J-S69020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
TERRANCE L. KRONK :
: No. 501 WDA 2017
Appellant
Appeal from the Judgment of Sentence August 30, 2016
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000767-1976
BEFORE: BOWES, J., RANSOM, J., and STEVENS*, P.J.E.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 12, 2018
Appellant, Terrance L. Kronk, appeals from the judgment of sentence of
forty years to life, imposed August 30, 2016, following remand for
resentencing pursuant to Miller v. Alabama, 132 S.Ct. 2455 (2012),
Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and Commonwealth v.
Batts, 66 A.3d 286 (Pa. 2013) (“Batts I”). We affirm.
The procedural history and relevant facts are as follows:
On November 9, 1975, Appellant entered an open guilty plea
to one count of criminal homicide. On October 17, 1976, the trial
court found Appellant guilty of second-degree murder and
sentenced him to a mandatory term of life imprisonment without
the possibility of parole. Appellant was a juvenile at the time he
committed the murder.
During his incarceration, Appellant filed multiple unsuccessful
petitions for writ of habeas corpus and PCRA relief. However, on
August 6, 2012, Appellant filed a PCRA petition alleging that he
was entitled to relief pursuant to the United States Supreme
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* Former Justice specially assigned to the Superior Court.
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Court's decision in Miller v. Alabama, 132 S.Ct. 2455 (2012),
which held that mandatory life sentences for juvenile offenders
were unconstitutional.
***
The Supreme Court decided Miller on June 25, 2012, and
Appellant filed the [] PCRA petition forty-two days later. See 42
Pa.C.S. § 9545(b)(2) (stating that a PCRA petition must be filed
within sixty days of the date the claim could have been
presented). Appellant argued that the decision in Miller should
be retroactively applied. On November 6, 2013, the PCRA court
dismissed Appellant's petition, and on May 22, 2015, we affirmed
the PCRA court's order.
Appellant filed a petition for allowance of appeal with our
Supreme Court on May 27, 2015. While that petition was pending,
on January 25, 2016, the United States Supreme Court filed its
opinion in Montgomery. In the Montgomery decision, the
United States Supreme Court held that Miller's prohibition on
mandatory life sentences without the possibility of parole for
juvenile offenders was a new substantive rule, and it must be
applied retroactively in cases on collateral review in state
courts. Montgomery, 136 S.Ct. at 732. Accordingly, on February
24, 2016, the Pennsylvania Supreme Court vacated our May 22,
2015 decision and remanded Appellant's appeal from the denial of
PCRA relief to this Court. [See Commonwealth v. Kronk, 132
A.3d 979 (Pa. 2016)]
Commonwealth v. Kronk, 1853 WDA 2014, 2016 WL 1546485, at *1 (Pa.
Super. Apr. 15, 2016) (unpublished memorandum). This Court determined
that Appellant was entitled to PCRA relief. Id. at *2.1 This Court reversed
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1 “[P]etitioners whose PCRA petitions were based on Miller and were on
appeal at the time the United States Supreme Court filed its decision
in Montgomery are entitled to relief from their unconstitutional sentences[.]”
Kronk, 2016 WL 1546485, at *2 (citing Commonwealth v. Secreti, 134
A.3d 77 (Pa. Super. 2016)).
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the PCRA court’s order dismissing Appellant’s petition, vacated Appellant’s
judgment of sentence, and remanded for resentencing in accordance with
Miller.2
On August 30, 2016, the trial court held a resentencing hearing.
Thereafter, the court resentenced Appellant to forty years to life. Appellant
timely filed a post-sentence motion, which was denied. Appellant timely
appealed his new sentence and filed a court-ordered 1925(b) statement. The
trial court issued a responsive opinion.
On appeal, Appellant raises the following issues:
I. Did the sentencing court commit legal error when it entered
a sentence “pursuant to” 18 Pa.C.S. § 1102.1(c)(1) for an
offense committed before that Section’s effective date?
II. Did the sentencing court abuse its discretion?
Appellant's Br. at 7.
First, Appellant contends that his sentence is illegal because the court
impermissibly relied solely on 18 Pa.C.S. § 1102.1, rather than considering
the factors identified in Miller. Id. at 19-20 (noting that the court stated that
it was imposing a sentence pursuant to Section 1102.1(c), having considered
the factors in Subsection (d)(1) through (7)); see Resentencing Transcript
(R.T.), 8/30/2016, at 71. Appellant avers that Section 1102.1 does not apply
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2 Miller rendered Pennsylvania’s mandatory scheme of life imprisonment for
first and second degree murder unconstitutional, as applied to offenders under
the age of eighteen (18) at the time of their crimes. Miller v. Alabama, 132
S.Ct. 2455 (2012).
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to a person convicted before June 24, 2012. See Appellant's Br. at 19-20
(relying on Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”)).
Appellant also relies on Commonwealth v. Hicks, 151 A.3d 216, 228 (Pa.
Super. 2016), appeal denied, 168 A.3d 1287 (Pa. 2017), in which this Court
remanded a defendant for resentencing where the court applied the
mandatory minimum prescribed by Section 1102.1, finding that the statute
applies only to convictions that occurred “after June 24, 2012.” Hicks, 151
A.3d at 230 (remanding for resentencing in accordance with the factors set
forth in Miller and Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super.
2012)).3
In response, the Commonwealth contends that Appellant ignores that
the sentencing court used Section 1102.1(c) as a template to set the new
length of his sentence. See Commonwealth's Br. at 3. Moreover, Appellant
fails to establish how the court’s consideration of the factors under Section
1102.1(d) would be different had the sentencing court applied Miller criteria
instead. Id. at 4. According to the Commonwealth, there is a clear overlap
between the factors listed in Section 1102.1(d) and the Miller criteria. See
id. at 5-7. Further, Appellant failed to object to the sentencing court’s reliance
on Section 1102.1.
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3 In so doing, Appellant conflates his legality of sentence claim with his
discretionary aspects of sentence claim. Hicks is inapposite to the former.
See Hicks, 151 A.3d at 226 (“Appellant’s claims of sentencing errors are
challenges to the discretionary aspects of his sentence.”).
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At the sentencing hearing, the court and defense counsel discussed the
applicability of Section 1102.1. Defense counsel stated on the record: “We
think that the [c]ourt … may apply 1102.1 guidelines in sentencing.” R.T. at
6. In response, the sentencing court stated: “For lack of any other template
to follow, I am going to use 1102.1….” Id.
Section 1102.1(c) states, in relevant part:
(c) Second degree murder.--A person who has been convicted
after June 24, 2012, of a murder of the second degree, second
degree murder of an unborn child or murder of a law enforcement
officer of the second degree and who was under the age of 18 at
the time of the commission of the offense shall be sentenced as
follows:
(1) A person who at the time of the commission of the offense was
15 years of age or older shall be sentenced to a term of
imprisonment the minimum of which shall be at least 30 years to
life.
18 Pa.C.S. 1102.1(c).
In Batts I, Justice Baer authored a concurring opinion that suggested
“‘for the purpose of uniformity in sentencing,’ courts tasked with resentencing
juveniles convicted prior to the Miller decision should look to Section 1102.1
for guidance in setting a defendant’s minimum sentence and to ‘follow policy
determinations’ encompassed in the statute.’” Batts II, 163 A.3d at 421
(quoting favorably, Batts I, 66 A.3d at 300 (Baer, J., concurring)). In Batts
II, the Supreme Court reasoned:
[A]lthough the General Assembly presumably initially believed (as
did a majority of this Court) that the holding in Miller would not
apply to defendants convicted prior to the date of the decision,
this proved to be incorrect in light of the United States Supreme
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Court's decision in Montgomery. Nonetheless, Section 1102.1
provides a clear expression of legislative intent as it relates to
sentencing juveniles convicted of first-degree murder. Although
the statute itself is inapplicable to Batts based (solely) upon the
date of his conviction, it is clear, as reflected in Section 1102.1,
that the General Assembly would preserve the remainder of the
parole statute, sever the minimum sentence ceiling of Section
9756(b)(1), and permit these defendants to be sentenced to life
with the possibility of parole, rather than have no sentence at all
for juveniles convicted of first-degree murder. See D.P., 146
A.3d at 216; 18 Pa.C.S. § 1102.1(a). To conclude otherwise would
require that we impermissibly presume that the General Assembly
intended to discriminate unconstitutionally between pre- and
post–Miller juvenile offenders or that it intended that only post–
Miller juvenile offenders receive punishment for first-degree
murder—clearly an absurd and unreasonable proposition. See 1
Pa.C.S. § 1922(1), (3) (instructing that when ascertaining
legislative intent, courts must presume that the General Assembly
did not intend to violate the State or Federal Constitution or intend
an absurd, impossible or unreasonable result).
Batts II, 163 A.3d at 444–45.
Consistent with Batts I and II, the policy determination as to the
minimum guideline range suggested by the legislature for second-degree
murder is “a term of imprisonment the minimum of which shall be at least 30
years to life.” 18 Pa.C.S. 1102.1(c)(1). Further, the sentencing court did not
commit legal error in seeking guidance from the statute “to advance the long-
recognized goals of uniformity and certainty in sentencing decisions.” Batts
II, 163 A.3d at 457–58 (citations omitted).
Here, the sentencing court recognized that it was not obligated to follow
Section 1102.1 due to the date of Appellant’s conviction. The court considered
the legislative purpose and found the rationale to be persuasive as a template
for resentencing. See Trial Ct. Op. (TCO), 4/26/2017, at 2. The sentencing
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court considered the factors listed in Subsection (d), which correlate with the
age-related Miller factors. After carefully considering the evidence and
testimony presented, the court resentenced Appellant to forty years to life
imprisonment. Appellant’s sentence amounted to time served with immediate
eligibility for parole.4
The sentencing court was constitutionally permitted to impose a
minimum term-of-years sentence and a maximum sentence of life
imprisonment, thus ensuring Appellant was eligible for parole upon the
expiration of his minimum sentence, and to consider Section 1102.1 in
determining a minimum sentence to apply in resentencing a juvenile for
second-degree murder. Batts II, 163 A.3d at 457-58; see also
Commonwealth v. Melvin, --- A.3d ---, 2017 PA Super 301, at *4 (Sept.
20, 2017) (applying Batts II where the Appellant was convicted of second-
degree murder). Accordingly, Appellant’s sentence is legal and no relief is
due.
In his second issue, Appellant asserts the court abused its discretion
when it relied on Section 1102.1 and the factors contained therein. According
to Appellant, the court was also required to consider those factors set forth in
Knox and Miller. See Appellant's Br. at 25-26 (citing in support Hicks, 151
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4Following resentencing, Appellant was approved for parole on December 23,
2016, was released on February 11, 2017, and currently he resides with family
members in Georgia per his approved home plan. See Appellant's Br. at 13.
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A.3d at 230). This argument presents a challenge to discretionary aspects of
Appellant’s sentence. We apply the following principles:
We note that “[t]he right to appellate review of the
discretionary aspects of a sentence is not
absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.
Super. 2014). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be
considered a petition for allowance of appeal. Commonwealth
v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162
(Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court's jurisdiction by satisfying
a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533
(Pa. Super. 2006)). The determination of whether there is a
substantial question is made on a case-by-case basis, and this
Court will grant the appeal only when the appellant advances a
colorable argument that the sentencing judge's actions were
either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie
the sentencing process. Commonwealth v. Sierra, 752 A.2d
910, 912–913 (Pa. Super. 2000).
Hicks, 151 A.3d at 226-27.
Here, the first three requirements of the four-part test are met:
Appellant timely appealed, raised the challenges in a post-sentence motion,
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and included in his brief the necessary Pa.R.A.P. 2119(f) statement of reasons
for allowance of appeal. Next, we examine Appellant’s Rule 2119(f) statement
to determine whether he presents a substantial question.
In his Rule 2119(f) statement, Appellant asserts that the sentencing
court failed to set forth adequate reasons for the sentence imposed because
the court was required to consider the Miller factors. See Appellant's Br. at
16-17. Relying on Hicks, Appellant contends that “the trial court improperly
relied on 18 Pa.C.S. §1102.1(a) without making a determination of sentence
duration based on Knox and Miller[.]” Id. at 16.
This Court has previously recognized that “the sentencing court’s failure
to set forth adequate reasons for the sentence imposed … raises a substantial
question.” Hicks, 151 A.3d at 227 (citing in support Commonwealth v.
Macias, 968 A.2d 773, 776 (Pa. Super. 2009)). Accordingly, Appellant has
raised a substantial question, and we will proceed to address the merits of his
claim.
In Hicks, the juvenile defendant was sentenced by the trial court to life
without the possibility of parole for one count of first-degree murder, a
consecutive five to ten years for aggravated assault, a consecutive ten to
twenty years for criminal attempt-homicide, and no further penalty on the
remaining charges. Hicks, 151 A.3d at 220. This Court remanded for
resentencing by this Court pursuant to Miller due to the imposition of a
mandatory life without parole sentence. The court resentenced the defendant
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pursuant to the mandatory minimum prescribed by Section 1102.1 for first-
degree murder, to thirty-five years to life imprisonment, followed by a
consecutive ten to twenty years for criminal attempt-homicide, a consecutive
two and one-half to five years for aggravated assault, and no further penalty
on the remaining counts. See id. When the defendant timely appealed this
new sentence, his discretionary aspects of sentencing claim was that: (1) the
sentences imposed taken together were manifestly excessive; and (2) the
court abused its discretion when it resentenced the defendant pursuant to 18
Pa.C.S. § 1102.1. See id. at 226. After careful review, this Court concluded
that the trial court abused its discretion in relying solely on Section 1102.1
without considering the sentencing factors set forth in Knox and Miller. Id.
Appellant’s reliance on Hicks is misplaced. In Hicks, the resentencing
court imposed the minimum sentence required by Section 1102.1 despite the
statute’s plain language limiting its direct application to juveniles who
committed a murder “after June 24, 2012.” Id. at 228 (noting that the court
could have imposed a shorter minimum sentence on the homicide conviction)
(quoting 18 Pa.C.S § 1102.1(a)).5 Here, in contrast, the court did not apply
the minimum sentence prescribed by the statute. Appellant was sentenced to
forty years to life, which equated to the amount of time already served with
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5 Further, this Court relied on this Court’s holding in Commonwealth v.
Batts, 125 A.3d 33 (Pa. Super. 2015), which has since been modified by the
Supreme Court in Batts II.
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immediate eligibility for parole.
Further, the Hicks Court criticized the sentencing court’s failure to
consider Miller factors prior to imposing the sentence. See id. at 229-300.
Here, the sentencing court stated that it considered the minimum sentence
provided by Section 1102.1(c) and the age-related factors listed under Section
1102.1(d) in determining Appellant’s sentence for second-degree murder.
See R.T. at 71. The Hicks courts did not address whether those factors set
forth in Subsection (d) of 1102.1 represent a sufficient representation of the
Miller factors.
We conclude that the factors listed in Subsection (d) correlate directly
with and were designed to implement Miller’s holding. Furthermore, as the
Batts line of cases make clear, and as is expressly set forth in Subsection (d),
consideration of these factors is required only prior to imposing a sentence of
life without parole for first degree murder. See Batts I, 66 A.3d at 295-96;
Batts II, 163 A.3d at 459-460. In such cases, the Commonwealth must
provide reasonable notice that it intends to seek a life without parole sentence
prior to the sentencing hearing and then evidence pursuant to Subsection (d)
may be offered to rebut the possibility of a life sentence. See id; see also
18 Pa.C.S. § 1102.1(b).
As discussed supra, the sentencing court could look to Section 1102.1
for guidance as to the minimum sentence in resentencing a juvenile defendant
formerly sentenced to a non-discretionary life-without-parole sentence. Batts
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II, 163 A.3d at 458 n.25; see also Batts I, 66 A.3d at 300 (Baer, J.,
concurring) (noting that for the purpose of uniformity in sentencing, courts
tasked with resentencing may look to Section 1102.1 for policy related
guidance in setting a defendant’s minimum sentence). It follows that the
court was permitted to impose a sentence greater than the minimum. See
18 Pa.C.S. 1102.1(e) (“Nothing under [] Section [1102.1] shall prevent the
sentencing court from imposing a minimum sentence greater than that
provided in this Section.”).
Explicit consideration of Knox factors is of no moment where the court
is not considering a life sentence without the possibility of parole. “In
sentencing a juvenile offender to life with the possibility of parole, traditional
sentencing considerations apply.” Batts II, 163 A.3d at 460 (noting that the
sentencing court should look to Section 1102.1 for guidance on the minimum
sentence to impose) (citing 42 Pa.C.S. § 9721(b) (“the court shall follow the
general principle that the sentence imposed should call for confinement that
is consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.”)). “[Miller] contains no ‘formal
factfinding requirement … so as to permit the States to sovereignly administer
their criminal justice systems and establish a proper procedure for the proper
implementation of Miller’s holding.” Batts II, 163 A.3d at 433 (quoting
Montgomery, 136 S.Ct. at 735).
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More generally, to the extent Appellant asserts that the court failed to
consider mitigating factors, the record clearly does not support his assertion.
See Appellant's Br. at 26-28. The factors that the sentencing court considered
in its 1925(a) opinion included: (1) the early life events that brought Appellant
to the day of his crime, (2) Appellant’s youth at the time of the crime, (3) his
familial circumstances, and (4) the role he played in the criminal activity. See
TCO at 2-3. The court also noted “the admirable forgiveness” of the victim’s
family, the victim’s undeniable death, and the actions to which Appellant
admitted during his guilty plea hearing. Id. at 2. After considering all of the
evidence presented, applying traditional sentencing factors as well as age-
related factors, the court imposed a sentence of forty years to life.
Here, the court considered the evidence of Appellant’s youth and
immaturity presented at the resentencing hearing as mitigating factors in
fashioning Appellant’s sentence. Clearly, the record reflects that the court
considered traditional sentencing guidelines as well as age-related
characteristics of Appellant. Moreover, the sentence imposed for the murder
that Appellant committed was reasonable. 6 Accordingly, we discern no abuse
of discretion.
Judgment of sentence affirmed. Jurisdiction relinquished.
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6We reject Appellant’s unsupported conclusion that the sentence imposed was
excessive.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2018
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