J-S15035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    SCOTT FONTAINE WALKER                      :
                                               :
                       Appellant               :      No. 1216 WDA 2018

         Appeal from the Judgment of Sentence Entered April 26, 2018
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0009861-1994


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                           FILED JUNE 04, 2019

        Appellant, Scott Fontaine Walker, appeals from the new judgment of

sentence entered in the Allegheny County Court of Common Pleas, following

his jury trial conviction for first-degree murder.1        We affirm and grant

counsel’s petition to withdraw.

        The relevant facts and procedural history of this case are as follows. On

July 24, 1994, Appellant fatally shot Victim. Appellant was 15 years old at the

time. A jury convicted Appellant of first-degree murder on May 11, 1995. The

court sentenced Appellant on June 26, 1995, to life imprisonment without the

possibility of parole (“LWOP”). This Court affirmed the judgment of sentence

on June 4, 1996, and our Supreme Court denied allowance of appeal on


____________________________________________


1   18 Pa.C.S.A. § 2501(a).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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October 22, 1996. See Commonwealth v. Walker, 683 A.2d 315 (Pa.Super.

1996) (unpublished memorandum), appeal denied, 546 Pa. 665, 685 A.2d 545

(1996). Subsequently, Appellant unsuccessfully litigated four PCRA petitions

between 2000 and 2010.

      On July 6, 2012, Appellant filed pro se his fifth PCRA petition, requesting

relief under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d

407 (2012). The PCRA court appointed PCRA counsel on October 19, 2012.

The PCRA court issued notice on March 11, 2014, of its intent to dismiss

Appellant’s petition without a hearing per Pa.R.Crim.P. 907; Appellant filed a

response on April 10, 2014. On January 27, 2015, the PCRA court dismissed

Appellant’s petition, and Appellant timely appealed. On March 1, 2016, this

Court vacated the PCRA order and the judgment of sentence, and remanded

for resentencing pursuant to Miller and Montgomery v. Louisiana, ___ U.S.

___, 136 S.Ct. 718, 191 L.Ed.2d 599 (2016).          See Commonwealth v.

Walker, 144 A.3d 185 (Pa.Super. 2016) (unpublished memorandum).

      Upon remand, the court resentenced Appellant on April 26, 2018, to

thirty-five (35) years to life imprisonment. On May 7, 2018, Appellant timely

filed a post-sentence motion, which the court denied on August 2, 2018. On

August 27, 2018, Appellant timely filed a notice of appeal. The court ordered

Appellant on September 5, 2018, to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b).         Following an extension,




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counsel filed a Pa.R.A.P. 1925(c)(4) statement of intent to file an Anders2

brief on November 8, 2018. Counsel filed a petition for leave to withdraw as

counsel and an Anders brief in this Court on January 30, 2019.

        As a preliminary matter, counsel seeks to withdraw his representation

pursuant to Anders, supra and Commonwealth v. Santiago, 602 Pa. 159,

978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition

the Court for leave to withdraw, certifying that after a thorough review of the

record, counsel has concluded the issues to be raised are wholly frivolous; (2)

file a brief referring to anything in the record that might arguably support the

appeal; and (3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.          Substantial compliance with these requirements is

sufficient.   Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007). After confirming that counsel has met the antecedent requirements to

withdraw, this Court makes an independent review of the record to confirm

that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,

1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d

266 (Pa.Super. 2018) (en banc).

        In Santiago, supra, our Supreme Court addressed the briefing



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2   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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requirements where court-appointed appellate counsel seeks to withdraw

representation:

         Neither Anders nor [Commonwealth v. McClendon, 495
         Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
         provide an argument of any sort, let alone the type of
         argument that counsel develops in a merits brief. To repeat,
         what the brief must provide under Anders are references
         to anything in the record that might arguably support the
         appeal.

                                  *    *    *

         Under Anders, the right to counsel is vindicated by
         counsel’s examination and assessment of the record and
         counsel’s references to anything in the record that arguably
         supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

         [I]n the Anders brief that accompanies court-appointed
         counsel’s petition to withdraw, counsel 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.

Id. at 178-79, 978 A.2d at 361.

      Instantly, Appellant’s counsel has filed a petition to withdraw.      The

petition states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the brief and a letter explaining Appellant’s right to retain new

counsel or to proceed pro se to raise any additional issues Appellant deems


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worthy of this Court’s attention.    In the Anders brief, counsel provides a

summary of the facts and procedural history of the case. Counsel’s argument

refers to relevant law that might possibly support Appellant’s issues. Counsel

further states the reasons for the conclusion that the appeal is wholly

frivolous.   Therefore, counsel has substantially complied with the technical

requirements of Anders and Santiago.

      Appellant has not responded to the Anders brief pro se or with newly-

retained private counsel. Counsel raises the following issue on Appellant’s

behalf:

          WHETHER THE TRIAL COURT IMPOSED AN ILLEGAL
          SENTENCE OF THIRTY-FIVE (35) YEARS TO LIFE
          IMPRISONMENT FOR FIRST-DEGREE MURDER WHEN THE
          SENTENCE WAS AN UNLAWFUL DE FACTO LIFE SENTENCE
          WITHOUT THE POSSIBILITY OF PAROLE?

(Anders Brief at 4).

      Appellant argues his sentence of thirty-five years to life imprisonment

constitutes a de facto LWOP sentence. Appellant concludes his sentence is

illegal under Miller. We disagree.

      A claim that a court sentenced a juvenile defendant to a de facto LWOP

sentence goes to the legality of the sentence. Commonwealth v. Foust,

180 A.3d 416, 422 (Pa.Super. 2018). A challenge to the legality of a sentence

is a question of law.     Commonwealth v. Barnes, 167 A.3d 110, 116

(Pa.Super. 2017) (en banc). Thus, our standard of review is de novo and our

scope of review is plenary. Id.


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      In 2012, the United States Supreme Court held LWOP sentences for

those under 18 years old at the time of their crimes constitute cruel and

unusual punishments in violation of the Eighth Amendment to the United

States Constitution. Miller, supra. In the wake of Miller, the Pennsylvania

General Assembly enacted 18 Pa.C.S.A. § 1102.1, which provides in relevant

part as follows:

         § 1102.1. Sentence of persons under the age of 18
         for murder, murder of an unborn child and murder of
         a law enforcement officer

         (a) First degree murder.—A person who has been
         convicted after June 24, 2012, of a murder of the first
         degree…and who was under the age of 18 at the time of the
         commission of the offense shall be sentenced as follows:

            (1) A person who at the time of the commission of the
            offense was 15 years of age or older shall be sentenced
            to a term of life imprisonment without parole, or a term
            of imprisonment, the minimum of which shall be at least
            35 years to life.

                                 *    *    *

         (e) Minimum sentence.—Nothing under this section shall
         prevent the sentencing court from imposing a minimum
         sentence greater than that provided in this section.
         Sentencing guidelines promulgated by the Pennsylvania
         Commission on Sentencing may not supersede the
         mandatory minimum sentences provided under this section.

                                 *    *    *

18 Pa.C.S.A. § 1102.1(a)(1), (e) (emphasis added). “Section 1102.1 does

not prescribe minimum sentences for juvenile homicide defendants who…were

convicted of first or second-degree murder before June 24, 2012.” Foust,


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supra at 428 (emphasis added). Juvenile offenders convicted of first-degree

murder prior to Miller, however, are subject to a minimum term-of-years

sentence, which the sentencing court may determine, and a mandatory

maximum life imprisonment sentence. Commonwealth v. Batts, 640 Pa.

401, 450-51, 163 A.3d 410, 439 (2017) (“Batts II”) (holding rebuttable

presumption    exists   against   sentencing    juveniles   to   LWOP,    which

Commonwealth can rebut if it proves beyond reasonable doubt that juvenile

defendant cannot be rehabilitated).

      In Foust, this Court held “a trial court may not impose a term-of-years

sentence, which constitutes a de facto LWOP sentence, on a juvenile offender

convicted of homicide unless it finds, beyond a reasonable doubt, that he…is

incapable of rehabilitation.” Foust, supra at 431. This Court noted “[t]here

are certain term-of-years sentences which clearly constitute de facto LWOP

sentences. For example, a 150-year sentence is a de facto LWOP sentence.

Similarly, there are clearly sentences which do not constitute de facto LWOP

sentences. A sentence of 30 years to life falls into this category.” Id. at 438.

The Foust Court, however,

         decline[d] to draw a bright line…delineating what constitutes
         a de facto LWOP sentence and what constitutes a
         constitutional   term-of-years    sentence.       But    see
         Commonwealth v. Dodge, 77 A.3d 1263, 1276 (Pa.Super.
         2013), appeal denied, 625 Pa. 648, 91 A.3d 161 (2013)
         (appearing to hold that…defendant must be parole eligible
         before he…turns 90 for it not to be considered…de facto
         LWOP sentence). We similarly decline[d] to set forth factors
         that trial courts must consider when making this
         determination, i.e., whether they must look to the life

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        expectancy of the population as a whole or a subset thereof
        and whether the defendant must be given a chance at a
        meaningful post-release life.

Id. at 438.

     In applying Foust, this Court has outlined a method to determine

whether a sentence constitutes a de facto LWOP sentence:

        The key factor in considering the upper limit of what
        constitutes a constitutional sentence, in this narrow context,
        appears to be whether there is some meaningful opportunity
        to obtain release based on demonstrated maturity and
        rehabilitation. Implicit in this standard is the notion it would
        not be meaningful to provide an opportunity for release
        based solely on the most tenuous possibility of a defendant’s
        surviving the minimum sentence imposed.                  To be
        meaningful or, at least, potentially meaningful, it must at
        least be plausible that one could survive until the minimum
        release date with some consequential likelihood that a non-
        trivial amount of time at liberty awaits. Thus, though it
        expressly declined to do so, the Foust Court seemed to
        suggest some sort of meaningful-opportunity-for-release
        standard by declaring that a 150–years–to–life sentence
        constitutes a de facto LWOP sentence.

Commonwealth v. Bebout, 186 A.3d 462, 467 (Pa.Super. 2018) (internal

quotations marks and citations omitted) (concluding sentence of 45 years to

life imprisonment did not constitute de facto LWOP sentence in violation of

Miller, where appellant had been incarcerated for underlying offense since he

was 15 years old and will be eligible for parole at age 60).           See also

Commonwealth v. Blount; ___ A.3d ___, 2019 PA Super 108 (filed April 4,

2019) (deciding sentence of 35 years to life imprisonment was not illegal de

facto LWOP sentence; noting appellant was incarcerated for related offense at

age 17 and will be eligible for parole at age 52); Commonwealth v. White,

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193 A.3d 977 (Pa.Super. 2018) (holding sentence of 35 years to life

imprisonment imposed upon was not illegal de facto LWOP sentence;

explaining appellant had been incarcerated for underlying crime since he was

17 years old and will be eligible for parole at age 52).

      Instantly, the resentencing court sentenced Appellant to thirty-five

years to life imprisonment. Appellant has been incarcerated since he was 15

years old and will be eligible for parole when he is 50 years old. Therefore,

Appellant’s sentence does not constitute a de facto LWOP sentence and is not

an illegal sentence per Miller. See Blount, supra; White, supra; Bebout,

supra.     Following our independent review of the record, we conclude the

appeal is wholly frivolous.        See Dempster, supra; Palm, supra.

Accordingly, we affirm the judgment of sentence and grant counsel’s petition

to withdraw.

      Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2019




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