J-S38003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 MALIK JOHNSON                            :
                                          :
                     Appellant            :   No. 3357 EDA 2018

     Appeal from the Judgment of Sentence Entered November 6, 2018
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0402221-2001


BEFORE:      OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY OTT, J.:                         FILED SEPTEMBER 24, 2019

      Malik Jackson appeals from the judgment of sentence imposed on

November 6, 2018, in the Court of Common Pleas of Philadelphia County

following his 2003 guilty plea to charges of Second-Degree Murder, Robbery,

and Conspiracy.      Jackson was sentenced to a mandatory term of life

imprisonment without parole. However, Jackson was a juvenile at the time of

the crime.    Pursuant to United States Supreme Court rulings in Miller v.

Alabama, 567 U.S 460, 132 S.Ct. 407, 183 L.Ed 2d 407 (2012) and

Montgomery v. Louisiana, ___ U.S. ____, 136 S.Ct. 718, 193 L.Ed.2d 599

(2016), Jackson was entitled to a new sentence. Jackson was resentenced to

a term of 35 years to life imprisonment.        Relevant to this appeal, the

imposition of a maximum sentence of life imprisonment is mandatory.

Jackson raises one issue in this timely appeal. He claims it is unconstitutional

to “impose a mandatory lifetime parole tail on all juvenile lifers being

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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resentenced.”       Jackson’s Brief at 3.        After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm.

       Jackson’s argument is essentially that just as a lifetime mandatory

minimum sentence is unconstitutional for juvenile offenders, so is a lifetime

mandatory maximum sentence, as such sentence divests the trial court of the

discretion to issue an individualized sentence as prescribed by the United

States Supreme Court in the Miller, supra, and Montgomery, supra,

decisions.

       Jackson’s argument must fail.           As the Commonwealth states in its

Appellee’s brief, this issue has recently been addressed in Commonwealth

v. Blount, 207 A.3d 925 (Pa. Super. 2019).1             Blount, in turn, relies in

relevant part on Commonwealth v. Olds, 192 A.3d 1188 (Pa. Super. 2018)

to support its holding.

       Blount, supra, held:

       As for Appellant's claim a mandatory maximum term of life
       imprisonment is unconstitutional as applied to juvenile offenders
       convicted of murder prior to Miller and violates the mandates of
       individualized sentencing, this Court has repeatedly rejected these
       claims. See Commonwealth v. Olds, 192 A.3d 1188 (Pa. Super.
       2018) (holding imposition of mandatory maximum sentence of life
       imprisonment for juvenile defendant convicted of second-degree
       murder prior to Miller was constitutional); [Commonwealth v.]
       Seskey, [170 A.3d 1105 (Pa. Super. 2017)], supra, (holding trial
       court was required to impose mandatory maximum sentence of
       life imprisonment when it resentenced juvenile defendant
       convicted of first-degree murder prior to Miller).
____________________________________________


1A petition for allowance of appeal been filed in Blount. We are unaware if
our Supreme Court has yet acted upon this petition. See 223 EAL 2019, filed
May 8, 2019.

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     Further, as to Appellant's claim a mandatory maximum term of
     life imprisonment is unconstitutional since it affords him no
     meaningful opportunity for release, we conclude Appellant
     misapprehends Pennsylvania's sentencing scheme.

     Pennsylvania utilizes an indeterminate sentencing scheme with a
     minimum period of confinement and a maximum period of
     confinement. “In imposing a sentence of total confinement the
     court shall at the time of sentencing specify any maximum period
     up to the limit authorized by law....” 42 Pa.C.S.A. § 9756(a). See
     also Commonwealth v. Saranchak, 544 Pa. 158, 675 A.2d 268,
     277 n.1 (1996). Here, that maximum period is life imprisonment.
     Therefore, the sentence imposed, with a maximum period of life,
     is lawful.

     To the extent Appellant meant his minimum term is
     unconstitutional and affords him no meaningful opportunity for
     release, we note “[t]he maximum term represents the sentence
     imposed for a criminal offense, with the minimum term merely
     setting the date after which a prisoner may be paroled.” Martin
     v. Pennsylvania Bd. of Probation and Parole, 576 Pa. 588,
     840 A.2d 299, 302 (2003). In considering what constitutes a
     “meaningful opportunity for release,” this Court has recognized
     that “[t]o be meaningful or, at least, potentially meaningful, it
     must at least be plausible that one could survive until the
     minimum release date with some consequential likelihood that a
     non-trivial amount of time at liberty awaits.” Commonwealth v.
     White, 193 A.3d 977, 986 (Pa. Super. 2018) (quotation and
     emphasis omitted).

     Here, the lower court sentenced Appellant to an aggregate
     minimum term of thirty-five years' imprisonment. Appellant has
     been incarcerated for his crime since the time of his arrest when
     he was seventeen years old. Upon resentencing, the trial court
     gave Appellant credit for all time served from the date of his
     arrest. Thus, Appellant will be eligible for parole when he is fifty-
     two years old. Accordingly, Appellant's claim that his sentence
     offers him no meaningful opportunity for parole is without merit.

Blount, 207 A.3d at 938-39.

     Olds, supra, held:



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        In sum, we reaffirm that trial courts must sentence juveniles
        convicted of second-degree murder prior to June 25, 2012 to a
        maximum term of life imprisonment under section 1102(b). We
        hold that such mandatory maximums do not violate the Eighth
        Amendment's ban on cruel and unusual punishment. As such, we
        affirm Appellant's judgment of sentence.

Olds, 192 A.3d at 1198.

        Olds also provided additional reasoning that we believe is particularly

relevant herein.

        Graham [v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d
        825 (2010)] makes clear that “[a] State is not required to
        guarantee eventual freedom to a juvenile offender convicted of a
        nonhomicide crime. What the State must do, however, is give
        defendants ... some meaningful opportunity to obtain release
        based on demonstrated maturity and rehabilitation.” Graham,
        560 U.S. at 75, 130 S.Ct. 2011. In other words, consistent with
        the Eighth Amendment, a state can set a mandatory maximum
        term of life imprisonment, even for nonhomicide offenses, so long
        as it grants defendants the opportunity for parole based upon
        demonstrated maturity and rehabilitation. That is exactly what
        occurred in this case. Specifically, the trial court made Appellant
        eligible for parole after 20 years' imprisonment and credited him
        with over 37 years for time served. Thereafter, Appellant was
        granted parole based upon his demonstrated maturity and
        rehabilitation.

        In reaching its conclusion that juveniles convicted of nonhomicide
        offenses can be sentenced to life imprisonment, but not LWOP,[2]
        the Supreme Court of the United States explained that LWOP
        differs substantially from a life sentence during which a defendant
        becomes eligible for parole. See id. at 70, 130 S.Ct. 2011, citing
        Solom v. Helm, 463 U.S. 277, 297, 103 S.Ct. 3001, 77 L.Ed.2d
        637 (1983). It concluded that these significant differences meant
        that different rules should apply for imposing LWOP sentences.
        Despite its adoption of such principles, the Supreme Court of the
        United States has never placed mandatory life maximums beyond
        the authority of a sentencing court to impose, even in
        nonhomicide cases.
____________________________________________


2   Life Without Parole.

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      Nothing in Pennsylvania case law indicates that our Supreme
      Court (or this Court) is prepared to expand Justice Breyer's
      concurrence and prohibit mandatory life maximums for juveniles
      who commit second-degree murder but did not kill or intend to
      kill. The sole reference by our Supreme Court to Justice Breyer's
      concurrence in Miller was not an attempt to extend his reasoning
      to life maximums.

Id. at 1196-97.

      The additional reasoning found in Olds is particularly relevant to

Jackson’s argument that mandatory maximum life sentence (which equates

to a mandatory lifetime parole tail), unconstitutionally impinges upon the

individuality of a juvenile’s sentence. As Olds states, there is no constitutional

requirement guaranteeing a juvenile’s eventual freedom, only that the

juvenile be given a meaningful opportunity to obtain that release. Therefore,

we believe Jackson’s argument is based upon an overbroad interpretation of

the United States Supreme Court rulings in Miller and Montgomery.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/19




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