J-A01005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYREE SANDERS                              :
                                               :
                       Appellant               :   No. 3927 EDA 2017

            Appeal from the Judgment of Sentence October 10, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0331711-1994


BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 15, 2019

        Tyree Sanders appeals from the judgment of sentence imposed October

10, 2017, in the Philadelphia County Court of Common Pleas. The trial court

resentenced Sanders to a term of 30 years to life imprisonment, following his

jury conviction of second-degree murder, robbery, conspiracy and possessing

an instrument of crime (“PIC”),1 for the 1994 robbery and murder of George

Patterson.     On appeal, Sanders challenges the legality and discretionary

aspects of his sentence. For the reasons below, we affirm.

        The facts underlying Sanders’ arrest and conviction are well-known to

the parties and need not be reiterated in detail herein. In summary, on the

afternoon of February 27, 1994, 16-year-old Sanders, with several other

young men including co-defendant Carl Wilkins, planned to rob the victim,
____________________________________________


1   See 18 Pa.C.S. §§ 2502(b), 3701, 903, and 907, respectively.
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Patterson.    During the course of the robbery, Sanders shot and killed

Patterson.   Sanders confessed to the police, and maintained that the gun,

provided to him by Wilkins, accidentally discharged when he retrieved it from

his pocket to scare Patterson. See Trial Court Opinion, 1/23/2018, at 2-3

(citation omitted).

      Sanders was arrested and charged with the aforementioned offenses.

He proceeded to a jury trial with co-defendant Wilkins. The ensuing factual

and procedural history of this case was summarized by the trial court as

follows:

      On February 23, 1996, the jury convicted [Sanders] of second-
      degree murder, robbery, conspiracy to commit murder, and [PIC].
      On July 30, 1996, [the trial court] sentenced [Sanders] to the
      then-mandatory term of life imprisonment without parole for
      second-degree murder, and concurrent sentences of ten to twenty
      years of imprisonment for robbery, five to ten years of
      imprisonment for conspiracy, and two and one-half to five years
      of imprisonment for PIC, for a total sentence of life imprisonment
      without parole.

            [Sanders] appealed and on December 12, 1997, the
      Superior Court affirmed his judgment of sentence. On December
      26, 1997, [Sanders] filed a petition for allowance of appeal with
      the Supreme Court of Pennsylvania, which was denied on
      December 23, 1998. [See Commonwealth v. Sanders, 706
      A.2d 1258 (Pa. Super 1997) (unpublished memorandum), appeal
      denied, 734 A.2d 394 (Pa. 1998).]

            In 2016, a three-judge en banc panel for the Philadelphia
      County Court of Common Pleas was established to decide all
      questions of law concerning the resentencing of juveniles
      previously sentenced to life without parole.2 On October 28, 2016,
      the en banc panel was presented with fifteen questions of law. On
      April 13, 2017, the en banc panel issued its opinion addressing
      each question of law.
      __________


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         2 In 2016, the First Judicial District of Pennsylvania, Court
         of Common Pleas, adopted “General Court Regulation No. 1
         of 2016.”      The Regulation established procedures for
         juvenile lifers previously sentenced to life without parole to
         have an opportunity to show that their crimes did not reflect
         irreparable corruption and that they should be considered
         for release on parole. For further discussion on what
         necessitated the regulation, see Miller v. Alabama, 132
         S.Ct. 2455 (2012) and Montgomery v. Louisiana, 136
         S.Ct. 718 (2016).

      __________

            On October 10, 2017, this Court vacated [Sanders’]
      sentences and resentenced him to thirty years to life
      imprisonment for second-degree murder, and imposed no further
      penalty on the conspiracy and PIC charges. [The court found
      Sanders’ robbery conviction merged with second-degree murder
      for sentencing purposes.] On October 20, 2017, [Sanders] filed a
      motion for reconsideration of sentence, which this Court denied
      on October 31, 2017.

            On November 29, 2017, [Sanders] filed a notice of appeal
      to the Superior Court. On December 21, 2017, in response to this
      Court’s order, [Sanders] filed a timely 1925(b) Statement.

Trial Court Opinion, 1/23/2018, at 1-2 (some capitalization and footnotes

omitted).

      By way of background, in Miller v. Alabama, 567 U.S. 460 (2012), the

United States Supreme Court held that “mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth

Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 465.

Under Miller, a trial court is not foreclosed from imposing a sentence of life

imprisonment without parole on a juvenile; however, before doing so the court

is required to “take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in


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prison.”    Id. at 480.      Thereafter, in October of 2012, the Pennsylvania

legislature enacted 18 Pa.C.S. § 1102.1, to address the Supreme Court’s

holding in Miller. The statute provides mandatory minimum sentences for

juvenile offenders who are convicted of first- or second-degree murder.2 See

18 Pa.C.S. § 1102.1(a), (c). However, by its very terms, the statute applies

only to those “convicted after June 24, 2012.” 18 Pa.C.S. §§ (a)(1) and (c)(1).

       In January of 2016, the United States Supreme Court issued its decision

in Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016), holding

the Miller decision constituted a new substantive rule that must be applied

retroactively to cases on collateral review. See id. at 732-737. Following

Miller and Montgomery, our Supreme Court decided Commonwealth v.

Batts, 163 A.3d 410 (Pa. 2017) (Batts II), which addressed the procedural

requirements      for   sentencing     a   juvenile   homicide   defendant   in   this

Commonwealth. See id. at 459-460 (holding there is a presumption against

imposition of life without parole sentence for juvenile murder defendants;

Commonwealth must provide notice of its intent to seek such a sentence;

Commonwealth must rebut the presumption with proof beyond a reasonable

doubt that “juvenile offender is permanently incorrigible and thus is unable to

be rehabilitated[;]” and the court must consider the factors announced

____________________________________________


2 For a juvenile, like Sanders, who was convicted of second-degree murder for
an act he committed when he was under the age of 18 but older than 15, the
statute calls for a minimum term of imprisonment of “at least 30 years to life.”
18 Pa.C.S. § 1102.1(c)(1).


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in Miller and [18 Pa.C.S. §] 1102.1(d)” before imposing a sentence of life

without parole).

      Sanders’ first issue presents a challenge to the legality of his sentence.

“When reviewing the legality of a sentence, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Melvin, 172

A.3d 14, 19 (Pa. Super.2017) (citation omitted), appeal denied, 187 A.3d 207

(Pa. 2018).

      Sanders maintains the 30 years to life sentence imposed by the trial

court upon resentencing is “unconstitutionally long on both ends[.]” Sanders’

Brief at 12. He argues “the U.S. Constitution does not permit a minimum

sentence longer than time-served, and it does not permit an automatic tail

sentence of life” imprisonment. Id.

      With regard to the minimum term, Sanders insists the Pennsylvania

Supreme Court’s decision in Batts II acknowledged, “there is no minimum

sentence in place in Pennsylvania for murder in pre-Miller cases where the

juvenile offender is to be parole-eligible.” Sanders’ Brief at 13. Relying upon

the federal district court’s decision in Songster v. Beard, 201 F.Supp.3d 639

(E.D. Pa. 2016), Sanders argues, “a time served minimum sentence is the

only legal, constitutionally-valid minimum sentence under his circumstances.”

Sanders’ Brief at 14.

      He also contends the imposition of a mandatory maximum term of life

imprisonment is unconstitutional and violates the mandates of proportionality

and individualized sentencing. See id. Sanders maintains that by requiring

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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 be an

abdication of the judicial responsibility of sentencing.” Id. at 15.

      The trial court found Sanders’ challenge to the legality of his sentence

was “thoroughly resolved” by the Pennsylvania Supreme Court in Batts II.

Trial Court Opinion, 1/23/2018, at 4. We agree. With regard to a permissible

minimum sentence, the Batts II Court opined:

      In determining the minimum sentence for a juvenile convicted of
      first-degree murder prior to Miller, a sentencing court is to
      exercise its discretion to find the appropriate, individualized
      sentence in each case, just as it would when fashioning the
      minimum sentence for any other defendant before it.

Batts II, supra, 163 A.2d at 443. Indeed, the focus of the Miller decision

was the unconstitutionality of imposing a mandatory life sentence without

the possibility for parole on a juvenile officer “who may be capable of

rehabilitation.” Id. at 452.

      This Court’s recent decision in Commonwealth v. Lehman, ___ A.3d

___ [2019 PA Super 2] (Pa. Super. Jan. 4, 2019), is instructive. In that case,

the defendant, like Sanders, was convicted of a murder he committed when

he was a juvenile, and sentenced in 1990 to life imprisonment without parole.

In April of 2017, after obtaining relief pursuant to Miller and Montgomery,

the defendant was resentenced to a term of 30-years to life for his conviction

of first-degree murder. See id. at *1-*2. On appeal, he argued, inter alia,

“there was no statutory authority by which the trial court could sentence [him]

for first-degree murder because 18 Pa.C.S.A. § 1102[, which mandates a term

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of life imprisonment for first- and second-degree murder,] when combined

with 61 Pa.C.S.A. § 6137(a)(3), [which precludes the parole board from

granting parole any time before the minimum term of imprisonment,] was

deemed unconstitutional in Miller.”        Id. at *2.   Therefore, the defendant

claimed, upon resentencing, the trial court’s only options were to sentence

him for third-degree murder or discharge him. See id. Relying upon Batts

II and several decisions of this Court, the panel rejected this argument,

opining:

      The sentencing options available to the trial court offered no
      mandatory minimum and a mandatory maximum term of life
      imprisonment. The trial court imposed such a sentence. Hence,
      [the defendant’s] sentence of 30 years to life imprisonment was
      legal.

Id. at *3 (emphasis supplied).     Sanders’ contention in the present case is

similarly meritless.

      Sanders also insists the imposition of a “mandatory maximum tail of life

is unconstitutional.”   Sanders’ Brief at 14.       He contends a mandatory

maximum      life   sentence    violates    the   “constitutional   mandate   of

proportionality” and denies a juvenile offender a “meaningful opportunity for

release” because it places the authority to grant release within the sole

discretion of the parole board. Id. at 14-15. The Commonwealth agrees with

this position, and advocates:

      [W]here defendants have demonstrated that they have been
      rehabilitated or that they have the capability of being
      rehabilitated, the mandatory imposition of continued, lifetime
      punishment is disproportionate, and violates the requirement of
      individualized sentencing set forth in Miller.

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Commonwealth’s Brief at 11 (footnote omitted).3

       However, as the Commonwealth recognizes in its brief, 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, ___ A.3d ___ [297 WAL 2018]

(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

imposition    of   mandatory      maximum        term   of   life   imprisonment   upon

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

Miller was legal). The Olds Court summarized the state of the law as follows:

       [W]e affirm that trial courts must sentence juveniles convicted
       of second-degree murder prior to June 25, 2013 to a maximum
       term of life imprisonment under section 1102(b).

____________________________________________


3 Both Sanders and the Commonwealth rely upon the decision of the federal
district court in Songster, supra. However, we emphasize that decision is
not “binding authority” in Pennsylvania courts. Commonwealth v. Olds, 192
A.3d 1188, 1197 n.18 (Pa. Super. 2018), appeal denied, ___ A.3d ___ [297
WAL 2018] (Pa. Dec. 11, 2018);

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Olds, supra, 192 A.3d at 1198 (emphasis supplied). Accordingly, Sanders’

claim has been rejected by several other panels of this Court, and we are “not

empowered      to   overrule   another    panel    of   the   Superior   Court.”

Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013). See also

Commonwealth v. Davis, 188 A.3d 454, 458 n.2 (Pa. Super. 2018) (“Under

the doctrine of stare decisis, a panel must adhere to the precedents that this

Court’s prior panels have handed down.”). Accordingly, Sanders is entitled to

no relief on his challenge to the legality of his sentence.

      In his final two arguments, Sanders challenges the discretionary aspects

of his sentence.       Specifically, he asserts the trial court considered

impermissible facts in imposing his sentence, as well as criminal conduct for

which he was not convicted. See Sanders’ Brief at 15-17. Sanders also insists

the court failed to properly weigh the sentencing evidence, particularly the

negative impact of his drug-dealing biological father, and his improved

maturity while in prison. See id. at 17-19.

      A defendant does not have an absolute right to challenge the

discretionary aspects of his sentence on appeal. Commonwealth v. Tobin,

89 A.3d 663, 666 (Pa. Super. 2014) (citation omitted).         Rather, when a

defendant raises a discretionary sentencing claim in his brief, “this Court

considers such an argument to be a petition for permission to appeal.”

Commonwealth v. Dawson, 132 A.3d 996, 1005 (Pa. Super. 2015) (citation

omitted). “[A]n ‘[a]ppeal is permitted only after this Court determines that

there is a substantial question that the sentence was not appropriate under

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the sentencing code.’” Commonwealth v. Cartrette, 83 A.3d 1030, 1042

(Pa. Super. 2013) (en banc) (citation omitted).

     Prior to reaching the merits of a discretionary aspects of
     sentencing issue, this Court is required to conduct a four-part
     analysis to determine whether a petition for permission to appeal
     should be granted. Commonwealth v. Trinidad, 96 A.3d 1031,
     1039 (Pa. Super. 2014) (citation omitted), appeal denied, 627 Pa.
     758, 99 A.3d 925 (2014). Specifically, we must determine the
     following.

        (1) [W]hether appellant has filed a timely notice of appeal,
        Pa.R.A.P. 902, 903; (2) whether the issue was properly
        preserved at sentencing or in a motion to reconsider and
        modify sentence, Pa.R.Crim.P. [720]; (3) whether
        appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
        (4) whether there is a substantial question that the sentence
        appealed from is not appropriate under the Sentencing
        Code, 42 [Pa.C.S.A.] § 9781(b).

     Id.

Dawson, supra, 132 A.3d at 1005.

     Here, Sanders filed a timely notice of appeal, and preserved his claims

in a timely-filed post-sentence motion.     See Motion to Modify Sentence

Pursuant to Pa.R.Crim.P. 720, 10/20/2017, at 5-9. However, Sanders did not

include in his brief the requisite statement of the reasons relied upon for

allowance of appeal pursuant to Pa.R.A.P. 2119(f). The law is clear:

      [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, or enforce the
     requirements of Pa.R.A.P. 2119(f) sua sponte, i.e., deny
     allowance of appeal.      However, this option is lost if the
     [Commonwealth] objects to a 2119(f) omission.            In such
     circumstances, this Court is precluded from reviewing the merits
     of the claim and the appeal must be denied.


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

citations omitted). See also Dawson, supra, 132 A.3d at 1005 (denying

appellant’s petition for permission to appeal discretionary aspects of

sentencing when appellant failed to include Rule 2119(f) statement and

Commonwealth objected).

       As noted above, Sanders failed to include the requisite Rule 2119(f)

statement in his brief.4 Moreover, the Commonwealth has objected to this

briefing defect.     See Commonwealth’s Brief at 13.       Accordingly, we are

precluded from considering his remaining sentencing claims on appeal.5

Kiesel, supra.

       Judgment of sentence affirmed.




____________________________________________


4Nor did Sanders even attempt to explain how his claims raised a substantial
question in the argument portion of his brief. See Sanders’ Brief at 15-19

5 In his reply brief, Sanders urges this Court to decide this issue on the merits
because “[t]he Commonwealth has made no argument that it suffered any
actual prejudice, or that any alleged procedural violations affect this appeal in
any way.” Sanders’ Reply Brief at 2. However, he cites no case law supporting
his claim that the Commonwealth must demonstrate prejudice, or that we
may overlook this particular procedural defect. Indeed, the law is clear that
Sanders’ omission, followed by the Commonwealth’s objection, precludes our
review. See Kiesel, supra; Dawson, supra.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/19




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