                             [J-82-2018] [MO: Mundy, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                 WESTERN DISTRICT


    COMMONWEALTH OF PENNSYLVANIA,               :    No. 14 WAP 2018
                                                :
                       Appellee                 :    Appeal from the Order of the Superior
                                                :    Court entered September 26, 2017 at
                                                :    No. 1621 WDA 2016, affirming the
                v.                              :    Judgment of Sentence of the Court of
                                                :    Common Pleas of Mercer County
                                                :    entered August 19, 2016 at No. CP-
    ANTHONY MACHICOTE,                          :    43-CR-0001958-2003.
                                                :
                       Appellant                :    ARGUED: October 24, 2018


                                   DISSENTING OPINION


JUSTICE TODD                                        DECIDED: APRIL 26, 2019
         The majority’s analysis is based on the premise that Appellant – who was not

sentenced to life without the possibility of parole (“LWOP”) – falls within the class of

persons which Miller1 and Montgomery2 deemed entitled to protection. In my view, he

plainly does not, and thus is not entitled to resentencing. Accordingly, I respectfully

dissent.

         Miller held that, under the Eighth Amendment to the United States Constitution, a

sentencing court is precluded from imposing a sentence of LWOP on a juvenile unless

the juvenile’s crime reflects, to use one characterization, permanent incorrigibility.3 A



1   Miller v. Alabama, 567 U.S. 460 (2012).
2   Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
3As we discussed in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”), Miller
directed the consideration of a variety of factors, with an overriding focus:
LWOP sentence imposed without such a determination is unconstitutionally excessive,

and thus a sentencing court lacks the authority to impose such a sentence.                  See

Montgomery, 136 S. Ct. at 734 (“Miller . . . did not bar a punishment for all juvenile

offenders . . . . Miller did bar life without parole, however, for all but the rarest of juvenile

offenders, those whose crimes reflect permanent incorrigibility.”); Batts II, 163 A.3d at 435

(“[I]n the absence of the sentencing court reaching a conclusion . . . that the defendant

will forever be incorrigible, without any hope for rehabilitation, a life-without-parole

sentence imposed on a juvenile is illegal, as it is beyond the court's power to impose.”).

Montgomery clarified that such sentences will be rare.

       Here, Appellant was sentenced to 30 years to life in prison, and, accordingly, was

eligible for parole. Nevertheless, the majority concludes he is entitled to resentencing

because his sentence was illegal under Miller, Montgomery, and this Court’s

pronouncements in Batts I and Batts II. The majority holds that, “when a juvenile is

exposed to a potential sentence of life without the possibility of parole the trial court must

consider the Miller factors, on the record, prior to imposing a sentence.” Majority Opinion



              The [Montgomery] Court clarified that Miller requires far more
              than mere consideration of an offender's age prior to imposing
              a life-without-parole sentence, as such a sentence “still
              violates the Eighth Amendment for a child whose crime
              reflects ‘unfortunate yet transient immaturity.’” Life without
              parole “is a disproportionate sentence for all but the rarest of
              children, those whose crimes reflect irreparable corruption,”
              “permanent incorrigibility,” and “such irretrievable depravity
              that rehabilitation is impossible,” thereby excluding “the vast
              majority of juvenile offenders” from facing a sentence of life in
              prison without the possibility of parole.
Id. at 433 (citations omitted). The high Court in Miller and Montgomery did not impose
formal factfinding requirements to make these determinations, but left that task to the
States. See Montgomery, 136 S. Ct. at 735. As the majority discusses, pursuant to that
mandate, this Court set forth such requirements in Commonwealth v. Batts, 66 A.3d 286
(Pa. 2013) (“Batts I”), and Batts II.


                               [J-82-2018] [MO: Mundy, J.] - 2
at 16. Citing the high Court’s concern for “individualize[d] sentences for the youngest

offenders who had not developmentally matured,” the majority reasons that “the Superior

Court’s conclusion that the issue is moot because Appellant was ultimately not sentenced

to life without the possibility of parole was erroneous, as it effectively nullified the

procedural protection set forth in Montgomery and solidified by this Court in Batts II.” Id.

at 16.

         The problem with this analysis, in my view, is that it conceives of Miller and

Montgomery as principally setting forth procedural protections, protections which the

majority herein deems a large class of juveniles to be constitutionally entitled – those who

might be or could have been sentenced to LWOP.             I interpret Miller, however, as

announcing a substantive rule of constitutional law4 which constrains a court’s authority

to impose a LWOP sentence, prohibiting a court from imposing a LWOP sentence on a

juvenile whose crimes do not reflect incorrigibility. Indeed, the high Court’s determination

in Montgomery that Miller must be applied retroactively is based on this substantive-

versus-procedural conclusion. See generally Montgomery, 136 S. Ct. at 732-36. The

Montgomery Court went to great pains to clarify its ruling was substantive in nature:

                    To be sure, Miller’s holding has a procedural component.
               Miller requires a sentencer to consider a juvenile offender's
               youth and attendant characteristics before determining that
               life without parole is a proportionate sentence. Louisiana
               contends that because Miller requires this process, it must
               have set forth a procedural rule. This argument, however,
               conflates a procedural requirement necessary to implement a
               substantive guarantee with a rule that “regulate[s] only the
               manner of determining the defendant's culpability.” There are
               instances in which a substantive change in the law must be
               attended by a procedure that enables a prisoner to show that
               he falls within the category of persons whom the law may no

4As the high Court explained in Montgomery, “[s]ubstantive rules . . . set forth categorical
constitutional guarantees that place certain criminal laws and punishments altogether
beyond the State's power to impose.” Montgomery, 136 S. Ct. at 729.


                             [J-82-2018] [MO: Mundy, J.] - 3
              longer punish. For example, when an element of a criminal
              offense is deemed unconstitutional, a prisoner convicted
              under that offense receives a new trial where the government
              must prove the prisoner’s conduct still fits within the modified
              definition of the crime. In a similar vein, when the Constitution
              prohibits a particular form of punishment for a class of
              persons, an affected prisoner receives a procedure through
              which he can show that he belongs to the protected class.
              See, e.g., Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct.
              2242, 153 L.Ed.2d 335 (2002) (requiring a procedure to
              determine whether a particular individual with an intellectual
              disability “fall[s] within the range of [intellectually disabled]
              offenders about whom there is a national consensus” that
              execution is impermissible). Those procedural requirements
              do not, of course, transform substantive rules into procedural
              ones.

Id. at 734–35 (some citations omitted).

       By contrast, the majority conceives of Miller as imposing procedural requirements

on the juvenile sentencing process, as creating a constitutional right to individualized

sentencing for juveniles. See Majority Opinion at 16 (noting that Appellant’s “sentence

did not evidence the required individualized consideration”). Under the majority’s holding,

a juvenile sentencing proceeding that fails to consider the Miller factors is itself

constitutionally infirm, irrespective of the sentence the court imposes. See id. at 16-17.

This conclusion ignores that, fundamentally, Miller proscribed a particular form of

punishment for certain juveniles, and the sentencing hearing is merely the forum in which

it is determined whether the juvenile “falls within the category of persons whom the law

may no longer punish.” Montgomery, 136 S. Ct. at 735. The “hearing does not replace

but rather gives effect to Miller's substantive holding that life without parole is an

excessive sentence for children whose crimes reflect transient immaturity.” Id.

       Indeed, in Montgomery, the high Court explicitly allowed that “[g]iving Miller

retroactive effect . . . does not require States to relitigate sentences, let alone convictions,

in every case where a juvenile offender received mandatory life without parole. A State



                              [J-82-2018] [MO: Mundy, J.] - 4
may remedy a Miller violation by permitting juvenile homicide offenders to be considered

for parole, rather than by resentencing them.”5 Id. at 736; see also Batts II, 163 A.2d at

440-41. If the majority’s interpretation were correct – that Miller and Montgomery imposed

constitutional prescriptions for juvenile sentencing procedures, not limitations on

permissible juvenile sentences – the high Court logically would have mandated

resentencing in every case. In any event, were Appellant’s rights under Miller somehow

violated as the majority contends, he is presently eligible for parole, thus falling within

Montgomery’s caveat.

       As a practical matter, I recognize that, for juveniles (who have not yet been

sentenced) who are facing a possible sentence of LWOP, the Miller factors must be

considered before a LWOP sentence is imposed – that is, it must first be determined

whether the juvenile belongs to Miller’s “protected class” by reference to those factors. A

court cannot impose sentence, of course, until it decides what sentence to impose, and

since its authority to impose LWOP on a juvenile is limited to those juveniles reflecting

incorrigibility under Miller and Montgomery, the court has to address the Miller factors

before it imposes sentence. Here, however, Appellant has already been sentenced, and,

thus, we know he does not fall within Miller’s “protected class” for the simple reason that

he was not sentenced to LWOP. Notably, in this regard, Appellant is unlike the appellants

who were afforded relief in Miller, Montgomery, Batts I, and Batts II, as each of those

appellants were sentenced to LWOP.

       In short, Appellant was sentenced to 30 years to life imprisonment – life with the

possibility of parole – and neither Miller nor Montgomery, nor this Court’s decisions in


5 The high Court explained that “[a]llowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient immaturity—and who have
since matured—will not be forced to serve a disproportionate sentence in violation of the
Eighth Amendment.” Montgomery, 136 S. Ct. at 736.


                             [J-82-2018] [MO: Mundy, J.] - 5
Batts I or Batts II, placed any constraints on the trial court’s authority to impose such a

sentence. Accordingly, I would conclude that Appellant is not entitled to resentencing.

      Justice Dougherty joins this dissenting opinion.




                             [J-82-2018] [MO: Mundy, J.] - 6
