J-A02012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL FELDER

                             Appellant                 No. 660 EDA 2015


            Appeal from the Judgment of Sentence October 24, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014896-2009


BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                            FILED DECEMBER 20, 2017

        Michael Felder appeals from the judgment of sentence imposed on

October 24, 2014, in the Court of Common Pleas of Philadelphia County on

the charge of first-degree murder. Felder, a juvenile at the time of the crime,

was tried and convicted by a jury in 2012. He was originally sentenced to a

mandatory term of life imprisonment without the possibility of parole. That

sentence was vacated pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012)

and Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).             On October 24,

2014, following a re-sentencing hearing, Felder was sentenced to a term of

50 years’ to life incarceration. Felder has filed this timely appeal in which he

claims he received a de facto life sentence and, therefore, his new sentence


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*   Former Justice specially assigned to the Superior Court.
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is also unconstitutional. Following a thorough review of the submissions by

the parties, relevant law, and the certified record, we affirm.

       We briefly recount the underlying facts of this matter. On September

3, 2009, Felder and another young man played a two-on-two basketball game

against brothers Jarrett and Malcolm Green, on the outdoor courts at the

Shepard Recreational Center in Philadelphia, Pennsylvania.               The game was

still young when Felder became upset and retrieved a .380 semiautomatic

handgun from his gym bag. Felder shot Jarrett Green in the stomach and leg,

killing him.     He also shot and wounded Malcolm Green.                   Felder was

apprehended on September 27, 2009. He was tried and convicted by a jury

of first-degree murder regarding Jarrett Green and aggravated assault

regarding Malcolm Green.

       As noted above, Felder’s initial sentence for first-degree murder, life

imprisonment       without     the    possibility   of   parole,   was    vacated   as

unconstitutional. In the judgment order that vacated Felder’s judgment of

sentence, this Court instructed the trial court to consider a list of factors found

in Commonwealth v. Batts, supra, 66 A.3d at 297.1 On October 24, 2014,




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1This list of factors was first announced in Commonwealth v. Knox, 50 A.3d
732, 745 (Pa. Super. 2012). Knox noted that, in Miller, the United States
Supreme Court did not provide a specific list of factors to be considered upon
sentencing juveniles under relevant convictions. Knox provided a non-
exclusive list of factors it distilled from Miller.



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following a hearing, Felder was re-sentenced to a term of 50 years’ to life

imprisonment.2 Felder now raises four issues in this appeal. They are:

       1) Is it unconstitutional to sentence a juvenile to 50 to life, a de
       facto sentence of life imprisonment without the possibility of
       parole, without a factual basis to determine if the juvenile was
       permanently incorrigible, irreparably corrupt or irretrievably
       depraved?

       2) Absent a judicial finding that a juvenile is permanently
       incorrigible, irreparably corrupt or irretrievably depraved, is it
       unconstitutional to sentence a juvenile to 50 to life, a de facto
       sentence of life imprisonment without the possibility of parole?

       3) Under the circumstances of this case, was it unconstitutional to
       sentence Michael Felder to 50 years to life, a de facto sentence of
       life imprisonment without the possibility of parole?

       4) As the United States Supreme Court in Miller v. Alabama
       struck down the Pennsylvania first and second[-]degree murder
       statutes for juveniles, was the only constitutional sentence here
       one for third[-]degree murder?

Felder’s Brief at 4.

       Initially, we note that Felder’s claims are a challenge to the legality of

his sentence. “Issues relating to the legality of a sentence are questions of

law. Our standard of review over such questions is de novo and our scope of

review is plenary.” Commonwealth v. Furness, 153 A.3d 397, 405 (Pa.

Super. 2016) (citation omitted).

       Felder’s first three arguments are related, if not identical, and we will

address them together. All of these arguments rest upon the same foundation


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2The trial court did not re-sentence Felder on any charge other than first-
degree murder.

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– that a 50-year minimum sentence is a de facto life sentence. As such, it

would be immaterial that Felder would be eligible for parole after 50 years.

Prevailing law forbids juveniles from life sentences without parole, except in

extraordinary circumstances.         Failing proof of those circumstances, Felder

claims his sentence is just as unconstitutional as the sentence struck down in

Miller.3

       Without commentary, the trial court rejected Felder’s claim of

unconstitutionality. While cogent analysis of legal issues by the trial court is


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3 Following Miller, Pennsylvania enacted a new sentencing statute for juveniles
convicted of first-degree murder.       We quote that portion applicable to
juveniles between the ages of 15 and 18, which would have been applicable
to Felder.

       a) First degree murder.-- A person who has been convicted
       after June 24, 2012, of a murder of the first degree, first degree
       murder of an unborn child or murder of a law enforcement officer
       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.

18 Pa.C.S. § 1102.1(a)(1).

However, because Felder was not convicted after June 24, 2012 (Miller was
decided on June 25, 2012), this statute does not apply instantly. Our review
of the certified record leads us to believe that the sentencing judge, while not
bound by the new law, was guided by it and subsequent case law applying
this statute.



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always beneficial, we are not unduly hampered in our review. Our review of

the certified record and Felder’s argument leaves us unconvinced that we are

required to treat Felder’s 50-year minimum sentence as a life sentence.

       In his post-sentence motion, filed October 29, 2014, Felder cites United

States v. Nelson, 492 F.3d 344, 349-50 (7th Cir. 2007) and the U.S.

Sentencing Commission Preliminary Quarterly Data Report (Report),4 for the

proposition that federal law defines a life sentence as 470 months. Nelson

does not arrive at the 470-month figure independently; it merely cites an

earlier version of the Sentencing Commission data. Our reading of the Report

leads us to a different conclusion.

       Appendix A of the Report lists variables involved in sentencing. One of

those variables is “sentence length”.          See Report, Appendix A, p. 8.   In

relevant part, the Report states:

       In cases where the court imposes a sentence of life imprisonment,
       a numeric value is necessary to include these cases in any
       sentence length analysis. Accordingly, life sentences are reported
       as 470 months, a length consistent with the average life
       expectancy of federal criminal offenders given the average age of
       offenders. Also, sentences of greater than 470 months are also


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4   This   Report   is   from    2012.        It   may     be     viewed    at:
http://www.ussc.gov/Data_and_Statistics/Federal_Sentencing_Statistics/US
SC_2012_3rd_Quarter_Report.pdf. In his brief, Felder also cites case law from
Wyoming, Iowa and Connecticut in support of his claim. See, Bear Cloud v.
State, 334 P.3d 132 (Wyo. 2014); State v. Null, 836 N.W.2d 41 (Iowa
2013); Casciano v. Commissioner of Correction, 115 A.3d 1031 (Conn.
2015). Bear Cloud cited a similar federal sentencing statistical report without
commentary. Null was decided under an analysis of the Iowa Constitution.
Null, 836 N.W. 2d at 70-71.

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       reported as 470 months for some analyses. The footnote in the
       relevant tables and figures indicates when this occurs.

Report, Appendix A, p. 8.

       While the Report does indicate that the average life sentence is 470

months, slightly more than 39 years, it also acknowledges that there are other

sentences greater than 470 months and that those sentences, however much

longer, have simply been designated as being 470 months long.           Also, the

470-month “definition” is specifically dependent upon the average age of the

federal offender. There is nothing in this “definition” to indicate the average

age. Accordingly, the 470-month expression of a life sentence is a number

without context.5 Without context, we cannot begin a proper constitutional

analysis as to the meaning of a 470-month life sentence. In addition to being

a statistic out of context, we also note that neither the 7th Circuit decision nor

a preliminary statistical report is binding upon this Court.

       There are other jurisdictions, also not binding upon this Court, which

have been presented with similar claims and found lengthy sentences were

not unconstitutional. In Tennessee v. Merritt, 2013 WL 6505145 (Tenn.

Crim. App. 2013) (unpublished), the court of criminal appeals determined a
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5 We do not know the age of the offenders when sentenced, nor how old they
are at the expiration of the life sentence, presumably that being the expiration
of their life. If the average federal “lifer” dies at age 75, then, as applied to
Felder, his “life sentence” might be considered to be 684 months. (Felder was
17.5 when arrested and incarcerated. Rounding that age up to 18, his life
sentence would be 57 years, or 685 months.) If the average federal offender
is 30 years old when incarcerated (Nelson, from U.S. v. Nelson, supra, was
30 years old), then the 470-month “life sentence” terminates, on the average,
at 69 years of age. These two hypothetical examples demonstrate a wide
disparity in results.

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225 year minimum sentence was constitutional, but was, nonetheless,

excessive. In New Jersey v. James, 2012 WL 3870349 (N.J. Super. Ct. App.

Div.   2012)   (unpublished),     a     268-year       minimum    sentence    was      not

unconstitutional as it was a product of a discretionary sentencing scheme.

       All of these cases are informative, yet none provides a clear resolution

to our matter. The fact that there is such a great disparity in approach and

interpretation of the dictates of Miller, if nothing else, demonstrates the

difficulty of the problem. Herein, Felder received a significant sentence and

will be almost 68 years old when he becomes eligible for parole. However, it

cannot be overlooked that Felder committed a particularly senseless crime and

had a significant history of anti-social and violent behavior for his young age.

See N.T. Sentencing, 10/24/2014.

       Our Supreme Court, in Commonwealth v. Batts, 66 A.3d 115, 137

(Pa. 2013), found the Pennsylvania Constitution at Art. 1, § 13, provides no

greater protection regarding cruel and unusual punishment than does the

United States Constitution at the 8th Amendment. With that in mind, Miller

held that a mandatory sentencing scheme, one, which, by definition, does not

take into account the individualized needs and circumstances of a juvenile,

that   automatically   provides       for   a   life   sentence   without    parole,    is

unconstitutional., However, Miller did not deem all juvenile life sentences

without parole unconstitutional. Miller did not address a situation, such as is

before us, wherein a juvenile defendant was given a significant sentence upon

the discretion of the trial court; a significant sentence that arguably

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approaches, but which does not obviously extend to the life expectancy of the

juvenile.

       Here, Felder’s sentence was not the product of a mandatory sentencing

scheme. His sentence, while significant, was the result of an individualized

and discretionary sentencing hearing, at which the trial judge considered the

12 factors distilled from Miller and Batts.        See, N.T. Re-Sentencing,

10/24/2015, at 51-52.6 Also, Miller takes no stand on claims of de facto life

sentences. As such, Miller does not directly apply. Additionally, as discussed,

Felder’s claim of a de facto life sentence is based upon flawed grounds.

Accordingly, under the Pennsylvania and United States Constitutions, as

interpreted in Miller v. Alabama, supra, and Commonwealth v. Batts,

supra, we conclude that when a juvenile convicted of homicide has been

subjected to a discretionary sentence that may approach, but does not clearly

exceed life expectancy, that sentence does not run afoul of Miller7 and
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6 The 12 factors are: age of defendant at the time of the crime; evidence of
diminished capacity; evidence of capacity for change; extent of participation
in the crime; family, home and neighborhood environment; extent of familial
or peer pressure; past exposure to violence; drug and alcohol history; ability
to deal with the police; capacity to assist attorney; mental health history; and
potential for rehabilitation. The trial judge also considered the Miller and
Batts cases, and her own “very lengthy contemporaneous notes taken during
both the trial of this case and during the original sentencing proceeding.” Id.
at 51.
7 Nonetheless, while that sentence may be constitutional, it does not mean

the sentence is automatically proper. While a claim of a manifestly excessive
sentence does not rise to the level of cruel and unusual punishment, a
manifestly excessive sentence may still be challenged. See, Commonwealth
v. Best, 120 A.2d 329, 348-49 (Pa. Super. 2015) (claim of manifestly



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therefore does not violate the Federal Constitution, 8th Amendment, or

Pennsylvania Constitution, Art. 1, Sec. 13, prohibitions against cruel and

unusual punishment.8

       Because Felder’s sentence is not a de facto life sentence without parole

and does not violate either the United States or Pennsylvania Constitutions,

Felder is not entitled to relief on any of his first three issues.

       Felder’s final issue is a claim that when Miller invalidated Pennsylvania’s

mandatory sentencing for first and second-degree murder as applied to

juveniles, the only statutory sentencing scheme left in place was for third-




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excessive sentence constituting too severe a punishment raises a substantial
question appropriate for appellate review).

8 On June 12, 2017, the United States Supreme Court issued a Per Curiam
opinion in Virginia v. LeBlanc, 582 U.S. ____ (2017) (Justice Ginsberg
concurring). The issue was similar to the instant matter. In LeBlanc, a
16-year-old defendant had been sentenced to life imprisonment for rape.
After Graham v. Florida, 560 U.S. 48 (2010) was decided, he petitioned for
resentencing. Virginia denied his request and the U.S. Supreme Court
affirmed, citing Virginia’s geriatric release program in which, relevant to
LeBlanc, a 60 year old defendant who has served at least 10 years of a
sentence can request conditional release from the Parole Board. This
possibility of release was sufficient to meet the Graham requirement for
providing “the meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation required by the Eighth Amendment.”
LeBlanc at *2-3. (We have only a copy of the slip opinion. Page numbers
refer to that printing.) Accordingly, it was not constitutionally infirm to require
LeBlanc to serve 44 years of his sentence prior to the possibility of parole.
The U.S. Supreme Court’s decision in LeBlanc, supports our determination
that Felder’s sentence is not unconstitutional.



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degree murder. Accordingly, Felder claims he is entitled to be resentenced

pursuant to that law.9 We disagree.

       This issue has been presented to and decided by our Supreme Court in

Commonwealth v. Batts, supra. Therein, our Supreme Court considered

and rejected this argument. See Batts, 66 A.3d at 293-96. Felder claims

the Supreme Court’s reasoning fails in light of Montgomery v. Louisiana,

136 S.Ct. 718 (2016), but provides no substantive argument or analysis to

support that bald statement. Because this crucial aspect of his argument has

not been developed, the issue is waived. See Commonwealth v. Spotz, 18

A.3d 244, 282 (Pa. 2011) (failure to develop argument waives claim: appellate

court “will not attempt to divine an argument on Appellant’s behalf”).

Accordingly, we are bound by our Supreme Court’s determination in Batts,

supra, that a sentencing court is not limited, in this situation, to the

punishment available for third-degree murder.

       Judgment of sentence affirmed.

       Judge Ransom joins this memorandum.

       Justice Fitzgerald concurs in the result.




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9“Notwithstanding section 1103, a person who has been convicted of murder
of the third degree … shall be sentenced to a term which shall be fixed by the
court at not more than 40 years.” 18 Pa.C.S. § 1103(d). Accordingly, if Felder
was subject to sentencing for third-degree murder, the maximum sentence of
40 years’ incarceration would represent ten years less than his current
minimum 50 year term of incarceration.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2017




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