J-S69020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                       :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                          :        PENNSYLVANIA
                                       :
                                       :
              v.                       :
                                       :
                                       :
 TERRANCE L. KRONK                     :
                                       :   No. 501 WDA 2017
                   Appellant

          Appeal from the Judgment of Sentence August 30, 2016
    In the Court of Common Pleas of Fayette County Criminal Division at
                      No(s): CP-26-CR-0000767-1976


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

MEMORANDUM BY RANSOM, J.:                       FILED JANUARY 12, 2018

     Appellant, Terrance L. Kronk, appeals from the judgment of sentence of

forty years to life, imposed August 30, 2016, following remand for

resentencing pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012),

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and Commonwealth v.

Batts, 66 A.3d 286 (Pa. 2013) (“Batts I”). We affirm.

     The procedural history and relevant facts are as follows:

        On November 9, 1975, Appellant entered an open guilty plea
     to one count of criminal homicide. On October 17, 1976, the trial
     court found Appellant guilty of second-degree murder and
     sentenced him to a mandatory term of life imprisonment without
     the possibility of parole. Appellant was a juvenile at the time he
     committed the murder.

        During his incarceration, Appellant filed multiple unsuccessful
     petitions for writ of habeas corpus and PCRA relief. However, on
     August 6, 2012, Appellant filed a PCRA petition alleging that he
     was entitled to relief pursuant to the United States Supreme

____________________________________
* Former Justice specially assigned to the Superior Court.
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       Court's decision in Miller v. Alabama, 132 S.Ct. 2455 (2012),
       which held that mandatory life sentences for juvenile offenders
       were unconstitutional.

                                               ***

          The Supreme Court decided Miller on June 25, 2012, and
       Appellant filed the [] PCRA petition forty-two days later. See 42
       Pa.C.S. § 9545(b)(2) (stating that a PCRA petition must be filed
       within sixty days of the date the claim could have been
       presented). Appellant argued that the decision in Miller should
       be retroactively applied. On November 6, 2013, the PCRA court
       dismissed Appellant's petition, and on May 22, 2015, we affirmed
       the PCRA court's order.

          Appellant filed a petition for allowance of appeal with our
       Supreme Court on May 27, 2015. While that petition was pending,
       on January 25, 2016, the United States Supreme Court filed its
       opinion in Montgomery. In the Montgomery decision, the
       United States Supreme Court held that Miller's prohibition on
       mandatory life sentences without the possibility of parole for
       juvenile offenders was a new substantive rule, and it must be
       applied retroactively in cases on collateral review in state
       courts. Montgomery, 136 S.Ct. at 732. Accordingly, on February
       24, 2016, the Pennsylvania Supreme Court vacated our May 22,
       2015 decision and remanded Appellant's appeal from the denial of
       PCRA relief to this Court. [See Commonwealth v. Kronk, 132
       A.3d 979 (Pa. 2016)]

Commonwealth v. Kronk, 1853 WDA 2014, 2016 WL 1546485, at *1 (Pa.

Super. Apr. 15, 2016) (unpublished memorandum). This Court determined

that Appellant was entitled to PCRA relief. Id. at *2.1 This Court reversed


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1 “[P]etitioners whose PCRA petitions were based on Miller and were on
appeal at the time the United States Supreme Court filed its decision
in Montgomery are entitled to relief from their unconstitutional sentences[.]”
Kronk, 2016 WL 1546485, at *2 (citing Commonwealth v. Secreti, 134
A.3d 77 (Pa. Super. 2016)).



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the PCRA court’s order dismissing Appellant’s petition, vacated Appellant’s

judgment of sentence, and remanded for resentencing in accordance with

Miller.2

       On August 30, 2016, the trial court held a resentencing hearing.

Thereafter, the court resentenced Appellant to forty years to life. Appellant

timely filed a post-sentence motion, which was denied.         Appellant timely

appealed his new sentence and filed a court-ordered 1925(b) statement. The

trial court issued a responsive opinion.

       On appeal, Appellant raises the following issues:

       I.     Did the sentencing court commit legal error when it entered
              a sentence “pursuant to” 18 Pa.C.S. § 1102.1(c)(1) for an
              offense committed before that Section’s effective date?

       II.    Did the sentencing court abuse its discretion?

Appellant's Br. at 7.

       First, Appellant contends that his sentence is illegal because the court

impermissibly relied solely on 18 Pa.C.S. § 1102.1, rather than considering

the factors identified in Miller. Id. at 19-20 (noting that the court stated that

it was imposing a sentence pursuant to Section 1102.1(c), having considered

the factors in Subsection (d)(1) through (7)); see Resentencing Transcript

(R.T.), 8/30/2016, at 71. Appellant avers that Section 1102.1 does not apply


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2  Miller rendered Pennsylvania’s mandatory scheme of life imprisonment for
first and second degree murder unconstitutional, as applied to offenders under
the age of eighteen (18) at the time of their crimes. Miller v. Alabama, 132
S.Ct. 2455 (2012).

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to a person convicted before June 24, 2012. See Appellant's Br. at 19-20

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

Appellant also relies on Commonwealth v. Hicks, 151 A.3d 216, 228 (Pa.

Super. 2016), appeal denied, 168 A.3d 1287 (Pa. 2017), in which this Court

remanded a defendant for resentencing where the court applied the

mandatory minimum prescribed by Section 1102.1, finding that the statute

applies only to convictions that occurred “after June 24, 2012.” Hicks, 151

A.3d at 230 (remanding for resentencing in accordance with the factors set

forth in Miller and Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super.

2012)).3

       In response, the Commonwealth contends that Appellant ignores that

the sentencing court used Section 1102.1(c) as a template to set the new

length of his sentence. See Commonwealth's Br. at 3. Moreover, Appellant

fails to establish how the court’s consideration of the factors under Section

1102.1(d) would be different had the sentencing court applied Miller criteria

instead. Id. at 4. According to the Commonwealth, there is a clear overlap

between the factors listed in Section 1102.1(d) and the Miller criteria. See

id. at 5-7. Further, Appellant failed to object to the sentencing court’s reliance

on Section 1102.1.


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3 In so doing, Appellant conflates his legality of sentence claim with his
discretionary aspects of sentence claim. Hicks is inapposite to the former.
See Hicks, 151 A.3d at 226 (“Appellant’s claims of sentencing errors are
challenges to the discretionary aspects of his sentence.”).

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      At the sentencing hearing, the court and defense counsel discussed the

applicability of Section 1102.1. Defense counsel stated on the record: “We

think that the [c]ourt … may apply 1102.1 guidelines in sentencing.” R.T. at

6. In response, the sentencing court stated: “For lack of any other template

to follow, I am going to use 1102.1….” Id.

      Section 1102.1(c) states, in relevant part:

      (c) Second degree murder.--A person who has been convicted
      after June 24, 2012, of a murder of the second degree, second
      degree murder of an unborn child or murder of a law enforcement
      officer of the second degree and who was under the age of 18 at
      the time of the commission of the offense shall be sentenced as
      follows:

      (1) 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
      imprisonment the minimum of which shall be at least 30 years to
      life.

18 Pa.C.S. 1102.1(c).

      In Batts I, Justice Baer authored a concurring opinion that suggested

“‘for the purpose of uniformity in sentencing,’ 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 policy

determinations’ encompassed in the statute.’”       Batts II, 163 A.3d at 421

(quoting favorably, Batts I, 66 A.3d at 300 (Baer, J., concurring)). In Batts

II, the Supreme Court reasoned:

      [A]lthough 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

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      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 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).

Batts II, 163 A.3d at 444–45.

      Consistent with Batts I and II, the policy determination as to the

minimum guideline range suggested by the legislature for second-degree

murder is “a term of imprisonment the minimum of which shall be at least 30

years to life.” 18 Pa.C.S. 1102.1(c)(1). Further, the sentencing court did not

commit legal error in seeking guidance from the statute “to advance the long-

recognized goals of uniformity and certainty in sentencing decisions.” Batts

II, 163 A.3d at 457–58 (citations omitted).

      Here, the sentencing court recognized that it was not obligated to follow

Section 1102.1 due to the date of Appellant’s conviction. The court considered

the legislative purpose and found the rationale to be persuasive as a template

for resentencing.   See Trial Ct. Op. (TCO), 4/26/2017, at 2. The sentencing

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court considered the factors listed in Subsection (d), which correlate with the

age-related Miller factors.         After carefully considering the evidence and

testimony presented, the court resentenced Appellant to forty years to life

imprisonment. Appellant’s sentence amounted to time served with immediate

eligibility for parole.4

       The sentencing court was constitutionally permitted to impose a

minimum      term-of-years      sentence       and   a   maximum   sentence   of   life

imprisonment, thus ensuring Appellant was eligible for parole upon the

expiration of his minimum sentence, and to consider Section 1102.1 in

determining a minimum sentence to apply in resentencing a juvenile for

second-degree murder.            Batts II, 163 A.3d at 457-58; see also

Commonwealth v. Melvin, --- A.3d ---, 2017 PA Super 301, at *4 (Sept.

20, 2017) (applying Batts II where the Appellant was convicted of second-

degree murder). Accordingly, Appellant’s sentence is legal and no relief is

due.

       In his second issue, Appellant asserts the court abused its discretion

when it relied on Section 1102.1 and the factors contained therein. According

to Appellant, the court was also required to consider those factors set forth in

Knox and Miller. See Appellant's Br. at 25-26 (citing in support Hicks, 151



____________________________________________


4Following resentencing, Appellant was approved for parole on December 23,
2016, was released on February 11, 2017, and currently he resides with family
members in Georgia per his approved home plan. See Appellant's Br. at 13.

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A.3d at 230). This argument presents a challenge to discretionary aspects of

Appellant’s sentence. We apply the following principles:

        We note that “[t]he right to appellate review of the
     discretionary    aspects      of    a     sentence  is  not
     absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.
     Super. 2014). Rather, where an appellant challenges the
     discretionary aspects of a sentence, the appeal should be
     considered a petition for allowance of appeal. Commonwealth
     v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

        As we observed in Commonwealth v. Moury, 992 A.2d 162
     (Pa. Super. 2010):

        An appellant challenging the discretionary aspects of his
        sentence must invoke this Court's jurisdiction by satisfying
        a four-part test:

        [W]e conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, see Pa.R.A.P.
        902 and 903; (2) whether the issue was properly preserved
        at sentencing or in a motion to reconsider and modify
        sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's
        brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
        there is a substantial question that the sentence appealed
        from is not appropriate under the Sentencing Code, 42
        Pa.C.S.A. § 9781(b).

     Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533
     (Pa. Super. 2006)). The determination of whether there is a
     substantial question is made on a case-by-case basis, and this
     Court will grant the appeal only when the appellant advances a
     colorable argument that the sentencing judge's actions were
     either: (1) inconsistent with a specific provision of the Sentencing
     Code; or (2) contrary to the fundamental norms which underlie
     the sentencing process. Commonwealth v. Sierra, 752 A.2d
     910, 912–913 (Pa. Super. 2000).

Hicks, 151 A.3d at 226-27.

     Here, the first three requirements of the four-part test are met:

Appellant timely appealed, raised the challenges in a post-sentence motion,

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and included in his brief the necessary Pa.R.A.P. 2119(f) statement of reasons

for allowance of appeal. Next, we examine Appellant’s Rule 2119(f) statement

to determine whether he presents a substantial question.

      In his Rule 2119(f) statement, Appellant asserts that the sentencing

court failed to set forth adequate reasons for the sentence imposed because

the court was required to consider the Miller factors. See Appellant's Br. at

16-17. Relying on Hicks, Appellant contends that “the trial court improperly

relied on 18 Pa.C.S. §1102.1(a) without making a determination of sentence

duration based on Knox and Miller[.]” Id. at 16.

      This Court has previously recognized that “the sentencing court’s failure

to set forth adequate reasons for the sentence imposed … raises a substantial

question.”   Hicks, 151 A.3d at 227 (citing in support Commonwealth v.

Macias, 968 A.2d 773, 776 (Pa. Super. 2009)). Accordingly, Appellant has

raised a substantial question, and we will proceed to address the merits of his

claim.

      In Hicks, the juvenile defendant was sentenced by the trial court to life

without the possibility of parole for one count of first-degree murder, a

consecutive five to ten years for aggravated assault, a consecutive ten to

twenty years for criminal attempt-homicide, and no further penalty on the

remaining charges.    Hicks, 151 A.3d at 220.       This Court remanded for

resentencing by this Court pursuant to Miller due to the imposition of a

mandatory life without parole sentence. The court resentenced the defendant


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pursuant to the mandatory minimum prescribed by Section 1102.1 for first-

degree murder, to thirty-five years to life imprisonment, followed by a

consecutive ten to twenty years for criminal attempt-homicide, a consecutive

two and one-half to five years for aggravated assault, and no further penalty

on the remaining counts. See id. When the defendant timely appealed this

new sentence, his discretionary aspects of sentencing claim was that: (1) the

sentences imposed taken together were manifestly excessive; and (2) the

court abused its discretion when it resentenced the defendant pursuant to 18

Pa.C.S. § 1102.1. See id. at 226. After careful review, this Court concluded

that the trial court abused its discretion in relying solely on Section 1102.1

without considering the sentencing factors set forth in Knox and Miller. Id.

       Appellant’s reliance on Hicks is misplaced. In Hicks, the resentencing

court imposed the minimum sentence required by Section 1102.1 despite the

statute’s plain language limiting its direct application to juveniles who

committed a murder “after June 24, 2012.”          Id. at 228 (noting that the court

could have imposed a shorter minimum sentence on the homicide conviction)

(quoting 18 Pa.C.S § 1102.1(a)).5 Here, in contrast, the court did not apply

the minimum sentence prescribed by the statute. Appellant was sentenced to

forty years to life, which equated to the amount of time already served with



____________________________________________


5 Further, this Court relied on this Court’s holding in Commonwealth v.
Batts, 125 A.3d 33 (Pa. Super. 2015), which has since been modified by the
Supreme Court in Batts II.

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immediate eligibility for parole.

      Further, the Hicks Court criticized the sentencing court’s failure to

consider Miller factors prior to imposing the sentence. See id. at 229-300.

Here, the sentencing court stated that it considered the minimum sentence

provided by Section 1102.1(c) and the age-related factors listed under Section

1102.1(d) in determining Appellant’s sentence for second-degree murder.

See R.T. at 71. The Hicks courts did not address whether those factors set

forth in Subsection (d) of 1102.1 represent a sufficient representation of the

Miller factors.

      We conclude that the factors listed in Subsection (d) correlate directly

with and were designed to implement Miller’s holding. Furthermore, as the

Batts line of cases make clear, and as is expressly set forth in Subsection (d),

consideration of these factors is required only prior to imposing a sentence of

life without parole for first degree murder. See Batts I, 66 A.3d at 295-96;

Batts II, 163 A.3d at 459-460.      In such cases, the Commonwealth must

provide reasonable notice that it intends to seek a life without parole sentence

prior to the sentencing hearing and then evidence pursuant to Subsection (d)

may be offered to rebut the possibility of a life sentence. See id; see also

18 Pa.C.S. § 1102.1(b).

      As discussed supra, the sentencing court could look to Section 1102.1

for guidance as to the minimum sentence in resentencing a juvenile defendant

formerly sentenced to a non-discretionary life-without-parole sentence. Batts


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II, 163 A.3d at 458 n.25; see also Batts I, 66 A.3d at 300 (Baer, J.,

concurring) (noting that for the purpose of uniformity in sentencing, courts

tasked with resentencing may look to Section 1102.1 for policy related

guidance in setting a defendant’s minimum sentence).          It follows that the

court was permitted to impose a sentence greater than the minimum. See

18 Pa.C.S. 1102.1(e) (“Nothing under [] Section [1102.1] shall prevent the

sentencing court from imposing a minimum sentence greater than that

provided in this Section.”).

      Explicit consideration of Knox factors is of no moment where the court

is not considering a life sentence without the possibility of parole. “In

sentencing a juvenile offender to life with the possibility of parole, traditional

sentencing considerations apply.” Batts II, 163 A.3d at 460 (noting that the

sentencing court should look to Section 1102.1 for guidance on the minimum

sentence to impose) (citing 42 Pa.C.S. § 9721(b) (“the court shall follow 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.”)).       “[Miller] contains no ‘formal

factfinding requirement … so as to permit the States to sovereignly administer

their criminal justice systems and establish a proper procedure for the proper

implementation of Miller’s holding.”      Batts II, 163 A.3d at 433 (quoting

Montgomery, 136 S.Ct. at 735).


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       More generally, to the extent Appellant asserts that the court failed to

consider mitigating factors, the record clearly does not support his assertion.

See Appellant's Br. at 26-28. The factors that the sentencing court considered

in its 1925(a) opinion included: (1) the early life events that brought Appellant

to the day of his crime, (2) Appellant’s youth at the time of the crime, (3) his

familial circumstances, and (4) the role he played in the criminal activity. See

TCO at 2-3. The court also noted “the admirable forgiveness” of the victim’s

family, the victim’s undeniable death, and the actions to which Appellant

admitted during his guilty plea hearing. Id. at 2. After considering all of the

evidence presented, applying traditional sentencing factors as well as age-

related factors, the court imposed a sentence of forty years to life.

       Here, the court considered the evidence of Appellant’s youth and

immaturity presented at the resentencing hearing as mitigating factors in

fashioning Appellant’s sentence.          Clearly, the record reflects that the court

considered       traditional   sentencing      guidelines   as   well   as   age-related

characteristics of Appellant. Moreover, the sentence imposed for the murder

that Appellant committed was reasonable. 6 Accordingly, we discern no abuse

of discretion.

       Judgment of sentence affirmed. Jurisdiction relinquished.




____________________________________________


6We reject Appellant’s unsupported conclusion that the sentence imposed was
excessive.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2018




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