Com. v. Sayles, K.

• Court: Superior Court of Pennsylvania
• Decided: June 4, 2019
• Docket: 1365 WDA 2018
• Status: Unpublished

Opinion

J-S23033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENON SAYLES : : Appellant : No. 1365 WDA 2018

Appeal from the Judgment of Sentence Entered July 30, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0007659-1993, CP-02-CR-0015398-1993

BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.: FILED JUNE 04, 2019

Appellant, Kenon Sayles, appeals from the judgment of sentence,

imposed upon resentencing for his 1994 conviction for first-degree murder,1

of a minimum term of 35 years and a maximum term of life imprisonment.

We affirm.

The factual and procedural history of this matter are as follows. On

May 7, 1993, Appellant and two other members of the Hood Town gang

arrived at a softball game in the Northview Heights neighborhood of Pittsburgh

as the game was about to begin. Appellant and the other Hood Town members

approached several members of the rival Original Gangsters, or “OGs”, who

were in attendance at the game. A melee ensued on the softball field: one

member of the OGs, James Jarrett, was shot and killed; another member of ____________________________________________

1 18 Pa.C.S. § 2502(a).

* Retired Senior Judge assigned to the Superior Court. J-S23033-19

the OGs was shot in the legs and survived; and a third member,

Michael Martin, was beaten with a baseball bat and ultimately died of blunt

force trauma to the head. Appellant was 17 years old when this incident

occurred.

Appellant was charged at docket number CP-02-CR-0007659-1993

(“No. 7659”) with criminal homicide and at docket number CP-02-CR-

0015398-1993 (“No. 15398”) with conspiracy to commit criminal homicide,

conspiracy to commit aggravated assault, and possessing instruments of a

crime (PIC).2 Appellant pleaded not guilty, and a non-jury trial was held on

November 3, 1994. At the trial, several witnesses testified that they saw

Appellant either holding a baseball bat over Martin or actually hitting Michael

Martin repeatedly with the bat. Following the trial, the trial court found

Appellant guilty of all charges. At No. 7659, the trial court sentenced

Appellant to life imprisonment without the possibility of parole on the first-

degree murder charge. At No. 15398, the trial court imposed a sentence of a

period of 5 to 10 years of incarceration consecutive to the life sentence on the

conspiracy counts, which merged for the purposes of sentencing, and a period

of 2.5 to 5 years of incarceration on the PIC charge consecutive to the

sentence on the conspiracy charge. Appellant appealed, and this Court

affirmed the judgment of sentence on May 10, 1996.

____________________________________________

2 18 Pa.C.S. §§ 2501, 903(a)(1), and 907(a), respectively.

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Appellant filed petitions under the Post Conviction Relief Act (PCRA)3 in

2001, 2005, and 2006, each of which was dismissed as untimely. On June

25, 2012, the United States Supreme Court decided Miller v. Alabama, 567

U.S. 460 (2012), holding that mandatory life-without-parole sentences for

individuals under the age of 18 at the time of the offense violates the Eighth

Amendment prohibition on cruel and unusual punishment because those

mandatory sentences do not allow for the consideration of the particularized

circumstances of the juvenile offenders. Id. at 479-80. The Court in Miller

additionally set forth various factors that a court must consider when imposing

a life-without-parole sentence on a juvenile offender including the “hallmark

features” of youth, such as “immaturity, impetuosity, and failure to appreciate

risks and consequences.” Id. at 476-78.4

Appellant filed a fourth PCRA petition on July 13, 2012, arguing that his

mandatory sentence of life without parole was unconstitutional as a result of ____________________________________________

3 42 Pa.C.S. §§ 9541–9546. 4 Our Supreme Court restated the Miller factors as follows: [A]t a minimum [the sentencing court] should consider a juvenile’s age at the time of the offense, his diminished culpability and capacity for change, the circumstances of the crime, the extent of his participation in the crime, his family, home and neighborhood environment, his emotional maturity and development, the extent that familial and/or peer pressure may have affected him, his past exposure to violence, his drug and alcohol history, his ability to deal with the police, his capacity to assist his attorney, his mental health history, and his potential for rehabilitation. Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013) (quoting Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super. 2012)).

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Miller. Appellant’s fourth PCRA petition was denied on February 12, 2014

pursuant to Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), holding

that Miller did not apply retroactively, and this Court affirmed.

In January 2016, the U.S. Supreme Court ruled in Montgomery v.

Louisiana, 136 S.Ct. 718 (2016), that the prohibition on mandatory life-

without-parole sentences of Miller was a substantive rule that was retroactive

in state cases on collateral review. Id. at 736. Appellant filed a fifth PCRA

petition on March 10, 2016 as a result of Montgomery. On February 22,

2017, the PCRA court issued an order requiring that Appellant be resentenced

consistent with Miller and Montgomery.

Appellant’s resentencing hearing took place on July 23 and 30, 2018.

At the conclusion of the hearing, the sentencing court sentenced Appellant to

a sentence of 35 years to life imprisonment on the first-degree murder charge

with credit for time served. Sentencing Order, No. 7659, 7/30/18; N.T.,

7/30/18, at 99. Separately, the sentencing court sentenced Appellant to 10

to 20 years of confinement on the first conspiracy count to run concurrently

with the 35-years-to-life sentence and no further punishment on the other

conspiracy count or the PIC charge. Sentencing Order, No. 15398, 7/30/18;

N.T., 7/30/18, at 99. Appellant was given credit for time served from

November 3, 1994 on both sentences. Sentencing Order, No. 7659, 7/30/18;

Sentencing Order, No. 15398, 7/30/18.

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Appellant filed a post-sentence motion, which the sentencing court

denied. Appellant thereafter filed a timely notice of appeal.5

On appeal, Appellant raises two issues:

I. Did the sentencing court commit legal error when it entered a sentence with a maximum sentence of life imprisonment?

II. Did the sentencing court abuse its discretion by sentencing the Appellant to a sentence of thirty-five (35) years to life?

Appellant’s Brief at 4 (suggested answers omitted).

Before we reach the merits of these appellate issues, we must first

address the question of whether this appeal must be quashed pursuant to

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), because Appellant

filed a single notice of appeal for more than one underlying matter. In this

case, Appellant’s notice of appeal listed the docket numbers for both the

matter in which he was convicted of first-degree murder, No. 7659, and the

other matter stemming from the same incident in which he was convicted of

two counts of conspiracy and one count of PIC, No. 15398. On October 16,

2018, this Court issued a rule directing Appellant to show cause why his appeal

should not be quashed in light of Walker. Appellant filed a response stating

that this appeal was distinct from the rule espoused in Walker because, while

he listed both docket numbers on his notice of appeal, Appellant in fact is only

appealing the order in the No. 7659 matter in which he was resentenced to

5Appellant filed his statement of errors complained of on appeal on November 28, 2018, and the sentencing court entered its opinion on December 28, 2018.

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incarceration for 35 years to life for first-degree murder. On November 5,

2018, this Court entered an order discharging the rule, but stating that the

merits panel may revisit the issue of whether Appellant’s notice of appeal ran

afoul of Walker.

We agree with Appellant that this appeal does not violate Walker. In

Walker, the Commonwealth filed a single notice of appeal from an order that

disposed of four motions to suppress filed by four separate defendants at four

docket numbers. Id. at 971. The Court noted that the Pennsylvania appellate

courts had on numerous instances addressed whether a single notice of appeal

was filed to challenge multiple appealable orders and, while recognizing that

this practice was disfavored, declined to quash the appeals on this basis. Id.

at 974-75. The Court observed, however, that the Official Note to Rule of

Appellate Procedure 341 had been amended in 2013 and now provides:

“Where…one or more orders resolves issues arising on more than one docket

or relating to more than one judgment, separate notices of appeal must be

filed.” Id. at 976 (quoting Pa.R.A.P. 341, Official Note). The Court determined

that this added language to the Official Note to Rule 341 establishes “a bright-

line mandatory instruction to practitioners” that “when a single order resolves

issues arising on more than one lower court docket, separate notices of appeal

must be filed.” Id. at 976-77. The Court held that the failure to comply with

this rule requires the quashal of an appeal, but stated that this rule would

apply prospectively only. Id. at 977. In Commonwealth v. Williams, ___

A.3d ___, 2019 PA Super 81 (filed March 20, 2019), this Court applied Walker

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to quash an appeal where an appellant filed a single notice of appeal listing

four docket numbers from an order denying a PCRA petition related to the

appellant’s 2012 conviction after a jury trial for four separate cases. Id. at

*1, *4.

In this matter, the sentencing court filed separate sentencing orders on

July 30, 2018 in the No. 7659 and No. 15398 matters, and Appellant filed a

single notice of appeal listing both docket numbers. Appellant’s notice of

appeal was filed on September 20, 2018, after the June 1, 2018 filing date of

Walker, and therefore Walker governs. Id. at *3-*4. However, while

Appellant identified both docket numbers on the notice of appeal, Appellant’s

appeal solely relates to the 35-years-to-life sentence in the No. 7659 matter.

Appellant did not identify any issues related to the 10-to-20 year sentence in

the No. 15398 matter in his post-sentence motion, statement of errors

complained of on appeal or in his appellate briefs. Furthermore, the

sentencing court directed that Appellant’s 10-to-20 year sentence in the No.

15398 matter began to run on November 3, 1994, and therefore he completed

the maximum term of imprisonment at this docket number in 2014. Any

appeal of the sentence imposed upon resentencing in the No. 15398 matter

would therefore be moot. See Commonwealth v. King, 786 A.2d 993, 996

(Pa. Super. 2001) (challenge to sentence was moot where the sentence had

expired and there were no criminal or civil consequences associated with the

expired sentence). Accordingly, we conclude that Walker is inapplicable here.

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In his first issue, Appellant argues that the maximum sentence of life

imprisonment imposed by the sentencing court was an illegal sentence.6

Appellant asserts that the sentencing court erred in concluding that it was

required to impose a maximum sentence of life imprisonment for a juvenile

resentenced on a first-degree murder charge. See Sentencing Court Opinion,

12/27/18, at 5-6. Appellant therefore argues that this mistaken application

of a maximum sentence of life imprisonment without any explanation of the

reasons violates Miller and Montgomery because it imposes a mandatory

life sentence on a juvenile offender without considering the offender’s

particular circumstances.

“When reviewing the legality of a sentence, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Seskey, 170 ____________________________________________

6 The Commonwealth claims that Appellant’s argument concerning the sentencing court’s imposition of a maximum term of life imprisonment “seems to be more of a challenge to discretionary aspects of sentencing.” Commonwealth’s Brief at 18. The Commonwealth argues that because Appellant did not discuss whether this issue raises a substantial question under the Sentencing Code or norms of sentencing in his brief pursuant to Rule of Appellate Procedure 2119(f), this discretionary aspect of sentencing claim is waived. Id. at 19-20. While we agree with the Commonwealth that Appellant did not discuss this argument in the Rule 2119(f) section of his brief, it is apparent that Appellant’s challenge to the mandatory maximum sentence of life imprisonment is at heart a challenge to the constitutionality of such a sentence, and therefore is an argument that the sentence was illegal. See Commonwealth v. Monarch, 200 A.3d 51, 56 (Pa. 2019) (argument that a sentence is unconstitutional implicates the legality of the sentence); Commonwealth v. Blount, ___ A.3d ___, 2019 PA Super 108, *20 (filed April 8, 2019) (argument that application of mandatory maximum term of life imprisonment to juvenile offenders is unconstitutional presents a challenge to the legality of the sentence).

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A.3d 1105, 1107 (Pa. Super. 2017). Where a sentence is found to be illegal,

it must be vacated. Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super.

2014).

The decisions of our Supreme Court and this Court make clear that the

sentencing court was required to impose a mandatory maximum sentence of

life imprisonment upon Appellant. In Commonwealth v. Batts, 66 A.3d 286

(Pa. 2013) (Batts I), our Supreme Court analyzed Section 1102(a) of the

Crimes Code, 18 Pa.C.S. § 1102(a), which required that all juveniles and

adults convicted of first-degree murder receive a sentence of life without

parole,7 and Section 6137(a)(1) of the Prisons and Parole Code, 61 Pa.C.S. §

6137(a)(1), which prohibits the parole of an inmate serving a life sentence,

concluding that the interplay between these two statutes with respect to

juvenile offenders was rendered unconstitutional by Miller. Batts I, 66 A.3d

at 295-96. Nevertheless, the Court in Batts I recognized that, as to juvenile

offenders convicted prior to Miller and resentenced as a result of that

decision, “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 sentenced determined by the common pleas court

upon resentencing.” Id. at 297.

7 Section 1102(a) was amended in the wake of Miller to make clear that it no longer applied to juvenile offenders, and Section 1102.1 was added to the Crimes Code, 18 Pa.C.S. § 1102.1, establishing a sentencing structure for juvenile offenders who are convicted of first- and second-degree murder after the date Miller was decided.

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In a later opinion in the same case, Commonwealth v. Batts, 163 A.3d

410 (Pa. 2017) (Batts II), and in Commonwealth v. Machicote, ___ A.3d

___, No. 14 WAP 2018 (Pa. filed April 26, 2019), the Court reaffirmed the

holding of Batts I that the entire statutory scheme pertaining to juvenile

offenders was not unconstitutional as a result of Miller and that the

mandatory maximum of life imprisonment under Section 1102 remains in

effect. Batts II, 163 A.3d at 421, 444-45; Machicote, slip op. at 7.

Additionally, in Seskey, this Court held that a 13-to-26 term-of-years

sentence imposed on a juvenile offender upon resentencing pursuant to

Montgomery was illegal under Batts I and Batts II and remanded for the

imposition of a sentence with a maximum term of life imprisonment. 170 A.3d

at 1107-09; see also Commonwealth v. Blount, ___ A.3d ___, 2019 PA

Super 108, *20-*21 (filed April 8, 2019) (rejecting challenge to maximum

sentence of life imprisonment brought by juvenile offender resentenced

pursuant to Montgomery for two counts of first-degree murder);

Commonwealth v. Ligon, ___ A.3d ___, 2019 PA Super 96, *6 (filed March

28, 2019) (maximum life sentence was mandatory at resentencing for juvenile

offender convicted of two counts of first-degree murder); Commonwealth v.

Olds, 192 A.3d 1188, 1193-95 (Pa. Super. 2018) (mandatory maximum of

life imprisonment requirement also applies to the resentencing of juvenile

offenders convicted prior to Miller of second-degree murder under 18 Pa.C.S.

§ 1102(b)).

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Furthermore, the mandatory maximum life sentence imposed upon

Appellant does not violate the holding of Miller mandating individualized

sentencing with consideration of the particularized circumstances of the

juvenile offender. We addressed this precise issue in Ligon. In that case,

the juvenile offender was resentenced on two first-degree murder charges to

concurrent 35-years-to-life sentences, and he appealed claiming that the

mandatory lifetime parole tail was unconstitutional. 2019 PA Super 96, *2-

*3. We noted that Miller did not hold that maximum sentences of life

imprisonment with parole eligibility imposed on juvenile offenders are

unconstitutional, but instead only mandated that an offender obtain some

meaningful opportunity for release. Id. at *7; see also Olds, 192 A.3d at

1196. We held that the 35-years-to-life sentence imposed in Ligon complied

with Miller because the offender was offered a meaningful opportunity for

release as determined by the Board of Probation and Parole. 2019 PA Super

96, *7; see also Blount, 2019 PA Super 108, *21-*22 (rejecting claim that

a mandatory maximum life sentence violates the Miller mandate of

individualized sentencing of juvenile offenders); Olds, 192 A.3d at 1197-98

(mandatory maximum life sentence imposed upon a juvenile offender

convicted of second-degree murder does not violate the Eighth Amendment

requirement of individualized sentencing for juvenile offenders even where the

offender did not kill or intend to kill). In this matter, Appellant will be eligible

for parole upon the completion of his minimum sentence of 35 years of

incarceration with credit for time served since the date of his conviction in

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1994. Therefore, Appellant will have a meaningful opportunity for release

based on a determination by the Board of Probation and Parole of his

demonstrated maturity and rehabilitation.

In his second issue, Appellant challenges the discretionary aspect of his

sentence as it relates to the minimum term of 35 years imposed at

resentencing. The right to appellate review of the discretionary aspect of a

sentence is not absolute, and an appellant must satisfy a four-part test to

invoke this Court’s jurisdiction. Commonwealth v. Nevels, 203 A.3d 229,

246 (Pa. Super. 2019). This four-part test requires us to determine whether:

(1) the appellant preserved the issue either by raising it at the time of sentencing or in a post[-]sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of appeal pursuant to [Rule of Appellate Procedure] 2119(f); and (4) the appellant raises a substantial question for our review.

Id. A substantial question is present where the appellant advances a plausible

argument that the sentence was inconsistent with a specific provision of the

Sentencing Code or contrary to the fundamental norms of the sentencing

process. Id.

In this matter, Appellant complied with the first three parts of this test

when he filed a post-sentence motion raising the issues presented on appeal,

filed a timely notice of appeal, and included a Rule 2119(f) statement in his

brief. We thus must determine whether Appellant’s appeal presents a

substantial question. Appellant argues that the sentencing court failed to

consider the Miller age-related factors on the record and that the sentencing

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court also failed to consider evidence of Appellant’s rehabilitation since he has

been incarcerated. Furthermore, Appellant contends that the sentencing court

impermissibly relied on the impressions of the judge who imposed Appellant’s

original sentence. We conclude that Appellant has presented a substantial

question, and we therefore proceed to address the merits of the issue. See

Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa. Super. 2015) (en

banc) (excessive sentence claim, in conjunction with an assertion that the

court failed to consider mitigating factors, raises a substantial question); see

also Commonwealth v. Hicks, 151 A.3d 216, 227 (Pa. Super. 2016) (claim

that sentencing court failed to set forth adequate reasons for the sentence

imposed raises a substantial question).

Our standard of review for challenges to the discretionary aspects of

sentencing is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (citation

omitted).

Initially, we observe that our Supreme Court has not required that every

court resentencing a juvenile offender pursuant to Miller and Montgomery

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consider the Miller factors. In Batts II, our Supreme Court set forth two

distinct resentencing procedures for juvenile offenders who were convicted of

their offenses prior to the date Miller was decided. First, the Supreme Court

explained that in cases where the Commonwealth seeks a sentence of life-

without-parole upon resentencing, the Commonwealth must provide

reasonable notice to the offender and then must establish beyond a

reasonable doubt that the offender “exhibits such irretrievable depravity that

rehabilitation is impossible.” Batts II, 163 A.3d at 455 (emphasis omitted)

(quoting Montgomery, 136 S.Ct. at 733). When determining whether a life-

without-parole sentence is appropriate, the sentencing court must consider

each of the youth-related factors of Miller in conjunction with the similar

mitigating factors set forth in Section 1102.1(d), 18 Pa.C.S. § 1102.1(d), the

sentencing statute enacted in the wake of Miller for juvenile offenders who

are convicted of first- and second-degree murder applicable to juvenile

offenders convicted on or after the date Miller was decided. Batts II, 163

A.3d at 455 & n.23.

In cases where the Commonwealth does not seek a life-without-parole

sentence upon resentencing of a juvenile offender, the Court in Batts II held

that the sentencing court should apply the traditional sentencing

considerations of Section 9721(b) of the Sentencing Code, 42 Pa.C.S. §

9721(b). Batts II, 163 A.3d at 460. In addition, the Court stated that

sentencing courts should use, “as guidance,” the minimum terms of

incarceration set forth in Section 1102.1(a) applicable to juvenile offenders

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convicted after Miller. Id. at 460; see also Machicote, slip op. at 15-16

(holding that a sentencing court must consider the Miller factors on the record

when resentencing a juvenile offender if the offender is statutorily eligible for

a life sentence and the Commonwealth asks for a life-without-parole

sentence). Because the Commonwealth did not seek a life-without-parole

sentence here, Appellant’s case falls into this latter category described in

Batts II. The sentencing court was therefore required to consider the Section

9721(b) sentencing factors, which are “the protection of the public, the gravity

of the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. §

9721(b). In addition, the sentencing court was required to seek guidance

from the minimum sentences of Section 1102.1(a) applicable to post-Miller

convictions of juvenile offenders; for a defendant, like Appellant, who is

convicted of first-degree murder and at least 15 but no more than 18 years

old at the time of the crime, Section 1102.1(a) calls for a minimum sentence

of 35 years. 18 Pa.C.S. § 1102.1(a)(1). Pursuant to Batts II, however, the

sentencing court was not required to consider the Miller or Section 1102.1(d)

factors on the record in this case.

At the sentencing hearing, Appellant presented the testimony and report

of a clinical forensic psychologist, Dr. Shannon Edwards. Dr. Edwards

described Appellant’s difficult childhood, in which he was exposed to abusive

behavior and drugs and not consistently provided with clothing and food. N.T.,

7/23/18, at 20-21, 25-26. Dr. Edwards further testified that Appellant had

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multiple misconducts between 1994 and 2004 for fights, threats and

contraband and these misconducts declined after 2004 with none after 2008.

Id. at 28-29. Dr. Edwards stated that this decline demonstrated Appellant’s

increased maturity over the last 10 to 15 years of his incarceration, which is

also evidenced by his receipt of his GED, HVAC certificates, participation in

culinary programs, and regular visits with a therapist while in prison. Id. at

29-31. Based on an assessment of risk factors, Dr. Edwards opined that

Appellant presented a medium risk to the community, with the potential for

the risk to be lowered based upon the presence of proper resources and

therapeutic services after Appellant’s release. Id. at 15-16.

Appellant also presented the testimony of Tracy Morman, the longtime

girlfriend of Appellant’s older brother who had known Appellant since he was

11 years old. Ms. Morman testified that Appellant had difficult, unstable

teenage years, growing up in a high crime part of Pittsburgh with a large gang

presence, having been evicted from multiple houses, utilities being cut off,

and often having to go without food. Id. at 58-62. Ms. Morman, who still

speaks with Appellant weekly by telephone, stated that Appellant had matured

and was solely interested in becoming a cook and opening his own restaurant

upon release. Id. at 57, 62-64. A letter from Appellant’s elder sister was

read out at the sentencing hearing, in which she stated that she had worked

in management positions at several restaurants and would be able to help him

obtain a job in a restaurant in the Columbus, Ohio area upon his release. Id.

at 65-66. In addition, the mother and sister of James Jarrett, the individual

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who was shot to death at the May 7, 1993 incident at the softball field in

Northview Heights, testified regarding the impact Mr. Jarrett’s murder had on

them. Id. at 67-73.

Prior to imposing Appellant’s sentence, the sentencing court stated that

it had carefully considered the evidence and argument presented in making

its determination. Id. at 98-99. The sentencing court asked various questions

during counsels’ arguments, regarding the nature of the crimes for which

Appellant was convicted, Appellant’s age and maturity level at the time of the

criminal act, and his rehabilitation since he entered into the custody of the

Department of Corrections. Id. at 81-95. In its Rule 1925(a) opinion, the

sentencing court further explained its sentence as follows:

While [the sentencing court] did consider the evidence presented regarding the defendant’s mental state, upbringing, potential for rehabilitation and all of the other mitigating factors established in the defense presentation of evidence, it also considered the nature of the offense, the defendant's primary role in bringing about the death of the victim, his prior involvement in the juvenile justice system, his possession of a firearm when arrested and his record of less than sterling conduct while incarcerated. In weighing all of that, the Court concluded that all of the factors considered weighed neither towards a lesser sentence than the one provided for in [Section 1102.1(a)(1)] nor towards a greater sentence.

Sentencing Court Opinion, 12/27/18, at 7.

The sentencing court thus demonstrated that it applied the relevant

sentencing criteria of Section 9721(a), properly followed the instruction in

Batts II to be guided by the mandatory minimum sentences of Section

1102.1 when resentencing juvenile offenders pursuant to Montgomery, and

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also gave due consideration to Appellant’s age and maturity at the time of the

offense. To the extent that Appellant argues that the sentencing court gave

particular weight to one sentencing factor over another, the weighing of the

sentencing factors is exclusively reserved to the judge imposing the sentence,

and an appellate court may not substitute its own weighing of the factors.

Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa. Super. 2012).

Accordingly, Appellant has not demonstrated that the sentencing court

misapplied or ignored the law, exercised its judgment impartially or with

prejudice, bias or ill will, or that the sentence imposed was manifestly

unreasonable. Conte, 198 A.3d at 1176.

Finally, we reject Appellant’s contention that the sentencing court

impermissibly relied on the impressions of the Honorable Robert E. Dauer, the

judge who handed down the original sentence in Appellant’s case. At the

sentencing hearing, the sentencing court stated:

Someone said once hindsight is better than foresight, and I’m perplexed because I’m not sure that’s correct here.

For many, many years I had a great deal of respect for the Honorable Robert E. Dauer, Administrative Judge, many, many times President Judge of this court, who as far as I was concerned was a mentor and a guide in doing things such as this as handing down sentences. And at first blush it seemed to me any sentence handed down by Robert Dauer was a correct sentence not necessarily because he followed a particular pattern of law but because he was able to view this with such aplomb and such dignity and such appropriateness that’s impossible to measure.

N.T., 7/30/18, at 98. In its opinion, the sentencing court stated that it:

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did [not] give undue weight to the sentence imposed by the original sentencing judge or any comments or observations made by that Court. The sentence imposed was solely a product of this Court’s proper and careful consideration of all of the factors provided for in statute and case precedent as guidance for [fashioning] sentences.

We conclude that the sentencing court’s comments at the sentencing

hearing do not demonstrate an unreasonable deference to the sentence that

Judge Dauer imposed on Appellant, but rather the sentencing court’s respect

for Judge Dauer generally and specifically in the matter of imposing sentences.

Any supposed reliance on Judge Dauer’s sentence is further belied by the fact

that the sentencing court here gave a sentence, consistent with Section

1102.1(a)(1), of 35 years to life to run concurrently with the 10-to-20 year

sentence on the first conspiracy count. Appellant’s new sentence is far less

severe than the originally imposed life-without-parole sentence for the first-

degree murder charge followed by a consecutive term-of-years sentence of

7.5 to 15 years on the conspiracy and PIC charges, offering Appellant a

meaningful opportunity for release from prison as provided for in Miller and

Montgomery.

Based on the foregoing, Appellant is not entitled to relief.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/4/2019

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