Commonwealth v. Summers

245 A.3d 686

COMMONWEALTH of Pennsylvania, Appellee

v.Brandon K. SUMMERS, Appellant

No. 1966 EDA 2019

Superior Court of Pennsylvania.

Submitted June 23, 2020.

Filed: January 21, 2021

Reargument Denied: February 11, 2021

Max Jordan Orenstein, Public Defender, Media, for appellant.

Emily Lynne Mirsky, Public Defender, Media, for appellant.

Frederick J. Stollsteimer, District Attorney, Media, for Commonwealth, appellee.

William R. Toal, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: LAZARUS, J., KING, J. and STRASSBURGER, J.^*

OPINION BY STRASSBURGER, J.:

Brandon K. Summers (Appellant) appeals from the May 17, 2019 judgment of sentence for second-degree murder, imposed following a resentencing hearing pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).¹ We affirm.

We provide the following background. On May 3, 2003, when he was 17 years and 3 months old, Appellant was involved in the shooting death of John Lacey, a Widener University student, which occurred during the commission of a robbery outside of a tavern adjacent to the University. On December 8, 2005, a jury found Appellant guilty of second-degree murder and robbery. On January 23, 2006, Appellant was sentenced to a mandatory term of LWOP for his second-degree murder conviction.²

Appellant filed a post-sentence motion, which the trial court denied. On June 21, 2006, Appellant filed a direct appeal.³ This Court affirmed Appellant's judgment of sentence, and on February 27, 2009, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Summers , 959 A.2d 974 (Pa. Super. 2008) (unpublished memorandum), appeal denied , 600 Pa. 755, 966 A.2d 571 (2009).

On April 24, 2009, Appellant timely filed pro se a PCRA petition. Counsel was appointed and ultimately filed a Turner / Finley⁴ no-merit letter. The PCRA court dismissed Appellant's petition on March 30, 2010. Appellant did not appeal that dismissal. Instead, on June 14, 2010, Appellant pro se filed another PCRA petition, which was dismissed as untimely filed on November 19, 2010.

On July 23, 2012, Appellant pro se filed a fourth PCRA petition, claiming that his sentence was unconstitutional under Miller .⁵ The PCRA court appointed counsel and issued an order on August 23, 2013, holding the petition in abeyance pending the outcome of Commonwealth v. Cunningham , 622 Pa. 543, 81 A.3d 1 (2013), as the Cunningham Court was to determine whether Miller was retroactively applicable to post-conviction collateral review petitioners. On October 30, 2013, the Cunningham Court determined Miller was not retroactively applicable. As a result, the PCRA court vacated its order holding the petition in abeyance, and ordered counsel to file an amended petition or a Turner / Finley no-merit letter. Accordingly, relying on Cunningham , PCRA counsel filed a no-merit letter, and the PCRA court permitted counsel to withdraw from the case. On April 14, 2015, the PCRA court dismissed Appellant's 2012 petition as untimely filed.

Appellant timely appealed to this Court, claiming that Miller applied retroactively to his case. While his appeal was pending, the United States Supreme Court held that Miller applied retroactively to cases on collateral review, essentially overruling Cunningham . Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Following that decision, this Court reversed the PCRA court's order, vacated Appellant's LWOP sentence, and remanded the matter for further proceedings. Commonwealth v. Summers , 144 A.3d 194 (Pa. Super. 2016) (unpublished memorandum).

The resentencing court held a hearing on February 13, 2019. On May 17, 2019, the resentencing court sentenced Appellant to 40 years to life imprisonment. Appellant timely filed a post-sentence motion for reconsideration of sentence, wherein he raised several claims, including a claim challenging the discretionary aspects of his sentence and a claim that the resentencing court imposed an impermissible de facto life sentence. The court denied his post-sentence motion on June 5, 2019.

Appellant timely filed a notice of appeal.⁶ Appellant's appeal challenges the legality and discretionary aspects of his sentence. Appellant's Brief at 5.

We begin by reviewing Appellant's challenges to the discretionary aspects of his sentence.

An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction. We determine whether the appellant has invoked our jurisdiction by considering the following four factors:

(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.[ ] § 9781(b).

Commonwealth v. DiClaudio , 210 A.3d 1070, 1075 (Pa. Super. 2019), quoting Commonwealth v. Samuel , 102 A.3d 1001, 1006-07 (Pa. Super. 2014).

Appellant has satisfied the first three requirements: he timely filed a notice of appeal, preserved the issue in a post-sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief. See Appellant's Brief at 23-24. Thus, we now consider whether Appellant has raised a substantial question for our review.

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. 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.

DiClaudio , 210 A.3d at 1075 (citations and quotation marks omitted).

In his Pa.R.A.P. 2119(f) statement, Appellant asserted four instances in which the resentencing court abused its discretion: (1) the sentence was unduly harsh and excessive because Appellant was a juvenile at the time of this crime and had mitigating circumstances; (2) the court ignored, misapprehended, and misapplied the law; (3) the sentence was not justified by sufficient reasons; and (4) the sentence was the product of the court's bias, prejudice, and ill will. Appellant's Brief at 23-24 (reordered for ease of disposition).

Appellant has raised a substantial question with each of these claims.⁷ See Commonwealth v. White , 193 A.3d 977, 984 (Pa. Super. 2018) (finding that a substantial question was raised where a juvenile, previously sentenced to LWOP, raised an excessive sentencing claim along with an assertion that the sentencing court failed to consider mitigating factors); Commonwealth v. Flowers , 149 A.3d 867, 871 (Pa. Super. 2016) (noting that an appellant raises "a substantial question for our review by asserting that the trial court failed to state adequate reasons on the record for [an a]ppellant's sentence."); Commonwealth v. Lucky , 229 A.3d 657, 664 (Pa. Super. 2020), citing Commonwealth v. Corley , 31 A.3d 293, 297 (Pa. Super. 2011) ("An allegation of bias in sentencing [ ] raises a substantial question."). Thus, we may consider the merits of these claims, mindful of the following.

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.

* * *

When imposing [a] sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant's prior criminal record, age, personal characteristics and potential for rehabilitation.

DiClaudio , 210 A.3d at 1074-75, quoting Commonwealth v. Antidormi , 84 A.3d 736, 760-61 (Pa. Super. 2014).

Appellant presents many issues and sub-issues, but the root of his discretionary-aspects-of-sentencing challenges is that the resentencing court had disdain for Miller and did not consider the factors Miller requires. Precisely, Appellant contends the resentencing judge "did not apply the Miller factors to [Appellant's] specific childhood circumstances and recognize their mitigating impact." Appellant's Brief at 34. It is Appellant's position that the resentencing court had an "inordinate fixation on the underlying offense" and "erred by focusing on the tragedy that occurred to the exclusion of any meaningful consideration regarding youth's attendant characteristics." Id. at 34, 40 (footnote omitted). Furthermore, Appellant contends that the resentencing court showed bias in the treatment of Appellant in the form of racism and classism. Id. at 46.

Preliminarily, we note that 18 Pa.C.S. § 1102.1 was enacted in the wake of Miller and sets forth the sentences to be imposed upon juvenile offenders who are convicted of first- or second-degree murder on or after June 25, 2012, the date Miller was issued. Although not applicable to Appellant because he was convicted pre- Miller , our Supreme Court has held that resentencing courts should look to this section for guidance in resentencing pre- Miller defendants. Commonwealth v. Batts (Batts II ), 640 Pa. 401, 163 A.3d 410, 482 n. 25, 484 (2017).

Under this statute, a juvenile offender convicted of second-degree murder who was less than 18 years old but at least 15 years old at the time of the offense would be subject to a sentence of a minimum of 30 years of...