J-A12045-17
2017 PA Super 278
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
REGIS SESKEY,
Appellee No. 1858 WDA 2016
Appeal from the Judgment of Sentence November 16, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013783-1992
BEFORE: OLSON, SOLANO and RANSOM, JJ.
OPINION BY OLSON, J.: FILED AUGUST 25, 2017
The Commonwealth of Pennsylvania appeals from the judgment of
sentence entered on November 16, 2016, as made final by the disposition of
Regis Seskey’s (“Appellee’s”) post-sentence motion on December 5, 2016.
In this case, we hold that our Supreme Court’s recent decision in
Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”) requires
that an individual convicted of first or second-degree murder1 for a crime
committed as a minor be sentenced to a maximum term of life
imprisonment. As the trial court in this case sentenced Appellee, who was
convicted of first-degree murder for a crime committed as a minor, to a
1
For simplicity, we refer to first-degree murder, first-degree murder of an
unborn child, and first-degree murder of a law enforcement officer
collectively as “first-degree murder.” Similarly, we refer to second-degree
murder, second-degree murder of an unborn child, and second-degree
murder of a law enforcement officer collectively as “second-degree murder.”
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maximum term of 26 years’ imprisonment, we affirm in part, vacate in part,
and remand for the sole purpose of resentencing.
The factual background of this case is as follows. Appellee and Marc
Bova (“Victim”) were partners in a drug dealing operation. At some point,
Appellee became angry at Victim for using too much of the crack cocaine
supply. Appellee was also unhappy that Victim owed him several hundred
dollars. Appellee expressed his frustration to Scott Thorton (“Thorton”).
Thorton suggested that they scare Victim by inviting him to a field, with the
promise of crack cocaine, and confronting him with a sawed-off shotgun.
On the night of October 12, 1992, Appellee and Thorton lured Victim to
the field. Instead of scaring Victim, Appellee fired five shots at Victim using
the sawed-off shotgun. Victim died as a result of the gunshot wounds he
sustained. Appellee then proceeded to eat at a local establishment where he
stated that killing Victim was like killing a rabbit. At the time of the murder,
Appellee was a minor.
The relevant procedural history of this case is as follows. On March
22, 1994, Appellee was convicted of first-degree murder.2 The trial court
immediately sentenced him to the then-mandatory term of life imprisonment
without the possibility of parole (“LWOP”). On direct appeal, this Court
affirmed his judgment of sentence and our Supreme Court denied allowance
2
18 Pa.C.S.A. § 2502(a).
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of appeal. Commonwealth v. Seskey, 676 A.2d 286 (Pa. Super. 1996)
(unpublished memorandum), appeal denied, 681 A.2d 1342 (Pa. 1996).
On August 15, 1997, Appellee filed a petition pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. On August 11,
1998, the PCRA court dismissed the petition without an evidentiary hearing.
This Court affirmed that dismissal and our Supreme Court denied allowance
of appeal. Commonwealth v. Seskey, 816 A.2d 334 (Pa. Super. 2002)
(unpublished memorandum), appeal denied, 828 A.2d 350 (Pa. 2003).
On July 19, 2010, Appellee filed his second PCRA petition. On May 1,
2012, the PCRA court dismissed the petition without an evidentiary hearing.
This court affirmed that dismissal and our Supreme Court denied allowance
of appeal. Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014),
appeal denied, 101 A.3d 103 (Pa. 2014), overruled, Montgomery v.
Louisiana, 136 S.Ct. 718 (2016).
On January 27, 2016, Appellee filed his third PCRA petition. The
Commonwealth conceded that, because Montgomery made the rule against
mandatory LWOP sentences for minor offenders retroactive, Appellee was
entitled to resentencing.3 It argued, however, that he must receive a
maximum term of life imprisonment. On November 16, 2016, the PCRA
3
As Appellee filed his third PCRA petition within 60 days of Montgomery, it
satisfied the new constitutional rule timeliness exception. See 42 Pa.C.S.A.
§ 9545(b)(1)(iii), (b)(2). As such, the PCRA court had jurisdiction to
consider the merits of Appellee’s petition.
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court granted Appellee’s PCRA petition. The trial court then immediately
sentenced him to a term of 13 to 26 years’ imprisonment. On November 17,
2016, Appellee filed a post-sentence motion. On December 5, 2016, the
trial court granted Appellee’s post-sentence motion and recommended that
Appellee be immediately paroled. This timely appeal followed.4
The Commonwealth presents two issues for our review:
1. Whether the [trial] court erred in imposing an illegal sentence
when it refused to sentence [A]ppellee to a maximum sentence
of life imprisonment with the chance for parole?
2. Whether the [trial] court abused its discretion in not imposing a
sentence which had, as its maximum, a sentence of life
imprisonment with the chance for parole?
Commonwealth’s Brief at 6.
In its first issue, the Commonwealth argues that the trial court
imposed an illegal sentence because the maximum term of imprisonment
was set at 26 years instead of life.5 Appellee, on the other hand, contends
4
The trial court did not order the Commonwealth to file a concise statement
of errors complained of on appeal (“concise statement”). See Pa.R.A.P.
1925(b). Nonetheless, on December 6, 2016, the Commonwealth filed a
concise statement. On January 3, 2017, the trial court issued its Rule
1925(a) opinion. Both of the Commonwealth’s issues were included in its
concise statement.
5
Appellee argues that this issue does not implicate the legality of his
sentence. This argument is without merit. In Commonwealth v.
Vazquez, 744 A.2d 1280 (Pa. 2000), our Supreme Court held that the trial
court’s failure to impose a sentence mandated by statute (either minimum
or maximum) implicates the legality of the sentence. Id. at 1284, citing
Commonwealth v. Hertzog, 425 A.2d 329, 333 (Pa. 1981); see also
Commonwealth v. Barnes, 151 A.3d 121, 127 (Pa. 2016) (adopting the
(Footnote Continued Next Page)
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that the trial court possessed unfettered sentencing discretion and it was not
required to impose any minimum or maximum term of imprisonment. When
reviewing the legality of a sentence, our standard of review is de novo and
our scope of review is plenary. Commonwealth v. Brown, 159 A.3d 531,
532 (Pa. Super. 2017) (citation omitted).
In order to understand the Commonwealth’s illegal sentence
argument, it is necessary to review the relevant Pennsylvania statutes
regarding mandatory LWOP sentences for minors convicted of first or
second-degree murder. The Crimes Code provides that an individual
convicted of first or second-degree murder must be sentenced to a term of
life imprisonment. See 18 Pa.C.S.A. § 1102(a), (b). The Parole Code
provides that an individual sentenced to a term of life imprisonment is not
eligible for parole. See 61 Pa.C.S.A. § 6137(a)(1); but see 18 Pa.C.S.A.
§ 1102.1 (discussed infra). Finally, the Juvenile Act provides that the term
“delinquent act” does not include the crime of murder. See 42 Pa.C.S.A.
§ 6302.
Under this statutory framework, a minor who commits first or second-
degree murder must be charged as an adult. If convicted, the minor must
be sentenced to a term of life imprisonment and is not eligible for parole.
But see 18 Pa.C.S.A. § 1102.1 (discussed infra). Thus, a minor convicted
_______________________
(Footnote Continued)
definition of an illegal sentence proposed by the opinion announcing the
judgment of the court in Commonwealth v. Foster, 17 A.3d 332 (Pa.
2011)).
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of first or second-degree murder receives a mandatory LWOP sentence. But
see id.
In 2012, the Supreme Court of the United States held that mandatory
LWOP sentences for minors violate the Eighth Amendment’s prohibition
against cruel and unusual punishment. Miller v. Alabama, 567 U.S. 460,
469-489 (2012). Our General Assembly responded to Miller by passing 18
Pa.C.S.A. § 1102.1. Section 1102.1 provides that an individual between the
ages of 15 and 17 years old convicted of first-degree murder after June 24,
2012 must be sentenced to a maximum term of life imprisonment. 18
Pa.C.S.A. § 1102.1(a)(1). The minimum term of imprisonment for such an
offender can be set anywhere from 35 years to life, i.e., LWOP. See id.
Section 1102.1 further provides that an individual under 15 years old
convicted of first-degree murder after June 24, 2012 must be sentenced to a
maximum term of life imprisonment. 18 Pa.C.S.A. § 1102.1(a)(2). The
minimum term of imprisonment for such an offender can be set anywhere
from 25 years to life, i.e., LWOP. See id.
Section 1102.1 provides that an individual between the ages of 15 and
17 years old convicted of second-degree murder after June 24, 2012 must
be sentenced to a maximum term of life imprisonment. 18 Pa.C.S.A.
§1102.1(c)(1). The minimum term of imprisonment for such an offender
can be set anywhere from 30 years to life, i.e., LWOP. See id. Section
1102.1 further provides that an individual under 15 years old convicted of
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second-degree murder after June 24, 2012 must be sentenced to a
maximum term of life imprisonment. 18 Pa.C.S.A. § 1102.1(c)(2). The
minimum term of imprisonment for such an offender can be set anywhere
from 20 years to life, i.e., LWOP. See id.
After our General Assembly passed section 1102.1, our Supreme Court
held that it does not apply to those minors, like Appellee, who were
convicted of first or second-degree murder prior to June 25, 2012.
Commonwealth v. Batts, 66 A.3d 286, 293 (Pa. 2013) (“Batts I”)
(citations omitted).
The question presented in this case is what sentencing framework
applies to those minor offenders who were convicted of first or second-
degree murder prior to June 25, 2012. As noted above, the Commonwealth
argues that these offenders must be sentenced to a maximum term of life
imprisonment and trial courts have the discretion to determine the
appropriate minimum sentence. Appellee, on the other hand, argues that
trial courts possess unfettered discretion when resentencing these offenders.
In support of his argument that the trial court had unfettered
sentencing discretion, Appellee relies upon Batts I. After this case was
argued, our Supreme Court issued its opinion in Batts II. In that case, our
Supreme Court held that whether a minor offender is eligible for LWOP is a
purely legal question subject to de novo review. Batts II, 163 A.3d at 434-
436. Our Supreme Court also held that the Commonwealth bears the
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burden of proving that a minor is eligible for LWOP beyond a reasonable
doubt. Id. at 452-455.
Most importantly for our disposition of this case, our Supreme Court
reaffirmed its holding in Batts I that:
For those defendants [convicted of first or second-degree
murder prior to June 25, 2012] for whom the sentencing court
determines a [LWOP] 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[.]
Batts II, 163 A.3d at 421, citing Batts I, 66 A.3d at 297 (internal alteration
and quotation marks omitted; emphasis added). In other words, our
Supreme Court merely severed “the prohibition against paroling an
individual sentenced to serve life in prison in section 6137(a)(1) as applied
to these offenders.” Id.
Our Supreme Court explained that its interpretation of the interplay
between sections 1102(a) and 6137(a)(1) in Batts I was correct because
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.
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Batts II, 163 A.3d at 445 (internal quotation marks, citations, and footnote
omitted). Therefore, under Batts II the trial court was required to sentence
Appellee to a maximum term of life imprisonment.
Appellee also relies upon decisions of the United States District Court
for the Eastern District of Pennsylvania and other states’ courts in support of
his argument that the trial court possessed unfettered sentencing discretion.
It is well-settled, however, that decisions of the federal courts and other
states’ courts are merely persuasive authority. Bensinger v. Univ. of
Pittsburgh Med. Ctr., 98 A.3d 672, 682 & n.10 (Pa. Super. 2014). On the
other hand, this Court is duty-bound to effectuate our Supreme Court’s
decisional law. Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc.,
20 A.3d 468, 480 (Pa. 2011) (citation omitted). Batts II, which our
Supreme Court decided after Montgomery, explicitly holds that the trial
court was required to sentence Appellee to a maximum term of life
imprisonment.
The trial court in this case failed to impose the mandatory maximum
sentence of life imprisonment. As such, Appellee’s sentence was illegal and
must be vacated. As we conclude that the 26-year maximum sentence
imposed was illegal, and remand for resentencing,6 we need not address the
6
Our Supreme Court has “instruct[ed] 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.” Batts II, 163 A.3d at 445 n.17.
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Commonwealth’s second issue that the maximum sentence was an abuse of
discretion. See Commonwealth v. Barnes, 2017 WL 2927566, *10 n.13
(Pa. Super. July 10, 2017) (en banc).
Application for bail denied. Judgment of sentence affirmed in part and
vacated in part. Case remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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