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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS ANTHONY RUTTER, :
:
Appellant : No. 965 MDA 2019
Appeal from the Judgment of Sentence Entered March 27, 2019
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000287-2015
BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: MARCH 2, 2020
Marcus Anthony Rutter (“Rutter”) appeals from the judgment of
sentence imposed, following a remand from this Court for resentencing and
an open guilty plea to murder of the first degree, conspiracy to commit murder
of the first degree, burglary, robbery, receiving stolen property, and access
device fraud.1 We affirm.
This Court previously summarized the factual and procedural history as
follows:
[I]n the early morning of December 15, 2014, [Rutter], who
was sixteen years old at the time, and an accomplice, burglarized
the home of a thirty-two[-]year[-]old woman. [Rutter] and his
accomplice sexually assaulted and brutally beat, stabbed, and
strangled the victim until she died.
….
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1 18 Pa.C.S.A. §§ 2502(a), 903, 3502(a)(1), 3701(a)(1)(iv), 3925(a),
4106(a)(1)(i).
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On July 11, 2016, [Rutter] entered an open guilty plea to
[the above-mentioned crimes]. In exchange for pleading guilty,
the Commonwealth withdrew the charges of theft by unlawful
taking and involuntary deviate sexual intercourse; the charge of
conspiracy to commit burglary was replaced with conspiracy to
commit murder. The Commonwealth agreed that it would not
seek a sentence of life without parole, but it was also agreed that
the sentences on each count would be served consecutively.
On July 29, 2016, the trial court sentenced [Rutter] as
follows: thirty-five to seventy years of incarceration for the
murder conviction; ten to twenty years of incarceration for
conspiracy; five and one-half to eleven years of incarceration for
robbery; two to four years of incarceration for burglary; nine to
twenty-four months of incarceration for receiving stolen property;
and nine to twenty-four months of incarceration for access device
fraud. The sentences [] were ordered to run consecutively. This
resulted in an aggregated sentence of [54] to 109 years of
incarceration.
[Rutter] filed a post-sentence [M]otion asking the trial court
to reconsider and modify the sentence. The trial court denied
[Rutter]’s post-sentence [M]otion on November 3, 2016, and
[Rutter filed a timely Notice of Appeal].
Commonwealth v. Rutter, 179 A.3d 591 (Pa. Super. 2017) (unpublished
memorandum at 1) (citations to record omitted).
On direct appeal, Rutter raised the following claims:
I. Is the aggregate sentence of the trial court the functional
equivalent of a life sentence, affording [Rutter] no meaningful
opportunity for release, and a violation of the Eighth and
Fourteenth Amendments to the United States Constitution?
II. Was the trial court’s imposition of what amounts to a de facto
life sentence a violation of the agreement of the parties that the
court could not impose a sentence of life without parole?
III. Did the trial court err[] in finding that [Rutter] was
“irretrievably depraved, irreparably corrupt, and permanently
incorrigible,” where this finding was not supported by competent
evidence of record or any expert witness, the finding was
improperly based on shifting the burden of proof to [Rutter] to
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prove that he would not engage in future criminal conduct, and
the finding was used to justify a de facto life sentence, despite the
court’s contradictory finding that [Rutter] “possesses the capacity
for change”?
IV. In imposing sentence, did the trial court rely on numerous
erroneous findings of fact which were unsupported, or
contradicted, by the record, including errors of fact in applying the
[Miller v. Alabama, 567 U.S. 460 (2012),] youth factors and in
considering the factors set forth in 18 Pa.C.S.[A.] § 1102.1, and
did the court’s reliance on these erroneous findings of fact in
imposing sentence demonstrate the court’s bias, and was it an
abuse of the court’s discretion in imposing sentence?
V. Was the aggregate sentence of 54 to 109 years so manifestly
excessive as to constitute too severe a punishment, and clearly
unreasonable under the circumstances; further, did the trial court
focus exclusively on the nature of the offenses, despite the clear
dictates of Roper, Miller and Montgomery,[FN] that the nature
of the offense cannot be permitted to overshadow the possibility
of rehabilitation in cases of juvenile offenders?
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[FN]Roper v. Simmons, 543 U.S. 551 … (2005) (holding that the
Eighth Amendment to the United States Constitution prohibits the
death penalty for a crime committed by a juvenile); Miller v.
Alabama, 567 U.S. 460 … (2012) (concluding that mandatory
sentences of life without parole for juveniles violates the Eighth
Amendment’s prohibition on cruel and unusual punishment);
Montgomery v. Louisiana, … 136 S.Ct. 718 … (2016) (finding
that [] Miller announced a new substantive rule of constitutional
law that applies retroactively and clarifying the limited
circumstances in which a sentence of life without parole is
permissible for a crime committed by a juvenile).
Id. at 2.
On Rutter’s first four claims, this Court held that Rutter’s sentence was
not a de facto life sentence and did not violate the terms of his plea
agreement, and therefore, lacked merit. See id. at 2-4. On Rutter’s fifth
claim, this Court held that Rutter’s minimum sentence was legal, and not an
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abuse of discretion, but his maximum sentence of 70 years in prison violated
the holding in Commonwealth v. Seskey, 170 A.3d 1105 (Pa. Super. 2017),
that “an individual between the ages of fifteen and seventeen who was
convicted of first-degree murder after June 24, 2012, must be sentenced to a
maximum term of life imprisonment.” Rutter, 179 A.3d 591 (unpublished
memorandum at 4) (citing Seskey, 170 A.3d at 1109). As a result, this Court
vacated Rutter’s judgment of sentence, and remanded for resentencing. Id.
at 4. The Pennsylvania Supreme Court denied Rutter’s Petition for allowance
of appeal. Commonwealth v. Rutter, 182 A.3d 997 (Pa. 2018) (unpublished
per curiam order).
On remand, the trial court sentenced Rutter to 35 years to life in prison
for murder of the first degree, 2 to 4 years in prison for burglary, 10 to 20
years in prison for conspiracy to commit murder of the first degree, 5½ years
to 11 years for robbery, 9 months to 2 years in prison for receiving stolen
property, and 9 months to 2 years for access device fraud. The trial court
ordered the sentences to run consecutively, for an aggregate term of 54 years
to life in prison.2 Rutter filed a timely post-sentence Motion to reconsider and
modify his sentence, which the trial court denied. Rutter filed a timely Notice
of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.
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2 Rutter’s sentence on remand is identical to his original sentence, with the
exception of his maximum sentence of 109 years being replaced with a life
sentence.
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Rutter presents the following questions for our review:
I. Is the aggregate sentence of the trial court the functional
equivalent of a life sentence, affording [] Rutter no meaningful
opportunity for release, and a violation of the Eighth and
Fourteenth Amendments to the United States Constitution?
II. Was the trial court’s imposition of a de facto life sentence a
violation of the plea agreement, which prohibited the court from
imposing a sentence of life in prison without parole?
III. Is the aggregate sentence of 54 years to life so manifestly
excessive as to constitute too severe a punishment, clearly
unreasonable under the circumstances, failing to account for []
Rutter’s significant efforts at rehabilitation since his incarceration
in state prison, and relying almost exclusively on the nature of the
offenses and the harm to the victims and the community; further,
were the trial court’s factual findings in support of the sentence
imposed unsupported by the record?
Brief for Appellant at 8.
Preliminarily, we address the law of the case doctrine.
The law of the case doctrine refers to a family of rules which
embody the concept that a court involved in the later phases of a
litigated matter should not reopen questions decided by another
judge of that same court or by a higher court in the earlier phases
of the matter…. The various rules which make up the law of the
case doctrine serve not only to promote the goal of judicial
economy…but also operate (1) to protect the settled expectations
of the parties; (2) to insure uniformity of decisions; (3) to
maintain consistency during the course of a single case; (4) to
effectuate the proper and streamlined administration of justice;
and (5) to bring litigation to an end.
* * *
[W]hen an appellate court has considered and decided a
question submitted to it upon appeal, it will not, upon a
subsequent appeal on another phase of the case, reverse its
previous ruling even though convinced it was erroneous. … [This
rule] is not, however, inflexible. It does not have the finality of
the doctrine of res judicata. The prior ruling may have been
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followed as the law of the case[,] but there is a difference between
such adherence and res judicata; one directs discretion, and the
other supercedes it and compels judgment. In other words, in
one it is a question of power, in the other of submission. The rule
of the law of the case is one largely of convenience and public
policy, both of which are served by stability in judicial decisions,
and it must be accommodated to the needs of justice by the
discriminating exercise of judicial power.
Hence, the law of the case doctrine might not apply under
exceptional circumstances, including: an intervening change in
the law, a substantial change in the facts, or if the prior ruling was
“clearly erroneous” and “would create a manifest injustice if
followed.”
Commonwealth v. McCandless, 880 A.2d 1262, 1267 (Pa. Super. 2005)
(citations, quotation marks omitted).
Rutter’s claims in the case sub judice are identical to those raised and
addressed by this Court prior to remand.3 See Rutter, 179 A.3d 591
(unpublished memorandum at 2). There, we ruled that Rutter’s claims lack
merit. See id. Since our review of the record reveals that the prior ruling
was not clearly erroneous, see McCandless, supra, we affirm.
Judgment of sentence affirmed.
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3 We note that Rutter’s instant third claim incorporates the third, fourth and
fifth claims from his prior appeal, and only differs to the extent that the instant
third claim challenges his maximum life sentence, whereas his prior claims
challenged his 109-year maximum sentence. However, our prior decision
thoroughly addressed this issue, finding that Rutter is subject to a mandatory
maximum sentence of life in prison. See Rutter, 179 A.3d 591 (unpublished
memorandum at 4).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/02/2020
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