J-A25038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    SHAUN BRIAN PATRICK WINTERS,                :
                                                :
                       Appellant                :           No. 440 MDA 2019

        Appeal from the Judgment of Sentence Entered February 7, 2019
                 in the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0002878-1994

BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                     FILED: FEBRUARY 6, 2020

        Shaun Brian Patrick Winters (“Winters”) appeals from the judgment of

sentence entered following resentencing pursuant to Commonwealth v.

Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”). We affirm.

        On February 21, 1995, Winters pled guilty to one count of second-

degree murder.1 The charge related to the then-sixteen-year-old Winters’s

killing and robbery of the seventy-seven-year-old victim in her home. The

court sentenced Winters to a mandatory term of life in prison without the

possibility of parole (“LWOP”) on the same date. Winters did not file post-

sentence     motions     or   seek     direct   appellate    review   in   this   Court.



____________________________________________


1   18 Pa.C.S.A. § 2502(b).
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Winters subsequently sought and was denied relief several times under the

Post Conviction Relief Act (“PCRA”).2 Ultimately, on March 9, 2016, Winters

filed a PCRA Petition seeking relief based upon the United States Supreme

Court’s decision in Montgomery v. Louisiana, 136 S. Ct. 718, 193 L. Ed. 2d

599 (2016).      On May 3, 2016, the PCRA court issued an Order deferring

disposition of Winters’s Petition pending the decision of the Pennsylvania

Supreme Court in Batts II.

        The Pennsylvania Supreme Court filed its decision in Batts II on June

26, 2017. On July 27, 2017, the Commonwealth filed a Motion to list Winters’s

case for resentencing, in accordance with Batts II. On February 7, 2019,

after a hearing, the trial court resentenced Winters to 30 years to life in prison.

On that same date, the PCRA court entered an Order dismissing Winters’s

PCRA Petition as moot. Winters filed a post-sentence Motion, which the trial

court denied. Thereafter, Winters filed the instant timely appeal, followed by

a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained

of on appeal.

        Winters presents the following claims for our review:

        A. Whether the [trial] court illegally and unconstitutionally relied
           upon 18 Pa.C.S.A. § 1102.1 in fashioning the minimum
           sentence of 30 years for [Winters,] despite the fact that
           § 1102.1 explicitly does not apply retroactively to those
           convicted on or before June 24, 2012, and the court, in using
____________________________________________


2   42 Pa.C.S.A. §§ 9541-9546.

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         § 1102.1 as [a] guide for resentencing in this case, failed to
         afford [Winters] an individualized sentencing hearing[,] with
         the court having complete discretion to set a minimum
         sentence below the threshold provided in 18 Pa.C.S.A.
         § 1102.1[,] as numerous other courts in this Commonwealth
         have done?

      B. Whether the sentencing court illegally and unconstitutionally
         sentenced [Winters] to a life tail, because a mandatory life
         maximum sentence creates the very real possibility that a child
         who fails to conform to the prison rules will actually serve [an
         LWOP] sentence[,] as such result offends due process and the
         [Eighth] Amendment[,] and sentencing [Winters] to a lifetime
         tail is disproportionate punishment and violates the
         requirement [set forth] in Miller [v. Alabama, 576 U.S. 460
         (2016),] for an individualized sentence?

      C. Whether the sentencing court failed to consider and explicitly
         address all of the factors required to be considered at
         resentencing[,] pursuant to Miller … and its progeny[,] as the
         court failed to properly consider the impact of [Winters’s] youth
         and development, failed to presume [Winters’s] immaturity
         and reduced culpability when imposing [its] sentence, failed to
         properly consider [Winters’s] historic drug use since the age of
         7[,] and his substantial drug use and alcohol use and
         intoxication at the time of the murder in this case, and
         [whether] the court improperly placed significance on
         comments that [Winters] made while testifying about the
         events leading up to the unfortunate death of the victim in this
         case, the “innocent victim” argument made by the
         Commonwealth, and the details of the murder[,] as argued by
         the Commonwealth[,] at resentencing?

Brief for Appellant at 4 (some capitalization omitted).

      We will address Winters’s first two claims together, as they are related.

Winters first claims that the trial court “unconstitutionally relied upon 18

Pa.C.S.A. § 1102.1” when resentencing him to a maximum sentence of life in

prison. Brief for Appellant at 9. Winters argues that section 1102.1 does not

apply retroactively, and that by relying upon section 1102.1, the trial court

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failed to afford him an individualized sentence.      Id.   Winters directs our

attention to recent case law recognizing that character development in

juveniles is “incomplete,” and that juvenile culpability differs from that of

adults. Id. at 9-12. Winters further directs our attention to the Supreme

Court’s decision in Miller, which held that automatically imposing a mandatory

sentence of LWOP upon a juvenile offender violates the Eighth Amendment

prohibition against cruel and unusual punishment, and which sets forth the

factors to be considered when sentencing juveniles. Id. at 13. According to

Winters, the Miller decision created a presumption against the imposition of

a sentence of LWOP. Id. at 14. Relying upon Miller and its progeny, and the

subsequent federal court decisions in Songster v. Beard, 201 F. Supp. 3d

639 (E.D. Pa. 2016), and Garnett v. Wetzel, 2016 U.S. Dist. LEXIS 108936

(E.D. Pa., Aug. 17, 2016) (memorandum opinion), Winters contends that the

trial court erred in considering section 1102.1 at sentencing.         Brief for

Appellant at 17, 19.

      In his second claim, Winters argues that the trial court improperly

sentenced him to a “life tail,” as it creates the possibility that a juvenile who

fails to conform to prison rules will serve a LWOP sentence. Id. at 21. Relying

upon the reasoning of the federal court in Songster, Winters contends that

routinely fixing the maximum sentence as life in prison does not constitute an

individualized sentence. Id. at 22. Winters states that under Pennsylvania

case law, parole constitutes “punishment,” and release on parole is not


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automatic.    Id. at 22-23.   According to Winters, a mandatory maximum

sentence of life in prison allows the Parole Board to impose a LWOP sentence.

Id. at 23. Winters posits that a child who fails to conform to prison rules could

actually serve a LWOP sentence. Id. at 24.

      “When reviewing the legality of a sentence, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Lekka, 210

A.3d 343, 355 (Pa. Super. 2019) (citation omitted).

      Winters’s challenges to the legality of his sentence do not entitle him to

relief. Since Batts II, this Court has repeatedly rejected the claim that the

imposition of a mandatory maximum sentence of life in prison for a juvenile

convicted of first- or second-degree murder constitutes an illegal sentence

under Miller. See Commonwealth v. Olds, 192 A.3d 1188, 1197-98 (Pa.

Super. 2018) (holding that “a mandatory life maximum for a juvenile

convicted of second-degree murder is not cruel and unusual punishment.”);

Commonwealth v. Seskey, 170 A.3d 1105, 1109 (Pa. Super. 2017) (holding

that the 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; the court was required to impose mandatory

maximum sentence of life in prison); Commonwealth v. Battles, 169 A.3d

1086, 1089-90 (Pa. Super. 2017) (holding that the trial court’s imposition of

a mandatory maximum term of life in prison, upon resentencing of a juvenile

defendant convicted of first-degree murder prior to Miller, was legal).


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     In Commonwealth v. Ligon, 206 A.3d 1196 (Pa. Super. 2019), this

Court rejected a challenge to the legality of a sentence based upon the same

rationale expressed by the federal court in the Songster decision:

     The Songster decision has no precedential value in Pennsylvania.
     Commonwealth v. Lambert, 765 A.2d 306, 354-55 (Pa. 2000).
     Moreover, our Court has previously considered the argument that
     [the a]ppellant makes with Songster[,] and found it to be
     “unavailing,” as it does not address Graham v. Florida, 560 U.S.
     48, 75, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), a case which
     held that parole boards may make the ultimate determination
     whether an individual has demonstrated the requisite maturity
     and rehabilitation to deserve release. See … Olds, 192 A.3d [at]
     1197 n.18 ….

            … The Miller Court did not call into question the ability of
     state parole boards to make the decision as to whether a juvenile
     murderer should be paroled[,] and did not equate a sentence of
     [life without the possibility of parole] with one for life with the
     possibility of parole. Montgomery, [136 S. Ct.] at 736. In fact,
     it did the opposite, merely requiring the states to make the
     relevant inmates parole eligible, thereby insuring that those
     prisoners who have shown the ability to reform will receive a
     meaningful opportunity for release. It did not hold that life
     sentences with parole eligibility are unconstitutional, or that
     juvenile murderers must be released at some point regardless of
     their fitness to rejoin society. Thus, a sentence with a term of
     years minimum and a maximum sentence of life does not violate
     Miller’s individualized sentencing requirement, because it
     properly leaves the ultimate decision of when a defendant will be
     released to the parole board.

           [The a]ppellant also fails to account for the fact that, if we
     adopt his argument, and allow him and others similarly-situated
     to receive a term-of-years maximum sentence, such a holding
     would lead to impermissibly disparate results. Section 1102.1
     provides a clear expression of legislative intent as to juveniles that
     are convicted of first-degree murder post-Miller. Although, the
     statute itself does not apply to [the a]ppellant[,] based upon the
     date of his conviction, it does apply to all similarly-situated
     defendants who were sentenced after its enactment. Mindful of
     the difference in treatment accorded to those subject to non-final

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      judgments of sentence for murder as of Miller’s issuance, and the
      enactment of § 1102.1, our Supreme Court has ordered trial
      courts to resentence juveniles to a maximum term of life
      imprisonment. Batts II, supra. We are bound to follow its
      mandate.

Id. at 1200-01 (emphasis added). For the foregoing reasons, we cannot grant

Winters relief on his first two claims.

      In his third claim, Winters argues that the trial court abused its

discretion by not considering and addressing the factors required by Miller

and its progeny when imposing its sentence. Brief for Appellant at 24. When

an appellant challenges the discretionary aspects of a sentence, we must

engage in a four-part analysis to determine

      (1) whether the appeal is timely; (2) whether [the a]ppellant
      preserved his [] issue; (3) whether [the a]ppellant’s brief includes
      a concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence
      [pursuant to Pa.R.A.P. 2119(f)]; and (4) whether the concise
      statement raises a substantial question that the sentence is [not]
      appropriate under the [S]entencing [C]ode.

Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018)

(citation omitted).

      Our review of the record discloses that Winters filed a timely Notice of

Appeal, preserved his sentencing claim in a post-sentence Motion, and

included in his brief a Statement of Reasons relied upon for allowance of

appeal, as required by Rule 2119(f).        See Brief for Appellant at 31-36.

Therefore, we next consider whether Winters’s claim raises a substantial

question that his sentence is not appropriate under the Sentencing Code.


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      As this Court has explained,

      [t]he determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          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
      (2) contrary to the fundamental norms which underlie the
      sentencing process.

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(internal citations and quotation marks omitted).

      In his Statement of Reasons relied upon for allowance of appeal, Winters

argues that his sentence is unreasonable and excessive; the trial court failed

to consider the factors required by Miller; and the court “refused and/or failed

to properly give weight to the mitigating circumstances” presented by him at

sentencing. Brief for Appellant at 35. Winters’s assertions raise a substantial

question.   See Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa.

Super. 2015) (en banc) (concluding that an excessive-sentence claim, in

conjunction with an assertion that the court failed to consider mitigating

factors, raises a substantial question); see also Commonwealth v. Hicks,

151 A.3d 216, 227 (Pa. Super. 2016) (concluding that a claim that the

sentencing court failed to set forth adequate reasons for the sentence imposed

raises a substantial question).      Accordingly, we will address Winters’s

challenge to the discretionary aspects of his sentence.

      Winters argues that the trial court improperly “failed to specifically

consider the impact of [his] youth and development[,] and failed to presume


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[his] immaturity and reduced culpability when imposing sentence[.]” Brief for

Appellant at 25. According to Winters, the trial court further placed undue

significance on the events leading up to the death of the victim. Id. Winters

further asserts that, because the trial court did not “evidence” its consideration

of the Miller factors on the record, this Court “should vacate and remand this

case to the trial court[,] with instructions to resentence [Winters] to an

individualized sentence of time served to 50 years.”        Id. at 26.   Winters

acknowledges that the Commonwealth submitted at resentencing a pre-

sentence investigation report (“PSI”), based upon a 1995 interview with

Winters. Id. at 28. Nevertheless, Winters takes exception to the trial court’s

failure to give “specific mention” of Winters’s youth and development, as well

as its failure to presume Winters’s immaturity and reduced culpability. Id.

Winters also directs our attention to mitigating evidence presented by defense

counsel during resentencing. Id. at 28-30.

      Our Pennsylvania Supreme Court has held that, “when a juvenile is

exposed to a potential sentence of life without the possibility of parole[,] the

trial court must consider the Miller factors, on the record, prior to imposing a

sentence.” Commonwealth v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019)

(emphasis added). A sentencing court’s failure to do so renders the imposed

sentence illegal, even if the defendant is not ultimately sentenced to LWOP.

Id.




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      Here, the Commonwealth did not seek imposition of LWOP. See N.T.,

2/7/19,   at   4     (wherein   the   Commonwealth     represented    that    “the

Commonwealth is not seeking life without parole as a sentence for []

Winters”). Because Winters was not exposed to a potential LWOP sentence,

the trial court did not violate Miller or Machicote at resentencing.          See

Lekka, 210 A.3d at 357 (concluding that, “because the Commonwealth [] did

not seek, and the sentencing court did not impose, a life-without-parole

sentence, there was no error by the sentencing court in failing to consider the

Miller factors.”).

      Nevertheless, our review of the record discloses that the resentencing

court considered the Miller factors when it imposed Winters’s new sentence

of 30 years to life. As the trial court explained in its Opinion,

      [t]he mitigation report included information pertaining to
      [Winters’s] youth and development, immaturity and reduced
      culpability, historic drug use, drug and alcohol use and intoxication
      at the time of the offense. Contrary to [Winters’s] argument, this
      [c]ourt carefully combed through the mitigation report that was
      prepared by [Winters’s] mitigation specialist prior to the day of
      sentencing[,] and also at the day of the sentencing. … This [c]ourt
      specifically acknowledged that [Winters] is not the same person
      he was at the time of the murder[,] and recognized his remorse
      and maturity. It is also true that this [c]ourt particularly took
      notice of [Winters’s] testimony in describing the murder as an
      “altercation[,]” and [Winters’s] testimony that he did not know
      the victim was deceased until a week later. However, this [c]ourt
      was well within its discretion to take into account [Winters’s]
      testimony[,] which affected the sincerity of [Winters’s] acceptance
      of responsibility for the murder. This [c]ourt found [Winters’s]
      testimony to be incredible and offensive[,] as it is extremely
      unlikely [that Winters] was unaware [that] the victim was
      deceased[,] as [Winters contended], when the physical evidence
      supports that [Winters] wrapped a pillowcase around the victim’s

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      neck and tied [it] into a knot, strong enough to strangulate the
      victim to death. As this [c]ourt was obligated to take into account
      [Winters’s] mitigation report, this [c]ourt was also obligated to
      take into account the circumstances of the murder[,] and the
      victim impact statements before imposing sentence. Therefore,
      [Winters’s] averment that this [c]ourt improperly placed
      significance on some factors while ignoring factors favorable to
      [Winters] is unfounded and unsupported by the evidence in the
      record.

Trial Court Opinion, 4/8/19, at 4-5 (unnumbered).

      Here, the trial court considered the Miller factors, as well as all of the

evidence presented in the PSI and at sentencing. See Commonwealth v.

Seagraves, 103 A.3d 839, 842 (Pa. Super. 2014) (recognizing that where the

trial court has the benefit of a pre-sentence report, “we presume that the court

was aware of relevant information regarding the defendant’s character and

weighed those considerations along with any mitigating factors.”). As such,

Winters is not entitled to relief on his claim. Consequently, we affirm Winters’s

judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/06/2020




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