J-A07025-21
2021 PA Super 117
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH GERARD AULISIO :
:
Appellant : No. 230 MDA 2020
Appeal from the Judgment of Sentence Entered December 18, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001386-1981
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY DUBOW, J.: FILED: JUNE 8, 2021
Appellant Joseph Gerard Aulisio appeals from the Judgment of Sentence
imposed at a resentencing hearing following the U.S. Supreme Court decisions
in Miller and Montgomery.1 He challenges the court’s imposition of two
consecutive terms of incarceration of thirty years to life, arguing that the
aggregate minimum term of sixty years is a de facto life sentence. After
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Miller v. Alabama, 567 U.S. 460 (2012) (holding that the imposition of a
sentence of life without parole (“LWOP”) on juvenile offenders violates the
Eighth Amendment of the Constitution); Montgomery v. Louisiana,
577
U.S. 190 (2016) (holding Miller applies retroactively). See also
Commonwealth v. Batts,
163 A.3d 410, 452 (Pa. 2017) (“Batts II”)
(concluding that “in Pennsylvania, a faithful application of the holding
in Miller, as clarified in Montgomery, requires the creation of a presumption
against sentencing a juvenile offender to [LWOP].”).
J-A07025-21
careful review, and pursuant to Commonwealth v. Foust,
180 A.3d 416 (Pa.
Super. 2018), we affirm.
In 1987, Appellant received two consecutive sentences of mandatory
life without parole (“LWOP”) after a jury convicted him of two counts of First-
Degree Murder.2 Appellant was fifteen and a half years old when he
committed the crimes.
Following the United States Supreme Court’s decisions in Miller and
Montgomery, the PCRA court granted Appellant’s post-conviction collateral
request for resentencing. Prior to re-sentencing, Appellant underwent a
mental health examination by the Commonwealth’s expert, Dr. Steven
Samuel. Dr. Samuel authored a report opining that Appellant was amenable
to rehabilitation. As a result, the Commonwealth did not request a sentence
of LWOP. The court ordered a pre-sentence investigation.
On December 18, 2019, the court held a resentencing hearing at which
several prison guards, mental health counselors employed by the prison,
Appellant’s brother, and Appellant himself testified. In addition, an art
____________________________________________
2 Evidence showed that in 1981, Appellant shot Cheryl and Christopher
Ziemba, ages 4 and 8 respectively, at close range with a shotgun as they and
Appellant played in an unfinished house owned by Appellant’s father in Old
Forge. Appellant then drove the children’s bodies wrapped in a blanket and a
carpet to an old strip mine several miles away and left them at the bottom of
a ravine. Appellant returned to the home and cleaned up the crime scene.
Appellant then participated in the extensive two-day community search for
the children that ensued. Firefighters found the children’s bodies. The jury
found Appellant guilty of murder and kidnapping and he was originally
sentenced to death. Six years later, the kidnapping conviction was vacated,
and Appellant was resentenced to two counts of LWOP.
-2-
J-A07025-21
professor who had mentored Appellant from outside prison testified regarding
Appellant’s artwork. Immediately following the hearing, the court imposed
two consecutive terms of thirty years’ to life imprisonment, stating on the
record its reasons for imposing consecutive rather than concurrent sentences.
Appellant filed a Post-Sentence Motion, which the court denied.
Appellant filed a timely Notice of Appeal. Appellant and the sentencing
court complied with Pa.R.A.P. 1925.
Appellant presents the following Statement of Questions Involved:
1. Is it unconstitutional and illegal to impose individual sentences
of thirty (30) years to life and, when aggregated, sixty (60)
years to life, in either case a de facto sentence of life
imprisonment, absent proof beyond a reasonable doubt and a
finding that the juvenile is permanently incorrigible, irreparably
corrupt and depraved, and beyond rehabilitation?
a. Is an abuse of discretion present where there does not exist
a finding that the Appellant is permanently incorrigible?
Appellant’s Br. at 3.
Legality of Sentence
Appellant challenges the legality of his sentence. We review a challenge
to the legality of a sentence de novo and our scope is plenary. Foust, 180
A.3d at 422.
Appellant contends his aggregate minimum sentence of 60 years’
incarceration is a de facto life sentence and, thus, violative of Miller, as
interpreted by Batts II, because the court did not find that he is not amenable
-3-
J-A07025-21
to rehabilitation. Based on precedential case law, we conclude Appellant’s
legality challenge warrants no relief.3
In Miller, the U.S. Supreme Court held that due to the vagaries of
youth, a juvenile convicted of murder carries a presumption of rehabilitation
and before imposing a sentence of life on convicted juveniles, courts must
consider the “hallmarks” of youth, including “immaturity, impetuosity, and the
failure to appreciate risks and consequences.” 567 U.S. at 477. In addition,
the sentencer must consider the juvenile’s home and family environment, the
circumstances of the homicide and the offender’s participation in the crime,
and the juvenile’s amenity to rehabilitation.
Id. Together, these factors are
referred to as the “Miller factors.”
However, in Commonwealth v. White, 193 A.3d 977, 983 (Pa. Super.
2018), this Court held that “a sentencing court must consider
[the] Miller factors only in cases where the Commonwealth is attempting to
meet its burden of overcoming the presumption against juvenile LWOP
sentences.” Thus, where the Commonwealth does not seek a LWOP sentence,
____________________________________________
3 We are mindful that the Pennsylvania Supreme Court is currently reviewing
whether a sentence of 50 years to life imposed upon a juvenile constitutes “a
de facto life sentence requiring the sentencing court, as mandated [in 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). Cf. Jones v. Mississippi,
141 S.Ct. 1307,
1321-23 (2021) (holding that Miller does not require a specific finding of
incorrigibility and lack of amenability to rehabilitation but states may continue
to require such explicit findings).
-4-
J-A07025-21
the issue of whether the court made a specific finding of an inability to be
rehabilitated is moot. Id.
In Commonwealth v. Foust, supra, this Court addressed, as a matter
of first impression, the same claim Appellant asserts here—that the imposition
of two consecutive terms of 30 years’ to life imprisonment constituted an
unconstitutional de facto life sentence in violation of
Miller, supra. After
thoroughly reviewing the development of federal and state juvenile sentencing
law, the Foust Court concluded that Pennsylvania courts must consider
sentences individually and not in the aggregate to determine their legality with
respect to the principles enunciated in Miller. The Court observed:
Appellant asks us to declare unlawful the trial court's discretionary
determination to impose consecutive (but independently valid)
punishments for a double murder conviction under principles of
the Eighth Amendment. This position enjoys no support under
Pennsylvania law and runs contrary to decisions that have
previously addressed the claim . . . We reject Appellant's effort to
invalidate the legality of his sentence under principles traditionally
confined to discretionary sentencing review.
…
In our view, whether the aggregate or individual sentences control
for purposes of Miller is the most difficult question raised in this
appeal. We have scrutinized relevant Pennsylvania case law, prior
decisions of the Supreme Court of the United States, and
persuasive authority from other jurisdictions. Although we
acknowledge that there is ground for differing views, we believe
that we are on sound legal footing and consistent with
Pennsylvania law. Accordingly, we hold that we must consider the
individual sentences, not the aggregate, to determine if the trial
court imposed a term-of-years sentence which constitutes a de
facto LWOP sentence.
Foust, supra at 435, 437-38 (internal citation omitted).
-5-
J-A07025-21
The Foust Court then concluded that, because the relevant sentencing
statute provided that if the murders had been committed after June 24, 2012,
the sentence would have been 35 years to life for each crime, the fact that
the court imposed a minimum 30 years’ incarceration for each conviction did
not violate Miller. Further, the Court stated:
We explicitly decline to draw a bright line in this case delineating
what constitutes a de facto LWOP sentence and what constitutes
a constitutional term-of-years sentence . . . We similarly decline
to set forth factors that trial courts must consider when making
this determination, i.e., whether they must look to the life
expectancy of the population as a whole or a subset thereof and
whether the defendant must be given a chance at a meaningful
post-release life. We need not confront these difficult questions in
this case. Instead, we limit our holding to the facts of this case . .
. A sentence of 30 years to life imprisonment does not constitute
a de facto LWOP sentence which entitles a defendant to the
protections of Miller.
…
Appellant will be eligible for parole when he is in his seventies.
Although he may not live this long, he has a chance of being
released into society. It is within the trial court’s discretion to
conclude that an individual who viciously took the lives of two
innocent people is not entitled to be released into society at an
earlier age, even with the reduced culpability recognized in
Roper, Graham,[4] and Miller.
Id. at 438, 441 (internal citations omitted).
Foust is dispositive in the instant case. As in Foust, Appellant received
two thirty-year minimum sentences; like Foust, he will be eligible for release
when he is in his seventies. Because our current precedential case law holds
____________________________________________
4 Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida,
560 U.S.
48 (2010).
-6-
J-A07025-21
that a 30-year minimum sentence for a conviction of First-Degree Murder is
not a de facto life sentence, and because the Commonwealth did not seek a
sentence of LWOP, Appellant’s challenge to his aggregate sentence as a
violation of the protections of Miller garners no relief.
Discretionary Aspect of Sentence
Although not stated explicitly in his question presented, within his brief
Appellant argues that the court abused its discretion in imposing consecutive
sentences rather than concurrent sentences, asserting that the aggregate
sentence resulted in a term of incarceration which is contrary to the
fundamental norms which underlie the sentencing process and violated the
express provisions of the Sentencing Code. Appellant’s Br. at 22.
Long-standing precedent of this Court recognizes that 42 Pa.C.S. §
9721(a) affords the sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences being imposed at the same
time or to sentences already imposed. Commonwealth v. Marts, 889 A.2d
608, 612 (Pa. Super. 2005). An appellant is not entitled as a matter of right
to a review of the discretionary aspects of his sentence. Commonwealth v.
Patterson,
180 A.3d 1217, 1232 (Pa. Super. 2018). Rather, an appellant
must invoke this Court's jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
-7-
J-A07025-21
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted).
Here, Appellant filed a timely Notice of Appeal, preserved the issue of
sentence excessiveness in a Motion for Reconsideration, and included a
statement pursuant to Pa.R.A.P. 2119(f). We thus consider whether Appellant
has raised a substantial question.
“[T]he imposition of consecutive, rather than concurrent, sentences may
raise a substantial question in only the most extreme circumstances[.]”
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citation
omitted). Here, Appellant avers that the imposition of consecutive sentences
violated the express provisions of the Sentencing Code and that the aggregate
sentence of sixty years’ incarceration is contrary to the fundamental norms
which underlie the sentencing process. Appellant’s Br. at 22. We conclude
this averment presents a substantial question. Commonwealth v. Dodge,
77 A.3d 1263, 1271-73 (Pa. Super. 2013). We, thus, proceed to determine
whether the trial court abused its discretion in imposing consecutive rather
than concurrent sentences.
In reviewing a challenge to the discretionary aspects of sentencing, we
evaluate the court's decision under an abuse of discretion standard.
An abuse of discretion is more than a mere error of judgment;
thus, a sentencing court will not have abused its discretion unless
the record discloses that the judgment exercised was manifestly
-8-
J-A07025-21
unreasonable, or the result of partiality, prejudice, bias or ill-will.
In more expansive terms, our Court recently offered: An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Moury, 992 A.2d at 169–170(citation and brackets omitted).
Additionally, “this Court's review of the discretionary aspects of a
sentence is confined by the statutory mandates of 42 Pa.C.S. §
9781(c) and (d).” Dodge, 77 A.3d at at 1274 (citation omitted). Section
9781 provides:
(c) Determination on appeal.--The appellate court shall vacate the
sentence and remand the case to the sentencing court with instructions
if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable;
or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
(d) Review of record.--In reviewing the record the appellate
court shall have regard for:
-9-
J-A07025-21
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(c) and (d).
Appellant avers that the court “heavily relied on the gruesomeness of
the crime” while disregarding Dr. Samuel’s report and the testimony given in
1981 by a psychologist during Appellant’s decertification hearing. Appellant’s
Br. at 35-36. He also asserts that the sentencing “court further erred when
placing unreasonable weight on the nine[ ] misconducts that [Appellant] had
acquired over thirty-eight years of incarceration and the alleged threats
[Appellant made] that were not substantiated through the pursuit of
disciplinary action against [Appellant.]” Id. at 36, 38.
Our review of the resentencing transcript and the court’s Rule 1925(a)
Opinion reveals that the court thoroughly reviewed the record, considered and
weighed all documents submitted for its consideration, including the PSI
report and each of Appellant’s mental health evaluations, heard and observed
the demeanor of all witnesses, and considered relevant case law before
imposing Appellant’s sentence. N.T. Sentencing, 11/18/19, at 215-25; Trial
Ct. Op., dated 8/20/20. The court acknowledged that Appellant was not
subject to a sentence of LWOP because, after receiving Dr. Samuel’s expert
- 10 -
J-A07025-21
report, the Commonwealth had not requested it. N.T. Sentencing, at 215. The
court noted that it, nonetheless, considered the Miller factors and 18 Pa.C.S.
§ 1102.1.5 N.T. Sentencing, at 216.
As Appellant notes, the court spoke about the heinous nature of the
murders, as well as Appellant’s actions and behavior after the crimes and the
significant impact of the crimes on the victims, their families, and the
community of Old Forge. See, e.g., id., at 216-218, 222-223. However, the
court also acknowledged Appellant’s youth when he committed the crimes,
the mental health examinations conducted in 1981 showing, inter alia,
Appellant’s below-average IQ, and the testimony regarding Appellant’s
difficult childhood and his father’s abusive conduct which caused significant
family dysfunction. Id., at 219-20. The court also found that Appellant’s
artwork created in prison demonstrated that Appellant had taken “steps in the
direction of rehabilitation.” Id., at 220-21.
In considering the safety of the public if Appellant were to be released,
the court credited the testimony of three corrections officers who stated that
within 4 years of the resentencing hearing, Appellant had threatened to hurt
them or their families upon his release. See, id., at 216-219. The court also
noted the testimony of an attorney who began researching Appellant’s case in
____________________________________________
5 18 Pa.C.S. § 1102.1(a)(1) provides that a person convicted after June 24,
2012, of first-degree murder who committed the crime while between 15 and
18 years old must be sentenced to a minimum term of 35 years’ incarceration.
The court sentenced Appellant to minimums of 30 years.
- 11 -
J-A07025-21
1988 intending to write a book who testified that in 1992, he received a
threatening letter from Appellant at his home address, an address he never
gave Appellant. Id.
Significantly, the court stated that it imposed consecutive sentences
because it saw no “true remorse here. And any remorse that was expressed,
I see as manipulation” for which “there was precedent in the record and prison
records [showing] that there was outright manipulation that took place within
the prison and as reported in the prison records.” Id. at 224. The court also
emphasized that Appellant committed two separate premeditated murders
and stated it “cannot permit volume discounts when it comes to first degree
murder.” Id. at 224.
Based on our review of the record, precedential case law, and our
standard of review, we are unable to conclude that the court abused its
discretion in imposing consecutive rather than concurrent sentences.
Accordingly, we affirm.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/08/2021
- 12 -
