J-A27033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TONITA HENDERSON

                            Appellant                No. 860 WDA 2013


       Appeal from the Judgment of Sentence Entered February 5, 2013
             In the Court of Common Pleas of Allegheny County
               Criminal Division at No: CP-02-CR-0015719-2011


BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.                                FILED JULY 21, 2016

        Appellant, Tonita Henderson, appeals from the judgement of sentence

entered February 5, 2013, following her convictions of two counts of

robbery, one count of receiving stolen property, and one count of criminal

conspiracy.1 Upon review, we affirm.

        On November 29, 2011, Appellant was charged with two counts of

robbery, one count of receiving stolen property, and one count of criminal

conspiracy.2 At the time she was charged, Appellant was seventeen years

old and less than three months from her eighteenth birthday.       Appellant’s
____________________________________________


1
    18 Pa.C.S.A. §§ 3701, 3925, and 903, respectively.
2
  Unless another source is cited, these facts are taken from pages one
through four of the trial court’s November 26, 2014 Pa.R.A.P. 1925(a)
opinion.
J-A27033-15



case was initiated in criminal court.   Appellant petitioned the trial court to

transfer her case to juvenile court. Following a decertification hearing, her

petition was denied. A non-jury trial was held on November 7, 2012, after

which Appellant was found guilty of all charges. The trial court requested a

presentence investigation report (PSI) for use in fashioning Appellant’s

sentence.     The PSI included Appellant’s prior juvenile adjudications.

Following a sentencing hearing, the trial court sentenced Appellant to a

period of incarceration of not less than six and one-half nor more than

thirteen years to be followed by a period of probation of seven years.

Appellant filed post-sentence motions which were denied. Appellant timely

appealed to this Court and, as ordered, filed a Rule 1925(b) statement

wherein she raised seven claims of error. The trial court issued a Pa.R.A.P.

2915(a) opinion.

     Appellant now raises four issues for our review:

     1. Whether       the  juvenile   decertification   process    is
        unconstitutional as it does not allow for the minor child to
        have a jury conclude beyond a reasonable doubt that the
        juvenile should be subjected to an adult penalty beyond the
        juvenile statutory maximum penalty in violation of the minor
        child’s Sixth Amendment rights?

     2. Whether placing the burden of proof on a juvenile defendant
        in a decertification process violates both the juvenile’s
        procedural and substantive due process rights?

     3. Whether the process of obtaining a second expert witness
        violated Miss Henderson’s Constitutional rights under the
        Equal Protection Clause of the Fourteenth Amendment?




                                    -2-
J-A27033-15


      4. Whether Section 303.6 of the Sentencing Guidelines violates
         the 8th Amendment to the United States Constitution and
         Article 1, Section 13 of [sic] Constitution of the
         Commonwealth of Pennsylvania in light of Roper v.
         Simmons, [543 U.S. 551 (2005),] Graham v. Florida, [560
         U.S. 48 (2010),] and Miller v. Alabama, [132 S.Ct. 2455
         (2012)]?

Appellant’s Brief at 5-6.

      Initially, we note that an appellant bears a heavy burden to prove a

statute unconstitutional. “[A] statute is presumed to be constitutional and

will not be declared unconstitutional unless it clearly, palpably and plainly

violates the Constitution.”   Commonwealth v. Cotto, 753 A.2d 217, 219

(Pa. 2000).   Additionally, “there is no constitutional guarantee to special

treatment for juvenile offenders.    Any right to treatment as a juvenile is

derived from statutory law and is defined by the legislature.” In Interest

of J.F., 714 A.2d 467, 470 (Pa. Super. 1998).

      The legislature, through the Juvenile Act, placed adjudication of

delinquent acts when the defendant is a child automatically within the

jurisdiction of juvenile court.   42 Pa.C.S.A. § 6322(a).   However, Section

6302 of the Juvenile Act excludes robbery from the definition of a delinquent

act where, as in this case, a deadly weapon was used in the commission of

the offense. See 42 Pa.C.S.A. § 6302 “Delinquent Act” (2)(ii)(D); see also

18 Pa.C.S.A. § 3701 (relating to robbery).       Prosecution for an offense

excluded from the definition of a delinquent act commences in criminal court

rather than in juvenile court.        42 Pa.C.S.A. § 6322(a); see also

Commonwealth v. Ramos, 920 A.2d 1253, 1258 (Pa. Super. 2007)


                                      -3-
J-A27033-15



(“[W]hen the crime involved is one excluded from the Juvenile Act’s

definition of a delinquent crime, the charge is automatically within the

jurisdiction of the criminal court and jurisdiction is presumptively proper.”).

      When a criminal court has jurisdiction over a crime committed by a

juvenile pursuant to 42 Pa.C.S.A. § 6322(a), the juvenile may request that

her case be decertified, i.e., removed to the jurisdiction of juvenile court.

Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003). This

process has been upheld as constitutional by this Court and our Supreme

Court. See Cotto, 753 A.2d at 217, 222 (holding as constitutional the 1995

Amendments to the Juvenile Act which vest original jurisdiction in the

criminal courts for specified violent felonies and granting the decision-maker

discretion in determining whether to transfer a direct file case to juvenile

court); see also Commonwealth v. Aziz, 724 A.2d 371, 374 (Pa. Super.

1999), appeal denied, 759 A.2d 919 (Pa. 2000) (“We find that the

amendments to the Act, which cause juveniles accused of the enumerated

offenses to appear first in criminal court, are not arbitrary and instead are

rationally related to the statute’s objectives.”).

      Appellant    first   argues    that   the      decertification   process    is

unconstitutional as violating the Sixth Amendment because a judge rather

than a jury decides decertification. Appellant bases this claim on our United

States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466

(2000) which, in her words, “conclude[es] that a sentencing factor that has

the potential to enhance the punishment triggers Sixth Amendment

                                      -4-
J-A27033-15



protections. . . .” Appellant’s Brief at 15. Essentially, Appellant argues that

the denial of decertification is a factor that could enhance a sentence beyond

the statutory maximum allowed for a juvenile and, therefore, under

Apprendi, only a jury may deny decertification. Appellant’s Brief at 19.

      The United States Supreme Court’s decision in Apprendi concerned a

statute that authorized a judge to increase the maximum sentence after a

jury’s verdict based on the judge’s finding, by a preponderance of the

evidence, of the fact that the crime was racially motivated. Apprendi, 120

S.Ct. at 2348. We previously summarized the rule established by Apprendi

and its progeny as follows.

      In the watershed Apprendi case, the Supreme Court held that
      any fact except a prior conviction that increases the range of
      punishment beyond the statutory maximum penalty for that
      crime must be charged in an indictment, submitted to the jury,
      and proven beyond a reasonable doubt. The Court further
      defined the term statutory maximum in Blakely v.
      Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
      (2004). According to the Blakely Court, the statutory maximum
      is the maximum sentence a court can impose based solely on
      the facts reflected by the jury verdict or admitted by the
      defendant during his guilty plea.

Commonwealth v. Stokes, 38 A.3d 846, 858-59 (Pa. Super. 2011).

      Appellant’s reliance on Apprendi is misplaced. Decertification is a

legislatively established procedure whereby a judge must consider a

juvenile’s amenability to treatment within the juvenile system as delineated

by statutorily defined factors. 42 Pa.C.S.A. § 6355(a)(4)(iii). Decertification

is not a fact that increases the maximum penalty that may be imposed as


                                     -5-
J-A27033-15


already determined by a jury’s verdict or an accused’s guilty plea. Indeed, a

judge does not make any findings of fact regarding elements of the crimes

charged during the decertification process. Further, there is no jury involved

in this process. Apprendi, therefore, is factually and legally distinguishable

from the instant case. As such, Appellant is not entitled to relief on her first

issue.

         Appellant next argues that placing the burden of proof on a juvenile

defendant      in   the   decertification   process   violates   both   the   juvenile’s

procedural and substantive due process rights.              In Cotto, our Supreme

Court addressed and rejected this issue and held as follows.

         [T]he legislature has determined in its judgment that, in certain
         instances, violent felonies in addition to murder are sufficiently
         serious to merit vesting original jurisdiction in the criminal
         courts, while affording the defendant an opportunity to show
         that his is the exceptional case warranting juvenile treatment.

          ....

         . . . [T]he legislature’s informed determination that juveniles
         fifteen years of age and older who commit such offenses are not
         initially amenable to rehabilitation under the Juvenile Act, unless
         they prove otherwise by a preponderance of the evidence, is
         equally reasonable. There is nothing in the Constitution to
         prevent the legislature from making such a judgment.

Cotto, 753 A.2d at 223-24.

         Appellant acknowledges that Cotto is controlling on this issue, but

asks us to reconsider our Supreme Court’s holding. Appellant’s Brief at 24.

This Court, however, has a “duty and obligation to follow the decisional law

of [the Supreme Court of Pennsylvania].” Commonwealth v. Shaffer, 734


                                            -6-
J-A27033-15


A.2d 840, 844 n.6 (Pa. 1999).             Because Cotto considered and resolved

Appellant’s second issue, we are bound by our Supreme Court’s holding in

Cotto, and Appellant is not entitled to relief on this claim.3

       Appellant contends in her third issue that requiring her to petition the

trial court to grant funds for a second expert witness violated her

constitutional rights under the Equal Protection Clause of the Fourteenth

Amendment. Specifically, Appellant argues that as a client of the Allegheny

County Office of Conflict Counsel (OCC), she is similarly situated to clients of

the Public Defender’s Office (PDO), as they are all individuals who qualify for

but cannot afford representation. Appellant alleges that, because a second

expert witness could have been obtained had she been represented by the

PDO given the PDO’s self-regulated budget, she was placed in a second class

where she was required to petition the court for funds for an additional

expert witness as a client of the OCC. Appellant’s Brief at 31-32. Appellant

claims this violated her Equal Protection Rights because, under the

Fourteenth Amendment, “like persons in like circumstances will be treated


____________________________________________


3
  To the extent that Appellant relies on Roper, Graham, and Miller to
support her argument that “juveniles are constitutionally distinct from
adults,” and therefore it is unconstitutional to shift the burden of proof in
decertification onto juvenile defendants, these cases are easily
distinguishable from the one sub judice as the foregoing only address
juvenile sentencing. Appellant’s Brief at 24; Commonwealth v. Batts, 125
A.3d 33, 37 (Pa. Super. 2015). None of these cases pertains to the juvenile
decertification process.



                                           -7-
J-A27033-15


similarly” unless “there be a rational basis for policy distinctions between

similarly situated individuals.” Appellant’s Brief at 30.

      The starting point of an equal protection analysis is a determination of

whether the State has created a classification for unequal distribution of

benefits or imposition of burdens. Commonwealth v. Parker White Metal

Co., 515 A.2d 1358 (Pa. 1986).     Appellant claims to be a member of a class

consisting of indigent persons represented by the OCC who are similarly

situated to those indigent persons represented by the PDO. Appellant claims

differential treatment as a member of the OCC class because her request for

a second expert requires court approval, whereas approval is not required

for those represented by the PDO. It is established that the action of state

courts may be regarded as State action within the meaning of the

Fourteenth Amendment. See Shelley v. Kramer, 334 U.S. 1 (1948). The

question preliminarily which remains to be answered however, is whether

the Appellant’s challenge to the trial court’s action was based upon

differentiating her in a class from others similarly situated. Appellant fails to

satisfy this preliminary consideration to sustain an equal protection claim.

      While Appellant challenges the action of the trial court in refusing a

second expert, Appellant does not explain how the trial court created

separate classifications of people for making expert witness determinations

for equal protection purposes. The decision to deny Appellant a second

expert was based upon the trial court’s individualized review of Appellant’s


                                      -8-
J-A27033-15


request for a second expert.    The request was denied after the trial court

determined Appellant was merely shopping for another expert to provide a

more favorable opinion than the first expert that was court funded. The trial

court correctly noted, citing Commonwealth v. Chester, 733 A.2d 1242,

1252 (Pa. Super 1999), that a defendant is not entitled to unlimited court

appointed experts until he finds one that renders the opinion he desires.

This individualized determination was not based upon any class created by

the trial court. Nor does Appellant establish that other persons represented

by the OCC would have had similar requests for expert approval declined as

a result of their membership in her purported class. Moreover, Appellant

provides no proof that the PDO in fact would have retained a second expert

on her behalf to establish disparate treatment of her as a purported class

member represented by the OCC. “A person who brings an action under the

Equal Protection clause ‘must show intentional discrimination against him

because of his membership in a particular class, not merely that he was

treated unfairly as an individual.’"    Murray v. Pittsburgh Bd. of Public

Educ., 919 F. Supp. 838, 847 (W.D. Pa. 1996) (citation omitted). A review

of Appellant’s claim reveals no more than an individualized determination on

whether   a   second   expert   would    be   approved.   This   individualized

determination was not dependent upon membership in a class.

      It further is conceded that representation of Appellant by the OCC was

necessitated by a conflict within the PDO office. To the extent Appellant can


                                       -9-
J-A27033-15


claim the establishment of similarly situated classes, a representational

conflict within the PDO necessitating separate representation by the OCC, is

grounded upon a rational basis that does not offend equal protection.                        A

State    can,   consistent      with    the    Fourteenth       Amendment,      provide     for

differences so long as the result does not amount to a denial of due process

or invidious discrimination. Douglas v. California, 372 U.S. 353 (1963).

Absolute equality is not required.             Id.     As Appellant fails to establish the

essential predicates for an equal protection claim, her claim fails.4

        Appellant’s final issue is that the Pennsylvania Sentencing Guidelines

are unconstitutional as applied to juvenile defendants. Appellant’s Brief at

42.      Appellant argues that, together, Roper, Graham, and Miller

established the rule that, under the Eighth Amendment, criminal procedure

laws, including sentencing guidelines, must consider an offender’s age.

Appellant’s     Brief    at   39-40.      Appellant        claims   that   it   is    therefore

unconstitutional        for   Section   303.6        of   the   Pennsylvania         Sentencing

Guidelines5 to mandate using her juvenile offenses to calculate her prior

record score for use in criminal court. Appellant’s Brief at 34-38.


____________________________________________


4
  In light of our disposition of Appellant’s equal protection claim, we need not
determine whether Appellant properly preserved this issue due to
inadequate briefing.
5
  Section 303.6 of the Pennsylvania Sentencing Guidelines provides, in
pertinent part, as follows:
(Footnote Continued Next Page)


                                              - 10 -
J-A27033-15



       Appellant’s claim that the United States Supreme Court decisions in

Roper, Graham, and Miller require that our sentencing guidelines, as

applied     to   juveniles,   be   held    unconstitutional   requires   impermissible

extensions and leaps of logic from the holdings in those cases.            Roper held

that the death penalty is disproportionate punishment for offenders under

18, and that imposing such punishment was a violation of the Eight

Amendment. When a juvenile commits a heinous crime, the State can exact

forfeiture of some of the most basic liberties, but the State cannot extinguish

his life.   In Graham the Court held that the Eighth Amendment does not

permit a juvenile offender to be sentenced to life in prison without parole for

a non-homicide crime.          The Constitution prohibits the imposition of a life

without parole sentence on a juvenile offender who did not commit

homicide. While a State need not guarantee the offender eventual release,

if it imposes a sentence of life it must provide him or her with some realistic

opportunity to obtain release before the end of that term.




                       _______________________
(Footnote Continued)


       Prior juvenile adjudications are counted in the Prior Record Score
       when the following criteria are met: (1) The juvenile offense
       occurred on or after the offender’s 14th birthday, and (2) There
       was an express finding by the juvenile court that the
       adjudication was for a felony or one of the Misdemeanor 1
       offenses listed in § 303.7(a)(4).

204 Pa. Code § 303.6.



                                           - 11 -
J-A27033-15



        In Miller, the Court recognized that Roper and Graham established

that children are constitutionally different from adults for sentencing

purposes and that its individualized sentencing decisions make clear that a

judge    or   jury   must   have   the   opportunity   to   consider   mitigating

circumstances before imposing the harshest possible penalty for juveniles.

By mandating that all children convicted of homicide receive lifetime

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

related characteristics and the nature of their crimes, such sentencing

schemes violate the principle of proportionality, and hence, the Eighth

Amendment’s ban on cruel and unusual punishment. Our State Supreme

Court recently clarified that “Miller’s holding is narrow,” and that it “would

not expand the holding of Miller absent a common law history or a

legislative directive.”   Batts, 125 A.3d at 38.   The Court specifically held

that “Miller requires only that there be judicial consideration of the

appropriate age-related factors set forth in that decision prior to the

imposition of a sentence of life imprisonment without the possibility of parole

on a juvenile.” Id. The Court declined to change the “legal consequences

for the actions of minors” based on the “policy considerations” raised by

Miller stating, “[i]n Pennsylvania, subject to the limits of the Constitution,

such matters are generally reserved, in the first instance, to the General

Assembly.” Commonwealth v. Hale, 2015 WL 9284110, at *4 (Pa. 2015).

        The common thread running through Roper, Graham, and Miller, is

that the harshest of penalties imposed upon juveniles in those cases cannot

                                     - 12 -
J-A27033-15



withstand scrutiny for proportionality under the Eighth Amendment.        The

rationales for rejecting the outer limits of sentencing in those cases in no

manner can be construed as an invitation to invalidate consideration of all

factors that may bear upon an appropriate sentence for a juvenile sentenced

as an adult as in this case. Moreover, requiring consideration of a juvenile’s

prior offenses to calculate a prior record score is not the same as mandating

a certain sentence.        The weight given a prior record score goes to the

discretion of a sentencing court in fashioning an appropriate sentence.6 The

Court in Roper, Graham, and Miller, did not disturb a sentencing court’s

ability to consider all factors when sentencing a juvenile.    In fact, those

decisions emphasize the need for individualized consideration in juvenile

sentencing, a point that cuts directly against the argument Appellant

presently makes.

       As previously stated, “a statute is presumed to be constitutional and

will not be declared unconstitutional unless it clearly, palpably and plainly

violates the Constitution.” Cotto, 753 A.2d at 219.    In Commonwealth v.

Smith, 481 A.2d 1365 (Pa. Super. 1984), this Court addressed the

contention that under the Juvenile Act, juvenile records and adjudications


____________________________________________


6
  To the extent Appellant’s argument raises a challenge to the discretionary
aspects of her sentence, Appellant has made no such claim, and if her
argument could be considered as raising such a claim, we would deem it
waived for not properly preserving this issue for review.               See
Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013).



                                          - 13 -
J-A27033-15



should not be regarded as criminal acts for purposes of sentencing.        In

rejecting that proposition, we stated,

           The intention of the Legislature is clear in its adoption of
      the policy which not only allows but requires examination of a
      defendant’s juvenile record in fashioning appropriate sentences.

       ....

            It is clearly the intent of the Legislature that a child who
      continues his pattern of serious and violent anti-social activity
      into adulthood, should not receive the benefit of a cloak of
      immunity regarding that behavior, when it is relevant to
      predicting future behavior and the public safety is at risk.

           Until and unless the mandate to utilize juvenile records as
      a sentencing aid is legislatively reversed, it remains incumbent
      upon the sentencing courts to obey it.

Id.   at 1366.    In light of the foregoing and the legislative purpose to be

served by permitting consideration of prior juvenile records in sentencing,

we decline Appellant’s invitation to extend the holdings of Roper, Graham,

and Miller to find that Section 303.6 of the Pennsylvania Sentencing

Guidelines is unconstitutional as applied to juveniles.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016


                                    - 14 -
J-A27033-15




              - 15 -
