J-A12045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellant

                     v.

REGIS SESKEY,

                          Appellee                 No. 1858 WDA 2016


           Appeal from the Judgment of Sentence November 16, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013783-1992

BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 7, 2017

      The Commonwealth of Pennsylvania appeals from the judgment of

sentence entered on November 16, 2016, as made final by the disposition of

Regis Seskey’s (“Appellee’s”) post-sentence motion on December 5, 2016.

We affirm in part, vacate in part, and remand for the sole purpose of

resentencing.

      The factual background of this case is as follows. Appellee and Marc

Bova (“Victim”) were partners in a drug dealing operation. At some point,

Appellee became angry at Victim for using too much of the crack cocaine

supply. Appellee was also unhappy that Victim owed him several hundred

dollars.    Appellee expressed his frustration to Scott Thorton (“Thorton”).

Thorton suggested that they scare Victim by inviting him to a field, with the

promise of crack cocaine, and confronting him with a sawed-off shotgun.
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        On the night of October 12, 1992, Appellee and Thorton lured Victim to

the field. Instead of scaring Victim, Appellee fired five shots at Victim using

the sawed-off shotgun.        Victim died as a result of the gunshot wounds he

sustained. Appellee then proceeded to eat at a local establishment where he

stated that killing Victim was like killing a rabbit. At the time of the murder,

Appellee was a minor.

        The relevant procedural history of this case is as follows.   On March

22, 1994, Appellee was convicted of first-degree murder.1       The trial court

immediately sentenced him to the then-mandatory term of life imprisonment

without the possibility of parole (“LWOP”).       On direct appeal, this Court

affirmed his judgment of sentence and our Supreme Court denied allowance

of appeal.    Commonwealth v. Seskey, 676 A.2d 286 (Pa. Super. 1996)

(unpublished memorandum), appeal denied, 681 A.2d 1342 (Pa. 1996).

        On August 15, 1997, Appellee filed a petition pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. On August 11,

1998, the PCRA court dismissed the petition without an evidentiary hearing.

This Court affirmed that dismissal and our Supreme Court denied allowance

of appeal.    Commonwealth v. Seskey, 816 A.2d 334 (Pa. Super. 2002)

(unpublished memorandum), appeal denied, 828 A.2d 350 (Pa. 2003).

        On July 19, 2010, Appellee filed his second PCRA petition. On May 1,

2012, the PCRA court dismissed the petition without an evidentiary hearing.

1
    18 Pa.C.S.A. § 2502(a).



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This court affirmed that dismissal and our Supreme Court denied allowance

of appeal.   Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014),

appeal denied, 101 A.3d 103 (Pa. 2014), overruled, Montgomery v.

Louisiana, 136 S.Ct. 718 (2016).

     On January 27, 2016, Appellee filed his third PCRA petition.       The

Commonwealth conceded that, because Montgomery made the rule against

mandatory LWOP sentences for minor offenders retroactive, Appellee was

entitled to resentencing.2   It argued, however, that he must receive a

maximum term of life imprisonment.       On November 16, 2016, the PCRA

court granted Appellee’s PCRA petition.   The trial court then immediately

sentenced him to a term of 13 to 26 years’ imprisonment. On November 17,

2016, Appellee filed a post-sentence motion.    On December 5, 2016, the

trial court granted Appellee’s post-sentence motion and recommended that

Appellee be immediately paroled. This timely appeal followed.3

     The Commonwealth presents two issues for our review:


2
 As Appellee filed his third PCRA petition within 60 days of Montgomery, it
satisfied the new constitutional rule timeliness exception. See 42 Pa.C.S.A.
§ 9545(b)(1)(iii), (b)(2). As such, the PCRA court had jurisdiction to
consider the merits of Appellee’s petition.
3
  The trial court did not order the Commonwealth to file a concise statement
of errors complained of on appeal (“concise statement”). See Pa.R.A.P.
1925(b). Nonetheless, on December 6, 2016, the Commonwealth filed a
concise statement. On January 3, 2017, the trial court issued its Rule
1925(a) opinion. Both of the Commonwealth’s issues were included in its
concise statement.




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    1. Whether the [trial] court erred in imposing an illegal sentence
       when it refused to sentence [A]ppellee to a maximum sentence
       of life imprisonment with the chance for parole?

    2. Whether the [trial] court abused its discretion in not imposing a
       sentence which had, as its maximum, a sentence of life
       imprisonment with the chance for parole?

Commonwealth’s Brief at 6.

      In its first issue, the Commonwealth argues that the trial court

imposed an illegal sentence because the maximum term of imprisonment

was set at 26 years instead of life.4 Appellee, on the other hand, contends

that the trial court possessed unfettered sentencing discretion and it was not

required to impose any minimum or maximum term of imprisonment. When

reviewing the legality of a sentence, our standard of review is de novo and

our scope of review is plenary. Commonwealth v. Brown, 159 A.3d 531,

532 (Pa. Super. 2017) (citation omitted).

      In   order   to   understand   the   Commonwealth’s    illegal   sentence

argument, it is necessary to review the relevant Pennsylvania statutes

regarding mandatory LWOP sentences for minors convicted of first or


4
  Appellee argues that this issue does not implicate the legality of his
sentence.     This argument is without merit.     In Commonwealth v.
Vazquez, 744 A.2d 1280 (Pa. 2000), our Supreme Court held that the trial
court’s failure to impose a sentence mandated by statute (either minimum
or maximum) implicates the legality of the sentence. Id. at 1284, citing
Commonwealth v. Hertzog, 425 A.2d 329, 333 (Pa. 1981); see also
Commonwealth v. Barnes, 151 A.3d 121, 127 (Pa. 2016) (adopting the
definition of an illegal sentence proposed by the opinion announcing the
judgment of the court in Commonwealth v. Foster, 17 A.3d 332 (Pa.
2011)).



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second-degree murder.5       The Crimes Code provides that an individual

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).   The Parole Code

provides that an individual sentenced to a term of life imprisonment is not

eligible for parole.   See 61 Pa.C.S.A. § 6137(a)(1); but see 18 Pa.C.S.A.

§ 1102.1 (discussed infra). Finally, the Juvenile Act provides that the term

“delinquent act” does not include the crime of murder.    See 42 Pa.C.S.A.

§ 6302.

      Under this statutory framework, a minor who commits first or second-

degree murder must be charged as an adult. If convicted, the minor must

be sentenced to a term of life imprisonment and is not eligible for parole.

But see 18 Pa.C.S.A. § 1102.1 (discussed infra).    Thus, a minor convicted

of first or second-degree murder receives a mandatory LWOP sentence. But

see id.

      In 2012, the Supreme Court of the United States held that mandatory

LWOP sentences for minors violate the Eighth Amendment’s prohibition

against cruel and unusual punishment. Miller v. Alabama, 567 U.S. 460,

469-489 (2012). Our General Assembly responded to Miller by passing 18

Pa.C.S.A. § 1102.1. Section 1102.1 provides that an individual between the

5
  For simplicity, we refer to first-degree murder, first-degree murder of an
unborn child, and first-degree murder of a law enforcement officer
collectively as “first-degree murder.” Similarly, we refer to second-degree
murder, second-degree murder of an unborn child, and second-degree
murder of a law enforcement officer collectively as “second-degree murder.”



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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 further 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 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.

     After our General Assembly passed section 1102.1, our Supreme Court

held that it does not apply to those minors, like Appellee, who were

convicted of first or second-degree murder prior to June 25, 2012.



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Commonwealth v. Batts, 66 A.3d 286, 293 (Pa. 2013) (“Batts I”)

(citations omitted).

      The question presented in this case is what sentencing framework

applies to those minor offenders who were convicted of first or second-

degree murder prior to June 25, 2012. As noted above, the Commonwealth

argues that these offenders must be sentenced to a maximum term of life

imprisonment and trial courts have the discretion to determine the

appropriate minimum sentence.      Appellee, on the other hand, argues that

trial courts possess unfettered discretion when resentencing these offenders.

      In support of his argument that the trial court had unfettered

sentencing discretion, Appellee relies upon Batts I.     After this case was

argued, our Supreme Court issued its opinion in Commonwealth v. Batts,

2017 WL 2735411 (Pa. June 26, 2017) (“Batts II”).          In that case, our

Supreme Court held that whether a minor offender is eligible for LWOP is a

purely legal question subject to de novo review.       Id. at *17-18.    Our

Supreme Court also held that the Commonwealth bears the burden of

proving that a minor is eligible for LWOP beyond a reasonable doubt. Id. at

*30-34.

      Most importantly for our disposition of this case, our Supreme Court

reaffirmed its holding in Batts I that:

      For those defendants [convicted of first or second-degree
      murder prior to June 25, 2012] for whom the sentencing court
      determines a [LWOP] sentence is inappropriate, it is our
      determination here that they are subject to a mandatory


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      maximum sentence of life imprisonment as required by
      section 1102(a), accompanied by a minimum sentence
      determined    by   the  common   pleas court    upon
      resentencing[.]

Batts II, 2017 WL 2735411 at *6, citing Batts I, 66 A.3d at 297 (internal

alteration and quotation marks omitted; emphasis added). In other words,

our Supreme Court merely severed “the prohibition against paroling an

individual sentenced to serve life in prison in section 6137(a)(1) as applied

to these offenders.” Id.

      Our Supreme Court explained that its interpretation of the interplay

between sections 1102(a) and 6137(a)(1) in Batts I was correct because

      Despite the passage of four years since we issued our decision in
      Batts I, the General Assembly has not passed a statute
      addressing the sentencing of juveniles convicted of first-degree
      murder pre–Miller, nor has it amended the pertinent provisions
      that were severed in Batts I. As we have previously stated, the
      General Assembly is quite able to address what it believes is a
      judicial misinterpretation of a statute, and its failure to do so in
      the years following the Batts I decision gives rise to the
      presumption that the General Assembly is in agreement with our
      interpretation.

Id. at *25 (internal quotation marks, citations, and footnote omitted).

Therefore, under Batts II the trial court was required to sentence Appellee

to a maximum term of life imprisonment.

      Appellee also relies upon decisions of the United States District Court

for the Eastern District of Pennsylvania and other states’ courts in support of

his argument that the trial court possessed unfettered sentencing discretion.

It is well-settled, however, that decisions of the federal courts and other



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states’ courts are merely persuasive authority.    Bensinger v. Univ. of

Pittsburgh Med. Ctr., 98 A.3d 672, 682 & n.10 (Pa. Super. 2014). On the

other hand, this Court is duty-bound to effectuate our Supreme Court’s

decisional law. Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc.,

20 A.3d 468, 480 (Pa. 2011) (citation omitted).       Batts II, which our

Supreme Court decided after Montgomery, explicitly holds that the trial

court was required to sentence Appellee to a maximum term of life

imprisonment.

     The trial court in this case failed to impose the mandatory maximum

sentence of life imprisonment. As such, Appellee’s sentence was illegal and

must be vacated.    As we conclude that the 26-year maximum sentence

imposed was illegal, and remand for resentencing,6 we need not address the

Commonwealth’s second issue that the maximum sentence was an abuse of

discretion. See Commonwealth v. Barnes, 2017 WL 2927566, *10 n.13

(Pa. Super. July 10, 2017) (en banc).

     Application for bail denied. Judgment of sentence affirmed in part and

vacated in part. Case remanded for resentencing. Jurisdiction relinquished.




6
  Our Supreme Court has “instruct[ed] sentencing courts to look to the
mandatory minimum sentences set forth in section 1102.1(a) for guidance in
setting a minimum sentence for a juvenile convicted of first-degree murder
prior to Miller.” Batts II, 2017 WL 2735411 at *24 n.17.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2017




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