J-S54005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JAMES DAMON HOUGH                         :
                                           :
                    Appellant              :   No. 1264 WDA 2017

            Appeal from the Judgment of Sentence June 27, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0011935-1992


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J.:                       FILED NOVEMBER 09, 2018

      Appellant, James Damon Hough, challenges the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following

resentencing on his first-degree murder conviction. Additionally, counsel for

Appellant seeks permission from this Court to withdraw pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.

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

1992, when he was seventeen years old, Appellant was drinking and carousing

with a group of fifty teenagers on a street corner in Pittsburgh. The intoxicated

victim, a 39-year-old man unaffiliated with the teens, approached one of

Appellant’s friends and asked if he wanted to smoke some crack cocaine.

Appellant felt “disrespected” by the comment, and some of the other

teenagers began hitting and kicking the victim, who attempted to flee. N.T.,
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Trial, 5/11/93, at 101. Appellant pulled out a gun and shot the victim, who

later died from his wounds.

      Appellant proceeded to a jury trial, where he was convicted of first-

degree murder and sentenced to life without the possibility of parole.

Appellant filed a post-sentence motion for a new trial, which the court

ultimately denied. Appellant filed four petitions pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, in the years following. The

fourth challenged his sentence of life without parole following the United

States Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012),

and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). The PCRA court

granted relief on this claim, based on the “new constitutional right” exception

to the PCRA’s time-bar, 42 Pa.C.S.A. § 9545(b)(iii).

      The court appointed counsel to represent Appellant, and held a

resentencing hearing. At the resentencing hearing, Appellant introduced

evidence to show the efforts at reform he has made while incarcerated,

including   testimony    from   a   forensic   psychologist    and   letters   of

recommendation from community artists with whom Appellant has worked

while incarcerated. The court vacated the prior sentencing order, and

resentenced Appellant to 27 years to life imprisonment on his first-degree

murder conviction. Appellant filed a post-sentence motion, which the court

denied, and a timely notice of appeal. This appeal is now properly before us.

      We turn first to counsel’s petition to withdraw. To withdraw pursuant to

Anders, counsel must:

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      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the [Anders] brief to the [appellant]; and 3) advise the
      [appellant] that he or she has the right to retain private counsel
      or raise additional arguments that the [appellant] deems worthy
      of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). With respect to the third requirement of Anders,

that counsel inform the appellant of his or her rights in light of counsel’s

withdrawal, this Court has held that counsel must “attach to their petition to

withdraw a copy of the letter sent to their client advising him or her of their

rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

      An Anders brief must comply with the following requirements:

      (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.

Santiago, 978 A.2d at 361.

      “[I]f counsel’s petition and brief satisfy Anders, we will then undertake

our own review of the appeal to determine if it is wholly frivolous.”

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (brackets

added, citation omitted).

      Appellant’s counsel filed a petition to withdraw, certifying he has

reviewed the case and determined that Appellant’s appeal is frivolous. Counsel



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attached to his petition a copy of his letter to Appellant, advising that Appellant

may retain new counsel, raise additional issues pro se, or discontinue his

appeal. Counsel also filed a brief, which includes a summary of the history and

facts of the case, potential issues that could be raised by Appellant, and

counsel’s assessment of why those issues are meritless, with citations to

relevant legal authority.

      Counsel has thus complied with the requirements of Anders and

Santiago. Appellant has not filed a response. We may proceed to review the

issues outlined in the Anders brief.

      Counsel has identified two issues Appellant believes may entitle him to

relief. First, Appellant argues the resentencing court was without authority

when it imposed a term of 27 years to life imprisonment on Appellant’s first-

degree murder conviction, because it lacked authority to do so. Second,

Appellant contends that his maximum sentence of life imprisonment provides

him with no legitimate opportunity for release. Neither has merit.

      Appellant’s issues challenge 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. Barnes, 167 A.3d 110, 116 (Pa. Super. 2017) (en banc)

(internal quotations and citation omitted).

      In Miller, 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

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convicted of homicide. See 567 U.S. at 465. Notably, the Court did not

foreclose sentencing courts from ever imposing terms of life without parole.

See id., at 479. 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., at 480. 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.

      In order to correct Pennsylvania’s consequently unconstitutional

sentencing scheme, the Legislature enacted 18 Pa.C.S.A. § 1102.1. The

statute provided that offenders who were between the ages of 15 and 17 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.

      However, the new law did not address the resentencing of juvenile

offenders convicted of murder and sentenced to life without parole before June

24, 2012. Instead, the Pennsylvania Supreme Court held in Commonwealth

v. Batts, 163 A.3d 410 (Pa. 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

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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).

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

life without the possibility of parole in 1993. Appellant was resentenced in

2017, following Miller, Montgomery, and Batts II, to a term of 27 years to

life imprisonment.

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

sentencing court lacked authority to impose a term of 27 years to life

imprisonment. Batts II explicitly directed courts to use 18 Pa.C.S.A. § 1102.1

as a guideline for resentencing juvenile offenders. And, 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 court had 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).

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      Appellant’s next and final assertion is that a maximum term of life

imprisonment affords him no “meaningful opportunity for release based upon

demonstrated maturity.” Appellant’s Brief, at 18. Appellant’s argument

misapprehends Pennsylvania’s sentencing scheme.

      Pennsylvania utilizes an indeterminate sentencing scheme with a

minimum period of confinement and a maximum period of confinement. And

“[i]n imposing a sentence of total confinement the court shall at the time of

sentencing specify any maximum period up to the limit authorized by law….”

42 Pa.C.S.A. § 9756(a). See also Commonwealth v. Saranchak, 675 A.2d

268, 277 n.17 (Pa. 1996). Here, that maximum period is life. So, the sentence

imposed, with a maximum period of life, is lawful.

      Appellant may have meant his minimum term affords him no

“meaningful opportunity for release based upon demonstrated maturity.”

“[T]he maximum term represents the sentence imposed for a criminal offense,

with the minimum term merely setting the date after which a prisoner may be

paroled.” Martin v. Pennsylvania Bd. of Prob. and Parole, 840 A.2d 299,

302 (Pa. 2003). Appellant will be eligible for parole in 2019. Appellant’s

minimum term of 27 years falls eight years short of the 35-year suggested

minimum set forth in § 1102.1(a) for juveniles convicted of first-degree

murder. By fashioning a sentence well below the suggested minimum, the trial

court has given Appellant a meaningful opportunity for release far sooner than

consideration of § 1102.1(a) would otherwise dictate.


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     After examining the issues contained in the Anders brief and

undertaking an independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous. Accordingly, we affirm

Appellant’s judgment of sentence.

     Judgment of sentence affirmed. Petition to withdraw as counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: Date: 11/9/2018




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