J-S04042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN VINCENT WATERS                        :
                                               :
                       Appellant               :   No. 99 MDA 2018

            Appeal from the Judgment of Sentence December 4, 2017
    In the Court of Common Pleas of Cumberland County Criminal Division at
                        No(s): CP-21-CR-0000893-1981


BEFORE:      SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 01, 2019

        Appellant, John Vincent Waters, appeals from the December 4, 2017,

judgment of sentence entered in the Court of Common Pleas of Cumberland

County following the trial court’s grant of PCRA1 relief and resentencing of

Appellant on, inter alia, 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,




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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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who were under eighteen years of age at the time of their crimes. After a

careful review, we affirm.

      The relevant facts and procedural history are as follows:

           On October 14, 1981, the body of an eleven-year-old boy,
      Steven Turner, was found stabbed and bludgeoned to death in an
      abandoned farmhouse within a mile of his home in Cumberland
      County, Pennsylvania. The body, covered by stones and boards,
      was discovered in the evening as a result of a search for the boy
      which commenced when he did not come home for dinner.
            An autopsy revealed that the 4 foot 9 inch, 80 pound sixth
      grader had died as a result of multiple head injuries. He had
      sustained a massive fracture of the skull from blows to the back
      and the side of the head, a broken jaw on each side of the face, a
      stab wound to the back of the neck and a stab wound to the back
      of the chest. He had also been subjected to a post-mortem incise
      wound on the right wrist and stab wound in the front of the neck.
      The blade of a knife, with its handle broken off, was left in the
      victim’s neck. The autopsy report also indicated that sperm was
      present in the victim’s mouth.
            [A]ppellant…a 152 pound, sixteen-year-old, 5 foot 8 inch
      high school student told police during an original canvass of the
      neighborhood, that he had last seen the victim on the afternoon
      he disappeared. He told the police that he had observed the victim
      getting into an unknown car, which subsequently drove out of the
      development.
             As a result of a further canvass of the neighborhood, the
      police obtained a steak knife from [A]ppellant’s mother. The
      knife, which she had in her house, matched the one found at the
      murder scene including the blade which had been left in the
      victim’s throat.
            On October 25, 1981, the police requested that [A]ppellant
      and his father report to the municipal building for questioning
      concerning the homicide. [A]ppellant was given the Miranda
      warnings in the presence of his father. Thereafter he and his
      father consulted with each other. [A]ppellant waived his rights
      and agreed to speak to the police without having his father
      present. His father had no objection to such an interrogation.




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           During the course of the questioning, [A]ppellant made an
     inculpatory statement, admitting that he had engaged in oral
     intercourse with the victim and then had killed him.

Commonwealth v. Waters, 483 A.2d 855, 857-58 (Pa.Super. 1984).

     On September 23, 1982, a jury convicted Appellant of first-degree

murder, 18 Pa.C.S. § 2502(a), and involuntary deviate sexual intercourse

(“IDSI”), 18 Pa.C.S. § 3123. On January 25, 1983, the trial court sentenced

Appellant to life in prison without the possibility of parole for first-degree

murder, as well as a concurrent term of four years to ten years in prison for

IDSI. This Court affirmed Appellant’s judgment of sentence on October 12,

1984. Waters, supra. The United States Supreme Court denied Appellant’s

writ of certiorari on June 3, 1985. Waters v. Pennsylvania, 471 U.S. 1137

(1985).

     On July 14, 2010, Appellant filed a pro se PCRA petition, and following

the appointment of counsel, the PCRA court denied the petition as untimely.

This Court affirmed.    Commonwealth v.        Waters, No. 71 MDA 2011

(Pa.Super. filed 8/16/11) (unpublished memorandum).

     On July 3, 2012, Appellant filed a second pro se PCRA petition, and

following the lower court “staying” the matter, Appellant’s counsel filed an

amended PCRA petition on behalf of Appellant. Counsel argued that Appellant

was entitled to relief under Montgomery, supra, and Miller, supra.         By

order entered on February 3, 2016, the PCRA court granted relief based on

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


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      On November 13, 2017, and December 4, 2017, Appellant, still

represented by counsel, proceeded to resentencing hearings, at the conclusion

of which the trial court resentenced Appellant to 35 years to life imprisonment

for first-degree murder, as well as a consecutive term of four years to ten

years in prison for IDSI. Appellant filed a timely, counseled motion to modify

his sentence, which the trial court denied on December 15, 2017. Thereafter,

Appellant’s counsel filed a petition to withdraw, which the trial court granted.

The trial court appointed the Public Defender’s Office to represent Appellant.

      This timely, counseled appeal followed, and on January 11, 2018, the

trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement. Despite

being represented by the Public Defender’s Office, Appellant filed a pro se

Pa.R.A.P. 1925(b) statement, as well as a request to proceed pro se. The trial

court scheduled a hearing pursuant to Commonwealth v. Grazier, 552 Pa.

9, 713 A.2d 81 (1998); however, the trial court filed an order on March 2,

2018, indicating that Appellant retained new private counsel such that a

Grazier hearing was unnecessary.       Following counsel’s motion to file an

amended Pa.R.A.P. 1925(b) statement, which the trial court granted, counsel

filed a Pa.R.A.P. 1925(b) statement on April 6, 2018. The trial court filed a

responsive Pa.R.A.P. 1925(a) opinion on May 30, 2018.

      In his first issue, Appellant contends that, upon resentencing in 2017,

the trial court imposed an illegal sentence when it failed to impose his

sentence for IDSI concurrently to his sentence for first-degree murder, such


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as it did when Appellant was originally sentenced in 1983. Alternatively, he

suggests the trial court did not have the authority to resentence him on his

IDSI conviction in 2017 but had the authority to resentence him only on his

first-degree   murder   conviction.   Appellant   contends   the   trial   court’s

resentencing with consecutive sentences impermissibly “enhanced [his]

punishment.” Appellant’s Brief at 15. Consequently, Appellant contends that

the trial court’s resentencing of Appellant as it relates to his IDSI conviction

violated the constitutional provisions prohibiting double jeopardy.

      Resentencing to correct an illegal sentence does not, in and of itself,

implicate double jeopardy. See Commonwealth v. Kratzer, 660 A.2d 102

(Pa.Super. 1995). “If a trial court errs in its sentence on one count in a multi-

count case, then all sentences for all counts will be vacated so that the court

can restructure its entire sentencing scheme.” Commonwealth v. Bartrug,

732 A.2d 1287, 1289 (Pa.Super. 1999). Here, Appellant intentionally upset

the finality of his judgment of sentence by challenging it collaterally through

his PCRA petition. We conclude that the PCRA court did not err in vacating

Appellant’s entire sentence before resentencing, rather than just the illegal

sentence for Appellant’s first-degree murder conviction. See id. Additionally,

as the trial court noted, “it was wholly appropriate for the court to resentence

[Appellant] on both charges regardless of the structure of the original

sentence.” Trial Court Opinion, filed 5/30/18, at 6.




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       Moreover, we note that, despite the imposition of consecutive sentences

upon resentencing, Appellant was resentenced to a lower aggregate term of

incarceration. For instance, in 1983, Appellant was sentenced to an aggregate

of life in prison without the possibility of parole; however, upon resentencing

in 2017, Appellant was sentenced to an aggregate of 39 years to life with the

possibility of parole.2 Thus, under such circumstances, we reject Appellant’s

claim that a double jeopardy violation occurred.3 See Kratzer, supra (holding

the constitutional provisions prohibiting double jeopardy do not prevent the

imposition of consecutive sentences upon remand where the original

sentences were concurrent; where the aggregate term of imprisonment did

not increase upon resentencing, there was no double jeopardy violation);

Commonwealth v. Sutton, 583 A.2d 500, 502–03 (1990) (declaring that

“no double jeopardy violation is implicated where the aggregate sentence

upon resentencing does not exceed the original aggregate sentence”) (citation

omitted)).


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2 Also, as the trial court explained, “given the mandatory sentence of life
without parole, there was no reason in 198[3] for the sentencing court to
structure a sentence with anything other than a concurrent sentence on the
IDSI charge.” Trial Court Opinion, filed 5/30/18, at 6.

3 We note that, in its written sentencing order on December 4, 2017, the trial
court gave Appellant credit for 13,190 days of time served. Therefore,
practically speaking, Appellant will not suffer “multiple punishments for the
same offense.” Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260 (1980)
(stating that double jeopardy “protects against multiple punishments for the
same offense”) (internal citations, quotation marks, and some brackets
omitted)).

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      In his second issue, Appellant contends that statements made by the

trial court in its Pa.R.A.P. 1925(a) opinion demonstrate that the trial court’s

imposition of consecutive sentences upon resentencing was the result of

actual judicial vindictiveness. This presents a challenge to the discretionary

aspects of Appellant’s sentence. See Commonwealth v. Barnes, 167 A.3d

110 (Pa.Super. 2017) (en banc).

      We have long held that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Id. at 122 (citation omitted). Instead, such

challenges are considered petitions for allowance of appeal. Id. Generally,

an appellant who wishes to challenge the discretionary aspects of his sentence

must satisfy a four-part test to invoke this Court’s jurisdiction:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant's brief has a fatal defect pursuant to Pa.R.A.P. 2119(f);
      and (4) whether there is a substantial question that the sentence
      appeal from is not appropriate under the Sentencing Code.

Id. (citation omitted). Finally, “[w]hether a particular issue constitutes a

substantial question about the appropriateness of sentence is a question to be

evaluated on a case-by-case basis.” Id. (citation omitted).

      Here, Appellant filed a timely notice of appeal, but he did not present

his issue during sentencing or in his post-sentence motion. However, since

Appellant’s issue, as framed, relates solely to statements made by the trial

court for the first time in its Rule 1925(a) opinion, we decline to find waiver




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on this basis.4 We note Appellant included a separate statement in his brief

pursuant to Pa.R.A.P. 2119(f), and a claim of judicial vindictiveness following

resentencing raises a substantial question. See Barnes, supra. Hence, we

will consider the substantive merits of Appellant’s sentencing claim.

              Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. In this context, an abuse
       of discretion is not shown merely by an error in judgment. Rather,
       the appellant must establish, by reference to the record, that the
       sentencing court ignored or misapplied the law, exercised its
       judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (quotation

omitted).

       Generally, a presumption of vindictiveness arises if the court imposes a

harsher sentence upon resentencing.            Commonwealth v. Robinson, 931

A.2d 15, 22 (Pa.Super. 2007) (en banc). See North Carolina v. Pearce,

395 U.S. 711, 89 S.Ct. 2072 (1969), overruled on other grounds by Alabama

v. Smith, 490 U.S. 794, 109 S.Ct. 2201 (1989) (holding that when a

defendant is resentenced and receives a greater sentence than that which was

originally ordered, the possibility that judicial vindictiveness motivated the

increased sentence may implicate the due process concern that defendants

will be chilled from exercising their appellate rights). “Absent evidence [that]



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4 For similar reasons, we also decline to find Appellant’s claim waived for failing
to raise it in his Rule 1925(b) statement.

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a sentencing increase is justified due to objective information concerning a

defendant’s case, the presumption of vindictiveness cannot be rebutted.”

Barnes, 167 A.3d at 124.           Significantly, no presumption of vindictiveness

arises when the original sentence and the new sentence are imposed by two

different judges. Commonwealth v. Tapp, 997 A.2d 1201, 1205 (Pa.Super.

2010).     Without a presumption of vindictiveness, the defendant must

affirmatively prove actual vindictiveness. Id. When a defendant fails to prove

vindictiveness by affirmative evidence, his right to due process has not been

infringed, and he is not entitled to resentencing on that ground. Id.

       In developing his issue of actual vindictiveness,5 Appellant points this

Court to the following portion of the trial court’s Pa.R.A.P. 1925(a) opinion:

             In closing, I will dispense with the distance and decorum of
       the third-person voice, a tool we judges use far too often.
       Likewise, I will dispense with the neutral appellation of
       “defendant.” I do so to note my displeasure with this appeal, and
       to let Mr. Waters know that I am not standing behind any
       trappings of privilege.      I do not disapprove of Mr. Waters
       exercising his right of appeal, but the tone and manner in which
       he did so was troubling. No doubt, Mr. Waters was frustrated by
       not being released. Nevertheless, in the cool light of morning, he
       lashed out with a condescending, entitled, and near-maniacal


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5 As indicated supra, Appellant did not receive a greater sentence upon
resentencing. Further, the Honorable Dale F. Shughart imposed Appellant’s
original sentence whereas the Honorable Albert H. Masland imposed
Appellant’s new sentence. Accordingly, there is no presumption of
vindictiveness and, as Appellant acknowledges, he must affirmatively prove
actual vindictiveness. See Tapp, supra.




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       missive to dismiss the abilities of the Public Defender and my
       reading of the law.[6]
             Although I am disturbed by this attitude, ironically, it is
       reassuring. In short, it confirms the hesitation that led me to
       impose consecutive sentences. Not only did I believe that the
       facts warranted consecutive sentences, but also, I sensed that Mr.
       Waters was not ready to be released-for his wellbeing or the
       public’s. I may be wrong on the law, but I was not wrong to
       impose a sentence that ensured Mr. Waters had a few more years
       to ponder his crimes.
              Should Mr. Waters be fortunate enough to be released on
       parole, I remind him, “[a] ‘parole’ is not an act of clemency
       obliterating    the    crime    or    forgiving  the    offender….”
       Commonwealth ex rel. Forsythe v. Myers, 189 A.2d 920, 921
       (Pa.Super. 1963) [(en banc)]. Steven Turner will always be his
       victim. Steven’s sisters, Sherise McMichael and Melissa Vaccaro,
       will always be his victims. And, in a more abstract sense, the
       community will always be his victim, as evidenced by the
       outpouring of public support for his continued incarceration. I
       implore Mr. Waters, during his incarceration and during any
       potential future liberty on parole, to remain cognizant of the effect
       his actions, legal or otherwise, have on the emotional wellbeing of
       his victims, and to temper his actions accordingly.

Trial Court Opinion, filed 5/30/18, at 7-8 (footnote added).

       Appellant reasons the trial court’s statements demonstrate that the trial

court imposed consecutive sentences to punish Appellant for challenging his

original sentence, thereby ensuring his parole is delayed. We disagree with

Appellant that the trial court’s statements, which were made in its advisory

Rule 1925(b) opinion, evidence actual vindictiveness in imposing consecutive

sentences. Rather, the trial court’s statements reflect the court’s confirmation


____________________________________________


6 It is unclear as to precisely what action or statements to which the trial court
is referring.

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that it imposed a sentence in accordance with the dictates of 42 Pa.C.S.A. §

9721, which requires a trial court, in imposing a sentence, to consider the

protection of the public, the gravity of the offense in relation to the impact on

the victim and community, and the rehabilitative needs of Appellant. The trial

court specifically indicated it did not disapprove of Appellant exercising his

rights; but rather, the trial court noted that Appellant’s “condescending,

entitled, and near-maniacal” attitude required comment.          See Trial Court

Opinion, filed 5/30/18, at 7. We find no evidence of actual vindictiveness,

and thus, we reject Appellant’s claim.

       In his third issue, Appellant contends that, in imposing consecutive

sentences, the trial court improperly placed undue emphasis on the nature of

his crime while improperly considering his young age at the time of the crime,

as well as his capacity for change, as aggravating factors. This presents a

challenge to the discretionary aspects of Appellant’s sentence. However, our

review of the record reveals that Appellant did not present this claim in his

post-sentence motion or raise the issue at sentencing.7 Thus, Appellant has

not preserved this specific issue for our review, and he is not entitled to relief.

See Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa.Super. 2010) (stating

that an appellant waives for appeal issues challenging the discretionary



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7 We note the trial court provided Appellant with his post-sentence and
appellate rights. N.T., 12/4/17, at 42-43.


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aspects of his sentence where he does not raise them at sentencing or in a

post-sentence motion); Pa.R.Crim.P. 720.

       In his final issue, Appellant contends the trial court’s imposition of 35

years to life imprisonment for Appellant’s first-degree murder conviction is an

illegal sentence. Specifically, 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.8 Thereafter, in Montgomery, the Court held Miller

announced a substantive rule of constitutional law that must be applied

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



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8 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 juvenile is
incapable of rehabilitation. See id. In any event, in the case sub judice, the
trial court’s new sentence permits parole.

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      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

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).




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

life without the possibility of parole in 1983. Appellant was ultimately

resentenced in 2017, following Miller, Montgomery, and Batts II, to 35

years to life imprisonment for his first-degree murder conviction.

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

sentencing court lacked authority to impose a term of 35 years to life

imprisonment for first-degree murder. 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). Accordingly, we find Appellant is not entitled to relief on this claim.

      For all of the foregoing reasons, we affirm.

      Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/01/2019




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