Commonwealth v. Noll

1

COMMONWEALTH OF PENNSYLVANIA v. SCOTT A. NOLL Appellant

No. 925 MDA 2022

No. J-S39009-22

Superior Court of Pennsylvania

February 2, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered March 21, 2022 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-MD-0000467-1988

BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.

MEMORANDUM

PANELLA, P.J.

Scott A. Noll appeals from the judgment of sentence of an aggregate sentence of 45 years to life imprisonment imposed upon his resentencing. Noll argues that the trial court imposed an excessive sentence without properly accounting for his juvenile status at the time of the offenses and his rehabilitative needs. We affirm.

In April 1987, the Commonwealth charged Noll with three counts of criminal homicide, one count of arson, and one count of burglary, after Noll set fire to a mobile home, and killed the three occupants of the home, Dawn Leingang and her two young sons. Noll was 14 years old at the time he committed the offenses. On August 1, 1988, Noll entered a plea of nolo contendere to three counts of second-degree murder. The trial court sentenced Noll to an aggregate term of life imprisonment without parole. This Court affirmed the judgment of sentence and the Pennsylvania Supreme Court denied allowance of appeal. See Commonwealth v. Noll, 564 A.2d 262 (Pa. Super. 1989) (unpublished memorandum), appeal denied, 569 A.2d 1365 (Pa. 1989).

In 2010, Noll filed a petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), which the PCRA court denied. This Court affirmed the denial. See Commonwealth v. Noll, 2001 MDA 2010 (Pa. Super. filed Jul. 27, 2011).

On August 8, 2012, Noll filed a PCRA petition, alleging that Miller v. Alabama, 567 U.S. 460, 479 (2012) (holding that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders."), rendered his sentences unconstitutional. Subsequently, in March 2016, Noll filed an amended PCRA petition, asserting Miller applied retroactively to his case based upon Montgomery v. Louisiana, 577 U.S. 190, 212 (2016) (holding that Miller announced a new substantive rule that applied retroactively on collateral review). In June 2017, our Supreme Court decided Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) ("Batts II"), which devised a procedure to implement Miller and Montgomery. The Batts II Court held that Miller and Montgomery "unambiguously permit the imposition of a life-without-parole sentence upon a juvenile offender only if the crime committed is indicative of the offender's permanent incorrigibility; that the crime was not the result of the 'unfortunate yet transient immaturity' endemic of all juveniles." Batts II, 163 A.3d at 435 (citation omitted).

On August 8, 2017, in light of Batts II, the PCRA court held a status conference. Thereafter, Noll filed a motion for appointment of a forensic evaluator for resentencing. The PCRA court granted the motion and appointed Amy Taylor, Psy.D., to complete an evaluation on Noll's behalf. The Commonwealth retained the services of Frank Datillio, Ph.D., who also evaluated Noll. Following several status conferences, the PCRA court scheduled a resentencing hearing for August 30, 2021. However, in the interim, the United States Supreme Court decided Jones v. Mississippi, 141 S.Ct. 1307 (2021). The Jones Court reaffirmed the holdings of Miller and Montgomery but held that "a separate factual finding of permanent incorrigibility is not required" by the Eighth Amendment, Miller, or Montgomery "before a sentencer imposes a life-without-parole sentence on a murderer under 18." Jones, 141 S.Ct. at 1318-19. Subsequently, our Supreme Court issued Commonwealth v. Felder, 269 A.3d 1232 (Pa. 2022), wherein it held that the Batts II procedural requirements are not constitutionally required. See id. at 1244. The Felder Court concluded that "sentencing courts are required to consider only the relevant sentencing statutes, which will guarantee that the sentencer considers the juvenile's youth and attendant characteristics as required by Miller." Id. at 1246; see also id. (noting that "[s]o long as the sentence imposed is discretionary and takes into account the offender's youth, even if it amounts to a de facto life sentence, Miller is not violated."). The Court further pronounced that "permanent incorrigibility is not an eligibility criterion akin to sanity or a lack of intellectual disability, rather it is a sentencing factor akin to a mitigating circumstance." Id. at 1245 (citation, brackets, and quotation marks omitted).

At the sentencing hearing for Noll, the trial court heard victim impact testimony from Leingang's brothers, and testimony from a police officer regarding the crimes. Thereafter, the parties filed sentencing memoranda. Ultimately, the trial court resentenced Noll to 22½ years to life imprisonment for each of the three counts and ordered that two of the counts were to run consecutively and the remaining count was to run concurrently. Noll filed a post-sentence motion to modify the sentence, which the trial court denied. This timely appeal followed.

On appeal, Noll raises the following question for our review:

Did the trial court commit an abuse of discretion when it re-sentenced [] Noll in three counts of Second-Degree Murder to a period of concurrent twenty-two and one-half years (22½ years) to life in counts 1 and 2, and a consecutive sentence of twenty-two and one-half years (22½ years) to life in count 3, where such a sentence will have the [] Noll not reaching parole eligibility until he is fifty-nine years (59 years) old, thereby depriving him of the benefit of a years-to-life sentence?

Appellant's Brief at 4.

Noll challenges the discretionary aspects of his sentence.^[1] "Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right." Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation omitted). Prior to reaching the merits of a discretionary sentencing issue, this Court conducts a four-part analysis:

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

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

Here, Noll filed a timely appeal and preserved his claim in his post-sentence motion. Noll also included a separate Rule 2119(f) Statement in his brief; accordingly, we will review his Rule 2119(f) statement to determine whether he has raised a substantial question. See Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (stating that "we cannot look beyond the statement of questions presented and the prefatory 2119(f) statement to determine whether a substantial question exists." (citation omitted)).

"The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013). "A substantial question [exists] only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Id. (citation omitted).

In his Rule 2119(f) statement, Noll argues that the trial court's sentence was excessive and did not give proper weight to evidence that he was a low risk to the community and his rehabilitative needs. See Appellant's Brief at 12-13. Noll's claims raise a substantial question. See Commonwealth v. Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013) (finding that a substantial question was presented where appellant alleges sentence was manifestly excessive because court did not consider all sentencing factors).

Our standard of review of a challenge to the discretionary aspects of a sentence is well settled:

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. Watson, 228 A.3d 928, 936-37 (Pa. Super. 2020) (citation omitted).

Sentencing is individualized in Pennsylvania and requires that the trial court fashion a sentence that is consistent with 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. See 42 Pa.C.S.A. § 9721(b). When sentencing to total confinement, the court must consider "the history character, and condition of the defendant[.]" 42 Pa.C.S.A. § 9725. "The balancing of the sentencing factors is the sole province of the sentencing court." Commonwealth v. Miller, 275 A.3d 530, 535 (Pa. Super. 2022). Further, the trial court, which is present at the hearing and observes all witnesses and the defendant firsthand, "is in the best position to view a defendant's character, displays of remorse, defiance, or indifference and the overall effect and nature of the crime." Commonwealth v. Harper, 273...