J-S26015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DERRICK CHAPPELL                           :
                                               :
                       Appellant               :   No. 2958 EDA 2018

         Appeal from the Judgment of Sentence Entered August 6, 2018
               In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0003607-1999


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                          FILED OCTOBER 09, 2019

        Derrick Chappell challenges the judgment of sentence entered in the

Delaware County Court of Common Pleas, following resentencing on his

second-degree murder conviction. We affirm in part, vacate in part and

remand to the trial court for further proceedings consistent with this

memorandum.

        In 2000, Chappell, who was fifteen years old at the time of the offense,

was convicted of second-degree murder as a result of his participation in the

1997 burglary, robbery and murder of an elderly victim. The trial court

sentenced him to life imprisonment without the possibility of parole. We

affirmed Chappell’s judgment of sentence, and our Supreme Court denied

allowance of appeal. In the years that followed, Chappell unsuccessfully

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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sought post-conviction relief by filing multiple PCRA petitions. In each

instance, the denial of PCRA relief was affirmed on appeal by this Court.

      In 2012, the United States Supreme Court held that mandatory life

imprisonment without parole for juvenile offenders violates the Eighth

Amendment’s prohibition on cruel and unusual punishment. See Miller v.

Alabama, 567 U.S. 460, 465 (2012). Notably, the Court did not foreclose

sentencing courts from ever imposing a term of life without parole in a

homicide case. See id., at 479-480. Instead, it required sentencing courts to

consider a juvenile’s immaturity and capacity for change, and to impose a life

without parole term only in those extreme and rare cases where the

sentencing court determines that the juvenile is incapable of rehabilitation.

See id.

      Recognizing Pennsylvania’s existing sentencing scheme violated Miller,

the Legislature enacted 18 Pa.C.S.A. § 1102.1. The statute provides

mandatory minimum sentences for juvenile offenders who are convicted of

first or second degree murder. See 18 Pa.C.S.A. 1102.1. However, by its

terms, the statute applies only to those convicted after June 24, 2012. See

id.

      Thereafter, in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the

Court held Miller announced a substantive rule of constitutional law that must

be applied retroactively. See Montgomery, at 736. Following Miller and

Montgomery, our Supreme Court held in Commonwealth v. Batts, 66 A.3d


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286 (Pa. 2017) (“Batts I”), that juvenile offenders for whom the sentencing

court deems a life without parole sentence is 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 297.

      The Supreme Court of Pennsylvania later reaffirmed this rule in

Commonwealth v. Batts, 163 A.3d 410, 459-460 (Pa. 2017) (“Batts

II”).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 458.

      After the issuance of Montgomery, Chappell filed a timely PCRA

petition asserting that his sentence was illegal pursuant to Miller and

Montgomery. The PCRA court granted relief on this claim. Chappell was

originally resentenced to thirty years to life imprisonment on the second-

degree murder charge. Chappell filed a motion to reconsider sentence, and

was ultimately resentenced to twenty-eight years to life imprisonment on the

second-degree murder charge. This timely appeal followed.

      Chappell first argues that his maximum sentence of life in prison is

illegal. “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. Barnes, 167 A.3d 110, 116 (Pa. Super. 2017)

(en banc) (internal quotations and citation omitted, ellipses in original).


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      Chappell contends that pursuant to Miller and Graham v. Florida, 560

U.S. 68 (2010), the imposition of a mandatory maximum term of life

imprisonment is unconstitutional and violates the mandates of proportionality

and individualized sentencing. He maintains that by requiring a mandatory

term of life for the tail of the sentence, a juvenile defendant’s eligibility for

release will lie solely with the Parole Board, which would reflect an abdication

of judicial responsibility. See Appellant’s Brief, at 25 (citing Songster v.

Beard, 201 F.Supp.3d 642 (E.D. Pa. 2016)).

      We find that Chappell’s challenge to the legality of his sentence was

thoroughly resolved by our Supreme Court in Batts II. Further, since Batts

II, this Court has repeatedly rejected the claim that the imposition of a

mandatory maximum sentence of life imprisonment for a juvenile convicted

of first or second-degree murder is illegal. See Commonwealth v. Olds, 192

A.3d 1188, 1197-1198 (Pa. Super. 2018) (holding imposition of mandatory

maximum term of life imprisonment for juvenile defendant convicted of

second-degree murder prior to Miller was constitutional), appeal denied, 199

A.3d 334 (Pa. Dec. 11, 2018); Commonwealth v. Sesky, 170 A.3d 1105,

1109 (Pa. Super. 2017) (holding trial court imposed an illegal sentence when

it resentenced juvenile defendant convicted of first-degree murder prior to

Miller to term of 13 to 26 years' imprisonment; court was required to impose

mandatory maximum sentence of life imprisonment); Commonwealth v.

Battles, 169 A.3d 1086, 1089-1090 (Pa. Super. 2017) (holding trial court's


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imposition   of   mandatory    maximum       term   of   life   imprisonment   upon

resentencing of juvenile defendant convicted of first-degree murder prior to

Miller was legal).

      As summarized by our Court in Olds, “trial courts must sentence

juveniles convicted of second-degree murder prior to June 25, 2012 to a

maximum term of life imprisonment under section 1102(b).” Id., at 1198.

Accordingly, Chappell is entitled to no relief on his first claim.

      Next, Chappell contends the re-sentencing court erred in not making a

determination regarding his ability to pay court costs at the time of sentencing

– i.e. prior to imposing the costs on him. A claim that the court lacked

authority to impose fines and costs is also a challenge to the legality of

sentence. Commonwealth v. Garzone, 993 A.2d 306 (Pa. super. 2010),

aff’d, 34 A.3d 67 (Pa. 2012). While we agree that the sentence is illegal in this

respect, we do so on other grounds.

       Unlike fines, which are part of a defendant’s actual sentence, a

defendant who has been convicted of a crime may also be liable for the costs

of prosecution, which are authorized by statute. See 16 P.S. § 7708; see also

16 P.S. § 1403. It is well-established that “[a] direction to pay costs in a

criminal proceeding is not part of the sentence, but is an incident of the

judgment. Costs do not form a part of the penalty imposed by the statutes

providing for the punishment of the criminal offenses[.] Commonwealth v.

Soudani, 165 A.2d 709, 711 (Pa. Super. 1960).


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      Therefore, a defendant can expect to be held financially liable for the

costs associated with a sentencing proceeding when he commits a crime. “A

defendant does not, however, reasonably expect to be financially responsible

for the costs associated with resentencing necessitated by changes in law

many years later.” Commonwealth v. Lehman, 201 A.3d 1279, 1287 (Pa.

Super. 2019), appeal granted, ___ A.3d ___, 69 MAL 2019 (Pa. 2019).

      [I]t is well-settled that a defendant may not be punished for
      exercising his or her constitutional rights. If we held that Appellant
      was responsible for paying the costs associated with resentencing,
      we would punish him for exercising his constitutional right to
      receive a sentence that comports with the Eighth Amendment of
      the United State Constitution (as incorporated against the states
      via the Fourteenth Amendment).

Id., at 1286. This Court in Lehman found that although the Appellant “chose”

to receive a constitutional sentence by filing a PCRA petition, that did not

entitle the Commonwealth to recover the costs associated with the

resentencing process. Id.

      Any costs of resentencing in the instant case arose because Chappell

elected to exercise his rights under Miller and Montgomery. It was not

reasonably foreseeable that Chappell would receive an illegal sentence and

later be resentenced. Accordingly, the trial court lacked the authority to order

Chappell to pay costs and fines associated with the resentencing proceedings

as they were necessitated by the evolution of constitutional law. See id.




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       Our review of the record reveals neither costs nor fines were discussed

in any manner during either of the resentencing hearings. See N.T., 4/9/18;

see also N.T., 8/6/18. Despite the lack of discussion on the record, the court

imposed $885.30 for costs and fines. See AOPC Docket; see also Certificate

of Imposition of Judgment of Sentence, 4/9/18;1 see also Certificate of

Imposition of Judgment of Sentence, 8/6/18. Given the lack of discussion

regarding the costs and fines being imposed, it is unclear when each cost and

fine arose – i.e. from the original sentencing, or from resentencing – with the

exception of the cost of DNA testing, which was clearly ordered at the second

resentencing hearing. See N.T., Resentencing Hearing, 4/9/18, at 7 (“You also

must submit to a DNA sample, okay?”).

       In sum, we conclude the trial court had the authority to resentence

Chappell to twenty-eight years to life imprisonment for his second-degree

murder conviction. However, we hold the trial court lacked the authority to

order Chappell to pay the costs of DNA testing associated with resentencing.

Further, we remand to the trial court for a determination of whether the

remaining costs and fines arose from the original sentencing or from the

resentencing proceedings.



____________________________________________


1 We note that the Certificate of Imposition of Judgment of Sentence provides
that “costs of prosecution” are imposed on Chappell. However, we conclude
this does not clearly establish that the costs at issue are costs arising from
resentencing. We therefore believe the best course of action is to vacate and
remand to allow the trial court to address this issue in the first instance.

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      We affirm Chappell’s judgment of sentence in part, vacate it in part, and

remand for further proceedings consistent with this opinion.

      Judgment of sentence affirmed with respect to the term of incarceration.

Judgment of sentence vacated with respect to costs imposed. Case remanded

for further proceedings consistent with this memorandum. Jurisdiction

relinquished.

      Judge Pellegrini joins the memorandum.

      President Judge Emeritus Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/19




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