                                  [J-118-2016]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 45 MAP 2016
                                              :
                     Appellee                 :   Appeal from the Order of the Superior
                                              :   Court dated September 4, 2015,
                                              :   reconsideration denied November 10,
              v.                              :   2015, at No. 1764 EDA 2014 Affirming
                                              :   the Judgment of Sentence of the
                                              :   Northampton County Court of Common
QU'EED BATTS,                                 :   Pleas, Criminal Division, dated May 2,
                                              :   2014 at No. CP-48-CR-0001215-2006
                     Appellant                :
                                              :   ARGUED: December 7, 2016


                                        OPINION


JUSTICE DONOHUE                                         DECIDED: June 26, 2017

       Qu’eed Batts (“Batts”) was convicted of a first-degree murder that he committed

when he was fourteen years old. His case returns for the second time on discretionary

review for this Court to determine whether the sentencing court imposed an illegal

sentence when it resentenced him to life in prison without the possibility of parole. After

careful review, we conclude, based on the findings made by the sentencing court and

the evidence upon which it relied, that the sentence is illegal in light of Miller v.

Alabama, 567 U.S. 460 (2012) (holding that a mandatory sentence of life in prison

without the possibility of parole, imposed upon a juvenile without consideration of the

defendant’s age and the attendant characteristics of youth, is prohibited under the

Eighth Amendment to the United States Constitution), and Montgomery v. Louisiana,
136 S.Ct. 718 (2016) (holding that the Miller decision announced a new substantive rule

of constitutional law that applies retroactively and clarifying the limited circumstances in

which a life-without-parole sentence is permissible for a crime committed when the

defendant was a juvenile).

       Pursuant to our grant of allowance of appeal, we further conclude that to

effectuate the mandate of Miller and Montgomery, procedural safeguards are required

to ensure that life-without-parole sentences are meted out only to “the rarest of juvenile

offenders” whose crimes reflect “permanent incorrigibility,” “irreparable corruption” and

“irretrievable depravity,” as required by Miller and Montgomery.            Thus, as fully

developed in this Opinion, we recognize a presumption against the imposition of a

sentence of life without parole for a juvenile offender. To rebut the presumption, the

Commonwealth bears the burden of proving, beyond a reasonable doubt, that the

juvenile offender is incapable of rehabilitation.

                                          I. Facts

       Although this Court generally does not provide an exhaustive recitation of an

offender’s history prior to the commission of the crime, as we explain in greater detail

later in this Opinion, Miller requires the sentencing court to consider the details of a

juvenile offender’s background when determining if he or she is eligible for a sentence

of life without parole. As such, we provide a lengthy account of Batts’ life preceding his

commission of the murder, based largely on the findings of fact made by the

resentencing court that are supported by the record.

       Batts was born prematurely on April 18, 1991 to a thirteen-year-old mother and

seventeen-year-old father. A victim of his mother’s neglect, Batts was shuffled around




                                      [J-118-2016] - 2
the foster care system from ages five through twelve. During that timeframe, he lived in

eleven homes (as well as a homeless shelter for youth) located in nine cities and two

states, and transferred schools eleven times (although there were stretches of several

months that, because of his transiency, Batts did not attend school at all). He was

exposed to physical violence by foster parents, subjected to physical violence by his

peers, and on one occasion, was victimized sexually by an older cousin. At age eleven,

while in the homeless shelter, he lost his virginity to a thirteen-year-old female resident.

He frequently got into fights at school because children would tease him about his

circumstances. Through it all, however, Batts performed well academically and excelled

in several sports.

       At some point during his childhood, Batts developed a relationship with his father,

who was in and out of jail during Batts’ formative years. That relationship abruptly

ended, though, when Batts was eight, as his father was sentenced to twelve years of

incarceration on federal drug charges and no visitation was provided. Around that same

time, Batts briefly returned to the care of his mother, but he was removed again when

she struck him in front of school officials and said she no longer wanted him.

       According to Batts, he struggled with feelings of abandonment and rejection

because of his familial circumstances. He desired only to live with his mother, but she

failed to comply with the requirements for reunification established by the county

agency. It was only once Batts’ paternal grandfather, who had been his caregiver on

and off over the years, expressed a desire to adopt him that Batts’ mother finally

completed the tasks required for her to regain custody of her son.




                                     [J-118-2016] - 3
        At the age of twelve, Batts returned to his mother’s care in Phillipsburg, New

Jersey. They resided in an apartment with his mother’s boyfriend, Batts’ younger sister,

and eventually, a baby brother.     Batts reportedly bonded with his mother and her

boyfriend and was happy to be home. He attended Phillipsburg Middle School in the

seventh grade, where he played football, but he began to decline academically and was

suspended several times for fighting.

        He became sexually active in the seventh and eighth grades, began drinking

alcohol and experimented with smoking marijuana. It was at this time that he met

Jerome Evans, an older teen who was a member of the Bloods gang. He told Batts that

the gang was a family group that took care of each other, which Batts found enticing.

Batts began associating with the gang when he was in middle school and sold drugs for

them.

        Batts and his family relocated across the river to Easton, Pennsylvania, but he

continued to attend school in Phillipsburg, where he played basketball and football. In

late December or early January of his ninth grade year, Batts was initiated into the

Bloods by getting “jumped in” ‒ a ritual that required him to fight five different gang

members for thirty-six seconds each.

        Batts’ grades plummeted, prompting his mother to withdraw him from basketball.

He argued with his mother about his failure to do his school work and began skipping

school. On February 2, 2006, Batts went out in the evening and did not return home

until 2:00 a.m. When he arrived home, his mother was angry and struck him. As a

result, at the age of fourteen, Batts packed his clothes, left for school the morning of




                                    [J-118-2016] - 4
February 3 and never returned home. He stayed at his girlfriend’s house and in the

homes of other friends in both Easton and Phillipsburg. He stopped attending school.

      On the night of February 7, 2006, Batts was in a vehicle with several members of

the Bloods gang. Vernon Bradley, a senior member of the Bloods to whom Batts had

recently been “assigned,” was in the car talking about his desire to rob and kill

someone. Bradley directed the driver of the vehicle to the 700 block of Spring Garden

Street in Easton, Pennsylvania, where he saw Clarence Edwards and Corey Hilario

outside. In the preceding days, Bradley told Batts on several occasions that he was

going to kill Edwards. Batts was aware that Bradley had previously killed three other

people.

      Bradley instructed the driver to stop the vehicle. He asked Batts and the two

other young teenagers in the back of the car who was going to put in “work.” None of

the passengers responded.     The record reflects that Bradley then turned to Batts,

handed him a gun and a mask, and told him to put on a glove and “put work in.” Upon

receiving that directive, Batts exited the car, walked up to the house and shot Clarence

Edwards twice in the head, killing him, and shot Corey Hilario once in the back as

Hilario fled into the house, causing him serious bodily injury. Edwards and Hilario were

sixteen and eighteen years old, respectively. At the time of the shooting, Batts did not

know either victim.

      When Batts returned to the car, he gave the gun back to Bradley. Although Batts

indicated that he felt nothing at the time he pulled the trigger, immediately after the

shooting he stated that he regretted what he had done and was scared. Bradley stated

that he was pleased with the “work” Batts had done, and thereafter, Batts was promoted




                                    [J-118-2016] - 5
to a higher rank within the Bloods. According to Batts’ statement to police and his

testimony at trial, he participated in the shooting because he was afraid that if he did not

comply with Bradley’s demands, Bradley would kill him.

        Batts spent the night at Bradley’s house and the following day, went to

Phillipsburg, New Jersey. On February 10, 2006, police located Batts at a house there.

Batts initially attempted to shield his identity from the police, but he was ultimately

arrested and brought in for an interrogation, for which his mother and stepfather were

present.     He waived his Miranda rights and after two attempts to disclaim his

involvement in the shooting, Batts confessed.

                                  II. Procedural History

        The Commonwealth charged Batts with criminal homicide, attempted criminal

homicide, aggravated assault, and two counts of criminal conspiracy.1 As we explained

in our prior consideration of this case, despite his age, the homicide charge removed

the matter from the jurisdiction of the juvenile court and required Batts’ case to be filed

in adult criminal court. See Commonwealth v. Batts, 66 A.3d 286, 288 (Pa. 2013)

(“Batts I”); 42 Pa.C.S. § 6302 (excepting murder from the definition of a delinquent act).

Batts filed, inter alia, a pretrial motion requesting the transfer of his case to juvenile

court. The trial court held a hearing on Batts’ motion on January 29 and 30, 2007. In

support of his motion, Batts presented the expert testimony and written report of

forensic psychologist Dr. Allan M. Tepper; the Commonwealth countered with expert

testimony and reports from forensic psychologist Dr. Steven Samuel and forensic

psychiatrist Dr. Timothy Michals. Both sides also presented lay testimony.

1
    18 Pa.C.S. §§ 2501(a), 901(a), 2702(a)(1), 903(a)(2).



                                     [J-118-2016] - 6
       After considering the evidence presented, the trial court concluded that Batts

failed to satisfy his burden of proving by a preponderance of the evidence that the public

interest would be served by decertifying the matter to juvenile court. See 42 Pa.C.S. §

6322(a). In its consideration of the statutorily required factors,2 the trial court found that

the crime was “horrendous” and negatively impacted the community; that Batts

constituted a “severe threat to the public” and was “‘streetwise,’ with ‘a well-developed

criminal mentality and the degree of maturity necessary to commit audacious criminal

2
  In determining whether transferring the case to the juvenile court would serve the
public interest, the sentencing court was required to consider:

              (A) the impact of the offense on the victim or victims;
              (B) the impact of the offense on the community;
              (C) the threat to the safety of the public or any individual
              posed by the child;
              (D) the nature and circumstances of the offense allegedly
              committed by the child;
              (E) the degree of the child’s culpability;
              (F) the adequacy and duration of dispositional alternatives
              available under this chapter and in the adult criminal justice
              system; and
              (G) whether the child is amenable to treatment, supervision
              or rehabilitation as a juvenile by considering the following
              factors:
                  (I) age;
                  (II) mental capacity;
                  (III) maturity;
                  (IV) the degree of criminal sophistication exhibited by the
                  child;
                  (V) previous records, if any;
                  (VI) the nature and extent of any prior delinquent history,
                  including the success or failure of any previous attempts
                  by the juvenile court to rehabilitate the child;
                  (VII) whether the child can be rehabilitated prior to the
                  expiration of the juvenile court jurisdiction;
                  (VIII) probation or institutional reports, if any;
                  (IX) any other relevant factors[.]

42 Pa.C.S. § 6355(a)(4)(iii); see 42 Pa.C.S. § 6322(a).



                                      [J-118-2016] - 7
acts.’” Batts I, 66 A.3d at 288-89 (quoting Trial Court Order, 2/21/2007, at 5-6). The

trial court rejected Dr. Tepper’s conclusion that Batts could be rehabilitated by the age

of twenty-one (the age at which the jurisdiction of the juvenile court terminates, see 42

Pa.C.S. § 6302 (defining “child”); Pa.R.J.C.P. 630), instead crediting the conclusion

shared by the Commonwealth’s experts “that rehabilitation, if it ever occurs, will occur

only after years of treatment and a willingness on the part of Mr. Batts to seek treatment

and rehabilitation, something that their clinical evaluations indicate Mr. Batts is not

ready to accept.” Trial Court Order, 2/21/2007, at 6.

        The case proceeded to a jury trial before the Honorable William F. Moran in the

Northampton County Court of Common Pleas. Batts advanced a defense of duress

based upon his fear that Bradley would kill him if he did not comply with his orders. On

July 31, 2007, following a six day trial, the jury convicted Batts of first-degree murder,3

attempted murder and aggravated assault. On October 22, 2007, the sentencing court

imposed the then-mandatory term of life in prison without the possibility of parole for his

first-degree murder conviction, see 18 Pa.C.S. § 1102(a) (amended effective Dec. 16,

2008 and Oct. 25, 2012), and a concurrent sentence of six to twenty years of

incarceration for attempted murder (into which his aggravated assault conviction

merged for sentencing purposes).

                            A. First Superior Court Appeal

        Following the denial of post-sentence motions, Batts appealed the decision to the

Superior Court raising, in relevant part, a challenge to the constitutionality of a life-

without-parole sentence imposed upon a juvenile in light of the United States Supreme

3
    18 Pa.C.S. § 2502(a).



                                     [J-118-2016] - 8
Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth

Amendment to the United States Constitution prohibits the imposition of the death

penalty for a crime committed by a juvenile).       The Superior Court affirmed Batts’

judgment of sentence in an unpublished memorandum, concluding that because Batts

was not sentenced to death, Roper was inapplicable.           It further found that his

constitutional challenge to the mandatory nature of his life-without-parole sentence was

meritless. See Commonwealth v. Batts, 766 EDA 2008, 12-16 (Pa. Super. April 7,

2009) (unpublished memorandum).

                                       B. Batts I

      This Court granted allowance of appeal but held the matter pending the decision

of the United States Supreme Court in Graham v. Florida, 129 S.Ct. 2157 (2009),

decided, 560 U.S. 48 (2010), and Sullivan v. Florida, 129 S.Ct. 2157 (2009), writ of

certiorari dismissed as improvidently granted, 560 U.S. 181 (2010). Subsequent to the

decision in Graham, Batts’ case was argued before this Court, following which we

withheld decision pending the disposition of Miller v. Alabama, 565 U.S. 1013 (2011)

(per curiam), and Jackson v. Hobbs, 565 U.S. 1013 (2011) (per curiam), decided

together, 567 U.S. 460 (2012). Batts I was the first post-Miller decision from this Court

addressing the sentencing of a juvenile offender convicted of first-degree murder. We

therefore requested supplemental briefs and argument from the parties addressing the

appropriate remedy and availability of relief for Batts and those similarly situated. See

Batts I, 66 A.3d at 293 (citing Commonwealth v. Batts, 79 MAP 2009, July 9, 2012

Order (per curiam)).




                                    [J-118-2016] - 9
       In the interim, the Pennsylvania General Assembly responded to Miller by

enacting a new sentencing statute for juveniles convicted of first- and second-degree

murder after June 24, 2012.4 See 18 Pa.C.S. § 1102.1(a), (c). As it relates to first-

degree murder, section 1102.1 requires defendants who were under the age of fifteen at

the time of the offense to be sentenced, at a minimum, to twenty-five years to life in

prison, or to a term of life in prison without the possibility of parole. 18 Pa.C.S. §

1102.1(a)(2), (e).   Offenders who committed first-degree murder when they were

between the ages of fifteen and eighteen must be sentenced, pursuant to the statute, to

a minimum of thirty-five years to life in prison, or to a term of life in prison without the

possibility of parole. 18 Pa.C.S. § 1102.1(a)(1), (e). If the Commonwealth intends to

seek a sentence of life without the possibility of parole, it must provide reasonable

notice to the defendant following his or her conviction, prior to sentencing. 18 Pa.C.S. §

1102.1(b). In making its determination of whether to sentence a defendant to life in

prison without parole under subsection (a), the sentencing court is required to consider

and make findings on the record related to the following factors:

                 (1) The impact of the offense on each victim, including
                 oral and written victim impact statements made or
                 submitted by family members of the victim detailing the
                 physical, psychological and economic effects of the crime
                 on the victim and the victim's family. A victim impact



4
   The United States Supreme Court issued its decision in Miller on June 25, 2012. We
perceive the Legislature’s choice of date to be based upon its belief that the holding of
Miller would only apply prospectively. Its limitation of the statute to juveniles “convicted”
after June 24, 2012, however, is inconsistent with the concept of prospectivity as
applied to judicial determinations. Under conventional jurisprudence, individuals whose
judgments of sentence were not yet final on the date of the Miller decision (i.e., those
with cases still pending on direct appeal), such as Batts, would have been entitled to
benefit from its holding. See Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007).



                                     [J-118-2016] - 10
                 statement may include comment on the sentence of the
                 defendant.

                 (2) The impact of the offense on the community.

                 (3) The threat to the safety of the public or any individual
                 posed by the defendant.

                 (4) The nature and circumstances of the offense
                 committed by the defendant.

                 (5) The degree of the defendant’s culpability.

                 (6) Guidelines for sentencing and resentencing adopted
                 by the Pennsylvania Commission on Sentencing.

                 (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. § 1102.1(d).

      In rendering our decision in Batts I, we took note of section 1102.1, but ultimately

concluded that it was inapplicable because of the date of Batts’ conviction. Batts I, 66

A.3d at 293. In Batts’ supplemental brief and argument to this Court, he contended that,

in light of Miller, Pennsylvania’s sentencing scheme for first-degree murder, requiring a

mandatory sentence of life without parole, was unconstitutional in its entirety.      He


                                      [J-118-2016] - 11
asserted that his sentence should thus revert to “the most severe lesser included

offense, namely, third-degree murder[.]” Id. at 294. We found that argument, and the

inapposite case law presented in support, to be unavailing. Rather, we agreed with the

Commonwealth and its amicus, the Pennsylvania District Attorneys Association, that in

sentencing a juvenile convicted of first-degree murder, if the sentencing court found,

after considering the requisite factors, that a life-without-parole sentence was not

appropriate, the problematic portion of the first-degree murder sentencing scheme was

severable, and we could save the remaining portion of the legislative enactments

without offending the pronouncement in Miller or our rules of statutory interpretation.

See id. at 295-97. Specifically, the Court noted that section 1102 of the Crimes Code

required, in relevant part, an individual convicted of first-degree murder to be sentenced

“to a term of life imprisonment.” 18 Pa.C.S. § 1102(a)(1). The “without parole” aspect

of the sentence arose from section 6137(a)(1) of the Parole Code, which prohibited the

release on parole of any person sentenced to life imprisonment.            61 Pa.C.S. §

6137(a)(1).

      We therefore held that juveniles convicted of first-degree murder prior to Miller

could, after the sentencing court’s evaluation of the criteria identified in Miller,5 be



5
  We concluded that when sentencing a juvenile facing a potential life-without-parole
sentence, Miller requires examination of the following factors:

            [A]t a minimum it should consider a juvenile’s age at the time
            of the offense, his diminished culpability and capacity for
            change, the circumstances of the crime, the extent of his
            participation in the crime, his family, home and neighborhood
            environment, his emotional maturity and development, the
            extent that familial and/or peer pressure may have affected
            him, his past exposure to violence, his drug and alcohol
(continued…)

                                    [J-118-2016] - 12
subjected to a sentence of life in prison without the possibility of parole. See Batts I, 66

A.3d at 296. For those defendants for whom the sentencing court determines a life-

without-parole sentence is inappropriate, “it is our determination here that they are

subject to a mandatory maximum sentence of life imprisonment as required by [s]ection

1102(a), accompanied by a minimum sentence determined by the common pleas court

upon resentencing,” id. at 297, striking the prohibition against paroling an individual

sentenced to serve life in prison in section 6137(a)(1) as applied to these offenders.

       This Court further rejected the argument advanced by Batts and his amici6 that

Article I, Section 13 of the Pennsylvania Constitution requires a categorical ban on the

imposition of a life-without-parole sentence for crimes committed when the defendant

was a juvenile. The Court found that “nothing in the arguments presented suggests that

Pennsylvania’s history favors a broader proportionality rule than what is required by the

United States Supreme Court.” Id. at 299. We therefore vacated the Superior Court’s

decision in Batts I and remanded the case to the sentencing court for proceedings

consistent with the opinion.

       Justice Baer authored a Concurring Opinion.         He fully joined the Majority’s

pronouncement, but wrote separately to suggest, “for purposes of uniformity in


(…continued)
            history, his ability to deal with the police, his capacity to
            assist his attorney, his mental health history, and his
            potential for rehabilitation.

Batts I, 66 A.3d at 297 (quoting Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super.
2012)).
6
    Batts’ amici included the Juvenile Law Center, the Defender Association of
Philadelphia, and law professors Sara Jacobson, Michelle Leighton, Brian J. Foley and
Constance De La Vega. See id. at 297 n.4.



                                     [J-118-2016] - 13
sentencing,” that courts tasked with resentencing juveniles convicted prior to the Miller

decision should look to section 1102.1 for guidance in setting a defendant’s minimum

sentence and to “follow the policy determinations” encompassed in the statute. Id. at

300 (Baer, J., concurring).

                                    C. Resentencing

       On May 1, 2014, the sentencing court convened a second sentencing hearing

before the Honorable Michael J. Koury (Judge Moran had since retired).                  The

Commonwealth presented the testimony of Thomas Serbin, a Security Lieutenant at

State Correctional Institution Retreat, where Batts was then housed. Lieutenant Serbin

stated that Batts had been identified as being part of a security threat group based on

Batts’ admission when he entered the prison that he was a member of the Bloods, his

continued association and interaction with other “validated” members of the Bloods

while in prison, and items of contraband found in Batts’ prison cell that the lieutenant

indicated were associated with the Bloods. N.T., 5/1/2014, at 172-73, 179, 184, 188-94,

197-204. Delores Howell, Edwards’ grandmother and primary caregiver from the age of

six, provided victim impact testimony. See id. at 86-91.

       The Commonwealth further presented an updated report and testimony of Dr.

Michals as an expert in forensic psychiatry. Id. at 42. Based upon his evaluations of

Batts (both prior to trial and in preparation for the resentencing hearing) and his review

of various records, which included the results of an examination and psychological

testing conducted by Batts’ expert, Dr. Frank Dattilio, it was Dr. Michals’ opinion that

Batts’ personality “is developmental in nature” and will not change. Id. at 49. According

to Dr. Michals, “Batts is who he is and it’s the engine that drives his behavior.” Id. at 50.




                                     [J-118-2016] - 14
Although Dr. Michals recognized that the psychological testing revealed that Batts

“really is impulsive,” “has poor judgment” and “acting out behavior,” it was Dr. Michals’

opinion that these traits are “just unfortunately part of who he is” and that this is his

“biological genetic makeup.” Id. at 50-51. Dr. Michals testified that it was his belief that

people generally do not change as they age; that, “[c]haracteristics can change, but it’s

very difficult to make changes to the basic structure of our personality.” Id. at 59; see

also id. at 51, 60. He admitted, however, that he “can’t say that they won’t change,” as

he “can’t predict the future.” Id. He could only conclude that it was “highly unlikely” that

Batts would change. Id. at 71-72.

       At the time he evaluated Batts regarding his motion to transfer his case to

juvenile court, it was Dr. Michals’ opinion that Batts was not amenable to treatment in

the juvenile system; seeing no changes in Batts’ personality, he continued to hold that

opinion at Batts’ resentencing hearing. Id. at 57. Dr. Michals acknowledged, however,

that Batts had not yet received any psychological treatment or counseling in the adult

prison system, and that Batts had taken advantage of programs that had been made

available to him. Id. at 50, 57, 72.

       Also consistent with Dr. Michals’ prior opinion, he testified at the resentencing

hearing that Batts “made a purposeful decision to go ahead and get involved in the

crime.” Id. at 51. While Dr. Michals recognized that Batts was following the instructions

of a senior gang member, and the violence of that organization may have played a role

in Batts’ decision to commit the murder, Dr. Michals believed that Batts “knew what he

was doing when he committed the crime. … He made that choice and decision and

acted upon that choice and decision.” Id. at 60-61. Dr. Michals agreed that Batts’




                                       [J-118-2016] - 15
childhood ‒ marked by physical abuse, parental neglect, and repeated moves within the

foster care system during his early childhood and adolescence ‒ could have affected his

decision making at the time of the murder, but in Dr. Michals’ opinion, “it didn’t,” as the

gang simply provided him with “an option.” Id. at 64, 67.

       Batts likewise presented the testimony and report of an expert ‒ forensic

psychologist Dr. Dattilio ‒ at the resentencing hearing. Unlike Dr. Michals, Dr. Dattilio

found Batts’ tumultuous childhood to be highly significant in this matter. Id. at 99-100.

Although Dr. Dattilio agreed with Dr. Michals that Batts knew that shooting and killing

someone was wrong, he found that Batts’ decision making was skewed by the absence

of a traditional role model in his life during his early childhood. Dr. Dattilio opined that

Batts thus lacked the ability to weigh his options and make an appropriate decision

when he was directed by a senior gang member to do something he knew was wrong.

Id. at 101-02, 156-57. According to Dr. Dattilio, the absence of “attachment bonds” with

parents and family members when Batts was a young child affected his self-esteem and

self-worth, resulting in “hardened personality characteristics,” and left him particularly

vulnerable to gang involvement. Id. at 100, 104-05; see also id. at 105 (“[A]ntisocial

behavior and activity … not only go[] hand in hand with the environment he was raised

in, but then certainly … the gang which had become his family is oriented in that

direction.”).

       Further complicating Batts’ decision making, in Dr. Dattilio’s view, was Batts’ age

at the time of the shooting, which played “a major role”:

                At 14-years-old [sic] we’re just forming our sense of self, our
                sense of use of judgment and reason. It’s in the process of
                development as is the brain. We know that anatomically the
                brain still doesn’t stop developing until an individual is



                                      [J-118-2016] - 16
              sometimes beyond 21 years of age, so there’s a lot of things
              with regard to his ability to use judgment, to use reason,
              assertiveness, sense of balancing out risks versus rewards,
              so on and so forth, so he was very, very vulnerable at that
              point.

Id. at 107-08. Factoring in Batts’ low-average IQ with his young age and his difficult

childhood, Dr. Dattilio opined that Batts’ judgment was profoundly compromised at the

time of the shooting. Id. at 112.

       Dr. Dattilio was also of the opinion that Batts’ “level of sophistication[,] which was

not very high,” also affected his ability to make a sound decision. Id. at 108. While

seemingly streetwise, Batts’ judgment was clouded by the idea of “being part of a

crowd” and gaining acceptance. Id. According to Dr. Dattilio, Batts did not appreciate

“the shortcomings of having to put in work and doing what he was told or the

consequences are serious.” Id. In fact, despite the fact that Evans, his friend and fellow

Bloods member, was jailed for criminal activity prior to Batts joining the Bloods, Dr.

Dattilio stated that this did not “compute” for Batts. Id. at 109. To explain this ostensibly

inexplicable disconnect, Dr. Dattilio reminded those in the courtroom, who had “level

heads” and came from “environments that were in tact [sic] and balanced,” that Batts

was of an entirely different mindset because of his age and the “horrible environment”

from whence he came. Id.

       From the psychological testing he conducted, Dr. Dattilio concluded that Batts

had matured since the initial mental status examination that was performed when Batts

was a teenager. Id. at 104. It was Dr. Dattilio’s opinion not only that Batts had the

capacity to change, but he has exhibited that capacity in expressing genuine remorse

for his actions. Id. at 110, 161. With therapy, Dr. Dattilio testified that Batts would be




                                     [J-118-2016] - 17
able to address “the disruptive attachment bonds” of his childhood and learn how to find

new, healthy relationships and connections. Id. at 111. Dr. Dattilio further accepted

Batts’ statement to him that he was no longer a gang member ‒ in his view, the

evidence adduced by Lieutenant Serbin to the contrary was unconvincing and unclear.

Id. at 113-14, 145-53, 161.

      Batts also presented a sentencing memorandum from expert Dana L. Cook,

M.S., Deputy Director of The Atlantic Center for Capital Representation.             She

concluded, based on her review of records, interviews she conducted with Batts and his

family members (particularly as it relates to Batts’ traumatic childhood experiences and

his current level of maturity) and the brain science relied upon by the United States

Supreme Court in Roper and its progeny, that Batts “has an extraordinary amount of

potential to be a law-abiding member of society, [which] will surely be enhanced by a

now stable and loving family.” Dana Cook’s Report, 12/31/2013, at 4. In her view,

Batts’ “potential for rehabilitation cannot be understated,” as her interactions with him

show that “[h]e understands things now in [a] way he wasn’t capable of at 14 years of

age.” Id., Addendum at 3.

      Batts’ mother, Shaniqua Batts, testified regarding the positive changes she has

already seen in her son. Id. at 165-67. Batts also testified, accepting responsibility for

his actions, apologizing to Delores Howell, assuring the sentencing court that he has

matured over the preceding decade, and denying that he continued to be a member of a

gang. Id. at 169-71. His former high school principal, Gregory A. Troxell, sent an

unsolicited letter to the sentencing court advocating for a term-of-years sentence for




                                    [J-118-2016] - 18
Batts, portraying Batts’ actions on the night in question as out of character from the

person he had known over the preceding several years. Id. at 80-82.

       Batts’ prison record was also considered by the sentencing court. It revealed

that Batts has been disciplined for five infractions throughout his post-sentence

incarceration, only one of which was for a physical fight with another inmate during a

basketball game in May 2010. Id. at 79, 118-20; N.T., 5/2/2014, at 34-35. Apart from

several discipline-related suspensions, Batts has remained employed while in prison

and participates in various sports, fitness and personal enrichment programs (including

GED, leadership development, long-term offenders, violence prevention, resume

creation and job application courses) offered to him there. N.T., 5/2/2014, at 33-34.

       On May 2, 2014, following its consideration of the entire record, the sentencing

memoranda submitted by the parties, an October 2013 presentence investigation

report, the various reports from the psychological evaluations to which Batts had been

subjected over the life of the case, and the sentencing memorandum prepared by Dana

Cook, the sentencing court provided a lengthy explanation of its findings. It indicated

that in deciding the appropriate sentence for Batts, it took into account the general

factors in section 9721(b) of the Sentencing Code,7 the Miller factors and the factors

identified in 18 Pa.C.S. § 1102.1(d), concluding that its sentencing decision required a

“balancing of the factors” at issue. N.T., 5/2/2014, at 56.

7
   In imposing a sentence, the court is required to adhere to “the general principle that
the sentence imposed should call for confinement that is consistent with the protection
of the public, the gravity of the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the defendant. The court shall
also consider any guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing and taking effect under section 2155.” 42
Pa.C.S. § 9721(b).



                                      [J-118-2016] - 19
      The sentencing court found the following to “weigh against leniency”:

              “the nature and circumstances” of the crime, i.e., that Batts committed a
               premeditated murder and attempted murder of “two defenseless boys” to
               achieve a promotion within the gang;

              he acted alone in committing the killing;

              there was no justification for the crimes; the sentencing court found his
               assertion that he feared reprisal by Bradley to be incredible, and that his
               claim of peer pressure did not merit consideration as Batts “sought out
               and embraced the peer pressure by seeking membership in the Bloods
               gang”;

              the victims were unarmed and unsuspecting teenagers;

              Batts failed to cooperate with police in that he “fled the state” and
               attempted to hide his identity when police located him, lied during the
               initial interrogation and only confessed when he realized the police already
               had evidence implicating him;

              the impact the crimes have had on Hilario, Edwards’ family, and the
               community;

              the sentencing court’s desire not to minimize the seriousness of the
               crimes;

              “the uncertainty of [Batts’] amenability to treatment,” noting “[a]lthough you
               may ultimately prove to be amenable to treatment, the experts have
               indicated that any rehabilitation will require years of psychotherapy”; and

              the need to protect the public from Batts because of the crimes committed,
               his “history of violence, aggression and disrespect for the law,” and the
               question of whether he could be amenable to treatment.

Id. at 56-60. As to factors weighing in favor of his capacity for change, the sentencing

court found:

              Batts’ “childhood experiences” ‒ including his repeated moves in the foster
               care system throughout his formative years, the absence of an attachment
               to a stable and trusted adult, his exposure to violence by his mother and in
               the foster care system, as well as his sexual victimization by his cousin ‒
               all of which led him to seek out a cohesive and caring family, and made
               him vulnerable to the attractiveness of a street gang, which the sentencing
               court found suggested that he could “benefit from psychotherapy or other
               forms of rehabilitation”;


                                     [J-118-2016] - 20
              scientific studies concluding that juvenile offenders are less culpable than
               adults; however, the court found that Batts’ age only slightly lessened his
               culpability here “because [his] crimes were not the product of
               recklessness, poor judgment, lack of foresight, susceptibility to peer
               pressure or weak impulse control,” and instead “were deliberate and
               premeditated acts”;

              Batts’ showing of remorse, recognition of the wrongfulness of his conduct,
               and compassion for his victims;

              although Batts admitted to underage drinking, marijuana use and selling
               drugs for the Bloods, he had no prior criminal record, generally did well
               academically and excelled at various sports;

              he is employed in prison, has taken classes on leadership and violence
               prevention, and engaged in pre-vocational training;

              he has a close relationship with his family and attempts to be a positive
               role model for his younger brother; and

              expert opinions that, given his age and the insights he has gained since
               committing the crimes, years of psychotherapy could improve his
               “psychological condition.”

Id. at 60-63. The sentencing court did not consider the evidence that Batts may have

continued his association with members of the Bloods gang, as it found there was no

evidence that he engaged in any violent gang activity in prison. Id. at 63.

       The sentencing court found, “weighing all the factors[,] … that the factors not in

[Batts’] favor significantly outweigh the factors in his favor,” and that the crimes in

question did not “reflect unfortunate yet transient immaturity.” Id. at 64-65. Instead, the

sentencing court found, “On the evening of February 7, 2006, you committed a

calculated, callous and cold-blooded murder. You made yourself the judge, jury and

executioner of Clarence Edwards and, if not for the grace of God, you would also have

killed Corey Hilario.” Id. at 66.

       Immediately thereafter, the sentencing court reinstituted a sentence of life in

prison without the possibility of parole for Batts’ first-degree murder conviction, and


                                     [J-118-2016] - 21
further resentenced him to a concurrent term of ten to twenty years of incarceration for

attempted murder. Id. at 67. Judge Koury then went on to recount how, after he

decided that Batts should serve life without parole for the murder, he drove by the crime

scene and replayed the events of February 7, 2006 in his head, imagining Delores

Howell coming out to the porch and seeing her grandson with two gunshot wounds to

his head. Id. at 68.

                           D. Second Superior Court Appeal

       A divided panel of the Superior Court affirmed the judgment of sentence. Of

relevance to the case at bar, the majority opinion, authored by then-Judge (now Justice)

Mundy, found Batts’ claim that the evidence was insufficient to permit him to be

subjected to a life-without-parole sentence was a challenge to the discretionary aspects

of sentencing. Commonwealth v. Batts, 125 A.3d 33, 42 (Pa. Super. 2015). Because

Batts failed to file a concise statement of reasons for the Superior Court to review the

discretionary aspects of his sentence, as required Rule 2119(f) of the Pennsylvania

Rules of Appellate Procedure, and the Commonwealth objected to this omission, the

majority concluded that Batts had waived the claim. Id. at 44. The majority declined

Batts’ request to impose a burden of proof upon the Commonwealth seeking to impose

a life-without-parole sentence for a juvenile or to apply a heightened standard of

appellate review, concluding that the requested relief would have to come from the

General Assembly or from this Court pursuant to our rulemaking power. Id. at 43; see

Pa. Const. art. V, § 10(c). It further found meritless his claim that juveniles convicted of

first-degree murder are entitled to the same constitutional protections as adults facing

the death penalty. Batts, 125 A.3d at 44-45.




                                     [J-118-2016] - 22
      Former Justice (now Senior Judge) Fitzgerald disagreed with the finding of

waiver of Batts’ sentencing claim based upon his failure to comply with Rule 2119(f),

giving three reasons for his dissent. First, murder is not a “felony or misdemeanor”

subject to the discretionary review process. See 18 Pa.C.S. § 106(a) (listing three types

of crimes: murders, felonies, and misdemeanors). As the jurisdictional requirements for

the Superior Court to consider the discretionary aspects of sentencing in 42 Pa.C.S.

§ 9781(b) apply only to felonies and misdemeanors, he found a sentence for a murder

conviction was not “subject to the discretionary review process.” Batts, 125 A.3d at 49

(Fitzgerald, J., concurring and dissenting); see 42 Pa.C.S. § 9781(b) (“The defendant or

the Commonwealth may file a petition for allowance of appeal of the discretionary

aspects of a sentence for a felony or a misdemeanor to the appellate court that has

initial jurisdiction for such appeals.”). Second, the sentence for a juvenile convicted of

first-degree murder does not arise from the Sentencing Code, thus further removing

appellate review of the sentence from the strictures of section 9781(b). Id. at 49-50

(citing 42 Pa.C.S. § 9781(b) (providing that review of a challenge to the discretionary

aspects of sentencing requires the petitioning party to show a substantial question that

the sentence imposed is not appropriate under the Sentencing Code)). Third, Judge

Fitzgerald believed that the issue under consideration, involving the imposition of a

sentence of life without parole on a juvenile, was “a sufficiently extraordinary legal

question to warrant review despite a procedural default.” Id. at 50.

      Judge Fitzgerald would have decided the claim on its merits and, in so doing,

would have concluded that the decision to resentence Batts to life without the possibility

of parole was unsupported by both the record and the prevailing law. See id. at 49–54.




                                    [J-118-2016] - 23
In his view, the sentencing court improperly “framed its choice as two extremes: the

Commonwealth's recommendation that [Batts] be sentenced to life without parole, and

[Batts’] request for a sentence of twenty-five years to life as suggested by 18 Pa.C.S.

§ 1102.1.”   Id. at 54 (citing N.T., 5/2/2014, at 56).           The sentencing court gave no

meaningful consideration to imposing a minimum term of incarceration above the

twenty-five-year minimum sentence it rejected.             Id.    Further, according to Judge

Fitzgerald, the sentencing court’s belief that a sentence less than life without parole

would constitute an act of “leniency” represents a misunderstanding of “the nature of our

indeterminate sentencing scheme.” Id.; see Commonwealth v. Daniel, 243 A.2d 400,

403 (Pa. 1968) (“the maximum sentence is the real sentence … the only portion of the

sentence which has legal validity”).

                                   III. Issues Raised

      Batts filed a petition for allowance of appeal to this Court, and we granted his

request to answer the following questions:

              1. In Miller v. Alabama, the U.S. Supreme Court outlawed
              mandatory life without parole for juveniles [], and instructed
              that the discretionary imposition of this sentence should be
              “uncommon” and reserved for the “rare juvenile offender
              whose crime reflects irreparable corruption.”

                 i. There is currently no procedural mechanism to ensure
                 that juvenile [life without parole] will be “uncommon” in
                 Pennsylvania. Should this Court exercise its authority
                 under the Pennsylvania Constitution to promulgate
                 procedural safeguards including (a) a presumption
                 against juvenile [life without parole]; (b) a requirement for
                 competent expert testimony; and (c) a “beyond a
                 reasonable doubt” standard of proof?

                 ii. The lower court reviewed [Batts’] sentence under the
                 customary abuse of discretion standard. Should the




                                       [J-118-2016] - 24
                 Court reverse the lower court's application of this highly
                 deferential standard in light of Miller?

             2. In Miller, the U.S. Supreme Court stated that the basis for
             its individualized sentencing requirement was Graham’s
             comparison of juvenile [life without parole] to the death
             penalty. [Batts] received objectively less procedural due
             process than an adult facing capital punishment. Should the
             Court address the constitutionality of [Batts’] resentencing
             proceeding?

Commonwealth v. Batts, 135 A.3d 176 (Pa. 2016) (per curiam).

                                     IV. Precedent

      Prior to engaging in a discussion of the arguments presented, it is first necessary

for us to examine the legal precedent upon which this decision rests.

                                 A. Roper v. Simmons

      We begin with the United States Supreme Court’s 2005 decision in Roper v.

Simmons. At the age of seventeen, Christopher Simmons decided he wanted to murder

someone by breaking into a house, tying the person up, and throwing the victim off a

bridge. He informed his fifteen- and sixteen-year-old friends of his idea, indicating that

because they were juveniles, they would “get away with it.” Roper, 543 U.S. at 556.

Following the execution of his plan, Simmons bragged openly about the murder, saying

that he had killed the victim “because the bitch seen my face.” Id. at 557. Following his

conviction of murder, Simmons was sentenced to death.

      The Roper Court observed that the death penalty is reserved for the most

culpable offenders who commit the most serious crimes, justifying their execution. Id. at

568. The Court found three differences between juveniles and adults that rendered

juveniles “categorically less culpable than the average criminal,” and precluded a finding

that a juvenile can “with reliability be classified among the worst offenders.” Id. at 567,



                                    [J-118-2016] - 25
568. First, the Court recognized, based on a common-sense understanding of children,

as well as scientific and sociological studies, that juveniles are less mature and have a

less developed sense of responsibility, which “often result[s] in impetuous and ill-

considered actions and decisions.” Id. at 569 (citations omitted). In that vein, the Court

observed that “adolescents are overrepresented statistically in virtually every category

of reckless behavior.” Id. (quoting Arnett, Reckless Behavior in Adolescence: A

Developmental Perspective, 12 Developmental Rev. 339 (1992)). The Court thus found

that “[t]he susceptibility of juveniles to immature and irresponsible behaviors means that

their irresponsible conduct is not as morally reprehensible as that of an adult.” Id. at

570 (citation and quotation marks omitted).

       Second, “juveniles are more vulnerable or susceptible to negative influences and

outside pressures, including peer pressure.” Id. (citing Eddings v. Oklahoma, 455 U.S.

104, 115 (1982), for the proposition that “youth is more than a chronological fact. It is a

time and condition of life when a person may be most susceptible to influence and to

psychological damage”). The Court stated that according to research, this is largely

because juveniles lack the ability or authority to control their environments. Id. (citing

Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity,

Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009,

1014 (2003)). Therefore, “[t]heir own vulnerability and comparative lack of control over

their immediate surroundings mean juveniles have a greater claim than adults to be

forgiven for failing to escape negative influences in their whole environment.” Id. at 570

(citation omitted).




                                    [J-118-2016] - 26
       Third, the character and personality of a juvenile are not formed, but are “more

transitory, less fixed” than they will be as an adult. Id. at 570 (citing E. Erikson, Identity:

Youth and Crisis (1968)). “The reality that juveniles still struggle to define their identity

means it is less supportable to conclude that even a heinous crime committed by a

juvenile is evidence of irretrievably depraved character.”           Id.   The Court found

“misguided” any attempt to treat the acts of a juvenile as if they were committed by an

adult, as studies support the notion that personality flaws in a juvenile will change over

time ‒ “the signature qualities of youth are transient; as individuals mature, the

impetuousness and recklessness that may dominate in younger years can subside.” Id.

(citing, inter alia, Steinberg & Scott 1014, as stating: “For most teens, [risky or

antisocial] behaviors are fleeting; they cease with maturity as individual identity

becomes settled. Only a relatively small proportion of adolescents who experiment in

risky or illegal activities develop entrenched patterns of problem behavior that persist

into adulthood.”).

       Considering these differences between juveniles and adults, the Roper Court

concluded that juveniles cannot reliably be counted among the worst offenders.

Because of their diminished culpability, the Court found that the penological

justifications for the death penalty ‒ deterrence and retribution ‒ necessarily fell away.

See id. at 571-72. In concluding that there must be a categorical ban on the imposition

of the death penalty for juveniles, the Court stated:

              The differences between juvenile and adult offenders are too
              marked and well understood to risk allowing a youthful
              person to receive the death penalty despite insufficient
              culpability. An unacceptable likelihood exists that the
              brutality or cold-blooded nature of any particular crime would
              overpower mitigating arguments based on youth as a matter



                                      [J-118-2016] - 27
              of course, even where the juvenile offender's objective
              immaturity, vulnerability, and lack of true depravity should
              require a sentence less severe than death. … It is difficult
              even for expert psychologists to differentiate between the
              juvenile offender whose crime reflects unfortunate yet
              transient immaturity, and the rare juvenile offender whose
              crime reflects irreparable corruption. See Steinberg & Scott
              1014-1016.

Id. at 572-73.    The Supreme Court thus concluded that the death penalty was a

disproportionate punishment for juvenile offenders, and therefore, cruel and unusual

punishment in violation of the Eighth Amendment to the United States Constitution.

                                  B. Graham v. Florida

       In 2010, the United States Supreme Court in Graham v. Florida revisited the

question of proportionality of sentencing for juvenile offenders, this time as it related to a

sentence of life in prison without the possibility of parole for the commission of a non-

homicide offense. In that case, Terrence Graham committed an armed burglary and

attempted robbery when he was sixteen years old. Charged as an adult, he faced a

maximum sentence of life without parole, but received three years of probation pursuant

to a plea agreement. Less than six months after he was sentenced, when he was

approximately a month shy of his eighteenth birthday, he committed two home invasion

robberies.   He fled from police, striking a telephone pole with his vehicle.          Police

apprehended Graham and discovered three handguns in the car.

       Following hearings on Graham’s violations of probation, the court found Graham

in violation based upon his admission that he attempted to avoid arrest, and the court’s

conclusion that Graham had committed the home invasion robbery, possessed a

firearm and associated with individuals engaged in criminal activity.          Although the

prosecution sought an aggregate sentence of forty-five years of incarceration, and the



                                     [J-118-2016] - 28
presentence investigation report only recommended a sentence of four years of

imprisonment, the court sentenced Graham to life in prison without the possibility of

parole.   The court reasoned, based on Graham’s “escalating pattern of criminal

conduct,” he would continue to engage in criminal behavior, requiring the court to

“protect the community” from Graham’s actions. Graham, 560 U.S. at 57.

       Following its grant of certiorari, the United States Supreme Court found that the

differences between juveniles and adults observed in Roper applied with equal force to

the circumstances at issue in Graham. The Court identified no basis to reconsider its

conclusions in Roper about the inherent immaturity and impetuousness of juveniles; to

the contrary, “developments in psychology and brain science continue to show

fundamental differences between juvenile and adult minds.” Id. at 68. Observing that

defendants who commit non-homicide offenses are generally less deserving of the most

severe punishments than those who commit murder, the Court concluded that “a

juvenile offender who did not kill or intend to kill has a twice diminished moral

culpability” as compared to an adult murderer. Id. at 69.

       The Court further recognized that life without parole, the second most severe

punishment, shares some unique characteristics with capital punishment, including the

irrevocability of the associated forfeiture and the deprivation of liberty without hope for

its restoration. Moreover, the Graham Court identified life without parole as an even

harsher sentence for a juvenile than it is for an adult because “a juvenile offender will on

average serve more years and a greater percentage of his life in prison than an adult

offender.” Id. at 70. Further, because of the permanence of the punishment and the

differentiating characteristics of a juvenile (namely, impetuousness, an underdeveloped




                                     [J-118-2016] - 29
sense of responsibility, lessened culpability, and a greater capacity for change and

rehabilitation than adults), the Court concluded that the penological justifications to

support the imposition of life without parole sentences for non-homicide crimes

committed by juveniles ‒ retribution, deterrence, incapacitation and rehabilitation ‒ were

not met. See id. at 71-74.

       The United States Supreme Court therefore held that the absence of a lawful

justification for the sentence, “the limited culpability of juvenile non[-]homicide offenders

and the severity of life without parole sentences all lead to the conclusion that the

sentencing practice under consideration is cruel and unusual,” and forbidden by the

Eighth Amendment to the United States Constitution. Id. at 74. The Eighth Amendment

requires that a sentencing court take into account a defendant’s youthfulness at the time

he/she committed the offense. Id. at 76.

       The Court explained that although its holding does not require a State to

guarantee a juvenile’s release following conviction for a non-homicide offense, a court

must provide the defendant with “some meaningful opportunity to obtain release based

on demonstrated maturity and rehabilitation.” Id. at 75.

              Those who commit truly horrifying crimes as juveniles may
              turn out to be irretrievable, and thus deserving of
              incarceration for the duration of their lives. The Eighth
              Amendment does not foreclose the possibility that persons
              convicted of non[-]homicide crimes committed before
              adulthood will remain behind bars for life. It does prohibit
              States from making the judgment at the outset that those
              offenders never will be fit to reenter society.

Id.

                                  C. Miller v. Alabama




                                     [J-118-2016] - 30
       Two years later, in Miller v. Alabama, the United States Supreme Court

considered the proportionality of life-without-parole sentences for juveniles convicted of

homicide offenses. It concurrently considered the cases of two juveniles ‒ Kuntrell

Jackson, who at the age of fourteen, participated in a failed armed robbery of a

convenience store during which his accomplice shot and killed the store clerk; and Evan

Miller, who at the age of fourteen, bludgeoned and intentionally incinerated an adult

neighbor, with whom he had been smoking marijuana, after the neighbor caught him

stealing money from his wallet.       In both cases, the offenses for which they were

convicted (capital felony murder for Jackson and murder in the course of arson for

Miller), carried a mandatory sentence of life in prison without the possibility of parole.

       Relying on the findings it made in Roper and Graham and the scientific studies

upon which they were based, the United States Supreme Court reiterated “that the

distinctive attributes of youth diminish the penological justifications for imposing the

harshest sentences on juvenile offenders, even when they commit terrible crimes.”

Miller, 567 U.S. at 471-72. The Court observed that “none of what it said about children

‒ about their distinctive (and transitory) mental traits and environmental vulnerabilities ‒

is crime-specific.” Id. at 473. Rather, as in Roper and Graham, the Court reasoned that

“[d]eciding that a ‘juvenile offender forever will be a danger to society’ would require

‘mak[ing] a judgment that [he] is incorrigible’ ‒ but ‘incorrigibility is inconsistent with

youth.’” Id. at 472-73 (quoting Graham, 560 U.S. at 72).

       In contravention of the “foundational principle” set forth in Roper and Graham,

the mandatory sentencing statutes at issue in Miler imposed the States’ most severe

term of imprisonment, treating him as though he was an adult, “removing youth from the




                                     [J-118-2016] - 31
balance” and “prohibit[ing] a sentencing authority from assessing whether the law’s

harshest term of imprisonment proportionately punishes a juvenile offender.” Id. at 474.

Once again likening a life-in-prison sentence for a juvenile to the death penalty, the

Miller Court concluded that sentencing for juveniles must be individualized. See id. at

474-78. This requires consideration of the defendant’s age at the time of the offense,

as well as “its hallmark features,” including:

              immaturity, impetuosity, and failure to appreciate risks and
              consequences[;] … the family and home environment that
              surrounds him ‒ and from which he cannot usually extricate
              himself ‒ no matter how brutal or dysfunctional[;] … the
              circumstances of the homicide offense, including the extent
              of his participation in the conduct and the way familial and
              peer pressures may have affected him[;] … that he might
              have been charged and convicted of a lesser offense if not
              for incompetencies associated with youth ‒ for example, his
              inability to deal with police officers or prosecutors (including
              on a plea agreement) or his incapacity to assist his own
              attorneys[;] … [and] the possibility of rehabilitation … when
              the circumstances [(the youthfulness of the offender)] most
              suggest it.

Id. at 477-78. See also id. at 476 (stating that in addition to age, a court must also give

consideration to a juvenile offender’s “background and mental and emotional

development … in assessing his culpability”) (quoting Eddings, 455 U.S. at 116).

       The Court thus held that a sentencing scheme that mandates the imposition of a

life-without-parole sentence for a juvenile violates the Eighth Amendment to the United

States Constitution.    “By making youth (and all that accompanies it) irrelevant to

imposition of that harshest prison sentence, such a scheme poses too great a risk of

disproportionate punishment.” Id. at 479. The Court did not foreclose the possibility

that a child could be sentenced to life without parole in a homicide case, but

emphasized its view that “appropriate occasions for sentencing juveniles to this



                                     [J-118-2016] - 32
harshest possible punishment will be uncommon,” especially in light of the difficulty

observed in Roper and Graham, “even for expert psychologists” to “distinguish[] at this

early age between ‘the juvenile offender whose crime reflects unfortunate yet transient

immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’”

Id. at 479-80 (quoting Roper, 543 U.S. at 573; Graham, 560 U.S. at 73).

       In so holding, the Court took pains to differentiate the sentencing considerations

required from a court’s resolution of a request to transfer a matter to the jurisdiction of

the juvenile court. The Miller Court observed that the question to be determined at a

transfer hearing is markedly different from that posed at a sentencing proceeding:

                 Because many juvenile systems require that the offender be
                 released at a particular age or after a certain number of
                 years, transfer decisions often present a choice between
                 extremes: light punishment as a child or standard sentencing
                 as an adult (here, life without parole). … Discretionary
                 sentencing in adult court would provide different options:
                 There, a judge or jury could choose, rather than a life-
                 without-parole sentence, a lifetime prison term with the
                 possibility of parole or a lengthy term of years. It is easy to
                 imagine a judge deciding that a minor deserves a (much)
                 harsher sentence than he would receive in juvenile court,
                 while still not thinking life-without-parole appropriate.

Id. at 488-89.

                                D. Montgomery v. Louisiana

       In January 2016, the United States Supreme Court decided Montgomery v.

Louisiana, holding that “Miller announced a substantive rule that is retroactive in cases

on collateral review.”8 Montgomery, 136 S.Ct. at 732. The defendant in that case,



8
   The decision in Montgomery overturned this Court’s decision in Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013), wherein a majority of this Court held, based upon
the framework announced in Teague v. Lane, 489 U.S. 288 (1989) (plurality), that the
(continued…)

                                       [J-118-2016] - 33
Henry Montgomery, was then sixty-nine years old, having spent approximately fifty

years in prison on a mandatory term of life for the killing of a Louisiana law enforcement

officer when he was seventeen years old. The Court observed (without confirming) that

while incarcerated, Montgomery had reportedly transitioned “from a troubled, misguided

youth to a model member of the prison community.” Id. at 736.

       In explaining the basis for its decision, the Montgomery Court stated that the

legal principles established in Roper and Graham, and applied in Miller, regarding the

differences between adults and juveniles and a juvenile’s resultant “diminished

culpability and greater prospects for reform” are generally applicable to all juveniles.

See id. at 732-33. “[T]he penological justifications for life without parole collapse in light

of the ‘distinctive attributes of youth.’” Id. at 734 (quoting Miller, 567 U.S. at 472). The

Court clarified that Miller requires far more than mere consideration of an offender’s age

prior to imposing a life-without-parole sentence, as such a sentence “still violates the

Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient

immaturity.’”   Id. (quoting Miller, 567 U.S. at 479).          Life without parole “is a

disproportionate sentence for all but the rarest of children, those whose crimes reflect

irreparable corruption,” “permanent incorrigibility,” and “such irretrievable depravity that

rehabilitation is impossible,” thereby excluding “the vast majority of juvenile offenders”

from facing a sentence of life in prison without the possibility of parole. Id. at 726, 733,

734 (internal quotation marks omitted).



(…continued)
pronouncement in Miller was procedural, not substantive, in nature, and thus did not
apply to judgments that were final at the time of Miller. See Cunningham, 81 A.3d at 4-
11.



                                     [J-118-2016] - 34
       “Miller requires a sentencer to consider a juvenile offender’s youth and attendant

characteristics before determining that life without parole is a proportionate sentence.”

Id. at 734.   Although the Montgomery Court acknowledged that Miller contains no

“formal factfinding requirement” prior to a sentencing court imposing a sentence of life

without the possibility of parole on a juvenile, the Court stated that this omission was

purposeful so as to permit the States to sovereignly administer their criminal justice

systems and establish a procedure for the proper implementation of Miller’s holding. Id.

at 735. It emphasized, however, that a sentence of life without the possibility of parole

imposed upon a juvenile offender is unconstitutional if the crime reflected the juvenile’s

“transient immaturity.” Id.

       Despite reserving to the States the task of prescribing the procedure for

implementing Miller, the High Court observed, rather than relitigating the sentence of

every affected juvenile, States could simply entitle all juvenile homicide offenders to be

eligible for parole. This would “ensure[] that that juveniles whose crimes reflected only

transient immaturity ‒ and who have since matured ‒ will not be forced to serve a

disproportionate sentence in violation of the Eighth Amendment.” Id. at 736. Should

offenders exhibit an inability to reform, they will “continue to serve their sentences.” Id.

                                    V. Batts’ Sentence

       Turning to the issues raised in this appeal, we begin by addressing Batts’

sentencing challenge.     He contends that although the sentencing court considered

factors relating to his age and development, this was insufficient to satisfy the mandates

of Miller and Montgomery. Because the sentencing court found, based upon expert

testimony, that “Batts has demonstrated some capacity for change,” and that it was at




                                     [J-118-2016] - 35
least possible that “significant change” could occur with years of therapy, this precluded

the institution of a life-without-parole sentence. Batts’ Brief at 29-30 (citing, in part,

Sentencing Court Opinion, 8/27/2014, at 54, 58-59). Batts emphasizes that the United

States Supreme Court did not require a sentencing court to be positive that the

defendant is capable of rehabilitation and change; in fact, he asserts, the opposite is

true, as the sentencing court must make a finding that the juvenile is irreparably corrupt

before a sentence of life without parole can be imposed.

      Batts states that his sentence of life without parole is illegal, as the sentencing

court’s decision violates the dictates of Miller and Montgomery. He contends that we

must employ a de novo standard of appellate review of the sentencing court’s legal

conclusion regarding his eligibility for a life-without-parole sentence. Id. at 29, 40. He

further asserts that we should review de novo each of the factors considered by the

sentencing court based upon the evidence presented. See id. at 41-57.

      The Commonwealth and its amicus, the Pennsylvania District Attorneys

Association (“DAA”), disagree. They assert that the sentencing court adhered to the

remand order, considered all of the required factors, and properly found that Batts was

subject to a sentence of life in prison without the possibility of parole. Commonwealth’s

Brief at 52-53; DAA’s Brief at 14-15. They further contend that the propriety of a life-

without-parole sentence imposed on a juvenile is not a question of the legality of the

sentence, as the sentencing decision rests in the discretion of the sentencing court and

therefore, appellate review should be conducted using an abuse of discretion standard.9



9
   “[A]n abuse of discretion is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the judgment exercised is manifestly
(continued…)

                                    [J-118-2016] - 36
Commonwealth’s Brief at 39-44; DAA’s Brief at 20 (stating that a de novo review is

applicable for questions of law, which are not present in appellate review of a life-

without-parole sentence imposed upon a juvenile offender).

                   A. Level of Scrutiny for Batts’ Sentencing Claim

       The question of the appropriate level of scrutiny for appellate review of a non-

mandatory sentence of life without parole imposed upon a juvenile is an issue of first

impression before this Court.10 For appellate review purposes, challenges to a criminal

sentence typically fall into one of two categories, implicating either the legality of the

sentence or the discretionary aspects of the sentence. This distinction is critical, as the

determination also encompasses matters of issue preservation, this Court’s jurisdiction

to decide the question presented, and the level of deference the reviewing court must

give to the decision of the sentencing court.

       A challenge to the legality of a particular sentence may be reviewed by any court

on direct appeal; it need not be preserved in the lower courts to be reviewable and may

even be raised by an appellate court sua sponte. Commonwealth v. Barnes, 151 A.3d

121, 124 (Pa. 2016); see also Montgomery, 136 S.Ct. at 731 (stating that because “[a]

conviction or sentence imposed in violation of a substantive rule is not just erroneous

but contrary to law and, as a result, void[, i]t follows, as a general principle, that a court

has no authority to leave in place a conviction or sentence that violates a substantive


(…continued)
unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the
evidence or the record, discretion is abused.” Commonwealth v. Safka, 141 A.3d 1239,
1249 (Pa. 2016).
10
   This is a question of law, for which our standard of review is de novo.
Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa. 2014).



                                     [J-118-2016] - 37
rule”) (citing Ex parte Siebold, 100 U.S. 371, 376 (1880)).       As we have previously

explained, our decisions pertaining to questions of sentencing illegality “have not always

been smooth,” with “complexities” arising “from disagreement among the members of

the Court concerning whether a particular claim implicates the legality of a sentence.”

Commonwealth v. Spruill, 80 A.3d 453, 460-61 (Pa. 2013).             There is no dispute,

however, that a claim challenging a sentencing court’s legal authority to impose a

particular sentence presents a question of sentencing legality.                 See, e.g.,

Commonwealth v. Vasquez, 744 A.2d 1280, 1282 (Pa. 2000) (question of “whether the

trial court had the authority to impose a statutorily mandated fine” is a challenge to

sentencing legality); Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005) (claim

regarding the court’s authority to impose a particular sentence implicates the legality of

the sentence); In re M.W., 725 A.2d 729, 731 (Pa. 1999) (same).

       The United States Supreme Court decisions that control in this matter

unambiguously permit the imposition of a life-without-parole sentence upon a juvenile

offender only if the crime committed is indicative of the offender’s permanent

incorrigibility; that the crime was not the result of the “unfortunate yet transient

immaturity” endemic of all juveniles. See Montgomery, 136 S.Ct. at 726, 734; Miller,

567 U.S. at 479; see also Graham, 560 U.S. at 73; Roper, 543 U.S. at 573. Therefore,

for a sentence of life without parole to be proportional as applied to a juvenile murderer,

the sentencing court must first find, based on competent evidence, that the offender is

entirely unable to change. It must find that there is no possibility that the offender could

be rehabilitated at any point later in his life, no matter how much time he spends in

prison and regardless of the amount of therapeutic interventions he receives, and that




                                     [J-118-2016] - 38
the crime committed reflects the juvenile’s true and unchangeable personality and

character. Montgomery, 136 S.Ct. at 733 (stating that pursuant to Miller, life without

parole is only justified for “the rare juvenile offender who exhibits such irretrievable

depravity that rehabilitation is impossible”).

       Under Miller and Montgomery, a sentencing court has no discretion to sentence

a juvenile offender to life without parole unless it finds that the defendant is one of the

“rare” and “uncommon” children possessing the above-stated characteristics, permitting

its imposition. Montgomery, 136 S.Ct. at 726, 734; Miller, 567 U.S. at 479; see Graham,

560 U.S. at 73; Roper, 543 U.S. at 572-73. A sentence of life in prison without the

possibility of parole for a murder committed when the defendant was a juvenile is

otherwise disproportionate and unconstitutional under the Eighth Amendment.

Montgomery, 136 S.Ct. at 734, 735.

       Thus, in the absence of the sentencing court reaching a conclusion, supported by

competent evidence, that the defendant will forever be incorrigible, without any hope for

rehabilitation, a life-without-parole sentence imposed on a juvenile is illegal, as it is

beyond the court’s power to impose. See Vasquez, 744 A.2d at 1282; Shiffler, 879 A.2d

at 189; In re M.W., 725 A.2d at 731. As stated by the Montgomery Court, “when a State

enforces a proscription or penalty barred by the Constitution, the resulting conviction or

sentence is, by definition, unlawful.” Montgomery, 136 S.Ct. at 729-30. As such, we

must review the sentencing court’s legal conclusion that Batts is eligible to receive a

sentence of life without parole pursuant to a de novo standard and plenary scope of

review. Commonwealth v. McClintic, 909 A.2d 1241, 1245 (Pa. 2006). Because this

legal conclusion is premised upon the presentation of testimony and the sentencing




                                      [J-118-2016] - 39
court’s credibility determinations, it presents a mixed question of fact and law. In such

circumstances, we defer to the findings of fact made by the sentencing court as long as

they are supported by competent evidence, but give no deference to that court’s legal

conclusions. Pennsylvania Nat. Mut. Cas. Ins. Co. v. St. John, 106 A.3d 1, 13 (Pa.

2014); Commonwealth v. James, 69 A.3d 180, 186 (Pa. 2013); Commonwealth v.

Spotz, 18 A.3d 244, 259 (Pa. 2011); In re Condemnation by Urban Redevelopment

Auth. of Pittsburgh, 913 A.2d 178, 183 (Pa. 2006).

                           B. The Legality of Batts’ Sentence

       Here, although the sentencing court recited the words “unfortunate yet transient

immaturity” when sentencing Batts, and made a finding that Batts’ commission of

murder was not the result thereof, see Sentencing Court Opinion, 8/27/2014, at 62,11

the sentencing court also repeatedly made the conflicting finding that there remained a

possibility that Batts could be rehabilitated:

          concluding, “based on the experts’ opinions, Batts … would need years of
           therapy to achieve meaningful personality change and rehabilitation” (id. at
           53);

          classifying Batts’ amenability to treatment as “uncertain[]” (id. at 58);

          finding that Batts “may ultimately prove to be amenable to treatment” and,
           according to the expert testimony, “rehabilitation will require years of
           psychotherapy,” which the court found “weighs in favor of an extended period
           of incarceration” (id. at 58-59);

          finding that Batts’ horrific childhood experiences “suggest that [he] might
           benefit from psychotherapy and other forms of rehabilitation” (id. at 59);



11
    In its written opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate
Procedure, the sentencing court quotes extensively from the lengthy and detailed
findings it made at the May 2, 2014 sentencing hearing. For the ease of the reader, we
cite only to the sentencing court’s opinion in our analysis of the arguments raised.



                                      [J-118-2016] - 40
         finding, based on scientific research on the adolescent brain, that Batts’
          young age at the time of the crimes weighed in favor of his “amenability to
          treatment and rehabilitation and [his] capacity for change” (id.);

         considering Batts’ academic history, participation in sports, his vocational and
          educational pursuits while in prison, the courses in which he has voluntarily
          participated while in prison, the relationship he has with his family (particularly
          with his younger brother), and the absence of any criminal history as “factors
          [that] weigh in favor in assessing [his] capacity for change” (id. at 59-60);

         finding, based on expert testimony, that his “young age and the insights [he
          has] gained into the psychological issues that led [him] to commit [his]
          crimes,” would allow his psychological condition to improve if “given the
          benefit of years of psychotherapy and other forms of rehabilitation” (id. at 60);

         indicating that the expert opinions support the conclusion that he could be
          rehabilitated with years of therapy (id. at 61, 115);

         stating that it was uncertain whether it would ever be safe to release Batts
          from prison (id. at 119);

         stating “the strong need for protection of the public outweighed Batts’[] limited
          amenability to treatment and potential for rehabilitation” (id. at 121).

Our review of the record finds ample positive support relative to Batts’ potential for

rehabilitation. See supra, pp.14-19.

      As we read the sentencing court’s opinion, it becomes clear that its conclusion

that Batts’ actions were not the result of his “unfortunate yet transient immaturity” was

based exclusively on the fact that the murder was “deliberate and premediated.” See

Sentencing Court Opinion, 8/27/2014, at 59, 62. The sentencing court went on to say,

“I’m not suggesting that premeditated murder can never be considered impulsive for

purposes of sentencing. There might well be circumstances under which premeditated

murder could be the product of poor judgment, lack of foresight, susceptibility to peer

pressure and weak impulse control. That is not the case here.” Id. at 82. And yet, it

was the sentencing court’s view that because Batts was not “caught up in the heat of a

stressful confrontation,” without “time to plan and deliberate” or an “appreciation for


                                    [J-118-2016] - 41
what might happen next,” there could be no finding that the murder was the result of

youthful impulsiveness or poor judgment. Id. Given this perspective, the conviction of

any juvenile of first-degree murder would require the imposition of a sentence of life

without parole, as first-degree murder in Pennsylvania is, by definition “deliberate and

premeditated.” 18 Pa.C.S. § 2502(a) (“A criminal homicide constitutes murder of the

first degree when it is committed by an intentional killing.”).

       The view expressed by the sentencing court contravenes the relevant United

States Supreme Court precedent.            Miller and Montgomery directly address the

sentencing of juveniles who commit intentional murders. The Miller Court emphasized

that “the distinctive attributes of youth diminish the penological justifications for imposing

the harshest sentences on juvenile offenders, even when they commit terrible crimes.”

Miller, 567 U.S. at 472. “Miller’s central intuition” is “that children who commit even

heinous crimes are capable of change.” Montgomery, 136 S.Ct. at 736; see also, e.g.,

Miller, 567 U.S. at 468 (indicating that Miller, prior to delivering the final blow to his

victim’s skull, said “I am God, I’ve come to take your life”). The sentencing court’s

reasoning impermissibly overrides the United States Supreme Court’s repeated

admonitions, outlined above, that juvenile first-degree murderers are presumptively less

culpable than their adult counterparts and, as such, should be sentenced differently.

       Moreover, although there is no question that the sentencing court thoroughly and

completely reviewed the record and thoughtfully considered the testimony presented at

the resentencing hearing,12 it overlooked the main premise of the United States



12
   The sentencing court issued its findings for its sentencing decision on the record,
which span 66 pages of transcript, and further authored a 127-page opinion pursuant to
(continued…)

                                      [J-118-2016] - 42
Supreme Court’s jurisprudence regarding juvenile sentencing issued over the last

twelve years.    The High Court has held, as a matter of law, “that children are

constitutionally different from adults for purposes of sentencing,” in that they “have

diminished culpability and greater prospects for reform,” making them “less deserving of

the most severe punishments.” Miller, 567 U.S. at 471 (quoting Graham, 560 U.S. at

68).   This legal conclusion was based on the determination that juveniles (1) lack

maturity and have “an underdeveloped sense of responsibility,” which results in

reckless, impulsive and unnecessary risk-taking behaviors; (2) are highly vulnerable to

peer pressure and negative influence resulting from their inability to control their

environments; and (3) have characters and personalities that are not fully formed or

fixed, and struggle to figure out their identities. Id. (citing Roper, 543 U.S. at 569-70).

       Without providing any basis to differentiate Batts’ decision making from the

typical teenager contemplated in Roper, Graham and Miller, the sentencing court found

that Batts, at the age of fourteen, “made a purposeful choice to move out of his parents’

home” and to join a gang, with knowledge that it “was a violent criminal organization and

that he would be asked to commit violent criminal acts.” Sentencing Court Opinion,

8/27/2014, at 49-50. The court further found that although Batts was subjected to peer

pressure at the time of the murder, the “peer pressure was not imposed upon [] Batts”;

instead he “sought out and embraced gang membership,” and therefore, this peer



(…continued)
Pa.R.A.P. 1925(a) thoroughly detailing what it considered when sentencing Batts in
response to the issues raised on appeal before the Superior Court. In both instances,
the sentencing court included specifics about Batts’ childhood, academics, athletics,
and provided a detailed account of the testimony received from both parties at the
resentencing hearing.



                                     [J-118-2016] - 43
pressure did not diminish his culpability. Id. at 50-51. These findings contravene the

Supreme Court’s unambiguous instruction not to treat juveniles as “miniature adults,”

proceeding as though they not children. See Miller, 567 U.S. at 481. They ignore the

principal tenet of Roper, Graham, Miller and Montgomery, and the scientific studies

regarding juvenile brain development that the Court adopted and upon which it relied.

See id. at 474, 477-78, 481.

      The sole evidentiary support for the sentencing court’s conclusions in this regard

was the testimony and report of the Commonwealth’s expert, Dr. Michals. It was Dr.

Michals’ opinion that Batts made a “purposeful decision” and “deliberate choice” to

commit these crimes. N.T., 5/1/2014, at 51, 53. Dr. Michals, however, provided no

basis for his conclusion that Batts had the ability to make sound, reasoned decisions at

the age of fourteen ‒ a skill the Supreme Court determined is generally eclipsed by a

juvenile’s impetuousness and immaturity.      In fact, Dr. Michals was not only of the

opinion that Batts’ personality was likely fully formed and fixed at the age of fourteen,

but that personalities of people in general are not subject to change. Specifically, Dr.

Michals testified, “Characteristics can change but it’s very difficult to make changes to

the basic structure of our personality.” Id. at 59. Though he acknowledged that he

“can’t predict the future,” he was of the opinion that the personality of “somebody who is

14” likely will not change over time. Id. He went on to say that “it’s difficult to change

our underlying personality traits,” and in his opinion, this “applies to everybody.” Id. at

60; see also id. at 51 (Dr. Michals opining that “we are who we are as a result of

biological genetic makeup and merely [sic] life experiences … the personality is or

character is a definition of ourselves.”).      Indeed, despite the Supreme Court’s




                                    [J-118-2016] - 44
conclusion to the contrary, Dr. Michals maintained that “research dealing with

adolescent behavioral and brain development” is inconclusive, with “research findings

… still in progress.” Dr. Michals’ Report, 3/12/2014, at 19; but see Miller, 567 U.S. at

472 n.5 (“The evidence presented to us in these cases indicates that the science and

social science supporting Roper’s and Graham’s conclusions have become even

stronger.”).

       The testimony and conclusions espoused by Dr. Michals are in direct opposition

to the legal conclusion announced by the High Court and the facts (scientific studies)

underlying it. Dr. Michals’ testimony therefore does not constitute competent evidence

and cannot provide support for a conclusion that Batts’ actions were not the result of

transient immaturity or that he is permanently incorrigible.        See Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 67 (1996) (stating that when the United States Supreme

Court issues a decision, courts are bound “not only [by] the result[,] but also those

portions of the opinion necessary to that result”); Commonwealth v. Jemison, 98 A.3d

1254, 1257 (Pa. 2014) (“Pursuant to the Supremacy Clause of the United States

Constitution … this Court, like all state courts, is bound by decisions of the U.S.

Supreme Court with respect to the federal Constitution and federal substantive law.”).

Moreover, the numerous findings chronicled earlier in the Opinion accepting the

possibility of Batts’ potential rehabilitation indicate that the sentencing court did not fully

embrace Dr. Michals’ opinion.

       Based on our review of the sentencing court’s findings and the bases therefor,

we conclude that a sentence of life in prison without the possibility of parole for Batts is

disproportionate under Miller and Montgomery and thus violates the Eighth Amendment




                                      [J-118-2016] - 45
to the United States Constitution.     Our decision here should not be interpreted as

depreciating the seriousness of the reprehensible crimes Batts committed.             His

senseless and needless acts of violence left one teenager dead and another seriously

injured, and the victims’ families are living with the consequences. There is no question

that Batts, as a fourteen-year-old murderer, must be held accountable and serve a

sentence commensurate with those acts. Pursuant to the evidence presented before

the sentencing court, the findings of the sentencing court regarding the possibility of

rehabilitation, and the clear Supreme Court precedent that controls in this matter,

however, upon resentencing Batts, the court “must provide [Batts] some meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation.” Miller,

567 U.S. at 479 (quoting Graham, 560 U.S. at 74).

                                 VI. Validity of Batts I

      As previously discussed, in Batts I, this Court determined that for juveniles

convicted prior to Miller for whom a sentence of life without parole was unconstitutional,

the prohibition against paroling inmates sentenced to serve life in prison could be

severed from section 6137(a) of the Parole Code. Thus, a court may sentence affected

defendants to a minimum term-of-years sentence and a maximum sentence of life in

prison, exposing these defendants to parole eligibility upon the expiration of their

minimum sentences. See 61 Pa.C.S. § 6137(a)(3).

      In the context of a challenge to the legality of the sentencing decision announced

in Batts I and in light of intervening decisions from this Court, Batts urges us to

reconsider the argument we previously rejected ‒ that Pennsylvania’s first-degree

murder sentencing scheme is unconstitutional and therefore, he must be sentenced as




                                     [J-118-2016] - 46
if he were convicted of third-degree murder as a lesser included offense instead. Batts’

Brief at 62. “Rather than repeat the arguments presented” in the amicus brief that had

already been filed in this Court by the Pennsylvania Association of Criminal Defense

Lawyers (“PACDL”), Batts adopts its argument in support of the claim. Id.

       PACDL frames this issue as a “non-waivable question concerning the legality of

the sentence,” as Batts was resentenced pursuant to Batts I, which, it contends,

announced an impermissible sentencing construct. PACDL’s Brief at 2. In PACDL’s

view, this Court’s resolution of this issue in Batts I (excising the unconstitutional part of

section 6137(a)(1) prohibiting parole in the case of first-degree murder committed by a

juvenile from the remainder of the parole statute) constitutes an impermissible use of

our severance authority. This is because, according to PACDL, the remaining portion of

the statute is “‘incomplete’ or ‘incapable of being executed,’’ because of another

statutory requirement that a term of years sentence have a minimum sentence that is

not greater than half of the maximum sentence ‒ a mathematical impossibility when the

maximum term of incarceration is life.       Id. at 10-11; see 42 Pa.C.S. § 9756(b)(1)

(requiring that a minimum term of imprisonment “shall not exceed one-half of the

maximum sentence imposed”).

       Severance also fails, according to PACDL, because the General Assembly

excluded pre-Miller convictions from the sentencing scheme announced in section

1102.1, and we therefore cannot presume the General Assembly would have enacted

the remaining portions of section 6137(a) without the limitation on the ability to parole a

juvenile sentenced to life in prison. PACDL’s Brief at 11. As there is no legislatively

authorized sentence for juveniles convicted of first-degree murder, Batts could not be




                                     [J-118-2016] - 47
sentenced for the crime of first-degree murder. Id. at 12-13 (citing Characteristics of the

Substantive Criminal Law, 1 Subst. Crim. L. § 1.2 (2d ed.) (“[A] crime is made up of two

parts, forbidden conduct and a prescribed penalty. The former without the latter is no

crime.”)). Further, as confirmed in this Court’s recent decisions in Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015), and Commonwealth v. Wolfe, 140 A.3d 651 (Pa.

2016), it is impermissible for the judiciary to “rewrite” a sentencing statute to make it

conform to the constitutional commands of a United States Supreme Court decision.

PACDL’s Brief at 13-14 (citing Hopkins, 117 A.3d at 261, 262; Wolfe, 140 A.3d at 662).

       Because there is no lawful penalty for a juvenile convicted of first-degree murder,

PACDL asserts that Batts’ current sentence is illegal, and he must be resentenced on

the charge of third-degree murder, which carries a maximum penalty of forty years of

incarceration.13   Id. at 15-16; 18 Pa.C.S. § 1102(d).      In support of this contention,

PACDL relies upon the same case law that Batts presented in his supplemental brief to

this Court in Batts I. See PACDL’s Brief at 15 (citing Rutledge v. United States, 517

U.S. 292 (1996); Commonwealth v. Story, 440 A.2d 488 (Pa. 1981); Commonwealth v.

Bradley, 295 A.2d 842 (Pa. 1972)).

       PACDL concludes its argument by contending that following the decision in

Montgomery, Batts I cannot stand because the Court failed to ensure that a sentence of

life without parole was “reserved for highly unusual cases,” “demonstrated quite



13
   The Commonwealth sought leave to file a post-submission communication pursuant
to Pa.R.A.P. 2501(a) in the form of a brief filed by the Philadelphia Office of the District
Attorney before the Philadelphia County Court of Common Pleas which, inter alia,
addressed this argument. It contains no new authority or any arguments that could not
have been raised in the Commonwealth’s original responsive brief filed in this matter.
We therefore deny this request.



                                     [J-118-2016] - 48
dramatically in the resentencing of Mr. Batts himself.” Id. at 17-18. Further, as argued

throughout its amicus brief, “the reasoning and holding” of Batts I “were clearly

erroneous    under    prior   and   subsequent     decisions”   regarding    severance    of

unconstitutional portions of statutes. Id. at 18-19.

       The Commonwealth, on the other hand, asserts that our disposition in Batts I

was correct and should not be revisited.         Commonwealth’s Brief at 59.        Further,

because Batts did not seek allowance of appeal for this Court to address this claim, it is

not appropriate for this Court to consider the question. Id. (citing Pa.R.A.P. 1115(a)(3);

Commonwealth v. Barnes, 924 A.2d 1202, 1203 (Pa. 2007)).

       While it is true that Batts did not request that this Court address this precise issue

in his petition for allowance of appeal, Batts and PACDL assert that the sentencing

protocol announced in Batts I is statutorily incapable of execution, there is no lawful

punishment for a juvenile convicted of first-degree murder prior to the date of the Miller

decision, and that his sentence for anything other than third-degree murder is illegal.

See Commonwealth ex rel. Varronne v. Cunningham, 73 A.2d 705, 706 (Pa. 1950)

(indicating that without a penalty for conduct that is proscribed by the General Assembly

there is no crime); see also Characteristics of the Substantive Criminal Law, 1 Subst.

Crim. L. § 1.2(d) (2d ed.). The argument implicates the legality of his sentence, and

therefore is not subject to waiver. Barnes, 151 A.3d at 124; Commonwealth v. Dickson,

918 A.2d 95, 99 (Pa. 2007). Moreover, as noted, Batts and PACDL argue against the

legality of the sentence based, in part, upon decisions of this Court rendered after our




                                     [J-118-2016] - 49
decision in Batts I. Thus, we believe that our conclusion on the legality of sentencing

issue in Batts I warrants further development.14

                                       A. Severance

         It is the law of this Commonwealth that every provision of every statute is

presumed to be severable. 1 Pa.C.S. § 1925. If a provision of a statute is invalidated

for any reason, or as applied to any situation or person, a court must sever it from the

remaining, valid portion of the statute unless (1) the remaining valid provisions depend

on and “are so essentially and inseparably connected with” the voided provision that the

court could not presume that the General Assembly would have enacted the valid

portion of the statute without the now-voided portion, or (2) the remaining portions of the

statute “are incomplete and are incapable of being executed in accordance with

legislative intent.” Id.; Robinson Twp. v. Commonwealth, 147 A.3d 536, 558-59 (Pa.

2016).

         The relevant provisions of section 6137 state:

               The [parole] board may parole subject to consideration of
               guidelines established under 42 Pa.C.S. § 2154.5 (relating to
               adoption of guidelines for parole) and may release on parole
               any inmate to whom the power to parole is granted to the
               board by this chapter, except an inmate condemned to
               death or serving life imprisonment, whenever in its
               opinion:

               (i) The best interests of the inmate justify or require that the
               inmate be paroled.

14
    Moreover, since we granted allowance of appeal, in part, to fashion an appropriate
procedure to sentence juveniles convicted of first-degree murder, see Batts, 135 A.3d
176, at ¶ 1(i), the validity and legality of our decision in Batts I is fairly encompassed by
this question. It is thus properly before this Court for review. Pa.R.A.P. 1115(a)(3)
(“Only the questions set forth in the petition, or fairly comprised therein, will ordinarily be
considered by the court in the event an appeal is allowed”).



                                      [J-118-2016] - 50
               (ii) It does not appear that the interests of                the
               Commonwealth will be injured by the inmate’s parole.

61 Pa.C.S. § 6137(a)(1) (emphasis added).

       There is no argument raised, and we can perceive of no reason to conclude, that

the prohibition against paroling an individual condemned to serve life in prison is

inseparable from or essential to the remainder of the parole statute. Rather, as stated

above, the argument presented by Batts and PACDL is that without this prohibition, the

parole statute does not operate as intended by the General Assembly.

       The presumption of severability pursuant to section 1925 finds its roots in the

Court’s longstanding “duty to declare a statute constitutional if this can reasonably be

done.” Triumph Hosiery Mills, Inc. v. Commonwealth, 364 A.2d 919, 921 (Pa. 1976)

(quoting Commonwealth v. Girard Life Insurance Co., 158 A. 262, 264 (Pa. 1932)). We

must also presume that the General Assembly carefully chose to include every

provision of every statute it enacts. See 1 Pa.C.S. § 1921(a). As such, in recognition of

the requirement to salvage as much of a statute as is constitutionally possible, upon

finding a portion of a statute is unconstitutional, the “touchstone” for our determination of

legislative intent is to answer the question of “whether the [L]egislature would have

preferred what is left of its statute to no statute at all.” D.P. v. G.J.P., 146 A.3d 204, 216

(Pa. 2016) (quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320,

330 (2006)).

       PACDL challenges the sentencing protocol announced in Batts I based on its

conclusion that fashioning a legal sentence is impossible in light of section 9756(b)(1),

which provides: “The court shall impose a minimum sentence of confinement which




                                     [J-118-2016] - 51
shall not exceed one-half of the maximum sentence imposed.” 42 Pa.C.S. § 9756(b)(1).

PACDL is correct that there is no way to accurately calculate half of a life sentence.

This does not, however, render Batts I’s severance of section 6137(a) impermissible, as

PACDL baldly claims.

      The interplay between section 6137(a) and section 9756(b)(1) was not raised by

the parties nor addressed in Batts I. However, our holding implicitly required severance

of section 9756(b)(1)’s requirement that a minimum sentence can be no more than half

of the maximum sentence for juveniles convicted of first-degree murder prior to Miller.

See Batts I, 66 A.3d at 297 (concluding that a juvenile convicted of first-degree murder

prior to Miller faced “a mandatory maximum sentence of life imprisonment as required

by [s]ection 1102(a), accompanied by a minimum sentence determined by the common

pleas court upon resentencing,” and that this sentencing scheme is “in accord with the

dictates of the Eighth Amendment as set forth in Miller, as well as the Pennsylvania

Legislature's intent as reflected in the relevant statutory provisions”). The necessity of

this additional severance to save the sentencing scheme for juveniles convicted of first-

degree murder prior to Miller does not create an impermissible obstacle since, as stated

above, “[t]he provisions of every statute [are] severable.” 1 Pa.C.S. § 1925 (emphasis

added); see also, e.g., Commonwealth v. Williams, 832 A.2d 962, 986 (Pa. 2003).

      Removing section 9756(b)(1)’s mandate does nothing more than eliminate the

ceiling for the minimum term of imprisonment a juvenile sentenced to life with parole

may receive.15   This aligns with the current expression of legislative intent for the



15
   This is not the first time this Court has severed the minimum sentence ceiling from
section 9756(b)(1) in a given sentencing context. In Commonwealth v. Ramos, 83 A.3d
(continued…)

                                    [J-118-2016] - 52
sentencing of juveniles convicted of first-degree murder. Section 1102.1(a) requires the

imposition of a mandatory minimum sentence for juveniles convicted of first-degree

murder. Subsection (e) makes clear that this is only the minimum sentence required,

stating, “Nothing under this section shall prevent the sentencing court from imposing a

minimum sentence greater than that provided in this section.” 18 Pa.C.S. § 1102.1(e).

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.16 See Commonwealth v. Gordon, 942 A.2d

174, 182 (Pa. 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,

926 A.2d 957, 966-67 (Pa. 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).

      Further, we reiterate the conclusion we reached in Batts I: we have found no

support for the proposition that juveniles convicted of first-degree murder pre-Miller



(…continued)
86 (Pa. 2013), we held that the then-valid mandatory minimum sentence under 42
Pa.C.S. § 9712.1(a) of five years of imprisonment was not illegal despite the fact that
the maximum allowable sentence for the crime in question was also five years,
rendering section 9756(b)(1) inapplicable. Ramos, 83 A.3d at 94.
16
    As we explain in greater detail later in this Opinion, we instruct sentencing courts to
look to the mandatory minimum sentences set forth in section 1102.1(a) for guidance in
setting a minimum sentence for a juvenile convicted of first-degree murder prior to
Miller. See infra, pp. 80-83.



                                    [J-118-2016] - 53
should be sentenced as though they were convicted of third-degree murder. In support

of its position, PACDL relies upon the same case law that we found to be inapplicable in

Batts I. See Batts I, 66 A.3d at 296. In recognition of our rejection of this case law,

PACDL suggests that although we found the cases to be distinguishable, the Court

failed to “identify how, in principle, the lawful manner of resolution of the cases would be

different,” stating its belief that “there is none.”     PACDL’s Brief at 16 n.9.      This

contention is meritless.

       In Batts I, we differentiated Commonwealth v. Story, which involved a defendant

convicted of first-degree murder and sentenced to death pursuant to an unconstitutional

statute. The Story Court thus vacated the sentence and remanded the case for the

imposition of the other legislatively authorized penalty for first-degree murder, life in

prison without parole.     Story, 440 A.2d at 490; see also Bradley, 295 A.2d at 845

(holding the same). As the Batts I Court explained, this line of cases is inapt. In Story

and Bradley, there existed another sanctioned sentence for first-degree murder. The

sentence for third-degree murder advanced by PACDL, however, is not a legislatively

sanctioned punishment for a conviction of first-degree murder. Batts I, 66 A.3d at 296.

       Batts I likewise distinguished Rutledge v. United States, which involved a

defendant who had been convicted and sentenced for two crimes, one of which was a

lesser included offense of the other. The United States Supreme Court found this to be

impermissible, as it punished the defendant twice for the same conduct. Rutledge, 517

U.S. at 300. The Rutledge Court dismissed the argument that multiple punishments for

greater- and lesser-included offenses were permissible because it provided “a backup

conviction” in the event the defendant successfully challenged the conviction of the




                                     [J-118-2016] - 54
greater offense on appeal. The Court observed that “federal appellate courts appear to

have uniformly concluded that they may direct the entry of judgment for a lesser

included offense when a conviction for a greater offense is reversed on grounds that

affect only the greater offense,” a practice the High Court had previously noted with

approval. Id. at 305-06. The Batts I Court found this case law to be inapposite, as the

case at bar did not involve the vacatur of Batts’ first-degree murder conviction, but the

determination of “an appropriate scheme for resentencing for that offense, consistent

with Miller.” Batts I, 66 A.3d at 296-97. Moreover, this Court has expressly “rejected

the notion that an appellate court may refashion the conviction of a jury into one based

on a lesser-included offense,” rendering any reliance on Rutledge for this proposition to

be error.    Commonwealth v. Slaughter, 583 A.2d 427, 428 (Pa. 1990) (citing

Commonwealth v. Wagner, 406 A.2d 1026 (Pa. 1979)).

      Therefore, if we cannot sever the parole prohibition in section 6137(a)(1) and the

requirement that minimum sentences be no greater than half of the maximum term of

imprisonment in section 9756(b)(1), the only remaining option would be to release each

of the hundreds of juveniles convicted of first-degree murder and sentenced to life

without parole prior to Miller, see Varronne, 73 A.2d at 706 ‒ a result even Batts and

PACDL do not contend is correct. See PACDL’s Brief at 16. Such an extreme measure

is unnecessary here because severance of the offending statutory provisions is

permissible and aligns with the intent of the General Assembly.

      The sentencing scheme at issue before the Batts I Court was one of general

applicability and was not created specifically to foreclose juveniles sentenced to life in

prison from being released on parole. Juveniles are exposed to this sentence only as a




                                    [J-118-2016] - 55
result of the convergence of three statutory provisions ‒ section 6302 of the Juvenile

Act, section 1102(a) of the Crimes Code and section 6137(a)(1) of the Parole Code. As

explained in Miller, these circumstances do not provide an indication that a legislature

“endorsed a given penalty for children,” and are not conclusive as to whether the

General Assembly “actually intended to subject such offenders to those sentences,”

given that it did not reach this decision “through deliberate, express, and full legislative

consideration.” Miller, 567 U.S. 485-86 (quoting Graham, 560 U.S. at 67).

       Furthermore, although the General Assembly presumably initially believed (as

did a majority of this Court) that the holding in Miller would not apply to defendants

convicted prior to the date of the decision, this proved to be incorrect in light of the

United States Supreme Court’s decision in Montgomery. Nonetheless, section 1102.1

provides a clear expression of legislative intent as it relates to sentencing juveniles

convicted of first-degree murder. Although the statute itself is inapplicable to Batts

based (solely) upon the date of his conviction, it is clear, as reflected in section 1102.1,

that the General Assembly would preserve the remainder of the parole statute, sever

the minimum sentence ceiling of section 9756(b)(1), and permit these defendants to be

sentenced to life with the possibility of parole, rather than have no sentence at all for

juveniles convicted of first-degree murder. See D.P., 146 A.3d at 216; 18 Pa.C.S. §

1102.1(a). To conclude otherwise would require that we impermissibly presume that

the General Assembly intended to discriminate unconstitutionally between pre- and

post-Miller juvenile offenders or that it intended that only post-Miller juvenile offenders

receive punishment for first-degree murder ‒ clearly an absurd and unreasonable

proposition. See 1 Pa.C.S. § 1922(1), (3) (instructing that when ascertaining legislative




                                     [J-118-2016] - 56
intent, courts must presume that the General Assembly did not intend to violate the

State or Federal Constitution or intend an absurd, impossible or unreasonable result).

       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, nor has it amended the pertinent provisions

that were severed in Batts I.17 See generally 42 Pa.C.S. § 9756; 61 Pa.C.S. § 6137. 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 the years

following the Batts I decision gives rise to the presumption that the General Assembly is

in agreement with our interpretation.        Hunt v. Pennsylvania State Police of the

Commonwealth, 983 A.2d 627, 637 (Pa. 2009).



17
    We note that there are currently two proposed drafts of statutes in our Legislature ‒
one from the House and one from the Senate ‒ pertaining to sentencing of juveniles
convicted of first-degree murder that were presented for consideration in 2016. These
pieces of proposed legislation go even further than Batts I to enhance the authority of
the parole board to parole inmates convicted of first-degree murder. House Bill 2135, in
relevant part, amends section 1102.1 of the Crimes Code to completely remove the
authority of the sentencing court to sentence a juvenile to life without the possibility of
parole. H.B. 2135, Printer’s No. 3484, 200th Gen. Assemb., Reg. Sess. (Pa. 2016). It
further amends section 6137 of the Parole Code, striking the prohibition against paroling
an individual serving life in prison, making all inmates (juveniles and adults) sentenced
to life in prison parole-eligible after fifteen years. Id. The bill was referred to the House
Judiciary Committee on June 9, 2016, where it remained at the time of this writing.

Senate Bill 1147 eliminates the date of conviction requirement from section 1102.1 and
abolishes the authority to sentence a juvenile to life in prison, either with or without
parole. S.B. 1147, Printer’s No. 1576, 200th Gen. Assemb., Reg. Sess. (Pa. 2016).
Instead, a juvenile convicted of first-degree murder committed when he or she was
under fifteen would receive a maximum sentence of thirty-five years of imprisonment; a
first-degree murder committed by a juvenile aged fifteen to eighteen would require a
maximum sentence of forty-five years of imprisonment. Id. On March 4, 2016, this bill
was referred to the Senate Judiciary Committee, where it too remained at the time of
this writing.



                                     [J-118-2016] - 57
                                  B. Hopkins and Wolfe

       Our intervening decisions in Hopkins and Wolfe do not affect our decision in

Batts I. In Hopkins, we found that section 6317 of the Crimes Code ‒ which imposed a

mandatory minimum sentence of imprisonment for possession with intent to deliver or

delivery of a controlled substance that occurred within 1000 feet of a school ‒ was

unconstitutional. Specifically, the statute required a judge (not a jury) to find the facts

required to impose the mandatory minimum sentence by a preponderance of the

evidence (not beyond a reasonable doubt) at sentencing (not at trial); stated that the

requisite facts were not an element of the crime; and required no notice to the

defendant of the applicability of the statute prior to trial, all of which contravened the

United States Supreme Court’s holding in Alleyne v. United States, 133 S.Ct. 2151

(2013). See Hopkins, 117 A.3d at 249-57.

       We further found that we were unable to sever the unconstitutional portions of

section 6317 because the remaining, valid portions of the statute could not survive

without the voided ones unless this Court added new terms to the statute. The Hopkins

Court concluded that this would amount to a wholesale reconceptualization of the

statute in a manner that was inconsistent with the explicit statements of legislative intent

appearing throughout the statute. To save the valid provisions of section 6317, this

Court would have had to create a substantive offense in place of the existing sentencing

statute created and expressly intended by the General Assembly. Id. at 262, 263 n.6.

We therefore concluded, “By operation of Alleyne, [s]ection 6317 has been stripped of

all the features that allow it to function as a sentencing statute.” Id. at 259.




                                      [J-118-2016] - 58
       In Wolfe, we reaffirmed our decision in Hopkins as it related to another, similarly

worded mandatory minimum sentencing statute, 42 Pa.C.S. § 9718. Wolfe, 140 A.3d

660-61. Once again, because severance of the unconstitutional language would have

required the Court “to create new aggravated crimes,” in direct contravention of the

express statements of legislative intent provided in the statute, we concluded that the

severance was not possible, as saving any part of the statute would have required the

Court to venture “beyond our constitutionally prescribed authority and purview.” Id. at

662-63.

       Severance in Hopkins and Wolfe required this Court to go far beyond simply

striking unconstitutional language from a statute, as our role traditionally requires and

permits, and to instead conduct a wholesale rewrite and reconfiguration of a statute, a

role exclusively performed by the General Assembly.         See Pa. Const. art II, § 1.

Conversely, Batts I did not create a crime or a sentence that did not otherwise exist at

the time of our decision, but instead lawfully and appropriately utilized our severance

authority in a manner consistent with legislative intent.

       This conclusion is supported by the analogous case of Commonwealth v. Butler,

328 A.2d 851 (Pa. 1974), wherein this Court applied an existing sentencing construct to

a class of individuals that had been expressly excluded from its applicability following

the Court’s severance of unconstitutional language from the previously applicable

statute. In Butler, a man brought a challenge under the Equal Rights Amendment18 to

statutory language that required men to receive both minimum and maximum terms of

18
     “Equality of rights under the law shall not be denied or abridged in the
Commonwealth of Pennsylvania because of the sex of the individual.” Pa. Const. art. I,
§ 28.



                                     [J-118-2016] - 59
imprisonment, but permitted women only to receive a maximum sentence and

prohibited courts from giving a woman a minimum term of confinement. Id. at 854. This

discrepancy in language made women immediately parole-eligible upon entering prison,

but required men to await the expiration of their minimum sentences before being able

to be considered for parole. Because “[t]he statutory scheme on its face treats men less

favorably than women,” without a basis or justification, we found it to be

unconstitutional. Id. at 857-58.

       It was clearly the intent of the General Assembly, when it enacted the offending

statute, to exclude women from the general requirement that sentences of confinement

have both minimum and maximum terms. Because of intervening developments in the

law, however, that was no longer constitutionally permissible.     Given the choice of

striking the minimum/maximum statute applicable to men or striking the portion of the

statute that excepted women from receiving minimum sentences, the Court found that it

was more consistent with the intent of the General Assembly to strike the latter, thus

making women subject to minimum terms of imprisonment. The Court reasoned that

striking the general minimum/maximum requirement would leave men without any

sentence, whereas simply striking the language excluding women from its applicability

maintained lawful sentences for both men and women while also addressing the

constitutional problem. Further, the Court found that “special sentencing statutes for

women … were departures from a more general intent to provide equal sentencing

treatment for men and women.” Id. at 859. The Butler Court therefore severed the

unconstitutional language, thus requiring the imposition of minimum prison sentences

for women.




                                   [J-118-2016] - 60
       Likewise, in Batts I, through our legislatively-mandated severance power, we

struck unconstitutional statutory language and expanded the application of an existing,

statutorily provided sentence ‒ life with the possibility of parole ‒ to reach a subset of

individuals who could no longer constitutionally be sentenced in accordance with a prior

sentencing scheme. Although the General Assembly instituted a blanket prohibition

against paroling an individual convicted of first-degree murder, which would necessarily

include juveniles, as in Butler, this too constituted a departure from the “more general

intent” of the General Assembly, which otherwise treated children different from adults

for sentencing purposes, see generally, e.g., 42 Pa.C.S. §§ 6301-6375 (the Juvenile

Act), and which treatment continues in recent years. See, e.g., 18 Pa.C.S. § 1102.1;

supra note 17. Thus, the severance decision in Batts I stands.

     VII. Procedure for Sentencing Juveniles Convicted of First-Degree Murder

       To ensure that a life-without-parole sentence is imposed only on the rarest of

juvenile offenders, as required by Montgomery, and that the sentencing court does not

overly emphasize the nature of the crime in question, Batts and several of his amici19

request that this Court establish guidelines and procedures for the sentencing (and

resentencing) of juveniles convicted of first-degree murder. They argue that Miller, as

clarified by Montgomery, requires the institution of a presumption against sentencing a

juvenile offender to life in prison without the possibility of parole. Batts’ Brief at 21-22;

Advocacy Amici’s Brief at 6-7; PBA’s Brief at 4-6. Batts asserts that the burden of

proving that a juvenile may be subjected to life without parole must be placed on the

19
    These amici include the Pennsylvania Bar Association (“PBA”), the Incarcerated
Children’s Advocacy Network and the Youth Sentencing & Reentry Project (collectively,
“Advocacy Amici”).



                                     [J-118-2016] - 61
Commonwealth to establish, beyond a reasonable doubt, that the crime reflects that the

juvenile is “irreparably corrupt,” “irretrievably depraved,” and “permanently incorrigible,”

and must be supported by expert testimony. Batts’ Brief at 25-28, 38-39; see also

PBA’s Brief at 7-9.      Batts identifies Supreme Court decisions from several other

jurisdictions that have held similarly or have gone further, banning life without parole

sentences in their entirety for juvenile offenders. See Batts’ Brief at 22-27.

       It is also Batts’ position that juveniles facing life in prison without the possibility of

parole are entitled to a jury determination “that a juvenile is permanently incorrigible or

irreparably corrupt” before the sentence may be constitutionally imposed. Id. at 58. In

support of this contention he relies upon the United States Supreme Court’s decision in

Alleyne, as well as the Graham and Miller Courts’ comparison of adults facing capital

punishment to juveniles facing life in prison without parole. Id. at 57-58. In apparent

reliance on this latter parallel, Batts asserts that he is “entitled to at least the same

procedural due process afforded an adult facing capital punishment under the Eighth

Amendment [to the United States Constitution] and Article I, Section 13 of the

Pennsylvania Constitution.” Id. at 58. He thus contends that pursuant to section 9711

of the Sentencing Code (addressing the procedure for capital sentencing), if the

Commonwealth states its intention to seek a sentence of life without parole for a

juvenile offender, the sentencing proceeding must involve a jury trial, at which the

Commonwealth bears the burden of proof. Additionally, under this construct, Batts

contends that a unanimous verdict in favor of sentencing the defendant to life without

parole is required, with the verdict subjected to automatic appellate review by the

Pennsylvania Supreme Court. Id. at 60-61.




                                      [J-118-2016] - 62
       The Commonwealth and the DAA counter that it would be inappropriate for this

Court to announce procedures for sentencing juveniles convicted of first-degree murder,

contending that this “is inherently a legislative matter,” as it is for the General Assembly

to create punishments for criminal acts.        Commonwealth’s Brief at 23-28 (citing

principally Commonwealth v. DeHart, 516 A.2d 656 (Pa. 1986)); see also DAA’s Brief at

13, 18-19 (same). They recognize that this Court previously invoked our rulemaking

power in Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011), to create procedures for

determining whether a defendant convicted of first-degree murder is immune from the

death penalty pursuant to Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the

Eighth Amendment prohibits the execution of intellectually disabled20 persons). The

Commonwealth and the DAA differentiate our actions there, however, based upon the

length of time that passed between the Atkins decision and our decision in Sanchez,

and the General Assembly’s intervening failure to act. Here, they contend, the General

Assembly promptly acted following Miller by enacting section 1102.1, thus obviating this

Court’s ability to exercise its rulemaking authority. See Commonwealth’s Brief at 26-27;

DAA’s Brief at 13-14, 16 (cautioning this Court not to “preempt the General Assembly

for the sake of an unfounded assumption that sentencing courts cannot understand and

apply Miller and Montgomery”).

20
     “Intellectually disabled” connotes the condition that the United States Supreme Court
previously referred to as “mentally retarded.” Compare generally Atkins v. Virginia, 536
U.S. 302 (2002), with Moore v. Texas, 137 S.Ct. 1039 (2017); see also Commonwealth
v. Hannibal, 156 A.3d 197, 224 (Pa. 2016) (relying on Hall v. Florida, 134 S.Ct. 1986,
1990 (2014), for the proposition that “intellectual disability” should be used in place of
“mental retardation”). “Intellectual disability” also replaced “mental retardation” in the
fifth edition of the Diagnostic and Statistical Manual of Mental Disorders. See American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 33 (5th
ed. 2013).



                                     [J-118-2016] - 63
      The Commonwealth asserts that even if Court-created procedures were

appropriate in this context, the procedural protections advanced by Batts ‒ a

presumption against a life-without-parole sentence for juvenile offenders; placing the

burden on the Commonwealth to prove its applicability beyond a reasonable doubt;

expert testimony in support of its applicability; and particularized findings of fact ‒ are

not required by either Miller or Montgomery.      See Commonwealth’s Brief at 28-38;

DAA’s Brief at 14, 20-23.       The Commonwealth identifies decisions from several

intermediate appellate courts from other jurisdictions that have held similarly.      See

Commonwealth’s Brief at 30, 35-38.

      The Commonwealth additionally argues that there is no support for a jury

determination of a juvenile’s susceptibility to a life-without-parole sentence. This is

evidenced, per the Commonwealth’s argument, by both section 1102.1, which is a

legislative pronouncement that requires a judge, not a jury, to determine whether a

juvenile may be subjected to life in prison without parole, and the absence of any

authority from the Pennsylvania courts or the United States Supreme Court for such a

mandate. Id. at 46-47, 48-49, 51-52. The DAA asserts that the United States Supreme

Court has implicitly held that death penalty standards are inapplicable in these cases,

as evidenced by Montgomery’s placement of the burden on the juvenile to prove that he

belongs to the protected class of individuals that cannot be sentenced to life without

parole. DAA’s Brief at 17, 21 (citing Montgomery, 136 S.Ct. at 735).

      Further, because there is no required fact finding, the Commonwealth states that

there is no Alleyne-related problem with a judge-only sentencing proceeding.

Commonwealth’s Brief at 53-54. The sentencing court is simply required to balance




                                    [J-118-2016] - 64
factors and take into account other sentencing considerations, which it routinely does as

a matter of discretion in other criminal matters, both in Pennsylvania and as upheld

under similar circumstances by other states’ intermediate appellate courts. Id. at 54-58.

                               A. Constitutional Authority

       To begin, we reject the Commonwealth’s argument that the creation of

procedures to implement a substantive rule of law falls to the General Assembly.

Rather, the Pennsylvania Constitution clearly and unambiguously bestows upon this

Court “the power to prescribe general rules governing practice, procedure and the

conduct of all courts” as long as such rules “neither abridge, enlarge nor modify the

substantive rights of any litigant, nor affect the right of the General Assembly to

determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any

statute of limitation or repose.” Pa. Const. art. V, § 10(c).

       DeHart does not constrain the exercise of our authority in this context. That case

involved a challenge by a defendant to the General Assembly’s authority to create the

death penalty sentencing statute. We concluded that this was within the power of the

General Assembly “to determine the punishment imposable for criminal conduct.”

DeHart, 516 A.2d at 671 (citing Commonwealth v. Wright, 494 A.2d 354 (Pa. 1985),

aff’d sub nom., McMillan v. Pennsylvania, 477 U.S. 79 (1986)). In contrast, the question

here solely pertains to the procedures to implement the sentence for a juvenile

convicted of first-degree murder. It does not (as argued by the Commonwealth and the

DAA) require us to create the sentence itself. The resolution of the issues presented

here falls squarely within our constitutional authority.




                                     [J-118-2016] - 65
       The relevant procedural postures of this case and Sanchez are strikingly similar.

In Sanchez, this Court was faced, inter alia, with a challenge to the imposition of capital

punishment on a defendant who claimed he was ineligible to receive the death penalty

pursuant to Atkins v. Virginia. We observed that in the nine years that elapsed following

the Atkins decision, the General Assembly had remained silent, failing to enact a statute

to address how courts should determine if a person is intellectually disabled such that

he is immune from execution under Atkins. Sanchez, 36 A.3d at 52. Further, as in

Miller and Montgomery, the Supreme Court in Atkins did not set forth a procedure for

determining intellectual disability, instead “leav[ing] to the States the task of developing

appropriate ways to enforce the constitutional restriction upon their execution of

sentences.” Id. (quoting Atkins, 536 U.S. at 317).

       We stated that the absence of procedures for assessing a defendant’s claim of

intellectual disability in capital cases was creating “uncertainty in the lower courts and

among criminal law practitioners,” which “could lead to different standards and

procedures being employed in different courtrooms throughout the Commonwealth.” Id.

“Because there are no substantive constitutional restrictions upon implementation of

procedures to decide Atkins claims,” we concluded that “the procedures we announce

… are a proper exercise of our constitutional authority over judicial administration.” Id.

at 62 (citing Pa. Const. art. V, § 10(c)). We therefore exercised our constitutionally-

prescribed authority to devise the necessary procedures for implementing Atkins in

Pennsylvania, including who must adjudicate an Atkins claim (judge or jury), when the

determination must be made (pre-trial or at the sentencing phase), which party must




                                     [J-118-2016] - 66
bear the burden of proof, and the level of proof required. Sanchez, 36 A.3d at 52-53,

62-72.

         Contrary to the positions of the Commonwealth and the DAA, that we waited nine

years before promulgating procedures for the implementation of the holding in Atkins

speaks not to the propriety of this Court’s authority to have acted sooner, but rather to

the infrequency with which a question concerning the imposition of the sentence in

question arose.     As the Atkins Court observed, an individual meeting the clinical

definition of intellectually disabled is extremely rare ‒ it is a diagnosis applicable to only

around one percent of the population at large. Atkins, 536 U.S. at 309 n.5. It follows

then that the vast majority of adults are not constitutionally exempt from the death

penalty under Atkins. Precisely the opposite is true for a juvenile offender facing the

potential of serving life in prison without the possibility of parole, as it is the exceedingly

rare and uncommon juvenile whose crime reflects his permanent incorrigibility who

therefore may be constitutionally sentenced to life without the possibility of parole.

Montgomery, 136 S.Ct. at 726 (citing Miller, 567 U.S. 479-80). See also Miller, 567 U.S.

at 471 (“only a relatively small proportion of adolescents[] who engage in illegal activity

develop entrenched patterns of problem behavior”) (quoting Roper, 543 U.S. at 570).

Thus, unlike the rare consequences of Atkins, Miller and Montgomery impact every

juvenile convicted of first-degree murder.

         More than a year has passed since the Montgomery decision, and it has been

five years since the High Court decided Miller. The General Assembly has not taken

any appreciable steps to create a separate sentencing statute or to revise the existing

law so that it applies to juveniles convicted of first-degree murder prior to Miller. In the




                                      [J-118-2016] - 67
meantime, several hundred individuals remain in Pennsylvania prisons serving illegal

life-without-parole sentences for crimes committed when they were juveniles.          See

Pennsylvania     Department      of      Corrections,     Juvenile   Lifers   Information,

http://www.cor.pa.gov/General%20Information/Pages/Juvenile-Lifers-Information.aspx#.

WJTznqAo5aT (last visited June 26, 2017). Each of those prisoners, incarcerated for

the crimes they committed as juveniles, awaits resentencing. It is abundantly clear that

the exercise of our constitutional authority is required to set forth the manner in which

resentencing will proceed in the courts of this Commonwealth.

      We are now in the undesirable position of yet again having to remand Batts’ case

for resentencing. This will be the third time that Batts, who is now twenty-six years old,

will face sentencing. The DAA’s protestations notwithstanding, Batts’ argument that

sentencing courts would benefit from our guidance in the application of the Miller and

Montgomery decisions is hardly “unfounded” and is certainly not an “assumption.” See

DAA’s Brief at 16. Despite the sentencing court’s best efforts here, as reflected by its

lengthy and thorough recitation of the evidence it considered when resentencing Batts

and its recognition of the controlling United States Supreme Court precedent, the lack of

procedural safeguards resulted in it failing to properly apply the law to Batts’

resentencing. As a result, Batts remains without a final judgment of sentence in this

matter a decade after his conviction. Therefore, as in Sanchez, “we will exercise our

constitutional power of judicial administration to devise a procedure” for the

implementation of the Miller and Montgomery decisions in Pennsylvania.

                                      B. Presumption




                                      [J-118-2016] - 68
       “[A] presumption is a standardized practice, under which certain facts are held to

call for uniform treatment with respect to their effect as to proof of other facts.”

Commonwealth v. Childs, 142 A.3d 823, 830 (Pa. 2016) (quoting 2 Kenneth S. Broun,

et al., McCormick on Evidence 675-76 (7th ed. 2013)). A presumption arises, inter alia,

if a fact constitutes “a conclusion firmly based upon the generally known results of wide

human experience.” Watkins v. Prudential Ins. Co. of Am., 173 A. 644, 648 (Pa. 1934).

A presumption is mandatory and requires the factfinder to find the existence of an

“elemental” or “ultimate” fact based on proof of a “basic” or “evidentiary” fact. Childs,

142 A.3d at 830; City of Pittsburgh v. W.C.A.B., 67 A.3d 1194, 1204 (Pa. 2013). For a

presumption to be warranted, the elemental and basic facts must “truly coincide.” See

Commonwealth v. Kelly, 724 A.2d 909, 911 (Pa. 1999). The question here is whether,

pursuant to Miller and Montgomery, we should adopt a presumption against sentencing

a juvenile to life in prison without the possibility of parole. Using the Childs construct,

the issue is whether the court must find the ultimate fact that an offender is capable of

rehabilitation and that the crime was the result of the transient immaturity upon proof of

the basic fact that the offender was under eighteen years of age when he or she

committed the murder.

       The Commonwealth and its amicus not only argue against a presumption that the

juvenile is rehabilitable, but go further to urge that pursuant to Miller and Montgomery,

the juvenile offender bears the burden of proving that he or she is not eligible for a life-

without-parole sentence. Commonwealth’s Brief at 29-31; DAA’s Brief at 20-22. We

reject both prongs of the Commonwealth’s argument. Certain isolated statements in the

Miller and Montgomery decisions might be interpreted to suggest that the offender




                                     [J-118-2016] - 69
should bear the burden of proving that he is among the great majority of juveniles who

are not constitutionally eligible for a sentence of life without parole. See, e.g., Miller,

567 U.S. at 475 (referring to the characteristics of youth as “mitigating factors”);

Montgomery, 136 S.Ct. at 726 (stating that at sentencing, “Montgomery had no

opportunity to present mitigation evidence to justify a less severe sentence”), 735

(referring to the characteristics of youth as “sentencing factors”), 736-37 (stating that

Montgomery and others similarly situated must have the opportunity to show the crime

committed did not reflect their irreparable corruption).

       However, any suggestion of placing the burden on the juvenile offender is belied

by the central premise of Roper, Graham, Miller and Montgomery ‒ that as a matter of

law, juveniles are categorically less culpable than adults. This central premise arises

from “a conclusion firmly based upon the generally known results of wide human

experience,” which is that the vast majority of adolescents change as they age and,

despite their involvement in illegal activity, do not “develop entrenched patterns of

problem behavior.” Miller, 567 U.S. at 471 (referring to this conclusion as “common

sense” and “what any parent knows”) (citing Roper, 543 U.S. at 569-70); Watkins, 173

A. at 648. The Miller Court reiterated the High Court’s longstanding conclusion that the

distinctive attributes of youth generally preclude a finding that a juvenile will forever be

incorrigible, especially in light of the great difficulty even professional psychologists

have in making that determination during a person’s youth. See Miller, 567 U.S. at 472-

73, 479-80.

       Miller’s holding, “that life without parole is an excessive sentence for children

whose crimes reflect transient immaturity,” is a “substantive rule of constitutional law.”




                                     [J-118-2016] - 70
Montgomery, 136 S.Ct. at 735. This, according to Montgomery, means that only “the

rarest of juvenile offenders” are eligible to receive a sentence of life without the

possibility of parole.   Id.     Only in “exceptional circumstances” will life without the

possibility of parole be a proportionate sentence for a juvenile.21 Id. at 736. Thus, there

can be no doubt that pursuant to established Supreme Court precedent, the ultimate

fact here (that an offender is capable of rehabilitation and that the crime was the result

of transient immaturity) is connected to the basic fact (that the offender is under the age

of eighteen). See Childs, 142 A.3d at 830.

       The United States Supreme Court expressly left it to the States to determine how

the holding in Miller was to be implemented in state court proceedings. Montgomery,

136 S.Ct. at 735. We therefore conclude that in Pennsylvania, a faithful application of

the holding in Miller, as clarified in Montgomery, requires the creation of a presumption

against sentencing a juvenile offender to life in prison without the possibility of parole.

                               C. Standard of Proof and Notice

       The United States Supreme Court did not outlaw a sentence of life in prison

without the possibility of parole for all juveniles convicted of first-degree murder; it is

only a disproportionate (illegal) sentence for those offenders who may be capable of

rehabilitation. See Miller, 567 U.S. at 479-80; Montgomery, 136 S.Ct. at 726, 734.

Therefore, the presumption against the imposition of this punishment is rebuttable by

21
    In fact, while leaving the ultimate procedure for resentencing to the States, the
Montgomery Court suggested that all juveniles serving illegal mandatory life sentences
across the country could be given the opportunity for parole as a matter of course,
disposing of the need for States to convene resentencing hearings at all. Montgomery,
136 S.Ct. at 736. This, the Court proposed, would require “prisoners who have shown
an inability to reform” to complete their life sentences but afford the opportunity for
release to offenders who have demonstrated their ability to change. Id.



                                       [J-118-2016] - 71
the Commonwealth upon proof that the juvenile is removed from this generally

recognized class of potentially rehabilitable offenders. See Commonwealth v. Rush,

562 A.2d 285, 287 (Pa. 1989) (reciting the “well established principle of the law of

evidence” that a presumption places the burden of proof and the burden of production

on the party that seeks to rebut the presumed fact); Kelly, 724 A.2d at 911 (recognizing

that a presumption operates as proof of the ultimate fact unless and until the opposing

party comes forward with evidence sufficient to rebut the presumption); Commonwealth

v. DiFrancesco, 329 A.2d 204, 208 n.3 (Pa. 1974).

      The question then arises as to the standard of proof required to meet this burden.

As we have previously recognized, “even in a sentencing proceeding, due process

requirements are applicable.”    Commonwealth v. Williams, 733 A.2d 593, 603 (Pa.

1999). Because “not all situations calling for procedural safeguards call for the same

kind of procedure,” however, we must define “what process is due” for a determination

that a juvenile offender is incapable of ever being rehabilitated. Id. at 604 (quoting

Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

      “The standard [of proof] serves to allocate the risk of error between the litigants

and to indicate the relative importance attached to the ultimate decision.” Addington v.

Texas, 441 U.S. 418, 423 (1979). “The function of a standard of proof, as that concept

is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the

factfinder concerning the degree of confidence our society thinks he should have in the

correctness of factual conclusions for a particular type of adjudication.” Sanchez, 36

A.3d at 65 (quoting Cooper v. Oklahoma, 517 U.S. 348, 362 (1996)).




                                   [J-118-2016] - 72
       There are three standards of proof typically used in Pennsylvania jurisprudence:

a preponderance of the evidence, clear and convincing evidence, and proof beyond a

reasonable doubt. A preponderance of the evidence is “‘a more likely than not inquiry,’

supported by the greater weight of the evidence; something a reasonable person would

accept as sufficient to support a decision.” In re Vencil, 152 A.3d 235, 246 (Pa. 2017)

(citing Samuel–Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 35 (Pa. 2011); J.S. v. Com.,

Dep't. of Pub. Welfare, 596 A.2d 1114, 1115 (Pa. 1991)).            Clear and convincing

evidence requires proof “that is so clear, direct, weighty, and convincing as to enable

the trier of fact to come to a clear conviction, without hesitancy, of the truth of the

precise facts in issue.” Id. at 237 n.1 (quoting Commonwealth v. Maldonado, 838 A.2d

710, 715 (Pa. 2003)) (bracketing omitted). Both of these standards are traditionally

applicable in civil matters.22

       Proof beyond a reasonable doubt, on the other hand, is a criminal standard and

carries the highest evidentiary burden. This standard “impresses on the trier of fact the

necessity of reaching a subjective state of certitude of the facts in issue.” In re Winship,

397 U.S. 358, 364 (1970) (quoting Dorsen & Rezneck, In Re Gault and the Future of

Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967)).



22
    This is not to say that these standards never apply in a criminal context. For
hearings on a motion to suppress evidence, for example, the Commonwealth bears the
burden of proving by a preponderance of the evidence that the evidence was lawfully
obtained. Commonwealth v. Wallace, 42 A.3d 1040, 1047 (Pa. 2012). Further, in
cases tried before the Pennsylvania Court of Judicial Discipline against judicial officers
alleged to have violated the Pennsylvania Code of Judicial Conduct or the Pennsylvania
Constitution, the Judicial Conduct Board, as prosecutor, bears the burden of proof by
clear and convincing evidence. Pa. Const. art. V, § 18(b)(5). These matters are
referred to as quasi-criminal in nature because of the potential for removal from office
as a sanction. See In re Carney, 79 A.3d 490, 508 (Pa. 2013).



                                     [J-118-2016] - 73
              [W]hile private parties may be interested intensely in a civil
              dispute over money damages, application of a “fair
              preponderance of the evidence” standard indicates both
              society’s “minimal concern with the outcome,” and a
              conclusion that the litigants should “share the risk of error in
              roughly equal fashion.” When the State brings a criminal
              action to deny a defendant liberty or life, however, “the
              interests of the defendant are of such magnitude that
              historically and without any explicit constitutional
              requirement they have been protected by standards of proof
              designed to exclude as nearly as possible the likelihood of
              an erroneous judgment.” The stringency of the “beyond a
              reasonable doubt” standard bespeaks the “weight and
              gravity” of the private interest affected, society’s interest in
              avoiding erroneous convictions, and a judgment that those
              interests together require that “society impose almost the
              entire risk of error upon itself.”

Williams, 733 A.2d at 604 (quoting Commonwealth v. Wright, 494 A.2d 354, 360 (Pa.

1985)) (bracketing omitted). See also Santosky v. Kramer, 455 U.S. 745, 755 (1982).

       To determine the standard of proof required to satisfy due process concerns, we

must consider (1) the private interest affected; (2) the risk of an erroneous deprivation of

the interest through the procedures established; and (3) the value of the government’s

interest, if any, including “the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.” Williams, 733 A.2d at 605 (quoting

Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976)).

       The interest at issue here is a juvenile’s loss of his or her fundamental right to

liberty without the ability, in the future, to demonstrate his or her capacity to mature,

change and be rehabilitated over time. The risk of an erroneous decision against the

offender would result in the irrevocable loss of that liberty for the rest of his or her life.

Further, life without parole is typically a proportionately harsher sentence for a juvenile

than it is for an adult, as juveniles will spend a greater percentage of their lives in prison.




                                      [J-118-2016] - 74
Miller, 567 U.S. at 475. On the other hand, an erroneous decision in favor of the

offender (i.e., sentencing the offender to a term of life with the possibility of parole),

carries minimal risk; if the juvenile offender is one of the very rare individuals who is

incapable of rehabilitation, he or she simply serves the rest of the life sentence without

ever obtaining release on parole. Although the Commonwealth certainly has an interest

in ensuring criminals are punished for their actions and that society is protected from

further harm committed by them, this interest remains protected by a life-with-parole

sentence because there are no guarantees that parole will ever be granted. Further, as

it is now impermissible to sentence the great majority of juvenile offenders (past,

present and future) to life without parole in the wake of Montgomery, we cannot envision

the Commonwealth experiencing any appreciable financial burden by requiring it to

shoulder a higher burden of proving the youthful offender’s eligibility for a sentence that,

except in very rare instances, it will not have a basis to seek.

       The United States Supreme Court has clearly and unambiguously instructed that

the decision that an offender is one of the rare and uncommon juveniles who may

constitutionally receive a sentence of life without the possibility of parole must be made

with near certainty. The sentencer must determine that the offender is and “forever will

be a danger to society,” a finding that the High Court found to be in direct conflict with a

child’s inherent capacity to change.      Miller, 567 U.S. at 472.     To protect youthful

offenders from erroneous decisions that foreclose their ability to ever be released from

prison, the Supreme Court therefore held that a sentence of life without parole is

disproportionate and illegal for a juvenile offender unless that defendant “exhibits such




                                     [J-118-2016] - 75
irretrievable depravity that rehabilitation is impossible.” Montgomery, 136 S.Ct. at 733

(citing Miller, 567 U.S. at 479-80) (emphasis added).

      Pursuant to our consideration of the attendant due process concerns and the

definitive language used by the Supreme Court, we conclude that to overcome the

presumption against the imposition of a sentence of life without parole for a juvenile

offender, the Commonwealth must prove that the juvenile is constitutionally eligible for

the sentence beyond a reasonable doubt.         In an effort to satisfy this burden, the

Commonwealth may present evidence relating to the factors announced in Miller and

the factors appearing in section 1102.1(d).23

      Consistent with the requirements of due process and section 1102.1(b), if the

Commonwealth seeks to have the sentencing court impose a sentence of life without

parole on a juvenile offender, it must provide reasonable notice to the defendant prior to

the sentencing hearing.     See Commonwealth Dep’t of Transp., Bureau of Driver

Licensing v. Clayton, 684 A.2d 1060, 1064 (Pa. 1996) (“While procedural due process is

a flexible notion which calls for such protections as demanded by the individual

situation, the essential requisites are notice and meaningful opportunity to be heard.”).

See generally 18 Pa.C.S. § 1102.1(b).

                                 D. Expert Testimony



23
     As we explain in greater detail later in this Opinion, for purposes of uniformity in
sentencing juveniles facing life without the possibility of parole, courts should examine
both the Miller factors and the section 1102.1(d) factors prior to reaching that decision,
regardless of whether the juvenile was convicted pre- or post-Miller. See infra, pp.80-
83. We observe that some of the Miller factors are noticeably absent from section
1102.1(d). Compare 18 Pa.C.S. § 1102.1(d) with Miller, 567 U.S. at 476-78. All of the
Miller factors, however, must be considered by a court prior to sentencing a juvenile to
life without parole. See Batts I, 66 A.3d at 297.



                                    [J-118-2016] - 76
       There is an undeniable appeal to Batts’ contention that expert testimony is

necessary for a court to determine that a juvenile offender is permanently incorrigible.

See Graham, 560 U.S. at 73 (“It is difficult even for expert psychologists to differentiate

between the juvenile offender whose crime reflects unfortunate yet transient immaturity,

and the rare juvenile offender whose crime reflects irreparable corruption.”) (quoting

Roper, 543 U.S. at 572); Miller, 567 U.S. at 479-80. We decline, however, to go so far

as to hold that expert testimony is constitutionally required to rebut the presumption

against the imposition of a sentence of life without the possibility of parole. Expert

testimony is admissible in Pennsylvania if the information is outside of the common

knowledge of the factfinder and the testimony of an expert, so qualified based upon his

or her “knowledge, skill, experience, training or education,” will aid in the understanding

of the fact at issue and the expert utilized a generally accepted methodology. Pa.R.E.

702; Commonwealth v. Delbridge, 855 A.2d 27, 43 (Pa. 2003). The necessity thereof is

thus within the discretion of the sentencing court. Delbridge, 855 A.2d at 44. See also

Commonwealth v. Wilson, 934 A.2d 1191, 1196 (Pa. 2007) (recognizing that the

admissibility of evidence at a sentencing hearing is left to the discretion of the

sentencing court).

       Given the presumption against life without parole and the Commonwealth’s

burden beyond a reasonable doubt to rebut the presumption, it is difficult to conceive of

a case where the Commonwealth would not proffer expert testimony and where the

sentencer would not find expert testimony to be necessary.         Nonetheless, whether

expert testimony is required to rebut the presumption against permanent incorrigibility




                                    [J-118-2016] - 77
beyond a reasonable doubt will be determined on a case-by-case basis by the

sentencing court.

     E. Right to a Jury Determination and Automatic Review by Supreme Court

       We further disagree with Batts that a jury must make the finding regarding a

juvenile’s eligibility to be sentenced to life without parole. Batts relies, in part, upon

Alleyne, wherein the United States Supreme Court held that “any fact that increases the

mandatory minimum is an ‘element’ that must be submitted to the jury.” Alleyne, 133

S.Ct. at 2155. However, the central principle of Alleyne and the decision upon which it

was based, Apprendi v. New Jersey, 530 U.S. 466 (2000),24 is that a factual finding that

increases an individual’s punishment is an element of a different, aggravated offense

than the charged crime. Alleyne, 133 S.Ct. at 2158 (“The touchstone for determining

whether a fact must be found by a jury beyond a reasonable doubt is whether the fact

constitutes an ‘element’ or ‘ingredient’ of the charged offense.”) (citing United States v.

O’Brien, 560 U.S. 218 (2010); Apprendi, 530 U.S. at 483 n.10); Apprendi, 530 U.S. at

495-96 (referring to the finding required to enhance the maximum sentence in that case

as “an essential element of the offense,” which in turn constitutes “an independent

substantive offense”). A finding of “permanent incorrigibility” cannot be said to be an

element of the crime committed; it is instead an immutable characteristic of the juvenile

offender. To render these characteristics crime-specific would contradict the entire

premise of the Supreme Court’s decisions, which prohibit a sentencer from finding that



24
    In Apprendi the Court held, “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at
490.



                                    [J-118-2016] - 78
a juvenile offender is unable to be rehabilitated based on the crime itself. Montgomery,

in particular, plainly requires a court to consider the post-crime conduct of a defendant

in determining whether life without parole is a permissible sentence. See id. at 736

(stating evidence that Montgomery has evolved from a troubled youth to a model

prisoner is relevant to show that he is rehabilitable).

       Further, the Montgomery Court stated directly that the decision of whether to

sentence a juvenile to life without parole could be made by a judge. Montgomery, 136

S.Ct. at 733 (“Miller requires that before sentencing a juvenile to life without parole, the

sentencing judge take into account ‘how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison.’”)

(emphasis added, citation to Miller omitted); see also Miller, 567 U.S. at 489 (stating “a

judge or jury” must consider the specific attributes of the juvenile offender prior to

sentencing him to life without parole). Thus, the High Court itself did not recognize

juvenile life imprisonment cases to be governed by Alleyne.

       Batts’ contention that capital sentencing procedures should apply, including a

determination by a jury before sentencing a juvenile to life without parole and automatic

review of the sentence before this Court, likewise fails. He bases this argument solely

on the comparison made by the Miller and Graham Courts between juvenile life in

prison and adult capital punishment. Although there is no question that the Miller and

Graham Courts compared a juvenile life-without-parole sentence to capital punishment

and that the punishments have many similarities, as stated above, Miller and

Montgomery both found that it is appropriate for a judge to make sentencing decisions




                                     [J-118-2016] - 79
for juveniles facing a sentence of life without the possibility of parole. Montgomery, 136

S.Ct. at 733; Miller, 567 U.S. at 489.

       Batts’ suggestion that appeals from the imposition of a sentence of life without

parole should be taken directly to this Court necessarily fails. This Court does not have

jurisdiction over direct appeals from the entry of a life-without-parole sentence by a

court of common pleas.      Such appeals are exclusively within the jurisdiction of the

Superior Court. See 42 Pa.C.S. §§ 722, 742. It is beyond the scope of this Court’s

authority to interfere with “the right of the General Assembly to determine the jurisdiction

of any court.” Pa. Const. art. V, § 10(c).

       The procedures we have established provide juveniles facing a potential

sentence of life without parole with heightened due process protections.           It is our

intention that adherence to these procedures will curtail the imposition of illegal

sentences of life without parole by sentencing courts.        We expect that the proper

employment of these procedures will result in courts sentencing juveniles to life without

parole in only the rarest of circumstances, as contemplated and prescribed by the

United States Supreme Court.

                      F. Discretionary Sentencing Determination

       If, after a hearing and consideration of all of the evidence presented, the

sentencing court finds that the Commonwealth has satisfied its burden of proving

beyond a reasonable doubt that the juvenile is so permanently incorrigible that

rehabilitation of the offender would be impossible, the bar against sentencing a juvenile

offender to life without the possibility of parole is lifted. Despite the certainty of its

conclusion that the offender can never be rehabilitated, however, it is left to the




                                     [J-118-2016] - 80
sentencing court’s discretion whether to impose a life-without-parole sentence or to

instead impose a sentence that would allow the juvenile to have an opportunity for

parole consideration.

       When sentencing a juvenile to life in prison with the possibility of parole

(regardless   of   whether   a   life-without-parole    sentence   was   sought   by   the

Commonwealth), the sentencing court should be guided by section 1102.1(a) in

determining the minimum term of imprisonment. Although not directly applicable to

juveniles convicted of first-degree murder prior to Miller, as Justice Baer recognized in

his concurrence in Batts I, we cannot ignore the policy determination made by the

General Assembly as to the minimum sentence a juvenile convicted of first-degree

murder must receive. See Batts I, 66 A.3d at 300 (Baer, J., concurring). Our instruction

to seek guidance from the statute is not intended to intrude upon a sentencing court’s

discretion to determine an appropriate, individualized sentence for a given offender, but

instead to advance the long-recognized goals of uniformity and certainty in sentencing

decisions. See id.; Walls, 926 A.2d at 961 n.3, 964; Commonwealth v. Riggins, 377

A.2d 140, 148 n.22 (Pa. 1977) (“Disparity in sentencing is one of the most criticized

aspects of the sentencing process.”); see also Commonwealth v. Martin, 351 A.2d 650,

660-61 (Pa. 1976) (Nix, J., dissenting) (recognizing that sentences in Pennsylvania

must be individualized, but stating that “where there are no significant differences in the

nature of the crime and the background of the offender to dictate a contrary result,”

uniformity in sentences is a laudable goal). “[W]hen two defendants occupy roughly the

same position in terms of those factors which bear on the severity of a sentence, there




                                    [J-118-2016] - 81
can be nothing suspect about the imposition of identical sentences.” Commonwealth v.

Chestnut, 500 A.2d 1225, 1225 (Pa. Super. 1985).

      The legislative guidance is particularly useful because the Sentencing Guidelines

adopted by the Pennsylvania Commission on Sentencing do not include a guideline

sentence for an individual convicted of first-degree murder prior to Miller. See 204 Pa.

Code §§ 303.15-303.16 (amended 2008, 2012, 2013, 2014, 2015).              Similar to the

Sentencing Guidelines applicable to other crimes, we believe that section 1102.1 will

“help frame the exercise of judgment by the court in imposing a sentence” and “may

provide an essential starting point … that must be respected and considered” when

determining the appropriate minimum sentence for a juvenile convicted of first-degree

murder prior to the Miller decision. See Walls, 926 A.2d at 964-65.

      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.25 18 Pa.C.S.A. § 1102.1(a).



25
   Like the caveat in Justice Baer’s concurrence in Batts I, our directive that sentencing
courts should be guided by section 1102.1 does not result from a review of the
constitutionality of the statute. See Batts I, 66 A.3d at 300 n.1 (Baer, J., concurring).
Such consideration must await a challenge, if any should arise, in another case.
(continued…)

                                    [J-118-2016] - 82
                                    G. Other States

      Our adoption of a presumption against life without parole for juvenile offenders

finds support in the decisions of the highest appellate courts in other states that have

been faced with this question.26 Missouri prohibits sentencing a juvenile to life without



(…continued)
Rather, our decision here is based upon the policy determination and legislative intent
embodied in section 1102.1 and the goal of uniformity in sentencing.

Neither party has argued that section 1102.1 must be applied to pre-Miller juvenile
offenders. Further, there is no constitutional challenge to the prospective nature of the
statute, and in the absence of such a challenge, we are without authority to strike the
effective date. 1 Pa.C.S. § 1925. There is no impediment, however, under the
Statutory Construction Act or otherwise, to our instructing sentencing courts to use the
new legislative provision as guidance without making it mandatory.
26
    Our research reveals that the trend among our sister states is to outlaw entirely the
sentence of life without parole for juvenile offenders. Seventeen states and the District
of Columbia currently prohibit juvenile offenders from being sentenced to life in prison
without the possibility of parole. Prior to Miller, only six states (Alaska, Colorado,
Kansas, Kentucky, Montana and Oregon) banned the sentence. Following Miller, nine
more states (Connecticut, Delaware, Hawaii, Massachusetts, Nevada, Texas, Vermont,
West Virginia and Wyoming) and the District of Columbia eliminated the punishment.
Another two states (Iowa and Utah) instituted a ban after Montgomery. The bar to the
punishment in the majority of these states came through the actions of their legislatures;
only Iowa and Massachusetts reached this determination through court decisions.
Although Batts included a challenge to the constitutionality of a discretionary life-
without-parole sentence imposed upon a juvenile in his Pa.R.A.P. 1925(b) statement,
we rejected a similar challenge on Pennsylvania constitutional grounds in Batts I.
Batts I, 66 A.3d at 297-99. Batts did not again raise this claim in his petition for
allowance of appeal or include any argument in support thereof before this Court. We
therefore do not revisit this question.

Nearly all states have considered the impact of Miller and Montgomery on their
sentencing practices. Some have concluded that a specific finding of permanent
incorrigibility is required before it is permissible to sentence a juvenile to life without
parole. See, e.g., Veal v. State, 784 S.E.2d 403, 412 (Ga. 2016). Others have simply
required courts to consider the Miller factors at a sentencing hearing. See, e.g., Ex
parte Henderson, 144 So.3d 1262, 1283-84 (Ala. 2013). However, as was the
circumstance for this Court in Batts I, these state courts have not yet faced the question
of whether a presumption against the sentence is required. Our research further
(continued…)

                                    [J-118-2016] - 83
parole unless the State proves beyond a reasonable doubt that the Miller factors allow

the imposition of the sentence. State v. Hart, 404 S.W.3d 232, 235 (Mo. 2013). Prior to

their respective legislatures eliminating life without parole as a sentence for a juvenile

offender, the High Courts in both Utah (pursuant to a statute) and Connecticut found

there to be a presumption against the sentence for a juvenile offender. See State v.

Houston, 353 P.3d 55, 69-70 (Utah 2015); State v. Riley, 110 A.3d 1205, 1214 (Conn.

2015). The Supreme Court of Iowa likewise initially found there to be a presumption

against sentencing a juvenile to life without parole, but subsequently outlawed the

sentence as applied to juveniles completely. See State v. Seats, 865 N.W.2d 545, 555

(Iowa 2015); State v. Sweet, 879 N.W.2d 811, 839 (Iowa 2016).

                                    VIII. Conclusion

      For sentencing purposes, there is a presumption against the imposition of a

sentence of life without parole for a defendant convicted of first-degree murder

committed as a juvenile.     The Commonwealth must give reasonable notice of its

intention to seek a sentence of life without the possibility of parole.     To rebut the

presumption, the Commonwealth has the burden to prove, beyond a reasonable doubt,

that the juvenile offender is permanently incorrigible and thus is unable to be

rehabilitated. Consistent with the mandate of Miller and Montgomery, for a life-without-



(…continued)
reveals that none of the highest courts in other states have ruled that Miller requires
either expert testimony or a jury determination pursuant to Apprendi and its progeny for
a juvenile to constitutionally be sentenced to life without the possibility of parole. But
see People v. Skinner, 889 N.W.2d 487 (Mich. 2017) (Michigan Supreme Court granted
allowance of appeal to consider “whether the decision to sentence a person under the
age of 18 to a prison term of life without parole under MCL 769.25 must be made by a
jury beyond a reasonable doubt” pursuant to Apprendi).



                                    [J-118-2016] - 84
parole sentence to be constitutionally valid, the sentencing court must find that the

juvenile offender is permanently incorrigible and that rehabilitation would be impossible.

The Commonwealth’s evidence and the sentencing court’s decision must take into

account the factors announced in Miller and section 1102.1(d) of the Crimes Code.

Even if the Commonwealth satisfies its burden of proof, the sentencing court is not

required to impose a life-without-parole sentence upon a juvenile offender.

      In sentencing a juvenile offender to life with the possibility of parole, traditional

sentencing considerations apply. See 42 Pa.C.S. § 9721(b). The sentencing court

should fashion the minimum term of incarceration using, as guidance, section 1102.1(a)

of the Crimes Code.

      The decision of the Superior Court is hereby reversed. We remand the case to

the sentencing court for further proceedings consistent with this Opinion. Jurisdiction

relinquished.

      Chief Justice Saylor, Justices Todd, Dougherty, and Wecht join the opinion.

      Justice Wecht files a Concurring Opinion in which Justice Todd joins.

      Justice Baer files a Concurring and Dissenting Opinion.

      Justice Mundy did not participate in the consideration or decision of this matter.




                                    [J-118-2016] - 85
