J-S25039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GEORGE G. ELLIOTT                          :
                                               :
                       Appellant               :   No. 1769 WDA 2017

              Appeal from the Judgment of Sentence July 12, 2017
               In the Court of Common Pleas of Crawford County
                  Criminal Division at No(s): C.R. No. 42-1977


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 09, 2018

       George G. Elliott appeals from the judgment of sentence imposed on

July 12, 2017, in the Court of Common Pleas of Crawford County, after he was

resentenced, pursuant to Miller v. Alabama, 567 U.S. 460 (2012) and

Montgomery v. Louisiana, 136 S. Ct. 718 (2016).             In 1977, Elliott was

convicted by a jury of first degree murder1 and sentenced, in 1978, to life

without parole (LWOP). He was 17 years old at the time he committed the

crime. Following the issuance of the United States Supreme Court decisions

in Miller and Montgomery, the trial court resentenced Elliott on the murder

charge to a term of 50 years’ to life imprisonment.2         Elliott contends (1)

____________________________________________


1See 18 Pa.C.S. § 2502. Elliott was also convicted of arson at a separate
docket number.

2Elliott received credit for presentence incarceration of 40 years, 5 months,
and 11 days. See Order, 7/12/2017.
J-S25039-18



because Pennsylvania sentencing statutes for first and second degree murder

were invalidated by Miller, the only constitutional sentence available is that

of 10-to-20 years’ imprisonment for third degree murder at the time of the

offense, and (2) it is unconstitutional to impose a sentence of 50 years to life,

a de facto sentence of life imprisonment without the possibility of parole

(LWOP), on a juvenile absent a finding that the juvenile is one of the rare and

uncommon juveniles who is permanently incorrigible, irreparably corrupt or

irretrievably depraved. Based upon the following, we affirm.

        The background of this case is, as follows:

        On June 16, 1977, a jury convicted [Elliott] of first-degree murder
        and arson for crimes he committed when he was seventeen years
        of age. On March 6, 1978, the trial court sentenced [Elliott] to life
        imprisonment for the murder conviction and a five to ten year
        concurrent sentence for the arson conviction. By per curiam order
        entered June 20, 1979, this Court affirmed [Elliott’s] judgment of
        sentence. Commonwealth v. Elliott, 417A.2d 780 (Pa. Super.
        1979). On October 4, 1979, our Supreme Court denied [Elliott’s]
        allocatur petition.

Commonwealth v. Elliott, 34 A.3d 235 (Pa. Super. 2011) (unpublished

memorandum) (affirming the denial of relief sought pursuant to the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546). The United States

Supreme Court subsequently decided Miller in 2012, and Montgomery in

2016.

        In Miller, supra, the Supreme Court of the United States 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


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punishments.’” Id., 567 U.S. at 465. Under Miller, only where a court finds

that the juvenile homicide defendant is permanently incorrigible, irreparably

corrupt, or irretrievably depraved is the court permitted to impose a LWOP

sentence upon the juvenile. Miller, at 471, 473, 479-480 (citations omitted).

Thereafter, in Montgomery, the United States Supreme Court held that the

Miller decision applies retroactively to cases on collateral review. Id. at 732-

737. Following Miller and Montgomery, our Supreme Court issued

Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (Batts II), which

addressed the procedural requirements for sentencing a juvenile homicide

defendant.

       On June 28, 2016, based on Montgomery, Elliott obtained PCRA relief

in the form of resentencing. On July 12, 2017, the trial court resentenced

Elliott, as stated above.       Elliott filed a timely post-sentence motion, which

was denied, and this appeal followed.3

       Initially, we state our standard of review:

       A juvenile offender who challenges a LWOP sentence raises issues
       that involve mixed questions of fact and law. [Commonwealth
       v. Batts, 163 A.3d] at 434-436. Because Montgomery makes
       clear that a juvenile homicide offender may receive a LWOP
       sentence only if he or she is found incapable of rehabilitation, such
       a finding ipso facto implicates the trial court’s authority to impose
       such a sentence. Id. at 434-435. This threshold legal inquiry
       constitutes a pure question of law subject to de novo review. Id.
       at 435. To the extent, however, the determination is based on
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3Elliott timely complied with the order of the trial court to file a statement of
errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).



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       factual findings made by the trial court at the sentencing hearing,
       those findings are reviewed for an abuse of discretion. See id. at
       435-436.

Commonwealth v. Foust, 180 A.3d 416, 429 (Pa. Super. 2018).4

       In his first issue, Elliott contends that because Miller invalidated the

first and second degree murder statutes for juveniles, the only available

constitutional statute was a sentence for third degree murder, which at the

time of the offense carried a penalty of 10 to 20 years’ imprisonment. Elliott,

however, concedes that “this argument, or those very similar, have been

summarily rejected by the Pennsylvania Supreme Court in Commonwealth

v. Batts, 163 A.3d 410 (Pa. 2017) … and this Honorable Court in

Commonwealth v. Foust, [180 A.3d 416 (Pa. Super. 2018)].” Elliott’s Brief

at 9. As Elliott is correct that our Courts have already addressed a claim such

as the one he presents herein, we need not discuss this issue further.

       In his second issue, Elliott maintains “it [is] unconstitutional to impose

a sentence of [50] years to life, a de facto sentence to life imprisonment

without the possibility of parole, on a juvenile absent a finding that the juvenile

is one of the rare and uncommon juveniles who is permanently incorrigible,

irreparably corrupt or irretrievably depraved.” Id.




____________________________________________


4 We note that presently, in Foust, a petition for allowance of appeal has been
filed and is pending at 126 WAL 2018 (Pa. 2018).


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       Elliott argues that in Foust, supra, this Court held that “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 or she is incapable of rehabilitation.” Elliott’s Brief

at 9, citing Foust, 180 A.3d at 431. Elliott further asserts:

       Given the age of the defendant and the life expectancy of long
       term inmates, this sentence was, in effect, a life sentence without
       a reasonable chance of parole.[5] As such, this 50 years to life
       sentence was an abuse of discretion, excessive, unreasonable,
       arbitrary and capricious even in light of Batts II.”[6]

Elliott’s Brief, id.

       In Foust, the Court considered two consecutive 30 years-to-life

sentences, and determined that for purposes of Miller, the two sentences

must be examined separately.            Id., 180 A.3d at 438.   The Foust Court

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5  Elliott does not refer this Court to any data in the record regarding the life
expectancy of long term inmates. In any event, such evidence would not have
been useful. See Commonwealth v. Bebout, 186 A.3d 462, 469 (Pa. Super.
2018) (“[E]ven if Appellant had properly admitted into evidence the relevant
life expectancy statistics that he now raises in his brief, it is not evident how
helpful they would have been to the construction of a standard for what
constitutes a de facto LWOP sentence, or how such data dictates a result in
this case”).

6  In Batts II, the Pennsylvania Supreme Court addressed the decisions in
Montgomery and Miller and held “there is a presumption against the
imposition of a sentence of life without parole for a defendant convicted of
first-degree murder committed as a juvenile.” Batts II, 163 A.3d at 459. The
Batts Court also addressed the trial court’s discretionary sentencing
determination and sentencing procedure, instructing, inter alia, “section
1102.1 [18 Pa.C.S. § 1102.1] will help frame the exercise of judgment by the
court in imposing sentence ….” Id. at 458 (quotations omitted).



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reasoned that a 150-year minimum sentence would clearly constitute a de

facto LWOP sentence, and concluded a sentence of 30 years to life

imprisonment clearly does not constitute a de facto LWOP sentence. Id. More

recently, in Commonwealth v. Bebout, 186 A.3d 462 (Pa. Super. 2018),7

this Court held that a sentence of 45 years-to-life is not a de facto LWOP

sentence. The Bebout Court opined:

        Instantly, Appellant’s 45-life sentence falls between the “clearly”
        constitutional and unconstitutional parameters suggested by the
        Foust Court. We note, however, that the Foust Court’s choice of
        a 150-year minimum sentence appears to be merely illustrative.
        Undoubtedly, the Court intended to suggest a sentence that
        clearly exceeded human life expectancy in absolute terms, rather
        than average life expectancy, or the life expectancy of some
        identifiable subset of the population. In that regard, the Foust
        Court could just have easily listed 120-year or 100-year minimum
        sentences as examples of what “clearly” constitutes a de facto
        LWOP sentence, as the number of humans who could possibly
        survive their minimum sentence would be virtually nil. 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.” Graham [v.
        Florida, 560 U.S. 48, 75 (2010)]. 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. If it had
        any other standard in mind for making that determination, the
        Foust Court’s analysis omitted it.
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7   On July 10, 2018, this Court denied Bebout’s application for reargument.

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     Instantly, Appellant was sentenced to 45-life, and he has already
     been incarcerated for this crime since he was 15 years old.
     Accordingly, Appellant will be eligible for parole when he is 60
     years old. …

                                      ****

     … Appellant’s sentence does not fall into the category of sentences
     described in Foust; that is, his minimum sentence is not so long
     that it is virtually certain that he could not survive it. Indeed, it is
     at least plausible, and perhaps even likely, that Appellant could
     live many years past his earliest possible release date.

     Appellant argues that delaying parole until old age in these
     circumstances (see footnote 3, supra), constitutes a
     constitutional violation because, ostensibly, it would not provide
     for a meaningful opportunity for release. See Appellant’s Brief at
     26 (citing Bear Cloud v. State, 2014 WY 113, 334 P.3d 132
     (Wyo. 2014), and State v. Null, 836 N.W.2d 41 (Iowa 2013)).
     Neither Bear Cloud nor Null are controlling in this jurisdiction,
     and we find their analyses unpersuasive at this time. Indeed, we
     consider Appellant’s opportunity for release to be meaningful,
     especially in light of the gravity of his crime, because he has the
     potential to live for several decades outside of prison if paroled
     at his minimum.

     Thus, based on the record and arguments before us, we conclude
     that Appellant has simply failed to meet his burden of
     demonstrating that the lower court sentenced him to a de facto
     LWOP sentence. There simply is no comparison between the
     opportunity to be paroled at 60 years of age and 100+ years of
     age. The difference is, quite literally, a lifetime. As such, we are
     not convinced that Appellant’s sentence is the functional
     equivalent of LWOP. Accordingly, Appellant’s first claim must fail.

Id. at *8-10, *13-14 (emphasis in original).

     Here, Elliott was resentenced to 50 years’ to life imprisonment, and he

has already been incarcerated for 40-plus years. As Elliott was 60 years old




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at the time of resentencing,8 he will be eligible for parole when he is

approximately 70 years old.          While Elliott will be 10 years older than the

defendant in Bebout, who becomes eligible for parole at age 60, it is

important to note that the Bebout Court found the defendant in that case had

“the potential to live for several decades outside of prison if paroled at his

minimum.” Id. at *14 (emphasis in original) (footnote omitted). As such, we

conclude Elliott’s sentence is not a de facto life sentence since, as in Bebout,

Elliott has a meaningful possibility of parole. Therefore, we conclude no relief

is due on Elliott’s claim that the 50 years’ to life sentence constituted a de

facto life sentence.9

        We next turn to review Elliott’s argument that the trial court abused its

discretion in imposing a sentence of 50 years’ to life imprisonment. In order

to obtain review of a challenge to the discretionary aspects of sentencing, an


____________________________________________


8   See Trial Court Opinion, at 5 (noting Elliott was born in April of 1957).

9 We recognize that on June 19, 2018, the Pennsylvania Supreme Court
granted allowance of appeal from the Order of this Court in Commonwealth
v. Felder, 181 A.3d 1252 (Pa. Super. 2017) (unpublished memorandum), as
to the following issue:

        Does not a sentence of 50 years to life imposed upon a juvenile
        constitute a de facto life sentence requiring the sentencing court,
        as mandated by this Court in Commonwealth v. Batts, 163 A.3d
        410 (Pa. 2017) (“Batts II”), first find permanent incorrigibility,
        irreparable corruption or irretrievable depravity beyond a
        reasonable doubt.

Commonwealth v. Felder, 2018 Pa. LEXIS 3067 (June 19, 2018).


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appellant must preserve it in a post-sentence motion, file a timely notice of

appeal, include in his brief a Pa.R.A.P. 2119(f) statement, and present a

substantial question for review. See Commonwealth v. Moury, 992 A.2d

162, 170 (Pa. Super. 2010).

      Elliott timely filed his appeal and preserved his claim in his post-

sentence motion. However, the Commonwealth objects to the form of Elliott’s

Rule 2119(f) statement.    We disagree with the Commonwealth’s position.

Although Elliott’s Rule 2119(f) statement commingles challenges to the

legality and the discretionary aspects of sentencing, his statement does

provide reasons in support of allowance of appeal with respect to the

discretionary aspects of his sentence. See Elliott’s Brief at 5-8 (“Statement

of Reasons to Allow an Appeal to Challenge the Discretionary Aspects of a

Sentence”).   We therefore conclude that Elliott substantially complied with

Rule 2119(f), and now turn to consider whether Elliott has presented a

substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,

533 (Pa .Super. 2011). “A substantial question exists only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing




                                    -9-
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process.”    Id. (internal citations omitted). In his Rule 2119(f) statement,

Elliott contends:

       The sentencing court violated Section 9721(b) of the Sentencing
       Code[10] by not carefully considering the relevant factor of Mr.
       Elliott’s rehabilitative needs and balancing those with the
       protection of the public and the gravity of the offense. Rather,
       the sentencing court relied on the impact on the victim’s family
       and the fact that Mr. Elliott was 17 years of age. … The sentencing
       judge failed to consider any rehabilitative needs of [Elliott].

       … For these reasons, the sentence imposed was excessive and an
       abuse of discretion.

Elliott’s Brief at 7-8 (Rule 2119(f) statement). We find this claim does present

a substantial question that warrants review.            See Commonwealth v.

Caldwell, 117 A.3d 763, 769-770 (Pa. Super. 2015) (en banc) (holding an

excessive sentence claim — in conjunction with an assertion that the court

failed to consider mitigating factors — raises a substantial question).

       In reviewing a challenge to the discretionary aspects of sentencing,

       the proper standard of review when considering whether to affirm
       the sentencing court's determination is an abuse of discretion. …
       [A]n abuse of discretion is more than a mere error of judgment;
       thus, a sentencing court will not have abused its discretion unless
       "the record discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias or ill-will."
       … "An abuse of discretion may not be found merely because an
       appellate court might have reached a different conclusion, but
       requires a result of manifest unreasonableness, or partiality,


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10 Section 9721(b) provides in relevant part: “[T]he court shall follow the
general principle that the sentence imposed should call for confinement that
is consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b).

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        prejudice, bias, or ill-will, or such lack of support so as to be clearly
        erroneous."

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citations omitted).

        Elliott contends he has proven he has been rehabilitated, and the trial

judge improperly used his age and his IQ as aggravating rather than

mitigating factors. In this regard, we note the trial court found Elliott was

“just about three and one half months short of being 18 years of age [at the

time of the murder, s]o I think that goes against you,” and had an above

average IQ.      N.T., 7/12/2017, at 44.           Elliott argues, “Under Miller and

Montgomery[,] it is clearly irrelevant that the Defendant was nearly 18 years

of age.” Elliott’s Brief at 11.

        Here, the record reflects that, consistent with Batts II, the trial court

considered as guidance the factors enumerated in Section 1102.1(d).11,              12



____________________________________________


11   See Footnote 6, supra.

12   Section 1102.1(d) provides:

        (d) Findings. — In determining whether to impose a sentence of
        life without parole under subsection (a), the court shall consider
        and make findings on the record regarding the following:

           (1) The impact of the offense on each victim, including oral
           and written victim impact statements made or submitted
           by family members of the victim detailing the physical,
           psychological and economic effects of the crime on the
           victim and the victim’s family. A victim impact statement
           may include comment on the sentence of the defendant.

           (2) The impact of the offense on the community.



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See Trial Court Opinion, 11/8/2017, at 6; N.T., 7/12/2017, at 38-47. It is the

trial court’s prerogative to weigh such sentencing factors as it believes

appropriate, and this Court may not “reweigh the reasons offered by the

sentencing court.” Walls, supra, 926 A.2d at 966.

       Furthermore, where, as here, the trial court has the benefit of a pre-

sentence report, we presume that the court was aware of relevant information

regarding the defendant’s character and weighed those considerations along

____________________________________________


           (3) The threat to the safety of the public or any individual
           posed by the defendant.

           (4) The nature and circumstances           of    the   offense
           committed by the defendant.

           (5) The degree of the defendant’s culpability.

           (6) Guidelines for sentencing and resentencing adopted by
           the Pennsylvania Commission on Sentencing.

           (7) Age-related characteristics of the defendant, including:

           (i) Age.

           (ii) Mental capacity.

           (iii) Maturity.

           (iv) The degree of criminal sophistication exhibited by the
           defendant.

           (v) The nature and extent of any prior delinquent or
           criminal history, including the success or failure of any
           previous attempts by the court to rehabilitate the
           defendant.

           (vi) Probation or institutional reports.

           (vii) Other relevant factors.

18 Pa.C.S. § 1102.1(d).

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with any mitigating factors. Commonwealth v. Seagraves, 103 A.3d 839,

842 (Pa. Super. 2014), citing Commonwealth v. Griffin, 65 A.3d 932, 937

(Pa. Super. 2013). The trial court also had access to an extensive sentencing

memorandum provided by Elliott that detailed mitigating factors, including

rehabilitation.

      Finally, the trial court explicitly recognized his obligation to “take into

account how children are different and how their differences counsel against

irrevocably sentencing them to a lifetime in prison,” and determined a 50-year

minimum sentence was appropriate. N.T., 7/12/2017, at 39. In so doing, the

court considered the Section 1102.1(d) factors, specifically: (1) the impact

on the victim, finding “that this greatly affected the family of the victim and it

has long lasting effects,” id. at 40, (2) the impact to the community, finding

that “for approximately two years it was unclear who had committed the

offenses,” id., (3) the threat of public safety, finding there was no threat to

anybody else at the time and Elliott would not be a threat if he were released

from prison — “[B]ased on … reports from the institution, [Elliott’s] chance of

recidivism is very, very little,” id. at 41, (4) the nature and circumstances of

the offense, finding Elliott entered the victim’s home to commit a robbery and

there was not “a lot of sophistication” as Elliott panicked and killed the victim,

and Elliott’s efforts to try to cover up the murder with a fire showed “a juvenile

mind” and an “immature effort,” id. at 42-43, (5) the degree of culpability,

finding there was no one else to blame except Elliott, (6) the guidelines for


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sentencing, finding the trial court was allowed to set a minimum sentence

under the circumstances, (7) age, finding the fact Elliott was just three and

one-half months shy of 18 at the time of the incident weighed against him to

determine an appropriate minimum, (8) mental capacity, finding Elliott had

an above average IQ and “good mental capacity,” id. at 44, (9) maturity,

finding maturity was hard to judge, but Elliott was able to rise in the military

to the level of corporal prior to his arrest,13 (10) the degree of criminal

sophistication, finding Elliott’s crime was not “a particularly sophisticated

crime”, id. at 45, (11) prior criminal history, finding there was none, (12)

probation or institutional reports, finding the institutional reports over the 40-

plus years Elliott has been incarcerated described Elliott as “average or above

average with the exception of one misconduct,” id., and (13) other relevant

factors, finding remorse is not a relevant factor against Elliott. See id. at 41-

46.

         The trial court also considered “family and home environment,” and

found Elliott’s home environment was “good” and “[t]here’s no indication …

there was anything bad in [Elliott’s] home that would have caused [him] to

go down the path [he] did with drinking and drugs and ultimately committing

the burglary and attempted theft that led to the murder[, and t]here was no

other pressure for [Elliott] to do this ….” Id. at 46-47. Accordingly, on this



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13   Elliott was not arrested until two years after the incident.

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record, which reflects the trial court properly considered the all relevant

sentencing factors, including the factors listed in 18 Pa.C.S. § 1102.1(d) and

Section 9721(b), there is no basis upon which to disturb the trial court’s

decision.

      Finally, Elliott contends “[t]he sentencing guidelines are unconstitutional

under the Constitutions of    … the United States and the Commonwealth.”

Concise Statement, 12/7/2017.        The entirety of this argument is one

sentence:

      The sentencing guidelines are unconstitutional: (1) as they do not
      meet Miller’s individualized sentencing requirements; (2) they do
      not allow a Judge to give proper weight to rehabilitation; (3) they
      focus on previous offenses rather than the Miller factors; and (4)
      they do not focus on the possibility of rehabilitation.

Elliott’s Brief at 11.

      We are unclear as to the nature of Elliott’s argument since he cites no

constitutional provisions and provides no analysis. Therefore, we simply point

out that the trial court properly followed the guidance of Section 1102.1 for

this pre-Miller defendant, as Batts II instructs, and that this Court has

rejected a post-Miller defendant’s federal constitutional challenge to Section

1102.1 based upon the Cruel and Unusual Punishment Clause of the Eighth

Amendment.       See Commonwealth v. Brooker, 103 A.3d 325, 338 (Pa.

Super. 2014) (quotations omitted). See also Commonwealth v. Lawrence,

99 A.3d 116 (Pa. Super. 2014).




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      To the extent that this claim is arguably a challenge to the discretionary

aspects of sentencing, specifically, the trial court’s failure to consider the

Miller factors, we find no merit in this argument since the trial court did, in

fact, consider those factors, including the possibility of rehabilitation.

      With regard to the Miller factors, our Supreme Court explained:

      [T]he Miller Court concluded that sentencing for juveniles must
      be individualized. See id. at 474-78. This requires consideration
      of the defendant’s age at the time of the offense, as well as “its
      hallmark features,” including:

          immaturity, impetuosity, and failure to appreciate risks
          and consequences[;] ... the family and home environment
          that surrounds him — and from which he cannot usually
          extricate   himself    —    no   matter     how    brutal or
          dysfunctional[;] ... the circumstances of the homicide
          offense, including the extent of his participation in the
          conduct and the way familial and peer pressures may have
          affected him[;] ... that he might have been charged and
          convicted of a lesser offense if not for incompetencies
          associated with youth — for example, his inability to deal
          with police officers or prosecutors (including on a plea
          agreement) or his incapacity to assist his own attorneys[;]
          ... [and] the possibility of rehabilitation ... when the
          circumstances [(the youthfulness of the offender)] most
          suggest it.

      Id. at 477-78. See also id. at 476 (stating that in addition to age,
      a court must also give consideration to a juvenile offender’s
      “background and mental and emotional development ... in
      assessing his culpability”) (quoting Eddings, 455 U.S. at 116).

Commonwealth v. Batts, 163 A.3d 410, 431-432 (Pa. 2017).

      As discussed above, the trial court specifically considered Elliott’s

juvenile mind and immaturity, his family and home environment, the

circumstances of the murder, including the extent of his participation and peer

pressure, and the possibility of rehabilitation in light of positive institutional

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reports. As such, the trial court took into account the Miller factors, and

weighed these factors as it was entitled to do.

      In conclusion, we find the arguments presented by Elliott provide no

basis upon which to disturb the 50 years to life sentence imposed by the trial

court upon resentencing. Accordingly, we affirm.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2018




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