J-S41033-14


                                  2014 PA Super 182

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BYSHERE LAWRENCE

                            Appellant                  No. 2684 EDA 2013


             Appeal from the Judgment of Sentence May 24, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010239-2011


BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J.

OPINION BY MUNDY, J.:                                 FILED AUGUST 27, 2014

        Appellant, Byshere Lawrence, appeals from the May 24, 2013

aggregate judgment of sentence1 of 45 years to life imprisonment after he

was found guilty of first-degree murder, firearms not to be carried without a

license, and possession of an instrument of a crime (PIC).2      After careful

review, we affirm.

        We summarize the relevant facts and procedural history of this case as

follows.   On September 26, 2011, the Commonwealth filed an information
____________________________________________
1

September 18, 2013 order denying his post-sentence motion. However, a
direct appeal in a criminal case can only lie from the judgment of sentence.
Commonwealth v. Kuykendall, 2 A.3d 559, 560 n.1 (Pa. Super. 2010)
(citation omitted). We have therefore amended the caption accordingly.
2
    18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), and 907(a), respectively.
J-S41033-14


charging Appellant with the above-mentioned offenses as well as one count

each of criminal conspiracy, possession of a firearm by a minor, carrying

firearms in public in Philadelphia, and recklessly endangering another person

(REAP).3     On July 31, 2012, Appellant proceeded to a jury trial at the

conclusion of which, the jury found Appellant guilty of first-degree murder,

firearms not to be carried without a license, and PIC.           The jury acquitted

Appellant of criminal conspiracy.              The Commonwealth nolle prossed the

possession of a firearm by a minor, carrying firearms in public in

Philadelphia, and REAP charges. On May 24, 2013, the trial court imposed

an aggregate sentence of 45 years to life imprisonment.4 On June 3, 2013,

Appellant filed a timely post-sentence motion.             Relevant to this appeal,

                          tutional issue in his post-sentence motion argued that

the application of 18 Pa.C.S.A. § 1102.1(a)(1) to his case violated the Cruel

and Unusual Punishment Clause of the Eighth Amendment to the Federal

Constitution. See                        -Sentence Motion, 6/3/13, at ¶¶ 7-10. On




____________________________________________
3
    18 Pa.C.S.A. §§ 903(c), 6110.1(c), 6108 and 2705, respectively.
4
    The trial court imposed 45 years to life imprisonment for first-degree

without
sentences were to run concurrently to each other.



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post-sentence motion.         On September 24, 2013, Appellant filed a timely

notice of appeal.5

        On appeal, Appellant raises three issues for our review.

              A.     Is 18 Pa.C.S. § 1102.1 unconstitutional under
                     the United States Constitution because it
                     violates its Cruel and Unusual Punishment
                     Clause?

              B.     Is 18 Pa.C.S. § 1102.1 unconstitutional under
                     the United States Constitution because it
                     violates the Equal Protection Clause in that it
                     treats juveniles convicted of first or second
                     degree murder after its passage differently
                     than juveniles convicted of the identical crimes
                     prior to its passage?

              C.     Was the sentence imposed on Appellant under
                     18 Pa.C.S. § 1102.1 unconstitutional under the
                     United States and Pennsylvania Constitutions
                     because it violates their Ex Post Facto Clauses?




                                               We note that duly enacted legislation

                                                                   Commonwealth

v. Turner, 80 A.3d 754, 759 (Pa. 2013) (citation omitted).




____________________________________________
5
    Appellant and the trial court have complied with Pa.R.A.P. 1925.



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                                   Commonwealth v. Baker, 78 A.3d 1044, 1050

(Pa. 2013), quoting 1 Pa.C.S.A. § 1922(3).

                     In conducting our review, we are guided by the
              principle that acts passed by the General Assembly
              are strongly presumed to be constitutional, including
              the manner in which they were passed. Thus, a
              statute will not be found unconstitutional unless it
              clearly,    palpably,  and    plainly   violates  the
              Constitution. If there is any doubt as to whether a
              challenger has met this high burden, then we will

              constitutionality.

Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (internal

quotation marks and citations omitted). As the constitutionality of a statute

presents a pure question of law, our standard of review is de novo and our

scope of review is plenary. Turner, supra.

      In    his    first    issue,   Appellant      avers    that   Section   1102.1   is



minimum sentence of thirty-

fifteen    years   or      older   convicted   of   first-

consideration of the factors set forth in Miller v. Alabama, [] 132 S. Ct.



      The Eighth Amendment to the Federal Constitution states that

 [e]xcessive bail shall not be required, nor excessive fines imposed, nor




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J-S41033-14


                                                 6
cruel and unusual punishments                        U.S. Const. amend. viii.   The



draw its meaning from the evolving standards of decency that mark the

                                         Trop v. Dulles, 356 U.S. 86, 101 (1956)




punishment for [a] crime should be graduated and proportioned to [the]

              Kennedy v. Louisiana, 554 U.S. 407, 419 (2008), quoting

Weems v. United States

those convicted of heinous crimes, the Eighth Amendment reaffirms the duty

                                                                  Hall v. Florida,

134 S. Ct. 1986, 1992 (2014) (citation omitted).

       Appellant argues that Section 1102.1 violates the Cruel and Unusual

Punishment Clause because the statute imposes a mandatory minimum




at 15. The statute provides in relevant part as follows.

              § 1102.1. Sentence of persons under the age of
              18 for murder, murder of an unborn child and
              murder of a law enforcement officer



____________________________________________
6
  The Eighth Amendment is incorporated to the States via the Due Process
Clause of the Fourteenth Amendment. Hall, supra.



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              (a) First degree murder.--A person who has been
              convicted after June 24, 2012, of a murder of the
              first degree, first degree murder of an unborn child
              or murder of a law enforcement officer of the first
              degree and who was under the age of 18 at the time
              of the commission of the offense shall be sentenced
              as follows:

                   (1) A person who at the time of the
                   commission of the offense was 15 years of age
                   or older shall be sentenced to a term of life
                   imprisonment without parole, or a term of
                   imprisonment, the minimum of which shall be
                   at least 35 years to life.

                   (2) A person who at the time of the
                   commission of the offense was under 15 years
                   of age shall be sentenced to a term of life
                   imprisonment without parole, or a term of
                   imprisonment, the minimum of which shall be
                   at least 25 years to life.



18 Pa.C.S.A. § 1102.1(a). Appellant is correct insofar that, by its text, the

statute requires the trial court to impose a sentence of not less than 35

                                           Id. § 1102.1(a)(1). The trial court

is divested of any discretion to impose a lesser minimum sentence.       See,

e.g.

apply this section where applicable, the Commonwealth shall have the right

to appellat

       Within the last ten years, the Supreme Court has on three occasions



2005, the Supreme Court held that the Eighth Amendment categorically


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J-S41033-14


prohibits the imposition of the death penalty for those under 18 years of age

at the time of the offense.7 Roper v. Simmons, 543 U.S. 551, 578 (2005).

In 2010, the Court concluded a juvenile convicted of non-homicide crime

could not be sentenced to life imprisonment without the possibility of parole

consistent with the Eighth Amendment. Graham v. Florida, 560 U.S. 48,

82 (2010).       Finally, in Miller, the question was whether the Eighth

Amendment barred a state from imposing a mandatory sentence of life

imprisonment without the possibility of parole upon a juvenile, even for a

homicide offense.        As with Roper and Graham, the Court noted that

juveniles differ from adults in three distinct ways.



              recklessness, impulsivity, and heedless risk-taking.
              Roper, 543 U.S., at 569.
              more vulnerable ... to negative influences and



              themselves from horrific, crime-producing settings.
              Ibid.


                                               Id., at 570.

Id. at 2464 (parallel citations omitted); see also Graham, supra at 68-69;

Roper, supra                                                   the mandatory

penalty schemes at issue here prevent the sentencer from taking account of
____________________________________________
7
 The Supreme Court had previously rejected this argument in 1989. See
generally Stanford v. Kentucky, 492 U.S. 361, 380 (1989).



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J-S41033-14


                                      Id.

balance    by subjecting a juvenile to the same life-without-parole sentence

applicable to an adult        these laws prohibit a sentencing authority from



                                      Id. In

not be reconciled with the considerations espoused in Roper and Graham.

Id. at 2469.

                    Graham, Roper, and our individualized
              sentencing decisions make clear that a judge or jury
              must have the opportunity to consider mitigating
              circumstances before imposing the harshest possible
              penalty for juveniles. By requiring that all children
              convicted of homicide receive lifetime incarceration
              without possibility of parole, regardless of their age
              and age-related characteristics and the nature of
              their crimes, the mandatory sentencing schemes
              before us violate this principle of proportionality, and

              punishment.

Id. at 2475.      As a result, Miller was entitled to resentencing, taking into

account considerations involving his age.8

       Turning to the case sub judice, Appellant argues that Section



                                                                         le in the
____________________________________________
8
  In Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), our Supreme Court
held t     the imposition of a minimum sentence taking such [age-related]
factors into account is the most appropriate remedy for the federal
constitutional violation that occurred when a life-without-parole sentence
                              Id. at 297.



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J-S41033-14


crime, whether he posed a danger to society, and the familial and peer



preclusive effect of Section 1102.1 is that it divests the judge of discretion,



imprisonment. We decline to extend Miller beyond the mandatory schemes

that it considered.            Miller is limited to legislative       schemes which

    require[ed]   that   all   children   convicted   of   homicide   receive   lifetime

incarceration without possibility of parole, regardless of their age and age-

                                                                       Miller, supra.

Section 1102.1 does not contain such a sentencing scheme. In fact, Section

1102.1(d) does require the trial court to consider various age-related

factors before the trial court may impose a sentence of life without parole.

See 18 Pa.C.S.A. § 1102.1(d).9


____________________________________________
9
  Specifically, Section 1102.1(d) requires, among other factors, the following
findings by the trial court.

              § 1102.1. Sentence of persons under the age of
              18 for murder, murder of an unborn child and
              murder of a law enforcement officer



              (d) Findings.--In determining whether to impose a
              sentence of life without parole under subsection (a),
              the court shall consider and make findings on the
              record regarding the following:


(Footnote Continued Next Page)


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J-S41033-14


      We do not read Miller to mean that the Eighth Amendment

categorically prohibits a state from imposing a mandatory minimum

imprisonment sentence upon a juvenile convicted of a crime as serious as

first-degree murder.10

of 35 years presents the same concerns as would a mandatory minimum of

                       _______________________
(Footnote Continued)


             (7) Age-related characteristics of the defendant,
             including:

             (i) Age.

             (ii) Mental capacity.

             (iii) Maturity.

             (iv) The degree of criminal sophistication exhibited
             by the defendant.

             (v) The nature and extent of any prior delinquent or
             criminal history, including the success or failure of
             any previous attempts by the court to rehabilitate
             the defendant.

             (vi) Probation or institutional reports.

             (vii) Other relevant factors.

18 Pa.C.S.A. § 1102.1(d)(7).
10
    Appellant does not argue that a national consensus exists against
imposing a sentence of 35 years to life imprisonment upon a juvenile so as
to render it unconstitutional under the Eighth Amendment. See generally
Hall, supra at 1996, 1999; Miller, supra at 2470; Graham, supra at 61;
Kennedy, supra at 426; Roper, supra at 563; Atkins v. Virginia, 536
U.S. 304, 316 (2002).




                                           - 10 -
J-S41033-14




requires   us   to   conclude   that   open-ended   minimum    sentencing   is

constitutionally required by the Cruel and Unusual Punishment Clause. We

decline to announce such a rule.

      If we were to agree with

contrary to the cases that the Supreme Court has already decided.         See

Graham, supra

                                                Graham held that the Eighth

Amendment required juveniles convicted of non-homicide offense to have



                                Id. Miller does not contain this requirement

for juveniles convicted of first-degree murder, such as Appellant.       Even

under Miller, a state still may impose life without parole for homicide

offenses, preventing a juvenile like Appellant, from ever obtaining any hope

of release from confinement.     Based on these considerations, we conclude

that Section 1102.1 does not offend the Cruel and Unusual Punishment

Clause of the Eighth Amendment. See Turner, supra.



Appellant argues Section 1102.1 violates the Equal Protection Clause of the

Fourteenth Amendment of the Federal Constitution and the Ex Post Facto

Clauses found at Article I, Section 10 of the Federal Constitution and Article




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J-S41033-14


The trial court noted that neither of these grounds were raised in his post-

sentence motion and concluded that Appellant has waived them. Trial Court

Opinion, 12/17/13, at 9; see also                                   ssues not

raised in the lower court are waived and cannot be raised for the first time



these claims below

                                                            n.5.

                                                           a challenge to the

application of a mandatory minimum sentence is a non-waiveable challenge

                                    Commonwealth v. Delvalle, 74 A.3d

1081 (Pa. Super. 2013).     However, we also take notice of the competing



                    Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super.

2013) (en banc).       The question then becomes whether a constitutional

attack on a statute that authorizes a mandatory minimum sentence may

also be considered a non-waivable challenge to the legality of the sentence

actually imposed, and if so, to what extent.

      [T]his Court has grappled with the illegal sentencing doctrine as

jurisprudence on such issues as constitutional sentencing challenges and the

difference between legal sentencing questions and an illegal sentence have

              Id.                                  en banc cases, we have

established the principle that the term illegal sentence is a term of art that


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J-S41033-14




Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007) (en

banc) (internal quotation marks and citation omitted).      This Court has

consistently enunciated three distinct categories of legality of sentence




involving merger/double jeopardy; and (3) claims implicating the rule in

Apprendi v. New Jersey, 530 U.S. 466 (2000)            Id. (internal parallel

citations omitted).   This Court has also held that claims pertaining to the



the legality of the sentence and cannot be waived. See Commonwealth v.

Brown, 71 A.3d 1009, 1015-



punishment is a challenge to the legality of the sentence, rendering the




                                                             Watley, supra

at 118; accord Commonwealth v. Jacobs, 900 A.2d 368, 373 n.6 (Pa.

Super. 2006) (en banc), appeal denied, 917 A.2d 313 (Pa. 2007). It makes

sense that an Apprendi

involves sentencing a defendant in excess of the statutory maximum, the

classic illegal sentence paradigm, based on facts not presented to and/or


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J-S41033-14


                               Watley, supra at 118 n.7.11   In addition, if a

sentence is unconstitutional as cruel and unusual under the Eighth

Amendment, a fortiori, it must also be an illegal sentence. With regard to

the doctrine of merger and the Double Jeopardy Clauses, our Supreme Court



for the same offense serves to prevent the sentencing court from prescribing

greater punishment                                      Commonwealth v.


____________________________________________
11
  In addition, the Supreme Court recently added Alleyne v. United States,
133 S. Ct. 2151 (2013) to the Apprendi line of cases. In Alleyne, the
Court overruled Harris v. United States, 536 U.S. 545 (2002), and held

                                                   Alleyne, supra at 2155
(internal quotation marks omitted).     Although Alleyne, like all of the
Apprendi line, is grounded in the Jury Trial Clause of the Sixth Amendment,

authority to engage in judicial fact-finding in order to impose a higher


     In this case, the trial court correctly noted that Section 1102.1 does
present an Alleyne problem.        Section 1102.1 prescribes a mandatory

offense. See                                      [a] person who at the
time of the commission of the offense was 15 years of age or older shall
be sentenced to a term of life imprisonment without parole, or a term of

(emphasis added). However, the trial court also noted that at sentencing
Appellant conceded that he was 15 years old at the time of the offense.
N.T., 5/24/13, at 11. Since Appellant conceded the fact required for the
mandatory minimum, any Alleyne error in this case was rendered harmless.
See United States v. Hunt, 656 F.3d 906, 913 (9th Cir. 2011) (stating that
an Apprendi error can




                                          - 14 -
J-S41033-14


Andrews, 768 A.2d 309, 329 (Pa. 2001) (internal quotation marks and

citation omitted).

      The Fourteenth Amendment of the Federal Constitution states that

                                                            isdiction the equal




                     Id. at Art. I, § 10. Likewise, Article I, Section 17 of the

Pennsylvania                             [n]o ex post facto law, nor any law

impairing the obligation of contracts, or making irrevocable any grant of



      In our view, there is a meaningful difference between the remaining

two arguments Appellant raises in this case and issues pertaining to the

Eighth   Amendment,     merger,    Apprendi    and   Alleyne.      The   Eighth

Amendment, merger, Apprendi, and even Alleyne all directly circumscribe

                        encing process and sentencing authority.         Stated

another way, the goal of the Cruel and Unusual Punishment Clause, the

merger doctrine, Apprendi and Alleyne is to protect defendants from the

imposition of punishments by trial judges that are unconstitutional,



                                  Andrews, supra. However, as is relevant

in this case, the Equal Protection Clause and the Ex Post Facto Clauses serve

to restrict legislative power. Appellant does not argue that the trial court did


                                     - 15 -
J-S41033-14




sentencing function.   Nor does Appellant argue that any part of the

sentencing process was unconstitutional. Rather, Appellant argues that the

General Assembly passed a statute that, in his view, unconstitutionally

treats some juveniles differently than others, and retroactively changes the



33-34. These arguments do not address the same concerns as the Eighth

Amendment, the merger doctrine, Apprendi and Alleyne.              Because

                                  Ex Post Facto Clause arguments directly

seek protection from legislatures, not judges, we hold that these arguments



                                                       Commonwealth v.

Cartrette, 83 A.3d 1030, 1036 n.5 (Pa. Super. 2013) (en banc) (citation

omitted).

     It does not alter our conclusion that the constitutional argument here

involves a mandatory minimum sentence.      Appellant has not cited to any

case where we have allowed a constitutionally-based legality of sentencing

claim regarding mandatory minimum sentencing to be raised for the first

time on appeal, leaving aside cases involving Alleyne. If we were to hold

that an Equal Protection and Ex Post Facto challenge is non-waivable

because a mandatory minimum sentence is involved, than any state or

federal constitutional provision that could serve as a basis to challenge a


                                   - 16 -
J-S41033-14


mandatory minimum sentence must also be non-waivable as well.12 Further,

if we did not require preservation in the trial court, all of these constitutional

challenges could also be raised by this Court sua sponte as well.            See

generally Commonwealth v. Ornella, 86 A.3d 877, 883 n.7 (Pa. Super.



illegality of sentence sua sponte

conclude that the trial court was correct that Appellant waived his arguments

under the Equal Protection and Ex Post Facto Clauses by not raising them in

his post-sentence motion below.



eit

judgment of sentence is affirmed.

       Judgment of sentence affirmed.

       Judge Donohue files a Concurring Opinion.




____________________________________________
12
   For example, a defendant could challenge Section 1102.1 under the
Original Purpose and Single Subject Clauses of the Pennsylvania
Constitution. We point out that these arguments also directly accuse the
legislature, not the trial court, of acting unconstitutionally regarding Section
1102.1.



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J-S41033-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2014




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