Com. v. Rodgers, J.

• Court: Superior Court of Pennsylvania
• Decided: August 30, 2021
• Docket: 389 WDA 2020
• Status: Unpublished

Opinion

J-A02023-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES FRANKLIN RODGERS : : Appellant : No. 389 WDA 2020

Appeal from the Judgment of Sentence Entered January 17, 2020 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000590-1988, CP-07-MD-0000689-2016

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 30, 2021

Appellant, James Franklin Rodgers, appeals from the judgment of

sentence of forty years to life imprisonment imposed after his prior juvenile

mandatory life without parole sentence (LWOP) was vacated. Appellant claims

that the resentencing court imposed a de facto LWOP, erred by usurping the

statutory authority of the Board of Probation and Parole (Parole Board), and

improperly precluded evidence of the Commonwealth’s pre-trial plea offer.

We affirm.

The parties are familiar with the facts underlying of this appeal, and we

briefly summarize the procedural history. On May 23, 1990, a jury found J-A02023-21

Appellant guilty of first-degree murder, robbery, and aggravated assault1 in a

capital case. The following day, the jury thereafter returned a sentencing

verdict of life imprisonment. On April 3, 1991, the trial court imposed a

mandatory LWOP sentence for first-degree murder.2

Following an unsuccessful direct appeal and a first post-conviction

proceeding, Appellant filed a second Post Conviction Relief Act3 (PCRA) petition

challenging his mandatory LWOP sentence in light of Miller v. Alabama, 567

U.S. 460 (2012).4 The clerk of the court generated a second miscellaneous

(MD) docket number to supplement the original criminal (CR) docket number

concerning this case, apparently for administrative reasons. Thereafter, the

parties and the court appeared to have filed single copies of all subsequent

paperwork under captions bearing both the MD and CR docket numbers, which

were listed at the MD docket number.

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1 18 Pa.C.S. §§ 2502(a), 3701, and 2702, respectively. Appellant’s convictions are for the 1988 murder of Pasquale J. Lascoli, who was seventy- two years old at the time. The decedent was found in his home having suffered over seventy stab wounds. Appellant was approximately seventeen- and-a-half years old at the time of the offenses.

2 The trial court also sentenced Appellant to a total concurrent term of five to

ten years’ imprisonment for the remaining offenses.

3 42 Pa.C.S. §§ 9541-9546.

4 Appellant states that he has filed for habeas relief in federal court, and he

also has a petition for DNA testing pending. We add that Appellant’s brief contains matters challenging the integrity of his convictions. However, this appeal concerns only resentencing issues.

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The PCRA court granted relief on Appellant’s sentencing claim and held

resentencing hearings from June 26 to June 29, 2019. On January 17, 2020,

the resentencing court sentenced Appellant to serve forty years to life

imprisonment for first-degree murder and read into the record its reasons for

the sentence. N.T., 1/17/20, at 5-21.

Appellant timely filed a post-sentence motion, which the resentencing

court denied by the order entered on February 13, 2020. The resentencing

court’s order denying Appellant’s post-sentence motion stated, in part, that

Appellant “may file an appeal . . . no later than thirty (30) days” from the

date of the order. Order, 2/13/20 (emphasis added).

Appellant timely filed a single notice of appeal under a caption listing

both the MD and CR docket numbers. Appellant complied with the

resentencing court’s order for a Pa.R.A.P. 1925(b) statement, but the

resentencing judge retired before filing a Rule 1925(a) opinion.

On May 4, 2020, this Court issued a rule to show cause why the appeal

should not be quashed pursuant to Commonwealth v. Walker, 185 A.3d

969 (Pa. 2018) (requiring the filing of separate notices of appeal in each case

when a single order resolve issues arising on more than one docket).

Appellant responded and summarized the administrative issues leading to the

creation of the MD docket number. This Court discharged the rule to show

cause but noted that this panel could revisit the issue of compliance with

Walker.

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Before addressing the merits of this appeal, Appellant contends that

Walker does not bar consideration of this appeal. Appellant’s Brief at 54-60.

Although this case now carries two docket numbers—the original CR docket

number and the new MD docket number—the underlying matter is a single

criminal case against a single offender. Under these circumstances, we

conclude that that the filing of a single notice captioned with the CR and MD

docket numbers is proper. See Walker, 185 A.3d at 977; see also Always

Busy Consulting, LLC v. Babford & Co., 247 A.3d 1033, 1043 (Pa. 2021)

(discussing consolidated cases); Commonwealth v. Johnson, 236 A.3d

1141, 1148 (Pa. Super. 2020) (en banc) (overruling Commonwealth v.

Creese, 216 A.3d 1142 (Pa. Super. 2019)). In any event, the resentencing

court also advised Appellant that he need only file an appeal, which

constitutes a breakdown in the operation of the court that would preclude a

strict application of Walker. See Order, 2/13/20, at 2; Commonwealth v.

Larkin, 235 A.3d 350, 354 (Pa. Super. 2020) (en banc), appeal denied, 251

A.3d 773 (Pa. 2021); Commonwealth v. Stansbury, 219 A.3d 157 (Pa.

Super. 2019). Accordingly, we do not quash the appeal.

Appellant presents the following challenges to the resentencing court’s

sentence:

1. Is a 40-to-life sentence a de facto life sentence when virtually every other jurisdiction has allowed for parole consideration at 20, 25, or 30 years and the Pennsylvania legislature drew a line at 35 years?

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2. When a [re]sentencing court says a defendant cannot safely be released now, but then allows for the possibility of release at a point after the suggested minimum sentence, does that sentence usurp the authority given by the legislature to the Parole Board?

3. When the Commonwealth makes the nature of the crime and the impact on the community central to its sentencing recommendation and when it puts the original prosecutor on the stand to explain how he believed this was one of the worst crimes he had ever seen, does the court abuse its discretion when it does not permit the defendant to ask that prosecutor if he offered a deal to the defendant, which would certainly change the perception of the seriousness of the crime? . . .

Appellant's Brief at 5 (formatting altered).5

Appellant first raises a constitutional challenge asserting that the

resentencing court imposed a de facto LWOP sentence. In support, Appellant

argues that there is a growing national consensus and an evolving standard

of decency that a juvenile offender should be parole eligible after serving

twenty to thirty years of imprisonment. Id. at 35-36. Appellant cites

numerous statutes and decisions from other states, as well as 1 Pa.C.S. §

1102.1, the latter of which sets a thirty-five year minimum term of

imprisonment for juveniles who commit murders when they are fifteen-years

of age or older.6 Id. Discussing Miller, Montgomery v. Louisiana, 577

5 We have omitted Appellant’s fourth question presented, which concerned the

Walker issue resolved above. See Appellant’s Brief at 5.

6 Section 1102.1(a) states, in part:

A person who has been convicted after June 24, 2012, of a murder of the first degree . . . and who was under the age of 18 at the (Footnote Continued Next Page)

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U.S. 190 (2016), and Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017),

Appellant asserts that our courts should establish the standard that to

withhold parole eligibility after twenty or thirty years’ imprisonment violates

the Pennsylvania Constitution. Id. at 38. Alternatively, Appellant requests

that this Court find that any departure above the thirty-five year minimum

sentence in Section 1102.1 constitutes an unconstitutional sentence unless

there is a finding that the offender is irreparably corrupt.7 Id. at 34, 39.

time of the commission of the offense shall be sentenced as follows:

(1) A person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at least 35 years to life.

18 Pa.C.S. § 1102.1(a)(1). Section 1102.1 does not apply to a juvenile offender convicted before Miller, but a resentencing court should consult Section 1102.1 for guidance. See Commonwealth v. White, 193 A.3d 977, 984 (Pa. Super. 2018).

7 During this appeal, the United States Supreme Court decided Jones v. Mississippi, 141 S. Ct. 1307 (2021), and abrogated Batts’s holding that the imposition of a discretionary LWOP sentence required a sentencing court to find the permanent incorrigibility of a juvenile offender under Miller and Montgomery. Jones v. Mississippi, 141 S. Ct. 1307, 1311, 1318-19 (2021).

The Jones Court’s reading of Miller and Montgomery focused on the mandatory imposition of LWOP sentences upon a juvenile offender. Jones, 141 S. Ct. at 1317-18. The Jones Court held that Miller and Montgomery required that a sentencing court consider age-related factors before imposing an LWOP sentence but did not mandate that the sentencing court make a finding of fact concerning a child’s incorrigibility. Id. at 1318-19.

(Footnote Continued Next Page)

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Appellant notes that other cases have raised similar arguments that are

pending before the Pennsylvania Supreme Court. Id. at 37 (discussing

Commonwealth v. Felder, 187 A.3d 809 (Pa. filed June 29, 2018), granting

appeal from, 660 EDA 2015, 2017 WL 6505643 (Pa. Super. filed Dec. 20,

2017) (unpublished mem.)). Appellant claims that in Felder, the

Commonwealth conceded that a forty-year minimum sentence constitutes a

de facto LWOP sentence. Id.

The Commonwealth responds that the resentencing court did not abuse

its discretion when imposing a forty-year minimum sentence.

Commonwealth’s Brief at 6-23. The Commonwealth recognizes that cases

challenging de facto LWOP sentences are pending before our Supreme Court

but notes that this Court has consistently held that sentences similar to

Appellant’s sentence were not de facto LWOP sentences. Id. at 28-31. The

Commonwealth maintains that Appellant misread the argument presented to

our Supreme Court and insists it did not concede a forty-year minimum

sentence constitutes a de facto LWOP sentence case. Id. at 30.

This Court recently summarized the principles governing our review in

Commonwealth v. McGrath, --- A.3d ---, ---, 2021 PA Super 132, 2021 WL

2641915 (Pa. Super. filed June 28, 2021).

The Jones Court, however, acknowledged that states may impose “additional sentencing limits in cases involving defendants under [eighteen] convicted of murder.” Id. at 1323. Further, the Court noted that the case before it did not properly present an “as-applied Eighth Amendment claim of disproportionality regarding [the LWOP] sentence.” Id. at 1322.

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We have previously determined that a claim that the trial court imposed an impermissible de facto life sentence in violation of Miller constitutes a challenge to the legality of sentence. This Court has stated:

A claim challenging a sentencing court’s legal authority to impose a particular sentence presents a question regarding the legality of the sentence. The determination as to whether a trial court imposed an illegal sentence is a question of law; an appellate court’s standard of review in cases dealing with questions of law is de novo and our scope of review is plenary.

A trial court may not impose a term-of-years sentence on a juvenile convicted of homicide that equates to a de facto [LWOP] sentence unless it finds, beyond a reasonable doubt, that the juvenile is incapable of rehabilitation.

McGrath, 2021 WL 2641915, at *3 (citations omitted and formatting altered).

This Court has distinguished a permissible sentence from an

unconstitutional de facto LWOP sentence as follows:

The key factor in considering the upper limit of what constitutes a constitutional sentence, in this narrow context, appears to be whether there is “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Implicit in this standard is the notion it would not be meaningful to provide an opportunity for release based solely on the most tenuous possibility of a defendant’s surviving the minimum sentence imposed. To be meaningful or, at least, potentially meaningful, it must at least be plausible that one could survive until the minimum release date with some consequential likelihood that a non-trivial amount of time at liberty awaits.

Commonwealth v. Bebout, 186 A.3d 462, 468 (Pa. Super. 2018) (citation

and footnote omitted) (emphasis in original).

This Court has consistently applied the “meaningful opportunity”

standard to hold that similar sentences to the forty-year minimum sentence

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in the present case are not de facto LWOP sentences. This Court has done so

most recently in McGrath and Commonwealth v. Summers, 245 A.3d 686

(Pa. Super. 2021). See, e.g., McGrath, 2021 WL 2641915, at *5 (discussing

forty-eight-year minimum sentence); Summers, 245 A.3d at 698 (discussing

forty-year minimum sentence); Bebout, 186 A.3d at 468 (discussing forty-

five-year minimum sentence).

We acknowledge Appellant’s references to a developing national

consensus and standards of decency to assert that the Pennsylvania

Constitution’s protection against cruel and unusual punishment should bar any

minimum sentence over thirty-five years as a de facto LWOP sentence.8 We

also note those claims mirror those currently under consideration before our

Supreme Court. See Appellant’s Brief at 37; Felder, 187 A.3d 809. However,

8 We note that Appellant’s summary of statutes and case law from other states

largely relies on parenthetical summaries of the term of years sentences permissible in those states. However, Appellant does not address how those states’ laws may inform a claim with respect to Pennsylvania’s indeterminate sentencing scheme. Further, in asserting a violation of the Pennsylvania Constitution, Appellant does not conduct a full analysis of whether the Pennsylvania Constitution provides greater protections than the United States Constitution. See Commonwealth v. Baker, 78 A.3d 1044, 1054 (Pa. 2013) (Castille, C.J., concurring) (noting that the text of the Pennsylvania Constitution prohibits “cruel punishments” while the United States Constitution prohibits “cruel and unusual punishments,” and that the United States Constitution provides a “minimum floor” (citations omitted)); Commonwealth v. Olds, 192 A.3d 1188, 1190 n.3 (Pa. Super. 2018) (noting that the Pennsylvania and federal constitutional protection against cruel and unusual punishments are coextensive). As noted above, in Jones, the United States Supreme Court rejected Batts’s holding that Miller and Montgomery required a resentencing court to find a juvenile offender’s permanent incorrigibility. Jones, 141 S. Ct. at 1313.

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this panel is bound to follow precedent until that decisional law is overruled.

See Summers, 245 A.3d at 700 (noting that “[i]t is beyond the power of a

Superior Court panel to overrule a prior decision of the Superior Court, except

in circumstances where intervening authority by our Supreme Court calls into

question a previous decision of this Court” (citation omitted)). Therefore,

because current precedent does not support Appellant’s de facto life sentence

claim, no relief is due.

Appellant next asserts that the trial court usurped the Parole Board’s

authority to determine when he demonstrated sufficient rehabilitation for

release on parole. Appellant’s Brief at 40. According to Appellant, the trial

court’s discussion of whether Appellant could be rehabilitated and safely

released is a decision for the Parole Board. Id. at 40-41. Appellant again

refers to Section 1102.1 concerning the thirty-five year minimum sentence to

assert that the Parole Board should decide whether Appellant could be safely

released after serving the minimum sentence. Id. at 45-46. Appellant

concludes that he is entitled to a thirty-five year minimum sentence or a

remand for a new sentencing hearing. Id. at 46.

The Commonwealth argues that Appellant’s claim “is simply not true . .

.” Commonwealth’s Brief at 31. The Commonwealth continues that “[t]here

is absolutely no legal/statutory authority to require a sentencing court to bow

to the [P]arole [B]oard.” Id. at 32. According to the Commonwealth, the

resentencing court properly determined that Appellant’s “ability to function as

a law abiding citizen in society will not occur until he serves an additional term

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of imprisonment.” Id. Parole, the Commonwealth notes, will be a

discretionary decision by the Parole Board after Appellant’s completion of his

minimum sentence. Id.

Under Title 61, the Parole Board “may release on parole any inmate . .

. only after[] the expiration of the minimum term of imprisonment fixed by

the court in its sentence.” 61 Pa.C.S. § 6137(a)(1), (3) (subsequently

amended eff. June 30, 2021, to change the term “inmate” to “offender” and

include references to parole guidelines and “short sentences”). To the extent

Section 1102.1 applies and requires a thirty-five year minimum sentence for

a juvenile offender after Miller, this Court has held that Section 1102.1

constitutes a mandatory minimum sentence. See generally

Commonwealth v. Lawrence, 99 A.3d 116, 119 (Pa. Super. 2014).

Therefore, if Section 1102.1 applies, the resentencing court retains the

discretion to depart upwards from that mandatory minimum within the

constitutional range of providing a meaningful opportunity for release. See

18 Pa.C.S. § 1102.1(e) (stating that “[n]othing under this section shall

prevent the sentencing court from imposing a minimum sentence greater than

that provided in this section”).

Here, because Appellant committed the offense and was convicted

before Miller, Section 1102.1 was not mandatory and the resentencing court

was not bound to sentence Appellant to a thirty-five year minimum sentence.

See 18 Pa.C.S. § 1102.1; White, 193 A.3d at 984. Just as the resentencing

court could have deviated below the guidance provided by Section 1102.1, it

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retained the discretion to sentence above the thirty-five year minimum

sentence. See McGrath, 2021 WL 2641915, at *5 (discussing crimes

committed before the decision in Miller); Summers, 245 A.3d at 698 (same);

Bebout, 186 A.3d at 468 (same). The Parole Board, in turn, lacks the

statutory authority to release an offender before the expiration of the

minimum sentence set by the court. See 61 Pa.C.S. § 6137(a)(3).

Based on the foregoing, Appellant’s claim fails. The Parole Board’s

authority under Section 6137 did not preclude the resentencing court from

imposing a minimum sentence beyond the thirty-five-year mandatory

minimum. Further, to the extent Appellant contends that it was improper for

the resentencing court to consider Appellant’s rehabilitative potential based

on the time spent in prison after his conviction, but before resentencing, his

claim lacks merit. See Commonwealth v. Losch, 535 A.2d 115, 122 (Pa.

Super. 1987). Accordingly, no relief is due.

In his final issue, Appellant asserts that the resentencing court erred by

precluding cross-examination concerning the Commonwealth’s offer of a plea

agreement for a sentence of ten-to-twenty years’ imprisonment before his

jury-trial conviction. By way of background, at the resentencing hearing, the

Commonwealth called the original prosecutor, who testified, in part, that he

tried the instant case as a capital death penalty case because it was one of

the worst he had seen. On cross examination, Appellant asked whether the

original prosecutor offered Appellant a plea agreement. The Commonwealth

objected, and the resentencing court sustained the objection.

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On appeal, Appellant argues that the original prosecutor’s testimony

was relevant to the nature of the crime and that the opinion evidence “likely

carried great weight with the court.” Appellant’s Brief at 49-50. Appellant

claims that the resentencing court’s failure to consider evidence of the plea

agreement as mitigating or impeachment evidence upon the nature of the

offense constitutes reversible error that resulted in an excessive sentence.

Id. at 51-53.

The Commonwealth responds that plea negotiations “have absolutely no

bearing on the sentence imposed following a conviction by a jury.”

Commonwealth’s Brief at 33. The Commonwealth continues, “Just as the

Rules of Evidence prohibit admission of statements made by the defendant in

the course of plea negotiations, the Commonwealth should not expect plea

discussions it engaged in to be weaponized in the course of a sentencing

proceeding following a jury’s conviction at trial. See Pa.R.E. 410(a).” Id. at

33. According to the Commonwealth, “A court is never required to consider

plea negotiations when sentencing a convicted felon.” Id.

“The admissibility of evidence is a matter addressed to the sound

discretion of the trial court and an appellate court may only reverse rulings on

admissibility upon a showing that the lower court abused its discretion. As

with any evidentiary ruling, the trial court should balance the relevancy and

evidentiary need for the evidence of distinct crimes against the potential for

undue prejudice.” Commonwealth v. Billa, 555 A.2d 835, 840 (Pa. 1989)

(citations omitted). However, “a proceeding held to determine sentence is

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not a trial, and the court is not bound by the restrictive rules of evidence

properly applicable to trials[, and] the court may receive any relevant

information for the purposes of determining the proper penalty.”

Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa. Super. 1999)

(citations omitted).

Here, our review of the record for the resentencing hearing belies

Appellant’s claim that the court abused its discretion or committed reversible

error in excluding evidence of the plea agreement. Specifically, aside from

the challenged opinion testimony from the original prosecutor, there was

overwhelming evidence of the nature and severity of the offense and the

impact of the crimes on the victim’s family and community. Further, a review

of the record concerning the resentencing court’s explanation for the imposed

sentence does not reveal any reference to the original prosecutor’s belief that

this case was one of the worst he had seen, but instead properly references

the trial record, as well as testimony from the decedent’s family. See N.T.,

1/17/20, at 5-6 (indicating the resentencing court’s awareness that the

decedent suffered seventy-eight knife wounds and of discussions of testimony

from family members about the impact on the family, extended family, and

community). Accordingly, we conclude that Appellant has failed to

demonstrate reversible abuse of discretion in the resentencing court’s ruling

to preclude evidence of the Commonwealth’s plea offer to Appellant.

For these reasons we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/30/2021

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