J-A05031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 MACK D’JUAN HILL                        :
                                         :
                   Appellant             :   No. 381 WDA 2018

          Appeal from the Judgment of Sentence February 2, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0000151-2002,
                         CP-25-CR-0000152-2002


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                          FILED MARCH 14, 2019

     Mack D’Juan Hill (Appellant) appeals from the judgment of sentence

entered following a re-sentencing hearing pursuant to Miller v. Alabama,

567 U.S. 460 (2012). After careful review, we affirm.

     Appellant was born on April 10, 1984.       On October 2, 2001, after

conspiring with two other individuals, Appellant committed an armed robbery,

during the course of which Appellant attempted to shoot Rolando Ruiz. The

next night, Appellant and his co-conspirators committed a similar robbery.

While robbing Darrell Dickerson, Appellant shot and killed him.

     As a result of Appellant’s actions on October 2, 2001, a jury convicted

Appellant of attempted criminal homicide, robbery, conspiracy to commit

robbery, recklessly endangering another person, and possession of an
J-A05031-19



instrument of crime.1 For the subsequent robbery and killing on October 3,

2001, Appellant was convicted of second-degree murder, robbery, conspiracy

to commit robbery, firearms not to be carried without a license, and receiving

stolen property.2 On September 18, 2002, the trial court sentenced Appellant

to an aggregate term of life in prison without parole, plus 11½ to 23 years of

incarceration.

        On February 24, 2016, Appellant filed a petition seeking relief under the

Post Conviction Relief Act (PCRA).3 In his petition, Appellant challenged the

legality of his life without parole sentence pursuant to Miller and

Montgomery v. Louisiana, — U.S. —, 136 S. Ct. 718 (2016). The court

granted Appellant’s petition on July 7, 2016. On February 2, 2018, Appellant

appeared before the court, which re-sentenced Appellant to an aggregate term

of 47.3 years to life of incarceration.          Specifically, the court re-sentenced

Appellant at his second-degree murder conviction to a term of 35 years to life.

        On February 12, 2018, Appellant filed a post-sentence motion, which

the trial court denied. Appellant filed this timely appeal. Both the trial court

and Appellant have complied with Pennsylvania Rule of Appellate Procedure

1925.

____________________________________________


1 18 Pa.C.S.A. §§ 901(a)/2502, 3701(a)(1)(ii), 903/3701(a)(1)(ii), 2705, and
907(a).

2 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903(a)(1)/3701, 6106(a)(1), and
3925(a).

3   42 Pa.C.S.A. §§ 9541-9546.

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      On appeal, Appellant presents the following issues for review:

      1. Does Appellant raise a substantial question for appellate
      review?

      2. Did the trial court err in sentencing Appellant to a de facto [l]ife
      without [p]arole sentence?

      3. Did the trial court improperly consider Appellant’s age at the
      time of the offenses?

      4. Did the trial court err in giving Appellant a disproportionately
      harsh sentence?

      5. [Did t]he trial court impose on Appellant an excessive sentence?

Appellant’s Brief at 8.

      In his first, third, and fifth issues, Appellant challenges the discretionary

aspects of his sentence. “The right to appellate review of the discretionary

aspects of a sentence is not absolute, and must be considered a petition for

permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265

(Pa. Super. 2014). “An appellant must satisfy a four-part test to invoke this

Court’s jurisdiction when challenging the discretionary aspects of a sentence.”

Id. We conduct this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

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code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations

omitted).

       While Appellant has complied with the first two prongs of this test by

raising his discretionary sentencing claims in a timely post-sentence motion

and filing a timely notice of appeal, he failed to include in his brief a Rule

2119(f) concise statement. However, because the Commonwealth has not

objected, we will examine whether Appellant’s claims present substantial

questions. Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004)

(“[W]hen the appellant has not included a Rule 2119(f) statement and the

[Commonwealth] has not objected, this Court may ignore the omission and

determine if there is a substantial question that the sentence imposed was not

appropriate[.]”) (citation omitted).

       Appellant’s first discretionary claim4 asserts that the trial court relied

upon an impermissible factor when fashioning his sentence.         This raises a

substantial question. Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.

Super. 2003) (“[A] claim that the sentence is excessive because the trial court




____________________________________________


4  We note that the first question presented in Appellant’s Brief is labeled
“Appellant Raises a Substantial Question.” Appellant’s Brief at 13. As we find
substantial questions presented by both of Appellant’s discretionary
sentencing claims, we forgo a further substantive analysis of this question
presented.

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relied on impermissible factors raises a substantial question.”) (citation

omitted).

      Appellant further argues that he received an excessive sentence where

the trial court imposed “consecutive sentences without properly considering

mitigating factors.” Appellant’s Brief at 14. This argument also presents a

substantial question. See Commonwealth v. Swope, 123 A.3d 333, 340

(Pa. Super. 2015) (“This Court has also held that an excessive sentence

claim—in conjunction with an assertion that the court failed to consider

mitigating factors—raises a substantial question.”) (citations omitted).        We

thus review Appellant’s sentencing claims mindful of the following:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. A sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing 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. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations

omitted).

      Appellant claims “the trial judge . . . improperly sentenced [Appellant]

when it included as a sentencing factor the age of Appellant at the time of the




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offense.”   Appellant’s Brief at 44.   The relevant portion of 42 Pa.C.S.A. §

9721(b) states:

      In selecting from the alternatives set forth in subsection (a), the
      court shall follow the general principle that the sentence imposed
      should call for confinement that is consistent with the protection
      of the public, the gravity of the offense as it relates to the impact
      on the life of the victim and on the community, and the
      rehabilitative needs of the defendant. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . the
      court shall make as a 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.

Id. This Court has also held, “[w]hen a sentencing court has reviewed a pre[-

]sentence investigation report, we presume that the court properly considered

and weighed all relevant factors in fashioning the defendant’s sentence.”

Baker, 72 A.3d at 663 (citing Commonwealth v. Fowler, 893 A.2d 758, 767

(Pa. Super. 2006)). Additionally:

      [i]n imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a presentence investigation report, it will be presumed
      that he or she was aware of the relevant information regarding
      the defendant’s character and weighed those considerations along
      with mitigating statutory factors.

Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004)) (some citations omitted) (emphasis added).

      Appellant takes issue with the following statement made by the trial

court during re-sentencing:




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       You were 17 years old and 6 months. So, had this been committed
       six months later as [the Commonwealth] pointed out, we wouldn’t
       even be here.

Appellant’s Brief at 45 (citing N.T., 2/2/18, at 128).

       Upon review, we are satisfied that the trial court committed no abuse of

discretion in referring to Appellant’s age. While Appellant argues the “trial

[court] improperly used his age as an aggravating rather than a mitigating

factor,” Appellant’s Brief at 45, we find no support for this assertion in the

notes of testimony.     N.T., 2/2/18, at 121-131.        As referenced above, a

defendant’s age is specifically prescribed by this Court as a factor a “trial court

should refer to” during the imposition of a sentence. Fowler, 893 A.2d at

767.   Further, age is now a mandatory consideration when a trial court is

determining whether to impose a sentence of life without parole. 18 Pa.C.S.A.

§ 1102.1(d)(7)(i) (“In determining whether to impose a sentence of life

without parole . . . the court shall consider and make findings on the record

regarding . . . [a]ge-related characteristics of the defendant, including . . .

[a]ge.”). The trial court was therefore within its discretion in stating on the

record Appellant’s age at the time of the crimes.         As such, this issue is

meritless.

       Appellant further argues that his sentence was excessive “given the

expert testimony [of Randolph Matuscak] . . . offered at his re-sentencing that

he is amenable to rehabilitation and has a low risk to re-offend.” Appellant’s

Brief at 52. Appellant specifically contends:


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             [T]he trial [court] ignored the uncontested and
      overwhelming evidence suggesting that despite Appellant’s rough
      formative years, he has made great emotional and academic
      strides in prison, demonstrating his commitment to rehabilitation.
      The trial [court’s] erroneous interpretation of the expert’s report
      combined with the trial [court’s] failure to discern the significance
      of Appellant’s positive growth while incarcerated resulted in an
      unduly and excessively harsh sentence imposed on Appellant,
      calling out for relief by this Court.

Id. at 57.

      At the February 2, 2018 hearing, the trial court acknowledged that it

was in receipt of, and “reviewed,” Appellant’s pre-sentence investigation

report prepared in anticipation of re-sentencing. N.T., 2/2/18, at 121. Prior

to imposing Appellant’s sentence, the trial court stated:

      I read Mr. Matuscak’s report in its entirety[.] . . . I was
      disappointed that Mr. Matuscak didn’t acquaint himself with the
      facts of this case. He didn’t even read the trial transcripts but yet
      was willing to render opinions and judgments thereon. You know,
      I certainly respect his expertise as a social worker, but in reading
      his report it was rather striking the selective information that he
      had or that he relied on and my impression is that he really wasn’t
      a disinterested expert, but was clearly serving as an advocate.
      Now having said that, I appreciated the history that he provided,
      he obviously did a lot of research in terms of upbringing of
      [Appellant] and the research related to what [Appellant] has done
      while he has been in prison. So, there was some value there in
      his report.

                                 *     *      *

      I do recognize and consider the fact that you have matured while
      in jail. . . That there are programs that you’ve taken advantage
      of within the prison in addition to getting your GED and that you’ve
      expressed some goals and that you have recognized the impact
      on victims. I did view the entirety of the CD that was provided of
      your talk.




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     I do believe that there is some potential for rehabilitation for you,
     [Appellant], so I want to fashion or try to balance all of these
     factors in arriving at a sentence in this case.

Id. at 121, 122, 129-130.

     In its opinion, the trial court further explained:

           Appellant’s allegation of error based on the purported failure
     to adequately consider the expert testimony of Randolph A.
     Matuscak is belied by the record. The entirety of Mr. Matuscak’s
     testimony was considered, however, it was found to be largely
     unhelpful[.]
                                *      *     *

           The majority of Mr. Matuscak’s testimony focused on
     Appellant’s traumatic childhood and the role those external factors
     played in causing Appellant’s criminal acts. While Mr. Matuscak’s
     extensive research describing Appellant’s childhood was helpful,
     and a factor cited as part of the sentencing rationale, Matuscak’s
     premise that these external factors caused him to commit
     homicide was not accepted[.] . . .

            Appellant’s unfortunate upbringing was considered,
     however it did not exonerate Appellant of the robberies,
     attempted homicide and homicide he intentionally committed in
     the two cases at bar. Appellant’s childhood circumstances were
     similar to what his brother Calvin also experienced. Calvin and
     Appellant were close in age and bonded as biological brothers.
     Calvin testified for Appellant at re-sentencing. Calvin was exposed
     to the same external forces as Appellant. Yet Calvin had no
     history of committing violent crimes. There was also two other
     siblings close in age to Appellant who did not commit violent
     crimes despite their domestic instability. These facts undermine
     Mr. Matuscak’s premise that Appellant’s crimes were the direct
     result of his childhood circumstances.

            Mr. Matuscak’s premise was also refuted by Appellant. To
     his credit, Appellant did not try to minimize his culpability because
     of his traumatic childhood.

          Mr. Matuscak’s attempt to whitewash the facts of these
     crimes turns a blind eye to what the jury unanimously agreed was


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      proven beyond a reasonable doubt. These were crimes of extreme
      violence which were carefully planned out on both occasions.

                                 *     *      *

             There was considerable thought over an extensive period of
      time put into the appropriate re-sentence for Appellant. All of the
      factors, including the mitigating factors Appellant emphasizes,
      were considered to arrive at a balanced sentence. This sentence
      protects the public from the proven ability of Appellant to engage
      in depraved acts of violence. Yet, having found Appellant has the
      potential for rehabilitation, the sentence provides Appellant with
      light at the end of the tunnel. While incarcerated, or after his
      release, Appellant can still live a meaningful life, which is better
      than the fate that befell Darrell Dickerson.

Trial Court Opinion, 5/16/18, at 6, 7-8, 9.

      Based on our review of the transcript of Appellant’s re-sentencing

hearing, including the trial court’s remarks cited above, we conclude that the

court considered the appropriate factors when determining Appellant’s

sentence.   In addition to reviewing Appellant’s pre-sentence investigation

report, the court considered Appellant’s potential for rehabilitation, his

activities while incarcerated, as well as the report and testimony provided by

Appellant’s mitigation expert. Accordingly, we discern no abuse of discretion.

      Appellant additionally disputes the legality of his sentence.     We are

mindful that “[i]ssues 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). We note:

      The scope and standard of review applied to determine the legality
      of a sentence are well established. If no statutory authorization

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      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 claims that “[g]iven that he was 18 years old at his initial

sentencing, the sentence of 47.3 years to life violates both the Pennsylvania

and United States Constitution[s’] prohibition[s] against cruel and unusual

punishment and runs afoul of Miller, Montgomery, and Batts II[.]”

Appellant’s Brief at 28-29. This statement is premised on Appellant’s assertion

that his sentence “constitutes a de facto life sentence” because “he will remain

in prison until the age of 65.” Id. at 29.

      We have previously summarized the applicable authority:

             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. Subsequently, in Montgomery,
      the Court held that the Miller decision announced a substantive
      rule of constitutional law that applies retroactively.

Commonwealth v. Bebout, 186 A.3d 462, 472 n.1 (Pa. Super. 2018)

(citations omitted).

      The Pennsylvania Supreme Court in Commonwealth v. Batts, 163

A.3d 410 (Pa. 2017) (Batts II) addressed how a sentencing court should

proceed following Miller when faced with re-sentencing a juvenile offender


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who was originally sentenced, pre-Miller, to life imprisonment without the

possibility of parole. Our Supreme Court explained:

       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 Commonwealth v. Batts, 66 A.3d 286,

296-97 (Pa. 2013) (Batts I)).5            “The sentencing court should fashion a

minimum term of incarceration using, as guidance, [S]ection 1102.1(a) of the

Crimes Code.” Id. at 484.

       Section 1102.1, which the General Assembly enacted in the wake of the

Miller decision, sets forth the guidelines for sentencing those who commit

second-degree murder while under the age of 18:

       (c) Second degree murder.--A person who has been convicted
       after June 24, 2012, of a murder of the second degree, second
       degree murder of an unborn child or murder of a law enforcement
       officer of the second degree and who was under the age of 18 at

____________________________________________


5  In Batts I, the Pennsylvania Supreme Court addressed for the first time
after Miller the sentencing of a juvenile offender convicted of murder. Noting
that the United States Supreme Court in Miller declined to place a “categorical
ban” on life-without-parole sentences for juvenile offenders, our Supreme
Court in Batts I held that juvenile offenders convicted of 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. Batts II followed
four years later when the Supreme Court set forth the procedure for re-
sentencing juvenile offenders who were improperly sentenced to life without
parole prior to Miller.




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       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
          imprisonment the minimum of which shall be at least 30 years
          to life.

18 Pa.C.S.A. § 1102.1(c)(1).6          While we note that Section 1102.1 is not

directly applicable to Appellant because he was convicted prior to June 24,

2012, the Supreme Court made clear in Batts II that where a trial court

determines that a sentence of life imprisonment without the possibility of

parole is inappropriate for a juvenile offender who was originally sentenced to

life without parole prior to Miller, the minimum sentence is left to the trial

court’s discretion on re-sentencing, using Section 1102.1 as guidance. Batts

II, 163 A.3d at 421.

       In Commonwealth v. Foust, 180 A.3d 416 (Pa. Super. 2018), we held

that upon re-sentencing a defendant under Miller, “a trial court may not

impose a term-of-years sentence, which constitutes a de-facto [life-without-

parole] sentence, on a juvenile offender convicted of homicide unless it finds,


____________________________________________


6   Given the charges the defendant faced in Batts I, the court specifically
referred to subsection (a) of Section 1102.1, which addresses sentencing for
first-degree murder. Since that decision, we have also applied the Batts I
sentencing scheme in the context of juveniles convicted of second-degree
murder prior to June 12, 2012 by also using Section 1102.1 as guidance in
fashioning a minimum sentence. See Commonwealth v. Machiote, 172
A.3d 595 (Pa. Super. 2017); Commonwealth v. Melvin, 172 A.3d 14 (Pa.
Super. 2017); see also 18 Pa.C.S.A. § 1102.1(c) (subsection of statute
specifically referring to the sentencing of juvenile offenders convicted of
second-degree murder).

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beyond a reasonable doubt, that he or she is incapable of rehabilitation.” Id.

at 431. However, we “explicitly decline[d] to draw a bright line . . . delineating

what constitutes a de facto [life without parole] sentence and what constitutes

a constitutional term-of-years sentence.”         Id. at 438.      Similarly, we

“decline[d] to set forth factors that trial courts must consider when making

this determination.” Id. We further explained:

      There are certain term-of-years sentences which clearly constitute
      de facto [life without parole] sentences. For example, a 150—
      year [minimum] sentence is a de facto [life without parole]
      sentence. Similarly, there are clearly sentences which do not
      constitute de facto [life without parole] sentences. A sentence of
      30 years to life falls into this category. We are unaware of any
      court that has found that a sentence of 30 years to life
      imprisonment constitutes a de facto [life without parole] sentence
      for a juvenile offender. Even the study with the shortest life
      expectancy for an offender in [the a]ppellant’s position places his
      life expectancy at 49 years, i.e., beyond 30 years.

Id.

      Including Foust, there have been numerous published opinions of this

Court analyzing whether a sentence fashioned by a trial court amounted to a

de facto life without parole sentence for a juvenile offender. See, e.g., Foust,

180 A.3d at 438 (holding that a sentence of 30 years to life did not constitute

a de facto life sentence, where the defendant was charged with two counts of

first-degree murder and received consecutive, 30-year-to-life sentences at

each conviction); Bebout, 186 A.3d at 469-70 (holding that a sentence of 45

years to life did not constitute a de facto life without parole sentence);

Commonwealth v. White, 193 A.3d 977, 986 (Pa. Super. 2018) (holding a


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sentence of 35 years to life did not constitute a de facto life without parole

sentence).

        Instantly, Appellant contends the entirety of his sentence received

should be used in determining whether he was re-sentenced to a de facto life

without parole sentence. Appellant’s Brief at 36-38. However, as admitted

by Appellant,7 in Foust, we held that “when considering the constitutionality

of a sentence, the individual sentences must be considered when

determining if a juvenile received a de facto [life without parole] sentence.”

Foust, 180 A.3d at 434 (emphasis added). As such, Appellant’s sentence for

second-degree murder must be analyzed separately from the sentences

received at his other convictions.

        The trial court re-sentenced Appellant to a minimum term of 35 years

of incarceration. At the time of his effective sentence date on December 26,

2001, Appellant’s age was 17 years, 8 months. Sentencing Order, 9/18/02,

at 1.    Thus, Appellant will be parole-eligible at the age of 52.   With prior

precedent in mind when viewing the instant record,8 we cannot conclude that




____________________________________________


7 Appellant’s Brief at 37 (“Admittedly, the court in [Foust] did hold that it
would examine sentences separately in assessing whether a particular
sentence constituted a de facto [life without parole] sentence.”).

8   “There is simply no comparison between the opportunity to be paroled at
60 years of age and 100+ years of age. The difference is, quite literally, a
lifetime.” White, 193 A.3d at 986 (citing Bebout, 186 A.3d at 469-70).

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Appellant’s minimum sentence constitutes a de facto life without parole

sentence. This issue lacks merit.

     Appellant’s next issue “contends that the sentence he received is

disproportionate   to   other   sentences     of   similar   circumstance   in   the

Commonwealth,” and is therefore “violative of the Eighth Amendment.”

Appellant’s Brief at 46, 51. We have stated:

     Article 1, Section 13 of the Pennsylvania Constitution provides
     “[e]xcessive bail shall not be required, nor excessive fines
     imposed, nor cruel punishments inflicted.” Pa. Const. art. I, § 13.
     “[T]he guarantee against cruel punishment contained in the
     Pennsylvania Constitution, Article 1, Section 13, provides no
     broader protections against cruel and unusual punishment than
     those extended under the Eighth Amendment to the United States
     Constitution.” Commonwealth v. Spells, 612 A.2d 458, 461
     (Pa. Super. 1992). The Eighth Amendment does not require strict
     proportionality between the crime committed and the sentence
     imposed; rather, it forbids only extreme sentences that are
     grossly disproportionate to the crime. See Commonwealth v.
     Hall, 701 A.2d 190, 209 (Pa. 1997) (citing Harmelin v.
     Michigan, 501 U.S. 957, 1001 (1991) (emphasis added).

     In Commonwealth v. Spells, 612 A.2d 458, 462 (Pa. Super.
     1992) (en banc), this Court applied the three-prong test for Eighth
     Amendment proportionality review set forth by the United States
     Supreme Court in Solem v. Helm, 463 U.S. 277 (1983):

           [A] court’s proportionality analysis under the Eighth
           Amendment should be guided by objective criteria,
           including (i) the gravity of the offense and the
           harshness of the penalty; (ii) the sentences imposed
           on other criminal in the same jurisdiction; and (iii) the
           sentences imposed for commission of the same crime
           in other jurisdictions.

     Spells, 612 A.2d at 462 (quoting Solem, 463 U.S. at 292).
     However, this Court is not obligated to reach the second and third
     prongs of the Spells test unless “a threshold comparison of the
     crime committed and the sentence imposed leads to an inference

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      of gross disproportionality.”       Spells, supra at 463 (citation
      omitted) b.

Commonwealth v. Lankford, 164 A.3d 1250, 1252-53 (Pa. Super. 2017).

      Appellant’s proportionality claim is based upon the Supreme Court’s

holding in Batts II that, “for a sentence of life without parole to be

proportional as applied to a juvenile murderer, the sentencing court must first

find, based on competent evidence, that the offender is entirely unable to

change.” Appellant’s Brief at 49 (citing Batts II, 163 A.3d at 435); see also

Batts II, 163 A.3d at 435-46 (“A sentence of life in prison without the

possibility of parole for a murder committed when the defendant was a

juvenile is otherwise disproportionate and unconstitutional under the Eighth

Amendment.”) (citing Montgomery, 136 S. Ct. at 734, 735). Appellant avers

that because the trial court failed to conduct such an analysis in fashioning his

sentence, the reasoning provided by the trial court “falls short of what is

required by Batts [II] to ensure that a juvenile receives a proportionate

sentence[.]” Appellant Brief at 51.

      Instantly, we determined that Appellant’s 35-year minimum does not

constitute a de facto life without parole sentence. The trial court was therefore

not bound by the holding in Batts II, requiring an inability-to-change finding

where a juvenile defendant is sentenced to life without parole. Accordingly,

Appellant’s sentence is constitutional.




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     In sum, the trial court did not abuse its discretion in sentencing

Appellant, and the sentence Appellant received was legal. Because Appellant’s

issues lack merit, we affirm his judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2019




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