J-A27004-18

                                   2019 PA Super 96

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH F. LIGON                            :
                                               :
                       Appellant               :   No. 1845 EDA 2017

              Appeal from the Judgment of Sentence May 17, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0311332-1953,
                            CP-51-CR-0311352-1953


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

OPINION BY BOWES, J.:                                   FILED MARCH 28, 2019

       Joseph F. Ligon appeals from the May 17, 2017 judgment of sentence

of two concurrent terms of thirty-five years to life imprisonment that were

imposed after he was resentenced on two 1953 convictions for first-degree

murder.1 We affirm.

       The convictions arose out of events that occurred on February 20, 1953,

when Appellant was 15 years old. Appellant and four others imbibed wine

and, over the course of approximately two hours, proceeded to rob and stab

eight people, killing Jackson Hamm and Charles Pitts. When Appellant was

arrested that night, he was carrying a knife sheath on his person. A knife was

recovered from the patrol car where Appellant had been sitting.        Two of

____________________________________________


1  This Court does not quash the present appeal, despite Appellant’s failure to
file separate notices at each docket number, as this appeal was filed prior to
the decision in Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018),
which applies prospectively.
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Appellant’s co-defendants gave statements naming Appellant as the actor who

stabbed all of the victims.

      Appellant pled guilty to two counts of first-degree murder, and on

December 18, 1953, the court imposed two concurrent mandatory terms of

life imprisonment without the possibility of parole (“LWOP”). After the United

States Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012)

and Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016), Appellant

received a resentencing hearing wherein he was ordered to serve two

concurrent sentences of thirty-five years to life imprisonment. At the time of

the resentencing, Appellant was eighty years old, having served over sixty-

four years in prison. Credit for time served rendered Appellant immediately

eligible for parole. Appellant filed post-sentence motions which were denied.

He filed a timely notice of appeal and complied with the sentencing court’s

order directing him to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). The resentencing court filed its opinion,

and the matter is ripe for our review.

      Appellant raises the following issue on appeal: “Is it unconstitutional to

impose a mandatory lifetime parole tail on all juvenile lifers being

resentenced?”    Appellant’s brief at 3.   When reviewing challenges to the

legality of a sentence, our standard of review is de novo and our scope of

review is plenary. Commonwealth v. Brown, 159 A.3d 531, 532 (Pa.Super.

2017) (citation omitted).




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       Appellant argues that the trial court’s imposition of a mandatory life

maximum sentence violates the Miller and Montgomery holdings, which

invalidated the sentencing scheme that existed for juveniles convicted of first-

degree murder prior to June 25, 2012, and require individualized sentences

for juveniles. The Commonwealth agrees.

       We first address Appellant’s argument that Miller and Montgomery

invalidated the applicable sentencing statutes, making his mandatory

maximum sentence of life imprisonment illegal.      At the time of Appellant’s

conviction, the then-applicable sentencing statute required that a person

convicted of first degree murder receive a sentence of LWOP or the death

penalty.2     In Miller, the United States Supreme Court found that the

imposition of a mandatory LWOP sentence, imposed upon a juvenile without

consideration of the defendant’s age and “the attendant characteristics of

youth,” violated the Eighth Amendment to the United States Constitution. The

Supreme Court later declared Miller to be retroactive, requiring states to

extend parole eligibility to juvenile offenders who committed their crimes pre-

Miller. Montgomery, supra at 736.


____________________________________________


2 Appellant was originally sentenced under 18 P.S. § 4701, which was repealed
and replaced by 18 Pa.C.S. § 1102 in 1972, after § 4701 was found to be
unconstitutional on       grounds   unrelated to      Appellant’s conviction.
Commonwealth v. Bradley, 295 A.2d 842 (Pa. 1972) (citing Furman v.
Georgia, 408 U.S. 238 (1972)). Section 1102(a) required that a person
convicted of first-degree murder receive a sentence of life or death. The
parole code provided that a person sentenced to a term of life was not eligible
for parole. 61 Pa.C.S. § 6137(a)(1).

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     The Pennsylvania Supreme Court interpreted Miller and found that,

pursuant to Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013) (Batts

I), once a sentencing court evaluates the criteria identified in Miller and

determines a LWOP sentence is inappropriate, it must impose 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.” Our Supreme Court explained that § 1102 was still valid,

since the unconstitutional part of Pennsylvania’s sentencing scheme, the lack

of parole eligibility pursuant to § 6137(a)(1), was severable. The Batts I

court reasoned,

     Miller neither barred imposition of a [LWOP] sentence on a
     juvenile categorically nor indicated that a life sentence with the
     possibility of parole could never be mandatorily imposed on a
     juvenile. Rather, Miller requires only that there be judicial
     consideration of the appropriate age-related factors set forth in
     that decision prior to the imposition of a sentence of [LWOP] on a
     juvenile.

Batts I, supra at 295-96.

     The interplay between § 1102(a) and § 6137(a)(1) was further

examined by our Court in Commonwealth v. Sesky, 170 A.3d 1105

(Pa.Super. 2017). In Sesky, the defendant, like Appellant, was convicted of

first-degree murder prior to June 25, 2012. However, Sesky was resentenced,

after Montgomery, to thirteen to twenty-six years of imprisonment, instead

of the mandatory maximum lifetime tail which Appellant received.          The

Commonwealth appealed, challenging the term-of-years tail, and argued that



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the court should have imposed a mandatory maximum life sentence pursuant

to § 1102(a)(1). Sesky, like Appellant, argued that Miller invalidated the

entire sentencing scheme, so that the trial court was not required to impose

any minimum or maximum term of imprisonment. Our Court agreed with the

Commonwealth and vacated the judgment of sentence, and remanded for

imposition of a sentence which included a mandatory maximum term of life

imprisonment.

       In reaching its conclusion, our Court relied on our Supreme Court’s

holding in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (Batts II),

wherein the Court reaffirmed its Batts I holding, and again stated that the

trial court must resentence defendants to either LWOP or a maximum term of

life imprisonment as required by § 1102(a). Seskey, supra at 1109.            In

doing so, our Court reiterated Batts II’s interpretation of the interplay

between § 1102(a) and § 6137(a)(1):

       Despite the passage of four years since we issued our decision in
       Batts I, the General Assembly has not passed a statute
       addressing the sentencing of juveniles convicted of first-degree
       murder pre-Miller[3], nor has it amended the pertinent provisions
       that were severed in Batts I. As we have previously stated, the
       General Assembly is quite able to address what it believes is a
       judicial misinterpretation of a statute, and its failure to do so in
____________________________________________


3 The legislature eventually responded to Miller by enacting 18 Pa.C.S.
§ 1102.1, which provides that individuals between the ages of fifteen and
seventeen convicted of first-degree murder must be sentenced to a maximum
of life imprisonment and a minimum term set anywhere from thirty-five years
to life. However, this statute only applies to those individuals sentenced after
June 24, 2012.



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      the years following the Batts I decision gives rise to the
      presumption that the General Assembly is in agreement with our
      interpretation.

Seskey, supra at 1109, (citing Batts II, supra at 445) (internal quotation

marks, citations, and footnote omitted).

      Based on a review of the above-precedent and statutory authority, it is

clear that Appellant’s argument that “there is no relevant statute or appellate

case law requiring the imposition of a lifetime parole tail,” is incorrect.

Appellant’s brief at 10. Under Batts II and Seskey, the resentencing court

was statutorily required to sentence Appellant to a maximum term of life

imprisonment.

      Appellant’s second argument is that the imposition of a mandatory life

tail is incompatible with Miller’s individualized sentencing requirement

because the parole board could choose to deny a rehabilitated inmate parole

indefinitely.   Appellant relies on Songster v. Beard, 201 F.Supp.3d 639

(E.D.Pa. 2016), to support his position that placing the authority to determine

an individual’s eligibility for release in the State Parole Board would be an

abdication of the judicial responsibility of individualized sentencing mandated

by Miller.

      Importantly, 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

Appellant makes with Songster and found it to be “unavailing,” as it does not


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address Graham v. Florida, 560 U.S. 48, 75 (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 Commonwealth v. Olds, 192 A.3d 1188, 1197 n.18 (Pa.Super. 2018).

This lapse is especially concerning, as Appellant cites to Graham multiple

times in his brief in support of his arguments, yet completely fails to address

that his position is contrary to Graham’s ultimate holding.

      Further, Appellant’s intimation that the Pennsylvania Board of Parole

cannot be trusted to do its job in a fair and equitable fashion is without support

in either Miller or Montgomery. 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 LWOP with one

for life with the possibility of parole. Montgomery, supra 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.


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J-A27004-18


      Appellant 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 Appellant 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 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.

      Appellant has received two concurrent sentences of thirty-five years to

life, which rendered him immediately eligible for parole due to his sixty-four

years of time credit. He has received the full benefit of Miller and its progeny.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/19


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