Commonwealth v. Olds

192 A.3d 1188

COMMONWEALTH of Pennsylvania

v.Ricky L. OLDS, Appellant

No. 1772 WDA 2016

Superior Court of Pennsylvania.

Argued January 23, 2018

Filed July 3, 2018

Marc A. Bookman, Philadelphia, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, OLSON and KUNSELMAN, JJ.

OPINION BY OLSON, J.:

In 1980, Appellant, Ricky L. Olds, was convicted of second-degree murder and subsequently sentenced to a mandatory term of life imprisonment without the possibility of parole ("LWOP"). During the incident in question, Appellant's co-conspirator shot and fatally wounded a patron while robbing a tobacco store. At that time, Appellant was 14 years old. After the Supreme Court of the United States' decisions in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)¹ and Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016),² Appellant received a new sentencing hearing. At the new sentencing hearing on November 21, 2016, the trial court sentenced Appellant to 20 years to life imprisonment. Appellant appeals from that judgment of sentence arguing that the maximum term of life imprisonment imposed upon a juvenile convicted of second-degree murder violates the Eighth Amendment of the United States Constitution³ as interpreted by Miller and Montgomery .

We hold that a mandatory life maximum for a juvenile convicted of second-degree murder is not cruel and unusual punishment. In so doing, we explain why this Court's interpretation of 18 Pa.C.S.A. § 1102(b) in Commonwealth v. Seskey , 170 A.3d 1105 (Pa. Super. 2017) was legally correct and why it does not foreclose Appellant's constitutional challenge. Accordingly, we affirm.

The factual background of this case is as follows. In the early morning hours of October 9, 1979, Appellant (who was 14 years old), Claude Bonner ("Bonner") (who was 18 years old), and Tommy Allen ("Allen") (who was 16 years old) were driving around Pittsburgh, Pennsylvania. Allen suggested robbing Fort Wayne Cigar Store and Appellant agreed with this plan. When they entered the store, Allen and Appellant witnessed Thomas Bietler ("Bietler") make a purchase and noticed that he possessed a significant amount of United States currency. Allen followed Bietler from the store and shot him three times. Bietler died as a result of the attack. Bonner, Allen, and Appellant then fled the scene.

The procedural history of this case is as follows. On April 2, 1980, Appellant was convicted of second-degree murder,⁴ robbery,⁵ and criminal conspiracy.⁶ On April 28, 1981, the trial court reluctantly sentenced Appellant to the then-mandatory term of LWOP for the second-degree murder conviction.⁷ On direct appeal, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Olds , 322 Pa.Super. 442, 469 A.2d 1072 (1983).

On August 24, 1984, Appellant filed a pro se petition pursuant to the Post–Conviction Hearing Act ("PCHA"), 42 Pa.C.S.A. § 9541 et seq. (West 1984).⁸ Counsel was appointed and filed an amended petition. On March 9, 1990, the PCHA court denied the petition. This Court vacated that decision and remanded for an evidentiary hearing. Commonwealth v. Olds , 409 Pa.Super. 656, 589 A.2d 1176 (1991) (unpublished memorandum). Our Supreme Court reversed, holding that Appellant was not entitled to an evidentiary hearing and the dismissal of Appellant's PCHA petition should be reinstated. Commonwealth v. Olds , 530 Pa. 27, 606 A.2d 898 (1992) (per curiam ).

On July 13, 2010, Appellant filed a pro se petition pursuant to the Post–Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 – 9546. On October 15, 2015, the PCRA court dismissed the petition. This Court affirmed and our Supreme Court denied allowance of appeal. Commonwealth v. Olds , 32 A.3d 845 (Pa. Super. 2011) (unpublished memorandum), appeal denied , 613 Pa. 663, 34 A.3d 828 (2011). On August 20, 2012, Appellant filed a second pro se PCRA petition. In it, Appellant alleged that his LWOP sentence was unconstitutional in light of Miller . Counsel was appointed. However, after our Supreme Court held that Miller did not apply retroactively, Commonwealth v. Cunningham , 622 Pa. 543, 81 A.3d 1, 9–11 (2013), the PCRA court dismissed the petition. This Court affirmed the denial of relief. Commonwealth v. Olds , 134 A.3d 108, 2015 WL 6509158 (Pa. Super. 2015) (unpublished memorandum). While Appellant's petition for allowance of appeal was pending, the Supreme Court of the United States issued Montgomery . Therefore, our Supreme Court granted allowance of appeal and vacated this Court's order affirming the dismissal of Appellant's petition. Commonwealth v. Olds , 635 Pa. 184, 133 A.3d 3 (2016) (per curiam ). Subsequently, this Court reversed the PCRA court's order dismissing Appellant's petition and remanded for resentencing. Commonwealth v. Olds , 145 A.3d 778, 2016 WL 1436935 (Pa. Super. 2016) (unpublished memorandum).

On remand, the trial court resentenced Appellant to 20 years to life imprisonment with credit for over 37 years of time served.⁹ Appellant did not file a post-sentence motion. This timely appeal followed.¹⁰

Appellant presents one issue for our review:

Did the [trial] court err [in] holding that it was required to impose a life maximum on an individual who did not kill or intend to kill?

Appellant's Brief at 2.

Appellant's lone appellate issue challenges the legality of his sentence.¹¹ Challenges to the legality of a sentence present pure questions of law; therefore, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Rodriguez , 174 A.3d 1130, 1147 (Pa. Super. 2017) (citation omitted).

Appellant cites two reasons to support his claim that the trial court was not required to impose life imprisonment as a maximum sentence. First, he contends that the governing statutes do not mandate a maximum sentence of life imprisonment because, in light of Miller , no valid sentencing scheme exists for juveniles convicted of second-degree murder prior to June 25, 2012. Second, he contends that, to the extent the statutes require such a sentence, they are unconstitutional when applied to juveniles who did not kill or intend to kill.¹² The Commonwealth argues that the disposition of both of these claims is controlled by Seskey .

We first address Appellant's argument that the trial court was not statutorily required to sentence him to a maximum term of life imprisonment. We agree with the Commonwealth that our decision in Seskey controls this question because it is almost on all fours with the present case. In Seskey , the defendant was convicted of first-degree murder prior to June 25, 2012, i.e. , prior to the effective date of 18 Pa.C.S.A. § 1102.1 (which sets forth the mandatory minimum and maximum sentences for juveniles convicted of first and second-degree murder). After Montgomery , Seskey was resentenced to 13 to 26 years' imprisonment. The Commonwealth appealed and this Court vacated the judgment of sentence and remanded for imposition of a sentence which included a maximum term of life imprisonment. In so doing, this Court held "that our Supreme Court's recent decision in Commonwealth v. Batts , 640 Pa. 401, 163 A.3d 410 (2017) (‘ Batts II ’) requires that an individual convicted of first or second-degree murder for a crime committed as a minor be sentenced to a maximum term of life imprisonment." Seskey , 170 A.3d at 1105–1106 (footnote omitted).

In his brief, Appellant argues that this holding was too broad and that the language regarding second-degree murder was dicta. In Seskey , this Court quoted Batts II as follows:

For those defendants [convicted of first or second-degree murder prior to June 25, 2012] for whom the sentencing court determines a [LWOP] sentence is inappropriate, 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[.]

Seskey , 170 A.3d at 1108 (internal alterations in original), quoting Batts II , 163 A.3d at 421.

Appellant notes that Batts II was a case in which the defendant received a maximum sentence of life imprisonment for first-degree murder. Our Supreme Court, in Batts II , did not confront a situation in which a juvenile had been convicted of second-degree murder. Thus, according to Appellant, Batts II should not extend to juveniles convicted of second-degree murder and Seskey 's statement incorrectly implies that it did. Appellant therefore contends that the above quoted passage was not an accurate representation of our Supreme Court's Batts II decision.

We conclude that Seskey 's holding is a correct statement of the law with respect to juveniles convicted of second-degree murder prior to June 25, 2012. To understand why, a brief review of sections 1102¹³ and 1102.1¹⁴ is necessary. On June 24, 2012, the Supreme Court of the United States issued Miller . Thereafter, our General Assembly enacted section 1102.1 and made it retroactive for juveniles convicted of first or second-degree murder after June 24, 2012. Moreover, our General Assembly amended section 1102 to clarify that it does not apply to juveniles convicted of first or second-degree murder after June 24, 2012. Section 1102, therefore, applies to adults convicted of first or second-degree murder and juveniles convicted of first or second-degree murder prior to June 25, 2012. Section 1102.1 applies to juveniles convicted of first or second-degree murder after June 24, 2012. Hence, sections 1102 and 1102.1 must be read in pari materia . See Commonwealth v. Anderson , 169 A.3d 1092, 1102 (Pa. Super. 2017), citing 1 Pa.C.S.A. § 1932.

Although Batts II was a case governed by section 1102(a) (which mandates a defendant convicted of first-degree murder be sentenced to life imprisonment), the same statutory construction principles apply to section 1102(b) (which mandates a defendant...