J-S58016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

MARCUS ANTHONY RUTTER,

                         Appellant                      No. 1995 MDA 2016


           Appeal from the Judgment of Sentence July 29, 2016
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0000287-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                             FILED OCTOBER 23, 2017

      Appellant, Marcus Anthony Rutter, appeals from the judgment of

sentence entered on July 29, 2016, in the Lancaster County Court of

Common     Pleas.    After   careful   review,   we    vacate   and   remand   for

resentencing.

      In an opinion filed on November 3, 2016, the trial court provided a

thorough recitation of the facts in this case, and, therefore, we need not

restate them here. See Trial Court Opinion, 11/3/16, at 12-16. To briefly

summarize, however, in the early morning of December 15, 2014, Appellant,

who was sixteen years old at the time, and an accomplice, burglarized the

home of a thirty-two year old woman. Appellant and his accomplice sexually

assaulted and brutally beat, stabbed, and strangled the victim until she died.
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       On December 16, 2014, the Commonwealth charged Appellant with

criminal homicide, burglary, criminal conspiracy to commit burglary, and

robbery.1    On January 9, 2015, the Commonwealth amended the criminal

complaint to include charges of involuntary deviate sexual intercourse,2

receiving stolen property, theft by unlawful taking, and access device fraud.3

       On July 11, 2016, Appellant entered an open guilty plea to first-degree

murder, conspiracy to commit murder, burglary, robbery, receiving stolen

property, and access device fraud.             N.T., Guilty Plea, 7/11/16, at 36.   In

exchange for pleading guilty, the Commonwealth withdrew the charges of

theft by unlawful taking and involuntary deviate sexual intercourse; the

charge of conspiracy to commit burglary was replaced with conspiracy to

commit murder. The Commonwealth agreed that it would not seek a

sentence of life without parole, but it was also agreed that the sentences on

each count would be served consecutively. N.T., Guilty Plea, 7/11/16, at 3-

5.

       On July 29, 2016, the trial court sentenced Appellant as follows: thirty-

five to seventy years of incarceration for the murder conviction; ten to
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118 Pa.C.S. § 2501(a), 18 Pa.C.S. § 3502(a)(1), 18 Pa.C.S. § 903, and 18
Pa.C.S. § 3701(a)(1)(iv), respectively.

2 Forensic evidence revealed that the victim had been anally penetrated.
N.T., Sentencing, 7/29/16, at 4-5.

318 Pa.C.S. § 3123(a)(1), 18 Pa.C.S. § 3925(a), 18 Pa.C.S. § 3921(a), and
18 Pa.C.S. § 4106(a)(1)(i), respectively.



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twenty years of incarceration for conspiracy; five and one-half to eleven

years of incarceration for robbery; two to four years of incarceration for

burglary; nine to twenty-four months of incarceration for receiving stolen

property; and nine to twenty-four months of incarceration for access device

fraud.     N.T., Sentencing, 7/29/16, at 156-158.       The sentences for were

ordered to run consecutively.      Id. at 158. This resulted in an aggregated

sentence of fifty-four to 109 years of incarceration.

         Appellant filed a post-sentence motion asking the trial court to

reconsider and modify the sentence. The trial court denied Appellant’s post-

sentence motion on November 3, 2016, and this timely appeal followed.

         On appeal, Appellant raises the following issues for this Court’s

consideration:

          I. Is the aggregate sentence of the trial court the functional
         equivalent of a life sentence, affording [Appellant] no meaningful
         opportunity for release, and a violation of the Eighth and
         Fourteenth Amendments to the United States Constitution?

         II. Was the trial court’s imposition of what amounts to a de facto
         life sentence a violation of the agreement of the parties that the
         court could not impose a sentence of life without parole?

         III. Did the trial court erred in finding that [Appellant] was
         “irretrievably depraved, irreparably corrupt, and permanently
         incorrigible,” where this finding was not supported by competent
         evidence of record or any expert witness, the finding was
         improperly based on shifting the burden of proof to [Appellant]
         to prove that he would not engage in future criminal conduct,
         and the finding was used to justify a de facto life sentence,
         despite the court’s contradictory finding that [Appellant]
         “possesses the capacity for change”?




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       IV. In imposing sentence, did the trial court rely on numerous
       erroneous findings of fact which were unsupported, or
       contradicted, by the record, including errors of fact in applying
       the Miller[ v. Alabama, 567 U.S. 460 (2012)] youth factors and
       in considering the factors set forth in 18 Pa.C.S. §1102.1, and
       did the court’s reliance on these erroneous findings of fact in
       imposing sentence demonstrate the court’s bias, and was it an
       abuse of the court’s discretion in imposing sentence?

       V. Was the aggregate sentence of 54 to 109 years so manifestly
       excessive as to constitute too severe a punishment, and clearly
       unreasonable under the circumstances; further, did the trial
       court focus exclusively on the nature of the offenses, despite the
       clear dictates of Roper, Miller and Montgomery,[4] that the nature
       of the offense cannot be permitted to overshadow the possibility
       of rehabilitation in cases of juvenile offenders?

Appellant’s Brief at 7-8.

       In Appellant’s first two issues, he argues that his sentence violated the

plea agreement as it was a de facto life sentence and was also an illegal

sentence in violation of the Eighth Amendment to the United States

Constitution’s prohibition against cruel and unusual punishment pursuant to

Miller v. Alabama, 567 U.S. 460 (2012).           Appellant’s Brief at 16.    A

challenge to the legality of a sentence is a question of law, and our standard

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4  Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth
Amendment to the United States Constitution prohibits the death penalty for
a crime committed by a juvenile); Miller v. Alabama, 567 U.S. 460 (2012)
(concluding that mandatory sentences of life without parole for juveniles
violates the Eighth Amendment’s prohibition on cruel and unusual
punishment); Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718
(2016) (finding that the Miller announced a new substantive rule of
constitutional law that applies retroactively and clarifying the limited
circumstances in which a sentence of life without parole is permissible for a
crime committed by a juvenile).



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of review is de novo while our scope of review is plenary. Commonwealth

v. Blakney, 152 A.3d 1053, 1054 (Pa. Super. 2016).

      In Miller, the Supreme Court of the United States held that

“mandatory life without parole for those under the age of 18 at the time of

their crimes violates the Eighth Amendment’s prohibition on ‘cruel and

unusual punishments.’” Miller, 567 U.S. at 465. However, Miller did not

provide a blanket prohibition on life sentences for juveniles. The Supreme

Court in Miller required the sentencing court to first “take into account how

children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Id. at 480. The Supreme Court

also recognized that certain juvenile offenders may exhibit such irretrievable

depravity that rehabilitation is impossible, and life without parole is

warranted. Id. The factors a sentencing court must consider in determining

whether to impose a sentence of life without the possibility of parole are as

follows:

      (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 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.

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      (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); see also Commonwealth v. Batts, 163 A.3d 410,

421 n.5 (Pa. 2017) (providing that at a minimum, the trial court 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 history, his ability to deal with the police, his capacity to assist his




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attorney, his mental health history, and his potential for rehabilitation)

(citations omitted).

      Appellant concedes that the trial court did not impose a life sentence;

rather, he claims he received a de facto life sentence because he has “no

meaningful opportunity for release.” Appellant’s Brief at 17. This, he avers,

renders the sentence illegal. Id. We disagree.

      The relevant statute provides that “A person who at the time of the

commission of the offense was 15 years of age or older shall be sentenced to

a term of life imprisonment without parole, or a term of imprisonment, the

minimum of which shall be at least 35 years to life.”          18 Pa.C.S. §

1102.1(a)(1) (emphasis added). The trial court sentenced Appellant to the

minimum legal term of thirty-five years of incarceration for his murder

conviction. 18 Pa.C.S. § 1102.1(a)(1). Clearly, the trial court followed the

plea agreement and did not impose a mandatory life sentence without the

possibility of parole for the murder conviction.

      Nevertheless, Appellant argues that he will be seventy years old at the

time he is first eligible for parole, rendering the sentence a life sentence.

Appellant’s Brief at 17.   We reject Appellant’s argument on several bases.

First, the plea agreement did not impact the legality of Appellant’s sentence

because the acceptance or rejection of a plea agreement is left to the

discretion of the trial court.   Commonwealth v. Hudson, 820 A.2d 720,

727-728 (Pa. Super. 2003) (citations and quotation marks omitted).


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Second, had Appellant committed only the murder, his minimum sentence of

thirty-five years would have provided him an opportunity for parole at age

fifty-one.    Indeed, it was Appellant’s decision to engage in numerous

additional crimes the night he murdered the victim that increased his

minimum sentence, and that increase was due only to the sentences running

consecutively. This in no way involves the legality of Appellant’s minimum

sentence for murder.          Rather, the duration of the minimum aggregate

sentence is due to Appellant’s sentences running consecutively and

implicates only the discretionary aspects of his sentence, not its legality.5

Appellant’s minimum sentence of thirty-five years for the murder conviction

was a legal sentence, and it comported with the plea agreement.6

       In his third and fourth issues on appeal, Appellant continues to argue

that he received an illegal de facto life sentence without parole. He argues

that this was error because the trial court failed to properly weigh the factors

that must be considered when a juvenile is given a sentence of life without

parole under Miller, Batts, and 18 Pa.C.S. § 1102.1(d). Appellant’s Brief at

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5 See Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super.
2010) (appellant’s claim that imposition of consecutive sentences was
excessive was a challenge to the discretionary aspects of his sentence).

6 As set forth by the trial court in its recitation of the facts and procedural
history, Appellant’s guilty plea contained an agreement that the
Commonwealth would not pursue a minimum sentence of life without parole,
but the sentences for each crime would be served consecutively. Trial Court
Opinion, 11/3/16, at 15 (citing N.T., Guilty Plea Colloquy, 7/11/16, at 3).



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30-54. However, we reiterate that the trial court did not impose a sentence

of life in prison without the possibility of parole for the murder conviction.

Indeed, the trial court imposed the lowest permissible minimum sentence for

a juvenile over the age of fifteen for the crime of murder in the first degree.

18 Pa.C.S. § 1102.1(a)(1).          Again, we note the portion of Appellant’s

aggregated minimum sentence that is beyond the thirty-five-year minimum

term for the murder was due to Appellant’s sentences for other crimes and

the trial court’s discretion, in accordance with the plea agreement, to run

those additional terms of incarceration consecutively.                   Thus, once more,

Appellant’s claim of error is not an issue of legality of the murder sentence,

it is a challenge to the discretionary aspects of his aggregated sentence.

        For the reasons set forth above, there was no error in the imposition of

a minimum sentence of thirty-five years for the murder conviction.

However, we are constrained to point out that Appellant’s maximum

sentence of seventy years for the murder conviction was imposed with no

legal authority, and if no statutory authorization exists for a particular

sentence,       that   sentence     is     illegal    and      subject     to     correction.

Commonwealth v. Martinez, 141 A.3d 485, 487 (Pa. Super. 2016). This

Court     may     raise   and     review     an      illegal   sentence         sua   sponte.

Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa. Super.

2011).




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       Under 18 Pa.C.S. § 1102.1(a)(1), an individual between the ages of

fifteen and seventeen who was convicted of first-degree murder after June

24, 2012, must be sentenced to a maximum term of life imprisonment.

Commonwealth v. Seskey, ___ A.3d ___, ___, 2017 PA Super 278, at *3

(Pa. Super. 2017) (citing 18 Pa.C.S. § 1102.1(a)(1) (emphasis added)). A

maximum sentence of seventy years is not a permissible sentence under the

statute, and it is therefore, illegal; the minimum legal sentence the trial

court was permitted to impose for the murder conviction was a term of

thirty-five years to life. 18 Pa.C.S. § 1102.1(a)(1).

       It is well settled that this Court has the option of amending a sentence

directly; however, if the correction may upset the sentencing scheme, the

better   practice    is   to   remand     to   the   trial   court   for   resentencing.

Commonwealth v. Phillips, 946 A.2d 103, 115 (Pa. Super. 2008). As our

remand may upset the trial court’s sentencing scheme, we vacate

Appellant’s judgment of sentence in its entirety, and we remand for

resentencing.7

       For the reasons set forth above, we are constrained to vacate

Appellant’s judgment of sentence and remand for resentencing. On remand,


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7 In light of our disposition in which we have remanded this matter for
resentencing on all counts, we do not reach Appellant’s challenge to the
discretionary aspects of his sentence raised in his fifth issue.




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the sentence imposed on Appellant’s murder conviction shall comport with

18 Pa.C.S. § 1102.1(a)(1) and our decision in Seskey.

      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.


 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2017




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