J-A31016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ANTHONY M. ROMANELLI

                            Appellant                  No. 2114 EDA 2015


               Appeal from the Judgment of Sentence May 29, 2015
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0300422-2005


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                            FILED AUGUST 21, 2017

       Anthony M. Romanelli appeals from the May 29, 2015 judgment of

sentence entered in the Philadelphia County Court of Common Pleas

following a resentencing hearing pursuant to Commonwealth v. Batts, 66

A.3d 286 (Pa. 2013) (“Batts I”). The trial court resentenced Romanelli to

life in prison without parole on a conviction for second-degree murder, which

he committed when he was 17 years old.              Following the Pennsylvania

Supreme Court’s decision in Commonwealth v. Batts, __ A.3d ___, 2017

WL 2735411 (Pa. June 26, 2017) (“Batts II”), we vacate the judgment of

sentence and remand for resentencing.



____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
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       On November 30, 2006, a jury convicted Romanelli of second-degree

murder, robbery, aggravated indecent assault, burglary, and conspiracy.1

On February 2, 2007, the trial court sentenced Romanelli to the then-

mandatory sentence of life imprisonment without the possibility of parole for

the second-degree murder conviction and a consecutive term of 10 to 20

years’ imprisonment for the conspiracy conviction. On March 1, 2010, this

Court affirmed his judgment of sentence.                On June 27, 2013, the

Pennsylvania      Supreme       Court    vacated   Romanelli’s   life-without-parole

sentence and remanded for resentencing.

       On May 29, 2015, the trial court held a sentencing hearing and again

sentenced Romanelli to life imprisonment without the possibility of parole for

the second-degree murder conviction and a consecutive term of 10 to 20

years’ imprisonment for the conspiracy conviction.         Romanelli filed a post-

sentence motion, which the trial court denied on June 23, 2015. On July 9,

2015, Romanelli filed a timely notice of appeal.

       Romanelli raises the following issues on appeal:

           1. Is it unconstitutional to sentence a juvenile convicted of
           second degree murder to life imprisonment without the
           possibility of parole?

           2. Absent a finding that a juvenile is permanently
           incorrigible, is it unconstitutional to sentence a juvenile to
           life imprisonment without the possibility of parole?
____________________________________________


       1
         18 Pa.C.S. §§ 2502(b), 3701(a)(1), 3125, 3502(a), and 903,
respectively.



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           3. Under the circumstances of this case, was it
           unconstitutional to sentence Anthony Romanelli to life
           imprisonment without the possibility of parole?

Romanelli’s Br. at 3 (suggested answers omitted).

       A claim that a juvenile defendant was sentenced to life imprisonment

without the possibility of parole absent a finding that he “will forever be

incorrigible, without any hope for rehabilitation” challenges the legality of

the sentence. Batts II, 2017 WL 2735411, at *18. Our standard of review

is de novo, and our scope of review is plenary. Id.

       In reviewing a post-Miller2 resentencing, our Supreme Court recently

“established several procedural safeguards designed to ensure that only the

‘rarest    of   juvenile   offenders’   receive   a   life-without-parole   sentence.”

Commonwealth v. Coia, ___ A.3d ____, 2017 WL 3223019, at *2

(Pa.Super. July 31, 2017) (quoting Batts II, 2017 WL 2735411, at *1).

This Court has summarized the procedural safeguards as follows:

           First, the [Supreme] Court concluded that trial courts must
           apply a presumption against the imposition of a life-
           without-parole sentence for juvenile offenders. [Batts II,
           2017 WL 2735411, at *1.]          Second, it held that the
           Commonwealth bears the burden of rebutting this
           presumption by establishing beyond a reasonable doubt
           that the juvenile offender is “permanently incorrigible” and
           “incapable of rehabilitation.” Id. Third, it required the
           Commonwealth to provide reasonable notice to the
           defendant of its intent to seek a sentence of life without
           parole. Id. at *34.

____________________________________________


       2
        Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2460, 183
L.Ed.2d 407 (2012).



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Id.3

       Here, the trial court resentenced Romanelli to a life-without-parole

sentence for the second-degree murder conviction following a resentencing

hearing.    The trial court considered the age-related factors as dictated by

our Supreme Court in Batts I.                  It did not, however, apply the later-

established presumption against the imposition of a life-without-parole

sentence or require the Commonwealth to rebut that presumption with

evidence    establishing     beyond     a      reasonable   doubt   that   Romanelli   is

“permanently incorrigible” and “unable to be rehabilitated.” Batts II, 2017

WL 2735411, at *37.

       Accordingly, we vacate the judgment of sentence and remand this

case to the trial court for resentencing in light of Batts II.4

       Judgment of sentence vacated.                  Case remanded.         Jurisdiction

relinquished.

____________________________________________


       3
         The Supreme Court further concluded that expert testimony would
not be required to rebut the presumption against permanent incorrigibility
beyond a reasonable doubt, but noted that “[g]iven the presumption against
life without parole and the Commonwealth’s burden beyond a reasonable
doubt to rebut the presumption, it is difficult to conceive of a case where the
Commonwealth would not proffer expert testimony and where the sentence
would not find expert testimony to be necessary.” Batts II, 2017 WL
2735411, at *34.
       4
        Because we have vacated Romanelli’s judgment of sentence, we
need not reach the remaining issues raised on appeal, including whether
imposition of a life-without-parole sentence on a juvenile convicted of
second-degree murder is unconstitutional.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2017




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