Com. v. Nesbit, D.

J-A22017-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARON NESBIT :
:
Appellant : No. 1588 MDA 2019

Appeal from the Judgment of Sentence Entered July 7, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002131-1997

BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 17, 2021

Appellant, Daron Nesbit, appeals nunc pro tunc from the judgment of

sentence entered on July 7, 2017, in the York County Court of Common Pleas.

After review, we affirm.

A prior panel of our Court summarized the relevant facts and procedural

history of this matter as follows:

On March 8, 1997, Paul Smith [(“Victim”)] was celebrating his
cousin’s birthday with friends and relatives. At some point, the
group went to the Majestic Restaurant, where [Victim] went inside
to purchase beer. As [Victim] left the restaurant, he encountered
Melisha Grimes [(“Grimes”)], and he stopped to talk with her.
They returned to the restaurant so that Grimes could write down
her pager number for [Victim]. While inside, Appellant, who was
sixteen years old, approached them, and a verbal altercation
occurred. Soon, the confrontation moved outside into the parking
lot, and Appellant and [Victim] began to fight. Appellant pulled
out a gun and fired two shots at [Victim], killing him, and
[Appellant] fled.
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On November 13, 1997, a jury convicted Appellant of, inter
alia, first-degree murder.1 On December 29, 1997, the trial court
sentenced Appellant to life in prison, and Appellant timely
appealed. On March 31, 1999, this Court affirmed Appellant’s
judgment of sentence. See Commonwealth v. Nesbit, No. 810
Harrisburg 1998 (Pa.Super. filed 3/31/99) (unpublished
memorandum).

1 18 Pa.C.S.A. 2502(a).

Thereafter, Appellant filed a counseled [petition pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546], and following an evidentiary hearing, the PCRA court
granted Appellant’s petition, vacated his judgment of sentence,
and ordered a new trial. Consequently, on November 5, 2001,
Appellant proceeded to a new trial, following which a jury
convicted him of first-degree murder. On November 20, 2001,
the trial court sentenced Appellant to life in prison, and on
November 12, 2002, this Court affirmed Appellant’s judgment of
sentence. Commonwealth v. Nesbit, No.1995 MDA 2001
(Pa.Super. filed 11/12/02) (unpublished memorandum). On
June 3, 2003, the Supreme Court denied Appellant’s petition for
allowance of appeal.

On February 5, 2004, Appellant filed a timely pro se PCRA
petition, and following the appointment of counsel, he filed an
amended, counseled PCRA petition. By opinion and order entered
on September 17, 2004, the PCRA court denied Appellant’s PCRA
petition, and on February 27, 2006, this Court affirmed.
Commonwealth v. Nesbit, No. 1718 MDA 2004 (Pa.Super. filed
2/27/06) (unpublished memorandum). On December 30, 2005,
the Supreme Court denied Appellant’s petition for allowance of
appeal.

On March 6, 2006, Appellant filed a second pro se PCRA
petition, and the PCRA court appointed counsel. On March 27,
2006, the Commonwealth filed a motion to dismiss on the basis
the PCRA petition was untimely filed[1] and on April 11, 2006, the
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1 It is well settled that PCRA time limitations are jurisdictional.
Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). A PCRA petition,
“including a second or subsequent petition, shall be filed within one year of

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PCRA court issued notice of intent to dismiss the PCRA petition
without a hearing. In response, counsel filed a petition to
withdraw his representation, and by order entered on May 22,
2006, the PCRA court granted counsel’s petition to withdraw and
afforded Appellant additional time to respond to the PCRA court’s
notice of intent to dismiss without a hearing.

On May 30, 2006, Appellant filed a pro se notice of appeal
from the PCRA court’s order permitting counsel to withdraw, and
by order entered on June 16, 2006, the PCRA court dismissed
Appellant’s PCRA petition. Appellant subsequently filed another
pro se notice of appeal on or about July 10, 2006. On
September 26, 2007, this Court quashed Appellant’s May 30,
____________________________________________

the date the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1). A
judgment of sentence becomes final “at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” Id. at § 9545(b)(3). When a petitioner files a PCRA petition
beyond the one-year time-bar, he must plead and prove at least one of the
time-bar exceptions. These exceptions include:

(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or

(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Previously, a petitioner was required to raise
the claim within sixty days from the date that the claim could have been
raised; however, Section 9545(b)(2) was amended and now provides that a
petitioner has one year rather than sixty days to raise his claim. 42 Pa.C.S.
§ 9545(b)(2) (as amended October 24, 2018, P.L. 894, No. 146, effective in
sixty days). This amendment became effective on December 24, 2018, but it
applies only to claims arising on December 24, 2017, or thereafter. Id.

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2006, appeal on the basis it was an improper appeal from an
interlocutory order; however, this Court affirmed as it pertained
to Appellant’s appeal from the PCRA court’s order dismissing his
second PCRA petition. See Commonwealth v. Nesbit, Nos.
1351 MDA 2006, 1365 MDA 2006 (Pa.Super. filed 9/26/07)
(unpublished memorandum). Specifically, regarding the latter,
this Court held Appellant’s second PCRA petition was untimely filed
and that no exceptions to the timeliness rule applied. The
Supreme Court denied Appellant’s petition for allowance of appeal
on June 24, 2008.

On or about August 1, 2012, Appellant filed a third pro se
PCRA petition, and the PCRA court issued notice of its intent to
dismiss without a hearing. Counsel entered an appearance and
filed an answer on behalf of Appellant. By order entered on
November 4, 2013, the PCRA court denied Appellant’s third PCRA
petition, and on December 3, 2013, he filed a counseled notice of
appeal.2 On July 29, 2014, this Court affirmed the PCRA court’s
denial of Appellant’s third PCRA petition. See Commonwealth
v. Nesbit, No. 2162 MDA 2013 (Pa.Super. filed 7/29/14)
(unpublished memorandum). Specifically, this Court found
Appellant’s third PCRA petition to be untimely filed and not subject
to any of the timeliness exceptions. By order entered on
December 23, 2014, the Supreme Court denied Appellant’s
petition for allowance of appeal.

2While the appeal from the denial of Appellant’s third
PCRA petition was pending, Appellant filed a pro se
PCRA petition on or about January 14, 2014, in which
he raised the issue of newly-discovered facts …. [T]he
PCRA court properly dismissed the petition on the
basis it lacked jurisdiction to address it while
Appellant’s appeal was pending in this Court.
Commonwealth v. Lark, 746 A.2d 585 (Pa.2000)
(holding that a PCRA trial court may not entertain a
new PCRA petition when a prior petition is still under
review on appeal).

Commonwealth v. Nesbit, 136 A.3d 1039, 1155 MDA 2015 (Pa. Super. filed

January 28, 2016) (unpublished memorandum). On March 3, 2015, Appellant

filed a counseled, fourth PCRA petition. Id. The PCRA court dismissed this

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petition as untimely, and Appellant filed a timely appeal. Id. After review,

we agreed with the PCRA court that Appellant’s fourth PCRA petition was

untimely and affirmed the order denying Appellant’s PCRA petition. Id.

On March 22, 2016, Appellant filed a fifth PCRA petition pro se. In this

petition, Appellant alleged that the holdings in Miller v. Alabama, 567 U.S.

460 (2012), and Montgomery v. Louisiana, ___ U.S.___, 136 S.Ct. 718

(2016), rendered his sentence of life without the possibility of parole illegal

because Appellant was less than eighteen years old at the time of the crime.

PCRA Petition, 3/22/16, at 3, 8.

In Miller, the United States Supreme Court held that it is

unconstitutional for state courts to impose an automatic life sentence without

possibility of parole for a murder committed while the defendant was less than

eighteen years old. Miller, 567 U.S. at 470. Moreover, in Montgomery, the

Supreme Court held that Miller announced a substantive rule of constitutional

law that must be applied retroactively in cases on state collateral review.

Montgomery, 136 S.Ct. at 736.

In Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa. Super. 2016), this

Court held that the date of the Montgomery decision is to be used when

calculating whether a PCRA petition, which asserts the Supreme Court’s

recognition of a constitutional right pursuant to 42 Pa.C.S. § 9545(b)(1)(iii),

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is timely filed under the sixty-day rule of 42 Pa.C.S. § 9545(b)(2).2 Secreti,

134 A.3d at 82. Pursuant to Secreti, Appellant satisfied the sixty-day rule

provided in the prior version of Section 9545(b)(2) because Montgomery was

decided on January 25, 2016, and Appellant filed his PCRA petition within sixty

days on March 22, 2016.

The PCRA court held hearings on April 25, 2017, and June 6, 2017.

Because Appellant was sixteen years old at the time of his crime, the holdings

from Miller and Montgomery provided Appellant relief, and the PCRA court

ordered Appellant to be resentenced. N.T. (PCRA), 6/6/17, at 129-130.

On July 7, 2017, the trial court held a sentencing hearing. At the

conclusion of the hearing, the trial court resentenced Appellant to a term of

thirty-eight years to life, with credit for time-served. N.T., (Sentencing),

7/7/17, at 20. Appellant’s counsel did not file a post-sentence motion or an

appeal.

On September 5, 2017, Appellant filed a timely PCRA petition in which

he sought the restoration of his direct appeal rights nunc pro tunc. On

September 21, 2017, the PCRA court reinstated Appellant’s appellate rights

nunc pro tunc, and on October 6, 2017, Appellant filed an appeal. On May 18,

____________________________________________

2 At the time Appellant filed his fifth PCRA petition, 42 Pa.C.S. § 9545(b)(2)
provided sixty days to raise such a claim. See footnote 1 supra.

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2018, this Court dismissed Appellant’s nunc pro tunc direct appeal for failure

to file a brief. Order, 5/18/18.

On April 29, 2019, Appellant filed a timely PCRA petition following this

Court’s May 18, 2018 order dismissing Appellant’s direct appeal.3 On

August 22, 2019, the PCRA court granted Appellant’s PCRA petition, and

reinstated Appellant’s post-sentence-motion rights and direct-appeal rights

nunc pro tunc.

On August 28, 2019, Appellant filed a timely post-sentence motion nunc

pro tunc in which he alleged the following: a sentence of thirty-eight years to

life in prison was excessive; the sentence did not comport with the protection

of the public and gravity of the offense; and the resentencing court failed to

consider Appellant’s rehabilitative needs and mitigating factors. Post-

Sentence Motion, 8/28/19. The trial court denied Appellant’s post-sentence

____________________________________________

3 The September 21, 2017 order “reset the clock” relative to issues concerning
Appellant’s resentencing on July 7, 2017, because it reinstated appellate
rights nunc pro tunc. See Commonwealth v. Lesko, 15 A.3d 345, 374 (Pa.
2011) (holding that a PCRA petition challenging issues concerning the
appellant’s resentencing was timely when filed within one year of the date that
“the new judgment of sentence became final”); see also Commonwealth v.
McKeever, 947 A.2d 782, 786 (Pa. Super. 2008) (providing that an appellant
has a constitutional right to appeal the judgment of sentence entered after
resentencing limited to the resentencing). Appellant’s April 29, 2019 PCRA
petition challenged claims related only to his July 7, 2017 resentencing. The
July 7, 2017 judgment of sentence became final on June 17, 2018, thirty days
after the May 18, 2018 order dismissing Appellant’s direct appeal. 42 Pa.C.S.
§ 9545(b)(3). Thus, Appellant had one year from June 17, 2018, in which to
file a timely PCRA petition, and the April 29, 2019 petition, therefore, was
timely. Id. at § 9545(b)(1).

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motion on September 9, 2019, and Appellant filed a timely appeal on

October 2, 2019. Both the trial court and Appellant complied with Pa.R.A.P.

1925.

On appeal, Appellant raises the following issues for this Court’s

consideration:

I. Whether the [r]esentencing [c]ourt erred when it both imposed
an excessive sentence and did not take into account mitigating
factors, when in determining [Appellant’s] rehabilitative needs,
the [r]esentencing [c]ourt failed to take into account the lack of
rehabilitative options available at the State Correctional
Institution he was incarcerated in.

II. Whether the [r]esentencing [c]ourt erred when it based
[Appellant’s] [s]entence on a perceived lack of remorse despite
the facts of the case at issue.

III. Whether the [r]esentencing [c]ourt erred when it imposed an
illegal sentence when it resentenced [Appellant] to a [l]ife term
not supported by [s]tatutory [a]uthority.

Appellant’s Brief at 5.

Appellant’s first two issues challenge the discretionary aspects of his

sentence. Because these issues overlap, we address them concurrently. We

note that “[t]he right to appellate review of the discretionary aspects of a

sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for allowance

of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.

2007).

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As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)):

An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170. Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001).

Here, the first three requirements of the four-part test are met:

Appellant filed a timely nunc pro tunc appeal; Appellant preserved the issues

in his nunc pro tunc post-sentence motion; and Appellant included a statement

raising the issues in his brief pursuant to Rule 2119(f). Moury, 992 A.2d

at 170. Therefore, we address whether Appellant has raised a substantial

question requiring us to review the discretionary aspects of the sentence

imposed by the sentencing court.

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“We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Ahmad, 961

A.2d 884, 886-887 (Pa. Super. 2008). Allowance of appeal will be permitted

only when the appellate court determines that there is a substantial question

that the sentence is not appropriate under the Sentencing Code.

Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A

substantial question exists where an appellant sets forth a plausible argument

that the sentence violates a particular provision of the Sentencing Code or is

contrary to the fundamental norms underlying the sentencing process. Id.

In his Pa.R.A.P. 2119(f) statement, Appellant asserts that the sentence

is manifestly excessive and unreasonable because the sentencing court did

not consider Appellant’s remorse, other mitigating factors, and Appellant’s

rehabilitative needs. Appellant’s Brief at 10-11. “[T]his Court has held that

an excessive sentence claim—in conjunction with an assertion that the court

failed to consider mitigating factors—raises a substantial question.”

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted). Because we conclude that Appellant presented a substantial

question, we proceed with our analysis.

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias, or ill will, or
arrived at a manifestly unreasonable decision.

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Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).

When imposing a sentence, the sentencing court must
consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact on
victim and community, and rehabilitative needs of defendant, and
it must impose an individualized sentence. The sentence should
be based on the minimum confinement consistent with the gravity
of the offense, the need for public protection, and the defendant’s
needs for rehabilitation.

Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006). Guided

by these standards, we must determine whether the court abused its

discretion by imposing a “manifestly excessive” sentence that constitutes “too

severe a punishment.” Id. Moreover, this Court has explained that when the

“sentencing court had the benefit of a presentence investigation report

(“PSI”), we can assume the sentencing court ‘was aware of relevant

information regarding defendant’s character and weighed those

considerations along with mitigating statutory factors.’” Moury, 992 A.2d at

171.

In the instant case, Appellant, who was a juvenile at the time of his

crime, received a sentence of life in prison without the possibility of parole.

Following the United States Supreme Court’s decisions in Miller and

Montgomery, these sentences were declared unconstitutional. In response

to the decision in Miller, our General Assembly enacted 18 Pa.C.S. § 1102.1.

The statute provides, inter alia, that juveniles who are fifteen years of age or

older, but younger than eighteen years of age, who are convicted of first-

degree murder after June 24, 2012, “shall be sentenced to a term of life

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imprisonment without parole, or a term of imprisonment, the minimum of

which shall be at least 35 years to life.” 18 Pa.C.S. § 1102.1(a)(1).

Section 1102.1 further provides:

(d) Findings.--In determining whether to impose a sentence of
life without parole under subsection (a), the court shall consider
and make findings on the record regarding the following:

(1) The impact of the offense on each victim, including
oral and written victim impact statements made or
submitted by family members of the victim detailing
the physical, psychological and economic effects of
the crime on the victim and the victim’s family. A
victim impact statement may include comment on the
sentence of the defendant.

(2) The impact of the offense on the community.

(3) The threat to the safety of the public or any
individual posed by the defendant.

(4) The nature and circumstances of the offense
committed by the defendant.

(5) The degree of the defendant’s culpability.

(6) Guidelines for sentencing and resentencing
adopted by the Pennsylvania Commission on
Sentencing.

(7) Age-related characteristics of the defendant,
including:

(i) Age.

(ii) Mental capacity.

(iii) Maturity.

(iv) The degree of criminal sophistication
exhibited by the defendant.

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(v) The nature and extent of any prior
delinquent or criminal history, including the
success or failure of any previous attempts by
the court to rehabilitate the defendant.

(vi) Probation or institutional reports.

(vii) Other relevant factors.

(e) Minimum sentence.--Nothing under this section shall
prevent the sentencing court from imposing a minimum sentence
greater than that provided in this section. Sentencing guidelines
promulgated by the Pennsylvania Commission on Sentencing may
not supersede the mandatory minimum sentences provided under
this section.

18 Pa.C.S. § 1102.1(d), (e). However, our Supreme Court held that Section

1102.1 is not mandated to apply to juveniles, such as Appellant, who were

convicted of first or second-degree murder prior to June 25, 2012.

Commonwealth v. Seskey, 170 A.3d 1105, 1108 (Pa. Super. 2017) (citing

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) (“Batts I”).

In Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”),

our Supreme Court reaffirmed Batts I, and it left undisturbed the mandatory

maximum term of life imprisonment under 18 Pa.C.S. § 1102. Batts II, 163

A.3d at 421, 444. Additionally, in Batts II, our Supreme Court explained the

individualized sentencing factors from Miller, as follows:

It requires consideration of the defendant’s age at the time of the
offense, as well as “its hallmark features,” including:

immaturity, impetuosity, and failure to appreciate
risks and consequences; ... the family and home
environment that surrounds him—and from which he
cannot usually extricate himself—no matter how
brutal or dysfunctional; ... the circumstances of the

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homicide offense, including the extent of his
participation in the conduct and the way familial and
peer pressures may have affected him; ... that he
might have been charged and convicted of a lesser
offense if not for incompetencies associated with
youth—for example, his inability to deal with police
officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own
attorneys; ... and the possibility of rehabilitation ...
when the circumstances (the youthfulness of the
offender) most suggest it.

[Miller v. Alabama, 567 U.S.] at 477-478, 132 S.Ct. 2455. See
also id. at 476, 132 S.Ct. 2455 (stating that in addition to age, a
court must also give consideration to a juvenile offender’s
“background and mental and emotional development ... in
assessing his culpability”) (quoting Eddings[ v. Oklahoma,] 455
U.S. [104,] 116, 102 S.Ct. 869, 71 L.Ed.2d 1).

Batts II, 163 A.3d at 431-432.

With these principles in mind, we conclude that Appellant’s assertions

that the trial court failed to consider relevant factors and imposed an excessive

sentence are meritless. At the July 7, 2017 sentencing hearing, the trial court

provided an exhaustive list of the bases and considerations for the sentence

it imposed. The record clearly reflects that trial court thoroughly explained

the factors it considered including Appellant’s age, personal history, family

life, mental health, family background, maturity level, life expectancy, the

Commonwealth’s recommendation of a sentence of fifty years to life,

Appellant’s lack of impulse control, remorse,4 level of culpability, criminal

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4 The trial court stated that it would like to believe Appellant was remorseful
but it was “taken aback by [Appellant’s] self-serving statements[] that no one

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sophistication, victim-impact statements, threat to the community, lack of a

significant criminal background, capacity for and efforts toward rehabilitation,

Batts II, Section 1102.1, and the PSI report. N.T. (Sentencing), 7/7/17, at

4-20. The trial court concluded that Appellant was not “incorrigible or

irretrievably depraved.” Id. at 20. However, the trial court found that an

additional period of incarceration was warranted under the circumstances of

this case. Id. The court then imposed a sentence of thirty-eight years to life

in prison, with twenty years and 118 days of credit for time served. Id.

The record reflects that the trial court carefully considered the

circumstances of this case, weighed the relevant mitigating factors, including

remorse or lack thereof, and outlined its reasons for the duration of the new

sentence. N.T. (Sentencing), 7/7/17, at 4-20. The court set forth the reasons

why a longer sentence was improper and the rationale regarding why a shorter

sentence would be inappropriate. We conclude that the trial court carefully

considered the PSI report, all relevant factors pursuant to 42 Pa.C.S.

§ 9721(b) and 18 Pa.C.S. § 1102.1, explained the basis for its conclusion, and

____________________________________________

has given any consideration to the pain that he has suffered.” N.T.
(Sentencing), 7/7/17, at 16. However, the court noted the steps that
Appellant has taken in accepting responsibility for his actions and Appellant’s
empathy for the victims. Id. at 17.

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imposed an individualized sentence. Accordingly, Appellant is due no relief on

his issues challenging the discretionary aspects of his sentence.5

In his final issue, Appellant contends that because he was convicted in

1997, there is no statutory authority for his sentence, and therefore, his

sentence is illegal. Appellant’s Brief at 5, 18.6 The determination as to

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5 Appellant also asserts that he was precluded from exhibiting remorse due
to the lack of available programs at the correctional facility in which he was
housed. Appellant’s Brief at 16-17. As noted above, the trial court properly
weighed and considered all relevant factors, including remorse, in its
statement in support of the sentence imposed. N.T. (Sentencing), 7/7/17, at
4-20. Thus, the assertion that the trial court abused its discretion in failing to
consider that Appellant was unable to illustrate remorse due to the State
Correctional Institution (“SCI”) in which he was housed is meritless.
Moreover, the trial court does not determine where an inmate serves his
sentence. Rather, after sentencing, the correctional facility where an inmate
is housed is left to the discretion of the Pennsylvania Department of
Corrections. Clark v. Beard, 918 A.2d 155, 160 (Pa. Cmwlth. 2007); 37
Pa.Code § 93.11. Appellant appears to concede this point in his reply brief.
Appellant’s Reply Brief at 4. Any issue Appellant may have with the SCI in
which he is housed or the programs offered therein are issues for the
Department of Corrections. To the extent that Appellant contends the trial
court abused its discretion by failing to consider inmate housing and the
opportunities that housing affords, he has failed to cite any authority to
support a challenge to the discretionary aspects of his sentence on this point.
Therefore, we deem the issue waived. See Commonwealth v. Einhorn, 911
A.2d 960, 969 n.2 (Pa. Super. 2006) (providing that issues that are not
supported by citation to authority are waived) (citation omitted).

6 In Appellant’s third issue, he presents a challenge to the legality of his
sentence. This issue was not raised in Appellant’s Pa.R.A.P. 1925(b)
statement. Generally, any issue not raised in a Pa.R.A.P. 1925(b) statement
is deemed waived for appellate review. Commonwealth v. Castillo, 888
A.2d 775, 780 (Pa. 2005); Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998). However, issues related to the legality of a sentence are not subject
to waiver and may be considered sua sponte. Commonwealth v. Bezick,
207 A.3d 400, 402 n.2 (Pa. Super. 2019) (citations omitted). Accordingly, we
proceed with our discussion.

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whether the trial court imposed an illegal sentence is a question of law; our

scope of review is plenary, and our standard of review is de novo.

Commonwealth v. Derrickson, 242 A.3d 667, 673 (Pa. Super. 2020).

Appellant asserts that 18 Pa.C.S. § 1102.1, which addresses the

sentencing of juveniles convicted of murder, applies only to juveniles

convicted after June 24, 2012. Appellant’s Brief at 19. Thus, under

Appellant’s interpretation, a juvenile convicted of first-degree murder prior to

June 25, 2012, is not subject to any minimum sentence. We conclude such a

construction is meritless.

Indeed, case law interpreting and applying Miller and Section 1102.1

for the resentencing of juveniles convicted of first or second-degree murder

prior to June 25, 2012, supports our conclusion that Appellant’s sentence is

legal. This Court has addressed this issue and held:

For those defendants convicted of first or second-
degree murder prior to June 25, 2012, 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
resentencing.

Seskey, 170 A.3d at 1108 (citing to Batts II, 163 A.3d at 421)
(citation omitted)[.]

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Commonwealth v. Blount, 207 A.3d 925, 938 (Pa. Super. 2019) (internal

footnote omitted).7 Moreover, there is no authority prohibiting the trial court

from looking to 18 Pa.C.S. § 1102.1 as a guide in resentencing a juvenile

defendant convicted prior to June 25, 2012, to a minimum sentence of a term

of years and a maximum sentence of life in prison. Rather, in the decisions

filed after Miller and the enactment of Section 1102.1, the courts of this

Commonwealth announced that “[t]he sentencing court should fashion the

minimum term of incarceration using, as guidance, [S]ection 1102.1(a) of

the Crimes Code.” Batts II, 163 A.3d at 460 (emphasis added). Although

Section 1102.1 applies specifically to convictions occurring after June 24,

2012, the holding in Batts II directs trial courts to consider Section 1102.1

when fashioning a sentence for juveniles convicted prior to June 25, 2012.

Batts II, 163 A.3d at 460. Additionally, the Supreme Court of Pennsylvania

stated: “Trial courts must consider, on the record, the Miller factors[8] and

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7 In Blount, we concluded that the holding in Miller did not preclude
sentencing courts from ever sentencing a juvenile offender to a sentence of
life without parole. Blount, 207 A.3d at 938 n.9. Rather, Miller required that
sentencing courts consider a juvenile’s immaturity, capacity for change, and
other relevant factors, and to refrain from imposing a term of life without
parole except in extreme cases where the sentencing court determines that
the juvenile is incapable of rehabilitation. Id.

8 In Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012), this Court
succinctly described the “Miller factors” as follows:

[A]lthough Miller did not delineate specifically what factors a
sentencing court must consider, at a minimum it should consider

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Section 1102.1 criteria, in all cases where a juvenile is exposed to a sentence

of life without parole.” Commonwealth v. Machicote, 206 A.3d 1110, 1120

(Pa. 2019).

Herein, upon resentencing, Appellant was “exposed” to a life sentence

because the trial court had the option to impose a legal sentence of life without

the possibility of parole. Batts II, 163 A.3d at 422. However, the trial court

painstakingly discussed and considered all relevant factors when fashioning

Appellant’s individualized sentence. N.T. (Sentencing), 7/7/17, at 4-20. The

record reflects that the trial court specifically considered Miller, Batts II, and

Section 1102.1 when it resentenced Appellant. Id. at 5-20.

Unquestionably, Section 1102.1 and relevant case law permits a

minimum sentence of at least thirty-five years to life in prison, with a

maximum sentence of life in prison, for a juvenile who was at least fifteen

years of age when he was convicted of first-degree murder. 18 Pa.C.S.

§ 1102.1(a)(1); Batts II, 163 A.3d at 421, 443; Blount, 207 A.3d at 938.

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a juvenile’s age at the time of the offense, his diminished
culpability and capacity for change, the circumstances of the
crime, the extent of his participation in the crime, his family, home
and neighborhood environment, his emotional maturity and
development, the extent that familial and/or peer pressure may
have affected him, his past exposure to violence, his drug and
alcohol history, his ability to deal with the police, his capacity to
assist his attorney, his mental health history, and his potential for
rehabilitation.

Knox, 50 A.3d at 745 (citation omitted).

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Thus, the trial court, guided by Section 1102.1 and authorized by case law,

imposed a minimum sentence of thirty-eight years of incarceration and a

maximum sentence of life in prison.

We conclude that Appellant’s sentence of thirty-eight years to life in

prison was legal. Batts II, 163 A.3d at 421, 443; Blount, 207 A.3d at 938.

Accordingly, Appellant’s challenge to the legality of his sentence is meritless.

For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence entered on

July 7, 2017.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/17/2021

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