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Commonwealth v. White

Superior Court of Pennsylvania

July 20, 2018

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
NICHOLAS ANDREW WHITE, Appellant

          Appeal from the Judgment of Sentence October 18, 2017 in the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0011435-1998

          BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER, [*] JJ.

          OPINION

          STRASSBURGER, J.

         Nicholas Andrew White (Appellant) appeals from the October 18, 2017 judgment of sentence imposed following a resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012), [1] and Commonwealth v. Batts (Batts II), 163 A.3d 410 (Pa. 2017). We affirm.

         On July 31, 1998, Appellant, then 17 years old, shot and killed his father and disposed of his body. Following a jury trial, Appellant was convicted of first-degree murder and abuse of a corpse. On September 28, 1999, the trial court sentenced Appellant to life imprisonment without parole (LWOP) for first-degree murder, and two to four months' imprisonment for abuse of a corpse. This Court affirmed Appellant's judgment of sentence on September 26, 2000. Commonwealth v. White, 79 WDA 2000 (Pa. Super. 2000) (unpublished memorandum). Appellant did not file a petition for allowance of appeal to our Supreme Court.

         On July 9, 2010, Appellant filed his first petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel was appointed and filed three amended petitions. In the second amended petition, Appellant relied on Miller to establish an exception to the PCRA's timeliness requirements. Second Amended PCRA Petition, 7/5/2012, at ¶ 6. The PCRA court stayed the proceedings pending our Supreme Court's decision in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), wherein our Supreme Court ultimately concluded that the holding in Miller did not apply retroactively to cases on collateral appeal. Accordingly, the PCRA court dismissed Appellant's petition as untimely filed. Appellant filed a notice of appeal to this Court, and we affirmed the PCRA court's order. Commonwealth v. White, 125 A.3d 450 (Pa. Super. 2015) (unpublished memorandum).

         Thereafter, the United States Supreme Court held that Miller applied retroactively, essentially overruling Cunningham. Montgomery v. Louisiana, ___ U.S.___, 136 S.Ct. 718 (2016). Following that decision, Appellant filed a second PCRA petition on March 7, 2016. The PCRA court appointed counsel, who filed an amended PCRA petition.

         On October 18, 2017, after a hearing, the PCRA court granted Appellant's PCRA petition and resentenced Appellant to 35-years-to-life imprisonment. Appellant filed a post-sentence motion on October 26, 2017, alleging that the PCRA court did not state on the record how it weighed the Miller factors. Further, Appellant contended the PCRA court impermissibly imposed a mandatory sentence pursuant to 18 Pa.C.S. § 1102.1, and, even if it did not impose the mandatory sentence, Appellant's sentence was excessive because "it does not give [Appellant], who has demonstrated rehabilitation, an individualized sentence with a meaningful opportunity for parole[.]" Appellant's Post-Sentence Motion, 10/26/2017, at ¶¶ 4, 9-12. The PCRA court denied Appellant's motion without a hearing, and this timely-filed notice of appeal followed.[2]

         On appeal, Appellant presents the following issues for our consideration.

A. Whether the [PCRA] court erred in not articulating its analysis of the Miller[] factors when sentencing [Appellant.]
B. Whether the [PCRA] court erred and abused its discretion by failing to consider evidence that [Appellant] had been rehabilitated while incarcerated, which resulted in an excessive sentence for a juvenile being sentenced pursuant to Miller[.]
C. Whether the [PCRA] court erred in applying the sentencing mandatory in 18 Pa.C.S. §[ ]1102.1 to [Appellant], in violation of due process and the prohibition against ex post facto laws[.]
D. Whether the [PCRA] court erred in impos[]ing a sentence that does not offer a meaningful chance of parole for [Appellant], a juvenile offender [who] has not been found to be incapable of rehabilitation, said "meaningful chance of parole" being a requirement of Miller[.]

         Appellant's Brief at 5-6 (unnecessary capitalization and suggested answers omitted; reordered for ease of disposition). Appellant's first two claims implicate the discretionary aspects of his sentence.

         It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal.

Before [this Court may] reach the merits of [a challenge to the discretionary aspects of a sentence], we must engage in a four part analysis to determine: (1) whether the appeal [was timely-filed]; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.... [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations omitted).

         Appellant has satisfied the first two requirements: he timely filed a notice of appeal and he sought reconsideration of his sentence in a post-sentence motion. However, Appellant has failed to comply with the requirements of Pa.R.A.P. 2119(f).[3] Nonetheless, because the Commonwealth has not objected, we will not find Appellant's discretionary-aspects-of-sentencing claims waived. See Commonwealth v. Brougher, 978 A.2d 373, ...


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