Com. v. Holtmeyer, J.

J-A12019-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JESSICA NICOLE HOLTMEYER :
:
Appellant : No. 1370 WDA 2019
Appeal from the Judgment of Sentence Entered December 7, 2018
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000502-1998,
CP-17-CR-0000503-1998
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED SEPTEMBER 14, 2020
Appellant, Jessica Nicole Holtmeyer, appeals from the judgment of
sentence entered in the Clearfield County Court of Common Pleas, following
the grant of relief on her petition under the Post-Conviction Relief Act
(“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows. On
May 9, 1998, Appellant and several teenagers murdered Kimberly Dotts.
Appellant was 16 years old at the time. The Commonwealth charged Appellant
as an adult at two separate docket numbers with several offenses stemming
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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from the May 9th incident.2 At Docket No. 502-1998, the Commonwealth
charged Appellant with criminal homicide. At Docket No. 503-1998, Appellant
faced charges for, inter alia, one count of conspiracy to commit homicide and
two counts each of aggravated assault and conspiracy to commit aggravated
assault. The trial court consolidated the cases for trial upon the
Commonwealth’s request.
A prior panel of this Court summarized the evidence presented at
Appellant’s jury trial, in part, as follows.
On May 9, 199[8], the 16-year-old [A]ppellant, with the
help of her friends, cruelly and brutally murdered 15-year-
old Kimberly Dotts (hereinafter “the victim”). The group of
teens involved in this incident referred to themselves as “the
Runaways.” The gang’s title was derived from their
intentions—to run away from home to Florida. The self-
titled gang included Aaron Straw (18), Dawn Lanager (15),
Theresa Wolfe (14), Patrick Lucas (16), Clint Canaway (17),
and the victim (15). Appellant, however, did not have
intentions on travelling to Florida.
In preparation for their attempt to run away to Florida, the
teens stole a car, which they later crashed. The gang then
walked to [A]ppellant’s home; however, when they arrived,
[A]pellant was sleeping. Straw testified that [A]ppellant
became upset when she realized the victim was with the
group, because the victim was thought to be a “snitch.”
Testimony was also presented that the movie “Scream” was
on the television and that [A]ppellant commented it would
be fun to hang someone.
The teens then traveled to a hunting camp…where they
planned to stay until they left for Florida that evening. They
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2 The record does not indicate why the Commonwealth charged Appellant at
separate docket numbers for offenses relating to the same incident and victim.
Regardless, the cases proceeded virtually as one case.
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vandalized the hunting cabins—flipping a camper over and
stealing a dog, liquor, clothesline rope, and sparklers from
various campers.
Then a bizarre “initiation” ceremony began. Straw threw
[a] rope over a tree limb, and a loop was created at the
other end. One by one, with the exception of [A]ppellant
and Straw, the members of the Runaways each placed the
noose around his or her neck. The victim was last to
complete the ritual, however, she was not permitted to take
her head out of the noose. Rather, Straw and [A]ppellant
began to pull on the rope. The victim was pulled onto her
tiptoes for approximately 20-30 seconds while crying. The
victim was released when the group heard a four-wheeler
approaching. Choking and crying, the victim took the noose
off her neck. At this point, it appears that everyone in the
group with the exception of the victim, [A]ppellant, Straw,
and Wolfe left the area.
Straw then placed the rope over another tree, and he tied
the other end of the rope to a rock. The victim was
convinced to put her neck into the noose again. Appellant
and Straw then pulled on the rope until the victim passed
out. Straw testified that the victim’s lips had turned blue
and that she was not breathing. The victim’s body was then
dropped to the ground. Wolfe checked to see if the victim
was alive, and Straw grabbed a log and threw it on the
victim’s abdomen. The victim began to breathe, “like
someone [having] an asthma attack,” and move her arms
and legs. Straw tried to burn the rope off her neck so “it
would relieve all that pressure, so we could get her up off
the ground.” Appellant picked up a large rock, raised it over
her head, and at least twice struck the victim in the face.
Lucas testified that when he was summoned to return to the
scene, he saw the victim in a pool of blood. He also noticed
that [A]ppellant had rope burns on her hands. The victim’s
body was then covered with leaves and branches. The rope
was thrown into an abandoned car. Wolfe and Lanager
testified that [A]ppellant stated she wanted to “do it again.”
Testimony was also presented that [A]ppellant threatened
to kill anyone who said anything. … The victim’s body was
“discovered” in the woods by Straw and a few other gang
members.
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… Testimony of both lay witnesses and police officers was
presented, along with the testimony of…a forensic
pathologist who performed the autopsy on the victim. [The
pathologist] testified regarding his examination and
determined the cause of death was due to the blows to the
victim’s head by the rock.
Commonwealth v. Holtmeyer, No. 1306 WDA 2000, at 1-5 (Pa.Super. filed
Nov. 20, 2001) (unpublished memorandum) (internal record citations and
footnote omitted). On January 28, 1999, a jury convicted Appellant of first-
degree murder and related offenses. The court sentenced Appellant at both
docket numbers on March 24, 1999, to an aggregate term of life without
parole (“LWOP”).3
This Court affirmed the judgment of sentence on November 20, 2001,
and our Supreme Court denied allowance of appeal on June 19, 2002. On
June 7, 2010, Appellant filed pro se her first PCRA petition. The court
appointed counsel and later denied Appellant’s petition on April 15, 2011.
On August 3, 2012, Appellant filed a counseled PCRA petition, her
second, requesting relief under Miller v. Alabama, 567 U.S. 460, 132 S.Ct.
2455, 183 L.Ed.2d 407 (2012). Upon Appellant’s request, the PCRA court
stayed the petition pending the disposition of several cases before the U.S.
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3 The court imposed lesser terms of imprisonment for the other convictions.
On April 28, 2000, the court amended the sentencing order to run some of
the sentences on the less serious crimes concurrent to the LWOP sentence for
first-degree murder. The March 24, 1999 judgment of sentence otherwise
remained intact.
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Supreme Court and Pennsylvania Supreme Court interpreting/applying Miller.
On March 16, 2016, Appellant filed an amended PCRA petition citing
Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599(2016). Appellant also requested a stay pending the Pennsylvania Supreme
Court’s decision in Commonwealth v. Batts, 640 Pa. 401, 163 A.3d 410(2017) (“Batts II”), which the PCRA court granted.
On July 6, 2018, the PCRA court granted Appellant relief and ordered
resentencing. On July 27, 2018, the court conducted a resentencing hearing,
after which the court held its decision in abeyance. Subsequently, the
Commonwealth filed a sentencing brief, opining that Appellant is not
incorrigible, and recommending that the court resentence Appellant to thirty-
five (35) years to life incarceration for first-degree murder.
On December 7, 2018, the court conducted another sentencing hearing
and determined that the record did not show Appellant was incapable of
rehabilitation. That same day, the court vacated Appellant’s sentences at both
docket numbers. Upon review of the whole record and with the benefit of a
pre-sentence investigation (“PSI”) report, the court resentenced Appellant at
both docket numbers. Specifically, the court imposed a sentence of thirty-
five (35) years to life imprisonment for first-degree murder.4
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4 The court imposed lesser terms of imprisonment for the other convictions
concurrent with Appellant’s first-degree murder sentence.
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On December 17, 2018, Appellant timely filed post-sentence motions,
which the court denied on March 8, 2019. On April 3, 2019, Appellant timely
filed a notice of appeal.5 The court ordered Appellant on April 17, 2019, to
file a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(b); Appellant complied on May 1, 2019.
Appellant raises the following issues for our review:
Whether the court erred as a matter of law when it
determined that [Appellant] should be subject to a
mandatory maximum of a life sentence when the imposition
of such a maximum sentence was mandatory in nature, did
not reflect an[] individualized assessment of [Appellant]’s
culpability and ultimate sentence, and was not supported by
an “on the record” discussion of the salient and applicable
factors as set out in the U.S. Supreme Court holding in the
case of Miller v. Alabama and Commonwealth v.
Batts[?]
Whether the imposition of a 35-year minimum sentence in
this case amounts to error as a matter of law when the
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5 On September 26, 2019, this Court issued a rule to show cause why
Appellant’s appeal should not be quashed where Appellant filed a single notice
of appeal from more than one underlying docket number. In Commonwealth
v. Walker, 646 Pa. 456, 185 A.3d 969 (2018), our Supreme Court held that
an appellant must file separate notices of appeal from orders which resolve
issues arising at separate trial court docket numbers, and an appellant’s failure
to do so requires the appellate court to quash the appeal. Nevertheless, this
Court recently held that a breakdown in the operations of the court occurs
when the trial court suggests that a single notice of appeal from an order
listing multiple docket numbers is sufficient to perfect the appeal. See
Commonwealth v. Larkin, ___ A.3d. ___, 2020 WL 3869710 (Pa.Super.
filed July 9, 2020) (en banc). In those circumstances, the appellate court can
overlook an appellant’s noncompliance with Walker and decline to quash the
appeal. Id. Here, when the court advised Appellant of her appellate rights
following resentencing, the court suggested Appellant needed to file only a
single notice of appeal. Thus, we decline to quash Appellant’s appeal for any
technical noncompliance with Walker. See id.-6-
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sentence was imposed pursuant to guidance gleaned from
the current PA statute found at 18 Pa.C.S.A. § 1102.1, and
such a sentence does not reflect an individualized sentence
as mandated [by] the U.S. Supreme Court in the case of
Miller v. Alabama[?] Such a sentence is mandatory under
that statute regardless of the application of the factors set
forth in the U.S. Supreme Court case of Miller v. Alabama.
Whether the imposition of a 35-year minimum sentence in
this case amounts to error as a matter of law when the
sentence was imposed absent the requisite on the record
statement pertaining to the court’s application of the salient
and applicable factors set forth in the U.S. Supreme Court
case of Miller v. Alabama[?]
Whether the sentencing court abused its discretion…when it
discounted the weight of the evidence as applied to the
relevant factors set forth in the U.S. Supreme Court’s
holding in the case of Miller v. Alabama which applied to
the issues of youthful trauma and of rehabilitation, assigned
greater weight to other factors such as gravity of the offense
and a 20-year-old victim impact statement, and failed to set
forth its reasoning in an “on the record” discussion of the
application of all the factors set forth in Miller v.
Alabama[?]
Whether the court’s imposition of a 35-year minimum
sentence amounts to error as a matter of law when such a
sentence would amount to a “de facto” life sentence under
the circumstances of this case, contrary to the U.S.
Supreme Court’s holding in the case of Miller v.
Alabama[?]
(Appellant’s Brief at 8-9) (reordered for purposes of disposition).6
In her second and third issues combined, Appellant argues the
resentencing court failed to consider the factors delineated in Miller for
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6 In her brief, Appellant states that she abandons her first issue on appeal
(see Appellant’s Brief at 28), so we give it no further attention.
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sentencing a juvenile convicted of first-degree murder. Appellant asserts the
court also did not recite on the record its application of the Miller standards.
Appellant concludes this Court should vacate and remand for a new
resentencing hearing. We disagree.
A claim that a sentencing court failed to comply with Miller implicates
the legality of the sentence. Batts II, supra at 444, 163 A.3d at 435.
Therefore, our standard of review is de novo and our scope of review is
plenary. Id. The sentencing court’s determination of whether to impose a
LWOP sentence upon a juvenile is a mixed question of law and fact. Id. “[W]e
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
conclusion.” Id. at 444, 163 A.3d at 435-36.
In 2012, the United States Supreme Court held that mandatory LWOP
sentences for those under 18 years old at the time they committed homicide
constitute cruel and unusual punishments in violation of the Eighth
Amendment to the United States Constitution. Miller, supra at 489, 132
S.Ct. at 2475, 183 L.Ed.2d at ___.7 “A juvenile homicide defendant can only
be sentenced to LWOP if…she is permanently incorrigible, irreparably corrupt,
or irretrievably depraved.” Commonwealth v. Foust, 180 A.3d 416, 427
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7 Subsequently, the United States Supreme Court held that Miller established
a new substantive constitutional right that applies retroactively to cases on
state collateral review. See Montgomery, supra.
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(Pa.Super. 2018) (citing Miller, supra at 471, 473, 479–480, 132 S.Ct. at
2464-66, 2469). Thus, there is a presumption against sentencing a juvenile
convicted of murder to LWOP, which the Commonwealth can rebut if it proves
beyond reasonable doubt that the juvenile is incapable of rehabilitation. Batts
II, supra at 411, 163 A.3d at 416.
In the wake of Miller, the Pennsylvania General Assembly enacted 18
Pa.C.S.A. § 1102.1, which provides in relevant part as follows:
§ 1102.1. Sentence of persons under the age of 18
for murder, murder of an unborn child and murder of
a law enforcement officer
(a) First degree murder.—A person who has been
convicted after June 24, 2012, of a murder of the first
degree…and who was under the age of 18 at the time of the
commission of the offense shall be sentenced as follows:
(1) A person who at the time of the commission of the
offense was 15 years of age or older shall be sentenced
to a term of life imprisonment without parole, or a term
of imprisonment, the minimum of which shall be at least
35 years to life.
* * *
(e) Minimum sentence.—Nothing under this section shall
prevent the sentencing court from imposing a minimum
sentence greater than that provided in this section.
Sentencing guidelines promulgated by the Pennsylvania
Commission on Sentencing may not supersede the
mandatory minimum sentences provided under this section.
* * *
18 Pa.C.S.A. § 1102.1(a)(1), (e).
“Section 1102.1 does not prescribe minimum sentences for juvenile
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homicide defendants who…were convicted of first-[degree] or second-degree
murder [on or] before June 24, 2012.” Foust, supra at 428 (emphasis
added). Nevertheless, our Supreme Court has held that Section 1102.1 also
applies to juveniles convicted of first-degree or second-degree murder prior
to June 25, 2012. Batts II, supra at 401, 459–60, 163 A.3d at 444–45. So,
a juvenile who committed murder between the ages of 15 and 18, and was
convicted of first-degree murder before June 25, 2012, is subject either to
LWOP, or a mandatory maximum life imprisonment term and a minimum
term-of-years sentence. Id.; 18 Pa.C.S.A. § 1102.1(a)(1), (e).
The Miller Court established that a juvenile offender’s sentence for
murder must be individualized, and listed several factors for sentencing courts
to consider when imposing a sentence unique to the juvenile. Miller, supra
at 477-78, 132 S.Ct. at 2468, 183 L.Ed.2d at ___. Section 1102.1(d) also
enumerates factors to guide sentencing courts in determining whether to
impose a sentence of LWOP upon a juvenile convicted of first-degree or
second-degree murder. 18 Pa.C.S.A. § 1102.1(d).
[F]or purposes of uniformity in sentencing juveniles facing
[LWOP], courts should examine both the Miller factors and
the section 1102.1(d) factors prior to [sentencing a juvenile
to LWOP], regardless of whether the juvenile was convicted
pre- or post–Miller. We observe that some of the Miller
factors are noticeably absent from section 1102.1(d). All of
the Miller factors, however, must be considered by a court
prior to sentencing a juvenile to [LWOP].
Batts II, supra at 476 n.23, 163 A.3d at 455 n.23. “When a juvenile is
exposed to a potential sentence of [LWOP] the trial court must consider the
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Miller factors, on the record, prior to imposing a sentence” even where the
juvenile ultimately does not receive a LWOP sentence. Commonwealth v.
Machicote, ___ Pa. ___, ___, 206 A.3d 1110, 1120 (2019). On the other
hand, where the Commonwealth does not seek and the sentencing court does
not impose a sentence of LWOP, the court need not consider the Miller
factors. Commonwealth v. Lekka, 210 A.3d 343, 357 (Pa.Super. 2019).
Instantly, Appellant was 16 years old when she committed her offenses,
and the jury convicted her of first-degree murder before June 25, 2012. Prior
to resentencing, the Commonwealth conceded that the record did not show
Appellant was permanently incorrigible, and did not recommend a LWOP
sentence. At the December 7, 2018 resentencing hearing, the court agreed
that Appellant was not incapable of rehabilitation. The court resentenced
Appellant for first-degree murder to 35 years to life imprisonment, in
compliance with Miller. See Batts II, supra; 18 Pa.C.S.A. § 1102.1(a), (e).
The resentencing court was not obligated to discuss the Miller sentencing
factors upon resentencing, because the Commonwealth did not seek, and the
court did not impose, a LWOP sentence. See Lekka, supra. Therefore,
Appellant’s second and third issues merit no relief. See Batts II, supra.
In her fourth issue, Appellant argues the resentencing court gave too
much weight to the Section 1102.1(d) factors and the gravity of the offense
when it fashioned her minimum sentence for first-degree murder. Appellant
submits the court should not have applied the sentencing guidelines in 18
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Pa.C.S.A. § 9721(b). Appellant complains that even when the court relied
upon the Section 9721(b) factors, it gave no weight to the protection of the
public. Appellant posits the court also erroneously considered and granted
inordinate weight to a 20-year-old impact statement of the victim’s family.
Appellant concludes this Court should vacate and remand for resentencing.
We disagree.
As presented, this issue implicates the discretionary aspects of
Appellant’s sentence. See, e.g., Batts II, supra (providing that where
Commonwealth does not seek LWOP sentence, sentencing court should apply
traditional considerations of Section 9721(b) when imposing sentence);
Commonwealth v. Cartrette, 83 A.3d 1031 (Pa.Super. 2013) (en banc)
(explaining claim that sentencing court failed to consider Section 9721(b)
factors pertains to discretionary sentencing matters); Lekka, supra
(examining juvenile murder offender’s challenge to sentencing court’s
application of sentencing factors in Section 1102.1(d) and Section 9721(b) as
discretionary aspects of sentence claim).
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979(2001). Prior to reaching the merits of a discretionary sentencing issue:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
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sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000)
(quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999)
(en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).
This Court does not accept bald assertions of sentencing errors as
substantial questions. Commonwealth v. Malovich, 903 A.2d 1247(Pa.Super. 2006). Rather, an appellant must articulate the bases for her
allegations that the sentencing court’s actions violated the sentencing code.
Id. Ordinarily, “a claim that the sentencing court failed to consider or accord
proper weight to a specific sentencing factor does not raise a substantial
question.” Commonwealth v. Swope, 123 A.3d 333, 339 (Pa.Super. 2015).
But see Lekka, supra at 351-52 (determining that claim sentence was
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unduly harsh and sentencing court granted disproportionate weight to certain
Miller and Section 1102.1(d) factors posed substantial question) (citing
Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (en banc) (Pa.Super.
2015), appeal denied, 633 Pa. 774, 126 A.3d 1282 (2015) (providing
argument that court did not consider mitigating factors, coupled with
excessive sentence claim, raised substantial question)).
Instantly, Appellant raised her discretionary sentencing claim in a timely
post-sentence motion and filed a timely notice of appeal. Appellant did not
include a Rule 2119(f) statement in her brief on appeal. See Evans, supra.The Commonwealth, however, did not object, so we will not dismiss
Appellant’s discretionary aspects of sentencing claim on this basis. See
Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa.Super. 2004)
(determining Commonwealth’s failure to object to absence of appellant’s Rule
2119(f) statement does not require waiver of appellant’s discretionary aspects
of sentencing claim).
Although Appellant complains the resentencing court: (i) wrongly based
Appellant’s minimum sentence for first-degree murder upon the factors in
Section 1102.1(d) and Section 9721(b); and (ii) incorrectly balanced the
sentencing guidelines of those statutes, Appellant does not allege the court’s
sentence was excessive or unduly harsh. Thus, Appellant does not appear to
raise a substantial question. Compare Lekka, supra.
Moreover, even if Appellant’s argument presented a substantial
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question, it would not merit relief. This Court will not disturb the judgment of
the sentencing court absent an abuse of discretion. Commonwealth v.
Fullin, 892 A.2d 843 (Pa.Super. 2006).
[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive
terms, …: An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is
that the sentencing court is in the best position to determine
the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it. Simply
stated, the sentencing court sentences flesh-and-blood
defendants and the nuances of sentencing decisions are
difficult to gauge from the cold transcript used upon
appellate review. Moreover, the sentencing court enjoys an
institutional advantage to appellate review, bringing to its
decisions an expertise, experience, and judgment that
should not be lightly disturbed. Even with the advent of the
sentencing guidelines, the power of sentencing is a function
to be performed by the sentencing court. Thus, rather than
cabin the exercise of a sentencing court’s discretion, the
guidelines merely inform the sentencing decision.
Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62
(2007) (internal quotation marks, footnotes, and citations omitted).
Pursuant to Section 9721(b), “the court shall follow 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
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impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). See also Commonwealth
v. Fowler, 893 A.2d 758 (Pa.Super. 2006) (stating where court had benefit
of PSI report, we can presume it was aware of relevant information regarding
defendant’s character and weighed those considerations along with mitigating
statutory factors).
Here, at the December 7, 2018 resentencing hearing, the court
explained its consideration of the Section 1102.1 and Section 9721(b) factors
as applied to its imposition of Appellant’s minimum sentence for first-degree
murder, as follows:
…I conclude what the Commonwealth concedes, that proof
beyond a reasonable doubt [that Appellant] is not able to be
rehabilitated has not been presented by the
Commonwealth.
* * *
Quite frankly, given the circumstances of this killing…if
[Appellant] appeared today resisting rehabilitation, as she
did in the early days of her confinement, I believe one could
conclude that this is the rare case envisioned by the U.S.
Supreme Court.
However, the evidence in this case is otherwise. Given the
Commonwealth’s position, I will not go into depth in an
analysis of the Miller criteria and the factors set forth in
Section 1102.1.
I would indicate that I have reviewed those factors in
relation to the evidence presented and conclude that the
imposition of [a] sentence of [LWOP] in this case would not
pass constitutional muster. I will then go to determine what
the appropriate sentence would be.
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* * *
In Batts[ II], the [Pennsylvania Supreme C]ourt provides
guidance when imposing a sentence of life with the
possibility of parole in determining the minimum term of
imprisonment. The [C]ourt in that case…provided as
follows: In sentencing a juvenile offender to life
imprisonment with the possibility of parole, traditional
sentencing considerations apply, and it cites Section
9721(b) of the judicial code.
The sentencing court should fashion the minimum term of
incarceration using it [as] guidance, Section 1102.1([e]) of
the crimes code; and that’s the section which sets the
minimum sentence for this age range at 35 years.
* * *
So, in imposing the minimum sentence in this case of the
first-degree murder charge, we must use as guidance
Section 1102.1(a), even though it directly applies only to
cases where the homicide occurs after June 24th, 2012.
The Pennsylvania [Supreme Court] stated in Batts[ II], 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 an appropriate minimum
sentence for a juvenile convicted of first-degree murder
prior to the Miller decision.
…I’ll refer to the Section 9721 factors.
The first factor that I will consider is the gravity of the
offenses as it relates to the impact on the life of the victim
and the community. In this case, [Appellant] took Kimberly
[D]otts’ life in a manner so gruesome that the [Superior
Court], in its [memorandum decision], stated the facts of
this case are shocking. One could only try to imagine the
horror this 1[5]-year-old girl experienced before she died.
Her body was covered with branches and abandoned only to
be found at a later time.
The effect on the victim’s family is evidenced in the original
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victim [family] impact statements and in the words of
Kimberly’s mother at this proceeding. In our opinion, this
factor goes in favor of a significant minimum sentence,
perhaps in excess of the Section 1102.1 minimum.
The next factor provides a mitigating influence, and that is
the rehabilitative needs of [Appellant]. [Appellant] clearly
had significant rehabilitative needs upon her initial
incarceration.
The testimony of the July 27, 2018 hearing details
[Appellant]’s troubled upbringing prior to the commission of
this offense. It also goes into great depth with regard to
her rehabilitative efforts and the extent of her rehabilitation.
Troy Edwards, who is a reentry service—or at least at the
time of the hearing was a reentry service coordinator at
[SCI] Muncy, has known [Appellant] at the institution for 14
years. He testified to [Appellant]’s work as a certified peer
support specialist, her educational achievement, her prison
employment activities and her House of Hope involvement.
He gave his opinion that as a reentry service specialist, he
believes, and these are his words from the transcript,
[Appellant]’s as, if not better, prepared for reentry as
anyone who would walk through these doors.
Devant…Cole, a social worker at Muncy, testified to
[Appellant]’s role as her detail or assistant. Ms. Cole
testified that she believes [Appellant] is as prepared to enter
society as inmates she has prepared for reentry.
[Appellant] also presented Deborah A. Mucha, an expert in
the field of psychology and trauma therapy. She testified
concerning her knowledge of this case and her contact with
[Appellant].
She detailed her knowledge of [Appellant]’s early life prior
to the murder and of [Appellant]’s programs at Muncy since
her incarceration. She attributed [Appellant]’s participation
in this incident to be the result of automatic obedience,
which is a phenomenon where one will do whatever is
requested of them because of extreme traumatization.
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She pointed to Aaron Straw, a codefendant in this case, and
[Appellant]’s boyfriend at the time, as the source of the
trauma. Ms. Mucha testified at length regarding
[Appellant]’s rehabilitation while at Muncy, including her
participation in the program House of Hope.
She gave her opinion that…[Appellant] has been
rehabilitated.
Finally she gave her opinion as to risk assessment of
reoffending, which she gave, and these are her words, very
little probability.
[Appellant] spoke at the hearing and expressed her position
in the letter which I received since the hearing, which has
been provided to counsel. She expressed remorse and
referred to her rehabilitation and changed life.
The last matter to be considered under Section 9721 is a
protection of the public. This factor had to be one of great
concern at the initial sentencing hearing. If one accepts the
testimony of [Appellant]’s rehabilitation, it would be logical
to conclude that this factor is not as significant today.
Although, in our opinion, we must keep in mind we’re
dealing with an individual who was capable of such acts at
a point in her life.
(N.T. Resentencing, 12/7/18, at 11-16).
At the outset, the record belies Appellant’s claim that the resentencing
court considered and granted inordinate weight to the Section 1102.1(d)
factors when it fashioned the minimum term for Appellant’s first-degree
murder sentence. Instead, the resentencing court explained it did not apply
the Section 1102.1(d) sentencing factors. The court added it looked to the
minimum sentence prescribed in Section 1102.1 as a guide in determining the
minimum sentence term for first-degree murder. See Batts II, supra
(explaining that if juvenile convicted of murder does not receive LWOP
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sentence, sentencing court may determine minimum sentence term; although
sentencing court has discretion in setting minimum term, minimum sentences
in Section 1102.1(a) should guide court). Furthermore, the resentencing
court did not abuse its discretion when it applied the Section 9721(b)
sentencing guidelines to fashion Appellant’s minimum sentence for first-
degree murder, because the Commonwealth did not seek and the
resentencing court did not impose a LWOP sentence. See id.
The record indicates the resentencing court considered each of the
Section 9721(b) sentencing factors. Appellant mischaracterizes the weight
the court ascribed to the gravity of the offense and the need to protect the
public. The resentencing court merely recounted the facts of the offense,
commented on the nature of the offense, and reiterated this Court’s view of
the facts on direct appeal. Nothing in the record indicates the resentencing
court placed undue weight on the gravity of the offense. Additionally, the
court opined that the protection of the public did not garner as much weight
at resentencing as it did in the original sentence, due to the court’s finding
that Appellant is not incorrigible and has already made progress toward
rehabilitating. (N.T. Resentencing, 12/7/18, at 16). Also, contrary to
Appellant’s argument, the court specifically noted that it considered the impact
statement of victim’s family from the original sentencing and the impact
statement the victim’s mother made at resentencing. (Id. at 14).
Furthermore, the court had the benefit of a PSI report at resentencing. See
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Brougher, supra. Thus, we see no abuse of the court’s broad sentencing
discretion. See Walls, supra; Fullin, supra. Therefore, even if Appellant’s
claim presented a substantial question, it would merit no relief.
In her last issue on appeal, Appellant argues her new sentence for first-
degree murder is an illegal de facto life sentence. Appellant concludes this
Court should vacate and remand for resentencing. We disagree.
A claim that a court sentenced a juvenile defendant to a de facto LWOP
sentence goes to the legality of the sentence. Foust, supra at 422. A
challenge to the legality of a sentence is a question of law. Commonwealth
v. Barnes, 167 A.3d 110, 116 (Pa.Super. 2017) (en banc). Thus, our
standard of review is de novo and our scope of review is plenary. Id.In Foust, this Court noted “[t]here are certain term-of-years sentences
which clearly constitute de facto LWOP sentences. For example, a 150-year
sentence is a de facto LWOP sentence. Similarly, there are clearly sentences
which do not constitute de facto LWOP sentences. A sentence of 30 years to
life falls into this category.” Id. at 438. The Foust Court, however,
decline[d] to draw a bright line…delineating what constitutes
a de facto LWOP sentence and what constitutes a
constitutional term-of-years sentence. But see
Commonwealth v. Dodge, 77 A.3d 1263, 1276 (Pa.Super.
2013), appeal denied, 625 Pa. 648, 91 A.3d 161 (2013)
(appearing to hold that…defendant must be parole eligible
before…she turns 90 for it not to be considered…de facto
LWOP sentence). We similarly decline[d] to set forth factors
that trial courts must consider when making this
determination, i.e., whether they must look to the life
expectancy of the population as a whole or a subset thereof
and whether the defendant must be given a chance at a
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meaningful post-release life.
Id.In light of Foust, this Court has outlined a method to determine whether
a sentence constitutes a de facto LWOP sentence:
The key factor in considering the upper limit of what
constitutes a constitutional sentence, in this narrow context,
appears to be whether there is some meaningful opportunity
to obtain release based on demonstrated maturity and
rehabilitation. Implicit in this standard is the notion it would
not be meaningful to provide an opportunity for release
based solely on the most tenuous possibility of a defendant’s
surviving the minimum sentence imposed. To be
meaningful or, at least, potentially meaningful, it must at
least be plausible that one could survive until the minimum
release date with some consequential likelihood that a non-
trivial amount of time at liberty awaits. Thus, though it
expressly declined to do so, the Foust Court seemed to
suggest some sort of meaningful-opportunity-for-release
standard by declaring that a 150–years–to–life sentence
constitutes a de facto LWOP sentence.
Commonwealth v. Bebout, 186 A.3d 462, 467 (Pa.Super. 2018) (internal
quotations marks and citations omitted) (concluding sentence of 45 years to
life imprisonment did not constitute de facto LWOP sentence in violation of
Miller, where appellant had been incarcerated for underlying offense since he
was 15 years old and will be eligible for parole at age 60). See also
Commonwealth v. Blount, 207 A.3d 925 (Pa.Super. 2019), appeal denied,
___ Pa. ___, 218 A.3d 1198 (2019) (deciding sentence of 35 years to life
imprisonment was not illegal de facto LWOP sentence; noting appellant was
incarcerated for related offense at age 17 and will be eligible for parole at age
52); Commonwealth v. White, 193 A.3d 977 (Pa.Super. 2018) (holding
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sentence of 35 years to life imprisonment was not illegal de facto LWOP
sentence; explaining appellant had been incarcerated for underlying crime
since he was 17 years old and will be eligible for parole at age 52).
Instantly, the court resentenced Appellant to 35 years to life
imprisonment for first-degree murder. Appellant has been incarcerated since
she was 16 years old and will be eligible for parole when she is 51 years old.
Therefore, Appellant’s sentence does not constitute a de facto LWOP sentence
and is not an illegal sentence under Miller. See Blount, supra; White,
supra; Bebout, supra. Thus, Appellant’s claim that her new sentence for
first-degree murder amounts to a de facto life sentence fails. See Foust,
supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2020
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