J-S75019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN ROBERT EVANS, 

Appellant

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 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 Act1

(PCRA) petition, in which he sought relief from a life sentence without 

possibility of parole under Miller v. Alabama2 and Montgomery v. 

Louisiana.

3

 Appellant asserts that his new sentence, which includes a 

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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 

732.
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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 and 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, [Appellant] 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 matters 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 mandatory 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, as 
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well as Article 1, Sections 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 

individualized 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, was 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 defendant argued that the 
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maximum term of life imprisonment imposed violated the Eighth 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) (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 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 sentencing 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. §] 1102(a), accompanied by a minimum sentence 

determined by the common pleas court upon resentencing[.]

Id. (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.
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The Olds Court then addressed the defendant’s cruel and unusual 

punishment claim 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 convicted 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 another 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. 
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imprisonment 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 1193. Accordingly, we affirm Appellant’s judgment of sentence 

of thirty years to life imprisonment with the possibility of parole.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/18