Com. v. Lamore, D.

J-S83003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DORIAN LAMORE :
:
Appellant : No. 49 WDA 2018
Appeal from the Judgment of Sentence December 5, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011572-1993,
CP-02-CR-0013461-1993
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED JUNE 19, 2019
Appellant, Dorian Lamore, challenges the judgment of sentence entered
in the Allegheny County Court of Common Pleas, following resentencing on his
first-degree murder conviction. We affirm.
In 1993, Jay Weiss and Paul Puhac were attempting to deliver pizza
when they were approached and robbed by Lamore, then sixteen, and a co-
defendant. In the process, Weiss was shot and killed at the scene, and Puhac
was admitted to the hospital with a gunshot wound to the left arm.
Lamore proceeded to a jury trial, where he was convicted of first-degree
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murder1, among other charges2 related to the incident. He was sentenced to
life without parole on the murder charge, and an additional twenty-five to fifty
years’ incarceration on the remaining charges.
On March 21, 2016, Lamore filed a petition pursuant to the Post
Conviction Relief Act (“PCRA”) challenging the legality of his sentence
following the United States Supreme Court’s decisions in Miller v. Alabama,
567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).
The PCRA court granted relief on this claim. Lamore was resentenced to thirty-
five years to life imprisonment on the first-degree murder charge, with a
concurrent twenty-five to fifty years’ incarceration on the remaining charges.
This timely appeal followed.
On appeal, Lamore challenges the legality of his sentence, arguing the
trial court had no valid statutory authority to impose a maximum term of life
imprisonment at his resentencing and that such a sentence is unconstitutional.
“Issues relating to the legality of a sentence are questions of law…. Our
standard of review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Barnes, 167 A.3d 110, 116 (Pa. Super. 2017)
(en banc) (internal quotations and citation omitted, ellipses in original).
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1 CP-02-CR-11572-1993
2 At CP-02-CR-13461-1993, Lamore was found guilty of two counts of robbery
and one count each of aggravated assault, carrying a firearm without a
license, criminal conspiracy and recklessly endangering another person.
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In Lamore’s first issue on appeal, he contends that pursuant to Miller
and Montgomery, there is no legal sentence in Pennsylvania for defendants
convicted of murder prior to the enactment of 18 Pa.C.S.A. § 1102.1 in 2012.
He therefore believes the trial court erred by imposing a maximum sentence
of life imprisonment for his first-degree murder conviction.
In Miller, the United States Supreme Court held that mandatory life
imprisonment without parole for juvenile offenders violates the Eighth
Amendment’s prohibition on cruel and unusual punishment. See 567 U.S. at
465. Notably, the Court did not foreclose sentencing courts from ever
imposing a term of life without parole in a homicide case. See id., at 479-
480. Instead, it required sentencing courts to consider a juvenile’s immaturity
and capacity for change, and to impose a life without parole term only in those
extreme and rare cases where the sentencing court determines that the
juvenile is incapable of rehabilitation. See id. Thereafter, in Montgomery,
the Court held Miller announced a substantive rule of constitutional law that
must be applied retroactively. See Montgomery, 136 S.Ct. at 736.
Recognizing Pennsylvania’s existing sentencing scheme violated Miller,
the Legislature enacted 18 Pa.C.S.A. § 1102.1. Section 1102.1 provided that
juvenile offenders who were over the age of fifteen at the time of their crimes
and convicted of first-degree murder after June 24, 2012, must be sentenced
to a maximum term of life imprisonment. See 18 Pa.C.S.A. 1102.1(a)(1). The
minimum term for such offenders is thirty-five years. See id.
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However, the new law did not address the resentencing of juvenile
offenders who were convicted of murder and sentenced to life without parole
before June 24, 2012. Instead, the Pennsylvania Supreme Court held in
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2017) (“Batts I”), that juvenile
offenders for whom the sentencing court deems a life without parole sentence
is inappropriate, “are subject to a mandatory maximum sentence of life
imprisonment as required by section 1102(a), accompanied by a minimum
sentence determined by the common pleas court upon resentencing[.]” Id.,
at 297.
The Supreme Court later reaffirmed this rule in Commonwealth v.
Batts, 163 A.3d 410, 459-460 (Pa. 2017) (“Batts II”).The Court found that
in fashioning a minimum sentence, courts “should be guided by the minimum
sentences contained in section 1102.1(a)[.]” Id., at 458. In doing so, the
Batts II Court “expressly rejected the claim … that there is no legislatively
authorized sentence for juveniles convicted of first-degree murder prior to
2012.” Commonwealth v. Melvin, 172 A.3d 14, 21 (Pa. Super. 2017)
(citation omitted).
Here, Lamore was convicted of first-degree murder and sentenced to
life without the possibility of parole in 1994. He was resentenced in 2017,
following Miller, Montgomery, and Batts II, to a term of thirty-five years
to life imprisonment.
Batts II plainly rejected the argument that the Sentencing Code does
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not provide for imposition of a legal sentence for defendants convicted prior
to the enactment of 18 Pa.C.S.A. § 1102.1. See Commonwealth v. Melvin,
172 A.2d 14, 21. Batts II explicitly directed courts to use 18 Pa.C.S.A. §
1102.1 as a guideline for resentencing juvenile offenders. See id., at 20-21.
Therefore, the court had authority to resentence Lamore pursuant to Batts
II. Further, Batts II required the court to sentence Lamore to a mandatory
maximum of life imprisonment. See id., at 458. See also Commonwealth
v. Seskey, 170 A.3d 1105, 1109 (Pa. Super. 2017). Lamore is not entitled to
relief on his first claim.
Lamore also argues that, under Batts II, section 1102(a) is
unconstitutionally vague. He contends that section 1102(a) “does not give fair
notice that a sentence of life with the possibility of parole falls within the
prescribed sentencing range.” Appellant’s Brief, at 23. This argument is
waived for multiple reasons. First, this argument is distinct from Lamore’s
claim that the Sentencing Code does not provide for a sentence for juveniles
convicted of murder prior to 2012. Yet, Lamore did not include this argument
in his statement of the questions involved. See Pa.R.A.P. 2116(a) (“No
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby”); see also Commonwealth v.
Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002). Nor did he provide a
separate section for this argument. See Pa.R.A.P. 2119(a) (“The argument
shall be divided into as many parts as there are questions to be argued”).
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Even in the absence of these defects, the argument is waived for a more
fundamental flaw, as Lamore did not include it in his Pa.R.A.P. 1925(b)
statement of matters complained of on appeal. See Commonwealth v. Lord,
719 A.2d 306, 309 (Pa. 1998) (“Any issue not raised in a 1925(b) statement
will be deemed waived”).
In Lamore’s second preserved issue on appeal, he baldly asserts, in a
one-sentence argument, that his maximum sentence of life imprisonment is
unconstitutional pursuant to the United States’ Constitution as well as the
Constitution of Pennsylvania.
When briefing the various issues that have been preserved, it is
an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with
citations to legal authorities. Citations to authorities must
articulate the principles for which they are cited.
This Court will not act as counsel and will not develop arguments
on behalf of an appellant. Moreover, when defects in a brief
impede our ability to conduct meaningful appellate review, we
may dismiss the appeal entirely or find certain issues to be
waived.
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (citations
omitted; emphasis added).
Here, Lamore’s second issue is set forth in a one-sentence paragraph.
He does not discuss or cite to any pertinent case law other than one case3,
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3Along with his puzzling inclusion of citation to Roper v. Simmons, 543 U.S.
551 (2005), Lamore also tacks on citations to “Miller” and “Montgomery.”
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which held that it was unconstitutional to execute individuals who were
juveniles at the time of their capital crimes, an issue unrelated to the facts of
this case.
Given Lamore’s failure to develop any meaningful argument to support
his claims, we are constrained to find his constitutional claims waived. See id.As we find Lamore’s first issue meritless, and his remaining claims
waived, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/19/2019
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See Appellant’s Brief, at 25. However, he does not expand on what principles
they are specifically cited for and does not cite to any particular page within
those cases. Further, as discussed in our analysis of Lamore’s first issue, these
cases laid the foundation for Batts II, which held that courts are clearly
allowed, and in fact are mandated, to sentence juveniles convicted of first-
degree murder to a maximum sentence of life in prison. See Miller, 567 U.S.
at 479; See also Montgomery, 136 S.Ct. at 736.
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