J-S49008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    ANDRE GAY,

                             Appellant                 No. 306 EDA 2019


        Appeal from the Judgment of Sentence Entered August 23, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0501292-1972


BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 03, 2019

        Appellant, Andre Gay, appeals from the judgment of sentence of 46

years’ to life imprisonment, imposed after his original judgment of sentence

of life incarceration, without the possibility of parole (“LWOP”), was vacated

as unconstitutional pursuant to the United States Supreme Court’s decisions

in Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana,

136 S.Ct. 718 (2015). Appellant contends that the court’s imposition of a

mandatory-maximum sentence of life imprisonment is unconstitutional under

Miller and Montgomery. After careful review, we affirm.

        On March 23, 1972, Appellant, who was 17 years old, and several

cohorts robbed two men. When one victim fought back during the robbery,


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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Appellant fatally stabbed him.       Appellant was arrested and ultimately

convicted by a jury of first-degree murder and two counts of attempted

robbery. The trial court sentenced Appellant to LWOP.

      On September 7, 2010, Appellant filed a pro se petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. While disposition of

that petition was pending, the United States Supreme Court decided Miller,

and later, Montgomery.       In Miller, the Court held that imposition of a

mandatory LWOP sentence upon a juvenile violates the Eighth Amendment’s

prohibition against cruel and unusual punishment.        In Montgomery, the

Court “declared Miller to be retroactive, requiring states to extend parole

eligibility to juvenile offenders who committed their crimes pre-Miller.”

Commonwealth v. Ligon, 206 A.3d 1196, 1199 (Pa. Super. 2019), appeal

denied, 207 EAL 2019 (Pa. 2019).

      Following these decisions, Appellant amended his pending PCRA petition

to add a challenge to the legality of his sentence. The court granted him relief

and vacated his LWOP sentence.          On August 23, 2018, Appellant was

resentenced to a term of 46 years’ to life imprisonment. He filed a timely

post-sentence motion that was denied by operation of law on January 2, 2019.

He then filed a timely notice of appeal and complied with the trial court’s order

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.   The court issued its Rule 1925(a) opinion on February 28, 2019.

Herein, Appellant states one issue for our review: “Is the imposition of a

mandatory maximum sentence of life imprisonment for every juvenile

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convicted of first- or second-degree murder unconstitutional under Miller …

and Montgomery…?” Appellant’s Brief at 4.

        We begin by recognizing that, “[w]hen reviewing challenges to the

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

review is plenary.” Ligon, 206 A.3d at 1198 (citation omitted).

        Appellant challenges the legality of his mandatory-maximum sentence

of life imprisonment, contending that it violates Miller and Montgomery,

which mandate that sentences for juvenile offenders be individualized.

Appellant further contends that “Miller effectively invalidated the only existing

sentencing scheme in Pennsylvania for juveniles convicted of first- or second-

degree murder.”     Appellant’s Brief at 11.   Thus, he insists that “the only

sentence that can be validly imposed against him is a sentence for third-

degree murder.”      Id. at 20.    Notably, the Commonwealth agrees with

Appellant that his mandatory-maximum sentence of life imprisonment is

unconstitutional under Miller and Montgomery. See Commonwealth’s Brief

at 4.    However, both parties concede that this panel is bound by prior

precedent to affirm Appellant’s sentence.        See Appellant’s Brief at 13;

Commonwealth’s Brief at 5.

        We agree. In Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013)

(Batts I), our Supreme Court addressed the resentencing scheme for

juveniles who were convicted of first-degree murder prior to June 25, 2012

(the filing date of Miller). The Batts I Court held that,




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      once a sentencing court evaluates the criteria identified in Miller
      and determines a LWOP sentence is inappropriate, it must impose
      a “mandatory[-]maximum sentence of life imprisonment as
      required by [s]ection 1102(a), accompanied by a minimum
      sentence determined by the common pleas court upon
      resentencing.” Our Supreme Court explained that § 1102 was still
      valid, since the unconstitutional part of Pennsylvania’s sentencing
      scheme, the lack of parole eligibility pursuant to [section]
      6137(a)(1), was severable.

Ligon, 206 A.3d at 1199.

      After Batts I, the United States Supreme Court decided Montgomery

and, thus, our Supreme Court revisited the resentencing framework in

Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”). There,

“the Court reaffirmed its Batts I holding, and again stated that the trial court

must resentence defendants to either LWOP or a maximum term of life

imprisonment as required by [section] 1102(a).” Ligon, 206 A.3d at 1199

(emphasis added).

      As stated supra, Appellant and the Commonwealth both recognize that,

since Batts II, “this Court has repeatedly denied challenges to the mandatory

maximum term” applicable to individuals, like Appellant, who were juveniles

at the time of their crimes, and who were sentenced to mandatory LWOP terms

prior to June 25, 2012.      Appellant’s Brief at 13 (citing Ligon, supra;

Commonwealth v. Seskey, 170 A.3d 1105 (Pa. Super. 2017) (relying on

Batts II to uphold Seskey’s mandatory maximum sentence of life

imprisonment pursuant to section 1102(a)); see also Commonwealth’s Brief

at 5 (“[T]he Commonwealth acknowledges that this Court has repeatedly

upheld the sentencing of a juvenile defendant convicted of first- or second-


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degree murder to a maximum term of life imprisonment.”) (citing, inter alia,

Ligon, supra and Seskey, supra). While Appellant argues that Ligon and

Seskey were wrongly decided, this panel is bound to follow those cases. See

Commonwealth v. Karash, 175 A.3d 306, 307 (Pa. Super. 2017) (“[A] panel

of this Court cannot overrule the decision by another panel.”). Accordingly,

we conclude that the resentencing court was statutorily required to sentence

Appellant to a mandatory-maximum term of life imprisonment.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/19




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