Commonwealth v. Batts, Q., Aplt.

[J-118-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 45 MAP 2016
:
Appellee : Appeal from the Order of the Superior
: Court dated September 4, 2015,
: reconsideration denied November 10,
v. : 2015, at No. 1764 EDA 2014 Affirming
: the Judgment of Sentence of the
: Northampton County Court of Common
QU'EED BATTS, : Pleas, Criminal Division, dated May 2,
: 2014 at No. CP-48-CR-0001215-2006
Appellant :
: ARGUED: December 7, 2016
OPINION
JUSTICE DONOHUE DECIDED: June 26, 2017
Qu’eed Batts (“Batts”) was convicted of a first-degree murder that he committed
when he was fourteen years old. His case returns for the second time on discretionary
review for this Court to determine whether the sentencing court imposed an illegal
sentence when it resentenced him to life in prison without the possibility of parole. After
careful review, we conclude, based on the findings made by the sentencing court and
the evidence upon which it relied, that the sentence is illegal in light of Miller v.
Alabama, 567 U.S. 460 (2012) (holding that a mandatory sentence of life in prison
without the possibility of parole, imposed upon a juvenile without consideration of the
defendant’s age and the attendant characteristics of youth, is prohibited under the
Eighth Amendment to the United States Constitution), and Montgomery v. Louisiana,
136 S. Ct. 718 (2016) (holding that the Miller decision announced a new substantive rule
of constitutional law that applies retroactively and clarifying the limited circumstances in
which a life-without-parole sentence is permissible for a crime committed when the
defendant was a juvenile).
Pursuant to our grant of allowance of appeal, we further conclude that to
effectuate the mandate of Miller and Montgomery, procedural safeguards are required
to ensure that life-without-parole sentences are meted out only to “the rarest of juvenile
offenders” whose crimes reflect “permanent incorrigibility,” “irreparable corruption” and
“irretrievable depravity,” as required by Miller and Montgomery. Thus, as fully
developed in this Opinion, we recognize a presumption against the imposition of a
sentence of life without parole for a juvenile offender. To rebut the presumption, the
Commonwealth bears the burden of proving, beyond a reasonable doubt, that the
juvenile offender is incapable of rehabilitation.
I. Facts
Although this Court generally does not provide an exhaustive recitation of an
offender’s history prior to the commission of the crime, as we explain in greater detail
later in this Opinion, Miller requires the sentencing court to consider the details of a
juvenile offender’s background when determining if he or she is eligible for a sentence
of life without parole. As such, we provide a lengthy account of Batts’ life preceding his
commission of the murder, based largely on the findings of fact made by the
resentencing court that are supported by the record.
Batts was born prematurely on April 18, 1991 to a thirteen-year-old mother and
seventeen-year-old father. A victim of his mother’s neglect, Batts was shuffled around
[J-118-2016] - 2
the foster care system from ages five through twelve. During that timeframe, he lived in
eleven homes (as well as a homeless shelter for youth) located in nine cities and two
states, and transferred schools eleven times (although there were stretches of several
months that, because of his transiency, Batts did not attend school at all). He was
exposed to physical violence by foster parents, subjected to physical violence by his
peers, and on one occasion, was victimized sexually by an older cousin. At age eleven,
while in the homeless shelter, he lost his virginity to a thirteen-year-old female resident.
He frequently got into fights at school because children would tease him about his
circumstances. Through it all, however, Batts performed well academically and excelled
in several sports.
At some point during his childhood, Batts developed a relationship with his father,
who was in and out of jail during Batts’ formative years. That relationship abruptly
ended, though, when Batts was eight, as his father was sentenced to twelve years of
incarceration on federal drug charges and no visitation was provided. Around that same
time, Batts briefly returned to the care of his mother, but he was removed again when
she struck him in front of school officials and said she no longer wanted him.
According to Batts, he struggled with feelings of abandonment and rejection
because of his familial circumstances. He desired only to live with his mother, but she
failed to comply with the requirements for reunification established by the county
agency. It was only once Batts’ paternal grandfather, who had been his caregiver on
and off over the years, expressed a desire to adopt him that Batts’ mother finally
completed the tasks required for her to regain custody of her son.
[J-118-2016] - 3
At the age of twelve, Batts returned to his mother’s care in Phillipsburg, New
Jersey. They resided in an apartment with his mother’s boyfriend, Batts’ younger sister,
and eventually, a baby brother. Batts reportedly bonded with his mother and her
boyfriend and was happy to be home. He attended Phillipsburg Middle School in the
seventh grade, where he played football, but he began to decline academically and was
suspended several times for fighting.
He became sexually active in the seventh and eighth grades, began drinking
alcohol and experimented with smoking marijuana. It was at this time that he met
Jerome Evans, an older teen who was a member of the Bloods gang. He told Batts that
the gang was a family group that took care of each other, which Batts found enticing.
Batts began associating with the gang when he was in middle school and sold drugs for
them.
Batts and his family relocated across the river to Easton, Pennsylvania, but he
continued to attend school in Phillipsburg, where he played basketball and football. In
late December or early January of his ninth grade year, Batts was initiated into the
Bloods by getting “jumped in” ‒ a ritual that required him to fight five different gang
members for thirty-six seconds each.
Batts’ grades plummeted, prompting his mother to withdraw him from basketball.
He argued with his mother about his failure to do his school work and began skipping
school. On February 2, 2006, Batts went out in the evening and did not return home
until 2:00 a.m. When he arrived home, his mother was angry and struck him. As a
result, at the age of fourteen, Batts packed his clothes, left for school the morning of
[J-118-2016] - 4
February 3 and never returned home. He stayed at his girlfriend’s house and in the
homes of other friends in both Easton and Phillipsburg. He stopped attending school.
On the night of February 7, 2006, Batts was in a vehicle with several members of
the Bloods gang. Vernon Bradley, a senior member of the Bloods to whom Batts had
recently been “assigned,” was in the car talking about his desire to rob and kill
someone. Bradley directed the driver of the vehicle to the 700 block of Spring Garden
Street in Easton, Pennsylvania, where he saw Clarence Edwards and Corey Hilario
outside. In the preceding days, Bradley told Batts on several occasions that he was
going to kill Edwards. Batts was aware that Bradley had previously killed three other
people.
Bradley instructed the driver to stop the vehicle. He asked Batts and the two
other young teenagers in the back of the car who was going to put in “work.” None of
the passengers responded. The record reflects that Bradley then turned to Batts,
handed him a gun and a mask, and told him to put on a glove and “put work in.” Upon
receiving that directive, Batts exited the car, walked up to the house and shot Clarence
Edwards twice in the head, killing him, and shot Corey Hilario once in the back as
Hilario fled into the house, causing him serious bodily injury. Edwards and Hilario were
sixteen and eighteen years old, respectively. At the time of the shooting, Batts did not
know either victim.
When Batts returned to the car, he gave the gun back to Bradley. Although Batts
indicated that he felt nothing at the time he pulled the trigger, immediately after the
shooting he stated that he regretted what he had done and was scared. Bradley stated
that he was pleased with the “work” Batts had done, and thereafter, Batts was promoted
[J-118-2016] - 5
to a higher rank within the Bloods. According to Batts’ statement to police and his
testimony at trial, he participated in the shooting because he was afraid that if he did not
comply with Bradley’s demands, Bradley would kill him.
Batts spent the night at Bradley’s house and the following day, went to
Phillipsburg, New Jersey. On February 10, 2006, police located Batts at a house there.
Batts initially attempted to shield his identity from the police, but he was ultimately
arrested and brought in for an interrogation, for which his mother and stepfather were
present. He waived his Miranda rights and after two attempts to disclaim his
involvement in the shooting, Batts confessed.
II. Procedural History
The Commonwealth charged Batts with criminal homicide, attempted criminal
homicide, aggravated assault, and two counts of criminal conspiracy.1 As we explained
in our prior consideration of this case, despite his age, the homicide charge removed
the matter from the jurisdiction of the juvenile court and required Batts’ case to be filed
in adult criminal court. See Commonwealth v. Batts, 66 A.3d 286, 288 (Pa. 2013)
(“Batts I”); 42 Pa.C.S. § 6302 (excepting murder from the definition of a delinquent act).
Batts filed, inter alia, a pretrial motion requesting the transfer of his case to juvenile
court. The trial court held a hearing on Batts’ motion on January 29 and 30, 2007. In
support of his motion, Batts presented the expert testimony and written report of
forensic psychologist Dr. Allan M. Tepper; the Commonwealth countered with expert
testimony and reports from forensic psychologist Dr. Steven Samuel and forensic
psychiatrist Dr. Timothy Michals. Both sides also presented lay testimony.
1
18 Pa.C.S. §§ 2501(a), 901(a), 2702(a)(1), 903(a)(2).
[J-118-2016] - 6
After considering the evidence presented, the trial court concluded that Batts
failed to satisfy his burden of proving by a preponderance of the evidence that the public
interest would be served by decertifying the matter to juvenile court. See 42 Pa.C.S. §
6322(a). In its consideration of the statutorily required factors,2 the trial court found that
the crime was “horrendous” and negatively impacted the community; that Batts
constituted a “severe threat to the public” and was “‘streetwise,’ with ‘a well-developed
criminal mentality and the degree of maturity necessary to commit audacious criminal
2
In determining whether transferring the case to the juvenile court would serve the
public interest, the sentencing court was required to consider:
(A) the impact of the offense on the victim or victims;
(B) the impact of the offense on the community;
(C) the threat to the safety of the public or any individual
posed by the child;
(D) the nature and circumstances of the offense allegedly
committed by the child;
(E) the degree of the child’s culpability;
(F) the adequacy and duration of dispositional alternatives
available under this chapter and in the adult criminal justice
system; and
(G) whether the child is amenable to treatment, supervision
or rehabilitation as a juvenile by considering the following
factors:
(I) age;
(II) mental capacity;
(III) maturity;
(IV) the degree of criminal sophistication exhibited by the
child;
(V) previous records, if any;
(VI) the nature and extent of any prior delinquent history,
including the success or failure of any previous attempts
by the juvenile court to rehabilitate the child;
(VII) whether the child can be rehabilitated prior to the
expiration of the juvenile court jurisdiction;
(VIII) probation or institutional reports, if any;
(IX) any other relevant factors[.]
42 Pa.C.S. § 6355(a)(4)(iii); see 42 Pa.C.S. § 6322(a).
[J-118-2016] - 7
acts.’” Batts I, 66 A.3d at 288-89 (quoting Trial Court Order, 2/21/2007, at 5-6). The
trial court rejected Dr. Tepper’s conclusion that Batts could be rehabilitated by the age
of twenty-one (the age at which the jurisdiction of the juvenile court terminates, see 42
Pa.C.S. § 6302 (defining “child”); Pa.R.J.C.P. 630), instead crediting the conclusion
shared by the Commonwealth’s experts “that rehabilitation, if it ever occurs, will occur
only after years of treatment and a willingness on the part of Mr. Batts to seek treatment
and rehabilitation, something that their clinical evaluations indicate Mr. Batts is not
ready to accept.” Trial Court Order, 2/21/2007, at 6.
The case proceeded to a jury trial before the Honorable William F. Moran in the
Northampton County Court of Common Pleas. Batts advanced a defense of duress
based upon his fear that Bradley would kill him if he did not comply with his orders. On
July 31, 2007, following a six day trial, the jury convicted Batts of first-degree murder,3
attempted murder and aggravated assault. On October 22, 2007, the sentencing court
imposed the then-mandatory term of life in prison without the possibility of parole for his
first-degree murder conviction, see 18 Pa.C.S. § 1102(a) (amended effective Dec. 16,
2008 and Oct. 25, 2012), and a concurrent sentence of six to twenty years of
incarceration for attempted murder (into which his aggravated assault conviction
merged for sentencing purposes).
A. First Superior Court Appeal
Following the denial of post-sentence motions, Batts appealed the decision to the
Superior Court raising, in relevant part, a challenge to the constitutionality of a life-
without-parole sentence imposed upon a juvenile in light of the United States Supreme
3
18 Pa.C.S. § 2502(a).
[J-118-2016] - 8
Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth
Amendment to the United States Constitution prohibits the imposition of the death
penalty for a crime committed by a juvenile). The Superior Court affirmed Batts’
judgment of sentence in an unpublished memorandum, concluding that because Batts
was not sentenced to death, Roper was inapplicable. It further found that his
constitutional challenge to the mandatory nature of his life-without-parole sentence was
meritless. See Commonwealth v. Batts, 766 EDA 2008, 12-16 (Pa. Super. April 7,
2009) (unpublished memorandum).
B. Batts I
This Court granted allowance of appeal but held the matter pending the decision
of the United States Supreme Court in Graham v. Florida, 129 S. Ct. 2157 (2009),
decided, 560 U.S. 48 (2010), and Sullivan v. Florida, 129 S. Ct. 2157 (2009), writ of
certiorari dismissed as improvidently granted, 560 U.S. 181 (2010). Subsequent to the
decision in Graham, Batts’ case was argued before this Court, following which we
withheld decision pending the disposition of Miller v. Alabama, 565 U.S. 1013 (2011)
(per curiam), and Jackson v. Hobbs, 565 U.S. 1013 (2011) (per curiam), decided
together, 567 U.S. 460 (2012). Batts I was the first post-Miller decision from this Court
addressing the sentencing of a juvenile offender convicted of first-degree murder. We
therefore requested supplemental briefs and argument from the parties addressing the
appropriate remedy and availability of relief for Batts and those similarly situated. See
Batts I, 66 A.3d at 293 (citing Commonwealth v. Batts, 79 MAP 2009, July 9, 2012
Order (per curiam)).
[J-118-2016] - 9
In the interim, the Pennsylvania General Assembly responded to Miller by
enacting a new sentencing statute for juveniles convicted of first- and second-degree
murder after June 24, 2012.4 See 18 Pa.C.S. § 1102.1(a), (c). As it relates to first-
degree murder, section 1102.1 requires defendants who were under the age of fifteen at
the time of the offense to be sentenced, at a minimum, to twenty-five years to life in
prison, or to a term of life in prison without the possibility of parole. 18 Pa.C.S. §
1102.1(a)(2), (e). Offenders who committed first-degree murder when they were
between the ages of fifteen and eighteen must be sentenced, pursuant to the statute, to
a minimum of thirty-five years to life in prison, or to a term of life in prison without the
possibility of parole. 18 Pa.C.S. § 1102.1(a)(1), (e). If the Commonwealth intends to
seek a sentence of life without the possibility of parole, it must provide reasonable
notice to the defendant following his or her conviction, prior to sentencing. 18 Pa.C.S. §
1102.1(b). In making its determination of whether to sentence a defendant to life in
prison without parole under subsection (a), the sentencing court is required to consider
and make findings on the record related to the following factors:
(1) The impact of the offense on each victim, including
oral and written victim impact statements made or
submitted by family members of the victim detailing the
physical, psychological and economic effects of the crime
on the victim and the victim's family. A victim impact
4
The United States Supreme Court issued its decision in Miller on June 25, 2012. We
perceive the Legislature’s choice of date to be based upon its belief that the holding of
Miller would only apply prospectively. Its limitation of the statute to juveniles “convicted”
after June 24, 2012, however, is inconsistent with the concept of prospectivity as
applied to judicial determinations. Under conventional jurisprudence, individuals whose
judgments of sentence were not yet final on the date of the Miller decision (i.e., those
with cases still pending on direct appeal), such as Batts, would have been entitled to
benefit from its holding. See Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007).
[J-118-2016] - 10
statement may include comment on the sentence of the
defendant.
(2) The impact of the offense on the community.
(3) The threat to the safety of the public or any individual
posed by the defendant.
(4) The nature and circumstances of the offense
committed by the defendant.
(5) The degree of the defendant’s culpability.
(6) Guidelines for sentencing and resentencing adopted
by the Pennsylvania Commission on Sentencing.
(7) Age-related characteristics of the defendant,
including:
(i) Age.
(ii) Mental capacity.
(iii) Maturity.
(iv) The degree of criminal sophistication exhibited by
the defendant.
(v) The nature and extent of any prior delinquent or
criminal history, including the success or failure of any
previous attempts by the court to rehabilitate the
defendant.
(vi) Probation or institutional reports.
(vii) Other relevant factors.
18 Pa.C.S. § 1102.1(d).
In rendering our decision in Batts I, we took note of section 1102.1, but ultimately
concluded that it was inapplicable because of the date of Batts’ conviction. Batts I, 66
A.3d at 293. In Batts’ supplemental brief and argument to this Court, he contended that,
in light of Miller, Pennsylvania’s sentencing scheme for first-degree murder, requiring a
mandatory sentence of life without parole, was unconstitutional in its entirety. He
[J-118-2016] - 11
asserted that his sentence should thus revert to “the most severe lesser included
offense, namely, third-degree murder[.]” Id. at 294. We found that argument, and the
inapposite case law presented in support, to be unavailing. Rather, we agreed with the
Commonwealth and its amicus, the Pennsylvania District Attorneys Association, that in
sentencing a juvenile convicted of first-degree murder, if the sentencing court found,
after considering the requisite factors, that a life-without-parole sentence was not
appropriate, the problematic portion of the first-degree murder sentencing scheme was
severable, and we could save the remaining portion of the legislative enactments
without offending the pronouncement in Miller or our rules of statutory interpretation.
See id. at 295-97. Specifically, the Court noted that section 1102 of the Crimes Code
required, in relevant part, an individual convicted of first-degree murder to be sentenced
“to a term of life imprisonment.” 18 Pa.C.S. § 1102(a)(1). The “without parole” aspect
of the sentence arose from section 6137(a)(1) of the Parole Code, which prohibited the
release on parole of any person sentenced to life imprisonment. 61 Pa.C.S. §
6137(a)(1).
We therefore held that juveniles convicted of first-degree murder prior to Miller
could, after the sentencing court’s evaluation of the criteria identified in Miller,5 be
5
We concluded that when sentencing a juvenile facing a potential life-without-parole
sentence, Miller requires examination of the following factors:
[A]t a minimum it should consider a 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
(continued…)
[J-118-2016] - 12
subjected to a sentence of life in prison without the possibility of parole. See Batts I, 66
A.3d at 296. For those defendants for whom the sentencing court determines a life-
without-parole sentence is inappropriate, “it is our determination here that they are
subject to a mandatory maximum sentence of life imprisonment as required by [s]ection
1102(a), accompanied by a minimum sentence determined by the common pleas court
upon resentencing,” id. at 297, striking the prohibition against paroling an individual
sentenced to serve life in prison in section 6137(a)(1) as applied to these offenders.
This Court further rejected the argument advanced by Batts and his amici6 that
Article I, Section 13 of the Pennsylvania Constitution requires a categorical ban on the
imposition of a life-without-parole sentence for crimes committed when the defendant
was a juvenile. The Court found that “nothing in the arguments presented suggests that
Pennsylvania’s history favors a broader proportionality rule than what is required by the
United States Supreme Court.” Id. at 299. We therefore vacated the Superior Court’s
decision in Batts I and remanded the case to the sentencing court for proceedings
consistent with the opinion.
Justice Baer authored a Concurring Opinion. He fully joined the Majority’s
pronouncement, but wrote separately to suggest, “for purposes of uniformity in
(…continued)
history, his ability to deal with the police, his capacity to
assist his attorney, his mental health history, and his
potential for rehabilitation.
Batts I, 66 A.3d at 297 (quoting Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super.
2012)).
6
Batts’ amici included the Juvenile Law Center, the Defender Association of
Philadelphia, and law professors Sara Jacobson, Michelle Leighton, Brian J. Foley and
Constance De La Vega. See id. at 297 n.4.
[J-118-2016] - 13
sentencing,” that courts tasked with resentencing juveniles convicted prior to the Miller
decision should look to section 1102.1 for guidance in setting a defendant’s minimum
sentence and to “follow the policy determinations” encompassed in the statute. Id. at
300 (Baer, J., concurring).
C. Resentencing
On May 1, 2014, the sentencing court convened a second sentencing hearing
before the Honorable Michael J. Koury (Judge Moran had since retired). The
Commonwealth presented the testimony of Thomas Serbin, a Security Lieutenant at
State Correctional Institution Retreat, where Batts was then housed. Lieutenant Serbin
stated that Batts had been identified as being part of a security threat group based on
Batts’ admission when he entered the prison that he was a member of the Bloods, his
continued association and interaction with other “validated” members of the Bloods
while in prison, and items of contraband found in Batts’ prison cell that the lieutenant
indicated were associated with the Bloods. N.T., 5/1/2014, at 172-73, 179, 184, 188-94,
197-204. Delores Howell, Edwards’ grandmother and primary caregiver from the age of
six, provided victim impact testimony. See id. at 86-91.
The Commonwealth further presented an updated report and testimony of Dr.
Michals as an expert in forensic psychiatry. Id. at 42. Based upon his evaluations of
Batts (both prior to trial and in preparation for the resentencing hearing) and his review
of various records, which included the results of an examination and psychological
testing conducted by Batts’ expert, Dr. Frank Dattilio, it was Dr. Michals’ opinion that
Batts’ personality “is developmental in nature” and will not change. Id. at 49. According
to Dr. Michals, “Batts is who he is and it’s the engine that drives his behavior.” Id. at 50.
[J-118-2016] - 14
Although Dr. Michals recognized that the psychological testing revealed that Batts
“really is impulsive,” “has poor judgment” and “acting out behavior,” it was Dr. Michals’
opinion that these traits are “just unfortunately part of who he is” and that this is his
“biological genetic makeup.” Id. at 50-51. Dr. Michals testified that it was his belief that
people generally do not change as they age; that, “[c]haracteristics can change, but it’s
very difficult to make changes to the basic structure of our personality.” Id. at 59; see
also id. at 51, 60. He admitted, however, that he “can’t say that they won’t change,” as
he “can’t predict the future.” Id. He could only conclude that it was “highly unlikely” that
Batts would change. Id. at 71-72.
At the time he evaluated Batts regarding his motion to transfer his case to
juvenile court, it was Dr. Michals’ opinion that Batts was not amenable to treatment in
the juvenile system; seeing no changes in Batts’ personality, he continued to hold that
opinion at Batts’ resentencing hearing. Id. at 57. Dr. Michals acknowledged, however,
that Batts had not yet received any psychological treatment or counseling in the adult
prison system, and that Batts had taken advantage of programs that had been made
available to him. Id. at 50, 57, 72.
Also consistent with Dr. Michals’ prior opinion, he testified at the resentencing
hearing that Batts “made a purposeful decision to go ahead and get involved in the
crime.” Id. at 51. While Dr. Michals recognized that Batts was following the instructions
of a senior gang member, and the violence of that organization may have played a role
in Batts’ decision to commit the murder, Dr. Michals believed that Batts “knew what he
was doing when he committed the crime. … He made that choice and decision and
acted upon that choice and decision.” Id. at 60-61. Dr. Michals agreed that Batts’
[J-118-2016] - 15
childhood ‒ marked by physical abuse, parental neglect, and repeated moves within the
foster care system during his early childhood and adolescence ‒ could have affected his
decision making at the time of the murder, but in Dr. Michals’ opinion, “it didn’t,” as the
gang simply provided him with “an option.” Id. at 64, 67.
Batts likewise presented the testimony and report of an expert ‒ forensic
psychologist Dr. Dattilio ‒ at the resentencing hearing. Unlike Dr. Michals, Dr. Dattilio
found Batts’ tumultuous childhood to be highly significant in this matter. Id. at 99-100.
Although Dr. Dattilio agreed with Dr. Michals that Batts knew that shooting and killing
someone was wrong, he found that Batts’ decision making was skewed by the absence
of a traditional role model in his life during his early childhood. Dr. Dattilio opined that
Batts thus lacked the ability to weigh his options and make an appropriate decision
when he was directed by a senior gang member to do something he knew was wrong.
Id. at 101-02, 156-57. According to Dr. Dattilio, the absence of “attachment bonds” with
parents and family members when Batts was a young child affected his self-esteem and
self-worth, resulting in “hardened personality characteristics,” and left him particularly
vulnerable to gang involvement. Id. at 100, 104-05; see also id. at 105 (“[A]ntisocial
behavior and activity … not only go[] hand in hand with the environment he was raised
in, but then certainly … the gang which had become his family is oriented in that
direction.”).
Further complicating Batts’ decision making, in Dr. Dattilio’s view, was Batts’ age
at the time of the shooting, which played “a major role”:
At 14-years-old [sic] we’re just forming our sense of self, our
sense of use of judgment and reason. It’s in the process of
development as is the brain. We know that anatomically the
brain still doesn’t stop developing until an individual is
[J-118-2016] - 16
sometimes beyond 21 years of age, so there’s a lot of things
with regard to his ability to use judgment, to use reason,
assertiveness, sense of balancing out risks versus rewards,
so on and so forth, so he was very, very vulnerable at that
point.
Id. at 107-08. Factoring in Batts’ low-average IQ with his young age and his difficult
childhood, Dr. Dattilio opined that Batts’ judgment was profoundly compromised at the
time of the shooting. Id. at 112.
Dr. Dattilio was also of the opinion that Batts’ “level of sophistication[,] which was
not very high,” also affected his ability to make a sound decision. Id. at 108. While
seemingly streetwise, Batts’ judgment was clouded by the idea of “being part of a
crowd” and gaining acceptance. Id. According to Dr. Dattilio, Batts did not appreciate
“the shortcomings of having to put in work and doing what he was told or the
consequences are serious.” Id. In fact, despite the fact that Evans, his friend and fellow
Bloods member, was jailed for criminal activity prior to Batts joining the Bloods, Dr.
Dattilio stated that this did not “compute” for Batts. Id. at 109. To explain this ostensibly
inexplicable disconnect, Dr. Dattilio reminded those in the courtroom, who had “level
heads” and came from “environments that were in tact [sic] and balanced,” that Batts
was of an entirely different mindset because of his age and the “horrible environment”
from whence he came. Id.
From the psychological testing he conducted, Dr. Dattilio concluded that Batts
had matured since the initial mental status examination that was performed when Batts
was a teenager. Id. at 104. It was Dr. Dattilio’s opinion not only that Batts had the
capacity to change, but he has exhibited that capacity in expressing genuine remorse
for his actions. Id. at 110, 161. With therapy, Dr. Dattilio testified that Batts would be
[J-118-2016] - 17
able to address “the disruptive attachment bonds” of his childhood and learn how to find
new, healthy relationships and connections. Id. at 111. Dr. Dattilio further accepted
Batts’ statement to him that he was no longer a gang member ‒ in his view, the
evidence adduced by Lieutenant Serbin to the contrary was unconvincing and unclear.
Id. at 113-14, 145-53, 161.
Batts also presented a sentencing memorandum from expert Dana L. Cook,
M.S., Deputy Director of The Atlantic Center for Capital Representation. She
concluded, based on her review of records, interviews she conducted with Batts and his
family members (particularly as it relates to Batts’ traumatic childhood experiences and
his current level of maturity) and the brain science relied upon by the United States
Supreme Court in Roper and its progeny, that Batts “has an extraordinary amount of
potential to be a law-abiding member of society, [which] will surely be enhanced by a
now stable and loving family.” Dana Cook’s Report, 12/31/2013, at 4. In her view,
Batts’ “potential for rehabilitation cannot be understated,” as her interactions with him
show that “[h]e understands things now in [a] way he wasn’t capable of at 14 years of
age.” Id., Addendum at 3.
Batts’ mother, Shaniqua Batts, testified regarding the positive changes she has
already seen in her son. Id. at 165-67. Batts also testified, accepting responsibility for
his actions, apologizing to Delores Howell, assuring the sentencing court that he has
matured over the preceding decade, and denying that he continued to be a member of a
gang. Id. at 169-71. His former high school principal, Gregory A. Troxell, sent an
unsolicited letter to the sentencing court advocating for a term-of-years sentence for
[J-118-2016] - 18
Batts, portraying Batts’ actions on the night in question as out of character from the
person he had known over the preceding several years. Id. at 80-82.
Batts’ prison record was also considered by the sentencing court. It revealed
that Batts has been disciplined for five infractions throughout his post-sentence
incarceration, only one of which was for a physical fight with another inmate during a
basketball game in May 2010. Id. at 79, 118-20; N.T., 5/2/2014, at 34-35. Apart from
several discipline-related suspensions, Batts has remained employed while in prison
and participates in various sports, fitness and personal enrichment programs (including
GED, leadership development, long-term offenders, violence prevention, resume
creation and job application courses) offered to him there. N.T., 5/2/2014, at 33-34.
On May 2, 2014, following its consideration of the entire record, the sentencing
memoranda submitted by the parties, an October 2013 presentence investigation
report, the various reports from the psychological evaluations to which Batts had been
subjected over the life of the case, and the sentencing memorandum prepared by Dana
Cook, the sentencing court provided a lengthy explanation of its findings. It indicated
that in deciding the appropriate sentence for Batts, it took into account the general
factors in section 9721(b) of the Sentencing Code,7 the Miller factors and the factors
identified in 18 Pa.C.S. § 1102.1(d), concluding that its sentencing decision required a
“balancing of the factors” at issue. N.T., 5/2/2014, at 56.
7
In imposing a sentence, the court is required to adhere to “the general principle that
the sentence imposed should call for confinement that is consistent with the protection
of the public, the gravity of the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the defendant. The court shall
also consider any guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing and taking effect under section 2155.” 42
Pa.C.S. § 9721(b).
[J-118-2016] - 19
The sentencing court found the following to “weigh against leniency”:
 “the nature and circumstances” of the crime, i.e., that Batts committed a
premeditated murder and attempted murder of “two defenseless boys” to
achieve a promotion within the gang;
 he acted alone in committing the killing;
 there was no justification for the crimes; the sentencing court found his
assertion that he feared reprisal by Bradley to be incredible, and that his
claim of peer pressure did not merit consideration as Batts “sought out
and embraced the peer pressure by seeking membership in the Bloods
gang”;
 the victims were unarmed and unsuspecting teenagers;
 Batts failed to cooperate with police in that he “fled the state” and
attempted to hide his identity when police located him, lied during the
initial interrogation and only confessed when he realized the police already
had evidence implicating him;
 the impact the crimes have had on Hilario, Edwards’ family, and the
community;
 the sentencing court’s desire not to minimize the seriousness of the
crimes;
 “the uncertainty of [Batts’] amenability to treatment,” noting “[a]lthough you
may ultimately prove to be amenable to treatment, the experts have
indicated that any rehabilitation will require years of psychotherapy”; and
 the need to protect the public from Batts because of the crimes committed,
his “history of violence, aggression and disrespect for the law,” and the
question of whether he could be amenable to treatment.
Id. at 56-60. As to factors weighing in favor of his capacity for change, the sentencing
court found:
 Batts’ “childhood experiences” ‒ including his repeated moves in the foster
care system throughout his formative years, the absence of an attachment
to a stable and trusted adult, his exposure to violence by his mother and in
the foster care system, as well as his sexual victimization by his cousin ‒
all of which led him to seek out a cohesive and caring family, and made
him vulnerable to the attractiveness of a street gang, which the sentencing
court found suggested that he could “benefit from psychotherapy or other
forms of rehabilitation”;
[J-118-2016] - 20
 scientific studies concluding that juvenile offenders are less culpable than
adults; however, the court found that Batts’ age only slightly lessened his
culpability here “because [his] crimes were not the product of
recklessness, poor judgment, lack of foresight, susceptibility to peer
pressure or weak impulse control,” and instead “were deliberate and
premeditated acts”;
 Batts’ showing of remorse, recognition of the wrongfulness of his conduct,
and compassion for his victims;
 although Batts admitted to underage drinking, marijuana use and selling
drugs for the Bloods, he had no prior criminal record, generally did well
academically and excelled at various sports;
 he is employed in prison, has taken classes on leadership and violence
prevention, and engaged in pre-vocational training;
 he has a close relationship with his family and attempts to be a positive
role model for his younger brother; and
 expert opinions that, given his age and the insights he has gained since
committing the crimes, years of psychotherapy could improve his
“psychological condition.”
Id. at 60-63. The sentencing court did not consider the evidence that Batts may have
continued his association with members of the Bloods gang, as it found there was no
evidence that he engaged in any violent gang activity in prison. Id. at 63.
The sentencing court found, “weighing all the factors[,] … that the factors not in
[Batts’] favor significantly outweigh the factors in his favor,” and that the crimes in
question did not “reflect unfortunate yet transient immaturity.” Id. at 64-65. Instead, the
sentencing court found, “On the evening of February 7, 2006, you committed a
calculated, callous and cold-blooded murder. You made yourself the judge, jury and
executioner of Clarence Edwards and, if not for the grace of God, you would also have
killed Corey Hilario.” Id. at 66.
Immediately thereafter, the sentencing court reinstituted a sentence of life in
prison without the possibility of parole for Batts’ first-degree murder conviction, and
[J-118-2016] - 21
further resentenced him to a concurrent term of ten to twenty years of incarceration for
attempted murder. Id. at 67. Judge Koury then went on to recount how, after he
decided that Batts should serve life without parole for the murder, he drove by the crime
scene and replayed the events of February 7, 2006 in his head, imagining Delores
Howell coming out to the porch and seeing her grandson with two gunshot wounds to
his head. Id. at 68.
D. Second Superior Court Appeal
A divided panel of the Superior Court affirmed the judgment of sentence. Of
relevance to the case at bar, the majority opinion, authored by then-Judge (now Justice)
Mundy, found Batts’ claim that the evidence was insufficient to permit him to be
subjected to a life-without-parole sentence was a challenge to the discretionary aspects
of sentencing. Commonwealth v. Batts, 125 A.3d 33, 42 (Pa. Super. 2015). Because
Batts failed to file a concise statement of reasons for the Superior Court to review the
discretionary aspects of his sentence, as required Rule 2119(f) of the Pennsylvania
Rules of Appellate Procedure, and the Commonwealth objected to this omission, the
majority concluded that Batts had waived the claim. Id. at 44. The majority declined
Batts’ request to impose a burden of proof upon the Commonwealth seeking to impose
a life-without-parole sentence for a juvenile or to apply a heightened standard of
appellate review, concluding that the requested relief would have to come from the
General Assembly or from this Court pursuant to our rulemaking power. Id. at 43; see
Pa. Const. art. V, § 10(c). It further found meritless his claim that juveniles convicted of
first-degree murder are entitled to the same constitutional protections as adults facing
the death penalty. Batts, 125 A.3d at 44-45.
[J-118-2016] - 22
Former Justice (now Senior Judge) Fitzgerald disagreed with the finding of
waiver of Batts’ sentencing claim based upon his failure to comply with Rule 2119(f),
giving three reasons for his dissent. First, murder is not a “felony or misdemeanor”
subject to the discretionary review process. See 18 Pa.C.S. § 106(a) (listing three types
of crimes: murders, felonies, and misdemeanors). As the jurisdictional requirements for
the Superior Court to consider the discretionary aspects of sentencing in 42 Pa.C.S.
§ 9781(b) apply only to felonies and misdemeanors, he found a sentence for a murder
conviction was not “subject to the discretionary review process.” Batts, 125 A.3d at 49
(Fitzgerald, J., concurring and dissenting); see 42 Pa.C.S. § 9781(b) (“The defendant or
the Commonwealth may file a petition for allowance of appeal of the discretionary
aspects of a sentence for a felony or a misdemeanor to the appellate court that has
initial jurisdiction for such appeals.”). Second, the sentence for a juvenile convicted of
first-degree murder does not arise from the Sentencing Code, thus further removing
appellate review of the sentence from the strictures of section 9781(b). Id. at 49-50
(citing 42 Pa.C.S. § 9781(b) (providing that review of a challenge to the discretionary
aspects of sentencing requires the petitioning party to show a substantial question that
the sentence imposed is not appropriate under the Sentencing Code)). Third, Judge
Fitzgerald believed that the issue under consideration, involving the imposition of a
sentence of life without parole on a juvenile, was “a sufficiently extraordinary legal
question to warrant review despite a procedural default.” Id. at 50.
Judge Fitzgerald would have decided the claim on its merits and, in so doing,
would have concluded that the decision to resentence Batts to life without the possibility
of parole was unsupported by both the record and the prevailing law. See id. at 49–54.
[J-118-2016] - 23
In his view, the sentencing court improperly “framed its choice as two extremes: the
Commonwealth's recommendation that [Batts] be sentenced to life without parole, and
[Batts’] request for a sentence of twenty-five years to life as suggested by 18 Pa.C.S.
§ 1102.1.” Id. at 54 (citing N.T., 5/2/2014, at 56). The sentencing court gave no
meaningful consideration to imposing a minimum term of incarceration above the
twenty-five-year minimum sentence it rejected. Id. Further, according to Judge
Fitzgerald, the sentencing court’s belief that a sentence less than life without parole
would constitute an act of “leniency” represents a misunderstanding of “the nature of our
indeterminate sentencing scheme.” Id.; see Commonwealth v. Daniel, 243 A.2d 400,
403 (Pa. 1968) (“the maximum sentence is the real sentence … the only portion of the
sentence which has legal validity”).
III. Issues Raised
Batts filed a petition for allowance of appeal to this Court, and we granted his
request to answer the following questions:
1. In Miller v. Alabama, the U.S. Supreme Court outlawed
mandatory life without parole for juveniles [], and instructed
that the discretionary imposition of this sentence should be
“uncommon” and reserved for the “rare juvenile offender
whose crime reflects irreparable corruption.”
i. There is currently no procedural mechanism to ensure
that juvenile [life without parole] will be “uncommon” in
Pennsylvania. Should this Court exercise its authority
under the Pennsylvania Constitution to promulgate
procedural safeguards including (a) a presumption
against juvenile [life without parole]; (b) a requirement for
competent expert testimony; and (c) a “beyond a
reasonable doubt” standard of proof?
ii. The lower court reviewed [Batts’] sentence under the
customary abuse of discretion standard. Should the
[J-118-2016] - 24
Court reverse the lower court's application of this highly
deferential standard in light of Miller?
2. In Miller, the U.S. Supreme Court stated that the basis for
its individualized sentencing requirement was Graham’s
comparison of juvenile [life without parole] to the death
penalty. [Batts] received objectively less procedural due
process than an adult facing capital punishment. Should the
Court address the constitutionality of [Batts’] resentencing
proceeding?
Commonwealth v. Batts, 135 A.3d 176 (Pa. 2016) (per curiam).
IV. Precedent
Prior to engaging in a discussion of the arguments presented, it is first necessary
for us to examine the legal precedent upon which this decision rests.
A. Roper v. Simmons
We begin with the United States Supreme Court’s 2005 decision in Roper v.
Simmons. At the age of seventeen, Christopher Simmons decided he wanted to murder
someone by breaking into a house, tying the person up, and throwing the victim off a
bridge. He informed his fifteen- and sixteen-year-old friends of his idea, indicating that
because they were juveniles, they would “get away with it.” Roper, 543 U.S. at 556.
Following the execution of his plan, Simmons bragged openly about the murder, saying
that he had killed the victim “because the bitch seen my face.” Id. at 557. Following his
conviction of murder, Simmons was sentenced to death.
The Roper Court observed that the death penalty is reserved for the most
culpable offenders who commit the most serious crimes, justifying their execution. Id. at
568. The Court found three differences between juveniles and adults that rendered
juveniles “categorically less culpable than the average criminal,” and precluded a finding
that a juvenile can “with reliability be classified among the worst offenders.” Id. at 567,
[J-118-2016] - 25
568. First, the Court recognized, based on a common-sense understanding of children,
as well as scientific and sociological studies, that juveniles are less mature and have a
less developed sense of responsibility, which “often result[s] in impetuous and ill-
considered actions and decisions.” Id. at 569 (citations omitted). In that vein, the Court
observed that “adolescents are overrepresented statistically in virtually every category
of reckless behavior.” Id. (quoting Arnett, Reckless Behavior in Adolescence: A
Developmental Perspective, 12 Developmental Rev. 339 (1992)). The Court thus found
that “[t]he susceptibility of juveniles to immature and irresponsible behaviors means that
their irresponsible conduct is not as morally reprehensible as that of an adult.” Id. at
570 (citation and quotation marks omitted).
Second, “juveniles are more vulnerable or susceptible to negative influences and
outside pressures, including peer pressure.” Id. (citing Eddings v. Oklahoma, 455 U.S.
104, 115 (1982), for the proposition that “youth is more than a chronological fact. It is a
time and condition of life when a person may be most susceptible to influence and to
psychological damage”). The Court stated that according to research, this is largely
because juveniles lack the ability or authority to control their environments. Id. (citing
Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity,
Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009,
1014 (2003)). Therefore, “[t]heir own vulnerability and comparative lack of control over
their immediate surroundings mean juveniles have a greater claim than adults to be
forgiven for failing to escape negative influences in their whole environment.” Id. at 570
(citation omitted).
[J-118-2016] - 26
Third, the character and personality of a juvenile are not formed, but are “more
transitory, less fixed” than they will be as an adult. Id. at 570 (citing E. Erikson, Identity:
Youth and Crisis (1968)). “The reality that juveniles still struggle to define their identity
means it is less supportable to conclude that even a heinous crime committed by a
juvenile is evidence of irretrievably depraved character.” Id. The Court found
“misguided” any attempt to treat the acts of a juvenile as if they were committed by an
adult, as studies support the notion that personality flaws in a juvenile will change over
time ‒ “the signature qualities of youth are transient; as individuals mature, the
impetuousness and recklessness that may dominate in younger years can subside.” Id.
(citing, inter alia, Steinberg & Scott 1014, as stating: “For most teens, [risky or
antisocial] behaviors are fleeting; they cease with maturity as individual identity
becomes settled. Only a relatively small proportion of adolescents who experiment in
risky or illegal activities develop entrenched patterns of problem behavior that persist
into adulthood.”).
Considering these differences between juveniles and adults, the Roper Court
concluded that juveniles cannot reliably be counted among the worst offenders.
Because of their diminished culpability, the Court found that the penological
justifications for the death penalty ‒ deterrence and retribution ‒ necessarily fell away.
See id. at 571-72. In concluding that there must be a categorical ban on the imposition
of the death penalty for juveniles, the Court stated:
The differences between juvenile and adult offenders are too
marked and well understood to risk allowing a youthful
person to receive the death penalty despite insufficient
culpability. An unacceptable likelihood exists that the
brutality or cold-blooded nature of any particular crime would
overpower mitigating arguments based on youth as a matter
[J-118-2016] - 27
of course, even where the juvenile offender's objective
immaturity, vulnerability, and lack of true depravity should
require a sentence less severe than death. … It is difficult
even for expert psychologists to differentiate between the
juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption. See Steinberg & Scott
1014-1016.
Id. at 572-73. The Supreme Court thus concluded that the death penalty was a
disproportionate punishment for juvenile offenders, and therefore, cruel and unusual
punishment in violation of the Eighth Amendment to the United States Constitution.
B. Graham v. Florida
In 2010, the United States Supreme Court in Graham v. Florida revisited the
question of proportionality of sentencing for juvenile offenders, this time as it related to a
sentence of life in prison without the possibility of parole for the commission of a non-
homicide offense. In that case, Terrence Graham committed an armed burglary and
attempted robbery when he was sixteen years old. Charged as an adult, he faced a
maximum sentence of life without parole, but received three years of probation pursuant
to a plea agreement. Less than six months after he was sentenced, when he was
approximately a month shy of his eighteenth birthday, he committed two home invasion
robberies. He fled from police, striking a telephone pole with his vehicle. Police
apprehended Graham and discovered three handguns in the car.
Following hearings on Graham’s violations of probation, the court found Graham
in violation based upon his admission that he attempted to avoid arrest, and the court’s
conclusion that Graham had committed the home invasion robbery, possessed a
firearm and associated with individuals engaged in criminal activity. Although the
prosecution sought an aggregate sentence of forty-five years of incarceration, and the
[J-118-2016] - 28
presentence investigation report only recommended a sentence of four years of
imprisonment, the court sentenced Graham to life in prison without the possibility of
parole. The court reasoned, based on Graham’s “escalating pattern of criminal
conduct,” he would continue to engage in criminal behavior, requiring the court to
“protect the community” from Graham’s actions. Graham, 560 U.S. at 57.
Following its grant of certiorari, the United States Supreme Court found that the
differences between juveniles and adults observed in Roper applied with equal force to
the circumstances at issue in Graham. The Court identified no basis to reconsider its
conclusions in Roper about the inherent immaturity and impetuousness of juveniles; to
the contrary, “developments in psychology and brain science continue to show
fundamental differences between juvenile and adult minds.” Id. at 68. Observing that
defendants who commit non-homicide offenses are generally less deserving of the most
severe punishments than those who commit murder, the Court concluded that “a
juvenile offender who did not kill or intend to kill has a twice diminished moral
culpability” as compared to an adult murderer. Id. at 69.
The Court further recognized that life without parole, the second most severe
punishment, shares some unique characteristics with capital punishment, including the
irrevocability of the associated forfeiture and the deprivation of liberty without hope for
its restoration. Moreover, the Graham Court identified life without parole as an even
harsher sentence for a juvenile than it is for an adult because “a juvenile offender will on
average serve more years and a greater percentage of his life in prison than an adult
offender.” Id. at 70. Further, because of the permanence of the punishment and the
differentiating characteristics of a juvenile (namely, impetuousness, an underdeveloped
[J-118-2016] - 29
sense of responsibility, lessened culpability, and a greater capacity for change and
rehabilitation than adults), the Court concluded that the penological justifications to
support the imposition of life without parole sentences for non-homicide crimes
committed by juveniles ‒ retribution, deterrence, incapacitation and rehabilitation ‒ were
not met. See id. at 71-74.
The United States Supreme Court therefore held that the absence of a lawful
justification for the sentence, “the limited culpability of juvenile non[-]homicide offenders
and the severity of life without parole sentences all lead to the conclusion that the
sentencing practice under consideration is cruel and unusual,” and forbidden by the
Eighth Amendment to the United States Constitution. Id. at 74. The Eighth Amendment
requires that a sentencing court take into account a defendant’s youthfulness at the time
he/she committed the offense. Id. at 76.
The Court explained that although its holding does not require a State to
guarantee a juvenile’s release following conviction for a non-homicide offense, a court
must provide the defendant with “some meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation.” Id. at 75.
Those who commit truly horrifying crimes as juveniles may
turn out to be irretrievable, and thus deserving of
incarceration for the duration of their lives. The Eighth
Amendment does not foreclose the possibility that persons
convicted of non[-]homicide crimes committed before
adulthood will remain behind bars for life. It does prohibit
States from making the judgment at the outset that those
offenders never will be fit to reenter society.
Id.
C. Miller v. Alabama
[J-118-2016] - 30
Two years later, in Miller v. Alabama, the United States Supreme Court
considered the proportionality of life-without-parole sentences for juveniles convicted of
homicide offenses. It concurrently considered the cases of two juveniles ‒ Kuntrell
Jackson, who at the age of fourteen, participated in a failed armed robbery of a
convenience store during which his accomplice shot and killed the store clerk; and Evan
Miller, who at the age of fourteen, bludgeoned and intentionally incinerated an adult
neighbor, with whom he had been smoking marijuana, after the neighbor caught him
stealing money from his wallet. In both cases, the offenses for which they were
convicted (capital felony murder for Jackson and murder in the course of arson for
Miller), carried a mandatory sentence of life in prison without the possibility of parole.
Relying on the findings it made in Roper and Graham and the scientific studies
upon which they were based, the United States Supreme Court reiterated “that the
distinctive attributes of youth diminish the penological justifications for imposing the
harshest sentences on juvenile offenders, even when they commit terrible crimes.”
Miller, 567 U.S. at 471-72. The Court observed that “none of what it said about children
‒ about their distinctive (and transitory) mental traits and environmental vulnerabilities ‒
is crime-specific.” Id. at 473. Rather, as in Roper and Graham, the Court reasoned that
“[d]eciding that a ‘juvenile offender forever will be a danger to society’ would require
‘mak[ing] a judgment that [he] is incorrigible’ ‒ but ‘incorrigibility is inconsistent with
youth.’” Id. at 472-73 (quoting Graham, 560 U.S. at 72).
In contravention of the “foundational principle” set forth in Roper and Graham,
the mandatory sentencing statutes at issue in Miler imposed the States’ most severe
term of imprisonment, treating him as though he was an adult, “removing youth from the
[J-118-2016] - 31
balance” and “prohibit[ing] a sentencing authority from assessing whether the law’s
harshest term of imprisonment proportionately punishes a juvenile offender.” Id. at 474.
Once again likening a life-in-prison sentence for a juvenile to the death penalty, the
Miller Court concluded that sentencing for juveniles must be individualized. See id. at
474-78. This requires consideration of the defendant’s age at the time of the offense,
as well as “its hallmark features,” including:
immaturity, impetuosity, and failure to appreciate risks and
consequences[;] … the family and home environment that
surrounds him ‒ and from which he cannot usually extricate
himself ‒ no matter how brutal or dysfunctional[;] … the
circumstances of the homicide offense, including the extent
of his participation in the conduct and the way familial and
peer pressures may have affected him[;] … that he might
have been charged and convicted of a lesser offense if not
for incompetencies associated with youth ‒ for example, his
inability to deal with police officers or prosecutors (including
on a plea agreement) or his incapacity to assist his own
attorneys[;] … [and] the possibility of rehabilitation … when
the circumstances [(the youthfulness of the offender)] most
suggest it.
Id. at 477-78. See also id. at 476 (stating that in addition to age, a court must also give
consideration to a juvenile offender’s “background and mental and emotional
development … in assessing his culpability”) (quoting Eddings, 455 U.S. at 116).
The Court thus held that a sentencing scheme that mandates the imposition of a
life-without-parole sentence for a juvenile violates the Eighth Amendment to the United
States Constitution. “By making youth (and all that accompanies it) irrelevant to
imposition of that harshest prison sentence, such a scheme poses too great a risk of
disproportionate punishment.” Id. at 479. The Court did not foreclose the possibility
that a child could be sentenced to life without parole in a homicide case, but
emphasized its view that “appropriate occasions for sentencing juveniles to this
[J-118-2016] - 32
harshest possible punishment will be uncommon,” especially in light of the difficulty
observed in Roper and Graham, “even for expert psychologists” to “distinguish[] at this
early age between ‘the juvenile offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’”
Id. at 479-80 (quoting Roper, 543 U.S. at 573; Graham, 560 U.S. at 73).
In so holding, the Court took pains to differentiate the sentencing considerations
required from a court’s resolution of a request to transfer a matter to the jurisdiction of
the juvenile court. The Miller Court observed that the question to be determined at a
transfer hearing is markedly different from that posed at a sentencing proceeding:
Because many juvenile systems require that the offender be
released at a particular age or after a certain number of
years, transfer decisions often present a choice between
extremes: light punishment as a child or standard sentencing
as an adult (here, life without parole). … Discretionary
sentencing in adult court would provide different options:
There, a judge or jury could choose, rather than a life-
without-parole sentence, a lifetime prison term with the
possibility of parole or a lengthy term of years. It is easy to
imagine a judge deciding that a minor deserves a (much)
harsher sentence than he would receive in juvenile court,
while still not thinking life-without-parole appropriate.
Id. at 488-89.
D. Montgomery v. Louisiana
In January 2016, the United States Supreme Court decided Montgomery v.
Louisiana, holding that “Miller announced a substantive rule that is retroactive in cases
on collateral review.”8 Montgomery, 136 S. Ct. at 732. The defendant in that case,
8
The decision in Montgomery overturned this Court’s decision in Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013), wherein a majority of this Court held, based upon
the framework announced in Teague v. Lane, 489 U.S. 288 (1989) (plurality), that the
(continued…)
[J-118-2016] - 33
Henry Montgomery, was then sixty-nine years old, having spent approximately fifty
years in prison on a mandatory term of life for the killing of a Louisiana law enforcement
officer when he was seventeen years old. The Court observed (without confirming) that
while incarcerated, Montgomery had reportedly transitioned “from a troubled, misguided
youth to a model member of the prison community.” Id. at 736.
In explaining the basis for its decision, the Montgomery Court stated that the
legal principles established in Roper and Graham, and applied in Miller, regarding the
differences between adults and juveniles and a juvenile’s resultant “diminished
culpability and greater prospects for reform” are generally applicable to all juveniles.
See id. at 732-33. “[T]he penological justifications for life without parole collapse in light
of the ‘distinctive attributes of youth.’” Id. at 734 (quoting Miller, 567 U.S. at 472). The
Court clarified that Miller requires far more than mere consideration of an offender’s age
prior to imposing a life-without-parole sentence, as such a sentence “still violates the
Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient
immaturity.’” Id. (quoting Miller, 567 U.S. at 479). Life without parole “is a
disproportionate sentence for all but the rarest of children, those whose crimes reflect
irreparable corruption,” “permanent incorrigibility,” and “such irretrievable depravity that
rehabilitation is impossible,” thereby excluding “the vast majority of juvenile offenders”
from facing a sentence of life in prison without the possibility of parole. Id. at 726, 733,
734 (internal quotation marks omitted).
(…continued)
pronouncement in Miller was procedural, not substantive, in nature, and thus did not
apply to judgments that were final at the time of Miller. See Cunningham, 81 A.3d at 4-
11.
[J-118-2016] - 34
“Miller requires a sentencer to consider a juvenile offender’s youth and attendant
characteristics before determining that life without parole is a proportionate sentence.”
Id. at 734. Although the Montgomery Court acknowledged that Miller contains no
“formal factfinding requirement” prior to a sentencing court imposing a sentence of life
without the possibility of parole on a juvenile, the Court stated that this omission was
purposeful so as to permit the States to sovereignly administer their criminal justice
systems and establish a procedure for the proper implementation of Miller’s holding. Id.
at 735. It emphasized, however, that a sentence of life without the possibility of parole
imposed upon a juvenile offender is unconstitutional if the crime reflected the juvenile’s
“transient immaturity.” Id.
Despite reserving to the States the task of prescribing the procedure for
implementing Miller, the High Court observed, rather than relitigating the sentence of
every affected juvenile, States could simply entitle all juvenile homicide offenders to be
eligible for parole. This would “ensure[] that that juveniles whose crimes reflected only
transient immaturity ‒ and who have since matured ‒ will not be forced to serve a
disproportionate sentence in violation of the Eighth Amendment.” Id. at 736. Should
offenders exhibit an inability to reform, they will “continue to serve their sentences.” Id.
V. Batts’ Sentence
Turning to the issues raised in this appeal, we begin by addressing Batts’
sentencing challenge. He contends that although the sentencing court considered
factors relating to his age and development, this was insufficient to satisfy the mandates
of Miller and Montgomery. Because the sentencing court found, based upon expert
testimony, that “Batts has demonstrated some capacity for change,” and that it was at
[J-118-2016] - 35
least possible that “significant change” could occur with years of therapy, this precluded
the institution of a life-without-parole sentence. Batts’ Brief at 29-30 (citing, in part,
Sentencing Court Opinion, 8/27/2014, at 54, 58-59). Batts emphasizes that the United
States Supreme Court did not require a sentencing court to be positive that the
defendant is capable of rehabilitation and change; in fact, he asserts, the opposite is
true, as the sentencing court must make a finding that the juvenile is irreparably corrupt
before a sentence of life without parole can be imposed.
Batts states that his sentence of life without parole is illegal, as the sentencing
court’s decision violates the dictates of Miller and Montgomery. He contends that we
must employ a de novo standard of appellate review of the sentencing court’s legal
conclusion regarding his eligibility for a life-without-parole sentence. Id. at 29, 40. He
further asserts that we should review de novo each of the factors considered by the
sentencing court based upon the evidence presented. See id. at 41-57.
The Commonwealth and its amicus, the Pennsylvania District Attorneys
Association (“DAA”), disagree. They assert that the sentencing court adhered to the
remand order, considered all of the required factors, and properly found that Batts was
subject to a sentence of life in prison without the possibility of parole. Commonwealth’s
Brief at 52-53; DAA’s Brief at 14-15. They further contend that the propriety of a life-
without-parole sentence imposed on a juvenile is not a question of the legality of the
sentence, as the sentencing decision rests in the discretion of the sentencing court and
therefore, appellate review should be conducted using an abuse of discretion standard.9
9
“[A]n abuse of discretion is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the judgment exercised is manifestly
(continued…)
[J-118-2016] - 36
Commonwealth’s Brief at 39-44; DAA’s Brief at 20 (stating that a de novo review is
applicable for questions of law, which are not present in appellate review of a life-
without-parole sentence imposed upon a juvenile offender).
A. Level of Scrutiny for Batts’ Sentencing Claim
The question of the appropriate level of scrutiny for appellate review of a non-
mandatory sentence of life without parole imposed upon a juvenile is an issue of first
impression before this Court.10 For appellate review purposes, challenges to a criminal
sentence typically fall into one of two categories, implicating either the legality of the
sentence or the discretionary aspects of the sentence. This distinction is critical, as the
determination also encompasses matters of issue preservation, this Court’s jurisdiction
to decide the question presented, and the level of deference the reviewing court must
give to the decision of the sentencing court.
A challenge to the legality of a particular sentence may be reviewed by any court
on direct appeal; it need not be preserved in the lower courts to be reviewable and may
even be raised by an appellate court sua sponte. Commonwealth v. Barnes, 151 A.3d
121, 124 (Pa. 2016); see also Montgomery, 136 S. Ct. at 731 (stating that because “[a]
conviction or sentence imposed in violation of a substantive rule is not just erroneous
but contrary to law and, as a result, void[, i]t follows, as a general principle, that a court
has no authority to leave in place a conviction or sentence that violates a substantive
(…continued)
unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the
evidence or the record, discretion is abused.” Commonwealth v. Safka, 141 A.3d 1239,
1249 (Pa. 2016).
10
This is a question of law, for which our standard of review is de novo.
Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa. 2014).
[J-118-2016] - 37
rule”) (citing Ex parte Siebold, 100 U.S. 371, 376 (1880)). As we have previously
explained, our decisions pertaining to questions of sentencing illegality “have not always
been smooth,” with “complexities” arising “from disagreement among the members of
the Court concerning whether a particular claim implicates the legality of a sentence.”
Commonwealth v. Spruill, 80 A.3d 453, 460-61 (Pa. 2013). There is no dispute,
however, that a claim challenging a sentencing court’s legal authority to impose a
particular sentence presents a question of sentencing legality. See, e.g.,
Commonwealth v. Vasquez, 744 A.2d 1280, 1282 (Pa. 2000) (question of “whether the
trial court had the authority to impose a statutorily mandated fine” is a challenge to
sentencing legality); Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005) (claim
regarding the court’s authority to impose a particular sentence implicates the legality of
the sentence); In re M.W., 725 A.2d 729, 731 (Pa. 1999) (same).
The United States Supreme Court decisions that control in this matter
unambiguously permit the imposition of a life-without-parole sentence upon a juvenile
offender only if the crime committed is indicative of the offender’s permanent
incorrigibility; that the crime was not the result of the “unfortunate yet transient
immaturity” endemic of all juveniles. See Montgomery, 136 S. Ct. at 726, 734; Miller,
567 U.S. at 479; see also Graham, 560 U.S. at 73; Roper, 543 U.S. at 573. Therefore,
for a sentence of life without parole to be proportional as applied to a juvenile murderer,
the sentencing court must first find, based on competent evidence, that the offender is
entirely unable to change. It must find that there is no possibility that the offender could
be rehabilitated at any point later in his life, no matter how much time he spends in
prison and regardless of the amount of therapeutic interventions he receives, and that
[J-118-2016] - 38
the crime committed reflects the juvenile’s true and unchangeable personality and
character. Montgomery, 136 S. Ct. at 733 (stating that pursuant to Miller, life without
parole is only justified for “the rare juvenile offender who exhibits such irretrievable
depravity that rehabilitation is impossible”).
Under Miller and Montgomery, a sentencing court has no discretion to sentence
a juvenile offender to life without parole unless it finds that the defendant is one of the
“rare” and “uncommon” children possessing the above-stated characteristics, permitting
its imposition. Montgomery, 136 S. Ct. at 726, 734; Miller, 567 U.S. at 479; see Graham,
560 U.S. at 73; Roper, 543 U.S. at 572-73. A sentence of life in prison without the
possibility of parole for a murder committed when the defendant was a juvenile is
otherwise disproportionate and unconstitutional under the Eighth Amendment.
Montgomery, 136 S. Ct. at 734, 735.
Thus, in the absence of the sentencing court reaching a conclusion, supported by
competent evidence, that the defendant will forever be incorrigible, without any hope for
rehabilitation, a life-without-parole sentence imposed on a juvenile is illegal, as it is
beyond the court’s power to impose. See Vasquez, 744 A.2d at 1282; Shiffler, 879 A.2d
at 189; In re M.W., 725 A.2d at 731. As stated by the Montgomery Court, “when a State
enforces a proscription or penalty barred by the Constitution, the resulting conviction or
sentence is, by definition, unlawful.” Montgomery, 136 S. Ct. at 729-30. As such, we
must review the sentencing court’s legal conclusion that Batts is eligible to receive a
sentence of life without parole pursuant to a de novo standard and plenary scope of
review. Commonwealth v. McClintic, 909 A.2d 1241, 1245 (Pa. 2006). Because this
legal conclusion is premised upon the presentation of testimony and the sentencing
[J-118-2016] - 39
court’s credibility determinations, it presents a mixed question of fact and law. In such
circumstances, we defer to the findings of fact made by the sentencing court as long as
they are supported by competent evidence, but give no deference to that court’s legal
conclusions. Pennsylvania Nat. Mut. Cas. Ins. Co. v. St. John, 106 A.3d 1, 13 (Pa.
2014); Commonwealth v. James, 69 A.3d 180, 186 (Pa. 2013); Commonwealth v.
Spotz, 18 A.3d 244, 259 (Pa. 2011); In re Condemnation by Urban Redevelopment
Auth. of Pittsburgh, 913 A.2d 178, 183 (Pa. 2006).
B. The Legality of Batts’ Sentence
Here, although the sentencing court recited the words “unfortunate yet transient
immaturity” when sentencing Batts, and made a finding that Batts’ commission of
murder was not the result thereof, see Sentencing Court Opinion, 8/27/2014, at 62,11
the sentencing court also repeatedly made the conflicting finding that there remained a
possibility that Batts could be rehabilitated:
 concluding, “based on the experts’ opinions, Batts … would need years of
therapy to achieve meaningful personality change and rehabilitation” (id. at
53);
 classifying Batts’ amenability to treatment as “uncertain[]” (id. at 58);
 finding that Batts “may ultimately prove to be amenable to treatment” and,
according to the expert testimony, “rehabilitation will require years of
psychotherapy,” which the court found “weighs in favor of an extended period
of incarceration” (id. at 58-59);
 finding that Batts’ horrific childhood experiences “suggest that [he] might
benefit from psychotherapy and other forms of rehabilitation” (id. at 59);
11
In its written opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate
Procedure, the sentencing court quotes extensively from the lengthy and detailed
findings it made at the May 2, 2014 sentencing hearing. For the ease of the reader, we
cite only to the sentencing court’s opinion in our analysis of the arguments raised.
[J-118-2016] - 40
 finding, based on scientific research on the adolescent brain, that Batts’
young age at the time of the crimes weighed in favor of his “amenability to
treatment and rehabilitation and [his] capacity for change” (id.);
 considering Batts’ academic history, participation in sports, his vocational and
educational pursuits while in prison, the courses in which he has voluntarily
participated while in prison, the relationship he has with his family (particularly
with his younger brother), and the absence of any criminal history as “factors
[that] weigh in favor in assessing [his] capacity for change” (id. at 59-60);
 finding, based on expert testimony, that his “young age and the insights [he
has] gained into the psychological issues that led [him] to commit [his]
crimes,” would allow his psychological condition to improve if “given the
benefit of years of psychotherapy and other forms of rehabilitation” (id. at 60);
 indicating that the expert opinions support the conclusion that he could be
rehabilitated with years of therapy (id. at 61, 115);
 stating that it was uncertain whether it would ever be safe to release Batts
from prison (id. at 119);
 stating “the strong need for protection of the public outweighed Batts’[] limited
amenability to treatment and potential for rehabilitation” (id. at 121).
Our review of the record finds ample positive support relative to Batts’ potential for
rehabilitation. See supra, pp.14-19.
As we read the sentencing court’s opinion, it becomes clear that its conclusion
that Batts’ actions were not the result of his “unfortunate yet transient immaturity” was
based exclusively on the fact that the murder was “deliberate and premediated.” See
Sentencing Court Opinion, 8/27/2014, at 59, 62. The sentencing court went on to say,
“I’m not suggesting that premeditated murder can never be considered impulsive for
purposes of sentencing. There might well be circumstances under which premeditated
murder could be the product of poor judgment, lack of foresight, susceptibility to peer
pressure and weak impulse control. That is not the case here.” Id. at 82. And yet, it
was the sentencing court’s view that because Batts was not “caught up in the heat of a
stressful confrontation,” without “time to plan and deliberate” or an “appreciation for
[J-118-2016] - 41
what might happen next,” there could be no finding that the murder was the result of
youthful impulsiveness or poor judgment. Id. Given this perspective, the conviction of
any juvenile of first-degree murder would require the imposition of a sentence of life
without parole, as first-degree murder in Pennsylvania is, by definition “deliberate and
premeditated.” 18 Pa.C.S. § 2502(a) (“A criminal homicide constitutes murder of the
first degree when it is committed by an intentional killing.”).
The view expressed by the sentencing court contravenes the relevant United
States Supreme Court precedent. Miller and Montgomery directly address the
sentencing of juveniles who commit intentional murders. The Miller Court emphasized
that “the distinctive attributes of youth diminish the penological justifications for imposing
the harshest sentences on juvenile offenders, even when they commit terrible crimes.”
Miller, 567 U.S. at 472. “Miller’s central intuition” is “that children who commit even
heinous crimes are capable of change.” Montgomery, 136 S. Ct. at 736; see also, e.g.,
Miller, 567 U.S. at 468 (indicating that Miller, prior to delivering the final blow to his
victim’s skull, said “I am God, I’ve come to take your life”). The sentencing court’s
reasoning impermissibly overrides the United States Supreme Court’s repeated
admonitions, outlined above, that juvenile first-degree murderers are presumptively less
culpable than their adult counterparts and, as such, should be sentenced differently.
Moreover, although there is no question that the sentencing court thoroughly and
completely reviewed the record and thoughtfully considered the testimony presented at
the resentencing hearing,12 it overlooked the main premise of the United States
12
The sentencing court issued its findings for its sentencing decision on the record,
which span 66 pages of transcript, and further authored a 127-page opinion pursuant to
(continued…)
[J-118-2016] - 42
Supreme Court’s jurisprudence regarding juvenile sentencing issued over the last
twelve years. The High Court has held, as a matter of law, “that children are
constitutionally different from adults for purposes of sentencing,” in that they “have
diminished culpability and greater prospects for reform,” making them “less deserving of
the most severe punishments.” Miller, 567 U.S. at 471 (quoting Graham, 560 U.S. at
68). This legal conclusion was based on the determination that juveniles (1) lack
maturity and have “an underdeveloped sense of responsibility,” which results in
reckless, impulsive and unnecessary risk-taking behaviors; (2) are highly vulnerable to
peer pressure and negative influence resulting from their inability to control their
environments; and (3) have characters and personalities that are not fully formed or
fixed, and struggle to figure out their identities. Id. (citing Roper, 543 U.S. at 569-70).
Without providing any basis to differentiate Batts’ decision making from the
typical teenager contemplated in Roper, Graham and Miller, the sentencing court found
that Batts, at the age of fourteen, “made a purposeful choice to move out of his parents’
home” and to join a gang, with knowledge that it “was a violent criminal organization and
that he would be asked to commit violent criminal acts.” Sentencing Court Opinion,
8/27/2014, at 49-50. The court further found that although Batts was subjected to peer
pressure at the time of the murder, the “peer pressure was not imposed upon [] Batts”;
instead he “sought out and embraced gang membership,” and therefore, this peer
(…continued)
Pa.R.A.P. 1925(a) thoroughly detailing what it considered when sentencing Batts in
response to the issues raised on appeal before the Superior Court. In both instances,
the sentencing court included specifics about Batts’ childhood, academics, athletics,
and provided a detailed account of the testimony received from both parties at the
resentencing hearing.
[J-118-2016] - 43
pressure did not diminish his culpability. Id. at 50-51. These findings contravene the
Supreme Court’s unambiguous instruction not to treat juveniles as “miniature adults,”
proceeding as though they not children. See Miller, 567 U.S. at 481. They ignore the
principal tenet of Roper, Graham, Miller and Montgomery, and the scientific studies
regarding juvenile brain development that the Court adopted and upon which it relied.
See id. at 474, 477-78, 481.
The sole evidentiary support for the sentencing court’s conclusions in this regard
was the testimony and report of the Commonwealth’s expert, Dr. Michals. It was Dr.
Michals’ opinion that Batts made a “purposeful decision” and “deliberate choice” to
commit these crimes. N.T., 5/1/2014, at 51, 53. Dr. Michals, however, provided no
basis for his conclusion that Batts had the ability to make sound, reasoned decisions at
the age of fourteen ‒ a skill the Supreme Court determined is generally eclipsed by a
juvenile’s impetuousness and immaturity. In fact, Dr. Michals was not only of the
opinion that Batts’ personality was likely fully formed and fixed at the age of fourteen,
but that personalities of people in general are not subject to change. Specifically, Dr.
Michals testified, “Characteristics can change but it’s very difficult to make changes to
the basic structure of our personality.” Id. at 59. Though he acknowledged that he
“can’t predict the future,” he was of the opinion that the personality of “somebody who is
14” likely will not change over time. Id. He went on to say that “it’s difficult to change
our underlying personality traits,” and in his opinion, this “applies to everybody.” Id. at
60; see also id. at 51 (Dr. Michals opining that “we are who we are as a result of
biological genetic makeup and merely [sic] life experiences … the personality is or
character is a definition of ourselves.”). Indeed, despite the Supreme Court’s
[J-118-2016] - 44
conclusion to the contrary, Dr. Michals maintained that “research dealing with
adolescent behavioral and brain development” is inconclusive, with “research findings
… still in progress.” Dr. Michals’ Report, 3/12/2014, at 19; but see Miller, 567 U.S. at
472 n.5 (“The evidence presented to us in these cases indicates that the science and
social science supporting Roper’s and Graham’s conclusions have become even
stronger.”).
The testimony and conclusions espoused by Dr. Michals are in direct opposition
to the legal conclusion announced by the High Court and the facts (scientific studies)
underlying it. Dr. Michals’ testimony therefore does not constitute competent evidence
and cannot provide support for a conclusion that Batts’ actions were not the result of
transient immaturity or that he is permanently incorrigible. See Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 67 (1996) (stating that when the United States Supreme
Court issues a decision, courts are bound “not only [by] the result[,] but also those
portions of the opinion necessary to that result”); Commonwealth v. Jemison, 98 A.3d
1254, 1257 (Pa. 2014) (“Pursuant to the Supremacy Clause of the United States
Constitution … this Court, like all state courts, is bound by decisions of the U.S.
Supreme Court with respect to the federal Constitution and federal substantive law.”).
Moreover, the numerous findings chronicled earlier in the Opinion accepting the
possibility of Batts’ potential rehabilitation indicate that the sentencing court did not fully
embrace Dr. Michals’ opinion.
Based on our review of the sentencing court’s findings and the bases therefor,
we conclude that a sentence of life in prison without the possibility of parole for Batts is
disproportionate under Miller and Montgomery and thus violates the Eighth Amendment
[J-118-2016] - 45
to the United States Constitution. Our decision here should not be interpreted as
depreciating the seriousness of the reprehensible crimes Batts committed. His
senseless and needless acts of violence left one teenager dead and another seriously
injured, and the victims’ families are living with the consequences. There is no question
that Batts, as a fourteen-year-old murderer, must be held accountable and serve a
sentence commensurate with those acts. Pursuant to the evidence presented before
the sentencing court, the findings of the sentencing court regarding the possibility of
rehabilitation, and the clear Supreme Court precedent that controls in this matter,
however, upon resentencing Batts, the court “must provide [Batts] some meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.” Miller,
567 U.S. at 479 (quoting Graham, 560 U.S. at 74).
VI. Validity of Batts I
As previously discussed, in Batts I, this Court determined that for juveniles
convicted prior to Miller for whom a sentence of life without parole was unconstitutional,
the prohibition against paroling inmates sentenced to serve life in prison could be
severed from section 6137(a) of the Parole Code. Thus, a court may sentence affected
defendants to a minimum term-of-years sentence and a maximum sentence of life in
prison, exposing these defendants to parole eligibility upon the expiration of their
minimum sentences. See 61 Pa.C.S. § 6137(a)(3).
In the context of a challenge to the legality of the sentencing decision announced
in Batts I and in light of intervening decisions from this Court, Batts urges us to
reconsider the argument we previously rejected ‒ that Pennsylvania’s first-degree
murder sentencing scheme is unconstitutional and therefore, he must be sentenced as
[J-118-2016] - 46
if he were convicted of third-degree murder as a lesser included offense instead. Batts’
Brief at 62. “Rather than repeat the arguments presented” in the amicus brief that had
already been filed in this Court by the Pennsylvania Association of Criminal Defense
Lawyers (“PACDL”), Batts adopts its argument in support of the claim. Id.
PACDL frames this issue as a “non-waivable question concerning the legality of
the sentence,” as Batts was resentenced pursuant to Batts I, which, it contends,
announced an impermissible sentencing construct. PACDL’s Brief at 2. In PACDL’s
view, this Court’s resolution of this issue in Batts I (excising the unconstitutional part of
section 6137(a)(1) prohibiting parole in the case of first-degree murder committed by a
juvenile from the remainder of the parole statute) constitutes an impermissible use of
our severance authority. This is because, according to PACDL, the remaining portion of
the statute is “‘incomplete’ or ‘incapable of being executed,’’ because of another
statutory requirement that a term of years sentence have a minimum sentence that is
not greater than half of the maximum sentence ‒ a mathematical impossibility when the
maximum term of incarceration is life. Id. at 10-11; see 42 Pa.C.S. § 9756(b)(1)
(requiring that a minimum term of imprisonment “shall not exceed one-half of the
maximum sentence imposed”).
Severance also fails, according to PACDL, because the General Assembly
excluded pre-Miller convictions from the sentencing scheme announced in section
1102.1, and we therefore cannot presume the General Assembly would have enacted
the remaining portions of section 6137(a) without the limitation on the ability to parole a
juvenile sentenced to life in prison. PACDL’s Brief at 11. As there is no legislatively
authorized sentence for juveniles convicted of first-degree murder, Batts could not be
[J-118-2016] - 47
sentenced for the crime of first-degree murder. Id. at 12-13 (citing Characteristics of the
Substantive Criminal Law, 1 Subst. Crim. L. § 1.2 (2d ed.) (“[A] crime is made up of two
parts, forbidden conduct and a prescribed penalty. The former without the latter is no
crime.”)). Further, as confirmed in this Court’s recent decisions in Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015), and Commonwealth v. Wolfe, 140 A.3d 651 (Pa.
2016), it is impermissible for the judiciary to “rewrite” a sentencing statute to make it
conform to the constitutional commands of a United States Supreme Court decision.
PACDL’s Brief at 13-14 (citing Hopkins, 117 A.3d at 261, 262; Wolfe, 140 A.3d at 662).
Because there is no lawful penalty for a juvenile convicted of first-degree murder,
PACDL asserts that Batts’ current sentence is illegal, and he must be resentenced on
the charge of third-degree murder, which carries a maximum penalty of forty years of
incarceration.13 Id. at 15-16; 18 Pa.C.S. § 1102(d). In support of this contention,
PACDL relies upon the same case law that Batts presented in his supplemental brief to
this Court in Batts I. See PACDL’s Brief at 15 (citing Rutledge v. United States, 517
U.S. 292 (1996); Commonwealth v. Story, 440 A.2d 488 (Pa. 1981); Commonwealth v.
Bradley, 295 A.2d 842 (Pa. 1972)).
PACDL concludes its argument by contending that following the decision in
Montgomery, Batts I cannot stand because the Court failed to ensure that a sentence of
life without parole was “reserved for highly unusual cases,” “demonstrated quite
13
The Commonwealth sought leave to file a post-submission communication pursuant
to Pa.R.A.P. 2501(a) in the form of a brief filed by the Philadelphia Office of the District
Attorney before the Philadelphia County Court of Common Pleas which, inter alia,
addressed this argument. It contains no new authority or any arguments that could not
have been raised in the Commonwealth’s original responsive brief filed in this matter.
We therefore deny this request.
[J-118-2016] - 48
dramatically in the resentencing of Mr. Batts himself.” Id. at 17-18. Further, as argued
throughout its amicus brief, “the reasoning and holding” of Batts I “were clearly
erroneous under prior and subsequent decisions” regarding severance of
unconstitutional portions of statutes. Id. at 18-19.
The Commonwealth, on the other hand, asserts that our disposition in Batts I
was correct and should not be revisited. Commonwealth’s Brief at 59. Further,
because Batts did not seek allowance of appeal for this Court to address this claim, it is
not appropriate for this Court to consider the question. Id. (citing Pa.R.A.P. 1115(a)(3);
Commonwealth v. Barnes, 924 A.2d 1202, 1203 (Pa. 2007)).
While it is true that Batts did not request that this Court address this precise issue
in his petition for allowance of appeal, Batts and PACDL assert that the sentencing
protocol announced in Batts I is statutorily incapable of execution, there is no lawful
punishment for a juvenile convicted of first-degree murder prior to the date of the Miller
decision, and that his sentence for anything other than third-degree murder is illegal.
See Commonwealth ex rel. Varronne v. Cunningham, 73 A.2d 705, 706 (Pa. 1950)
(indicating that without a penalty for conduct that is proscribed by the General Assembly
there is no crime); see also Characteristics of the Substantive Criminal Law, 1 Subst.
Crim. L. § 1.2(d) (2d ed.). The argument implicates the legality of his sentence, and
therefore is not subject to waiver. Barnes, 151 A.3d at 124; Commonwealth v. Dickson,
918 A.2d 95, 99 (Pa. 2007). Moreover, as noted, Batts and PACDL argue against the
legality of the sentence based, in part, upon decisions of this Court rendered after our
[J-118-2016] - 49
decision in Batts I. Thus, we believe that our conclusion on the legality of sentencing
issue in Batts I warrants further development.14
A. Severance
It is the law of this Commonwealth that every provision of every statute is
presumed to be severable. 1 Pa.C.S. § 1925. If a provision of a statute is invalidated
for any reason, or as applied to any situation or person, a court must sever it from the
remaining, valid portion of the statute unless (1) the remaining valid provisions depend
on and “are so essentially and inseparably connected with” the voided provision that the
court could not presume that the General Assembly would have enacted the valid
portion of the statute without the now-voided portion, or (2) the remaining portions of the
statute “are incomplete and are incapable of being executed in accordance with
legislative intent.” Id.; Robinson Twp. v. Commonwealth, 147 A.3d 536, 558-59 (Pa.
2016).
The relevant provisions of section 6137 state:
The [parole] board may parole subject to consideration of
guidelines established under 42 Pa.C.S. § 2154.5 (relating to
adoption of guidelines for parole) and may release on parole
any inmate to whom the power to parole is granted to the
board by this chapter, except an inmate condemned to
death or serving life imprisonment, whenever in its
opinion:
(i) The best interests of the inmate justify or require that the
inmate be paroled.
14
Moreover, since we granted allowance of appeal, in part, to fashion an appropriate
procedure to sentence juveniles convicted of first-degree murder, see Batts, 135 A.3d
176, at ¶ 1(i), the validity and legality of our decision in Batts I is fairly encompassed by
this question. It is thus properly before this Court for review. Pa.R.A.P. 1115(a)(3)
(“Only the questions set forth in the petition, or fairly comprised therein, will ordinarily be
considered by the court in the event an appeal is allowed”).
[J-118-2016] - 50
(ii) It does not appear that the interests of the
Commonwealth will be injured by the inmate’s parole.
61 Pa.C.S. § 6137(a)(1) (emphasis added).
There is no argument raised, and we can perceive of no reason to conclude, that
the prohibition against paroling an individual condemned to serve life in prison is
inseparable from or essential to the remainder of the parole statute. Rather, as stated
above, the argument presented by Batts and PACDL is that without this prohibition, the
parole statute does not operate as intended by the General Assembly.
The presumption of severability pursuant to section 1925 finds its roots in the
Court’s longstanding “duty to declare a statute constitutional if this can reasonably be
done.” Triumph Hosiery Mills, Inc. v. Commonwealth, 364 A.2d 919, 921 (Pa. 1976)
(quoting Commonwealth v. Girard Life Insurance Co., 158 A. 262, 264 (Pa. 1932)). We
must also presume that the General Assembly carefully chose to include every
provision of every statute it enacts. See 1 Pa.C.S. § 1921(a). As such, in recognition of
the requirement to salvage as much of a statute as is constitutionally possible, upon
finding a portion of a statute is unconstitutional, the “touchstone” for our determination of
legislative intent is to answer the question of “whether the [L]egislature would have
preferred what is left of its statute to no statute at all.” D.P. v. G.J.P., 146 A.3d 204, 216
(Pa. 2016) (quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320,
330 (2006)).
PACDL challenges the sentencing protocol announced in Batts I based on its
conclusion that fashioning a legal sentence is impossible in light of section 9756(b)(1),
which provides: “The court shall impose a minimum sentence of confinement which
[J-118-2016] - 51
shall not exceed one-half of the maximum sentence imposed.” 42 Pa.C.S. § 9756(b)(1).
PACDL is correct that there is no way to accurately calculate half of a life sentence.
This does not, however, render Batts I’s severance of section 6137(a) impermissible, as
PACDL baldly claims.
The interplay between section 6137(a) and section 9756(b)(1) was not raised by
the parties nor addressed in Batts I. However, our holding implicitly required severance
of section 9756(b)(1)’s requirement that a minimum sentence can be no more than half
of the maximum sentence for juveniles convicted of first-degree murder prior to Miller.
See Batts I, 66 A.3d at 297 (concluding that a juvenile convicted of first-degree murder
prior to Miller faced “a mandatory maximum sentence of life imprisonment as required
by [s]ection 1102(a), accompanied by a minimum sentence determined by the common
pleas court upon resentencing,” and that this sentencing scheme is “in accord with the
dictates of the Eighth Amendment as set forth in Miller, as well as the Pennsylvania
Legislature's intent as reflected in the relevant statutory provisions”). The necessity of
this additional severance to save the sentencing scheme for juveniles convicted of first-
degree murder prior to Miller does not create an impermissible obstacle since, as stated
above, “[t]he provisions of every statute [are] severable.” 1 Pa.C.S. § 1925 (emphasis
added); see also, e.g., Commonwealth v. Williams, 832 A.2d 962, 986 (Pa. 2003).
Removing section 9756(b)(1)’s mandate does nothing more than eliminate the
ceiling for the minimum term of imprisonment a juvenile sentenced to life with parole
may receive.15 This aligns with the current expression of legislative intent for the
15
This is not the first time this Court has severed the minimum sentence ceiling from
section 9756(b)(1) in a given sentencing context. In Commonwealth v. Ramos, 83 A.3d
(continued…)
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sentencing of juveniles convicted of first-degree murder. Section 1102.1(a) requires the
imposition of a mandatory minimum sentence for juveniles convicted of first-degree
murder. Subsection (e) makes clear that this is only the minimum sentence required,
stating, “Nothing under this section shall prevent the sentencing court from imposing a
minimum sentence greater than that provided in this section.” 18 Pa.C.S. § 1102.1(e).
In determining the minimum sentence for a juvenile convicted of first-degree murder
prior to Miller, a sentencing court is to exercise its discretion to find the appropriate,
individualized sentence in each case, just as it would when fashioning the minimum
sentence for any other defendant before it.16 See Commonwealth v. Gordon, 942 A.2d
174, 182 (Pa. 2007) (“Pennsylvania judges retain broad discretion to sentence up to
and including the maximum sentence authorized by statute; the only line that a
sentence may not cross is the statutory maximum sentence.”); Commonwealth v. Walls,
926 A.2d 957, 966-67 (Pa. 2007) (stating that sentencing in Pennsylvania is
individualized, requiring the sentencing court to consider certain factors and to provide
an explanation of its reasoning prior to imposing a given sentence).
Further, we reiterate the conclusion we reached in Batts I: we have found no
support for the proposition that juveniles convicted of first-degree murder pre-Miller
(…continued)
86 (Pa. 2013), we held that the then-valid mandatory minimum sentence under 42
Pa.C.S. § 9712.1(a) of five years of imprisonment was not illegal despite the fact that
the maximum allowable sentence for the crime in question was also five years,
rendering section 9756(b)(1) inapplicable. Ramos, 83 A.3d at 94.
16
As we explain in greater detail later in this Opinion, we instruct sentencing courts to
look to the mandatory minimum sentences set forth in section 1102.1(a) for guidance in
setting a minimum sentence for a juvenile convicted of first-degree murder prior to
Miller. See infra, pp. 80-83.
[J-118-2016] - 53
should be sentenced as though they were convicted of third-degree murder. In support
of its position, PACDL relies upon the same case law that we found to be inapplicable in
Batts I. See Batts I, 66 A.3d at 296. In recognition of our rejection of this case law,
PACDL suggests that although we found the cases to be distinguishable, the Court
failed to “identify how, in principle, the lawful manner of resolution of the cases would be
different,” stating its belief that “there is none.” PACDL’s Brief at 16 n.9. This
contention is meritless.
In Batts I, we differentiated Commonwealth v. Story, which involved a defendant
convicted of first-degree murder and sentenced to death pursuant to an unconstitutional
statute. The Story Court thus vacated the sentence and remanded the case for the
imposition of the other legislatively authorized penalty for first-degree murder, life in
prison without parole. Story, 440 A.2d at 490; see also Bradley, 295 A.2d at 845
(holding the same). As the Batts I Court explained, this line of cases is inapt. In Story
and Bradley, there existed another sanctioned sentence for first-degree murder. The
sentence for third-degree murder advanced by PACDL, however, is not a legislatively
sanctioned punishment for a conviction of first-degree murder. Batts I, 66 A.3d at 296.
Batts I likewise distinguished Rutledge v. United States, which involved a
defendant who had been convicted and sentenced for two crimes, one of which was a
lesser included offense of the other. The United States Supreme Court found this to be
impermissible, as it punished the defendant twice for the same conduct. Rutledge, 517
U.S. at 300. The Rutledge Court dismissed the argument that multiple punishments for
greater- and lesser-included offenses were permissible because it provided “a backup
conviction” in the event the defendant successfully challenged the conviction of the
[J-118-2016] - 54
greater offense on appeal. The Court observed that “federal appellate courts appear to
have uniformly concluded that they may direct the entry of judgment for a lesser
included offense when a conviction for a greater offense is reversed on grounds that
affect only the greater offense,” a practice the High Court had previously noted with
approval. Id. at 305-06. The Batts I Court found this case law to be inapposite, as the
case at bar did not involve the vacatur of Batts’ first-degree murder conviction, but the
determination of “an appropriate scheme for resentencing for that offense, consistent
with Miller.” Batts I, 66 A.3d at 296-97. Moreover, this Court has expressly “rejected
the notion that an appellate court may refashion the conviction of a jury into one based
on a lesser-included offense,” rendering any reliance on Rutledge for this proposition to
be error. Commonwealth v. Slaughter, 583 A.2d 427, 428 (Pa. 1990) (citing
Commonwealth v. Wagner, 406 A.2d 1026 (Pa. 1979)).
Therefore, if we cannot sever the parole prohibition in section 6137(a)(1) and the
requirement that minimum sentences be no greater than half of the maximum term of
imprisonment in section 9756(b)(1), the only remaining option would be to release each
of the hundreds of juveniles convicted of first-degree murder and sentenced to life
without parole prior to Miller, see Varronne, 73 A.2d at 706 ‒ a result even Batts and
PACDL do not contend is correct. See PACDL’s Brief at 16. Such an extreme measure
is unnecessary here because severance of the offending statutory provisions is
permissible and aligns with the intent of the General Assembly.
The sentencing scheme at issue before the Batts I Court was one of general
applicability and was not created specifically to foreclose juveniles sentenced to life in
prison from being released on parole. Juveniles are exposed to this sentence only as a
[J-118-2016] - 55
result of the convergence of three statutory provisions ‒ section 6302 of the Juvenile
Act, section 1102(a) of the Crimes Code and section 6137(a)(1) of the Parole Code. As
explained in Miller, these circumstances do not provide an indication that a legislature
“endorsed a given penalty for children,” and are not conclusive as to whether the
General Assembly “actually intended to subject such offenders to those sentences,”
given that it did not reach this decision “through deliberate, express, and full legislative
consideration.” Miller, 567 U.S. 485-86 (quoting Graham, 560 U.S. at 67).
Furthermore, although the General Assembly presumably initially believed (as
did a majority of this Court) that the holding in Miller would not apply to defendants
convicted prior to the date of the decision, this proved to be incorrect in light of the
United States Supreme Court’s decision in Montgomery. Nonetheless, section 1102.1
provides a clear expression of legislative intent as it relates to sentencing juveniles
convicted of first-degree murder. Although the statute itself is inapplicable to Batts
based (solely) upon the date of his conviction, it is clear, as reflected in section 1102.1,
that the General Assembly would preserve the remainder of the parole statute, sever
the minimum sentence ceiling of section 9756(b)(1), and permit these defendants to be
sentenced to life with the possibility of parole, rather than have no sentence at all for
juveniles convicted of first-degree murder. See D.P., 146 A.3d at 216; 18 Pa.C.S. §
1102.1(a). To conclude otherwise would require that we impermissibly presume that
the General Assembly intended to discriminate unconstitutionally between pre- and
post-Miller juvenile offenders or that it intended that only post-Miller juvenile offenders
receive punishment for first-degree murder ‒ clearly an absurd and unreasonable
proposition. See 1 Pa.C.S. § 1922(1), (3) (instructing that when ascertaining legislative
[J-118-2016] - 56
intent, courts must presume that the General Assembly did not intend to violate the
State or Federal Constitution or intend an absurd, impossible or unreasonable result).
Despite the passage of four years since we issued our decision in Batts I, the
General Assembly has not passed a statute addressing the sentencing of juveniles
convicted of first-degree murder pre-Miller, nor has it amended the pertinent provisions
that were severed in Batts I.17 See generally 42 Pa.C.S. § 9756; 61 Pa.C.S. § 6137. As
we have previously stated, “the General Assembly is quite able to address what it
believes is a judicial misinterpretation of a statute,” and its failure to do so in the years
following the Batts I decision gives rise to the presumption that the General Assembly is
in agreement with our interpretation. Hunt v. Pennsylvania State Police of the
Commonwealth, 983 A.2d 627, 637 (Pa. 2009).
17
We note that there are currently two proposed drafts of statutes in our Legislature ‒
one from the House and one from the Senate ‒ pertaining to sentencing of juveniles
convicted of first-degree murder that were presented for consideration in 2016. These
pieces of proposed legislation go even further than Batts I to enhance the authority of
the parole board to parole inmates convicted of first-degree murder. House Bill 2135, in
relevant part, amends section 1102.1 of the Crimes Code to completely remove the
authority of the sentencing court to sentence a juvenile to life without the possibility of
parole. H.B. 2135, Printer’s No. 3484, 200th Gen. Assemb., Reg. Sess. (Pa. 2016). It
further amends section 6137 of the Parole Code, striking the prohibition against paroling
an individual serving life in prison, making all inmates (juveniles and adults) sentenced
to life in prison parole-eligible after fifteen years. Id. The bill was referred to the House
Judiciary Committee on June 9, 2016, where it remained at the time of this writing.
Senate Bill 1147 eliminates the date of conviction requirement from section 1102.1 and
abolishes the authority to sentence a juvenile to life in prison, either with or without
parole. S.B. 1147, Printer’s No. 1576, 200th Gen. Assemb., Reg. Sess. (Pa. 2016).
Instead, a juvenile convicted of first-degree murder committed when he or she was
under fifteen would receive a maximum sentence of thirty-five years of imprisonment; a
first-degree murder committed by a juvenile aged fifteen to eighteen would require a
maximum sentence of forty-five years of imprisonment. Id. On March 4, 2016, this bill
was referred to the Senate Judiciary Committee, where it too remained at the time of
this writing.
[J-118-2016] - 57
B. Hopkins and Wolfe
Our intervening decisions in Hopkins and Wolfe do not affect our decision in
Batts I. In Hopkins, we found that section 6317 of the Crimes Code ‒ which imposed a
mandatory minimum sentence of imprisonment for possession with intent to deliver or
delivery of a controlled substance that occurred within 1000 feet of a school ‒ was
unconstitutional. Specifically, the statute required a judge (not a jury) to find the facts
required to impose the mandatory minimum sentence by a preponderance of the
evidence (not beyond a reasonable doubt) at sentencing (not at trial); stated that the
requisite facts were not an element of the crime; and required no notice to the
defendant of the applicability of the statute prior to trial, all of which contravened the
United States Supreme Court’s holding in Alleyne v. United States, 133 S. Ct. 2151
(2013). See Hopkins, 117 A.3d at 249-57.
We further found that we were unable to sever the unconstitutional portions of
section 6317 because the remaining, valid portions of the statute could not survive
without the voided ones unless this Court added new terms to the statute. The Hopkins
Court concluded that this would amount to a wholesale reconceptualization of the
statute in a manner that was inconsistent with the explicit statements of legislative intent
appearing throughout the statute. To save the valid provisions of section 6317, this
Court would have had to create a substantive offense in place of the existing sentencing
statute created and expressly intended by the General Assembly. Id. at 262, 263 n.6.
We therefore concluded, “By operation of Alleyne, [s]ection 6317 has been stripped of
all the features that allow it to function as a sentencing statute.” Id. at 259.
[J-118-2016] - 58
In Wolfe, we reaffirmed our decision in Hopkins as it related to another, similarly
worded mandatory minimum sentencing statute, 42 Pa.C.S. § 9718. Wolfe, 140 A.3d
660-61. Once again, because severance of the unconstitutional language would have
required the Court “to create new aggravated crimes,” in direct contravention of the
express statements of legislative intent provided in the statute, we concluded that the
severance was not possible, as saving any part of the statute would have required the
Court to venture “beyond our constitutionally prescribed authority and purview.” Id. at
662-63.
Severance in Hopkins and Wolfe required this Court to go far beyond simply
striking unconstitutional language from a statute, as our role traditionally requires and
permits, and to instead conduct a wholesale rewrite and reconfiguration of a statute, a
role exclusively performed by the General Assembly. See Pa. Const. art II, § 1.
Conversely, Batts I did not create a crime or a sentence that did not otherwise exist at
the time of our decision, but instead lawfully and appropriately utilized our severance
authority in a manner consistent with legislative intent.
This conclusion is supported by the analogous case of Commonwealth v. Butler,
328 A.2d 851 (Pa. 1974), wherein this Court applied an existing sentencing construct to
a class of individuals that had been expressly excluded from its applicability following
the Court’s severance of unconstitutional language from the previously applicable
statute. In Butler, a man brought a challenge under the Equal Rights Amendment18 to
statutory language that required men to receive both minimum and maximum terms of
18
“Equality of rights under the law shall not be denied or abridged in the
Commonwealth of Pennsylvania because of the sex of the individual.” Pa. Const. art. I,
§ 28.
[J-118-2016] - 59
imprisonment, but permitted women only to receive a maximum sentence and
prohibited courts from giving a woman a minimum term of confinement. Id. at 854. This
discrepancy in language made women immediately parole-eligible upon entering prison,
but required men to await the expiration of their minimum sentences before being able
to be considered for parole. Because “[t]he statutory scheme on its face treats men less
favorably than women,” without a basis or justification, we found it to be
unconstitutional. Id. at 857-58.
It was clearly the intent of the General Assembly, when it enacted the offending
statute, to exclude women from the general requirement that sentences of confinement
have both minimum and maximum terms. Because of intervening developments in the
law, however, that was no longer constitutionally permissible. Given the choice of
striking the minimum/maximum statute applicable to men or striking the portion of the
statute that excepted women from receiving minimum sentences, the Court found that it
was more consistent with the intent of the General Assembly to strike the latter, thus
making women subject to minimum terms of imprisonment. The Court reasoned that
striking the general minimum/maximum requirement would leave men without any
sentence, whereas simply striking the language excluding women from its applicability
maintained lawful sentences for both men and women while also addressing the
constitutional problem. Further, the Court found that “special sentencing statutes for
women … were departures from a more general intent to provide equal sentencing
treatment for men and women.” Id. at 859. The Butler Court therefore severed the
unconstitutional language, thus requiring the imposition of minimum prison sentences
for women.
[J-118-2016] - 60
Likewise, in Batts I, through our legislatively-mandated severance power, we
struck unconstitutional statutory language and expanded the application of an existing,
statutorily provided sentence ‒ life with the possibility of parole ‒ to reach a subset of
individuals who could no longer constitutionally be sentenced in accordance with a prior
sentencing scheme. Although the General Assembly instituted a blanket prohibition
against paroling an individual convicted of first-degree murder, which would necessarily
include juveniles, as in Butler, this too constituted a departure from the “more general
intent” of the General Assembly, which otherwise treated children different from adults
for sentencing purposes, see generally, e.g., 42 Pa.C.S. §§ 6301-6375 (the Juvenile
Act), and which treatment continues in recent years. See, e.g., 18 Pa.C.S. § 1102.1;
supra note 17. Thus, the severance decision in Batts I stands.
VII. Procedure for Sentencing Juveniles Convicted of First-Degree Murder
To ensure that a life-without-parole sentence is imposed only on the rarest of
juvenile offenders, as required by Montgomery, and that the sentencing court does not
overly emphasize the nature of the crime in question, Batts and several of his amici19
request that this Court establish guidelines and procedures for the sentencing (and
resentencing) of juveniles convicted of first-degree murder. They argue that Miller, as
clarified by Montgomery, requires the institution of a presumption against sentencing a
juvenile offender to life in prison without the possibility of parole. Batts’ Brief at 21-22;
Advocacy Amici’s Brief at 6-7; PBA’s Brief at 4-6. Batts asserts that the burden of
proving that a juvenile may be subjected to life without parole must be placed on the
19
These amici include the Pennsylvania Bar Association (“PBA”), the Incarcerated
Children’s Advocacy Network and the Youth Sentencing & Reentry Project (collectively,
“Advocacy Amici”).
[J-118-2016] - 61
Commonwealth to establish, beyond a reasonable doubt, that the crime reflects that the
juvenile is “irreparably corrupt,” “irretrievably depraved,” and “permanently incorrigible,”
and must be supported by expert testimony. Batts’ Brief at 25-28, 38-39; see also
PBA’s Brief at 7-9. Batts identifies Supreme Court decisions from several other
jurisdictions that have held similarly or have gone further, banning life without parole
sentences in their entirety for juvenile offenders. See Batts’ Brief at 22-27.
It is also Batts’ position that juveniles facing life in prison without the possibility of
parole are entitled to a jury determination “that a juvenile is permanently incorrigible or
irreparably corrupt” before the sentence may be constitutionally imposed. Id. at 58. In
support of this contention he relies upon the United States Supreme Court’s decision in
Alleyne, as well as the Graham and Miller Courts’ comparison of adults facing capital
punishment to juveniles facing life in prison without parole. Id. at 57-58. In apparent
reliance on this latter parallel, Batts asserts that he is “entitled to at least the same
procedural due process afforded an adult facing capital punishment under the Eighth
Amendment [to the United States Constitution] and Article I, Section 13 of the
Pennsylvania Constitution.” Id. at 58. He thus contends that pursuant to section 9711
of the Sentencing Code (addressing the procedure for capital sentencing), if the
Commonwealth states its intention to seek a sentence of life without parole for a
juvenile offender, the sentencing proceeding must involve a jury trial, at which the
Commonwealth bears the burden of proof. Additionally, under this construct, Batts
contends that a unanimous verdict in favor of sentencing the defendant to life without
parole is required, with the verdict subjected to automatic appellate review by the
Pennsylvania Supreme Court. Id. at 60-61.
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The Commonwealth and the DAA counter that it would be inappropriate for this
Court to announce procedures for sentencing juveniles convicted of first-degree murder,
contending that this “is inherently a legislative matter,” as it is for the General Assembly
to create punishments for criminal acts. Commonwealth’s Brief at 23-28 (citing
principally Commonwealth v. DeHart, 516 A.2d 656 (Pa. 1986)); see also DAA’s Brief at
13, 18-19 (same). They recognize that this Court previously invoked our rulemaking
power in Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011), to create procedures for
determining whether a defendant convicted of first-degree murder is immune from the
death penalty pursuant to Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the
Eighth Amendment prohibits the execution of intellectually disabled20 persons). The
Commonwealth and the DAA differentiate our actions there, however, based upon the
length of time that passed between the Atkins decision and our decision in Sanchez,
and the General Assembly’s intervening failure to act. Here, they contend, the General
Assembly promptly acted following Miller by enacting section 1102.1, thus obviating this
Court’s ability to exercise its rulemaking authority. See Commonwealth’s Brief at 26-27;
DAA’s Brief at 13-14, 16 (cautioning this Court not to “preempt the General Assembly
for the sake of an unfounded assumption that sentencing courts cannot understand and
apply Miller and Montgomery”).
20
“Intellectually disabled” connotes the condition that the United States Supreme Court
previously referred to as “mentally retarded.” Compare generally Atkins v. Virginia, 536
U.S. 302 (2002), with Moore v. Texas, 137 S. Ct. 1039 (2017); see also Commonwealth
v. Hannibal, 156 A.3d 197, 224 (Pa. 2016) (relying on Hall v. Florida, 134 S. Ct. 1986,
1990 (2014), for the proposition that “intellectual disability” should be used in place of
“mental retardation”). “Intellectual disability” also replaced “mental retardation” in the
fifth edition of the Diagnostic and Statistical Manual of Mental Disorders. See American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 33 (5th
ed. 2013).
[J-118-2016] - 63
The Commonwealth asserts that even if Court-created procedures were
appropriate in this context, the procedural protections advanced by Batts ‒ a
presumption against a life-without-parole sentence for juvenile offenders; placing the
burden on the Commonwealth to prove its applicability beyond a reasonable doubt;
expert testimony in support of its applicability; and particularized findings of fact ‒ are
not required by either Miller or Montgomery. See Commonwealth’s Brief at 28-38;
DAA’s Brief at 14, 20-23. The Commonwealth identifies decisions from several
intermediate appellate courts from other jurisdictions that have held similarly. See
Commonwealth’s Brief at 30, 35-38.
The Commonwealth additionally argues that there is no support for a jury
determination of a juvenile’s susceptibility to a life-without-parole sentence. This is
evidenced, per the Commonwealth’s argument, by both section 1102.1, which is a
legislative pronouncement that requires a judge, not a jury, to determine whether a
juvenile may be subjected to life in prison without parole, and the absence of any
authority from the Pennsylvania courts or the United States Supreme Court for such a
mandate. Id. at 46-47, 48-49, 51-52. The DAA asserts that the United States Supreme
Court has implicitly held that death penalty standards are inapplicable in these cases,
as evidenced by Montgomery’s placement of the burden on the juvenile to prove that he
belongs to the protected class of individuals that cannot be sentenced to life without
parole. DAA’s Brief at 17, 21 (citing Montgomery, 136 S. Ct. at 735).
Further, because there is no required fact finding, the Commonwealth states that
there is no Alleyne-related problem with a judge-only sentencing proceeding.
Commonwealth’s Brief at 53-54. The sentencing court is simply required to balance
[J-118-2016] - 64
factors and take into account other sentencing considerations, which it routinely does as
a matter of discretion in other criminal matters, both in Pennsylvania and as upheld
under similar circumstances by other states’ intermediate appellate courts. Id. at 54-58.
A. Constitutional Authority
To begin, we reject the Commonwealth’s argument that the creation of
procedures to implement a substantive rule of law falls to the General Assembly.
Rather, the Pennsylvania Constitution clearly and unambiguously bestows upon this
Court “the power to prescribe general rules governing practice, procedure and the
conduct of all courts” as long as such rules “neither abridge, enlarge nor modify the
substantive rights of any litigant, nor affect the right of the General Assembly to
determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any
statute of limitation or repose.” Pa. Const. art. V, § 10(c).
DeHart does not constrain the exercise of our authority in this context. That case
involved a challenge by a defendant to the General Assembly’s authority to create the
death penalty sentencing statute. We concluded that this was within the power of the
General Assembly “to determine the punishment imposable for criminal conduct.”
DeHart, 516 A.2d at 671 (citing Commonwealth v. Wright, 494 A.2d 354 (Pa. 1985),
aff’d sub nom., McMillan v. Pennsylvania, 477 U.S. 79 (1986)). In contrast, the question
here solely pertains to the procedures to implement the sentence for a juvenile
convicted of first-degree murder. It does not (as argued by the Commonwealth and the
DAA) require us to create the sentence itself. The resolution of the issues presented
here falls squarely within our constitutional authority.
[J-118-2016] - 65
The relevant procedural postures of this case and Sanchez are strikingly similar.
In Sanchez, this Court was faced, inter alia, with a challenge to the imposition of capital
punishment on a defendant who claimed he was ineligible to receive the death penalty
pursuant to Atkins v. Virginia. We observed that in the nine years that elapsed following
the Atkins decision, the General Assembly had remained silent, failing to enact a statute
to address how courts should determine if a person is intellectually disabled such that
he is immune from execution under Atkins. Sanchez, 36 A.3d at 52. Further, as in
Miller and Montgomery, the Supreme Court in Atkins did not set forth a procedure for
determining intellectual disability, instead “leav[ing] to the States the task of developing
appropriate ways to enforce the constitutional restriction upon their execution of
sentences.” Id. (quoting Atkins, 536 U.S. at 317).
We stated that the absence of procedures for assessing a defendant’s claim of
intellectual disability in capital cases was creating “uncertainty in the lower courts and
among criminal law practitioners,” which “could lead to different standards and
procedures being employed in different courtrooms throughout the Commonwealth.” Id.
“Because there are no substantive constitutional restrictions upon implementation of
procedures to decide Atkins claims,” we concluded that “the procedures we announce
… are a proper exercise of our constitutional authority over judicial administration.” Id.
at 62 (citing Pa. Const. art. V, § 10(c)). We therefore exercised our constitutionally-
prescribed authority to devise the necessary procedures for implementing Atkins in
Pennsylvania, including who must adjudicate an Atkins claim (judge or jury), when the
determination must be made (pre-trial or at the sentencing phase), which party must
[J-118-2016] - 66
bear the burden of proof, and the level of proof required. Sanchez, 36 A.3d at 52-53,
62-72.
Contrary to the positions of the Commonwealth and the DAA, that we waited nine
years before promulgating procedures for the implementation of the holding in Atkins
speaks not to the propriety of this Court’s authority to have acted sooner, but rather to
the infrequency with which a question concerning the imposition of the sentence in
question arose. As the Atkins Court observed, an individual meeting the clinical
definition of intellectually disabled is extremely rare ‒ it is a diagnosis applicable to only
around one percent of the population at large. Atkins, 536 U.S. at 309 n.5. It follows
then that the vast majority of adults are not constitutionally exempt from the death
penalty under Atkins. Precisely the opposite is true for a juvenile offender facing the
potential of serving life in prison without the possibility of parole, as it is the exceedingly
rare and uncommon juvenile whose crime reflects his permanent incorrigibility who
therefore may be constitutionally sentenced to life without the possibility of parole.
Montgomery, 136 S. Ct. at 726 (citing Miller, 567 U.S. 479-80). See also Miller, 567 U.S.
at 471 (“only a relatively small proportion of adolescents[] who engage in illegal activity
develop entrenched patterns of problem behavior”) (quoting Roper, 543 U.S. at 570).
Thus, unlike the rare consequences of Atkins, Miller and Montgomery impact every
juvenile convicted of first-degree murder.
More than a year has passed since the Montgomery decision, and it has been
five years since the High Court decided Miller. The General Assembly has not taken
any appreciable steps to create a separate sentencing statute or to revise the existing
law so that it applies to juveniles convicted of first-degree murder prior to Miller. In the
[J-118-2016] - 67
meantime, several hundred individuals remain in Pennsylvania prisons serving illegal
life-without-parole sentences for crimes committed when they were juveniles. See
Pennsylvania Department of Corrections, Juvenile Lifers Information,
http://www.cor.pa.gov/General%20Information/Pages/Juvenile-Lifers-Information.aspx#.
WJTznqAo5aT (last visited June 26, 2017). Each of those prisoners, incarcerated for
the crimes they committed as juveniles, awaits resentencing. It is abundantly clear that
the exercise of our constitutional authority is required to set forth the manner in which
resentencing will proceed in the courts of this Commonwealth.
We are now in the undesirable position of yet again having to remand Batts’ case
for resentencing. This will be the third time that Batts, who is now twenty-six years old,
will face sentencing. The DAA’s protestations notwithstanding, Batts’ argument that
sentencing courts would benefit from our guidance in the application of the Miller and
Montgomery decisions is hardly “unfounded” and is certainly not an “assumption.” See
DAA’s Brief at 16. Despite the sentencing court’s best efforts here, as reflected by its
lengthy and thorough recitation of the evidence it considered when resentencing Batts
and its recognition of the controlling United States Supreme Court precedent, the lack of
procedural safeguards resulted in it failing to properly apply the law to Batts’
resentencing. As a result, Batts remains without a final judgment of sentence in this
matter a decade after his conviction. Therefore, as in Sanchez, “we will exercise our
constitutional power of judicial administration to devise a procedure” for the
implementation of the Miller and Montgomery decisions in Pennsylvania.
B. Presumption
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“[A] presumption is a standardized practice, under which certain facts are held to
call for uniform treatment with respect to their effect as to proof of other facts.”
Commonwealth v. Childs, 142 A.3d 823, 830 (Pa. 2016) (quoting 2 Kenneth S. Broun,
et al., McCormick on Evidence 675-76 (7th ed. 2013)). A presumption arises, inter alia,
if a fact constitutes “a conclusion firmly based upon the generally known results of wide
human experience.” Watkins v. Prudential Ins. Co. of Am., 173 A. 644, 648 (Pa. 1934).
A presumption is mandatory and requires the factfinder to find the existence of an
“elemental” or “ultimate” fact based on proof of a “basic” or “evidentiary” fact. Childs,
142 A.3d at 830; City of Pittsburgh v. W.C.A.B., 67 A.3d 1194, 1204 (Pa. 2013). For a
presumption to be warranted, the elemental and basic facts must “truly coincide.” See
Commonwealth v. Kelly, 724 A.2d 909, 911 (Pa. 1999). The question here is whether,
pursuant to Miller and Montgomery, we should adopt a presumption against sentencing
a juvenile to life in prison without the possibility of parole. Using the Childs construct,
the issue is whether the court must find the ultimate fact that an offender is capable of
rehabilitation and that the crime was the result of the transient immaturity upon proof of
the basic fact that the offender was under eighteen years of age when he or she
committed the murder.
The Commonwealth and its amicus not only argue against a presumption that the
juvenile is rehabilitable, but go further to urge that pursuant to Miller and Montgomery,
the juvenile offender bears the burden of proving that he or she is not eligible for a life-
without-parole sentence. Commonwealth’s Brief at 29-31; DAA’s Brief at 20-22. We
reject both prongs of the Commonwealth’s argument. Certain isolated statements in the
Miller and Montgomery decisions might be interpreted to suggest that the offender
[J-118-2016] - 69
should bear the burden of proving that he is among the great majority of juveniles who
are not constitutionally eligible for a sentence of life without parole. See, e.g., Miller,
567 U.S. at 475 (referring to the characteristics of youth as “mitigating factors”);
Montgomery, 136 S. Ct. at 726 (stating that at sentencing, “Montgomery had no
opportunity to present mitigation evidence to justify a less severe sentence”), 735
(referring to the characteristics of youth as “sentencing factors”), 736-37 (stating that
Montgomery and others similarly situated must have the opportunity to show the crime
committed did not reflect their irreparable corruption).
However, any suggestion of placing the burden on the juvenile offender is belied
by the central premise of Roper, Graham, Miller and Montgomery ‒ that as a matter of
law, juveniles are categorically less culpable than adults. This central premise arises
from “a conclusion firmly based upon the generally known results of wide human
experience,” which is that the vast majority of adolescents change as they age and,
despite their involvement in illegal activity, do not “develop entrenched patterns of
problem behavior.” Miller, 567 U.S. at 471 (referring to this conclusion as “common
sense” and “what any parent knows”) (citing Roper, 543 U.S. at 569-70); Watkins, 173
A. at 648. The Miller Court reiterated the High Court’s longstanding conclusion that the
distinctive attributes of youth generally preclude a finding that a juvenile will forever be
incorrigible, especially in light of the great difficulty even professional psychologists
have in making that determination during a person’s youth. See Miller, 567 U.S. at 472-
73, 479-80.
Miller’s holding, “that life without parole is an excessive sentence for children
whose crimes reflect transient immaturity,” is a “substantive rule of constitutional law.”
[J-118-2016] - 70
Montgomery, 136 S. Ct. at 735. This, according to Montgomery, means that only “the
rarest of juvenile offenders” are eligible to receive a sentence of life without the
possibility of parole. Id. Only in “exceptional circumstances” will life without the
possibility of parole be a proportionate sentence for a juvenile.21 Id. at 736. Thus, there
can be no doubt that pursuant to established Supreme Court precedent, the ultimate
fact here (that an offender is capable of rehabilitation and that the crime was the result
of transient immaturity) is connected to the basic fact (that the offender is under the age
of eighteen). See Childs, 142 A.3d at 830.
The United States Supreme Court expressly left it to the States to determine how
the holding in Miller was to be implemented in state court proceedings. Montgomery,
136 S. Ct. at 735. We therefore conclude that in Pennsylvania, a faithful application of
the holding in Miller, as clarified in Montgomery, requires the creation of a presumption
against sentencing a juvenile offender to life in prison without the possibility of parole.
C. Standard of Proof and Notice
The United States Supreme Court did not outlaw a sentence of life in prison
without the possibility of parole for all juveniles convicted of first-degree murder; it is
only a disproportionate (illegal) sentence for those offenders who may be capable of
rehabilitation. See Miller, 567 U.S. at 479-80; Montgomery, 136 S. Ct. at 726, 734.
Therefore, the presumption against the imposition of this punishment is rebuttable by
21
In fact, while leaving the ultimate procedure for resentencing to the States, the
Montgomery Court suggested that all juveniles serving illegal mandatory life sentences
across the country could be given the opportunity for parole as a matter of course,
disposing of the need for States to convene resentencing hearings at all. Montgomery,
136 S. Ct. at 736. This, the Court proposed, would require “prisoners who have shown
an inability to reform” to complete their life sentences but afford the opportunity for
release to offenders who have demonstrated their ability to change. Id.
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the Commonwealth upon proof that the juvenile is removed from this generally
recognized class of potentially rehabilitable offenders. See Commonwealth v. Rush,
562 A.2d 285, 287 (Pa. 1989) (reciting the “well established principle of the law of
evidence” that a presumption places the burden of proof and the burden of production
on the party that seeks to rebut the presumed fact); Kelly, 724 A.2d at 911 (recognizing
that a presumption operates as proof of the ultimate fact unless and until the opposing
party comes forward with evidence sufficient to rebut the presumption); Commonwealth
v. DiFrancesco, 329 A.2d 204, 208 n.3 (Pa. 1974).
The question then arises as to the standard of proof required to meet this burden.
As we have previously recognized, “even in a sentencing proceeding, due process
requirements are applicable.” Commonwealth v. Williams, 733 A.2d 593, 603 (Pa.
1999). Because “not all situations calling for procedural safeguards call for the same
kind of procedure,” however, we must define “what process is due” for a determination
that a juvenile offender is incapable of ever being rehabilitated. Id. at 604 (quoting
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
“The standard [of proof] serves to allocate the risk of error between the litigants
and to indicate the relative importance attached to the ultimate decision.” Addington v.
Texas, 441 U.S. 418, 423 (1979). “The function of a standard of proof, as that concept
is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the
factfinder concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication.” Sanchez, 36
A.3d at 65 (quoting Cooper v. Oklahoma, 517 U.S. 348, 362 (1996)).
[J-118-2016] - 72
There are three standards of proof typically used in Pennsylvania jurisprudence:
a preponderance of the evidence, clear and convincing evidence, and proof beyond a
reasonable doubt. A preponderance of the evidence is “‘a more likely than not inquiry,’
supported by the greater weight of the evidence; something a reasonable person would
accept as sufficient to support a decision.” In re Vencil, 152 A.3d 235, 246 (Pa. 2017)
(citing Samuel–Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 35 (Pa. 2011); J.S. v. Com.,
Dep't. of Pub. Welfare, 596 A.2d 1114, 1115 (Pa. 1991)). Clear and convincing
evidence requires proof “that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without hesitancy, of the truth of the
precise facts in issue.” Id. at 237 n.1 (quoting Commonwealth v. Maldonado, 838 A.2d
710, 715 (Pa. 2003)) (bracketing omitted). Both of these standards are traditionally
applicable in civil matters.22
Proof beyond a reasonable doubt, on the other hand, is a criminal standard and
carries the highest evidentiary burden. This standard “impresses on the trier of fact the
necessity of reaching a subjective state of certitude of the facts in issue.” In re Winship,
397 U.S. 358, 364 (1970) (quoting Dorsen & Rezneck, In Re Gault and the Future of
Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967)).
22
This is not to say that these standards never apply in a criminal context. For
hearings on a motion to suppress evidence, for example, the Commonwealth bears the
burden of proving by a preponderance of the evidence that the evidence was lawfully
obtained. Commonwealth v. Wallace, 42 A.3d 1040, 1047 (Pa. 2012). Further, in
cases tried before the Pennsylvania Court of Judicial Discipline against judicial officers
alleged to have violated the Pennsylvania Code of Judicial Conduct or the Pennsylvania
Constitution, the Judicial Conduct Board, as prosecutor, bears the burden of proof by
clear and convincing evidence. Pa. Const. art. V, § 18(b)(5). These matters are
referred to as quasi-criminal in nature because of the potential for removal from office
as a sanction. See In re Carney, 79 A.3d 490, 508 (Pa. 2013).
[J-118-2016] - 73
[W]hile private parties may be interested intensely in a civil
dispute over money damages, application of a “fair
preponderance of the evidence” standard indicates both
society’s “minimal concern with the outcome,” and a
conclusion that the litigants should “share the risk of error in
roughly equal fashion.” When the State brings a criminal
action to deny a defendant liberty or life, however, “the
interests of the defendant are of such magnitude that
historically and without any explicit constitutional
requirement they have been protected by standards of proof
designed to exclude as nearly as possible the likelihood of
an erroneous judgment.” The stringency of the “beyond a
reasonable doubt” standard bespeaks the “weight and
gravity” of the private interest affected, society’s interest in
avoiding erroneous convictions, and a judgment that those
interests together require that “society impose almost the
entire risk of error upon itself.”
Williams, 733 A.2d at 604 (quoting Commonwealth v. Wright, 494 A.2d 354, 360 (Pa.
1985)) (bracketing omitted). See also Santosky v. Kramer, 455 U.S. 745, 755 (1982).
To determine the standard of proof required to satisfy due process concerns, we
must consider (1) the private interest affected; (2) the risk of an erroneous deprivation of
the interest through the procedures established; and (3) the value of the government’s
interest, if any, including “the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” Williams, 733 A.2d at 605 (quoting
Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976)).
The interest at issue here is a juvenile’s loss of his or her fundamental right to
liberty without the ability, in the future, to demonstrate his or her capacity to mature,
change and be rehabilitated over time. The risk of an erroneous decision against the
offender would result in the irrevocable loss of that liberty for the rest of his or her life.
Further, life without parole is typically a proportionately harsher sentence for a juvenile
than it is for an adult, as juveniles will spend a greater percentage of their lives in prison.
[J-118-2016] - 74
Miller, 567 U.S. at 475. On the other hand, an erroneous decision in favor of the
offender (i.e., sentencing the offender to a term of life with the possibility of parole),
carries minimal risk; if the juvenile offender is one of the very rare individuals who is
incapable of rehabilitation, he or she simply serves the rest of the life sentence without
ever obtaining release on parole. Although the Commonwealth certainly has an interest
in ensuring criminals are punished for their actions and that society is protected from
further harm committed by them, this interest remains protected by a life-with-parole
sentence because there are no guarantees that parole will ever be granted. Further, as
it is now impermissible to sentence the great majority of juvenile offenders (past,
present and future) to life without parole in the wake of Montgomery, we cannot envision
the Commonwealth experiencing any appreciable financial burden by requiring it to
shoulder a higher burden of proving the youthful offender’s eligibility for a sentence that,
except in very rare instances, it will not have a basis to seek.
The United States Supreme Court has clearly and unambiguously instructed that
the decision that an offender is one of the rare and uncommon juveniles who may
constitutionally receive a sentence of life without the possibility of parole must be made
with near certainty. The sentencer must determine that the offender is and “forever will
be a danger to society,” a finding that the High Court found to be in direct conflict with a
child’s inherent capacity to change. Miller, 567 U.S. at 472. To protect youthful
offenders from erroneous decisions that foreclose their ability to ever be released from
prison, the Supreme Court therefore held that a sentence of life without parole is
disproportionate and illegal for a juvenile offender unless that defendant “exhibits such
[J-118-2016] - 75
irretrievable depravity that rehabilitation is impossible.” Montgomery, 136 S. Ct. at 733
(citing Miller, 567 U.S. at 479-80) (emphasis added).
Pursuant to our consideration of the attendant due process concerns and the
definitive language used by the Supreme Court, we conclude that to overcome the
presumption against the imposition of a sentence of life without parole for a juvenile
offender, the Commonwealth must prove that the juvenile is constitutionally eligible for
the sentence beyond a reasonable doubt. In an effort to satisfy this burden, the
Commonwealth may present evidence relating to the factors announced in Miller and
the factors appearing in section 1102.1(d).23
Consistent with the requirements of due process and section 1102.1(b), if the
Commonwealth seeks to have the sentencing court impose a sentence of life without
parole on a juvenile offender, it must provide reasonable notice to the defendant prior to
the sentencing hearing. See Commonwealth Dep’t of Transp., Bureau of Driver
Licensing v. Clayton, 684 A.2d 1060, 1064 (Pa. 1996) (“While procedural due process is
a flexible notion which calls for such protections as demanded by the individual
situation, the essential requisites are notice and meaningful opportunity to be heard.”).
See generally 18 Pa.C.S. § 1102.1(b).
D. Expert Testimony
23
As we explain in greater detail later in this Opinion, for purposes of uniformity in
sentencing juveniles facing life without the possibility of parole, courts should examine
both the Miller factors and the section 1102.1(d) factors prior to reaching that decision,
regardless of whether the juvenile was convicted pre- or post-Miller. See infra, pp.80-
83. We observe that some of the Miller factors are noticeably absent from section
1102.1(d). Compare 18 Pa.C.S. § 1102.1(d) with Miller, 567 U.S. at 476-78. All of the
Miller factors, however, must be considered by a court prior to sentencing a juvenile to
life without parole. See Batts I, 66 A.3d at 297.
[J-118-2016] - 76
There is an undeniable appeal to Batts’ contention that expert testimony is
necessary for a court to determine that a juvenile offender is permanently incorrigible.
See Graham, 560 U.S. at 73 (“It is difficult even for expert psychologists to differentiate
between the juvenile offender whose crime reflects unfortunate yet transient immaturity,
and the rare juvenile offender whose crime reflects irreparable corruption.”) (quoting
Roper, 543 U.S. at 572); Miller, 567 U.S. at 479-80. We decline, however, to go so far
as to hold that expert testimony is constitutionally required to rebut the presumption
against the imposition of a sentence of life without the possibility of parole. Expert
testimony is admissible in Pennsylvania if the information is outside of the common
knowledge of the factfinder and the testimony of an expert, so qualified based upon his
or her “knowledge, skill, experience, training or education,” will aid in the understanding
of the fact at issue and the expert utilized a generally accepted methodology. Pa.R.E.
702; Commonwealth v. Delbridge, 855 A.2d 27, 43 (Pa. 2003). The necessity thereof is
thus within the discretion of the sentencing court. Delbridge, 855 A.2d at 44. See also
Commonwealth v. Wilson, 934 A.2d 1191, 1196 (Pa. 2007) (recognizing that the
admissibility of evidence at a sentencing hearing is left to the discretion of the
sentencing court).
Given the presumption against life without parole and the Commonwealth’s
burden beyond a reasonable doubt to rebut the presumption, it is difficult to conceive of
a case where the Commonwealth would not proffer expert testimony and where the
sentencer would not find expert testimony to be necessary. Nonetheless, whether
expert testimony is required to rebut the presumption against permanent incorrigibility
[J-118-2016] - 77
beyond a reasonable doubt will be determined on a case-by-case basis by the
sentencing court.
E. Right to a Jury Determination and Automatic Review by Supreme Court
We further disagree with Batts that a jury must make the finding regarding a
juvenile’s eligibility to be sentenced to life without parole. Batts relies, in part, upon
Alleyne, wherein the United States Supreme Court held that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury.” Alleyne, 133
S. Ct. at 2155. However, the central principle of Alleyne and the decision upon which it
was based, Apprendi v. New Jersey, 530 U.S. 466 (2000),24 is that a factual finding that
increases an individual’s punishment is an element of a different, aggravated offense
than the charged crime. Alleyne, 133 S. Ct. at 2158 (“The touchstone for determining
whether a fact must be found by a jury beyond a reasonable doubt is whether the fact
constitutes an ‘element’ or ‘ingredient’ of the charged offense.”) (citing United States v.
O’Brien, 560 U.S. 218 (2010); Apprendi, 530 U.S. at 483 n.10); Apprendi, 530 U.S. at
495-96 (referring to the finding required to enhance the maximum sentence in that case
as “an essential element of the offense,” which in turn constitutes “an independent
substantive offense”). A finding of “permanent incorrigibility” cannot be said to be an
element of the crime committed; it is instead an immutable characteristic of the juvenile
offender. To render these characteristics crime-specific would contradict the entire
premise of the Supreme Court’s decisions, which prohibit a sentencer from finding that
24
In Apprendi the Court held, “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at
490.
[J-118-2016] - 78
a juvenile offender is unable to be rehabilitated based on the crime itself. Montgomery,
in particular, plainly requires a court to consider the post-crime conduct of a defendant
in determining whether life without parole is a permissible sentence. See id. at 736
(stating evidence that Montgomery has evolved from a troubled youth to a model
prisoner is relevant to show that he is rehabilitable).
Further, the Montgomery Court stated directly that the decision of whether to
sentence a juvenile to life without parole could be made by a judge. Montgomery, 136
S. Ct. at 733 (“Miller requires that before sentencing a juvenile to life without parole, the
sentencing judge take into account ‘how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison.’”)
(emphasis added, citation to Miller omitted); see also Miller, 567 U.S. at 489 (stating “a
judge or jury” must consider the specific attributes of the juvenile offender prior to
sentencing him to life without parole). Thus, the High Court itself did not recognize
juvenile life imprisonment cases to be governed by Alleyne.
Batts’ contention that capital sentencing procedures should apply, including a
determination by a jury before sentencing a juvenile to life without parole and automatic
review of the sentence before this Court, likewise fails. He bases this argument solely
on the comparison made by the Miller and Graham Courts between juvenile life in
prison and adult capital punishment. Although there is no question that the Miller and
Graham Courts compared a juvenile life-without-parole sentence to capital punishment
and that the punishments have many similarities, as stated above, Miller and
Montgomery both found that it is appropriate for a judge to make sentencing decisions
[J-118-2016] - 79
for juveniles facing a sentence of life without the possibility of parole. Montgomery, 136
S. Ct. at 733; Miller, 567 U.S. at 489.
Batts’ suggestion that appeals from the imposition of a sentence of life without
parole should be taken directly to this Court necessarily fails. This Court does not have
jurisdiction over direct appeals from the entry of a life-without-parole sentence by a
court of common pleas. Such appeals are exclusively within the jurisdiction of the
Superior Court. See 42 Pa.C.S. §§ 722, 742. It is beyond the scope of this Court’s
authority to interfere with “the right of the General Assembly to determine the jurisdiction
of any court.” Pa. Const. art. V, § 10(c).
The procedures we have established provide juveniles facing a potential
sentence of life without parole with heightened due process protections. It is our
intention that adherence to these procedures will curtail the imposition of illegal
sentences of life without parole by sentencing courts. We expect that the proper
employment of these procedures will result in courts sentencing juveniles to life without
parole in only the rarest of circumstances, as contemplated and prescribed by the
United States Supreme Court.
F. Discretionary Sentencing Determination
If, after a hearing and consideration of all of the evidence presented, the
sentencing court finds that the Commonwealth has satisfied its burden of proving
beyond a reasonable doubt that the juvenile is so permanently incorrigible that
rehabilitation of the offender would be impossible, the bar against sentencing a juvenile
offender to life without the possibility of parole is lifted. Despite the certainty of its
conclusion that the offender can never be rehabilitated, however, it is left to the
[J-118-2016] - 80
sentencing court’s discretion whether to impose a life-without-parole sentence or to
instead impose a sentence that would allow the juvenile to have an opportunity for
parole consideration.
When sentencing a juvenile to life in prison with the possibility of parole
(regardless of whether a life-without-parole sentence was sought by the
Commonwealth), the sentencing court should be guided by section 1102.1(a) in
determining the minimum term of imprisonment. Although not directly applicable to
juveniles convicted of first-degree murder prior to Miller, as Justice Baer recognized in
his concurrence in Batts I, we cannot ignore the policy determination made by the
General Assembly as to the minimum sentence a juvenile convicted of first-degree
murder must receive. See Batts I, 66 A.3d at 300 (Baer, J., concurring). Our instruction
to seek guidance from the statute is not intended to intrude upon a sentencing court’s
discretion to determine an appropriate, individualized sentence for a given offender, but
instead to advance the long-recognized goals of uniformity and certainty in sentencing
decisions. See id.; Walls, 926 A.2d at 961 n.3, 964; Commonwealth v. Riggins, 377
A.2d 140, 148 n.22 (Pa. 1977) (“Disparity in sentencing is one of the most criticized
aspects of the sentencing process.”); see also Commonwealth v. Martin, 351 A.2d 650,
660-61 (Pa. 1976) (Nix, J., dissenting) (recognizing that sentences in Pennsylvania
must be individualized, but stating that “where there are no significant differences in the
nature of the crime and the background of the offender to dictate a contrary result,”
uniformity in sentences is a laudable goal). “[W]hen two defendants occupy roughly the
same position in terms of those factors which bear on the severity of a sentence, there
[J-118-2016] - 81
can be nothing suspect about the imposition of identical sentences.” Commonwealth v.
Chestnut, 500 A.2d 1225, 1225 (Pa. Super. 1985).
The legislative guidance is particularly useful because the Sentencing Guidelines
adopted by the Pennsylvania Commission on Sentencing do not include a guideline
sentence for an individual convicted of first-degree murder prior to Miller. See 204 Pa.
Code §§ 303.15-303.16 (amended 2008, 2012, 2013, 2014, 2015). Similar to the
Sentencing Guidelines applicable to other crimes, we believe that section 1102.1 will
“help frame the exercise of judgment by the court in imposing a sentence” and “may
provide an essential starting point … that must be respected and considered” when
determining the appropriate minimum sentence for a juvenile convicted of first-degree
murder prior to the Miller decision. See Walls, 926 A.2d at 964-65.
For some of the juvenile first-degree murder cases, the only appreciable
difference between offenders will be the date of conviction. Therefore, to promote
uniformity in sentencing in pre- and post-Miller cases, when determining the appropriate
minimum term of incarceration for pre-Miller offenders being sentenced to life with the
possibility of parole, sentencing courts should be guided by the minimum sentences
contained in section 1102.1(a) of twenty-five years for a first-degree murder committed
when the defendant was less than fifteen years old and thirty-five years for a first-
degree murder committed when the defendant was between the ages of fifteen and
eighteen.25 18 Pa.C.S.A. § 1102.1(a).
25
Like the caveat in Justice Baer’s concurrence in Batts I, our directive that sentencing
courts should be guided by section 1102.1 does not result from a review of the
constitutionality of the statute. See Batts I, 66 A.3d at 300 n.1 (Baer, J., concurring).
Such consideration must await a challenge, if any should arise, in another case.
(continued…)
[J-118-2016] - 82
G. Other States
Our adoption of a presumption against life without parole for juvenile offenders
finds support in the decisions of the highest appellate courts in other states that have
been faced with this question.26 Missouri prohibits sentencing a juvenile to life without
(…continued)
Rather, our decision here is based upon the policy determination and legislative intent
embodied in section 1102.1 and the goal of uniformity in sentencing.
Neither party has argued that section 1102.1 must be applied to pre-Miller juvenile
offenders. Further, there is no constitutional challenge to the prospective nature of the
statute, and in the absence of such a challenge, we are without authority to strike the
effective date. 1 Pa.C.S. § 1925. There is no impediment, however, under the
Statutory Construction Act or otherwise, to our instructing sentencing courts to use the
new legislative provision as guidance without making it mandatory.
26
Our research reveals that the trend among our sister states is to outlaw entirely the
sentence of life without parole for juvenile offenders. Seventeen states and the District
of Columbia currently prohibit juvenile offenders from being sentenced to life in prison
without the possibility of parole. Prior to Miller, only six states (Alaska, Colorado,
Kansas, Kentucky, Montana and Oregon) banned the sentence. Following Miller, nine
more states (Connecticut, Delaware, Hawaii, Massachusetts, Nevada, Texas, Vermont,
West Virginia and Wyoming) and the District of Columbia eliminated the punishment.
Another two states (Iowa and Utah) instituted a ban after Montgomery. The bar to the
punishment in the majority of these states came through the actions of their legislatures;
only Iowa and Massachusetts reached this determination through court decisions.
Although Batts included a challenge to the constitutionality of a discretionary life-
without-parole sentence imposed upon a juvenile in his Pa.R.A.P. 1925(b) statement,
we rejected a similar challenge on Pennsylvania constitutional grounds in Batts I.
Batts I, 66 A.3d at 297-99. Batts did not again raise this claim in his petition for
allowance of appeal or include any argument in support thereof before this Court. We
therefore do not revisit this question.
Nearly all states have considered the impact of Miller and Montgomery on their
sentencing practices. Some have concluded that a specific finding of permanent
incorrigibility is required before it is permissible to sentence a juvenile to life without
parole. See, e.g., Veal v. State, 784 S.E.2d 403, 412 (Ga. 2016). Others have simply
required courts to consider the Miller factors at a sentencing hearing. See, e.g., Ex
parte Henderson, 144 So. 3d 1262, 1283-84 (Ala. 2013). However, as was the
circumstance for this Court in Batts I, these state courts have not yet faced the question
of whether a presumption against the sentence is required. Our research further
(continued…)
[J-118-2016] - 83
parole unless the State proves beyond a reasonable doubt that the Miller factors allow
the imposition of the sentence. State v. Hart, 404 S.W.3d 232, 235 (Mo. 2013). Prior to
their respective legislatures eliminating life without parole as a sentence for a juvenile
offender, the High Courts in both Utah (pursuant to a statute) and Connecticut found
there to be a presumption against the sentence for a juvenile offender. See State v.
Houston, 353 P.3d 55, 69-70 (Utah 2015); State v. Riley, 110 A.3d 1205, 1214 (Conn.
2015). The Supreme Court of Iowa likewise initially found there to be a presumption
against sentencing a juvenile to life without parole, but subsequently outlawed the
sentence as applied to juveniles completely. See State v. Seats, 865 N.W.2d 545, 555
(Iowa 2015); State v. Sweet, 879 N.W.2d 811, 839 (Iowa 2016).
VIII. Conclusion
For sentencing purposes, there is a presumption against the imposition of a
sentence of life without parole for a defendant convicted of first-degree murder
committed as a juvenile. The Commonwealth must give reasonable notice of its
intention to seek a sentence of life without the possibility of parole. To rebut the
presumption, the Commonwealth has the burden to prove, beyond a reasonable doubt,
that the juvenile offender is permanently incorrigible and thus is unable to be
rehabilitated. Consistent with the mandate of Miller and Montgomery, for a life-without-
(…continued)
reveals that none of the highest courts in other states have ruled that Miller requires
either expert testimony or a jury determination pursuant to Apprendi and its progeny for
a juvenile to constitutionally be sentenced to life without the possibility of parole. But
see People v. Skinner, 889 N.W.2d 487 (Mich. 2017) (Michigan Supreme Court granted
allowance of appeal to consider “whether the decision to sentence a person under the
age of 18 to a prison term of life without parole under MCL 769.25 must be made by a
jury beyond a reasonable doubt” pursuant to Apprendi).
[J-118-2016] - 84
parole sentence to be constitutionally valid, the sentencing court must find that the
juvenile offender is permanently incorrigible and that rehabilitation would be impossible.
The Commonwealth’s evidence and the sentencing court’s decision must take into
account the factors announced in Miller and section 1102.1(d) of the Crimes Code.
Even if the Commonwealth satisfies its burden of proof, the sentencing court is not
required to impose a life-without-parole sentence upon a juvenile offender.
In sentencing a juvenile offender to life with the possibility of parole, traditional
sentencing considerations apply. See 42 Pa.C.S. § 9721(b). The sentencing court
should fashion the minimum term of incarceration using, as guidance, section 1102.1(a)
of the Crimes Code.
The decision of the Superior Court is hereby reversed. We remand the case to
the sentencing court for further proceedings consistent with this Opinion. Jurisdiction
relinquished.
Chief Justice Saylor, Justices Todd, Dougherty, and Wecht join the opinion.
Justice Wecht files a Concurring Opinion in which Justice Todd joins.
Justice Baer files a Concurring and Dissenting Opinion.
Justice Mundy did not participate in the consideration or decision of this matter.
[J-118-2016] - 85