Commonwealth v. Felder, M., Aplt.

[J-53-2019] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 18 EAP 2018
:
Appellee : Appeal from the Order of Superior
: Court entered on 12/20/2017 at No.
: 660 EDA 2015 affirming the
v. : Judgment of Sentence entered on
: 10/24/2014 in the Court of Common
: Pleas, Philadelphia County, Criminal
MICHAEL FELDER, : Division at No. CP-51-CR-0014896-
: 2009
Appellant :
: ARGUED: September 11, 2019
CONCURRING OPINION
JUSTICE DONOHUE DECIDED: February 23, 2022
I concur in the opinion of the learned Majority. I agree that Jones v. Mississippi,
141 S. Ct. 1307 (2021), requires that we reject Appellant’s argument that a de facto life
sentence is unconstitutional pursuant to the Eighth Amendment of the United States
Constitution1 and although not argued by the parties, it is necessary that we recognize
that Jones removes the underpinning of our holding in Commonwealth v. Batts, 163 A.3d
410, 417 (Pa. 2017) (“Batts II”), which was predicated on now overruled Eighth
Amendment jurisprudence. I write separately to recognize that this result is limited to
what the Eighth Amendment requires. Today’s decision does not foreclose further
developments in the law as to the legality of juvenile life without parole sentences (or their
1 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. CONST. amend. VIII.
de facto equivalent as alleged here) under the Pennsylvania Constitution nor as to how
appellate courts will review the discretionary aspects of such sentences.
Preliminarily, it is imperative to note that the only issue before the Court is whether
the de facto life sentence was constitutional pursuant to the Eighth Amendment. In Batts
II, we held that the United States Supreme Court’s decisions in Miller v. Alabama, 567
U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016), mandated, among
other things, a presumption against sentencing a juvenile to life without the possibility of
parole which may only be rebutted beyond a reasonable doubt by proof from the
Commonwealth “that the juvenile offender is permanently incorrigible and thus is unable
to be rehabilitated.” Batts II, 163 A.3d at 459. Jones holds that “a separate factual finding
of permanent incorrigibility is not required before a sentencer imposes a life-without-
parole sentence on a murderer under [eighteen].” Jones, 141 S. Ct. at 1318–19. Clearly,
the portions of Batts II relying on an Eighth Amendment mandate of a finding of a
permanent incorrigibility have been abrogated.
However, the Majority’s observation that “without a substantive constitutional
mooring, the procedural protections we adopted in Batts II cannot stand in their current,
judicially-created form” addresses only the constitutional mooring with respect to the
Eighth Amendment.2 It remains an open question whether any or all components of Batts
2 I share Justice Wecht’s observation that Batts II “is a complex, multi-faceted decision,
one that drew authority from numerous sources, establishing a series of procedural
protections for juveniles. Before unilaterally deciding that no aspect of that complicated
decision can remain, I would first consider the informed input of interested parties.”
Dissenting Op. at 8. I depart from Justice Wecht’s dissenting posture only because I find
that affirming the sentence as constitutionally valid under the Eighth Amendment will
channel advocacy towards the open questions identified within this opinion. Also, when
allowance of appeal was granted, it was not improvident.
[J-53-2019] [MO: Dougherty, J.] - 2
II remain in place with respect to the Pennsylvania Constitution’s prohibition of “cruel
punishments.”3 In the predecessor decision to Batts II, we rejected a claim that Article I,
Section 13 provides greater protection than the Eighth Amendment. However, the Batts
I Court analyzed only the specific claim “that a categorical ban on the imposition of life-
without-parole sentences on juvenile offenders is required by Article I, Section 13 of the
Pennsylvania Constitution, which prohibits ‘cruel punishments.’” Commonwealth v. Batts,
66 A.3d 286, 297 (Pa. 2013). The appellant’s primary argument was “that this Court
should expand upon the United States Supreme Court's proportionality approach, not that
it should derive new theoretical distinctions based on differences between the
conceptions of ‘cruel’ and ‘unusual.’” Id. at 298.
Although we rejected the proffered argument, in my view, Batts I does not foreclose
a departure from Jones with respect to the separate question of how a trial court
determines whether a particular juvenile is the rare individual who should be incarcerated
for life with no possibility of parole. Certainly, the Eighth Amendment requires only that
the sentencing judge be given discretion to consider something less than that. “[A] State's
discretionary sentencing system is both constitutionally necessary and constitutionally
sufficient.” Jones, 141 S. Ct. at 1313. Batts I says nothing regarding whether Article I,
Section 13 is so limited.4 See Commonwealth v. Bishop, 217 A.3d 833, 841 n.10 (Pa.
3 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel
punishments inflicted.” PA. CONST. art. I, § 13.
4 In Commonwealth v. Edmunds, this Court rejected the “good faith” exception to the
exclusionary rule as announced in United States v. Leon, 468 U.S. 897 (1984).
Commonwealth v. Edmunds, 586 A.2d 887, 888 (Pa. 1991). We stated that “Leon …
departed from a long history of exclusionary rule jurisprudence,” id. at 892, and described
Leon as a “reinterpretation” that “differs from the way the exclusionary rule has evolved
in Pennsylvania since the decision of Mapp v. Ohio in 1961 and represents a shift in
[J-53-2019] [MO: Dougherty, J.] - 3
2019) (“It would be untenable for a court to decide an important state constitutional
question as a precedential matter in the absence of any argumentation and without any
analytical treatment on its own part of the departure question[.]”). Drawing on Batts I,
there may be a theoretical difference between the “conceptions of ‘cruel’ and ‘unusual’”
for purposes of deciding that life sentences, or de facto life sentences for juveniles, are
indeed unusual. 66 A.3d at 298. Absent directed advocacy on the separate question of
whether the two provisions should be identical for all purposes, I distance myself from
any implication that the issue has been resolved.
Finally, the foregoing discussion only speaks to the constitutionality of Felder’s
sentence. The constitutionality of that sentence opens the door to claims that such
lengthy sentences, while not unconstitutional under the Eighth Amendment, nevertheless
constitute an abuse of the trial court’s discretion. The Jones Court was not concerned
with the question of whether any individual juvenile’s sentence was appropriate. Indeed,
the Court explicitly suggested that further development in that arena is left to the States.
Importantly, like Miller and Montgomery, our holding today
does not preclude the States from imposing additional
sentencing limits in cases involving defendants under
[eighteen] convicted of murder. States may categorically
prohibit life without parole for all offenders under [eighteen].
Or States may require sentencers to make extra factual
findings before sentencing an offender under [eighteen] to life
without parole. Or States may direct sentencers to formally
explain on the record why a life-without-parole sentence is
judicial philosophy from the decisions of the United States Supreme Court dating back
to Weeks v. United States.” Id. at 897. Presently, the Majority cites the “blistering dissent”
filed in Jones by Justice Sotomayor and joined by Justices Breyer and Kagan, which
“forcefully argued the Court was retreating from Montgomery’s reading of Miller.” Majority
Op. at 16 n.12. Those criticisms do not impact the Jones Court’s holding. But the logical
force of those arguments arguably matters a great deal insofar as the Jones Court’s
analysis of the United States Constitution is a factor in deciding whether this Court will
follow when interpreting analogous provisions in the Pennsylvania Constitution.
[J-53-2019] [MO: Dougherty, J.] - 4
appropriate notwithstanding the defendant's youth. States
may also establish rigorous proportionality or other
substantive appellate review of life-without-parole sentences.
All of those options, and others, remain available to the
States.
141 S. Ct. at 1323.
While the discretionary aspects of Felder’s sentence are not at issue, I note that in
Batts I then-Justice, now Chief Justice, Baer authored a concurring opinion highlighting
the General Assembly’s legislative response to Miller.
I write separately to note my belief that, for purposes of
uniformity in sentencing, it would be appropriate for trial courts
engaging in the task of resentencing under this circumstance
to seek guidance in determining a defendant's sentence and
setting a minimum term from the General Assembly's timely
recent enactment in response to the U.S. Supreme Court's
decision in Miller.
***
If trial courts fail to take guidance from the recent legislative
enactments, the minimum sentence imposed on any given
juvenile before becoming eligible for parole could vary widely.
One court could immediately parole an 18 year old offender,
while another court could impose a 50 year minimum
sentence on a 14 year old offender. While discretionary
sentencing is a valid trial court function and Miller specifies
that individual circumstances should be considered by judges
sentencing juvenile murder offenders, given that the
legislature is the policy-making body for our Commonwealth
and has quickly responded to Miller indicating the minimum
sentences it views as appropriate for different aged juvenile
homicide offenders, I believe courts engaging in resentencing
necessitated by the Miller decision, should look to the newly
enacted statute for guidance without abrogating their
discretion as appropriate in individualized cases
Batts I, 66 A.3d at 300 (Baer, J., concurring).
These observations may well impact not only how appellate courts review the
discretionary aspects of these purported de facto life sentences, but also the
constitutionality of those sentences under Article I, Section 13. In Batts I, we
[J-53-2019] [MO: Dougherty, J.] - 5
acknowledged that the appellant argued that the trend of the high Court, as reflected in
cases like Miller, was to “view[] juveniles as a category as less culpable than adults[.]”
We responded that the appellant “does not acknowledge that there has been no
concomitant movement in this Court or in the Pennsylvania Legislature away from
considering murder to be a particularly heinous offense, even when committed by a
juvenile.” 66 A.3d at 299. However, our General Assembly has spoken and the legislative
response to Miller is now even more relevant because, after Jones, the statute could
simply have been eliminated. Thus, its continued existence reflects an acknowledgement
by the General Assembly that juveniles should be treated differently. That policy
judgment may well be relevant to analyses of both the legality and discretionary aspects
of those sentences.
Justice Todd joins this concurring opinion.
Former Justice Saylor did not participate in the decision of this matter.
[J-53-2019] [MO: Dougherty, J.] - 6