J-A25038-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHAUN BRIAN PATRICK WINTERS,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 440 MDA 2019

Appeal from the Judgment of Sentence Entered February 7, 2019

in the Court of Common Pleas of Berks County 

Criminal Division at No(s): CP-06-CR-0002878-1994

BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: FEBRUARY 6, 2020

Shaun Brian Patrick Winters (“Winters”) appeals from the judgment of 

sentence entered following resentencing pursuant to Commonwealth v. 

Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”). We affirm.

On February 21, 1995, Winters pled guilty to one count of seconddegree murder.1

 The charge related to the then-sixteen-year-old Winters’s 

killing and robbery of the seventy-seven-year-old victim in her home. The 

court sentenced Winters to a mandatory term of life in prison without the 

possibility of parole (“LWOP”) on the same date. Winters did not file postsentence motions or seek direct appellate review in this Court.

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1 18 Pa.C.S.A. § 2502(b). 
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Winters subsequently sought and was denied relief several times under the 

Post Conviction Relief Act (“PCRA”).2 Ultimately, on March 9, 2016, Winters 

filed a PCRA Petition seeking relief based upon the United States Supreme 

Court’s decision in Montgomery v. Louisiana, 136 S. Ct. 718, 193 L. Ed. 2d 

599 (2016). On May 3, 2016, the PCRA court issued an Order deferring 

disposition of Winters’s Petition pending the decision of the Pennsylvania 

Supreme Court in Batts II. 

The Pennsylvania Supreme Court filed its decision in Batts II on June 

26, 2017. On July 27, 2017, the Commonwealth filed a Motion to list Winters’s

case for resentencing, in accordance with Batts II. On February 7, 2019, 

after a hearing, the trial court resentenced Winters to 30 years to life in prison. 

On that same date, the PCRA court entered an Order dismissing Winters’s 

PCRA Petition as moot. Winters filed a post-sentence Motion, which the trial 

court denied. Thereafter, Winters filed the instant timely appeal, followed by 

a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained 

of on appeal.

Winters presents the following claims for our review:

A. Whether the [trial] court illegally and unconstitutionally relied 

upon 18 Pa.C.S.A. § 1102.1 in fashioning the minimum 

sentence of 30 years for [Winters,] despite the fact that 

§ 1102.1 explicitly does not apply retroactively to those 

convicted on or before June 24, 2012, and the court, in using 

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2 42 Pa.C.S.A. §§ 9541-9546.
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§ 1102.1 as [a] guide for resentencing in this case, failed to 

afford [Winters] an individualized sentencing hearing[,] with 

the court having complete discretion to set a minimum 

sentence below the threshold provided in 18 Pa.C.S.A. 

§ 1102.1[,] as numerous other courts in this Commonwealth 

have done?

B. Whether the sentencing court illegally and unconstitutionally 

sentenced [Winters] to a life tail, because a mandatory life 

maximum sentence creates the very real possibility that a child 

who fails to conform to the prison rules will actually serve [an 

LWOP] sentence[,] as such result offends due process and the 

[Eighth] Amendment[,] and sentencing [Winters] to a lifetime 

tail is disproportionate punishment and violates the 

requirement [set forth] in Miller [v. Alabama, 576 U.S. 460 

(2016),] for an individualized sentence?

C. Whether the sentencing court failed to consider and explicitly 

address all of the factors required to be considered at 

resentencing[,] pursuant to Miller ... and its progeny[,] as the 

court failed to properly consider the impact of [Winters’s] youth 

and development, failed to presume [Winters’s] immaturity 

and reduced culpability when imposing [its] sentence, failed to 

properly consider [Winters’s] historic drug use since the age of 

7[,] and his substantial drug use and alcohol use and 

intoxication at the time of the murder in this case, and 

[whether] the court improperly placed significance on 

comments that [Winters] made while testifying about the 

events leading up to the unfortunate death of the victim in this 

case, the “innocent victim” argument made by the 

Commonwealth, and the details of the murder[,] as argued by 

the Commonwealth[,] at resentencing?

Brief for Appellant at 4 (some capitalization omitted). 

We will address Winters’s first two claims together, as they are related. 

Winters first claims that the trial court “unconstitutionally relied upon 18

Pa.C.S.A. § 1102.1” when resentencing him to a maximum sentence of life in 

prison. Brief for Appellant at 9. Winters argues that section 1102.1 does not 

apply retroactively, and that by relying upon section 1102.1, the trial court 
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failed to afford him an individualized sentence. Id. Winters directs our 

attention to recent case law recognizing that character development in 

juveniles is “incomplete,” and that juvenile culpability differs from that of 

adults. Id. at 9-12. Winters further directs our attention to the Supreme 

Court’s decision in Miller, which held that automatically imposing a mandatory 

sentence of LWOP upon a juvenile offender violates the Eighth Amendment 

prohibition against cruel and unusual punishment, and which sets forth the 

factors to be considered when sentencing juveniles. Id. at 13. According to 

Winters, the Miller decision created a presumption against the imposition of 

a sentence of LWOP. Id. at 14. Relying upon Miller and its progeny, and the 

subsequent federal court decisions in Songster v. Beard, 201 F. Supp. 3d 

639 (E.D. Pa. 2016), and Garnett v. Wetzel, 2016 U.S. Dist. LEXIS 108936 

(E.D. Pa., Aug. 17, 2016) (memorandum opinion), Winters contends that the 

trial court erred in considering section 1102.1 at sentencing. Brief for 

Appellant at 17, 19.

In his second claim, Winters argues that the trial court improperly 

sentenced him to a “life tail,” as it creates the possibility that a juvenile who 

fails to conform to prison rules will serve a LWOP sentence. Id. at 21. Relying 

upon the reasoning of the federal court in Songster, Winters contends that 

routinely fixing the maximum sentence as life in prison does not constitute an 

individualized sentence. Id. at 22. Winters states that under Pennsylvania 

case law, parole constitutes “punishment,” and release on parole is not 
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automatic. Id. at 22-23. According to Winters, a mandatory maximum 

sentence of life in prison allows the Parole Board to impose a LWOP sentence. 

Id. at 23. Winters posits that a child who fails to conform to prison rules could 

actually serve a LWOP sentence. Id. at 24.

“When reviewing the legality of a sentence, our standard of review is de 

novo and our scope of review is plenary.” Commonwealth v. Lekka, 210 

A.3d 343, 355 (Pa. Super. 2019) (citation omitted).

Winters’s challenges to the legality of his sentence do not entitle him to 

relief. Since Batts II, this Court has repeatedly rejected the claim that the 

imposition of a mandatory maximum sentence of life in prison for a juvenile 

convicted of first- or second-degree murder constitutes an illegal sentence 

under Miller. See Commonwealth v. Olds, 192 A.3d 1188, 1197-98 (Pa. 

Super. 2018) (holding that “a mandatory life maximum for a juvenile 

convicted of second-degree murder is not cruel and unusual punishment.”); 

Commonwealth v. Seskey, 170 A.3d 1105, 1109 (Pa. Super. 2017) (holding 

that the trial court imposed an illegal sentence when it resentenced juvenile 

defendant convicted of first-degree murder prior to Miller to term of 13 to 26 

years of imprisonment; the court was required to impose mandatory 

maximum sentence of life in prison); Commonwealth v. Battles, 169 A.3d 

1086, 1089-90 (Pa. Super. 2017) (holding that the trial court’s imposition of 

a mandatory maximum term of life in prison, upon resentencing of a juvenile 

defendant convicted of first-degree murder prior to Miller, was legal). 
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In Commonwealth v. Ligon, 206 A.3d 1196 (Pa. Super. 2019), this 

Court rejected a challenge to the legality of a sentence based upon the same 

rationale expressed by the federal court in the Songster decision:

The Songster decision has no precedential value in Pennsylvania. 

Commonwealth v. Lambert, 765 A.2d 306, 354-55 (Pa. 2000). 

Moreover, our Court has previously considered the argument that 

[the a]ppellant makes with Songster[,] and found it to be 

“unavailing,” as it does not address Graham v. Florida, 560 U.S. 

48, 75, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), a case which 

held that parole boards may make the ultimate determination 

whether an individual has demonstrated the requisite maturity 

and rehabilitation to deserve release. See ... Olds, 192 A.3d [at]

1197 n.18 ....

... The Miller Court did not call into question the ability of 

state parole boards to make the decision as to whether a juvenile 

murderer should be paroled[,] and did not equate a sentence of 

[life without the possibility of parole] with one for life with the 

possibility of parole. Montgomery, [136 S. Ct.] at 736. In fact, 

it did the opposite, merely requiring the states to make the 

relevant inmates parole eligible, thereby insuring that those 

prisoners who have shown the ability to reform will receive a 

meaningful opportunity for release. It did not hold that life

sentences with parole eligibility are unconstitutional, or that 

juvenile murderers must be released at some point regardless of 

their fitness to rejoin society. Thus, 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.

[The a]ppellant also fails to account for the fact that, if we 

adopt his argument, and allow him and others similarly-situated 

to receive a term-of-years maximum sentence, such a holding 

would lead to impermissibly disparate results. 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 [the a]ppellant[,] based upon the 

date of his conviction, 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 
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judgments of sentence for murder as of Miller’s issuance, and the 

enactment of § 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.

Id. at 1200-01 (emphasis added). For the foregoing reasons, we cannot grant 

Winters relief on his first two claims.

In his third claim, Winters argues that the trial court abused its 

discretion by not considering and addressing the factors required by Miller

and its progeny when imposing its sentence. Brief for Appellant at 24. When

an appellant challenges the discretionary aspects of a sentence, we must 

engage in a four-part analysis to determine

(1) whether the appeal is timely; (2) whether [the a]ppellant 

preserved his [] issue; (3) whether [the a]ppellant’s brief includes 

a concise statement of the reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of sentence 

[pursuant to Pa.R.A.P. 2119(f)]; and (4) whether the concise 

statement raises a substantial question that the sentence is [not] 

appropriate under the [S]entencing [C]ode.

Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018) 

(citation omitted).

Our review of the record discloses that Winters filed a timely Notice of 

Appeal, preserved his sentencing claim in a post-sentence Motion, and 

included in his brief a Statement of Reasons relied upon for allowance of 

appeal, as required by Rule 2119(f). See Brief for Appellant at 31-36. 

Therefore, we next consider whether Winters’s claim raises a substantial 

question that his sentence is not appropriate under the Sentencing Code.
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As this Court has explained, 

[t]he 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.

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018) 

(internal citations and quotation marks omitted).

In his Statement of Reasons relied upon for allowance of appeal, Winters 

argues that his sentence is unreasonable and excessive; the trial court failed 

to consider the factors required by Miller; and the court “refused and/or failed 

to properly give weight to the mitigating circumstances” presented by him at 

sentencing. Brief for Appellant at 35. Winters’s assertions raise a substantial 

question. See Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa. 

Super. 2015) (en banc) (concluding that an excessive-sentence claim, in 

conjunction with an assertion that the court failed to consider mitigating 

factors, raises a substantial question); see also Commonwealth v. Hicks, 

151 A.3d 216, 227 (Pa. Super. 2016) (concluding that a claim that the 

sentencing court failed to set forth adequate reasons for the sentence imposed 

raises a substantial question). Accordingly, we will address Winters’s 

challenge to the discretionary aspects of his sentence.

Winters argues that the trial court improperly “failed to specifically 

consider the impact of [his] youth and development[,] and failed to presume 
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[his] immaturity and reduced culpability when imposing sentence[.]” Brief for 

Appellant at 25. According to Winters, the trial court further placed undue 

significance on the events leading up to the death of the victim. Id. Winters 

further asserts that, because the trial court did not “evidence” its consideration 

of the Miller factors on the record, this Court “should vacate and remand this 

case to the trial court[,] with instructions to resentence [Winters] to an 

individualized sentence of time served to 50 years.” Id. at 26. Winters 

acknowledges that the Commonwealth submitted at resentencing a presentence investigation report (“PSI”), based upon a 1995 interview with 

Winters. Id. at 28. Nevertheless, Winters takes exception to the trial court’s 

failure to give “specific mention” of Winters’s youth and development, as well 

as its failure to presume Winters’s immaturity and reduced culpability. Id. 

Winters also directs our attention to mitigating evidence presented by defense 

counsel during resentencing. Id. at 28-30.

Our Pennsylvania Supreme Court has held that, “when a juvenile is 

exposed to a potential sentence of life without the possibility of parole[,] the 

trial court must consider the Miller factors, on the record, prior to imposing a 

sentence.” Commonwealth v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019)

(emphasis added). A sentencing court’s failure to do so renders the imposed 

sentence illegal, even if the defendant is not ultimately sentenced to LWOP. 

Id.
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Here, the Commonwealth did not seek imposition of LWOP. See N.T., 

2/7/19, at 4 (wherein the Commonwealth represented that “the 

Commonwealth is not seeking life without parole as a sentence for [] 

Winters”). Because Winters was not exposed to a potential LWOP sentence, 

the trial court did not violate Miller or Machicote at resentencing. See 

Lekka, 210 A.3d at 357 (concluding that, “because the Commonwealth [] did 

not seek, and the sentencing court did not impose, a life-without-parole 

sentence, there was no error by the sentencing court in failing to consider the 

Miller factors.”).

Nevertheless, our review of the record discloses that the resentencing 

court considered the Miller factors when it imposed Winters’s new sentence 

of 30 years to life. As the trial court explained in its Opinion,

[t]he mitigation report included information pertaining to 

[Winters’s] youth and development, immaturity and reduced 

culpability, historic drug use, drug and alcohol use and intoxication 

at the time of the offense. Contrary to [Winters’s] argument, this 

[c]ourt carefully combed through the mitigation report that was 

prepared by [Winters’s] mitigation specialist prior to the day of 

sentencing[,] and also at the day of the sentencing. ... This [c]ourt 

specifically acknowledged that [Winters] is not the same person 

he was at the time of the murder[,] and recognized his remorse 

and maturity. It is also true that this [c]ourt particularly took 

notice of [Winters’s] testimony in describing the murder as an 

“altercation[,]” and [Winters’s] testimony that he did not know 

the victim was deceased until a week later. However, this [c]ourt 

was well within its discretion to take into account [Winters’s] 

testimony[,] which affected the sincerity of [Winters’s] acceptance 

of responsibility for the murder. This [c]ourt found [Winters’s] 

testimony to be incredible and offensive[,] as it is extremely 

unlikely [that Winters] was unaware [that] the victim was 

deceased[,] as [Winters contended], when the physical evidence 

supports that [Winters] wrapped a pillowcase around the victim’s 
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neck and tied [it] into a knot, strong enough to strangulate the 

victim to death. As this [c]ourt was obligated to take into account 

[Winters’s] mitigation report, this [c]ourt was also obligated to 

take into account the circumstances of the murder[,] and the 

victim impact statements before imposing sentence. Therefore, 

[Winters’s] averment that this [c]ourt improperly placed 

significance on some factors while ignoring factors favorable to 

[Winters] is unfounded and unsupported by the evidence in the 

record.

Trial Court Opinion, 4/8/19, at 4-5 (unnumbered).

Here, the trial court considered the Miller factors, as well as all of the 

evidence presented in the PSI and at sentencing. See Commonwealth v. 

Seagraves, 103 A.3d 839, 842 (Pa. Super. 2014) (recognizing that where the 

trial court has the benefit of a pre-sentence report, “we presume that the court 

was aware of relevant information regarding the defendant’s character and 

weighed those considerations along with any mitigating factors.”). As such,

Winters is not entitled to relief on his claim. Consequently, we affirm Winters’s 

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/06/2020