J-S38003-19

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MALIK JOHNSON 

Appellant

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 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 24, 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 Murder, 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 being 
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resentenced.” Jackson’s Brief at 3. After a thorough 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 lifetime 

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 the 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, held:

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).

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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.
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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, we conclude 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 specify 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 maximum 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 minimum 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.” Commonwealth 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 fiftytwo years old. Accordingly, Appellant's claim that his sentence 

offers him no meaningful opportunity for parole is without merit.

Blount, 207 A.3d at 938-39.

Olds, supra, held:
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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 with 

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 

occurred 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 

rehabilitation.

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 imposing 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.

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2 Life Without Parole.
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Nothing in Pennsylvania case law indicates 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 Court 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 impinges upon the 

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

requirement guaranteeing 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 Court rulings in Miller and Montgomery.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/24/19