Com. v. Aulisio, J.

2021 Pa. Super. 117, 253 A.3d 338

• Court: Superior Court of Pennsylvania
• Decided: June 8, 2021
• Docket: 230 MDA 2020
• Status: Published

Opinion

J-A07025-21

2021 PA Super 117

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH GERARD AULISIO : : Appellant : No. 230 MDA 2020

Appeal from the Judgment of Sentence Entered December 18, 2019 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001386-1981

BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY DUBOW, J.: FILED: JUNE 8, 2021

Appellant Joseph Gerard Aulisio appeals from the Judgment of Sentence

imposed at a resentencing hearing following the U.S. Supreme Court decisions

in Miller and Montgomery.1 He challenges the court’s imposition of two

consecutive terms of incarceration of thirty years to life, arguing that the

aggregate minimum term of sixty years is a de facto life sentence. After

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Miller v. Alabama, 567 U.S. 460 (2012) (holding that the imposition of a

sentence of life without parole (“LWOP”) on juvenile offenders violates the Eighth Amendment of the Constitution); Montgomery v. Louisiana, 577 U.S. 190 (2016) (holding Miller applies retroactively). See also Commonwealth v. Batts, 163 A.3d 410, 452 (Pa. 2017) (“Batts II”) (concluding that “in Pennsylvania, a faithful application of the holding in Miller, as clarified in Montgomery, requires the creation of a presumption against sentencing a juvenile offender to [LWOP].”). J-A07025-21

careful review, and pursuant to Commonwealth v. Foust, 180 A.3d 416 (Pa.

Super. 2018), we affirm.

In 1987, Appellant received two consecutive sentences of mandatory

life without parole (“LWOP”) after a jury convicted him of two counts of First-

Degree Murder.2 Appellant was fifteen and a half years old when he

committed the crimes.

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

Montgomery, the PCRA court granted Appellant’s post-conviction collateral

request for resentencing. Prior to re-sentencing, Appellant underwent a

mental health examination by the Commonwealth’s expert, Dr. Steven

Samuel. Dr. Samuel authored a report opining that Appellant was amenable

to rehabilitation. As a result, the Commonwealth did not request a sentence

of LWOP. The court ordered a pre-sentence investigation.

On December 18, 2019, the court held a resentencing hearing at which

several prison guards, mental health counselors employed by the prison,

Appellant’s brother, and Appellant himself testified. In addition, an art

2 Evidence showed that in 1981, Appellant shot Cheryl and Christopher Ziemba, ages 4 and 8 respectively, at close range with a shotgun as they and Appellant played in an unfinished house owned by Appellant’s father in Old Forge. Appellant then drove the children’s bodies wrapped in a blanket and a carpet to an old strip mine several miles away and left them at the bottom of a ravine. Appellant returned to the home and cleaned up the crime scene. Appellant then participated in the extensive two-day community search for the children that ensued. Firefighters found the children’s bodies. The jury found Appellant guilty of murder and kidnapping and he was originally sentenced to death. Six years later, the kidnapping conviction was vacated, and Appellant was resentenced to two counts of LWOP.

-2- J-A07025-21

professor who had mentored Appellant from outside prison testified regarding

Appellant’s artwork. Immediately following the hearing, the court imposed

two consecutive terms of thirty years’ to life imprisonment, stating on the

record its reasons for imposing consecutive rather than concurrent sentences.

Appellant filed a Post-Sentence Motion, which the court denied.

Appellant filed a timely Notice of Appeal. Appellant and the sentencing

court complied with Pa.R.A.P. 1925.

Appellant presents the following Statement of Questions Involved:

1. Is it unconstitutional and illegal to impose individual sentences of thirty (30) years to life and, when aggregated, sixty (60) years to life, in either case a de facto sentence of life imprisonment, absent proof beyond a reasonable doubt and a finding that the juvenile is permanently incorrigible, irreparably corrupt and depraved, and beyond rehabilitation?

a. Is an abuse of discretion present where there does not exist a finding that the Appellant is permanently incorrigible?

Appellant’s Br. at 3.

Legality of Sentence

Appellant challenges the legality of his sentence. We review a challenge

to the legality of a sentence de novo and our scope is plenary. Foust, 180

A.3d at 422.

Appellant contends his aggregate minimum sentence of 60 years’

incarceration is a de facto life sentence and, thus, violative of Miller, as

interpreted by Batts II, because the court did not find that he is not amenable

-3- J-A07025-21

to rehabilitation. Based on precedential case law, we conclude Appellant’s

legality challenge warrants no relief.3

In Miller, the U.S. Supreme Court held that due to the vagaries of

youth, a juvenile convicted of murder carries a presumption of rehabilitation

and before imposing a sentence of life on convicted juveniles, courts must

consider the “hallmarks” of youth, including “immaturity, impetuosity, and the

failure to appreciate risks and consequences.” 567 U.S. at 477. In addition,

the sentencer must consider the juvenile’s home and family environment, the

circumstances of the homicide and the offender’s participation in the crime,

and the juvenile’s amenity to rehabilitation. Id. Together, these factors are

referred to as the “Miller factors.”

However, in Commonwealth v. White, 193 A.3d 977, 983 (Pa. Super.

2018), this Court held that “a sentencing court must consider

[the] Miller factors only in cases where the Commonwealth is attempting to

meet its burden of overcoming the presumption against juvenile LWOP

sentences.” Thus, where the Commonwealth does not seek a LWOP sentence,

3 We are mindful that the Pennsylvania Supreme Court is currently reviewing

whether a sentence of 50 years to life imposed upon a juvenile constitutes “a de facto life sentence requiring the sentencing court, as mandated [in Batts II, to] first find permanent incorrigibility, irreparable corruption, or irretrievable depravity beyond a reasonable doubt.” Commonwealth v. Felder, 187 A.3d 909 (Pa. 2018). Cf. Jones v. Mississippi, 141 S.Ct. 1307, 1321-23 (2021) (holding that Miller does not require a specific finding of incorrigibility and lack of amenability to rehabilitation but states may continue to require such explicit findings).

-4- J-A07025-21

the issue of whether the court made a specific finding of an inability to be

rehabilitated is moot. Id.

In Commonwealth v. Foust, supra, this Court addressed, as a matter

of first impression, the same claim Appellant asserts here—that the imposition

of two consecutive terms of 30 years’ to life imprisonment constituted an

unconstitutional de facto life sentence in violation of Miller, supra. After

thoroughly reviewing the development of federal and state juvenile sentencing

law, the Foust Court concluded that Pennsylvania courts must consider

sentences individually and not in the aggregate to determine their legality with

respect to the principles enunciated in Miller. The Court observed:

Appellant asks us to declare unlawful the trial court's discretionary determination to impose consecutive (but independently valid) punishments for a double murder conviction under principles of the Eighth Amendment. This position enjoys no support under Pennsylvania law and runs contrary to decisions that have previously addressed the claim . . . We reject Appellant's effort to invalidate the legality of his sentence under principles traditionally confined to discretionary sentencing review.

*** In our view, whether the aggregate or individual sentences control for purposes of Miller is the most difficult question raised in this appeal. We have scrutinized relevant Pennsylvania case law, prior decisions of the Supreme Court of the United States, and persuasive authority from other jurisdictions. Although we acknowledge that there is ground for differing views, we believe that we are on sound legal footing and consistent with Pennsylvania law. Accordingly, we hold that we must consider the individual sentences, not the aggregate, to determine if the trial court imposed a term-of-years sentence which constitutes a de facto LWOP sentence.

Foust, supra at 435, 437-38 (internal citation omitted).

-5- J-A07025-21

The Foust Court then concluded that, because the relevant sentencing

statute provided that if the murders had been committed after June 24, 2012,

the sentence would have been 35 years to life for each crime, the fact that

the court imposed a minimum 30 years’ incarceration for each conviction did

not violate Miller. Further, the Court stated:

We explicitly decline to draw a bright line in this case delineating what constitutes a de facto LWOP sentence and what constitutes a constitutional term-of-years sentence . . . We similarly decline to set forth factors that trial courts must consider when making this determination, i.e., whether they must look to the life expectancy of the population as a whole or a subset thereof and whether the defendant must be given a chance at a meaningful post-release life. We need not confront these difficult questions in this case. Instead, we limit our holding to the facts of this case . . . A sentence of 30 years to life imprisonment does not constitute a de facto LWOP sentence which entitles a defendant to the protections of Miller.

*** Appellant will be eligible for parole when he is in his seventies. Although he may not live this long, he has a chance of being released into society. It is within the trial court’s discretion to conclude that an individual who viciously took the lives of two innocent people is not entitled to be released into society at an earlier age, even with the reduced culpability recognized in Roper, Graham,[4] and Miller.

Id. at 438, 441 (internal citations omitted).

Foust is dispositive in the instant case. As in Foust, Appellant received

two thirty-year minimum sentences; like Foust, he will be eligible for release

when he is in his seventies. Because our current precedential case law holds

4 Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S.

48 (2010).

-6- J-A07025-21

that a 30-year minimum sentence for a conviction of First-Degree Murder is

not a de facto life sentence, and because the Commonwealth did not seek a

sentence of LWOP, Appellant’s challenge to his aggregate sentence as a

violation of the protections of Miller garners no relief.

Discretionary Aspect of Sentence

Although not stated explicitly in his question presented, within his brief

Appellant argues that the court abused its discretion in imposing consecutive

sentences rather than concurrent sentences, asserting that the aggregate

sentence resulted in a term of incarceration which is contrary to the

fundamental norms which underlie the sentencing process and violated the

express provisions of the Sentencing Code. Appellant’s Br. at 22.

Long-standing precedent of this Court recognizes that 42 Pa.C.S. §

9721(a) affords the sentencing court discretion to impose its sentence

concurrently or consecutively to other sentences being imposed at the same

time or to sentences already imposed. Commonwealth v. Marts, 889 A.2d

608, 612 (Pa. Super. 2005). An appellant is not entitled as a matter of right

to a review of the discretionary aspects of his sentence. Commonwealth v.

Patterson, 180 A.3d 1217, 1232 (Pa. Super. 2018). Rather, an appellant

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

-7- J-A07025-21

substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted).

Here, Appellant filed a timely Notice of Appeal, preserved the issue of

sentence excessiveness in a Motion for Reconsideration, and included a

statement pursuant to Pa.R.A.P. 2119(f). We thus consider whether Appellant

has raised a substantial question.

“[T]he imposition of consecutive, rather than concurrent, sentences may

raise a substantial question in only the most extreme circumstances[.]”

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citation

omitted). Here, Appellant avers that the imposition of consecutive sentences

violated the express provisions of the Sentencing Code and that the aggregate

sentence of sixty years’ incarceration is contrary to the fundamental norms

which underlie the sentencing process. Appellant’s Br. at 22. We conclude

this averment presents a substantial question. Commonwealth v. Dodge,

77 A.3d 1263, 1271-73 (Pa. Super. 2013). We, thus, proceed to determine

whether the trial court abused its discretion in imposing consecutive rather

than concurrent sentences.

In reviewing a challenge to the discretionary aspects of sentencing, we

evaluate the court's decision under an abuse of discretion standard.

An abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly

-8- J-A07025-21

unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill- will, or such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.

Moury, 992 A.2d at 169–170(citation and brackets omitted).

Additionally, “this Court's review of the discretionary aspects of a

sentence is confined by the statutory mandates of 42 Pa.C.S. §

9781(c) and (d).” Dodge, 77 A.3d at at 1274 (citation omitted). Section

9781 provides:

(c) Determination on appeal.--The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

(d) Review of record.--In reviewing the record the appellate court shall have regard for:

-9- J-A07025-21

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(c) and (d).

Appellant avers that the court “heavily relied on the gruesomeness of

the crime” while disregarding Dr. Samuel’s report and the testimony given in

1981 by a psychologist during Appellant’s decertification hearing. Appellant’s

Br. at 35-36. He also asserts that the sentencing “court further erred when

placing unreasonable weight on the nine[ ] misconducts that [Appellant] had

acquired over thirty-eight years of incarceration and the alleged threats

[Appellant made] that were not substantiated through the pursuit of

disciplinary action against [Appellant.]” Id. at 36, 38.

Our review of the resentencing transcript and the court’s Rule 1925(a)

Opinion reveals that the court thoroughly reviewed the record, considered and

weighed all documents submitted for its consideration, including the PSI

report and each of Appellant’s mental health evaluations, heard and observed

the demeanor of all witnesses, and considered relevant case law before

imposing Appellant’s sentence. N.T. Sentencing, 11/18/19, at 215-25; Trial

Ct. Op., dated 8/20/20. The court acknowledged that Appellant was not

subject to a sentence of LWOP because, after receiving Dr. Samuel’s expert

- 10 - J-A07025-21

report, the Commonwealth had not requested it. N.T. Sentencing, at 215. The

court noted that it, nonetheless, considered the Miller factors and 18 Pa.C.S.

§ 1102.1.5 N.T. Sentencing, at 216.

As Appellant notes, the court spoke about the heinous nature of the

murders, as well as Appellant’s actions and behavior after the crimes and the

significant impact of the crimes on the victims, their families, and the

community of Old Forge. See, e.g., id., at 216-218, 222-223. However, the

court also acknowledged Appellant’s youth when he committed the crimes,

the mental health examinations conducted in 1981 showing, inter alia,

Appellant’s below-average IQ, and the testimony regarding Appellant’s

difficult childhood and his father’s abusive conduct which caused significant

family dysfunction. Id., at 219-20. The court also found that Appellant’s

artwork created in prison demonstrated that Appellant had taken “steps in the

direction of rehabilitation.” Id., at 220-21.

In considering the safety of the public if Appellant were to be released,

the court credited the testimony of three corrections officers who stated that

within 4 years of the resentencing hearing, Appellant had threatened to hurt

them or their families upon his release. See, id., at 216-219. The court also

noted the testimony of an attorney who began researching Appellant’s case in

5 18 Pa.C.S. § 1102.1(a)(1) provides that a person convicted after June 24,

2012, of first-degree murder who committed the crime while between 15 and 18 years old must be sentenced to a minimum term of 35 years’ incarceration. The court sentenced Appellant to minimums of 30 years.

- 11 - J-A07025-21

1988 intending to write a book who testified that in 1992, he received a

threatening letter from Appellant at his home address, an address he never

gave Appellant. Id.

Significantly, the court stated that it imposed consecutive sentences

because it saw no “true remorse here. And any remorse that was expressed,

I see as manipulation” for which “there was precedent in the record and prison

records [showing] that there was outright manipulation that took place within

the prison and as reported in the prison records.” Id. at 224. The court also

emphasized that Appellant committed two separate premeditated murders

and stated it “cannot permit volume discounts when it comes to first degree

murder.” Id. at 224.

Based on our review of the record, precedential case law, and our

standard of review, we are unable to conclude that the court abused its

discretion in imposing consecutive rather than concurrent sentences.

Accordingly, we affirm.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/08/2021

- 12 -