J-S73024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DWAYNE M. MORNINGWAKE                      :
                                               :
                        Appellant              :   No. 667 MDA 2019

         Appeal from the Judgment of Sentence Entered October 6, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                            CP-67-CR-0001999-1988


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JUNE 02, 2020

        Dwayne M. Morningwake appeals from the judgment of sentence,

entered in the Court of Common Pleas of York County, following his conviction

for first-degree murder,1 robbery,2 burglary,3 and conspiracy4 to commit these

three offenses. Morningwake was originally sentenced on September 4, 1990,

to a mandatory term of life imprisonment without parole for the murder, which




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1   18 Pa.C.S. § 2502(a).

2   18 Pa.C.S. § 3701.

3   18 Pa.C.S. § 3502.

4   18 Pa.C.S. § 903.
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he committed when he was fifteen-years-old.5 On October 6, 2017, the court

resentenced Morningwake to forty-six years to life imprisonment in light of

intervening decisions rendered by the United States Supreme Court.                  See

Miller v. Alabama, 567 U.S. 460 (2012) (holding that sentencing juvenile to

life in prison without possibility of parole is unconstitutional); see also

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (requiring state collateral

review courts give retroactive effect to Miller rule).6

       On    appeal,    Morningwake       challenges   the   court’s   imposition    of

$12,235.35 of costs associated with his resentencing. Today we reaffirm the

principle that “when further proceedings are not necessitated by the actions

of the defendant and the defendant obtains relief as a result of those

proceedings, the Commonwealth should bear the risk of paying the additional

[resentencing] costs.” Commonwealth v. Lehman, 201 A.3d 1279, 1287

(Pa. Super. 2019), appeal granted, 215 A.3d 967 (Pa., June 25, 2019) (Table).



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5 The court also imposed consecutive terms of imprisonment of eight to
sixteen years and one to two years for the robbery and burglary convictions,
respectively.

6  In Commonwealth v. Secreti, 134 A.3d 77 (Pa. Super. 2016), our Court
held that Montgomery made Miller retroactive for the purposes of reviewing
illegal sentences where a juvenile has been subjected to a mandatory life
sentence. Moreover, Secreti held that the January 27, 2016, Montgomery
decision would control for purposes of the then-60-day rule in section
9545(b)(2) of the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546.




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Accordingly, we affirm in part, vacate in part, and remand for further

proceedings consistent with this decision.

       On June 18, 1988, Morningwake, fifteen years old at the time, and two

other co-conspirators,7 participated in stabbing Kwame Beatty to death with

a butcher knife while he slept. Beatty was Morningwake’s counselor at the

York Children’s Home (Home), where he resided.         Following trial, a jury

convicted Morningwake of the above-stated offenses on April 14, 1989. On

September 4, 1990, the court sentenced Morningwake to a mandatory term

of life imprisonment without parole as a juvenile.

       Morningwake timely filed post-sentence motions, which the trial court

denied.    Morningwake then filed a direct appeal.    Our Court affirmed his

judgment of sentence on appeal. Commonwealth v. Morningwake, 595

A.2d 158 (Pa. Super. 1991). On November 25, 1991, the Supreme Court of

Pennsylvania denied Morningwake’s petition for allowance of appeal.

Commonwealth v. Morningwake, 600 A.2d 535 (Pa. 1991).              In May of

2005, Morningwake filed his first PCRA petition, which was denied as
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7 A fourth individual, Michael A. Lehman, broke the security system on the
window to the Home and remained on the second floor of the Home with a
steak knife to kill any boys that woke up while the other three co-defendants
brutally stabbed Beatty to death.        After the stabbing “Lehman came
downstairs and he, Morningwake, and [another co-defendant] gathered food,
cigarettes, money[,] and the victim’s car keys and wallet[,] took the victim’s
car, drove toward Lancaster, and finally ended up in Harrisburg where they
disposed of the car, the knives, and other items of evidence.” Lehman Trial
Court Opinion, 5/28/91, at 3.




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untimely.8 On collateral appeal, our Court affirmed the PCRA court’s order

denying him relief. Commonwealth v. Morningwake, No. 1209 MDA 2006

(Pa. Super. filed Nov. 13, 2007) (unpublished memorandum). Morningwake

filed a second untimely petition in June 2010, which the PCRA court denied.

On collateral appeal, our Court affirmed the trial court. Commonwealth v.

Morningwake, No. 2120 MDA 2013 (Pa. Super. filed August 25, 2014)

(unpublished memorandum).

       On March 8, 2016, Morningwake filed another PCRA petition, his third,

alleging that his mandatory sentence of life imprisonment is unconstitutional

under Miller and Montgomery and that he is “entitled to a new sentencing

hearing with limited discovery in order to present evidence of his character.”

PCRA Petition, 3/8/16, at ¶11.          On March 17, 2016, the court ordered a

hearing on Morningwake’s petition. At the hearing on September 11, 2017,

the court scheduled resentencing for October 6, 2017.



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8 In his petition, Morningwake argued that the after-recognized constitutional
right exception, espoused in section 9545(b)(1)(iii) of the PCRA, applied to his
untimely petition based on the United States Supreme Court case, Roper v.
Simmons, 543 U.S. 551 (2005), which held that the death penalty is
disproportionate punishment under the Eighth and Fourteenth Amendments
to the United States Constitution for offenders under the age of eighteen. The
PCRA court properly found that this exception not applicable to Morningwake’s
untimely petition. See Commonwealth v. Wilson, 911 A.2d 942, 946 (Pa.
Super. 2006) (Roper decision bars only imposition of death penalty in cases
involving juvenile offenders; it does not affect imposition of life imprisonment
without parole on juveniles).




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       At the resentencing hearing, both Morningwake and the Commonwealth

presented expert reports on Morningwake’s current mental state.9              The

sentencing court resentenced Morningwake to forty-six years to life

imprisonment for first-degree murder and left undisturbed his previous

sentences on the remaining offenses. The sentencing court imposed court

costs on Morningwake, totaling $12,235.35, which included the cost of the

Commonwealth’s expert witness. On October 16, 2017, Morningwake filed a

motion for post-sentence relief averring that the trial court’s sentence was

excessive. On November 27, 2017, the court denied Morningwake’s motion.

       Morningwake timely filed a notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. On December

31, 2018, our Court dismissed Morningwake’s appeal due to counsel’s failure

to file an appellate brief.       See Order, 12/31/18.       On February 5, 2019,

Morningwake filed a PCRA petition alleging counsel’s ineffectiveness; the PCRA

court ultimately reinstated Morningwake’s direct appeal rights, nunc pro tunc,

on March 25, 2019. Morningwake timely filed a notice of appeal and court-

ordered Rule 1925(b) statement.                On appeal, Morningwake presents the

following issue for our review: “Whether the trial court imposed an illegal

sentence by ordering the appellant to pay the costs associated with the

resentencing?” Appellant’s Brief, at 8.

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9The resentencing hearing was the first time Morningwake’s mental state was
at issue and the first time any expert witness testified as to that issue.


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       Morningwake contends that the sentencing court improperly imposed

the “court costs associated with [his] resentencing.” Appellant’s Brief, at 8.

Specifically, Morningwake argues that the sentencing court lacked the

authority to impose the “costs of prosecution” because he took no action that

necessitated the costs and imposing the costs punished him for exercising his

constitutional rights. Id. at 8-9.

       Whether a trial court has the authority to impose a given sentence is a

challenge to the legality of the sentence. Commonwealth v. Robinson, 7

A.3d 868, 870 (Pa. Super. 2010). The legality of the sentence is a question

of law and our standard of review is plenary. Commonwealth v. Garzone,

993 A.2d 306, 316 (Pa. Super. 2010) (citation and quotation marks omitted).

       Sentencing courts have the authority to impose the “costs of

prosecution” on a defendant under 16 P.S. § 1403 or the common law.10

Commonwealth v. Lehman, 201 A.3d at 1283-84.11 Section 1403 states,

in relevant part:

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10As our Court determined in Lehman, the difference between section 1403
and the common law is immaterial in this case. Lehman, 201 A.3d at 1283.

11 After our Court’s decision in Lehman, the Commonwealth filed a “Petition
for Allocatur” with the Supreme Court claiming that since expert testimony
was necessary for Lehman’s resentencing, the Commonwealth should not
have to bear the cost of the expert witness. See Petition for Allocatur, 2/4/19,
at 15. Specifically, the Commonwealth argued that its expert testimony was
necessary because Lehman employed his own expert witness and the
Commonwealth needed an expert witness to create an appropriate sentencing
recommendation. Id. at 14. The Pennsylvania Supreme Court granted



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       In any case where a defendant is convicted and sentenced to pay
       the costs of prosecution and trial, the expenses of the district
       attorney in connection with such prosecution shall be considered
       a part of the costs of the case and be paid by the defendant.

Id.   The purpose of section 1403 is to recoup the costs of trial by imposing

the necessary “costs of prosecution” on the defendant. Commonwealth v.

Davis, 207 A.3d 341, 346 (Pa. Super. 2019), appeal granted, 215 A.3d 968,

(Pa. 2019) (citing Commonwealth v. Coder, 415 A.2d 406, 408 (Pa. 1980))

(allowance of appeal granted on whether costs relating to sentencing and

resentencing costs are considered “costs of the prosecution” under 16 P.S. §

1403). Any cost imposed must be deemed necessary for the prosecution,

after considering the peculiar facts and circumstances of the case.

Commonwealth v. Garzone, 993 A.2d 1245, 1258 (Pa. Super. 2010), aff'd,

34 A.3d 67 (Pa. 2012) (citing Commonwealth v. Cutillo, 440 A.2d 607 (Pa.

Super. 1982)).

       In Lehman, our Court recently held that “when further proceedings are

not necessitated by the actions of the defendant and the defendant obtains

relief as a result of those proceedings, the Commonwealth should bear the

risk of paying the additional costs.”          Lehman, 201 A.3d at 1287.   The

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allowance of appeal to consider: “Whether the Pennsylvania Superior Court
erred as a matter of law by holding that the costs relating to contested expert
testimony in a contested resentencing do not constitute costs of prosecution
under 16 P.S. §1403,[ ] and are ineligible for imposition upon a defendant
reimbursement as part of a sentence as a matter of law rather than the
sentencing court’s discretion.” Lehman, 215 A.3d 967 (Pa. filed June 25,
2019).


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defendant in Lehman, one of Morningwake’s co-defendants, see supra at

n.3, was convicted of first-degree murder and related offenses and sentenced

to life imprisonment without parole as a juvenile. Id. at 1280. Lehman was

also resentenced following the vacatur of his life-without-parole sentence,

based on Miller and Montgomery. Id. at 1282. At Lehman’s resentencing

hearing, the Commonwealth and Lehman each employed expert witnesses to

provide testimony on Lehman’s mental state and amenability to treatment.

Id. at 1281 n.1. The trial court ultimately sentenced Lehman to an aggregate

term of 30 years to life imprisonment and also ordered him to pay the costs

of the resentencing, including the cost of expert witnesses. Id. at 1287.

      On appeal, we reversed the imposition of resentencing costs on Lehman,

concluding that the trial court lacked the authority to order him to pay the

costs associated with the resentencing “necessitated by evolution of

constitutional law.”   Id.   The court imposed resentencing costs on the

Commonwealth because it was primarily responsible for the cost, the cost was

not foreseeable, and because imposing the cost of the resentencing on the

defendant would punish him for exercising his constitutional rights. Id.

      When the Commonwealth is “primarily responsible for the conditions

which necessitate” a cost, the Commonwealth should bear that cost. Coder,

supra at 409 n.4. The Commonwealth is primarily responsible if, “but for”

the Commonwealth’s actions, the cost would not have been necessary.

Commonwealth v. Weaver, 76 A.3d 562, 574 (Pa. Super. 2013).                 In


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Weaver, the defendant was convicted of driving under the influence;

however, the laboratory technician testified at trial about drugs found in the

defendant’s blood after driving that were not listed in the criminal information.

Id. at 573. The defendant objected, the court declared a mistrial and the

Commonwealth was granted leave to amend the criminal information. At the

retrial, the trial court imposed the costs associated with a different laboratory

employee’s    testimony   on   the   Commonwealth.       Id.      “But   for”   the

Commonwealth’s mistake, the costs would not have been necessary.                Id.

Specifically, the Weaver Court held that “[a] defendant should not be

assessed costs that would not have been incurred had the Commonwealth

properly performed its prosecutorial duties.” Id. at 574.

      In Lehman, the Commonwealth similarly committed an error, albeit by

enforcing an illegal statute, when the defendant was sentenced to life without

parole as a juvenile.     Lehman, supra at 1287.         The resentencing was

primarily caused by the Commonwealth because “but for” the Commonwealth

enforcing an illegal statue, the resentencing would not have been necessary.

Id. In Lehman, our Court refused to differentiate between the actions of the

prosecution in Weaver and the actions of the Commonwealth in enforcing an

illegal statute. Id.

      Moreover to impose a cost on to a defendant, the cost should be not

only necessary, but also reasonably foreseeable.            Id.    Imposing an

unforeseeable cost on to the defendant is arbitrary, capricious and


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unreasonable. Coder, supra at 409. In Coder, the court imposed costs from

a change in venue upon the defendant because that cost was a foreseeable

result of the defendant’s crime. Id. The Coder Court concluded that the

change in venue was necessary because the defendant’s crime stirred wide

community interest and the public nature of his crimes made finding an

impartial jury difficult. Id. The defendant was primarily responsible for the

cost because the defendant should have foreseen the difficulty of finding an

impartial jury given the effect his criminal actions had on the community. Id.

      In Lehman, the defendant was exercising his right to a constitutional

sentence under the Eighth Amendment of the United States Constitution.

Lehman, supra at 1286. There, we held that if the court imposed the costs

associated with the resentencing on to the defendant, the court would be

punishing the defendant for exercising his constitutional rights. Id.; see also

Commonwealth v. Speight, 854 A.2d 450, 455 (Pa. 2004); United States

v. Goodwin, 457 U.S. 368, 372, (1982) (defendant may not be punished for

exercising his constitutional rights). Id. Even though the defendant elected

to vindicate his constitutional right by filing a PCRA petition, the need for the

resentencing was caused by the Commonwealth when it enforced an illegal

statute, and thus the Commonwealth is not entitled to reimbursement. Id.

      The facts in Lehman are identical to the facts in the instant case. Both

defendants, who were juveniles at the time they committed their crimes in

1988, were sentenced to mandatory terms of life imprisonment without the


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possibility of parole. Both defendants were entitled to resentencing after their

sentences were declared unconstitutional by the United States Supreme Court

rulings in Miller and Montgomery. The Commonwealth and the defendants

each used expert witnesses at the resentencing proceedings. Both trial courts

initially imposed the “costs of prosecution,” including the cost of the

Commonwealth’s expert witness, on to the defendants.

      Here, as in Lehman, the cost of the resentencing should not be imposed

upon Morningwake because the resentencing was necessitated by a change in

law after his conviction and sentencing. Lehman, 201 A.3d at 1287. When

the Commonwealth is “primarily responsible for the conditions which

necessitate” the cost, the Commonwealth should bear the cost. Coder, 415

A.2d at 409 n.4. Morningwake was in no way responsible for any action that

necessitated his resentencing. Like Lehman, Morningwake could not have

foreseen the need to be resentenced twenty-six years after his initial

sentencing.

      Furthermore, the costs of resentencing should not be imposed upon

Morningwake because to do so would punish him for exercising his

constitutional rights under the Eighth Amendment of the United States

Constitution. As established in Lehman, if this Court were to impose the costs

of resentencing on to Morningwake, we would be impermissibly punishing him

for exercising his constitutional rights. Lehman, 201 A.3d at 1286. Thus, we




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hold that the trial court lacked the authority to order Morningwake to pay the

costs associated with his resentencing.

      Judgment of sentence affirmed in part and vacated in part.         Case

remanded for proceedings consistent with this decision.           Jurisdiction

relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2020




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