J-S02042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARCUS ANTHONY RUTTER,                     :
                                               :
                       Appellant               :       No. 965 MDA 2019

       Appeal from the Judgment of Sentence Entered March 27, 2019
             in the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0000287-2015

BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: MARCH 2, 2020

       Marcus Anthony Rutter (“Rutter”) appeals from the judgment of

sentence imposed, following a remand from this Court for resentencing and

an open guilty plea to murder of the first degree, conspiracy to commit murder

of the first degree, burglary, robbery, receiving stolen property, and access

device fraud.1 We affirm.

       This Court previously summarized the factual and procedural history as

follows:
             [I]n the early morning of December 15, 2014, [Rutter], who
       was sixteen years old at the time, and an accomplice, burglarized
       the home of a thirty-two[-]year[-]old woman. [Rutter] and his
       accomplice sexually assaulted and brutally beat, stabbed, and
       strangled the victim until she died.

       ….


____________________________________________


1 18 Pa.C.S.A. §§ 2502(a), 903, 3502(a)(1), 3701(a)(1)(iv), 3925(a),
4106(a)(1)(i).
J-S02042-20


           On July 11, 2016, [Rutter] entered an open guilty plea to
     [the above-mentioned crimes]. In exchange for pleading guilty,
     the Commonwealth withdrew the charges of theft by unlawful
     taking and involuntary deviate sexual intercourse; the charge of
     conspiracy to commit burglary was replaced with conspiracy to
     commit murder. The Commonwealth agreed that it would not
     seek a sentence of life without parole, but it was also agreed that
     the sentences on each count would be served consecutively.

           On July 29, 2016, the trial court sentenced [Rutter] as
     follows: thirty-five to seventy years of incarceration for the
     murder conviction; ten to twenty years of incarceration for
     conspiracy; five and one-half to eleven years of incarceration for
     robbery; two to four years of incarceration for burglary; nine to
     twenty-four months of incarceration for receiving stolen property;
     and nine to twenty-four months of incarceration for access device
     fraud. The sentences [] were ordered to run consecutively. This
     resulted in an aggregated sentence of [54] to 109 years of
     incarceration.

           [Rutter] filed a post-sentence [M]otion asking the trial court
     to reconsider and modify the sentence. The trial court denied
     [Rutter]’s post-sentence [M]otion on November 3, 2016, and
     [Rutter filed a timely Notice of Appeal].

Commonwealth v. Rutter, 179 A.3d 591 (Pa. Super. 2017) (unpublished

memorandum at 1) (citations to record omitted).

     On direct appeal, Rutter raised the following claims:

     I. Is the aggregate sentence of the trial court the functional
     equivalent of a life sentence, affording [Rutter] no meaningful
     opportunity for release, and a violation of the Eighth and
     Fourteenth Amendments to the United States Constitution?

     II. Was the trial court’s imposition of what amounts to a de facto
     life sentence a violation of the agreement of the parties that the
     court could not impose a sentence of life without parole?

     III. Did the trial court err[] in finding that [Rutter] was
     “irretrievably depraved, irreparably corrupt, and permanently
     incorrigible,” where this finding was not supported by competent
     evidence of record or any expert witness, the finding was
     improperly based on shifting the burden of proof to [Rutter] to

                                    -2-
J-S02042-20


      prove that he would not engage in future criminal conduct, and
      the finding was used to justify a de facto life sentence, despite the
      court’s contradictory finding that [Rutter] “possesses the capacity
      for change”?

      IV. In imposing sentence, did the trial court rely on numerous
      erroneous findings of fact which were unsupported, or
      contradicted, by the record, including errors of fact in applying the
      [Miller v. Alabama, 567 U.S. 460 (2012),] youth factors and in
      considering the factors set forth in 18 Pa.C.S.[A.] § 1102.1, and
      did the court’s reliance on these erroneous findings of fact in
      imposing sentence demonstrate the court’s bias, and was it an
      abuse of the court’s discretion in imposing sentence?

      V. Was the aggregate sentence of 54 to 109 years so manifestly
      excessive as to constitute too severe a punishment, and clearly
      unreasonable under the circumstances; further, did the trial court
      focus exclusively on the nature of the offenses, despite the clear
      dictates of Roper, Miller and Montgomery,[FN] that the nature
      of the offense cannot be permitted to overshadow the possibility
      of rehabilitation in cases of juvenile offenders?

      ___________________________________________________
      [FN]Roper v. Simmons, 543 U.S. 551 … (2005) (holding that the
      Eighth Amendment to the United States Constitution prohibits the
      death penalty for a crime committed by a juvenile); Miller v.
      Alabama, 567 U.S. 460 … (2012) (concluding that mandatory
      sentences of life without parole for juveniles violates the Eighth
      Amendment’s prohibition on cruel and unusual punishment);
      Montgomery v. Louisiana, … 136 S.Ct. 718 … (2016) (finding
      that [] Miller announced a new substantive rule of constitutional
      law that applies retroactively and clarifying the limited
      circumstances in which a sentence of life without parole is
      permissible for a crime committed by a juvenile).

Id. at 2.

      On Rutter’s first four claims, this Court held that Rutter’s sentence was

not a de facto life sentence and did not violate the terms of his plea

agreement, and therefore, lacked merit. See id. at 2-4. On Rutter’s fifth

claim, this Court held that Rutter’s minimum sentence was legal, and not an


                                      -3-
J-S02042-20



abuse of discretion, but his maximum sentence of 70 years in prison violated

the holding in Commonwealth v. Seskey, 170 A.3d 1105 (Pa. Super. 2017),

that “an individual between the ages of fifteen and seventeen who was

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

maximum term of life imprisonment.” Rutter, 179 A.3d 591 (unpublished

memorandum at 4) (citing Seskey, 170 A.3d at 1109). As a result, this Court

vacated Rutter’s judgment of sentence, and remanded for resentencing. Id.

at 4. The Pennsylvania Supreme Court denied Rutter’s Petition for allowance

of appeal. Commonwealth v. Rutter, 182 A.3d 997 (Pa. 2018) (unpublished

per curiam order).

       On remand, the trial court sentenced Rutter to 35 years to life in prison

for murder of the first degree, 2 to 4 years in prison for burglary, 10 to 20

years in prison for conspiracy to commit murder of the first degree, 5½ years

to 11 years for robbery, 9 months to 2 years in prison for receiving stolen

property, and 9 months to 2 years for access device fraud. The trial court

ordered the sentences to run consecutively, for an aggregate term of 54 years

to life in prison.2 Rutter filed a timely post-sentence Motion to reconsider and

modify his sentence, which the trial court denied. Rutter filed a timely Notice

of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

____________________________________________


2 Rutter’s sentence on remand is identical to his original sentence, with the
exception of his maximum sentence of 109 years being replaced with a life
sentence.

                                           -4-
J-S02042-20



      Rutter presents the following questions for our review:

      I. Is the aggregate sentence of the trial court the functional
      equivalent of a life sentence, affording [] Rutter no meaningful
      opportunity for release, and a violation of the Eighth and
      Fourteenth Amendments to the United States Constitution?

      II. Was the trial court’s imposition of a de facto life sentence a
      violation of the plea agreement, which prohibited the court from
      imposing a sentence of life in prison without parole?

      III. Is the aggregate sentence of 54 years to life so manifestly
      excessive as to constitute too severe a punishment, clearly
      unreasonable under the circumstances, failing to account for []
      Rutter’s significant efforts at rehabilitation since his incarceration
      in state prison, and relying almost exclusively on the nature of the
      offenses and the harm to the victims and the community; further,
      were the trial court’s factual findings in support of the sentence
      imposed unsupported by the record?

Brief for Appellant at 8.

      Preliminarily, we address the law of the case doctrine.

             The law of the case doctrine refers to a family of rules which
      embody the concept that a court involved in the later phases of a
      litigated matter should not reopen questions decided by another
      judge of that same court or by a higher court in the earlier phases
      of the matter…. The various rules which make up the law of the
      case doctrine serve not only to promote the goal of judicial
      economy…but also operate (1) to protect the settled expectations
      of the parties; (2) to insure uniformity of decisions; (3) to
      maintain consistency during the course of a single case; (4) to
      effectuate the proper and streamlined administration of justice;
      and (5) to bring litigation to an end.

                                     * * *

             [W]hen an appellate court has considered and decided a
      question submitted to it upon appeal, it will not, upon a
      subsequent appeal on another phase of the case, reverse its
      previous ruling even though convinced it was erroneous. … [This
      rule] is not, however, inflexible. It does not have the finality of
      the doctrine of res judicata. The prior ruling may have been


                                      -5-
J-S02042-20


       followed as the law of the case[,] but there is a difference between
       such adherence and res judicata; one directs discretion, and the
       other supercedes it and compels judgment. In other words, in
       one it is a question of power, in the other of submission. The rule
       of the law of the case is one largely of convenience and public
       policy, both of which are served by stability in judicial decisions,
       and it must be accommodated to the needs of justice by the
       discriminating exercise of judicial power.

             Hence, the law of the case doctrine might not apply under
       exceptional circumstances, including: an intervening change in
       the law, a substantial change in the facts, or if the prior ruling was
       “clearly erroneous” and “would create a manifest injustice if
       followed.”

Commonwealth v. McCandless, 880 A.2d 1262, 1267 (Pa. Super. 2005)

(citations, quotation marks omitted).

       Rutter’s claims in the case sub judice are identical to those raised and

addressed by this Court prior to remand.3           See Rutter, 179 A.3d 591

(unpublished memorandum at 2). There, we ruled that Rutter’s claims lack

merit. See id. Since our review of the record reveals that the prior ruling

was not clearly erroneous, see McCandless, supra, we affirm.

       Judgment of sentence affirmed.




____________________________________________


3  We note that Rutter’s instant third claim incorporates the third, fourth and
fifth claims from his prior appeal, and only differs to the extent that the instant
third claim challenges his maximum life sentence, whereas his prior claims
challenged his 109-year maximum sentence. However, our prior decision
thoroughly addressed this issue, finding that Rutter is subject to a mandatory
maximum sentence of life in prison. See Rutter, 179 A.3d 591 (unpublished
memorandum at 4).

                                           -6-
J-S02042-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/02/2020




                          -7-
