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holding that the trial court's sentence of life without the possibility of parole, imposed on a juvenile after consideration of his individual circumstances and age-related characteristics, was a legal sentence under Miller and Batts I
Summary of this case from Commonwealth v. MarinucciOpinion
No. 1764 EDA 2014
09-04-2015
COMMONWEALTH of Pennsylvania, Appellee v. Qu'eed BATTS, Appellant.
Terence P. Nouck, Assistant District Attorney, Easton, for Commonwealth, appellee. Marsha Levick, Philadelphia, amicus curiae.
Terence P. Nouck, Assistant District Attorney, Easton, for Commonwealth, appellee.
Marsha Levick, Philadelphia, amicus curiae.
Opinion
OPINION BY MUNDY, J.:
Appellant, Qu'eed Batts, appeals from the May 2, 2014 aggregate judgment of sentence of life imprisonment without the possibility of parole, which was reimposed after our Supreme Court vacated the decision of a prior panel of this Court and remanded to the trial court for resentencing. After careful review, we affirm.
We summarize the relevant facts and procedural history as follows. A jury found Appellant guilty of first-degree murder, attempted murder, and aggravated assault. These convictions arose from a February 7, 2006 gang-related shooting. On that day, Appellant, then 14 years old, shot two other teenage boys, Corey Hilario and Clarence Edwards, on the front porch of Edwards' residence. Appellant first shot 18–year–old Hilario in the back as he attempted to escape, causing serious bodily injuries from which Hilario ultimately recovered. Appellant then fatally shot 16–year–old Edwards, who had fallen, twice in the head.
18 Pa.C.S.A. §§ 2501, 901, 2702(a), respectively.
See Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); Commonwealth v. Batts, 620 Pa. 115, 66 A.3d 286 (2013) (“Batts II ”).
After an investigation, police apprehended Appellant, who, during an interview, eventually confessed to shooting Edwards and Hilario. Appellant admitted he shot Edwards and Hilario, but claimed he only did so because he believed an older gang member, Vernon Bradley, would kill him if he did not follow Bradley's orders to shoot the two other young men.
Appellant explained that he had recently been inducted into a gang, the Bloods. On the night of the shooting, he was a passenger with Bradley and other members of the Bloods in a vehicle driven by Rasheeda McClain. The gang members drove to Edwards' residence, where McClain identified Edwards and Hilario as two boys who had previously robbed her. Appellant did not know either of the victims. Bradley then asked which gang member would “put work in,” and gave Appellant a gun and a mask.
Appellant exited the car in front of Edwards' house and put on the mask and a glove. McClain drove the car down the block and parked at the corner to wait for Appellant. Appellant then walked up the front steps of the house and onto the porch, where Hilario, Edwards, and Edwards' father were present. Appellant ordered the three men to get down. Edwards' father escaped into the house. As Hilario attempted to follow Edwards' father, Appellant shot him in the back, but Hilario still managed to make it inside the house. Appellant then turned to Edwards, who had fallen and was lying on the porch. Appellant stood over Edwards and shot him twice in the head. Appellant then ran back to the car, and the group drove away. Edwards died at the hospital. Because of the shootings, Appellant was promoted to the higher rank of “universal sergeant” within the gang.
The Commonwealth charged Appellant with the above-listed offenses and two counts of criminal conspiracy. Because Appellant was charged with murder, the case was automatically placed in the jurisdiction of the criminal court. See 42 Pa.C.S.A. § 6302 (excluding murder from the definition of a “delinquent act”); id. § 6322 (providing that a case charging a child with murder may be transferred to the juvenile court if the child shows that the transfer serves the public interest based on the factors in 42 Pa.C.S.A. § 6355(a)(4)(iii)). After an extensive evidentiary hearing on Appellant's motion to transfer the case to the juvenile justice system under Section 6322 of the Juvenile Act, the trial court denied Appellant's motion. Hence, Appellant was tried as an adult.
For example, under Section 1102.1(d), which does not directly govern this case, see Batts II, 66 A.3d at 294, a juvenile life-without-parole sentence may be imposed so long as the trial court “consider[s] and make[s] findings on the record” of “age-related characteristics of the defendant” along with six other factors. See 18 Pa.C.S. § 1102.1(d)(7).
Appellant's mother was thirteen when Appellant was born. N.T., 5/2/14, at 16.
At trial, Appellant testified consistently with the statement he gave to the police and contended that he committed the shootings under duress because he felt he would be killed if he disobeyed Bradley's order to shoot Edwards and Hilario. Despite his duress defense, on July 31, 2007, the jury convicted him of first-degree murder, attempted murder, and aggravated assault. The jury acquitted Appellant of the two conspiracy charges.
On October 22, 2007, the trial court sentenced Appellant to a mandatory term of life imprisonment, which automatically made him ineligible for parole. See 18 Pa.C.S.A. § 1102(a)(1) (providing “a person who has been convicted of a murder of the first degree ... shall be sentenced to death or a term of life imprisonment ... [ ]”), superseded, relative to juvenile offenders, by 18 Pa.C.S.A. § 1102.1; 61 Pa.C.S.A. § 6137(a)(1) (stating that the Board of Probation and Parole cannot release on parole any inmate serving life imprisonment). For the conviction of attempted murder, the trial court imposed a concurrent sentence of six to twenty years' imprisonment.
Aggravated assault merged with attempted murder for purposes of sentencing.
At trial, Appellant testified that no one in the car responded after Bradley asked, “Who's going to put work in?” N.T., 7/30/07, at 64. Bradley asked again and no one responded. Id. Bradley then handed the gun and mask to Appellant and stated, “Blood, I just brought you home. You can't put work in for me?” Id. at 65.
Appellant filed a timely post-sentence motion, which the trial court denied. Appellant appealed to this Court, arguing, among other things, that the United States Supreme Court's decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), made the sentence of mandatory life imprisonment without the possibility of parole for a juvenile unconstitutional. Commonwealth v. Batts, 974 A.2d 1175 (Pa.Super.2009) (unpublished memorandum at 12) (Batts I ), vacated, 620 Pa. 115, 66 A.3d 286 (2013) (Batts II ). In Batts I, this Court noted that Roper did not apply to this case because Roper held that the imposition of the death penalty on juvenile offenders was unconstitutional under the Eighth and Fourteenth Amendments, but did not prohibit sentencing juveniles to life imprisonment, and Appellant in this case had received a mandatory life sentence. Id., citing Commonwealth v. Wilson, 911 A.2d 942, 946 (Pa.Super.2006). Notably, this Court also rejected Appellant's claim that due process required the sentencing court to consider evidence of mitigating factors before imposing a sentence of life without parole on a juvenile. Id. at 15–16, citing Sumner v. Shuman, 483 U.S. 66, 76, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987) (requiring the sentencing court to consider mitigating evidence before imposing the death penalty), and Harmelin v. Michigan, 501 U.S. 957, 994–995, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding the sentencing court does not have to consider mitigating evidence before sentencing an adult to a mandatory term of life imprisonment without parole). Accordingly, this Court affirmed Appellant's judgment of sentence of mandatory life imprisonment without the possibility of parole.
Our Supreme Court granted allowance of appeal to consider both whether Roper rendered Appellant's sentence unconstitutional and whether the mandatory nature of the life without parole sentence offended the Eighth and Fourteenth Amendments. Batts II, supra at 290. The Court held the case pending the United States Supreme Court's decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Id. After the Supreme Court issued Graham, holding that sentencing juvenile non-homicide offenders to life imprisonment without the possibility of parole violates the Eighth Amendment, our Supreme Court heard argument in this case. Id. Following argument, however, the Court again reserved consideration pending the disposition of Miller v. Alabama and Jackson v. Hobbs, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which were argued together before the United States Supreme Court. On June 25, 2012, the United States Supreme Court announced its decision in Miller, holding “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Miller, supra at 2469, citing Graham, supra at 74, 130 S.Ct. 2011. While the Court declined to categorically ban the sentence of life without parole for juveniles, the Court explained that it believed that such a sentence would be “uncommon.” Id. Nonetheless, the Court confirmed that its holding “d[id] not foreclose a sentencer's ability to make that judgment in homicide cases, [but] we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. (footnote omitted).
The decision in Miller unequivocally rendered Appellant's mandatory life without parole sentence unconstitutional. Therefore, our Supreme Court instructed the parties in this case to submit supplemental briefs, addressing the appropriate remedy for a Miller violation on direct appeal generally and the relief due to Appellant, as a 14–year–old convicted of first-degree murder specifically. Batts II, supra at 293.
On October 25, 2012, while Batts II was awaiting decision, a new statutory sentencing scheme for juveniles convicted of murder, Section 1102.1, took effect. See 18 Pa.C.S.A. § 1102.1. Section 1102.1 is our legislature's response to Miller, but applies only to juveniles who were convicted of murder on or after June 25, 2012, the date Miller was issued. Id. § 1102.1(a). The sentencing scheme in Section 1102.1(a) separates juveniles who have been convicted of first-degree murder into two categories based on their age. Id. Those who were younger than 15 at the time of the first-degree murder are subject to either life imprisonment without parole, or a term of imprisonment that is at a minimum 25 years to life. Id. § 1102.1(a)(2). On the other hand, those who were 15 to 18 years old must be sentenced to either life imprisonment without parole or a term of at least 35 years to life. Id. § 1102(a)(1). The new statute provides that the sentencing court must make findings on the record regarding a number of factors related to the nature of the offense and the offender's characteristics, including specific age-related characteristics, when deciding whether to impose life without parole on a juvenile. Id. § 1102.1(d).
However, the new Section 1102.1 did not apply to Appellant because Appellant was convicted of murder in 2007, before the effective date of Section 1102.1. Instead, Appellant was subject to the version of Section 1102 that was in effect at the time of his sentencing. Accordingly, in Batts II, our Supreme Court examined “the appropriate remedy for the Eighth Amendment violation that, under Miller, occurred when Appellant was mandatorily sentenced to life imprisonment without the possibility of parole upon his conviction for first-degree murder[ ]” in context of the then-existing statutory scheme in Section 1102. Batts II, supra.
In Batts II, our Supreme Court explained that Miller 's holding is narrow, i.e., mandatory sentences of life imprisonment without the possibility of parole are not constitutional when imposed on juveniles convicted of murder. It accordingly rejected Appellant's argument that Miller rendered Section 1102 unconstitutional in its entirety as applied to juveniles, reasoning as follows.
Section 1102, which mandates the imposition of a life sentence upon conviction for first-degree murder, see 18 Pa.C.S. § 1102(a), does not itself contradict Miller; it is only when that mandate becomes a sentence of life-without-parole as applied to a juvenile offender—which occurs as a result of the interaction between Section 1102, the Parole Code, see 61 Pa.C.S. § 6137(a)(1), and the Juvenile Act, see 42 Pa.C.S. § 6302—that Miller 's proscription squarely is triggered. Miller neither barred imposition of a life-without-parole sentence on a juvenile categorically nor indicated that a life sentence with the possibility of parole could never be mandatorily imposed on a juvenile. Rather, Miller requires only that there be judicial consideration of the appropriate age-related factors set forth in that decision prior to the imposition of a sentence of life imprisonment without the possibility of parole on a juvenile.
Batts II, supra at 295–296 (some citations omitted). The Court also noted that it would not expand the holding of Miller absent a common law history or a legislative directive. Id. at 296 (citation omitted). Accordingly, our Supreme Court remanded to the trial court with instructions to consider the following age-related factors in resentencing Appellant.
[A]t a minimum [the trial court] should consider a juvenile's age at the time of the offense, his diminished culpability and capacity for change, the circumstances of the crime, the extent of his participation in the crime, his family, home and neighborhood environment, his emotional maturity and development, the extent that familial and/or peer pressure may have affected him, his past exposure to violence, his drug and alcohol history, his ability to deal with the police, his capacity to assist his attorney, his mental health history, and his potential for rehabilitation.
[Commonwealth v.] Knox, 50 A.3d 732, 745 [ (Pa.Super.2012) ] (citing Miller, 132 S.Ct. at 2455) [(remanding for resentencing a juvenile who had previously received a mandatory life without parole sentence in violation of Miller, and instructing trial court to resentence juvenile to either life with parole or life without parole), appeal denied, 620 Pa. 721, 69 A.3d 601 (2013) ]. We agree with the Commonwealth that the imposition of a minimum sentence taking such factors into account is the most appropriate remedy for the federal constitutional violation that occurred when a life-without-parole sentence was mandatorily applied to Appellant.
Batts II, supra at 297 (first brackets in original).
Justice Baer authored a concurring opinion, joining in the majority's decision to “remand[ ] the case to the trial court for it to resentence Appellant based upon his individual circumstances to a sentence of life imprisonment either with the possibility of parole or without the possibility of parole for his conviction of first[-]degree murder committed when he was a fourteen year old juvenile.” Id. at 299–300 (Baer, J., concurring). Justice Baer further opined that, to achieve uniformity in sentencing, trial courts should be guided by Section 1102.1 in resentencing juveniles whose life without parole sentences violated Miller, but would not otherwise be resentenced under Section 1102.1 because they were convicted before Miller was decided. Id. at 300 (Baer, J., concurring).
On May 2, 2014, after a two-day sentencing hearing, the trial court reimposed a sentence on Appellant of life imprisonment without the possibility of parole. In doing so, the trial court explained that it considered appropriate age-related factors in accordance with Miller as instructed by the Batts II majority, and it also took guidance from Section 1102.1 as suggested by Justice Baer's concurring opinion. Trial Court Opinion, 8/27/14, at 14, quoting N.T., 5/2/14, at 3–8. The trial court noted that in preparation for the resentencing hearing, it had reviewed the record; trial transcripts; the parties' sentencing memoranda; an October 11, 2013 presentence investigation report; a July 26, 2013 report by forensic psychologist Dr. Kraus; two reports by forensic psychiatrist Dr. Michals of January 16, 2007 and March 12, 2014; a January 12, 2007 report by forensic psychologist Dr. Samuel; a November 21, 2013 report by forensic psychologist Dr. Dattilio, a defense expert; a December 31, 2013 sentencing memorandum by Dana Cook, a defense expert; and an October 29, 2013 letter from Delores Howell, murder victim Edwards' grandmother.
At the time of remand, the Honorable William F. Moran, who presided over Appellant's 2007 trial, had retired. The president judge reassigned the case for resentencing to the Honorable Michael J. Koury, Jr.
Appellant presents a compelling argument that although the trial court recognized a long-term possibility for rehabilitation and reform, its decision to reimpose a sentence of life without parole could have the effect of making treatment less available to Appellant during his incarceration. Appellant's Brief at 87.
Moreover, at the resentencing hearing, the trial court received the following evidence. The Commonwealth presented Lieutenant Thomas Serbin, Howell, and Dr. Michals. Lieutenant Serbin interviewed Appellant when he was transferred to State Correctional Institution (SCI) Retreat in 2009. Serbin testified that Appellant admitted that he was a Blood and frequently associated with other Bloods in prison. Id. at 19–20. Howell spoke of the impact of the murder of her grandson on her and her family. Id. at 25.
Dr. Michals, a forensic psychiatrist, testified that Appellant committed the murder consciously, to gain the acceptance of the Bloods. Id. at 26. Dr. Michals opined that it is possible for a juvenile to change while maturing, but that altering basic personality traits is very difficult. Id. Specifically, he testified that Appellant's basic traits, including anger, instability, impulsivity, poor judgment, and his need to see himself as strong, have persisted over time and are resistant to change. Id. Accordingly, Dr. Michals concluded that Appellant is not amenable to treatment or rehabilitation. Id.
On the other hand, Appellant presented Dr. Dattilio, the defense's forensic psychologist. Dr. Dattilio testified that Appellant was susceptible to gang influence because he did not have any strong familial bonds during childhood. Id. at 20. Dr. Dattilio further explained that Appellant knew killing was wrong, but his youth and inexperience inhibited his judgment. Id. Dr. Dattilio related generally that the consensus of research on brain development was that brains of 14–year–olds are not fully formed, which contributes to an inability to make sound judgments. Id. at 21. Dr. Dattilio ultimately opined that Batts would be amenable to treatment and rehabilitation even though he showed some hardened personality characteristics, including narcissism and antisocial behavior. Id. at 22.
Similarly, the trial court read a letter written by Gregory Troxell, principal of Appellant's middle school and high school, in which Troxell stated that Appellant had taken responsibility for his crimes and worked to rehabilitate himself. Id. at 23–24. Likewise, Appellant's mother read a letter in which she admitted Appellant lacked appropriate parenting. She further asserted that Appellant has matured during his time in prison and now deserves a second chance. Id. at 24.
Appellant, testifying on his behalf, apologized to the victim's family for killing Edwards and stated that he felt he had grown into “a very mature young man.” Id. at 24–25, quoting N.T., 5/1/14, at 170–171. Appellant also denied being an active gang member. Id. at 25.
The trial court analyzed this evidence according to the sentencing factors listed in Section 1102.1, Section 9721(b) of the Sentencing Code, and the age-specific factors listed in Knox, as well as additional factors the trial court found relevant. Id. at 28–57; see also 18 Pa.C.S.A. 1102.1(d) (listing considerations when determining to impose a sentence of life without parole on a juvenile); 42 Pa.C.S.A. § 9721(b) (stating general sentencing principles); Knox, supra (providing 13 age-related factors for deciding whether to sentence a juvenile to life without parole). In total, the trial court explained its analysis of 23 factors. Trial Court Opinion, 8/27/14, at 44–57. The trial court then weighed the 23 factors, noting that some were not in Appellant's favor and others were in his favor. Id. at 57–61.
Specifically, the trial court found the following factors were not in Appellant's favor: the premeditated, brutal, and senseless nature of the shootings; that Appellant acted alone; Appellant acted without justification as his duress defense was not credible; the particular vulnerability of the two unarmed and unsuspecting teenage victims; Appellant's lack of cooperation with the police; the impact of the crimes on the victims and community; the need to avoid minimizing the seriousness of the crimes; the uncertainty of Appellant's amenability to treatment; and the need to protect the public. Id. On the other hand, the trial court explained that a number of factors were in Appellant's favor, such as his childhood experiences; his age of 14; his lack of a criminal record and his regular school attendance; expert opinions that his psychological condition could improve; and the lack of evidence that he engaged in any violent gang-related activity in prison. Id., quoting, N.T., 5/2/14, at 56–65. Further, the trial court considered “the extent to which [Appellant's] youth and immaturity, his troubled childhood, his need for acceptance, and his desire to prove himself contributed to his crime. We have considered those factors, including the disruption and emotional pain Mr. Batts suffered as a child.” Id. at 60, quoting, N.T., 5/2/14, at 56–65.
After weighing all of the sentencing factors, the trial court “conclude[d] that the factors not in [Appellant's] favor significantly outweigh[ed] the factors in his favor.” Id. at 61, quoting, N.T., 5/2/14, at 65. Accordingly, on May 2, 2014, the trial court reimposed a sentence of life without parole on Appellant and a concurrent sentence of ten to twenty years' imprisonment on the attempted murder conviction. Id., quoting, N.T., 5/2/14, at 65–68.
On May 12, 2014, Appellant filed post-sentence motions, which the trial court denied the next day. On June 10, 2014, Appellant filed a timely notice of appeal.
Appellant and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.
The presiding judge also related an incident when his law clerk stated, “Have mercy,” after which the presiding judge visited the crime scene before imposing sentence. N.T., 5/2/14, at 67–68. The judge parked in front of the victims' home, imagined Appellant shooting Hilario and Edwards, and pondered the effects of the crime upon Edwards' grandmother. Id. Such personal identification with the victims, as human as that is, does not reflect a dispassionate and impartial weighing of the impact of the offense against the attributes of youth.
On appeal, Appellant presents three issues for our review.
1. Whether the evidence was insufficient to establish beyond a reasonable doubt that [Appellant] is one of the rare incorrigible juveniles who deserve a life without parole sentence?
2. Whether [Appellant]'s re-sentencing proceeding was unconstitutional because it provided him with fewer procedural safeguards than an adult facing capital punishment?
3. Whether the [Appellant]'s sentence of life without parole violated the Pennsylvania Supreme Court's directive that Defendant be sentenced 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?”
Appellant's Brief at 4, quoting Batts II, supra at 297 (footnote omitted).
Appellant's first claim purportedly presents a challenge to the sufficiency of the evidence to support the trial court's imposition of a life without the possibility of parole sentence. Appellant's Brief at 48. Specifically, Appellant contends that this appeal is an opportunity for us to create a different standard of review and burden of proof in cases of juveniles receiving sentences of life without parole, because this Court has not yet reviewed the pre-Miller discretionary imposition of a life without parole sentence on a juvenile. Id. Appellant invites us to heighten our standard of review from the “abuse of discretion” standard under which we review all other criminal sentences and instead provide a de novo standard of review for sentences of life without parole imposed on juveniles using a “beyond a reasonable doubt” burden of proof, which is ordinarily reserved for review of death sentences. Id. at 47, 49–50. Such standard of review, Appellant reasons, enforces a presumption against imposing life without parole on a juvenile and implements the suggestion in Miller that, “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Id. at 49, quoting, Miller, supra at 2466. Accordingly, Appellant contends in reviewing a sentence of life without parole imposed on a juvenile, our standard of review should be de novo, our scope of review should be plenary, and our standard of proof should be that the Commonwealth must show beyond a reasonable doubt that Appellant is one of the rare juveniles who is “incorrigible.” Id. at 52.
The Juvenile Law Center, the Defender Association of Philadelphia, and the Pennsylvania Association of Criminal Defense Lawyers have collectively filed an amici brief on behalf of Appellant. It reiterates Appellant's contention that Miller contained a presumption against a sentence of life without parole for a juvenile, that we must implement, to guide the common pleas courts tasked with determining whether to sentence a juvenile to life without parole. Amici Brief at 16–22.
Presuming that we will conduct a de novo review of whether the Commonwealth presented evidence sufficient to show beyond a reasonable doubt that Appellant is incorrigible, Appellant proceeds to contest the weight the trial court gave the evidence it reviewed in resentencing Appellant to life without parole. Id. at 55–89. Specifically, Appellant contends that the trial court gave too much weight to the Commonwealth's expert, Dr. Michals, who opined Appellant was not amenable to rehabilitation. Id. at 55–59. In contrast, Appellant maintains that three other experts concluded that Appellant's development since he committed the murder showed rehabilitation was possible. Id. at 59–64. Appellant then points to statements of the trial court that, taken in isolation, arguably do not lead to a conclusion that Appellant is incorrigible. Id. at 64–65. Further, Appellant argues that the trial court improperly rejected several mitigating factors, including duress, gang affiliation, peer pressure, youth, immaturity, and youthful incompetence in dealing with law enforcement. Id. at 65–85. In addition, Appellant contends the trial court erred in finding that his prison record was an aggravating factor. Id. at 85–86.
Similarly, the amici brief contends that the trial court improperly gave too much weight to the circumstances of the homicide and other aggravating factors and not enough weight to the mitigating factors, including Appellant's youth and immaturity. Amici Brief at 26–50.
In response, the Commonwealth asserts that Appellant's first issue is actually a challenge to the discretionary aspects of his sentence, and, as such, Appellant did not preserve the issue on appeal. Commonwealth's Brief at 7. Specifically, the Commonwealth argues that this Court has treated challenges to the imposition of a sentence of life without parole on a juvenile as going to the discretionary aspects of a sentence. Id. at 19, citing, Commonwealth v. Seagraves, 103 A.3d 839 (Pa.Super.2014), appeal denied, ––– Pa. ––––, 116 A.3d 604 (2015). As a challenge to the discretionary aspects of Appellant's sentence, the Commonwealth asserts Appellant did not preserve the issue because his brief does not include a concise statement of reasons relied on under Pennsylvania Rule of Appellate Procedure 2119(f). Id. at 21.
We agree with the Commonwealth. In Batts II, our Supreme Court instructed the trial court to resentence Appellant after considering age-related factors. Batts II, supra. Specifically, our Supreme Court explained that “Miller requires only that there be judicial consideration of the appropriate age-related factors set forth in that decision prior to the imposition of a sentence of life imprisonment without the possibility of parole on a juvenile.” Id. at 296, citing Miller, supra at 2467–2468. The Batts II Court then noted that the appropriate age-related factors for the trial court to consider were contained in Knox. Id. at 297, citing Knox, supra. Appellant contends we should go beyond the affirmative constitutional holdings of Miller and Batts II to impose a heightened burden of proof, and a corresponding more stringent appellate review, in juvenile life without parole cases, akin to death penalty cases. Absent a specific directive from our Supreme Court or the General Assembly to do so, we decline to expand the narrow holding in Miller. See Pa. Const. art. V, § 10(c) (providing our Supreme Court has the exclusive “power to prescribe general rules governing practice, procedure and the conduct of all courts”); Batts II, supra at 296, 299 n. 6 (stating the Court's refusal to go beyond the “actual constitutional command [of] Miller 's binding holding,” and noting the legislature's superior position to implement legal standards to address social policy concerns); see also 18 Pa.C.S.A. § 1102.1 (providing that post-Miller, before imposing a sentence of life without parole on a juvenile, the court should consider age-related factors).
Accordingly, we review Appellant's challenge to the trial court's weighing of sentencing factors, including those age-related ones, as a challenge to the discretionary aspects of his sentence. See Seagraves, supra at 842 (reviewing a juvenile appellant's challenge to a life without parole sentence reimposed on remand following Miller and Batts II for an abuse of discretion); see also Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.Super.2015) (noting a discretionary aspects challenge based on a claim of an excessive sentence along with an assertion that the trial court did not consider a mitigating factor may present a substantial question); Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.Super.2014) (treating a claim challenging the weight the trial court gave to various sentencing factors as one going to the discretionary aspects of the sentence). A challenge to the discretionary aspects of a sentence is not appealable as of right; instead, an appellant must petition for permission to appeal. Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa.Super.2014), appeal denied, ––– Pa. ––––, 109 A.3d 678 (2015). We evaluate the following factors to determine whether to grant permission to appeal a discretionary aspect of sentencing.
Before we reach the merits of this issue, we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue [at sentencing or in a motion to reconsider and modify sentence]; (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 [as required by Pennsylvania Rule of Appellate Procedure 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his [Rule 2119(f)] concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.
Commonwealth v. Edwards, 71 A.3d 323, 329–330 (Pa.Super.2013) (citations omitted), appeal denied, 622 Pa. 765, 81 A.3d 75 (2013). Further, “[i]f a defendant fails to include an issue in his Rule 2119(f) statement, and the Commonwealth objects, then the issue is waived and this Court may not review the claim.” Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.Super.2012), appeal denied, 619 Pa. 721, 65 A.3d 413 (2013).
In this appeal, Appellant filed a timely notice of appeal and preserved his claims in his timely post-sentence motion. However, Appellant's brief did not contain a Rule 2119(f) concise statement of the reasons relied upon for allowance of appeal. The Commonwealth, in its brief, objected to Appellant's failure to include a Rule 2119(f) statement in his brief. Commonwealth's Brief at 21–22. Hence, we are precluded from addressing the discretionary aspects claim. See Edwards, supra; Karns, supra.
In his reply brief, Appellant asserts that “[t]he omission of a Rule 2119(f) statement is not fatal if the presence or absence of a substantial question can easily be determined from the appellant's brief.” Appellant's Reply Brief at 3, citing Commonwealth v. Davis, 734 A.2d 879, 882 n. 4 (Pa.Super.1999). Appellant's reliance on Davis is misplaced and actually supports our conclusion that we may not review Appellant's claim. In Davis, the Commonwealth did not object to the lack of a Rule 2119(f) statement. Id. The Davis court noted, “if the Commonwealth had raised an objection to the Appellant's failure to include a Rule 2119(f) statement in his brief, we would be precluded from addressing the merits of a challenge to the discretionary aspects of sentencing.” Id., citing Commonwealth v. Minnich, 443 Pa.Super. 472, 662 A.2d 21, 24 (1995). In this case, the Commonwealth objected to Appellant's failure to include a Rule 2119(f) statement; therefore, we are precluded from addressing the claim. Id.
In his second issue, Appellant asserts that he was entitled to the same procedural due process afforded to an adult facing capital punishment under the Eighth Amendment and Article I, Section 13 of the Pennsylvania Constitution. Appellant's Brief at 89. Our Supreme Court has explained our standard of review for procedural due process claims as follows.
A due process inquiry, in its most general form, entails an assessment as to whether the challenged proceeding or conduct offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental and that define[s] the community's sense of fair play and decency. While not capable of an exact definition, basic elements of procedural due process are adequate notice, the opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case.
Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 132 (2008) (brackets in original; internal citations and quotation marks omitted).
Specifically, Appellant contends a juvenile facing a sentence of life imprisonment without parole is entitled to the same due process as an adult facing the death penalty, namely the right to be sentenced by a jury, a burden of proof weighted against the Commonwealth, the requirement of a unanimous verdict, and automatic review by our Supreme Court. Appellant's Brief at 93. Appellant bases his argument on the procedure for sentencing adults to the death penalty given in Section 9711 of the Sentencing Code as well as the United States Supreme Court's opinion in Graham v. Florida, 560 U.S. 48, 69–70, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which compared life without parole to the death penalty. Id.
We conclude Appellant's argument lacks merit. We cannot discern any constitutional due process basis or statutory ground to provide juveniles facing life imprisonment without parole with the same procedural due process protections as adults facing the death penalty. Indeed, the Miller Court concluded that a mandatory sentence of life without parole for a juvenile was unconstitutional because “Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” Miller, supra at 2475 (emphasis added). In Miller, however, the Court did not hold that a specific procedure to consider age-related factors was constitutionally required.
Further, in Batts II, our Supreme Court stated that it was determining “the appropriate remedy for the Eighth Amendment violation that, under Miller, occurred when Appellant was mandatorily sentenced to life imprisonment without the possibility of parole upon his conviction for first-degree murder.” Batts II, supra at 293. It remanded with instructions to the common pleas court to resentence Appellant after considering the factors listed in Knox. Id. at 297. It did not instruct the trial court as to a heightened burden of proof or different procedure for considering those age-related factors.
Moreover, while Appellant is not entitled to a sentence under the new sentencing scheme in Section 1102.1 because he was convicted before its effective date, we find our legislature's response to Miller instructive. Section 1102.1(d) instructs the court to make certain findings, including age-related factors, on the record in determining whether to impose a sentence of life without parole on a juvenile. 18 Pa.C.S.A. § 1102.1(d); accord Batts II, supra at 300 (Baer, J., concurring) (encouraging the trial court to apply Section 1102.1 to resentence Appellant).
Therefore, we find no constitutional due process ground or statutory support for Appellant's argument that the procedure in Section 9711 should apply to his resentencing. Cf. Seagraves, supra at 850 (concluding the trial court did not abuse its discretion in reimposing a life without parole sentence on juvenile); Knox, supra (instructing the trial court on remand to consider listed age-related factors in deciding whether to sentence juvenile to life with or without the possibility of parole). Accordingly, Appellant's argument is without merit because the trial court followed the procedure outlined by our Supreme Court to resentence Appellant after considering age-related factors. Batts II, supra at 297.
In his third issue, Appellant argues that his sentence was illegal because the trial court did not adhere to the instructions of our Supreme Court that it impose “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.” Appellant's Brief at 94, quoting Batts II, supra.
Our standard of review for examining the legality of a sentence on appeal is as follows.
A challenge to the legality of a sentence ... may be entertained as long as the reviewing court has jurisdiction. It is also well-established that if no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. 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 quotation marks omitted).
In this case, Appellant was subject to a sentence of life without parole pursuant to Section 1102(a) following his conviction for first-degree murder. Before Miller, life without parole was mandatory for a first-degree murder conviction in Pennsylvania. Miller held a sentence of life without parole could not be mandatory for juveniles. Our Supreme Court specifically held that Miller did not render Section 1102(a) unconstitutional. Batts II, supra at 295–296. Further, Miller did not prohibit either the imposition of a sentence of life without parole or even a mandatory sentence of life with parole for a juvenile. Batts II, supra at 296. Instead, “Miller requires only that there be judicial consideration of the appropriate age-related factors ... prior to the imposition of a sentence of life imprisonment without the possibility of parole on a juvenile.” Id., citing Miller, supra at 2467–2468. Our Supreme Court noted that its holding in Batts II was coextensive with the protections announced in Miller. Id. (citation omitted) (refusing to expand the narrow holding of Miller ).
Despite this, Appellant contends that his sentence was illegal because our Supreme Court, in Batts II, categorically precluded the imposition of a sentence of life without parole on juveniles convicted of first-degree murder prior to the effective date of Section 1102.1. In arguing that the trial court is required to impose a minimum sentence (i.e., a sentence of life with parole), Appellant reads one sentence of our Supreme Court's opinion in Batts II in isolation and contends that it required the trial court to impose a minimum sentence (i.e., a sentence of life with parole). We decline to read Batts II as categorically prohibiting a sentence of life without parole for juveniles sentenced before Miller, which would afford those juveniles a greater protection than the United States Supreme Court held was constitutionally necessary in Miller, a result that our Supreme Court specifically condemned. Id. It would also subject the juveniles convicted before Miller was decided and Section 1102.1 was effective to a lesser sentence than those convicted after Miller and subject to Section 1102.1. We decline to interpret Miller and Batts II as categorically prohibiting a sentence of life without parole for juveniles, such as Appellant, convicted of murder before Miller was issued. See Batts II, supra at 296; see also id. at 300 (Baer, J., concurring) (stating that the Court's decision was to “remand[ ] the case to the trial court for it to resentence Appellant based upon his individual circumstances to a sentence of life imprisonment either with the possibility of parole or without the possibility of parole ... [ ]”). Therefore, we conclude that the trial court herein imposed a legal sentence, consistent with Miller and Batts II, of life without parole after considering Appellant's individual circumstances, including his age-related characteristics.
Based on the foregoing, we conclude all of Appellant's issues are without merit or not preserved. Accordingly, we affirm the May 2, 2014 judgment of sentence.
Judgment of sentence affirmed.
Judge ALLEN joins this opinion.
Justice FITZGERALD files a concurring and dissenting opinion.
CONCURRING AND DISSENTING OPINION BY FITZGERALD, J.:
The Majority Opinion thoroughly summarizes the factual and procedural history of the instant appeal, as well as the legal framework established by Miller and the prior Pennsylvania Supreme Court decision in this matter.1 Majority Op. at 35–41. I concur that Miller must be applied narrowly as a rejection of the mandatory imposition of a juvenile life-without-parole sentence. See id. at 38–39 (discussing Batts II, 66 A.3d at 295–96). I also agree the current law does not support Appellant's suggestion that we import the standards and procedures for the imposition of the death penalty to juvenile life-without-parole sentences. See id. at 44–45 (discussing 42 Pa.C.S. § 9711 and Appellant's Brief at 89, 93). However, following a review of Pennsylvania's sentencing law, I believe waiver under Pa.R.A.P. 2119(f) is not appropriate and would hold the trial court failed to consider properly the unique issues raised when imposing a sentence of life-without-parole. Thus, for the reasons that follow, I would remand this matter for resentencing.
It is undisputed that Miller held “
mandatory
life-without-parole sentences for juveniles violate the Eighth Amendment.” Miller, ––– U.S. at ––––, 132 S.Ct. at 2464, 183 L.Ed.2d at 419 (emphasis added). In focusing on the mandatory nature of sentencing, Justice Kagan's lead opinion in Miller concluded: “By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Id. at ––––, 132 S.Ct. at 2469, 183 L.Ed.2d at 435. Miller declined to consider whether the Eighth Amendment categorically barred juvenile life-without-parole sentences. See id. at ––––, 132 S.Ct. at 2469, 183 L.Ed.2d at 435–36; Batts II, 620 Pa. at 123, 66 A.3d at 291.
Nonetheless, the lead opinion in Miller stated:
[W]e think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty ... of distinguishing at this early age between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.
Miller, ––– U.S. at ––––, 132 S.Ct. at 2469, 183 L.Ed.2d at 436 (citations, quotation marks, and footnote omitted) (emphasis added).
While Miller must be applied narrowly, see Batts, 620 Pa. at 131–32, 66 A.3d at 296, the United States Supreme Court set forth two guiding principles: first, “children are constitutionally different from adults for purposes of sentencing[;]” and second, “youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole.” See Miller, ––– U.S. at ––––, 132 S.Ct. at 2464–65, 183 L.Ed.2d at 420, 424–25. Those polestars reflected the following penological considerations:
First, children have a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-taking. Second, children “are more vulnerable ... to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child's character is not as “well formed” as an adult's; his traits are “less fixed” and his actions less likely to be “evidence of irretrievabl[e] deprav [ity].”
Id. ––– U.S. at ––––, 132 S.Ct. at 2464, 183 L.Ed.2d at 420–21 (citations and footnote omitted). Moreover,
[“]‘[o]nly a relatively small proportion of adolescents' ” who engage in illegal activity “ ‘develop entrenched patterns of problem behavior.’ ” ... [“D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds”—for example, in “parts of the brain involved in behavior control.” [T]hose findings—of transient rashness, proclivity for risk, and inability to assess consequences—both lessened a child's “moral culpability” and enhanced the prospect that, as the years go by and neurological development occurs, his “ ‘deficiencies will be reformed.’ ”
Id. at ––––, 132 S.Ct. at 2464–65, 183 L.Ed.2d at 421–22 (citations omitted).
The Miller Court summarized:
[T]he distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes. Because “ ‘[t]he heart of the retribution rationale’ ” relates to an offender's blameworthiness, “ ‘the case for retribution is not as strong with a minor as with an adult.’ ” Nor can deterrence do the work in this context, because “ ‘the same characteristics that render juveniles less culpable than adults' ”—their immaturity, recklessness, and impetuosity—make them less likely to consider potential punishment. Similarly, incapacitation could not support the life-without-parole sentence.... Deciding that a “juvenile offender forever will be a danger to society” would require “mak[ing] a judgment that [he] is incorrigible”—but “ ‘incorrigibility is inconsistent with youth.’ ” And for the same reason, rehabilitation could not justify that sentence. Life without parole “forswears altogether the rehabilitative ideal.” It reflects “an irrevocable judgment about [an offender's] value and place in society,” at odds with a child's capacity for change.
Id. at ––––, 132 S.Ct. at 2465, 183 L.Ed.2d at 423–24 (citations omitted).
Following Miller, the Pennsylvania Supreme Court remanded this matter for resentencing and directed the trial court, inter alia, to consider age-related factors. See Batts II, 620 Pa. at 133, 66 A.3d at 297 (citing Commonwealth v. Knox, 50 A.3d 732, 745 (Pa.Super.2012)). However, the Batts II decision did not provide guidance on how to consider age-related factors. Id. at 296–97. In my view, the answer lies in the traditional sentencing principles in Pennsylvania and an evaluation of the effects of Miller.
Traditionally, sentencing for murder of the first degree represented an exception to Pennsylvania's “indeterminate, advisory, and guided” sentencing scheme. See Commonwealth v. Yuhasz, 592 Pa. at 120, 131, 923 A.2d 1111, 1117 (2007); Batts II, 620 Pa. at 131, 66 A.3d at 295. The General Assembly mandated the imposition of a single, maximum sentence of at least a term of life imprisonment for first-degree murder. See, e.g., 18 Pa.C.S. § 1102(a) (subsequently amended Oct. 25, 2012); 42 Pa.C.S. § 9711; Batts II, 620 Pa. at 131, 133–34, 66 A.3d at 295, 297; accord 18 Pa.C.S. § 1102.1(a), (b); Commonwealth v. Yount, 419 Pa.Super. 613, 623, 615 A.2d 1316, 1321 (1992) (recognizing trial court could not sentence first-degree murderer to lesser term than life). That sentence was made “without parole” under the Prisons and Parole Code. See 61 Pa.C.S. § 6137(a)(1); Batts II, 620 Pa. at 131, 66 A.3d at 295–96. As noted in Batts II, this mandatory sentencing scheme applied to a juvenile-defendant when the trial court denied a petition for decertification under the Juvenile Act. See 42 Pa.C.S. §§ 6302, 6322(a); Batts II, 620 Pa. at 131, 66 A.3d at 295–96.
Following Miller, a trial court must impose a maximum sentence of life, but may impose a minimum sentence in a term of years. See Batts II, 620 Pa. at 133–34, 66 A.3d at 296; cf. 18 Pa.C.S. § 1102.1(a). The trial court may also impose a maximum term of life imprisonment and, after consideration of age-related factors, withhold the possibility of parole at the time of sentencing. See Knox, 50 A.3d at 735; cf. 18 Pa.C.S. § 1102.1(d).
Although the determination of an appropriate minimum sentence is amendable to analysis under Pennsylvania's traditional sentencing scheme, the denial of the possibility of parole remains a novel and evolving issue.2 The imposition of a juvenile life-without-parole sentence, in my view, requires different considerations. Cf. Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa.Super.2014) (describing juvenile life-without-parole sentence as “preventing a juvenile ... from ever obtaining any hope of release from confinement”); accord Miller, ––– U.S. at ––––, 132 S.Ct. at 2465, 183 L.Ed.2d at 424 (“Life without parole ‘forswears altogether the rehabilitative ideal.’ It reflects ‘an irrevocable judgment about [an offender's] value and place in society,’ at odds with a child's capacity for change.”). Moreover, factors such as the protection of the public, the gravity of the offense in relation to the impact on the victim and the community, and the defendant's rehabilitative needs are implicitly considered by the fact that a juvenile-defendant convicted of first-degree murder will be subject to some form of supervision by the Commonwealth for life. See 42 Pa.C.S. § 9721(b); Commonwealth v. Walls, 592 Pa. 557, 569, 926 A.2d 957, 964 (Pa.2007).
Conversely, Miller and Batts ended decades of sentencing under the mandatory life-without-parole scheme for juveniles convicted of first-degree murder. Indeed, our prior law provided no meaningful basis to challenge a sentence withholding the possibility of parole.
Turning to the specifics of this case, I disagree with the Majority that Appellant's claims regarding the consideration of age-related factors have been waived under Pa.R.A.P. 2119(f). See Majority Op. at ––––. A sentence for murder is not a felony or misdemeanor subject to the discretionary review process. See 18 Pa.C.S. § 106 (listing murder as a separate class of offense from felonies and misdemeanors); 42 Pa.C.S. § 9781(b) (“The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals.”); Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 513, 522 A.2d 17, 19 (1987) (Rule 2119(f) “furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.”). Moreover, the standards and procedures for sentencing a juvenile to life without parole do not arise from the Sentencing Code. See 42 Pa.C.S. § 9781(b) (requiring petitioning party to show substantial question that sentence imposed in not appropriate under [the Sentencing Code] ). Lastly, our assessment of the requirement that a trial court “consider” age-related factors when imposing a juvenile life-without-parole sentence raises a sufficiently extraordinary legal question to warrant review despite a procedural default. Therefore, I would decline to find Appellant's issues waived under Rule 2119(f).
Our standard of review is as follows:
[T]he proper standard of review when considering whether to affirm the sentencing court's determination is an abuse of discretion. [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless “the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.” In more expansive terms, [“a]n abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.”
Walls, 592 Pa. at 564, 926 A.2d at 961 (citations omitted). However,
[t]he grant of broad discretion does not render the sentence imposed immune to challenge in the appellate courts:
[The] deference paid to the trial court does not necessitate a rubber stamped approval of the sentences imposed by the sentencing court. Appellate review of sentencing matters would become a mockery and a sham if all sentences were routinely affirmed under the guise of discretion of the trial court. Further, it must be considered our function to review sentences in a more detached manner so that we can ensure not only a fair and impartial sentence under the circumstances, but also to protect against grossly disparate treatment of like offenders throughout the Commonwealth.
Commonwealth v. Vega, 850 A.2d 1277, 1281 (Pa.Super.2004) (citation omitted). Further, where, as here, the presiding judge at sentencing is not the trial judge, “many of the factors justifying the deference normally accorded to the sentencing court are not present....” Commonwealth v. Bullicki, 355 Pa.Super. 416, 419, 513 A.2d 990, 991 (1986) (citations omitted).
Instantly, the trial court set forth a thorough summary of its findings of fact, conclusions of law, and explanation of its sentence over sixty pages of transcript. See N.T., 5/2/14, at 6–66. After summarizing approximately eleven aggravating factors and four mitigating factors, the court determined “the factors not in [Appellant's] favor significantly outweigh the factors in his favor.” See id., at 64–65. Under ordinary circumstances, such diligence on the part of a trial court alone provides a basis for not disturbing its exercise of discretion. See Commonwealth v. Begley, 566 Pa. 239, 302, 780 A.2d 605, 643 (Pa.2001) (“As long as the trial court's reasons demonstrate that it weighed the Sentencing Guidelines with the facts of the crime and the defendant's character in a meaningful fashion, the court's sentence should not be disturbed.”). Nevertheless, a closer inspection of the trial court's findings of facts and conclusion of law reveals two gaps in the court's reasoning.
First, the trial court, in my view, properly set forth the threshold issue when imposing a juvenile life-without-parole sentence—that is, the distinction “between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” See Miller, ––– U.S at ––––, 132 S.Ct. at 2469, 183 L.Ed.2d at 436 (emphasis added); N.T., 5/2/14, at 66. However, its specific conclusions that it would “give [Appellant] only limited consideration for his youth and immaturity,” and its holding that “[w]here defendant actively seeks out and welcomes peer pressure, the peer pressure does not diminish his culpability” requires further comment. See N.T., 5/2/14, at 47, 49, 52.
In limiting its consideration of youth and immaturity, the trial court reasoned:
Although there may be circumstances in which a crime can be partially explained by a young defendant's recklessness, poor judgment, lack of foresight, susceptibility to peer pressure, or weak impulse control, this was not such a crime. [Appellant] did not act on impulse. He was not caught up in youthful risk-taking behavior and lacked the ability to foresee how it might get out of control. [Appellant] made a purposeful choice to move out of his parents' home and commit himself to life in the Bloods gang. He knew from prior experience and observation that the Bloods gang was a violent criminal organization and that he would be asked to commit violent criminal acts. Four days after [Appellant] moved out of his parents' house, Bradley offered [Appellant] the opportunity to prove himself by committing murder, and [Appellant] acted on the opportunity. He was not caught up in the heat of a stressful confrontation but had time to plan and deliberate. He placed a mask over his face, pulled gloves onto his hands, and picked up a handgun. He got out of the car and walked down the street toward the Edwards house. When he walked up the steps to the front porch with the gun in his hand, he was not acting on impulse or a lack of appreciation for what might happen next. He knew exactly what he was going to do. He made a calculated decision to shoot two defenseless boys at point blank range. He shot one boy in the back as he was running away. He shot the other boy twice in the head as he lay helpless on the porch and looking directly up into his face. This was not a crime that resulted from youthful impulsivity, a mistake in judgment, or inability to foresee the consequences of his actions. [Appellant] intended to kill, and he did kill. Whether he did so to earn a promotion or only to meet the gang's expectations, his intent was to prove to his fellow criminals that he was willing to commit a cold-blooded murder.
I am not suggesting that premeditated murder can never be considered impulsive for purposes of sentencing. There might well be circumstances under which premeditated murder could be the product of poor judgment, lack of foresight, susceptibility to peer pressure, and weak impulse control. That is not the case here.
N.T., 5/2/14, at 46–47. The court further emphasized that although a senior gang member, Vernon Bradley, “invited” the commission of the crime, Appellant agreed to do so and “acted alone”. See id. at 57. Appellant was fourteen years old at the time of the crimes.
The trial court was entitled to consider the callous and deliberate nature of Appellant's killing of sixteen-year-old Clarence Edwards and shooting eighteen-year-old Corey Hilario in the back. Similarly, the court's findings that Appellant's association with the Bloods and his decision to “act alone” were “volitional” rebut Appellant's claim of duress. However, the fact that Appellant made conscious choices between the ages of twelve and fourteen does not necessarily diminish the distinctive attributes of youth. Cf. Miller, ––– U.S. at ––––, 132 S.Ct. at 2464–65, 183 L.Ed.2d at 420–21 (“children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking. Second, children are more vulnerable ... to negative influences and outside pressures, including from their family and peers” (internal quotation marks omitted)).
The evidence at the resentencing hearing established a “troubled childhood” that included Appellant's removal from his young mother's care3 when he was five years old. See N.T., 5/2/14, at 41. He moved “frequently from one home to another” and spent time in foster homes, as well as a homeless shelter for youths. See id. According to the trial court's summary of the facts, Appellant returned to his mother and stepfather's care at the age of twelve, when he was in the seventh grade. Id. at 42. Appellant befriended a Blood, who was subsequently imprisoned. Id. at 25. When in eighth grade, Appellant “was approached by the Bloods and invited to join the gang.” Id. The trial court noted, “Because [Appellant's] own family life had been fractured, he found gang life appealing.” Id.
When Appellant was in the ninth grade, approximately two years after reuniting with his mother, Appellant moved out of her home following a family dispute. Id. at 42. He stayed with gang members after leaving home. Id. at 27. Appellant met Bradley, a more senior Blood, who “invited” him to confront Edwards. See id. at 47. Four days later, Appellant and Bradley were in a car with other Bloods and Bradley asked who wanted to “put in work.” See id. at 14, 47. Ultimately, Appellant agreed, and Bradley “gave him a mask and a handgun.” Id. at 14. Appellant put on a glove, approached the victims' home, shot Hilario in the back as Hilario fled into the house, and shot Edwards twice in the head after Edwards fell to the ground. Id. at 14, 27–28. Appellant was fourteen years old when he committed the murder and attempted murder.
These were horrific crimes. However, the court finding that Appellant “acted alone” ignored the totality of circumstances under which Appellant met Bradley, Bradley instigated Appellant to undertake the criminal acts, and Bradley gave Appellant the weapon.4
Further, Appellant's descent into gang association after returning to his mother's care at the age of twelve and the commission of the crime at the age of fourteen correlate with the distinctive attributes of youth. The Commonwealth's expert, Dr. Timothy J. Michals, testified at trial that Appellant was not forced to join a gang, but “there was a need on his part to belong to something, and he made the choice of going in that direction.” N.T., 7/26/07, at 160–61. Nevertheless, Dr. Michals opined Appellant exhibited “rash and impulsive willingness to court danger and risk harm. He acts fearless in the face of threats and punitive action.” Id. at 166. Dr. Steven E. Samuel, another Commonwealth expert at the decertification hearing, opined that Appellant was “vulnerable to the demands of an older, more powerful male.” Report by Steven Samuel, Ph.D., 1/12/07, at 6. Appellant's defense experts, Dr. Frank M. Dattilio, and Dana Cook, both suggested Appellant was vulnerable to gang influences. Report by Frank M. Datillio, Ph.D., 11/21/13, at 15; Addendum to Report by Dana Cook, M.S., 12/31/13, at 3 (unpaginated). The court further credited the testimony of Dr. Susan E. Kraus, a county psychologist, who evaluated Appellant for the presentence report. She testified that Appellant was willing “to do anything to become accepted as a successful gang member, including the commission of murder.” N.T., 5/2/14, 46, 52. Even if Appellant's decision to join the Bloods was “volitional,” it was the purposeful decision of a juvenile who was then twelve or thirteen years old.
Further, the trial court's own findings that Appellant's criminal actions were “out of character” for him, belie its determination to devalue the attributes of youth. N.T., 5/2/14, at 51–52. Before the shootings, Appellant had no prior criminal record, but engaged in fights, and began to use and sell drugs. Id. at 37, 44, 51. After the shootings, Appellant had six disciplinary infractions while incarcerated, including a fight in 2010 and throwing liquid at another inmate in 2014. Id. at 34–35, 51. However, as the court observed, those episodes did not approach the level of violence displayed in the instant crimes. Id. at 51–52. Thus, the trial court's discounting of Appellant's youthful attributes and susceptibility to gangs as it related to his culpability lacked support in the record.
Second, the trial court noted that all the experts at resentencing agreed that Appellant “demonstrated some capacity for change in recent years.” Id. at 54. It observed the Commonwealth's expert, Dr. Michals, stated Appellant was resistant to treatment and had limited potential for rehabilitation due to “chronic psychological maladjustment.” N.T., 5/1/14, at 49, 59. Dr. Michals also suggested Appellant “is who he is[,]” and described Appellant as being “impulsive,” possessing “poor judgment,” and engaging in “acting out” behavior. N.T., Id. at 49–50. Dr. Michals concluded, “Characteristics can change but it's very difficult to make changes to the basic structure of ... personality.” Id. at 59.
However, the court also noted Appellant's two experts and an independent evaluator opined Appellant was amenable to rehabilitation. N.T., 5/2/14, at 54. Specifically, Dr. Dattilio stated Appellant has “the capacity to change,” “the desire is genuine,” and his “remorse is genuine.” N.T., 5/1/14, at 110. Ms. Cook opined Appellant has “an extraordinary amount of potential to be a law-abiding member of society....” Report by Dana Cook, M.S., 12/31/13, at 4 (unpaginated). Dr. Kraus determined Appellant “ ‘appear[ed] to have made significant changes in his thinking and behavior over his years in prison and at this point appears competent and amenable to treatment.’ ” N.T., 5/2/14, at 53. Dr. Kraus opined that Appellant would need supervision if released. Id.
The trial court determined Appellant's “young age weigh[ed]
slightly
in [his] favor in assessing [his] amenability to treatment and rehabilitation and [his] rehabilitation and [his] capacity for change.” Id. at 61 (emphasis added). It concluded that it could not “be confident of significant change ... without years of therapy” or “an extended period of incarceration.” Id. at 54, 59–60.
In my view, the trial court's findings and conclusions contradict the principle that “youth matters” because of the innate ability of a juvenile to change and mature. Cf. Miller, ––– U.S. at ––––, 132 S.Ct. at 2464, 183 L.Ed.2d at 421 (“a child's character is not as ‘well formed’ as an adult's; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].’). The court heard evidence that fourteen was a critical age as Appellant was “just forming [his] sense of self, [his] sense of judgment and reason.” N.T., 5/1/14, at 107. Further, although the court purported to consider 18 Pa.C.S. § 1102.1, it did not discern the General Assembly's policy decision that youth particularly matters when the juvenile-defendant is younger than fifteen when he commits the crime. See 18 Pa.C.S. § 1102.1(a)(1)–(2) (reducing mandatory minimum sentence from thirty-five years for those aged fifteen or older to twenty-five years for those under age of fifteen).
The trial court, moreover, framed its choice as two extremes: the Commonwealth's recommendation that Appellant be sentenced to life without parole, and Appellant's request for a sentence of twenty-five years to life as suggested by 18 Pa.C.S. § 1102.1. See N.T., 5/2/14, at 56. But see Batts II, 620 Pa. at 127 66 A.3d at 293. There was no meaningful consideration of a minimum term of incarceration, above the twenty-five year minimum sentence it rejected.5 See N.T., 5/2/14 at 64; cf. 18 Pa.C.S. § 1102.1(e) (permitting trial court to sentence above mandatory minimum sentence).
Similarly, the trial court suggested that a sentence less than life without parole would be an act of “leniency” or “mercy,” which would depreciate the seriousness of the offense and impact on the victims. The court, inter alia, referred to sentencing factors that “weigh against leniency,” and opined that “[c]ompassion for [Appellant] does not diminish the needs of the victim and the community to see that justice is done.” See N.T., 5/2/14, at 56, 67–68. After imposing its sentence, the court posed a rhetorical question whether Appellant's family would ask for mercy if the Appellant had been killed.6 Id. at 68. Shortly thereafter, it concluded the resentencing proceeding, stating, “Mercy for [Appellant] will have to come from God. God have mercy on [his] soul.” Id. at 68.
The court misperceives the nature of our indeterminate sentencing scheme by viewing an appropriately crafted definite minimum sentence as lenient. See Yuhasz, 592 Pa. at 131, 923 A.2d at 1117–1118; Commonwealth v. Daniel, 430 Pa. 642, 647–48, 243 A.2d 400, 403 (1968) (“[T]he maximum sentence is the only portion of the sentence which has legal validity, and that the minimum sentence is merely an administrative notice” regarding the availability of parole.) An appropriate minimum sentence would create no right to release on parole. See Rogers v. Bd. of Prob. & Parole, 555 Pa. 285, 292, 724 A.2d 319, 323 (1999); Commonwealth v. Kleinicke, 895 A.2d 562, 572 (Pa.Super.2006) (en banc ). Parole requires further assessments. Parole would only be granted after “a prisoner has demonstrated to the Parole Board's satisfaction, his future ability to function as a law-abiding member of society.” See Rogers, 555 Pa. at 292, 724 A.2d at 322–23. If granted, release would be conditional, and the juvenile-defendant would remain subject to supervision by the Commonwealth. Thus, I believe the court did not properly assess the possibility of Appellant's rehabilitation or consider the sentencing alternatives available to it.
In sum, I would conclude the record reveals an abuse of discretion when imposing a life-without-parole sentence. The trial court's discounting of Appellant's youthful attributes and susceptibility to peer pressure lacked support in the record. The court failed to recognize the inherent possibility and record evidence of a fourteen-year-old offender's potential for rehabilitation. Further, it did not consider the sentencing alternatives. Therefore, I would remand this matter for resentencing.