J-A09030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN F. NOLE                               :
                                               :
                       Appellant               :   No. 873 EDA 2018

            Appeal from the Judgment of Sentence November 3, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0915321-1969


BEFORE:      KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.:                                FILED APRIL 29, 2019

       John F. Nole (Appellant) appeals from the judgment of sentence entered

following resentencing pursuant to Miller v. Alabama, 567 U.S. 460 (2012)

and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).1 Upon review, we

affirm.

       The Pennsylvania Supreme Court summarized the underlying facts of

Appellant’s case as follows:

       In the late afternoon of February 22, 1969, [A]ppellant, then
       seventeen years of age, and two other youths entered a
       neighborhood candy store owned and operated by eighty-one-
____________________________________________


1 In Miller, the Supreme Court of the United States “held that a juvenile
convicted of a homicide offense could not be sentenced to life in prison without
parole absent consideration of the juvenile’s special circumstances in light of
the principles and purposes of juvenile sentencing.” See Commonwealth v.
Bebout, 186 A.3d 462, 472 n.1 (Pa. Super. 2018) (citations omitted). In
Montgomery, the Supreme Court held that Miller announced a substantive
rule of constitutional law that applies retroactively. Id.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       year-old Joseph Shayka and his wife, Helen Shayka. One of the
       [A]ppellant’s companions held a knife to the husband’s neck.
       Appellant pointed a gun at the husband; struck him several times
       in the stomach with his fists and the gun; and demanded money.
       The cash register was then rifled and the youths ran out. The
       husband collapsed and died shortly thereafter of a massive
       internal hemorrhage resulting from the rupture of his abdominal
       aorta.

Commonwealth v. Nole, 336 A.2d 302, 304 (Pa. 1975) (denying PCRA

relief).

       Although Appellant was 17 years old on February 22, 1969, he was tried

as an adult and originally sentenced to life imprisonment without the

possibility of parole.    After the United States Supreme Court’s decisions in

Miller and Montgomery, Appellant was resentenced to 48 years to life in

prison with parole.2 The resentencing court explained:

             [Appellant] had been convicted in May of 1970 of first-
       degree murder, robbery, burglary, and weapons offenses and was
       sentenced March 31, 1971[] to . . . life imprisonment. [Appellant]
       thereafter filed a notice of appeal with the Pennsylvania Supreme
       Court, which on July 1, 1972, affirmed the judgment of sentence.
       Commonwealth v. Nole, 292 A.2d 331 (Pa. 1972). Over the
       ensuing decades, [Appellant] unsuccessfully sought post-
       conviction collateral relief on many occasions. It was not until
       [the decisions in Miller v. Alabama and Montgomery v.
       Louisiana that Appellant] was successful . . . .

            Following the imposition of sentence by [the trial court on
       November 3, 2017], [Appellant] filed a post-sentence motion that
       was denied by operation of law on March 9, 2018. On March 26,
       2018, [Appellant] filed a notice of appeal from the order imposing
       judgment of sentence.

____________________________________________


2 In its brief, the Commonwealth states that “[a]ccording to prison records,
[Appellant] was granted parole on January 17, 2019.” Commonwealth Brief
at 3.

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Trial Court Opinion, 5/1/18, at 1-2 (footnote omitted).

       Preliminarily, we note that Appellant did not file a statement of errors

complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure

1925(b). However, as the record does not indicate that the trial court ordered

Appellant to file a statement, we do not find waiver.3

       On appeal, Appellant raises two issues:

       1. Is it unconstitutional to impose a mandatory lifetime parole tail
       on all juvenile lifers being re-sentenced?

       2. Was it not mandated that at re-sentencing a judge may only
       impose sentences for lesser included offenses after Miller v.
       Alabama, 567 U.S. 460 (2012) struck down the Pennsylvania
       sentencing scheme that imposed mandatory life sentences on all
       juveniles convicted of murder?

Appellant’s Brief at 3.

       Both of Appellant’s issues dispute the legality of his sentence. “Issues

relating to the legality of a sentence are questions of law. Our standard of

review over such questions is de novo and our scope is plenary.”

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014) (citation

omitted). Further:



____________________________________________


3 “In determining whether an appellant has waived his issues on appeal based
on non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that
triggers an appellant’s obligation under the rule.” In re Estate of Boyle, 77
A.3d 674, 676 (Pa. Super. 2013) (citation omitted); see also
Commonwealth v. Thomas, 451 A.2d 470, 474 n.8 (Pa. Super. 1982)
(“According to Rule 1925(b) the lower court must order a concise statement
of [errors] complained of on appeal and an appellant must fail to comply with
such directive before this Court can find waiver[.]”) (citing Pa.R.A.P. 1925(b)).

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      The scope and standard of review applied to determine the legality
      of a sentence are well established. If no statutory authorization
      exists for a particular sentence, that sentence is illegal and subject
      to correction. An illegal sentence must be vacated. In evaluating
      a trial court’s application of a statute, our standard of review is
      plenary and is limited to determining whether the trial court
      committed an error of law.

Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (citation

omitted).

      Appellant first claims that his maximum life sentence with parole

violates the precedent set forth in Miller because “[w]hile the trial [court]

correctly determined that it was improper to impose a minimum sentence of

life imprisonment, the trial [court] incorrectly determined that he was required

to impose a maximum sentence with a mandatory lifetime parole tail.”

Appellant’s Brief at 9. Appellant avers that the trial court incorrectly believed

that it was mandated by Pennsylvania case law to re-sentence him to a

maximum term of life imprisonment. Id. at 9-10 (citing Trial Court Opinion,

5/1/18, at 2). Appellant argues that “the same standard must be applied to

mandatory minimum life sentences as well as mandatory maximum lifetime

parole tails . . . and the Commonwealth must establish permanent

incorrigibility beyond a reasonable doubt.” Id. at 11.

      In response, the Commonwealth states that it “agrees with [Appellant]

that the imposition of a mandatory maximum sentence of life imprisonment

for every juvenile convicted of first-degree murder is unconstitutional under

[Miller] and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).”


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Commonwealth Brief at 4. Nonetheless, the Commonwealth “acknowledges

that this Court has held otherwise.” Id. at 5. The Commonwealth concedes

“that this Court has ruled that whenever the sentencing court imposes a

minimum term-of-years sentence for a defendant convicted for first- or

second-degree murder, the maximum term must be set at life imprisonment.”

Id. (citing Commonwealth v. Olds, 192 A.3d 1188 (Pa. Super. 2018),

appeal denied, 297 WAL 2018 (Pa. 2018); Commonwealth v. Seskey, 170

A.3d 1105 (Pa. Super. 2017)).

      Instantly, the trial court explained:

             The claims [Appellant] raised have all been rejected by our
      appellate courts which have ruled that a sentencing court has no
      authority to impose anything other than a maximum sentence of
      life imprisonment upon juveniles convicted of offenses carrying
      mandatory life sentences. See Commonwealth v. Seskey, 170
      A.3d 1105 (Pa. Super. 2017), citing Commonwealth v. Batts,
      163 A.3d 410 (Pa. 2017). See also Commonwealth v. Melvin,
      172 A.3d 14 (Pa. Super. 2017) (holding that sentencing court has
      no discretion to impose anything but a maximum life sentence on
      juvenile previously convicted of a homicide offense requiring
      sentence of life imprisonment with no parole and that such
      sentence is not unconstitutional). Thus, this Court lacks the
      authority to ignore those rulings and it is suggested that the
      judgment of sentence be affirmed based on the holdings of those
      cases.

Trial Court Opinion, 5/1/18, at 2-3.

      The trial court is right. This Court recently summarized:

            In 2012, the United States Supreme Court decided Miller,
      [] which held mandatory life without parole sentences for those
      under the age of 18 at the time of their crimes violate the Eighth
      Amendment’s prohibition on “cruel and unusual punishments.”
      Miller, 567 U.S. at 465. The Supreme Court held that a juvenile
      homicide defendant could only be sentenced to life without the

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J-A09030-19


      possibility of parole if he or she is determined to be permanently
      incorrigible, irreparably corrupt, or irretrievably depraved. Miller,
      567 U.S. at 471. Thereafter, in [Montgomery v. Louisiana, 136
      S. Ct. 718 (2016)], the Court held that Miller applies retroactively
      to cases on collateral review, opening the door for those eligible
      to seek collateral relief. [Id. at 732-37].

Commonwealth v. Lee, --- A.3d ---, 2019 WL 986978, at *1 (Pa. Super.

Mar. 1, 2019) (footnote omitted).

      The Pennsylvania Supreme Court, in Commonwealth v. Batts, 66 A.3d

286 (Pa. 2013) (Batts I), addressed sentencing of a juvenile offender

convicted of first-degree murder.     Noting that the United States Supreme

Court in Miller declined to place a “categorical ban” on life-without-parole

sentences for juvenile offenders, the Supreme Court in Batts I held that

juvenile offenders convicted of first-degree murder could be subject to a life-

without-parole sentence only after the sentencing court considered the criteria

outlined in Miller. Id. at 296-99. Four years later, the Pennsylvania Supreme

Court in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (Batts II),

further examined the procedure for resentencing juvenile offenders who were

improperly sentenced to life without parole prior to Miller. Applying Batts

II, this Court in Commonwealth v. Seskey, 170 A.3d 1105 (Pa. Super.

2017), rejected the argument that “the trial court possessed unfettered

sentencing discretion,” and expressly held that Batts II “requires that an

individual convicted of first or second-degree murder for a crime committed

as a minor be sentenced to a maximum term of life imprisonment.” Id. at

1105-1106.

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      In addressing the appeal of a similarly-situated defendant, this Court

recently held in Commonwealth v. Ligon, --- A.3d ---, 2019 WL 1395450

(Pa. Super. Mar. 28, 2019), that in resentencing post-Miller under both Batts

II and Seskey, “the re-sentencing court [is] required to sentence [a

defendant] to a maximum term of life imprisonment.”           Id. at *3.    We

specifically pronounced that “a sentence with a term of years minimum and a

maximum sentence of life does not violate Miller’s individualized sentencing

requirement, because it properly leaves the ultimate decision of when a

defendant will be released to the parole board.” Id. (emphasis added). We

therefore concluded that Ligon’s “argument that ‘there is no relevant statute

or appellate case law requiring the imposition of a lifetime parole tail,’ [wa]s

incorrect.” Id.

      In light of the above precedent, when a trial court is faced with

resentencing a juvenile who was originally sentenced, pre-Miller, to life

imprisonment without the possibility of parole:

      For those defendants for whom the sentencing court determines
      a life-without-parole sentence is inappropriate, “it is our
      determination here that they are subject to a mandatory
      maximum sentence of life imprisonment as required by
      Section 1102(a), accompanied by a minimum sentence
      determined by the common pleas court upon re[-]sentencing[.]”

Batts II, 163 A.3d at 421 (quoting Batts I, 66 A.3d at 296-97) (emphasis

added).    “The sentencing court should fashion a minimum term of




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incarceration using, as guidance, [S]ection 1102.1(a) of the Crimes Code.”

Id. at 484.4

       Instantly, Appellant was 17 years old when he committed first-degree

murder and was originally sentenced to life imprisonment without the


____________________________________________


4Section 1102.1, which the General Assembly enacted in the wake of Miller,
sets the guidelines for sentencing persons who commit first-degree murder
while under the age of 18:

       (a) First degree murder.--A person who has been convicted
       after June 24, 2012, of a murder of the first degree, first degree
       murder of an unborn child or murder of a law enforcement officer
       of the first 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
          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.A. § 1102.1(a)(1) (emphasis added). In Ligon, we stated:

       Section 1102.1 provides a clear expression of legislative intent as
       to juveniles that are convicted of first-degree murder post-Miller.
       Although, the statute itself does not apply to [defendants
       convicted after June 24, 2012], it does apply to all similarly-
       situated defendants who were sentenced after its enactment.
       Mindful of the difference in treatment accorded to those subject
       to non-final judgments of sentence for murder as of Miller’s
       issuance, and the enactment of [Section] 1102.1, our Supreme
       Court has ordered trial courts to resentence juveniles to a
       maximum term of life imprisonment. Batts II, supra. We are
       bound to follow its mandate.

Ligon, 2019 WL 1395450 at *3.




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possibility of parole. The trial court, in resentencing Appellant, was required

to impose upon Appellant a maximum term of life imprisonment, and a

minimum term-of-years using Section 1102.1(a) as guidance. 18 Pa.C.S.A. §

1102(a)(1); Batts II, 163 A.3d at 421 (quoting Batts I, 66 A.3d at 296-97).

See also Ligon, 2019 WL 1395450 at *3 (“Under Batts II and Seskey, the

resentencing court was statutorily required to sentence [a]ppellant to a

maximum term of life imprisonment.”). As the trial court sentenced Appellant

to a minimum of 48 years, and a maximum term of life imprisonment with

the possibility of parole, Appellant’s sentence was proper.5




____________________________________________


5   The Pennsylvania Supreme Court stated:

       Despite the passage of four years since we issued our decision in
       Batts I, the General Assembly has not passed a statute
       addressing the sentencing of juveniles convicted of first-degree
       murder pre-Miller, nor has it amended the pertinent provisions
       that were severed in Batts I. As we have previously stated, the
       General Assembly is quite able to address what it believes is a
       judicial misinterpretation of a statute, and its failure to do so in
       the years following the Batts I decision gives rise to the
       presumption that the General Assembly is in agreement with our
       interpretation.

Batts II, 163 A.3d at 445 (citations and footnote omitted). See also Moses
v. T.N.T. Red Star Exp., 725 A.2d 792, 801 (Pa. Super. 1999) (“It is not the
prerogative of an intermediate appellate court to enunciate new precepts of
law or to expand existing legal doctrines. Such is a province reserved to the
Supreme Court.”); Commonwealth v. Montini, 712 A.2d 761, 769 (Pa.
Super. 1998) (“[T]he Superior Court is an error correcting court and we are
obliged to apply the decisional law as determined by the Supreme Court of
Pennsylvania.”).


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      In his second issue, Appellant asserts that “[w]hen the United States

Supreme Court in Miller struck down mandatory life sentences for juveniles

convicted of murder, it invalidated the only Pennsylvania sentencing scheme

in place,” and therefore, “this Court should utilize the only sentencing scheme

left intact after Miller: sentencing on lesser included offenses.” Appellant’s

Brief at 8. Appellant requests that “this Court . . . remand for re-sentencing

on all lesser-included offenses.” Id. However, Appellant concedes that “this

argument was rejected by the Pennsylvania Supreme Court in [Batts I] and

[Batts II] . . .” Appellant’s Brief at 16-17.

      The Commonwealth likewise acknowledges that Appellant’s “argument

has twice been rejected by the Pennsylvania Supreme Court,” and “[n]o relief

is due.” Commonwealth Brief at 7 (citing Batts I and Batts II).

      Both parties recognize that the Pennsylvania Supreme Court has “found

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

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

murder.”   Batts II, 163 A.3d at 457.         As with the defendant in Ligon,

Appellant in this case has received the full benefit of Miller and its progeny.

See Ligon, 2019 WL 1395450 at *4. We therefore conclude the trial court

did not err in resentencing Appellant.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/19




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