COMMONWEALTH OF PENNSYLVANIA, Appellee v. MICHAEL PAUL FOUST, Appellant
No. 1118 WDA 2016
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED FEBRUARY 21, 2018
2018 PA Super 39
J-A21018-17. Appeal from the Judgment of Sentence July 5, 2016 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000679-1993. BEFORE: BENDER, P.J.E., OLSON and STABILE, JJ. OPINION BY OLSON, J.
Appellant, Michael Paul Foust, appeals from the judgment of sentence entered on July 5, 2016, as made final by the denial of his post-sentence motion on July 19, 2016. In this case of first impression in Pennsylvania, we consider whether a term-of-years sentence which exceeds a juvenile homicide defendant’s life expectancy constitutes an unlawful de facto sentence of life imprisonment without the possibility of parole (LWOP). As an initial matter, we hold that because the Supreme Court of the United States has severely limited the circumstances under which juvenile defendants may be sentenced to LWOP, a de facto LWOP sentence is illegal in certain circumstances when imposed upon a juvenile offender. We also conclude that, in cases such as the present one that involve multiple killings, we must evaluate the sentence
A. Factual Background
On November 22, 1993, Appellant, then 17 years old, and Kevin Zenker (Zenker) drove from Oil City to Donald Foust’s residence. Appellant and Zenker stole one of Donald Foust’s handguns and then returned to Oil City. While they were driving past Darla Bump’s (Bump’s) and Russell Rice’s (Rice’s) residence, Zenker fired at Bump’s dog. Appellant turned the vehicle around and passed the residence again. Bump and Rice got in their vehicle and began following Appellant and Zenker. Eventually, Appellant slowed the car to a stop, grabbed the firearm, jumped out of the vehicle, approached Bump’s and Rice’s vehicle, and opened fired. Bump and Rice died from multiple gunshot wounds sustained during Appellant’s assault.
B. Procedural History
On February 1, 1994, the Commonwealth charged Appellant via criminal information with two counts of first-degree murder.1 On May 13, 1994,
On January 5, 1998, Appellant filed his first pro se petition pursuant to the Post-Conviction Relief Act (PCRA),
On July 9, 2010, Appellant filed his second pro se PCRA petition. On October 18, 2010, the PCRA court dismissed the petition. This Court affirmed and our Supreme Court denied allowance of appeal. Commonwealth v. Foust, 34 A.3d 217 (Pa. Super. 2011) (unpublished memorandum), appeal
On February 24, 2016, Appellant filed his fourth pro se PCRA petition, which he amended on March 28, 2016. In that petition, he argued that his LWOP sentences violated the Eighth Amendment of the United States Constitution as interpreted by Miller v. Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).4 On May 12, 2016, the PCRA court granted the petition and vacated Appellant’s judgment of sentence.5
Counsel then was appointed for resentencing. On July 5, 2016, the trial court sentenced Appellant to 30 years to life for each first-degree murder conviction and ordered those two sentences to run consecutively. Hence, the
C. Questions Presented
Appellant presents two issues for our review:
- Pursuant to [Miller, which invalidated] the Pennsylvania first and second[-]degree murder7 statutes for juveniles, was the only constitutional sentence available a sentence for third[-]degree murder?
- Is it unconstitutional to impose a sentence of 60 years to life, a de facto sentence of [LWOP], on a juvenile absent a finding that the juvenile is one of the rare and uncommon juveniles who is permanently incorrigible, irreparably corrupt[,] or irretrievably depraved?
Appellant’s Brief at 3.8
II. Discussion
A. Legal Background
1. Pennsylvania’s Prior Statutory Scheme
At the time of Appellant’s conviction, the Crimes Code provided that an individual, including a juvenile, convicted of first or second-degree murder must be sentenced to a term of life imprisonment. See
Under that statutory framework, a juvenile who committed first or second-degree murder was charged as an adult. As occurred in the case sub judice, a defendant could then request that his or her case be transferred to
2. History of Punishment for Juvenile Offenders
Having set forth the statutory framework when Appellant was convicted and sentenced, we turn to the historical underpinnings of that statutory scheme.
When our Republic was founded, individuals over the age of 14 who were convicted of crimes were treated like adults and subject to execution. See Victor L. Streib, Death Penalty for Children: The American Experience with Capital Punishment for Crimes Committed While Under Age Eighteen, 36 Okla. L. Rev. 613, 614 (1983) (Streib). Individuals between the ages of seven and fourteen were presumed ineligible for the death penalty; however, this presumption was rebuttable. See id. Only children under the age of seven were ineligible for the death penalty. See id. Before 1900, at least 95 juveniles were executed. See id. at 616. At least 14 of these juveniles were executed for crimes committed when they were 14 or younger. See id. at 619.
Thus, for 363 years, from 1642, the time the first juvenile was executed in America, until 2005, it was constitutional to execute juveniles convicted of homicide. It naturally follows that all lesser sentences, including LWOP, were also constitutional for juveniles convicted of homicide. Only recently has the Supreme Court of the United States altered the law for the sentencing of juvenile offenders.
3. Supreme Court of the United States Decision‘s
i. Thompson v. Oklahoma
The first major decision in this area was Thompson v. Oklahoma, 487 U.S. 815 (1988). In Thompson, the Court explained that:
The authors of the Eighth Amendment drafted a categorical prohibition against the infliction of cruel and unusual punishments, but they made no attempt to define the contours of that category. They delegated that task to future generations of judges who have been guided by the evolving standards of decency that mark the progress of a maturing society. In performing that task the Court has reviewed the work product of state legislatures and sentencing juries, and has carefully considered the reasons why a civilized society may accept or reject [a penalty] in certain types of cases.
Id. at 821-822 (Stevens, J., opinion announcing the judgment of the court) (internal quotation marks, citation, and footnotes omitted).
Pursuant to these views, the Court determined that a national consensus had formed against the imposition of the death penalty for juveniles under 16 years old. Id. at 823-833. In reaching this conclusion, the Court looked to how states treat juveniles in other areas, e.g., at which age it is permissible to drive, vote, or purchase pornographic materials. Id. at 824-825. It also examined the legislation in states that barred capital punishment for individuals below a certain age and found that all of them forbade executing juveniles under the age of 16. See id. at 829. The Court then noted the rarity with which juries sentenced juveniles under 16 years old to death and
ii. Stanford v. Kentucky
Although Thompson did not reach the issue of whether executing 16- or 17-year old defendants violated the Eighth Amendment, the Court reached the issue one year later in Stanford v. Kentucky, 492 U.S. 361 (1989). In that case, it held that the execution of 16- or 17-year old defendants did not violate the Eighth Amendment. Id. at 369-380.
The Court first examined state statutes and noted that a majority of states which had the death penalty permitted execution of 16- or 17-year old defendants. Id. at 371-372. Next, the Court found that, although 16- and 17-year olds made up a small portion of death row, prosecutors were not hesitant to seek the death penalty and juries were not hesitant to impose the death penalty in cases involving such defendants. Id. at 373-374. The Court then addressed its analysis in Thompson related to the age necessary to
Addressing the deterrence effect of capital punishment on 16- and 17-year olds, the Court held that a statute that does not deter crime would violate the Equal Protection Clause of the Fourteenth Amendment before it would violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Id. at 378. Alternatively, the Court found uncompelling the socioscientific evidence in support of the deterrence argument. Id. at 377-378. The Court also rejected the premise that it was for individual justices to determine if a punishment was cruel and unusual. Id. at 378-380. Instead, the Court emphasized that the key question was whether American society considered the punishment cruel and unusual. See id. Finally, the Court concluded that it could not invalidate a punishment without a national consensus that the punishment was cruel and unusual. As no such consensus existed regarding the execution of 16- or 17-year old defendants, the Court held the practice constitutional. See id. at 379-380.
iii. Roper v. Simmons
The Court next considered the socioscientific evidence that it rejected in Stanford. The Court held that [t]hree general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders[,] and, therefore, should not be subject to the harshest punishment available under the law. Id. at 569. The Court rejected Stanford’s reasoning that it is absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering
The Court then abandoned Stanford’s reasoning that it was not for individual justices to determine if a punishment was cruel and unusual. Id. at 574-575. The Court concluded that Thompson and Atkins v. Virginia, 536 U.S. 304 (2002), which held that executing mentally retarded individuals violated the Eighth Amendment, showed that it was the job of the courts to determine what punishments violate our nation’s evolving standards of decency. Roper, 543 U.S. at 574-575.
Finally, the Court considered international law. It concluded that the consensus was that the death penalty for juvenile homicide offenders was cruel and usual. Id. at 575-578. It held that such international consensus could not be ignored in today’s global society. See id. at 578. Combining international consensus with socioscientific evidence, the Court found that executing juvenile homicide offenders constituted cruel and unusual punishment. See id.
Notably, however, Roper endorsed sentencing juveniles to LWOP. Specifically, the Court held that [t]o the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of
iv. Graham v. Florida
The Supreme Court of the United States revisited its juvenile sentencing jurisprudence in Graham v. Florida, 560 U.S. 48 (2010), which considered whether LWOP sentences survived Eighth Amendment scrutiny when imposed on juvenile nonhomicide defendants. In Graham, the Court noted that 37 states, the District of Columbia, and the federal government all authorized LWOP sentenced for nonhomicide offenders. Id. at 62. Although evidence of state and federal legislation showed clearly and reliably a strong national consensus in favor of sentencing juveniles to LWOP for nonhomicide offenses, the Court held that an examination of actual sentencing practices in jurisdictions where the sentence in question is permitted by statute discloses a consensus against its use. Id.
Next, the Court looked to the socioscientific evidence considered in Roper (but rejected in Stanford). This evidence showed that juvenile defendants are not as culpable as their adult counterparts. Thus, the Court held that because juveniles have lessened culpability they are less deserving of the most severe punishments. Id. at 68. The Court also recognized that
The Court then extensively detailed the consequences of being sentenced to LWOP. It stated that LWOP is
the second most severe penalty permitted by law. It is true that a death sentence is unique in its severity and irrevocability, yet [LWOP] sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to [LWOP], but the sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency—the remote possibility of which does not mitigate the harshness of the sentence. . . . [T]his sentence means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of the convict, he [or she] will remain in prison for the rest of his [or her] days.
* * *
[LWOP] is an especially harsh punishment for a juvenile. Under this sentence a juvenile offender will on average serve more years and a greater percentage of his [or her] life in prison than an adult offender. A 16–year–old and a 75–year–old each sentenced to [LWOP] receive the same punishment in name only. This reality cannot be ignored.
The Court therefore held that penological theory is not adequate to justify [LWOP] for juvenile nonhomicide offenders. This determination; the
v. Miller v. Alabama
As noted above, Graham applied only to juvenile offenders convicted of nonhomicide offenses. Seven years later, however, the Court examined whether LWOP sentences for juvenile homicide offenders violated the Eighth Amendment. In Miller, the Court held that statutory schemes such as Pennsylvania’s, which imposed mandatory LWOP for certain homicide convictions, constituted cruel and unusual punishment when applied to juvenile homicide offenders.
The Court began by reviewing the socioscientific evidence that it considered in Roper and Graham. It reaffirmed that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, [] they are less deserving of the most severe punishments. Id. at 469 (internal
the mandatory penalty schemes at issue [in Miller] prevent the sentencer11 from taking account of these [socioscientific] considerations. By removing youth from the balance—by subjecting a juvenile to the same [LWOP sentence] applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender.
Id. at 474. The Court thus held that a juvenile homicide defendant can only be sentenced to LWOP if he or she is permanently incorrigible, irreparably corrupt, or irretrievably depraved. See id. at 471, 473, 479-480 (citations omitted).
vi. Montgomery v. Louisiana
After Miller, juvenile offenders who were sentenced to LWOP under prior statutory schemes began filing requests for collateral relief arguing that Miller applied retroactively.12 In Montgomery, the Supreme Court of the
After setting forth the framework for determining if a new rule of constitutional law applies retroactively, see generally Teague v. Lane, 489 U.S. 288 (1989) (O’Connor, J., opinion announcing the judgment of the court), the Court considered whether the rule announced in Miller was substantive or procedural in nature. If a new constitutional rule is substantive, it applies retroactively; however, if a new constitutional rule is procedural, it only applies retroactively if it is a watershed rule of criminal procedure. Montgomery, 136 S.Ct. at 728 (citation omitted).
The Court held that the rule announced in Miller was substantive and not procedural in nature. Id. at 732-736. The Court reasoned that [t]he foundation stone for Miller’s analysis was [its] line of precedent holding certain punishments disproportionate when applied to juveniles. Id. at 732 (internal quotation marks and citation omitted). Miller, therefore, expressly limited the circumstances under which a juvenile homicide offender may be sentenced to LWOP. Id. at 733-734. Hence, it did more than require a sentencer to consider a juvenile offender’s youth before imposing [LWOP.] Id. at 734. Instead, it barred a category of punishment, LWOP, for a class of offenders, juvenile homicide offenders capable of rehabilitation. See id. The Court held that, [t]o be sure, Miller’s holding has a procedural component. . . . Those procedural requirements do not, of course, transform
4. Statutory Reform
In response to Miller, our General Assembly enacted
Section 1102.1 also provides that an individual under 15 years old convicted of first-degree murder after June 24, 2012 must be sentenced to a maximum term of life imprisonment.
Section 1102.1 provides that an individual between the ages of 15 and 17 years old convicted of second-degree murder after June 24, 2012 must be sentenced to a maximum term of life imprisonment.
Section 1102.1 further provides that an individual under 15 years old convicted of second-degree murder after June 24, 2012 must be sentenced to
Under the current statutory framework, a juvenile who commits first or second-degree murder must be charged as an adult. A defendant can then request that his or her case be transferred to the Juvenile Division. See
5. Our Supreme Court‘s Batts II Decision
Although Miller held that a juvenile homicide offender may only be sentenced to LWOP if he or she is permanently incorrigible, irreparably corrupt, or irretrievably depraved, neither Miller nor Montgomery set forth procedural requirements for this determination. Moreover, after Miller, many juvenile offenders who had been convicted of first or second-degree murder argued that trial courts lacked statutory authority to sentence them to a term
As for the latter issue, our Supreme Court held that:
For those defendants for whom the sentencing court determines a [LWOP] sentence is inappropriate, it is our determination here that they 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 421 (internal alteration, quotation marks, and citations omitted).14
Thus, our Supreme Court rejected Batts argument that the trial court lacked authority to impose life imprisonment.
A juvenile offender who challenges a LWOP sentence raises issues that involve mixed questions of fact and law. Id. at 434-436. Because Montgomery makes clear that a juvenile homicide offender may receive a LWOP sentence only if he or she is found incapable of rehabilitation, such a finding ipso facto implicates the trial court’s authority to impose such a sentence. Id. at 434-435. This threshold legal inquiry constitutes a pure
After deciding the merits of Batts appeal, our Supreme Court exercise[d its] constitutional power of judicial administration to devise a procedure for the implementation of the Miller and Montgomery decisions in Pennsylvania. Id. at 451 (internal quotation marks omitted). Our Supreme Court conclude[d] 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 [LWOP]. Id. at 452. The adoption of any other presumption would be contrary to the central premise of Roper, Graham, Miller[,] and Montgomery—that as a matter of law, juveniles are categorically less culpable than adults. Id.
Having determined that there is a presumption against juvenile LWOP sentences, our Supreme Court considered the burden of proof the Commonwealth must meet in order to establish that a juvenile offender is incapable of rehabilitation. It held that the Commonwealth must prove a juvenile is incapable of rehabilitation beyond a reasonable doubt. Id. at 452-455. Our Supreme Court reasoned that [t]he 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. Batts II, 163 A.3d at 454. Moreover, our Supreme
Batts argued that the Commonwealth needed to produce expert testimony to satisfy its burden of proof. Although declining to impose such a requirement, our Supreme Court warned that, 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. Id. at 456.
Batts also argued, that under Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 133 S.Ct. 2151 (2013), the finding that a juvenile offender is incapable of rehabilitation must be made by a jury. Our Supreme Court rejected this argument and noted that the Supreme Court of the United States held that the decision of whether to sentence a juvenile to [LWOP] could be made by a judge. Batts II, 163 A.3d at 456, citing Montgomery, 136 S.Ct. at 733. Our Supreme Court also rejected Batts’
B. Invalidity of First and Second-Degree Murder Statutes
In his first issue, Appellant argues that, because Miller rendered Pennsylvania’s prior statutory scheme unconstitutional, his sentence is illegal. According to Appellant, because there was no valid statutory scheme to prescribing his sentence for first-degree murder, the trial court had to sentence him under the scheme for third-degree murder. Therefore, Appellant argues that he was only subject to a maximum sentence of 20 years’ imprisonment. As counsel for Appellant correctly noted at oral argument, our Supreme Court’s decision in Batts II makes clear that the trial court was required to sentence Appellant, who was convicted of first-degree murder, to a maximum term of life imprisonment. Commonwealth v. Seskey, 170 A.3d 1105, 1106 (Pa. Super. 2017) (footnote omitted); Batts II, 163 A.3d at 421. In other words, there was valid statutory authority to impose a maximum sentence of life imprisonment for Appellant’s first-degree murder conviction. Accordingly, Appellant is not entitled to relief on his first claim of error.
C. De Facto Life Sentence Claim
1. Constitutionality of De Facto Life Sentences
The Supreme Court of the United States, our Supreme Court, and this Court have not decided whether de facto LWOP sentences are constitutional under Miller when the trial court finds that the defendant is capable of rehabilitation. Similarly, the Supreme Court of the United States, our Supreme Court, and this Court have not determined whether, in light of Graham, de facto LWOP sentences are permitted for juveniles convicted of nonhomicide offenses.15 Courts in other jurisdictions have addressed these
After careful consideration, we hold that a trial court may not impose a term-of-years sentence, which constitutes a de facto LWOP sentence, on a juvenile offender convicted of homicide unless it finds, beyond a reasonable doubt, that he or she is incapable of rehabilitation. In Miller, the Supreme Court of the United States held that states must provide a juvenile convicted of a homicide offense a meaningful opportunity to obtain release based on
At the time of the Miller decision, Alabama, along with Pennsylvania and many other states, required sentencing authorities to impose LWOP sentences upon juvenile homicide offenders. Thus, in Miller, the Supreme Court of the United States confronted a case in which the juvenile was sentenced to a de jure LWOP sentence instead of a de facto LWOP sentence. The Court, therefore, could have omitted the language regarding a juvenile having a meaningful opportunity for release if it so chose. It could have simply stated that de jure LWOP sentences violate the Eighth Amendment when imposed on juveniles capable of rehabilitation. Instead, it broadly stated that juveniles are entitled to a meaningful opportunity for release. We find this to be a strong indication that the Supreme Court of the United States was more focused on the practical realities of a sentence than the name assigned to a sentence. See State ex rel. Morgan v. State, 217 So.3d 266, 273 (La. 2016); Casiano v. Commissioner of Correction, 115 A.3d 1031, 1047 (Conn. 2015), cert. denied, 136 S.Ct. 1364 (2016); Henry v. State, 175 So.3d 675, 679 (Fla. 2015), cert. denied, 136 S.Ct. 1455 (2016).
Courts should not circumvent the prohibition on LWOP sentences by imposing lengthy term-of-years punishments that equate to the unlawful sanction. See State v. Moore, 76 N.E.3d 1127, 1140 (Ohio 2016), cert.
Permitting de facto LWOP sentences for juvenile homicide offenders capable of rehabilitation but prohibiting de jure LWOP sentences for the same class of offenders places form over substance. See State v. Zuber, 152 A.3d 197, 211 (N.J. 2017), cert. denied, 138 S.Ct. 152 (2017) (“It does not matter to the juvenile whether he faces formal [LWOP] or multiple term-of-years sentences that, in all likelihood, will keep him in jail for the rest of his life. We believe it does not matter for purposes of [Graham or Miller.]”); Morgan, 217 So.3d at 274; People v. Reyes, 63 N.E.3d 884, 888 (Ill. 2016); Bear Cloud v. State, 334 P.3d 132, 143 (Wyo. 2014); State v. Null, 836 N.W.2d 41, 72 (Iowa 2013).
As the United States Supreme Court has often noted in criminal cases, “form is not to be exalted over substance.” Blueford v. Arkansas, 566 U.S. 599 (2012), quoting Sanabria v. United States, 437 U.S. 54, 66 (1978);
Finally, we note that this holding is consistent with the tide of decisions by the Supreme Court of the United States regarding juvenile sentencing. As we have detailed at length above, for the past several decades the Court has dramatically shifted our nation’s jurisprudence in this area. As recently as 1987, it was permissible to execute an individual under 16 years old. Beginning with Thompson in 1988, the Court quickly outlawed execution for juveniles under 16, execution for all juveniles in Roper, LWOP for nonhomicide juvenile offenders in Graham, and finally mandatory LWOP for juvenile homicide offenders in Miller. Thus, the clear trend is to limit the maximum penalty to which juvenile offenders are exposed. Finding de facto
We find unpersuasive the reasoning of courts which have upheld de facto LWOP sentences under Graham or under Miller for juvenile defendants capable of rehabilitation.16 See State v. Nathan, 522 S.W.3d 881 (Mo. 2017); State v. Ali, 895 N.W.2d 237 (Minn. 2017), cert. denied, 2018 WL 311461 (U.S. Jan. 8, 2018); Lucero v. People, 394 P.3d 1128 (Colo. 2017), cert. denied, 2018 WL 311464 (U.S. Jan. 8, 2018); Vazquez v. Commonwealth, 781 S.E.2d 920 (Va. 2016), cert. denied, 137 S.Ct. 568 (2016); Brown v. State, 10 N.E.3d 1 (Ind. 2014); Diamond v. State, 419 S.W.3d 435, 440 (Tex. App. 2012). These decisions focused on the specific
Those courts noted that, because of the factual scenarios presented in Graham and Miller, the Court invalidated only LWOP sentences for juveniles convicted of nonhomicide offenses and juvenile homicide offenders capable of rehabilitation. Thus, those courts found that de facto LWOP sentences are not barred by Graham and Miller. In other words, because the Graham and Miller decisions were not directly on point, the courts refused to apply the decisions in those cases.
We do not believe that is the appropriate standard in the case sub judice. When interpreting decisions of the Supreme Court of the United States, our Supreme Court, and this Court apply the “logical inference[s]” of those decisions. Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015); see Norton v. Glenn, 860 A.2d 48, 54 (Pa. 2004). In other jurisdictions, courts are sometimes reluctant to extend the reach of decisions of the Supreme Court of the United States, even when the inference of the decisions is clear. In Pennsylvania, however, both our Supreme Court and this Court faithfully execute the United States Supreme Court’s decisions – including the logical inferences thereof. See Batts II 163 A.3d at 455 (applying the logical inferences of Miller and Montgomery). Thus, we find those cases which narrowly construed the holdings in Graham and Miller, and rejected their logical inferences, unpersuasive. Accordingly, we hold that de facto life sentences are cruel and unusual punishment when imposed on
2. Consideration of Aggregate Sentence
Having determined that de facto LWOP sentences are barred by Miller if, as in the case at bar, the trial court fails to find that the juvenile homicide defendant is incapable of rehabilitation, we next evaluate Appellant’s sentence to determine if he received a de facto LWOP sentence. As noted above, Appellant received 30 years to life imprisonment for each of two counts of first-degree murder and the trial court ordered those sentences to run consecutively. Hence, he received an aggregate term of 60 years to life imprisonment. Appellant, who conceded at oral argument that the sentences for the individual homicide counts in this case are constitutional, argues that we must look at the aggregate sentence when determining if he received a de facto LWOP sentence. Put differently, Appellant argues that we must consider whether a sentence of 60 years to life constitutes a de facto LWOP sentence. The Commonwealth argues that we must examine each individual sentence separately. In other words, the Commonwealth argues that we must consider whether a sentence of 30 years to life constitutes a de facto LWOP sentence.
Neither the Supreme Court of the United States nor our Supreme Court has addressed this issue.17 That said, this issue has arisen in our sister states
After careful consideration of this persuasive authority, together with this Commonwealth’s sentencing jurisprudence, we hold that, when considering the constitutionality of a sentence, the individual sentences must be considered when determining if a juvenile received a de facto LWOP sentence.
We begin by examining Pennsylvania jurisprudence regarding sentencing for multiple convictions. It is well settled that “imposition of consecutive rather than concurrent sentences rests within the trial court’s discretion.” Commonwealth v. Harvard, 64 A.3d 690, 703 (Pa. Super. 2013), appeal denied, 77 A.3d 636 (Pa. 2013) (citation omitted). Moreover,
Pennsylvania courts have considered aggregate sentences only when reviewing discretionary sentencing determinations. Those cases are, however, easily distinguishable from the present circumstances. For example, in Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009), the defendant was sentenced to an aggregate term of approximately 52½ to 111 years’ imprisonment for 37 burglary convictions. This Court vacated the sentence finding that imposition of serial consecutive terms was clearly unreasonable and that the trial court abused its discretion in imposing the sentence. Id. at 1202. In other words, this Court granted relief on Dodge’s challenge to the discretionary aspects of his sentence. See id. This Court did not treat Dodge’s claim as an attack on the legality of his sentence. Thus, Dodge and similar cases suggest strongly
Adoption of Appellant’s view would not only abandon well-settled rules of Pennsylvania sentencing law, it would open the door to volume sentencing discounts in cases involving multiple juvenile homicide offenses. Juvenile perpetrators convicted of multiple homicides would routinely be subject to concurrent terms of imprisonment if the Commonwealth was unable to sustain its burden of proof under Miller and Batts II and juvenile offenders would receive volume discounts for their crimes. As noted above, if Appellant committed these murders after June 24, 2012, he would have been subject to a 35-year mandatory minimum sentence.
We recognize the rationale in Roper, Graham, and Miller regarding the decreased deterrent effect that accompanies harsher punishments for juveniles. See Miller, 567 U.S. at 472, citing Graham, 560 U.S. at 72; Roper, 543 U.S. at 571. This rationale, however, is limited to the maximum possible penalty for an offense. Contrary to the arguments made by Appellant at oral argument, there is nothing in Roper, Graham, and/or
Roper, Graham, and Miller all were based, at least in part, on a national consensus against a class of punishment, e.g., LWOP for juvenile homicide offenders capable of rehabilitation. The United States Supreme Court has never found such a consensus against the imposition of consecutive term-of-years sentences for multiple offenses. We are similarly unaware of any movement by states to ban the practice. Again, consecutive imposition of independently valid punishments is a distinctly discretionary function of the sentencing authority. Although some courts have found that the practice violates Graham and Miller, this differs from an organic, state-level determination that the practice is cruel and unusual. Thus, the foundations of Roper, Graham, and Miller, the national consensus against a class of punishment, is lacking with respect to imposing consecutive term-of-years sentences for multiple offenses. Cf. Thompson, 487 U.S. at 821-822 (explaining that the Court looks to organic state-level developments when deciding if a sentence is cruel and unusual).
We find persuasive the reasoning of the Court of Special Appeals of Maryland in McCullough. As the McCullough court astutely noted, Miller’s other lynchpin is that it is inappropriate for a state legislature to make a categorical, irrevocable judgment about a juvenile homicide offender’s
We also agree with the McCullough court that permitting consecutive term-of-years sentences “is not a same sentence different label situation.” McCullough, 168 A.3d at 1069. As noted above, we refuse to place form over substance with respect to de facto LWOP sentences. Imposing consecutive term-of-years sentences for multiple offenses, however, is not placing form over substance. To the contrary, such punishments consider the substance of each individual sentence.19 For this reason, the Supreme Court
We disagree with the reasoning of those courts that have examined the aggregate sentence instead of the individual sentences. Determining whether
In our view, whether the aggregate or individual sentences control for purposes of Miller is the most difficult question raised in this appeal. We have scrutinized relevant Pennsylvania case law, prior decisions of the Supreme Court of the United States, and persuasive authority from other jurisdictions. Although we acknowledge that there is ground for differing views, we believe that we are on sound legal footing and consistent with Pennsylvania law. Accordingly, we hold that we must consider the individual sentences, not the aggregate, to determine if the trial court imposed a term-of-years sentence which constitutes a de facto LWOP sentence.
3. Facts of This Case
Having determined that we must examine Appellant’s two sentences for first-degree murder separately, we turn to whether a sentence of 30 years to life imprisonment constitutes a de facto LWOP sentence. At oral argument, Appellant’s counsel conceded that a sentence of 30 years to life imprisonment does not violate Miller. Instead, she stressed the consecutive nature of the
There 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. We are unaware of any court that has found that a sentence of 30 years to life imprisonment constitutes a de facto LWOP sentence for a juvenile offender. Even the study with the shortest life expectancy for an offender in Appellant’s position places his life expectancy at 49 years, i.e., beyond 30 years. See Appellant’s Brief at 16, citing Casiano, 115 A.3d at 1046.
We explicitly decline to draw a bright line in this case 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, 91 A.3d 161 (Pa. 2014) (appearing to hold that a defendant must be parole eligible before he or she turns 90 for it not to be considered a de facto LWOP sentence). We similarly decline 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 meaningful post-release life. We need not confront these difficult questions
D. Discretionary Aspects of Sentencing Claim
Having determined that Appellant’s sentence is constitutional and, therefore, not an illegal sentence, we turn to Appellant’s alternative argument that the trial court abused its discretion in sentencing him to two consecutive terms of incarceration of 30 years to life. Pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See
As this Court has explained, in order to reach the merits of a discretionary aspects claim,
we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his [or her] issue; (3) whether Appellant’s brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the [S]entencing [C]ode.
Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa. Super. 2017) (citation omitted). Appellant filed a timely notice of appeal, preserved the issue in his post-sentence motion, and included a Pennsylvania Rule of Appellate Procedure 2119(f) statement in his appellate brief. Thus, we turn to whether Appellant raises a substantial question.
In his Rule 2119(f) statement, Appellant argues that this case presents a substantial question because imposing consecutive sentences for the two murder convictions was clearly unreasonable and results in an excessive sentence. This argument presents a substantial question. See Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014). Accordingly, we proceed to analyze the merits of Appellant’s discretionary aspects challenge.
“Sentencing is a matter vested in the sound discretion of the [trial court], and a sentence will not be disturbed on appeal absent a manifest abuse of discretion.” Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super. 2017) (en banc) (citation omitted). Pursuant to statute,
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.
Typically, when sentencing a defendant, the trial court is required to consider the sentencing guidelines. Commonwealth v. Melvin, 172 A.3d 14, 21 (Pa. Super. 2017) (citation omitted). In this case, however, no sentencing guidelines exist for juveniles convicted of first-degree murder prior to June 25, 2012. See id. at 22. Instead, our Supreme Court in Batts II held that, in these cases, the applicable “sentencing guidelines” that the trial court should consider are the mandatory minimum penalties set forth in
When explaining its sentence, the trial court detailed its extensive review of the record in this case. The trial court read the gut-wrenching victim impact statements from the original sentencing hearing on June 30, 1994. See N.T., 7/5/16, at 155. It also reviewed the victim impact statements submitted for the resentencing hearing. See id. at 156. The trial court read the transcript from the hearing on Appellant’s petition to transfer the case to the Juvenile Division. See id. at 155. This led the trial court to review Appellant’s juvenile record, which included files from the juvenile probation
The trial court also reviewed the report from the prison where Appellant was incarcerated. Id. at 156. This included various certifications that Appellant received while imprisoned. See id. at 156-157. The trial court reviewed some of the evidence presented at Appellant’s trial. See id. at 156. It then considered the guidelines were Appellant to have been convicted after June 24, 2012, along with the guidelines mandated by Batts II. See id. at 157-158.
Next, the trial court considered the factors outlined in Batts II and
The trial court found that Appellant had a difficult upbringing as he was declared dependent as a youth. Id. at 160. It found that his neighborhood environment was immaterial. Id. The trial court noted the emotional and developmental problems Appellant faced when he was originally sentenced
The trial court recognized that Appellant may have been using marijuana at the time of the murders and that he did not have past exposure to violence. Id. at 161-162. The trial court found that Appellant was able to assist his counsel at the time of trial and that the two had a good relationship. Id. at 162.
The trial court found that the murders had a minimal impact on the community. Id. at 165. The trial court noted its finding that Appellant was a threat to public safety in 1994; however, it found that threat diminished over two decades later. Id. at 165-166. The trial court found that there was some sophistication involved in the murders. Id. at 167.
In short, the trial court considered all relevant documents, court filings, reports, and testimony when sentencing Appellant. It carefully weighed all of these factors and determined that sentences below the applicable guidelines ranges, i.e., 30 years instead of 35 years, were appropriate in this case. Then, the trial court reached the crux of Appellant’s discretionary aspects challenge and explained why it chose to run Appellant’s sentences consecutively instead of concurrently. It stated that:
I cannot in any way rationalize a sentence that is not consecutive. . . . [T]here are two distinct victims. Each victim’s possible life and loss of life has to be recognized and has to be, in my view, acknowledged in the sentence. And the effect of that is that I have to, in my mind, run these sentences consecutively.
We ascertain no abuse of discretion in this decision. The trial court determined that separate punishments were necessitated by the nature of the offenses and the lives taken, notwithstanding the rehabilitation Appellant demonstrated while imprisoned for the past two decades. Although this Court has previously invalidated lengthy term-of-years sentences that trial courts have run consecutively, most involved property crimes. See Dodge, 957 A.2d at 1202. Very few have involved violent offenses. See Commonwealth v. Coulverson, 34 A.3d 135, 138-139 (Pa. Super. 2011). This Court has never held that running sentences for first-degree murder consecutively was an abuse of discretion.
Appellant will be eligible for parole when he is in his seventies. Although he may not live this long, he has a chance of being released into society. It was within the trial court’s discretion to conclude that an individual who viciously took the lives of two innocent people is not entitled to be released into society at an earlier age, even with the reduced culpability recognized in Roper, Graham, and Miller. Accordingly, we conclude that the trial court did not abuse its discretion in sentencing Appellant to consecutive terms of 30
III. Conclusion
In sum, we hold that a fixed term-of-years sentence can constitute a de facto LWOP sentence and, therefore, violates Miller in certain circumstances. We also hold that, in determining whether a fixed term-of-years sentence is a de facto LWOP sentence, we must consider the sentence for each individual crime separately and not the aggregate sentence imposed by the trial court. Moreover, a sentence of 30 years to life imprisonment is not a de facto LWOP sentence for a juvenile offender. Finally, we conclude that the trial court did not abuse its discretion in sentencing Appellant to two consecutive terms of 30 years to life imprisonment. Accordingly, we affirm the judgment of sentence.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2018