J-S50035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WALTER STAWARZ,                            :
                                               :
                       Appellant.              :   No. 277 WDA 2018


           Appeal from the Judgment of Sentence, January 26, 2018,
                in the Court of Common Pleas of Beaver County,
             Criminal Division at No(s): CP-04-CR-0001809-2005.


BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                         FILED OCTOBER 31, 2018

        Walter Stawarz appeals from his judgment of sentence, following a

successful Post Conviction Relief Act (PCRA) petition that negated his life

without parole sentence. The court reduced his sentence to a minimum of 35

years to life. We affirm the new sentence.

        On September 1, 2005, Stawarz slayed Jeremy Delon. Stawarz was 16

and a juvenile at the time. The underlying facts of the murder are irrelevant

to this appeal, because our decision turns upon the insufficiencies in Stawarz’s

appellate brief. A short procedural background is in order.

        A jury convicted Stawarz of murder of the first degree1 in 2007. The

trial court sentenced him to life in prison without the possibility of parole, and

he exhausted all direct appeals in 2010.
____________________________________________


1   18 Pa.C.S.A. § 2502(a).
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      Five years later, the Supreme Court of the United States ruled that

mandatory life sentences without parole for juvenile offenders constitute cruel

and unusual punishment under the Eighth Amendment to the Constitution of

the United States. See Miller v. Alabama, 567 U.S. 460 (2012). The Court

later found that Miller’s rule applied retroactively in the post-conviction relief

setting. See Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718 (2016).

      Stawarz filed a PCRA petition and asked the Court of Common Pleas of

Beaver County to vacate his unconstitutional sentence of life without parole.

The Commonwealth did not object to his petition and requested a new

sentence of 35 years to life.    The common pleas court granted Stawarz’s

petition.   Next, he moved the court to subsidize his use of a mitigation

specialist to assist his court-appointed PCRA attorney in preparing for the

resentencing hearing. The court denied this motion. The judge found the

expense unnecessary, because a life-without-parole sentence was no longer

a possibility. See Trial Court Opinion, 11/15/17, at 4.

      The PCRA court then reviewed the record, the prior opinions, “the

presentencing report, as well as all of the evidence presented and arguments

given at the sentencing hearing. The Court . . . considered all of the factors

provided for by [42 Pa.C.S.A. §] 9721(b) of the Sentencing Code, including

the protection of public, the gravity of the offense, the impact on the victims,

the impact upon the community, and [Stawarz’s] rehabilitative needs.” Trial

Court Opinion, 1/26/18, at 10 – 11. The court also weighed Stawarz’s “various

age-related characteristics” – i.e., the Miller factors that this Court recognized

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in Commonwealth v. Melvin, 172 A.3d 14 (Pa. Super. 2017). Trial Court

Opinion, 1/26/18, at 11.      Additionally, the court recognized that Stawarz,

“convicted of committing this crime as a juvenile, is constitutionally different

from, and thus less culpable than, an adult.” Id. After weighing all these

things, the PCRA court adopted the Commonwealth’s recommended new

sentence of 35 years’ imprisonment to life. In other words, the court made

Stawarz eligible for parole after 35 years in the state penitentiary.

      This appeal followed.

      Stawarz objects to his new sentence on three grounds. He asks this

Court:

         1. Whether the PCRA Court committed prejudicial err and
            abused its discretion in denying [his] request for funding
            for a mitigation specialist.

         2. Whether the PCRA Court erred in discounting [his]
            documented chaotic and abusive home environment;
            history of substance abuse, neglect, [and] criminal
            behavior of his parents; domestic violence between his
            parents; and instability in his living arrangements.

         3. Whether the PCRA Court abused its discretion by not
            addressing the Miller factors and failing to take into
            account the differences between adults and children,
            and how those differences counsel against sentencing
            children to a lifetime in prison.

Stawarz’s Brief at 8 – 9.

      Stawarz’s second and third issues challenge the discretionary aspects of

his new sentence. We will deal with them first, because Stawarz has failed to

invoke this Court’s jurisdiction on those two points.



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      Stawarz has no right of appeal regarding the discretionary aspects of a

sentence; rather, this Court will only review such claims when an appellant

has satisfied well-established procedural prerequisites. See Commonwealth

v. Stein, 39 A.3d 365 (Pa. Super. 2012). An appellant must (1) raise the

issues at either the time of sentencing or in a post-sentence motion, (2) file a

timely notice of appeal, (3) satisfy Pennsylvania Rule of Appellate Procedure

2119(f), and (4) present a substantial question for review. Id. at 370. If any

of these four requirements is absent, this Court will generally not reach the

merits of the discretionary aspects of sentencing.

      In this instance, we find the third prong of the allowance-of-appeal test

to be questionable and the fourth prong to be lacking. Hence, we confine our

discussion to those two points.

      Pa.R.A.P. 2119(f) dictates challengers of “the discretionary aspects of a

sentence in a criminal matter shall set forth in a separate section of the brief

a concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence.” The 2119(f) statement in

Stawarz’s brief is minimal, at best. After quoting Pa.R.A.P. 2119(f) Rule, he

only writes “Appellant, Stawarz, and the legal basis for the sentence imposed.”

Stawarz’s Brief at 15. That is all; he wrote nothing to explain this point.

      We have no idea what Stawarz meant to say in his 2119(f) statement,

so he has not produced a meaningful 2119(f) statement. As such we find that

he did not substantially comply with the third prong of the allowance-of-appeal




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test. In such cases, this Court has summarily denied allowances of appeal

challenging the discretionary aspects of sentencing.

      For example, in Commonwealth v. Ousley, 573 A.2d 599 (Pa. Super.

1990), Judge Rowley, writing a panel majority, concluded that an appellant

had “totally failed to articulate in his 2119(f) statement any factors which the

trial court relied upon which allegedly were not before it.” Id. at 601. Even

though Ousley had produced a more thorough statement than the one in the

instant appeal, his “conclusory assertion in the 2119(f) statement that the

sentence exceeded the guidelines, without more, [did] not raise a substantial

question.”    Id.   In other words, we “made it clear that appeals from

discretionary aspects of sentencing are not to be granted as a matter of

course, but are to be granted only in exceptional cases where it can be shown

in the 2119(f) statement that . . . the sentence imposed contravenes the

sentencing code.” Id (emphasis in original).

      More recently, we relaxed the Ousley rule, when the Commonwealth

fails to object to the absence or deficiency of a 2119(f) statement. “When the

Commonwealth does not object to the omission of a Rule 2119(f) statement,

this Court can overlook the omission if the presence or absence of a

substantial question can be easily determined from the appellant’s brief.”

Commonwealth v. Maneval, 688 A.2d 1198, 1199 (Pa. Super. 1997) (citing

Commonwealth v. Saranchak, 675 A.2d 268, 277 n. 18 (Pa. 1996)).

      Here, the Commonwealth raised no objection to the 2119(f) statement.

Thus, we must review his appellate brief to determine if a substantial question

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is present. Our test to decide whether a substantial question is presented is

as follows:

           A substantial question exists 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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012).

        In both his second and third appellate issues, Stawarz argues that the

PCRA court improperly failed to apply the factors from Miller v. Alabama,

567 U.S. 460 (2012). However, as the Commonwealth and the common pleas

judge     correctly   pointed   out,   “the   Commonwealth     specifically   and

unequivocally did not seek a sentence of life without the possibility of parole.

As such, the Miller factors are inapplicable and the Court is not constrained

to consider them.” Commonwealth’s Brief at 7. Moreover, even a cursory

review of the PCRA court’s opinion reveals that it did consider the Miller

factors in resentencing Stawarz, even though it was not bound to do so. See

Trial Court Opinion, 3/28/18, at 10-11.

        In addition, as the PCRA court explained, it:

           indicated on the record during [Stawarz’s] sentencing
           hearing that it had reviewed the record of the trial, the
           decertification, the presentence report, the victim impact
           statements, and all of the additional evidence and records
           submitted at the sentencing hearing, including [Stawarz’s]
           prison records. Because the sentence is consistent with
           section 1102.1 of the Crimes Code and because the record
           shows that the Court carefully considered all of the evidence
           presented in this case, including those factors which


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         [Stawarz] avers the Court “erred in discounting,” no
         substantial issue for appellate review has been raised.

Id. at 8-9.

      We agree. Accordingly, this Court denies Stawarz’s allowance of appeal

as to his second and third issues, because he has failed to raise a substantial

question to warrant us reaching the merits of his claims.

      Turning to his only remaining issue, we find his argument that the PCRA

court erroneously denied his motion for a court-funded mitigation expert to

be incompatible with our deferential standard of review, even though he

correctly recited it. “In reviewing the PCRA Court’s decision not to allow public

funds to hire a mitigation specialist, the appellate court’s standard of review

of the denial is an abuse of discretion . . .”    Stawarz’s Brief at 6 (citing

Commonwealth v. Page, 59 A.3d 1118 (Pa. Super. 2013). Stawarz did not

consider what constitutes an abuse of trial court discretion and, instead,

reargued his motion de novo to this Court.

      Stawarz wrote, in relevant part:

            It is obvious that [he] is indigent as his in forma pauperis
         request was granted by this Court and present counsel
         appointed. [He] recognizes that the government is not
         obligated to pay for ancillary services simply because he
         asks for such help . . . In the initial motion and the amended
         motion, counsel addressed the need for the specialist and
         also the relevance of the request. The PCRA court denied
         this request.

            A mitigation specialist is necessary because of the
         analysis and requirements of Miller and Montgomery.
         These cases set the guidelines for the court.        “The
         fundamental premise behind the court’s rejection of
         mandatory life without parole sentences for juveniles was

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         its insistence that the factor of youth be taken into account
         before the imposition of a state’s harshest penalties and that
         each juvenile receive an individualized sentence based upon
         the particular youth’s age and characteristics and
         surrounding circumstances. [sic]            Miller identified
         characteristics or attributes that a sentencing court must
         consider when sentencing a juvenile to life without the
         possibility of parole. Albeit the Commonwealth was not
         seeking the life without the possibility of parole in this
         matter, an examination of the Miller factors was necessary
         and relevant in order to provide [Stawarz] with an
         individualized sentencing hearing.

             [Stawarz’s] counsel met with Randy Matuscak and
         attempted to retain his services, because Mr. Matuscak had
         previously interviewed [Stawarz] and his family and
         produced a decertification report in his case. Mr. Matuscak
         was familiar with [Stawarz], his history, and his family, and
         counsel requested a nominal fee not to exceed three-
         thousand dollars ($3,000.00). The PCRA Court immediately
         denied this request and therefore, the PCRA Court abused
         its discretion.

Stawarz’s Brief at 16 – 18 (some quotations omitted). Stawarz’s proposed

conclusion does not logically follow from any of the arguments he alleged.

      In order to establish an abuse of discretion, Stawarz could not just point

to an error by the PCRA court, because, as that court informed him, “an abuse

of discretion is not shown merely by an error in judgment.”             Trial Court

Opinion, 3/28/18, at 6 (quoting Commonwealth v. Mann, 957 A.2d 746,

749 (Pa. Super. 2008). Instead, “the appellant must establish, by reference

to the record, that the [PCRA] court ignored or misapplied the law, exercised

its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a

manifestly unreasonable decision.” Id.




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      Stawarz’s appellate argument did none of those things. He made no

reference to where or how the PCRA court misapplied the law; raised no claim

of partiality, bias, or prejudice; and asserted no basis as to how the denial of

funding for an expert was manifestly unreasonable. Therefore, we conclude

Stawarz’s claim that the PCRA court abused its discretion is unpersuasive and

unsubstantiated. Thus, we dismiss his first issue on appeal as meritless.

      In sum, Stawarz’s first appellate issue lacks merit, and this Court has

found no basis for asserting discretionary appellate jurisdiction over his second

and third issues.

      Judgment of Sentence affirmed.

      Judge Bowes joins in this Memorandum.

      Judge Ott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2018




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