J.S43045/14


                            2014 PA Super 252

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
IAN THOMAS SEAGRAVES,                       :
                                            :
                          Appellant         :     No. 2758 EDA 2013


          Appeal from the Judgment of Sentence September 20, 2013
               In the Court of Common Pleas of Monroe County
              Criminal Division No(s).: CP-45-CR-0000298-2009

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

DISSENTING OPINION BY FITZGERALD, J.:            FILED NOVEMBER 06, 2014

        I respectfully dissent. While Appellant argues the trial court erred in

focusing solely on decertification factors, his Pa.R.A.P. 2119(f) statement

also avers the court abused its discretion in failing to consider properly

mitigating factors due to his status as a juvenile.     In Commonwealth v.

Batts, 620 Pa. 115, 66 A.3d 286 (2013), our Supreme Court discussed

Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed. 407 (2012), in

pertinent part:

           The majority [in Miller found] individualized consideration
           of mitigating circumstances—particularly youth—was
           constitutionally required before the imposition of . . . the
           harshest sentence possible for a juvenile.             [T]he


*
    Former Justice specially assigned to the Superior Court.
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         mandatory nature of the life-without-parole sentences at
         issue precluded the sentencing court from considering
         important factors, such as chronological age, level of
         maturity, family and home environment, the circumstances
         of the offense, the extent of the juvenile’s participation in
         the unlawful conduct, the impact of familial and peer
         pressures, the juvenile’s ability to negotiate with police or
         prosecutors, and the possibility of rehabilitation. . . .

             However, the Supreme Court did not entirely foreclose
         the imposition of a life-without-parole sentence on a
         juvenile offender; rather, the majority stated that the
         occasion     for    such  a   punishment    would      be
         “uncommon,” and, in any event, must first “take into
         account how children are different, and how those
         differences counsel against irrevocably sentencing them
         to a lifetime in prison.”

Batts, 620 Pa. at 123, 66 A.3d at 290-91 (emphases added) (citations

omitted).

      At resentencing, defense counsel vigorously argued for the possibility

of parole, to permit a future parole board to examine how Appellant’s “life

has progressed.”    N.T., 9/20/13, at 6-7.   Counsel reasoned that Appellant

may not ever be paroled, but that “to close that door on him [now] is

against what the [C]onstitution stands for based on” Miller. Id. at 7.

      The majority cogently summarizes the trial court’s findings with

respect to each of the Miller factors.   However, I depart from its analysis

with respect to the finding as to whether Appellant may be amenable to

rehabilitation.   In its opinion, the trial court summarized Appellant’s past

contacts with the juvenile system and concluded Appellant “possesses a

limited, if any, capacity for change.”        Trial Ct. Op., 11/27/13, at 5



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(emphasis added). Although this statement must be considered in context

of the trial court’s lengthy discussion, I believe its equivocality does not

support an irrevocable sentence that prohibits a parole board from ever

reviewing   Appellant’s   case.    I   emphasize   Miller’s   caution   that   life

imprisonment without parole is “the harshest sentence possible for a

juvenile” and should be an “uncommon” punishment.             Batts, 620 Pa. at

123, 66 A.3d at 290-91. Accordingly, I would remand for the trial court to

reconsider the possibility of Appellant’s rehabilitation. See id.




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