J-S04015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN IVEY :
:
Appellant : No. 184 EDA 2021
Appeal from the Judgment of Sentence Entered December 3, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0626011-1981
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 9, 2022
Appellant, Steven Ivey, appeals from the judgment of sentence of 30
years’ to life imprisonment. Appellant, who was 17 years old when he was
convicted of second-degree murder in 1981, was originally sentenced to life
imprisonment, without the possibility of parole (“LWOP”). In 2018, that
sentence was vacated pursuant to Miller v. Alabama, 567 U.S. 460 (2012)
(holding that the Eighth Amendment forbids a sentencing scheme that
mandates LWOP for juvenile offenders), and Montgomery v. Louisiana, 577
U.S. 190 (2016) (holding that Miller’s prohibition on mandatory LWOP for
juvenile offenders constitutes a new substantive rule that applies retroactively
to cases on collateral review). The court resentenced Appellant to the above-
stated term of incarceration on December 3, 2020. On appeal, Appellant
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S04015-22
contends that his sentence is illegal, and that the court abused its discretion
in fashioning his new term of incarceration. After careful review, we affirm.
The court summarized the facts and procedural history of Appellant’s
case, as follows:
On January 2, 1981, Appellant…, now known as Muti Ajamu-
Osagboro, entered the American Grocery Store[,] located at 12th
and Mt. Vernon Streets in Philadelphia[,] with four co-
conspirators[] with the intent to rob it. One of Appellant’s co-
conspirators, Richard Phelps[,] brought a gun which he pulled on
the store owner, Sook Ja Yu, and demanded money. The owner
reached toward the gun, but it fired[,] striking her once in the
chest. She died as a result of this injury. Appellant was [17]
years old at the time of this incident.
On November 4, 1981, following a bench trial[,] Appellant was
convicted of second-degree murder and related charges. On
March 2, 1982, Appellant was sentenced to an aggregate term of
life imprisonment[, without the possibility of parole (LWOP)]. On
April 19, 1984, the Superior Court affirmed Appellant’s judgment
of sentence. Appellant did not seek allocatur with the
Pennsylvania Supreme Court. On January 8, 1997, Appellant filed
his first[,] pro se Post[]Conviction Relief Act (“PCRA”) petition
and[,] following appointment of counsel[,] an amended petition
was filed on October 29, 1997. On March 31, 1998, the PCRA
court denied the petition for lack of merit. Appellant did not
appeal. Subsequently, Appellant filed two unsuccessful PCRA
petitions in 2000 and 2003.
On July 20, 2010, Appellant filed a pro se PCRA petition alleging
he was entitled to relief pursuant [to] Graham v. Florida, 560
U.S. 48 (2010), because he was under [18] at the time of the
offense. Appellant filed subsequent[,] supplemental pro se
petitions when the United States Supreme Court decided Miller …
and Montgomery…, alleging again [that] he was entitled to relief
because he was a juvenile at the time of the offense.
***
On April 27, 2018, the PCRA court granted Appellant’s PCRA
petition … as it related to his Miller/Montgomery claims…. On
-2-
J-S04015-22
March 30, 2020, the Superior Court affirmed the PCRA court’s
decision. [See Commonwealth v. Ivey, 2020 WL 1515893 (Pa.
Super. 2020) (unpublished memorandum).] Again, Appellant did
not seek allocatur with our Supreme Court.
On December 3, 2020, following [the] grant of Appellant’s PCRA
petition relating to his Miller/Montgomery claim, Appellant was
resentenced to a term of 30 years[’] to life[ imprisonment,] with
[the] possibility of parole[,] on the [second-degree] murder …
conviction[,] with credit for time served[.] … [N]o further penalty
was imposed on the remaining convictions. On December 29,
2020, a [n]otice of [a]ppeal to the Superior Court was filed on
behalf of … Appellant by his counsel….
***
On July 13, 2021, this court issued an [o]rder pursuant [to]
Pa.R.A.P. 1925(b), for Appellant to file a concise [s]tatement of
[m]atters [c]omplained of on [a]ppeal. On August 3, 2021,
Appellant filed a timely [s]tatement of [m]atters [c]omplained of
on [a]ppeal.
Trial Court Opinion (“TCO”), 8/12/21, at 1-3 (footnotes omitted). The trial
court filed its Rule 1925(a) opinion on August 12, 2021.
Herein, Appellant states one issue for our review: “Did the sentencing
court abuse its discretion when it entered a sentence of 30 years to life?”
Appellant’s Brief at 4. Preliminarily, we observe that although Appellant
presents only one issue in the “Statement of the Questions Involved” section
of his brief, he divides his “Argument” section into two separate claims. First,
Appellant asserts that “[t]here is no controlling sentencing statute applicable
to [his] second-degree murder conviction.” Id. at 10. Second, he avers that
“[t]he sentencing court’s sentence was manifestly excessive, unreasonable,
and illegal.” Id. at 12. Although Appellant did not properly set forth his two
issues in his “Statement of the Questions Involved,” we will address his
-3-
J-S04015-22
arguments because, as discussed infra, they constitute non-waivable
challenges to the legality of his sentence.
In his first claim, Appellant contends that there is no statutory authority
for his sentence of 30 years’ to life imprisonment. According to Appellant,
Miller wholly invalidated 18 Pa.C.S. § 1102(b), the sentencing statute under
which his original term of incarceration was imposed. He recognizes that “in
response to Miller, the Pennsylvania legislature enacted a new law governing
sentencing for juveniles convicted of murder.” Appellant’s Brief at 10 (citing
18 Pa.C.S. § 1102.1). He stresses, however, that this “sentencing framework
only applies to a person who has been convicted after June 24, 2012.” Id.
(internal quotation marks and citation omitted); see also 18 Pa.C.S. §
1102.1(c) (setting forth the sentencing requirements for “[a] person who has
been convicted after June 24, 2012, of a murder of the second degree”).
Consequently, Appellant argues that “there is no statutory [or] constitutional
basis for [his] December 3, 2020 sentence” of 30 years’ to life incarceration.
Appellant’s Brief at 10.
Appellant’s claim implicates the legality of his sentence. See
Commonwealth v. Melvin, 172 A.3d 14, 19 (Pa. Super. 2017). Thus, “our
standard of review is de novo and our scope of review is plenary.” Id. (citation
and quotation marks omitted).
As the trial court correctly observed, we have already assessed and
rejected Appellant’s same argument in Melvin. See TCO at 4. The court
explains:
-4-
J-S04015-22
In Melvin, [Melvin] and his co-conspirator attempted to flee a
juvenile detention facility in November of 2003 and, in the
process, accidentally caused the death of the facility’s night
manager by suffocation. [Melvin] pled guilty to second[-]degree
murder, while the remaining charges were nolle prossed, and [he]
was sentenced to [LWOP]. [Melvin, 172 A.3d] at 17.
On August 19, 2016, following multiple PCRA petitions and the
United States Supreme Court’s decisions in Miller and
Montgomery, the PCRA court vacated [the] appellant’s sentence
and resentenced him to a term of 30 years[’] to life[,] with [the]
possibility of parole. [Melvin] filed post-sentence motions[,]
which were denied, and he appealed claiming his sentence was
illegal. He argued “that the PCRA court had no valid statutory
authority to impose a term-of-years sentence with a maximum
term of life imprisonment at his resentencing” and[,] because his
offense occurred prior to June 24, 2012, "the only possible legal
sentence [was] on the lesser included offense of third-degree
murder or the underlying felony of robbery.” Id. at 18-19
(internal citations, brackets and quotation marks omitted).
In disposing of this issue, the [C]ourt looked through the history
of the Pennsylvania Supreme Court’s interpretation of Miller. The
[C]ourt explained that our Supreme Court interpreted Miller to
require sentencing courts to consider the appropriate age-related
factors before imposing … []LWOP[] sentences on juveniles[,]
while asserting that juveniles could still receive LWOP sentences.
Id. at 19 [(]quoting Commonwealth v. Batts, 66 A.3d 286, []
296 (Pa. 2013) (“Batts I”)[)]. However, to sentence a juvenile
to LWOP[,] the Commonwealth must prove, beyond a reasonable
doubt “that the juvenile offender is permanently incorrigible and
thus unable to be rehabilitated.” Id. at 20 [(]quoting
Commonwealth v. Batts, 163 A.3d 410, 459-60 (Pa. 2017)
(“Batts II”)[),] abrogated by Jones v. Mississippi, 141 S.Ct.
1307 (2021).6
6 In Jones…, a 2021 decision, the United States Supreme
Court held that sentencing courts need not make separate
findings of permanent incorrigibility before imposing a[n]
LWOP sentence on a juvenile offender, [Jones,] 141 S.Ct.
at 1319, and that sentencing courts are not required to
provide on-the-record explanations with implicit findings of
permanent incorrigibility, [id.] at 1321.
-5-
J-S04015-22
With respect to which sentencing guideline would apply to
juveniles for whom the court determines LWOP sentences are
inappropriate, our Supreme Court “instructed sentencing courts to
look to the mandatory minimum sentences set forth in section
1102.1(a) for guidance in setting a minimum sentence for a
juvenile convicted of first-degree murder prior to Miller.” Id. at
20-21 [(]quoting Batts II, 163 A.3d at 443 n.17[)] … (internal
quotation marks and bracket omitted).
The [C]ourt explained it was bound by our Supreme Court’s
decision in Batts II[] in rejecting the contention that there was:
(1) no legislatively authorized sentence for juveniles convicted of
first-degree murder prior to 2012; and (2) that the forty[-]year
maximum penalty for third-degree murder was the only legal
alternative and that severance of the statute was impossible. Id.
at 21. The Court also held that in resentencing a juvenile offender,
a sentencing court was “constitutionally permitted to impose a
minimum term-of-years sentence and a maximum sentence of life
imprisonment[,]” with eligibility of parole. Id. Therefore, in
[Melvin’s] case, the [C]ourt determined his thirty-years-to-life
sentence was not illegal.
The [C]ourt further iterated that in response to Miller, the
legislature passed 18 Pa.C.S. § 1102.1, which set[s] forth
applicable sentences for certain homicides, including second-
degree murder, committed by juveniles after June 24, 2012. The
[C]ourt explained that our Supreme Court “mandated that where
… the lower court determines that a juvenile LWOP sentence is
inappropriate for an offender who was convicted of homicide
before Miller, the court must, in fashioning a term-of-years-to-
life sentence, consider the sentencing requirement codified at 18
Pa.C.S. § 1102.1.” Id. at 22.
The PCRA court in [Melvin’s] case was informed by [s]ection
1102.1 in imposing its sentence, which provides that the minimum
sentence for second-degree murder committed by a juvenile 15
years or older shall be at least thirty-years to life[.] [T]herefore,
[the Superior Court] found no reason to disturb the PCRA court’s
decision. Id.
Like Melvin, … Appellant in the instant case is not entitled to relief
based on his claims. Appellant’s original sentence for his second-
degree murder was vacated and he was resentenced by this court
to a term o[f] 30-years to life for the second-degree murder
conviction. The Superior Court in Melvin has determined that this
-6-
J-S04015-22
sentence is not illegal, and our Supreme Court denied allocatur to
consider it on appeal. Therefore, the sentence should be left
undisturbed.
TCO at 4-6.
We agree with the trial court’s interpretation and application of Melvin.
Appellant’s insistence that “this issue is far from settled in Pennsylvania”
because our “Supreme Court has not reviewed” the Melvin decision is
unavailing. Our Supreme Court declined review in Melvin, and “a panel of
this Court cannot overrule the decision by another panel.” Commonwealth
v. Karash, 175 A.3d 306, 307 (Pa. Super. 2017). Accordingly, we are bound
by Melvin to reject Appellant’s argument that no statutory authority exists
for his sentence of 30 years’ to life imprisonment. See also Commonwealth
v. Derrickson, 242 A.3d 667, 676–77 (Pa. Super. 2020), appeal denied, 253
A.3d 213 (Pa. 2021) (rejecting the argument that there is no statutory basis
for sentencing a juvenile convicted of a second-degree murder committed
prior to Miller).
Appellant next contends that the court abused its discretion in
resentencing him to 30 years’ to life incarceration because a mandatory-
maximum sentence of life imprisonment for a juvenile convicted of second-
degree murder violates the Eighth Amendment’s prohibition against cruel and
unusual punishment. While Appellant construes this claim as a discretionary-
-7-
J-S04015-22
aspects-of-sentence issue, it actually implicates the legality of his sentence.1
See Commonwealth v. Moye, 266 A.3d 666, 673 (Pa. Super. 2021). Thus,
we reiterate that “our standard of review is de novo and our scope of review
is plenary.” Id. at 673-74 (citations omitted).
Here, Appellant does not meaningfully elaborate on why he believes his
maximum sentence violates the Eighth Amendment. Instead, he only briefly
asserts that “a mandatory[-]maximum sentence of life imprisonment should
be as unconstitutional as a mandatory[-]minimum sentence of life
imprisonment[, as] … both are imposed without proportionality and without
individualized consideration in violation of the Eighth Amendment.”
Appellant’s Brief at 13.
Notably, the Commonwealth agrees with Appellant that it is cruel and
unusual punishment to sentence a juvenile convicted of second-degree
murder to a mandatory-maximum sentence of life imprisonment. See
Commonwealth’s Brief at 18. However, it correctly “acknowledges that this
Court has repeatedly upheld” such sentences. Id. at 19 (citing Derrickson,
242 A.3d at 675-76; Commonwealth v. Olds, 192 A.3d 1188, 1191 (Pa.
Super. 2018)). Indeed, in Olds, “we reaffirm[ed] that trial courts must
____________________________________________
1 To the extent Appellant argues that the court abused its discretion in
fashioning his sentence, he has waived such claims by failing to file a post-
sentence motion. See Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.
Super. 2013) (“[I]ssues challenging the discretionary aspects of a sentence
must be raised in a post-sentence motion or by presenting the claim to the
trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.”) (citation
omitted).
-8-
J-S04015-22
sentence juveniles convicted of second-degree murder prior to June 25,
2012[,] to a maximum term of life imprisonment under section 1102(b).”
Olds, 192 A.3d at 1198 (emphasis added). We held “that such mandatory
maximums do not violate the Eighth Amendment’s ban on cruel and unusual
punishment.” Id. (emphasis added)
Appellant makes no effort to distinguish his cursory Eighth Amendment
argument from the one raised and rejected in Olds. He also does not discuss
any legal authority issued since Olds that would ostensibly alter our holding
therein. The only more recent case cited by Appellant is Commonwealth v.
Machicote, 206 A.3d 1110 (Pa. 2019), from which he quotes that “one of the
hallmarks of the line of United States Supreme Court cases pertaining to
juvenile sentencing, is the notion that conviction for a specific crime does not
warrant the same sentence in all circumstances.” Appellant’s Brief at 13
(quoting Machicote, 206 A.3d at 1119).
However, the holding of Machicote does not involve whether the Eighth
Amendment is violated when a juvenile convicted of second-degree murder
receives a term-of-years minimum sentence, and a mandatory-maximum
term of life imprisonment. Instead, the Machicote Court held “that when a
juvenile is exposed to a potential sentence of [LWOP,] the trial court must
consider the Miller factors, on the record, prior to imposing a sentence.” Id.
Here, Appellant did not receive a sentence of LWOP and, thus, Machicote is
not relevant to his Eighth Amendment claim. Because Appellant cites no other
-9-
J-S04015-22
legal authority that would call into question our holding in Olds, we conclude
that his constitutional challenge is meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/09/2022
- 10 -