J-S45024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OMAR J. DENNIS                             :
                                               :
                       Appellant               :   No. 2156 EDA 2018

          Appeal from the Judgment of Sentence Entered June 26, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0411311-1994


BEFORE:      BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 16, 2019

        Omar J. Dennis (Appellant) 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). Upon

review, we affirm.

        In March of 1994, Appellant, who was then 17 years old, was arrested

and charged with murder and related crimes. Trial Court Opinion, 9/11/18,

at 1.    Following a jury trial, he was convicted of first-degree murder and

sentenced on December 19, 1994 to the then-mandatory term of life in prison

without parole.

        After the United States Supreme Court decided Miller v. Alabama,

holding that mandatory life imprisonment without parole for those under the

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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age of 18 at the time of their crimes violates the Eighth Amendment’s

prohibition on cruel and unusual punishment, Appellant filed a petition for

relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

As the holding in Miller was made retroactive by Montgomery v. Louisiana,

Appellant was afforded a new sentencing hearing. The PCRA granted relief

and vacated Appellant’s mandatory life sentence. On March 26, 2018, the

court re-sentenced Appellant to 28 years to life in prison. Appellant filed a

timely post-sentence motion for reconsideration of sentence which the court

granted. On June 26, 2018, the court imposed a sentence of 27 years to life

in prison. Appellant filed this timely appeal. Both the trial court and Appellant

have complied with Pennsylvania Rule of Appellate Procedure 1925.1

       Appellant presents two questions on appeal:

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

       2. Was it not mandated by Miller v. Alabama, 567 U.S. 460
          (2012), which struck down the Pennsylvania sentencing
          scheme that imposed mandatory life sentences on all juveniles
          convicted of murder, that at resentencing a judge may only
          impose a sentence for the lesser included offense of third
          degree murder for juveniles convicted before June 25, 2012?

Appellant’s Brief at 3.



____________________________________________


1 At Appellant’s request, this Court entered an order remanding the case to
the trial court on November 20, 2018 for the filing of a supplemental record,
which was transmitted to this Court on December 21, 2018.



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      Appellant’s two sentencing issues are essentially one — Appellant

argues that in contravention of Miller, “a mandatory lifetime parole tail is not

an individualized sentence and does not consider any relevant factors.”

Appellant’s Brief at 9. Appellant contends that this Court should vacate his

sentence and remand this case for resentencing based on “the only sentencing

scheme left intact after Miller: sentencing on the lesser included offense of

third degree murder.” Id. We disagree.

      The   Commonwealth        accurately   responds     that   Appellant    was

“resentenced in accordance with Miller . . . and will soon be eligible for parole.

His arguments that his sentence should be further reduced have been

previously rejected in published opinions.”        Commonwealth Brief at 4.

Likewise, the trial court opined, “[b]ecause these issues have been fully

resolved by the Supreme Court and Superior Court, [Appellant’s] judgment of

sentence should be affirmed.” Trial Court Opinion, 9/11/18, at 3.

      As the Commonwealth and trial court recognized, our Supreme Court

and this Court have rejected Appellant’s argument. In Commonwealth v.

Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”) the Pennsylvania Supreme Court

reaffirmed its holding in Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013)

(“Batts I”), finding that juvenile defendants convicted of first-degree murder

prior to Miller are subject to a mandatory maximum sentence of life

imprisonment. See Batts II, 163 A.3d at 421, 445. The Court explained:

      We therefore held that juveniles convicted of first-degree murder
      prior to Miller could, after the sentencing court’s evaluation of the


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      criteria identified in Miller, be subjected to a sentence of life in
      prison without the possibility of parole. For those defendants for
      whom the sentencing court determines a life-without-parole
      sentence is inappropriate, “it is our determination here that they
      are subject to a mandatory maximum sentence of life
      imprisonment as required by [18 Pa.C.S.A. 1102(a)],
      accompanied by a minimum sentence determined by the common
      pleas court upon resentencing[.]”

Batts II, 163 A.3d at 421 (quoting Batts I, 66 A.3d at 297) (footnote

omitted).

      Consistent with Batts II, we have held that a sentencing court imposed

an illegal sentence where the sentencing court resentenced a juvenile offender

convicted of first-degree murder to 13 to 26 years of imprisonment because

the court was required to impose a mandatory maximum sentence of

life imprisonment under Batts II. Commonwealth v. Seskey, 170 A.3d

1105 (Pa. Super. 2017).

      More recently, in Commonwealth v. Ligon, 206 A.3d 1196 (Pa. Super.

2019), we once again held that the imposition of a mandatory maximum

sentence of life imprisonment on a resentenced juvenile offender convicted of

first-degree murder was legal, where the appellant argued that his

“mandatory maximum lifetime parole tail” was unconstitutional. Id. at 1198-

99.   We stated that “the resentencing court was statutorily required to

sentence Appellant to a maximum term of life imprisonment.” Id. at 1200.

We further found that the imposition of the mandatory maximum life sentence

did   not   violate   Miller’s   mandate   of   individualized   sentencing   with




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consideration of the particularized circumstances of the juvenile offender. We

explained:

      Miller . . . merely require[ed] the states to make the relevant
      inmates parole eligible, thereby insuring that those prisoners who
      have shown the ability to reform will receive a meaningful
      opportunity for release. It did not hold that life sentences with
      parole eligibility are unconstitutional, or that juvenile murderers
      must be released at some point regardless of their fitness to rejoin
      society. Thus, a sentence with a term of years minimum and a
      maximum sentence of life does not violate Miller's individualized
      sentencing requirement, because it properly leaves the ultimate
      decision of when a defendant will be released to the parole board.

Commonwealth v. Ligon, 206 A.3d at 1200.

      As noted by the Commonwealth, Appellant will be eligible for parole

upon the completion of his minimum sentence of 27 years. Appellant has

been incarcerated since 1994. Therefore, it appears that Appellant will have

“a   meaningful   opportunity   for   release”   in   2021,   depending   on   the

determination of the Board of Probation and Parole. See id.

      For the above reasons, Appellant’s claims do not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/19




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