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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.

JOHN F. NOLE Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 873 EDA 2018 Appeal from the Judgment of Sentence November 3, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0915321

- 1969

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J. MEMORANDUM BY MURRAY, J.: FILED APRIL 2 9 , 2019 John F. Nole (Appellant) appeals from the judgment of sentence entered following resentencing pursuant to Miller v. Alabama , 567 U.S. 460 (2012) and Montgomery v. Louisiana , 136 S. Ct. 718 (2016)

. 1 Upon review, we affirm. The Pennsylvania Supreme Court summarized the underlying facts of Appellant’s case as follows: In the late afternoon of February 22, 1969, [A]ppellant, then seventeen years of age, and two other youths entered a n eighborhood candy store owned an d operated by eighty

- one -

_________________ __________ ______ ____ _______ 1 In Miller , the Supreme Court of the United States “held that a juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absen t consideration of the juvenile’ s special circum stances in light of the principles and purposes of juvenile sentencing .” See Commonwealth v. Bebout , 186 A.3d 462, 472 n.1 (Pa. Super. 2018) (citations omitted). In Montgomery , the Supreme Court held that Miller announced a substantive rule of constituti onal law that applies retroactively. Id.J

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year - old Joseph Shayka and his wife, Helen Shayka. One of the [A]ppellant’s companions held a knife to the husband’s neck. Appellant pointed a gun at the husband; struck him several times in the st omach with his fists and the gun; and demanded money. The cash register was then rifled and the youths ran out. The husband collapsed and died shortly thereafter of a massive internal hemorrhage resulting from the rupture of his abdominal aorta. Commonw

ealth v. Nole , 336 A.2d 302, 304 (Pa. 1975) (denying PCRA relief)

. Although Appellant was 17 years old on February 22, 1969, he was tried as an adult and originally sentenced to life imprisonment without the possibility of parole. After the United State s Supreme Court’s decisions in Miller and Montgomery , Appellant was re sentenced t o 48 years to life in prison with parole

. 2 The re sentencing court explain ed :

[Appellant] had been convicted in May of 1970 of first

degree murder, robbery, burglary, and weapons offenses and was sentenced March 31, 1971[] to . . . life imprisonment. [Appellant] thereafter filed a notice of appeal with the Pennsylvania Supreme Cour t, which on July 1, 1972, affirmed the judgment of sentence. Commonwealth v. Nole , 292 A.2d 331 (Pa. 1972). Over the ensuing decades, [Appellant] unsuccessfully sought post

conviction collateral relief on many occasions. It was not until [ t he decision s in Miller v. Alabama and Montgomery v. Louisiana that Appe llant] was successful . . .

. Following the imposition of sentence by [the trial court on November 3, 2017 ], [Appellant] filed a post

- sentence motion that was denied by operation of law on March 9, 2018. On March 26, 2018, [Appellant] filed a notice of appeal from the order imposing judgment of sentence.

_________________ __________ ______ ____ _______ 2 In its brief, the Commonwealth states that “[a]ccording to prison records, [Appellant] was granted parole on January 17, 2019.” Commonwealth Brief at 3.J

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Trial Court Opinion, 5/1/18, at 1

- 2 (footnote omitted). Preliminarily, we note that Appellant did not file a statement of errors complained o f on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). However, as the record does not indicate that the trial court order ed Appellant to file a statement, we do not find waive r . 3 On appeal, Appellant raises two issues : 1. Is it unconstitutional to impose a mandatory lifetime parole tail on all juvenile lifers being re

- sentenced? 2. Was it not mandated that at re

- sentencing a judge may only impose sentences for lesser included offenses after Miller v. Alabama , 567 U.S. 460 (2012) struck down the Pennsylvania sentencing scheme that imposed mandatory life sentences on all juveniles convicted of murder? Appellant’s Brie f at 3

. Both of Appellant’s issues dispute the legality of his sentence. “ I ssues relating to the legali ty of a sentence are questions of law. Our standard of review over such questions is de novo and our scope is plenary.” Commonwealth v. Cardwell , 105 A.3d 748, 750 (Pa. Super. 2 014) (citation omitted). Further :

_________________ __________ ______ ____ _______ 3 “In determining whether an appellant has waived his issues on appeal based on non - compliance with Pa.R.A.P. 1925, it is the trial court’s order that triggers an appellant’s obligation under the rule.” In re Estate of Boyle , 77 A.3d 674, 676 (Pa. Super. 2 013) (citation omitted); see also Commonwealth v. Thomas, 451 A.2d 470, 474 n.8 (Pa. Super. 1982) (“According to Rule 1925(b) the lower court must order a concise statement of [errors] complained of on appeal and an appellant must fail to comply with such directive before this Court c an find waiver[

. ] ”) (citing Pa.R .A.P. 1925(b))

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The scope and standard of review applied t o determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court’s applicati on of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law. Commonwealth v. Dixon , 161 A.3d 949, 951 (Pa. Super. 2017) (citation omitted). Appellant first claims that his maximum li fe sentence with parole violates the precedent set forth in Miller because “[w]hile the trial [court] correctly determined that it was improper to impose a minimum sentence of life imprisonment, the trial [court] incorrectly determined that he was required to impose a maximum sentence with a mandatory lifetime parole tail.” Appellant’ s Brief at 9. Appellant a vers that the trial court incorrect ly believ ed that it was mandated by Pennsylvania case law to re

- sentence him to a
maximum term of life imprisonmen t. Id. at 9

- 10 (citing Trial Court Opinion, 5/1/18, at 2). Appellant argues that “the same standard must be applied to mandatory minimum life sentences as well as mandatory maximum lifetime parole tails . . . and the Commonwealth must establish permanent incorrigibility beyond a reasonable doubt. ” Id. at 11. In response, the Commonwealth states that it “ agrees with [Appellant] that the imposition of a mandatory maximum sentence of life imprisonment for every juvenile convicted of first

- degree murder is unconstitutional under [ Miller ] and Montgomery v. Louisiana , 136 S. Ct. 718 (2016).”J

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Commonwealth Brief at 4. Nonetheless , t he Commonwealth “acknowledges that this Court has held otherwise.” Id. at 5. The Commonwealth concedes “that this C ourt has rul e d that whenever the sentencing court imposes a
minimum term

- of

- years sentence for a defendant convicted for first

- or second

- degree murder, the maximum term must be set at life imprisonment.” Id. (citing Commonwealth v. Olds , 192 A.3d 1188 (Pa. Super. 20 18), appeal denied , 297 WAL 2018 (Pa. 2018); Commonwealth v. Seskey , 170 A.3d 1105 (Pa. Super. 2017))

. Instantly, t he trial court explained: The claims [Appellant] raised have all been rejected by our appellate courts which have rule d that a sentencing c ourt has no authority to impose anything other than a maximum sentence of life imprisonment upon juveniles convicted of offenses carrying mandatory life sentences. See Commonwealth v. Seskey , 170 A.3d 1105 (Pa. Super. 2017), citing Commonwealth v. Batts , 163 A.3d 410 (Pa. 2017). See also Commonwealth v. Melvin , 172 A.3d 14 (Pa. Super. 2017) (holding that sentencing court has no discretion to impose anything but a maximum life sentence on juvenile previously convicted of a homicide offense requiring sent ence of life imprisonment with no parole and that such sentence is not unconstitutional). Thus, this Court lacks the authority to ignore those rulings and it is suggested that the judgment of sentence be affirmed based on the holdings of those cases. Tr ial Court Opinion, 5/1/18, at 2

- 3. The trial court is right. T his Court recently summarized : In 2012, the United States Supreme Court decided Miller , [] which held mandatory life without parole sentences for those under t he age of 18 at the time of their crimes violate the Eighth Amendment’s prohibition on “cruel and unusual punishments.” Miller , 567 U.S. at 465 . The Supreme Court held that a juvenile homicide defendant could only be sentenced to life without theJ

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possibility of paro le if he or she is determined to be permanently incorrigible, irreparably corrupt, or irretrievably depraved. Miller , 567 U.S. at 471. Thereafter, in [ Montgomery v. Louisiana , 136 S. Ct. 718 (2016)], the Court held that Miller applies retroactively to ca ses on collateral review, opening the door for those eligible to seek collateral relief. [ Id. at 732

- 37]. Commonwealth v. Lee , --- A.3d

--- , 2019 WL 986978, at *1 (Pa. Super. Mar. 1, 2019) (footnote omitted ). The Pennsylvania Supreme Court , i n Commonwe alth v. Batts , 66 A.3d 286 (Pa. 2013) ( Batts I ), addressed sentencing of a juvenile offender convicted of first

- degree murder. Noting that the United States Supreme Court in Miller declined to place a “categorical ban” on life

- without

- parole sentences for juvenile offenders, the Supreme Court in Batts I held that juvenile offenders convicted of first

- degree murder could be subject to a life

without

- parole sentence only after the sentencing court considered the criteria outlined in Miller

. Id. at 296

- 99. Four years later, the Pennsylvania Supreme Court in Commonwealth v. Batts , 163 A.3d 410 (Pa. 2017) ( Batts II ) , further examined the procedure for re sentencing juvenile offenders who were improperly sentenced to life without parole prior to Miller

. Applyin g Batts
II , this Court i n Commonwealth v. Seskey , 170 A.3d 1105 (Pa. Super. 2017), rejected the argument that “the trial court possessed unfettered sentencing discretion,” and expressly held that 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.” Id. at 1105

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In addressing the appeal of a similarly

- situated defendant, this Court recently held in Commonwealth v. Ligon , --- A.3d

--- , 2019 WL 1395450 (Pa. Super. Mar. 28, 2019) , that in re sentencing post

- Miller under both Batts
II and Seskey , “the re

- sentencing court [is] required to sentence [ a defendant] to a maximum term of life imprisonment.” Id. at *3. W e specifically pronounced that “a sentence with a term of years minimum and a maximum sentence of life does not violate Miller’s indiv id ualized sentencing requirement, because it properly leaves the ultimate decision of when a defendant will be released to the parole board.” Id. (emph asis added). We therefore concluded that Ligon ’s “ argument that ‘ there is no relevant statute or appellate case law requiring the imposition of a lifetime parole tail, ’ [wa]s incorrect.” Id. In light of the above precedent, when a trial court is faced w ith

re sentencing a juven ile who was originally sentenced, pre

- Miller , to life imprisonment without the possibility of parole: For those defendants for whom the sentencing court determines a life

- without

- parole sentence is inappropriate, “it is our determi nation 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 re[

- ]sentencing[.]”
Batts II , 163 A.3d at 421 (quoting Batts I , 66 A.3d at 296

- 97) (emphasis added) . “The sentencing court should fashion a minimum term ofJ

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incarceration using, as guidance, [S]ection 1102.1(a) of the Crimes Code.” Id. at 484. 4 Instantly, Appellant was 17 years old when he committed first

- degree murder and was originally sentenced to life imprisonment without the

_________________ __________ ______ ____ _______ 4 Section 1102.1, which the General Assembly enacted in the wake of Miller , sets the guidelines for sentencing persons who commit first

- degree murder while under the age of 18: (a) First degree murder.

-- A person who has been convicted after June 24, 2012, of a murder of the first degree, first degree murder of an unborn child or murder of a law enforcement officer of the first degree and who was under the age of 18 at the time of the commission of the o ffense shall be sentenced as follows: (1) A person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at least 35 years to life

. 18 Pa.C.S.A. § 1102.1(a)(1) (emphasis added). In Ligon , we sta ted: Section 1102.1 provides a clear expression of legislative intent as to juveniles that are convicted of first

- degree murder post

- Miller

. Although, the statu te i tself does not apply to [defendants convicted after June 24, 2012], it does apply to all similarly

situated defendants who were sentenced after its enactment. Mindful of the difference in treatment accorded to those subject to non
- final judgments of sente nce for murder as of Miller’s issuance, and the enactment of [Section] 1102.1, our Supreme Court has ordered trial courts to re sentence juveniles to a maximum term of life imprisonment. Batts II , supra . We are bound to follow its mandate. Ligon , 2019 WL 1395450 at *3.J

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possibility of parole. The trial court , in resentencing Appellant, was required
to impose upon Appellant a maximum te rm of life imprisonment, and a
minimum term

- of

- years using Section 1102.1(a) as guidance. 18 Pa.C.S.A. § 1102(a)(1); Batts II , 163 A.3d at 421 (quoting Batts I , 66 A.3d at 296

- 97). See also Ligon , 2019 WL 1395450 at *3 (“Under Batts II and Seskey , the

re sentencing court was st atutorily required to sentence [a] ppellant to a maximum term of life imprisonment.”). As the trial court sentenced Appellant to a minimum of 48 years, and a maximum term of life imprisonment with the possibility of parole , Appellant ’ s sentence was proper . 5

_________________ __________ ______ ____ _______ 5 The Pennsylvania Supreme Court stated : Despite the passage of four years since we issued our decision in Batts I , the General Assembly has not passed a statute addressing the sentencing of juveniles convicted of first

- degree murder pre - Miller , nor has it amended the pertinent provisions that were severed in Batts I . As we have previously stated, the General Assembly is quite able to address what it believes is a judicial misinterpretation of a statute, and its failure to do so in t he years following the Batts I decision gives rise to the presumption that the General Assembly is in agreement with our interpretation.
Batts II , 163 A.3d at 445 (citations and footnote omitted). See also Moses v. T.N.T. Red Star Exp. , 725 A.2d 792, 801 ( Pa. Super. 1999) (“It is not the prerogative of an intermediate appellate court to enunciate new precepts of law or to expand existing legal doctrines. Such is a province reserved to the Supreme Court.”); Commonwealth v. Montini , 712 A.2d 761, 769 (Pa. Super. 1998) (“[T]he Superior Court is an error correcting court and we are obliged to apply the decisional law as determined by the Supreme Court of Pennsylvania.”).J

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In his second issue , Appellant asserts that “[w]hen the United States Supreme Court in Miller struck down mandatory life sentences for juveniles convicted of murder, it invalidated the only Pennsylvania sentencing scheme in place,” and therefore, “this Court should utilize the only sentencing scheme left intact after Miller : sentencing on lesser in cluded offenses.” Appellant’s Brief at 8 . Appellant requests that “this Court . . . remand fo r re - sentencing on all lesser

- included offenses.” Id. However , Appellant concedes that “this argument was rejected by the Pennsylvania Supreme Court in [ Batts I ] and [ Batts II ] . . .” Appellant’s Brief at 16

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. The Commonwealth likewise a cknowledges that Appellant’s “argument has twice been rejected by the Pennsylvania Supreme Court,” and “[n]o relief is due.” Commonwealth Brief at 7 (citing Batts I and Bat ts II )

. B oth parties recognize that the Pennsylvania Supreme Court ha s “ found no support for the proposition that juveniles convicted of first

- degree murder
pre - Miller should be sentenced as though they were convicted of third

- degree murder.” Batts II , 163 A.3d at 457. As with the defendant in Ligon , Appellant in this case has received the full benefit of Miller and its progeny. See Ligon , 2019 WL 1395450 at *4. We therefore conclude the trial court did not err in resentencing Appellant

. Judgment of sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/29/19