J-A27033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TONITA HENDERSON
Appellant No. 860 WDA 2013
Appeal from the Judgment of Sentence Entered February 5, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0015719-2011
BEFORE: BOWES, OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J. FILED JULY 21, 2016
Appellant, Tonita Henderson, appeals from the judgement of sentence
entered February 5, 2013, following her convictions of two counts of
robbery, one count of receiving stolen property, and one count of criminal
conspiracy.1 Upon review, we affirm.
On November 29, 2011, Appellant was charged with two counts of
robbery, one count of receiving stolen property, and one count of criminal
conspiracy.2 At the time she was charged, Appellant was seventeen years
old and less than three months from her eighteenth birthday. Appellant’s
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1
18 Pa.C.S.A. §§ 3701, 3925, and 903, respectively.
2
Unless another source is cited, these facts are taken from pages one
through four of the trial court’s November 26, 2014 Pa.R.A.P. 1925(a)
opinion.
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case was initiated in criminal court. Appellant petitioned the trial court to
transfer her case to juvenile court. Following a decertification hearing, her
petition was denied. A non-jury trial was held on November 7, 2012, after
which Appellant was found guilty of all charges. The trial court requested a
presentence investigation report (PSI) for use in fashioning Appellant’s
sentence. The PSI included Appellant’s prior juvenile adjudications.
Following a sentencing hearing, the trial court sentenced Appellant to a
period of incarceration of not less than six and one-half nor more than
thirteen years to be followed by a period of probation of seven years.
Appellant filed post-sentence motions which were denied. Appellant timely
appealed to this Court and, as ordered, filed a Rule 1925(b) statement
wherein she raised seven claims of error. The trial court issued a Pa.R.A.P.
2915(a) opinion.
Appellant now raises four issues for our review:
1. Whether the juvenile decertification process is
unconstitutional as it does not allow for the minor child to
have a jury conclude beyond a reasonable doubt that the
juvenile should be subjected to an adult penalty beyond the
juvenile statutory maximum penalty in violation of the minor
child’s Sixth Amendment rights?
2. Whether placing the burden of proof on a juvenile defendant
in a decertification process violates both the juvenile’s
procedural and substantive due process rights?
3. Whether the process of obtaining a second expert witness
violated Miss Henderson’s Constitutional rights under the
Equal Protection Clause of the Fourteenth Amendment?
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4. Whether Section 303.6 of the Sentencing Guidelines violates
the 8th Amendment to the United States Constitution and
Article 1, Section 13 of [sic] Constitution of the
Commonwealth of Pennsylvania in light of Roper v.
Simmons, [543 U.S. 551 (2005),] Graham v. Florida, [560
U.S. 48 (2010),] and Miller v. Alabama, [132 S.Ct. 2455
(2012)]?
Appellant’s Brief at 5-6.
Initially, we note that an appellant bears a heavy burden to prove a
statute unconstitutional. “[A] statute is presumed to be constitutional and
will not be declared unconstitutional unless it clearly, palpably and plainly
violates the Constitution.” Commonwealth v. Cotto, 753 A.2d 217, 219
(Pa. 2000). Additionally, “there is no constitutional guarantee to special
treatment for juvenile offenders. Any right to treatment as a juvenile is
derived from statutory law and is defined by the legislature.” In Interest
of J.F., 714 A.2d 467, 470 (Pa. Super. 1998).
The legislature, through the Juvenile Act, placed adjudication of
delinquent acts when the defendant is a child automatically within the
jurisdiction of juvenile court. 42 Pa.C.S.A. § 6322(a). However, Section
6302 of the Juvenile Act excludes robbery from the definition of a delinquent
act where, as in this case, a deadly weapon was used in the commission of
the offense. See 42 Pa.C.S.A. § 6302 “Delinquent Act” (2)(ii)(D); see also
18 Pa.C.S.A. § 3701 (relating to robbery). Prosecution for an offense
excluded from the definition of a delinquent act commences in criminal court
rather than in juvenile court. 42 Pa.C.S.A. § 6322(a); see also
Commonwealth v. Ramos, 920 A.2d 1253, 1258 (Pa. Super. 2007)
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(“[W]hen the crime involved is one excluded from the Juvenile Act’s
definition of a delinquent crime, the charge is automatically within the
jurisdiction of the criminal court and jurisdiction is presumptively proper.”).
When a criminal court has jurisdiction over a crime committed by a
juvenile pursuant to 42 Pa.C.S.A. § 6322(a), the juvenile may request that
her case be decertified, i.e., removed to the jurisdiction of juvenile court.
Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003). This
process has been upheld as constitutional by this Court and our Supreme
Court. See Cotto, 753 A.2d at 217, 222 (holding as constitutional the 1995
Amendments to the Juvenile Act which vest original jurisdiction in the
criminal courts for specified violent felonies and granting the decision-maker
discretion in determining whether to transfer a direct file case to juvenile
court); see also Commonwealth v. Aziz, 724 A.2d 371, 374 (Pa. Super.
1999), appeal denied, 759 A.2d 919 (Pa. 2000) (“We find that the
amendments to the Act, which cause juveniles accused of the enumerated
offenses to appear first in criminal court, are not arbitrary and instead are
rationally related to the statute’s objectives.”).
Appellant first argues that the decertification process is
unconstitutional as violating the Sixth Amendment because a judge rather
than a jury decides decertification. Appellant bases this claim on our United
States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
(2000) which, in her words, “conclude[es] that a sentencing factor that has
the potential to enhance the punishment triggers Sixth Amendment
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protections. . . .” Appellant’s Brief at 15. Essentially, Appellant argues that
the denial of decertification is a factor that could enhance a sentence beyond
the statutory maximum allowed for a juvenile and, therefore, under
Apprendi, only a jury may deny decertification. Appellant’s Brief at 19.
The United States Supreme Court’s decision in Apprendi concerned a
statute that authorized a judge to increase the maximum sentence after a
jury’s verdict based on the judge’s finding, by a preponderance of the
evidence, of the fact that the crime was racially motivated. Apprendi, 120
S.Ct. at 2348. We previously summarized the rule established by Apprendi
and its progeny as follows.
In the watershed Apprendi case, the Supreme Court held that
any fact except a prior conviction that increases the range of
punishment beyond the statutory maximum penalty for that
crime must be charged in an indictment, submitted to the jury,
and proven beyond a reasonable doubt. The Court further
defined the term statutory maximum in Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004). According to the Blakely Court, the statutory maximum
is the maximum sentence a court can impose based solely on
the facts reflected by the jury verdict or admitted by the
defendant during his guilty plea.
Commonwealth v. Stokes, 38 A.3d 846, 858-59 (Pa. Super. 2011).
Appellant’s reliance on Apprendi is misplaced. Decertification is a
legislatively established procedure whereby a judge must consider a
juvenile’s amenability to treatment within the juvenile system as delineated
by statutorily defined factors. 42 Pa.C.S.A. § 6355(a)(4)(iii). Decertification
is not a fact that increases the maximum penalty that may be imposed as
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already determined by a jury’s verdict or an accused’s guilty plea. Indeed, a
judge does not make any findings of fact regarding elements of the crimes
charged during the decertification process. Further, there is no jury involved
in this process. Apprendi, therefore, is factually and legally distinguishable
from the instant case. As such, Appellant is not entitled to relief on her first
issue.
Appellant next argues that placing the burden of proof on a juvenile
defendant in the decertification process violates both the juvenile’s
procedural and substantive due process rights. In Cotto, our Supreme
Court addressed and rejected this issue and held as follows.
[T]he legislature has determined in its judgment that, in certain
instances, violent felonies in addition to murder are sufficiently
serious to merit vesting original jurisdiction in the criminal
courts, while affording the defendant an opportunity to show
that his is the exceptional case warranting juvenile treatment.
....
. . . [T]he legislature’s informed determination that juveniles
fifteen years of age and older who commit such offenses are not
initially amenable to rehabilitation under the Juvenile Act, unless
they prove otherwise by a preponderance of the evidence, is
equally reasonable. There is nothing in the Constitution to
prevent the legislature from making such a judgment.
Cotto, 753 A.2d at 223-24.
Appellant acknowledges that Cotto is controlling on this issue, but
asks us to reconsider our Supreme Court’s holding. Appellant’s Brief at 24.
This Court, however, has a “duty and obligation to follow the decisional law
of [the Supreme Court of Pennsylvania].” Commonwealth v. Shaffer, 734
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A.2d 840, 844 n.6 (Pa. 1999). Because Cotto considered and resolved
Appellant’s second issue, we are bound by our Supreme Court’s holding in
Cotto, and Appellant is not entitled to relief on this claim.3
Appellant contends in her third issue that requiring her to petition the
trial court to grant funds for a second expert witness violated her
constitutional rights under the Equal Protection Clause of the Fourteenth
Amendment. Specifically, Appellant argues that as a client of the Allegheny
County Office of Conflict Counsel (OCC), she is similarly situated to clients of
the Public Defender’s Office (PDO), as they are all individuals who qualify for
but cannot afford representation. Appellant alleges that, because a second
expert witness could have been obtained had she been represented by the
PDO given the PDO’s self-regulated budget, she was placed in a second class
where she was required to petition the court for funds for an additional
expert witness as a client of the OCC. Appellant’s Brief at 31-32. Appellant
claims this violated her Equal Protection Rights because, under the
Fourteenth Amendment, “like persons in like circumstances will be treated
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3
To the extent that Appellant relies on Roper, Graham, and Miller to
support her argument that “juveniles are constitutionally distinct from
adults,” and therefore it is unconstitutional to shift the burden of proof in
decertification onto juvenile defendants, these cases are easily
distinguishable from the one sub judice as the foregoing only address
juvenile sentencing. Appellant’s Brief at 24; Commonwealth v. Batts, 125
A.3d 33, 37 (Pa. Super. 2015). None of these cases pertains to the juvenile
decertification process.
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similarly” unless “there be a rational basis for policy distinctions between
similarly situated individuals.” Appellant’s Brief at 30.
The starting point of an equal protection analysis is a determination of
whether the State has created a classification for unequal distribution of
benefits or imposition of burdens. Commonwealth v. Parker White Metal
Co., 515 A.2d 1358 (Pa. 1986). Appellant claims to be a member of a class
consisting of indigent persons represented by the OCC who are similarly
situated to those indigent persons represented by the PDO. Appellant claims
differential treatment as a member of the OCC class because her request for
a second expert requires court approval, whereas approval is not required
for those represented by the PDO. It is established that the action of state
courts may be regarded as State action within the meaning of the
Fourteenth Amendment. See Shelley v. Kramer, 334 U.S. 1 (1948). The
question preliminarily which remains to be answered however, is whether
the Appellant’s challenge to the trial court’s action was based upon
differentiating her in a class from others similarly situated. Appellant fails to
satisfy this preliminary consideration to sustain an equal protection claim.
While Appellant challenges the action of the trial court in refusing a
second expert, Appellant does not explain how the trial court created
separate classifications of people for making expert witness determinations
for equal protection purposes. The decision to deny Appellant a second
expert was based upon the trial court’s individualized review of Appellant’s
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request for a second expert. The request was denied after the trial court
determined Appellant was merely shopping for another expert to provide a
more favorable opinion than the first expert that was court funded. The trial
court correctly noted, citing Commonwealth v. Chester, 733 A.2d 1242,
1252 (Pa. Super 1999), that a defendant is not entitled to unlimited court
appointed experts until he finds one that renders the opinion he desires.
This individualized determination was not based upon any class created by
the trial court. Nor does Appellant establish that other persons represented
by the OCC would have had similar requests for expert approval declined as
a result of their membership in her purported class. Moreover, Appellant
provides no proof that the PDO in fact would have retained a second expert
on her behalf to establish disparate treatment of her as a purported class
member represented by the OCC. “A person who brings an action under the
Equal Protection clause ‘must show intentional discrimination against him
because of his membership in a particular class, not merely that he was
treated unfairly as an individual.’" Murray v. Pittsburgh Bd. of Public
Educ., 919 F. Supp. 838, 847 (W.D. Pa. 1996) (citation omitted). A review
of Appellant’s claim reveals no more than an individualized determination on
whether a second expert would be approved. This individualized
determination was not dependent upon membership in a class.
It further is conceded that representation of Appellant by the OCC was
necessitated by a conflict within the PDO office. To the extent Appellant can
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claim the establishment of similarly situated classes, a representational
conflict within the PDO necessitating separate representation by the OCC, is
grounded upon a rational basis that does not offend equal protection. A
State can, consistent with the Fourteenth Amendment, provide for
differences so long as the result does not amount to a denial of due process
or invidious discrimination. Douglas v. California, 372 U.S. 353 (1963).
Absolute equality is not required. Id. As Appellant fails to establish the
essential predicates for an equal protection claim, her claim fails.4
Appellant’s final issue is that the Pennsylvania Sentencing Guidelines
are unconstitutional as applied to juvenile defendants. Appellant’s Brief at
42. Appellant argues that, together, Roper, Graham, and Miller
established the rule that, under the Eighth Amendment, criminal procedure
laws, including sentencing guidelines, must consider an offender’s age.
Appellant’s Brief at 39-40. Appellant claims that it is therefore
unconstitutional for Section 303.6 of the Pennsylvania Sentencing
Guidelines5 to mandate using her juvenile offenses to calculate her prior
record score for use in criminal court. Appellant’s Brief at 34-38.
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4
In light of our disposition of Appellant’s equal protection claim, we need not
determine whether Appellant properly preserved this issue due to
inadequate briefing.
5
Section 303.6 of the Pennsylvania Sentencing Guidelines provides, in
pertinent part, as follows:
(Footnote Continued Next Page)
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Appellant’s claim that the United States Supreme Court decisions in
Roper, Graham, and Miller require that our sentencing guidelines, as
applied to juveniles, be held unconstitutional requires impermissible
extensions and leaps of logic from the holdings in those cases. Roper held
that the death penalty is disproportionate punishment for offenders under
18, and that imposing such punishment was a violation of the Eight
Amendment. When a juvenile commits a heinous crime, the State can exact
forfeiture of some of the most basic liberties, but the State cannot extinguish
his life. In Graham the Court held that the Eighth Amendment does not
permit a juvenile offender to be sentenced to life in prison without parole for
a non-homicide crime. The Constitution prohibits the imposition of a life
without parole sentence on a juvenile offender who did not commit
homicide. While a State need not guarantee the offender eventual release,
if it imposes a sentence of life it must provide him or her with some realistic
opportunity to obtain release before the end of that term.
_______________________
(Footnote Continued)
Prior juvenile adjudications are counted in the Prior Record Score
when the following criteria are met: (1) The juvenile offense
occurred on or after the offender’s 14th birthday, and (2) There
was an express finding by the juvenile court that the
adjudication was for a felony or one of the Misdemeanor 1
offenses listed in § 303.7(a)(4).
204 Pa. Code § 303.6.
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In Miller, the Court recognized that Roper and Graham established
that children are constitutionally different from adults for sentencing
purposes and that its individualized sentencing decisions make clear that a
judge or jury must have the opportunity to consider mitigating
circumstances before imposing the harshest possible penalty for juveniles.
By mandating that all children convicted of homicide receive lifetime
incarceration without possibility of parole, regardless of their age and age-
related characteristics and the nature of their crimes, such sentencing
schemes violate the principle of proportionality, and hence, the Eighth
Amendment’s ban on cruel and unusual punishment. Our State Supreme
Court recently clarified that “Miller’s holding is narrow,” and that it “would
not expand the holding of Miller absent a common law history or a
legislative directive.” Batts, 125 A.3d at 38. The Court specifically held
that “Miller requires only that there be judicial consideration of the
appropriate age-related factors set forth in that decision prior to the
imposition of a sentence of life imprisonment without the possibility of parole
on a juvenile.” Id. The Court declined to change the “legal consequences
for the actions of minors” based on the “policy considerations” raised by
Miller stating, “[i]n Pennsylvania, subject to the limits of the Constitution,
such matters are generally reserved, in the first instance, to the General
Assembly.” Commonwealth v. Hale, 2015 WL 9284110, at *4 (Pa. 2015).
The common thread running through Roper, Graham, and Miller, is
that the harshest of penalties imposed upon juveniles in those cases cannot
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withstand scrutiny for proportionality under the Eighth Amendment. The
rationales for rejecting the outer limits of sentencing in those cases in no
manner can be construed as an invitation to invalidate consideration of all
factors that may bear upon an appropriate sentence for a juvenile sentenced
as an adult as in this case. Moreover, requiring consideration of a juvenile’s
prior offenses to calculate a prior record score is not the same as mandating
a certain sentence. The weight given a prior record score goes to the
discretion of a sentencing court in fashioning an appropriate sentence.6 The
Court in Roper, Graham, and Miller, did not disturb a sentencing court’s
ability to consider all factors when sentencing a juvenile. In fact, those
decisions emphasize the need for individualized consideration in juvenile
sentencing, a point that cuts directly against the argument Appellant
presently makes.
As previously stated, “a statute is presumed to be constitutional and
will not be declared unconstitutional unless it clearly, palpably and plainly
violates the Constitution.” Cotto, 753 A.2d at 219. In Commonwealth v.
Smith, 481 A.2d 1365 (Pa. Super. 1984), this Court addressed the
contention that under the Juvenile Act, juvenile records and adjudications
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6
To the extent Appellant’s argument raises a challenge to the discretionary
aspects of her sentence, Appellant has made no such claim, and if her
argument could be considered as raising such a claim, we would deem it
waived for not properly preserving this issue for review. See
Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013).
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should not be regarded as criminal acts for purposes of sentencing. In
rejecting that proposition, we stated,
The intention of the Legislature is clear in its adoption of
the policy which not only allows but requires examination of a
defendant’s juvenile record in fashioning appropriate sentences.
....
It is clearly the intent of the Legislature that a child who
continues his pattern of serious and violent anti-social activity
into adulthood, should not receive the benefit of a cloak of
immunity regarding that behavior, when it is relevant to
predicting future behavior and the public safety is at risk.
Until and unless the mandate to utilize juvenile records as
a sentencing aid is legislatively reversed, it remains incumbent
upon the sentencing courts to obey it.
Id. at 1366. In light of the foregoing and the legislative purpose to be
served by permitting consideration of prior juvenile records in sentencing,
we decline Appellant’s invitation to extend the holdings of Roper, Graham,
and Miller to find that Section 303.6 of the Pennsylvania Sentencing
Guidelines is unconstitutional as applied to juveniles.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
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Com. v. Henderson, T.
Combined Opinion