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

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN ROBERT EVANS,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 269 EDA 2018 Appeal from the Judgment of Sentence December 12, 2017 In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP

- 23

- CR

- 0007888

- 1976

BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J. MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 19, 2018 Appellant Kevin Robert Evans appeals from his judgment of sentence for

second

- degree murder following a successful Post Conviction Relief Act 1
(PCRA) petition , in which he sought relief from a life sentence without
possibility of parole under Miller v. Alabama 2 and Montgomery v.

Louisiana

. 3 Appellant asserts that his new sentence, which includes a

_________________ __________ ______ ____ _______

1 42 Pa.C.S. §§ 9541

- 9546.

2 Miller v. Alabama , 567 U.S. 460 (2012). In Miller , the United States Supreme Court held that a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders is forbidden by the Eighth Amendment. See Miller , 567 U.S. at 470.

3 Montgomery v. Louisiana , 136 S. Ct. 718 (2016). In Montgomery , the United States Supreme Court held that “ Miller announced a substantive rule that is retroactive in cases on collateral review.” Montgomery , 136 S. Ct. at 7 32.J

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maximum of lifetime incarceration, is a violation of the prohibition against
cruel and unusual punishment in the United States and Pennsylvania

Constitutions. We affirm. The trial court summarized the relevant factual and procedural background of this case as follows :
After a non

- jury trial, [Appellant], a juvenile age 17 at the time of the offense, [in which he struck an d killed a woman while breaking into her home,] was convicted on May 5, 1976 of second

- degree murder; burglary; theft by unlawful taking; and robbery. The [t]rial [c]ourt imposed a mandatory sentence of life imprisonment without the possibility of parole on the second [

- ] degree murder charge. The [t]rial [c]ourt imposed a sentence of guilt without penalty on the robbery, burglary, and theft charges, effectively suspending them. After being convicted and sentenced to life imprisonment without parole, [Appel lant] spent forty

- two years in prison. In 2012, the [United States] Supreme Court ruled in Miller [and decided Montgomery in 2016 .]
Pursuant to Miller and Montgomery , [Appellant successfully] challenged his conviction and was resentenced on December 12, 2017[,] to thirty years to life with the possibility of parole. . . . [Appellant] filed a timely appeal to the Pennsylvania Superior Court. Trial Ct. Op., 6/20/18, at 1

- 2. Appellant filed a timely court

- ordered concise

statement of matter s complained of on appeal under Pa.R.A.P. 1925(b). The

trial court filed an opinion pursuant to Pa.R.A.P. 1925(a). Appellant raises the following issue for our review:

Whether the [trial] court erred by imposing an illegal sentence, which included a man datory maximum term of life imprisonment for a second

- degree murder that [Appellant] committed when he was under the age of eighteen years old, in violation of the Eighth and Fourteenth Amendments of the United States Constitution, asJ

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well as Article 1, Se ctions 9 and 13 of the Pennsylvania Constitution. Appellant’s Brief at 4. Appellant asserts that his “mandatory maximum term of life
confinement is unconstitutionally cruel and unusual, especially in light of his young age at the time of the offense, his lack of intent to kill, and the rehabilitation he has demonstrated during his incarceration.” Id. at 17 (citations and footnote omitted). Appellant argues that “[a] mandatory life
maximum for children who did not intend to kill [fails ] to provide an

indi vidualized sentence . . . and lack[s] legitimate penological justifications.”

Id. Initially, we note that “ Appellant’ s lone appellate issue challenges the legality of his sentence. Challenges to the legality of a sentence present pure
questions of law; therefore, our standard of review is de novo and our scope of review is plenary. ” Commonwealth v. Olds , 192 A.3d 1188, 1192 ( Pa.
Super. 2018) (citation and footnote omitted)

. In Olds , the defendant, who was fourteen years old at the time of the
crime, wa s convicted of second

- degree murder and sentenced to a mandatory term of life imprisonment without the possibility of parole in 1980. Olds , 192

A.3d at 1190. After the United States Supreme Court’s decisions in Miller and
Montgomery , the defendant received a new sentencing hearing in 2016. Id.

The trial court sentenced the defendant to a sentence of twenty years to life
imprisonment. Id. On appeal to this Court, the defendan t argued that theJ

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maximum term of life imprisonment imposed violated th e Eight h Amendment

of the United States Constitution. Id. This Court rejected the defendant’s argument and held that “a mandatory life maximum for a juvenile convicted

of second

- degree murder is not cruel and unusual punishment.” Id. at 1191. In making the determination that a mandatory maximum of life imprisonment for a juvenile convicted of second

- degree murder was not cruel
and unusual, the Olds Court noted that “our Supreme Court’s . . . decision in

Commonwealth v. Batts , [163 A.3d 410 (Pa. 2017) ( B atts 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 1193 (citing Commonwealth v. Seskey , 170 A.3d 1105, 1105

- 06 (Pa.
Super. 2017) ). In particular , the Court noted that Seskey held that
[f]or those defendants [convicted of first

- degree murder prior to June 25, 2012] for whom the sen tencing court determines a [lifetime sentence without the possibility of parole ] is inappropriate, it is our determination here that they are subject to a mandatory maximum sentence of life imprisonment as required by [18 Pa.C.S. §] 1 102(a), accompanied by a minimum sentence determined by the common pleas court upon resentencing[.]

I d. (citing Seskey , 170 A.3d at 1108). The Olds Court concluded:
Seskey implicitly held that there was no reason to follow a different approach when assessing the constitutionality of section 1102(b). As our Supreme Court did in Batts II with respect to section 1102(a), we hold that it is not the term of life imprisonment that makes applying section 1102(b) to juvenile offenders unconstitutional.
Id. at 1195.J

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The Olds Court the n addressed the defendant’s cruel and unusual
punishment clai m as follows:
Presently, mandatory life maximums for juveniles convicted of felony murder represent conventional sentencing practices. Our society deems the taking of a life, either directly or as an accomplice or co

- conspirator, sufficiently grievous as to require that the defendant not be entitled to release without first going through the parole process. Accordingly, we hold that the Eighth Amendment permits imposition of section 1102(b)’ s mandatory maximum term of life imprisonment for juveniles convi cted of second

- degree murder

. . . . In this case, [the defendant] was made eligible and received a meaningful opportunity for release as he was paroled after resentencing. Accordingly, his sentence does not constitute cruel and unusual punishment.
Id. at 1197

- 98 (citations omitted). 4
Here, the trial court noted that it sentenced Appellant
in conformity with the decision of the Pennsylvania Supreme Court in Batts [ II ]. This, as well as the examination of [Appellant’s] hallmark characteristics, was done at this [t]rial [c]ourt’s discretion. The case at bar did not involve any circumstances where the exercises of its discretion would be clearly unreasonable. Additionally, because of the heinous nature of the crime itself and the risk to society of anoth er possible victim, this [t]rial [c]ourt determined that additional incarceration was appropriate because any lesser sentence would depreciate the seriousness of the case and the crime. These factors effectively created an individualized and proportionate sentence in accordance to the Miller requirements. Trial Ct. Op., 6/20/18, at 5 (citation omitted)

. We agree with the trial court that it imposed a legal sentence, since

Olds controls this matter . As set forth in Olds , a maximum sentence of life

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4 We note that in Olds , the defendant was a participant in a robbery, but did not actually kill the victim. Olds , 192 A.3d at 1191

. Nevertheless, the reasoning of Olds is equally applicable to a juvenile who kills the victim.J

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impriso nment for second

- degree murder committed by a juvenile was required and did not constitute a cruel and unusual punishment

. See Olds , 192 A.3d at 119 3

. Accordingly, we affirm Appellant’s judgment of sentence
of thirty years to life imprisonment with the p ossibility of parole. Judgment of sentence affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/1 9 /18