J-A27033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. TONITA HENDERSON Appellant No. 860 WDA 2013 Appeal from the Judgment of Sentence Entered Februa ry 5, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No: CP-02-CR-0015719-2011
BEFORE: BOWES, OLSON, and STABILE, JJ. MEMORANDUM BY STABILE, J. FILED JULY 21, 2016 Appellant, Tonita Henderson, appeals from the judg ement of sentence entered February 5, 2013, following her convictions of two counts of robbery, one count of receiving stolen property, an d one count of criminal conspiracy. 1 Upon review, we affirm. On November 29, 2011, Appellant was charged with tw o counts of robbery, one count of receiving stolen property, an d one count of criminal conspiracy. 2 At the time she was charged, Appellant was sevent een years old and less than three months from her eighteenth birthday. Appellant’s

____________________________________________ 1 18 Pa.C.S.A. §§ 3701, 3925, and 903, respectively.

2 Unless another source is cited, these facts are ta ken from pages one through four of the trial court’s November 26, 2014 Pa.R.A.P. 1925(a) opinion.J-A27033-15

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case was initiated in criminal court. Appellant pe titioned the trial court to transfer her case to juvenile court. Following a d ecertification hearing, her petition was denied. A non-jury trial was held on November 7, 2012, after which Appellant was found guilty of all charges. T he trial court requested a presentence investigation report (PSI) for use in f ashioning Appellant’s sentence. The PSI included Appellant’s prior juven ile adjudications. Following a sentencing hearing, the trial court sen tenced Appellant to a period of incarceration of not less than six and on e-half nor more than thirteen years to be followed by a period of probat ion of seven years. Appellant filed post-sentence motions which were de nied. Appellant timely appealed to this Court and, as ordered, filed a Rul e 1925(b) statement wherein she raised seven claims of error. The tria l court issued a Pa.R.A.P. 2915(a) opinion. Appellant now raises four issues for our review:
1. Whether the juvenile decertification process is unconstitutional as it does not allow for the minor child to have a jury conclude beyond a reasonable doubt that the juvenile should be subjected to an adult penalty be yond the juvenile statutory maximum penalty in violation of the minor child’s Sixth Amendment rights?
2. Whether placing the burden of proof on a juvenile d efendant in a decertification process violates both the juve nile’s procedural and substantive due process rights? 3. Whether the process of obtaining a second expert wi tness violated Miss Henderson’s Constitutional rights und er the Equal Protection Clause of the Fourteenth Amendment ?J-A27033-15

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4. Whether Section 303.6 of the Sentencing Guidelines violates the 8 th Amendment to the United States Constitution and Article 1, Section 13 of [sic] Constitution of the Commonwealth of Pennsylvania in light of Roper v. Simmons , [543 U.S. 551 (2005),] Graham v. Florida , [560 U.S. 48 (2010),] and Miller v. Alabama , [132 S.Ct. 2455 (2012)]? Appellant’s Brief at 5-6. Initially, we note that an appellant bears a heavy burden to prove a statute unconstitutional. “[A] statute is presumed to be constitutional and will not be declared unconstitutional unless it cle arly, palpably and plainly violates the Constitution.” Commonwealth v. Cotto , 753 A.2d 217, 219 (Pa. 2000). Additionally, “there is no constitutio nal guarantee to special treatment for juvenile offenders. Any right to tre atment as a juvenile is derived from statutory law and is defined by the le gislature.” In Interest of J.F. , 714 A.2d 467, 470 (Pa. Super. 1998). The legislature, through the Juvenile Act, placed a djudication of delinquent acts when the defendant is a child autom atically within the jurisdiction of juvenile court. 42 Pa.C.S.A. § 632 2(a). However, Section 6302 of the Juvenile Act excludes robbery from the definition of a delinquent act where, as in this case, a deadly weapon was use d in the commission of the offense. See 42 Pa.C.S.A. § 6302 “Delinquent Act” (2)(ii)(D); see also 18 Pa.C.S.A. § 3701 (relating to robbery). Prosecu tion for an offense excluded from the definition of a delinquent act co mmences in criminal court rather than in juvenile court. 42 Pa.C.S.A. § 6322 (a); see also Commonwealth v. Ramos , 920 A.2d 1253, 1258 (Pa. Super. 2007)J-A27033-15

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(“[W]hen the crime involved is one excluded from th e Juvenile Act’s definition of a delinquent crime, the charge is aut omatically within the jurisdiction of the criminal court and jurisdiction is presumptively proper.”). When a criminal court has jurisdiction over a crime committed by a juvenile pursuant to 42 Pa.C.S.A. § 6322(a), the ju venile may request that her case be decertified, i.e. , removed to the jurisdiction of juvenile court. Commonwealth v. Sanders , 814 A.2d 1248, 1250 (Pa. Super. 2003). This process has been upheld as constitutional by this C ourt and our Supreme Court. See Cotto , 753 A.2d at 217, 222 (holding as constitutional t he 1995 Amendments to the Juvenile Act which vest original jurisdiction in the criminal courts for specified violent felonies and granting the decision-maker discretion in determining whether to transfer a dir ect file case to juvenile court); see also Commonwealth v. Aziz , 724 A.2d 371, 374 (Pa. Super. 1999), appeal denied , 759 A.2d 919 (Pa. 2000) (“We find that the amendments to the Act, which cause juveniles accuse d of the enumerated offenses to appear first in criminal court, are not arbitrary and instead are rationally related to the statute’s objectives.”). Appellant first argues that the decertification pro cess is unconstitutional as violating the Sixth Amendment b ecause a judge rather than a jury decides decertification. Appellant bas es this claim on our United States Supreme Court’s decision in Apprendi v. New Jersey , 530 U.S. 466 (2000) which, in her words, “conclude[es] that a se ntencing factor that has the potential to enhance the punishment triggers Si xth AmendmentJ-A27033-15

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protections. . . .” Appellant’s Brief at 15. Esse ntially, Appellant argues that the denial of decertification is a factor that coul d enhance a sentence beyond the statutory maximum allowed for a juvenile and, t herefore, under Apprendi , only a jury may deny decertification. Appellant’ s Brief at 19. The United States Supreme Court’s decision in Apprendi concerned a statute that authorized a judge to increase the max imum sentence after a jury’s verdict based on the judge’s finding , by a preponderance of the evidence, of the fact that the crime was racially m otivated. Apprendi , 120 S.Ct. at 2348. We previously summarized the rule e stablished by Apprendi and its progeny as follows.
In the watershed Apprendi case, the Supreme Court held that any fact except a prior conviction that increases the range of punishment beyond the statutory maximum penalty for that crime must be charged in an indictment, submitted t o the jury, and proven beyond a reasonable doubt. The Court fu rther defined the term statutory maximum in Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). According to the Blakely Court, the statutory maximum is the maximum sentence a court can impose based so lely on the facts reflected by the jury verdict or admitted by the defendant during his guilty plea. Commonwealth v. Stokes , 38 A.3d 846, 858-59 (Pa. Super. 2011). Appellant’s reliance on Apprendi is misplaced. Decertification is a legislatively established procedure whereby a judge must consider a juvenile’s amenability to treatment within the juve nile system as delineated by statutorily defined factors. 42 Pa.C.S.A. § 635 5(a)(4)(iii). Decertification is not a fact that increases the maximum penalty th at may be imposed asJ-A27033-15

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already determined by a jury’s verdict or an accuse d’s guilty plea. Indeed, a judge does not make any findings of fact regarding elements of the crimes charged during the decertification process. Furthe r, there is no jury involved in this process. Apprendi , therefore, is factually and legally distinguishab le from the instant case. As such, Appellant is not e ntitled to relief on her first
issue. Appellant next argues that placing the burden of pr oof on a juvenile defendant in the decertification process violates b oth the juvenile’s procedural and substantive due process rights. In Cotto , our Supreme Court addressed and rejected this issue and held as follows. [T]he legislature has determined in its judgment th at, in certain instances, violent felonies in addition to murder a re sufficiently serious to merit vesting original jurisdiction in t he criminal courts, while affording the defendant an opportunit y to show that his is the exceptional case warranting juvenil e treatment.

. . . . . . . [T]he legislature’s informed determination th at juveniles fifteen years of age and older who commit such offe nses are not initially amenable to rehabilitation under the Juve nile Act, unless they prove otherwise by a preponderance of the evid ence, is equally reasonable. There is nothing in the Consti tution to prevent the legislature from making such a judgment

. Cotto , 753 A.2d at 223-24. Appellant acknowledges that Cotto is controlling on this issue, but asks us to reconsider our Supreme Court’s holding. Appellant’s Brief at 24. This Court, however, has a “duty and obligation to follow the decisional law of [the Supreme Court of Pennsylvania].” Commonwealth v. Shaffer , 734J-A27033-15

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A.2d 840, 844 n.6 (Pa. 1999). Because Cotto considered and resolved Appellant’s second issue, we are bound by our Supre me Court’s holding in Cotto , and Appellant is not entitled to relief on this c laim. 3 Appellant contends in her third issue that requirin g her to petition the trial court to grant funds for a second expert witn ess violated her constitutional rights under the Equal Protection Cl ause of the Fourteenth Amendment. Specifically, Appellant argues that as a client of the Allegheny County Office of Conflict Counsel (OCC), she is sim ilarly situated to clients of the Public Defender’s Office (PDO), as they are all individuals who qualify for but cannot afford representation. Appellant allege s that, because a second expert witness could have been obtained had she bee n represented by the PDO given the PDO’s self-regulated budget, she was placed in a second class where she was required to petition the court for fu nds for an additional expert witness as a client of the OCC. Appellant’s Brief at 31-32. Appellant claims this violated her Equal Protection Rights be cause, under the Fourteenth Amendment, “like persons in like circums tances will be treated

____________________________________________ 3 To the extent that Appellant relies on Roper , Graham , and Miller to support her argument that “juveniles are constituti onally distinct from adults,” and therefore it is unconstitutional to sh ift the burden of proof in decertification onto juvenile defendants, these cas es are easily distinguishable from the one sub judice as the foregoing only address juvenile sentencing. Appellant’s Brief at 24; Commonwealth v. Batts , 125 A.3d 33, 37 (Pa. Super. 2015). None of these cases pertains to the juvenile decertification process.J-A27033-15

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similarly” unless “there be a rational basis for po licy distinctions between similarly situated individuals.” Appellant’s Brief at 30. The starting point of an equal protection analysis is a determination of whether the State has created a classification for unequal distribution of benefits or imposition of burdens. Commonwealth v. Parker White Metal Co. , 515 A.2d 1358 (Pa. 1986). Appellant claims to b e a member of a class consisting of indigent persons represented by the O CC who are similarly situated to those indigent persons represented by t he PDO. Appellant claims differential treatment as a member of the OCC class because her request for a second expert requires court approval, whereas ap proval is not required for those represented by the PDO. It is establishe d that the action of state courts may be regarded as State action within the m eaning of the Fourteenth Amendment. See Shelley v. Kramer , 334 U.S. 1 (1948). The question preliminarily which remains to be answered however, is whether the Appellant’s challenge to the trial court’s acti on was based upon differentiating her in a class from others similarl y situated. Appellant fails to satisfy this preliminary consideration to sustain a n equal protection claim. While Appellant challenges the action of the trial court in refusing a second expert, Appellant does not explain how the t rial court created separate classifications of people for making exper t witness determinations for equal protection purposes. The decision to deny Appellant a second expert was based upon the trial court’s individuali zed review of Appellant’sJ-A27033-15

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request for a second expert. The request was deni ed after the trial court determined Appellant was merely shopping for anothe r expert to provide a more favorable opinion than the first expert that w as court funded. The trial court correctly noted, citing Commonwealth v. Chester , 733 A.2d 1242, 1252 (Pa. Super 1999), that a defendant is not enti tled to unlimited court appointed experts until he finds one that renders t he opinion he desires. This individualized determination was not based upo n any class created by the trial court. Nor does Appellant establish that other persons represented by the OCC would have had similar requests for expe rt approval declined as a result of their membership in her purported class . Moreover, Appellant provides no proof that the PDO in fact would have r etained a second expert on her behalf to establish disparate treatment of h er as a purported class member represented by the OCC. “A person who bring s an action under the Equal Protection clause ‘must show intentional disc rimination against him because of his membership in a particular class, no t merely that he was treated unfairly as an individual.’" Murray v. Pittsburgh Bd. of Public Educ. , 919 F. Supp. 838, 847 (W.D. Pa. 1996) (citation o mitted). A review of Appellant’s claim reveals no more than an indivi dualized determination on whether a second expert would be approved. This in dividualized determination was not dependent upon membership in a class. It further is conceded that representation of Appel lant by the OCC was necessitated by a conflict within the PDO office. To the extent Appellant canJ-A27033-15

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claim the establishment of similarly situated class es, a representational conflict within the PDO necessitating separate repr esentation by the OCC, is grounded upon a rational basis that does not offend equal protection. A State can, consistent with the Fourteenth Amendment , provide for differences so long as the result does not amount t o a denial of due process or invidious discrimination. Douglas v. California , 372 U.S. 353 (1963). Absolute equality is not required. Id. As Appellant fails to establish the essential predicates for an equal protection claim, her claim fails. 4 Appellant’s final issue is that the Pennsylvania S entencing Guidelines are unconstitutional as applied to juvenile defenda nts. Appellant’s Brief at 42. Appellant argues that, together, Roper , Graham , and Miller established the rule that, under the Eighth Amendm ent, criminal procedure laws, including sentencing guidelines, must conside r an offender’s age. Appellant’s Brief at 39-40. Appellant claims that it is therefore unconstitutional for Section 303.6 of the Pennsylva nia Sentencing Guidelines 5 to mandate using her juvenile offenses to calculat e her prior record score for use in criminal court. Appellant’ s Brief at 34-38.

____________________________________________ 4 In light of our disposition of Appellant’s equal p rotection claim, we need not determine whether Appellant properly preserved this issue due to inadequate briefing.

5 Section 303.6 of the Pennsylvania Sentencing Guide lines provides, in pertinent part, as follows: (Footnote Continued Next Page)J-A27033-15

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Appellant’s claim that the United States Supreme Co urt decisions in Roper , Graham , and Miller require that our sentencing guidelines, as applied to juveniles, be held unconstitutional requ ires impermissible extensions and leaps of logic from the holdings in those cases. Roper held that the death penalty is disproportionate punishme nt for offenders under 18, and that imposing such punishment was a violati on of the Eight Amendment. When a juvenile commits a heinous crime , the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life. In Graham the Court held that the Eighth Amendment does not permit a juvenile offender to be sentenced to life in prison without parole for a non-homicide crime. The Constitution prohibits t he imposition of a life without parole sentence on a juvenile offender who did not commit homicide. While a State need not guarantee the off ender eventual release, if it imposes a sentence of life it must provide hi m or her with some realistic opportunity to obtain release before the end of tha t term.

(Footnote Continued) _______________________ Prior juvenile adjudications are counted in the Pri or Record Score when the following criteria are met: (1) The juveni le offense occurred on or after the offender’s 14th birthday, and (2) There was an express finding by the juvenile court that t he adjudication was for a felony or one of the Misdeme anor 1 offenses listed in § 303.7(a)(4). 204 Pa. Code § 303.6.J-A27033-15

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In Miller , the Court recognized that Roper and Graham established that children are constitutionally different from a dults for sentencing purposes and that its individualized sentencing dec isions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By mandating that all children convicted of homicid e receive lifetime incarceration without possibility of parole, regard less of their age and agerelated characteristics and the nature of their cri mes, such sentencing schemes violate the principle of proportionality, a nd hence, the Eighth Amendment’s ban on cruel and unusual punishment. Ou r State Supreme Court recently clarified that “ Miller ’s holding is narrow,” and that it “would not expand the holding of Miller absent a common law history or a legislative directive.” Batts , 125 A.3d at 38. The Court specifically held that “ Miller requires only that there be judicial consideration of the appropriate age-related factors set forth in that d ecision prior to the imposition of a sentence of life imprisonment witho ut the possibility of parole on a juvenile.” Id. The Court declined to change the “legal consequen ces for the actions of minors” based on the “policy con siderations” raised by Miller stating, “[i]n Pennsylvania, subject to the limits of the Constitution, such matters are generally reserved, in the first i nstance, to the General Assembly.” Commonwealth v. Hale , 2015 WL 9284110, at *4 (Pa. 2015). The common thread running through Roper , Graham , and Miller , is that the harshest of penalties imposed upon juvenil es in those cases cannotJ-A27033-15

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withstand scrutiny for proportionality under the Ei ghth Amendment. The rationales for rejecting the outer limits of senten cing in those cases in no manner can be construed as an invitation to invalid ate consideration of all factors that may bear upon an appropriate sentence for a juvenile sentenced as an adult as in this case. Moreover, requiring c onsideration of a juvenile’s prior offenses to calculate a prior record score is not the same as mandating a certain sentence. The weight given a prior recor d score goes to the discretion of a sentencing court in fashioning an a ppropriate sentence. 6 The Court in Roper , Graham , and Miller , did not disturb a sentencing court’s ability to consider all factors when sentencing a j uvenile. In fact, those decisions emphasize the need for individualized con sideration in juvenile sentencing, a point that cuts directly against the argument Appellant presently makes. As previously stated, “a statute is presumed to be constitutional and will not be declared unconstitutional unless it cle arly, palpably and plainly violates the Constitution.” Cotto , 753 A.2d at 219. In Commonwealth v. Smith , 481 A.2d 1365 (Pa. Super. 1984), this Court addre ssed the contention that under the Juvenile Act, juvenile re cords and adjudications

____________________________________________ 6 To the extent Appellant’s argument raises a challe nge to the discretionary aspects of her sentence, Appellant has made no such claim, and if her argument could be considered as raising such a clai m, we would deem it waived for not properly preserving this issue for r eview. See Commonwealth v. Levy , 83 A.3d 457 (Pa. Super. 2013).J-A27033-15

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should not be regarded as criminal acts for purpose s of sentencing. In rejecting that proposition, we stated,

The intention of the Legislature is clear in its ad option of the policy which not only allows but requires exami nation of a defendant’s juvenile record in fashioning appropria te sentences.

. . . . It is clearly the intent of the Legislature that a child who continues his pattern of serious and violent anti-s ocial activity into adulthood, should not receive the benefit of a cloak of immunity regarding that behavior, when it is releva nt to predicting future behavior and the public safety is at risk. Until and unless the mandate to utilize juvenile re cords as a sentencing aid is legislatively reversed, it rema ins incumbent upon the sentencing courts to obey it. Id. at 1366. In light of the foregoing and the legis lative purpose to be served by permitting consideration of prior juvenil e records in sentencing, we decline Appellant’s invitation to extend the hol dings of Roper , Graham , and Miller

to find that Section 303.6 of the Pennsylvania Sen tencing Guidelines is unconstitutional as applied to juven iles. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/21/2016J-A27033-15

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