J-A21018-17

                             2018 PA Super 39

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MICHAEL PAUL FOUST,

                         Appellant                  No. 1118 WDA 2016


            Appeal from the Judgment of Sentence July 5, 2016
             In the Court of Common Pleas of Venango County
            Criminal Division at No(s): CP-61-CR-0000679-1993

BEFORE: BENDER, P.J.E., OLSON and STABILE, JJ.

OPINION BY OLSON, J.:                       FILED FEBRUARY 21, 2018

I. Introduction

     Appellant, Michael Paul Foust, appeals from the judgment of sentence

entered on July 5, 2016, as made final by the denial of his post-sentence

motion on July 19, 2016. In this case of first impression in Pennsylvania, we

consider whether a term-of-years sentence which exceeds a juvenile homicide

defendant’s life expectancy constitutes an unlawful de facto sentence of life

imprisonment without the possibility of parole (“LWOP”). As an initial matter,

we hold that because the Supreme Court of the United States has severely

limited the circumstances under which juvenile defendants may be sentenced

to LWOP, a de facto LWOP sentence is illegal in certain circumstances when

imposed upon a juvenile offender. We also conclude that, in cases such as

the present one that involve multiple killings, we must evaluate the sentence
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for each crime separately when determining if a term-of-years sentence

constitutes a de facto LWOP sentence. Finally, we affirm Appellant’s judgment

of sentence because, when separately considered, the consecutive, 30-years

to life sentences imposed in this case for two killings do not constitute unlawful

de facto LWOP punishments nor did the trial court abuse its discretion in

imposing these sentences.

     A. Factual Background

        On November 22, 1993, Appellant, then 17 years old, and Kevin Zenker

(“Zenker”) drove from Oil City to Donald Foust’s residence. Appellant and

Zenker stole one of Donald Foust’s handguns and then returned to Oil City.

While they were driving past Darla Bump’s (“Bump’s”) and Russell Rice’s

(“Rice’s”) residence, Zenker fired at Bump’s dog. Appellant turned the vehicle

around and passed the residence again. Bump and Rice got in their vehicle

and began following Appellant and Zenker. Eventually, Appellant slowed the

car to a stop, grabbed the firearm, jumped out of the vehicle, approached

Bump’s and Rice’s vehicle, and opened fired.         Bump and Rice died from

multiple gunshot wounds sustained during Appellant’s assault.

     B. Procedural History

        On February 1, 1994, the Commonwealth charged Appellant via criminal

information with two counts of first-degree murder.1         On May 13, 1994,



1   18 Pa.C.S.A. § 2502(a) (West 1994).




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Appellant moved to transfer his case to the Juvenile Division of the Court of

Common Pleas of Venango County. See 42 Pa.C.S.A. § 6355 (West 1994).2

The trial court denied that motion on May 24, 1994, and trial commenced on

June 22, 1994. Appellant was convicted of both counts of first-degree murder.

On June 30, 2014, the trial court sentenced Appellant to two consecutive

terms of LWOP. On direct appeal, this Court affirmed and our Supreme Court

denied allowance of appeal. Commonwealth v. Foust, 667 A.2d 418 (Pa.

Super. 1995) (unpublished memorandum), appeal denied, 672 A.2d 304 (Pa.

1995).

     On January 5, 1998, Appellant filed his first pro se petition pursuant to

the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Counsel

was appointed and the PCRA court held an evidentiary hearing. The PCRA

court denied the petition on September 2, 1999.      This Court affirmed the

denial of relief and our Supreme Court denied allowance of appeal.

Commonwealth v. Foust, 828 A.3d 397 (Pa. Super. 2003) (unpublished

memorandum), appeal denied, 837 A.2d 1177 (Pa. 2003).

     On July 9, 2010, Appellant filed his second pro se PCRA petition. On

October 18, 2010, the PCRA court dismissed the petition. This Court affirmed

and our Supreme Court denied allowance of appeal. Commonwealth v.

Foust, 34 A.3d 217 (Pa. Super. 2011) (unpublished memorandum), appeal


2 All statutory citations are to the current version of Purdon’s Pennsylvania
Statutes or Pennsylvania Consolidated Statutes Annotated unless otherwise
noted.


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denied, 34 A.3d 826 (Pa. 2011). Appellant filed his third pro se PCRA petition

on July 16, 2012. Counsel was appointed and filed an amended petition. On

June 25, 2014, the PCRA court dismissed the petition.3

     On February 24, 2016, Appellant filed his fourth pro se PCRA petition,

which he amended on March 28, 2016. In that petition, he argued that his

LWOP sentences violated the Eighth Amendment of the United States

Constitution as interpreted by Miller v. Alabama, 567 U.S. 460 (2012) and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).4 On May 12, 2016, the

PCRA court granted the petition and vacated Appellant’s judgment of

sentence.5

     Counsel then was appointed for resentencing. On July 5, 2016, the trial

court sentenced Appellant to 30 years to life for each first-degree murder

conviction and ordered those two sentences to run consecutively. Hence, the




3 Appellant appealed the PCRA court’s June 25, 2014 dismissal order.
Appellant, however, discontinued the appeal before it was docketed in this
Court. See Pa.R.A.P. 1973(b) (“If an appeal has not been docketed, the
appeal may be discontinued in the lower court.”).

4 “The Eighth Amendment [of the United States] Constitution[ is] applicable
to the States through the Due Process Clause of the Fourteenth
Amendment[.]” Baze v. Rees, 553 U.S. 35, 47 (2008) (Roberts, C.J., opinion
announcing the judgment of the court) (citation omitted).

5 Although Appellant’s petition was patently untimely, he satisfied the new
constitutional rule exception to the PCRA’s one-year time bar. See 42
Pa.C.S.A. § 9545(b)(1)(iii). Thus, the PCRA court had jurisdiction to reach
the claim raised by Appellant.




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trial court sentenced Appellant to an aggregate term of 60 years to life

imprisonment.      On July 15, 2016, Appellant challenged the legality of his

sentence in a post-sentence motion. The trial court denied that motion on

July 19, 2016. This timely appeal followed.6

     C. Questions Presented

        Appellant presents two issues for our review:

        1. Pursuant to [Miller, which invalidated] the Pennsylvania first
        and second[-]degree murder[7] statutes for juveniles, was the
        only constitutional sentence available a sentence for third[-
        ]degree murder?

        2. Is it unconstitutional to impose a sentence of 60 years to life, a
        de facto sentence of [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?

Appellant’s Brief at 3.8

II. Discussion




6On July 28, 2016, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal (“concise statement”). See Pa.R.A.P.
1925(b). On September 1, 2016, Appellant filed a timely concise statement.
On September 23, 2016, the trial court issued its Rule 1925(a) opinion. Both
of Appellant’s issues were included in his submission.

7 For simplicity, references to “first-degree murder” shall include first-degree
murder, first-degree murder of an unborn child, and first-degree murder of a
law enforcement officer. Similarly, references to “second-degree murder”
shall include second-degree murder, second-degree murder of an unborn
child, and second-degree murder of a law enforcement officer.

8   We have re-numbered the issues for ease of disposition.




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      Both of Appellant’s issues challenge the legality of his sentence. We

review the legality of a sentence de novo and our scope of review is plenary.

Commonwealth v. Melvin, 172 A.3d 14, 19 (Pa. Super. 2017) (citation

omitted). To understand Appellant’s challenges to the legality of his sentence,

it is necessary to understand the statutory framework governing juveniles 9

convicted of first and second-degree murder.

    A. Legal Background

       1. Pennsylvania’s Prior Statutory Scheme

      At the time of Appellant’s conviction, the Crimes Code provided that an

individual, including a juvenile, convicted of first or second-degree murder

must be sentenced to a term of life imprisonment.          See 18 Pa.C.S.A.

§ 1102(a), (b) (West 1994).     The Parole Code provided that an individual

sentenced to a term of life imprisonment is not eligible for parole. See 61

Pa.C.S.A. § 6137(a)(1) (West 1994). Finally, the Juvenile Act provided that

the term “delinquent act” does not include the crime of murder.        See 42

Pa.C.S.A. § 6302 (West 1994).

      Under that statutory framework, a juvenile who committed first or

second-degree murder was charged as an adult. As occurred in the case sub

judice, a defendant could then request that his or her case be transferred to


9 We use the term juvenile to denote an individual under the age of 18 years
old when he or she committed a crime. Thus, when we say a certain practice
is barred for juvenile offenders, we mean that it is barred for individuals who
were under 18 at the time of their offense, even if they were 18 or older when
they were convicted and/or sentenced.


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the Juvenile Division. See 42 Pa.C.S.A. § 6355 (West 1994). If the trial court

refused to transfer the case to the Juvenile Division, and the juvenile was

convicted of first or second-degree murder, the trial court had to sentence the

juvenile to life imprisonment and the juvenile would never become eligible for

parole. Thus, a juvenile convicted of first or second-degree murder under this

statutory scheme received a mandatory LWOP sentence.

        2. History of Punishment for Juvenile Offenders

       Having set forth the statutory framework when Appellant was convicted

and sentenced, we turn to the historical underpinnings of that statutory

scheme.

       When our Republic was founded, individuals over the age of 14 who

were convicted of crimes were treated like adults and subject to execution.

See Victor L. Streib, Death Penalty for Children: The American Experience

with Capital Punishment for Crimes Committed While Under Age Eighteen, 36

Okla. L. Rev. 613, 614 (1983) (“Streib”). Individuals between the ages of

seven and fourteen were presumed ineligible for the death penalty; however,

this presumption was rebuttable. See id. Only children under the age of

seven were ineligible for the death penalty. See id. Before 1900, at least 95

juveniles were executed. See id. at 616. At least 14 of these juveniles were

executed for crimes committed when they were 14 or younger. See id. at

619.




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      In 1899, Illinois became the first state to separate the juvenile justice

system from the criminal justice system. See 1899 Ill. Laws 131. Over the

next four decades, almost every state and the federal government passed

similar legislation, which treated some, or all, juvenile offenders differently

than adult defendants. E.g. 1901 P.L. 279;10 see also Streib at 616-617.

This decreased the number of juveniles tried in the criminal justice system

and imprisoned with adults; however, the most serious juvenile offenders

were still treated as adults.   Between 1900 and 1969, 192 juveniles were

executed.   See id. at 630.     Between 1980 and 2005, 22 juveniles were

executed.     See Charles Lane, 5-4 Supreme Court Abolishes Juvenile

Executions, Wash. Post, Mar. 2, 2005 at A1.

      Thus, for 363 years, from 1642, the time the first juvenile was executed

in America, until 2005, it was constitutional to execute juveniles convicted of

homicide. It naturally follows that all lesser sentences, including LWOP, were

also constitutional for juveniles convicted of homicide. Only recently has the

Supreme Court of the United States altered the law for the sentencing of

juvenile offenders.




10 This Court found the Act of May 21, 1901 unconstitutional in Mansfield’s
Case, 22 Pa. Super. 224 (1903). Later, our General Assembly enacted a
constitutional statute which accomplished the same goals. See 1903 P.L. 274
(included in Purdon’s at 11 P.S. §§ 71-141 (repealed)).


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       3. Supreme Court of the United States’ Decisions

      In the late 1980’s, the jurisprudence of the Supreme Court of the United

States regarding juvenile sentencing began to shift.

            i. Thompson v. Oklahoma

       The first major decision in this area was Thompson v. Oklahoma,

487 U.S. 815 (1988). In Thompson, the Court explained that:

      The authors of the Eighth Amendment drafted a categorical
      prohibition against the infliction of cruel and unusual punishments,
      but they made no attempt to define the contours of that category.
      They delegated that task to future generations of judges who have
      been guided by the evolving standards of decency that mark the
      progress of a maturing society. In performing that task the Court
      has reviewed the work product of state legislatures and
      sentencing juries, and has carefully considered the reasons why a
      civilized society may accept or reject [a penalty] in certain types
      of cases.

Id. at 821-822 (Stevens, J., opinion announcing the judgment of the court)

(internal quotation marks, citation, and footnotes omitted).

      Pursuant to these views, the Court determined that a national consensus

had formed against the imposition of the death penalty for juveniles under 16

years old. Id. at 823-833. In reaching this conclusion, the Court looked to

how states treat juveniles in other areas, e.g., at which age it is permissible

to drive, vote, or purchase pornographic materials. Id. at 824-825. It also

examined the legislation in states that barred capital punishment for

individuals below a certain age and found that all of them forbade executing

juveniles under the age of 16. See id. at 829. The Court then noted the

rarity with which juries sentenced juveniles under 16 years old to death and


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found this indicative of a national consensus against such a practice. See id.

at 831-833.   Finally, the Court found that juveniles are less culpable than

adults when they commit heinous crimes and that the death penalty does not

serve as a successful deterrent to individuals under 16 years old from

committing homicide. Id. at 833-838. When it combined these factors, the

Court determined that executing juveniles under the age of 16 violated

society’s evolving standards of decency.     The Court, however, declined to

reach the issue of whether executing 16- or 17-year old defendants violated

the Eighth Amendment. Id. at 838.

            ii. Stanford v. Kentucky

     Although Thompson did not reach the issue of whether executing 16-

or 17-year old defendants violated the Eighth Amendment, the Court reached

the issue one year later in Stanford v. Kentucky, 492 U.S. 361 (1989). In

that case, it held that the execution of 16- or 17-year old defendants did not

violate the Eighth Amendment. Id. at 369-380.

     The Court first examined state statutes and noted that a majority of

states which had the death penalty permitted execution of 16- or 17-year old

defendants. Id. at 371-372. Next, the Court found that, although 16- and

17-year olds made up a small portion of death row, prosecutors were not

hesitant to seek the death penalty and juries were not hesitant to impose the

death penalty in cases involving such defendants. Id. at 373-374. The Court

then addressed its analysis in Thompson related to the age necessary to



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vote, drink alcohol, etc. It found it “absurd to think that one must be mature

enough to drive carefully, to drink responsibly, or to vote intelligently, in order

to be mature enough to understand that murdering another human being is

profoundly wrong, and to conform one’s conduct to that most minimal of all

civilized standards.”   Id. at 374.   The Court then rejected any attempt to

establish a national consensus against executing 16- or 17-year old

defendants based on “public opinion polls, the views of interest groups, and

the positions adopted by various professional associations.” Id. at 377.

      Addressing the deterrence effect of capital punishment on 16- and 17-

year olds, the Court held that a statute that does not deter crime would violate

the Equal Protection Clause of the Fourteenth Amendment before it would

violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

Id. at 378. Alternatively, the Court found uncompelling the “socioscientific”

evidence in support of the deterrence argument. Id. at 377-378. The Court

also rejected the premise that it was for individual justices to determine if a

punishment was cruel and unusual.         Id. at 378-380.     Instead, the Court

emphasized that the key question was whether American society considered

the punishment cruel and unusual. See id. Finally, the Court concluded that

it could not invalidate a punishment without a national consensus that the

punishment was cruel and unusual. As no such consensus existed regarding

the execution of 16- or 17-year old defendants, the Court held the practice

constitutional. See id. at 379-380.



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             iii. Roper v. Simmons

      Less than 16 years later, the Supreme Court of the United States

reversed course, abrogated Stanford, and held that the Eighth Amendment

of the United States Constitution forbade the execution of juvenile homicide

offenders. Roper v. Simmons, 543 U.S. 551 (2005). The Court concluded

that the national consensus regarding the execution of juvenile homicide

offenders had shifted since Stanford and that the national consensus was

now against that punishment. Id. at 564-567. It noted that, at that time, 18

states barred execution of juvenile homicide offenders, 12 barred the death

penalty in its entirety, and 20 states permitted execution of juvenile homicide

offenders.   Id. at 564.    The Court found a national consensus against

execution of juvenile homicide offenders even though a majority of states that

retained the death penalty also permitted the execution of juvenile homicide

offenders. See id.

      The Court next considered the socioscientific evidence that it rejected in

Stanford. The Court held that “[t]hree general differences between juveniles

under 18 and adults demonstrate that juvenile offenders cannot with reliability

be classified among the worst offenders[,]” and, therefore, should not be

subject to the harshest punishment available under the law. Id. at 569. The

Court rejected Stanford’s reasoning that it is “absurd to think that one must

be mature enough to drive carefully, to drink responsibly, or to vote

intelligently, in order to be mature enough to understand that murdering



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another human being is profoundly wrong, and to conform one’s conduct to

that most minimal of all civilized standards.”    Stanford, 492 U.S. at 374.

Instead, the Court relied on these factors and included appendices to the

opinion setting forth the state statutes governing these matters. See Roper

543 U.S. at 569 and 579.

      The Court then abandoned Stanford’s reasoning that it was not for

individual justices to determine if a punishment was cruel and unusual. Id.

at 574-575. The Court concluded that Thompson and Atkins v. Virginia,

536 U.S. 304 (2002), which held that executing mentally retarded individuals

violated the Eighth Amendment, showed that it was the job of the courts to

determine what punishments violate our nation’s evolving standards of

decency. Roper, 543 U.S. at 574-575.

      Finally, the Court considered international law. It concluded that the

consensus was that the death penalty for juvenile homicide offenders was

cruel and usual. Id. at 575-578. It held that such international consensus

could not be ignored in today’s global society. See id. at 578. Combining

international consensus with socioscientific evidence, the Court found that

executing   juvenile   homicide   offenders   constituted   cruel   and   unusual

punishment. See id.

      Notably, however, Roper endorsed sentencing juveniles to LWOP.

Specifically, the Court held that “[t]o the extent the juvenile death penalty

might have residual deterrent effect, it is worth noting that the punishment of



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[LWOP] is itself a severe sanction, in particular for a young person.” Id. at

572; see id. at 565 (noting with approval the decision of Kentucky’s governor

to commute Stanford’s sentence to LWOP).       Thus, LWOP was seen as an

appropriate punishment for juvenile homicide offenders as recently as 12

years ago.

             iv. Graham v. Florida

      The Supreme Court of the United States revisited its juvenile sentencing

jurisprudence in Graham v. Florida, 560 U.S. 48 (2010), which considered

whether LWOP sentences survived Eighth Amendment scrutiny when imposed

on juvenile nonhomicide defendants. In Graham, the Court noted that 37

states, the District of Columbia, and the federal government all authorized

LWOP sentenced for nonhomicide offenders. Id. at 62. Although evidence of

state and federal legislation showed clearly and reliably a strong national

consensus in favor of sentencing juveniles to LWOP for nonhomicide offenses,

the Court held that “an examination of actual sentencing practices in

jurisdictions where the sentence in question is permitted by statute discloses

a consensus against its use.” Id.

      Next, the Court looked to the socioscientific evidence considered in

Roper (but rejected in Stanford).        This evidence showed that juvenile

defendants are not as culpable as their adult counterparts. Thus, the Court

held “that because juveniles have lessened culpability they are less deserving

of the most severe punishments.” Id. at 68. The Court also “recognized that



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defendants who do not kill, intend to kill, or foresee that life will be taken are

categorically less deserving of the most serious forms of punishment than are

murderers.” Id. at 69. Therefore, “when compared to an adult murderer, a

juvenile offender who did not kill or intend to kill has a twice diminished moral

culpability.” Id.

      The Court then extensively detailed the consequences of being

sentenced to LWOP. It stated that LWOP is

      the second most severe penalty permitted by law. It is true that
      a death sentence is unique in its severity and irrevocability, yet
      [LWOP] sentences share some characteristics with death
      sentences that are shared by no other sentences. The State does
      not execute the offender sentenced to [LWOP], but the sentence
      alters the offender’s life by a forfeiture that is irrevocable. It
      deprives the convict of the most basic liberties without giving hope
      of restoration, except perhaps by executive clemency—the remote
      possibility of which does not mitigate the harshness of the
      sentence. . . . [T]his sentence means denial of hope; it means
      that good behavior and character improvement are immaterial; it
      means that whatever the future might hold in store for the mind
      and spirit of the convict, he [or she] will remain in prison for the
      rest of his [or her] days.

                                      ***

      [LWOP] is an especially harsh punishment for a juvenile. Under
      this sentence a juvenile offender will on average serve more years
      and a greater percentage of his [or her] life in prison than an adult
      offender. A 16–year–old and a 75–year–old each sentenced to
      [LWOP] receive the same punishment in name only. This reality
      cannot be ignored.

Graham, 560 U.S. at 69-71.

      The Court therefore held that “penological theory is not adequate to

justify [LWOP] for juvenile nonhomicide offenders. This determination; the



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limited culpability of juvenile nonhomicide offenders; and the severity of

[LWOP] sentences all lead to the conclusion that” sentencing juveniles to

LWOP for nonhomicide offenses violates the Eighth Amendment’s prohibition

against cruel and unusual punishment. Id. at 74. The Court’s most directly

relevant holding, for the issues we confront today, was that “[a] State is not

required to guarantee eventual freedom to a juvenile offender convicted of

a nonhomicide crime. What the State must do, however, is give defendants

[] some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” Id. at 75.

            v. Miller v. Alabama

      As noted above, Graham applied only to juvenile offenders convicted of

nonhomicide offenses.    Seven years later, however, the Court examined

whether LWOP sentences for juvenile homicide offenders violated the Eighth

Amendment.     In Miller, the Court held that statutory schemes such as

Pennsylvania’s, which imposed mandatory LWOP for certain homicide

convictions, constituted cruel and unusual punishment when applied to

juvenile homicide offenders.

      The Court began by reviewing the socioscientific evidence that it

considered in Roper and Graham.              It reaffirmed “that children are

constitutionally different from adults for purposes of sentencing.    Because

juveniles have diminished culpability and greater prospects for reform, [] they

are less deserving of the most severe punishments.”       Id. at 469 (internal



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quotation marks and citation omitted). The Court next found that there was

no reason to differentiate Graham, which addressed juvenile offenders

convicted of nonhomicide offenses, from juveniles convicted of homicide

offenses. Instead, the Court found that

      the mandatory penalty schemes at issue [in Miller] prevent the
      sentencer[11] from taking account of these [socioscientific]
      considerations.   By removing youth from the balance—by
      subjecting a juvenile to the same [LWOP sentence] applicable to
      an adult—these laws prohibit a sentencing authority from
      assessing whether the law’s harshest term of imprisonment
      proportionately punishes a juvenile offender.

Id. at 474. The Court thus held that a juvenile homicide defendant can only

be sentenced to LWOP if he or she is permanently incorrigible, irreparably

corrupt, or irretrievably depraved. See id. at 471, 473, 479-480 (citations

omitted).

            vi. Montgomery v. Louisiana

      After Miller, juvenile offenders who were sentenced to LWOP under

prior statutory schemes began filing requests for collateral relief arguing that

Miller applied retroactively.12   In Montgomery, the Supreme Court of the




11 Although in Pennsylvania, and most other jurisdictions, the trial court
determines the appropriate sentence for a crime, in some states, juries can
determine the appropriate sentence. For example, a defendant in Texas has
the right to demand that the jury determine the appropriate sentence. See
Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006).

12Our Supreme Court originally held that Miller did not apply retroactively to
cases on collateral review. Commonwealth v. Cunningham, 81 A.3d 1, 9–
11 (Pa. 2013).


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United States held that Miller applies retroactively to cases on collateral

review. Montgomery, 136 S.Ct. at 732-737.

        After setting forth the framework for determining if a new rule of

constitutional law applies retroactively, see generally Teague v. Lane, 489

U.S. 288 (1989) (O’Connor, J., opinion announcing the judgment of the court),

the Court considered whether the rule announced in Miller was substantive

or procedural in nature. If a new constitutional rule is substantive, it applies

retroactively; however, if a new constitutional rule is procedural, it only

applies retroactively if it is a watershed rule of criminal procedure.

Montgomery, 136 S.Ct. at 728 (citation omitted).

        The Court held that the rule announced in Miller was substantive and

not procedural in nature. Id. at 732-736. The Court reasoned that “[t]he

foundation stone for Miller’s analysis was [its] line of precedent holding

certain punishments disproportionate when applied to juveniles.” Id. at 732

(internal quotation marks and citation omitted). Miller, therefore, expressly

limited the circumstances under which a juvenile homicide offender may be

sentenced to LWOP.        Id. at 733-734.      Hence, it “did more than require a

sentencer to consider a juvenile offender’s youth before imposing [LWOP.]”

Id. at 734. Instead, it barred a category of punishment, LWOP, for a class of

offenders, juvenile homicide offenders capable of rehabilitation. See id. The

Court    held   that,   “[t]o   be   sure,   Miller’s   holding   has   a   procedural

component. . . . Those procedural requirements do not, of course, transform



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substantive rules into procedural ones.” Id. at 734-735. Accordingly, the

Court held that Miller applied retroactively to cases on collateral review.

       4. Statutory Reform

      In response to Miller, our General Assembly enacted 18 Pa.C.S.A.

§ 1102.1. See 2012 P.L. 1655. Section 1102.1 provides that an individual

between the ages of 15 and 17 years old convicted of first-degree murder

after June 24, 2012 must be sentenced to a maximum term of life

imprisonment.     18 Pa.C.S.A. § 1102.1(a)(1).        The minimum term of

imprisonment for such an offender can be set anywhere from 35 years to life,

i.e., LWOP. See id.

      Section 1102.1 also provides that an individual under 15 years old

convicted of first-degree murder after June 24, 2012 must be sentenced to a

maximum term of life imprisonment.        18 Pa.C.S.A. § 1102.1(a)(2).        The

minimum term of imprisonment for such an offender can be set anywhere

from 25 years to life, i.e., LWOP. See id.

      Section 1102.1 provides that an individual between the ages of 15 and

17 years old convicted of second-degree murder after June 24, 2012 must be

sentenced to a maximum term of life imprisonment.                18 Pa.C.S.A.

§1102.1(c)(1). The minimum term of imprisonment for such an offender can

be set anywhere from 30 years to life, i.e., LWOP. See id.

      Section 1102.1 further provides that an individual under 15 years old

convicted of second-degree murder after June 24, 2012 must be sentenced to



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a maximum term of life imprisonment. 18 Pa.C.S.A. § 1102.1(c)(2). The

minimum term of imprisonment for such an offender can be set anywhere

from 20 years to life, i.e., LWOP. See id.

      Under the current statutory framework, a juvenile who commits first or

second-degree murder must be charged as an adult. A defendant can then

request that his or her case be transferred to the Juvenile Division. See 42

Pa.C.S.A. § 6355. If the trial court refuses to transfer the case to the Juvenile

Division, and the juvenile is convicted of first or second-degree murder, the

trial court must sentence the juvenile to a maximum term of life

imprisonment. Moreover, the mandatory minimum sentences set forth above

apply only to juveniles convicted of first or second-degree murder after June

24, 2012. Section 1102.1 does not prescribe minimum sentences for juvenile

homicide defendants who, like Appellant, were convicted of first or second-

degree murder before June 24, 2012. Hence, the trial court had the discretion

to sentence Appellant to any minimum sentence it considered appropriate.

       5. Our Supreme Court’s Batts II Decision

      Although Miller held that a juvenile homicide offender may only be

sentenced to LWOP if he or she is permanently incorrigible, irreparably

corrupt, or irretrievably depraved, neither Miller nor Montgomery set forth

procedural requirements for this determination. Moreover, after Miller, many

juvenile offenders who had been convicted of first or second-degree murder

argued that trial courts lacked statutory authority to sentence them to a term



                                     - 20 -
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of life imprisonment. Our Supreme Court addressed these important issues

in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”).13

As for the latter issue, our Supreme Court held that:

      For those defendants for whom the sentencing court determines
      a [LWOP] sentence is inappropriate, it is our determination here
      that they are subject to a mandatory maximum sentence of life
      imprisonment as required by section 1102(a), accompanied by a
      minimum sentence determined by the common pleas court upon
      resentencing[.]

Id. at 421 (internal alteration, quotation marks, and citations omitted).14

Thus, our Supreme Court rejected Batts’ argument that the trial court lacked

authority to impose life imprisonment.

      A juvenile offender who challenges a LWOP sentence raises issues that

involve mixed questions of fact and law.           Id. 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


13 Our Supreme Court referred to Commonwealth v. Batts, 66 A.3d 286 (Pa.
2013) as Batts I. Thus, although we only discuss the 2017 case, we refer to
it as Batts II to be consistent with prior decisions of this Court.

14 Section 1102 sets forth the mandatory sentence of life in prison for a
defendant convicted of first- or second-degree murder. Our Supreme Court
did not find that section 1102 is unconstitutional in light of Miller. Instead, it
found that 61 Pa.C.S.A. § 6137(a)(1) (which prohibits parole for a defendant
serving life imprisonment) is unconstitutional when applied to juvenile
homicide offenders capable of rehabilitation. See Batts II, 163 A.3d at 421.
Thus, section 1102 remains applicable to juveniles who were convicted of first-
or second-degree murder prior to June 25, 2012.


                                     - 21 -
J-A21018-17


question of law subject to de novo review.        Id. at 435.      To the extent,

however, the determination is based on 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.

       After deciding the merits of Batts’ appeal, our Supreme Court

“exercise[d its] constitutional power of judicial administration to devise a

procedure for the implementation of the Miller and Montgomery decisions

in Pennsylvania.”    Id. at 451 (internal quotation marks omitted).          Our

Supreme Court “conclude[d] that in Pennsylvania, a faithful application of the

holding in Miller, as clarified in Montgomery, requires the creation of a

presumption against sentencing a juvenile offender to [LWOP].” Id. at 452.

The adoption of any other presumption would be contrary to “the central

premise of Roper, Graham, Miller[,] and Montgomery—that as a matter of

law, juveniles are categorically less culpable than adults.” Id.

       Having determined that there is a presumption against juvenile LWOP

sentences, our Supreme Court considered the burden of proof the

Commonwealth must meet in order to establish that a juvenile offender is

incapable of rehabilitation.   It held that the Commonwealth must prove a

juvenile is incapable of rehabilitation beyond a reasonable doubt. Id. at 452-

455.   Our Supreme Court reasoned that “[t]he risk of an erroneous decision

against the offender would result in the irrevocable loss of that liberty for the

rest of his or her life.” Batts II, 163 A.3d at 454. Moreover, our Supreme



                                     - 22 -
J-A21018-17


Court found that “an erroneous decision in favor of the offender . . . carries

minimal risk; if the juvenile offender is one of the very rare individuals who is

incapable of rehabilitation, he or she simply serves the rest of the life sentence

without ever obtaining release on parole.” Id. Our Supreme Court held that

the only evidentiary burden which properly balanced these interests was that

of proof beyond a reasonable doubt.       See id. at 455 (reading Miller and

Montgomery to require “near certainty” in the finding that a juvenile is

incapable of rehabilitation).      Our Supreme Court also held that the

Commonwealth must provide “reasonable notice to the defendant” if it seeks

to pursue a LWOP sentence. Id.

      Batts argued that the Commonwealth needed to produce expert

testimony to satisfy its burden of proof. Although declining to impose such a

requirement, our Supreme Court warned that, “it is difficult to conceive of a

case where the Commonwealth would not proffer expert testimony and where

the sentencer would not find expert testimony to be necessary.” Id. at 456.

      Batts also argued, that under Apprendi v. New Jersey, 530 U.S. 466

(2000) and Alleyne v. United States, 133 S.Ct. 2151 (2013), the finding

that a juvenile offender is incapable of rehabilitation must be made by a jury.

Our Supreme Court rejected this argument and noted that the Supreme Court

of the United States held “that the decision of whether to sentence a juvenile

to [LWOP] could be made by a judge.”           Batts II, 163 A.3d at 456, citing

Montgomery, 136 S.Ct. at 733.         Our Supreme Court also rejected Batts’



                                      - 23 -
J-A21018-17


contention that all appeals from juvenile LWOP sentences should be taken

directly to our Supreme Court.         Instead, the court held that it lacked

jurisdiction to promulgate such a rule.        See id. at 457.     With this legal

background in mind, we turn to Appellant’s challenges to the legality of his

sentence.

        B. Invalidity of First and Second-Degree Murder Statutes

      In his first issue, Appellant argues that, because Miller rendered

Pennsylvania’s prior statutory scheme unconstitutional, his sentence is illegal.

According to Appellant, because there was no valid statutory scheme to

prescribing his sentence for first-degree murder, the trial court had to

sentence him under the scheme for third-degree murder. Therefore, Appellant

argues that he was only subject to a maximum sentence of 20 years’

imprisonment. As counsel for Appellant correctly noted at oral argument, our

Supreme Court’s decision in Batts II makes clear that the trial court was

required to sentence Appellant, who was convicted of first-degree murder, to

a maximum term of life imprisonment. Commonwealth v. Seskey, 170 A.3d

1105, 1106 (Pa. Super. 2017) (footnote omitted); Batts II, 163 A.3d at 421.

In other words, there was valid statutory authority to impose a maximum

sentence of life imprisonment for Appellant’s first-degree murder conviction.

Accordingly, Appellant is not entitled to relief on his first claim of error.

        C. De Facto Life Sentence Claim




                                      - 24 -
J-A21018-17


      In his second issue, Appellant argues that his sentence is illegal because

a term of 60 years to life imprisonment is a de facto LWOP sentence. Appellant

contends that, under Miller and Batts II, a de facto LWOP sentence for a

juvenile homicide offender is unconstitutional unless the trial court finds that

the Commonwealth proved, beyond a reasonable doubt, that the juvenile

offender is incapable of rehabilitation. Here, the trial court explicitly found

that Appellant is capable of rehabilitation.      N.T., 7/5/16, at 166-169.

Therefore, we must determine whether, under such circumstances, de facto

LWOP sentences are barred by Miller and, if they are, whether Appellant’s

sentence constitutes an unlawful punishment.

        1. Constitutionality of De Facto Life Sentences

      The Supreme Court of the United States, our Supreme Court, and this

Court have not decided whether de facto LWOP sentences are constitutional

under Miller when the trial court finds that the defendant is capable of

rehabilitation.   Similarly, the Supreme Court of the United States, our

Supreme Court, and this Court have not determined whether, in light of

Graham, de facto LWOP sentences are permitted for juveniles convicted of

nonhomicide offenses.15 Courts in other jurisdictions have addressed these



15 In the present circumstances, cases addressing Graham are equally as
applicable and persuasive as those addressing Miller. Graham categorically
barred LWOP sentences for juvenile nonhomicide offenders, while Miller
placed the same categorical bar on juvenile homicide offenders unless the trial
court finds that the juvenile is incapable of rehabilitation. We are not
persuaded that the required finding in Miller means that de facto LWOP



                                     - 25 -
J-A21018-17


issues, as well as related questions such as whether the validity of a sentence

turns on the aggregate punishment imposed or focuses upon the separate

punishments issued for multiple offense.      Our analysis thus considers the

constitutionality of de facto LWOP sentences, together with the propriety of

the punishment imposed in this case, with a view toward the emerging body

of relevant and persuasive case law.

      After careful consideration, we hold 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. In Miller, the Supreme

Court of the United States held that states must provide a juvenile convicted

of a homicide offense a meaningful opportunity to obtain release based on



sentences for juvenile homicide offenders capable of rehabilitation are more
appropriate than de facto LWOP sentences for juvenile nonhomicide offenders.
We likewise cannot construct a viable argument for why to treat them
differently.

The threshold question under both Graham and Miller, and one we answer
here, is whether a term-of-years sentence that appears to exceed a juvenile
defendant’s life expectancy constitutes a de facto LWOP sentence that entitles
the defendant to protection under Graham and Miller. In other words, the
threshold issue is the same under both Graham and Miller. Only after the
threshold issue is resolved does the analysis under Miller differ from the
analysis under Graham. Under Miller and Batts II, a LWOP sentence is
constitutional if, and only if, the trial court finds, beyond a reasonable doubt,
that the juvenile homicide defendant is incorrigible. Under Graham, a LWOP
sentence may never be imposed on a nonhomicide juvenile offender. For
these reasons, Graham, and its progeny, are highly relevant and persuasive
in examining whether lengthy term-of-years or de facto LWOP sentences
remain lawful punishments for juvenile offenders.



                                     - 26 -
J-A21018-17


demonstrated maturity and rehabilitation unless the sentencing authority

finds that the juvenile is incapable of rehabilitation. See Miller, 569 U.S. at

479, citing Graham, 560 U.S. at 75.

      At the time of the Miller decision, Alabama, along with Pennsylvania

and many other states, required sentencing authorities to impose LWOP

sentences upon juvenile homicide offenders. Thus, in Miller, the Supreme

Court of the United States confronted a case in which the juvenile was

sentenced to a de jure LWOP sentence instead of a de facto LWOP sentence.

The Court, therefore, could have omitted the language regarding a juvenile

having a meaningful opportunity for release if it so chose. It could have simply

stated that de jure LWOP sentences violate the Eighth Amendment when

imposed on juveniles capable of rehabilitation. Instead, it broadly stated that

juveniles are entitled to a meaningful opportunity for release. We find this to

be a strong indication that the Supreme Court of the United States was more

focused on the practical realities of a sentence than the name assigned to a

sentence. See State ex rel. Morgan v. State, 217 So.3d 266, 273 (La.

2016); Casiano v. Commissioner of Correction, 115 A.3d 1031, 1047

(Conn. 2015), cert. denied, 136 S.Ct. 1364 (2016); Henry v. State, 175

So.3d 675, 679 (Fla. 2015), cert. denied, 136 S.Ct. 1455 (2016).

      Courts should not circumvent the prohibition on LWOP sentences by

imposing lengthy term-of-years punishments that equate to the unlawful

sanction.   See State v. Moore, 76 N.E.3d 1127, 1140 (Ohio 2016), cert.



                                     - 27 -
J-A21018-17


denied, 138 S.Ct. 62 (2017) (A sentencer “that imposed an unconstitutional

[LWOP] sentence on a juvenile offender [cannot] correct Eighth Amendment

deficiencies upon remand by resentencing the defendant to a term-of-years

sentence when parole would be unavailable until after the natural life

expectancy of the defendant[.]”); McKinley v. Butler, 809 F.3d 908, 911

(7th Cir. 2016). As lengthy term-of-years sentences that constitute de facto

LWOP punishments attempt such circumvention, like de jure LWOP sentences,

they constitute cruel and unusual punishments barred by the Eighth

Amendment when imposed on juvenile offenders.

      Permitting de facto LWOP sentences for juvenile homicide offenders

capable of rehabilitation but prohibiting de jure LWOP sentences for the same

class of offenders places form over substance. See State v. Zuber, 152 A.3d

197, 211 (N.J. 2017), cert. denied, 138 S.Ct. 152 (2017) (“It does not matter

to the juvenile whether he faces formal [LWOP] or multiple term-of-years

sentences that, in all likelihood, will keep him in jail for the rest of his life. We

believe it does not matter for purposes of [Graham or Miller.]”); Morgan,

217 So.3d at 274; People v. Reyes, 63 N.E.3d 884, 888 (Ill. 2016); Bear

Cloud v. State, 334 P.3d 132, 143 (Wyo. 2014); State v. Null, 836 N.W.2d

41, 72 (Iowa 2013).

      As the United States Supreme Court has often noted in criminal cases,

“form is not to be exalted over substance.” Blueford v. Arkansas, 566 U.S.

599 (2012), quoting Sanabria v. United States, 437 U.S. 54, 66 (1978);



                                       - 28 -
J-A21018-17


Barefoot v. Estelle, 463 U.S. 880, 892 (1983), superseded by statute on

other grounds, 28 U.S.C. § 2253; United States v. DiFrancesco, 449 U.S.

117, 142 (1980) (citations omitted); Escobedo v. Illinois, 378 U.S. 478, 486

(1964). Similarly, our Supreme Court and this Court routinely refuse to place

form over substance in criminal matters. Commonwealth v. Marshall, 810

A.2d 1211, 1218 (Pa. 2002) (Zappala, C.J., opinion announcing the judgment

of the court), citing Commonwealth v. Jermyn, 533 A.2d 74, 87 (Pa. 1987);

Commonwealth        v.   Kunish,   602   A.2d   849,   851   n.2   (Pa.   1992);

Commonwealth v. Farrow, 168 A.3d 207, 219 (Pa. Super. 2017);

Commonwealth v. Perrin, 108 A.3d 50, 53 (Pa. Super. 2015) (citation

omitted). We again refuse to place form over substance when determining if

a juvenile capable of rehabilitation will ever have the chance to walk free.

      Finally, we note that this holding is consistent with the tide of decisions

by the Supreme Court of the United States regarding juvenile sentencing. As

we have detailed at length above, for the past several decades the Court has

dramatically shifted our nation’s jurisprudence in this area. As recently as

1987, it was permissible to execute an individual under 16 years old.

Beginning with Thompson in 1988, the Court quickly outlawed execution for

juveniles under 16, execution for all juveniles in Roper, LWOP for

nonhomicide juvenile offenders in Graham, and finally mandatory LWOP for

juvenile homicide offenders in Miller. Thus, the clear trend is to limit the

maximum penalty to which juvenile offenders are exposed. Finding de facto



                                     - 29 -
J-A21018-17


LWOP sentences unconstitutional under Graham and Miller is consistent with

this trend. For all the above stated reasons, we hold that a trial court may

not impose a term-of-years sentence on a juvenile convicted of homicide if

that term-of-years sentence equates to a de facto LWOP sentence unless it

finds, beyond a reasonable doubt, that the juvenile is incapable of

rehabilitation.

        We find unpersuasive the reasoning of courts which have upheld de facto

LWOP sentences under Graham or under Miller for juvenile defendants

capable of rehabilitation.16    See State v. Nathan, 522 S.W.3d 881 (Mo.

2017); State v. Ali, 895 N.W.2d 237 (Minn. 2017), cert. denied, 2018 WL

311461 (U.S. Jan. 8, 2018); Lucero v. People, 394 P.3d 1128 (Colo. 2017),

cert.   denied,   2018   WL    311464     (U.S.   Jan.   8,   2018);   Vazquez   v.

Commonwealth, 781 S.E.2d 920 (Va. 2016), cert. denied, 137 S.Ct. 568

(2016); Brown v. State, 10 N.E.3d 1 (Ind. 2014); Diamond v. State, 419

S.W.3d 435, 440 (Tex. App. 2012). These decisions focused on the specific


16 Many of these courts cited the United States Court of Appeals for the Sixth
Circuit’s decision in Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012), cert.
denied, 569 U.S. 947 (2013). Bunch, however, was a federal habeas corpus
case brought under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Under AEDPA, relief may only be granted if the state court
decision is “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States.” Kernan v. Cuero, 138 S.Ct. 4, 5 (2017) (per curiam), quoting 28
U.S.C. § 2254(d)(1). Hence, we find Bunch inapposite when considering the
question presented in this case. Cf. Virginia v. LeBlanc, 137 S.Ct. 1726
(2017) (per curiam) (holding that geriatric release program in Virginia does
not violate clearly established federal law as announced in Graham).



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holdings in Graham and Miller.      Those courts noted that, because of the

factual scenarios presented in Graham and Miller, the Court invalidated only

LWOP sentences for juveniles convicted of nonhomicide offenses and juvenile

homicide offenders capable of rehabilitation. Thus, those courts found that de

facto LWOP sentences are not barred by Graham and Miller. In other words,

because the Graham and Miller decisions were not directly on point, the

courts refused to apply the decisions in those cases.

      We do not believe that is the appropriate standard in the case sub judice.

When interpreting decisions of the Supreme Court of the United States, our

Supreme Court, and this Court apply the “logical inference[s]” of those

decisions. Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.

2015); see Norton v. Glenn, 860 A.2d 48, 54 (Pa. 2004).               In other

jurisdictions, courts are sometimes reluctant to extend the reach of decisions

of the Supreme Court of the United States, even when the inference of the

decisions is clear. In Pennsylvania, however, both our Supreme Court and

this Court faithfully execute the United States Supreme Court’s decisions –

including the logical inferences thereof.    See Batts II 163 A.3d at 455

(applying the logical inferences of Miller and Montgomery). Thus, we find

those cases which narrowly construed the holdings in Graham and Miller,

and rejected their logical inferences, unpersuasive. Accordingly, we hold that

de facto life sentences are cruel and unusual punishment when imposed on




                                    - 31 -
J-A21018-17


juveniles convicted of nonhomicide offenses or juvenile homicide offenders

capable of rehabilitation.

        2. Consideration of Aggregate Sentence

      Having determined that de facto LWOP sentences are barred by Miller

if, as in the case at bar, the trial court fails to find that the juvenile homicide

defendant is incapable of rehabilitation, we next evaluate Appellant’s sentence

to determine if he received a de facto LWOP sentence.           As noted above,

Appellant received 30 years to life imprisonment for each of two counts of

first-degree murder and the trial court ordered those sentences to run

consecutively.   Hence, he received an aggregate term of 60 years to life

imprisonment. Appellant, who conceded at oral argument that the sentences

for the individual homicide counts in this case are constitutional, argues that

we must look at the aggregate sentence when determining if he received a de

facto LWOP sentence. Put differently, Appellant argues that we must consider

whether a sentence of 60 years to life constitutes a de facto LWOP sentence.

The Commonwealth argues that we must examine each individual sentence

separately. In other words, the Commonwealth argues that we must consider

whether a sentence of 30 years to life constitutes a de facto LWOP sentence.

      Neither the Supreme Court of the United States nor our Supreme Court

has addressed this issue.17 That said, this issue has arisen in our sister states



17We disagree with the Supreme Court of Nevada’s decision that this silence
implicitly means that we must consider the aggregate sentence. See State



                                      - 32 -
J-A21018-17


where courts reached differing conclusions on whether individual sentences or

the aggregate sentence determine the presence of a de facto LWOP sentence.

Compare McCullough v. State, 168 A.3d 1045, 1065-1070 (Md. Spec. App.

2017), appeal granted, 171 A.3d 612 (Md. 2017) (individual); Morgan, 217

So.3d at 271 (same); State v. Kasic, 265 P.3d 410 (Ariz. App. 2011) (same)

with Zuber, 152 A.3d at 212 (aggregate); State v. Ramos, 387 P.3d 650,

660 (Wash. 2017), cert. denied, 138 S.Ct. 467 (2017) (same); Moore, 76

N.E.3d at 1141-1143 (same); Reyes, 63 N.E.3d at 888 (same); State v.

Boston, 363 P.3d 453, 457 (Nev. 2015) (same); Henry, 175 So.3d at 679-

680 (same); Null, 836 N.W.2d at 73-74 (same); Bear Cloud, 334 P.3d at

1143 (same); People v. Caballero, 282 P.3d 291, 295 (Cal. 2012) (same).

After careful consideration of this persuasive authority, together with this

Commonwealth’s sentencing jurisprudence, we hold that, when considering

the constitutionality of a sentence, the individual sentences must be

considered when determining if a juvenile received a de facto LWOP sentence.

      We       begin   by   examining   Pennsylvania    jurisprudence   regarding

sentencing for multiple convictions.       It is well settled that “imposition of

consecutive rather than concurrent sentences rests within the trial court’s

discretion.”    Commonwealth v. Harvard, 64 A.3d 690, 703 (Pa. Super.

2013), appeal denied, 77 A.3d 636 (Pa. 2013) (citation omitted). Moreover,




v. Boston, 363 P.3d 453, 457 (Nev. 2015).              Instead, it requires us to
undertake the analysis set forth in this opinion.


                                        - 33 -
J-A21018-17


extensive case law in this jurisdiction holds that defendants convicted of

multiple offenses are not entitled to a “volume discount” on their aggregate

sentence. Commonwealth v. Green, 149 A.3d 43, 54 (Pa. Super. 2016),

appeal denied, 168 A.3d 1255 (Pa. 2017) (citation omitted); Commonwealth

v. Brown, 145 A.3d 184, 188 (Pa. Super. 2016), appeal denied, 165 A.3d

892 (Pa. 2017) (citation omitted); Commonwealth v. Bonner, 135 A.3d

592, 605 (Pa. Super. 2016), appeal denied, 145 A.3d 161 (Pa. 2016) (citations

omitted); Commonwealth v. Swope, 123 A.3d 333, 341 (Pa. Super. 2015)

(citation omitted); Commonwealth v. Zirkle, 107 A.3d 127, 134 (Pa. Super.

2014), appeal denied, 117 A.3d 297 (Pa. 2015).

      Pennsylvania courts have considered aggregate sentences only when

reviewing discretionary sentencing determinations.        Those cases are,

however, easily distinguishable from the present circumstances. For example,

in Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008), appeal

denied, 980 A.2d 605 (Pa. 2009), the defendant was sentenced to an

aggregate term of approximately 52½ to 111 years’ imprisonment for 37

burglary convictions. This Court vacated the sentence finding that imposition

of serial consecutive terms was clearly unreasonable and that the trial court

abused its discretion in imposing the sentence. Id. at 1202. In other words,

this Court granted relief on Dodge’s challenge to the discretionary aspects of

his sentence. See id. This Court did not treat Dodge’s claim as an attack on

the legality of his sentence. Thus, Dodge and similar cases suggest strongly



                                    - 34 -
J-A21018-17


that Pennsylvania law considers the aggregate term of a sentence only when

the discretionary aspects of multiple punishments are under review.18 In this

case, Appellant asks us to declare unlawful the trial court’s discretionary

determination to impose consecutive (but independently valid) punishments

for a double murder conviction under principles of the Eighth Amendment.

This position enjoys no support under Pennsylvania law and runs contrary to

decisions that have previously addressed the claim. Cf. Kasic, 265 P.3d at

415 (Because defendants have no constitutional right to have their sentences

for separate offenses run concurrently, if a sentence for a particular offense is

constitutional, it does not become unconstitutional “merely because it is

consecutive to another sentence for a separate offense or because the




18 We believe that the Supreme Court of Iowa and the Supreme Court of Ohio’s
rationales for considering a defendant’s aggregate sentence are flawed. Those
courts relied on the fact that the defendants in Miller and Graham were
convicted of multiple crimes, yet the Supreme Court of the United States did
not address that fact. See Moore, 76 N.E.3d at 1141-1142 (addressing claim
that 112-year sentence for multiple nonhomicide offenses violated Graham);
Null, 836 N.W.2d at 73 (addressing claim that a lengthy prison term for one
homicide and one nonhomicide offense violated Graham and Miller). The
United States Supreme Court did not address the issue in Miller and Graham
because the defendants in those cases were sentenced to LWOP for a single
homicide and nonhomicide offenses respectively. Thus, their sentences for
the other offenses were immaterial to its decisions. As for the decisions to
grant, vacate, and remand (“GVR”) cases after Miller, a GVR for consideration
in light of a recent Supreme Court of the United States decision is not a merits
determination. See Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001). Instead,
it is merely directing the lower court to consider the case anew given the
recent decision. See Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163,
167 (1996) (per curiam). Thus, nothing in Miller or Graham, or the GVRs
that followed, indicate that we must consider the aggregate sentence instead
of the individual sentences.


                                     - 35 -
J-A21018-17


consecutive sentences are lengthy in [the] aggregate.”).           We reject

Appellant’s effort to invalidate the legality of his sentence under principles

traditionally confined to discretionary sentencing review.

      Adoption of Appellant’s view would not only abandon well-settled rules

of Pennsylvania sentencing law, it would open the door to volume sentencing

discounts in cases involving multiple juvenile homicide offenses.    Juvenile

perpetrators convicted of multiple homicides would routinely be subject to

concurrent terms of imprisonment if the Commonwealth was unable to sustain

its burden of proof under Miller and Batts II and juvenile offenders would

receive volume discounts for their crimes.      As noted above, if Appellant

committed these murders after June 24, 2012, he would have been subject to

a 35-year mandatory minimum sentence. 18 Pa.C.S.A. § 1102.1(a)(1). The

trial court sentenced Appellant to a shorter term of imprisonment for each

homicide because of its determination that he was capable of rehabilitation.

Now, Appellant seeks an even further reduction in the sentence imposed for

each homicide offense.

      We recognize the rationale in Roper, Graham, and Miller regarding

the decreased deterrent effect that accompanies harsher punishments for

juveniles.   See Miller, 567 U.S. at 472, citing Graham, 560 U.S. at 72;

Roper, 543 U.S. at 571. This rationale, however, is limited to the maximum

possible penalty for an offense. Contrary to the arguments made by Appellant

at oral argument, there is nothing in Roper, Graham, and/or Miller that



                                    - 36 -
J-A21018-17


speaks to volume discounts for multiple crimes.          As discussed above,

Pennsylvania has long disavowed the concept of volume discounts for

committing multiple crimes.

      Roper, Graham, and Miller all were based, at least in part, on a

national consensus against a class of punishment, e.g., LWOP for juvenile

homicide offenders capable of rehabilitation.     The United States Supreme

Court has never found such a consensus against the imposition of consecutive

term-of-years sentences for multiple offenses. We are similarly unaware of

any movement by states to ban the practice. Again, consecutive imposition

of independently valid punishments is a distinctly discretionary function of the

sentencing authority.   Although some courts have found that the practice

violates Graham and Miller, this differs from an organic, state-level

determination that the practice is cruel and unusual. Thus, the foundations of

Roper, Graham, and Miller, the national consensus against a class of

punishment, is lacking with respect to imposing consecutive term-of-years

sentences for multiple offenses.     Cf. Thompson, 487 U.S. at 821-822

(explaining that the Court looks to organic state-level developments when

deciding if a sentence is cruel and unusual).

      We find persuasive the reasoning of the Court of Special Appeals of

Maryland in McCullough. As the McCullough court astutely noted, Miller’s

other lynchpin is that it is inappropriate for a state legislature to make a

categorical, irrevocable judgment about a juvenile homicide offender’s



                                     - 37 -
J-A21018-17


potential for rehabilitation. McCullough, 168 A.3d at 1067. When a trial

court imposes multiple term-of-years sentences, it is not making such a

determination. Instead, it is making a series of determinations about what

the appropriate sentence is for each offense. Barring trial courts from running

such sentences consecutively would strip them of their traditional, statutory

duty to make such determinations regarding each offense committed. See

42 Pa.C.S.A. § 9721(a).

      We also agree with the McCullough court that permitting consecutive

term-of-years sentences “is not a same sentence different label situation.”

McCullough, 168 A.3d at 1069. As noted above, we refuse to place form

over substance with respect to de facto LWOP sentences.              Imposing

consecutive term-of-years sentences for multiple offenses, however, is not

placing form over substance. To the contrary, such punishments consider the

substance of each individual sentence.19 For this reason, the Supreme Court



19 We also find persuasive the dicta from O’Neil v. Vermont, 144 U.S. 323
(1892), relied on by the Special Court of Appeals of Maryland. In that case,
the defendant was sentenced to an aggregate term of over 54 years’
imprisonment for selling liquor without a license. On appeal to the Supreme
Court of Vermont, he argued that the sentence violated the Eighth
Amendment of the United States Constitution. The Supreme Court of Vermont
upheld the sentence and the defendant sought review by the Supreme Court
of the United States. The Court held that it lacked jurisdiction over the case
because the defendant failed to raise the Eighth Amendment claim in his
petition for review. The Court found that the Supreme Court of Vermont’s
decision rested on independent and sufficient state law grounds as to the
question presented in the petition for review. Hence, it raised no question of
federal law. See id. at 335-337.




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of New Jersey’s reasoning for examining the aggregate sentence is flawed.

See Zuber, 152 A.3d at 212 (concluding that a court must examine the

practical realities of aggregate sentences).

      We disagree with the reasoning of those courts that have examined the

aggregate sentence instead of the individual sentences. Determining whether



Nonetheless, the Court quoted the Supreme Court of Vermont’s disposition of
the cruel and unusual punishment issue:

      It would scarcely be competent for a person to assail the
      constitutionality of the statute prescribing a punishment for
      burglary on the ground that he had committed so many burglaries
      that, if punishment for each were inflicted on him, he might be
      kept in prison for life. The mere fact that cumulative punishments
      may be imposed for distinct offenses in the same prosecution is
      not material upon this question. If the penalty were unreasonably
      severe for a single offense, the constitutional question might be
      urged; but here the unreasonableness is only in the number of
      offenses which the respondent has committed.

Id. at 331, quoting State v. Four Jugs of Intoxicating Liquor, 2 A. 586,
593 (Vt. 1886). The Court of Special Appeals of Maryland noted that “the
O’Neil Court’s dicta has been widely followed by state and federal courts in
assessing proportionality challenges under the Eighth Amendment.”
McCullough, 168 A.3d at 1068 (collecting cases).

Justices Field, Harlan, and Brewer dissented from O’Neil. See id. at 337-366
(Field, J., dissenting); id. at 366-371 (Harlan, J., dissenting). In their view,
it was the aggregate sentence which controlled for purposes of the Eighth
Amendment. These lengthy dissents evidence that these three justices, who
were present during conference and presumably understood the majority
opinion, believed that the majority in O’Neil was quoting the passage from
the Supreme Court of Vermont with approval. Although, as noted above, the
Court dismissed the case on jurisdictional grounds, it is axiomatic that “dicta
of the [Supreme Court of the United States] should be very persuasive.”
Gabbs Expl. Co. v. Udall, 315 F.2d 37, 39 (D.C. Cir. 1963) (internal
quotation marks and citation omitted).




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J-A21018-17


the crimes occurred in one course of conduct or separate courses of conduct

is an unworkable standard and is immaterial for Eighth Amendment purposes.

But see Reyes, 63 N.E.3d at 888 (implicitly employing this rationale). For

the same reason, examining whether sentences were imposed at one

sentencing hearing or multiple sentencing hearings is inappropriate. But see

Moore, 725 F.3d at 1193 (concluding that this is the dispositive factor of

whether to consider the individual sentences or the aggregate sentence).

      In our view, whether the aggregate or individual sentences control for

purposes of Miller is the most difficult question raised in this appeal. We have

scrutinized relevant Pennsylvania case law, prior decisions of the Supreme

Court of the United States, and persuasive authority from other jurisdictions.

Although we acknowledge that there is ground for differing views, we believe

that we are on sound legal footing and consistent with Pennsylvania law.

Accordingly, we hold that we must consider the individual sentences, not the

aggregate, to determine if the trial court imposed a term-of-years sentence

which constitutes a de facto LWOP sentence.

        3. Facts of This Case

      Having determined that we must examine Appellant’s two sentences for

first-degree murder separately, we turn to whether a sentence of 30 years to

life imprisonment constitutes a de facto LWOP sentence. At oral argument,

Appellant’s counsel conceded that a sentence of 30 years to life imprisonment

does not violate Miller. Instead, she stressed the consecutive nature of the



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two sentences in this case requires vacatur of Appellant’s punishment. The

Commonwealth similarly argued that a sentence of 30 years to life does not

violate Miller. We agree.

      There are certain term-of-years sentences which clearly constitute de

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

sentence. Similarly, there are clearly sentences which do not constitute de

facto LWOP sentences. A sentence of 30 years to life falls into this category.

We are unaware of any court that has found that a sentence of 30 years to

life imprisonment constitutes a de facto LWOP sentence for a juvenile

offender. Even the study with the shortest life expectancy for an offender in

Appellant’s position places his life expectancy at 49 years, i.e., beyond 30

years. See Appellant’s Brief at 16, citing Casiano, 115 A.3d at 1046.

      We explicitly decline to draw a bright line in this case delineating what

constitutes a de facto LWOP sentence and what constitutes a constitutional

term-of-years sentence. But see Commonwealth v. Dodge, 77 A.3d 1263,

1276 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2013) (appearing to

hold that a defendant must be parole eligible before he or she turns 90 for it

not to be considered a de facto LWOP sentence). We similarly decline to set

forth factors that trial courts must consider when making this determination,

i.e., whether they must look to the life expectancy of the population as a whole

or a subset thereof and whether the defendant must be given a chance at a

meaningful post-release life. We need not confront these difficult questions



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in this case. Instead, we limit our holding to the facts of this case. A sentence

of 30 years to life imprisonment does not constitute a de facto LWOP sentence

which entitles a defendant to the protections of Miller.

       D. Discretionary Aspects of Sentencing Claim

      Having determined that Appellant’s sentence is constitutional and,

therefore, not an illegal sentence, we turn to Appellant’s alternative argument

that the trial court abused its discretion in sentencing him to two consecutive

terms of incarceration of 30 years to life. Pursuant to statute, Appellant does

not have an automatic right to appeal the discretionary aspects of his

sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this

Court for permission to appeal the discretionary aspects of his sentence. Id.

      As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

      we must engage in a four part analysis to determine: (1) whether
      the appeal is timely; (2) whether Appellant preserved his [or her]
      issue; (3) whether Appellant’s brief includes a concise statement
      of the reasons relied upon for allowance of appeal with respect to
      the discretionary aspects of sentence; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the [S]entencing [C]ode.

Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa. Super. 2017)

(citation omitted). Appellant filed a timely notice of appeal, preserved the

issue in his post-sentence motion, and included a Pennsylvania Rule of

Appellate Procedure 2119(f) statement in his appellate brief. Thus, we turn

to whether Appellant raises a substantial question.



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      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d

1086, 1090 (Pa. Super. 2017) (citation omitted).         “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 process.” Commonwealth v. Grays, 167 A.3d

793, 816 (Pa. Super. 2017) (citation omitted).

      In his Rule 2119(f) statement, Appellant argues that this case presents

a substantial question because imposing consecutive sentences for the two

murder convictions was clearly unreasonable and results in an excessive

sentence.     This   argument    presents     a   substantial   question.    See

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal

denied, 91 A.3d 161 (Pa. 2014).      Accordingly, we proceed to analyze the

merits of Appellant’s discretionary aspects challenge.

      “Sentencing is a matter vested in the sound discretion of the [trial

court], and a sentence will not be disturbed on appeal absent a manifest abuse

of discretion.” Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super.

2017) (en banc) (citation omitted). Pursuant to statute,

      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.




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42 Pa.C.S.A. § 9721(b). “The [trial] court is not required to parrot the words

of the Sentencing Code, stating every factor that must be considered under

Section 9721(b), however, the record as a whole must reflect due

consideration by the court of the statutory considerations at the time of

sentencing.” Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa. Super.

2017) (internal alterations, quotation marks, and citation omitted).

      Typically, when sentencing a defendant, the trial court is required to

consider the sentencing guidelines. Commonwealth v. Melvin, 172 A.3d

14, 21 (Pa. Super. 2017) (citation omitted).        In this case, however, no

sentencing guidelines exist for juveniles convicted of first-degree murder prior

to June 25, 2012. See id. at 22. Instead, our Supreme Court in Batts II

held that, in these cases, the applicable “sentencing guidelines” that the trial

court should consider are the mandatory minimum penalties set forth in

section 1102.1. See Batts II, 163 A.3d at 443 n.17.

      When explaining its sentence, the trial court detailed its extensive

review of the record in this case. The trial court read the gut-wrenching victim

impact statements from the original sentencing hearing on June 30, 1994.

See N.T., 7/5/16, at 155.     It also reviewed the victim impact statements

submitted for the resentencing hearing. See id. at 156. The trial court read

the transcript from the hearing on Appellant’s petition to transfer the case to

the Juvenile Division.   See id. at 155.      This led the trial court to review

Appellant’s juvenile record, which included files from the juvenile probation



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office, Children and Youth Services, and two hospitalizations.     See id.   In

addition, the trial court reviewed nine of its Rule 1925(a) opinions relating to

Appellant’s direct appeal and various PCRA petitions. See id. at 155-156.

      The trial court also reviewed the report from the prison where Appellant

was incarcerated.    Id. at 156.     This included various certifications that

Appellant received while imprisoned.     See id. at 156-157.    The trial court

reviewed some of the evidence presented at Appellant’s trial. See id. at 156.

It then considered the guidelines were Appellant to have been convicted after

June 24, 2012, along with the guidelines mandated by Batts II. See id. at

157-158.

      Next, the trial court considered the factors outlined in Batts II and

section 1102.1. It noted that Appellant was 17 years old at the time of the

murders. Id. at 159. It found that, at the time of the murders, Appellant was

reasonably mature and did not have a diminished capacity. Id. The trial court

found the circumstances of the crime “horrendous.” Id. It found Appellant

entirely responsible for the crime notwithstanding the fact that Zenker shot at

the dog. Id. at 159-160.

      The trial court found that Appellant had a difficult upbringing as he was

declared dependent as a youth. Id. at 160. It found that his neighborhood

environment was immaterial. Id. The trial court noted the emotional and

developmental problems Appellant faced when he was originally sentenced




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and the changes that had occurred over the intervening two decades. See

id. at 160-161.

       The trial court recognized that Appellant may have been using marijuana

at the time of the murders and that he did not have past exposure to violence.

Id. at 161-162. The trial court found that Appellant was able to assist his

counsel at the time of trial and that the two had a good relationship. Id. at

162.

       The trial court found that the murders had a minimal impact on the

community. Id. at 165. The trial court noted its finding that Appellant was a

threat to public safety in 1994; however, it found that threat diminished over

two decades later. Id. at 165-166. The trial court found that there was some

sophistication involved in the murders. Id. at 167.

       In short, the trial court considered all relevant documents, court filings,

reports, and testimony when sentencing Appellant. It carefully weighed all of

these factors and determined that sentences below the applicable guidelines

ranges, i.e., 30 years instead of 35 years, were appropriate in this case. Then,

the trial court reached the crux of Appellant’s discretionary aspects challenge

and explained why it chose to run Appellant’s sentences consecutively instead

of concurrently. It stated that:

       I cannot in any way rationalize a sentence that is not consecutive.
       . . . [T]here are two distinct victims. Each victim’s possible life
       and loss of life has to be recognized and has to be, in my view,
       acknowledged in the sentence. And the effect of that is that I
       have to, in my mind, run these sentences consecutively.



                                      - 46 -
J-A21018-17


N.T., 7/5/16, at 169.20

      We ascertain no abuse of discretion in this decision.      The trial court

determined that separate punishments were necessitated by the nature of the

offenses and the lives taken, notwithstanding the rehabilitation Appellant

demonstrated while imprisoned for the past two decades. Although this Court

has previously invalidated lengthy term-of-years sentences that trial courts

have run consecutively, most involved property crimes. See Dodge, 957 A.2d

at 1202. Very few have involved violent offenses. See Commonwealth v.

Coulverson, 34 A.3d 135, 138–139 (Pa. Super. 2011). This Court has never

held that running sentences for first-degree murder consecutively was an

abuse of discretion.

      Appellant will be eligible for parole when he is in his seventies. Although

he may not live this long, he has a chance of being released into society. It

was within the trial court’s discretion to conclude that an individual who

viciously took the lives of two innocent people is not entitled to be released

into society at an earlier age, even with the reduced culpability recognized in

Roper, Graham, and Miller. Accordingly, we conclude that the trial court

did not abuse its discretion in sentencing Appellant to consecutive terms of 30




20 The trial court’s extensive, well-reasoned, and on-the-record explanation of
its sentence in this case should serve as a model for all trial courts sentencing
juveniles convicted of homicide.



                                     - 47 -
J-A21018-17


years to life imprisonment and he is not entitled to relief on his discretionary

aspects challenge.21

III.   Conclusion

       In sum, we hold that a fixed term-of-years sentence can constitute a de

facto LWOP sentence and, therefore, violates Miller in certain circumstances.

We also hold that, in determining whether a fixed term-of-years sentence is a

de facto LWOP sentence, we must consider the sentence for each individual

crime separately and not the aggregate sentence imposed by the trial court.

Moreover, a sentence of 30 years to life imprisonment is not a de facto LWOP

sentence for a juvenile offender. Finally, we conclude that the trial court did

not abuse its discretion in sentencing Appellant to two consecutive terms of

30 years to life imprisonment.        Accordingly, we affirm the judgment of

sentence.


21 Under the specific facts of this case, and in light of the trial court’s detailed
factual findings at the sentencing hearing, Appellant is not entitled to relief on
his discretionary aspects claim in this case. Nonetheless, we caution trial
courts that they cannot circumvent the prohibition against sentencing juvenile
homicide offenders capable of rehabilitation or juvenile nonhomicide offenders
to LWOP by imposing consecutive, lengthy term-of-years sentences. Although
such sentences may be constitutional, they are still subject to discretionary
aspects review by this Court, which will not hesitate to vacate a sentence that
attempts such circumvention. Cf. Steven L. Chanenson, The Next Era of
Sentencing Reform, 54 Emory L.J. 377, 428 (2005) (noting that prosecutors
sometimes attempt to circumvent sentencing rules by charging defendants
with multiple offenses and then seek consecutive sentences). Trial courts
must seriously contemplate the decision to impose lengthy term-of-years
sentences and to run those sentences consecutively, instead of concurrently.
If a trial court determines that the facts in a particular case warrant
consecutive sentences, it should detail, on the record, why consecutive
sentences are appropriate.


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J-A21018-17


     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2018




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