J-S34034-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
CARL LEE COLLINS,                         :
                                          :
                 Appellant                :    No. 1811 WDA 2017

          Appeal from the Judgment of Sentence October 11, 2017
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0012112-1993

BEFORE:    BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED JULY 26, 2018

     Carl Lee Collins (Appellant) appeals from the October 11, 2017

judgment of sentence imposed following a resentencing hearing pursuant to

Miller v. Alabama, 567 U.S. 460 (2012),1 and Commonwealth v. Batts

(Batts II), 163 A.3d 410 (Pa. 2017). We affirm.

     This Court previously summarized the facts of this homicide. Briefly,

on August 31, 1993, while Appellant was 16 years old, he shot and killed a

man during a robbery in Pittsburgh.       Specifically, after observing Odell

Mahaffey and Claude Mason drive around Elmore Square, Appellant told his

friend that “if they come back around again, it’s on[.]”         N.T., 3/17-

1 In Miller, the United States Supreme Court held that a “mandatory
[sentence of] life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition on cruel and
unusual punishments.” 567 U.S. at 465 (internal quotations omitted).



*Retired Senior Judge assigned to the Superior Court.
J-S34034-18


3/21/1994, at 168.    When Mahaffey and Mason drove around again and

asked Appellant if Mason’s brother was nearby, Appellant concocted a ruse,

telling Mason that his brother was on the phone behind a building.       After

Mason checked behind the building and realized that Appellant was lying,

Appellant robbed Mahaffey and Mason at gunpoint and forced them to pull

their pants down. Mahaffey and Mason did not have anything to turn over in

the robbery.    Appellant shot Mahaffey in the stomach, and ran away

laughing.   Commonwealth v. Collins, 679 A.2d 843 (Pa. Super. 1996)

(unpublished memorandum at 1-4).

     On March 21, 1994, a jury convicted [A]ppellant of second[-
     ]degree murder and related offenses[. O]n May 17, 1994,
     [A]ppellant was sentenced to an aggregate, mandatory sentence
     of life imprisonment without the possibility of parole.

           On May 15, 1996, this [C]ourt affirmed the judgment of
     sentence[. O]n October 31, 1996, our [S]upreme [C]ourt denied
     appeal.     Commonwealth         v. Collins, 679 A.2d    843
     (Pa.[ ]Super.[ ]1996) (unpublished memorandum), appeal
     denied, 685 A.2d 542 (Pa.[ ]1996). Appellant has [] pursued
     multiple, unsuccessful PCRA petitions.

Commonwealth v. Collins, 118 A.3d 456 (Pa. Super. 2015) (unpublished

memorandum at 1).

     Following the decision in Montgomery v. Louisiana, ___ U.S. ___,

136 S.Ct. 718 (2016), that Miller applies retroactively to cases on collateral

appeal, Appellant pro se filed his fifth PCRA petition on February 23, 2016,

seeking resentencing for his second-degree murder conviction based on

Miller and Montgomery.


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        The PCRA court granted Appellant’s PCRA petition, and a resentencing

hearing was held on October 11, 2017.         At the resentencing hearing, the

PCRA court considered two pre-sentence investigation (PSI) reports, two

sentencing memoranda, a report from the mitigation expert, testimony from

Appellant, testimony from individuals on behalf of Appellant and the victim,

and the arguments of counsel before fashioning Appellant’s new sentence of

30-years-to-life imprisonment. N.T., 10/11/2017, at 3, 5-6, 8-52. Appellant

filed a post-sentence motion requesting a reduced minimum sentence of 27

or 28 years. Appellant’s Post-Sentence Motion, 10/18/2017, at 2. The PCRA

court denied the motion without a hearing. Appellant pro se timely filed a

notice of appeal,2 and the PCRA court appointed new counsel to represent

Appellant on appeal.3

        On   appeal,   Appellant   presents   the   following   issues   for   our

consideration: (1) whether the PCRA court erred in applying 18 Pa.C.S.

§ 1102.1 retroactively in violation of the ex post facto clauses of the United

States and Pennsylvania constitutions; and (2) whether Appellant’s sentence

is manifestly excessive because the PCRA court failed to consider certain

mitigating factors. Appellant’s Brief at 3.


2“This Court is required to docket a pro se notice of appeal despite Appellant
being represented by counsel[.]” Commonwealth v. Williams, 151 A.3d
621, 624 (Pa. Super. 2016).
3   Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.



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      Appellant first claims that the PCRA court, in violation of the ex post

facto clauses of the United States and Pennsylvania constitutions, applied 18

Pa.C.S. § 1102.1(c)(1) retroactively by imposing the 30-year mandatory

minimum sentence “and did not merely rely on that provision for guidance in

an independent assessment of an [appropriate] sentence of incarceration to

impose.” Appellant’s Brief at 16. A claim that a sentence violates the ex

post facto clause implicates the legality of Appellant’s sentence.        See

Commonwealth v. Perez, 97 A.3d 747, 750 (Pa. Super. 2014).             “Issues

relating to the legality of a sentence are questions of law[.] ... Our standard

of review over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)

(citations and quotations omitted).

      Following the holding in Miller, the Pennsylvania General Assembly

enacted 18 Pa.C.S. § 1102.1 to establish the sentencing scheme for

juveniles convicted of first- and second-degree murder after June 24, 2012

(i.e., post-Miller). For juveniles convicted pre-Miller, the statute does not

apply.   Instead, a sentencing court may impose a minimum term-of-years

sentence and a maximum sentence of life imprisonment, “exposing these

defendants to parole eligibility upon the expiration of their minimum

sentences.” Batts II, 163 A.3d at 439. In determining the minimum term-

of-years sentence in pre-Miller cases, lower courts must consult the

sentencing requirements codified at 18 Pa.C.S. § 1102.1 for guidance. Id.


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at 457. Specifically for a juvenile convicted of second-degree murder pre-

Miller, the portion of section 1102.1 that a lower court must consider is the

guidelines set forth in subsection 1102.1(c)(1), see Commonwealth v.

Melvin, 172 A.3d 14, 22 (Pa. Super. 2017), which provides, in relevant

part, as follows.

        (c) Second degree murder.--A person who has been convicted
        after June 24, 2012, of a murder of the second degree[] and
        who was under the age of 18 at the time of the commission of
        the offense shall be sentenced as follows:

              (1) A person who at the time of the commission of the
              offense was 15 years of age or older shall be sentenced to
              a term of imprisonment the minimum of which shall be at
              least 30 years to life.

18 Pa.C.S. § 1102.1(c)(1).

        At the resentencing hearing, the PCRA court considered two PSI

reports, two sentencing memoranda, a report from the mitigation expert,

testimony from Appellant, testimony from individuals on behalf of Appellant

and the victim, and the arguments of counsel regarding how the court

should consider the guidelines set forth in subsection 1102.1(c)(1), before

fashioning Appellant’s new sentence. N.T., 10/11/2017, at 3, 5-6, 8-52. In

its Rule 1925(a) opinion, the PCRA court stated that it

        considered the lay and expert testimony, [Appellant’s] exhibits
        and evidence of his rehabilitation activities, evaluated the Miller
        age-related factors[4] and imposed a sentence which took all of


4   As the Court in Batts II explained,
(Footnote Continued Next Page)



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      these factors into consideration. The new sentence – 30 years
      to life – is a significant downward departure from the prior life
      sentence without the possibility of parole and reflects
      [Appellant’s] efforts towards rehabilitation.

PCRA Court Opinion, 3/15/2018, at 10-11.

      Appellant argues that the PCRA court’s application of the Miller age-

related factors, codified in subsection 1102.1(d), “suggests the [PCRA court]

actually applied provisions of [s]ection 1102.1 rather than considered them

for guidance.” Appellant’s Brief at 15. We have held that a sentencing court

must consider the Miller age-related factors only in cases where the
(Footnote Continued)   _______________________



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

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

Batts II, 163 A.3d at 431 (citations omitted).           See also 18 Pa.C.S.
§ 1102.1(d) (articulating these factors).



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Commonwealth is attempting to meet its burden of overcoming the

presumption against juvenile LWOP sentences. Commonwealth v. Melvin,

172 A.3d 14, 24 (Pa. Super. 2017).              Here, the Commonwealth was not

seeking a LWOP sentence. Thus, the Miller age-related factors did not need

to   be   considered,   because       “application of   the   Miller factors    [wa]s

immaterial.”    Commonwealth v. Machicote, 172 A.3d 595, 602 n.3 (Pa.

Super. 2017), appeal granted, ___ A.3d ___, 2018 WL 2324339 (Pa. May

22, 2018).      However, there was nothing prohibiting the trial court from

considering these mitigating factors.        See Commonwealth v. Simpson,

829 A.2d 334, 339 (Pa. Super. 2003) (stating that courts may consider other

factors relevant to sentencing that are not already included in the sentencing

guidelines).

      Moreover, the PCRA court engaged in an extensive analysis of the

record, consulted the guidelines set forth in subsection 1102.1(c)(1) for

guidance, and imposed an individualized sentence of 30-years-to-life

imprisonment in accordance with Batts II.           See Melvin, 172 A.3d at 22

(affirming Melvin’s judgment of sentence in a pre-Miller case where the

“PCRA court found persuasive the ‘logic’ of subsection 1102.1(c)(1) and

imposed     a   thirty-year-to-life     sentence”   compliant    with   Batts    II).

Accordingly, Appellant has not convinced us that the PCRA court applied

section 1102.1 ex post facto resulting in an illegal sentence.




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      Appellant’s second claim implicates the discretionary aspects of his

sentence. It is well settled that, with regard to the discretionary aspects of

sentencing, there is no automatic right to appeal.

      Before [this Court may] reach the merits of [a challenge to the
      discretionary aspects of a sentence], we must engage in a four
      part analysis to determine: (1) whether the appeal [was timely-
      filed]; (2) whether Appellant preserved his 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 sentencing code.... [I]f the appeal
      satisfies each of these four requirements, we will then proceed to
      decide the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Appellant has satisfied the first three requirements: he timely filed a

notice of appeal; he sought reconsideration of his sentence in a post-

sentence motion; and his brief includes a Pa.R.A.P. 2119(f) statement.

Therefore, we now consider whether Appellant has raised a substantial

question for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “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


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sentencing process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).

      Appellant   contends    that   the   PCRA   court     “failed   to   consider

[Appellant’s] educational achievements and nonviolent prison adjustment

over the last 24 years and existence of strong family support to aid his

adjustment into society.”     Appellant’s Brief at 12.      This amounts to an

allegation that his minimum sentence is manifestly excessive because the

PCRA court failed to consider certain mitigating factors.

      “[P]rior decisions from this Court involving whether a substantial
      question has been raised by claims that the sentencing court
      ‘failed to consider’ or ‘failed to adequately consider’
      sentencing factors [have] been less than a model of clarity and
      consistency.” Commonwealth v. Seagraves, 103 A.3d 839,
      842 (Pa.[ ]Super.[ ]2014) (citing [Commonwealth v. Dodge,
      77 A.3d 1263 (Pa. Super. 2013)]). In []Dodge, this Court
      determined an appellant’s claim that the sentencing court
      “disregarded rehabilitation and the nature and circumstances of
      the offense in handing down its sentence” presented a
      substantial question. Dodge[, 77 A.3d] at 1273.

            This Court has also held that an excessive sentence
      claim—in conjunction with an assertion that the court failed to
      consider mitigating factors—raises a substantial question.

Commonwealth v. Caldwell, 117 A.3d 763, 769–70 (Pa. Super. 2015) (en

banc) (some citations and quotation marks omitted). Based on the above

precedent, we find that Appellant has raised a substantial question and will

review the merits of his claim.

      We   review     discretionary-aspects-of-sentence      claims    under   the

following standard.


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            If this Court grants appeal and reviews the sentence, the
      standard of review is well-settled: sentencing is vested in the
      discretion of the trial court, and will not be disturbed absent a
      manifest abuse of that discretion. An abuse of discretion involves
      a sentence which was manifestly unreasonable, or which
      resulted from partiality, prejudice, bias or ill will. It is more than
      just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252–53 (Pa. Super. 2006)

(citations omitted).

      Appellant contends that the PCRA court placed too much weight on the

seriousness of the crime, and too little weight on his rehabilitative efforts.

Appellant’s Brief at 20-24.5 Our review of the sentencing transcript indicates

otherwise.

             I do find that [Appellant] was clearly 16 years old when
      this happened and three months.          The crime has always
      identified [Appellant] as the shooter. This is a totally senseless
      crime. The victim had no money. There was certainly no reason
      to shoot him let alone humiliate him as well as his friend. I find
      this to be a particularly heinous crime.

             [Appellant’s] childhood has two stories. He had a very
      difficult childhood and was raised by an abusive, alcoholic
      mother who was also mentally ill. There, however, was some
      support from his father and clearly support from his brother.
      Today, [Appellant] claims to have a relationship with his brother.
      … I do not question, however, that his brothers are supportive
      of him, have been a good influence and continue to support him.

            Although [Appellant] was hanging -- and I put that in air
      quotes -- with the Bloods in this case when the crime occurred,
      he said that he was not an active member. I have no reason to

5 Appellant also disagrees with the PCRA court’s assessment of the homicide
as heinous. Given the facts of this case, recounted supra, we find no error
in the PCRA court’s assessment of this homicide as heinous.



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     disbelieve that. There were also some admissions of drug and
     alcohol use.

           However, I find most significant in this case
     [Appellant’s] development at the institutions in which he
     has been placed.         In the beginning, he had some minor
     misconduct, but none for the past many years. I do find it
     interesting, as [the attorney for the Commonwealth] pointed out,
     that in 2008, he was still professing his innocence and did so
     through a PCRA hearing before this [c]ourt which the [c]ourt
     found … his witness to be not credible.

           I do also find that he, in part at least, began his rehab in …
     1995[,] which was when the first certificate was issued, and this
     was long before the Miller decision. This is important to me
     because I’ve had a number of juveniles [who] have come before
     me [who] started rehabilitating after the Miller decision.
     [Appellant] has a huge list of accomplishments, and most
     important is his dedication to help others and to improve their
     lives. I think, [Appellant], that you were sincere in making
     yourself a better person, so the sentence is vacated, and I’m
     going to sentence [Appellant] at the second[-]degree murder
     case to serve a term of 30 years to life imprisonment.

N.T., 10/11/2017, at 50-52 (emphasis added).

     Contrary to Appellant’s claim, the PCRA court placed the greatest

weight on the mitigating factor of Appellant’s rehabilitative efforts.        As

outlined supra, the PCRA court considered two PSI reports, two sentencing

memoranda, a report from the mitigation expert, testimony from Appellant,

testimony from individuals on behalf of Appellant and the victim, and the

arguments of counsel regarding guidance from section 1102.1.                N.T.,

10/11/2017, at 3, 5-6, 8-52.     See Commonwealth v. Boyer, 856 A.2d

149, 154 (Pa. Super. 2004) (stating that where the sentencing court has the

benefit of a PSI report, it is presumed to have considered all relevant


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information); Commonwealth v. Eicher, 605 A.2d 337, 355 (Pa. Super.

1992) (concluding that “[b]ecause it is apparent from the []sentencing

transcript that the sentencing court did not focus solely on the seriousness

of the offenses but expressly applied the relevant mitigating factors in

fashioning appellant’s sentence, we find no merit to appellant’s claim that

the mitigating factors were ignored or assigned insufficient weight by the

lower court.”).   We find that the PCRA court considered all relevant

information, conducted an extensive analysis of the record before it, and

crafted an individualized sentence that placed great weight on Appellant’s

rehabilitative efforts. Accordingly, because Appellant’s sentence is compliant

with subsection 1102.1(c)(1) and Batts II, and the PCRA court had the

benefit of two PSI reports, two sentencing memoranda, and a mitigation

expert report, we find that the PCRA court did not abuse its discretion.

      After a thorough review of the record, we find Appellant has presented

no issue on appeal that would convince us to disturb his judgment of

sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 7/26/2018




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