April 25,
2002. In the presence of his parents, he gave a statement which
was read into the record at trial. [Appellant] stated that he came
upon Strickland, Cobb and Nelson as they stood by the ice cream
truck interacting with Cheikho. Strickland asked him to hold the
gun and he took it. Strickland then demanded money from
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Cheikho and “grabbed [Appellant’s] arm and [his] arm went in the
truck with the gun still in [his] hands.” He admitted that the gun
was in his hand and in the truck during the robbery but claimed
that he did not point it at Cheikho. Rather, as Strickland
demanded money from Cheikho, he lifted [Appellant]’s forearm
up and said, “What you think I’m playing?” The gun went off
“accidentally” and the four actors took off running. [Appellant]
stated that he dropped the gun in the truck and that Strickland
retrieved it and hid it.
Trial Court Opinion, 1/4/19, at 2-4 (with minor stylistic revisions). Appellant
was sixteen years old on the date of the shooting.
Appellant was tried together with Strickland, and on January 10, 2003,
Appellant was convicted of second-degree murder and robbery. On March 13,
2003, Appellant received the mandatory sentence of life confinement without
the possibility of parole (“LWOP”) for second-degree murder. In 2004, this
Court affirmed Appellant’s conviction on direct appeal in 2004.
On October 14, 2014, Appellant filed a PCRA petition challenging the
constitutionality of his LWOP sentence based upon the United States Supreme
Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), that mandatory
life sentences for juveniles were unconstitutional. The trial court dismissed
Appellant’s PCRA petition, and this Court affirmed. Appellant filed a petition
for allowance of appeal with our Supreme Court. On February 12, 2016, the
Court held:
the Petition for Allowance of Appeal is GRANTED on the issue of
whether [Appellant’s] sentence violates the prohibition against
mandatory life sentences for juvenile offenders announced by the
Supreme Court of the United States in Miller . . . As a result of
the recent holding by that Court that Miller must be applied
retroactively by the States, see Montgomery v. Louisiana, –––
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U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the Superior
Court’s order is VACATED, and the case is REMANDED for further
proceedings consistent with Montgomery.
Commonwealth v. Jones, 131 A.3d 487 (Pa. 2016).
On September 27 and October 4, 2018, the sentencing court held
sentencing hearings. On October 17, 2018, the court resentenced Appellant
to thirty years to life confinement on his conviction for second-degree murder
committed when he was a juvenile. The court stated:
[T]he [c]ourt believes that [Appellant] has in fact shown genuine
remorse for the tragic event in question. This does not however
change the fact that a young man who had immigrated to this
country in search of the American Dream was senselessly
murdered in a very cruel and callous fashion. There was
absolutely no justification or reason for the shooting in question.
Cheikho did not in any way resist or attempt to confront the
cowards who set out to rob him on this particular day.
Unfortunately bullets do not come with erasers. Counsel has
talked at some length about the lenient sentences of the co-
defendants. However it was [Appellant], and [Appellant] alone
that pulled the trigger that ended the life of a bright, hardworking
and decent young man who was only 27 years of age at the time.
The Court has considered the testimony that was presented during
this matter by both the Commonwealth and the defense. Along
with the extensive exhibits including but not limited to the expert
reports. I have prepared a comprehensive order I would
summarize is the basis of my decision in this matter.
N.T., 10/17/18, at 3-4. On the same date, the court entered a sixteen-page
order into the record that explained its reasoning.
Appellant timely filed a post-sentence motion asserting that the court
failed to consider several mandatory sentencing factors. On October 31,
2018, the sentencing court denied this motion. On November 30, 2018,
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Appellant filed a timely notice of appeal.2 Both Appellant and the sentencing
court complied with Pa.R.A.P. 1925.
Appellant raises three issues in this appeal:
1. Did the sentencing court abuse its discretion in failing to
consider all of the factors of youth, mental development, and
potential for rehabilitation as required under Miller and
[Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts
II”)], when resentencing [Appellant] to thirty years to life
confinement for second-degree murder committed when he was a
juvenile?
2. Did the sentencing court abuse its discretion in improperly
relying upon the minimum sentence set forth in 42 Pa.C.S.[A.] §
1102.1?
3. Did the sentencing court err in resentencing [Appellant] for
second-degree murder committed when he was a juvenile without
reviewing on the record at sentencing the factors required under
Miller?
Appellant’s Brief at 3.
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2Appellant’s notice of appeal is time-stamped December 3, 2018, several days
after expiration of the appeal deadline. As a result, this Court ordered
Appellant to show cause why his appeal should not be quashed as untimely.
In response, counsel for Appellant asserted that she mailed the notice of
appeal on November 28, 2018 via UPS, and that the court received the notice
of appeal on November 30, 2018, within the thirty day deadline for appealing.
Counsel attached a cover letter indicating the date of mailing on November
28, 2018 and a UPS tracking slip that confirmed the court received the notice
on November 30, 2018. Therefore, the notice of appeal was timely filed on
November 30, 2018. Cf. Cogley v. Duncan, 32 A.3d 1288, 1293 (Pa. Super.
2011) (document is filed when it arrives at prothonotary’s office, regardless
of the date the document is time-stamped).
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These arguments relate to the discretionary aspect of Appellant’s
sentence. Where an appellant challenges the discretionary aspect of a
sentence, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence [pursuant to Rule
of Appellant Procedure 2119(f), Pa.R.A.P. 2119(f); and (4)
whether the concise statement raises a substantial question that
the sentence is [not] appropriate under the [S]entencing [C]ode.
Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018).
Appellant satisfies these standards. His appeal is timely, he preserved these
issues in a post-sentence motion, his brief includes a Rule 2119(f) statement
of the reasons relied upon for allowance of appeal, and his concise statement
raises a substantial question, namely whether the court failed to consider all
relevant sentencing factors articulated by the United States Supreme Court in
Miller and by our Supreme Court in Batts II. See Commonwealth v.
Brown, 71 A.3d 1009, 1017 (Pa. Super. 2013) (where sentencing court did
not apply Miller when sentencing juvenile defendant to LWOP for second-
degree murder, judgment of sentence vacated and case remanded for
resentencing under Miller).
Appellant first argues that the sentencing court failed to consider all
factors required under Miller and Batts II before resentencing Appellant. The
court was not required to consider the Miller and Batts II factors because
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the Commonwealth did not seek, and the court did not impose, an LWOP
sentence.
Recently, this Court held that sentencing courts need only consider the
Miller factors when the court has the authority to impose an LWOP sentence
and the Commonwealth requests an LWOP sentence. Where “the
Commonwealth [does] not seek, and the sentencing court [does] not impose,
[an LWOP] sentence, there [is] no error by the sentencing court in failing to
consider the Miller factors.” Commonwealth v. Lekka, 210 A.3d 343, 357
(Pa. Super. 2019) (citing Commonwealth v. White, 193 A.3d 977, 983 (Pa.
Super. 2018)).
Here, the Commonwealth did not seek an LWOP sentence. It did not
provide notice before sentencing of intent to seek an LWOP sentence, and it
recommended a sentence of 41 years to life imprisonment in its sentencing
memorandum and at sentencing. N.T., 9/27/18, at 200, 211. Thus, the
sentencing court had no duty to consider Miller factors at sentencing.
Appellant relies on two decisions for the proposition that the sentencing
court must consider Miller factors: Commonwealth v. Brown, 71 A.3d 1009(Pa. Super. 2013), and Commonwealth v. Hicks, 151 A.3d 216 (Pa. Super.
2016). Neither case is on point. The defendant in Brown received an LWOP
sentence before the Supreme Court decided Miller. We remanded for
resentencing under Miller, but the defendant remained subject to a potential
LWOP sentence. The trial court in Hicks sentenced the defendant to 35 years
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to life imprisonment under Section 1102. Because Section 1102.1 was not in
effect at the time of the defendant’s crime, we remanded for resentencing “in
accordance with Miller.” Id., 151 A.3d at 230. This was understandable,
since it was theoretically possible that the defendant could receive an LWOP
sentence on remand. Here, unlike in Brown and Hicks, Appellant was not
subject to LWOP because the Commonwealth did not request it, rendering
Miller inapposite.
Even if Miller were to apply, we still would affirm Appellant’s sentence.
The United States Supreme Court held in Miller that “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without possibility of
parole for juvenile offenders.” Id. at 479. Montgomery held that Miller
applied retroactively to cases on collateral review such as the present case.
Id., 136 S.Ct. at 732.
Shortly after Miller, our legislature enacted 18 Pa.C.S.A. § 1102.1 to
prescribe the sentences to be imposed upon juveniles who are convicted of
first- or second-degree murder on or after June 25, 2012, the date of Miller’s
issuance. Section 1102.1 provides that a juvenile offender convicted of
second-degree murder who was less than 18 years old but at least 15 years
old at the time of the offense shall be sentenced to a minimum of thirty years’
imprisonment and a maximum of life imprisonment, while an offender who
was under fifteen years old shall be sentenced to a minimum of 20 years’
imprisonment and a maximum of life imprisonment. 18 Pa.C.S.A. §
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1102.1(c). Section 1102.1 permits the court to impose a minimum sentence
greater than provided in the statute. 18 Pa.C.S.A. § 1102.1(e). The statute
also sets forth a separate set of factors that the court must consider when
determining whether to sentence a juvenile offender to LWOP, including age-
related characteristics such as the defendant’s mental capacity, maturity and
degree of criminal sophistication. 18 Pa.C.S.A. § 1102.1(d).
In Batts II, our Supreme Court held that to obtain an LWOP sentence
when resentencing a juvenile offender in Pennsylvania, the Commonwealth
must: (1) provide reasonable notice to the defendant before the sentencing
hearing of its intent to seek a life sentence; and (2) overcome the presumption
against the imposition of an LWOP sentence by proving beyond a reasonable
doubt that the juvenile “forever will be a danger to society” and “exhibits such
irretrievable depravity that rehabilitation is impossible.” Id., 163 A.3d at 455.
Further, Batts II “devise[d] a procedure for the implementation of the Miller
and Montgomery decisions in Pennsylvania.” Id. at 451. Batts II directed
that in order for an LWOP sentence to be valid, “the sentencing court’s decision
must take into account the factors announced in Miller and section 1102.1(d)
of the Crimes Code.”3 Id. at 459. Batts II identified the Miller factors as,
at a minimum,
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3 See also Commonwealth v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019)
(“trial courts must consider, on the record, the Miller factors and Section
1102.1 criteria, in all cases where a juvenile is exposed to a sentence of life
without parole”).
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[the] juvenile’s age at the time of the offense, his diminished
culpability and capacity for change, the circumstances of the
crime, the extent of his participation in the crime, his family, home
and neighborhood environment, his emotional maturity and
development, the extent that familial and/or peer pressure may
have affected him, his past exposure to violence, his drug and
alcohol history, his ability to deal with the police, his capacity to
assist his attorney, his mental health history, and his potential for
rehabilitation.
Id. at 421 fn. 5.
The record demonstrates that the sentencing court considered the
Miller factors, including: Appellant’s age at the time of the offense
(Sentencing Order, 10/17/18, ¶ 17; Opinion at 12); his diminished culpability
and capacity for change and rehabilitation (Order, ¶¶ 18, 33-34; Opinion at
12-13, 14-15); the circumstances of the crime (Order, ¶¶ 2-7, 12; Opinion at
15); the extent of Appellant’s participation in the crime and the extent that
peer pressure may have affected him (Order, ¶¶ 2-3, 6-7; Opinion at 12); his
family, home and neighborhood environment (Order, ¶¶ 21-28); and his
emotional maturity and development, mental health history, drug and alcohol
history, and potential for rehabilitation (Order, ¶¶ 19, 29-30, 35-41; Opinion
at 12-13). Although Appellant might be disappointed that the court did not
place more weight on these factors, the weighing process is exclusively for
the sentencing court, and we, as an appellate court, may not reweigh
sentencing factors and substitute our own judgment of the proper sentence.
Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa. Super. 2012).
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In his next argument, Appellant asserts that the sentencing court erred
by basing his sentence on the mandatory minimum prescribed under Section
1102.1(c). Appellant states that the court was free to impose a sentence
shorter than the thirty year minimum provided in Section 1102.1(c), because
Appellant’s crime took place before its effective date (June 24, 2012).
Nevertheless, Appellant continues, “[t]here is no indication that the court
considered the possibility of deviating downwards to reflect [Appellant’s]
intellectual disability, which, along with his youth, diminished his culpability.”
Appellant’s Brief at 26-27. We disagree.
The sentencing court’s opinion establishes that it was fully aware that it
could impose a sentence beneath Section 1102.1(c)’s parameters, but it
determined that a shorter sentence was not appropriate after full and fair
examination of all relevant factors. The court wrote:
Although Section 1102.1 is not applicable and a mandatory
minimum sentence was not imposed[,] it bears noting that the
Legislature has established a mandatory minimum sentence of
thirty years when a defendant who is sixteen years old commits
second degree murder. An individualized sentence was imposed
in this case after consideration of all of the evidence offered at
and in anticipation of sentencing. Evidence offered by [Appellant]
regarding his mental deficiencies and his level of cognitive
maturity and the time the murder occurred was considered by the
Court. For this reason, the sentence imposed falls at the very
bottom of the advisory parameters set by Section 1102.1 and the
Sentencing Guidelines.
Trial Court Opinion, 1/4/19, at 18-19. We conclude that this was an
appropriate exercise of the court’s discretion, since it is not our role to reweigh
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sentencing factors or substitute our own judgment of the proper sentence.
Bricker, 41 A.3d at 876.
Finally, Appellant argues that the court failed to make findings on the
record concerning the Miller factors during Appellant’s sentencing hearing.
This argument fails for two reasons. First, on-the-record findings concerning
the Miller factors are not necessary unless a juvenile defendant is exposed to
an LWOP sentence. Machicote, 206 A.3d at 1120. Appellant was not
exposed to an LWOP sentence because the Commonwealth did not seek this
sentence. Thus, no on-the-record findings were necessary. Id. Second, in
any event, the court effectively made on-the-record findings during
Appellant’s final hearing by referring the parties to its sentencing order, N.T.,
10/17/18, at 4, which in turn discussed the Miller factors.
For these reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/20
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