J-A25035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERTO GONZALEZ JR.,                      :
                                               :
                       Appellant               :        No. 1861 MDA 2018

       Appeal from the Judgment of Sentence Entered March 28, 2018
                in the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0003107-1989

BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED JANUARY 13, 2020

       Roberto Gonzalez, Jr. (“Gonzalez”), appeals from the judgment of

sentence imposed following his resentencing pursuant to Miller v. Alabama,

567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718

(2016),1 on a 1990 conviction for first-degree murder, aggravated assault,

recklessly    endangering      another    person,   criminal   mischief,   possessing

instruments of crime, and criminal conspiracy.2 After extensive review of the

record, we affirm.


____________________________________________


1 In Miller, the Supreme Court of the United States ruled that the Eighth
Amendment prohibits mandatory sentences of life without the possibility of
parole (“LWOP”) for juvenile offenders. Miller, 567 U.S. at 489. In
Montgomery, the Court held that Miller had announced a new substantive
constitutional rule that applied retroactively on state collateral review.
Montgomery, 136 S. Ct. at 736.

2 18 Pa.C.S.A. §§ 2502(a); 2702(a)(1), (4); 2705; 3304(a)(1); 907(a);
903(a).
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        Gonzalez’s convictions arose out of events that transpired on October 7,

1989, when Gonzalez was seventeen years old. Gonzalez was one of several

juveniles traveling in several vehicles on the way home from a party in

Reading, Pennsylvania.        During the drive home, Gonzalez and his friends

became involved in a confrontation with another driver, Joby Cipolla

(“Cipolla”). Gonzalez was under the influence of alcohol and marijuana. The

vehicles came to a stop, and Gonzalez exited his vehicle and engaged in a

physical confrontation with Cipolla, resulting in Gonzalez and three other

juveniles surrounding Cipolla, punching and kicking him until he fell to the

ground.     There, Gonzalez ultimately struck Cipolla with a wooden pickaxe

handle and damaged Cipolla’s vehicle with the weapon before fleeing the

scene. Cipolla sustained massive head injuries, and ultimately died from those

injuries on October 26, 1989.

        Gonzalez was arrested and arraigned in juvenile court on October 19,

1989. Following Cipolla’s death, Gonzalez’s juvenile charges were withdrawn,

and he was charged as an adult. On July 25, 1990, a jury found Gonzalez

guilty of first-degree murder, aggravated assault, recklessly endangering

another person, criminal mischief, possessing an instrument of a crime, and

criminal conspiracy. On October 24, 1990, he was sentenced to LWOP for

first-degree murder, a concurrent term of 4 to 10 years in prison for criminal

conspiracy, and an additional 1 to 2 years consecutively for criminal mischief.3

____________________________________________


3   The remaining offenses merged with these counts for sentencing purposes.

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        Following his convictions, Gonzalez pursued a timely direct appeal of his

judgment of sentence, and thereafter filed nine petitions under the Post

Conviction Relief Act (“PCRA”)4 between 1994 and 2014, all of which were

denied.    After the United States Supreme Court’s decisions in Miller and

Montgomery, Gonzalez filed his tenth PCRA Petition, raising a claim pursuant

to Miller. Gonzalez was granted a resentencing hearing, which the trial court

held on March 28, 2018. At the hearing, the trial court heard testimony from

Cipolla’s brother, Gonzalez’s middle school gifted-support teacher, a counselor

from the facility in which Gonzalez was incarcerated, Gonzalez’s sister, and

from Gonzalez himself.          N.T. (Resentencing), 3/28/18, at 12-60.      The

resentencing court also reviewed several misconduct reports related to

Gonzalez’s time in prison, written testimony from several of Cipolla’s family

members, as well as documentation related to certifications earned by

Gonzalez while in prison. Id. at 7-15; 47-49.

        At the hearing, the Commonwealth requested a new sentence of 35

years to life in prison for the murder conviction, while Gonzalez requested a

new sentence of 28 and a half years to life in prison, i.e., time served. Id. at

15, 61.     After hearing testimony and reviewing the submitted evidence,

Gonzalez was resentenced to new terms of 34 years to life in prison on the




____________________________________________


4   See 42 Pa.C.S.A. §§ 9541-9546.



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murder count, a consecutive 1 to 2 years for criminal mischief, as originally

imposed, and 4 to 10 years concurrently for conspiracy, as originally imposed.

       Gonzalez filed a post-sentence Motion, which was denied on October 31,

2018. Gonzalez proceeded to timely file a Notice of Appeal,5 the trial court

ordered Gonzalez to file a concise statement pursuant to Pa.R.A.P. 1925(b),

and he timely complied. On February 8, 2019, the trial court issued its Rule

1925(a) Opinion.

       Gonzalez raises the following questions for our review:




____________________________________________


5  A notice of appeal must be filed within 30 days from the denial of a post-
sentence motion. See Pa.R.Crim.P. 720(A)(2)(a). Here, Gonzalez initially
filed a timely post-sentence Motion on April 3, 2018, and he requested and
the court granted a 60-day extension to file an amended Motion. However,
he did not file a 30-day extension pursuant to Pa.R.Crim.P. 720(B)(3)(b)
(allowing judges, for good cause shown, to grant one 30-day extension for
decision on the motion, and stating that a failure to decide on the motion
within the extension period requires a denial of the motion by operation of
law). The trial court did not issue an order denying the Motion by operation
of law, pursuant to Pa.R.Crim.P. 720(B)(3)(a) and Pa.R.Crim.P. 720(B)(3)(c),
until November 2, 2018. Gonzalez filed the instant Notice of Appeal on
November 9, 2018. Our review of the record shows that while Gonzalez’s
Notice of Appeal was filed outside of the 30-day filing period, it is properly
before this Court based on the apparent breakdown of court proceedings. See
Commonwealth v. Patterson, 940 A.2d 493, 498-99 (Pa. Super. 2007)
(stating that “[t]he courts of this Commonwealth have held that a court
breakdown occurred … where the clerk of courts did not enter an order
notifying the appellant that his post-sentence motion was denied by the
operation of law.”).




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          1. Whether the [trial] court erred by imposing a sentence of
             34 years-to-life without considering the constitutionally-
             required Miller factors[?6]

          2. Whether the [trial] court erred and abused its discretion by
             failing to put on the record adequate reasoning for the
             sentences it imposed[?]

          3. To the extent that the [trial] court considered the Miller
             factors, whether the [trial] court abused its discretion and
             imposed an excessive sentence because its consideration of
             the Miller factors was inadequate and erroneous[;] did not
             account for the presumption of immaturity[;] reduced
             culpability of and greater prospects for reform of the
             adolescent offender[;] and did not afford [] Gonzalez an
             individualized analysis of an appropriate sentence[?]

          4. Whether the [trial] court erred and abused its discretion in
             imposing an unconstitutional life tail[?]

          5. Whether the [trial] court erred in imposing a sentence for
             first-degree murder[,] rather than the most severe lesser[-
             ]included offense for which a valid, constitutional sentencing
             scheme existed at the time of his conviction[?]

          6. Whether the [trial] court’s imposition of a consecutive
             sentence for criminal mischief violated double jeopardy
             prohibitions[?]

Brief for Appellant at 4-5 (footnote added).

       In his first issue, Gonzalez argues that the trial court committed legal

error by insufficiently considering the sentencing factors as outlined in Miller,

Commonwealth           v.   Batts,    66       A.3d   286   (Pa.   2013)   (“Batts   I”),
____________________________________________


6 The Supreme Court of the United States listed several of the “hallmark
features” that must be included when imposing sentences of LWOP, including
immaturity, impetuosity, and failure to appreciate risks and consequences;
family and home environment; the circumstances of the offense, including
familial and peer pressure; inability to deal with police officers, prosecutors,
or his own attorneys; and the possibility of rehabilitation (the “Miller
factors”). Miller, 567 U.S. at 477-78.

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

Commonwealth v. Machicote, 206 A.3d 1110 (Pa. 2019).                    Brief for

Appellant at 15. In particular, he argues that the trial court failed to properly

individualize his sentence pursuant to Miller by failing to discuss the individual

Miller factors on the record. Id. at 15-16.

      A claim that a sentencing court failed to comply with the requirements

in Miller is a challenge to the legality of the sentence. Machicote, 206 A.3d

at 1119. When reviewing the legality of a sentence, our standard of review is

de novo and our scope of review is plenary. Commonwealth v. Seskey, 170

A.3d 1105, 1107 (Pa. Super. 2017). A sentence must be vacated if it is found

to be illegal.   Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super.

2014).

            In [Machicote], our Supreme Court revisited the
      circumstances in which a sentencing court must consider the
      Miller factors when resentencing a juvenile offender. In that
      case, the appellant was originally convicted of second-degree
      murder in 2004 for a crime committed when he was 17[,] and
      received a life-without-parole sentence as required by Section
      1102 of the Crimes Code. At the appellant’s resentencing hearing
      pursuant to Miller and Montgomery, the Commonwealth
      requested a life-without-parole sentence, but the sentencing court
      ultimately imposed a sentence of 30 years to life imprisonment.
      The court, however, did not consider the Miller factors as they
      pertained to the appellant on the record at the resentencing
      hearing, and the appellant argued on appeal that the failure to
      consider the Miller factors rendered his new sentence
      unconstitutional. The Supreme Court agreed, holding that a court
      that performs a resentencing pursuant to Miller and
      Montgomery of a juvenile offender exposed to a potential life-
      without-parole sentence must conduct an individualized
      sentencing with reference to the Miller factors, as well as the


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      criteria listed in Section 1102.1(d), even where the sentencing
      court ultimately does not impose a life-without-parole sentence.

Commonwealth v. Lekka, 210 A.3d 343, 355 (Pa. Super. 2019) (footnote

omitted).

      In Lekka, this Court addressed a resentencing similar to the instant

appeal. There, the appellant was originally sentenced, as a 17-year-old, to

LWOP in 1979.     Id. at 347.   At his resentencing hearing in 2017, he was

resentenced to a term of 45 years to life in prison. Id. at 348. On appeal,

Lekka argued, in part, that the sentencing court erred in not applying the

Miller factors. Id. at 355. This Court disagreed, and determined that “[i]n

cases where the Commonwealth does not seek a [LWOP] sentence, the

application of the Miller factors is not required.”       Id. at 355-56 (citation

omitted).

      In this case, as in Lekka, the Commonwealth did not seek imposition of

LWOP at resentencing. Rather, the Commonwealth requested that Gonzalez

be resentenced to a term of 35 years to life. N.T. (Resentencing), 3/28/18,

at 14-15. As a result, Gonzalez was never “exposed to a potential sentence

of life without the possibility of parole[.]” Machicote, 206 A.3d at 1120; see

also Commonwealth v. White, 193 A.3d 977, 983 (Pa. Super. 2018)

(stating that “a sentencing court must consider these Miller factors only in

cases where the Commonwealth is attempting to meet its burden of

overcoming    the    presumption    against    juvenile     LWOP    sentences.”).

Accordingly, the resentencing court did not err in failing to consider the Miller

factors when calculating Gonzalez’s new sentence.

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      We will address Gonzalez’s second and third issues together, as both

involve the resentencing court’s evaluation and articulation of his sentence.

Gonzalez argues that the sentencing court abused its discretion by failing to

properly articulate the reasons for imposing Gonzalez’s sentence of 34 years

to life for the murder conviction. Brief for Appellant at 17-18. He argues that

the court failed to properly discuss the Miller factors and, as a result, the

court imposed an excessive sentence. Id. at 18-21. Further, he argues that

the court failed to discuss the reasons for its sentences for Gonzalez’s

conspiracy and criminal mischief convictions. Id. at 20. Finally, he argues

that the resentencing court placed disproportionate weight on the crime itself,

rather than on Gonzalez’s various individualized mitigating factors, including

his childhood circumstances, his immaturity at the time of the crime, his

subsequent maturity and work towards rehabilitation, and his commendable

plans after his release. See id. at 21-29.

      The Sentencing Code requires that a sentencing court must “make[,] as

part of the record, and disclose in open court at the time of sentencing, a

statement of the reason or reasons for the sentence imposed.” 42 Pa.C.S.A.

§ 9721(b).

      [A sentencing] court must state its reasons on the record at the
      time the sentence is imposed. Requiring the sentencing court to
      state its reasons at that time provides a procedural mechanism
      for the aggrieved party both to attempt to rebut the court’s
      explanation and inclination before the sentencing proceeding
      ends, and to identify and frame substantive claims for post-
      sentence motions or appeal. … The reasons must be given in
      open court at the time of sentencing.


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            [A]lthough a sentencing court need not undertake a lengthy
      discourse for its reasons for imposing a sentence, … the record as
      a whole must reflect the sentencing court’s consideration of the
      facts of the crime and character of the offender. A discourse on
      the court’s sentencing philosophy, as it applies to the defendant
      before it, is not required. But the reasons must reflect the judge’s
      consideration of the sentencing code, the circumstances of the
      offense[,] and the character of the offender.

Commonwealth v. Flowers, 149 A.3d 867, 875-76 (Pa. Super. 2016)

(quotations and citations omitted).

      At the outset, we note that Gonzalez’s argument that the sentencing

court failed to consider the Miller factors on the record is unavailing, as

Gonzalez was not facing a potential term of LWOP. See Lekka, supra. More

broadly, we find Gonzalez’s argument that the resentencing court failed to

properly express its reasons for imposing his new sentence to be

unpersuasive.   Here, the record shows that the resentencing court heard

extensive testimony from multiple parties, including individuals who spoke to

Gonzalez’s intelligence, adjustment to prison life, work done while in prison,

and his plans to become a productive citizen upon release.            See N.T.

(Resentencing), 3/28/18, at 12-33. Gonzalez himself testified extensively to

his remorse concerning the crime, his activities while in prison, and his plans

to assist others upon his release. See id. at 33-60.

      While we recognize that the resentencing court’s discussion of

Gonzalez’s new sentence was brief, we conclude that it complied with the

dictates of Section 9721(b). The resentencing court stated the following:

      In consideration of the sentence in this matter[,] the [c]ourt notes
      that this is a case that is clearly replete with tragedy. We have
      the tragedy of the dysfunction of the family structure and societal

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      structure that allowed this to occur, the tragedy of the waste of
      the potential of [Gonzalez] for education and contribution to
      society over the last 28 years, but the [c]ourt is also cognizant of
      the loss which occurred when Mr. Cipolla was cruelly murdered,
      and I’d like to extend my condolences to the Cipolla family for
      once again having to suffer through the legal proceedings that
      have occurred here. The [c]ourt has taken into consideration all
      the evidence that has been presented at this [re]sentencing
      hearing[,] as well as the entirety of the trial file with regard to this
      case. While I am both gratified and impressed with all [of] the
      accomplishments of [Gonzalez] while incarcerated, I believe that
      while I factored all of that into the sentences that are about to be
      imposed, that there is much greater relevance of all that in future
      hearings before the parole board. I am hopeful that when
      released, Mr. Gonzalez, that you[,] in fact[,] become an asset to
      society[,] whether through the aspirations that you have testified
      to here today coming to fruition[,] or if life leads you to some
      other path, that, in fact, is a contribution to society. …

Id. at 65-66. Accordingly, we find no abuse of discretion, and Gonzalez is not

entitled to relief on these claims.

      In his fourth issue, Gonzalez argues that the sentencing court abused

its discretion when it sentenced him to a maximum term of life in prison (his

“life tail”). Brief for Appellant at 30. He argues that the court’s imposition of

a maximum sentence of life in prison creates a de facto life sentence because

it was insufficiently individualized pursuant to Miller and Batts II. Id. at 30-

31.   He claims that imposing a maximum sentence of life in prison would

effectively result in LWOP if the parole board denies parole. Id. at 32.

      At the outset, we note that Gonzalez concedes that this Court has

previously determined that a maximum sentence of life in prison is

constitutional pursuant to our Supreme Court’s holding in Batts II.              See

Commonwealth v. Olds, 192 A.3d 1188, 1198 (Pa. Super. 2018) (holding



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that the imposition of a mandatory maximum sentence of life in prison for a

juvenile defendant convicted of second-degree murder prior to Miller was

constitutional); Seskey, 170 A.3d at 1109 (Pa. Super. 2017) (holding that a

resentencing court must impose a mandatory maximum sentence of life in

prison when resentencing a juvenile defendant who was convicted of first-

degree murder prior to Miller). As a result, we are bound to determine that

the resentencing court was required to sentence Gonzalez to a maximum term

of life in prison, and thus find no abuse of discretion.7

       In Gonzalez’s fifth issue, he argues that the resentencing court erred

when it sentenced him for first-degree murder, rather than sentencing him for

the most severe lesser-included offense of third-degree murder.        Brief for

Appellant at 33.      He argues that because Miller rendered the sentencing

scheme by which Gonzalez was sentenced unconstitutional, there is no

constitutional sentencing scheme in effect for pre-Miller juvenile offenders.

Id. As a result, Gonzalez argues, he should have been resentenced under the

only constitutional sentencing scheme that existed, which in this case would

have been for third-degree murder. Id. at 33-34.

       Our Supreme Court has capably addressed this issue in Batts II.

Therein, the Court reiterated its earlier decision in Batts I, stating “[it has]

found no support for the proposition that juveniles convicted of first-degree
____________________________________________


7 We note that Gonzalez states in his brief that he “raises this argument
[before this Court] to ensure it is appropriately preserved for review under the
federal constitution as it pertains to due process, criminal prosecutions, equal
protection, and cruel and unusual punishment.” Brief for Appellant at 31.

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murder pre-Miller should be sentenced as though they were convicted of

third-degree murder.” Batts II, 163 A.3d at 457. While we recognize that

Gonzalez concedes our Supreme Court’s ruling in Batts II, and states that he

is preserving this issue for a later appeal, we find no error in the resentencing

court’s formulation of his first-degree murder sentence.

       In Gonzalez’s final issue, he argues his consecutive sentence for criminal

mischief violated his constitutional protection against double jeopardy. Brief

for Appellant at 36. Specifically, he argues that because he was originally

adjudicated guilty of criminal mischief as a juvenile, the re-filing of charges in

the trial court as an adult, following Cipolla’s death, violated the prohibition

against double jeopardy. Id. at 37-38.

       Though Gonzalez phrases this claim as an attack on an unconstitutional

sentence, in essence he is attacking his 1989 criminal mischief conviction for

which he was later re-sentenced to an identical term in 2018.8           As stated

previously, Gonzalez eventually sought relief under Miller through a PCRA

petition, resulting in this Court remanding the case to the trial court for re-

sentencing of the murder conviction for which he was originally sentenced to

LWOP.     At this stage, Gonzalez’s only possible appealable issues following

remand      “would     be    [to]    challenges    to   the   sentence   imposed.”

____________________________________________


8 We note that Gonzalez had the benefit of a direct appeal from his original
sentence in 1992. There, he alleged multiple errors by the trial court but,
notably, did not allege a double jeopardy violation related to his criminal
mischief conviction. See Commonwealth v. Gonzalez, 609 A.2d 583 (Pa.
Super. 1992) (unpublished memorandum).

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Commonwealth v. Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002)

(citation omitted); see also Commonwealth v. Lawson, 789 A.2d 252, 253-

54 (Pa. Super. 2001) (stating that when a case is remanded to resolve a

limited issue, only matters related to that issue may be appealed). In other

words, we have long held that the grant of relief for resentencing is limited,

and does not entitle appellants to litigate claims unrelated to the resentencing.

See Anderson, supra.

      Here, Gonzalez does not challenge the sentence imposed, as the

sentence was identical to the original sentence imposed in 1989. Gonzalez’s

only claim, therefore, must go to the underlying conviction itself. Because

Gonzalez cannot file a second direct appeal attacking the underlying

convictions for which he was re-sentenced pursuant to Miller, his appeal

following remand is limited only to the issue of sentencing. Id. Accordingly,

Gonzalez’s double jeopardy claim is not properly before this Court, and we

may not address the merits of his claim.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2020




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