Commonwealth v. Melvin

172 A.3d 14

COMMONWEALTH of Pennsylvania, Appellee

v.Jeremy MELVIN, Appellant

No. 1438 WDA 2016

Superior Court of Pennsylvania.

Argued June 21, 2017

Filed September 20, 2017

Reargument Denied November 28, 2017

David B. Chontos, Turtle Creek, for appellant.

Robert H. Hartley, Jr., Assistant District Attorney, Mercer, for Commonwealth, appellee.

BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER,^* J.

OPINION BY STRASSBURGER, J.:

Jeremy Melvin (Appellant) appeals from the August 19, 2016 judgment of sentence imposed following a resentencing hearing pursuant to Commonwealth v. Batts , 620 Pa. 115, 66 A.3d 286 (2013) (" Batts I "). We affirm.

On November 10, 2003, [A]ppellant was arrested and charged with homicide, aggravated assault, robbery, escape, and other related offenses involving an incident at the George Junior Republic, a residential treatment facility for at-risk youth located in Grove City, Pennsylvania. [Appellant had been placed at this facility after he was adjudicated delinquent.] Appellant and Anthony Machicote ("Machicote") had conspired to escape the facility by overpowering a guard. During the early morning hours of November 10, 2003, Machicote called the night manager ("the victim") to his room. While the victim spoke with Machicote, [A]ppellant put the victim in a chokehold. Appellant and Machicote secured the victim, put a sock in his mouth, and then tied a sheet around his mouth. After taking the victim's car keys and wallet, they fled from the facility. The victim died as a result of suffocation.

Subsequently, both men surrendered and made inculpatory statements to the police. A hearing was held on August 4, 2004 on [A]ppellant's motion to suppress; and thereafter, the motion was denied. On October 19, 2004, [A]ppellant entered a guilty plea to murder in the second degree, and the remaining charges were nolle prossed pursuant to a plea agreement. On January 7, 2005, [A]ppellant was sentenced to life imprisonment without the possibility of parole and to pay costs and fines. Appellant did not file post-sentence motions or a direct appeal.

On January 23, 2006, [A]ppellant, acting pro se , filed a timely [Post Conviction Relief Act (PCRA) ] petition. Stephen G. Delpero, Esq., was appointed as counsel and an amended PCRA petition was filed. A hearing was held on May 30, 2006 before the Honorable Thomas Dobson. Thereafter, the PCRA court denied the petition on May 31, 2006. A timely notice of appeal was filed June 30, 2006, and [A]ppellant was ordered to file a concise statement of matters complained of on appeal. Appellant complied with the court's order.

Commonwealth v. Melvin , 928 A.2d 1126 (Pa. Super. 2007) (unpublished memorandum at 1–2). On April 24, 2007, a panel of this Court affirmed the denial of Appellant's PCRA petition. Id. Appellant did not seek review by our Supreme Court.

On July 8, 2010, Appellant filed a second PCRA petition, which was denied by the trial court without a hearing. No appeal followed. Appellant's third PCRA petition was filed on May 23, 2012. Shortly thereafter, on June 25, 2012, the Supreme Court of the United States issued its opinion in Miller v. Alabama , wherein the Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

On September 30, 2013 [the PCRA c]ourt granted [Appellant's] third PCRA petition on the grounds the sentence was unlawful in light of Miller [.]

The Commonwealth took an appeal from that order.

On October 30, 2012 the Supreme Court of Pennsylvania in Commonwealth v. Cunningham , 622 Pa. 543, 81 A.3d 1 ( [Pa.] 2013) ruled that Miller was not retroactive.

The Commonwealth withdrew its appeal.

On December 18, 2013 the Commonwealth was granted leave to reinstate its appeal.

On July 22, 2014 the Superior Court of Pennsylvania reversed [the PCRA c]ourt's order of September 20, 2013, at [ Commonwealth v. Melvin , 105 A.3d 798 (Pa. Super. 2014) (judgment order) ].

[Appellant] filed a petition for allowance of appeal. It was denied by the Supreme Court of Pennsylvania on December 11, 2014. [ Commonwealth v. Melvin , 628 Pa. 639, 104 A.3d 524 (2014) ].

On January 25, 2016 the United States Supreme Court in Montgomery v. Louisiana , ––– U.S. ––––, , 193 L.Ed.2d 599 (2016), held that Miller [ ] was retroactive.

On March 18, 2016[, Appellant] filed a motion for leave to amend his PCRA petition in light of the holding in Montgomery .

At a status conference on May 5, 2016 [the PCRA c]ourt granted the request to amend, vacated [Appellant's] sentence and scheduled sentencing[.]

On August 19, 2016[, the PCRA c]ourt sentenced [Appellant] to a term of imprisonment of not less than 30 years nor more than life.

A post-sentence motion was filed. It was denied without a hearing on August 30, 2016. This appeal followed.

PCRA Court Opinion, 11/1/2016, at 3–4 (unnecessary capitalization omitted).

Both Appellant and the PCRA court have complied with the mandates of Pa.R.A.P. 1925. Appellant raises the following issues for this Court's review, which we have renumbered for ease of disposition.

1. Did the [PCRA] court impose an illegal sentence when it acted without any statutory authority?

2. Did the [PCRA] court impose an illegal sentence by not sentencing [Appellant] for the lesser included charge of third degree murder or the underlying felony of robbery?

3. Did the [PCRA] court err by ruling the ex post facto clause of our Constitutions prevented him from considering current Sentencing Guidelines to an offense from 2003?

4. Did the [PCRA] court abuse its discretion when it denied [Appellant's] request for additional financial aid even though he showed the material's content, its relevance and its cost?

5. Did the [PCRA] court err by ruling that witnesses could give "victim impact" evidence without satisfying the statutory definition of a "victim"[?]

6. Did the [PCRA] court err in allowing character evidence to be admitted through opinion and not reputation evidence?

Appellant's Brief at 6 (PCRA court answers omitted).

In his first two issues on appeal, Appellant presents a challenge to the legality of his sentence, arguing that the PCRA court had no valid statutory authority to impose a term-of-years sentence with a maximum term of life imprisonment at his resentencing and, because the crime at issue here was committed before June 24, 2012¹ , the only possible legal sentence is "on the lesser included offense of third[-]degree murder or the underlying felony of robbery." Appellant's Brief at 25–49. "When reviewing the legality of a sentence, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Brown , 159 A.3d 531, 532 (Pa. Super. 2017) (citation omitted).

By way of background, in 2013, our Supreme Court decided Batts I , which addressed the effect of the holding in Miller on incarcerated Pennsylvanians serving mandatory life sentences without the possibility of parole (LWOP) for homicides committed while those persons were juveniles (so-called "juvenile lifers"). Applying this new precedent, the Court in Batts I held that

[the] argument that the entire statutory sentencing scheme for first-degree murder has been rendered unconstitutional as applied to juvenile offenders is not buttressed by either the language of the relevant statutory provisions or the holding in Miller . Section 1102, which mandates the imposition of a life sentence upon conviction for first-degree murder, see 18 Pa.C.S. § 1102(a), does not itself contradict Miller ; it is only when that mandate becomes a sentence of [LWOP] as applied to a juvenile offender—which occurs as a result of the interaction between Section 1102, the Parole Code, see 61 Pa.C.S. § 6137(a)(1), and the Juvenile Act, see 42 Pa.C.S. § 6302 —that Miller 's proscription squarely is triggered. [ ] Miller neither barred imposition of [an LWOP] sentence on a juvenile categorically nor indicated that a life sentence with the possibility of parole could never be mandatorily imposed on a juvenile. Rather, Miller requires only that there be judicial consideration of the appropriate age-related factors set forth in that decision prior to the imposition of a sentence of life imprisonment without the possibility of parole on a juvenile.

Batts I , 66 A.3d at 296. The Court recognized the difference in potential penalty between juvenile offenders like Batts, who was tried and convicted of first-degree murder prior to the issuance of Miller , and those who committed offenses after the Supreme Court's decision in Miller .

As to the former, it is our determination here that they are subject to a mandatory maximum sentence of life imprisonment as required by Section 1102(a), accompanied by a minimum sentence determined by the common pleas court upon resentencing. Defendants in the latter category are subject to high mandatory minimum sentences and the possibility of life without parole, upon evaluation by the sentencing court of criteria along the lines of those identified in Miller.

Id. at 297.

Thus, the Court remanded Batts' case for resentencing and instructed the trial court to consider the non-inclusive list of factors outlined in Miller before determining whether to impose upon Batts an LWOP sentence.

Following a hearing, Batts was resentenced to LWOP. He took a second appeal to this Court, which affirmed his new judgment of sentence. Our Supreme Court granted Batts' petition for allowance of appeal to address Batts' contention, inter alia , that the Court should exercise "its authority under the Pennsylvania Constitution to promulgate procedural safeguards [for juveniles convicted of first- and second-degree homicide] including (a) a presumption against juvenile [LWOP sentences]; (b) a requirement for competent expert testimony; and (c) a "beyond a reasonable doubt" standard of proof [.]" Commonwealth v. Batts , 163 A.3d 410, 427 (Pa. 2017) ( Batts II ).

In June of 2017, while the...