J-S45002-18

                                   2019 PA Super 99

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SCOTT CHARLES DAVIS,                       :
                                               :
                       Appellant               :       No. 76 MDA 2018

           Appeal from the Judgment of Sentence December 7, 2017
                 in the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-MD-1000728-1980

BEFORE:      OTT, J., MUSMANNO, J., and PLATT*, J.

OPINION BY MUSMANNO, J.:                       FILED: MARCH 29, 2019

        Scott Charles Davis (“Davis”) appeals from the judgment of sentence

imposed after he was resentenced pursuant to Miller v. Alabama, 567 U.S.

460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).1, 2 We

affirm in part, vacate in part, and remand with instructions.

        In 1980, Davis, who was 15 years old, shot and killed Roderick Kotchin.

On May 7, 1981, following a jury trial, Davis was convicted of murder in the

first degree.3 The trial court sentenced Davis to a mandatory term of LWOP,
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1  The Supreme Court in Miller held that sentencing schemes that mandate
life in prison without parole (“LWOP”) sentences for defendants who
committed their crimes while under the age of eighteen violate the Eighth
Amendment’s prohibition on “cruel and unusual punishments.” Miller, 567
U.S. at 465.

2The Supreme Court in Montgomery held that the Miller decision announced
a new substantive rule of constitutional law that applies retroactively.
Montgomery, 136 S. Ct. at 736.

3   See 18 Pa.C.S.A. § 2502(a).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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and ordered Davis to pay the costs of prosecution.4           This Court and the

Pennsylvania Supreme Court affirmed the judgment of sentence.                See

Commonwealth v. Davis, 479 A.2d 1041 (Pa. Super. 1984), aff’d, 510 A.2d

722 (Pa. 1986).

       Following a procedural history not relevant to this appeal, the United

States District Court for the Middle District of Pennsylvania granted Davis’s

Petition for Writ of Habeas Corpus based upon Miller and Montgomery. See

Davis v. Wetzel, No. 3:13-CV-1687 (M.D. Pa. 2016) (unpublished

memorandum). The federal district court ordered the York County Court of

Common Pleas to resentence Davis.                After a hearing, the trial court

resentenced Davis to 40 years to life in prison, and ordered Davis to pay the

costs of prosecution.5 Davis filed Post-Sentence Motions, which the trial court

denied. Davis filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

       On appeal, Davis raises the following questions for our review:

       1. Did the resentencing court commit an error of law and abuse
       its discretion by ignoring the mandate of the Pennsylvania
       Supreme Court in Commonwealth v. Batts, 163 A.3d 410 (Pa.
       2017)[(“Batts II”),] which held that [Davis] should have been re-
       sentenced to 35 years to life [in prison]?

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4The costs assessed against Davis at that time totaled $1,248.78. See Court
Commitment, 6/15/82, at 1 (pages unnumbered).

5 The costs assessed against Davis relative to resentencing were $20,674.73,
and included charges for “transport costs,” “transcript fees,” and “witness
fees.” See Trial Court Docket, 11/14/18, at 20.

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       2. Did the resentencing court commit an error of law and abuse
       its discretion when it imposed costs [on Davis]?

       3. Did the resentencing court commit an error of law and abuse
       its discretion by not ordering the Commonwealth to compensate
       [Davis] for his costs and attorneys’ fees?

Brief for Appellant at 2.

       In his first claim, Davis alleges that the trial court’s sentence of 40 years

to life in prison is an illegal sentence.6 See id. at 8-21. Davis argues that

there is no statutory authority for the trial court’s sentence. Id. at 8-9. Davis

claims that 18 Pa.C.S.A. § 1102.1 requires the trial court to sentence him to

a 35-year minimum sentence. Id. at 9-21. According to Davis, 18 Pa.C.S.A.

§ 1102.1(e) does not apply to him, because he committed his crime prior to

the Supreme Court’s holding in Miller. Id.

       “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 of review is

plenary.”    Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super.

2014) (brackets and ellipses omitted).

       Section 1102.1 states, in relevant part, as follows:

       § 1102.1. Sentence of persons under the age of 18 for
       murder, murder of an unborn child and murder of a law
       enforcement officer
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6 Although Davis’s Statement of Questions Involved is vague as to whether
his first claim challenges the legality of his sentence or the discretionary
aspects of his sentence, his Reply Brief makes it clear that he is challenging
the legality of his sentence. See Reply Brief of Appellant at 2-3 (stating that
“[Davis] challenged the legality of his sentence, not the discretionary aspect
of the sentence….”). Accordingly, we will limit our review on this claim to the
legality of the sentence.

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      (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.

                                      ***

      (e) Minimum sentence.--Nothing under this section shall
      prevent the sentencing court from imposing a minimum
      sentence greater than that provided in this section. …

18 Pa.C.S.A. § 1102.1 (emphasis added).

      In Batts II, our Supreme Court set forth the guidelines for resentencing

defendants    whose   sentences   had   been   declared   unconstitutional   by

Miller/Montgomery. The Court instructed, “look to the mandatory minimum

sentences set forth in [S]ection 1102.1(a) for guidance in setting a minimum

sentence for a juvenile convicted of first-degree murder prior to Miller.”

Batts II, 163 A.3d at 443 n.16. Further, the Court in Batts II held that the

sentencing court may deviate upwards from the mandatory minimum. See

id. at 443 (stating that “[s]ubsection (e) makes clear that [35 years in prison]

is only the minimum sentence required….         In determining the minimum

sentence for a juvenile convicted of first-degree murder prior to Miller, a

sentencing court is to exercise its discretion to find the appropriate,




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individualized sentence in each case, just as it would when fashioning the

minimum sentence for any other defendant before it.”).

       Here, the trial court sentenced Davis to 40 years to life in prison.7

Accordingly, because trial courts may exercise discretion in imposing

sentences beyond the 35-year minimum provided for in Section 1102.1(a),

see Batts II, 163 A.3d at 443, Davis’s sentence is not illegal.          See 18

Pa.C.S.A. § 1102.1(e).

       In his second claim, Davis alleges that the sentencing court imposed an

illegal sentence by ordering him to pay the costs of prosecution associated

with his resentencing.8 See Brief for Appellant at 21-34. Davis alleges that

the costs imposed against him are not related to his “prosecution” under 16


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7 Although Davis did not challenge the discretionary aspects of his sentence
on appeal, we briefly note that the trial court considered the testimony and
reports of expert witnesses for Davis and the Commonwealth, and Davis’s
testimony. The trial court analyzed, in detail, each of the Miller “hallmark
factors,” see Miller, 567 U.S. at 477-78, and the sentencing factors set forth
at 18 Pa.C.S.A. § 1102.1(d). See N.T., 12/7/17, at 7-23. Significantly, the
trial court voiced concern with Davis’s lingering psychological issues and
continued danger to the community. Id. at 23.

8 Although Davis phrases his second claim as whether the trial court abused
its discretion, see Brief for Appellant at 2, a challenge to the trial court’s
imposition of costs presents a legality of sentencing claim.                  See
Commonwealth v. Garzone, 993 A.2d 306, 316 (Pa. Super. 2010) (stating
that “inasmuch as [a]ppellant’s argument is premised upon a claim that the
trial court did not have the authority to impose the costs at issue, [a]ppellant
has presented a legality of sentencing claim.”). Accordingly, we limit our
review of Davis’s second claim to the legality of the court’s imposition of costs.




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P.S. § 1403.9 See Brief for Appellant at 23-27. Further, Davis asserts that

the costs should be paid by the Commonwealth because the costs were

unnecessary and unreasonable. Id. at 27-32. Finally, Davis claims that the

costs cannot be imposed because he is indigent. Id. at 32-33.

        In order to determine whether the costs imposed upon Davis fall within

the purview of Section 1403, we must look to the language of the statute.

This issue is one of statutory interpretation, which is a question of law and

requires a de novo standard of review. See Commonwealth v. Segida, 985

A.2d 871, 874 (Pa. 2009). Pursuant to the Statutory Construction Act, 10 “our

paramount interpretive task is to give effect to the intent of our General

Assembly      in    enacting      the    particular   legislation   under   review.”

Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011).                    See also 1

Pa.C.S.A. § 1921(a) (providing that “[t]he object of all interpretation and

construction of statutes is to ascertain and effectuate the intention of the

General Assembly. Every statute shall be construed, if possible, to give effect

to all its provisions.”). “The best indication of the General Assembly’s intent

may be found in the plain language of the statute.”             Commonwealth v.

Popielarcheck, 190 A.3d 1137, 1140 (Pa. 2018). Consequently, “[w]hen the



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9 Davis also alleges that 42 Pa.C.S.A. § 9728 does not authorize the costs
imposed against him. However, because the trial court relied on 16 P.S.
§ 1403 in imposing costs, we limit our analysis to Section 1403.

10   See 1 Pa.C.S.A. §§ 1501-1991.

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words of a statute are clear and free from all ambiguity, the letter of it is not

to be disregarded under the pretext of pursuing its spirit.”        1 Pa.C.S.A.

§ 1921(b); see also id. § 1922(1) (stating that “the General Assembly does

not intend a result that is absurd, impossible of execution or unreasonable.”).

      Section 1403 states the following:

      § 1403. Expenses incurred by district attorney

      All necessary expenses incurred by the district attorney or his
      assistants or any office directed by him in the investigation of
      crime and the apprehension and prosecution of persons charged
      with or suspected of the commission of crime, upon approval
      thereof by the district attorney and the court, shall be paid by the
      county from the general funds of the county. In any case where
      a defendant is convicted and sentenced to pay the costs of
      prosecution and trial, the expenses of the district attorney in
      connection with such prosecution shall be considered a part of the
      costs of the case and be paid by the defendant.

16 P.S. § 1403.

      While Section 1403 does not define “prosecution” or “costs of

prosecution,” “[t]he term ‘prosecution’ [must] be read as synonymous with

‘conviction.’” Commonwealth v. Moran, 675 A.2d 1269, 1272 (Pa. Super.

1996); see also id. (stating that 16 P.S. § 1403 “explicitly permits a District

Attorney to be reimbursed for expenses incurred in prosecuting cases, with

the proviso that the defendant be ‘convicted’ and the expenses have arisen ‘in

connection with such prosecution.’”); Commonwealth v. Ramirez, 533 A.2d

116, 118-19 (Pa. Super. 1987) (holding, in the context of determining when

prosecutions are barred by former prosecutions under Section 111 of the

Crimes Code, that the “prosecution” is completed when a defendant is


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acquitted or convicted).     Further, Section 1403 makes no mention of

sentencing or sentencing costs. Thus, because the purpose of imposing the

costs of prosecution against the defendant is to reimburse the Commonwealth

for the expenses incurred preparing a case for, and conducting, a trial,

“prosecution” ends with the conviction or acquittal of the defendant.      See

Commonwealth v. Coder, 415 A.2d 406, 408 (Pa. 1980) (stating that “[t]he

purpose of [Section 1403] is to recoup the costs of trial where a jury finds the

defendant guilty beyond a reasonable doubt[.]”).

      Here, the trial court resentenced Davis, in part, to pay costs that were

purportedly incurred by the Commonwealth relative to Davis’s resentencing.

See Court Commitment, 6/15/82, at 1 (unnumbered).                 As we have

determined that, under 16 P.S. § 1403, “prosecution” ends at the time of a

conviction or acquittal, the trial court imposed an illegal sentence by ordering

Davis to pay the costs relative to his resentencing.        Moreover, Davis’s

resentencing, through no fault of his own, occurred only after his sentence

was deemed unconstitutional, and he should not be liable for such costs. See

generally Commonwealth v. Weaver, 76 A.3d 562, 574 (Pa. Super. 2013);

Commonwealth v. Garzone, 993 A.2d 306, 318-20 (Pa. Super. 2010).

Accordingly, we vacate the portion of Davis’s sentence that ordered him to

pay the costs of prosecution, and remand for resentencing for the following

reasons.




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        It is unclear from the record before us which costs assessed against

Davis were denoted “costs of prosecution” by the trial court. See Trial Court

Docket, 11/14/18, at 20.          We therefore remand to the trial court for a

determination of the origin of the costs. Any costs not considered “costs of

prosecution,” as defined in this Opinion, shall not be imposed upon Davis.11

        Judgment of sentence affirmed in part and vacated in part.           Case

remanded with instructions. Superior Court jurisdiction relinquished.

        Judge Platt did not participate in the consideration or decision of this
case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/29/2019




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11   We need not address Davis’s remaining claims in light of our disposition.


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