Commonwealth v. Felder, M., Aplt.

[J-53-2019]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 18 EAP 2018

:

Appellee : Appeal from the Order of Superior

: Court entered on 12/20/2017 at No.

: 660 EDA 2015 affirming the

v. : Judgment of Sentence entered on

: 10/24/2014 in the Court of Common

: Pleas, Philadelphia County, Criminal

MICHAEL FELDER, : Division at No. CP-51-CR-0014896-

: 2009.

Appellant :

: ARGUED: September 11, 2019

OPINION

JUSTICE DOUGHERTY1 DECIDED: February 23, 2022

Over the past two decades, in a series of Eighth Amendment cases applying the

Cruel and Unusual Punishments Clause,2 the United States Supreme Court consistently

has held that sentencing an offender who was under eighteen years old at the time of the

crime raises special constitutional considerations. Of particular consequence in this line

of cases were Miller v. Alabama, 567 U.S. 460 (2012), which prohibited mandatory life

sentences for juvenile homicide offenders, and Montgomery v. Louisiana, 577 U.S. 190

(2016), which held Miller applied retroactively to cases on collateral appeal. In the wake

of these decisions, hundreds of defendants who committed murder as a juvenile and were

1 This matter was reassigned to this author.

2“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. CONST. amend. VIII.

imprisoned under Pennsylvania’s former mandatory-life-without-parole sentencing

scheme had to be resentenced.

For our part, in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”), we

exercised “our constitutional power of judicial administration to devise a procedure for the

implementation of the Miller and Montgomery decisions in Pennsylvania.” Id. at 451

(internal quotations omitted). Among other things, we adopted a presumption against the

imposition of a sentence of life without parole for juveniles and imposed on the

Commonwealth the burden of proving, beyond a reasonable doubt, that a juvenile

offender is incapable of rehabilitation. See id. at 459. We determined these procedures

were necessary to effectuate what we believed then was the central mandate of Miller

and Montgomery: that “for a life-without-parole sentence to be constitutionally valid, the

sentencing court must find that the juvenile offender is permanently incorrigible and that

rehabilitation would be impossible.” Id. Still, even after establishing this comprehensive

set of legal criteria to guide juvenile sentencings, other questions remained. We granted

review in this case to consider one such issue: whether a discretionary term-of-years

sentence may be so long as to amount to a de facto life sentence, thereby triggering the

substantive and procedural protections afforded by Miller and its progeny.

Before we could resolve that issue, however, the High Court decided Jones v.

Mississippi, ___ U.S. ___, 141 S.Ct. 1307 (2021), which severely narrowed the holdings

of Miller and Montgomery as previously understood by many courts, including this one.

Upon careful review of this new guidance, we are constrained to conclude our decision in

Batts II has largely been abrogated. We further conclude Jones is dispositive of the issue

presented here. As we will explain below, pursuant to the reasoning in Jones, even if a

term-of-years sentence amounts to a de facto life sentence, Miller provides no viable

avenue for relief. Accordingly, we affirm appellant’s judgment of sentence.

[J-53-2019] - 2

I. Relevant Precedent

Before discussing the facts, we start with a review of the relevant precedent. In

2005, the United States Supreme Court began to place various constitutional limits on

sentencing juveniles who had been convicted of serious criminal offenses. 3 First, in

Roper v. Simmons, 543 U.S. 551, 578 (2005), it concluded the Eighth Amendment forbids

capital punishment for murderers who were under eighteen at the time of their crimes.

Next, in Graham v. Florida, 560 U.S. 48, 82 (2010), the Court held the Eighth Amendment

prohibits life without parole for juvenile offenders who did not commit homicide. Then in

Miller in 2012, the Court barred mandatory sentencing schemes for juveniles convicted

of homicide, concluding such sentences violate the principle of proportionality inherent to

the Eighth Amendment. Miller, 567 U.S. at 489.4 Four years later, in Montgomery, the

Court held Miller announced a substantive rule of constitutional law that applies

retroactively to cases on collateral review. Montgomery, 577 U.S. at 212.

Our opinion in Batts II came on the heels of these decisions and the General

Assembly’s enactment of a new sentencing statute for juveniles convicted of first- and

second-degree murder after June 24, 2012 — the day before Miller was decided. See 18

3 Much of the High Court’s Eighth Amendment jurisprudence concerning juveniles is well-

trodden territory for this Court, see Batts II, 163 A.3d at 431-41, so a brief summary will

suffice to lay the necessary foundation.

4 In Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) (“Batts I”), our first post-Miller

decision addressing the sentencing of juvenile homicide offenders, we rejected the

argument that juveniles can never be sentenced to life without parole, noting that Miller

itself did not require such a broad proscription. See id. at 296. Instead, we explained

Miller requires only “that there be judicial consideration of the appropriate age-related

factors set forth in that decision prior to the imposition of a sentence of life imprisonment

without the possibility of parole on a juvenile.” Id. We also found nothing to suggest “that

Pennsylvania’s history favors a broader proportionality rule than what is required by the

United States Supreme Court.” Id. at 299.

[J-53-2019] - 3

Pa.C.S. §1102.1(a), (c).5 We began our analysis by addressing the appropriate level of

scrutiny for appellate review of a non-mandatory sentence of life without parole imposed

upon a juvenile. See Batts II, 163 A.3d at 434. This was critical, we explained, because

the distinction between a claim challenging the discretionary aspects of a sentence, as

opposed to its legality, “also encompasses matters of issue preservation, this Court’s

jurisdiction to decide the question presented, and the level of deference the reviewing

court must give to the decision of the sentencing court.” Id. Ultimately, after conducting

an extensive review of the High Court’s Eighth Amendment precedent, we resolved that

“in the absence of the sentencing court reaching a conclusion . . . that the defendant will

forever be incorrigible, without any hope for rehabilitation, a life-without-parole sentence

imposed on a juvenile is illegal, as it is beyond the court’s power to impose.” Id. at 435.

In other words, we interpreted the High Court’s decisions in Miller and Montgomery as

“permit[ting] the imposition of a life-without parole sentence upon a juvenile offender only

if the crime committed is indicative of the offender’s permanent incorrigibility; that the

crime was not the result of the unfortunate yet transient immaturity endemic of all

juveniles.” Id. (internal quotations and citations omitted; emphasis in original); see also

id. (“[F]or a sentence of life without parole to be proportional as applied to a juvenile

murderer, the sentencing court must first find, based on competent evidence, that the

offender is entirely unable to change.”).

We reiterated this understanding when we proceeded to consider the legality of

Batts’s sentence de novo, and held it was illegal. Initially, we recognized there was “no

question that the sentencing court thoroughly and completely reviewed the record and

thoughtfully considered the testimony presented at the resentencing hearing” before

5 We observed in Batts II that “the General Assembly has not passed a statute addressing

the sentencing of juveniles convicted of first-[ or second-]degree murder pre-Miller[.]”

Batts II, 163 A.3d at 445. This remains true today.

[J-53-2019] - 4

imposing a discretionary life-without-parole sentence. Id. at 437 (footnote omitted); see

also id. at 424 (noting sentencing court “took into account the general factors in [S]ection

9721(b) of the Sentencing Code, the Miller factors and the factors identified in 18 Pa.C.S.

§1102.1(d)”) (footnote omitted).6 Nevertheless, we held this was not enough to withstand

6 Section 9721(b) of the Sentencing Code requires courts to adhere to

the general principle that the sentence imposed should call for total

confinement that is consistent with section 9725 (relating to total

confinement) and the protection of the public, the gravity of the offense as

it relates to the impact on the life of the victim and on the community, and

the rehabilitative needs of the defendant. The court shall also consider any

guidelines for sentencing and resentencing adopted by the Pennsylvania

Commission on Sentencing and taking effect under section 2155[.]

42 Pa.C.S. §9721(b). As for the Miller factors, we have identified those as

a juvenile’s age at the time of the offense, his diminished culpability and

capacity for change, the circumstances of the crime, the extent of his

participation in the crime, his family, home and neighborhood environment,

his emotional maturity and development, the extent that familial and/or peer

pressure may have affected him, his past exposure to violence, his drug

and alcohol history, his ability to deal with the police, his capacity to assist

his attorney, his mental health history, and his potential for rehabilitation.

Batts I, 66 A.3d at 297 (internal quotations and citation omitted). Lastly, Section 1102.1(d)

mandates that

[i]n 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:

(1) The impact of the offense on each victim, including oral and

written victim impact statements made or submitted by family

members of the victim detailing the physical, psychological

and economic effects of the crime on the victim and the

victim’s family. A victim impact statement may include

comment on the sentence of the defendant.

(2) The impact of the offense on the community.

(3) The threat to the safety of the public or any individual posed

by the defendant.

[J-53-2019] - 5

constitutional scrutiny. In our judgment, the sentencing court had “overlooked the main

premise” of the High Court’s juvenile sentencing jurisprudence and impermissibly

overrode its repeated admonitions “that juvenile first-degree murderers are presumptively

less culpable than their adult counterparts and, as such, should be sentenced differently.”

Id. at 437. Thus, notwithstanding the court’s finding that Batts’s crime was not the result

of unfortunate yet transient immaturity, because the court also opined that “there

remained a possibility that Batts could be rehabilitated[,]” we held a sentence of life in

(4) The nature and circumstances of the offense committed by

the defendant.

(5) The degree of the defendant’s culpability.

(6) Guidelines for sentencing and resentencing adopted by the

Pennsylvania Commission on Sentencing.

(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. §1102.1(d). As we have previously remarked, Section 1102.1(d) requires

sentencing courts to consider some, though not all, of the Miller factors. See Batts II, 163

A.3d at 455 n.23.

[J-53-2019] - 6

prison without the possibility of parole was illegally “disproportionate under Miller and

Montgomery[.]” Batts II, 163 A.3d at 436, 439.

Our task in Batts II did not end there. We also recognized that “[d]espite the

sentencing court’s best efforts . . ., the lack of procedural safeguards resulted in it failing

to properly apply the law to Batts’[s] resentencing.” Id. at 451. Moreover, we observed

that, at that time, there remained several hundred individuals in Pennsylvania prisons

serving what we then believed were illegal life-without-parole sentences awaiting

resentencing. See id. at 450. For those reasons, and because “[t]he General Assembly

has not taken any appreciable steps to create a separate sentencing statute or to revise

existing law so that it applies to juveniles convicted of first-[ or second-]degree murder

prior to Miller[,]” we determined an “exercise of our constitutional authority [wa]s required

to set forth the manner in which resentencing will proceed in the courts of this

Commonwealth.” Id. at 450-51. And since we sought to devise only a procedural

framework for implementing Miller and Montgomery’s substantive mandate, we reasoned

that such power “falls squarely within our constitutional authority.” Id. at 449; see PA.

CONST. art. V, §10(c) (“The Supreme Court shall have the power to prescribe general

rules governing practice, procedure and the conduct of all courts . . . if such rules . . .

neither abridge, enlarge nor modify the substantive rights of any litigant.”).

Pursuant to that power we approved a medley of protective procedural measures

advanced by Batts and his amici. First, we determined “a faithful application of the holding

in Miller, as clarified in Montgomery, requires the creation of a presumption against

sentencing a juvenile offender to life in prison without the possibility of parole.” Id. at 452.

Second, based on “the definitive language used by” the High Court’s precedents, we

concluded “that to overcome the presumption against the imposition of a sentence of life

without parole for a juvenile offender, the Commonwealth must prove that the juvenile is

[J-53-2019] - 7

constitutionally eligible for the sentence beyond a reasonable doubt.” Id. at 455. Third,

“[c]onsistent with the requirements of due process and [S]ection 1102.1(b),” we held that

where the Commonwealth seeks to have the sentencing court impose a sentence of life

without parole on a juvenile offender, “it must provide reasonable notice to the defendant

prior to the sentencing hearing.” Id. We anticipated that “the proper employment of these

procedures w[ould] result in courts sentencing juveniles to life without parole in only the

rarest of circumstances, as contemplated and prescribed by the United States Supreme

Court.” Id. at 457; see id. (expressing our intention to “curtail the imposition of illegal

sentences of life without parole by sentencing courts”).7

Even after Batts II, certain issues remained unresolved. We confronted one of

those issues in Commonwealth v. Machicote, 206 A.3d 1110 (Pa. 2019). There, we held

“that when a juvenile is exposed to a potential sentence of life without the possibility of

parole the [sentencing] court must consider the Miller factors, on the record, prior to

imposing a sentence.” Id. at 1120. Failure to do so, we explained, renders the resulting

sentence illegal — even in cases like Machicote’s, where the defendant was not actually

sentenced to life without parole. See id.

7 Several other procedural protections were also considered in Batts II. Notably, we

rejected Batts’s claim that expert testimony is constitutionally required in this context;

disagreed that a jury must make the finding regarding a juvenile’s eligibility to be

sentenced to life without parole; and declined to permit appeals from the imposition of a

sentence of life without parole to be taken directly to this Court. See Batts II, 163 A.3d at

455-57. But we did find it prudent to advise sentencing courts to “examine both the Miller

factors and the [S]ection 1102.1(d) factors” in all cases, “regardless of whether the

juvenile was convicted pre- or post-Miller.” Id. at 455 n.23. Unlike with the other criteria

discussed above, though, this directive did “not result from a review of the constitutionality

of the statute.” Id. at 458 n.25. Rather, it was based on “the policy determination and

legislative intent embodied in [S]ection 1102.1 and the goal of uniformity in sentencing.”

Id. Importantly, we discerned “no impediment . . . to our instructing sentencing courts to

use the new legislative provision as guidance without making it mandatory.” Id.

[J-53-2019] - 8

Other gaps in the juvenile homicide offender sentencing framework have been

filled by the Superior Court. For example, that court has extended aspects of our decision

in Batts II to address situations that were not directly at issue in that case See, e.g.,

Commonwealth v. Olds, 192 A.3d 1188, 1197 (Pa. Super. 2018) (employing reasoning

from Batts II, a first-degree murder case, to “hold that the Eighth Amendment permits

imposition of [S]ection 1102(b)’s mandatory maximum term of life imprisonment for

juveniles convicted of second-degree murder”); accord Commonwealth v. Sesky, 170

A.3d 1105, 1105-06 (Pa. Super. 2017). In other cases, the intermediate court has partially

restricted our holdings in Batts II and Machicote. See, e.g., Commonwealth v. Lekka, 210

A.3d 343, 357 (Pa. Super. 2019) (distinguishing Machicote and finding no error in failure

to consider Miller factors where the Commonwealth “did not seek, and the sentencing

court did not impose, a life-without-parole sentence”); Commonwealth v. White, 193 A.3d

977, 983 (Pa. Super. 2018) (Miller factors must be considered “only in cases where the

Commonwealth is attempting to meet its burden of overcoming the presumption against

juvenile [life-without-parole] sentences”).

Most relevant here, the Superior Court also has been at the forefront of addressing

a wave of so-called de facto life sentence claims.8 In 2018, a three-judge panel held as

a matter of first impression that “a trial court may not impose a term-of-years sentence on

a juvenile convicted of homicide if that term-of-years sentence equates to a de facto [life-

without-parole] sentence unless it finds, beyond a reasonable doubt, that the juvenile is

incapable of rehabilitation.” Foust, 180 A.3d 433. Although the panel “decline[d] to draw

a bright line . . . delineating what constitutes a de facto [life-without-parole] sentence and

8Some courts define a de facto life sentence as “one that exceeds the defendant’s life

expectancy.” Adams v. State, 188 So.3d 849, 851 (Fla. Dist. Ct. App. 2012). Generally

speaking, we have no trouble concluding “[t]here are certain term-of-years sentences

which clearly constitute de facto” life sentences — for instance, “a 150-year sentence.”

Commonwealth v. Foust, 180 A.3d 416, 438 (Pa. Super. 2018).

[J-53-2019] - 9

what constitutes a constitutional term-of-years sentence[,]” it held the inquiry must be

informed by “consider[ing] the sentence for each individual crime separately and not [in]

the aggregate[.]” Id. at 438, 441. Not long after, a different panel determined the “key

factor in considering the upper limit of what constitutes a constitutional sentence” is

“whether there is ‘some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.’” Commonwealth v. Bebout, 186 A.3d 462, 468 (Pa. Super.

2018), quoting Graham, 560 U.S. at 75. Using that standard, the Superior Court has

approved a range of lengthy term-of-years sentences as constitutional. See, e.g.,

Commonwealth v. Anderson, 224 A.3d 40, 47 (Pa. Super. 2019) (50 years to life); White,

193 A.3d at 986 (35 years to life); Bebout, 186 A.3d at 469-70 (45 years to life); Foust,

180 A.3d at 438 (60 years to life, aggregated from two 30-years-to-life sentences).

II. Facts & Procedural History

Having set forth the legal context in which the present appeal arose, we now return

to the facts and procedural history. One summer day in 2009, when he was seventeen-

and-a-half years old, appellant was playing in a pick-up basketball game with Andrew

Williams at an outdoor court in Philadelphia. The pair were matched against brothers

Jarrett and Malcolm Green. Shortly into the game, appellant’s style of play became

aggressive. Eventually, an argument ensued after Williams refused to hand the ball over

to the Greens. Appellant walked to the sideline and removed a .380 semiautomatic

handgun from his gym bag. He then shot Malcolm in the head before shooting Jarrett in

the stomach and leg. Only Malcolm survived.

In 2012, a jury convicted appellant of first-degree murder and aggravated assault

for his role in shooting the Greens. Pursuant to the then-applicable mandatory sentence

for first-degree murder, which also applied to juveniles, appellant was sentenced to life

[J-53-2019] - 10

imprisonment without the possibility of parole. See 18 Pa.C.S. §1102(a)(1) (superseded

as applied to juveniles by 18 Pa.C.S. §1102.1).

The Superior Court vacated appellant’s judgment of sentence two years later. By

that time, both Miller and Batts I had been decided. And since appellant’s judgment of

sentence was not yet final, the Superior Court determined he was entitled to the benefit

of those rulings and to consideration of the Miller factors before being resentenced, and

remanded the case for such proceedings. See Commonwealth v. Felder, 2148 EDA

2012, 2014 WL 10919377 (Pa. Super. June 27, 2014) (unpublished memorandum).

On October 24, 2014, the trial court held a second sentencing hearing. Appellant

asserted the murder was an impulsive act that was the product of his undeveloped

juvenile brain. He maintained that, because his brain was still developing at the time, he

presented a greater opportunity for rehabilitation than would an adult who committed the

same crime. Appellant offered evidence to demonstrate he already had used prison as

an opportunity to rehabilitate and to better himself. For example, while incarcerated,

appellant obtained his high school diploma and participated in therapeutic sessions with

a violence prevention counselor. He also submitted testimony from his mother and a

letter from his cousin.

The court considered the record — including, inter alia, presentence memoranda,

psychological reports, victim impact statements, and school records — as well as the

parties’ arguments and evidentiary presentations, and the court’s own “very lengthy

contemporaneous notes taken during both the trial of this case and during the initial

sentencing proceeding.” Notes of Testimony (“N.T.”), 10/24/2014, at 51. The court also

contemplated, “on the record, every one of the twelve factors for a [c]ourt to consider

before sentencing a juvenile for first-degree murder as enumerated in Miller and Batts [I.]”

Sentencing Court Op., 2/18/2016, at 5; accord N.T. 10/24/2014 at 51-52. Based on that

[J-53-2019] - 11

wide-ranging review, the court found the facts and circumstances of appellant’s crime

necessitated a lengthy sentence. See N.T. 10/24/2014 at 53-54 (noting there were two

victims and additional crimes charged; “to not take those facts into consideration now

would be to denigrate the serious nature of the crimes [appellant] committed against both

victims”). Accordingly, the court imposed a discretionary 50-years-to-life sentence for

appellant’s first-degree murder conviction.

On appeal to the Superior Court, appellant challenged the legality of his sentence,

arguing “a 50-year minimum sentence is a de facto life sentence.” Commonwealth v.

Felder, 660 EDA 2015, 2017 WL 6505643 at *2 (Pa. Super. Dec. 20, 2017) (unpublished

memorandum).9 The panel found appellant’s support for that position to be lacking. First,

although appellant portrayed a 2012 United States Sentencing Commission Preliminary

Quarterly Data Report as demonstrating that 470 months is considered a life sentence

for purposes of federal law, the panel reviewed the same report and concluded the figure

was nothing more than a nonbinding “statistic out of context.” Id. at *3.10 Similarly, after

looking to cases from other states that have addressed this issue, the panel lamented

9 Appellant additionally asserted Miller invalidated Pennsylvania’s first-degree murder

sentencing scheme, meaning he could be sentenced pursuant to the third-degree murder

statute only. Although this Court had previously rejected that precise claim, see Batts I,

66 A.3d at 293-96, appellant argued it should be considered anew in light of Montgomery.

The Superior Court declined appellant’s invitation to reconsider the issue, finding he had

failed to support the contention with substantive analysis or discussion. See Felder, 2017

WL 6505643 at *5.

10 Other Superior Court panels have likewise struggled to determine what constitutional

significance, if any, these types of statistics may hold in the analysis. See, e.g., Bebout,

186 A.3d at 469 (remarking “it is not at all discernable which statistics [courts] can rely on

to predict life expectancy in specific cases” and expressing concern that the use of such

data to govern de facto life sentence claims would “create a myriad of new questions

without any easy answers, sending us down a constantly evolving rabbit hole from which

we may never escape as more and more data arrives”).

[J-53-2019] - 12

that it uncovered no “clear resolution,” only “great disparity in approach and interpretation

of the dictates of Miller . . . demonstrat[ing] the difficulty of the problem.” Id.

In the absence of clear binding authority, the panel returned to the core holding of

Miller, which prohibited only those sentencing schemes that prescribe mandatory life

sentences without parole. The panel explained that, on its face, Miller “does not directly

apply” to appellant’s claim, i.e., a challenge to a lengthy, but discretionary, term-of-years

sentence. Id. at *4; see also id. (“Miller did not address a situation . . . wherein a juvenile

defendant was given a significant sentence upon the discretion of the trial court”); id.

(“Miller takes no stand on claims of de facto life sentences”). It therefore concluded “that

when a juvenile convicted of homicide has been subjected to a discretionary sentence

that may approach, but does not clearly exceed life expectancy, that sentence does not

run afoul of Miller.” Id. Applying that rule to appellant’s case, the panel detected no Eighth

Amendment problem with his sentence. Although the 50-year minimum term may appear

“significant” since it precludes appellant from seeking parole until he is 68 years old, the

panel nevertheless found it constitutional because it “was the result of an individualized

and discretionary sentencing hearing[.]” Id.

Appellant sought allowance of appeal in this Court, and we granted discretionary

review limited to a single question:

Does not a sentence of 50 years to life imposed upon a juvenile constitute

a de facto life sentence requiring the sentencing court, as mandated by this

Court in Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts II”), [to]

first find permanent incorrigibility, irreparable corruption or irretrievable

depravity beyond a reasonable doubt.

Commonwealth v. Felder, 187 A.3d 909 (Pa. 2018) (per curiam). This issue presents a

question of law over which we exercise a de novo standard and plenary scope of review.

Batts II, 163 A.3d at 435.

[J-53-2019] - 13

III. Analysis

After the parties briefed and argued the issue upon which we granted review, the

Supreme Court decided Jones. Because our review of that decision leads us to conclude

it is dispositive here, we dispense with our usual practice of recounting the parties’

arguments and proceed directly to our analysis.11

For the last few years, there has been widespread “disagreement in state and

federal courts about how to interpret Miller and Montgomery[.]” Jones, 141 S.Ct. at 1313;

Batts II, 163 A.3d at 458 n.26 (discussing different approaches). To create clarity and

resolve the split, the Court granted certiorari in Jones to consider whether a sentencer

who imposes a life-without-parole sentence must make a separate factual finding of

permanent incorrigibility, or at least provide an on-the-record sentencing explanation with

an implicit finding of permanent incorrigibility. See Jones, 141 S.Ct. at 1313. Upon its

review, the Jones Court concluded that “Miller and Montgomery squarely rejected such a

requirement.” Id. at 1314.

Taking Miller first, the Jones Court clarified that it “mandated ‘only that a sentencer

follow a certain process — considering an offender’s youth and attendant characteristics

— before imposing’ a life-without-parole sentence.” Id. at 1314, quoting Miller, 567 U.S.

at 483. According to the Court, such a discretionary “procedure ensures that the

sentencer affords individual consideration to, among other things, the defendant’s

chronological age and its hallmark features.” Id. at 1316 (internal quotations and citation

11 After Jones was decided, we directed the parties to address “its impact on the issue

presented in this appeal.” Order, 6/22/2021. In his response, appellant argues Jones

“has no impact on Pennsylvania law” and maintains that “the sentencing procedures this

Court set up in Batts II remain fully intact[.]” Appellant’s Supplemental Brief at 1, 5. The

Commonwealth, represented by the Philadelphia District Attorney’s Office, adopts the

same position. See Appellee’s Supplemental Brief at 4 (asserting Jones “is not material

to the question before this Court”); see id. at 5 (suggesting the “procedures this Court

adopted in Batts II were not compelled by the Eighth Amendment”).

[J-53-2019] - 14

omitted); see id. (stating non-mandatory sentencing schemes permit sentencers to

“consider the murderer’s diminished culpability and heightened capacity for change”)

(internal quotations and citation omitted). In support of this reading of Miller, the Jones

Court found it significant that Miller “repeatedly described youth as a sentencing factor

akin to a mitigating circumstance.” Id. at 1315. This characterization, the Jones Court

reasoned, reflects the fact that “permanent incorrigibility is not an eligibility criterion akin

to sanity or lack of intellectual disability.” Id. Rather, Miller merely “followed the Court’s

many death penalty cases and required that a sentencer consider youth as a mitigating

factor when deciding whether to impose a life-without-parole sentence,” but it “did not

require the sentencer to make a separate finding of permanent incorrigibility before

imposing such a sentence.” Id. at 1316; see id. (“Miller cited Roper and Graham for a

simple proposition: Youth matters in sentencing. And because youth matters, Miller held

that a sentencer must have discretion to consider youth before imposing a life-without-

parole sentence[.]”).

As for Montgomery, the Jones Court bluntly declared that it “did not purport to add

to Miller’s requirements.” Id. To bolster this position, the Court noted it granted certiorari

in Montgomery “not to consider whether the rule announced in Miller should be expanded,

but rather simply to decide whether Miller’s holding is retroactive to juvenile offenders

whose convictions and sentences were final when Miller was decided.” Id. at 1317

(internal quotations and citation omitted). Thus, the Court found unpersuasive Jones’s

reliance “on language in Montgomery that described Miller as permitting life-without

parole sentences only for those whose crimes reflect permanent incorrigibility, rather than

transient immaturity.” Id. (internal quotations omitted). Moreover, the Court emphasized

that Montgomery “flatly stated that ‘Miller did not impose a formal factfinding requirement’

[J-53-2019] - 15

and that ‘a finding of fact regarding a child’s incorrigibility . . . is not required.’” Id. at 1314-

15, quoting Montgomery, 577 U.S. at 211.

We distill the following holdings from Jones. First, “a separate factual finding of

permanent incorrigibility is not required before a sentencer imposes a life-without-parole

sentence on a murderer under 18.” Id. at 1318-19. Second, “an on-the-record sentencing

explanation . . . is not required by or consistent with Miller.” Id. at 1320. Although “States

may require sentencers to make extra factual findings before sentencing an offender

under 18 to life without parole” or “direct sentencers to formally explain on the record why

a life-without-parole sentence is appropriate notwithstanding the defendant’s youth[,]” the

federal constitution “does not demand those particular policy approaches.” Id. at 1323.

In short, “[i]n a case involving an individual who was under 18 when he or she committed

a homicide, a State’s discretionary sentencing system is both constitutionally necessary

and constitutionally sufficient.” Id. at 1313 (emphasis added).12

12 In a blistering dissent joined by Justices Breyer and Kagan, Justice Sotomayor

forcefully argued the Jones Court was retreating from Montgomery’s reading of Miller.

See Jones, 141 S.Ct. at 1328 (Sotomayor, J., dissenting) (asserting the decision “guts”

Montgomery’s interpretation of Miller and “reduces Miller to a decision requiring just a

discretionary sentencing procedure where youth [is] considered”) (internal quotations and

citation omitted). In fact, Justice Sotomayor pointed to Batts II and implied that this Court,

unlike the Jones majority, had properly recognized Miller “‘requires far more than mere

consideration of an offender’s age[.]’” Id. at 1334, quoting Batts II, 163 A.3d at 433. In

any event, because the Jones majority expressly declared its decision “does not overrule

Miller or Montgomery[,]” Justice Sotomayor urged courts “to continue applying those

decisions faithfully.” Id. at 1337 (internal quotations and citation omitted).

Justice Thomas authored a concurring opinion which principally took aim at the Court’s

treatment of Montgomery. He argued that “[r]ather than accept what was plainly the case

— that Miller was procedural, not watershed, and thus not retroactive — Montgomery

proceeded to ‘rewrite’ it into a substantive rule.” Id. at 1325 (Thomas, J., concurring)

(internal quotations and citation omitted). This supposed error, in Justice Thomas’s view,

forced the Jones majority to “labor[ ] mightily to avoid confronting the tension between

Miller and Montgomery[.]” Id. at 1328. In this regard, the Jones majority held that, to the

extent Montgomery “is in tension with the Court’s retroactivity precedents that both pre-

date and post-date Montgomery, those retroactivity precedents — and not Montgomery

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Before considering how Jones impacts the issue presented, we revisit our decision

in Batts II. In that case we found it necessary to adopt a number of procedural protections

for purposes of sentencing juvenile murderers. We did so “to effectuate the mandate of

Miller and Montgomery[.]” Batts II, 163 A.3d at 415. But Jones has fundamentally altered

our understanding of those cases. The entire procedural framework we devised in Batts

II was built on our assumption that “for a life-without-parole sentence to be constitutionally

valid, the sentencing court must find that the juvenile offender is permanently incorrigible

and that rehabilitation would be impossible.” Id. at 459. Yet, Jones unequivocally dictates

that a “finding of permanent incorrigibility is not required before a sentencer imposes a

life-without-parole sentence on a murderer under 18.” Jones, 141 S.Ct. at 1318-19. In

the face of this conflict, it’s no contest: “this Court is bound by the determinations of the

United States Supreme Court on issues of federal law, including the construction and

interpretation of the federal constitution.” Hall v. Pennsylvania Bd. of Prob. & Parole, 851

A.2d 859, 863 (Pa. 2004) (citations omitted).

To reiterate, under the current state of Eighth Amendment law as expressed by

Jones, “a State’s discretionary sentencing system is both constitutionally necessary and

constitutionally sufficient.” Jones, 141 S.Ct. at 1313. A life-without-parole sentence for a

juvenile murderer is thus constitutional, and hence no viable Miller claim exists, “so long

as the sentence is not mandatory — that is, [ ] so long as the sentencer has discretion to

consider the mitigating qualities of youth and impose a lesser punishment.” Id. at 1314

(internal quotations and citations omitted). In Batts II, we interpreted Montgomery as

“clarif[ying] that Miller requires far more than mere consideration of an offender’s age prior

— must guide the determination of whether rules other than Miller are substantive.” Id.

at 1317 n.4. Justice Thomas took this statement to mean the Court was effectively

overruling Montgomery “in substance but not in name.” Id. at 1327; see id. (contending

Montgomery “gave a good-for-one-ride ticket to a class of juvenile offenders, and its

errors will never be repeated”).

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to imposing a life-without-parole sentence[.]” Batts II, 163 A.3d at 433. This interpretation

led us to hold that “for a sentence of life without parole to be proportional as applied to a

juvenile murderer, the sentencing court must first find . . . that the offender is entirely

unable to change.” Id. at 435; see also id. (expressing belief that “[t]he United States

Supreme Court decisions that control in this matter unambiguously permit the imposition

of a life-without-parole sentence upon a juvenile offender only if the crime committed is

indicative of the offender’s permanent incorrigibility”) (emphasis in original). Our

understanding in this regard, however, has been abrogated by the High Court’s decision

in Jones.13

Moreover, we are constrained to conclude that without a substantive constitutional

mooring, the procedural protections we adopted in Batts II cannot stand in their current,

judicially-created form. As we have observed, “the Pennsylvania Constitution clearly and

unambiguously bestows upon this Court ‘the power to prescribe general rules governing

practice, procedure and the conduct of all courts[,]’” but only if “such rules ‘neither abridge,

enlarge nor modify the substantive rights of any litigant[.]’” Id. at 449, quoting PA. CONST.

art. V, §10(c). The procedural protections we embraced in Batts II — more specifically,

a presumption against life-without-parole sentences and a requirement that to overcome

this presumption the Commonwealth bears the burden of proving the impossibility of

rehabilitation beyond a reasonable doubt — were not intended to enlarge any substantive

rights of juvenile homicide offenders. Instead, we repeatedly stressed throughout our

opinion that we believed those protections were constitutionally necessary “to effectuate

the mandate of Miller and Montgomery” by “ensur[ing] that life-without-parole sentences

are meted out only to the rarest of juvenile offenders whose crimes reflect permanent

13 The same is true of our decision in Machicote, wherein we held that sentencing courts

are “required to make a record of the Miller factors at sentencing.” Machicote, 206 A.3d

at 1120.

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incorrigibility, irreparable corruption and irretrievable depravity.” Id. at 415-16 (internal

quotations and citations omitted); see id. at 452 (“a faithful application of the holding in

Miller, as clarified in Montgomery, requires the creation of a presumption against

sentencing a juvenile offender to life in prison without the possibility of parole”); id. at 455

(“Pursuant to . . . the definitive language used by the Supreme Court, we conclude that

to overcome the presumption against the imposition of a sentence of life without parole

for a juvenile offender, the Commonwealth must prove that the juvenile is constitutionally

eligible for the sentence beyond a reasonable doubt.”). However, Jones now instructs

that, for purposes of the Eighth Amendment, “a State’s discretionary sentencing system

is . . . constitutionally sufficient.” Jones, 141 S.Ct. at 1313.

We are thus forced to conclude the sentencing procedures we adopted in Batts II

“do not carry the protections of the Eighth Amendment[.]” Commonwealth v. DeJesus,

___ A.3d ___, 2021 WL 4889071 at *3 (Pa. Super. 2021) (en banc). And absent some

constitutional impetus, those procedures are no longer the product of a proper exercise

of this Court’s authority over judicial administration, because they enlarge the substantive

rights of juvenile homicide offenders beyond what Miller, as cabined by Jones, requires.

Cf. PA. CONST. art. V, §10(c). Consequently, we are left with no choice but to dissolve

those procedural requirements in Batts II that are not constitutionally required — namely,

the presumption against sentencing a juvenile homicide offender to life without parole,

and the imposition on the Commonwealth of the burden of proving beyond a reasonable

doubt that the juvenile is permanently incorrigible.14 Moving forward, the authority of a

14 The dissent, apparently believing we granted review to decide the “point at which [a

term-of-years] sentence converts into the functional equivalent of a life sentence[,]”

Dissenting Opinion at 4, charges us with going “beyond the issues presented for review[.]”

Id. at 8. Respectfully, the dissent’s premise is faulty. The question we actually agreed to

consider, as phrased by appellant, is whether “a sentence of 50 years to life imposed

upon a juvenile constitute[s] a de facto life sentence requiring the sentencing court, as

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sentencing court to impose a life-without-parole sentence on a juvenile homicide offender

is circumscribed only to the extent set forth in 42 Pa.C.S. §9721(b) and 18 Pa.C.S.

mandated by this Court in [Batts II, to] first find permanent incorrigibility,

irreparable corruption or irretrievable depravity beyond a reasonable doubt.”

Felder, 187 A.3d 909 (emphasis added). As appellant’s claim is expressly tethered to our

decision in Batts II, the dissent’s argument we have improperly “inject[ed] consideration

of [that] case” into our analysis, is untenable. Dissenting Opinion at 8-9.

In the alternative, the dissent says we should discontinue this case on the basis that “the

analysis is not substantially prompted, or supported, by the parties’ arguments.”

Dissenting Opinion at 6. Although the dissent acknowledges we afforded the parties an

opportunity to file supplemental briefs addressing Jones, it implies this was insufficient

“because our mandate to the parties for additional briefing did not mention Batts II[.]” Id.

at 7. Again, this argument lacks any purchase since it is based on the dissent’s truncated

reading of the issue before us. Appellant baked consideration of Batts II directly into the

question presented, and our supplemental briefing order instructed the parties to brief

Jones’s “impact on the issue presented[.]” Order, 6/22/2021. Thus, the implication we

are somehow acting unilaterally or without input from the parties, is not well taken.

At bottom, the issue we must decide, as framed by appellant, is whether he is entitled to

relief under Batts II. Answering that question necessarily requires us to re-evaluate Batts

II under Jones, which, the dissent concedes, “changed everything.” Dissenting Opinion

at 5. That the parties have refused to provide us with a fair appraisal of the High Court’s

intervening, binding decision is not a proper reason to dismiss the appeal. Cf. generally

Commonwealth v. Brown, 196 A.3d 130, 149 (Pa. 2018) (“[I]f the ‘power’ of a court

amounts to nothing more than the power to do exactly what the parties tell it to do, simply

because they said so and without any actual merits review, it is not judicial power at all.

It is a restriction on power.”) (internal quotations and citation omitted; emphasis in

original). Nor does the dissent’s assertion of mootness warrant dismissal. Even if we

agreed with that characterization (we do not), this case would almost surely qualify for an

exception. See, e.g., Pap’s A.M. v. City of Erie, 812 A.2d 591, 600-01 (Pa. 2002) (alluding

to the great-public-importance exception to the mootness doctrine, particularly in the face

of a material lack of clarity in governing law). We crafted Batts II, so the responsibility

naturally falls to us to clarify its viability following new governing federal law — and to do

so with haste. Contrary to the dissent’s protestations, we respectfully believe the present

case is a proper vehicle for providing that clarification.

[J-53-2019] - 20

§1102.1, and by Miller’s command to “consider the mitigating qualities of youth.” Miller,

567 U.S. at 476 (internal quotations and citation omitted).15

We turn, finally, to the purported de facto life sentence before us, and we again

find that Jones controls. To put it simply, even if a 50-years-to-life sentence amounts to

a de facto life sentence, “there is no Miller problem here.” United States v. Grant, 9 F.4th

186, 197 (3rd Cir. 2021) (en banc). This is because Miller’s bar on mandatory life-without-

parole sentencing regimes “is a prophylactic that entitles a juvenile homicide offender to

a certain sentencing process, but not a particular sentencing outcome[.]” Id. at 193.

Indeed, permanent incorrigibility is “not an eligibility criterion akin to sanity or a lack of

intellectual disability[,]” rather it is “a sentencing factor akin to a mitigating circumstance.”

Jones, 141 S.Ct. at 1315. For that reason, Miller “mandated only that a sentencer follow

a certain process — considering an offender’s youth and attendant characteristics —

before imposing a life-without-parole sentence.” Id. at 1311 (internal quotations and

citations omitted); see also Grant, 9 F.4th at 200 (“What matters for Miller purposes is

whether the sentencer considered a juvenile homicide offender’s youth and attendant

characteristics before sentencing him or her to [life without parole].”).

It logically and necessarily follows that if a discretionary sentencing scheme is

constitutionally sufficient to permit the imposition of a life-without-parole sentence on a

juvenile homicide offender, so too can a court impose a sentence that is something less

than life without parole. This includes a term-of-years sentence that may amount to a de

15 We recognize again that Section 1102.1 applies only to those juveniles “convicted after

June 24, 2012.” 18 Pa.C.S. §1102.1(a). In Batts II, we held that “for purposes of

uniformity[,]” courts should examine the Section 1102.1(d) factors “regardless of whether

the juvenile was convicted pre- or post-Miller.” Batts II, 163 A.3d at 455 n.23. Although

this directive did “not result from a review of the constitutionality of the statute[,]” we saw

no problem with instructing sentencing courts “to use the new legislative provision as

guidance without making it mandatory.” Id. at 458 n.25. We likewise see no problem with

reaffirming this non-binding requirement even after Jones.

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facto life sentence. Stated differently, as long as the sentence was the product of a

discretionary sentencing system that included consideration of the juvenile’s youth, the

Eighth Amendment is satisfied.

Here, the record makes clear that appellant received the constitutionally required

procedure guaranteed by Miller and the Eighth Amendment. In resentencing appellant,

the court had before it the parties’ presentence memoranda, psychological reports, school

records, and victim impact statements. It heard testimony from appellant and his mother

and read a letter from his cousin. It considered the parties’ arguments and evidentiary

presentations made at the resentencing hearing. It reviewed “lengthy contemporaneous

notes taken during both the trial of this case and during the initial sentencing proceeding.”

N.T. 10/24/2014 at 51. And it contemplated, “on the record, every one of the twelve

factors . . . enumerated in Miller and Batts [I.]” Sentencing Court Op., 2/18/2016, at 5.

This process was more than enough to meet the constitutional standard. See Jones, 141

S.Ct. at 1322 (“The resentencing in Jones’s cases complied with [Miller] because the

sentence was not mandatory and the trial judge had discretion to impose a lesser

punishment in light of Jones’s youth.”).

IV. Conclusion

Though we might prefer the more expansive view of Miller as seen through the

lens of Montgomery, we cannot ignore that Jones’s interpretation is controlling as a matter

of Eighth Amendment law. And because that decision abrogates our foundational

understanding in Batts II that a juvenile homicide offender cannot constitutionally receive

a sentence of life without parole unless he or she is proven to be permanently incorrigible,

the procedural protections we adopted in that case to ensure that result are no longer

tenable as an exercise of this Court’s power of judicial administration. Therefore, when

sentencing juvenile homicide offenders from this point forward, sentencing courts are

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required to consider only the relevant sentencing statutes, which will guarantee that the

sentencer considers the juvenile’s youth and attendant characteristics as required by

Miller. So long as the sentence imposed is discretionary and takes into account the

offender’s youth, even if it amounts to a de facto life sentence, Miller is not violated.

Because the sentencing court in the present case followed this procedure, we affirm.16

Chief Justice Baer and Justices Todd and Mundy join the opinion.

Justice Donohue files a concurring opinion in which Justice Todd joins.

Justice Wecht files a dissenting opinion.

Former Justice Saylor did not participate in the decision of this matter.

16 The upshot is that an overwhelming majority of juvenile homicide offenders in this

Commonwealth were resentenced long before the High Court’s decision in Jones. See

Pennsylvania Department of Corrections, Juvenile Lifers Information,

https://www.cor.pa.gov/About%20Us/Initiatives/Pages/Juvenile-Lifers-Information.aspx

(last visited Feb. 22, 2022) (indicating that out of a population of 521 juvenile homicide

offenders, 474 have been resentenced, including 271 individuals who have been released

on parole). Nothing in Jones or this opinion should be interpreted as calling these

finalized sentences into doubt.

We also note that Jones did not resolve whether a juvenile homicide offender may raise

a viable as-applied Eighth Amendment claim challenging the disproportionality of a given

sentence. See Jones, 141 S.Ct. at 1322 (“this case does not properly present — and

thus we do not consider — any as-applied Eighth Amendment claim of disproportionality

regarding Jones’s sentence.”), citing Harmelin v. Michigan, 501 U.S. 957, 996–1009

(1991) (Kennedy, J., concurring in part and concurring in judgment). As well, we stress

that Jones “does not preclude the States from imposing additional sentencing limits in

cases involving defendants under 18 convicted of murder.” Id. at 1323. Our General

Assembly remains free at any time to legislatively reimpose the Batts II procedures, or to

enact any other appropriate measures. We merely conclude that we lack the power to

impose such requirements because they are not constitutionally required.

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