J-A21018-17
2018 PA Super 39
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL PAUL FOUST,
Appellant No. 1118 WDA 2016
Appeal from the Judgment of Sentence July 5, 2016
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000679-1993
BEFORE: BENDER, P.J.E., OLSON and STABILE, JJ.
OPINION BY OLSON, J.: FILED FEBRUARY 21, 2018
I. Introduction
Appellant, Michael Paul Foust, appeals from the judgment of sentence
entered on July 5, 2016, as made final by the denial of his post-sentence
motion on July 19, 2016. In this case of first impression in Pennsylvania, we
consider whether a term-of-years sentence which exceeds a juvenile homicide
defendant’s life expectancy constitutes an unlawful de facto sentence of life
imprisonment without the possibility of parole (“LWOP”). As an initial matter,
we hold that because the Supreme Court of the United States has severely
limited the circumstances under which juvenile defendants may be sentenced
to LWOP, a de facto LWOP sentence is illegal in certain circumstances when
imposed upon a juvenile offender. We also conclude that, in cases such as
the present one that involve multiple killings, we must evaluate the sentence
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for each crime separately when determining if a term-of-years sentence
constitutes a de facto LWOP sentence. Finally, we affirm Appellant’s judgment
of sentence because, when separately considered, the consecutive, 30-years
to life sentences imposed in this case for two killings do not constitute unlawful
de facto LWOP punishments nor did the trial court abuse its discretion in
imposing these sentences.
A. Factual Background
On November 22, 1993, Appellant, then 17 years old, and Kevin Zenker
(“Zenker”) drove from Oil City to Donald Foust’s residence. Appellant and
Zenker stole one of Donald Foust’s handguns and then returned to Oil City.
While they were driving past Darla Bump’s (“Bump’s”) and Russell Rice’s
(“Rice’s”) residence, Zenker fired at Bump’s dog. Appellant turned the vehicle
around and passed the residence again. Bump and Rice got in their vehicle
and began following Appellant and Zenker. Eventually, Appellant slowed the
car to a stop, grabbed the firearm, jumped out of the vehicle, approached
Bump’s and Rice’s vehicle, and opened fired. Bump and Rice died from
multiple gunshot wounds sustained during Appellant’s assault.
B. Procedural History
On February 1, 1994, the Commonwealth charged Appellant via criminal
information with two counts of first-degree murder.1 On May 13, 1994,
1 18 Pa.C.S.A. § 2502(a) (West 1994).
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Appellant moved to transfer his case to the Juvenile Division of the Court of
Common Pleas of Venango County. See 42 Pa.C.S.A. § 6355 (West 1994).2
The trial court denied that motion on May 24, 1994, and trial commenced on
June 22, 1994. Appellant was convicted of both counts of first-degree murder.
On June 30, 2014, the trial court sentenced Appellant to two consecutive
terms of LWOP. On direct appeal, this Court affirmed and our Supreme Court
denied allowance of appeal. Commonwealth v. Foust, 667 A.2d 418 (Pa.
Super. 1995) (unpublished memorandum), appeal denied, 672 A.2d 304 (Pa.
1995).
On January 5, 1998, Appellant filed his first pro se petition pursuant to
the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Counsel
was appointed and the PCRA court held an evidentiary hearing. The PCRA
court denied the petition on September 2, 1999. This Court affirmed the
denial of relief and our Supreme Court denied allowance of appeal.
Commonwealth v. Foust, 828 A.3d 397 (Pa. Super. 2003) (unpublished
memorandum), appeal denied, 837 A.2d 1177 (Pa. 2003).
On July 9, 2010, Appellant filed his second pro se PCRA petition. On
October 18, 2010, the PCRA court dismissed the petition. This Court affirmed
and our Supreme Court denied allowance of appeal. Commonwealth v.
Foust, 34 A.3d 217 (Pa. Super. 2011) (unpublished memorandum), appeal
2 All statutory citations are to the current version of Purdon’s Pennsylvania
Statutes or Pennsylvania Consolidated Statutes Annotated unless otherwise
noted.
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denied, 34 A.3d 826 (Pa. 2011). Appellant filed his third pro se PCRA petition
on July 16, 2012. Counsel was appointed and filed an amended petition. On
June 25, 2014, the PCRA court dismissed the petition.3
On February 24, 2016, Appellant filed his fourth pro se PCRA petition,
which he amended on March 28, 2016. In that petition, he argued that his
LWOP sentences violated the Eighth Amendment of the United States
Constitution as interpreted by Miller v. Alabama, 567 U.S. 460 (2012) and
Montgomery v. Louisiana, 136 S.Ct. 718 (2016).4 On May 12, 2016, the
PCRA court granted the petition and vacated Appellant’s judgment of
sentence.5
Counsel then was appointed for resentencing. On July 5, 2016, the trial
court sentenced Appellant to 30 years to life for each first-degree murder
conviction and ordered those two sentences to run consecutively. Hence, the
3 Appellant appealed the PCRA court’s June 25, 2014 dismissal order.
Appellant, however, discontinued the appeal before it was docketed in this
Court. See Pa.R.A.P. 1973(b) (“If an appeal has not been docketed, the
appeal may be discontinued in the lower court.”).
4 “The Eighth Amendment [of the United States] Constitution[ is] applicable
to the States through the Due Process Clause of the Fourteenth
Amendment[.]” Baze v. Rees, 553 U.S. 35, 47 (2008) (Roberts, C.J., opinion
announcing the judgment of the court) (citation omitted).
5 Although Appellant’s petition was patently untimely, he satisfied the new
constitutional rule exception to the PCRA’s one-year time bar. See 42
Pa.C.S.A. § 9545(b)(1)(iii). Thus, the PCRA court had jurisdiction to reach
the claim raised by Appellant.
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trial court sentenced Appellant to an aggregate term of 60 years to life
imprisonment. On July 15, 2016, Appellant challenged the legality of his
sentence in a post-sentence motion. The trial court denied that motion on
July 19, 2016. This timely appeal followed.6
C. Questions Presented
Appellant presents two issues for our review:
1. Pursuant to [Miller, which invalidated] the Pennsylvania first
and second[-]degree murder[7] statutes for juveniles, was the
only constitutional sentence available a sentence for third[-
]degree murder?
2. Is it unconstitutional to impose a sentence of 60 years to life, a
de facto sentence of [LWOP], on a juvenile absent a finding that
the juvenile is one of the rare and uncommon juveniles who is
permanently incorrigible, irreparably corrupt[,] or irretrievably
depraved?
Appellant’s Brief at 3.8
II. Discussion
6On July 28, 2016, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal (“concise statement”). See Pa.R.A.P.
1925(b). On September 1, 2016, Appellant filed a timely concise statement.
On September 23, 2016, the trial court issued its Rule 1925(a) opinion. Both
of Appellant’s issues were included in his submission.
7 For simplicity, references to “first-degree murder” shall include first-degree
murder, first-degree murder of an unborn child, and first-degree murder of a
law enforcement officer. Similarly, references to “second-degree murder”
shall include second-degree murder, second-degree murder of an unborn
child, and second-degree murder of a law enforcement officer.
8 We have re-numbered the issues for ease of disposition.
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Both of Appellant’s issues challenge the legality of his sentence. We
review the legality of a sentence de novo and our scope of review is plenary.
Commonwealth v. Melvin, 172 A.3d 14, 19 (Pa. Super. 2017) (citation
omitted). To understand Appellant’s challenges to the legality of his sentence,
it is necessary to understand the statutory framework governing juveniles 9
convicted of first and second-degree murder.
A. Legal Background
1. Pennsylvania’s Prior Statutory Scheme
At the time of Appellant’s conviction, the Crimes Code provided that an
individual, including a juvenile, convicted of first or second-degree murder
must be sentenced to a term of life imprisonment. See 18 Pa.C.S.A.
§ 1102(a), (b) (West 1994). The Parole Code provided that an individual
sentenced to a term of life imprisonment is not eligible for parole. See 61
Pa.C.S.A. § 6137(a)(1) (West 1994). Finally, the Juvenile Act provided that
the term “delinquent act” does not include the crime of murder. See 42
Pa.C.S.A. § 6302 (West 1994).
Under that statutory framework, a juvenile who committed first or
second-degree murder was charged as an adult. As occurred in the case sub
judice, a defendant could then request that his or her case be transferred to
9 We use the term juvenile to denote an individual under the age of 18 years
old when he or she committed a crime. Thus, when we say a certain practice
is barred for juvenile offenders, we mean that it is barred for individuals who
were under 18 at the time of their offense, even if they were 18 or older when
they were convicted and/or sentenced.
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the Juvenile Division. See 42 Pa.C.S.A. § 6355 (West 1994). If the trial court
refused to transfer the case to the Juvenile Division, and the juvenile was
convicted of first or second-degree murder, the trial court had to sentence the
juvenile to life imprisonment and the juvenile would never become eligible for
parole. Thus, a juvenile convicted of first or second-degree murder under this
statutory scheme received a mandatory LWOP sentence.
2. History of Punishment for Juvenile Offenders
Having set forth the statutory framework when Appellant was convicted
and sentenced, we turn to the historical underpinnings of that statutory
scheme.
When our Republic was founded, individuals over the age of 14 who
were convicted of crimes were treated like adults and subject to execution.
See Victor L. Streib, Death Penalty for Children: The American Experience
with Capital Punishment for Crimes Committed While Under Age Eighteen, 36
Okla. L. Rev. 613, 614 (1983) (“Streib”). Individuals between the ages of
seven and fourteen were presumed ineligible for the death penalty; however,
this presumption was rebuttable. See id. Only children under the age of
seven were ineligible for the death penalty. See id. Before 1900, at least 95
juveniles were executed. See id. at 616. At least 14 of these juveniles were
executed for crimes committed when they were 14 or younger. See id. at
619.
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In 1899, Illinois became the first state to separate the juvenile justice
system from the criminal justice system. See 1899 Ill. Laws 131. Over the
next four decades, almost every state and the federal government passed
similar legislation, which treated some, or all, juvenile offenders differently
than adult defendants. E.g. 1901 P.L. 279;10 see also Streib at 616-617.
This decreased the number of juveniles tried in the criminal justice system
and imprisoned with adults; however, the most serious juvenile offenders
were still treated as adults. Between 1900 and 1969, 192 juveniles were
executed. See id. at 630. Between 1980 and 2005, 22 juveniles were
executed. See Charles Lane, 5-4 Supreme Court Abolishes Juvenile
Executions, Wash. Post, Mar. 2, 2005 at A1.
Thus, for 363 years, from 1642, the time the first juvenile was executed
in America, until 2005, it was constitutional to execute juveniles convicted of
homicide. It naturally follows that all lesser sentences, including LWOP, were
also constitutional for juveniles convicted of homicide. Only recently has the
Supreme Court of the United States altered the law for the sentencing of
juvenile offenders.
10 This Court found the Act of May 21, 1901 unconstitutional in Mansfield’s
Case, 22 Pa. Super. 224 (1903). Later, our General Assembly enacted a
constitutional statute which accomplished the same goals. See 1903 P.L. 274
(included in Purdon’s at 11 P.S. §§ 71-141 (repealed)).
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3. Supreme Court of the United States’ Decisions
In the late 1980’s, the jurisprudence of the Supreme Court of the United
States regarding juvenile sentencing began to shift.
i. Thompson v. Oklahoma
The first major decision in this area was Thompson v. Oklahoma,
487 U.S. 815 (1988). In Thompson, the Court explained that:
The authors of the Eighth Amendment drafted a categorical
prohibition against the infliction of cruel and unusual punishments,
but they made no attempt to define the contours of that category.
They delegated that task to future generations of judges who have
been guided by the evolving standards of decency that mark the
progress of a maturing society. In performing that task the Court
has reviewed the work product of state legislatures and
sentencing juries, and has carefully considered the reasons why a
civilized society may accept or reject [a penalty] in certain types
of cases.
Id. at 821-822 (Stevens, J., opinion announcing the judgment of the court)
(internal quotation marks, citation, and footnotes omitted).
Pursuant to these views, the Court determined that a national consensus
had formed against the imposition of the death penalty for juveniles under 16
years old. Id. at 823-833. In reaching this conclusion, the Court looked to
how states treat juveniles in other areas, e.g., at which age it is permissible
to drive, vote, or purchase pornographic materials. Id. at 824-825. It also
examined the legislation in states that barred capital punishment for
individuals below a certain age and found that all of them forbade executing
juveniles under the age of 16. See id. at 829. The Court then noted the
rarity with which juries sentenced juveniles under 16 years old to death and
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found this indicative of a national consensus against such a practice. See id.
at 831-833. Finally, the Court found that juveniles are less culpable than
adults when they commit heinous crimes and that the death penalty does not
serve as a successful deterrent to individuals under 16 years old from
committing homicide. Id. at 833-838. When it combined these factors, the
Court determined that executing juveniles under the age of 16 violated
society’s evolving standards of decency. The Court, however, declined to
reach the issue of whether executing 16- or 17-year old defendants violated
the Eighth Amendment. Id. at 838.
ii. Stanford v. Kentucky
Although Thompson did not reach the issue of whether executing 16-
or 17-year old defendants violated the Eighth Amendment, the Court reached
the issue one year later in Stanford v. Kentucky, 492 U.S. 361 (1989). In
that case, it held that the execution of 16- or 17-year old defendants did not
violate the Eighth Amendment. Id. at 369-380.
The Court first examined state statutes and noted that a majority of
states which had the death penalty permitted execution of 16- or 17-year old
defendants. Id. at 371-372. Next, the Court found that, although 16- and
17-year olds made up a small portion of death row, prosecutors were not
hesitant to seek the death penalty and juries were not hesitant to impose the
death penalty in cases involving such defendants. Id. at 373-374. The Court
then addressed its analysis in Thompson related to the age necessary to
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vote, drink alcohol, etc. It found it “absurd to think that one must be mature
enough to drive carefully, to drink responsibly, or to vote intelligently, in order
to be mature enough to understand that murdering another human being is
profoundly wrong, and to conform one’s conduct to that most minimal of all
civilized standards.” Id. at 374. The Court then rejected any attempt to
establish a national consensus against executing 16- or 17-year old
defendants based on “public opinion polls, the views of interest groups, and
the positions adopted by various professional associations.” Id. at 377.
Addressing the deterrence effect of capital punishment on 16- and 17-
year olds, the Court held that a statute that does not deter crime would violate
the Equal Protection Clause of the Fourteenth Amendment before it would
violate the Eighth Amendment’s prohibition on cruel and unusual punishment.
Id. at 378. Alternatively, the Court found uncompelling the “socioscientific”
evidence in support of the deterrence argument. Id. at 377-378. The Court
also rejected the premise that it was for individual justices to determine if a
punishment was cruel and unusual. Id. at 378-380. Instead, the Court
emphasized that the key question was whether American society considered
the punishment cruel and unusual. See id. Finally, the Court concluded that
it could not invalidate a punishment without a national consensus that the
punishment was cruel and unusual. As no such consensus existed regarding
the execution of 16- or 17-year old defendants, the Court held the practice
constitutional. See id. at 379-380.
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iii. Roper v. Simmons
Less than 16 years later, the Supreme Court of the United States
reversed course, abrogated Stanford, and held that the Eighth Amendment
of the United States Constitution forbade the execution of juvenile homicide
offenders. Roper v. Simmons, 543 U.S. 551 (2005). The Court concluded
that the national consensus regarding the execution of juvenile homicide
offenders had shifted since Stanford and that the national consensus was
now against that punishment. Id. at 564-567. It noted that, at that time, 18
states barred execution of juvenile homicide offenders, 12 barred the death
penalty in its entirety, and 20 states permitted execution of juvenile homicide
offenders. Id. at 564. The Court found a national consensus against
execution of juvenile homicide offenders even though a majority of states that
retained the death penalty also permitted the execution of juvenile homicide
offenders. See id.
The Court next considered the socioscientific evidence that it rejected in
Stanford. The Court held that “[t]hree general differences between juveniles
under 18 and adults demonstrate that juvenile offenders cannot with reliability
be classified among the worst offenders[,]” and, therefore, should not be
subject to the harshest punishment available under the law. Id. at 569. The
Court rejected Stanford’s reasoning that it is “absurd to think that one must
be mature enough to drive carefully, to drink responsibly, or to vote
intelligently, in order to be mature enough to understand that murdering
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another human being is profoundly wrong, and to conform one’s conduct to
that most minimal of all civilized standards.” Stanford, 492 U.S. at 374.
Instead, the Court relied on these factors and included appendices to the
opinion setting forth the state statutes governing these matters. See Roper
543 U.S. at 569 and 579.
The Court then abandoned Stanford’s reasoning that it was not for
individual justices to determine if a punishment was cruel and unusual. Id.
at 574-575. The Court concluded that Thompson and Atkins v. Virginia,
536 U.S. 304 (2002), which held that executing mentally retarded individuals
violated the Eighth Amendment, showed that it was the job of the courts to
determine what punishments violate our nation’s evolving standards of
decency. Roper, 543 U.S. at 574-575.
Finally, the Court considered international law. It concluded that the
consensus was that the death penalty for juvenile homicide offenders was
cruel and usual. Id. at 575-578. It held that such international consensus
could not be ignored in today’s global society. See id. at 578. Combining
international consensus with socioscientific evidence, the Court found that
executing juvenile homicide offenders constituted cruel and unusual
punishment. See id.
Notably, however, Roper endorsed sentencing juveniles to LWOP.
Specifically, the Court held that “[t]o the extent the juvenile death penalty
might have residual deterrent effect, it is worth noting that the punishment of
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[LWOP] is itself a severe sanction, in particular for a young person.” Id. at
572; see id. at 565 (noting with approval the decision of Kentucky’s governor
to commute Stanford’s sentence to LWOP). Thus, LWOP was seen as an
appropriate punishment for juvenile homicide offenders as recently as 12
years ago.
iv. Graham v. Florida
The Supreme Court of the United States revisited its juvenile sentencing
jurisprudence in Graham v. Florida, 560 U.S. 48 (2010), which considered
whether LWOP sentences survived Eighth Amendment scrutiny when imposed
on juvenile nonhomicide defendants. In Graham, the Court noted that 37
states, the District of Columbia, and the federal government all authorized
LWOP sentenced for nonhomicide offenders. Id. at 62. Although evidence of
state and federal legislation showed clearly and reliably a strong national
consensus in favor of sentencing juveniles to LWOP for nonhomicide offenses,
the Court held that “an examination of actual sentencing practices in
jurisdictions where the sentence in question is permitted by statute discloses
a consensus against its use.” Id.
Next, the Court looked to the socioscientific evidence considered in
Roper (but rejected in Stanford). This evidence showed that juvenile
defendants are not as culpable as their adult counterparts. Thus, the Court
held “that because juveniles have lessened culpability they are less deserving
of the most severe punishments.” Id. at 68. The Court also “recognized that
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defendants who do not kill, intend to kill, or foresee that life will be taken are
categorically less deserving of the most serious forms of punishment than are
murderers.” Id. at 69. Therefore, “when compared to an adult murderer, a
juvenile offender who did not kill or intend to kill has a twice diminished moral
culpability.” Id.
The Court then extensively detailed the consequences of being
sentenced to LWOP. It stated that LWOP is
the second most severe penalty permitted by law. It is true that
a death sentence is unique in its severity and irrevocability, yet
[LWOP] sentences share some characteristics with death
sentences that are shared by no other sentences. The State does
not execute the offender sentenced to [LWOP], but the sentence
alters the offender’s life by a forfeiture that is irrevocable. It
deprives the convict of the most basic liberties without giving hope
of restoration, except perhaps by executive clemency—the remote
possibility of which does not mitigate the harshness of the
sentence. . . . [T]his sentence means denial of hope; it means
that good behavior and character improvement are immaterial; it
means that whatever the future might hold in store for the mind
and spirit of the convict, he [or she] will remain in prison for the
rest of his [or her] days.
***
[LWOP] is an especially harsh punishment for a juvenile. Under
this sentence a juvenile offender will on average serve more years
and a greater percentage of his [or her] life in prison than an adult
offender. A 16–year–old and a 75–year–old each sentenced to
[LWOP] receive the same punishment in name only. This reality
cannot be ignored.
Graham, 560 U.S. at 69-71.
The Court therefore held that “penological theory is not adequate to
justify [LWOP] for juvenile nonhomicide offenders. This determination; the
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limited culpability of juvenile nonhomicide offenders; and the severity of
[LWOP] sentences all lead to the conclusion that” sentencing juveniles to
LWOP for nonhomicide offenses violates the Eighth Amendment’s prohibition
against cruel and unusual punishment. Id. at 74. The Court’s most directly
relevant holding, for the issues we confront today, was that “[a] State is not
required to guarantee eventual freedom to a juvenile offender convicted of
a nonhomicide crime. What the State must do, however, is give defendants
[] some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” Id. at 75.
v. Miller v. Alabama
As noted above, Graham applied only to juvenile offenders convicted of
nonhomicide offenses. Seven years later, however, the Court examined
whether LWOP sentences for juvenile homicide offenders violated the Eighth
Amendment. In Miller, the Court held that statutory schemes such as
Pennsylvania’s, which imposed mandatory LWOP for certain homicide
convictions, constituted cruel and unusual punishment when applied to
juvenile homicide offenders.
The Court began by reviewing the socioscientific evidence that it
considered in Roper and Graham. It reaffirmed “that children are
constitutionally different from adults for purposes of sentencing. Because
juveniles have diminished culpability and greater prospects for reform, [] they
are less deserving of the most severe punishments.” Id. at 469 (internal
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quotation marks and citation omitted). The Court next found that there was
no reason to differentiate Graham, which addressed juvenile offenders
convicted of nonhomicide offenses, from juveniles convicted of homicide
offenses. Instead, the Court found that
the mandatory penalty schemes at issue [in Miller] prevent the
sentencer[11] from taking account of these [socioscientific]
considerations. By removing youth from the balance—by
subjecting a juvenile to the same [LWOP sentence] applicable to
an adult—these laws prohibit a sentencing authority from
assessing whether the law’s harshest term of imprisonment
proportionately punishes a juvenile offender.
Id. at 474. The Court thus held that a juvenile homicide defendant can only
be sentenced to LWOP if he or she is permanently incorrigible, irreparably
corrupt, or irretrievably depraved. See id. at 471, 473, 479-480 (citations
omitted).
vi. Montgomery v. Louisiana
After Miller, juvenile offenders who were sentenced to LWOP under
prior statutory schemes began filing requests for collateral relief arguing that
Miller applied retroactively.12 In Montgomery, the Supreme Court of the
11 Although in Pennsylvania, and most other jurisdictions, the trial court
determines the appropriate sentence for a crime, in some states, juries can
determine the appropriate sentence. For example, a defendant in Texas has
the right to demand that the jury determine the appropriate sentence. See
Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006).
12Our Supreme Court originally held that Miller did not apply retroactively to
cases on collateral review. Commonwealth v. Cunningham, 81 A.3d 1, 9–
11 (Pa. 2013).
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United States held that Miller applies retroactively to cases on collateral
review. Montgomery, 136 S.Ct. at 732-737.
After setting forth the framework for determining if a new rule of
constitutional law applies retroactively, see generally Teague v. Lane, 489
U.S. 288 (1989) (O’Connor, J., opinion announcing the judgment of the court),
the Court considered whether the rule announced in Miller was substantive
or procedural in nature. If a new constitutional rule is substantive, it applies
retroactively; however, if a new constitutional rule is procedural, it only
applies retroactively if it is a watershed rule of criminal procedure.
Montgomery, 136 S.Ct. at 728 (citation omitted).
The Court held that the rule announced in Miller was substantive and
not procedural in nature. Id. at 732-736. The Court reasoned that “[t]he
foundation stone for Miller’s analysis was [its] line of precedent holding
certain punishments disproportionate when applied to juveniles.” Id. at 732
(internal quotation marks and citation omitted). Miller, therefore, expressly
limited the circumstances under which a juvenile homicide offender may be
sentenced to LWOP. Id. at 733-734. Hence, it “did more than require a
sentencer to consider a juvenile offender’s youth before imposing [LWOP.]”
Id. at 734. Instead, it barred a category of punishment, LWOP, for a class of
offenders, juvenile homicide offenders capable of rehabilitation. See id. The
Court held that, “[t]o be sure, Miller’s holding has a procedural
component. . . . Those procedural requirements do not, of course, transform
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substantive rules into procedural ones.” Id. at 734-735. Accordingly, the
Court held that Miller applied retroactively to cases on collateral review.
4. Statutory Reform
In response to Miller, our General Assembly enacted 18 Pa.C.S.A.
§ 1102.1. See 2012 P.L. 1655. Section 1102.1 provides that an individual
between the ages of 15 and 17 years old convicted of first-degree murder
after June 24, 2012 must be sentenced to a maximum term of life
imprisonment. 18 Pa.C.S.A. § 1102.1(a)(1). The minimum term of
imprisonment for such an offender can be set anywhere from 35 years to life,
i.e., LWOP. See id.
Section 1102.1 also provides that an individual under 15 years old
convicted of first-degree murder after June 24, 2012 must be sentenced to a
maximum term of life imprisonment. 18 Pa.C.S.A. § 1102.1(a)(2). The
minimum term of imprisonment for such an offender can be set anywhere
from 25 years to life, i.e., LWOP. See id.
Section 1102.1 provides that an individual between the ages of 15 and
17 years old convicted of second-degree murder after June 24, 2012 must be
sentenced to a maximum term of life imprisonment. 18 Pa.C.S.A.
§1102.1(c)(1). The minimum term of imprisonment for such an offender can
be set anywhere from 30 years to life, i.e., LWOP. See id.
Section 1102.1 further provides that an individual under 15 years old
convicted of second-degree murder after June 24, 2012 must be sentenced to
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a maximum term of life imprisonment. 18 Pa.C.S.A. § 1102.1(c)(2). The
minimum term of imprisonment for such an offender can be set anywhere
from 20 years to life, i.e., LWOP. See id.
Under the current statutory framework, a juvenile who commits first or
second-degree murder must be charged as an adult. A defendant can then
request that his or her case be transferred to the Juvenile Division. See 42
Pa.C.S.A. § 6355. If the trial court refuses to transfer the case to the Juvenile
Division, and the juvenile is convicted of first or second-degree murder, the
trial court must sentence the juvenile to a maximum term of life
imprisonment. Moreover, the mandatory minimum sentences set forth above
apply only to juveniles convicted of first or second-degree murder after June
24, 2012. Section 1102.1 does not prescribe minimum sentences for juvenile
homicide defendants who, like Appellant, were convicted of first or second-
degree murder before June 24, 2012. Hence, the trial court had the discretion
to sentence Appellant to any minimum sentence it considered appropriate.
5. Our Supreme Court’s Batts II Decision
Although Miller held that a juvenile homicide offender may only be
sentenced to LWOP if he or she is permanently incorrigible, irreparably
corrupt, or irretrievably depraved, neither Miller nor Montgomery set forth
procedural requirements for this determination. Moreover, after Miller, many
juvenile offenders who had been convicted of first or second-degree murder
argued that trial courts lacked statutory authority to sentence them to a term
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of life imprisonment. Our Supreme Court addressed these important issues
in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”).13
As for the latter issue, our Supreme Court held that:
For those defendants for whom the sentencing court determines
a [LWOP] sentence is inappropriate, it is our determination here
that they are subject 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[.]
Id. at 421 (internal alteration, quotation marks, and citations omitted).14
Thus, our Supreme Court rejected Batts’ argument that the trial court lacked
authority to impose life imprisonment.
A juvenile offender who challenges a LWOP sentence raises issues that
involve mixed questions of fact and law. Id. at 434-436. Because
Montgomery makes clear that a juvenile homicide offender may receive a
LWOP sentence only if he or she is found incapable of rehabilitation, such a
finding ipso facto implicates the trial court’s authority to impose such a
sentence. Id. at 434-435. This threshold legal inquiry constitutes a pure
13 Our Supreme Court referred to Commonwealth v. Batts, 66 A.3d 286 (Pa.
2013) as Batts I. Thus, although we only discuss the 2017 case, we refer to
it as Batts II to be consistent with prior decisions of this Court.
14 Section 1102 sets forth the mandatory sentence of life in prison for a
defendant convicted of first- or second-degree murder. Our Supreme Court
did not find that section 1102 is unconstitutional in light of Miller. Instead, it
found that 61 Pa.C.S.A. § 6137(a)(1) (which prohibits parole for a defendant
serving life imprisonment) is unconstitutional when applied to juvenile
homicide offenders capable of rehabilitation. See Batts II, 163 A.3d at 421.
Thus, section 1102 remains applicable to juveniles who were convicted of first-
or second-degree murder prior to June 25, 2012.
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question of law subject to de novo review. Id. at 435. To the extent,
however, the determination is based on factual findings made by the trial court
at the sentencing hearing, those findings are reviewed for an abuse of
discretion. See id. at 435-436.
After deciding the merits of Batts’ appeal, our Supreme Court
“exercise[d its] constitutional power of judicial administration to devise a
procedure for the implementation of the Miller and Montgomery decisions
in Pennsylvania.” Id. at 451 (internal quotation marks omitted). Our
Supreme Court “conclude[d] that in Pennsylvania, a faithful application of the
holding in Miller, as clarified in Montgomery, requires the creation of a
presumption against sentencing a juvenile offender to [LWOP].” Id. at 452.
The adoption of any other presumption would be contrary to “the central
premise of Roper, Graham, Miller[,] and Montgomery—that as a matter of
law, juveniles are categorically less culpable than adults.” Id.
Having determined that there is a presumption against juvenile LWOP
sentences, our Supreme Court considered the burden of proof the
Commonwealth must meet in order to establish that a juvenile offender is
incapable of rehabilitation. It held that the Commonwealth must prove a
juvenile is incapable of rehabilitation beyond a reasonable doubt. Id. at 452-
455. Our Supreme Court reasoned that “[t]he risk of an erroneous decision
against the offender would result in the irrevocable loss of that liberty for the
rest of his or her life.” Batts II, 163 A.3d at 454. Moreover, our Supreme
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Court found that “an erroneous decision in favor of the offender . . . carries
minimal risk; if the juvenile offender is one of the very rare individuals who is
incapable of rehabilitation, he or she simply serves the rest of the life sentence
without ever obtaining release on parole.” Id. Our Supreme Court held that
the only evidentiary burden which properly balanced these interests was that
of proof beyond a reasonable doubt. See id. at 455 (reading Miller and
Montgomery to require “near certainty” in the finding that a juvenile is
incapable of rehabilitation). Our Supreme Court also held that the
Commonwealth must provide “reasonable notice to the defendant” if it seeks
to pursue a LWOP sentence. Id.
Batts argued that the Commonwealth needed to produce expert
testimony to satisfy its burden of proof. Although declining to impose such a
requirement, our Supreme Court warned that, “it is difficult to conceive of a
case where the Commonwealth would not proffer expert testimony and where
the sentencer would not find expert testimony to be necessary.” Id. at 456.
Batts also argued, that under Apprendi v. New Jersey, 530 U.S. 466
(2000) and Alleyne v. United States, 133 S.Ct. 2151 (2013), the finding
that a juvenile offender is incapable of rehabilitation must be made by a jury.
Our Supreme Court rejected this argument and noted that the Supreme Court
of the United States held “that the decision of whether to sentence a juvenile
to [LWOP] could be made by a judge.” Batts II, 163 A.3d at 456, citing
Montgomery, 136 S.Ct. at 733. Our Supreme Court also rejected Batts’
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contention that all appeals from juvenile LWOP sentences should be taken
directly to our Supreme Court. Instead, the court held that it lacked
jurisdiction to promulgate such a rule. See id. at 457. With this legal
background in mind, we turn to Appellant’s challenges to the legality of his
sentence.
B. Invalidity of First and Second-Degree Murder Statutes
In his first issue, Appellant argues that, because Miller rendered
Pennsylvania’s prior statutory scheme unconstitutional, his sentence is illegal.
According to Appellant, because there was no valid statutory scheme to
prescribing his sentence for first-degree murder, the trial court had to
sentence him under the scheme for third-degree murder. Therefore, Appellant
argues that he was only subject to a maximum sentence of 20 years’
imprisonment. As counsel for Appellant correctly noted at oral argument, our
Supreme Court’s decision in Batts II makes clear that the trial court was
required to sentence Appellant, who was convicted of first-degree murder, to
a maximum term of life imprisonment. Commonwealth v. Seskey, 170 A.3d
1105, 1106 (Pa. Super. 2017) (footnote omitted); Batts II, 163 A.3d at 421.
In other words, there was valid statutory authority to impose a maximum
sentence of life imprisonment for Appellant’s first-degree murder conviction.
Accordingly, Appellant is not entitled to relief on his first claim of error.
C. De Facto Life Sentence Claim
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In his second issue, Appellant argues that his sentence is illegal because
a term of 60 years to life imprisonment is a de facto LWOP sentence. Appellant
contends that, under Miller and Batts II, a de facto LWOP sentence for a
juvenile homicide offender is unconstitutional unless the trial court finds that
the Commonwealth proved, beyond a reasonable doubt, that the juvenile
offender is incapable of rehabilitation. Here, the trial court explicitly found
that Appellant is capable of rehabilitation. N.T., 7/5/16, at 166-169.
Therefore, we must determine whether, under such circumstances, de facto
LWOP sentences are barred by Miller and, if they are, whether Appellant’s
sentence constitutes an unlawful punishment.
1. Constitutionality of De Facto Life Sentences
The Supreme Court of the United States, our Supreme Court, and this
Court have not decided whether de facto LWOP sentences are constitutional
under Miller when the trial court finds that the defendant is capable of
rehabilitation. Similarly, the Supreme Court of the United States, our
Supreme Court, and this Court have not determined whether, in light of
Graham, de facto LWOP sentences are permitted for juveniles convicted of
nonhomicide offenses.15 Courts in other jurisdictions have addressed these
15 In the present circumstances, cases addressing Graham are equally as
applicable and persuasive as those addressing Miller. Graham categorically
barred LWOP sentences for juvenile nonhomicide offenders, while Miller
placed the same categorical bar on juvenile homicide offenders unless the trial
court finds that the juvenile is incapable of rehabilitation. We are not
persuaded that the required finding in Miller means that de facto LWOP
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issues, as well as related questions such as whether the validity of a sentence
turns on the aggregate punishment imposed or focuses upon the separate
punishments issued for multiple offense. Our analysis thus considers the
constitutionality of de facto LWOP sentences, together with the propriety of
the punishment imposed in this case, with a view toward the emerging body
of relevant and persuasive case law.
After careful consideration, we hold that a trial court may not impose a
term-of-years sentence, which constitutes a de facto LWOP sentence, on a
juvenile offender convicted of homicide unless it finds, beyond a reasonable
doubt, that he or she is incapable of rehabilitation. In Miller, the Supreme
Court of the United States held that states must provide a juvenile convicted
of a homicide offense a meaningful opportunity to obtain release based on
sentences for juvenile homicide offenders capable of rehabilitation are more
appropriate than de facto LWOP sentences for juvenile nonhomicide offenders.
We likewise cannot construct a viable argument for why to treat them
differently.
The threshold question under both Graham and Miller, and one we answer
here, is whether a term-of-years sentence that appears to exceed a juvenile
defendant’s life expectancy constitutes a de facto LWOP sentence that entitles
the defendant to protection under Graham and Miller. In other words, the
threshold issue is the same under both Graham and Miller. Only after the
threshold issue is resolved does the analysis under Miller differ from the
analysis under Graham. Under Miller and Batts II, a LWOP sentence is
constitutional if, and only if, the trial court finds, beyond a reasonable doubt,
that the juvenile homicide defendant is incorrigible. Under Graham, a LWOP
sentence may never be imposed on a nonhomicide juvenile offender. For
these reasons, Graham, and its progeny, are highly relevant and persuasive
in examining whether lengthy term-of-years or de facto LWOP sentences
remain lawful punishments for juvenile offenders.
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demonstrated maturity and rehabilitation unless the sentencing authority
finds that the juvenile is incapable of rehabilitation. See Miller, 569 U.S. at
479, citing Graham, 560 U.S. at 75.
At the time of the Miller decision, Alabama, along with Pennsylvania
and many other states, required sentencing authorities to impose LWOP
sentences upon juvenile homicide offenders. Thus, in Miller, the Supreme
Court of the United States confronted a case in which the juvenile was
sentenced to a de jure LWOP sentence instead of a de facto LWOP sentence.
The Court, therefore, could have omitted the language regarding a juvenile
having a meaningful opportunity for release if it so chose. It could have simply
stated that de jure LWOP sentences violate the Eighth Amendment when
imposed on juveniles capable of rehabilitation. Instead, it broadly stated that
juveniles are entitled to a meaningful opportunity for release. We find this to
be a strong indication that the Supreme Court of the United States was more
focused on the practical realities of a sentence than the name assigned to a
sentence. See State ex rel. Morgan v. State, 217 So.3d 266, 273 (La.
2016); Casiano v. Commissioner of Correction, 115 A.3d 1031, 1047
(Conn. 2015), cert. denied, 136 S.Ct. 1364 (2016); Henry v. State, 175
So.3d 675, 679 (Fla. 2015), cert. denied, 136 S.Ct. 1455 (2016).
Courts should not circumvent the prohibition on LWOP sentences by
imposing lengthy term-of-years punishments that equate to the unlawful
sanction. See State v. Moore, 76 N.E.3d 1127, 1140 (Ohio 2016), cert.
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denied, 138 S.Ct. 62 (2017) (A sentencer “that imposed an unconstitutional
[LWOP] sentence on a juvenile offender [cannot] correct Eighth Amendment
deficiencies upon remand by resentencing the defendant to a term-of-years
sentence when parole would be unavailable until after the natural life
expectancy of the defendant[.]”); McKinley v. Butler, 809 F.3d 908, 911
(7th Cir. 2016). As lengthy term-of-years sentences that constitute de facto
LWOP punishments attempt such circumvention, like de jure LWOP sentences,
they constitute cruel and unusual punishments barred by the Eighth
Amendment when imposed on juvenile offenders.
Permitting de facto LWOP sentences for juvenile homicide offenders
capable of rehabilitation but prohibiting de jure LWOP sentences for the same
class of offenders places form over substance. See State v. Zuber, 152 A.3d
197, 211 (N.J. 2017), cert. denied, 138 S.Ct. 152 (2017) (“It does not matter
to the juvenile whether he faces formal [LWOP] or multiple term-of-years
sentences that, in all likelihood, will keep him in jail for the rest of his life. We
believe it does not matter for purposes of [Graham or Miller.]”); Morgan,
217 So.3d at 274; People v. Reyes, 63 N.E.3d 884, 888 (Ill. 2016); Bear
Cloud v. State, 334 P.3d 132, 143 (Wyo. 2014); State v. Null, 836 N.W.2d
41, 72 (Iowa 2013).
As the United States Supreme Court has often noted in criminal cases,
“form is not to be exalted over substance.” Blueford v. Arkansas, 566 U.S.
599 (2012), quoting Sanabria v. United States, 437 U.S. 54, 66 (1978);
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Barefoot v. Estelle, 463 U.S. 880, 892 (1983), superseded by statute on
other grounds, 28 U.S.C. § 2253; United States v. DiFrancesco, 449 U.S.
117, 142 (1980) (citations omitted); Escobedo v. Illinois, 378 U.S. 478, 486
(1964). Similarly, our Supreme Court and this Court routinely refuse to place
form over substance in criminal matters. Commonwealth v. Marshall, 810
A.2d 1211, 1218 (Pa. 2002) (Zappala, C.J., opinion announcing the judgment
of the court), citing Commonwealth v. Jermyn, 533 A.2d 74, 87 (Pa. 1987);
Commonwealth v. Kunish, 602 A.2d 849, 851 n.2 (Pa. 1992);
Commonwealth v. Farrow, 168 A.3d 207, 219 (Pa. Super. 2017);
Commonwealth v. Perrin, 108 A.3d 50, 53 (Pa. Super. 2015) (citation
omitted). We again refuse to place form over substance when determining if
a juvenile capable of rehabilitation will ever have the chance to walk free.
Finally, we note that this holding is consistent with the tide of decisions
by the Supreme Court of the United States regarding juvenile sentencing. As
we have detailed at length above, for the past several decades the Court has
dramatically shifted our nation’s jurisprudence in this area. As recently as
1987, it was permissible to execute an individual under 16 years old.
Beginning with Thompson in 1988, the Court quickly outlawed execution for
juveniles under 16, execution for all juveniles in Roper, LWOP for
nonhomicide juvenile offenders in Graham, and finally mandatory LWOP for
juvenile homicide offenders in Miller. Thus, the clear trend is to limit the
maximum penalty to which juvenile offenders are exposed. Finding de facto
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LWOP sentences unconstitutional under Graham and Miller is consistent with
this trend. For all the above stated reasons, we hold that a trial court may
not impose a term-of-years sentence on a juvenile convicted of homicide if
that term-of-years sentence equates to a de facto LWOP sentence unless it
finds, beyond a reasonable doubt, that the juvenile is incapable of
rehabilitation.
We find unpersuasive the reasoning of courts which have upheld de facto
LWOP sentences under Graham or under Miller for juvenile defendants
capable of rehabilitation.16 See State v. Nathan, 522 S.W.3d 881 (Mo.
2017); State v. Ali, 895 N.W.2d 237 (Minn. 2017), cert. denied, 2018 WL
311461 (U.S. Jan. 8, 2018); Lucero v. People, 394 P.3d 1128 (Colo. 2017),
cert. denied, 2018 WL 311464 (U.S. Jan. 8, 2018); Vazquez v.
Commonwealth, 781 S.E.2d 920 (Va. 2016), cert. denied, 137 S.Ct. 568
(2016); Brown v. State, 10 N.E.3d 1 (Ind. 2014); Diamond v. State, 419
S.W.3d 435, 440 (Tex. App. 2012). These decisions focused on the specific
16 Many of these courts cited the United States Court of Appeals for the Sixth
Circuit’s decision in Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012), cert.
denied, 569 U.S. 947 (2013). Bunch, however, was a federal habeas corpus
case brought under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Under AEDPA, relief may only be granted if the state court
decision is “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States.” Kernan v. Cuero, 138 S.Ct. 4, 5 (2017) (per curiam), quoting 28
U.S.C. § 2254(d)(1). Hence, we find Bunch inapposite when considering the
question presented in this case. Cf. Virginia v. LeBlanc, 137 S.Ct. 1726
(2017) (per curiam) (holding that geriatric release program in Virginia does
not violate clearly established federal law as announced in Graham).
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holdings in Graham and Miller. Those courts noted that, because of the
factual scenarios presented in Graham and Miller, the Court invalidated only
LWOP sentences for juveniles convicted of nonhomicide offenses and juvenile
homicide offenders capable of rehabilitation. Thus, those courts found that de
facto LWOP sentences are not barred by Graham and Miller. In other words,
because the Graham and Miller decisions were not directly on point, the
courts refused to apply the decisions in those cases.
We do not believe that is the appropriate standard in the case sub judice.
When interpreting decisions of the Supreme Court of the United States, our
Supreme Court, and this Court apply the “logical inference[s]” of those
decisions. Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.
2015); see Norton v. Glenn, 860 A.2d 48, 54 (Pa. 2004). In other
jurisdictions, courts are sometimes reluctant to extend the reach of decisions
of the Supreme Court of the United States, even when the inference of the
decisions is clear. In Pennsylvania, however, both our Supreme Court and
this Court faithfully execute the United States Supreme Court’s decisions –
including the logical inferences thereof. See Batts II 163 A.3d at 455
(applying the logical inferences of Miller and Montgomery). Thus, we find
those cases which narrowly construed the holdings in Graham and Miller,
and rejected their logical inferences, unpersuasive. Accordingly, we hold that
de facto life sentences are cruel and unusual punishment when imposed on
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juveniles convicted of nonhomicide offenses or juvenile homicide offenders
capable of rehabilitation.
2. Consideration of Aggregate Sentence
Having determined that de facto LWOP sentences are barred by Miller
if, as in the case at bar, the trial court fails to find that the juvenile homicide
defendant is incapable of rehabilitation, we next evaluate Appellant’s sentence
to determine if he received a de facto LWOP sentence. As noted above,
Appellant received 30 years to life imprisonment for each of two counts of
first-degree murder and the trial court ordered those sentences to run
consecutively. Hence, he received an aggregate term of 60 years to life
imprisonment. Appellant, who conceded at oral argument that the sentences
for the individual homicide counts in this case are constitutional, argues that
we must look at the aggregate sentence when determining if he received a de
facto LWOP sentence. Put differently, Appellant argues that we must consider
whether a sentence of 60 years to life constitutes a de facto LWOP sentence.
The Commonwealth argues that we must examine each individual sentence
separately. In other words, the Commonwealth argues that we must consider
whether a sentence of 30 years to life constitutes a de facto LWOP sentence.
Neither the Supreme Court of the United States nor our Supreme Court
has addressed this issue.17 That said, this issue has arisen in our sister states
17We disagree with the Supreme Court of Nevada’s decision that this silence
implicitly means that we must consider the aggregate sentence. See State
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where courts reached differing conclusions on whether individual sentences or
the aggregate sentence determine the presence of a de facto LWOP sentence.
Compare McCullough v. State, 168 A.3d 1045, 1065-1070 (Md. Spec. App.
2017), appeal granted, 171 A.3d 612 (Md. 2017) (individual); Morgan, 217
So.3d at 271 (same); State v. Kasic, 265 P.3d 410 (Ariz. App. 2011) (same)
with Zuber, 152 A.3d at 212 (aggregate); State v. Ramos, 387 P.3d 650,
660 (Wash. 2017), cert. denied, 138 S.Ct. 467 (2017) (same); Moore, 76
N.E.3d at 1141-1143 (same); Reyes, 63 N.E.3d at 888 (same); State v.
Boston, 363 P.3d 453, 457 (Nev. 2015) (same); Henry, 175 So.3d at 679-
680 (same); Null, 836 N.W.2d at 73-74 (same); Bear Cloud, 334 P.3d at
1143 (same); People v. Caballero, 282 P.3d 291, 295 (Cal. 2012) (same).
After careful consideration of this persuasive authority, together with this
Commonwealth’s sentencing jurisprudence, we hold that, when considering
the constitutionality of a sentence, the individual sentences must be
considered when determining if a juvenile received a de facto LWOP sentence.
We begin by examining Pennsylvania jurisprudence regarding
sentencing for multiple convictions. It is well settled that “imposition of
consecutive rather than concurrent sentences rests within the trial court’s
discretion.” Commonwealth v. Harvard, 64 A.3d 690, 703 (Pa. Super.
2013), appeal denied, 77 A.3d 636 (Pa. 2013) (citation omitted). Moreover,
v. Boston, 363 P.3d 453, 457 (Nev. 2015). Instead, it requires us to
undertake the analysis set forth in this opinion.
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extensive case law in this jurisdiction holds that defendants convicted of
multiple offenses are not entitled to a “volume discount” on their aggregate
sentence. Commonwealth v. Green, 149 A.3d 43, 54 (Pa. Super. 2016),
appeal denied, 168 A.3d 1255 (Pa. 2017) (citation omitted); Commonwealth
v. Brown, 145 A.3d 184, 188 (Pa. Super. 2016), appeal denied, 165 A.3d
892 (Pa. 2017) (citation omitted); Commonwealth v. Bonner, 135 A.3d
592, 605 (Pa. Super. 2016), appeal denied, 145 A.3d 161 (Pa. 2016) (citations
omitted); Commonwealth v. Swope, 123 A.3d 333, 341 (Pa. Super. 2015)
(citation omitted); Commonwealth v. Zirkle, 107 A.3d 127, 134 (Pa. Super.
2014), appeal denied, 117 A.3d 297 (Pa. 2015).
Pennsylvania courts have considered aggregate sentences only when
reviewing discretionary sentencing determinations. Those cases are,
however, easily distinguishable from the present circumstances. For example,
in Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008), appeal
denied, 980 A.2d 605 (Pa. 2009), the defendant was sentenced to an
aggregate term of approximately 52½ to 111 years’ imprisonment for 37
burglary convictions. This Court vacated the sentence finding that imposition
of serial consecutive terms was clearly unreasonable and that the trial court
abused its discretion in imposing the sentence. Id. at 1202. In other words,
this Court granted relief on Dodge’s challenge to the discretionary aspects of
his sentence. See id. This Court did not treat Dodge’s claim as an attack on
the legality of his sentence. Thus, Dodge and similar cases suggest strongly
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that Pennsylvania law considers the aggregate term of a sentence only when
the discretionary aspects of multiple punishments are under review.18 In this
case, Appellant asks us to declare unlawful the trial court’s discretionary
determination to impose consecutive (but independently valid) punishments
for a double murder conviction under principles of the Eighth Amendment.
This position enjoys no support under Pennsylvania law and runs contrary to
decisions that have previously addressed the claim. Cf. Kasic, 265 P.3d at
415 (Because defendants have no constitutional right to have their sentences
for separate offenses run concurrently, if a sentence for a particular offense is
constitutional, it does not become unconstitutional “merely because it is
consecutive to another sentence for a separate offense or because the
18 We believe that the Supreme Court of Iowa and the Supreme Court of Ohio’s
rationales for considering a defendant’s aggregate sentence are flawed. Those
courts relied on the fact that the defendants in Miller and Graham were
convicted of multiple crimes, yet the Supreme Court of the United States did
not address that fact. See Moore, 76 N.E.3d at 1141-1142 (addressing claim
that 112-year sentence for multiple nonhomicide offenses violated Graham);
Null, 836 N.W.2d at 73 (addressing claim that a lengthy prison term for one
homicide and one nonhomicide offense violated Graham and Miller). The
United States Supreme Court did not address the issue in Miller and Graham
because the defendants in those cases were sentenced to LWOP for a single
homicide and nonhomicide offenses respectively. Thus, their sentences for
the other offenses were immaterial to its decisions. As for the decisions to
grant, vacate, and remand (“GVR”) cases after Miller, a GVR for consideration
in light of a recent Supreme Court of the United States decision is not a merits
determination. See Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001). Instead,
it is merely directing the lower court to consider the case anew given the
recent decision. See Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163,
167 (1996) (per curiam). Thus, nothing in Miller or Graham, or the GVRs
that followed, indicate that we must consider the aggregate sentence instead
of the individual sentences.
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consecutive sentences are lengthy in [the] aggregate.”). We reject
Appellant’s effort to invalidate the legality of his sentence under principles
traditionally confined to discretionary sentencing review.
Adoption of Appellant’s view would not only abandon well-settled rules
of Pennsylvania sentencing law, it would open the door to volume sentencing
discounts in cases involving multiple juvenile homicide offenses. Juvenile
perpetrators convicted of multiple homicides would routinely be subject to
concurrent terms of imprisonment if the Commonwealth was unable to sustain
its burden of proof under Miller and Batts II and juvenile offenders would
receive volume discounts for their crimes. As noted above, if Appellant
committed these murders after June 24, 2012, he would have been subject to
a 35-year mandatory minimum sentence. 18 Pa.C.S.A. § 1102.1(a)(1). The
trial court sentenced Appellant to a shorter term of imprisonment for each
homicide because of its determination that he was capable of rehabilitation.
Now, Appellant seeks an even further reduction in the sentence imposed for
each homicide offense.
We recognize the rationale in Roper, Graham, and Miller regarding
the decreased deterrent effect that accompanies harsher punishments for
juveniles. See Miller, 567 U.S. at 472, citing Graham, 560 U.S. at 72;
Roper, 543 U.S. at 571. This rationale, however, is limited to the maximum
possible penalty for an offense. Contrary to the arguments made by Appellant
at oral argument, there is nothing in Roper, Graham, and/or Miller that
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speaks to volume discounts for multiple crimes. As discussed above,
Pennsylvania has long disavowed the concept of volume discounts for
committing multiple crimes.
Roper, Graham, and Miller all were based, at least in part, on a
national consensus against a class of punishment, e.g., LWOP for juvenile
homicide offenders capable of rehabilitation. The United States Supreme
Court has never found such a consensus against the imposition of consecutive
term-of-years sentences for multiple offenses. We are similarly unaware of
any movement by states to ban the practice. Again, consecutive imposition
of independently valid punishments is a distinctly discretionary function of the
sentencing authority. Although some courts have found that the practice
violates Graham and Miller, this differs from an organic, state-level
determination that the practice is cruel and unusual. Thus, the foundations of
Roper, Graham, and Miller, the national consensus against a class of
punishment, is lacking with respect to imposing consecutive term-of-years
sentences for multiple offenses. Cf. Thompson, 487 U.S. at 821-822
(explaining that the Court looks to organic state-level developments when
deciding if a sentence is cruel and unusual).
We find persuasive the reasoning of the Court of Special Appeals of
Maryland in McCullough. As the McCullough court astutely noted, Miller’s
other lynchpin is that it is inappropriate for a state legislature to make a
categorical, irrevocable judgment about a juvenile homicide offender’s
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potential for rehabilitation. McCullough, 168 A.3d at 1067. When a trial
court imposes multiple term-of-years sentences, it is not making such a
determination. Instead, it is making a series of determinations about what
the appropriate sentence is for each offense. Barring trial courts from running
such sentences consecutively would strip them of their traditional, statutory
duty to make such determinations regarding each offense committed. See
42 Pa.C.S.A. § 9721(a).
We also agree with the McCullough court that permitting consecutive
term-of-years sentences “is not a same sentence different label situation.”
McCullough, 168 A.3d at 1069. As noted above, we refuse to place form
over substance with respect to de facto LWOP sentences. Imposing
consecutive term-of-years sentences for multiple offenses, however, is not
placing form over substance. To the contrary, such punishments consider the
substance of each individual sentence.19 For this reason, the Supreme Court
19 We also find persuasive the dicta from O’Neil v. Vermont, 144 U.S. 323
(1892), relied on by the Special Court of Appeals of Maryland. In that case,
the defendant was sentenced to an aggregate term of over 54 years’
imprisonment for selling liquor without a license. On appeal to the Supreme
Court of Vermont, he argued that the sentence violated the Eighth
Amendment of the United States Constitution. The Supreme Court of Vermont
upheld the sentence and the defendant sought review by the Supreme Court
of the United States. The Court held that it lacked jurisdiction over the case
because the defendant failed to raise the Eighth Amendment claim in his
petition for review. The Court found that the Supreme Court of Vermont’s
decision rested on independent and sufficient state law grounds as to the
question presented in the petition for review. Hence, it raised no question of
federal law. See id. at 335-337.
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of New Jersey’s reasoning for examining the aggregate sentence is flawed.
See Zuber, 152 A.3d at 212 (concluding that a court must examine the
practical realities of aggregate sentences).
We disagree with the reasoning of those courts that have examined the
aggregate sentence instead of the individual sentences. Determining whether
Nonetheless, the Court quoted the Supreme Court of Vermont’s disposition of
the cruel and unusual punishment issue:
It would scarcely be competent for a person to assail the
constitutionality of the statute prescribing a punishment for
burglary on the ground that he had committed so many burglaries
that, if punishment for each were inflicted on him, he might be
kept in prison for life. The mere fact that cumulative punishments
may be imposed for distinct offenses in the same prosecution is
not material upon this question. If the penalty were unreasonably
severe for a single offense, the constitutional question might be
urged; but here the unreasonableness is only in the number of
offenses which the respondent has committed.
Id. at 331, quoting State v. Four Jugs of Intoxicating Liquor, 2 A. 586,
593 (Vt. 1886). The Court of Special Appeals of Maryland noted that “the
O’Neil Court’s dicta has been widely followed by state and federal courts in
assessing proportionality challenges under the Eighth Amendment.”
McCullough, 168 A.3d at 1068 (collecting cases).
Justices Field, Harlan, and Brewer dissented from O’Neil. See id. at 337-366
(Field, J., dissenting); id. at 366-371 (Harlan, J., dissenting). In their view,
it was the aggregate sentence which controlled for purposes of the Eighth
Amendment. These lengthy dissents evidence that these three justices, who
were present during conference and presumably understood the majority
opinion, believed that the majority in O’Neil was quoting the passage from
the Supreme Court of Vermont with approval. Although, as noted above, the
Court dismissed the case on jurisdictional grounds, it is axiomatic that “dicta
of the [Supreme Court of the United States] should be very persuasive.”
Gabbs Expl. Co. v. Udall, 315 F.2d 37, 39 (D.C. Cir. 1963) (internal
quotation marks and citation omitted).
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the crimes occurred in one course of conduct or separate courses of conduct
is an unworkable standard and is immaterial for Eighth Amendment purposes.
But see Reyes, 63 N.E.3d at 888 (implicitly employing this rationale). For
the same reason, examining whether sentences were imposed at one
sentencing hearing or multiple sentencing hearings is inappropriate. But see
Moore, 725 F.3d at 1193 (concluding that this is the dispositive factor of
whether to consider the individual sentences or the aggregate sentence).
In our view, whether the aggregate or individual sentences control for
purposes of Miller is the most difficult question raised in this appeal. We have
scrutinized relevant Pennsylvania case law, prior decisions of the Supreme
Court of the United States, and persuasive authority from other jurisdictions.
Although we acknowledge that there is ground for differing views, we believe
that we are on sound legal footing and consistent with Pennsylvania law.
Accordingly, we hold that we must consider the individual sentences, not the
aggregate, to determine if the trial court imposed a term-of-years sentence
which constitutes a de facto LWOP sentence.
3. Facts of This Case
Having determined that we must examine Appellant’s two sentences for
first-degree murder separately, we turn to whether a sentence of 30 years to
life imprisonment constitutes a de facto LWOP sentence. At oral argument,
Appellant’s counsel conceded that a sentence of 30 years to life imprisonment
does not violate Miller. Instead, she stressed the consecutive nature of the
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two sentences in this case requires vacatur of Appellant’s punishment. The
Commonwealth similarly argued that a sentence of 30 years to life does not
violate Miller. We agree.
There are certain term-of-years sentences which clearly constitute de
facto LWOP sentences. For example, a 150-year sentence is a de facto LWOP
sentence. Similarly, there are clearly sentences which do not constitute de
facto LWOP sentences. A sentence of 30 years to life falls into this category.
We are unaware of any court that has found that a sentence of 30 years to
life imprisonment constitutes a de facto LWOP sentence for a juvenile
offender. Even the study with the shortest life expectancy for an offender in
Appellant’s position places his life expectancy at 49 years, i.e., beyond 30
years. See Appellant’s Brief at 16, citing Casiano, 115 A.3d at 1046.
We explicitly decline to draw a bright line in this case delineating what
constitutes a de facto LWOP sentence and what constitutes a constitutional
term-of-years sentence. But see Commonwealth v. Dodge, 77 A.3d 1263,
1276 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2013) (appearing to
hold that a defendant must be parole eligible before he or she turns 90 for it
not to be considered a de facto LWOP sentence). We similarly decline to set
forth factors that trial courts must consider when making this determination,
i.e., whether they must look to the life expectancy of the population as a whole
or a subset thereof and whether the defendant must be given a chance at a
meaningful post-release life. We need not confront these difficult questions
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in this case. Instead, we limit our holding to the facts of this case. A sentence
of 30 years to life imprisonment does not constitute a de facto LWOP sentence
which entitles a defendant to the protections of Miller.
D. Discretionary Aspects of Sentencing Claim
Having determined that Appellant’s sentence is constitutional and,
therefore, not an illegal sentence, we turn to Appellant’s alternative argument
that the trial court abused its discretion in sentencing him to two consecutive
terms of incarceration of 30 years to life. Pursuant to statute, Appellant does
not have an automatic right to appeal the discretionary aspects of his
sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this
Court for permission to appeal the discretionary aspects of his sentence. Id.
As this Court has explained, in order to reach the merits of a
discretionary aspects claim,
we must engage in a four part analysis to determine: (1) whether
the appeal is timely; (2) whether Appellant preserved his [or her]
issue; (3) whether Appellant’s brief includes a concise statement
of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the [S]entencing [C]ode.
Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa. Super. 2017)
(citation omitted). Appellant filed a timely notice of appeal, preserved the
issue in his post-sentence motion, and included a Pennsylvania Rule of
Appellate Procedure 2119(f) statement in his appellate brief. Thus, we turn
to whether Appellant raises a substantial question.
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“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question
exists only when the appellant advances a colorable argument that the
sentencing judge's actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Grays, 167 A.3d
793, 816 (Pa. Super. 2017) (citation omitted).
In his Rule 2119(f) statement, Appellant argues that this case presents
a substantial question because imposing consecutive sentences for the two
murder convictions was clearly unreasonable and results in an excessive
sentence. This argument presents a substantial question. See
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014). Accordingly, we proceed to analyze the
merits of Appellant’s discretionary aspects challenge.
“Sentencing is a matter vested in the sound discretion of the [trial
court], and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super.
2017) (en banc) (citation omitted). Pursuant to statute,
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.
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42 Pa.C.S.A. § 9721(b). “The [trial] court is not required to parrot the words
of the Sentencing Code, stating every factor that must be considered under
Section 9721(b), however, the record as a whole must reflect due
consideration by the court of the statutory considerations at the time of
sentencing.” Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa. Super.
2017) (internal alterations, quotation marks, and citation omitted).
Typically, when sentencing a defendant, the trial court is required to
consider the sentencing guidelines. Commonwealth v. Melvin, 172 A.3d
14, 21 (Pa. Super. 2017) (citation omitted). In this case, however, no
sentencing guidelines exist for juveniles convicted of first-degree murder prior
to June 25, 2012. See id. at 22. Instead, our Supreme Court in Batts II
held that, in these cases, the applicable “sentencing guidelines” that the trial
court should consider are the mandatory minimum penalties set forth in
section 1102.1. See Batts II, 163 A.3d at 443 n.17.
When explaining its sentence, the trial court detailed its extensive
review of the record in this case. The trial court read the gut-wrenching victim
impact statements from the original sentencing hearing on June 30, 1994.
See N.T., 7/5/16, at 155. It also reviewed the victim impact statements
submitted for the resentencing hearing. See id. at 156. The trial court read
the transcript from the hearing on Appellant’s petition to transfer the case to
the Juvenile Division. See id. at 155. This led the trial court to review
Appellant’s juvenile record, which included files from the juvenile probation
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office, Children and Youth Services, and two hospitalizations. See id. In
addition, the trial court reviewed nine of its Rule 1925(a) opinions relating to
Appellant’s direct appeal and various PCRA petitions. See id. at 155-156.
The trial court also reviewed the report from the prison where Appellant
was incarcerated. Id. at 156. This included various certifications that
Appellant received while imprisoned. See id. at 156-157. The trial court
reviewed some of the evidence presented at Appellant’s trial. See id. at 156.
It then considered the guidelines were Appellant to have been convicted after
June 24, 2012, along with the guidelines mandated by Batts II. See id. at
157-158.
Next, the trial court considered the factors outlined in Batts II and
section 1102.1. It noted that Appellant was 17 years old at the time of the
murders. Id. at 159. It found that, at the time of the murders, Appellant was
reasonably mature and did not have a diminished capacity. Id. The trial court
found the circumstances of the crime “horrendous.” Id. It found Appellant
entirely responsible for the crime notwithstanding the fact that Zenker shot at
the dog. Id. at 159-160.
The trial court found that Appellant had a difficult upbringing as he was
declared dependent as a youth. Id. at 160. It found that his neighborhood
environment was immaterial. Id. The trial court noted the emotional and
developmental problems Appellant faced when he was originally sentenced
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and the changes that had occurred over the intervening two decades. See
id. at 160-161.
The trial court recognized that Appellant may have been using marijuana
at the time of the murders and that he did not have past exposure to violence.
Id. at 161-162. The trial court found that Appellant was able to assist his
counsel at the time of trial and that the two had a good relationship. Id. at
162.
The trial court found that the murders had a minimal impact on the
community. Id. at 165. The trial court noted its finding that Appellant was a
threat to public safety in 1994; however, it found that threat diminished over
two decades later. Id. at 165-166. The trial court found that there was some
sophistication involved in the murders. Id. at 167.
In short, the trial court considered all relevant documents, court filings,
reports, and testimony when sentencing Appellant. It carefully weighed all of
these factors and determined that sentences below the applicable guidelines
ranges, i.e., 30 years instead of 35 years, were appropriate in this case. Then,
the trial court reached the crux of Appellant’s discretionary aspects challenge
and explained why it chose to run Appellant’s sentences consecutively instead
of concurrently. It stated that:
I cannot in any way rationalize a sentence that is not consecutive.
. . . [T]here are two distinct victims. Each victim’s possible life
and loss of life has to be recognized and has to be, in my view,
acknowledged in the sentence. And the effect of that is that I
have to, in my mind, run these sentences consecutively.
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N.T., 7/5/16, at 169.20
We ascertain no abuse of discretion in this decision. The trial court
determined that separate punishments were necessitated by the nature of the
offenses and the lives taken, notwithstanding the rehabilitation Appellant
demonstrated while imprisoned for the past two decades. Although this Court
has previously invalidated lengthy term-of-years sentences that trial courts
have run consecutively, most involved property crimes. See Dodge, 957 A.2d
at 1202. Very few have involved violent offenses. See Commonwealth v.
Coulverson, 34 A.3d 135, 138–139 (Pa. Super. 2011). This Court has never
held that running sentences for first-degree murder consecutively was an
abuse of discretion.
Appellant will be eligible for parole when he is in his seventies. Although
he may not live this long, he has a chance of being released into society. It
was within the trial court’s discretion to conclude that an individual who
viciously took the lives of two innocent people is not entitled to be released
into society at an earlier age, even with the reduced culpability recognized in
Roper, Graham, and Miller. Accordingly, we conclude that the trial court
did not abuse its discretion in sentencing Appellant to consecutive terms of 30
20 The trial court’s extensive, well-reasoned, and on-the-record explanation of
its sentence in this case should serve as a model for all trial courts sentencing
juveniles convicted of homicide.
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years to life imprisonment and he is not entitled to relief on his discretionary
aspects challenge.21
III. Conclusion
In sum, we hold that a fixed term-of-years sentence can constitute a de
facto LWOP sentence and, therefore, violates Miller in certain circumstances.
We also hold that, in determining whether a fixed term-of-years sentence is a
de facto LWOP sentence, we must consider the sentence for each individual
crime separately and not the aggregate sentence imposed by the trial court.
Moreover, a sentence of 30 years to life imprisonment is not a de facto LWOP
sentence for a juvenile offender. Finally, we conclude that the trial court did
not abuse its discretion in sentencing Appellant to two consecutive terms of
30 years to life imprisonment. Accordingly, we affirm the judgment of
sentence.
21 Under the specific facts of this case, and in light of the trial court’s detailed
factual findings at the sentencing hearing, Appellant is not entitled to relief on
his discretionary aspects claim in this case. Nonetheless, we caution trial
courts that they cannot circumvent the prohibition against sentencing juvenile
homicide offenders capable of rehabilitation or juvenile nonhomicide offenders
to LWOP by imposing consecutive, lengthy term-of-years sentences. Although
such sentences may be constitutional, they are still subject to discretionary
aspects review by this Court, which will not hesitate to vacate a sentence that
attempts such circumvention. Cf. Steven L. Chanenson, The Next Era of
Sentencing Reform, 54 Emory L.J. 377, 428 (2005) (noting that prosecutors
sometimes attempt to circumvent sentencing rules by charging defendants
with multiple offenses and then seek consecutive sentences). Trial courts
must seriously contemplate the decision to impose lengthy term-of-years
sentences and to run those sentences consecutively, instead of concurrently.
If a trial court determines that the facts in a particular case warrant
consecutive sentences, it should detail, on the record, why consecutive
sentences are appropriate.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2018
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