J-A09030-19

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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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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 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 29, 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 

neighborhood candy store owned and operated by eighty-one-

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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 absent consideration of the juvenile’s special circumstances 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 constitutional law that applies retroactively. Id.
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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 stomach 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. 

Commonwealth 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 States Supreme Court’s decisions in

Miller and Montgomery, Appellant was resentenced to 48 years to life in 

prison with parole.

2

 The resentencing court explained: 

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

Court, 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 postconviction collateral relief on many occasions. It was not until 

[the decisions in Miller v. Alabama and Montgomery v. 

Louisiana that Appellant] 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. 

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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. 
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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 of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 

1925(b). However, as the record does not indicate that the trial court ordered

Appellant to file a statement, we do not find waiver.

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 Brief at 3. 

Both of Appellant’s issues dispute the legality of his sentence. “Issues 

relating to the legality 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. 2014) (citation 

omitted). Further:

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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. 2013) (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 can find waiver[.]”) (citing Pa.R.A.P. 1925(b)). 
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The scope and standard of review applied to 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 application 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 life 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 avers that the trial court incorrectly believed

that it was mandated by Pennsylvania case law to re-sentence him to a 

maximum term of life imprisonment. 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).” 
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Commonwealth Brief at 4. Nonetheless, the Commonwealth “acknowledges 

that this Court has held otherwise.” Id. at 5. The Commonwealth concedes

“that this Court has ruled 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. 2018), 

appeal denied, 297 WAL 2018 (Pa. 2018); Commonwealth v. Seskey, 170 

A.3d 1105 (Pa. Super. 2017)).

Instantly, the trial court explained:

The claims [Appellant] raised have all been rejected by our 

appellate courts which have ruled that a sentencing court 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 

sentence 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. 

Trial Court Opinion, 5/1/18, at 2-3. 

The trial court is right. This Court recently summarized: 

In 2012, the United States Supreme Court decided Miller, 

[] which held mandatory life without parole sentences for those 

under the 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 the 
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possibility of parole 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 cases 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, in Commonwealth 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 lifewithout-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 resentencing juvenile offenders who were 

improperly sentenced to life without parole prior to Miller. Applying Batts 

II, this Court in 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 

1105-1106.
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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 resentencing 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. We 

specifically pronounced that “a sentence with a term of years minimum and a 

maximum sentence of life does not violate Miller’s individualized sentencing 

requirement, because it properly leaves the ultimate decision of when a 

defendant will be released to the parole board.” Id. (emphasis 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 with 

resentencing a juvenile 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 

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 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 of 
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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 

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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 offense 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 stated: 

Section 1102.1 provides a clear expression of legislative intent as 

to juveniles that are convicted of first-degree murder post-Miller. 

Although, the statute itself does not apply to [defendants 

convicted after June 24, 2012], it does apply to all similarlysituated defendants who were sentenced after its enactment. 

Mindful of the difference in treatment accorded to those subject 

to non-final judgments of sentence for murder as of Miller’s

issuance, and the enactment of [Section] 1102.1, our Supreme 

Court has ordered trial courts to resentence juveniles to a 

maximum term of life imprisonment. Batts II, supra. We are 

bound to follow its mandate.

Ligon, 2019 WL 1395450 at *3.
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possibility of parole. The trial court, in resentencing Appellant, was required

to impose upon Appellant a maximum term 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 

resentencing court was statutorily 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

 

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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 

the 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.”). 
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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 included offenses.” Appellant’s 

Brief at 8. Appellant requests that “this Court . . . remand for 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 16-17. 

The Commonwealth likewise acknowledges 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 Batts II).

Both parties recognize that the Pennsylvania Supreme Court has “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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/29/19