J-A09032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                       :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                          :        PENNSYLVANIA
                                       :
                                       :
              v.                       :
                                       :
                                       :
 NICHOLAS L BOWEN                      :
                                       :   No. 1078 WDA 2017
                   Appellant           :

           Appeal from the Judgment of Sentence March 3, 2017
   In the Court of Common Pleas of Venango County Criminal Division at
                     No(s): CP-61-CR-0000866-1997

BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                     FILED SEPTEMBER 5, 2018

     Nicholas L. Bowen (Appellant) appeals from the judgment of sentence

imposed following a resentencing hearing held pursuant to the United States

Supreme Court’s decision in Montgomery v. Louisiana, 136 S. Ct. 718

(2016). The trial court resentenced Appellant to life imprisonment without

the possibility of parole on a conviction of first-degree murder, which he

committed when he was 17 years old. In consideration of our Supreme Court’s

recent decision in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017)

(“Batts II”), we are constrained to vacate Appellant’s judgment of sentence

and remand for further proceedings consistent with Batts II.

     On October 27, 1997, Appellant brutally raped and murdered Shenee

Freeman, who was four years old at the time of her death. At the time of the

offense, Appellant was 17 years, 8 months, and 25 days old. On September
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30, 1998, Appellant pled guilty to first-degree murder. The same day, the

trial court sentenced him to life imprisonment without the possibility of parole.

On February 23, 2000, this Court dismissed Appellant’s direct appeal on

procedural grounds. See Order (1760 WDA 1999), 2/23/00.

       Over the course of the next decade, Appellant filed six petitions pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, each of

which were denied by the PCRA court. On June 25, 2012, the United States

Supreme Court decided Miller v. Alabama, 567 U.S. 460 (2012), which held

that sentences of “mandatory life without parole for those under the age of 18

at the time of their crimes violates the Eighth Amendment’s prohibition on

‘cruel and unusual punishments.’” Id. at 465. On January 25, 2016, while

the appeal from the denial of Appellant’s sixth PCRA petition was pending

before this Court, the United States Supreme Court decided Montgomery v.

Louisiana, 136 S. Ct. 718 (2016).        In Montgomery, the Supreme Court

concluded that the holding of Miller applied retroactively to juvenile offenders

on collateral review. Id. at 736. On April 29, 2016, this Court affirmed the

PCRA court’s denial of Appellant’s sixth PCRA petition. In affirming the PCRA

court’s denial of Appellant’s sixth PCRA petition, this Court specifically did so

without prejudice to Appellant’s right to file another PCRA petition seeking

relief pursuant to Montgomery and Miller. See Commonwealth v. Bowen,

1066    WDA    2015   at   *9   (Pa.   Super.   Apr.   29,   2016)   (unpublished

memorandum).


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      On June 29, 2016, Appellant filed his seventh PCRA petition in which he

sought resentencing under Montgomery and Miller. On January 23, 2017,

the PCRA court granted Appellant’s PCRA petition and scheduled the matter

for resentencing. The trial court held a resentencing hearing on March 3, 2017

during which it received evidence and heard argument from both the

Commonwealth and Appellant.       The same day, the trial court resentenced

Appellant to life imprisonment without the possibility of parole.

      On March 13, 2017, Appellant filed a post-sentence motion, which the

trial court denied on May 31, 2017. This timely appeal followed. On July 5,

2017, the trial court ordered Appellant to file a concise statement of the errors

complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules

of Appellate Procedure, which he timely filed on July 25, 2017.

      On appeal, Appellant presents the following issues for review:

      1.    Did the lower court impose an illegal sentence as it failed to
      apply a presumption against the imposition of life without parole
      and did not require the Commonwealth to rebut that presumption
      by proving [Appellant] is irreparably corrupt beyond a reasonable
      doubt pursuant to Batts II?

      2.    Did the lower court err in imposing life without parole as
      there was not competent evidence to demonstrate [Appellant
      was] incapable of rehabilitation?

Appellant’s Brief at 3.

      For his first issue, Appellant argues that in light of our Supreme Court’s

decision in Batts II, the sentencing court illegally resentenced him to a term

of life imprisonment without the possibility of parole. Specifically, Appellant


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asserts that Batts II (1) mandates that the sentencing court apply a

rebuttable presumption against the imposition of a sentence of life without

parole for a juvenile offender convicted of first-degree murder and (2) requires

the Commonwealth, in order to rebut that presumption, to prove beyond a

reasonable doubt that the juvenile offender is permanently incorrigible and

incapable of rehabilitation. Appellant maintains that the trial court applied

neither the rebuttable presumption nor the appropriate burden of proof prior

to imposing a life-without-parole sentence.

      As our Supreme Court has explained, a claim that a court unlawfully

sentenced a juvenile offender to life imprisonment without the possibility of

parole is a challenge to the legality of the sentence. Batts II, 163 A.3d at

434-36. We review such claims “pursuant to a de novo standard and plenary

scope of review.” Id. at 435.

      In 2012, the United States Supreme Court issued the landmark Miller

decision. In Miller, the Supreme Court held that a sentencing scheme that

mandates a sentence of life imprisonment without the possibility of parole for

a juvenile offender violates the Eighth Amendment to the United States

Constitution. Miller, 567 U.S. at 465. The Supreme Court, however, did not

eliminate the possibility that a court could sentence a juvenile offender to life

without parole. Id. at 479. Instead, the Court explained that “appropriate

occasions for sentencing juveniles to this harshest possible punishment will be

uncommon,”     especially   in   light   of    the   difficulty,   “even   for   expert


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psychologists[,]” to “distinguish [ ] at this early age between the juvenile

offender whose crime reflects unfortunate yet transient immaturity, and the

rare juvenile offender whose crime reflects irreparable corruption.”          Id.

(quotations and citations omitted). As this Court has explained, to sentence

a juvenile offender to life imprisonment without the possibility of parole, Miller

requires examination of the following factors:

      [A]t a minimum it should consider a juvenile’s age at the time of
      the offense, his diminished culpability and capacity for change, the
      circumstances of the crime, the extent of his participation in the
      crime, his family, home and neighborhood environment, his
      emotional maturity and development, the extent that familial
      and/or peer pressure may have affected him, his past exposure to
      violence, his drug and alcohol history, his ability to deal with the
      police, his capacity to assist his attorney, his mental health
      history, and his potential for rehabilitation.

Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super. 2012).

      In January 2016, the United States Supreme Court in Montgomery

addressed the issue of whether the holding of Miller was “retroactive to

juvenile offenders whose convictions and sentences were final when Miller

was decided.” Montgomery, 136 S. Ct. at 725. Concluding that the holding

of Miller announced a substantive rule of law that was subject to retroactive

effect, the Court explained:

      Because Miller determined that sentencing a child to life without
      parole is excessive for all but the rare juvenile offender whose
      crime reflects irreparable corruption, it rendered life without
      parole an unconstitutional penalty for “a class of defendants
      because of their status” – that is, juvenile offenders whose crimes
      reflect the transient immaturity of youth. As a result, Miller
      announced a substantive rule of constitutional law. Like other
      substantive rules, Miller is retroactive because it necessarily

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      carr[ies] a significant risk that a defendant – here, the vast
      majority of juvenile offenders – faces a punishment that the law
      cannot impose upon him.

Id. at 734 (quotations and citations omitted).

      In Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) (“Batts I”), the

Pennsylvania Supreme Court addressed for the first time after Miller the

sentencing of a juvenile offender convicted of first-degree murder.      Noting

that the United States Supreme Court in Miller declined to place a “categorical

ban” on life-without-parole sentences for juvenile offenders, our Supreme

Court in Batts I held that juvenile offenders convicted of first-degree murder

could be subject to a life-without-parole sentence only after the sentencing

court considered the criteria outlined in Miller. Id. at 296-99; see supra, p.

5.

      Our Supreme Court vacated Batts’ life-without-parole sentence and

remanded for resentencing consistent with Miller.         Id. at 299.     Upon

resentencing, Batts once again received a sentence of life imprisonment

without the possibility of parole. Batts II, 163 A.3d at 426. Batts would go

on to appeal this sentence to the Pennsylvania Supreme Court in Batts II,

which the Court decided approximately a year after the United States Supreme

Court’s Montgomery decision.

      In Batts II, our Supreme Court stated that following Miller and

Montgomery, “[t]he General Assembly has not taken any appreciable steps

to create a separate sentencing statute or to revise the existing law so that it


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applies to juveniles convicted of first-degree murder prior to Miller.” Batts

II, 163 A.3d at 450. Thus, the Court proclaimed that “[i]t is abundantly clear

that the exercise of our constitutional authority is required to set forth the

manner      in   which   resentencing   will   proceed   in   the   courts   of   this

Commonwealth.” Id. at 450-51.

      With respect to the protocol for resentencing juvenile offenders

convicted of first-degree murder, our Supreme Court first determined that “a

faithful application of the holding in Miller, as clarified in Montgomery,

requires the creation of a presumption against sentencing a juvenile

offender to life in prison without the possibility of parole.” Id. at 452

(emphasis added). The Court reasoned that Miller supported the creation of

such a presumption as follows:

      Miller’s holding, “that life without parole is an excessive sentence
      for children whose crimes reflect transient immaturity,” is a
      “substantive rule of constitutional law.” Montgomery, 136 S.Ct.
      at 735. This, according to Montgomery, means that only “the
      rarest of juvenile offenders” are eligible to receive a sentence of
      life without the possibility of parole. Id. Only in “exceptional
      circumstances” will life without the possibility of parole be a
      proportionate sentence for a juvenile. Id. at 736.

Id. at 452.

      Second, our Supreme Court held that “to overcome the presumption

against the imposition of a sentence of life without parole for a juvenile

offender,     the   Commonwealth        must    prove    that   the    juvenile    is

constitutionally eligible for the sentence beyond a reasonable doubt.”

Id. at 455 (emphasis added).            The Court explained that to rebut the

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presumption against a life-without-parole sentence, the Commonwealth must

prove, “beyond a reasonable doubt, that the juvenile offender is permanently

incorrigible and thus is unable to be rehabilitated.” 1 Id. at 459. The Court

reasoned that this high burden of proof is necessary given that “[t]he United

States Supreme Court has clearly and unambiguously instructed that the

decision that an offender is one of the rare and uncommon juveniles who may

constitutionally receive a sentence of life without the possibility of parole must

be made with near certainty.” Id. at 454-55.

       Shortly following our Supreme Court’s Batts II decision, this Court

decided Commonwealth v. Coia, 168 A.3d 219 (Pa. Super. 2017). In Coia,

the defendant was a juvenile offender who was resentenced following Batts I

to life imprisonment without the possibility of parole, but not in accordance

with the protocol for resentencing juvenile offenders convicted of first-degree

murder set forth in Batts II. At the time of the defendant’s resentencing in

Coia, the Supreme Court had not yet decided Batts II.




____________________________________________


1 The Supreme Court also held that expert testimony would not be required
to rebut the presumption against imposing a life-without-parole sentence
upon a juvenile offender, 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, 163 A.3d at 456.

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      Nevertheless, we concluded that the defendant in Coia was entitled to

resentencing conducted pursuant to Batts II.          Id. at 224.    This Court

explained:

      Here, the trial court resentenced Coia to a life-without-parole
      sentence for the first-degree murder conviction following a
      resentencing hearing in which it received testimony from an
      expert for Coia and an expert for the Commonwealth. The trial
      court also 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 Coia is “permanently incorrigible” and “unable to be
      rehabilitated.” Batts II, 163 A.3d at 458-59[.]

Id.   Accordingly, we vacated the defendant’s judgment of sentence and

remanded the case for resentencing in accordance with Batts II. Id.

      We find Coia to be controlling in the instant matter. Here, the trial court

concedes that although it analyzed all of the factors for imposing upon a

juvenile offender a life-without-parole sentence set forth in Miller, it was

unable to sentence Appellant in accordance with Batts II because the

Supreme Court decided that case more than three months after Appellant’s

resentencing.   Trial Court Opinion, 8/29/17, at 4.       Thus, the trial court

acknowledges that it did not, like the trial court in Coia, apply a presumption

against the imposition of a sentence of life imprisonment without the

possibility of parole or require the Commonwealth to rebut that presumption

by proving beyond a reasonable doubt that Appellant is permanently

incorrigible and incapable of rehabilitation. Id. at 4-5. Therefore, because


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Appellant did not receive a resentencing hearing conducted in the manner to

which he is constitutionally entitled, we are constrained to vacate Appellant’s

judgment of sentence and remand this matter for resentencing in accordance

with Batts II.

      The Commonwealth argues that this case is distinguishable from Coia.

Specifically, the Commonwealth contends that the trial court rectified its

inability to apply Batts II when resentencing Appellant in its Rule 1925(a)

opinion. The Commonwealth points out that in its Rule 1925(a) opinion, the

trial court stated that even if it had properly applied the rebuttable

presumption against a life-without-parole       sentence     and   required the

Commonwealth to rebut that presumption by proving beyond a reasonable

doubt that    Appellant was    permanently    incorrigible   and incapable   of

rehabilitation, it would have concluded that the Commonwealth had rebutted

the presumption and satisfied its burden of proof.

      We disagree.    In Coia, this Court simply vacated the judgment of

sentence and remanded for resentencing because the trial court, when it

resentenced Coia, did not apply the rebuttable presumption against a life-

without-parole sentence and it did not require the Commonwealth to rebut

that presumption by proving him permanently incorrigible and incapable of

rehabilitation beyond a reasonable doubt. Coia, 168 A.3d at 224.

      In addition, Batts II makes clear that the sentencing court must make

a finding that “the Commonwealth has satisfied its burden of proving beyond


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a reasonable doubt that the juvenile is so permanently incorrigible that

rehabilitation of the offender would be impossible” as a prerequisite to

imposing a life without parole sentence. Batts II, 163 A.3d at 457. Once the

sentencing court makes this finding, “the bar against sentencing a juvenile

offender to life without the possibility of parole is lifted[,]” and “it is left to the

sentencing court’s discretion whether to impose a life-without-parole sentence

or to instead impose a sentence that would allow the juvenile to have an

opportunity for parole consideration.” Id.

      In this case, the sentencing court concedes it did not make a finding,

prior to imposing its sentence of life imprisonment without the

possibility of parole, that the Commonwealth had rebutted the presumption

against a life-without-parole sentence by satisfying its burden of proving

beyond a reasonable doubt that Appellant is permanently incorrigible and

incapable of rehabilitation. The Supreme Court provided no indication that a

sentencing court can circumvent Batts II by retrospectively applying the

necessary rebuttable presumption and burden of proof in a Rule 1925(a)

opinion.

      We recognize that remanding this case for resentencing may result in

the sentencing court arriving at the same conclusions it reached in its Rule

1925(a) opinion and thus, the imposition of a life-without-parole sentence.

We conclude, however, that it is imperative that the court do so in a

constitutionally firm manner in accordance with Batts II.              Based on the


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foregoing, we vacate Appellant’s judgment of sentence and remand this

matter for further proceedings consistent with Batts II.          Because we are

vacating Appellant’s sentence and remanding for further proceedings, we need

not reach his second issue (i.e., whether the Commonwealth presented

competent        evidence   demonstrating      that   Appellant   is   permanently

incorrigible).

      Judgment of sentence vacated.              Case remanded.         Jurisdiction

relinquished.



Judge Dubow joins the memorandum.

Judge Bowes files a Concurring Statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/2018




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