[J-82-2018] [MO: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 14 WAP 2018
:
Appellee : Appeal from the Order of the Superior
: Court entered September 26, 2017 at
: No. 1621 WDA 2016, affirming the
v. : Judgment of Sentence of the Court of
: Common Pleas of Mercer County
: entered August 19, 2016 at No. CP-
ANTHONY MACHICOTE, : 43-CR-0001958-2003.
:
Appellant : ARGUED: October 24, 2018
DISSENTING OPINION
JUSTICE TODD DECIDED: APRIL 26, 2019
The majority’s analysis is based on the premise that Appellant – who was not
sentenced to life without the possibility of parole (“LWOP”) – falls within the class of
persons which Miller1 and Montgomery2 deemed entitled to protection. In my view, he
plainly does not, and thus is not entitled to resentencing. Accordingly, I respectfully
dissent.
Miller held that, under the Eighth Amendment to the United States Constitution, a
sentencing court is precluded from imposing a sentence of LWOP on a juvenile unless
the juvenile’s crime reflects, to use one characterization, permanent incorrigibility.3 A
1 Miller v. Alabama, 567 U.S. 460 (2012).
2 Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
3As we discussed in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”), Miller
directed the consideration of a variety of factors, with an overriding focus:
LWOP sentence imposed without such a determination is unconstitutionally excessive,
and thus a sentencing court lacks the authority to impose such a sentence. See
Montgomery, 136 S. Ct. at 734 (“Miller . . . did not bar a punishment for all juvenile
offenders . . . . Miller did bar life without parole, however, for all but the rarest of juvenile
offenders, those whose crimes reflect permanent incorrigibility.”); Batts II, 163 A.3d at 435
(“[I]n the absence of the sentencing court reaching a conclusion . . . that the defendant
will forever be incorrigible, without any hope for rehabilitation, a life-without-parole
sentence imposed on a juvenile is illegal, as it is beyond the court's power to impose.”).
Montgomery clarified that such sentences will be rare.
Here, Appellant was sentenced to 30 years to life in prison, and, accordingly, was
eligible for parole. Nevertheless, the majority concludes he is entitled to resentencing
because his sentence was illegal under Miller, Montgomery, and this Court’s
pronouncements in Batts I and Batts II. The majority holds that, “when a juvenile is
exposed to a potential sentence of life without the possibility of parole the trial court must
consider the Miller factors, on the record, prior to imposing a sentence.” Majority Opinion
The [Montgomery] Court clarified that Miller requires far more
than mere consideration of an offender's age prior to imposing
a life-without-parole sentence, as such a sentence “still
violates the Eighth Amendment for a child whose crime
reflects ‘unfortunate yet transient immaturity.’” Life without
parole “is a disproportionate sentence for all but the rarest of
children, those whose crimes reflect irreparable corruption,”
“permanent incorrigibility,” and “such irretrievable depravity
that rehabilitation is impossible,” thereby excluding “the vast
majority of juvenile offenders” from facing a sentence of life in
prison without the possibility of parole.
Id. at 433 (citations omitted). The high Court in Miller and Montgomery did not impose
formal factfinding requirements to make these determinations, but left that task to the
States. See Montgomery, 136 S. Ct. at 735. As the majority discusses, pursuant to that
mandate, this Court set forth such requirements in Commonwealth v. Batts, 66 A.3d 286
(Pa. 2013) (“Batts I”), and Batts II.
[J-82-2018] [MO: Mundy, J.] - 2
at 16. Citing the high Court’s concern for “individualize[d] sentences for the youngest
offenders who had not developmentally matured,” the majority reasons that “the Superior
Court’s conclusion that the issue is moot because Appellant was ultimately not sentenced
to life without the possibility of parole was erroneous, as it effectively nullified the
procedural protection set forth in Montgomery and solidified by this Court in Batts II.” Id.
at 16.
The problem with this analysis, in my view, is that it conceives of Miller and
Montgomery as principally setting forth procedural protections, protections which the
majority herein deems a large class of juveniles to be constitutionally entitled – those who
might be or could have been sentenced to LWOP. I interpret Miller, however, as
announcing a substantive rule of constitutional law4 which constrains a court’s authority
to impose a LWOP sentence, prohibiting a court from imposing a LWOP sentence on a
juvenile whose crimes do not reflect incorrigibility. Indeed, the high Court’s determination
in Montgomery that Miller must be applied retroactively is based on this substantive-
versus-procedural conclusion. See generally Montgomery, 136 S. Ct. at 732-36. The
Montgomery Court went to great pains to clarify its ruling was substantive in nature:
To be sure, Miller’s holding has a procedural component.
Miller requires a sentencer to consider a juvenile offender's
youth and attendant characteristics before determining that
life without parole is a proportionate sentence. Louisiana
contends that because Miller requires this process, it must
have set forth a procedural rule. This argument, however,
conflates a procedural requirement necessary to implement a
substantive guarantee with a rule that “regulate[s] only the
manner of determining the defendant's culpability.” There are
instances in which a substantive change in the law must be
attended by a procedure that enables a prisoner to show that
he falls within the category of persons whom the law may no
4As the high Court explained in Montgomery, “[s]ubstantive rules . . . set forth categorical
constitutional guarantees that place certain criminal laws and punishments altogether
beyond the State's power to impose.” Montgomery, 136 S. Ct. at 729.
[J-82-2018] [MO: Mundy, J.] - 3
longer punish. For example, when an element of a criminal
offense is deemed unconstitutional, a prisoner convicted
under that offense receives a new trial where the government
must prove the prisoner’s conduct still fits within the modified
definition of the crime. In a similar vein, when the Constitution
prohibits a particular form of punishment for a class of
persons, an affected prisoner receives a procedure through
which he can show that he belongs to the protected class.
See, e.g., Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct.
2242, 153 L.Ed.2d 335 (2002) (requiring a procedure to
determine whether a particular individual with an intellectual
disability “fall[s] within the range of [intellectually disabled]
offenders about whom there is a national consensus” that
execution is impermissible). Those procedural requirements
do not, of course, transform substantive rules into procedural
ones.
Id. at 734–35 (some citations omitted).
By contrast, the majority conceives of Miller as imposing procedural requirements
on the juvenile sentencing process, as creating a constitutional right to individualized
sentencing for juveniles. See Majority Opinion at 16 (noting that Appellant’s “sentence
did not evidence the required individualized consideration”). Under the majority’s holding,
a juvenile sentencing proceeding that fails to consider the Miller factors is itself
constitutionally infirm, irrespective of the sentence the court imposes. See id. at 16-17.
This conclusion ignores that, fundamentally, Miller proscribed a particular form of
punishment for certain juveniles, and the sentencing hearing is merely the forum in which
it is determined whether the juvenile “falls within the category of persons whom the law
may no longer punish.” Montgomery, 136 S. Ct. at 735. The “hearing does not replace
but rather gives effect to Miller's substantive holding that life without parole is an
excessive sentence for children whose crimes reflect transient immaturity.” Id.
Indeed, in Montgomery, the high Court explicitly allowed that “[g]iving Miller
retroactive effect . . . does not require States to relitigate sentences, let alone convictions,
in every case where a juvenile offender received mandatory life without parole. A State
[J-82-2018] [MO: Mundy, J.] - 4
may remedy a Miller violation by permitting juvenile homicide offenders to be considered
for parole, rather than by resentencing them.”5 Id. at 736; see also Batts II, 163 A.2d at
440-41. If the majority’s interpretation were correct – that Miller and Montgomery imposed
constitutional prescriptions for juvenile sentencing procedures, not limitations on
permissible juvenile sentences – the high Court logically would have mandated
resentencing in every case. In any event, were Appellant’s rights under Miller somehow
violated as the majority contends, he is presently eligible for parole, thus falling within
Montgomery’s caveat.
As a practical matter, I recognize that, for juveniles (who have not yet been
sentenced) who are facing a possible sentence of LWOP, the Miller factors must be
considered before a LWOP sentence is imposed – that is, it must first be determined
whether the juvenile belongs to Miller’s “protected class” by reference to those factors. A
court cannot impose sentence, of course, until it decides what sentence to impose, and
since its authority to impose LWOP on a juvenile is limited to those juveniles reflecting
incorrigibility under Miller and Montgomery, the court has to address the Miller factors
before it imposes sentence. Here, however, Appellant has already been sentenced, and,
thus, we know he does not fall within Miller’s “protected class” for the simple reason that
he was not sentenced to LWOP. Notably, in this regard, Appellant is unlike the appellants
who were afforded relief in Miller, Montgomery, Batts I, and Batts II, as each of those
appellants were sentenced to LWOP.
In short, Appellant was sentenced to 30 years to life imprisonment – life with the
possibility of parole – and neither Miller nor Montgomery, nor this Court’s decisions in
5 The high Court explained that “[a]llowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient immaturity—and who have
since matured—will not be forced to serve a disproportionate sentence in violation of the
Eighth Amendment.” Montgomery, 136 S. Ct. at 736.
[J-82-2018] [MO: Mundy, J.] - 5
Batts I or Batts II, placed any constraints on the trial court’s authority to impose such a
sentence. Accordingly, I would conclude that Appellant is not entitled to resentencing.
Justice Dougherty joins this dissenting opinion.
[J-82-2018] [MO: Mundy, J.] - 6