J-S48029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL TWIGGS                             :
                                               :
                       Appellant               :   No. 3309 EDA 2018

             Appeal from the PCRA Order Entered October 22, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1017181-1975


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                           FILED DECEMBER 12, 2019

       Appellant, Michael Twiggs, appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. We affirm.

       On March 31, 1976, a jury convicted Appellant of first-degree murder.

The conviction stemmed from an incident on September 30, 1975, during

which Appellant shot Christopher Ross with a sawed-off shotgun. Appellant

was seventeen years old at the time of the crime. On February 7, 1977, the

trial court denied Appellant’s post-verdict motions and sentenced him to serve

a mandatory term of life imprisonment. On July 6, 1979, our Supreme Court

affirmed the judgment of sentence. Commonwealth v. Twiggs, 402 A.2d


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S48029-19


1374 (Pa. 1979). Thereafter, Appellant filed seven petitions seeking post-

conviction relief, all of which proved to be unfruitful.    On July 16, 2010,

Appellant filed another PCRA petition. While the PCRA petition was pending,

the United States Supreme Court issued its decision in Miller v. Alabama,

567 U.S. 460 (2012).     The PCRA court set forth the remaining procedural

history of this matter as follows:

            On July 24, 2012, Appellant filed an amended PCRA petition,
      seeking resentencing pursuant to Miller. On March 4, 2016,
      Appellant filed an amended PCRA petition, raising a Montgomery
      [v. Louisiana, 136 S.Ct. 718 (2016)] claim. The Appellant
      entered into negotiations with the Commonwealth[,] which
      concluded when the Appellant agreed to accept the
      Commonwealth’s recommended sentence of thirty-five years to
      life.  The Appellant’s decision to accept the recommended
      sentence resulted in a negotiated resentencing, which occurred on
      November 30, 2016. N.T. 11/30/2016. Before the Appellant’s
      original sentence was vacated, this Court conducted a colloquy of
      the Appellant which, inter alia, advised the Appellant that he was
      not required to accept the sentence the Commonwealth was
      recommending to the Court, advised him of his absolute right to
      have a resentencing hearing before a judge, and advised that if
      he accepted the Commonwealth’s recommended sentence he
      gave up the right to a resentencing hearing. Id. at 9-10. The
      Appellant stated he understood his right to a resentencing hearing
      and wanted to accept the recommended sentence and proceed
      with a negotiated resentencing. Id.

            Further, the Appellant was advised that if he agreed to
      accept the sentence offered by the Commonwealth his appellate
      rights would be extremely limited to challenging the jurisdiction of
      the Court, the legality of the sentence imposed, and the
      voluntariness of his decision to accept the recommended
      sentence. Id. at 10-11. The Appellant stated that he understood
      his appeal rights. Id. at 12. At the conclusion of the colloquy,
      this Court found that the Appellant’s decision, to accept the
      recommended sentence, was made voluntarily, knowingly, and of
      his own free will. Id. at 14. The original sentence imposed on
      February 7, 1977, was vacated and a new sentence of thirty-five

                                     -2-
J-S48029-19


     years to life was imposed for the conviction of first degree murder.
     Id. at 44. The Appellant received credit for all original credit time
     awarded and all time previously served in this case. Id. at 45. At
     the time of the resentencing, the Appellant had served forty-one
     years of his original sentence. The newly imposed sentence of
     thirty-five years to life made the Appellant immediately eligible for
     parole consideration.      Id.   The Appellant was subsequently
     granted parole by the state of Pennsylvania and was released from
     prison.

            On April 15, 2017, the Appellant filed a pro se PCRA petition,
     asserting that his new sentence was illegal. James F. Berardinelli,
     Esquire, was appointed counsel for the Appellant, and on March
     31, 2018, counsel filed the “Defendant’s Amended Post-Conviction
     Relief Act Petition” (“Amended Petition”).         In the Amended
     Petition, counsel raised four claims concerning the illegality of the
     Appellant’s sentence of thirty-five years to life: (1) that his
     sentence violated the holding of Miller and Montgomery; (2)
     that the imposition of a maximum term of life violates the
     constitutional mandate of proportionality; (3) that the imposition
     of the maximum term of life violated the requirement of
     meaningful release based on demonstrated maturity; and (4) that
     no statutory sentencing scheme exists which authorizes the
     imposition of the sentence of thirty-five years to life.

            On September 6, 2018, the Commonwealth filed a
     “Response to Petition for Post-Conviction Relief” (“Commonwealth
     Response”). The Commonwealth agreed that the imposition of a
     mandatory maximum term of life was illegal in the Appellant’s
     case. Commonwealth Response, p. 1. The Commonwealth
     asserted that “where defendants have demonstrated that they
     have been rehabilitated or that they have the capability of being
     rehabilitated, the mandatory imposition of continued, lifetime
     punishment is disproportionate, and violates the requirements of
     individualized sentencing set forth in Miller.” Commonwealth
     Response, p. 3. However, the Commonwealth acknowledged that
     the Pennsylvania Superior Court has ruled otherwise, and
     admitted that, based on the current applicable law, the Court had
     no alternatives but to deny the Appellant’s PCRA Petition.
     Commonwealth Response, p. 1.

PCRA Court Opinion, 1/15/19, at 2-5.




                                     -3-
J-S48029-19


      On September 24, 2018, the PCRA court issued a Pa.R.Crim.P. 907

notice of intent to dismiss. Appellant did not respond, and on October 22,

2018, the PCRA court entered an order dismissing Appellant’s PCRA petition.

This timely appeal followed. Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      I. Did the lower court err in denying defendant’s PCRA petition on
      the ground that the imposition of a maximum sentence of life
      imprisonment is unconstitutional in light to the United States
      Supreme Court’s holdings in Miller v. Alabama, 567 U.S. 460
      (2012) and Montgomery v. Louisiana, __ U.S. __, 136 S.Ct.
      718 (2016)?

      II. Did the lower court err in denying defendant’s PCRA petition on
      the ground that the imposition of a maximum sentence of life
      imprisonment      violates     the   constitutional  mandate     of
      proportionality?

      III. Did the lower court err in denying defendant’s PCRA petition
      on the ground that the imposition of a maximum sentence of life
      imprisonment is unconstitutional since it deprives him of a
      meaningful opportunity for release and to be free of supervision
      based upon demonstrated maturity?

      IV. Did the lower court err in denying defendant’s PCRA petition
      on the ground that the imposition of a maximum sentence of life
      imprisonment is unconstitutional since defendant can be
      sentenced to no more than 20-40 years for third degree murder
      since the only existing sentencing scheme in Pennsylvania for
      juveniles convicted prior to 2012 of first or second-degree murder
      has been invalidated?

Appellant’s Brief at 3.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the


                                     -4-
J-S48029-19


PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).     This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).      Moreover, “When reviewing the legality of a sentence, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Seskey, 170 A.3d 1105, 1107 (Pa. Super. 2017) (citation

omitted).

        We have reviewed the briefs of the parties, the relevant law, the certified

record before us on appeal, and the PCRA court opinion filed on January 15,

2019.     It is our conclusion that the PCRA court’s opinion adequately and

accurately addresses each of the challenges to the legality of his sentence

presented by Appellant and properly concluded that each lacks merit. PCRA

Court Opinion, 1/15/19, at 8-23.               Consequently, Appellant’s contrary

arguments fail.1      Accordingly, we affirm on the basis of the PCRA court’s

____________________________________________


1 We conclude that Appellant’s challenges to the legality of his sentence were
resolved by our Supreme Court in Commonwealth v. Batts, 163 A.3d 410
(Pa. 2017) (“Batts II”). Since Batts II, this Court has repeatedly rejected



                                           -5-
J-S48029-19


opinion and adopt its analysis as our own.2

       Order affirmed.


____________________________________________


the claim that the imposition of a mandatory maximum sentence of life
imprisonment for a juvenile convicted of first or second-degree murder is
illegal. See Commonwealth v. Olds, 192 A.3d 1188, 1197-1198 (Pa. Super.
2018) (holding imposition of mandatory maximum term of life imprisonment
for juvenile defendant convicted of second-degree murder prior to Miller was
constitutional), appeal denied, 199 A.3d 334 (Pa. 2018); Seskey, 170 A.3d
at 1109 (holding trial court imposed an illegal sentence when it resentenced
juvenile defendant convicted of first-degree murder prior to Miller to term of
13 to 26 years of imprisonment; court was required to impose mandatory
maximum sentence of life imprisonment); Commonwealth v. Battles, 169
A.3d 1086, 1089-1090 (Pa. Super. 2017) (holding trial court’s imposition of
mandatory maximum term of life imprisonment upon resentencing of juvenile
defendant convicted of first-degree murder prior to Miller was legal).

   Nevertheless, Appellant and the Commonwealth have essentially urged this
Court to reconsider our holdings in Olds and Seskey. However, we must
follow the decisional law established by our own Court. Blumenstock v.
Gibson, 811 A.2d 1029, 1039 (Pa. Super. 2002). Moreover, we observe that,
following our decision in Olds, the Pennsylvania Supreme Court denied a
subsequently filed petition for allowance of appeal. Commonwealth v. Olds,
199 A.3d 334 (Pa. 2018). Therefore, unless or until Olds and Seskey are
overturned by an en banc panel of this Court, or by a decision of the
Pennsylvania Supreme Court, they continue to be viable precedent for this
Court and for the courts of common pleas. See also Sorber v. American
Motorists Ins. Co., 680 A.2d 881, 882 (Pa. Super. 1996) (holding that, even
though petition for allowance of appeal was pending before the Pennsylvania
Supreme Court, decision remains binding precedent as long as the decision
has not been overturned by our Supreme Court). Hence, we cannot grant
Appellant and the Commonwealth the relief sought.

   We note further that, to the extent Appellant and the Commonwealth rely
upon Songster v. Beard, 201 F.Supp.3d 639 (E.D.Pa. 2016) for support of
their argument, in Olds we expressly rejected an appellant’s reliance on
Songster. See Olds, 192 A.3d at 1197 n.18 (“[W]e do not agree with
Songster and hold that it is not binding authority in Pennsylvania.”).

2  The parties are directed to attach a copy of that opinion in the event of
further proceedings in this matter.

                                           -6-
J-S48029-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/19




                          -7-
                                                                                     Circulated 11/20/2019 09:52 AM


,_
!           FILED.                                           CP-51-CR-1017161-1975 Comm v Twiggs, Micheal
                                                                               Opinion




     COMMONWEAL TH
            (Appellee)                                      CP-51-CR-1017181-1975
     .vs.                    j
                             I                              SUPERIOR COURT
     MICHAEL TWIGGS                                         No. 3309 EDA 2018
              (Appellant)
                             I
                                             OPINION
                             I
                             I
     By: The Honorable Kathryn S. Lewis, Senior Judge
                             I




            The Appellant
                       . appeals his sentence of thirty-five years to life, which was the
                             .                         .

     result of a negotiated resentencing pursuant to Miller v. Alabama, 567 U.S. 460,
                         I       ·_ .                         .
     (2012), and Montgomery
                      '
                            v. Louisiana, 136 S.Ct. 718 (2016). The Appellant asserts
                                              .

     that the maximum sentence of life is unconstitutional under the United States
                         I
                         I
     Constitution and the Pennsylvania Constitution. In this case, the holdings of the
                         I                                                                                  .
     United States Supreme Court in Miller and Montgomery do not prohibit a defendant
                         I

     convicted of first olr second degree murder, for a crime committed as a juvenile, from
                         l
     receiving a maximum sentence of life as long as the sentence sets a minimum term
                         I


     of years which affdrds the defendant time outside of prison walls. Supra. Therefore,
                         I

                       sentence
     the Appellant's              is constitutional and should be affirmed.
                         1
                              I
                              t
STATEMENT OF FACTS/PROCEDURAL HISTORY

      The Appellant was born on March 2, l 958. On September 30, 1975, the
                              I


Appellant shot and killed Christopher Ross. The two had previously fought over

Dede Thorpe, who:both considered their girlfriend. On the day of the shooting, Mr.
                              I

Ross was walking with Ms. Thorpe and others, when the Appellant appeared from a
                              I
                              I
vacant house and called them over. After a short conversation, the Appellant pulled

out a sawed-off sh�tgun, and pulled the trigger twice, but the gun misfired. The third
                 . I
time that the Appellant pulled the trigger, the gun went off, wounding Mr. Ross in
                          I
the stomach. Mr. Ross died three days later. At the time of the killing, the Appellant
                          I
was 17 years and 6I months old.
                          '
            AppellJnt
      The                         was convicted of first degree murder on March 31, 1976. On
                      I
February 7, 1977, he was sentenced to life imprisonment without the possibility of
                      I
parole on the charge of first degree murder.
                      I
      On July 24, 2012, Appellant filed an amended PCRA petition, seeking
             pur.lant
resentencing           to Miller. On March 4, 2016, Appellant filed an amended
                 laising
PCRA petition,            a Montgomery claim. The Appellant entered into

negotiations with the
                  I
                      Commonwealth which concluded when the Appellant agreed
              Commonwealth's
to accept the                recommended sentence of thirty-five years to life.
                  I
                  I


The Appellant's decision to accept the recommended sentence resulted in a
                  1


                  i
negotiated resentehcing, which occurred on November 30, 2016. N.T. 11/30/2016.
                  I




                                                    2
                                 I
                                 I
Before the Appellant's original sentence was vacated, this Court conducted a
                             1
                                 I


colloquy of the Appellant which, inter alia, advised the Appellant that he was not

required to accept the
                    I
                             !
                       sentence the Commonwealth was recommen d'mg to the Court,
                             '
                             I
advised him ofhislabsolute right to have a resentencing hearing before a judge, and

advised that ifhe accepted the Commonwealth's recommended sentence he gave up
                             I
                             I
the right to a resentencing hearing. Id. at 9- I 0. The Appellant stated he understood
                             I

                 resen�encing
his right to a                              hearing and wanted to accept the recommended sentence

                     j
and proceed with negotiated resentencing. Id.
               the/
      Further,      Appellant was advised that if he agreed to accept the sentence
                  Co�monwealth
offered by the                                    his appellate rights would be extremely limited to
                         I
                   juLsdiction
challenging the                               of the Court, the legality of the sentence imposed, and

                     lr
the voluntariness his decision to accept the recommended sentence. Id. at 1 0-1 1.
                silted
The Appellant          that he understood his appeal rights. Id. at tz. At the
                         I

                  I
conclusion of the colloquy, this Court found that the Appellant's decision, to accept
                  /sentence,
the recommended              was made voluntarily, knowingly, and of his own free

will. Id. at 14. The original sentence imposed on February 7, I 977, was vacated
      -              I
            sentence
and a new                            of thirty-five years to life was imposed for the conviction of first
                     I
degree murder. Id. at 44. The Appellant received credit for all original credit time
                     I
awarded and all t\me previously served in this case. Id. at 45. At the time of the
                     �ppellant
resentencing, the                            had served forty-one years of his original sentence. The


                                                           3
                                I

                                !
                                I




newly imposed sentence of thirty-five years to life made the Appellant immediately
                                1

eligible for parole consideration. Id. The Appellant was subsequently granted parole
                                I
                                I




by the state of Pennsylvania and was released from prison.
                            ,
                            j

      On April 15 � 201 7, the Appellant filed a pro se PCRA petition, asserting that
                            I
his new sentence was illegal. James F. Berardinelli, Esquire, was appointed counsel
                            l
for the Appellant, �nd on March 31, 2018, counsel filed the "Defendant's Amended

Post-Conviction Relief Act Petition" ('�Amended Petition").                      In the Amended

Petition, counsel raised four claims concerning the illegality of the Appellant's
                            I

              .thirtyjfive
sentence of                         years to life: (I) that his sentence violated the holding of

Miller and Montgomery; (2) that the imposition of a maximum term of life violates

the constitutional' mandate of proportionality; (3) that· the imposition of the
                        J
maximum term of life violated the requirement of meaningful release based on
                 mailrity;
demonstrated              and (4) that no statutory sentencing scheme exists which
                 imJosition
authorizes the                        of the sentence of thirty-five years to life.
                        l
      On September 6; 2018, the Commonwealth filed a "Response to Petition for
                        I
Post-Conviction Relief' (HCommonwealth Response"). The Commonwealth agreed

that the imposition of a mandatory maximum term of life was illegal in the
                  I
                  I
Appellant's case. '.Commonwealth Response, p. 1. The Commonwealth asserted that
                    !

"where defendants have demonstrated that they have been rehabilitated or that they
                    f
have the capability of being rehabilitated, the mandatory imposition of continued,


                                                      4
                                      '
lifetime punishment rs disproportionate, and violates the requirements of
                                  !
individualized sentencing set forth in Miller."    Commonwealth Response, p. 3.

However, the Commonwealth acknowledged that the Pennsylvania Superior Court
                                  I
has ruled otherwise, and admitted that, based on the current applicable law, the Court
                                  I




had no alternativej but to deny the Appellant's PCRA Petition.       Commonwealth

Response, p. 1. ;
         SeptemJer
     On            24, 2018, after independent review, this Court found that the
                              i
                              I
claims raised by the Appellant were without merit, and issued a "Notice of Intent to
                          I
                          !
Dismiss Pursuant �o Pennsylvania Rule of Criminal Procedure 907" (4'907 Notice").
                          I
The 907 Notice was filed and sent to the Appellant via certified mail. The Appellant
                         'I
did not respond. By order entered on October 22, 2018, this Court dismissed the
                      !
                      I



Appellant's PCRA Petition, as amended.

      On November 14, 2018, Appellant filed a "Notice of Appeal." On November
                     I
16, 2018, the Appellant was ordered to file a concise statement of matter raised on

appeal, pursuant to Pa.R.A.P. 1925(b). On November 30, 2018, the Appellant filed

his "Concise Stailment of Errors Complained of on Appeal Filed Pursuant to Rule

of Appellate Procedure 1925(b )" (" 1925(b) Statement").
                  !

ISSUES
                 I

      The following four issues were raised in the Appellant's I 925(b) Statement.
                 •

1) Did the lower court err in denying the defendant's PCRA Petition on the ground
   that the imposition of a maximum sentence of life imprisonment is

                                          5
  unconstitutionalI in light to the United States Supreme Court holdings in Miller v.
  Alabama, 567 l.J.S. 460(2012) and Montgomery v. Louisiana,_ U.S._, 136
  S.Ct. 718 (2016)? [sic]
                        'I
                        I

2) Did the Lower court err in denying defendant's PCRA petition on the ground that
                        I
   the imposition of a maximum sentence of life imprisonment violates the
   constitutional mandate of proportionality?

3) Did the lower court err in denying defendant's PCRA petition on the ground that
                        of
   the imposition a maximum sentence of life imprisonment is unconstitutional
   since it deprives him of a meaningful opportunity for release and to be free of
   supervision baskd upon demonstrated maturity?
                        I                            .
                        I
4) Did the lower court err in denying defendant's PCRA petition on the ground that
   the imposition of a maximum sentence of life imprisonment is unconstitutional
   since the only existing sentencing scheme in Pennsylvania for juveniles
   convicted prior'to 2012 of first or second-degree murder has been invalidated?

DISCUSSION

I. Timeliness

      In order to be considered by the courts, there must first be a determination that

the PCRA petition was filed timely. Commonwealth v. Hutchins, 760 A.2d 50 (Pa.
                    I
                    I
                    I

Super. 2000). A ,CRA petition is considered timely when filed within one year of

when the judgment of sentence becomes final, which occurs at the conclusion of
                    I
                    j
direct review.   4� Pa.C.S. § 9545(b).          The Appellant had 30 days after being
                    I                                                   .
sentenced to take � direct appeal. Pa.R.A.P. 903. The Appellant was re-sentenced
                    I
                    I

on November 30, 2016, and had until December 30, 2016, to file a direct appeal. A
                    �not
direct appeal was            filed. Therefore, the Appellant had until December 30, 2017,




                                               6
to file a timely PCRA petition. The Appellant filed his PCRA on April 15, 2017,
                               I

                               i
which was within the time limit to file a timely PCRA petition.
                               I


2. Standard ofReview
                               I
      When reviewing the denial of PCRA relief, the Superior Court is "limited to

determining whether the PCRA court's findings are supported by the record and
                           I       .
without legal error;" Commonwealth v. Wojtaszek, 951 A.2d 1169, 1 I 70 (Pa. Super.
                           I
2008). When the PCRA court dismisses a petition without a hearing, the appellate

court reviews the dismissal for an abuse of discretion. Commonwealth v. Collins,
                           I


888 A.2d 564, 579 (Pa. 2005). "The determination as to whether the trial court
                           I
                           I




imposed an illegal sentence is a question of law; [the] standard of review in cases

dealing with questions of law is plenary." Commonwealth v. Stradley, 50 A.3d 769,
                       '
                       '

772 (Pa. Super. 2Q 12) (internal citations omitted).
                       I




3. Merits              I



                      ''
      When a defendant enters into a negotiated sentence, he waives his right to
                      1
"[ c ]hal!enge on appeal all non-jurisdictional defects except the legality of his
                  talidity
sentence and the           of his plea." Commonwealth v. Rush, 909 A.2d 805, 807
                  I
                  'I
(Pa. Super. 2006). Challenges to the legality of sentence imposed pursuant to a

negotiated sentence cannot be waived. Commonwealth v. Smith, 669 A.2d 1008,
                  i
I 009 (Pa. Super. 1996).




                                           7
       All of the issues raised in the Appellant's l 925(b) Statement concern the
                            I
                            I
                            I
legality of the maximum sentence of life that the Appellant received in accord with
                            .
                            I
                            I



a negotiated plea agreement.

   a) Did the lower court err in denying the defendant's PCRA Petition on the
      ground that the imposition of a maximum sentence of life imprisonment
      is unconstitutional in light to the United States Supreme Court holdings
       in Miller v. 'Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana,
      _ u.s. _, I136 s.o, 11s (2016)?
                        I
       In Miller v. Alabama, the United States Supreme Court held that "mandatory

life without parole; for those under the age of 18 at the time of their crimes violates
                        I
                        I

the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" 567 U.S.

460, 465 (2012). Juveniles differ from adults in their lack of maturity and by being
                        I
more vulnerable tp negative outside pressures. Id. Children's overall character,
                 ar�
traits, however,     less fixed and are "less likely to be 'evidence of irretrievabl[e]

deprav[ity]. "'   Id.; at 4 71 · (internal citations omitted).   Due to these differences,
                    I


mandatory life without parole for juvenile offenders ran afoul of the Eighth
                    I
                    I
Amendment because it "prevent] ed] the sentencer from taking account of these

central considerations." Id. at 47 4. Therefore, before sentencing a juvenile offender
                    (
                    I
to life without thelpossibility of parole, the sentencer must be given the opportunity

to consider the mitigating circumstances that come from being a juvenile. Id.
                    I
       In Montgomery v. Louisiana, the United States Supreme Court held that its

Miller decision cr�ated a new substantive rule of constitutional law and that the U.S.


                                              8
                          !
             t            I
Constitution requited state collateral review courts to give retroactive effect to that
                   I      I
rule. 136 S.Ct. 718, 736 (2016). These combined holdings mandate that all inmates
                          I

serving sentences of life without parole, received as a result of a killing committed
                          t
while under the age of eighteen, be resentenced, or paroled, in accordance with

Miller, supra. The fact that the United States Supreme Court acknowledged that

state courts could! comply with Miller by granting parole, indicates that a life

maximum sentence is legal, as long as the defendant, after consideration of the
                          !
                          I
factors enumerated in Miller, is eligible for release.

    The Miller Court only determined that it was a violation of the Eighth
              juteniles,
Amendment for            convicted of homicide, to be mandatorily sentenced to life
                          I                              -
without the possibility of parole without the sentencer first considering the
           qualitie�
mitigating           of youth. 1 Id. The Court did not hold that a maximum sentence

of life was, in and   bf itself, unconstitutional. In fact, the Court found that a juvenile
                      I

may still be sentenced to life without the possibility of parole, as long as the
                      I
             qualitie)s of
mitigating                 youth are considered. Id. at 480. The Miller Court did not

find that a sentencl of life with the possibility of parole was unconstitu�ional.
                      I
                      I




1
  This consideration ipcludes: (1) the juvenile's susceptibility to influence and psychological
damage, (2) the transient nature of the juvenile's irresponsibility, impetuousness, and
recklessness, (3) the juvenile's background; and (4) the juvenile's mental and emotional
development. Miller, at 4 76 .
                      .
                                                 9
         Therefore, the Appellant's claim that the imposition of a maximum life

sentence is unconstitutional under Miller and Montgomery is meritless.

    b) Did the Lower court err in denying defendant's PCRA petition on the
       ground that the imposition of a maximum sentence of life imprisonment
       violates the'constitutional mandate of proportionality?
                            I
         In his 1925(,b) statement, the Appellant did not cite to any legal authority for
                            I
the claim that a maximum life sentence violates the constitutional mandate of

proportionality. However, in the Amended Petition, the Appellant cited Songster v.

Beard, 201 F.Supp.3d 639, 642 (E.D. Pa., 2016) and Garnett v. \Vetzel,
                            .
_F.Supp.3d_,.2016 WL 4379244 at *3 (E.D. Pa. 2016). See Amended Petition,

p. 2.2
                        !
         "The concept of proportionality is central to the Eighth Amendment,
                   l
Embodied in the Constitution's ban on cruel and unusual punishment is the 'precept
                   I
of justice that punishment for crime should be graduated and proportioned to [the]
                        I
offense." Graham v. Florida, 560 U.S. 48, 59 (2010) (internal citation omitted).

"The Eighth Amehdment does not require strict proportionality between crime and

sentence.
                    I
                Rath1er it forbids only extreme sentences which are grossly
                    I
                    '
disproportionate to the crime." Commonwealth v. BakerJ 78 A.3d 1044, 104 7 - 48
                    I


             (internll
(Pa. 2013)                      citations omitted).
                    I



                    I
2 The Commonwealth also cited Songster for the proposition that the Appellant's maximum life
sentence violated the constitutional mandate of proportionality. See Commonwealth Response,
p. 2.                i


                                                      10
      The Miller Court found that the automatic imposition of a mandatory sentence

of life without the possibility of parole, without consideration of the mitigating

qualities of youth, "violate]s] the principle of proportionality, and so the Eighth

Amendment's ban' on cruel and unusual punishment." Miller, 567 U.S., at 489. In

order to correct this violation the Miller Court mandated that the mitigating qualities

of youth be considered before sentencing a juvenile who has been convicted of

homicide to life Without parole. Id. Montgomery then made the ruling in Miller
                   J
                   I
retroactive and applicable to the Appellant. Montgomery, 136 S.Ct., at 736.

      In accordance with Miller and Montgomery, the Appellant was entitled to a
                   I


new sentencing he1aring. The Appellant's sentence of life without the possibility of

parole was vacated and, after a negotiated sentencing procedure, the Appellant was

resentenced in accord with the negotiated sentence as recommended by the
                   I
Commonwealth. The Appellant's new sentence for his conviction of first degree

murder is thirty-five to life, and he has sincebeen paroled. The Appellant offers no
                   I
authority holding that such a sentence is disproportionate to the crime of first degree
                   I
                   I
murder.            t


                   '
                   I
      However, i� his Amended Petition, the Appellant relies on Songster and

Garnett for his assertion that his sentence violates the principle of proportionality of

the Eighth Amendment. See Amended Petition, p. 2. Both Songster and Garnett
                   ;
                   I
concernjuvenile lifers, who filed habeas corpus petitions seeking to vacate sentences


                                           11
                    I
of life without parole, though convicted before Miller, and those petitions were
                    I
                    '
pending when Montgomery made Miller retroactive.             Songster v. Beard, 201

F.Supp.3d 639 (E.D. Pa., 2016); Garnett v. Wetzel, _F.Supp.3d_, 2016 WL

43 79244 at * 1 (E.D. Pa. 2016). The United States District Court for the Eastern

District of Pennsylvania, granted both Songster's and Garnett's habeas petitions, and
                    I
remanded the casesI to state court for resentencing pursuant   to   the dictates of Mi lier
                        '
                    '
and Montgomery. Id; Id. The Court stated in both opinions what the requirements

for re-sentencing should be:

              ln Pennsylvania, the sentencing judge must fix both the
              minimum and the maximum of the term of imprisonment
              after an individualized hearing taking into consideration
              all relevant facts. Routinely fixing the maximum of each
              sentence at life contradicts a sense of proportionality and
              smacks of categorical uniformity. A sentencing practice
              that results in every juvenile's sentence with a maximum
              term bf life, regardless of the minimum term, does not
              reflect individualized sentencing.

                    I
Id. at 642; Id. at *2. However, it is significant to note that both opinions ended with

the following:

               It is not our role to interpret Pennsylvania law in these
              circuinstances. We do not attempt to usurp the authority of
              the �tate court to impose the sentence it deems
              appropriate so long as it adheres to the constitutionally
              mandated         requirements        as      set      forth
              in Miller and Montgomery.
                    '
                    I

Id. at 643; Id. at *4.



                                          12
         While the court in Songster and Garnett expressed the view that a mandatory

maximum life sentence, with or without the possibility of parole, "contradicts the
                       I
sense of proportionality," it was also noted that it was not the place of the federal
                        I
courts to dictate how the state would resentence a juvenile lifer.
                        I




         As noted in Commonwealth v. Seskey, "decisions of the federal district courts

are merely persuasive authority. On the other hand, this Court is duty-bound to

effectuate our Supreme Court's decisional law. Batts 11,3 which our Supreme Court

decided after Montgomery, explicitly holds that the trial court was required to
               eel
sentence Appell to a maximum term ofl i fe imprisonment." 170 A.3d 1105, 1109

(Pa. Super. 2017); See Commonwealth v. Olds, 192 A.3d 1188 (Pa. Super. 2018).

         H is clear tJat the Pennsylvania Supreme Court mandated sentencing courts

to resentence juvenile lifer's to a maximum term of life.                 The Appellant was
                        I
                        f
resentenced in accord with applicable and controlling precedent. The Appellant's
                        I
                        I

claim that his sentence of thirty-five years to life for the crime of first degree murder

 . 1 ates
v10                     I              .
            t h e man d ate o f proportiona 1·tty .is wit. h out rnent.
                                                                     .

                        I
                        I




3
    Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017).
                            I                       13
   c) Did the lower court err in denying defendant's PCRA petition on the
      ground that the imposition of a maximum sentence of life imprisonment
      is unconstitutional since it deprives him of a meaningful opportunity for
      release and to be free of supervision based upon demonstrated maturity?

      The question of whether a juvenile convicted of first or second degree murder
                    l
must be given a !meaningful opportunity to be free of supervision based upon
                    I




demonstrated maturity was not raised before this Court, and therefore should not be

considered on appeal.
                    I
      In his Amended Petition, the Appellant claimed that "[d]efendant's maximum

term of life would also violate the requirement that a juvenile must have a
                    I
                    I
meaningful opportunity for release based upon demonstrated maturity. Graham v.
                    t
                    I

Florida, 560 U.S.18, 75 (201 O)." See Amended Petition, p. 2.
                    I
      It wasn't until the 1925(b) Statement was filed that the Appellant asserted that
                    I
"the imposition ofia maximum life sentence of life imprisonment is unconstitutional
                    I
since it deprives him of a meaningful opportunity for release and to be free of

supervision based upon demonstrated maturity."           See 1925(b) Statement, p. 1

(emphasis addedj.: Claims not raised before the PCRA court cannot be raised for the
                    I
                appell,
first time on       !
                          therefore, the Appellant waived his claim that his sentence is
                     I
                    !
unconstitutional because it does not give him the opportunity "to be free of

supervision" based on demonstrated maturity. Commonwealth v. Bond, 819 A.2d

33, 52 (Pa. 2002); Further, there is no legal authority to support the Appellant's

contention that his sentence is illegal, because he was released from incarceration.

                                             14
        The Appellant's sentence of thirty-five years to life is legal. If the Appellant

wishes to seek early termination of parole at some time in the future based on

"demonstrated maturity", he may consider filing a petition with the Board of Pardons

for the Commonwealth of Pennsylvania. Pennsylvania Constitution, Article 4, § 9.

A request for early termination of parole, or to modify any conditions of parole, is
                       I
                    I
not properly before this Court.
                    <




        While the Appellant's assertion that his maximum sentence of life is
                    ,
unconstitutional because it deprives him of a meaningful opportunity of release is
                    I

properly before tHe Superior Court on appeal, the claim is factually incorrect and

meritless.

        Again, in his 1925(b) Statement, the Appellant does not cite to any legal

authority for the ;assertion that a maximum sentence of life is unconstitutional
                   I


because it deprives him of the meaningful opportunity for release based on
                   !
demonstrated maturity. See 1925(b), p. 1. However, in his Amended Petition, the

Appellant cited Graham v. Florida, 560 U.S 48, 75 (2010). See Amended Petition,

p. 2.

        In Graham, 'a precursor to Miller, the United States Supreme Court held that

sentencing juveniles to life Without the possibility of parole for hon-homicide

offenses violated the Eighth Amendment. Id. To cure the violation the Graham

Court found that "[a] State is not required to guarantee eventual freedom to a juvenile


                                           15
                  I

                  l
offender convicted of a nonhomicide [sic] crime. What the State must do, however,

is give defendants ... some meaningful opportunity to obtain release based on

demonstrated maturity and· rehabilitation." Id. at 75. In light of the principle in

Graham, "that imposition of the State's most severe penalties on juvenile offenders
               as!
cannot proceed     though they were not children," the Miller Court held that the

Eighth Amendment mandated the sentencing court to consider the mitigating

qualities of youth before imposing a life without the possibility of parole sentence.

Miller, at 474.

      At a negotiated resentencing on November 30, 2016, before accepting the

recommended sentence, this Court considered the evidence presented in the

Sentencing Memorandum, which included information about: (1) the crime; (2) the

Appellant's background; and (3) his accomplishments while incarcerated. The

Appellant's sentence of life without the possibility parole was then vacated and he

was resentenced to thirty-five years to life. As a result of the sentence imposed, the

Appellant was eligible for parole consideration. The Appellant was granted parole

and released from state incarceration and remains on parole. The Appellant has been

afforded the relief mandated by the Miller Court.

      Therefore, the AppelJant's claim that he has been denied the opportunity for

release based on a. demonstrated maturity and rehabilitation during the time he was

incarcerated, is factually inaccurate and without merit.


                                          16
   d) Did the lower court err in denying defendant's PCRA petition on the
      ground that the imposition of a maximum sentence of life imprisonment
      is unconstitutional since the only existing sentencing scheme in
      Pennsylvania for juveniles convicted prior to 2012 of first or second-
      degree murder has been invalidated?

      As a result of the United States Supreme Court's decision in Miller, the

Pennsylvania General Assembly passed, and the Governor signed into law, a new
                  1

sentencing statute for offenders under the age of eighteen convicted of first or second

degree murder.    1ls Pa. C.S. § 1102.1. The statute is not retroactive and is not
                  i
applicable to juvenile offenders convicted before Miller. Under section 1102.1, a

juvenile convicted of second degree murder, which was committed when the
                  I


juvenile was over the age of 15, would be sentenced to a "term of imprisonment the
                  I
minimum of which shall be at least 30 years to life." 18 Pa. C.S. § 1102.l(c)(l).
                  I
                  I

        The Pennsylvania Supreme Court has held that resentencing a juvenile
                  I



offender convicted of first degree murder to a sentence with a maximum of life is
                  I

constitutional and jin accordance with Miller and Montgomery. Commonwealth v.
                  I
Batts, 66 A.3d 287 (Pa. 2013)("Batts I"). Qu'eed Batts ("Batts"), was convicted of
                  I
                  I



first degree murder and sentenced, under 18 Pa. C.S. § 1102( a), to life without the
                  I


possibility of parole for a killing committed when Batts was fourteen years old. Id.
                  I
While the case was on direct appeal, the United States Supreme Court decided Miller

and section 1102.1 was enacted by the Pennsylvania General Assembly and signed

into law in Pennsylvania. Id.


                                          17
                    I                                              .           .
       On appeal, Batts argued that any "remedy that would permit a court to impose
                    '

a sentence of life imprisonment with the possibility of parole" on a juvenile
                    I

                    '
convicted of first degree murder was unconstitutional under the Eighth Amendment,
                    l'
because the nature of such a sentence "fails to take into account the age-related
                  bylthe
factors set forth        [Miller] Supreme Court." Id. at 294. Specifically Batts argued

that section 1102(a) mandated a maximum sentence of life without parole, which
                    I

Miller made unconstitutional as applied to juveniles, and section 1102.1 could not

apply to him because it was not retroactive. Id. Therefore, Batts 'argued, his sentence
                    j
"should be based on the most severe lesser included offense, namely, third-degree
                 I
murder, with a maximum term of forty years' imprisonment." Id. at 294 (internal

citations omitted) ..
                    I

       However, the Pennsylvania Supreme Court held that "Miller neither barred

imposition of a life-without-parole sentence on a juvenile categorically nor indicated

that a life sentence with the possibility of parole could never be mandatorily imposed
                    I
on a juvenile." Id. at 296 (internal citations omitted). Miller only mandated a
                    I
                    I
"judicial consideration of the appropriate age-related factors" set forth in Miller
                    I

before the imposition of a sentence oflife without parole upon a juvenile. Id. at 296.

       Further, the Pennsylvania Supreme Court agreed with the Commonwealth's
                   I
assertion that the offending portion of the Pennsylvania sentencing scheme was 61
                    I

                    I
Pa. C.S. § 6137, which mandates that parole may not be granted for those serving


                                          18
life sentences, could be severed from section 1102(a) as it applied to juveniles,

leaving the remaining provisions intact. Id. After severing the offending provision,

section 1102(a) "still require[s] that the court impose a sentence of life imprisonment

for a juvenile corvicted of first-degree murder."      Id. at 294 (internal citations

omitted). Therefore, for "those subject to non-final judgements of sentence for
                  I

                  I
murder as of Miller's issuance" would be "subject to a mandatory maximum
                  .
                  I
sentence of life imprisonment as required by .Section 1102(a), accompanied by a
                  I


          sentence
minimum               determined by the common pleas court upon resentencing." Id.

at 297. The case was remanded for Batts to be re sentenced in accordance with the
                  I
                  l
Court's opinion. Id.

      On remand,iagain, Batts was sentenced to life without the possibility of parole

and appealed. Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) ("Batts 11"). While

Batts did not raise the legality of his. sentence on this appeal, the arguments raised

by way of an amicus brief filed by the Pennsylvania Association of Criminal Defense
                  I

                  I


Lawyers C'PACDL") and adopted by Batts "implicatejd] the legality of his sentence,
                  I
and therefore [was] not subject to waiver" Id. at 441. The PACDL argued that the

Batts I holding was an impermissible use of the Court's severance authority because
                  I
42 Pa. C.S. § 9756(b)(l) required that a minimum term of imprisonment cannot be
                  I
"greater than half.of the maximum sentence - a mathematical impossibility when
                  !
the maximum term of incarceration is life." Id. at 440. The PACDL also argued


                                          19
that severance was improper because section 1102. l excluded convictions pre-

Miller, and therefore the Court could not "presume that the General Assembly would

have enacted the remaining portions of section 613 7(a) without the limitations on

the ability to parole a juvenile sentenced to life in prison." Id. at 440. Therefore,
                   .
                   I
Batts should be resentenced on the charge of third-degree murder.

      The Pennsylvania Supreme Court found, that while the PACDL's argument

was not raised or addressed in Batts I, the "holding implicitly required severance of

section 9756(b)(l)'s requirement that a minimum sentence can be no more than half

of the maximum sentence
               r
                        for juveniles convicted of first-degree murder prior to
                   I

Miller." Id. at 442. The severance of section 9756 did not create an impermissible
                   I
obstacle since 1 Pa. C.S. § 1925 provides that "[t]he provisions of every statute
                  I
                   I

(are] severable." Id. at 442 (emphasis in original) (internal citation omitted).

                 ' must sever invalidated portions of a statute, while leaving the
Pennsylvania courts
                 I



valid portions intact, unless:
                   I

              (1) The remaining valid provisions depend on and "are so
              essentially and inseparably connected with" the voided
              provision that the court could not presume that the General
              Assembly would have enacted the valid portion of the
              statute without the now-voided provision, or (2) the
              remaining portions of the statute "are incapable of being
              executed in accordance with legislative intent.

Id. at 441.




                                          20
       The Court found that the removal of the mandate set forth in section

9756(b)(l) did "nothing more than eliminate the ceiling for the minimum term of

imprisonment a juvenile sentenced to life with parole may receive." Id. at 442. The

elimination aligned with the expression of legislative intent for sentencing juveniles
                       i

convicted of murder under section 1102.1. J d. Section 1102 .1 ( e) made clear that
                       I


only the minimum sentences stated in the statute is required and that "[n]othing
                       I

under this section shall prevent the sentencing court from imposing a minimum
                       I


sentence greater than that provided in the section."       Id. at 443; 18 Pa. C.S. §
                       t

1102.l(e). On � other hand, if the Court could not sever section 6137(a)(l) and
             th
                   l
section 97 56(b )( 1) from section 1102( a), then the only other "option would be to
                       i
release each of the hundreds of juveniles convicted of first degree murder and
                   !
sentenced to life without parole." Id. at 444.
                   I
       The Court rtoted that though section 1102.1 did not apply to Batts due to the
                   I
date of his conviction, it nonetheless provided clear expression of legislative intent
               senlencingjuveniles
as it related to                      convictedof first degree murder:
                   l
              The General Assembly would preserve the remainder of
              the parole statute, sever the minimum sentence ceiling of
              section 9756(b)(l) and permit these defendants to be
              sentenced to life with the possibility of parole, rather than
              have i no sentence at all for juveniles convicted of first
                   j

              degree murder .
                   •
Id. at 444.



                                           21
      In the four· years that passed between Batts I and Batts II, the General

Assembly did not pass a statute addressing sentencing for juveniles convicted of

murder pre-Miller' and did not amend the provisions severed in Batts I. Id. The

General Assembly. not taking these action gave rise to the presumption that it is in

agreement with the holding of Batts I. Id.
                   '
      While section 1102.1 does not retroactively apply to those juveniles sentenced

to life without parole pre-Miller, the Court noted that "we cannot ignore the policy

determination made by the General Assembly as to the minimum sentence a juvenile
                   '

convicted of first-degree murder must receive." Id. at 457. Intending to advance the

goals of uniformity and certainty in sentencing decisions:

             [W]e believe that section 1102.1 will "help frame the
             exercise of judgment by the court imposing a sentence"
             and "may provide an essential starting point. .. that must be
             respected and considered" when determining the
             appropriate minimum sentence for a juvenile convicted of
             first-degree murder prior to the Miller decision.
                   I                       '
                   I
                   I
Id. at 458 (internal citations omitted).
                   '
                   1


      Even though section 1102.1 is inapplicable to the Appellant because of the

date of his conviction, it allows courts to infer that the legislative intent of the

General Assembly for juveniles over the age of fifteen who are convicted of first

degree murder to i;)e sentenced to a term not less than that of thirty-five years to life.
                   I
18 Pa. C.S. § 1102.1 ( c )(1 ). Through a negotiated resentencing, the Appellant was

sentenced to thirty-five years to life for his conviction of first degree murder, and

                                               22
because he had served forty-one years of his original sentence, the Appellant became

immediately eligible
                  I
                     for parole consideration.          N.T. 4/20/2017 p. 36, 45. The

Appellant was subsequently paroled.         For the above reasons, the Appellant's

maximum sentence of life is constitutional under the Eighth Amendment.

CONCLUSION

      For all the �easons set forth herein, the Appellant's sentence of thirty-five .
                   I
                   I


years to life is not .illegal and should be affirmed.




                                            23
