J-S30033-18

                             2018 PA Super 214

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
NICHOLAS ANDREW WHITE,                    :
                                          :
                 Appellant                :    No. 1689 WDA 2017

          Appeal from the Judgment of Sentence October 18, 2017
               in the Court of Common Pleas of Butler County
            Criminal Division at No(s): CP-10-CR-0011435-1998

BEFORE:    BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                         FILED JULY 20, 2018

     Nicholas Andrew White (Appellant) appeals from the October 18, 2017

judgment of sentence imposed following a resentencing hearing pursuant to

Miller v. Alabama, 567 U.S. 460 (2012),1 and Commonwealth v. Batts

(Batts II), 163 A.3d 410 (Pa. 2017). We affirm.

     On July 31, 1998, Appellant, then 17 years old, shot and killed his

father and disposed of his body.      Following a jury trial, Appellant was

convicted of first-degree murder and abuse of a corpse. On September 28,

1999, the trial court sentenced Appellant to life imprisonment without parole

(LWOP) for first-degree murder, and two to four months’ imprisonment for


1 In Miller, the United States Supreme Court held that a “mandatory
[sentence of] life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition on cruel and
unusual punishments.” 567 U.S. at 465 (internal quotations omitted).



*Retired Senior Judge assigned to the Superior Court.
J-S30033-18


abuse of a corpse. This Court affirmed Appellant’s judgment of sentence on

September 26, 2000. Commonwealth v. White, 79 WDA 2000 (Pa. Super.

2000) (unpublished memorandum).             Appellant did not file a petition for

allowance of appeal to our Supreme Court.

      On July 9, 2010, Appellant filed his first petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.              Counsel was

appointed and filed three amended petitions.           In the second amended

petition, Appellant relied on Miller to establish an exception to the PCRA’s

timeliness requirements. Second Amended PCRA Petition, 7/5/2012, at ¶ 6.

The PCRA court stayed the proceedings pending our Supreme Court’s

decision in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),

wherein our Supreme Court ultimately concluded that the holding in Miller

did not apply retroactively to cases on collateral appeal.      Accordingly, the

PCRA court dismissed Appellant’s petition as untimely filed. Appellant filed a

notice of appeal to this Court, and we affirmed the PCRA court’s order.

Commonwealth v. White, 125 A.3d 450 (Pa. Super. 2015) (unpublished

memorandum).

      Thereafter, the United States Supreme Court held that Miller applied

retroactively,   essentially   overruling   Cunningham.        Montgomery      v.

Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016).           Following that decision,

Appellant filed a second PCRA petition on March 7, 2016.         The PCRA court

appointed counsel, who filed an amended PCRA petition.


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        On October 18, 2017, after a hearing, the PCRA court granted

Appellant’s PCRA petition and resentenced Appellant to 35-years-to-life

imprisonment. Appellant filed a post-sentence motion on October 26, 2017,

alleging that the PCRA court did not state on the record how it weighed the

Miller factors. Further, Appellant contended the PCRA court impermissibly

imposed a mandatory sentence pursuant to 18 Pa.C.S. § 1102.1, and, even

if it did not impose the mandatory sentence, Appellant’s sentence was

excessive because “it does not give [Appellant], who has demonstrated

rehabilitation, an individualized sentence with a meaningful opportunity for

parole[.]”    Appellant’s Post-Sentence Motion, 10/26/2017, at ¶¶ 4, 9-12.

The PCRA court denied Appellant’s motion without a hearing, and this

timely-filed notice of appeal followed.2

        On   appeal,   Appellant   presents   the   following   issues   for   our

consideration.

        A. Whether the [PCRA] court erred in not articulating its analysis
           of the Miller[] factors when sentencing [Appellant.]

        B. Whether the [PCRA] court erred and abused its discretion by
           failing to consider evidence that [Appellant] had been
           rehabilitated while incarcerated, which resulted in an
           excessive sentence for a juvenile being sentenced pursuant to
           Miller[.]

        C. Whether the [PCRA] court erred in applying the sentencing
           mandatory in 18 Pa.C.S. §[ ]1102.1 to [Appellant], in


2   Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.



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         violation of due process and the prohibition against ex post
         facto laws[.]

      D. Whether the [PCRA] court erred in impos[]ing a sentence that
         does not offer a meaningful chance of parole for [Appellant],
         a juvenile offender [who] has not been found to be incapable
         of rehabilitation, said “meaningful chance of parole” being a
         requirement of Miller[.]

Appellant’s Brief at 5-6 (unnecessary capitalization and suggested answers

omitted; reordered for ease of disposition).

      Appellant’s first two claims implicate the discretionary aspects of his

sentence.

      It is well settled that, with regard to the discretionary aspects of

sentencing, there is no automatic right to appeal.

      Before [this Court may] reach the merits of [a challenge to the
      discretionary aspects of a sentence], we must engage in a four
      part analysis to determine: (1) whether the appeal [was timely-
      filed]; (2) whether Appellant preserved his 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 sentencing code.... [I]f the appeal
      satisfies each of these four requirements, we will then proceed to
      decide the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Appellant has satisfied the first two requirements: he timely filed a

notice of appeal and he sought reconsideration of his sentence in a post-

sentence motion.     However, Appellant has failed to comply with the



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requirements    of   Pa.R.A.P.   2119(f).3      Nonetheless,   because    the

Commonwealth has not objected, we will not find Appellant’s discretionary-

aspects-of-sentencing claims waived.    See Commonwealth v. Brougher,

978 A.2d 373, 375 (Pa. Super. 2009). Therefore, we now consider whether

Appellant has raised a substantial question for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).



3 Appellant has not included a separate statement of reasons relied upon for
appeal in his brief. Pa.R.A.P. 2119(f) (“An appellant who challenges the
discretionary aspects of a sentence in a criminal matter shall set forth in a
separate section of the brief a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects of a
sentence.”). Instead, he included a short statement only as to his second
claim on appeal within that argument section. Appellant’s Brief at 23-24.
Even if we ignored Appellant’s failure to set forth his 2119(f) statement in a
separate section, his attempt at compliance still does not meet the minimum
requirements. See Commonwealth v. Mastromarino, 2 A.3d 581, 585–
86 (Pa. Super. 2010) (“At a minimum, the Rule 2119(f) statement must
articulate what particular provision of the code is violated, what fundamental
norms the sentence violates, and the manner in which it violates that
norm.”).



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      Appellant contends that his sentence is excessive because (1) the

PCRA court did not articulate its analysis of the Miller factors on the record,

leaving Appellant “with no way to determine if the [PCRA] court fairly

considered the factors[;]” and (2) the PCRA court failed to consider evidence

of Appellant’s rehabilitation. Appellant’s Brief at 14, 23.

      As the Court in Batts II explained,

      [t]he Miller Court concluded that sentencing for juveniles must
      be individualized. This requires consideration of the defendant’s
      age at the time of the offense, as well as “its hallmark features,”
      including:

            immaturity, impetuosity, and failure to appreciate
            risks and consequences[;] ... the family and home
            environment that surrounds him—and from which he
            cannot usually extricate himself—no matter how
            brutal or dysfunctional[;] ... the circumstances of the
            homicide offense, including the extent of his
            participation in the conduct and the way familial and
            peer pressures may have affected him[;] ... that he
            might have been charged and convicted of a lesser
            offense if not for incompetencies associated with
            youth—for example, his inability to deal with police
            officers or prosecutors (including on a plea
            agreement) or his incapacity to assist his own
            attorneys[;] ... [and] the possibility of rehabilitation
            ... when the circumstances [i.e. (the youthfulness of
            the offender)] most suggest it.

Batts II, 163 A.3d at 431 (citations omitted). However, a sentencing court

must consider these Miller factors only in cases where the Commonwealth is

attempting to meet its burden of overcoming the presumption against

juvenile LWOP sentences.      Commonwealth v. Melvin, 172 A.3d 14, 24

(Pa. Super. 2017).     Because the Commonwealth did not seek a LWOP


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sentence, “this issue is moot as application of the Miller factors is

immaterial.   However, to the extent that Appellant’s issue can be read to

raise a claim that the court failed to consider relevant sentencing factors

outlined in the sentencing code, we consider such arguments under the

discretionary-aspects-of-sentencing    scheme    [].”        Commonwealth        v.

Machicote, 172 A.3d 595, 602 n.3 (Pa. Super. 2017), appeal granted, ___

A.3d ___, 2018 WL 2324339 (Pa. May 22, 2018).4

      Accordingly,   Appellant’s   claims   amount      to   an   allegation   that

Appellant’s minimum sentence is manifestly excessive because the PCRA

court failed to consider various mitigating factors. In that regard,

      “this Court has held on numerous occasions that a claim of
      inadequate consideration of mitigating factors does not raise a
      substantial question for our review.” []Disalvo, 70 A.3d [at]
      903 [] (internal citation omitted).

           However, “prior decisions from this Court involving
      whether a substantial question has been raised by claims that

4 Appellant also asks this Court to create an “additional procedural safeguard
to assure the Miller factors truly are considered” by requiring sentencing
courts to articulate their analysis of the Miller factors on the record.
Appellant’s Brief at 15. That issue is before our Supreme Court currently.
Machicote, ___ A.3d ___, 2018 WL 2324339 (granting review as to
“[w]hether[] a court sentencing a juvenile defendant for a crime for which
[LWOP] is an available sentence must review and consider on the record the
Miller factors [] regardless [of] whether the defendant is ultimately
sentenced to [LWOP]”). Because that case is still pending, our Court’s
conclusion in Machicote that application of the Miller factors is unnecessary
when a LWOP sentence is not sought remains controlling law. Thus, we will
only review Appellant’s first claim insofar as it challenges the discretionary
aspects of his sentence.




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      the sentencing court ‘failed to consider’ or ‘failed to adequately
      consider’ sentencing factors [have] been less than a model of
      clarity and consistency.” Commonwealth v. Seagraves, 103
      A.3d 839, 842 (Pa.[ ]Super.[ ]2014) (citing [Commonwealth v.
      Dodge, 77 A.3d 1263 (Pa. Super. 2013)]). In []Dodge, this
      Court determined an appellant’s claim that the sentencing court
      “disregarded rehabilitation and the nature and circumstances of
      the offense in handing down its sentence” presented a
      substantial question. Dodge[, 77 A.3d] at 1273.

            This Court has also held that an excessive sentence
      claim—in conjunction with an assertion that the court failed to
      consider mitigating factors—raises a substantial question.

Commonwealth v. Caldwell, 117 A.3d 763, 769–70 (Pa. Super. 2015) (en

banc) (some citations and quotation marks omitted). Based on the above

precedent, we find that Appellant has raised a substantial question and will

review the merits of his claim.

      We    review     discretionary-aspects-of-sentence    claims    under    the

following standard.

            If this Court grants appeal and reviews the sentence, the
      standard of review is well-settled: sentencing is vested in the
      discretion of the trial court, and will not be disturbed absent a
      manifest abuse of that discretion. An abuse of discretion involves
      a sentence which was manifestly unreasonable, or which
      resulted from partiality, prejudice, bias or ill will. It is more than
      just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252–53 (Pa. Super. 2006)

(citations omitted).

      In Batts II, our Supreme Court held, inter alia, that a lower court, in

resentencing a juvenile offender convicted of first-degree murder prior to

Miller, may impose a minimum term-of-years sentence and a maximum


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sentence of life imprisonment, thus “exposing these defendants to parole

eligibility upon the expiration of their minimum sentences.” Batts II, 163

A.3d at 439.      In determining the minimum term-of-years sentence, the

Court mandated that lower courts consult the sentencing requirements

codified at 18 Pa.C.S. § 1102.1 for guidance. Id. at 457. Specifically for a

juvenile convicted of first-degree murder pre-Miller, the portion of section

1102.1 that a lower court must consider is the guidelines set forth in

subsection 1102.1(a).     Subsection 1102.1(a)(1) provides, in relevant part,

as follows.

      (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).

      At the resentencing hearing, the PCRA court heard testimony from

Appellant, wherein he accepted responsibility for his actions and apologized;

Appellant’s mother on Appellant’s behalf; and Appellant’s uncle on behalf of

the victim. In addition to the testimony and arguments of counsel, the PCRA

court reviewed Appellant’s extensive sentencing memorandum, which



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included transcripts from the decertification hearing, witness statements

from Appellant’s jury trial, and the mitigation expert’s report.           N.T.,

10/18/2017, at 3, 6-60.    See Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004) (stating that where the sentencing court has the

benefit of a pre-sentence investigation (PSI) report, it is presumed to have

considered all relevant information).5 Moreover, the PCRA court stated that

it was guided by the legislative intent behind 18 Pa.C.S. § 1102.1(a) and the

goal of uniformity announced in Batts II for sentencing pre- and post-Miller

cases, and imposed a thirty-five-year-to-life sentence. N.T., 10/18/2017, at

59-60.    Because    Appellant’s   sentence   is   compliant   with   subsection

1102.1(a)(1) and Batts II, and the PCRA court had the benefit of the

comprehensive sentencing memorandum, we find the PCRA court considered

5While the record does not indicate that the PCRA court had the benefit of a
PSI report, the sentencing memorandum was the functional equivalent of a
PSI report, and therefore provided the PCRA court with the requisite
background information to make an informed decision about what minimum
sentence to impose.

     The first responsibility of the sentencing judge [is] to be sure
     that he ha[s] before him sufficient information to enable him to
     make a determination of the circumstances of the offense and
     the character of the defendant. Thus, a sentencing judge must
     either order a PSI report or conduct sufficient presentence
     inquiry such that, at a minimum, the court is apprised of the
     particular circumstances of the offense, not limited to those of
     record, as well as the defendant’s personal history and
     background....

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725–26 (Pa. Super. 2013)
(citation omitted).



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the relevant mitigating factors, and did not abuse its discretion in fashioning

Appellant’s sentence.

      Next, Appellant claims that the PCRA court erred in applying the

mandatory sentence set forth in 18 Pa.C.S. § 1102.1(a)(1), in violation of

due process and the prohibition against ex post facto laws. Appellant’s Brief

at 16.   This claim implicates the legality of Appellant’s 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. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)

(citations and quotations omitted).

      As detailed supra, the lower court must consider the sentencing

requirements codified at 18 Pa.C.S. § 1102.1 in fashioning a term-of-years-

to-life sentence for offenders convicted pre-Miller.   Batts II, 163 A.3d at

457. Appellant acknowledges this, but argues there is no difference between

a trial court being guided by the statute and imposing it ex post facto.

Appellant’s Brief at 18-19. We disagree. The PCRA court did not apply the

mandatory minimum, but rather did as Batts II requires, and considered

subsection 1102.1(a)(1) for guidance, along with the testimony and exhibits

presented at his resentencing hearing, in fashioning Appellant’s minimum

sentence of 35 years’ imprisonment. See PCRA Court Opinion, 12/20/2017,

at 2 (unnumbered) (clarifying that “the [PCRA c]ourt did not impose the

mandatory minimum sentence contained in 18 Pa.C.S.[] § 1102.1”).


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Accordingly, Appellant has not convinced us that the PCRA court imposed an

illegal sentence.

      Finally, Appellant claims that the PCRA court imposed a de facto LWOP

sentence because his minimum sentence of 35 years does not offer

Appellant a meaningful opportunity for parole. Appellant’s Brief at 20.

      “[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.” 6 Commonwealth v. Foust, 180 A.3d 416, 431

(Pa. Super. 2018). “There are certain term-of-years sentences [that] clearly

constitute de facto LWOP sentences. For example, a 150-year sentence is a

de facto LWOP sentence. Similarly, there are clearly sentences [that] do not

constitute de facto LWOP sentences. A sentence of 30 years to life falls into

this category.” Id. at 438.

      Appellant’s minimum sentence of 35 years of imprisonment falls

between these two categories. This Court “decline[d] to draw a bright line in

[Foust] delineating what constitutes a de facto LWOP sentence and what

constitutes a constitutional term-of-years sentence.”    Id.   However, this



6 The Commonwealth conceded at Appellant’s resentencing hearing that a
LWOP sentence was not an option in this case because it could not meet the
burden necessary to prove that Appellant was incapable of rehabilitation.
N.T., 10/18/2017, at 56.



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Court recently outlined the procedure for determining where such “in-

between” minimum sentences fall on the Foust spectrum.

            The key factor in considering the upper limit of what
     constitutes   a   constitutional    sentence,  in   this  narrow
     context, appears to be whether there is “some meaningful
     opportunity to obtain release based on demonstrated maturity
     and rehabilitation.” Graham[ v. Florida], 560 U.S. [48,] 75[
     (2010)]. Implicit in this standard is the notion it would not be
     meaningful to provide an opportunity for release based solely on
     the most tenuous possibility of a defendant’s surviving the
     minimum sentence imposed. To be meaningful or, at least,
     potentially meaningful, it must at least be plausible that one
     could survive until the minimum release date with some
     consequential likelihood that a non-trivial amount of time at
     liberty awaits. Thus, though it expressly declined to do so,
     the Foust Court seemed to suggest some sort of meaningful-
     opportunity-for-release standard by declaring that a 150–years–
     to–life sentence constitutes a de facto LWOP sentence.

Commonwealth v. Bebout, ___ A.3d ___, 2018 WL 2076083 at *3 (Pa.

Super. filed May 4, 2018) (footnote omitted; emphasis in original). Applying

this test, we concluded in Bebout that a sentence of 45-years-to-life

imprisonment did not constitute a de facto LWOP sentence.

     [Bebout’s] opportunity for release [was] meaningful, especially
     in light of the gravity of his crime, because he has the potential
     to live for several decades outside of prison if paroled at his
     minimum.

           Thus, based on the record and arguments before us we
     conclude that [Bebout] has simply failed to meet his burden of
     demonstrating that the lower court sentenced him to a de
     facto LWOP sentence. There simply is no comparison between
     the opportunity to be paroled at 60 years of age and 100+ years
     of age. The difference is, quite literally, a lifetime. As such, we
     are not convinced that [Bebout’s] sentence is the functional
     equivalent of LWOP.



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Id. at *5 (emphasis in original; footnote omitted).

      Here, the PCRA court sentenced Appellant to a minimum term of 35

years’ imprisonment.    Appellant has been incarcerated for this crime since

he was 17 years old. Accordingly, Appellant will be eligible for parole when

he is 52 years old.       Based on the record before us, we conclude that

Appellant’s term-of-years minimum sentence does not constitute a de facto

LWOP sentence, and his claim that his sentence offers him no meaningful

opportunity for parole is without merit.

      Accordingly, after a thorough review of the record and briefs, we find

Appellant has presented no issue on appeal that would convince us to

disturb his judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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