# Commonwealth v. Lawrence > Superior Court of Pennsylvania · August 27, 2014 · 2014 Pa. Super. 182 URL: https://www.frixlaw.com/law-library/cases/2721490 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Byshere LAWRENCE, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** August 27, 2014 - **Citations:** 2014 Pa. Super. 182; 99 A.3d 116; 2014 Pa. Super. LEXIS 2881; 2014 WL 4212715 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Bowes, Donohue, Mundy - **Cited by:** 133 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2721490 ## How later opinions describe it (automated extraction) - stating that “a direct appeal in a criminal case can only lie from the judgment of sentence.” - stating that in a criminal case, a direct appeal lies from the judgment of sentence - holding that a statute imposing a minimum mandatory sentence of 35 years on a juvenile defendant convicted of murder did not violate Eighth Amendment as interpreted in Miller - explaining that “claims pertaining to the Eighth Amendment’s Cruel and Unusual Punishment Clause [] pertain to the legality of the sentence” (citation omitted) - explaining that an ex post facto constitutional challenge presents a legal question that cannot be raised for the first time on appeal ## Opinion text J-S41033-14 2014 PA Super 182 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. BYSHERE LAWRENCE Appellant No. 2684 EDA 2013 Appeal from the Judgment of Sentence May 24, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010239-2011 BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J. OPINION BY MUNDY, J.: FILED AUGUST 27, 2014 Appellant, Byshere Lawrence, appeals from the May 24, 2013 aggregate judgment of sentence1 of 45 years to life imprisonment after he was found guilty of first-degree murder, firearms not to be carried without a license, and possession of an instrument of a crime (PIC).2 After careful review, we affirm. We summarize the relevant facts and procedural history of this case as follows. On September 26, 2011, the Commonwealth filed an information ____________________________________________ 1 September 18, 2013 order denying his post-sentence motion. However, a direct appeal in a criminal case can only lie from the judgment of sentence. Commonwealth v. Kuykendall, 2 A.3d 559, 560 n.1 (Pa. Super. 2010) (citation omitted). We have therefore amended the caption accordingly. 2 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), and 907(a), respectively. J-S41033-14 charging Appellant with the above-mentioned offenses as well as one count each of criminal conspiracy, possession of a firearm by a minor, carrying firearms in public in Philadelphia, and recklessly endangering another person (REAP).3 On July 31, 2012, Appellant proceeded to a jury trial at the conclusion of which, the jury found Appellant guilty of first-degree murder, firearms not to be carried without a license, and PIC. The jury acquitted Appellant of criminal conspiracy. The Commonwealth nolle prossed the possession of a firearm by a minor, carrying firearms in public in Philadelphia, and REAP charges. On May 24, 2013, the trial court imposed an aggregate sentence of 45 years to life imprisonment.4 On June 3, 2013, Appellant filed a timely post-sentence motion. Relevant to this appeal, tutional issue in his post-sentence motion argued that the application of 18 Pa.C.S.A. § 1102.1(a)(1) to his case violated the Cruel and Unusual Punishment Clause of the Eighth Amendment to the Federal Constitution. See -Sentence Motion, 6/3/13, at ¶¶ 7-10. On ____________________________________________ 3 18 Pa.C.S.A. §§ 903(c), 6110.1(c), 6108 and 2705, respectively. 4 The trial court imposed 45 years to life imprisonment for first-degree without sentences were to run concurrently to each other. -2- J-S41033-14 post-sentence motion. On September 24, 2013, Appellant filed a timely notice of appeal.5 On appeal, Appellant raises three issues for our review. A. Is 18 Pa.C.S. § 1102.1 unconstitutional under the United States Constitution because it violates its Cruel and Unusual Punishment Clause? B. Is 18 Pa.C.S. § 1102.1 unconstitutional under the United States Constitution because it violates the Equal Protection Clause in that it treats juveniles convicted of first or second degree murder after its passage differently than juveniles convicted of the identical crimes prior to its passage? C. Was the sentence imposed on Appellant under 18 Pa.C.S. § 1102.1 unconstitutional under the United States and Pennsylvania Constitutions because it violates their Ex Post Facto Clauses? We note that duly enacted legislation Commonwealth v. Turner, 80 A.3d 754, 759 (Pa. 2013) (citation omitted). ____________________________________________ 5 Appellant and the trial court have complied with Pa.R.A.P. 1925. -3- J-S41033-14 Commonwealth v. Baker, 78 A.3d 1044, 1050 (Pa. 2013), quoting 1 Pa.C.S.A. § 1922(3). In conducting our review, we are guided by the principle that acts passed by the General Assembly are strongly presumed to be constitutional, including the manner in which they were passed. Thus, a statute will not be found unconstitutional unless it clearly, palpably, and plainly violates the Constitution. If there is any doubt as to whether a challenger has met this high burden, then we will constitutionality. Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (internal quotation marks and citations omitted). As the constitutionality of a statute presents a pure question of law, our standard of review is de novo and our scope of review is plenary. Turner, supra. In his first issue, Appellant avers that Section 1102.1 is minimum sentence of thirty- fifteen years or older convicted of first- consideration of the factors set forth in Miller v. Alabama, [] 132 S. Ct. The Eighth Amendment to the Federal Constitution states that [e]xcessive bail shall not be required, nor excessive fines imposed, nor -4- J-S41033-14 6 cruel and unusual punishments U.S. Const. amend. viii. The draw its meaning from the evolving standards of decency that mark the Trop v. Dulles, 356 U.S. 86, 101 (1956) punishment for [a] crime should be graduated and proportioned to [the] Kennedy v. Louisiana, 554 U.S. 407, 419 (2008), quoting Weems v. United States those convicted of heinous crimes, the Eighth Amendment reaffirms the duty Hall v. Florida, 134 S. Ct. 1986, 1992 (2014) (citation omitted). Appellant argues that Section 1102.1 violates the Cruel and Unusual Punishment Clause because the statute imposes a mandatory minimum at 15. The statute provides in relevant part as follows. § 1102.1. Sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer ____________________________________________ 6 The Eighth Amendment is incorporated to the States via the Due Process Clause of the Fourteenth Amendment. Hall, supra. -5- J-S41033-14 (a) First degree murder.--A person who has been convicted after June 24, 2012, of a murder of the first degree, first degree murder of an unborn child or murder of a law enforcement officer of the first degree and who was under the age of 18 at the time of the commission of the offense shall be sentenced as follows: (1) A person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at least 35 years to life. (2) A person who at the time of the commission of the offense was under 15 years of age shall be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at least 25 years to life. 18 Pa.C.S.A. § 1102.1(a). Appellant is correct insofar that, by its text, the statute requires the trial court to impose a sentence of not less than 35 Id. § 1102.1(a)(1). The trial court is divested of any discretion to impose a lesser minimum sentence. See, e.g. apply this section where applicable, the Commonwealth shall have the right to appellat Within the last ten years, the Supreme Court has on three occasions 2005, the Supreme Court held that the Eighth Amendment categorically -6- J-S41033-14 prohibits the imposition of the death penalty for those under 18 years of age at the time of the offense.7 Roper v. Simmons, 543 U.S. 551, 578 (2005). In 2010, the Court concluded a juvenile convicted of non-homicide crime could not be sentenced to life imprisonment without the possibility of parole consistent with the Eighth Amendment. Graham v. Florida, 560 U.S. 48, 82 (2010). Finally, in Miller, the question was whether the Eighth Amendment barred a state from imposing a mandatory sentence of life imprisonment without the possibility of parole upon a juvenile, even for a homicide offense. As with Roper and Graham, the Court noted that juveniles differ from adults in three distinct ways. recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S., at 569. more vulnerable ... to negative influences and themselves from horrific, crime-producing settings. Ibid. Id., at 570. Id. at 2464 (parallel citations omitted); see also Graham, supra at 68-69; Roper, supra the mandatory penalty schemes at issue here prevent the sentencer from taking account of ____________________________________________ 7 The Supreme Court had previously rejected this argument in 1989. See generally Stanford v. Kentucky, 492 U.S. 361, 380 (1989). -7- J-S41033-14 Id. balance by subjecting a juvenile to the same life-without-parole sentence applicable to an adult these laws prohibit a sentencing authority from Id. In not be reconciled with the considerations espoused in Roper and Graham. Id. at 2469. Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and punishment. Id. at 2475. As a result, Miller was entitled to resentencing, taking into account considerations involving his age.8 Turning to the case sub judice, Appellant argues that Section le in the ____________________________________________ 8 In Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), our Supreme Court held t the imposition of a minimum sentence taking such [age-related] factors into account is the most appropriate remedy for the federal constitutional violation that occurred when a life-without-parole sentence Id. at 297. -8- J-S41033-14 crime, whether he posed a danger to society, and the familial and peer preclusive effect of Section 1102.1 is that it divests the judge of discretion, imprisonment. We decline to extend Miller beyond the mandatory schemes that it considered. Miller is limited to legislative schemes which require[ed] that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age- Miller, supra. Section 1102.1 does not contain such a sentencing scheme. In fact, Section 1102.1(d) does require the trial court to consider various age-related factors before the trial court may impose a sentence of life without parole. See 18 Pa.C.S.A. § 1102.1(d).9 ____________________________________________ 9 Specifically, Section 1102.1(d) requires, among other factors, the following findings by the trial court. § 1102.1. Sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer (d) Findings.--In determining whether to impose a sentence of life without parole under subsection (a), the court shall consider and make findings on the record regarding the following: (Footnote Continued Next Page) -9- J-S41033-14 We do not read Miller to mean that the Eighth Amendment categorically prohibits a state from imposing a mandatory minimum imprisonment sentence upon a juvenile convicted of a crime as serious as first-degree murder.10 of 35 years presents the same concerns as would a mandatory minimum of _______________________ (Footnote Continued) (7) Age-related characteristics of the defendant, including: (i) Age. (ii) Mental capacity. (iii) Maturity. (iv) The degree of criminal sophistication exhibited by the defendant. (v) The nature and extent of any prior delinquent or criminal history, including the success or failure of any previous attempts by the court to rehabilitate the defendant. (vi) Probation or institutional reports. (vii) Other relevant factors. 18 Pa.C.S.A. § 1102.1(d)(7). 10 Appellant does not argue that a national consensus exists against imposing a sentence of 35 years to life imprisonment upon a juvenile so as to render it unconstitutional under the Eighth Amendment. See generally Hall, supra at 1996, 1999; Miller, supra at 2470; Graham, supra at 61; Kennedy, supra at 426; Roper, supra at 563; Atkins v. Virginia, 536 U.S. 304, 316 (2002). - 10 - J-S41033-14 requires us to conclude that open-ended minimum sentencing is constitutionally required by the Cruel and Unusual Punishment Clause. We decline to announce such a rule. If we were to agree with contrary to the cases that the Supreme Court has already decided. See Graham, supra Graham held that the Eighth Amendment required juveniles convicted of non-homicide offense to have Id. Miller does not contain this requirement for juveniles convicted of first-degree murder, such as Appellant. Even under Miller, a state still may impose life without parole for homicide offenses, preventing a juvenile like Appellant, from ever obtaining any hope of release from confinement. Based on these considerations, we conclude that Section 1102.1 does not offend the Cruel and Unusual Punishment Clause of the Eighth Amendment. See Turner, supra. Appellant argues Section 1102.1 violates the Equal Protection Clause of the Fourteenth Amendment of the Federal Constitution and the Ex Post Facto Clauses found at Article I, Section 10 of the Federal Constitution and Article - 11 - J-S41033-14 The trial court noted that neither of these grounds were raised in his post- sentence motion and concluded that Appellant has waived them. Trial Court Opinion, 12/17/13, at 9; see also ssues not raised in the lower court are waived and cannot be raised for the first time these claims below n.5. a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge Commonwealth v. Delvalle, 74 A.3d 1081 (Pa. Super. 2013). However, we also take notice of the competing Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (en banc). The question then becomes whether a constitutional attack on a statute that authorizes a mandatory minimum sentence may also be considered a non-waivable challenge to the legality of the sentence actually imposed, and if so, to what extent. [T]his Court has grappled with the illegal sentencing doctrine as jurisprudence on such issues as constitutional sentencing challenges and the difference between legal sentencing questions and an illegal sentence have Id. en banc cases, we have established the principle that the term illegal sentence is a term of art that - 12 - J-S41033-14 Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007) (en banc) (internal quotation marks and citation omitted). This Court has consistently enunciated three distinct categories of legality of sentence involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000) Id. (internal parallel citations omitted). This Court has also held that claims pertaining to the the legality of the sentence and cannot be waived. See Commonwealth v. Brown, 71 A.3d 1009, 1015- punishment is a challenge to the legality of the sentence, rendering the Watley, supra at 118; accord Commonwealth v. Jacobs, 900 A.2d 368, 373 n.6 (Pa. Super. 2006) (en banc), appeal denied, 917 A.2d 313 (Pa. 2007). It makes sense that an Apprendi involves sentencing a defendant in excess of the statutory maximum, the classic illegal sentence paradigm, based on facts not presented to and/or - 13 - J-S41033-14 Watley, supra at 118 n.7.11 In addition, if a sentence is unconstitutional as cruel and unusual under the Eighth Amendment, a fortiori, it must also be an illegal sentence. With regard to the doctrine of merger and the Double Jeopardy Clauses, our Supreme Court for the same offense serves to prevent the sentencing court from prescribing greater punishment Commonwealth v. ____________________________________________ 11 In addition, the Supreme Court recently added Alleyne v. United States, 133 S. Ct. 2151 (2013) to the Apprendi line of cases. In Alleyne, the Court overruled Harris v. United States, 536 U.S. 545 (2002), and held Alleyne, supra at 2155 (internal quotation marks omitted). Although Alleyne, like all of the Apprendi line, is grounded in the Jury Trial Clause of the Sixth Amendment, authority to engage in judicial fact-finding in order to impose a higher In this case, the trial court correctly noted that Section 1102.1 does present an Alleyne problem. Section 1102.1 prescribes a mandatory offense. See [a] person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of life imprisonment without parole, or a term of (emphasis added). However, the trial court also noted that at sentencing Appellant conceded that he was 15 years old at the time of the offense. N.T., 5/24/13, at 11. Since Appellant conceded the fact required for the mandatory minimum, any Alleyne error in this case was rendered harmless. See United States v. Hunt, 656 F.3d 906, 913 (9th Cir. 2011) (stating that an Apprendi error can - 14 - J-S41033-14 Andrews, 768 A.2d 309, 329 (Pa. 2001) (internal quotation marks and citation omitted). The Fourteenth Amendment of the Federal Constitution states that isdiction the equal Id. at Art. I, § 10. Likewise, Article I, Section 17 of the Pennsylvania [n]o ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of In our view, there is a meaningful difference between the remaining two arguments Appellant raises in this case and issues pertaining to the Eighth Amendment, merger, Apprendi and Alleyne. The Eighth Amendment, merger, Apprendi, and even Alleyne all directly circumscribe encing process and sentencing authority. Stated another way, the goal of the Cruel and Unusual Punishment Clause, the merger doctrine, Apprendi and Alleyne is to protect defendants from the imposition of punishments by trial judges that are unconstitutional, Andrews, supra. However, as is relevant in this case, the Equal Protection Clause and the Ex Post Facto Clauses serve to restrict legislative power. Appellant does not argue that the trial court did - 15 - J-S41033-14 sentencing function. Nor does Appellant argue that any part of the sentencing process was unconstitutional. Rather, Appellant argues that the General Assembly passed a statute that, in his view, unconstitutionally treats some juveniles differently than others, and retroactively changes the 33-34. These arguments do not address the same concerns as the Eighth Amendment, the merger doctrine, Apprendi and Alleyne. Because Ex Post Facto Clause arguments directly seek protection from legislatures, not judges, we hold that these arguments Commonwealth v. Cartrette, 83 A.3d 1030, 1036 n.5 (Pa. Super. 2013) (en banc) (citation omitted). It does not alter our conclusion that the constitutional argument here involves a mandatory minimum sentence. Appellant has not cited to any case where we have allowed a constitutionally-based legality of sentencing claim regarding mandatory minimum sentencing to be raised for the first time on appeal, leaving aside cases involving Alleyne. If we were to hold that an Equal Protection and Ex Post Facto challenge is non-waivable because a mandatory minimum sentence is involved, than any state or federal constitutional provision that could serve as a basis to challenge a - 16 - J-S41033-14 mandatory minimum sentence must also be non-waivable as well.12 Further, if we did not require preservation in the trial court, all of these constitutional challenges could also be raised by this Court sua sponte as well. See generally Commonwealth v. Ornella, 86 A.3d 877, 883 n.7 (Pa. Super. illegality of sentence sua sponte conclude that the trial court was correct that Appellant waived his arguments under the Equal Protection and Ex Post Facto Clauses by not raising them in his post-sentence motion below. eit judgment of sentence is affirmed. Judgment of sentence affirmed. Judge Donohue files a Concurring Opinion. ____________________________________________ 12 For example, a defendant could challenge Section 1102.1 under the Original Purpose and Single Subject Clauses of the Pennsylvania Constitution. We point out that these arguments also directly accuse the legislature, not the trial court, of acting unconstitutionally regarding Section 1102.1. - 17 - J-S41033-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/27/2014 - 18 - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2721490. Public record. Not legal advice.