J-A10036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    NATHAN RILEY                               :
                                               :
                       Appellant               :      No. 2220 EDA 2018

         Appeal from the Judgment of Sentence Entered June 27, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0706842-1994


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.E.:                            FILED JUNE 28, 2019

        Appellant, Nathan Riley, appeals from the new judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for one count each of first-degree murder, aggravated

assault, carrying firearms on public streets or public property in Philadelphia,

possessing instruments of crime, criminal conspiracy, recklessly endangering

another person, and two counts of robbery.1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises the following issue for our review:

           IS IT UNCONSTITUTIONAL TO IMPOSE A MANDATORY
____________________________________________


1   18 Pa.C.S.A. §§ 2502, 2702, 6108, 907, 903, 2705, and 3701, respectively.
J-A10036-19


          LIFETIME PAROLE TAIL ON ALL JUVENILE LIFERS BEING
          RESENTENCED?

(Appellant’s Brief at 3).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Barbara A.

McDermott, we conclude Appellant’s issue merits no relief. The trial court

opinion comprehensively discusses and properly disposes of the question

presented.     (See Trial Court Opinion, filed September 25, 2018, at 3-4)

(finding: court imposed new sentence of 25 years to life imprisonment as

result of negotiated plea agreement between Appellant and Commonwealth;

Appellant’s claim his sentence is illegal because it includes maximum term of

life incarceration fails; under Commonwealth v. Batts, 640 Pa. 401, 163

A.3d 410 (2017), sentencing court may resentence juveniles convicted prior

to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)

to minimum “term-of-years” sentence and must impose mandatory maximum

sentence of life in prison, exposing defendants to parole eligibility upon

expiration of their minimum sentence; imposition of “term-of-years”

maximum sentence instead of life imprisonment is illegal).2 Accordingly, we

affirm based on the court’s opinion.

       Judgment of sentence affirmed.




____________________________________________


2   See Commonwealth v. Seskey, 170 A.3d 1105 (Pa.Super. 2017).

                                           -2-
J-A10036-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/19




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,.       )                  · ·.  �N THE COURT OF COMMON PLEAS
      '2018 SEP 25 Aun ll·FIRST
                            • 21
                                    JUDICIAL DISTRICT OF PENNSYLVANIA
                                      CRIMINAL TRIAL DIVISION
      OFFICE OF JUD!Clf·L RECORDS .
        col(;fm©NWE�IDU.lH OF PENNSYLvANIA                     CP-5 l-CR-0706842-1994
        FIRST JllOICIAL DISTRICT
           Of PHH!SYLV.O.NlA

                   v.


        NATHAN RILEY



                                                          OPINION

        McDermott, J.                                                                  September 25, 2018

        Procedural History

                       On June 17, 1994, the Defendant, Nathan Riley, then aged fifteen-years and eleven-

        months old, was arrested and charged -�ith Murder and related offenses. On                     Mo.� '2.1..... ,
         1995, after a trial before the Honorable John J. Poserina, Jr., a jury convicted the Defendant of

        First-Degree Murder, two counts of Robbery, Carrying a Firearm on a Public Street in

        Philadelphia ("VUF A 6108"), Criminal Conspiracy, Aggravated Assault, Recklessly
                                                                                              1
        Endangering Another Person ("REAP"), and Possession of an Instrument of Crime C'PIC"). On

     t.Jovim'ou �Ce, \�'\S, Judge Poserina sentenced the Defendant to the then-mandatory term oflife
         imprisonment without the possibility of parole for First-Degree Murder and imposed concurrent

         sentences of four to eight years of imprisonment for one count of Robbery and two to four years

         of imprisonment for Aggravated Assault, for a total sentence of life imprisonment without
                                                                                CP-51-CR-0706842-199-1 Canm. v. Riley, Nalhan
         parole. 2                                                                                Opinion




                                                                                     II I II I II IIIIIII II \111111
                                                                                              8167914801
         I The remaining charges were no/le prossed.
         2
           Judge Poserina imposed no further penalty for the remaining count of Robbery, VUFA 6108, Criminal Conspiracy,
         REAP. and PIC.
        On March 24, 2016, the Defendant filed a Post-Conviction Relief Act ("PCRA") petition

challenging the legality of his life w!thout parole sentence. 3 On June 27, 2018, this Court

granted the Defendant post-conviction relief and vacated his tJO\Jti\l�, I� l�'\5" sentence. On that

same date, this Court imposed a negotiated sentence of twenty-five years to life term of

imprisonment for First-Degree Murder.

        On July 27, 2018, the Defendant filed a timely Notice of Appeal. . On August 22, 2018,

this Court ordered the Defendant to file a Concise Statement of Matters Complained of on

Appeal pursuant to Pa.R.A.P. 1925(b).4 On September 12, 2018, the Defendant filed a timely

1925(b) Statement.



        At the June 27, 2018 resentencing hearing, the Commonwealth recited the agreed upon

facts of the case as follows:

                     [O]n the morning of June 1, 1994, 26-year old Kyle Rainey and
                 two cohorts, 34-year old Darryl Wallace, also known as Poz and an
                 unknown person, whose name was Geeter, pulled up to the comer
                 of 24th Street and Montgomery Avenue ... in Philadelphia where
                 they met up with their co-defendant, 15-year old Nathan Riley.
                     Rainey instructed the Defendant to get in the car and handed him
                 a 38-caliber semiautomatic handgun, informing him that they were
                 going to rob a jewelry store.
                     Wallace, who was driving the car, parked the car at Maplewood
                 Avenue as the other three men, Geeter, Rainey, and the Defendant
                 ... walked to the jewelry store.



3 On June 25, 2012, the Supreme Court of the United States issued its holding in Miller v. Alabama, 567 U.S. 460
(2012), which rendered all mandatory life imprisonment without parole sentences for juveniles unconstitutional. On
January 27, 2016, the Supreme Court of the United States issued its holding in Montgomery v. Louisiana, --- U.S. ---
 136 S.Ct. 718 (2016), which held that the Miller decision applied retroactively.
     In 2016, a three-judge en bane panel for the Philadelphia County Court of Common Pleas was established to
decide all questions of law concerning the resentencing ofjuveniles previously sentenced to life without parole. On
October 28, 2016, the en bane panel was presented with fifteen questions of law. On April 13, 2017, the en bane
panel issued its opinion addressing each question of law.
4 This Court received the Defendant's
                                       prose Notice of Appeal on August 8, 2018. In order to avoid hybrid
representation, this Court contacted resentencing counsel Frank Cervone, Esq. and after a conversation with the
Defendant, Cervone proceeded with the appeal on the Defendant's behalf.
                                                         2
                   At approximately 11 :35 a.m., [the] three men reached Sun
               Jewelers at 113 West Chelten Avenue ... in Philadelphia. Rainey
               told the other men to [rob the jewelry store].
                   They entered the opened door of the storefront and once the
               Defendant and Geeter were inside, Rainey closed the door which
               had been propped open because [ according to the wife of the
               victim.] it was nice weather that day.                     ·
                   Rainey then walked along Chelten Avenue toward the getaway
               car, which was [still] being driven ... by Wallace.
                   Inside, the Defendant aimed the 38-caliber handgun at the
               owner, 44-year old Sun [Kang] and his wife, Mollie [Kang], and
               shouted, "Don't move."
                   The Defendant then shot Mr. [Kang] in the neck, severing his
               carotid artery and cutting off the blood flow to his brain and killing
               him. The Defendant claims this was after Mr. [Kang] made a
               movement that scared him.
                   Geeter then leaped over the counter, stuffed a bunch of jewelry
               from the display cases into a bag as the Defendant held Mrs. [Kang]
               at gunpoint.
                   The Defendant opened the door and held it [open] for Geeter, as
               Wallace pulled up outside the storefront in his blue four-door
               Oldsmobile Cutlass frame. Rainey was in the backseat.
                   The Defendant and Geeter entered the Oldsmobile as [Mrs.]
                [Kang] follow[ ed] them out the door to try to see the license plate as
               they puJled away.
                   Police recovered one 38-caliber bullet from the floor of the
               jewelry store.

N.T. 6/27/2018 at 17-19.

Discussion

       The Defendant raises three issues for review, alleging that (1) the imposition of a

maximum term of life imprisonment and a lifetime parole tail is unconstitutional; (2) this Court

erred in applying 18 Pa. C.S. § 1102.1 (a) to the instant case; and, (3) this Court's reliance on the

sentencing guidelines amended after the date of the instant offense violates the Ex Post Facto

clause of the United States and Pennsylvania Constitutions.

       As a preliminary matter, this Court imposed a sentence of twenty-five years to life

imprisonment as a result of a negotiated sentence between the Defendant and the



                                                   3
Commonwealth. At the resentencing hearing, the Defendant indicated to this Court that he

wished to accept with the Commonwealth's offer of 25 years to life imprisonment instead of

proceeding to a: contested hearing. The Defendant does not allege that his acceptance was

unknowing, unintelligent, and involuntary, but instead, argues that his negotiated sentence was

illegal. N.T. 6/27/18 at 8-9.

       The Defendant's claim that this Court's imposition of a maximum term of life

imprisonment is unconstitutional is without merit. This issue has been thoroughly resolved in

Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) ("Batts If'). In Batts, the Supreme Court of

Pennsylvania found that for juveniles convicted prior to Miller, a sentencing court may

resentence affected defendants to a minimum term-of-years sentence and must impose a

mandatory maximum sentence of life in prison, exposing defendants to parole eligibility upon

the expiration of their minimum sentences. Id.; see also 61 Pa.C.S. § 6137(a)(3). In

Commonwealth v. Seskey, 170 A.3d 1105 (Pa. Super. 2017), the Superior Court clarified that a

term-of-years sentence for a defendant convicted of First or Second-Degree murder prior to June

25, 2012 is illegal under Batts II, and vacated the imposed thirteen to twenty-six year sentence on

the appellant's First-Degree Murder conviction. See also Commonwealth v. Olds)C12. A.3d If U,

2018 WL 3233726 (Pa. Super. 2018) (mandatory maximum term.of life imprisonment for a

juvenile convicted of Second-Degree Murder does not violate the Eighth Amendment's ban on

cruel and unusual punishment). No further discussion is warranted.

        The Defendant next contends that the imposition of a maximum term of lifetime parole is

illegal because this Court improperly applied 18 Pa. C.S. §1102.l(a). The Defendant is factually

mistaken in this allegation. As stated in §1102.l(a), a person convicted of First-Degree Murder

after June 24, 2012, who at the time of the commission of the offense, was at least fifteen years



                                                 4
of age, but under the age of eighteen, 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. See

18 Pa. C.S. §1102.l(a)(l).

       The Defendant correctly claims that this court is not obligated to impose the mandatory

minimum to juvenile defendants who were convicted of First-Degree Murder prior to June· 25,

2012. In the instant case, this Court again relied on the Supreme Court's guidance as illustrated

in Batts JI. When sentencing a juvenile to life in prison with the possibility of parole, the Court

noted that§ 1 I 02. l(a) is "not directly applicable to juveniles convicted of first-degree murder

prior to Miller, but rather the sentencing court should be guided by§ 1102.l(a) in determining

the minimum term of imprisonment because it will 'help frame the exercise of judgment by the

court in imposing a sentence' and 'may provide an essential starting point ... that must be

respected and considered.": Batts fl, 163 AJd at 457.

       At the sentencing hearing, this Court noted that it was not bound by the sentencing

requirements under § I 102.1 (a)(l ), as the Defendant committed the instant murders well before

that statute came into effect. N.T. 6/27/18 at 8. Instead, this Court considered the statute

alongside the Miller factors in determining whether to accept the Defendant's negotiated

sentence. This Court ultimately accepted the negotiated sentence based on the significant factors

presented by the Defendant. This Court's sentence is based on the significant age gap between

the Defendant and the other individuals involved. In addition, this Court gave great

consideration to the Defendant's expression of remorse, the fact that he turned himself in after

the crime, made an admission of guilt, and the Defendant's ability for rehabilitation, despite his

prison misconducts. N.T. 6127/18 at 23-27. Therefore, no abuse of discretion occurred.




                                                   5
       The Defendant finally claims that his resentence to a mandatory maximum sentence of

life issued after an amendment to the Sentencing Guidelines violates the Ex Post Facto clause of

the United States and Pennsylvania Constitutions. The Defendant's argument is not supported

by material fact. As it explained during the sentencing hearing, this Court consulted the

applicable sentencing guidelines in place at the time of the murder in 1994, which was the Third

Edition. See Pennsylvania Sentencing Guidelines, 204 Pa. Code§§ 303.1-303.9 (1991).

       At the time of sentencing in 199&, the Defendant had a prior record score of zero.   At that

time, the offense gravity score for First-Degree Murder was undefined. Id. Robbery had an

offense gravity score of seven, carrying a standard sentencing range of eight to twelve months

imprisonment, twelve to eighteen months imprisonment for an aggravated range sentence, and

four to eight months imprisonment for a mitigated range sentence. Id. Aggravated assault had

an offense gravity score of nine. Id. Under the Third Edition of the guidelines� the standard

range sentence for Aggravated Assault was 36-60 months imprisonment, an aggravated range

sentence was 60-75 months imprisonment, and a mitigated range sentence was 27-36 months

imprisonment. Id. Because of the negotiations between the Commonwealth and the Defendant,

this Court imposed no further penalty on the Robbery and Aggravated Assault charges. N.T.

6/27/18 at 34-35. Accordingly, the Defendant cannot establish prejudice.

       For the foregoing reasons, the judgment of this Court should be affirmed.




                                                                    BY THE COURT,




                                                                    Barbara A. McDermott, J


                                                6
Commonwealth v. Nathan Riley
CP-51-CR-0706842-1994

                                          PROOF OF SERVICE

        I hereby certify that I am this day serving the foregoing filing upon the person(s), and in the manner
indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:


                               Philadelphia District Attorney's Office
                               Three South Penn Square
                               Philadelphia, PA 19107
                               Attn: Lawrence Goode, Esq.

Type of Service:               Hand Delivery

                               Frank Cervone, Esq.
                               1617 John F. Kennedy Blvd.
                               Suite 1200
                               Philadelphia, PA 19103

Type of Service:               First-Class Mail

                               Nathan Riley
                               CT8571
                               SCI Coal Township
                               1 Kelley Dr.
                               Coal Township, PA 17866

Type of Service:               First-Class Mail


Dated: September 25, 2018



 s�
StepnieWolbrask
Law Clerk to the
Honorable Barbara A. McDermott
