J-A05009-21
2021 PA Super 132
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE MCGRATH :
:
Appellant : No. 554 EDA 2020
Appeal from the Judgment of Sentence Entered December 17, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006508-1986
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
OPINION BY OLSON, J.: FILED JUNE 28, 2021
Appellant, Jesse McGrath, appeals from the judgment of sentence
entered on December 17, 2019 following resentencing. We affirm.
As set forth by the trial court, the facts and procedural history of this
case are as follows:
On September 21, 1986[,] Appellant raped, stabbed, and robbed
[an 84-year-old woman] in her home in Clifton Heights, Delaware
County, Pennsylvania. [The victim] lived through the brutal attack
but died [13] days later from the injuries she sustained. [The
events preceding the attack were as follows. After] cutting the
grass of [the victim’s] next door neighbor[, Appellant] knocked on
[the victim’s] door and asked to borrow lawn trimmers. Shortly
after, Appellant returned the trimmers to [the victim] who
permitted Appellant to come inside [her home] for a drink.
Following a few minutes of small talk, Appellant grabbed a knife
from [the victim’s] kitchen and forced her upstairs into her
bedroom. Appellant raped [the victim] and stabbed her [six]
times in her torso, perforating her liver and pancreas and
contributing to her ultimate demise; Appellant also punctured [the
victim’s] left eye. Following the attack, [the victim] was awake
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* Former Justice specially assigned to the Superior Court.
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and alert, and [she] provided to the police statements about the
attack; in a recorded statement [the victim] provided details
about the rape and stabbing and her attempts to get Appellant to
stop. Appellant was [16] years old when he committed the
criminal offenses that led to [the victim’s death], and he was
charged with murder of the first degree, robbery, rape, and
related charges. [At the time charges were filed, Appellant had
five pending] petitions in juvenile court, and all were dismissed
following the institution of the 1986 criminal proceedings for the
murder of [the victim in this case]. Initially, the Commonwealth
sought imposition of the death penalty. On June 22, 1987[,]
following jury selection but before testimony commenced[,]
Appellant tendered a plea of guilty before the Honorable William
R. Toal to the charge of murder of the first degree and robbery as
a felony of the first degree. As part of the plea agreement, the
Commonwealth agreed to not seek imposition of the death
penalty. Immediately following the entry of the plea, Judge Toal
sentenced Appellant to serve a term of life without parole for the
[first-degree murder] conviction. A review of the record reveals
Appellant did not file post-sentence motions or appeal his 1987
[judgment of] sentence.
The record also discloses Appellant suffered from [a] learning and
intellectual disability, schizophrenia, borderline mental
retardation, possible ADHD, alcohol abuse, polysubstance abuse,
and Appellant was immature and impulsive. Appellant admittedly
inhaled gasoline fumes and sprayed insecticide into his mouth,
and Appellant was fired from [previous employment] because he
[consumed alcohol] on the job. Appellant's I.Q. measures low as
evidenced for example by 1977, 1981, and 1987 evaluations
placing Appellant in the borderline range of mental retardation.
Appellant twice repeated grade levels in school[ and attended the
Vanguard School for a time. Appellant dropped out of school in
ninth grade and did not finish high school]. Appellant was raised
in a family with a parent and five siblings who suffered from
untreated mental health and intellectual disabilities, including
schizophrenia, depression, and paranoia. At the time of the
criminal incident, Appellant lived in Clifton Heights, Pennsylvania
with his family, Appellant's parents were married, and Appellant
maintained good relationships with his family members.
In June 2012, the United States Supreme Court held [that
mandatory] sentences of life without parole for juveniles [were
unconstitutional]. See Miller v. Alabama, 567 U.S. 460 (2012).
In January 2016, the United States Supreme Court held Miller
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applies retroactively to cases decided prior to the 2012 court
ruling. See Montgomery v. Louisiana, 577 U.S. [190] (2016).
In June 2017[,] the Supreme Court of Pennsylvania held Miller
and Montgomery require procedural safeguards to ensure that
life without parole sentences were meted out only to "the rarest
of juvenile offenders" whose crimes reflected "permanent
incorrigibility," "irreparable corruption" and "irretrievable
depravity" and recognized a presumption against the imposition
of a sentence of life without parole for a juvenile offender.
[Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017)(“Batts II”),
abrogated by, Jones v. Mississippi, 141 S. Ct. 1307 (2021)1.]
To rebut this presumption, the Commonwealth bears the burden
of proving beyond a reasonable doubt the juvenile offender
incapable of rehabilitation. [Id.] Additionally, the Pennsylvania
General Assembly passed 18 Pa.C.S.[A.] § 1102.1 concerning
sentencing for juveniles convicted of first[-degree] and second[-
]degree murder after June 24, 2012. See 18 Pa.C.S.[A.] §
1102.1.
…
On October 15, 2014 Appellant filed a pro se [] petition [pursuant
to the Post Conviction Relief Act (PCRA)] and on March 18, 2016
a counseled PCRA petition was filed alleging his sentence [wa]s
illegal under Montgomery and Miller. On January 12, 2017[,]
an order appointing [new counsel] was entered. Following a series
of status conferences and determination of issues related to
Appellant's resentencing, on November 15, 2019[,] a sentencing
hearing was held before [the trial] court. On December 17, 2019[,
the trial] court entered an order sentencing Appellant to
confinement for a minimum term of 48 years to a maximum of
life. On December 20, 2019[, appellate counsel] was appointed
to represent Appellant in further proceedings. On December 26,
2019, Appellant filed a [m]otion for [r]econsideration of
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1 Batts II was recently abrogated by the United States Supreme Court in
Jones v. Mississippi, 141 S. Ct. 1307 (2021). The Jones Court confirmed
that mandatory sentences of life without the possibility for juvenile offenders
violate the cruel and unusual punishment clause of the Eighth Amendment of
the United States Constitution, but held that sentencing schemes which allow
the discretionary imposition of life sentences pass constitutional muster and
need not require a separate factual finding of permanent incorrigibility before
doing so.
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[s]entence. On January 14, 2020[,] Appellant's motion was
denied.
Trial Court Opinion, 6/3/2020, at 1-5 (record citations and footnote omitted).
This timely appeal resulted.2
Appellant presents the following issues for our review:
1. Is it unconstitutional to sentence a juvenile to [48] years to
life, a de facto sentence of life imprisonment without the
possibility of parole, despite a finding that the juvenile was not
permanently incorrigible, irreparably corrupt[,] or irretrievably
depraved?
2. Are the standards for determining what constitutes a de facto
life sentence different for juveniles with severe intellectual and
mental health disabilities?
Appellant’s Brief at 3.
In his first issue presented, Appellant argues his “48 years to life
sentence creates a de facto life without parole sentence that unconstitutionally
deprives him of a meaningful opportunity for parole as he is not one of the
rare and uncommon juveniles who is irreparably corrupt.” Id. at 10-11.
Citing decisions from California, Connecticut, and Iowa, Appellant contends
“[t]his Court has not yet determined what constitutes a de facto life sentence.
Other jurisdictions, however, have considered such lengthy sentences.” Id.
at 11-16. Appellant maintains:
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2 Appellant filed a notice of appeal on February 3, 2020. On March 2, 2020,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. On June 3, 2020, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a).
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[He] will be 65 [years old] before he is eligible for parole. The
statistics and research show the average life expectancy of a
[juvenile homicide offender] of normal health and intelligence to
be 50.6 years. Combine the decreased life expectance with the
many physical and mental health issues he has and [Appellant]
will die in prison, never having the opportunity for meaningful
release.
Id. at 16. Moreover, Appellant argues “[t]he resentencing court made no
finding that [Appellant] was irreparably corrupt, permanently incorrigible, or
irretrievably depraved” as required when imposing a de facto life sentence
without the possibility of parole. Id. at 18.
We have previously determined that a claim that the trial court imposed
an impermissible de facto life sentence in violation of Miller constitutes a
challenge to the legality of sentence. See Commonwealth v. Clary, 226
A.3d 571, 580 (Pa. Super. 2020). This Court has stated:
A claim challenging a sentencing court's legal authority to impose
a particular sentence presents a question regarding the legality of
the sentence. The determination as to whether a trial court
imposed an illegal sentence is a question of law; an appellate
court's standard of review in cases dealing with questions of law
is [de novo and our scope of review is plenary].
A trial court may not impose a term-of-years sentence on a
juvenile convicted of homicide that equates to a de facto [life
without parole (“LWOP”)] sentence unless it finds, beyond a
reasonable doubt, that the juvenile is incapable of rehabilitation.
Id. at 580–581 (internal citations omitted).
We further explained:
In Miller, the U.S. Supreme Court held that it was
unconstitutional to impose mandatory LWOP sentences for
defendants who committed their crimes while under the age of 18.
Miller, 567 U.S. at 465[.] The Court nonetheless opined that a
LWOP sentence is still a viable sentence for “the rare juvenile
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offender whose crime reflects irreparable corruption,” and a judge
or jury must consider individualized characteristics and
circumstances, including an offender's youth and attendant
characteristics, before imposing this harshest possible penalty.
Id. at 479-480, 483, 489[.] In Montgomery, the U.S. Supreme
Court held that its decision in Miller, supra, applies retroactively.
Montgomery, 136 S.Ct. at 732. The Court “expressly left it to
the States to determine how the holding in Miller was to be
implemented in state court proceedings.” Commonwealth v.
Batts, 163 A.3d 410, 432 (Pa. 2017) (“Batts II”) (citation
omitted).
In Batts II, our Supreme Court concluded “that to effectuate the
mandate of Miller and Montgomery,” it would provide a
procedural safeguard to ensure that LWOP sentences “are meted
out only to ‘the rarest of juvenile offenders’ whose crimes reflect
‘permanent incorrigibility’” by recognizing a presumption against
the imposition of a LWOP sentence for a juvenile offender. Batts
II, 163 A.3d at 415-16. Therefore, if the Commonwealth seeks a
LWOP sentence for a juvenile offender, it must prove beyond a
reasonable doubt that the offender “exhibits such irretrievable
depravity that rehabilitation is impossible.” Id. at 455 (quoting
Montgomery, supra at 733) (emphasis omitted). If the
Commonwealth satisfies its burden of proof, the sentencing court
has discretion to impose a LWOP sentence upon the juvenile
offender. Batts II, supra at 460.
When the Commonwealth requests a sentence of LWOP, the
sentencing court must consider the Miller and Section
1102.1(d)[fn A] factors on the record, before imposing a sentence.
Commonwealth v. Machicote, 206 A.3d 1110, 1120 (Pa.
2019); Batts II, supra at 459-60. If the court imposes the
requested LWOP sentence, it “must find that the juvenile offender
is permanently incorrigible and that rehabilitation would be
impossible.” Batts II, supra at 459.[3]
However, if [] the court sentences “a juvenile offender to a life
with the possibility of parole, traditional sentencing considerations
apply,” and the court considers the factors set forth in 42
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3 As mentioned previously, Batts II was recently abrogated by Jones. The
Jones Court held that a separate factual finding of permanent incorrigibility
is not necessary before imposing a discretionary life sentence for juvenile
offenders. See Jones, 141 S. Ct. at 1318–1319.
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Pa.C.S.A. § 9721(b); Batts II, supra at 460 (citation omitted[)].
Section 9721(b) provides that the court shall fashion a sentence
“that is consistent with 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.”
42 Pa.C.S.A. § 9721(b).
Thus, where [] the sentencing court rules in a defendant's favor
by declining the Commonwealth's request to sentence the
appellant to LWOP, on appeal, we need not review whether the
court properly considered the Miller factors. Rather, we review
the appellant's sentence as we would any other sentence imposed
pursuant to Section 9721(b). See Batts II, supra at 460.
[fn A] [….T]he sentencing court is required to consider and make
findings on the record related to the following factors:
(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.
(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.
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(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).
Id. at 577–578 (original brackets omitted).
Additionally, we have opined:
This [C]ourt has distinguished between [] sentences which
constitute de facto LWOP sentences and those that do not. [See
Commonwealth v. Foust, 180 A.3d 416, 438 (Pa. Super.
2018)].
In Foust, this Court concluded that a 150–year sentence is a de
facto LWOP sentence and a 30 years' to life sentence does not
constitute a de facto LWOP sentence. Id.
For sentences that fall between the clearly constitutional and
unconstitutional parameters, we have concluded that a sentence
is not a de facto LWOP sentence where there is “some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation.” Commonwealth v. Bebout, 186 A.3d 462, 467
(Pa. Super. 2018) (citation omitted). Thus, “it must at least be
plausible that one could survive to the minimum release date with
some consequential likelihood that a non-trivial amount of time at
liberty awaits.” Id. at 468 (emphasis omitted). If there is no
meaningful opportunity for parole, the sentence constitutes a de
facto LWOP sentence. Id. We, therefore[,] consider the age the
appellant would be eligible for parole to determine whether the
new sentence is the functional equivalent of LWOP. Id.
In Commonwealth v. Anderson, 224 A.3d 40, 47-48 (Pa.
Super. 2019), a post-Miller case, the appellant received a
sentence of 50 years' to life imprisonment upon resentencing.
[See Anderson,] 224 A.3d at 41-42. Because Anderson was 17
years old at the time he began serving his sentence, he would,
thus, be eligible for parole at age 67. Id. at 46-47. We, therefore,
concluded that his sentence was not the functional equivalent of
LWOP. Id. at 47-48[;] see also
Bebout, supra at 468
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(concluding the appellant's 45 years' to life sentence in which he
would be eligible for parole at the age of 60 was not de facto
LWOP); Commonwealth v. Lekka, 210 A.3d 343, 357-358 (Pa.
Super. 2019) (concluding that because the appellant's term of 45
years' to life imprisonment rendered him eligible for parole at the
age of 62, it was not a de facto LWOP sentence); Foust, supra
at 438, 441 (concluding that the appellant's two consecutive 30
year to life sentences were not a de facto LWOP sentence and
noting that even considering [the a]ppellant's aggregate
sentence, he had a chance of being released into society in his
70s).
Id. at 580-582 (ultimately concluding that, in view of Clary’s eligibility for
parole for his first-degree murder conviction at age 58, he had a meaningful
opportunity to obtain release and his sentence could not be considered de
facto life without the possibility parole).
Here, the trial court imposed a total sentence of 48 years to life
imprisonment for Appellant’s first-degree murder conviction. The trial court,
recognizing that Appellant will be 65 years old when he becomes eligible for
parole, determined that its sentence, therefore, did not constitute an illegal,
de facto life sentence. See Trial Court Opinion, 6/3/2020, at 22-24. We
agree.
Here, the trial court properly considered the age when Appellant would
be eligible for parole in order to determine that the new sentence was not the
functional equivalent of a de facto sentence of life without the possibility of
parole. Since Appellant will have a meaningful opportunity to obtain his
release, we agree with the trial court’s assessment that Appellant's sentence
cannot be considered de facto life without the possibility of parole. As such,
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we need not consider whether the trial court errantly omitted a finding of
permanent incorrigibility.4 Thus, Appellant's first claim is without merit.
In his second issue presented, Appellant relies principally upon Atkins
v. Virginia, 536 U.S. 304 (2002) wherein the United States Supreme Court
declared it unconstitutional to impose the death penalty upon a person with
intellectual disabilities. Citing Atkins, Appellant observes, “the Supreme
Court found that persons with [intellectual disabilities] have certain
impairments that render them less morally culpable for their crimes,” the
penological goals of retribution and deterrence are not met by imposing a de
facto life sentence on a person with intellectual disabilities, and, therefore,
similar to the death penalty, a de facto life sentence for a person with
intellectual disabilities should be held unconstitutional. See Appellant’s Brief
at 20-22. In the alternative, Appellant contends that de facto life sentences
imposed for juveniles with intellectual disabilities be subject to “a higher level
of scrutiny.” Id. at 22.
Initially, we note that in his post-trial motion for reconsideration,
Appellant argued generally that his sentence amounted to a de facto life
sentence and that the trial court failed to consider his contention that his
life-expectancy was diminished in light of his physical and mental health.
____________________________________________
4 Regardless, the United States Supreme Court “has unequivocally stated
that a separate factual 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 1318–1319.
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Appellant also argued the trial court failed to consider his “adjustment to the
prison environment without considering a less restrictive environment that
could meet his medical and mental health needs and still protect the
community[,]” as well as, “the debilitating characteristics of [his] youth and
the nature of his mental and intellectual disabilities as a cause of the
underlying crime.” Motion for Reconsideration, 12/26/2019. In his counseled
Rule 1925(b) statement, Appellant asserted: 1) his sentence amounted to a
de facto life sentence considering his physical and mental health, and; 2) the
trial court failed to consider his adjustment to prison when imposing his
sentence.5 See Rule 1925(b) Statement, 3/25/2020 (“The [trial c]ourt's
sentence of 48 years to life constitutes de facto life without parole. […The trial
c]ourt placed undue weight on [Appellant’s] adjustment to the prison
environment and failed to consider a less restrictive environment that could
meet his medical and mental health needs and still protect the community.”).
However, Appellant never argued that Atkins was applicable or that the trial
court erred by failing to adhere to it. Generally, an appellant cannot present
a new legal theory, and this Court cannot review a new issue, for the first time
on appeal. See Commonwealth v. Golson, 189 A.3d 994, 1000 (Pa. Super.
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5 On appeal, Appellant abandons his argument that the trial court failed to
consider his adjustment to prison when imposing his sentence; thus, we find
that issue waived. See Commonwealth v. Perez,
93 A.3d 829, 838 (Pa.
2014) (the failure to develop an appellate argument with citations to
supporting authorities and the record is waived).
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2018) (“Generally, an appellant cannot raise new legal theories for the first
time on appeal.”); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Appellant, however, also contends that his newly imposed sentence is
unconstitutional by extension under Atkins. Such claim would implicate the
legality of sentence, which is subject to our sua sponte review. See
Commonwealth v. Coleman, 226 A.3d 598, 602 (Pa. Super. 2020) (“A
challenge to the legality of a particular sentence may be reviewed by any court
on direct appeal; it need not be preserved in the lower courts to be reviewable
and may even be raised by an appellate court sua sponte.”). As stated above,
the Atkins Court declared it unconstitutional to impose the death penalty
upon a person with intellectual disabilities. Herein, Appellant did not receive
the death penalty. Instead, Appellant urges this Court to extend the holding
in Atkins and conclude that a de facto life sentence for a person with
intellectual disabilities equates to a death sentence and should likewise be
held unconstitutional. As explained at length above, however, we reject
Appellant’s contention that he received a de facto life sentence. Moreover,
Appellant does not cite any legal authority (and our independent research has
not revealed any) to support his suggestion that he was entitled to additional
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judicial scrutiny because he suffered from mental disabilities.6 Simply put,
Appellant has not shown how his sentence runs afoul of the United States
Constitution or otherwise constitutes an illegal sentence for a person with
____________________________________________
6 Additionally, appellate challenges to the legality of a sentence are examined
under a de novo standard of review and a plenary scope of review. Contrary
to Appellant’s generalized and unspecific claim, there is no “higher” standard
of appellate review that can be undertaken.
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mental disabilities.7 For all of the foregoing reasons, we will not consider
Appellant’s second issue as presented.8
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7 The United States Supreme Court has held:
[A]ny homicide, and particularly a homicide committed by an
individual under 18, is a horrific tragedy for all involved and for all
affected. Determining the proper sentence in such a case raises
profound questions of morality and social policy. The States, not
the federal courts, make those broad moral and policy judgments
in the first instance when enacting their sentencing laws. And
state sentencing judges and juries then determine the proper
sentence in individual cases in light of the facts and circumstances
of the offense, and the background of the offender.
Under [the United States Supreme Court’s] precedents, [the
United States Supreme] Court's more limited role is to safeguard
the limits imposed by the Cruel and Unusual Punishments Clause
of the Eighth Amendment. The Court's precedents require a
discretionary sentencing procedure in a case [involving a juvenile
homicide offender]. […R]esentencing [] complie[s] with those
precedents [when] the sentence was not mandatory and the trial
judge had discretion to impose a lesser punishment in light of [the
offender’s] youth. Moreover, [] [the Court] do[es] not consider []
any as-applied Eighth Amendment claim of disproportionality
regarding Jones's sentence.
Importantly, like Miller and Montgomery, [the Court’s] holding
today does not preclude the States from imposing additional
sentencing limits in cases involving defendants under 18 convicted
of murder. States may categorically prohibit life without parole for
all offenders under 18. Or States may require sentencers to make
extra factual findings before sentencing an offender under 18 to
life without parole. Or States may direct sentencers to formally
explain on the record why a life-without-parole sentence is
appropriate notwithstanding the defendant's youth. States may
also establish rigorous proportionality or other substantive
appellate review of life-without-parole sentences. All of those
options, and others, remain available to the States. Indeed, many
States have recently adopted one or more of those reforms. But
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2021
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the U.S. Constitution, as [the Supreme] Court's precedents have
interpreted it, does not demand those particular policy
approaches.
Jones, 141 S. Ct. at 1322–1323 (internal citations omitted).
8 Appellant’s second issue is essentially an extension of his first issue.
Assuming Appellant’s second claim was properly before us as a challenge to
the discretionary aspects of his sentence alleging inadequate consideration of
his intellectual disabilities, we would additionally note that a juvenile’s mental
health is already an established, statutory sentencing factor in determining
the appropriate sentence for a juvenile homicide offender. Section 1102.1(d)
only states that mental health must be considered. The statute, however,
does not assign mental health more weight than the additional factors. Upon
review of the record, we conclude that the trial court complied with Section
1102.1(d). Here, Appellant retained a mental health mitigation expert, paid
by the Commonwealth, who provided the trial court with a mental health
report prior to resentencing. Prior to imposing sentence, the trial court noted
that it had “reviewed all the psychiatric and psychological reports and []
testimony[.]” N.T., 12/17/2019, at 4. In its sentencing order, the trial court
individually examined each of the Section 1102.1(d) factors in detail. The trial
court specifically considered Appellant’s mental health and intellectual
disabilities. See Sentencing Order, 12/17/2019, at 4-5; 9-10. Thus, the trial
court considered mental capacity at sentencing. See 18 Pa.C.S.A.
§ 1102.1(d) (Sentence of persons under the age of 18 for murder, murder of
an unborn child and murder of a law enforcement).
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