J-S61036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PAUL SERRANO, III                          :
                                               :
                       Appellant               :   No. 1362 EDA 2019

       Appeal from the Judgment of Sentence Entered December 19, 2018
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0001487-2007


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED DECEMBER 13, 2019

        Appellant, Paul Serrano, III, appeals from the December 19, 2018,

judgment of sentence entered in the Court of Common Pleas of Northampton

County following the lower court’s grant of PCRA1 relief and resentencing of

Appellant on his conviction for first-degree murder pursuant to Montgomery

v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016), which held that state

courts are required to grant retroactive effect to new substantive rules of

federal constitutional law, such as Miller v. Alabama, 567 U.S. 460, 132

S.Ct. 2455 (2012). Miller held unconstitutional mandatory sentences of life

imprisonment without the possibility of parole for offenders, like Appellant,




____________________________________________


*   Former Justice specially assigned to the Superior Court.
1   Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
J-S61036-19


who were under eighteen years of age at the time of their crimes. After a

careful review, we affirm.

      The procedural history in this case is convoluted and lengthy. We

provide a brief summary of the procedural history, which is relevant for

purposes of this appeal.

      In 2007, the Commonwealth charged Appellant with the murder of Kevin

Muzila. At the time Appellant was arrested and charged, he was eighteen

years old; however, Appellant was seventeen years old at the time he

committed the murder. The Commonwealth mistakenly charged Appellant as

an adult and gave notice of its intent to seek the death penalty.

      On August 14, 2007, Appellant pled guilty to first-degree murder in

exchange for the Commonwealth’s promise to waive its right to purse the now-

illegal death penalty. See Roper v. Simmons, 543 U.S. 551, 115 S.Ct. 1183

(2005) (declaring that sentencing a juvenile offender to death violates the

Constitution’s prohibition of cruel and unusual punishments).        As a result,

Appellant, who was a juvenile when he committed the murder, was sentenced

to life without the possibility of parole.

      Thereafter, Appellant filed serial PCRA petitions, culminating in the latest

one, which Appellant filed with the assistance of counsel on September 17,

2018. Therein, Appellant complained his sentence was illegal under

Montgomery, supra, and Miller, supra. Appellant recognized his PCRA

petition was facially untimely; however, he invoked the governmental


                                       -2-
J-S61036-19


interference exception under 42 Pa.C.S.A. § 9545(b)(1)(i). By order entered

on October 9, 2018, the PCRA court granted Appellant’s PCRA petition,

vacated the 2007 judgment of sentence, and scheduled a new sentencing

hearing.2

____________________________________________


2 On February 21, 2017, the PCRA court purported to vacate Appellant’s 2007
judgment of sentence and resentence Appellant to 35 years to life in prison.
However, on appeal, this Court held the PCRA court was without jurisdiction
to grant Appellant collateral relief since Appellant did not plead any of the
timeliness exceptions. Commonwealth v. Serrano, No. 1080 EDA 2017
(Pa.Super. filed 11/1/17) (unpublished memorandum). Consequently, we
held the 2017 judgment of sentence was a legal nullity, and Appellant’s 2007
judgment of sentence remained in effect. Id. We noted Appellant’s amended
PCRA petition remained pending and counsel could amend it further to plead
appropriate timeliness exceptions. Id.
       Thereafter, Appellant amended his PCRA petition and, citing to
Montgomery and Miller, he pled the newly-recognized constitutional right
exception set forth in Section 9545(b)(1)(iii). On December 29, 2017, the
PCRA court found the petition met the timeliness exception. However, in
addressing the merits, the PCRA court failed to recognize this Court had
nullified the 2017 judgment of sentence, and, instead, the PCRA court denied
Appellant’s PCRA petition on the basis the 2017 judgment of sentence was not
unconstitutional. Within two weeks, on January 10, 2018, the PCRA court sua
sponte entered a second order indicating that, upon further review, the
original 2007 judgment of sentence remained in effect; however, the PCRA
court did not consider the legality of the 2007 sentence in light of the issues
presented in Appellant’s amended PCRA petition.
       Appellant appealed to this Court and, during the pendency of the appeal,
on April 20, 2018, the PCRA court entered a “Memorandum Opinion” granting
Appellant PCRA relief and indicating he should be resentenced. Relying upon
the “Memorandum Opinion,” Appellant discontinued his appeal, and the case
was reassigned to a new PCRA court judge, who concluded that there were no
PCRA petitions pending before the lower court.           However, noting the
procedural history was a “cluster” of errors, the PCRA court judge held it was
unclear whether the “Memorandum Opinion” was a Pa.R.A.P. 1925(a) opinion
or a proper order, and, thus, Appellant may have been misled into
discontinuing his appeal. PCRA Court Opinion, filed 9/10/18. The PCRA court
urged Appellant to file a PCRA petition presenting a new theory of relief, and



                                           -3-
J-S61036-19


       On December 19, 2018, Appellant proceeded to a resentencing hearing,

at the conclusion of which he was sentenced to forty-five years to life in prison

for first-degree murder. He was awarded credit for all time served. Appellant

filed a timely, counseled post-sentence motion, which the lower court denied

on March 29, 2019. This timely, counseled appeal followed.

       On appeal, Appellant presents the following sole issue in his “Statement

of Questions Involved”:

       1. Whether the Trial Court erred when it imposed a term of years
          sentence which constitutes a de facto life without parole
          sentence on a juvenile offender convicted of homicide[?]

Appellant’s Brief at 2 (suggested answer omitted).

       Appellant avers the trial court’s minimum sentence of forty-five years in

prison, which includes credit for time served, constitutes an illegal de facto life

sentence since it deprives Appellant of a meaningful opportunity for release.


____________________________________________


therefore, Appellant filed a PCRA petition on September 17, 2018, averring
governmental interference in the presentation of his legality of sentence claim.
       We conclude the PCRA court’s January 10, 2018, order amounted to a
reconsideration of its December 29, 2017, order; however, since the PCRA
court did not fully address the merits of Appellant’s amended PCRA petition
within the January 10, 2018, order as it related to the constitutionality/legality
of the original 2007 judgment of sentence, it did not constitute a final order.
See Pa.R.A.P. 341; 42 Pa.C.S.A. § 5505. Consequently, Appellant’s appeal
from the January 10, 2018, order was premature. We find it unnecessary to
determine whether the April 20, 2018, “Memorandum Opinion” was an order
granting PCRA relief/ordering resentencing or whether it was an advisory
Pa.R.A.P. 1925(a) opinion. In either event, there was a breakdown when the
PCRA court later directed Appellant to file another PCRA petition instead of
entering a final order as to the amended PCRA petition. However, as Appellant
has been resentenced pursuant to the PCRA relief requested in his amended
petition, we shall address the issue pertaining to his new sentence.

                                           -4-
J-S61036-19


Citing to various websites, Appellant reasons that the trial court’s sentence

ignores his true life expectancy. That is, Appellant, who avers he will not be

eligible for parole until he is sixty-two years old, contends that a prisoner’s life

expectancy is sixty-four years old, and thus, the trial court’s minimum

sentence is illegal. See Appellant’s Brief at 9-11.

      Appellant’s claim presents a challenge to the legality of his sentence.

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

and our scope of review is plenary.” Commonwealth v. Seskey, 170 A.3d

1105, 1107 (Pa.Super. 2017) (citation omitted). Where a sentence is found

to be illegal, it must be vacated. Commonwealth v. Rivera, 95 A.3d 913,

915 (Pa Super. 2014).

      As this Court previously held in Commonwealth v. Lekka, 210 A.3d

343 (Pa.Super. 2019):

             This Court has rejected similar arguments in several recent
      cases in which a juvenile offender originally sentenced to life
      without parole was resentenced following Miller and
      Montgomery. See [Commonwealth v.] White, 193 A.3d [977
      (Pa.Super. 2018)] (35-years-to-life sentence with earliest
      opportunity for parole at age 52); Commonwealth v. Bebout,
      186 A.3d 462, 469-70 (Pa.Super. 2018) (45-years-to-life
      sentence with earliest opportunity for parole at age 60);
      Commonwealth v. Foust, 180 A.3d 416, 438 (Pa.Super. 2018)
      (two consecutive 30-years-to-life sentences). In Foust, following
      an extensive review of Miller, Montgomery, and the precedent
      on which they rely, we held that “a trial court may not impose a
      term-of-years sentence on a juvenile convicted of homicide if that
      term-of-years sentence equates to a de facto [life-without-parole]
      sentence unless it finds, beyond a reasonable doubt, that the
      juvenile is incapable of rehabilitation.” [Foust,] 180 A.3d at 433.
      We concluded that the two consecutive sentences of 30 years to
      life imprisonment that were imposed on the defendant in Foust

                                       -5-
J-S61036-19


     for two first-degree murder charges must be examined separately
     and that viewed as such each 30 year sentence was not an
     unconstitutional de facto life sentence. Id. at 434-38. While
     noting that there are certain terms-of-years sentences which are
     clearly constitutional and others that are clearly not, we “explicitly
     decline[d] to draw a bright line...delineating what constitutes a de
     facto [life-without-parole] sentence and what constitutes a
     constitutional term-of-years sentence.” Id. at 438.
            Our decision in Bebout is especially relevant here. In that
     case, the defendant also received a 45-years-to-life sentence
     upon resentencing pursuant to Miller and Montgomery, albeit
     he was 15 years old at the time he began serving his sentence
     and would be eligible for parole at age 60. Bebout, 186 A.3d at
     468. This Court concluded that, in determining whether a
     sentence is a de facto life sentence, “it must at least be plausible
     that one could survive to the minimum release date with some
     consequential likelihood that a non-trivial amount of time at
     liberty awaits.” Id. at 468 (emphasis in original). We rejected the
     defendant’s argument based on statistical data regarding life
     expectancy as inconclusive, and observed that the data alone did
     not resolve the difficulty of devising a standard to determine when
     a term-of-years sentence crosses the threshold into being a de
     facto life sentence. Id. at 468-69. While we noted that the 45-
     years-to-life sentence “falls between the ‘clearly’ constitutional
     and unconstitutional parameters suggested by the Foust Court,”
     we held that the defendant had failed to show that a sentence
     which authorized his release at age 60 was the functional
     equivalent of a life-without-parole sentence. Id. at 467, 469-70
     (quoting Foust, 180 A.3d. at 438).
            In light of our binding precedent, we conclude that [the]
     [a]ppellant has not demonstrated that he has no meaningful
     chance of survival until he completes his 45-year minimum
     sentence to enjoy his time at liberty at parole, should he be
     granted release. While [the] [a]ppellant will not be eligible for
     parole until age 62, two years longer than the defendant in
     Bebout, [the] [a]ppellant has not shown any significant
     difference between the ages at the earliest possible point of
     release that would distinguish his case from Bebout.
     Furthermore, though [the] [a]ppellant has cited statistical data
     concerning life expectancy and case law of other states, as in
     Bebout, we must conclude that [the] [a]ppellant has not offered
     a workable standard as to what types of terms-of-years sentences
     are the de facto equivalent of life-without-parole sentences.

                                     -6-
J-S61036-19



Lekka, 210 A.3d at 357-58 (footnote omitted).

       Similarly, in the case sub judice, Appellant has failed to demonstrate

that he has no plausible chance of survival until his minimum release date.

Accordingly, we decline to find Appellant’s sentence constitutes a de facto life

sentence, necessitating a finding by the sentencing court that Appellant is

“incapable of rehabilitation.”3 Foust, 180 A.3d at 433.

       For all of the foregoing reasons, we affirm.

       Affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/19




____________________________________________


3  We note that Appellant contemporaneously filed a Pa.R.A.P. 1925(b)
statement when he filed his notice of appeal. In his Rule 1925(b) statement,
he alleged solely the following: “The Trial Court erred when it imposed a term
of years sentence, which constitutes a de facto life without parole sentence on
a juvenile offender convicted of homicide.” Appellant’s Pa.R.A.P. 1925(b)
statement, filed 4/24/19. Accordingly, to the extent Appellant now seeks to
challenge the discretionary aspects of his sentence on appeal, the issue has
been waived. See Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa.Super.
2005) (finding issues waived for failing to raise them in a Rule 1925(b)
statement filed contemporaneously with the notice of appeal).


                                           -7-
