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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellant                :
                                          :
                    v.                    :
                                          :
RICHARD CALVIN KLINGER JR.,               :
                                          :
                 Appellee                 :    No. 69 EDA 2018

        Appeal from the Judgment of Sentence November 15, 2017
             in the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0000109-1972

BEFORE:     OTT, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED JANUARY 11, 2019

      The Commonwealth appeals from the November 15, 2017 judgment of

sentence of 46 years to life imprisonment imposed on Richard Calvin Klinger

Jr. (Klinger) following a resentencing hearing pursuant to Miller v.

Alabama, 567 U.S. 460 (2012).1 We affirm.

      On August 26, 1971, when he was 17 years and 3 ½ months old,

Klinger shot and killed 65-year-old Regina Prosser during the robbery of her

home.2 After the shooting, Klinger fled Pennsylvania. Once apprehended,


1 In Miller, the United States Supreme Court held that a “mandatory
[sentence of] 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.” 567 U.S. at 465 (internal quotation marks omitted).
2 Klinger was familiar with Prosser and her home because she was his
neighbor from 1960 to 1967, when he was in the care of his first foster
family.


*Retired Senior Judge assigned to the Superior Court.
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Klinger pleaded guilty to a general murder charge. A three-judge panel of

the Court of Common Pleas found him guilty of first-degree murder and

sentenced him to a mandatory term of life imprisonment without the

possibility of parole (LWOP).

        Our   Supreme    Court    affirmed   Klinger’s   judgment   of   sentence.

Commonwealth v. Klinger, 337 A.2d 569 (Pa. 1975). Klinger filed several

motions and collateral petitions for relief in the following years. Relevant to

this appeal, on February 19, 2016, Klinger filed a petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, claiming that

his sentence was unconstitutional under Miller and Montgomery v.

Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016) (holding that Miller applies

retroactively to cases on collateral appeal).3

        The PCRA court convened the first of several PCRA/resentencing

hearings on June 2, 2016.        Following that hearing, the PCRA court stayed

further proceedings until after Commonwealth v. Batts (Batts II), 163

A.3d 410 (Pa. 2017), was decided.        In Batts II, our Supreme Court held

that in resentencing a juvenile defendant convicted of first-degree murder

pre-Miller, a court may sentence the defendant to LWOP only after finding

him “permanently incorrigible and that rehabilitation would be impossible[;]”

otherwise, the defendant shall be sentenced to life with the possibility of

parole following a minimum term-of-years sentence. 163 A.3d at 459-60.

3   Klinger filed this petition within 60 days of the issuance of Montgomery.


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     The resentencing hearings reconvened on November 9, 2017, and

November 15, 2017, and in accordance with the requirements of Batts II,

the Commonwealth indicated its intent to seek a LWOP sentence.4       N.T.,

11/9/2017, at 15; see also N.T., 11/15/2017, at 7-18, 23-24 (arguing for a

sentence of LWOP).     Klinger argued that a sentence of LWOP was not

appropriate and requested a minimum term-of-years sentence of less than

45 years. N.T., 11/15/2017, at 39.    At the conclusion of the hearing, the

PCRA court found that the Commonwealth had failed to meet its burden for

the imposition of a LWOP sentence. Thus, the court vacated Klinger’s LWOP

sentence and resentenced him to 46-years-to-life imprisonment.         The

Commonwealth filed a motion for reconsideration, arguing that the minimum

term-of-years sentence imposed was disproportionate to the nature of the

offense.   At the hearing on its motion, the Commonwealth clarified that it

was not challenging the PCRA court’s conclusion that the Commonwealth

failed to meet its burden for the imposition of a LWOP sentence. Rather, it

was only challenging the court’s discretion in fashioning the minimum term-

of-years sentence. N.T., 12/1/2017, at 2-3, 18. Following that hearing, the

PCRA court denied the motion.




4 Upon inquiry by the PCRA court in the event that the PCRA court denied
that request, the Commonwealth alternatively requested a minimum term-
of-years sentence of 65 years. N.T., 11/15/2017, at 56-57.


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        This timely appeal followed.5    On appeal, the Commonwealth claims

that the PCRA court abused its discretion in fashioning Klinger’s minimum

term-of-years sentence.      Commonwealth’s Brief at 7.      Because this claim

implicates the discretionary aspects of Klinger’s sentence, we must first

determine whether the Commonwealth has invoked this Court’s jurisdiction

to review the merits of this claim.

        Challenges to the discretionary aspects of sentencing do not
        entitle an appellant to review as of right.            An appellant
        challenging the discretionary aspects of [a] sentence must
        invoke this Court’s jurisdiction by satisfying a four-part test:

           We 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.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

        Here, the Commonwealth has satisfied three of the four requirements:

it timely filed a notice of appeal, preserved the claim in a motion to

reconsider, and included a Pa.R.A.P. 2119(f) statement in its brief.

Therefore, we now consider whether the Commonwealth has raised a

substantial question for our review.


5   Both the Commonwealth and the PCRA court complied with Pa.R.A.P. 1925.


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      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.          Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “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.” Griffin, 65 A.3d at 935 (citation and quotation marks

omitted).

      The Commonwealth contends in its Pa.R.A.P. 2119(f) statement that

the sentencing court “focused more narrowly on [Klinger’s] status as a

juvenile and his behavior during his time incarcerated without due

consideration   for   the   other    individualized    factors   and    circumstances

surrounding the murder[.]” Commonwealth’s Brief at 20. In essence, the

Commonwealth      contends    that    the   PCRA      court   weighed    the   various

sentencing factors incorrectly. Such a claim does not present a substantial

question for our review. Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.

Super. 2014) (“[W]e have held that a claim that a court did not weigh the

factors as an appellant wishes does not raise a substantial question.”).

      Even if the Commonwealth had raised a substantial question, its

argument on appeal is nothing more than a request for this Court to reweigh

the sentencing factors differently than the PCRA court.            Commonwealth’s

Brief at 27-31. This we cannot do. See Commonwealth v. Moury, 992


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A.2d 162, 170 (Pa. Super. 2010) (citation omitted) (“An abuse of discretion

may not be found merely because an appellate court might have reached a

different conclusion, but requires a result of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support so as to be

clearly erroneous.”).

       The PCRA court had the benefit of Klinger’s court record dating from

1971 to the present, including all of the hearing transcripts and opinions; his

probation department file; his 2016 pre-sentence investigation report; three

defense expert reports; one Commonwealth expert report; the arguments of

counsel; numerous exhibits detailing the murder and Klinger’s rehabilitation;

and Klinger’s statements of apology. See N.T., 11/15/2017, at 99-102. The

PCRA court thoroughly considered all of that evidence in light of the relevant

case law and extensively outlined its analysis of the requisite sentencing

factors.   Id. at 103-120.   After balancing those factors, the PCRA court

concluded that although it was “a horrible, egregious killing[,]” the

“Commonwealth has not demonstrated that [] Klinger has reached the level

of incorrigibility that is required now under Miller[], Montgomery and

Batts to have life without parole as a sentence.” N.T., 11/15/2017, at 120,

131.   Instead, the PCRA court determined that a minimum-term-of-years

sentence of 46 years was appropriate. Id. at 126-29, 133-34, 140. We find

no abuse of discretion in that conclusion. As aptly stated by the PCRA court,

the fact that it “did not weigh the facts and circumstances in the same


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manner as the Commonwealth neither constitutes an abuse of discretion nor

demonstrates a deviation from sentencing norms.”    PCRA Court Opinion,

3/14/2018, at 18.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 1/11/19




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