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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.

MALIK JOHNSON

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3357 EDA 2018
Appeal from the Judgment of Sentence Entered November 6, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0402221

- 2001

BEFORE: OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 2 4 , 2019

Malik Jackson appeals from the judgment of sentence imposed on

November 6, 2018, in the Court of Common Pleas of Philadelphia County

following his 2003 guilty plea to charges of Second

- Degree Mur der, Robbery,

and Conspiracy. Jackson was sentenced to a mandatory term of life

imprisonment without parole. However, Jackson was a juvenile at the time of

the crime. Pursuant to United States Supreme Court rulings in Miller v.

Alabama , 567 U.S 460 , 132 S.Ct. 407, 183 L.Ed 2d 407 (2012) and

Montgomery v. Louisiana , ___ U.S. ____
, 136 S.Ct. 718, 193 L.Ed.2d 599

(2016)
, Jackson was entitled to a new sentence. Jackson was resentenced to

a term of 35 years to life imprisonment. Relevant to this appeal, the

imposition of a maximum sentence of life imprisonment is mandatory.

Jackson raises one issue in this timely appeal. He claims it is unconstitutional

to “impose a mandatory lifetime parole tail on all juvenile lifers beingJ

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resentenced.” Jackson’s Brief at 3. After a t hor ough review of the

submissions by the parties, relevant law, and the certified record, we affirm.

Jackson’s argument is essentially that just as a lifetime mandatory

minimum sentence is unconstitutional for juvenile offenders, so is a l ifetime

mandatory maximum sentence, as such sentence divests the trial court of the

discretion to issue an individualized sentence as prescribed by the United

States Supreme Court in the Miller
, supra , and Montgomery , supra ,

decisions.

Jackson’s argument must fail. As t he Commonwealth states in its

Appellee’s brief, this issue has recently been addressed in Commonwealth

v. Blount , 207 A.3d 925 (Pa. Super. 2019). 1 Blount , in turn, relies in

relevant part on Commonwealth v. Olds , 192 A.3d 1188 (Pa. Super. 2018)

to support its holding.

Blount
, supra , h eld:

As for Appellant's claim a mandatory maximum term of life imprisonment is unconstitutional as applied to juvenile offenders convicted of murder prior to Miller and violates the mandates of individualized sentencing, this Court has repeatedly rejected these claims. See Commonwealth v. Olds , 192 A.3d 1188 (Pa. Super. 2018) (holding imposition of mandatory maximum sentence of life imprisonment for juvenile defendant convicted of second

- degree murder prior to Miller was constitutional); [ Commonwealth v. ] Seskey , [170 A.3d 1105 (Pa. Super. 2017)], supra , (holding trial court was required to impose mandatory maximum sentence of life imprisonment when it resentenced juvenile defendant convicted of first

- degree murder prior to Miller ).

_________________ __________ ______ ____ _______

1 A petition for allowance of appeal been filed in Blount . We are unaware if our Supreme Court has yet acted upon this petition. See 223 EAL 2019, filed May 8, 2019.J

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Further, as to Appellant's claim a mandatory maximum term of life imprisonment is unconstitutional since it affords him no meaningful opportunity for release, w e c onclude Appellant misapprehends Pennsylvania's sentencing scheme.

Pennsylvania utilizes an indeterminate sentencing scheme with a minimum period of confinement and a maximum period of confinement. “In imposing a sentence of total confinement the court shall at the time of sentencing sp ecify any maximum period up to the limit authorized by law....” 42 Pa.C.S.A. § 9756(a). See also Commonwealth v. Saranchak , 544 Pa. 158, 675 A.2d 268, 277 n.1 (1996) . Here, that maximum period is life imprisonment. Therefore, the sentence imposed, with a m aximum period of life, is lawful.

To the extent Appellant meant his minimum term is unconstitutional and affords him no meaningful opportunity for release, we note “[t]he maximum term represents the sentence imposed for a criminal offense, with the minimu m term merely setting the date after which a prisoner may be paroled.” Martin v. Pennsylvania Bd. of Probation and Parole , 576 Pa. 588, 840 A.2d 299, 302 (2003) . In considering what constitutes a “meaningful opportunity for release,” this Court has recognized that “[t]o be meaningful or, at least, potentially meaningful, it must at least be plausible that one could survive until the minimum release date with some consequential likelihood that a

non

- trivial amount of time at liberty awaits.” Commonwea lth v. White , 193 A.3d 977, 986 (Pa. Super

. 2018) (quotation and emphasis omitted).

Here, the lower court sentenced Appellant to an aggregate minimum term of thirty

- five years' imprisonment. Appellant has been incarcerated for his crime since the time of his arrest when he was seventeen years old. Upon resentencing, the trial court gave Appellant credit for all time served from the date of his arrest. Thus, Appellant will be eligible for parole when he is fifty

two years old. Accordingly, Appellant's clai m that his sentence offers him no meaningful opportunity for parole is without merit.

Blount , 207 A.3d at 938

- 39.

Olds
, supra , held:J

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In sum, we reaffirm that trial courts must sentence juveniles convicted of second

- degree murder prior to June 25, 2012 to a maximum term of life imprisonment under section 1102(b) . We hold that such mandatory maximums do not violate the Eighth Amendment's ban on cruel and unusual punishment. As such, we affirm Appellant's judgment of sentence.

Olds , 192 A.3d at 1198.

Olds also provided additional reasoning that we believe is particularly

relevant herein.

Graham [ v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)] makes clear that “[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants ... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham
, 560 U.S. at 75, 130 S.Ct. 2011

. In other words, consistent w ith the Eighth Amendment, a state can set a mandatory maximum term of life imprisonment, even for nonhomicide offenses, so long as it grants defendants the opportunity for parole based upon demonstrated maturity and rehabilitation. That is exactly what

occ urred in this case. Specifically, the trial court made Appellant eligible for parole after 20 years' imprisonment and credited him with over 37 years for time served. Thereafter, Appellant was granted parole based upon his demonstrated maturity and rehabil itation.

In reaching its conclusion that juveniles convicted of nonhomicide offenses can be sentenced to life imprisonment, but not LWOP, [ 2 ] the Supreme Court of the United States explained that LWOP differs substantially from a life sentence during which a defendant becomes eligible for parole. See id. at 70, 130 S.Ct. 2011, citing Solom v. Helm , 463 U.S. 277, 297, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) . It concluded that these significant differences meant that different rules should apply for imposi ng LWOP sentences. Despite its adoption of such principles, the Supreme Court of the United States has never placed mandatory life maximums beyond the authority of a sentencing court to impose, even in nonhomicide cases.

_________________ __________ ______ ____ _______

2 Life Without Parole.J

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Nothing in Pennsylvania case law i ndicates that our Supreme Court (or this Court) is prepared to expand Justice Breyer's concurrence and prohibit mandatory life maximums for juveniles who commit second

- degree murder but did not kill or intend to kill. The sole reference by our Supreme Cour t to Justice Breyer's concurrence in Miller was not an attempt to extend his reasoning to life maximums.

Id. at 1196

- 97.

The additional reasoning found in Olds is particularly relevant to

Jackson’s argument that mandatory maximum life sentence (which equates

to a mandatory lifetime parole tail), unconstitutionally impinge s upon the

individuality of a juvenile’s sentence. As Olds states, there is no constitution al

requirement guarantee ing a juvenile’s eventual freedom, only that the

juvenile be given a meaningful opportunity to obtain that release. Therefore,

we believe Jackson’s argument is based upon an overbroad interpretation of

the United States Supreme Cou rt rulings in Miller and Montgomery

. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/24/19