J-S81044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FOSTER TARVER                              :
                                               :
                       Appellant               :   No. 875 MDA 2018

           Appeal from the Judgment of Sentence Entered May 3, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0000043-1968


BEFORE:      STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                      FILED FEBRUARY 05, 2019

        Appellant, Foster Tarver, appeals from the May 3, 2018, judgment of

sentence entered in the Court of Common Pleas of Dauphin County following

the trial court’s grant of PCRA1 relief and resentencing of Appellant on his first-

degree murder conviction pursuant to Montgomery v. Louisiana, ___ U.S.

___, 136 S.Ct. 718 (2016), which held that state courts are required to grant

retroactive effect to new substantive rules of federal constitutional law, such

as Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012). Miller held

unconstitutional mandatory sentences of life imprisonment without the

possibility of parole for offenders, like Appellant, who were under eighteen

years of age at the time of their crimes. Additionally, Appellant’s counsel has


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1   Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
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filed a petition seeking to withdraw his representation, as well as a brief

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and

Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009) (hereinafter

“Anders brief”).   After a careful review, we grant counsel’s petition to

withdraw and affirm Appellant’s judgment of sentence.

      The relevant facts and procedural history are as follows: On December

2, 1968, Appellant, who was then seventeen years old, acting in concert with

Samuel Barlow, Jr., and Sharon Margarett Wiggins, executed an armed

robbery of a bank in Harrisburg. During the robbery, Appellant and Wiggins

shot a bank customer, causing his death. The trio fled from the bank in a

stolen vehicle, but they were apprehended by the police. The money stolen

from the bank, totaling $70,000.00, was recovered.

      On June 2, 1969, Appellant entered a general plea of guilty to murder,

and a three-judge panel conducted a degree-of-guilt hearing.       The panel

determined that Appellant was guilty of first-degree murder based on a finding

that he perpetrated the killing in furtherance of a robbery. The trial court

imposed a sentence of death; however, Appellant filed a post-sentence

motion, which the trial court granted. Thus, on February 19, 1971, the trial

court vacated its original sentence and imposed a sentence of life in prison

without the possibility of parole. Thereafter, our Supreme Court affirmed the

judgment of sentence.




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      Between 1978 and 2010, Appellant filed seven PCRA petitions, all of

which were denied or dismissed.

      On July 16, 2012, he filed his eighth PCRA petition wherein he averred

his sentence of life in prison without the possibility of parole was

unconstitutional under Miller, supra. Counsel filed an amended petition

arguing that Appellant was entitled to relief under Miller, supra, as well as

Montgomery, supra. The PCRA court granted relief on this claim based on

the “new constitutional right” exception to the PCRA’s time-bar. On November

1, 2017, the trial court resentenced Appellant, who was represented by

counsel, to forty years to life imprisonment for first-degree murder.       On

November 24, 2017, despite still being represented by counsel, Appellant filed

a pro se notice of appeal to this Court.

      The trial court forwarded Appellant’s notice of appeal to counsel, who

failed to file a docketing statement on behalf of Appellant. Accordingly, by

order entered on February 6, 2018, this Court filed an order remanding the

matter to the trial court for a period of thirty days for a determination as to

whether counsel had abandoned Appellant and for the taking of any further

action as required to protect Appellant’s right to appeal. This Court retained

jurisdiction.

      On March 16, 2018, Appellant filed a pro se “Motion to Modify Sentence

Nunc Pro Tunc” in which he sought credit for time served. On March 28, 2018,




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the trial court entered a “resentencing order” in which it purported to award

credit for time served.

       By order entered on April 9, 2018, this Court held the trial court lacked

jurisdiction when it entered its resentencing order on March 28, 2018, and

thus, this Court “stayed” the resentencing order. We further remanded to the

trial court to determine whether Appellant wished to proceed with counsel or

pro se pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81

(1988). Following a Grazier hearing, the trial court notified this Court on

April 19, 2018, that Appellant wished to proceed with his counsel for purposes

of appellate review. On May 1, 2018, counsel filed a notice to withdraw and

discontinue Appellant’s appeal.

       On May 3, 2018, apparently in response to Appellant’s March 16, 2018,

motion, the proceedings for which this Court “stayed,” the trial court granted

Appellant’s request for resentencing and awarded credit for time served.2 This

timely, counseled appeal followed on May 25, 2018. The trial court did not

direct Appellant to file a Pa.R.A.P. 1925(b) statement, and consequently, no



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2 We note that issues related to credit for time served present a challenge to
the legality of sentencing, which is cognizable under the PCRA.
Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004) (“[i]ssues
concerning the legality of sentence are cognizable under the PCRA)). Thus,
following the discontinuance of Appellant’s direct appeal from his November
1, 2017, judgment of sentence, the lower court was permitted to treat
Appellant’s pro se “Motion to Modify Sentence Nunc Pro Tunc,” the proceedings
for which this Court “stayed,” as a timely PCRA petition, thus granting relief
and awarding credit for time served.

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such statement was filed.    The trial court filed a brief Pa.R.A.P. 1925(a)

opinion. On November 7, 2018, counsel filed in this Court a petition seeking

to withdraw his representation, as well as an Anders brief. Appellant filed no

further submissions either pro se or through privately-retained counsel.

      Prior to addressing any issue raised on appeal, we must first resolve

counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa.Super. 2007) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal

pursuant to which counsel must:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that he
      or she has the right to retain private counsel or raise additional
      arguments that the defendant deems worthy of the court’s
      attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders brief must:

      (1) provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that
      counsel believes arguably supports the appeal; (3) set forth
      counsel’s conclusion that the appeal is frivolous; and (4) state
      counsel’s reasons for concluding that the appeal is frivolous.
      Counsel should articulate the relevant facts of record, controlling
      case law, and/or statutes on point that have led to the conclusion
      that the appeal is frivolous.

Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide

the appellant with a copy of the Anders brief, together with a letter that

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advises the appellant of his or her right to “(1) retain new counsel to pursue

the appeal; (2) proceed pro se on appeal; or (3) raise any points that the

appellant deems worthy of the court’s attention in addition to the points raised

by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super. 2007) (citation omitted). Substantial compliance with these

requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290

(Pa.Super. 2007).

      Herein, counsel contemporaneously filed his petition to withdraw as

counsel and Anders brief. In his petition, counsel states that after a thorough

and conscientious examination of the record he has determined that an appeal

herein is wholly frivolous. Additionally, in accordance with Nischan, counsel

has mailed Appellant a copy of the Anders brief and a letter informing him

that: (1) he has the right to retain new counsel; (2) he may proceed further

with his case pro se; and (3) he may raise any points that he deems worthy

of the this Court’s attention. Counsel attached his conforming correspondence

to his petition to withdraw. See Commonwealth v. Millisock, 873 A.2d 748

(Pa.Super. 2005).

      In the Anders brief, counsel provides a summary of the facts and

procedural history of the case, refers to evidence of record that might arguably

support the issue raised on appeal, provides citations to relevant case law,

and states his reasoning and conclusion that the appeal is wholly frivolous.

Accordingly, counsel has substantially complied with all of the technical


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requirements of Anders and Santiago. Therefore, we proceed to examine

the issue counsel identified in the Anders brief and then conduct “a full

examination of all the proceedings, to decide whether the case is wholly

frivolous.”   Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super.

2018) (en banc) (quotation omitted).

       In the Anders brief, counsel raises the issue of whether the trial court’s

imposition of forty years to life imprisonment for Appellant’s first-degree

murder conviction is an illegal sentence. Appellant claims there is no authority

for the trial court’s sentence.

       Appellant’s claim presents a challenge to 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 of review is plenary.”

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

and ellipses omitted).

       In Miller, supra, the United States Supreme Court held that the Eighth

Amendment’s prohibition on cruel and unusual punishment forbids the

mandatory imposition of a life without parole sentence for a juvenile offender

convicted of homicide.3 Thereafter, in Montgomery, the Court held Miller

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3 We note the High Court did not foreclose sentencing courts from ever
imposing terms of life without parole upon juvenile offenders. Miller, supra.
Instead, it required sentencing courts to consider a juvenile’s immaturity and
capacity for change, and to refrain from imposing a life without parole term
except in extreme cases where the sentencing court determines that the



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announced a substantive rule of constitutional law that must be applied

retroactively. See Montgomery, 136 S.Ct. at 736.

       In order to correct Pennsylvania’s consequently unconstitutional

sentencing scheme, the Legislature enacted 18 Pa.C.S.A. § 1102.1. The

statute provides that offenders who were between the ages of fifteen and

seventeen at the time of their crimes and convicted of first-degree murder

after June 24, 2012, must be sentenced to a maximum term of life

imprisonment. See 18 Pa.C.S.A. 1102.1(a)(1). The minimum term for that

class of offender is 35 years. See id.

       The new statute did not address the resentencing of juvenile offenders

convicted of murder and sentenced to life without parole before June 24, 2012.

However, the Pennsylvania Supreme Court held in Commonwealth v. Batts,

640 Pa. 401, 163 A.3d 410 (2017) (“Batts II”), that juvenile offenders for

whom the sentencing court deems life without parole sentences inappropriate,

“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[.]”          Id. at 421.

The Court found that in fashioning a minimum sentence, courts “should be

guided by the minimum sentences contained in section 1102.1(a)[.]” Id. at



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juvenile is incapable of rehabilitation. See id. In any event, in the case sub
judice, Appellant was resentenced to forty years to life in prison, and thus, the
trial court’s sentence permits parole.

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458. In doing so, the Batts II Court “expressly rejected the claim…that there

is no legislatively authorized sentence for juveniles convicted of first-degree

murder prior to 2012.”      Commonwealth v. Melvin, 172 A.3d 14, 21

(Pa.Super. 2017) (citation omitted).

      Here, Appellant was convicted of first-degree murder and sentenced to

life without the possibility of parole in 1971. Appellant was ultimately

resentenced in 2018, following Miller, Montgomery, and Batts II, to a term

of forty years to life imprisonment.

      We find that Batts II disproves Appellant’s contention that the

sentencing court lacked authority to impose a term of forty years to life

imprisonment. Batts II explicitly directed courts to use 18 Pa.C.S.A. § 1102.1

as a guideline for resentencing juvenile offenders. Further, the Pennsylvania

Constitution gives the Pennsylvania Supreme Court “the power to prescribe

general rules governing practice, procedure and the conduct of all courts as

long as such rules neither abridge, enlarge nor modify the substantive rights

of any litigant[.]” Batts II, 163 A.3d at 449 (quoting Pa. Const. art. V, § 10).

Thus, the trial court had the authority to resentence Appellant pursuant to

Batts II. Further, Batts II required the court to sentence Appellant to a

mandatory maximum of life imprisonment. See id. at 458.              See also

Commonwealth v. Seskey, 170 A.3d 1105, 1109 (Pa.Super. 2017).




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        Appellant    suggests    a   maximum      term    of   life   imprisonment    is

unconstitutional and affords him no meaningful opportunity for release.

Appellant’s argument misapprehends Pennsylvania’s sentencing scheme.

        Pennsylvania utilizes an indeterminate sentencing scheme with a

minimum period of confinement and a maximum period of confinement.                   “In

imposing a sentence of total confinement the court shall at the time of

sentencing specify any maximum period up to the limit authorized by law….”

42 Pa.C.S.A. § 9756(a). See also Commonwealth v. Saranchak, 544 Pa.

158, 675 A.2d 268, 277 n.17 (1996).              Here, that maximum period is life

imprisonment. Therefore, the sentence imposed, with a maximum period of

life, is lawful.

        To the extent Appellant meant his minimum term is unconstitutional and

affords him no meaningful opportunity for release, we note “[t]he maximum

term represents the sentence imposed for a criminal offense, with the

minimum term merely setting the date after which a prisoner may be paroled.”

Martin v. Pennsylvania Bd. of Prob. and Parole, 576 Pa. 588, 840 A.2d

299, 302 (2003). Here, the trial court noted that, upon resentencing on May

3, 2018, Appellant was given “time credit from December 2, 1968, to October

30, 2017, minus roughly five months[,]” and thus, at the time of resentencing,

he was eligible for parole. Trial Court Opinion, filed 8/22/18. In fact, the trial

court    noted     the   “the   Pennsylvania     Board   of    Probation   and   Parole

[subsequently] sent a letter [to the trial court] indicating that [] Appellant was


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released on parole” after the credit for time served was awarded to Appellant.

Id. at 2 n.2.

      After examining the issue contained in the Anders brief, we concur with

counsel’s assessment that the appeal is wholly frivolous. “Furthermore, after

conducting a full examination of all the proceedings as required pursuant to

Anders, we discern no non-frivolous issues to be raised on appeal.” Yorgey,

188 A.3d at 1195. Thus, we grant counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

      Petition to withdraw as counsel granted. Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/05/2019




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