J-A27004-18
2019 PA Super 96
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH F. LIGON :
:
Appellant : No. 1845 EDA 2017
Appeal from the Judgment of Sentence May 17, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0311332-1953,
CP-51-CR-0311352-1953
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
OPINION BY BOWES, J.: FILED MARCH 28, 2019
Joseph F. Ligon appeals from the May 17, 2017 judgment of sentence
of two concurrent terms of thirty-five years to life imprisonment that were
imposed after he was resentenced on two 1953 convictions for first-degree
murder.1 We affirm.
The convictions arose out of events that occurred on February 20, 1953,
when Appellant was 15 years old. Appellant and four others imbibed wine
and, over the course of approximately two hours, proceeded to rob and stab
eight people, killing Jackson Hamm and Charles Pitts. When Appellant was
arrested that night, he was carrying a knife sheath on his person. A knife was
recovered from the patrol car where Appellant had been sitting. Two of
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1 This Court does not quash the present appeal, despite Appellant’s failure to
file separate notices at each docket number, as this appeal was filed prior to
the decision in Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018),
which applies prospectively.
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Appellant’s co-defendants gave statements naming Appellant as the actor who
stabbed all of the victims.
Appellant pled guilty to two counts of first-degree murder, and on
December 18, 1953, the court imposed two concurrent mandatory terms of
life imprisonment without the possibility of parole (“LWOP”). After the United
States Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012)
and Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016), Appellant
received a resentencing hearing wherein he was ordered to serve two
concurrent sentences of thirty-five years to life imprisonment. At the time of
the resentencing, Appellant was eighty years old, having served over sixty-
four years in prison. Credit for time served rendered Appellant immediately
eligible for parole. Appellant filed post-sentence motions which were denied.
He filed a timely notice of appeal and complied with the sentencing court’s
order directing him to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). The resentencing court filed its opinion,
and the matter is ripe for our review.
Appellant raises the following issue on appeal: “Is it unconstitutional to
impose a mandatory lifetime parole tail on all juvenile lifers being
resentenced?” Appellant’s brief at 3. When reviewing challenges to the
legality of a sentence, our standard of review is de novo and our scope of
review is plenary. Commonwealth v. Brown, 159 A.3d 531, 532 (Pa.Super.
2017) (citation omitted).
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Appellant argues that the trial court’s imposition of a mandatory life
maximum sentence violates the Miller and Montgomery holdings, which
invalidated the sentencing scheme that existed for juveniles convicted of first-
degree murder prior to June 25, 2012, and require individualized sentences
for juveniles. The Commonwealth agrees.
We first address Appellant’s argument that Miller and Montgomery
invalidated the applicable sentencing statutes, making his mandatory
maximum sentence of life imprisonment illegal. At the time of Appellant’s
conviction, the then-applicable sentencing statute required that a person
convicted of first degree murder receive a sentence of LWOP or the death
penalty.2 In Miller, the United States Supreme Court found that the
imposition of a mandatory LWOP sentence, imposed upon a juvenile without
consideration of the defendant’s age and “the attendant characteristics of
youth,” violated the Eighth Amendment to the United States Constitution. The
Supreme Court later declared Miller to be retroactive, requiring states to
extend parole eligibility to juvenile offenders who committed their crimes pre-
Miller. Montgomery, supra at 736.
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2 Appellant was originally sentenced under 18 P.S. § 4701, which was repealed
and replaced by 18 Pa.C.S. § 1102 in 1972, after § 4701 was found to be
unconstitutional on grounds unrelated to Appellant’s conviction.
Commonwealth v. Bradley, 295 A.2d 842 (Pa. 1972) (citing Furman v.
Georgia, 408 U.S. 238 (1972)). Section 1102(a) required that a person
convicted of first-degree murder receive a sentence of life or death. The
parole code provided that a person sentenced to a term of life was not eligible
for parole. 61 Pa.C.S. § 6137(a)(1).
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The Pennsylvania Supreme Court interpreted Miller and found that,
pursuant to Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013) (Batts
I), once a sentencing court evaluates the criteria identified in Miller and
determines a LWOP sentence is inappropriate, it must impose a “mandatory
maximum sentence of life imprisonment as required by Section 1102(a),
accompanied by a minimum sentence determined by the common pleas court
upon resentencing.” Our Supreme Court explained that § 1102 was still valid,
since the unconstitutional part of Pennsylvania’s sentencing scheme, the lack
of parole eligibility pursuant to § 6137(a)(1), was severable. The Batts I
court reasoned,
Miller neither barred imposition of a [LWOP] sentence on a
juvenile categorically nor indicated that a life sentence with the
possibility of parole could never be mandatorily imposed on a
juvenile. Rather, Miller requires only that there be judicial
consideration of the appropriate age-related factors set forth in
that decision prior to the imposition of a sentence of [LWOP] on a
juvenile.
Batts I, supra at 295-96.
The interplay between § 1102(a) and § 6137(a)(1) was further
examined by our Court in Commonwealth v. Sesky, 170 A.3d 1105
(Pa.Super. 2017). In Sesky, the defendant, like Appellant, was convicted of
first-degree murder prior to June 25, 2012. However, Sesky was resentenced,
after Montgomery, to thirteen to twenty-six years of imprisonment, instead
of the mandatory maximum lifetime tail which Appellant received. The
Commonwealth appealed, challenging the term-of-years tail, and argued that
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the court should have imposed a mandatory maximum life sentence pursuant
to § 1102(a)(1). Sesky, like Appellant, argued that Miller invalidated the
entire sentencing scheme, so that the trial court was not required to impose
any minimum or maximum term of imprisonment. Our Court agreed with the
Commonwealth and vacated the judgment of sentence, and remanded for
imposition of a sentence which included a mandatory maximum term of life
imprisonment.
In reaching its conclusion, our Court relied on our Supreme Court’s
holding in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (Batts II),
wherein the Court reaffirmed its Batts I holding, and again stated that the
trial court must resentence defendants to either LWOP or a maximum term of
life imprisonment as required by § 1102(a). Seskey, supra at 1109. In
doing so, our Court reiterated Batts II’s interpretation of the interplay
between § 1102(a) and § 6137(a)(1):
Despite the passage of four years since we issued our decision in
Batts I, the General Assembly has not passed a statute
addressing the sentencing of juveniles convicted of first-degree
murder pre-Miller[3], nor has it amended the pertinent provisions
that were severed in Batts I. As we have previously stated, the
General Assembly is quite able to address what it believes is a
judicial misinterpretation of a statute, and its failure to do so in
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3 The legislature eventually responded to Miller by enacting 18 Pa.C.S.
§ 1102.1, which provides that individuals between the ages of fifteen and
seventeen convicted of first-degree murder must be sentenced to a maximum
of life imprisonment and a minimum term set anywhere from thirty-five years
to life. However, this statute only applies to those individuals sentenced after
June 24, 2012.
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the years following the Batts I decision gives rise to the
presumption that the General Assembly is in agreement with our
interpretation.
Seskey, supra at 1109, (citing Batts II, supra at 445) (internal quotation
marks, citations, and footnote omitted).
Based on a review of the above-precedent and statutory authority, it is
clear that Appellant’s argument that “there is no relevant statute or appellate
case law requiring the imposition of a lifetime parole tail,” is incorrect.
Appellant’s brief at 10. Under Batts II and Seskey, the resentencing court
was statutorily required to sentence Appellant to a maximum term of life
imprisonment.
Appellant’s second argument is that the imposition of a mandatory life
tail is incompatible with Miller’s individualized sentencing requirement
because the parole board could choose to deny a rehabilitated inmate parole
indefinitely. Appellant relies on Songster v. Beard, 201 F.Supp.3d 639
(E.D.Pa. 2016), to support his position that placing the authority to determine
an individual’s eligibility for release in the State Parole Board would be an
abdication of the judicial responsibility of individualized sentencing mandated
by Miller.
Importantly, the Songster decision has no precedential value in
Pennsylvania. Commonwealth v. Lambert, 765 A.2d 306, 354-55 (Pa.
2000). Moreover, our Court has previously considered the argument that
Appellant makes with Songster and found it to be “unavailing,” as it does not
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address Graham v. Florida, 560 U.S. 48, 75 (2010), a case which held that
parole boards may make the ultimate determination whether an individual has
demonstrated the requisite maturity and rehabilitation to deserve release.
See Commonwealth v. Olds, 192 A.3d 1188, 1197 n.18 (Pa.Super. 2018).
This lapse is especially concerning, as Appellant cites to Graham multiple
times in his brief in support of his arguments, yet completely fails to address
that his position is contrary to Graham’s ultimate holding.
Further, Appellant’s intimation that the Pennsylvania Board of Parole
cannot be trusted to do its job in a fair and equitable fashion is without support
in either Miller or Montgomery. The Miller Court did not call into question
the ability of state parole boards to make the decision as to whether a juvenile
murderer should be paroled and did not equate a sentence of LWOP with one
for life with the possibility of parole. Montgomery, supra at 736. In fact, it
did the opposite, merely requiring the states to make the relevant inmates
parole eligible, thereby insuring that those prisoners who have shown the
ability to reform will receive a meaningful opportunity for release. It did not
hold that life sentences with parole eligibility are unconstitutional, or that
juvenile murderers must be released at some point regardless of their fitness
to rejoin society. Thus, a sentence with a term of years minimum and a
maximum sentence of life does not violate Miller’s individualized sentencing
requirement, because it properly leaves the ultimate decision of when a
defendant will be released to the parole board.
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Appellant also fails to account for the fact that, if we adopt his argument,
and allow him and others similarly-situated to receive a term-of-years
maximum sentence, such a holding would lead to impermissibly disparate
results. Section 1102.1 provides a clear expression of legislative intent as to
juveniles that are convicted of first-degree murder post-Miller. Although, the
statute itself does not apply to Appellant based upon the date of his conviction,
it does apply to all similarly-situated defendants who were sentenced after its
enactment. Mindful of the difference in treatment accorded to those subject
to non-final judgments of sentence for murder as of Miller’s issuance, and
the enactment of § 1102.1, our Supreme Court has ordered trial courts to
resentence juveniles to a maximum term of life imprisonment. Batts II,
supra. We are bound to follow its mandate.
Appellant has received two concurrent sentences of thirty-five years to
life, which rendered him immediately eligible for parole due to his sixty-four
years of time credit. He has received the full benefit of Miller and its progeny.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/19
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