Com. v. Miller, J.

J-S05039-22

                                   

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHNNY J. MILLER                           :
                                               :
                       Appellant               :   No. 1316 MDA 2020

        Appeal from the Judgment of Sentence Entered August 11, 2020
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0000412-1989


BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.

OPINION BY DUBOW, J.:                                   FILED: MAY 11, 2022

       Appellant, Johnny J. Miller, appeals from the Judgment of Sentence of

55 years to life imposed upon resentencing following the decisions rendered

in Miller v. Alabama, 

 (2012), and Montgomery v. Louisiana,

 (U.S. 2016). He challenges the legality of the sentence as de

facto life without the possibility of parole (“LWOP”) and the discretionary

aspects of his sentence. After careful review, we affirm.

       In January 1989, when he was 17 years old, Appellant killed Phyllis

Morgan, his former girlfriend’s mother.1 A jury found him guilty of, inter alia,

First-Degree Murder and the court sentenced him on November 17, 1989, to

____________________________________________


1 In its Pa.R.A.P. 1925(a) Opinion, the court reiterated the facts underlying
Appellant’s conviction as set forth by this Court in affirming his judgment of
sentence on December 12, 1991. See Tr. Ct. Op., dated 12/10/2020, at 3-4.
See also Commonwealth v. Miller, 

 (Pa. Super. 1991)
(table). These facts included Appellant’s stealing house keys from the victim’s
daughter three weeks before the incident, lying in wait in the home, and
stabbing the victim seventeen times.
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the then-mandatory LWOP term of incarceration.        This Court affirmed the

judgment of sentence and the Pennsylvania Supreme Court denied allowance

of appeal. See Commonwealth v. Miller, 

 (Pa. Super. 1991)

(unpublished memorandum); appeal denied, 

 (Pa. 1992).

      Following the decisions rendered in Miller and Montgomery, Appellant

filed a petition pursuant to the Post Conviction Relief Act (“PCRA”) seeking

resentencing.      The PCRA court granted relief and ordered a pre-sentence

investigation (“PSI”) report.   Notably, the Commonwealth indicated that it

would not seek a sentence of life without parole.

      On August 11, 2020, the court held a resentencing hearing. Appellant

and his expert on juvenile offender rehabilitation testified regarding

Appellant’s difficult childhood, his drug and alcohol addictions that began when

he was a very young child, and his rehabilitative accomplishments obtained

during his 30 years in prison, including obtaining a GED, participating in group

therapy and Narcotics Anonymous, his clean record of prison behavior since

1999, his participation in vocational programs, and his mentorship work with

young offenders.

      The Commonwealth presented victim impact statements from the

victim’s family.

      After argument from counsel, the court acknowledged that it had

reviewed the PSI report, Appellant’s expert’s report and testimony, and the

sentencing memoranda submitted by counsel. The court also acknowledged

Appellant’s rehabilitative accomplishments and his ongoing work as a peer

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counselor to young inmates.      After noting that the statutory minimum

sentence is 35 years’ incarceration, the court stated that the severity of the

crime, and its impact on the victim’s family and community informed its

decision to impose a term of 55 years to life imprisonment.

      Appellant filed a post-sentence motion challenging the discretionary

aspect of his sentence, which the court denied.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925(b).

      Appellant presents the following questions for our review:

      1.    Was not the lower court’s sentence of 55 years-to-life an
            illegal de facto life sentence without proof of the
            factual/legal predicates for imposing a life-without-parole
            sentence on a person who was a juvenile at the time of the
            commission of the offense?

      2.    Was not the imposition of a 55 year-to-life sentence clearly
            unreasonable, so manifestly excessive as to constitute an
            abuse of discretion, and inconsistent with the protection of
            the public, the gravity of the offense, and [Appellant’s]
            rehabilitative needs?

Appellant’s Br. at 6.

      In his first issue, Appellant argues that the imposition of a term of 55

years to life imprisonment is unconstitutional as a de facto term of LWOP. Id.

at 29. He contends that the sentence is “illegal because the Commonwealth

… did not present sufficient evidence to prove beyond a reasonable doubt the




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factual predicates set forth in [Miller, Montgomery, and Batts2] to justify a

life-without-parole sentence, including that rehabilitation is ‘impossible.’” Id.

at 18, 20.

       Appellant purports to challenge the legality of his sentence. However,

as discussed infra, based on recent U.S. Supreme and Pennsylvania Supreme

Court case law, Appellant’s challenge is properly characterized as a challenge

to the discretionary aspects of his sentence, which garners him no relief.

       In Commonwealth v. Felder, 

 (Pa. 2022), our Supreme

Court addressed whether a lengthy term-of-years’ incarceration sentence

imposed on a juvenile offender violates the Eighth Amendment’s prohibition

against cruel and unusual punishment as interpreted by the Miller court. The

Court acknowledged that the U.S. Supreme Court, in Jones v. Mississippi,

 (U.S. 2021), abrogated the procedural requirement set forth

in Batts, supra, that required a specific finding of incorrigibility before a

sentence of LWOP could be imposed on a juvenile offender. The Felder Court,

thus, held that: “when sentencing juvenile homicide offenders from this point

forward, sentencing courts are required to consider only the relevant

sentencing statutes, which will guarantee that sentencer considers the

juvenile’s youth and attendant characteristics as required by Miller.” Felder,


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2 Commonwealth v. Batts, 

, 472 (Pa. 2017), abrogated by
Jones v. Mississippi, 

 (U.S. 2021).        See also
Commonwealth v. Felder, 

 (Pa. 2022) (recognizing
abrogation of Batts).

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J-S05039-22


269 A.3d at 1246.      Importantly, “[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.” Id. (emphasis added)

      Here, Appellant does not aver that the trial court failed to consider the

mitigating qualities of his youth and its attendant characteristics. Rather, he

purports to challenge the constitutionality of his sentence with his contention

that the court imposed an impermissible de facto LWOP sentence even though

he “demonstrated a remarkable degree of rehabilitation[.]” Appellant’s Br. at

30. In light of Jones and Felder, Appellant’s sentence does not violate the

Eighth Amendment and, thus, Appellant’s challenge does not implicate the

legality of his sentence.   Rather, Appellant’s argument that the trial court

failed to consider his rehabilitation must be addressed as a challenge to the

discretionary aspects of his sentence. Accordingly, we will address both of

Appellant’s issues as challenges to the discretionary aspects of this sentence.

      Challenges to the discretionary aspects of sentence are not appealable

as of right. Commonwealth v. Leatherby, 

, 83 (Pa. Super.

2015).   Rather, an appellant challenging the sentencing court’s discretion

must invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2)

properly preserving the issue at sentencing or in a motion to reconsider and

modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a

separate section of the brief setting forth a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects


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J-S05039-22


of a sentence; and (4) presenting a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. §

9781(b), or sentencing norms.       Id.    An appellant must satisfy all four

requirements.   Commonwealth v. Austin, 

, 808 (Pa. Super.

2013).

      Here, Appellant filed a post-sentence motion and a timely notice of

appeal, and he has included a Rule 2119(f) statement in his brief. Within his

Rule 2119(f) Statement, Appellant contends that the court “focused solely on

the nature of the crimes” and “paid no more tha[n] lip service to [Appellant’s]

strides toward rehabilitation and reform.” Appellant’s Br. at 23. He further

contends that his sentence of 55 years’ to life imprisonment is manifestly

excessive in violation of “both 42 Pa.C.S. § 9781(c)(2) and fundamental norms

under the sentencing process.” Id. at 22. We conclude Appellant has raised

a substantial question. See Commonwealth v. Raven, 

, 1253

(Pa. Super. 2014) (holding that “an excessive sentence claim—in conjunction

with an assertion that the court failed to consider mitigating factors—raises a

substantial question.”).

      “Sentencing is a matter vested in the sound discretion of the sentencing

judge” and this Court will not disturb a sentence on appeal “absent a manifest

abuse of discretion.”   Commonwealth v. Shugars, 

, 1275

(Pa. Super. 2006) (citation omitted). “In this context, an abuse of discretion

is not shown merely by an error in judgment. Rather, the appellant must


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J-S05039-22


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.” 

 (citation

omitted).

      In sentencing a juvenile offender, “where the Commonwealth does not

seek a LWOP sentence, the sentencing court should apply the traditional

sentencing considerations under 42 Pa.C.S. § 9721(b) of the Sentencing Code

when fashioning its sentence. The sentencing court is not required to consider

the Miller factors in such cases.” Commonwealth v. Summers, 

, 693 (Pa. Super. 2021), appeal denied, No. 110 MAL 2021, 

 (Pa. filed Apr. 12, 2022) (citations omitted). However, a sentencing

court may consider 18 Pa.C.S. § 1102.1 for guidance. Batts, supra, at 458

(abrogated on other grounds by Jones, supra).               See 18 Pa.C.S. §

1102.1(a)(1) (providing for a minimum term of 35 years’ incarceration on

juvenile offenders convicted of first-degree murder after June 24, 2012).

      Section 9721 provides in part that “the sentence imposed should call for

confinement 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.”         42 Pa.C.S. §

9721(b). The balancing of the sentencing factors is the sole province of the

sentencing court. Commonwealth v. Bricker, 

, 876 (Pa. Super.

2012). Further, we recognize that the sentencing court, which is present at


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J-S05039-22


the hearing and observes all witnesses and the defendant firsthand, “is in a

superior position to review the defendant’s character, defiance or indifference,

and the overall effect and nature of the crime.”              Commonwealth

v. Lekka, 

, 353. (Pa. Super. 2019).             Notably, where a

sentencing court is informed by a PSI, “it is presumed that the court is aware

of all appropriate sentencing factors and considerations, and that where the

court has been so informed, its discretion should not be disturbed.”

Commonwealth v. Ventura, 

, 1135 (Pa. Super. 2009).

      “In every case in which the court imposes a sentence for a felony or a

misdemeanor, the court shall make as a part of the record, and disclose in

open court at the time of sentencing, a statement of the reason or reasons for

the sentence imposed.” Commonwealth v. Mouzon, 

, 620-21

(Pa. 2002). “The sentencing judge can satisfy the requirement that reasons

for imposing sentence be placed on the record by indicating that he or she has

been informed by the [PSI]; thus properly considering and weighing all

relevant factors.” Ventura, 

 (citation omitted).

      Appellant contends that the court imposed “a severe sentence—in

excess of 35 years—based solely on the nature of the criminal acts.”

Appellant’s Br. at 38. He emphasizes that he “proved that he is rehabilitated,”

as demonstrated by his “consistent efforts to obtain certifications, counseling,

and treatment in the prison setting.” Id. at 39.      He also emphasizes his

expert’s positive report and his expressions of remorse. Id. Appellant avers


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that the “court did not fashion a sentence accounting for [his] rehabilitative

needs.” Id. at 40. He concludes that his sentence is “not reasonable based

on the notion of fairness, nor is it reasonable based on the law governing

sentencing.” Id. at 42.

      At the sentencing hearing, the court heard testimony from Appellant’s

expert as well as statements from the victim’s daughter, the victim’s brother,

and Appellant. See N.T., 8/11/2020, at 5-25, 26-35, and 35-42, respectively.

Appellant’s counsel brought to the court’s attention the fact that Appellant’s

sister and niece were there at the hearing to support Appellant.

      Immediately after counsel presented their arguments, the court

acknowledged that it had reviewed the materials submitted by the parties.

Id. at 47. While the court noted the nature of the crime and its impact on the

victim’s   family,   the   court   also   acknowledged   Appellant’s   efforts   at

rehabilitation and its review of the PSI report. See id. at 4, 47-48. See also

Trial Ct. Op., dated 12/10/20, at 12-15 (acknowledging that it had the benefit

of the reading the PSI report that outlined Appellant’s childhood and substance

abuse history, and detailing its consideration of the sentencing factors,

including the protection of the public, the gravity of the offenses, and

Appellant’s rehabilitative needs).

      Based on our review of the record and relevant case law, we conclude

that the court did not abuse its discretion in rendering its sentence. As noted

above, it was solely within the province of the sentencing court to weigh the


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J-S05039-22


evidence and balance the sentencing factors. Based on the court’s

consideration of the PSI and the other evidence presented, we conclude that

Appellant’s sentence of 55 years to life imprisonment is not manifestly

unreasonable.

     Judgment of Sentence Affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/11/2022




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