Com. v. Nole, J.

J-A09030-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN F. NOLE :
:
Appellant : No. 873 EDA 2018

Appeal from the Judgment of Sentence November 3, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0915321-1969

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.: FILED APRIL 29, 2019

John F. Nole (Appellant) appeals from the judgment of sentence entered

following resentencing pursuant to Miller v. Alabama, 567 U.S. 460 (2012)

and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).1 Upon review, we

affirm.

The Pennsylvania Supreme Court summarized the underlying facts of

Appellant’s case as follows:

In the late afternoon of February 22, 1969, [A]ppellant, then
seventeen years of age, and two other youths entered a
neighborhood candy store owned and operated by eighty-one-
____________________________________________

1 In Miller, the Supreme Court of the United States “held that a juvenile
convicted of a homicide offense could not be sentenced to life in prison without
parole absent consideration of the juvenile’s special circumstances in light of
the principles and purposes of juvenile sentencing.” See Commonwealth v.
Bebout, 186 A.3d 462, 472 n.1 (Pa. Super. 2018) (citations omitted). In
Montgomery, the Supreme Court held that Miller announced a substantive
rule of constitutional law that applies retroactively. Id.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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year-old Joseph Shayka and his wife, Helen Shayka. One of the
[A]ppellant’s companions held a knife to the husband’s neck.
Appellant pointed a gun at the husband; struck him several times
in the stomach with his fists and the gun; and demanded money.
The cash register was then rifled and the youths ran out. The
husband collapsed and died shortly thereafter of a massive
internal hemorrhage resulting from the rupture of his abdominal
aorta.

Commonwealth v. Nole, 336 A.2d 302, 304 (Pa. 1975) (denying PCRA

relief).

Although Appellant was 17 years old on February 22, 1969, he was tried

as an adult and originally sentenced to life imprisonment without the

possibility of parole. After the United States Supreme Court’s decisions in

Miller and Montgomery, Appellant was resentenced to 48 years to life in

prison with parole.2 The resentencing court explained:

[Appellant] had been convicted in May of 1970 of first-
degree murder, robbery, burglary, and weapons offenses and was
sentenced March 31, 1971[] to . . . life imprisonment. [Appellant]
thereafter filed a notice of appeal with the Pennsylvania Supreme
Court, which on July 1, 1972, affirmed the judgment of sentence.
Commonwealth v. Nole, 292 A.2d 331 (Pa. 1972). Over the
ensuing decades, [Appellant] unsuccessfully sought post-
conviction collateral relief on many occasions. It was not until
[the decisions in Miller v. Alabama and Montgomery v.
Louisiana that Appellant] was successful . . . .

Following the imposition of sentence by [the trial court on
November 3, 2017], [Appellant] filed a post-sentence motion that
was denied by operation of law on March 9, 2018. On March 26,
2018, [Appellant] filed a notice of appeal from the order imposing
judgment of sentence.

____________________________________________

2 In its brief, the Commonwealth states that “[a]ccording to prison records,
[Appellant] was granted parole on January 17, 2019.” Commonwealth Brief
at 3.

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Trial Court Opinion, 5/1/18, at 1-2 (footnote omitted).

Preliminarily, we note that Appellant did not file a statement of errors

complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure

1925(b). However, as the record does not indicate that the trial court ordered

Appellant to file a statement, we do not find waiver.3

On appeal, Appellant raises two issues:

1. Is it unconstitutional to impose a mandatory lifetime parole tail
on all juvenile lifers being re-sentenced?

2. Was it not mandated that at re-sentencing a judge may only
impose sentences for lesser included offenses after Miller v.
Alabama, 567 U.S. 460 (2012) struck down the Pennsylvania
sentencing scheme that imposed mandatory life sentences on all
juveniles convicted of murder?

Appellant’s Brief at 3.

Both of Appellant’s issues dispute the legality of his sentence. “Issues

relating to the legality of a sentence are questions of law. Our standard of

review over such questions is de novo and our scope is plenary.”

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014) (citation

omitted). Further:

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3 “In determining whether an appellant has waived his issues on appeal based
on non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that
triggers an appellant’s obligation under the rule.” In re Estate of Boyle, 77
A.3d 674, 676 (Pa. Super. 2013) (citation omitted); see also
Commonwealth v. Thomas, 451 A.2d 470, 474 n.8 (Pa. Super. 1982)
(“According to Rule 1925(b) the lower court must order a concise statement
of [errors] complained of on appeal and an appellant must fail to comply with
such directive before this Court can find waiver[.]”) (citing Pa.R.A.P. 1925(b)).

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The scope and standard of review applied to determine the legality
of a sentence are well established. If no statutory authorization
exists for a particular sentence, that sentence is illegal and subject
to correction. An illegal sentence must be vacated. In evaluating
a trial court’s application of a statute, our standard of review is
plenary and is limited to determining whether the trial court
committed an error of law.

Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (citation

omitted).

Appellant first claims that his maximum life sentence with parole

violates the precedent set forth in Miller because “[w]hile the trial [court]

correctly determined that it was improper to impose a minimum sentence of

life imprisonment, the trial [court] incorrectly determined that he was required

to impose a maximum sentence with a mandatory lifetime parole tail.”

Appellant’s Brief at 9. Appellant avers that the trial court incorrectly believed

that it was mandated by Pennsylvania case law to re-sentence him to a

maximum term of life imprisonment. Id. at 9-10 (citing Trial Court Opinion,

5/1/18, at 2). Appellant argues that “the same standard must be applied to

mandatory minimum life sentences as well as mandatory maximum lifetime

parole tails . . . and the Commonwealth must establish permanent

incorrigibility beyond a reasonable doubt.” Id. at 11.

In response, the Commonwealth states that it “agrees with [Appellant]

that the imposition of a mandatory maximum sentence of life imprisonment

for every juvenile convicted of first-degree murder is unconstitutional under

[Miller] and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).”

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Commonwealth Brief at 4. Nonetheless, the Commonwealth “acknowledges

that this Court has held otherwise.” Id. at 5. The Commonwealth concedes

“that this Court has ruled that whenever the sentencing court imposes a

minimum term-of-years sentence for a defendant convicted for first- or

second-degree murder, the maximum term must be set at life imprisonment.”

Id. (citing Commonwealth v. Olds, 192 A.3d 1188 (Pa. Super. 2018),

appeal denied, 297 WAL 2018 (Pa. 2018); Commonwealth v. Seskey, 170

A.3d 1105 (Pa. Super. 2017)).

Instantly, the trial court explained:

The claims [Appellant] raised have all been rejected by our
appellate courts which have ruled that a sentencing court has no
authority to impose anything other than a maximum sentence of
life imprisonment upon juveniles convicted of offenses carrying
mandatory life sentences. See Commonwealth v. Seskey, 170
A.3d 1105 (Pa. Super. 2017), citing Commonwealth v. Batts,
163 A.3d 410 (Pa. 2017). See also Commonwealth v. Melvin,
172 A.3d 14 (Pa. Super. 2017) (holding that sentencing court has
no discretion to impose anything but a maximum life sentence on
juvenile previously convicted of a homicide offense requiring
sentence of life imprisonment with no parole and that such
sentence is not unconstitutional). Thus, this Court lacks the
authority to ignore those rulings and it is suggested that the
judgment of sentence be affirmed based on the holdings of those
cases.

Trial Court Opinion, 5/1/18, at 2-3.

The trial court is right. This Court recently summarized:

In 2012, the United States Supreme Court decided Miller,
[] which held mandatory life without parole sentences for those
under the age of 18 at the time of their crimes violate the Eighth
Amendment’s prohibition on “cruel and unusual punishments.”
Miller, 567 U.S. at 465. The Supreme Court held that a juvenile
homicide defendant could only be sentenced to life without the

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possibility of parole if he or she is determined to be permanently
incorrigible, irreparably corrupt, or irretrievably depraved. Miller,
567 U.S. at 471. Thereafter, in [Montgomery v. Louisiana, 136
S. Ct. 718 (2016)], the Court held that Miller applies retroactively
to cases on collateral review, opening the door for those eligible
to seek collateral relief. [Id. at 732-37].

Commonwealth v. Lee, --- A.3d ---, 2019 WL 986978, at *1 (Pa. Super.

Mar. 1, 2019) (footnote omitted).

The Pennsylvania Supreme Court, in Commonwealth v. Batts, 66 A.3d

286 (Pa. 2013) (Batts I), addressed sentencing of a juvenile offender

convicted of first-degree murder. Noting that the United States Supreme

Court in Miller declined to place a “categorical ban” on life-without-parole

sentences for juvenile offenders, the Supreme Court in Batts I held that

juvenile offenders convicted of first-degree murder could be subject to a life-

without-parole sentence only after the sentencing court considered the criteria

outlined in Miller. Id. at 296-99. Four years later, the Pennsylvania Supreme

Court in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (Batts II),

further examined the procedure for resentencing juvenile offenders who were

improperly sentenced to life without parole prior to Miller. Applying Batts

II, this Court in Commonwealth v. Seskey, 170 A.3d 1105 (Pa. Super.

2017), rejected the argument that “the trial court possessed unfettered

sentencing discretion,” and expressly held that Batts II “requires that an

individual convicted of first or second-degree murder for a crime committed

as a minor be sentenced to a maximum term of life imprisonment.” Id. at

1105-1106.

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In addressing the appeal of a similarly-situated defendant, this Court

recently held in Commonwealth v. Ligon, --- A.3d ---, 2019 WL 1395450

(Pa. Super. Mar. 28, 2019), that in resentencing post-Miller under both Batts

II and Seskey, “the re-sentencing court [is] required to sentence [a

defendant] to a maximum term of life imprisonment.” Id. at *3. We

specifically pronounced that “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.” Id. (emphasis added). We

therefore concluded that Ligon’s “argument that ‘there is no relevant statute

or appellate case law requiring the imposition of a lifetime parole tail,’ [wa]s

incorrect.” Id.

In light of the above precedent, when a trial court is faced with

resentencing a juvenile who was originally sentenced, pre-Miller, to life

imprisonment without the possibility of parole:

For those defendants for whom the sentencing court determines
a life-without-parole 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 re[-]sentencing[.]”

Batts II, 163 A.3d at 421 (quoting Batts I, 66 A.3d at 296-97) (emphasis

added). “The sentencing court should fashion a minimum term of

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incarceration using, as guidance, [S]ection 1102.1(a) of the Crimes Code.”

Id. at 484.4

Instantly, Appellant was 17 years old when he committed first-degree

murder and was originally sentenced to life imprisonment without the

____________________________________________

4Section 1102.1, which the General Assembly enacted in the wake of Miller,
sets the guidelines for sentencing persons who commit first-degree murder
while under the age of 18:

(a) First degree murder.--A person who has been convicted
after June 24, 2012, of a murder of the first degree, first degree
murder of an unborn child or murder of a law enforcement officer
of the first degree and who was under the age of 18 at the time
of the commission of the offense shall be sentenced as follows:

(1) A person who at the time of the commission of the offense
was 15 years of age or older shall be sentenced to a term of
life imprisonment without parole, or a term of imprisonment,
the minimum of which shall be at least 35 years to life.

18 Pa.C.S.A. § 1102.1(a)(1) (emphasis added). In Ligon, we stated:

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 [defendants
convicted after June 24, 2012], 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 [Section] 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.

Ligon, 2019 WL 1395450 at *3.

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possibility of parole. The trial court, in resentencing Appellant, was required

to impose upon Appellant a maximum term of life imprisonment, and a

minimum term-of-years using Section 1102.1(a) as guidance. 18 Pa.C.S.A. §

1102(a)(1); Batts II, 163 A.3d at 421 (quoting Batts I, 66 A.3d at 296-97).

See also Ligon, 2019 WL 1395450 at *3 (“Under Batts II and Seskey, the

resentencing court was statutorily required to sentence [a]ppellant to a

maximum term of life imprisonment.”). As the trial court sentenced Appellant

to a minimum of 48 years, and a maximum term of life imprisonment with

the possibility of parole, Appellant’s sentence was proper.5

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5 The Pennsylvania Supreme Court stated:

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, 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
the years following the Batts I decision gives rise to the
presumption that the General Assembly is in agreement with our
interpretation.

Batts II, 163 A.3d at 445 (citations and footnote omitted). See also Moses
v. T.N.T. Red Star Exp., 725 A.2d 792, 801 (Pa. Super. 1999) (“It is not the
prerogative of an intermediate appellate court to enunciate new precepts of
law or to expand existing legal doctrines. Such is a province reserved to the
Supreme Court.”); Commonwealth v. Montini, 712 A.2d 761, 769 (Pa.
Super. 1998) (“[T]he Superior Court is an error correcting court and we are
obliged to apply the decisional law as determined by the Supreme Court of
Pennsylvania.”).

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In his second issue, Appellant asserts that “[w]hen the United States

Supreme Court in Miller struck down mandatory life sentences for juveniles

convicted of murder, it invalidated the only Pennsylvania sentencing scheme

in place,” and therefore, “this Court should utilize the only sentencing scheme

left intact after Miller: sentencing on lesser included offenses.” Appellant’s

Brief at 8. Appellant requests that “this Court . . . remand for re-sentencing

on all lesser-included offenses.” Id. However, Appellant concedes that “this

argument was rejected by the Pennsylvania Supreme Court in [Batts I] and

[Batts II] . . .” Appellant’s Brief at 16-17.

The Commonwealth likewise acknowledges that Appellant’s “argument

has twice been rejected by the Pennsylvania Supreme Court,” and “[n]o relief

is due.” Commonwealth Brief at 7 (citing Batts I and Batts II).

Both parties recognize that the Pennsylvania Supreme Court has “found

no support for the proposition that juveniles convicted of first-degree murder

pre-Miller should be sentenced as though they were convicted of third-degree

murder.” Batts II, 163 A.3d at 457. As with the defendant in Ligon,

Appellant in this case has received the full benefit of Miller and its progeny.

See Ligon, 2019 WL 1395450 at *4. We therefore conclude the trial court

did not err in resentencing Appellant.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/19

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