J-S20027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    FRANK GRAZULIS

                             Appellant               No. 3050 EDA 2019


         Appeal from the Judgment of Sentence entered June 3, 2019
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-1054051-1990


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

MEMORANDUM BY STABILE, J.:                             FILED JULY 29, 2020

       Appellant, Frank Grazulis, appeals from the judgment of sentence

imposed upon resentencing in the Court of Common Pleas of Philadelphia

County on June 3, 2019. Appellant contends the resentencing court erred in

imposing a sentence of 28½ years to life in prison and in denying his post-

sentence motion to withdraw his guilty plea.1 Following review, we affirm.

       As the resentencing court explained:

       [O]n December 4, 1991, [A]ppellant entered a negotiated guilty
       plea to first degree murder, criminal conspiracy, and two counts
       of aggravated assault and simple assault before the [plea judge]
       in exchange for which the parties agreed to recommend that an
       aggregate sentence of life imprisonment without the possibility of
       parole [(LWOP)] be imposed on Appellant. [The sentencing judge]

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1 As of the time of the resentencing hearing, Appellant had spent
approximately 28½ years in custody. See Notes of Testimony, Resentencing
Hearing, 6/3/19, at 8.
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          accepted the recommendation and sentenced [A]ppellant to the
          statutory mandatory term of [LWOP] for the first-degree murder
          conviction and a concurrent, aggregate term of 10 to 20 years in
          prison for the remaining convictions. Appellant, who was sixteen
          and one-half years’ old when he committed the crimes herein, filed
          a direct appeal from the judgment of sentence and the Superior
          Court affirmed the judgment of sentence. He then filed a petition
          for allowance of appeal that was thereafter denied.

Resentencing Court Opinion, 10/30/19, at 1-2 (footnote omitted).

          Appellant subsequently filed a number of petitions for collateral relief

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

On January 4, 2017, the PCRA court denied Appellant’s claims challenging the

guilt phase of his trial but granted Appellant’s request for a new sentencing

hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012),2 and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).3 The court stayed the

new sentencing hearing pending final disposition of Appellant’s guilt-phase

relief.



____________________________________________


2In Miller, the United States Supreme Court held that a mandatory sentence
of LWOP for individuals who were under the age of 18 at the time of the
offense violates the prohibition against cruel and unusual punishment in the
Eighth Amendment of the United States Constitution. Miller, 567 U.S. at
479-80. Again, Appellant was 16½ years old at the time of the events at issue
here.

3 In Montgomery, the United States Supreme Court held that Miller's
prohibition against mandatory LWOP sentences for juvenile offenders was a
substantive rule that is retroactive in state cases on collateral review. Id.,
136 S.Ct. at 736.




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       After Appellant’s guilt-phase challenges were resolved,4 Appellant filed

a counseled PCRA petition on October 19, 2018, contending sentences of

LWOP imposed upon juveniles are unconstitutional under Miller and that the

resentencing court lacked jurisdiction to impose sentence. He also claimed

his guilty pleas were unlawfully induced and that he was innocent. See PCRA

Petition, 10/19/18, at ¶¶ 10-16. The petition was followed by a motion on

November 14, 2018, withdrawing his October 19, 2018 claims that the guilty

pleas were unlawfully induced and that he is actually innocent. See Motion

for Leave to Withdraw [Claims], 11/14/18, at 1-3.

       As reflected above, Appellant was resentenced on June 3, 2019.

Appellant filed a post-sentence motion alleging his sentence was illegal, that

his guilty plea was unlawfully induced, and that he was actually innocent.

Shortly before that motion was denied on October 15, 2019 by operation of

law, Appellant filed a notice of appeal to this Court. 5 On October 30, 2019,

the resentencing court issued an opinion pursuant to Pa.R.A.P. 1925(a).6


____________________________________________


4See Commonwealth v. Grazulis, No. 577 EDA 2017 (Pa. Super. filed
August 31, 2018).

5 Pa.R.A.P. 905(a)(5) provides that “[a] notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof.” Therefore,
we consider the instant appeal to be timely filed on October 15, 2019.

6 Although Appellant’s Table of Contents lists a Statement of Matters
Complained of on Appeal (See Appellant’s Brief at iii), one is not included with



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       Appellant presents two issues for our consideration:

       I.     The lower court erred in resentencing [Appellant] to a term
              of 28½ years to life imprisonment under a statute that
              provided for only a sentence of life imprisonment and that
              was improperly cured of its Miller and Montgomery defect.

       II.    The resentencing court erred by denying [Appellant’s] post-
              sentence motion to withdraw his plea of guilty entered on
              December 4, 1991 in that it was not knowingly, voluntarily
              and intelligently entered according to standards set forth for
              juveniles in Roper v. Simmons, 543 U.S. 551 (2005) and
              Miller v. Alabama, 132 S.Ct. 2455 (2012).

Appellant’s Brief at ii-iii.7

       In his first issue, Appellant challenges the legality of his sentence.

Therefore, 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).

       Appellant raises two sub-issues with regard to legality of sentence. He

contends that his sentence is illegal because the sentencing statute,

18 Pa.C.S.A. § 1102(a), provides for “life imprisonment,” not a sentence with

a minimum or maximum, and that his sentence exceeds the maximum

sentence of twenty years he asserts would comply with Miller and




____________________________________________


the brief. From our review of the record, it does not appear the resentencing
court ordered Appellant to file a Rule 1925(b) statement.

7 We remind Appellant’s counsel that the Table of Citations should include
page number references for every time a case or statutory provision is cited
in a brief, not just the first time it is cited.

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Montgomery, as if he committed a felony other than murder. Appellant is

not entitled to relief.

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

Supreme Court addressed the sentencing of individuals, such as Appellant,

who were sentenced to LWOP prior to Miller.         The Court announced its

determination “that they are subject to a mandatory maximum sentence of

life imprisonment as required by Section 1102(a), accompanied by a minimum

sentence determined by the common pleas court upon resentencing.” Id. at

297. Subsequently, in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017)

(“Batts II”), the High Court explained that the sentencing scheme announced

in Batts I operated to “strik[e] the prohibition against paroling an individual

sentenced to serve life in prison in [61 Pa.C.S.A.] section 6137(a)(1) as

applied to those offenders.” Id. at 420-21.

      Recognizing that the Legislature has not adopted provisions of

18 Pa.C.S.A. § 1102(a) that apply to juveniles who committed a murder prior

to the Miller decision in 2012, the Court considered the statutory provisions

relating to minimum sentences and parole and announced:

      In determining the minimum sentence for a juvenile convicted of
      first-degree murder prior to Miller, a sentencing court is to
      exercise its discretion to find the appropriate, individualized
      sentence in each case, just as it would when fashioning the
      minimum sentence for any other defendant before it. See
      Commonwealth v. Gordon, 596 Pa. 231, 942 A.2d 174, 182
      (2007) (“Pennsylvania judges retain broad discretion to sentence
      up to and including the maximum sentence authorized by statute;
      the only line that a sentence may not cross is the statutory
      maximum sentence.”); Commonwealth v. Walls, 592 Pa. 557,

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     926 A.2d 957, 966–67 (2007) (stating that sentencing in
     Pennsylvania is individualized, requiring the sentencing court to
     consider certain factors and to provide an explanation of its
     reasoning prior to imposing a given sentence).

Batts II, 163 A.3d at 443 (footnote omitted). Further,

     For some of the juvenile first-degree murder cases, the only
     appreciable difference between offenders will be the date of
     conviction. Therefore, to promote uniformity in sentencing in pre-
     and post-Miller cases, when determining the appropriate
     minimum term of incarceration for pre-Miller offenders being
     sentenced to life with the possibility of parole, sentencing courts
     should be guided by the minimum sentences contained in section
     1102.1(a) of twenty-five years for a first-degree murder
     committed when the defendant was less than fifteen years old and
     thirty-five years for a first-degree murder committed when the
     defendant was between the ages of fifteen and eighteen.
     18 Pa.C.S.A. § 1102.1(a).

Id. at 458 (footnote omitted).

     In Commonwealth v. Lehman, 201 A.3d 1279 (Pa. Super. 2019),

appeal granted on other grounds, 215 A.3d 967 (Pa. 2019), the appellant

presented a legality of sentence challenge similar to Appellant’s when he was

resentenced, post-Miller and post-Montgomery, to thirty years to life for a

murder committed in 1988 when he was fourteen years old. As this Court

explained:

     According to Appellant, there was no statutory authority by which
     the trial court could sentence Appellant for first-degree murder
     because 18 Pa.C.S.A. § 1102, when combined with 61 Pa.C.S.A.
     § 6137(a)(3), was deemed unconstitutional in Miller. Appellant
     argues that the trial court was required to (1) sentence him for
     third-degree murder, a crime he was not convicted of committing,
     or (2) discharge him. . . .

     Our Supreme Court and this Court have rejected Appellant’s
     argument on numerous occasions. E.g. Commonwealth v.

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      Batts, 640 Pa. 401, 163 A.3d 410, 421 (2017); Commonwealth
      v. Olds, 192 A.3d 1188, 1193 (Pa. Super. 2018);
      Commonwealth v. Foust, 180 A.3d 416, 430 (Pa. Super. 2018);
      Commonwealth v. Seskey, 170 A.3d 1105, 1106 (Pa. Super.
      2017). Pursuant to these binding decisions, the trial court was
      required to impose a sentence for first-degree murder. The
      sentencing options available to the trial court offered no
      mandatory minimum and a mandatory maximum term of life
      imprisonment. The trial court imposed such a sentence. Hence,
      Appellant’s sentence of 30 years to life imprisonment was legal.

Id. at 1282-83 (footnote omitted).

      Recognizing the binding precedent set forth above, it is clear that

Appellant’s claims of an illegal sentence must fail. The sentence of 28½ years

to life in prison is a legal sentence. Appellant’s first issue lacks merit.

      In his second issue, Appellant argues the resentencing court erred by

denying his post-sentence request to withdraw his guilty plea because it was

not knowingly, voluntarily, or intelligently entered.     As this Court noted in

Commonwealth v. Jabbie, 200 A.3d 500 (Pa. Super. 2018):

      This Court reviews the denial of a post-sentence motion to
      withdraw a guilty plea by the following standard.

         It is well-settled that the decision whether to permit a
         defendant to withdraw a guilty plea is within the sound
         discretion of the trial court. Although no absolute right to
         withdraw a guilty plea exists in Pennsylvania, the standard
         applied differs depending on whether the defendant seeks
         to withdraw the plea before or after sentencing. When a
         defendant seeks to withdraw a plea after sentencing, he
         must demonstrate prejudice on the order of manifest
         injustice. [A] defendant may withdraw his guilty plea after
         sentencing only where necessary to correct manifest
         injustice.




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Id. at 505 (quoting Commonwealth v. Hart, 174 A.3d 600, 664-65 (Pa.

Super. 2017) (internal citations and quotation marks omitted)).

      The resentencing court properly rejected Appellant’s claim. As noted

above, Appellant sought to withdraw his guilty plea, post-sentence, in a

counseled PCRA petition filed on October 19, 2018. On November 14, 2018,

he withdrew the claim that his guilty pleas were unlawfully induced and that

he is actually innocent. See Resentencing Court Opinion, 10/30/19, at 5; see

also Motion for Leave to Withdraw [Claims], 11/14/18, at 1-3. Therefore, he

cannot assert that claim in this appeal.         Pa.R.A.P. 302(a).      As the

Commonwealth contends, Appellant’s resentencing was limited to correcting

his sentence. Commonwealth Brief at 6 (citing PCRA Court Order, 1/14/17).

Appellant “cannot now, following remand for the limited purpose of correcting

an illegal sentence, litigate claims that fall outside the scope of the remand.”

Id. (quoting Commonwealth v. Cook, 175 A.3d 345, 350 (Pa. Super.

2017)). The resentencing court did not abuse its discretion in rejecting this

claim.

      Even absent withdrawal of the claim, it is time-barred. Id. at 5. As the

resentencing court recognized, when Appellant attempted to withdraw his

guilty plea in his October 2018 PCRA petition, he did not assert any exception

to the PCRA’s time bar.        Therefore, the PCRA court—as well as the

resentencing court and this Court—lacked jurisdiction to consider Appellant’s




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late-filed claim relating to his 1991 guilty plea and conviction.      See 42

Pa.C.S.A. § 9545(b).

     Appellant is not entitled to relief based on either issue presented to this

Court. Therefore, we shall affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2020




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