J-A30016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KRISTOPHER HEGGINS                    :
                                       :
                   Appellant           :   No. 1820 WDA 2016

          Appeal from the Judgment of Sentence August 10, 2016
  In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0007504-2000

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KRISTOPHER HEGGINS                    :
                                       :
                   Appellant           :   No. 1821 WDA 2016

          Appeal from the Judgment of Sentence August 10, 2016
  In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0007508-2000

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KRISTOPHER HEGGINS                    :
                                       :
                   Appellant           :   No. 1836 WDA 2016

          Appeal from the Judgment of Sentence August 10, 2016
  In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0007508-2000


BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.
J-A30016-17




CONCURRING MEMORANDUM BY BOWES: FILED: January 3, 2019

      Resentencing juvenile homicide offenders like Appellant, who are

entitled to retroactive application of Miller v. Alabama, 567 U.S. 460 (2012),

presents unique considerations given the lack of legislative response from the

General Assembly.    Herein, the trial court incorrectly stated that Appellant

directly murdered the victim, and that mistake obviously could have

contributed to the sentence.    However, I note that Appellant’s sentence is

equal to the mandatory minimum that would apply if Appellant committed the

instant crime today. 18 Pa.C.S. § 1102.1(c) (any person convicted of second-

degree murder after June 24, 2012 and who was between fifteen and eighteen

on the date of the offense shall be sentenced to a minimum of thirty years to

life). Thus, any erroneous statement was effectively harmless if the trial court

was obligated to impose at least that sentence. In Commonwealth v. Hicks,

151 A.3d 216 (Pa.Super. 2016), we held under similar facts that a trial judge

has discretion in these circumstances to depart from the otherwise-applicable

minimum. I agree that Appellant is entitled to resentencing; however, I am

skeptical of the trial court’s ability to impose anything less than the instant

sentence upon remand.       Nonetheless, since the precedents in this area

contemplate that possibility, I offer the following observations.

      The problem in this case, as in Hicks, traces back to the General

Assembly’s response to Miller, wherein the United States Supreme Court held

unconstitutional mandatory sentences of life imprisonment without the


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possibility of parole (“LWOP”) for offenders who were under eighteen at the

time of their crimes. Miller, which was decided June 25, 2012, had obvious

implications regarding the constitutionality of § 1102, which pre-Miller

required a mandatory sentence of life imprisonment regardless of the

offender’s age. In turn, 61 Pa.C.S. § 6137(a) states that inmates “condemned

to death or serving life imprisonment” are ineligible for parole.        Thus, in

tandem, § 1102 mandates a sentence of life imprisonment without the

possibility of parole, which is unconstitutional as applied to juvenile offenders.

      The General Assembly responded to Miller by enacting § 1102.1,

effective October 25, 2012. That statute removed LWOP as a mandatory and

established mandatory minimum penalties, which vary depending on the

degree of homicide and age of the offender.       However, the statute facially

applies only to persons who were convicted after June 24, 2012. Thus, §

1102.1 did not apply to Hicks, nor does it apply to Appellant herein.

      The chronological limitation within § 1102.1 has a simple explanation.

As our Supreme Court stated in Commonwealth v. Batts, 163 A.3d 410 (Pa.

2017) (“Batts II”), “the General Assembly presumably initially believed (as

did a majority of this Court) that the holding in Miller would not apply to

defendants convicted prior to the date of the decision[.]” Id. at 444. That

belief was upended by Montgomery v. Louisiana, 136 S.Ct. 718 (2016),

which held that states are required to grant retroactive effect to new

substantive rules of federal constitutional law, such as Miller.




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      The General Assembly has not responded to Montgomery. Therefore,

when a trial court convenes a sentencing hearing to retroactively apply Miller,

as occurred herein, the trial court lacks statutory guidance: § 1102 cannot

constitutionally be applied since it calls for a mandatory maximum of life

imprisonment without the possibility of parole, and § 1102.1 does not apply

due to the offense date limitation.

      Our Supreme Court addressed that issue in Commonwealth v. Batts,

66 A.3d 286 (Pa. 2013) (“Batts I”), which was revisited in Batts II. The

primary consideration in the Batts cases was the maximum penalty

permitted, i.e., whether life imprisonment without the possibility of parole

remained an option.       Batts argued that the sentencing scheme was

unconstitutional in its entirety, and asserted that his sentence “should be

based on the most severe lesser included offense, namely, third-degree

murder, with a maximum term of forty years’ imprisonment.” Id. at 294. Our

High Court ultimately concluded that the parole provisions of § 6137 were

severable.

      The severability analysis led to two decisions from this Court holding

that § 1102 remains operative with respect to the mandatory maximum

penalty. See Commonwealth v. Seskey, 170 A.3d 1105 (Pa.Super. 2017)

(maximum term of life imprisonment required for juvenile convicted of first-

degree homicide); Commonwealth v. Olds, --- A.3d ---, 2018 WL 3233726

(Pa.Super. 2018) (maximum term of life imprisonment required for juvenile




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convicted of second-degree homicide).1           However, the issue of what

minimum must be imposed, if any, is a separate question. Obviously, § 1102

does not call for any minimum period of incarceration since the statute

contemplates a flat sentence of life imprisonment without parole. In Batts I,

Justice Baer authored a concurring opinion urging trial courts to consider §

1102.1 when imposing a minimum.

       While the legislature specified that [§ 1102.1] applied to juvenile
       offenders convicted on or after the date of the Miller decision,
       which would not include [Batts], I believe that trial courts
       conducting resentencing of defendants like [Batts], whose
       conviction pre-dated Miller, but who preserved a Miller claim on
       appeal, would be wise to follow the policy determinations made
       by the legislature in its recent enactment. Here, the minimum
       sentence applicable to [Batts], if given a sentence of life with
       parole, would be 25 years.

       If trial courts fail to take guidance from the recent legislative
       enactments, the minimum sentence imposed on any given
       juvenile before becoming eligible for parole could vary widely.
       One court could immediately parole an 18 year old offender, while
       another court could impose a 50 year minimum sentence on a 14
       year old offender. While discretionary sentencing is a valid trial
       court function and Miller specifies that individual circumstances
       should be considered by judges sentencing juvenile murder
       offenders, given that the legislature is the policy-making body for
       our Commonwealth and has quickly responded to Miller indicating
       the minimum sentences it views as appropriate for different aged
       juvenile homicide offenders, I believe courts engaging in
       resentencing necessitated by the Miller decision, should look to
       the newly enacted statute for guidance without abrogating their
       discretion as appropriate in individualized cases.
____________________________________________


1 Olds also rejected Appellant’s current claim that imposing a mandatory
sentence of life imprisonment with the possibility of parole is unconstitutional
for a juvenile who did not intend to kill.



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J-A30016-17



Batts I, supra at 300 (emphasis added, footnote omitted).2

       In Hicks, we determined that the inapplicability of § 1102.1 to an

offender who committed his crime before June 24, 2012, permitted a trial

judge to impose a sentence lower than the applicable minimums set forth by

that statute when retroactively applying Miller.            In Hicks, the trial court

resentenced the offender to the same minimum penalty that would have

applied under § 1102.1.           Apparently, the trial court believed it had no

discretion to depart from § 1102.1 despite its facial inapplicability. We stated,

“we are constrained to conclude that the trial court abused its discretion in

relying solely on section 1102.1 without considering the sentencing factors set

forth in Commonwealth v. Knox, 50 A.3d 732, 745 (Pa.Super. 2012)[.]”

Id. at 226.

       I find that Hicks applies.        This case differs from Hicks in that it is

unclear whether the trial court herein believed that it was obligated to follow

§ 1102.1 in imposing a sentence.               However, the fact that the trial court

incorrectly stated that Appellant shot the victim is clearly the type of error

that could have affected the minimum selected. Therefore, remand is required

as Hicks clearly precludes any harmless error-type analysis, i.e., the fact that


____________________________________________


2 Upon remand, the sentencing court again imposed life imprisonment without
the possibility of parole. Our Supreme Court granted review, and, noting the
lack of legislative action, exercised its authority to adopt a presumption
against LWOP sentences for juveniles.


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J-A30016-17


the trial judge imposed the exact same sentence that would apply under §

1102.1 is of no moment.

      Nevertheless, I am troubled by the notion that a trial court has discretion

to impose a minimum lower than that called for by § 1102.1. As quoted,

Hicks directed the trial court to consider the factors discussed in Knox in

imposing a minimum sentence. Knox, like Batts, dealt with the review of an

LWOP sentence. Thus, its discussion of the factors a court needed to consider

spoke to whether a sentence of LWOP was permissible as a maximum, not, as

herein, the appropriate minimum.

      [A]lthough Miller did not delineate specifically what factors a
      sentencing court must consider, at a minimum it should consider
      a juvenile’s age at the time of the offense, his diminished
      culpability and capacity for change, the circumstances of the
      crime, the extent of his participation in the crime, his family, home
      and neighborhood environment, his emotional maturity and
      development, the extent that familial and/or peer pressure may
      have affected him, his past exposure to violence, his drug and
      alcohol history, his ability to deal with the police, his capacity to
      assist his attorney, his mental health history, and his potential for
      rehabilitation.

Knox, supra at 745.

      To the extent that Knox and Hicks interpret Miller to require

consideration of these factors with respect to establishing a minimum

sentence, as opposed to the applicability of a maximum sentence of LWOP, I

believe that conclusion is incorrect. Miller holds only that a juvenile offender

cannot be sentenced to life without parole as a mandatory penalty. Miller

does not govern the broader question of whether other mandatory minimum


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J-A30016-17


sentences may be constitutionally applied to juveniles in general. In fact, the

High Court clarified that a Miller violation can be cured by making the offender

eligible for parole.    Montgomery, supra at 736 (“A State may remedy a

Miller violation by permitting juvenile homicide offenders to be considered for

parole, rather than by resentencing them.” See, e.g., Wyo. Stat. Ann. § 6–

10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25

years)).3

       In this Commonwealth, Miller requires a court to first determine

whether a LWOP sentence is warranted pursuant to the procedure set forth by

Batts II; if not, the court must impose a maximum of life imprisonment and

an applicable minimum sentence.            As noted, had Appellant committed the

instant crime on or after June 24, 2012, the trial court would be required to

impose a sentence of thirty years to life. 18 Pa.C.S. § 1102.1(c). That fact

leads me to question not only the wisdom but the viability of imposing any

lesser sentence on remand. Appellant and other similarly-situated juveniles,

i.e.   persons    who    are   entitled    to   retroactive   application   of   Miller,

understandably seek lower minimum sentences than those that would apply

under § 1102.1. To this end, Appellant avers that “it was still [c]onstitutionally


____________________________________________


3 To be sure, a State cannot avoid Miller by imposing a de facto life sentence
via an extraordinarily long minimum sentence. However, the fact the High
Court approvingly cited a statute that made all juvenile offenders eligible for
parole after twenty-five years illustrates that Miller has nothing to do with
the constitutionality of a lengthy minimum sentence.


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J-A30016-17


required that the sentencing court conduct an individualized analysis of the

proper sentence pursuant to Miller and Knox.” Appellant’s brief at 25-26. If

Appellant is correct that Miller requires that individual analysis, then I fail to

see how § 1102.1 is constitutional. A trial judge would not be authorized to

impose a lesser sentence no matter how compelling the individual factors may

be for a crime committed on or after June 24, 2012.

      Nevertheless, Hicks controls and we must remand for resentencing.

That said, authorizing a trial court to impose a lower sentence than the

minimum called for by § 1102.1 clearly raises the possibility of unequal

application of Miller.    As Batts II noted, the enactment of § 1102.1

represented a belief that Miller would not apply retroactively. If that view

was correct—and there is little reason to suspect otherwise—then the General

Assembly obviously did not intend for individuals such as Appellant to receive

greater benefits than a juvenile offender who commits homicide today. The

point of Miller retroactivity is to ensure that juvenile offenders are not serving

unconstitutional sentences. Thus, incarcerated pre-Miller individuals should

be treated exactly the same as a juvenile offender sentenced after Miller. In

this respect, Miller discusses the proportionality of a sentence as applied to

juveniles as a class. The High Court’s analysis included an accounting of the

“evolving standards of decency.”       Miller, supra at 494-95 (“Our Eighth

Amendment cases have also said that we should take guidance from evolving

standards of decency that mark the progress of a maturing society. . . .


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[which] may abandon harsh punishments that it comes to view as

unnecessary or unjust.”) (cleaned up). Accordingly, it makes little sense to

hold that the “evolving standards of decency” that govern a sentence

proceeding today can somehow result in lengthier prison time than for

persons such as Appellant who were sentenced under the law in effect at the

time of their original crimes.

      I acknowledge that Batts II stated that a trial court is required to

exercise its discretion to find an appropriately individualized sentence, owing

to the lack of statutory authorization. Simultaneously, the Court referenced

the possibility of disparate application.

      Although [§ 1102.1] itself is inapplicable to Batts based (solely)
      upon the date of his conviction, it is clear, as reflected in section
      1102.1, that the General Assembly would preserve the remainder
      of the parole statute, sever the minimum sentence ceiling of
      section 9756(b)(1), and permit these defendants to be sentenced
      to life with the possibility of parole, rather than have no sentence
      at all for juveniles convicted of first-degree murder. To conclude
      otherwise would require that we impermissibly presume
      that the General Assembly intended to discriminate
      unconstitutionally between pre- and post–Miller juvenile
      offenders or that it intended that only post–Miller juvenile
      offenders receive punishment for first-degree murder—clearly an
      absurd and unreasonable proposition. See 1 Pa.C.S. § 1922(1),
      (3) (instructing that when ascertaining legislative intent, courts
      must presume that the General Assembly did not intend to violate
      the State or Federal Constitution or intend an absurd, impossible
      or unreasonable result).

Id. at 444–45 (some citations omitted, emphasis added). While this language

was responding to Batts’s argument that the only authorized sentence was for

third-degree murder, for the foregoing reasons I find it difficult to conclude


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that Appellant is entitled to a more favorable sentence under a retroactive

application of Miller.

       Finally, I note that on May 22, 2018, our Supreme Court granted a

petition for allowance of appeal on the following question:

       Whether, in order to comply with Miller and its progeny, a court
       sentencing a juvenile defendant for a crime for which life without
       parole is an available sentence must review and consider on the
       record the Miller factors adopted by this Court in Batts I,
       regardless whether the defendant is ultimately sentenced to life
       without parole.

Commonwealth v. Machicote, 186 A.3d 370 (Pa. 2018).4

       Our Supreme Court may conclude that the answer is yes. Until such

time, for the reasons discussed supra, I am skeptical of a framework that

affords greater relief to one class of juveniles.   With those reservations, I

concur.




____________________________________________


4 We concluded that Miller factors must only be considered in cases where
the Commonwealth seeks to overcome the presumption against LWOP.
“However, because the PCRA court determined that a LWOP sentence was
inappropriate . . . this issue is moot as application of the Miller factors is
immaterial.” Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa.Super.
2017).


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