                                  [J-82-2018]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               WESTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


 COMMONWEALTH OF PENNSYLVANIA,                 :    No. 14 WAP 2018
                                               :
                      Appellee                 :    Appeal from the Order of the Superior
                                               :    Court entered September 26, 2017 at
                                               :    No. 1621 WDA 2016, affirming the
               v.                              :    Judgment of Sentence of the Court of
                                               :    Common Pleas of Mercer County
                                               :    entered August 19, 2016, at No. CP-
 ANTHONY MACHICOTE,                            :    43-CR-0001958-2003.
                                               :
                      Appellant                :    ARGUED: October 24, 2018


                                        OPINION


JUSTICE MUNDY                                      DECIDED: APRIL 26, 2019
      In this matter, Appellant asks this Court to determine whether his sentence was

illegal because he was subject to a potential sentence of life without parole, and prior to

imposing his sentence, the trial court did not consider the factors enumerated in Miller v.

Alabama, 567 U.S. 460 (2012), as adopted by this Court in Commonwealth v. Batts, 66

A.3d 286 (Pa. 2013) (Batts I) and Commonwealth v. Batts (Batts II), 163 A.3d 410 (Pa.

2017). The Superior Court concluded that Appellant’s challenge in this regard, was moot

because he was ultimately not sentenced to life without the possibility of parole. We

conclude the issue is not moot, and the trial court erred when it failed to consider the

Miller factors on the record when it resentenced Appellant.

      This case originates in 2003 when Appellant was 17 years old and a resident at

George Junior Republic, a residential treatment facility for at-risk youth. Appellant and a

co-resident, Jeremy Melvin, devised a plan to subdue a night supervisor at the facility in
order to escape. On November 10, 2003, Appellant commenced the scheme and called

the night supervisor, Wayne Urey, Jr., to his room. Melvin, who was hiding, attacked Urey

from behind, put him in a chokehold, and brought him to the ground. Appellant and Melvin

bound and gagged Urey, and proceeded to steal his keys, wallet, and truck. Appellant

and Melvin escaped, and Urey ultimately died of suffocation.

         Appellant and Melvin turned themselves in later that same day. Appellant was

charged with homicide, robbery, and related offenses. On November 3, 2004, Appellant

pled guilty to second-degree murder and the remaining charges were dismissed. On

January 6, 2005, Appellant was sentenced to life without the possibility of parole. 1

Appellant did not appeal his sentence.

         On January 11, 2006, Appellant filed a timely pro se Post Conviction Relief Act

(PCRA) petition challenging the voluntariness of his plea, and asserting ineffective

assistance of counsel. A hearing was held, and Appellant’s petition was denied. The

Superior Court affirmed the PCRA court’s decision, and this Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Machicote, 929 A.2d 242 (Pa. Super.

2007), appeal denied, 932 A.2d 1287 (Pa. 2007).



1   Appellant was sentenced pursuant to the following statute.
         § 1102. Sentence for murder and murder of unborn child

                                            ...

         (b) Second degree.--A person who has been convicted of murder of the
         second degree or of second degree murder of an unborn child shall be
         sentenced to a term of life imprisonment.

                                            ...

18 Pa.C.S. § 1102(b). Additionally, pursuant to 61 Pa.C.S. § 6137(a)(1), the Board of
Probation and Parole was prohibited from paroling any defendant “condemned to death
or serving life imprisonment[.]” Id.

                                       [J-82-2018] - 2
       Before turning to the subsequent procedural history leading to the instant appeal,

a brief discussion of the evolution of juvenile sentencing cases is required. We begin with

cases decided by the United States Supreme Court over the last decade and a half and

the categorical rules that have emerged in their wake, as they are integral to the

development of individualized sentencing. In Roper v. Simmons, 543 U.S. 551 (2005),

the United States Supreme Court held “[t]he Eighth and Fourteenth Amendments forbid

imposition of the death penalty on offenders who were under the age of 18 when their

crimes were committed.” Roper, 543 U.S. at 578. Five years later, in Graham v. Florida,

560 U.S. 48 (2011), the United States Supreme Court held that “the Eighth Amendment

prohibits a State from imposing a life without parole sentence on a juvenile nonhomicide

offender.” Graham, 560 U.S. at 75. Critical to the reasoning in each of these decisions

was an emphasis on the need for individualized sentencing for juvenile offenders.

       Two years later in Miller, the United States Supreme Court again revisited the area

of juvenile sentencing schemes. The Court in Miller 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 punishments.’” Miller, 567 U.S. at 465.

Importantly, although the Court held the mandatory nature of the sentence was

unconstitutional, it noted that life without parole was still a viable sentence for a juvenile

convicted of homicide. The Miller Court held that individualized sentencing requires “a

judge or jury must have the opportunity to consider mitigating circumstances before

imposing the harshest possible penalty for juveniles.” Id. at 489. The Court noted that

mandatory life without parole fails to allow a sentencing court to consider a juvenile’s

“chronological age and its hallmark features - among them, immaturity, impetuosity, and

failure to appreciate risks and consequences[;]” as well as the juvenile’s “family and home

environment . . . from which he cannot usually extricate himself - no matter how brutal or




                                       [J-82-2018] - 3
dysfunctional[;]” and “the circumstances of the homicide offense, including the extent of

[the juvenile’s] participation in the conduct and the way familial and peer pressures may

have affected him.” Id. at 477. The Court further noted a mandatory life without parole

sentence fails to account for a juvenile’s immaturity in dealing with the criminal justice

system, and wholly “disregards the possibility of rehabilitation even when the

circumstances most suggest it.” Id. at 478. Thus, the Court ultimately held that imposing

mandatory sentences of life without parole on juveniles convicted of homicide violates

“the Eighth Amendment’s ban on cruel and unusual punishment.” Id. at 489.

      Following Miller, the States were left to determine a sentencing scheme to replace

mandatory life without parole sentences for juveniles convicted of homicide.            In

Pennsylvania, Batts I presented this opportunity.2 Batts asserted the sentencing scheme


2On June 24, 2012, while Batts I was pending, the General Assembly enacted 18 Pa.C.S.
§ 1102.1, a new sentencing statute for juveniles convicted of first-degree and second-
degree murder. The statute provides:
             § 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, first
             degree murder of an unborn child or murder of a law
             enforcement officer 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.

                    (2) A person who at the time of the commission of the
                    offense was under 15 years of age shall be sentenced
                    to a term of life imprisonment without parole, or a term



                                     [J-82-2018] - 4
      of imprisonment, the minimum of which shall be at least
      25 years to life.

(b) Notice.--Reasonable notice to the defendant of the
Commonwealth's intention to seek a sentence of life
imprisonment without parole under subsection (a) shall be
provided after conviction and before sentencing.

(c) Second degree murder.--A person who has been
convicted after June 24, 2012, of a murder of the second
degree, second degree murder of an unborn child or murder
of a law enforcement officer of the second 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 imprisonment the minimum of
      which shall be at least 30 years to life.

      (2) A person who at the time of the commission of the
      offense was under 15 years of age shall be sentenced
      to a term of imprisonment the minimum of which shall
      be at least 20 years to life.

(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.

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




                      [J-82-2018] - 5
      (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.

(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.

(f) Appeal by Commonwealth.--If a sentencing court refuses
to apply this section where applicable, the Commonwealth
shall have the right to appellate review of the action of the
sentencing court. The appellate court shall vacate the
sentence and remand the case to the sentencing court for
imposition of a sentence in accordance with this section if it



                        [J-82-2018] - 6
of Section 1102(a), imposing a mandatory sentence of life-without-parole for first-degree

murder was unconstitutional in its entirety in light of Miller. Thus, Batts argued he was

entitled to a remand for resentencing at which the judge would consider the Miller factors,

prior to imposing an appropriate sentence for third-degree murder, the most severe lesser

included offense. Id. at 294. The Commonwealth argued the sentencing statute was not

constitutionally infirm, and that as a result of Miller, the judge now had discretion to impose

a sentence of life-without-parole, or a sentence with the possibility of parole after a

specified term of years. Id. at 295.

       This Court held the entire statutory scheme for first-degree murder was not

unconstitutional. Id. This Court further held that defendants whose judgment of sentence

was not final at the time Miller was decided are “subject to a mandatory maximum

sentence of life imprisonment as required by Section 1102(a), accompanied by a

minimum sentence determined by the court of common pleas upon resentencing.” Batts

I, 66 A.3d 297. Additionally, this Court recognized “the imposition of a minimum sentence

taking [the Miller] factors into account is the most appropriate remedy for the federal

constitutional violation that occurred when a life-without-parole sentence was mandatorily

applied.” Id. Individuals convicted of first-degree murder after the date of the Miller

decision, pursuant to Section 1102.1, are “subject to high mandatory minimum sentences

and the possibility of life without parole, upon evaluation by the sentencing court of criteria




              finds that the sentence was imposed in violation of this
              section.

18 Pa.C.S. § 1102.1.




                                       [J-82-2018] - 7
along the lines of those identified in Miller.” Id. Accordingly, Batts’ sentence was vacated

and remanded for resentencing.3

       In 2016, the United States Supreme Court decided Montgomery v. Louisiana, 136

S. Ct. 718 (2016), in which it held Miller announced a new substantive rule of

constitutional law that applies retroactively. The States retained discretion to decide

whether to resentence juveniles serving mandatory life without parole sentences, or

whether to permit the offenders to be considered for parole. Montgomery, 136 S. Ct. at

736. The Court noted, “[e]xtending parole eligibility to juvenile offenders does not impose

an onerous burden on the States, nor does it disturb the finality of state convictions.

Those prisoners who have shown an inability to reform will continue to serve life

sentences.” Id. The Court concluded, “[i]n light of what this Court has said in Roper,

Graham, and Miller about how children are constitutionally different from adults in their

level of culpability, however, prisoners like Montgomery must be given the opportunity to

show their crime did not reflect irreparable corruption; and, if it did not, their hope for some

years of life outside of prison walls must be restored.” Id. at 736-37.

       Following Montgomery, Batts returned to this Court again in Batts II. In Batts II,

this Court clarified that there is “a presumption against the imposition of a sentence of life

without parole for a juvenile offender[,]” and to rebut the presumption the Commonwealth

“bears the burden of proving, beyond a reasonable doubt, that the juvenile offender is

incapable of rehabilitation.” Id. at 411. Further, we held “the sentencing court’s decision

must take into account the factors announced in Miller and Section 1102.1 of the Crimes

Code.” Id. at 484.

3In a concurring opinion, Justice Baer noted that although the legislature specified that
Section 1102.1 would apply to juvenile offenders convicted after the date of Miller, he
believed the trial courts re-sentencing juveniles who preserved a Miller claim “would be
wise to follow the policy determinations made by the legislature in its recent enactment.”
Batts I, 66 A.3d at 300 (Baer, J., concurring).


                                        [J-82-2018] - 8
       With the evolution of the law in mind, we return to the procedural history of the

instant case. On August 22, 2012, Appellant filed a second, counseled, PCRA petition

seeking resentencing pursuant to Miller. A conference was scheduled at which the PCRA

court and the parties agreed to hold the petition pending guidance from the appellate

courts on the applicability of Miller.       After several continuances the PCRA court

determined it was necessary to proceed on the petition, and on August 24, 2013, a

hearing was held.      Thereafter, on September 30, 2013, the PCRA court vacated

Appellant’s sentence, determining the sentence was illegal pursuant to Miller. Appellant

was resentenced on June 24, 2014, to a term of life with parole, with a recommendation

Appellant not be paroled until his 58th birthday. On July 2, 2014, the Commonwealth filed

a post-sentence motion alleging the court had lacked authority to resentence Appellant in

light of Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013) (holding Miller did not apply

retroactively). The motion was denied the same day without a hearing.

       The Commonwealth appealed from Appellant’s resentencing asserting that Miller

did not apply retroactively. The Superior Court agreed and vacated Appellant’s sentence

and remanded for re-imposition of Appellant’s original sentence. Commonwealth v.

Machicote, 122 A.3d 1144 (Pa. Super. 2015) (unpublished memorandum).                    On

September 11, 2015, the court resentenced Appellant in accordance with the Superior

Court’s order to life without the possibility of parole.

       On March 22, 2016, Appellant filed a third PCRA petition asserting his sentence

was illegal in light of Montgomery. The PCRA court held a conference at which it vacated

the September 11, 2015 sentence, and scheduled a sentencing hearing, which was held

on August 19, 2016. The Commonwealth asked the trial court to impose a sentence of

life without the possibility of parole noting its position that Appellant was “not amenable

to rehabilitative efforts.” N.T., 8/19/16 at 42. Counsel for Appellant urged the court to be




                                        [J-82-2018] - 9
lenient and asserted pursuant to the mandates of Miller, a sentence of life without parole

should be reserved “for all but the rarest of juvenile offenders, those whose crimes reflect

permanent incorrigibility.” Id. The sentencing court proceeded to sentence Appellant as

follows.
              THE COURT: I first take into account the comments set forth
              in my sentence order of June 24, 2014. I reviewed the PSI
              again. You’ve had five misconducts, but they were early,
              which is understandable. You’ve obtained your GED, which
              is appropriate. Crimes of this nature devastate all families
              involved. You were over 15. While your intent was not to kill,
              there was intent to hurt, and hurt severely in the way that he
              was beaten.

                     The Supreme Court of the United States has put forth
              that only - - life without parole is appropriate in very limited
              circumstances where their conduct and who they are are [sic]
              such that you cannot return them to society. That does not
              apply in this case.

                    This creates a great deal of confusion because where
              do we start? The Supreme Court of the United States in
              Montgomery case states - - simply says life with parole.
              Pennsylvania has not done that. I did that in the first
              sentence, and as I review it I’m not sure that that is
              appropriate for several reasons. One, it would permit parole
              at any time, and I do believe there needs to be a period of
              substantial incarceration. Two, it is extraordinarily unfair to
              the family of the victim because at any time they could be
              subject to a parole hearing, and I don’t find that fair.

                     I look at the statutes enacted after Miller v. Kentucky.
              Clearly, it is not binding on this Court, and I am not required
              to do so. But I’m confronted with the fact that if I give you less
              than that, you benefit from committing your murder earlier.
              That doesn’t seem right. If I go beyond that, then you are
              being punished more because of your timing. That is also
              wrong. I do find persuasive the logic set forth in the
              amendments after the Miller case.
Id. at 45-47. Accordingly, the sentencing court sentenced Appellant to 30 years to life in

prison with credit served from November 10, 2003 to the date of sentencing. Id. at 48.




                                      [J-82-2018] - 10
         Appellant filed a timely notice of appeal. In his Superior Court brief, he asserted,

(1) the sentence was unlawful under Montgomery as there was no statutory authority to

impose life without parole on June 25, 2012, and thus he should be sentenced to the

lesser included offense of third-degree murder, (2) the court erred in sentencing

Appellant, a juvenile convicted of second-degree murder facing a potential life without

parole sentence, without considering the Miller factors, and (3) the trial court abused its

discretion in granting Appellant’s request to hire an expert, while denying him a

continuance to retain one. Commonwealth v. Machicote, 172 A.3d 595, 599 (Pa. Super.

2017).

         The Superior Court affirmed.4 The court first addressed Appellant’s claim that his

sentence was illegal.     The Superior Court concluded that Batts I held that juvenile

homicide offenders tried and convicted prior to the issuance of Miller are subject to a

mandatory maximum sentence of life imprisonment as required by the previous version

of Section 1102(a) and a minimum determined by the court of common pleas at

resentencing. Machicote, 172 A.3d at 600. Further, the Court noted that in resentencing

Appellant, the court adhered to this Court’s reasoning in Batts II, that for “juvenile

offenders for whom the sentencing court determines [life without the possibility of parole]

sentences are inappropriate . . . sentencing courts look to the mandatory minimum

sentences set forth in section 1102.1(a) for guidance in setting a minimum sentence for

a juvenile convicted of first-degree murder prior to Miller.’” Id. at 601 (quoting Batts II,

163 A.3d at 443 n. 17). Ultimately, the Superior Court held that Appellant’s thirty-years-

to-life sentence was legal as “a trial court, in resentencing a juvenile offender convicted



4 In its resolution of Appellant’s issues the Superior Court cited to Batts II for authority. It
is important to note, at the time of resentencing on August 19, 2016, the trial court was
without the benefit of Batts II, decided on June 26, 2017.


                                       [J-82-2018] - 11
prior to Miller, was constitutionally permitted to impose a minimum term-of-years sentence

and a maximum sentence of life imprisonment[.]” Machicote, 172 A.3d at 601.

       Addressing Appellant’s second issue, the Superior Court noted that “[t]he Batts

decisions make clear that, the court must consider the Miller factors in cases where the

Commonwealth is attempting to meet its burden of overcoming the presumption against

juvenile LWOP sentences.” Id. at 602 n.3. However, the Superior Court concluded that

Appellant’s challenge to the PCRA court’s failure to consider the Miller factors was moot

because life without parole was ultimately not imposed by the trial court. Id. After

dismissing Appellant’s argument as moot, the Superior Court addressed Appellant’s claim

as arguably raising a claim that the court failed to consider relevant sentencing factors,

and proceeded to address the issue as implicating the discretionary aspects of his

sentence. The Superior Court concluded the PCRA court had not abused its discretion

in sentencing Appellant because the PCRA court “found persuasive the ‘logic’ of

subsection 1102.1(c)(1)[,]” and Appellant’s sentence was “compliant with Subsection

1102.1(c)(1) and Batts II[.]”5 Id. at 603.

       This Court granted review of the Superior Court’s mootness conclusion to

determine whether 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 and Batts II,

regardless of whether the defendant is ultimately sentenced to life without parole.

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



5 Although not relevant to the instant appeal, in Appellant’s third and final issue, the
Superior Court held “where the Commonwealth is attempting to meet its burden of
overcoming the presumption against juvenile LWOP sentences, expert testimony is not
constitutionally required.” Machicote, 172 A.3d at 605 (citing Batts II, 163 A.3d at 431-
32).


                                      [J-82-2018] - 12
       Appellant begins by noting that the Montgomery Court held that an assessment of

the Miller factors “is a mandatory procedural step necessary to ‘give[] effect to Miller’s

substantive holding that life without parole is an excessive sentence for children whose

crimes reflect transient immaturity.” Appellant’s Brief at 19 (citing Montgomery, 136 S.

Ct. at 735). Thus, Appellant maintains the trial court’s failure to assess the Miller factors

was not moot, and the Superior Court’s holding confuses the substantive right of a juvenile

not to be sentenced to life without parole except in rare circumstances, with Montgomery’s

procedural holding that the Miller factors must be assessed to guarantee individualized

sentencing. Id.

       Appellant further asserts “the sentencing court must expressly evidence its

consideration of the Miller factors on the record.” Appellant’s Brief at 26. In support of

his argument Appellant notes that the General Assembly has already adopted the

framework because Section 1102.1(d) requires the Miller factors be considered on the

record. Furthermore, in Batts II, we held the court shall consider and make findings on

the record “after the sentencing court’s evaluation of the criteria identified in Miller.” Batts

II, 163 A.3d at 421.

       The Commonwealth counters that Miller is inapplicable because under Section

1102.1, a juvenile convicted of second-degree murder does not face a potential life

without parole sentence.        Commonwealth’s Brief at 11.           On this premise, the

Commonwealth asserts that Section 1102.1(d) sets forth the factors the sentencing court

must consider “in determining whether to impose a sentence of life without parole under

subsection (a) [for first-degree murder].”         18 Pa.C.S. § 1102.1(d).          Thus, the

Commonwealth argues subsection (d) has no applicability for juvenile offenders, such as

Appellant, convicted of second-degree murder. Commonwealth’s Brief at 11.




                                       [J-82-2018] - 13
       The Commonwealth concedes its agreement with a portion of Appellant’s

argument noting, “whether a trial court must consider the Miller factors when sentencing

a juvenile facing a potential life without possibility of parole sentence, regardless of the

ultimate sentence imposed - has been answered.” Commonwealth’s Brief at 16. The

Commonwealth continues, “[t]he answer is “Yes,” a trial court must consider the Miller

factors when sentencing a juvenile facing a potential life-without-parole sentence, but this

will only occur when a juvenile is convicted of first-degree murder.”                   Id. The

Commonwealth concludes that if Appellant had been sentenced to first-degree murder

he would “indeed face a potential life-without-parole sentence, [and] the sentencing court

would be mandated, pursuant to §1102.1(d) and Batts II, to consider the Miller factors

prior to determining whether to impose a life-without-parole sentence[.]” Id. at 16-17.

Alternatively, the Commonwealth argues that if the trial court was required to consider the

Miller factors, the record evidence of the sentencing hearing reveals “serious

consideration was given to all, or at least a strong majority, of the factors set forth in Miller

and §1102.1(d) at the time of resentencing on June 24, 2014[,]” and that the PCRA court

took into account the comments from the June 24, 2014 re-sentencing at the August 19,

2016 re-sentencing. Id. at 26.

       In his reply to the Commonwealth’s argument, Appellant notes that the

Commonwealth “fundamentally agrees” with him that “’a trial court must consider the

Miller factors when sentencing a juvenile facing a potential life-without-parole sentence.’”

Appellant’s Reply Brief at 2 (quoting Commonwealth’s Brief at 16). However, Appellant

fervently disagrees with the Commonwealth’s assertion that he was not statutorily eligible

to be sentenced to life without parole.

       As a threshold matter, we must first determine our scope and standard of review.

In Batts II, this Court recognized that “in the absence of the sentencing court reaching a




                                       [J-82-2018] - 14
conclusion, supported by competent evidence, that the defendant will forever be

incorrigible, without any hope for rehabilitation, a life-without-parole sentence imposed on

a juvenile is illegal, as it is beyond the court's power to impose.” Batts II, 163 A.3d at 435

(citations omitted). Because Montgomery announced a substantive rule of law, albeit with

a procedural component, a failure to impose a sentence in compliance with the

substantive rule implicates the legality of the sentence. Montgomery, 136 S. Ct. at 724

(“a court has no authority to leave in place a conviction or sentence that violates a

substantive rule[.]”) Accordingly, we “review the sentencing court's legal conclusion

[regarding whether Appellant is] eligible to receive a sentence of life without parole

pursuant to a de novo standard and plenary scope of review.” Batts II, 163 at 435 (citing

Commonwealth v. McClintic, 909 A.2d 1241, 1245 (Pa. 2006)).

       Instantly, Appellant was sentenced to 30 years to life in prison for second-degree

murder.   Contrary to the Commonwealth’s contention, Appellant was not subject to

sentencing pursuant to Section 1102.1, but was properly sentenced pursuant to the

earlier version of Section 1102, as he was convicted prior to June 24, 2012. As such, life

without the possibility of parole was a viable sentence. Furthermore, at Appellant’s

sentencing hearing, the Commonwealth specifically stated “the Commonwealth

recommends a sentence of life without the possibility of parole[,]” and proceeded to argue

to overcome the presumption against imposing a sentence of life without the possibility

of parole. N.T., 8/19/16, at 42. Thus, the record of Appellant’s sentencing hearing reveals

Appellant was facing a possible sentence of life without the possibility of parole. Having

resolved this threshold dispute, the parties are essentially in agreement that the trial court

was required to consider the Miller factors on the record.

       As iterated throughout this opinion, one of the hallmarks of the line of United States

Supreme Court cases pertaining to juvenile sentencing, is the notion that conviction for a




                                      [J-82-2018] - 15
specific crime does not warrant the same sentence in all circumstances.                  The

individualized sentence based on the criteria developed in Miller must be considered in

each case. Thus, although the trial court imposed a sentence that is in line with Section

1102.1, the sentence did not evidence the required individualized consideration. In light

of the foregoing, we conclude Appellant’s sentence is illegal and must be vacated and

remanded for resentencing. In so holding, we recognize that Appellant’s sentence was

based on the guidance available to the trial court at the time. The trial court looked to

Section 1102.1 and imposed the statutory sentence for a juvenile convicted after June

24, 2012. Further, the trial court acknowledged that the Miller factors must be considered

in determining whether the Commonwealth has met its burden to overcome the

presumption against life without parole. The trial court’s misstep was not considering the

Miller factors on the record when the Commonwealth had asked for a sentence of life

without parole, and when Appellant was exposed to said sentence as a result of his

conviction prior to Miller and the statutory language of Section 1102.

       We hold today, that when a juvenile is exposed to a potential sentence of life

without the possibility of parole the trial court must consider the Miller factors, on the

record, prior to imposing a sentence.       The core reasoning behind this long line of ever-

evolving case law has been the need to individualize sentences for the youngest

offenders who had not developmentally matured. This requires a sentencing court to

analyze an individual’s specific characteristics and circumstances and to impose a

sentence based on them. Thus, the Superior Court’s conclusion that the issue is moot

because Appellant was ultimately not sentenced to life without the possibility of parole

was erroneous, as it effectively nullified the procedural protection set forth in Montgomery

and solidified by this Court in Batts II.




                                       [J-82-2018] - 16
       Trial courts must consider, on the record, the Miller factors and Section 1102.1

criteria, in all cases where a juvenile is exposed to a sentence of life without parole. As

the trial court in the first instance is in the best position to discover and develop this

information, the trial court is required to make a record of the Miller factors at sentencing.

This rule satisfies the United States Supreme Court’s directive, and the subsequent rules

adopted by this Court, that sentencing of juvenile homicide offenders must be

individualized, and creates a record to aid the appellate courts throughout the appeal

process.

       Based on the foregoing, we conclude that the Superior Court erred when it held

that the trial court’s failure to address the Miller factors on the record was moot. In

addition, we further determine that by failing to consider those factors on the record, the

trial court erred and imposed an illegal sentence. Accordingly, the order of the Superior

Court is reversed, the judgment of sentence is vacated, and the case is remanded to the

Court of Common Pleas for resentencing.



       Chief Justice Saylor and Justices Baer, Donohue and Wecht join the opinion.

       Justice Todd files a dissenting opinion in which Justice Dougherty joins.




                                      [J-82-2018] - 17
