J-A16036-17
2017 PA Super 305

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
' PENNSYLVANIA
Appellee
v.

ANTHONY MACHICOTE,
Appellant : No. 1621 WDA 2016

Appeal from the Judgment of Sentence August 19, 2016
in the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001958-2003

BEFORE: STABILE, J., FORD ELLIO'l`l', P.J.E., and STRASSBURGER,’k J.
OPINION BY STRASSBURGER, J.: FILED SEPTEMBER 26, 2017
Anthony Machicote (Appellant) appeals from the August 19, 2016
judgment of sentence imposed following a resentencing hearing pursuant to
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) ("Batts I”). We affirm.

On November 10, 2003, [Appellant (then age 17)] and
Jeremy Melvin executed their plan to escape from the George
Junior Republic Facility, a housing facility for delinquent and
dependent children [located in Pine Township, Mercer County].
[Appellant] called a night supervisor, Wayne Urey, Jr., [(“the
victim”)] to [Appellant's] room by taking an illness. Melvin came
up behind [the victim] and locked him in a choke hold Whi|e
[Appellant] tied [the victim's] legs With a sheet. Melvin put a
sock in [the victim's] mouth and tied a sheet around it.
[Appellant] and Melvin stole [the victim's] money, keys, and car
and fled from the facility. Later that day, [Appellant] and Melvin
confessed the details of the incident to a school security guard
and turned themselves in to police. [The victim] suffocated as a
result of the incident.

 

* Retired Senior Judge assigned to the Superior Court.

J-A16036-17

Both [Appellant] and Melvin were charged as adults with
criminal homicide, robbery, and related charges. On November
3, 2004, [Appellant] pled guilty to second-degree murder. In
exchange for the guilty plea, the Commonwealth no/ prossed the
remaining charges. In addition, the Commonwealth agreed to
provide [Appellant] with a letter indicating that it would take no
position if [Appellant] filed an application for commutation of
sentence after serving twenty-five years of imprisonment. On
January 6, 2005, the trial court sentenced [Appellant] to serve a
term of life imprisonment. [Appellant] did not file a direct
appeaL

On January 9, 2006, [Appellant] filed a timely pro se PCRA
petition, which was his first. Appointed counsel then filed an
amended PCRA petition, and the PCRA court denied relief. On
May 30, 2007, this Court affirmed the denial of PCRA relief, and
the Pennsylvania Supreme Court denied [Appellant’s] petition for
allowance of appeal. Commonwealth v. Machicote, [] 929
A.2d 242 (Pa. Super. 2007) (unpublished memorandum), appeal
denied, 932 A.2d 1287 (Pa. 2007).

On August 22, 2012, [Appellant] filed an untimely second
PCRA petition, in which he sought to have his life sentence
without parole vacated, and to be resentenced pursuant to
Miller v. Alabama, [567 U.S. 460, 479 (2012)]. Disposition of
the PCRA petition was continued several times awaiting a ruling
on the applicability of Miller in Pennsylvania. On September 30,
2013, the PCRA court entered an order granting [Appellant’s]
request for relief on the grounds that the Miller decision
rendered the life sentence unlawful. The Commonwealth
appealed and then withdrew the appeal. Thereafter, the
Commonwealth's appeal was reinstated, but it was ultimately
dismissed due to failure to file a brief.

Consequently, [Appellant] was resentenced on June 24,
2014, to a term of life in prison with parole, with a
recommendation that [Appellant] not be paroled until his 58th
birthday. On July 2, 2014, the Commonwealth filed a post-
sentence motion alleging that the lower court lacked the
authority to resentence [Appellant] in light of Commonwealth
v. Cunningham, 81 A.3d 1 (Pa. 2013). The motion was denied
on July 2, 2014. [An appeal by the Commonwealth followed.]

J-/-\16036-17

Commonwealth v. Machicote, 122 a.3d 1144 (Pa. Super. 2015)
(unpublished memorandum at 1-3).

On June 24, 2015, a panel of this Court vacated the June 24, 2014
judgment of sentence and remanded for the lower court to "reinstate the
original judgment of sentence imposed upon" Appellant. Id. at 9.

[The lower c]ourt resentenced [Appellant], in accordance
with the [o]rder of the Superior Court, on September 11, 2015,
to a term of life in prison without parole.

Gn March 22, 2016, [Appellant] filed a third PCRA
[petition] alleging his sentence was unlawful in light of
Montgomery v. Louisiana, - US _, [136 S.Ct. 718] (2016).

At a conference on April 22, 2016, [the PCRA c]ourt
vacated the sentence of September 11, 2015, and scheduled
sentencing[.]

On August 19, 2016, [the PCRA c]ourt sentenced
[Appellant] to a term of imprisonment of not less than 30 years
nor more than life.

[Appellant] filed a post-sentence motion. That motion was
denied on August 30, 2016, without a hearing. This appeal
followed.

PCRA Court Opinion, 11/3/2016, at 5-6.

Both Appellant and the PCRA court have complied with the mandates
of Pa.R.A.P. 1925. Appe|lant raises the following issues for this Court’s
review.

A. The only statutorily authorized punishment for second-degree

murder where the defendant was convicted before June 25, 2012

is life without parole. As a matter of federal constitutional law, a

juvenile such as [Appellant] cannot be automatically sentenced

to life without parole. Was the [PCRA] court's sentence of 30
years to life illegal because the General Assembly has not

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J-A16036-17

authorized a constitutional punishment for those in [Appellant’s]

position and, therefore, should he be sentenced to the lesser

included offense of third-degree murder?

B. Did the trial court abuse its discretion by resentencing

[Appellant], a juvenile convicted of second-degree murder and

facing a potential sentence of life without parole, without fully

considering [Appellant’s] youth and development, as required
under Miller[], and Commonwealth v. Knox, 50 A.3d 732 (Pa.

Super. 2012)?

C. Did the trial court abuse its discretion by simultaneously

granting [Appellant's] request for funds to hire an expert to

perform a mitigation study while denying him a continuance to
locate and retain an expert to undertake this mitigation study?
Appel|ant’s Brief at 2-3 (PCRA court answers omitted).

In his first issue on appeal, Appel|ant presents a challenge to the
legality of his sentence, arguing that the PCRA court had no valid statutory
authority to impose a term of years sentence with a maximum term of life
imprisonment at his resentencing and, because the crime at issue here was
committed before June 25, 2012, the only possible legal sentence is “on the
lesser included offense of third[-]degree murder or the underlying felony of
robbery.” /-\ppellant’s Brief at 25-49. “When reviewing the legality of a
sentence, our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Brown, 159 A.3d 531, 532 (Pa. Super. 2017)
(citation omitted).

By way of background, in 2013, our Supreme Court decided Batts I,

which addressed the effect of the holding in Miller on incarcerated

Pennsylvanians serving mandatory life sentences without the possibility of

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J-/-\16036-17

parole (LWOP) for homicides committed while those persons were juveniles
(so-called “juvenile lifers"). Applying this new precedent, the Court in Batts
1 held that

[the] argument that the entire statutory sentencing scheme for
first-degree murder has been rendered unconstitutional as
applied to juvenile offenders is not buttressed by either the
language of the relevant statutory provisions or the holding in
Miller. Section 1102, which mandates the imposition of a life
sentence upon conviction for first-degree murder, see 18
Pa.C.S. § 1102(a), does not itself contradict Miller; it is only
when that mandate becomes a sentence of [LWOP] as applied to
a juvenile offender-which occurs as a result of the interaction
between Section 1102, the Parole Code, see 61 Pa.C.S. §
6137(a)(1), and the Juvenile Act, see 42 Pa.C.S. § 6302--that
Miller's proscription squarely is triggered. [] Miller neither
barred imposition of [an LWOP] sentence on a juvenile
categorically nor indicated that a life sentence with the
possibility of parole could never be mandatorily imposed on a
juvenile. Rather, Miller requires only that there be judicial
consideration of the appropriate age-related factors set forth in
that decision prior to the imposition of a sentence of life
imprisonment without the possibility of parole on a juvenile.

Batts I, 66 A.3d at 296. The Court recognized the difference in potential
penalty between juvenile offenders like Batts, who was tried and convicted
of first-degree murder prior to the issuance of Miller, and those who
committed offenses after the Supreme Court’s decision in Miller.

As to the former, 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
resentencing. Defendants in the latter category are subject to
high mandatory minimum sentences and the possibility of life
without parole, upon evaluation by the sentencing court of
criteria along the lines of those identified in Miller.

Id. at 297.

J-A16036-17

Thus, the Court remanded Batts' case for resentencing and instructed
the trial court to consider the non-inclusive list of factors outlined in Miller
before determining whether to impose upon Batts an LWOP sentence.

Following a hearing, Batts was resentenced to LWOP. He took a
second appeal to this Court, which affirmed his new judgment of sentence.
Our Supreme Court granted Batts' petition for allowance of appeal to
address Batts' contention, inter a//'a, that the Court should exercise "its
authority under the Pennsylvania Constitution to promulgate procedural
safeguards [for juveniles convicted of first- and second-degree homicide]
including (a) a presumption against juvenile [LWOP sentences]; (b) a
requirement for competent expert testimony; and (c) a "beyond a
reasonable doubt” standard of proof[.]” Commonwealth v. Batts, - A.3d
-, 2017 WL 2735411 at *11 (Pa. 2017) (Batts II).

In June of 2017, while the instant case was pending, our Supreme
Court issued its opinion in Batts II. The Court noted that,

[d]espite 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 Idecision gives rise to the

presumption that the General Assembly is in agreement with our

interpretation.

Batts II, 2017 WL 2735411 at *25 (footnotes, some citations and quotation

marks omitted).

J-A16036-17

However, addressing the specific issues raised by Batts, the Court
determined that, "in Pennsylvania, a faithful application of the holding in
Miller, as clarified in Montgomery,m requires the creation of a
presumption against sentencing a juvenile offender to life in prison without
the possibility of parole.” Batts II, 2017 WL 2735411 at *31. The Court
then placed the burden of rebutting this presumption on the Commonwealth,
concluding as follows.

To rebut the presumption, the Commonwealth has the
burden to prove, beyond a reasonable doubt, that the juvenile
offender is permanently incorrigible and thus is unable to be
rehabilitated. Consistent with the mandate of Miller and
Montgomery, for a life-without-parole sentence to be
constitutionally valid, the sentencing court must find that the
juvenile offender is permanently incorrigible and that
rehabilitation would be impossible. The Commonwealth's
evidence and the sentencing court's decision must take into
account the factors announced in Miller and section 1102.1(d)
of the Crimes Code. Even if the Commonwealth satisfies its
burden of proof, the sentencing court is not required to impose a
life-without-parole sentence upon a juvenile offender.

Batts II, 2017 WL 2735411 at *37-38.
Finally, and of note with respect to the current appeal, our Supreme
Court reaffirmed the sentencing scheme applicable to juvenile offenders for

whom the sentencing court determines LWOP sentences are inappropriate

 

1 As the Court explained, Montgomery “means that only ‘the rarest of
juvenile offenders’ are eligible to receive a sentence of [LWOP]. Only in
‘exceptional circumstances’ will [LWOP] be a proportionate sentence for a
juvenile.” Batts II, 2017 WL 2735411 at *31 (citations and footnote
omitted).

J-A16036-17

(/'.e., imposition of a term-of-years to life sentence as discussed above) and
specifically “instruct[ed] sentencing courts to look to the mandatory
minimum sentences set forth in section 1102.1(a) for guidance in setting a
minimum sentence for a juvenile convicted of first-degree murder prior
to Miller." Batts II, 2017 WL 2735411 at *24 n.17.

In creating the aforementioned sentencing scheme, the Court
expressly rejected the claim of Batts and his amici, which Appel|ant herein
now argues, that there is no legislatively authorized sentence for juveniles
convicted of first-degree murder prior to 2012, Id. at *18-22. The Court also
rejected Batts' contentions that the forty year maximum penalty for third-
degree murder is the only legal alternative and that severance of the statute
is impossible. Id. at *23-27. Importantly, the Court held, inter a//'a, that a
trial court, in resentencing a juvenile offender convicted prior to Miller, was
constitutionally permitted to impose a minimum term-of-years sentence and
a maximum sentence of life imprisonment, thus “exposing these defendants
to parole eligibility upon the expiration of their minimum sentences”Z. Batts
II, 2017 WL 2735411 at *21. We are bound by our Supreme Court’s

decision. Thus, we disagree with Appel|ant that his resulting thirty-years-to-

 

2 Batts was sentenced for the crime of first degree murder, while Appel|ant
herein pled guilty to murder in the second degree. However, we discern no
difference that would place Appellant’s claim outside of the Batts analysis.

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J-A16036-17

life sentence is illegal and, as a result, we hold that he is not entitled to
relief on his first claim.

Appel|ant next claims that the PCRA court erred in resentencing him
without "fully considering [his] youth and development” as required by
Miller and Knox. This claim arguably implicates the discretionary aspects

of his sentence.3

 

3 As the Court in Batts II explained,

The Miller Court concluded that sentencing for juveniles must be
individualized. This requires consideration of the defendant’s age
at the time of the offense, as well as "its hallmark features,”
including:

immaturity, impetuosity, and failure to appreciate
risks and consequences[;] the family and home
environment that surrounds him-and from which he
cannot usually extricate himself-no matter how
brutal or dysfunctional[;] the circumstances of the
homicide offense, including the extent of his
participation in the conduct and the way familial and
peer pressures may have affected him[;] that he
might have been charged and convicted of a lesser
offense if not for incompetencies associated with
youth-for example, his inability to deal with police
officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own
attorneys[;] [and] the possibility of rehabilitation

. when the circumstances [/'.e. (the youthfulness of
the offender)] most suggest it.

Batts II, 2017 WL 2735411 at *14-15 (citations omitted). The Batts
decisions make clear that, the court must consider the Miller factors in
cases where the Commonwealth is attempting to meet its burden of
overcoming the presumption against juvenile LWOP sentences. Batts II,

2017 WL 2735411 at*14-15. However, because the PCRA court determined
(Footnote Cont/'nued Next Page)

_9..

J-A16036-17

lt is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.

Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appel|ant preserved his
issue; (3) whether Appel|ant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).

Appel|ant has satisfied the first three requirements: he timely filed a
notice of appeal, he sought reconsideration of his sentence in a post-
sentence motion, and he has included a Rule 2119(f) statement in his brief
to this Court. We now consider whether he has raised a substantial question
for our review.

The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). "A substantial question exists only when the
(Footnote Cont/nued) _-~_-__*"

that an LWOP sentence was inappropriate for Appel|ant, this issue is moot as
application of the Miller factors is immaterial. However, to the extent that
Appel|ant’s issue can be read to raise a claim that the court failed to consider
relevant sentencing factors outlined in the sentencing code, we consider
such arguments under the discretionary-aspects-of-sentencing scheme
outlined above.

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J-A16036-17

appellant advances a colorable argument that the sentencing judge's actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (citation and quotation marks omitted).

In his 2119(f) statement, Appellant contends that the PCRA court
failed to give “adequate, evident consideration of the factors set out in
Knox.” Appel|ant’s Brief at 25. Such claim does not raise a substantial
question. Disalvo, 70 A.3d at 903 (“[A] claim of inadequate consideration of
mitigating factors does not raise a substantial question for our review."
(citation and quotation marks omitted)).

Even had Appellant stated a substantial question for review, we would
affirm on the merits. We review discretionary aspects of sentence claims
under the following standard.

If this Court grants appeal and reviews the sentence, the

standard of review is well-settled: sentencing is vested in the

discretion of the trial court, and will not be disturbed absent a

manifest abuse of that discretion. /-\n abuse of discretion involves

a sentence which was manifestly unreasonable, or which

resulted from partiality, prejudice, bias or ill will. It is more than

just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa. Super. 2006)

(citations omitted).

Our review of the sentencing transcript reveals that the lower court did

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J-A16036-17

not abuse its discretion. As the PCRA court explained at sentencing it
“[took] into account the comments set forth in [its] sentencing order of June
24, 2014[, and it] reviewed the PSI again." N.T., 8/19/2016, at 45-45. The
court found that Appellant "had five misconducts, but they were early, which
is understandable[, had] obtained [his] GED, which is appropriate,” and was
over the age of 15 when the crime occurred. Id. The court recognized that
“[c]rimes of this nature devastate all families involved" and noted that
"[w]hile [Appellant's] intent was not to kill, there was intent to hurt, and
hurt severely in the way [the victim] was beaten." Id. at 46.

Where the sentencing court here had the benefit of a pre-sentence
investigation report, it is presumed to have considered all relevant
information. Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super.
2004). Further and as discussed above, our Supreme Court has mandated
the lower courts consider the sentencing requirements codified at 18 Pa.C.S.
§ 1102.1 in fashioning a sentencing scheme for a juvenile homicide offender
post-Miller. Batts I, 6 A.3d at 297. Subsection 1102.1 provides, in relevant
part, as follows.

(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 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

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J-A16036-17

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

18 Pa.C.S. § 1102.1(c).

The PCRA court, in fashioning Appellant's sentence, found persuasive
the “logic" of subsection 1102.1(c)(1) and imposed a thirty-year-to-life
sentence. N.T., 8/19/2016, at 47. Because Appellant's sentence is
compliant with Subsection 1102.1(c)(1) and Batts II, we find no reason to
disturb it.

Finally, Appellant claims that the PCRA court abused its discretion in
granting him additional funds to hire an expert for his resentencing, but
simultaneously denying a postponement to allow him to do so. Appellant's
Brief at 30-40.

It is well-established that indigent defendants have a right
to access the same resources as non-indigent defendants in
criminal proceedings. The state has an affirmative duty to
furnish indigent defendants the same protections accorded those
financially able to obtain them. Procedural due process
guarantees that a defendant has the right to present competent
evidence in his defense, and the state must ensure that
an indigent defendant has fair opportunity to present his
defense.

However, [t]he provision of public funds to hire experts to
assist in the defense against criminal charges is a decision
vested in the sound discretion of the court and a denial thereof
will not be reversed absent an abuse of that discretion.

Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa. Super. 2016)

(citations and quotation marks omitted).

_13_

J-A16036~17

Instantly, the court granted Appellant's request for expert funds in the
amount of $2,500, but denied a request to continue the case that would
permit Appellant to hire a mitigation expert to present a colorable argument
as to the Miller and Knox factors. Appellant's Brief at 30-40. Accordingly,
Appellant contends that the court committed reversible error by making it
impossible for him to make a persuasive argument with respect to the
factors outlined in Miller that the United States Supreme Court has
identified as relevant considerations for resentencing of juvenile homicide
offenders to LWOP sentences. Id. at 36-38.

In Batts I, which was the prevailing law at the time of Appellant's
resentencing, the Court held that the sentencing court “should consider” the
Miller factors in determining whether a juvenile homicide defender should
be subjected to an LWOP sentence; however, the Court was silent as to both
the applicable burden of proof and whether expert testimony was necessary
to make a Miller argument. Batts I, 66 A.3d 286 at 297.

In Batts II, our Supreme Court clarified the applicable sentencing
procedure, holding as follows.

Pursuant to our consideration of the attendant due process
concerns and the definitive language used by the Supreme
Court, we conclude that to overcome the presumption against
the imposition of a sentence of life without parole for a juvenile
offender, the Commonwealth must prove that the juvenile is
constitutionally eligible for the sentence beyond a reasonable
doubt. In an effort to satisfy this burden, the Commonwealth

may present evidence relating to the factors announced in Miller
and the factors appearing in section 1102.1(d).

_14_

 

J-A16036-17

Consistent
section 1102.1(b
sentencing court
juvenile offender,
defendant prior to the

), if the Comm

impose a se
it must

Batts II, 2017 WL 2735411 all *34

with the require

ntence o
provide reasonable no
sentencing hearing.

of due process and
to have the
t parole on a
tice to the

merits
nwealth seeks
f life withou

O

(citations omitted). Further, with

respect to the necessity of expert testimony, the Court opined,

undeniable appeal t
necessary fo
offender is permanently incorrigib
so far as to hold that expert
required to rebut the presumptio
sentence of [LWOP]. Expert

Pennsylvania if the information
knowledge of the factfinder an
s or her

[t]here is an
testimony is

training or
issue and the expe
The necessity thereof i
sentencing court.

Given the
Commonwealth's bu
presumption, it is
Commonwea
the sentencer wou
l\lonetheless, whether expert testi
presumption against
reasonable d
the sentencing court.

presumption

rden beyond a

Batts II, 2017 WL 2735411 a

While we certai
were contradictory and effectively denie
decisions make clear tha

cases where the Commonwealth

o Batts' co
r a court to determine tha
le. We

d the testimon

difficult to con
lth would not proffer
ld not find expert testimony to be necessary.

permanent
oubt will be determine

nly agree with Appellant that

t, while the court must consider the

lS attend

ntention that expert
t a_ juvenile
decline, however, to go
is constitutionally
n against the imposition of a
testimony is admissible in
is outside of the common
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skill, experience,
ding of the fact at
thodology.
of the

testimony

"knowledge,
nderstan
pted me

against

reasonab
ceive of a cas
expert testimon

[LWOP] and the
le doubt to rebut the
e where the
y and where

mony is required to rebut the
incorrigibility beyond a
d on a case-by-case basis by

t *34 (citations omitted).

the PCRA court's orders
d him an expert witness, the Batts
Miller factors in

pting to meet its burden of

_15_

J-A16036~17

overcoming the presumption against juvenile LWOP sentences, expert
testimony is not constitutionally required. Batts II, 2017 WL 2735411
at*14-15.

Moreover, here, the PCRA court recognized that LWOP sentences for
juvenile offenders are “appropriate in very limited circumstances" that did
not apply to this case. N.T., 8/19/2016, at 46. Thus, the issue is now
moot because the court ruled that an LWOP sentence was inappropriate for
Appellant. Accordingly, this claim fails.

For all of the forgoing reasons, we affirm Appellant's judgment of
sentence.

Judgment of sentence affirmed.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 9[26[2017

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