Com. v. Dejesus, J.

2021 Pa. Super. 213, 266 A.3d 49

• Court: Superior Court of Pennsylvania
• Decided: October 20, 2021
• Docket: 883 EDA 2018
• Status: Published

Opinion

J-E01006-21

2021 PA Super 213

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSE JAVIER DEJESUS : : Appellant : No. 883 EDA 2018

Appeal from the Judgment of Sentence January 5, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001277-1997

BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., and KING, J.

OPINION BY DUBOW, J.: FILED OCTOBER 20, 2021

Appellant, Jose Javier DeJesus, appeals from the Judgment of Sentence

entered on January 5, 2018, resentencing him to life without the possibility of

parole (“LWOP”) for a Second-Degree Murder he committed as a juvenile.

Relying on Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v.

Louisiana, 577 U.S. 190 (2016), he challenges the constitutionality of his

LWOP sentence and the discretionary aspects of his sentence. In light of the

U.S. Supreme Court’s recent decision in Jones v. Mississippi, 141 S.Ct. 1307

(2021), we conclude that Appellant’s LWOP sentence is constitutional.

Further, because Appellant did not invoke our jurisdiction to review the

discretionary aspects of his sentence, he has waived his challenge to the

sentencing court’s consideration of mitigating factors. We, thus, affirm. J-E01006-21

On May 10, 1994, Appellant shot Raymond McKinley in the neck during

an armed robbery. The gunshot completely paralyzed Raymond and as a result

of the shooting, he died in January 1997. A jury convicted Appellant in

December 1997 of Second-Degree Murder, Robbery, and firearms offenses.

The court sentenced him to, inter alia, the statutorily mandated sentence of

LWOP for Second-Degree Murder. This Court affirmed his Judgment of

Sentence and Appellant did not seek further review. Commonwealth v.

DeJesus, 737 A.2d 1271 (Pa. Super. filed March 22, 1999) (unpublished

memorandum).

On February 25, 2016, Appellant filed a pro se petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, seeking resentencing

pursuant to Miller and Montgomery. The PCRA court granted Appellant relief

on June 5, 2017, vacated Appellant’s sentences, and ordered resentencing.

On July 18, 2017, the Commonwealth filed a Notice of Intent to Seek

Imposition of a Life Sentence. The sentencing court held a resentencing

hearing on December 5 and 6, 2017, at which the parties presented the

testimony of multiple lay and expert witnesses. Relevant to this appeal, the

parties presented respective experts in psychology to opine on, inter alia,

Appellant’s mental health and the possibility of rehabilitation.

On January 5, 2018, the sentencing court resentenced Appellant to

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

February 16, 2018.

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Appellant timely filed a Notice of Appeal, and both he and the trial court

complied with Pa.R.A.P. 1925. A panel of this Court issued an initial decision

in this Appeal, which we withdrew after granting Appellant’s Petition for En

Banc Review.

Appellant presents the following issues for our review:

1. Whether [LWOP] is illegal because the [Commonwealth] did not present sufficient evidence to prove beyond a reasonable doubt that [Appellant] is incapable of rehabilitation, where both prosecution and defense experts agreed his rehabilitation is in fact possible?

2. Whether [LWOP] violates protections against cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution, as well as Article I, Section 13 of the Pennsylvania Constitution, when imposed upon a juvenile offender – like [Appellant] – whose conviction of [S]econd-[D]egree [M]urder does not reflect a specific intent to kill?

Appellant’s Br. at 5.

Standard of Review

Our standard of review is dependent on whether Appellant challenges

the legality of his sentence or the discretionary aspects of that sentence. To

make that determination, we must briefly review the jurisprudence developed

over the past decade pertaining to the constitutionality of the imposition of a

LWOP sentence on a juvenile homicide offender.

Until 2012, Pennsylvania law mandated that a sentencing court sentence

a juvenile offender convicted of first or second-degree murder to LWOP. In

Miller, 567 U.S. at 479, the U.S. Supreme Court found that such sentencing

schemes, which mandated a LWOP sentence for a juvenile homicide offender

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and did not provide the sentencer with any discretion in deciding whether to

impose a LWOP sentence, violated the constitutional protections in the Eighth

Amendment because the sentencing scheme did not consider the juvenile

homicide offender’s possibility of diminished culpability and greater potential

for rehabilitation. For a sentence to meet the requirements of the Eighth

Amendment, and thus be a legal sentence, the U.S. Supreme Court held that

the sentence must be part of a sentencing scheme that provides “a judge or

jury [] the opportunity to consider mitigating circumstances before imposing

the harshest possible penalty for juveniles.” Id. at 489. In particular, the

sentencer must have the discretion to consider the juvenile homicide

offender’s “youth and attendant characteristics” before deciding whether to

impose a LWOP sentence. Id. at 483.

In 2016, the U.S. Supreme Court in Montgomery, 577 U.S. at 206-09,

applied the factors in Teague v. Lane, 489 U.S. 288 (1989), and concluded

that Miller’s holding that statutorily mandated LWOP sentences on juvenile

homicide offenders violated the protections in the Eighth Amendment was a

substantive rule of constitutional law that the sentencing court must apply

retroactively. In other words, juvenile homicide offenders who were serving

statutorily mandated LWOP sentence were serving illegal sentences because

the sentencer had no discretion in deciding whether to impose a LWOP

sentence. Consequently, the state collateral review courts must apply the

Miller holding retroactively and address the illegality of LWOP sentences in

collateral proceedings. Id. The Montgomery Court directed that a sentencing

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court exercise its discretion before imposing a LWOP sentence and hold a

“hearing where youth and its attendant characteristics are considered as

sentencing factors.” Id. at 210.

In response to Miller and Montgomery, the Pennsylvania Supreme

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

abrogated by Jones, 141 S.Ct. 1307, set forth the sentencing scheme and

factors that the sentencing court must consider to meet the requirements of

the Eighth Amendment and, thus, impose a legal LWOP sentence on a juvenile

homicide offender. In particular, our Supreme Court held that the Eighth

Amendment only authorizes a sentencing court to impose a sentence of LWOP

when the sentencing court determines that the juvenile offender is one of the

“rare” and “uncommon” children who is “permanently incorrigible.” Batts II,

163 A.3d at 435. Thus, in order for a sentencing court to have the legal

authority to impose a LWOP sentence, the sentencing court must find by

competent evidence that the juvenile offender “will forever be incorrigible,

without any hope for rehabilitation.” Id.

As a result of this analysis, appellate review of the constitutionality of a

LWOP sentence and, thus the legality of the sentence, involved the question

of whether the sentencing court relied on competent evidence to conclude that

the juvenile homicide offender “will forever be incorrigible, without any hope

for rehabilitation.” Id.

The U.S. Supreme Court, however, in Jones, 141 S.Ct. 1307, abrogated

the holding in Batts II. The U.S. Supreme Court again addressed the

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requirements that the Eighth Amendment imposes on a sentencing scheme

for the sentencer to impose a legal LWOP sentence on a juvenile homicide

offender. The U.S. Supreme Court first reiterated the principle that a LWOP

sentence for a juvenile homicide offender meets the requirements of the

Eighth Amendment so long as the sentence is part of a sentencing scheme in

which the sentencer has the discretion to impose a sentence less than LWOP.

Id. at 1311. In addition, the sentencing scheme only requires the sentencer

to consider the juvenile homicide offender’s “youth and attendant

characteristics” to meet the requirements of the Eighth Amendment. Id. at

1314 (quoting Miller, 567 U.S. at 483). The Eighth Amendment does not,

however, require a sentencer to make a separate factual finding of

“permanent incorrigibility.” Id. at 1318-19. The U.S. Supreme Court also

rejected the need for the sentencer to make “an on-the-record sentencing

explanation with an implicit finding of permanent incorrigibility” to be legal

under the Eighth Amendment. Id. at 1319.

The U.S. Supreme Court also noted that its holding “does not preclude

the States from imposing additional sentencing limits in cases involving

defendants under 18 convicted of murder.” Id at 1323. For example, States

may still require sentencers to make extra factual findings and explain

formally on the record the reasons for imposing LWOP. Id. However, “the

U.S. Constitution, as this Court’s precedents have interpreted it, does not

demand those particular policy approaches.” Id. In other words, these other

sentencing requirements do not carry the protections of the Eighth

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Amendment and thus, the sentencing court’s treatment of those requirements

do not impact the trial court’s constitutional authority to impose a LWOP

sentence on a juvenile homicide offender. Rather, these additional

requirements affect only the discretionary aspects of the imposition of the

LWOP sentence.

In Batts II, our Supreme Court interpreted the Eighth Amendment as

imposing on a sentencing court that imposes a LWOP sentence the

requirement that the sentencing court make a finding, supported by

competent evidence, of “permanent incorrigibility,” a standard much higher

than the requirement that the sentencing court consider a “juvenile’s youth

and attendant characteristics.” Since “[i]t is beyond cavil that [Pennsylvania

state courts are] bound by the determinations of the United States Supreme

Court on issues of federal law, including the construction and interpretation of

the federal constitution[,]” Hall v. Pa. Bd. of Probation and Parole, 851

A.2d 859, 863 (Pa. 2004), we must analyze this appeal based on Jones. In

other words, when reviewing the legality of a sentencing court’s imposition of

a LWOP sentence, we may only focus on the Jones factors and not those

espoused in Batts II. We consider the Batts II factors as part of the

discretionary aspects of the LWOP sentence.

As a result, when reviewing the legality of the imposition of a LWOP

sentence, the appellate court only reviews whether the sentencer considered

the juvenile homicide offender’s “youth and attendant characteristics.” The

appellate review of any other factors, such as whether a juvenile homicide

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offender is “permanently incorrigible,” involves the review of the discretionary

aspects of the sentence.

Appellant’s Challenges to the LWOP Sentence

With this background in mind, we turn to Appellant’s challenge to his

LWOP sentence. Although he frames his challenge as a legality of sentence

issue, the crux of it is that the sentencing court improperly weighed certain

expert testimony regarding Appellant’s mental health and erroneously

concluded that Appellant was incapable of rehabilitation. Appellant’s Br. at 23-

27. In light of Jones and the fact that Appellant does not argue that the

sentencing court failed to consider Appellant’s “youth and attendant

characteristics,” we are constrained to characterize Appellant’s challenge as

one to the discretionary aspects of his sentence, not its legality.1

Challenges to the discretionary aspects of sentence are not appealable

as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.

2015). Rather, an appellant challenging the sentencing court’s discretion must

____________________________________________

1 In Commonwealth v. McGrath, 255 A.3d 581 (Pa. Super. 2021), this Court

found that a sentence of 48 years was not a de facto LWOP sentence and the trial court did not err in failing to consider the Miller factors. In its conclusion, our Court stated, after citing to Jones in a footnote, “[a]s such, we need not consider whether the trial court errantly omitted a finding of permanent incorrigibility.” Id. at 587. We, however, overrule McGrath to the extent that it stands for the proposition that a sentencing court’s determination of “permanent incorrigibility” impacts the legality of the sentence. We likewise overrule Commonwealth v. Lebo, No. 1538 MDA 2020, 2021 WL 3743804 (Pa. Super. filed Aug. 24, 2021) (non-precedential opinion) to the extent that it stands for the proposition that a sentencing court’s consideration of the Batts II factors impacts the legality of the juvenile defendant’s LWOP sentence.

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invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2)

properly preserving the issue at sentencing or in a motion to reconsider and

modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a

separate section of the brief setting forth a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of a sentence; and (4) presenting a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. §

9781(b), or sentencing norms. Id. An appellant must satisfy all four

requirements. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.

2013).

Appellant met the first two requirements by filing a Post-Sentence

Motion and timely filing a notice of appeal. He has not, however, met the last

two requirements by including a Rule 2119(f) Statement in his brief and

explaining the manner in which his sentence is inappropriate under the

Sentencing Code or sentencing norms. The Commonwealth objects to

Appellant’s failure to include a Rule 2119(f) Statement. Commonwealth’s Br.

at 32. Consequently, Appellant has failed to invoke our jurisdiction to review

the discretionary aspects of his sentence and unfortunately, we lack the

authority to review the merits of Appellant’s challenge to the LWOP sentence.

In his second issue, Appellant argues that the imposition of a LWOP

sentence on a juvenile homicide offender who is convicted of Second Degree

murder is unconstitutional under the Eighth Amendment because the

conviction does not require a finding that the juvenile had the specific intent

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to kill the decedent. Appellant’s Br. at 11-23. As discussed above, the

Supreme Court in Jones does not interpret the Eighth Amendment as

differentiating between First- and Second-Degree murder. Rather, the Jones

court interprets the Eighth Amendment as only requiring the sentencing

scheme to not mandate the imposition of a LWOP sentence and the sentencer

to consider a juvenile homicide offender’s “youth and attendant

characteristics.”

Appellant also purports to challenge the constitutionality of his LWOP

sentence under Article I, Section 13 of the Pennsylvania Constitution.

Appellant, however, does not cite any case law or develop any argument

regarding the applicability of the Pennsylvania Constitution. “[I]t is an

appellant’s duty to present arguments that are sufficiently developed for our

review.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007).

Since Appellant did not develop this argument, it is waived and we are unable

to review it.

Appellant has also waived his argument that the LWOP sentence violates

Equal Protection Clause of the Fourteenth Amendment because the legislature

amended the Sentencing Code so that it differentiates between juveniles

homicide offenders who committed homicides before 2012 and after 2012.

Appellant failed to raise this challenge before the trial court and thus, waived

it. Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot

be raised for the first time on appeal.”). See Commonwealth v. Lawrence,

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99 A.3d 116, 122 (Pa. Super. 2014) (finding waiver where appellant failed to

raise Equal Protection argument in lower court).

For these reasons, we affirm the decision of the sentencing court.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/20/2021

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