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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARCUS ANTHONY RUTTER,
Appellant No. 1995 MDA 2016
Appeal from the Judgment of Sentence July 29, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000287-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 23, 2017
Appellant, Marcus Anthony Rutter, appeals from the judgment of
sentence entered on July 29, 2016, in the Lancaster County Court of
Common Pleas. After careful review, we vacate and remand for
resentencing.
In an opinion filed on November 3, 2016, the trial court provided a
thorough recitation of the facts in this case, and, therefore, we need not
restate them here. See Trial Court Opinion, 11/3/16, at 12-16. To briefly
summarize, however, in the early morning of December 15, 2014, Appellant,
who was sixteen years old at the time, and an accomplice, burglarized the
home of a thirty-two year old woman. Appellant and his accomplice sexually
assaulted and brutally beat, stabbed, and strangled the victim until she died.
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On December 16, 2014, the Commonwealth charged Appellant with
criminal homicide, burglary, criminal conspiracy to commit burglary, and
robbery.1 On January 9, 2015, the Commonwealth amended the criminal
complaint to include charges of involuntary deviate sexual intercourse,2
receiving stolen property, theft by unlawful taking, and access device fraud.3
On July 11, 2016, Appellant entered an open guilty plea to first-degree
murder, conspiracy to commit murder, burglary, robbery, receiving stolen
property, and access device fraud. N.T., Guilty Plea, 7/11/16, at 36. In
exchange for pleading guilty, the Commonwealth withdrew the charges of
theft by unlawful taking and involuntary deviate sexual intercourse; the
charge of conspiracy to commit burglary was replaced with conspiracy to
commit murder. The Commonwealth agreed that it would not seek a
sentence of life without parole, but it was also agreed that the sentences on
each count would be served consecutively. N.T., Guilty Plea, 7/11/16, at 3-
5.
On July 29, 2016, the trial court sentenced Appellant as follows: thirty-
five to seventy years of incarceration for the murder conviction; ten to
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118 Pa.C.S. § 2501(a), 18 Pa.C.S. § 3502(a)(1), 18 Pa.C.S. § 903, and 18
Pa.C.S. § 3701(a)(1)(iv), respectively.
2 Forensic evidence revealed that the victim had been anally penetrated.
N.T., Sentencing, 7/29/16, at 4-5.
318 Pa.C.S. § 3123(a)(1), 18 Pa.C.S. § 3925(a), 18 Pa.C.S. § 3921(a), and
18 Pa.C.S. § 4106(a)(1)(i), respectively.
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twenty years of incarceration for conspiracy; five and one-half to eleven
years of incarceration for robbery; two to four years of incarceration for
burglary; nine to twenty-four months of incarceration for receiving stolen
property; and nine to twenty-four months of incarceration for access device
fraud. N.T., Sentencing, 7/29/16, at 156-158. The sentences for were
ordered to run consecutively. Id. at 158. This resulted in an aggregated
sentence of fifty-four to 109 years of incarceration.
Appellant filed a post-sentence motion asking the trial court to
reconsider and modify the sentence. The trial court denied Appellant’s post-
sentence motion on November 3, 2016, and this timely appeal followed.
On appeal, Appellant raises the following issues for this Court’s
consideration:
I. Is the aggregate sentence of the trial court the functional
equivalent of a life sentence, affording [Appellant] no meaningful
opportunity for release, and a violation of the Eighth and
Fourteenth Amendments to the United States Constitution?
II. Was the trial court’s imposition of what amounts to a de facto
life sentence a violation of the agreement of the parties that the
court could not impose a sentence of life without parole?
III. Did the trial court erred in finding that [Appellant] was
“irretrievably depraved, irreparably corrupt, and permanently
incorrigible,” where this finding was not supported by competent
evidence of record or any expert witness, the finding was
improperly based on shifting the burden of proof to [Appellant]
to prove that he would not engage in future criminal conduct,
and the finding was used to justify a de facto life sentence,
despite the court’s contradictory finding that [Appellant]
“possesses the capacity for change”?
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IV. In imposing sentence, did the trial court rely on numerous
erroneous findings of fact which were unsupported, or
contradicted, by the record, including errors of fact in applying
the Miller[ v. Alabama, 567 U.S. 460 (2012)] youth factors and
in considering the factors set forth in 18 Pa.C.S. §1102.1, and
did the court’s reliance on these erroneous findings of fact in
imposing sentence demonstrate the court’s bias, and was it an
abuse of the court’s discretion in imposing sentence?
V. Was the aggregate sentence of 54 to 109 years so manifestly
excessive as to constitute too severe a punishment, and clearly
unreasonable under the circumstances; further, did the trial
court focus exclusively on the nature of the offenses, despite the
clear dictates of Roper, Miller and Montgomery,[4] that the nature
of the offense cannot be permitted to overshadow the possibility
of rehabilitation in cases of juvenile offenders?
Appellant’s Brief at 7-8.
In Appellant’s first two issues, he argues that his sentence violated the
plea agreement as it was a de facto life sentence and was also an illegal
sentence in violation of the Eighth Amendment to the United States
Constitution’s prohibition against cruel and unusual punishment pursuant to
Miller v. Alabama, 567 U.S. 460 (2012). Appellant’s Brief at 16. A
challenge to the legality of a sentence is a question of law, and our standard
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4 Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth
Amendment to the United States Constitution prohibits the death penalty for
a crime committed by a juvenile); Miller v. Alabama, 567 U.S. 460 (2012)
(concluding that mandatory sentences of life without parole for juveniles
violates the Eighth Amendment’s prohibition on cruel and unusual
punishment); Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718
(2016) (finding that the Miller announced a new substantive rule of
constitutional law that applies retroactively and clarifying the limited
circumstances in which a sentence of life without parole is permissible for a
crime committed by a juvenile).
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of review is de novo while our scope of review is plenary. Commonwealth
v. Blakney, 152 A.3d 1053, 1054 (Pa. Super. 2016).
In Miller, the Supreme Court of the United States held that
“mandatory 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.’” Miller, 567 U.S. at 465. However, Miller did not
provide a blanket prohibition on life sentences for juveniles. The Supreme
Court in Miller required the sentencing court to first “take into account how
children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Id. at 480. The Supreme Court
also recognized that certain juvenile offenders may exhibit such irretrievable
depravity that rehabilitation is impossible, and life without parole is
warranted. Id. The factors a sentencing court must consider in determining
whether to impose a sentence of life without the possibility of parole are as
follows:
(1) The impact of the offense on each victim, including oral and
written victim impact statements made or submitted by family
members of the victim detailing the physical, psychological and
economic effects of the crime on the victim and the victim’s
family. A victim impact statement may include comment on the
sentence of the defendant.
(2) The impact of the offense on the community.
(3) The threat to the safety of the public or any individual posed
by the defendant.
(4) The nature and circumstances of the offense committed by
the defendant.
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(5) The degree of the defendant’s culpability.
(6) Guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing.
(7) Age-related characteristics of the defendant, including:
(i) Age.
(ii) Mental capacity.
(iii) Maturity.
(iv) The degree of criminal sophistication exhibited
by the defendant.
(v) The nature and extent of any prior delinquent or
criminal history, including the success or failure of
any previous attempts by the court to rehabilitate
the defendant.
(vi) Probation or institutional reports.
(vii) Other relevant factors.
18 Pa.C.S. § 1102.1(d); see also Commonwealth v. Batts, 163 A.3d 410,
421 n.5 (Pa. 2017) (providing that at 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
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attorney, his mental health history, and his potential for rehabilitation)
(citations omitted).
Appellant concedes that the trial court did not impose a life sentence;
rather, he claims he received a de facto life sentence because he has “no
meaningful opportunity for release.” Appellant’s Brief at 17. This, he avers,
renders the sentence illegal. Id. We disagree.
The relevant statute provides that “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 life imprisonment without parole, or a term of imprisonment, the
minimum of which shall be at least 35 years to life.” 18 Pa.C.S. §
1102.1(a)(1) (emphasis added). The trial court sentenced Appellant to the
minimum legal term of thirty-five years of incarceration for his murder
conviction. 18 Pa.C.S. § 1102.1(a)(1). Clearly, the trial court followed the
plea agreement and did not impose a mandatory life sentence without the
possibility of parole for the murder conviction.
Nevertheless, Appellant argues that he will be seventy years old at the
time he is first eligible for parole, rendering the sentence a life sentence.
Appellant’s Brief at 17. We reject Appellant’s argument on several bases.
First, the plea agreement did not impact the legality of Appellant’s sentence
because the acceptance or rejection of a plea agreement is left to the
discretion of the trial court. Commonwealth v. Hudson, 820 A.2d 720,
727-728 (Pa. Super. 2003) (citations and quotation marks omitted).
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Second, had Appellant committed only the murder, his minimum sentence of
thirty-five years would have provided him an opportunity for parole at age
fifty-one. Indeed, it was Appellant’s decision to engage in numerous
additional crimes the night he murdered the victim that increased his
minimum sentence, and that increase was due only to the sentences running
consecutively. This in no way involves the legality of Appellant’s minimum
sentence for murder. Rather, the duration of the minimum aggregate
sentence is due to Appellant’s sentences running consecutively and
implicates only the discretionary aspects of his sentence, not its legality.5
Appellant’s minimum sentence of thirty-five years for the murder conviction
was a legal sentence, and it comported with the plea agreement.6
In his third and fourth issues on appeal, Appellant continues to argue
that he received an illegal de facto life sentence without parole. He argues
that this was error because the trial court failed to properly weigh the factors
that must be considered when a juvenile is given a sentence of life without
parole under Miller, Batts, and 18 Pa.C.S. § 1102.1(d). Appellant’s Brief at
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5 See Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super.
2010) (appellant’s claim that imposition of consecutive sentences was
excessive was a challenge to the discretionary aspects of his sentence).
6 As set forth by the trial court in its recitation of the facts and procedural
history, Appellant’s guilty plea contained an agreement that the
Commonwealth would not pursue a minimum sentence of life without parole,
but the sentences for each crime would be served consecutively. Trial Court
Opinion, 11/3/16, at 15 (citing N.T., Guilty Plea Colloquy, 7/11/16, at 3).
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30-54. However, we reiterate that the trial court did not impose a sentence
of life in prison without the possibility of parole for the murder conviction.
Indeed, the trial court imposed the lowest permissible minimum sentence for
a juvenile over the age of fifteen for the crime of murder in the first degree.
18 Pa.C.S. § 1102.1(a)(1). Again, we note the portion of Appellant’s
aggregated minimum sentence that is beyond the thirty-five-year minimum
term for the murder was due to Appellant’s sentences for other crimes and
the trial court’s discretion, in accordance with the plea agreement, to run
those additional terms of incarceration consecutively. Thus, once more,
Appellant’s claim of error is not an issue of legality of the murder sentence,
it is a challenge to the discretionary aspects of his aggregated sentence.
For the reasons set forth above, there was no error in the imposition of
a minimum sentence of thirty-five years for the murder conviction.
However, we are constrained to point out that Appellant’s maximum
sentence of seventy years for the murder conviction was imposed with no
legal authority, and if no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction.
Commonwealth v. Martinez, 141 A.3d 485, 487 (Pa. Super. 2016). This
Court may raise and review an illegal sentence sua sponte.
Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa. Super.
2011).
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Under 18 Pa.C.S. § 1102.1(a)(1), an individual between the ages of
fifteen and seventeen who was convicted of first-degree murder after June
24, 2012, must be sentenced to a maximum term of life imprisonment.
Commonwealth v. Seskey, ___ A.3d ___, ___, 2017 PA Super 278, at *3
(Pa. Super. 2017) (citing 18 Pa.C.S. § 1102.1(a)(1) (emphasis added)). A
maximum sentence of seventy years is not a permissible sentence under the
statute, and it is therefore, illegal; the minimum legal sentence the trial
court was permitted to impose for the murder conviction was a term of
thirty-five years to life. 18 Pa.C.S. § 1102.1(a)(1).
It is well settled that this Court has the option of amending a sentence
directly; however, if the correction may upset the sentencing scheme, the
better practice is to remand to the trial court for resentencing.
Commonwealth v. Phillips, 946 A.2d 103, 115 (Pa. Super. 2008). As our
remand may upset the trial court’s sentencing scheme, we vacate
Appellant’s judgment of sentence in its entirety, and we remand for
resentencing.7
For the reasons set forth above, we are constrained to vacate
Appellant’s judgment of sentence and remand for resentencing. On remand,
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7 In light of our disposition in which we have remanded this matter for
resentencing on all counts, we do not reach Appellant’s challenge to the
discretionary aspects of his sentence raised in his fifth issue.
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the sentence imposed on Appellant’s murder conviction shall comport with
18 Pa.C.S. § 1102.1(a)(1) and our decision in Seskey.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2017
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