J-A23036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES E. CARLSON, III,                   :
                                               :
                       Appellant               :      No. 1393 WDA 2018

         Appeal from the Judgment of Sentence Entered June 19, 2018
                in the Court of Common Pleas of Beaver County
             Criminal Division at No(s): CP-04-CR-0002338-1999

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 27, 2019

       Charles E. Carlson, III (“Carlson”), appeals from the judgment of

sentence imposed after he was resentenced pursuant to Miller v. Alabama,

567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718

(2016).1 We affirm.

       In September 1999, 17-year-old Carlson threw a Molotov cocktail into

the home of his former girlfriend. Two young children, a 3-year-old and a 3-



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1  The Supreme Court in Miller held that sentencing schemes that mandate
life in prison without parole (“LWOP”) sentences for defendants who
committed their crimes while under the age of eighteen violate the Eighth
Amendment’s prohibition on “cruel and unusual punishments.” Miller, 567
U.S. at 465. In Montgomery, the Supreme Court held that the Miller
decision announced a new substantive rule of constitutional law that applies
retroactively. Montgomery, 136 S. Ct. at 736.
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month-old, were killed in the fire, and other occupants of the home received

burns. Following a jury trial, Carlson was convicted of two counts each of

second-degree murder and arson, five counts each of aggravated assault and

recklessly endangering another person, and one count of incendiary devices.2

For his convictions of second-degree murder, the trial court sentenced Carlson

to consecutive, mandatory terms of LWOP.3        This Court affirmed Carlson’s

judgment of sentence on April 25, 2002.

        Carlson filed his first pro se Petition pursuant to the Post Conviction

Relief Act (“PCRA”) on July 15, 2010, challenging the legality of his sentence

following the United States Supreme Court’s decision in Graham v. Florida,

560 U.S. 48, 82 (2011) (prohibiting a sentence of life in prison without the

possibility of parole for juveniles convicted of non-homicide offenses). The

PCRA court appointed Carlson counsel, who sought permission to withdraw

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). After

appropriate Notice pursuant to Pa.R.Crim.P. 907, the PCRA court permitted

PCRA counsel to withdraw, and dismissed Carlson’s Petition.

        On August 17, 2012, Carlson filed his second pro se PCRA Petition,

challenging the legality of his sentence following the Supreme Court’s decision


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2   18 Pa.C.S.A. §§ 2502(b), 3301(a)(1), 2702(a)(1), 2705, 7306.

3   The sentences for the remaining convictions were imposed concurrently.


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in Miller. The PCRA court appointed Carlson counsel, but deferred further

action on Carlson’s Petition pending the Pennsylvania Supreme Court’s

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

Following the issuance of the Cunningham decision, see id. at 11 (holding

that Miller does not apply retroactively to juveniles whose judgments of

sentence were final on the date of the Miller decision), the PCRA court issued

Notice of its intention to dismiss Carlson’s Petition without a hearing. Carlson

filed a pro se Motion to Amend his Petition. The PCRA court denied Carlson’s

Motion to Amend, and dismissed his Petition.

       On December 22, 2014, Carlson filed a pro se Petition to Reinstate his

appellate rights, nunc pro tunc, which the PCRA court denied. Carlson filed a

pro se appeal from the court’s denial of his Petition to Reinstate, wherein he

asserted that PCRA counsel had abandoned him. By an Order entered on June

24, 2015, this Court remanded the matter to the PCRA court, with instructions

to determine whether Carlson was entitled to appointment of counsel. 4 The

PCRA court appointed Carlson counsel. Carlson subsequently filed with both

the PCRA court and this Court a pro se Motion for a Grazier5 hearing, or in

the alternative, for the appointment of new counsel, claiming that appointed


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4 This Court’s Order indicates that Carlson filed a pro se “Application for
Appointment of Counsel” on June 17, 2015. However, this document is not
included in the certified record.

5   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).


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counsel had again failed to act on his behalf. On October 23, 2015, this Court

issued an Order acknowledging that appointed counsel had failed to file a brief

on Carlson’s behalf, and remanding the matter to the PCRA court to determine

whether counsel had abandoned Carlson. Following a hearing, the PCRA court

determined that appointed counsel had not abandoned Carlson on appeal, and

indicated that an appellate brief was forthcoming. On April 15, 2016, this

Court reversed the PCRA court’s Order dismissing Carlson’s Petition, vacated

his judgment of sentence, and remanded to the trial court for re-sentencing

pursuant to Miller and Montgomery. See Commonwealth v. Carlson, 145

A.3d 783 (Pa. Super. 2016) (unpublished memorandum).

       While the appeal as to his second PCRA Petition was pending, Carlson

filed his third PCRA Petition on March 28, 2016,6 claiming that he was entitled

to retroactive application of Miller following the Supreme Court’s decision in

Montgomery.         The PCRA court appointed Carlson counsel, who filed an

Amended Petition on his behalf, indicating that this Court had already vacated

Carlson’s judgment of sentence.




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6The certified record contains a pro se PCRA Petition and Amended Petition,
as well as a counseled PCRA Petition and Amended Petition, each of which
were entered on the docket on the same date. All four documents challenge
Carlson’s sentence following the Montgomery decision.




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       The trial court conducted a resentencing hearing on June 19, 2018.7

The trial court thereafter resentenced Carlson to consecutive prison terms of

25 years to life for each of his second-degree murder convictions,8 with credit

for time served, and ordered Carlson to pay the costs of prosecution. Carlson

filed a Post-Sentence Motion, which the trial court denied following a hearing.

Carlson filed a timely Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of errors complained of on appeal.9

       On appeal, Carlson raises the following questions for our review:

       I. Is a sentence of fifty years to life a de facto life sentence that
       could not be constitutionally imposed after the sentencing court
       specifically found that [] Carlson was capable of rehabilitation?

       II. Must the aggregate sentence be considered in determining
       whether the sentence imposed is an unconstitutional de facto life
       sentence?

       III. Did the sentencing court abuse its discretion in imposing
       consecutive rather than concurrent sentences for offenses arising
____________________________________________


7 The Honorable Robert C. Reed, who presided over Carlson’s original
sentencing, had retired prior to Carlson’s resentencing hearing. However, the
sentencing court reviewed the trial transcripts and evidence before
resentencing Carlson. See N.T., 6/19/18, at 89-90.

8   The Commonwealth did not seek an LWOP sentence.

9 On December 6, 2018, Carlson filed an Application to Stay Briefing Schedule,
citing the Pennsylvania Supreme Court’s decision to grant allowance of appeal
in Commonwealth v. Felder, 2017 WL 6505643 (Pa. Super. 2017), appeal
granted, 187 A.3d 909 (Pa. 2018) (granting allowance of appeal to consider
whether “a sentence of 50 years to life imposed upon a juvenile constitute[s]
a de facto life sentence requiring the sentencing court … first find permanent
incorrigibility, irreparable corruption or irretrievable depravity beyond a
reasonable doubt”). This Court denied Carlson’s Application on December 18,
2018.

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      from a single act[,] and in failing to treat [] Carlson as a juvenile
      offender?

Brief for Appellant at 4.

      We will address Carlson’s first two claims together. In his first claim,

Carlson argues that his sentence is unconstitutional because the aggregate

sentence constitutes a de facto LWOP sentence. Id. at 11. Carlson points out

that the trial court determined during the resentencing hearing that he is

capable of rehabilitation. Id. at 12. Carlson argues that because he will not

be eligible for parole until he is 67 years old, the sentence fails to provide him

with a meaningful opportunity for release. Id.

      Carlson next asserts that, in determining whether a sentence constitutes

a de facto LWOP sentence, a court should consider the aggregate sentence

imposed, rather than individual sentences ordered to run consecutively. Id.

at 15-18.

      Carlson’s claims challenge the legality of his sentence. “When reviewing

challenges to the legality of a sentence, our standard of review is de novo and

our scope of review is plenary.” Commonwealth v. Ligon, 206 A.3d 1196,

1198 (Pa. Super. 2019).

      In Commonwealth v. Foust, 180 A.3d 416 (Pa. Super. 2018), this

Court held that “a trial court may not impose a term-of-years sentence on a

juvenile convicted of homicide if that term-of-years sentence equates to a de

facto LWOP sentence unless it finds, beyond a reasonable doubt, that the

juvenile is incapable of rehabilitation.” Id. at 433. This Court additionally

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held that we must review individual sentences, rather than an aggregate

sentence, in determining whether a juvenile received a de facto LWOP

sentence. Id. at 434. The Foust Court explicitly declined to draw a bright-

line rule or to identify relevant factors to consider in determining what

constitutes a de facto LWOP sentence.            Id. at 438.   However, the Court

concluded that Foust’s individual sentences of 30 years to life 10 did not

constitute a de facto life sentence. Id.

       Subsequently, in Commonwealth v. Bebout, 186 A.3d 462 (Pa. Super.

2018), this Court rejected Bebout’s claim that his sentence of 45 years to life

constituted a de facto LWOP sentence. Id. at 470-71. The Bebout Court

explained that

       [t]he 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,
       560 U.S. at 75 …. 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.

Bebout, 186 A.3d at 468 (emphasis in original; footnote omitted). Noting

that Bebout would be eligible for parole at age 60, the Court reasoned that



____________________________________________


10The trial court had imposed two consecutive sentences, resulting in an
aggregate prison term of 60 years to life. See Foust, 180 A.3d at 421.

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“his minimum sentence is not so long that it is virtually certain that he could

not survive it,” and that it was at least plausible that he could live many years

beyond his minimum release date. Id. at 468, 469.

       Here, Carlson received individual sentences of 25 years to life.     See

Foust, 180 A.3d at 434 (instructing this Court to consider individual, as

opposed to aggregate, sentences). Carlson was 17 years old at the time he

committed the crime; therefore, a minimum sentence of 25 years in prison

does not constitute a de facto LWOP sentence.11 See id. at 438 (concluding

that individual sentences of 30 years to life were not de facto LWOP sentences,

where appellant was 17 years old at the time of the crime); Bebout, 186 A.3d

at 470-71 (concluding that sentence of 45 years to life did not constitute a de

facto LWOP sentence); Commonwealth v. White, 193 A.3d 977, 986 (Pa.

Super. 2018) (concluding that a prison term of 35 years to life did not

constitute a de facto LWOP sentence, where appellant had committed the

crime when, and been in jail since, he was 17 years old).           Accordingly,

Carlson’s sentence is constitutionally sound, and he is not entitled to relief on

these claims.




____________________________________________


11 In his brief, Carlson asks us to consider his aggregate sentence of 50 years
to life, as well as the age at which he will become eligible for parole (67 years
old) based on the aggregate sentence. However, to do so would be contrary
to the directives of the Foust Court. Foust, 180 A.3d at 434.

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      In his third claim, Carlson contends that the trial court erred in imposing

consecutive sentences, where the two second-degree murder charges arose

out of a single act. See Brief for Appellant at 18-21.

      Carlson’s claim challenges the discretionary aspects of his sentence,

from which there is no automatic right to appeal.          Commonwealth v.

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

      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 is timely; (2)
      whether [a]ppellant preserved his issue; (3) whether [a]ppellant’s
      brief includes a concise statement of the reasons relied upon for
      allowance of appeal with respect to the discretionary aspects of
      the sentence[,] see Pa.R.A.P. 2119(f); and (4) whether the
      concise statement raises a substantial question that the sentence
      is appropriate under the sentencing code …. If the appeal satisfies
      each of these four requirements, we will then proceed to decide
      the substantive merits of the case.

Disalvo, 70 A.3d at 900 (citation and some brackets omitted).

      Here, Carlson filed a timely Notice of Appeal, preserved his claim in his

Post-Sentence Motion, and included a separate Rule 2119(f) Statement in his

brief. See id. We therefore proceed to ascertain whether Carlson has raised

a substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,

533 (Pa. Super. 2011). “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


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(2) contrary to the fundamental norms which underlie the sentencing

process.” Id. (internal citations omitted).

      In his Rule 2119(f) Statement, Carlson asserts that the imposition of

consecutive sentences for two separate murder convictions resulted in an

excessive sentence. Brief for Appellant at 9. Carlson also claims that the

sentencing court “disregard[ed] the admonition of the United States Supreme

Court … that ‘juvenile first-degree murderers are presumptively less culpable

than their adult counterparts and, as such, should be sentenced differently.’”

Id. at 10 (citing Commonwealth v. Batts (“Batts II”), 163 A.3d 410, 437

(Pa. 2017)). Carlson’s claim raises a substantial question. See Foust, 180

A.3d at 439; see also Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.

Super. 2015) (en banc) (stating that “an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question.” (citation omitted)).

      In considering Carlson’s claim, we observe the following standard of

review:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Caldwell, 117 A.3d at 770 (citation omitted).

      The Sentencing Code provides that

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       the [trial] court shall follow the general principle that the sentence
       imposed should call for confinement that is consistent with the
       protection of the public, the gravity of the offense as it relates to
       the impact on the life of the victim and on the community, and
       the rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b). Generally, a court must also consider the sentencing

guidelines. See id.; see also Commonwealth v. Sheller, 961 A.2d 187,

190 (Pa. Super. 2008).           However, the basic sentencing matrix relating to

juvenile homicide offenders, 204 Pa. Code § 303.16(b), is not applicable

where, as here, the offender was convicted prior to the date of the Miller

decision.    See Commonwealth v. Melvin, 172 A.3d 14, 22 (Pa. Super.

2017).      Similarly, 18 Pa.C.S.A. § 1102.1,12 concerning the sentencing of

juvenile homicide offenders, applies to those convicted after June 24, 2012.

       In   Batts II,      the    Pennsylvania     Supreme   Court    considered   the

appropriate     discretionary      sentencing      considerations    to   apply   when

resentencing juvenile offenders who were convicted of first-degree murder

prior to Miller, and for whom an LWOP sentence was deemed inappropriate.

See Batts II, 163 A.3d at 457-58. The Batts II Court instructed sentencing

courts to seek guidance from section 1102.1. Id.; see also id. at 460 (stating

that “[t]he sentencing court should fashion the minimum term of incarceration

using, as guidance, section 1102.1(a) of the Crimes Code.”).

       Applying Batts II to juvenile offenders convicted of second-degree

murder, this Court has also concluded that sentencing courts should consider
____________________________________________


12Relevant to this appeal, section 1102.1(c) provides for a term of 30 years
to life for juveniles convicted of second-degree murder, and who were 15
years of age or older at the time of the offense. 18 Pa.C.S.A. § 1102.1(c)(1).

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the requirements of section 1102.1(c) in fashioning a minimum sentence.

Melvin, 172 A.3d at 22. But see Commonwealth v. Machicote, 206 A.3d

1110, 1119 (Pa. 2019) (noting that offenders who were convicted of second-

degree murder prior to June 24, 2012, are subject to sentencing pursuant to

the previous version of section 1102, under which LWOP is a viable sentence).

Thus, juvenile offenders convicted of second-degree murder prior to the Miller

decision must be sentenced to a maximum period of life in prison, but “they

are eligible for parole after a term-of-years specified by the trial court.”

Commonwealth v. Olds, 92 A.3d 1188, 1195 (Pa. Super. 2018).

      At the resentencing hearing, the trial court heard testimony from three

Commonwealth witnesses and five defense witnesses, including Carlson. The

trial court also received four victim impact statements, which were admitted

into evidence during the hearing. See N.T., 6/19/18, at 7. Additionally, the

Commonwealth presented evidence regarding Carlson’s behavior while in

prison, including approximately 60 misconducts between 2003 and 2016. See

id. at 50-54, 61-71, 87; see also Trial Court Opinion, 11/27/18, at 8.

      The trial court specifically stated that it had considered the provisions of

18 Pa.C.S.A. § 1102.1, while recognizing that it was not bound by that statute

because Carlson was convicted prior to the Miller decision.            See N.T.,

6/19/18, at 93.    After weighing all of the relevant factors, the trial court

“determined that sentences below the applicable guidelines were appropriate

in this case.” Trial Court Opinion, 11/27/18, at 9. During the hearing, the

trial court specifically considered several factors in favor of mitigation,

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including Carlson’s involvement in teaching other prisoners physical education

and spelling, his completion of several courses and his GED, and the emotional

and financial support he would have available upon his release. See N.T.,

6/19/18, at 92-93.    The court also stated that Carlson had been a model

prisoner for the prior two years, and made a finding that Carlson “is not

incorrigible to the point where he cannot be rehabilitated.” Id.

      In directing the sentences to run consecutively, the trial court stated its

finding that the criminal act was not “attributable to juvenile impetuousness[,]

nor was it an act where [Carlson] was not fully aware of the … potential

consequences of his actions.” Id. at 94. Specifically, the court referred to

trial testimony that, at some time prior to the fire, Carlson had told his former

girlfriend, “if I can’t have you, nobody will.”    Id. at 91.    The trial court

additionally observed that Carlson’s “actions indicate … that he did exhibit

criminal sophistication in his planning and in his commission of this criminal

act.” Id. at 94; see also id. at 92 (stating that the circumstantial evidence

indicated forethought and advanced planning).

      Based upon the foregoing, we conclude that the trial court adequately

considered all relevant factors, including relevant mitigating evidence, as well

as the provisions of section 1102.1, prior to imposing individual sentences

below the guidelines set forth in section 1102.1. See Batts II, 163 A.2d at

457-58; Melvin, 172 A.3d at 22. Further, the trial court stated on the record

its reasons for imposing the sentences consecutively, and the court was within

its discretion to do so. See Commonwealth v. Zirkle, 107 A.3d 127, 133

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(Pa. Super. 2014) (stating that “the imposition of consecutive rather than

concurrent sentences lies within the sound discretion of the sentencing court.”

(citation omitted)).   We conclude that the trial court’s sentence was not

improperly excessive, and we otherwise discern no error in the trial court’s

discretion. Thus, Carlson is not entitled to relief on this claim.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/2019




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