J-S39002-20
2020 PA Super 264
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RODNEY DERRICKSON :
:
Appellant : No. 537 EDA 2019
Appeal from the Judgment of Sentence Entered November 8, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CR-23-CR-0004725-1994
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
OPINION BY LAZARUS, J.: FILED OCTOBER 30, 2020
Rodney Derrickson appeals from the judgment of sentence, entered in
the Court of Common Pleas of Delaware County, following his resentencing
subsequent to the decisions of the United States Supreme Court in
Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and Miller v. Alabama,
132 S. Ct. 2455 (2012), which required resentencing for juveniles originally
sentenced to life in prison without the possibility of parole (LWOP). After
careful review, we affirm.
The trial court summarized the facts of this case as follows:
In the morning hours of December 14, 1994, Patrick Cassidy,
intent on purchasing cocaine, left his home in Exton,
Pennsylvania, and drove to the William Penn Housing Project in
Chester, arriving sometime around 5 [a.m.]. He stopped his
automobile, remaining in the driver’s seat with the motor running
and the driver’s side window down. Mark Harris approached the
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* Retired Senior Judge assigned to the Superior Court.
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vehicle and offered to sell marijuana[;] Cassidy said that he
wanted cocaine and not marijuana. [Cassidy] had what looked
like a hundred dollar bill in his hand. At or about this time, Rodney
Derrickson, the defendant, went to the driver’s side and asked
Cassidy if he wanted cocaine and also asked if he was going to
pull off. Derrickson then reached into the car, took the keys out
of the ignition, threw them back into the car and demanded that
Cassidy give him the money. Instead of turning the money over
to Derrickson, Cassidy tried to put it between his legs on the car
seat. [Derrickson] then produced a weapon and fired two shots
into Cassidy’s body. Although mortally wounded, Cassidy
apparently located the car keys and attempted to drive away,
traveling only a short distance when he struck a parked motor
vehicle. The police were called to the scene and found Cassidy
dead, in his car. The cause of death was from the extreme loss
of blood due to gunshot wounds to the chest and upper left arm.
Trial Court Opinion, 11/27/19, at 1-2.
A jury convicted Derrickson of second-degree murder and robbery on
October 12, 1995. Though Derrickson was seventeen years old at the time of
the homicide, he was sentenced to LWOP, pursuant to a mandatory sentencing
statute. This Court affirmed his conviction on direct appeal, Commonwealth
v. Derrickson, 688 A.2d 1226 (Pa. Super. 1996) (Table), and our Supreme
Court denied his petition for allowance of appeal. Commonwealth v.
Derrickson,
695 A.2d 783 (Pa. 1997) (Table). From the date he was
sentenced through July 4, 2012, Derrickson filed three petitions for relief
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and
one petition for Writ of State Habeas Corpus. All of these collateral attacks
were denied, and the rulings were affirmed on appeal. On July 5, 2012,
Derrickson filed a pro se petition for relief under the PCRA, challenging the
constitutionality of his sentence in light of
Miller, supra. Derrickson filed
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additional petitions on August 9, 2012; January 7, 2013; and December 12,
2013, challenging his sentence on constitutional grounds. This Court affirmed
the denial of those petitions. See Commonwealth v. Derrickson, 207 EDA
2015 (Pa. Super. filed August 12, 2015) (unpublished memorandum). On
February 17, 2016, Derrickson filed a pro se PCRA petition challenging his
sentence in light of Montgomery, supra. On November 1, 2018, the trial
court granted Derrickson’s petition and vacated his judgment of sentence.
The court held a resentencing hearing on that same date and continued
Derrickson’s sentencing to November 8, 2018, so that the court could have
additional time to consider, inter alia, the fifty-six defense exhibits appended
to Derrickson’s sentencing memorandum. On November 8, 2018, the court
imposed a sentence of thirty years’ to life imprisonment, making him eligible
for parole in approximately four years. Derrickson filed a post-sentence
motion on November 16, 2018, arguing that the court should reconsider his
sentence and grant him immediate parole eligibility. A hearing was held on
that motion on November 27, 2018, and the court denied the motion on
January 30, 2019. Derrickson timely appealed; both he and the court have
complied with Pa.R.A.P. 1925.1
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1 The Commonwealth’s brief was due on July 20, 2020, but was filed on August
20, 2020. Prior to its late filing, this Court had already granted the
Commonwealth two thirty-day extensions. Accordingly, the Commonwealth
has received a de facto third such extension. We note our disapproval of such
self-granted extensions.
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On appeal, Derrickson presents the following issues for our review,
which we have renumbered for ease of consideration:
1. Whether the mandatory life maximum sentence for [s]econd[-
d]egree [] [m]urder is illegal, constituting cruel and unusual
punishment, in violation of Article 1[,] Section 13 of the
Pennsylvania Constitution and the 8th and 14th Amendments to
the United States Constitution, in that it is imposed without any
penological justification whatsoever, such as retribution,
rehabilitation[,] or incapacitation[;] deprives [Derrickson] of his
right to an individualized sentence as a juvenile[;] is
disproportionate to the crime[;] and [] is the same maximum
sentence imposed on one who commits [f]irst[-d]egree [m]urder,
which is more serious because it requires proof of specific intent
to kill and premedi[t]ation.
2. Whether the sentence imposed on [Derrickson] is illegal, where
the decision in Miller[, supra,] invalidated mandatory life
imprisonment for juveniles and struck down the only statutory
scheme in Pennsylvania for sentencing juveniles convicted of
murder, leaving a sentence for the lesser[-]included third[-
]degree murder as the only lawful sentence for [Derrickson].
3. Whether reliance by the [c]ourt on 18 Pa.C.S.A. [§] 1102.1,
rendered the sentence imposed illegal, as [Derrickson] was
deprived of an individualized sentence, as required by the 8th and
14th Amendments to the United States Constitution and Article
1[,] Section 13 of the Pennsylvania Constitution.
4. Whether the sentence imposed upon [Derrickson] is illegal,
where it was imposed without meaningful and adequate
consideration [of] sentencing factors set out in Miller[, supra,]
as required by Commonwealth v[]. Machicote, 206 A[.]3d 1110
(Pa. 2019). Those factors are: the defendant’s chronological age
and its hallmark features [including:] immaturity, impetuosity[,]
and failure to appreciate [] risks and consequences; the
defendant’s family and home environment from which he cannot
usually extricate himself—no matter how brutal or
dysfunctional[;] the circumstances of the homicide offense,
including the extent of the defendant’s participation in the conduct
and the way that familial and peer pressures may have affected
him; the impact of the defendant’s immaturity in dealing with the
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criminal justice system; [and] the defendant’s rehabilitation and
the prospects for further rehabilitation. []
5. Whether the sentence imposed upon [Derrickson] is overly
harsh and manifestly excessive, as it was imposed based upon
consideration of the seriousness of the offense and [Derrickson’s]
prior juvenile record, without consideration of [his] rehabilitation
while confined and his prospects for further rehabilitation.
Appellant’s Brief, at 4-6.
Derrickson’s first four issues on appeal implicate the legality of his
sentence. We note that:
The legality of a criminal sentence is non-waivable, and this Court
may raise and review an illegal sentence sua sponte. Because the
legality of a sentence presents a pure question of a law, our scope
of review is plenary, and our standard of review is de novo. If no
statutory authorization exists for a
particular sentence, that sentence is illegal and must be vacated.
Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 889-90 (Pa. Super.
2019) (internal citations, quotation marks, emphasis, and ellipses omitted).
Moreover, “in reviewing a constitutional claim, we face a pure question of law,
for which our standard of review is de novo and our scope of review is
plenary.”
Id. at 886 (citation and internal quotation marks omitted).
In his first claim, Derrickson argues that the court erred in sentencing
him to a maximum sentence of life in prison because that sentence is not
individualized to him, as is required by Miller, supra. Moreover, he claims
that because Pennsylvania courts have previously recognized that parole is
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punishment,2 and because his sentence amounts to either imprisonment or
parole for life, Derrickson did not receive an individualized sentence.
Appellant’s Brief, at 18-19.
Derrickson acknowledges our decision in Commonwealth v. Seskey,
170 A.3d 1105 (Pa. Super. 2017), where we held that a mandatory maximum
life sentence is required for resentencing juvenile offenders convicted of
second-degree murder based upon our reading of our Supreme Court’s
decision in Commonwealth v. Batts,
163 A.3d 410 (Pa. 2017) (Batts II).3
Derrickson attempts to distinguish his case from Seskey, and states that
Batts II, upon which the Seskey decision relies, did not “consider the
requirement that individualized sentencing apply to both the minimum and
maximum sentence. Instead, the Batts II court came to its conclusion about
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2 See Commonwealth v. Williams,
692 A.2d 1031, 1036 (Pa. 1997)
(quoting Hendrickson v. Pa. State Bd. of Parole,
185 A.2d 581, 584 (Pa.
1962)) (“Parole is first and foremost a penological measure[.] The prisoner
on parole is still in the legal custody of the state . . . and is under the control
of the warden and [] the Commonwealth until expiration of the term of his
sentence.”).
3 In Seskey, we stated,
[f]or those defendants convicted of first or second-degree murder
prior to June 25, 2012[,] for whom the sentencing court
determines a [LWOP] sentence is inappropriate, it is our
determination here that they are subject to a mandatory
maximum sentence of life imprisonment accompanied by a
minimum sentence determined by the common pleas court upon
resentencing.
Commonwealth v. Seskey, 170 A.3d 1105, 1108 (Pa. Super. 2017) (quoting
Batts II, supra at 421) (brackets omitted; emphasis removed).
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the maximum sentence purely [from] a reading of the Pennsylvania homicide
statute in light of Miller and Montgomery[, supra.]” Appellant’s Brief, at
21. Derrickson notes that as a result of Pennsylvania’s parole eligibility laws,
“[a] mandatory life maximum sentence [] provides the [p]arole [b]oard with
the ability to effectively impose a [LWOP] sentence by the denial of parole[.]”
Id. at 22. Derrickson concludes by citing to the federal trial court decision in
Songster v. Beard, 201 F.Supp.3d. 639 (E.D. Pa. 2016), and claims that
“imposing a mandatory life maximum sentence reflects an abdication of
judicial responsibility” by “[p]assing off the ultimate decision to the [p]arole
[b]oard in every case.” Id.
In the alternative, Derrickson argues that even if he were released on
parole, he would still be subject to “extensive monitoring” and other
requirements of parole supervision for the rest of his life. Id. at 23. If
paroled, Derrickson would:
face[] the possibility of being confined for any number and manner
of minor infractions that have little or no bearing on his ability to
live a lawful and productive life[.] . . . [T]o subject a person who
has demonstrated not only that his crime was the result of
transient immaturity[,] but also that he has rehabilitated and
continues to manifest potential for rehabilitation, offends precepts
of cruel and unusual sentences that are more readily remedied by
an individualized sentence.
Id. at 23-24. Derrickson argues that this sentence is not individualized to
him. Id. We disagree.
We recently addressed a constitutional challenge to the mandatory
maximum life sentence under 18 Pa.C.S.A. § 1102(b) in Commonwealth v.
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Olds, 192 A.3d 1188 (Pa. Super. 2018). In Olds, the appellant was convicted
of second-degree murder as a fourteen-year-old co-conspirator in a fatal
shooting. The appellant was sentenced to a mandatory term of LWOP, despite
the fact that he neither committed the killing nor intended that the victim be
killed. Following the United States Supreme Court’s decisions in Miller and
Montgomery, the appellant was resentenced to twenty-years-to-life in
prison. Like Derrickson, the appellant in that case argued that the Seskey
decision was “too broad.”
Olds, supra at 1193. After engaging in statutory
interpretation of section 1102(b), and comparing it to the Batts II analysis
regarding section 1102(a), this Court held that section 1102(b) “must be
interpreted to require a maximum sentence of life imprisonment for juveniles
convicted of second-degree murder.”
Olds, supra at 1194. Moreover, in
finding section 1102(b) constitutional, we noted that the Court in Batts II
“emphasized” repeatedly that section 1102(a) was “constitutionally sound.”
Id. at 1195.
Notably, the Olds Court explained the specific constitutional issue that
Miller and Montgomery addressed with regard to mandatory sentencing:
Our Supreme Court held that it is the interaction of section
1102(a) with 61 Pa.C.S.A. § 6137(a)(3) (which bars parole for
individuals sentenced to life imprisonment) that causes
constitutional problems when applied to juvenile
offenders. See Batts II, [supra] at 439-[]41. Thus, our
Supreme Court held that the appropriate remedy is to exempt
juveniles convicted of first-degree murder prior to June 25,
2012[,] from the mandates of section 6137(a)(3). See id. at
439. In other words, the mandatory imposition of LWOP upon
juveniles was deemed unconstitutional. Batts II, however, kept
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in place the requirements of section 1102(a), i.e., that juveniles
convicted of first-degree murder must be sentenced to a
maximum term of life imprisonment. See id. at 439-[]41.
[W]e hold that it is not the term of life imprisonment that
makes applying section 1102(b) to juvenile offenders
unconstitutional. Instead, it is the mandatory nature of
that punishment when section 6137(a)(3) (which prohibits
parole) is applied that raises constitutional
concerns. Thus, section 6137(a)(3) cannot be applied to
juveniles convicted of second-degree murder prior to June 25,
2012. In other words, such juveniles must be sentenced to a
maximum period of life imprisonment; however, they are
eligible for parole after a term[]of[]years specified by the
trial court.
Id. (emphasis added and in original). This Court concluded that the maximum
life sentence was required even after addressing the constitutional concerns
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in both Justice Breyer’s concurrence in Miller4 and the Songster decision.5
See Olds, supra at 1198 (“[T]rial courts must sentence juveniles convicted
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4 As we explained in Olds:
Nothing in Pennsylvania case law indicates that our Supreme
Court (or this Court) is prepared to expand Justice Breyer’s
concurrence and prohibit mandatory life maximums for juveniles
who commit second-degree murder but did not kill or intend to
kill.
…
Justice Breyer’s concurrence speaks only to LWOP sentences—not
life maximums[,] which allow for parole eligibility based upon
demonstrated maturity and rehabilitation.
In the future, our nation’s standards of decency may evolve to the
point where sentencing a juvenile convicted of second-degree
murder under an accomplice or co-conspirator theory of liability is
considered disproportionate and, therefore, cruel and unusual
punishment. . . . Our society deems the taking of a life, either
directly or as an accomplice or co-conspirator, sufficiently
grievous as to require that the defendant not be entitled to release
without first going through the parole process. Accordingly, we
hold that the Eighth Amendment permits imposition of section
1102(b)’s mandatory maximum term of life imprisonment for
juveniles convicted of second-degree murder, who did not kill
or intend to kill.
Id. at 1197 (emphasis added). We note that Justice Breyer’s concerns, here,
are not relevant to Derrickson’s case since Derrickson was the shooter, and
he was not convicted on a theory of co-conspirator liability. See Trial Court
Opinion, 3/1/96, at 2-3.
5 In Olds, the Court addressed the appellant’s citation to the federal court’s
Songster decision, which the appellant made in support of his Eighth
Amendment argument:
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of second-degree murder prior to June 25, 2012[,] to a maximum term of life
imprisonment under section 1102(b). We hold that such mandatory
maximums do not violate the Eighth Amendment’s ban on cruel and unusual
punishment.”).
Here, Derrickson’s attempt to distinguish Seskey is unavailing. Olds,
which is nearly on all-fours with Derrickson’s case, confirms through statutory
interpretation Seskey’s conclusion that section 1102(b) must be applied to
juveniles convicted of second-degree murder prior to June 25, 2012.
Derrickson was convicted of second-degree murder on October 12, 1995.
Therefore, the trial court was required to sentence Derrickson to a maximum
term of life imprisonment. See 18 Pa.C.S.A. § 1102(b); see also Olds, supra
at 1198.
Moreover, with regard to Derrickson’s lifetime parole argument, we have
previously said that juvenile defendants are not entitled to eventual freedom
or guaranteed release under the Eighth Amendment:
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We find Songster unavailing. Songster does not directly cite
to Graham [v. Florida, 560 U.S. 48 (2011),] a single time. As
we have set forth above, Graham addresses whether parole
boards may make the ultimate determination that an individual
has demonstrated the requisite maturity and rehabilitation to
deserve release. Hence, we do not agree with Songster and
hold that it is not binding authority in Pennsylvania.
Id. at 1197 n.18 (emphasis added). We therefore note Songster’s continued
non-binding status in Pennsylvania.
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Graham [v. Florida, 560 U.S. 48 (2011),] makes clear that “[a]
State is not required to guarantee eventual freedom to a juvenile
offender convicted of a non[-]homicide crime. What the State
must do, however, is give defendants . . . some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation.” In other words, consistent with the Eighth
Amendment, a state can set a mandatory maximum term of life
imprisonment, even for non[-]homicide offenses, so long as it
grants defendants the opportunity for parole based upon
demonstrated maturity and rehabilitation.
Olds, supra at 1196 (internal citations omitted). Here, Derrickson finds
himself in exactly this scenario. The trial court sentenced Derrickson to thirty-
years-to-life in prison. He will be eligible for parole in approximately four
years. See N.T. Sentencing, 11/8/19, at 21. Therefore, Derrickson’s first
claim on appeal fails.
Next, Derrickson argues that his life sentence for second-degree murder
is illegal because he can only be sentenced to a maximum of forty years’
imprisonment for the lesser included offense of third-degree murder. See
Appellant’s Brief, at 29-33. Derrickson reasons that a sentence for third-
degree murder is the only possible result because Miller invalidated “the only
statutory sentence which may be imposed [upon] juveniles convicted of
[s]econd[-d]egree [] [m]urder,” and because the Pennsylvania Legislature
responded to Miller by enacting legislation which only applies to juveniles
convicted of second-degree murder after June 24, 2012. See 18 Pa.C.S.A. §
1102.1(c) (“A person who has been convicted, after June 24, 2012, of a
murder of the second degree . . . and who was under the age of 18 at the
time of the commission of the offense shall be sentenced as follows . . .”). In
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making this argument, Derrickson acknowledges that our Supreme Court
already rejected it in Commonwealth v. Batts, 66 A.3d 286 (2013) (Batts
I), and in Batts II, supra. See Appellant’s Brief, at 30. Nevertheless,
Derrickson argues that those cases were decided in the context of first-degree
murder, and so he concludes, “those rulings cannot be said to apply to
[s]econd[-d]egree [m]urder.” Id. We disagree.
In Commonwealth v. Machicote, 172 A.3d 595 (Pa. Super. 2017),
rev’d and remanded on other grounds,
206 A.3d 1110 (Pa. 2019), we adopted
the Batts II reasoning for juveniles convicted of second-degree murder
and found that “we are bound by our Supreme Court’s decision” on that issue.
Id. at 601-02. Machicote completely aligns with the holding and reasoning
in Olds, another second-degree murder case, where we explained:
On June 24, 2012, the Supreme Court of the United States
issued Miller. Thereafter, our General Assembly enacted section
1102.1 and made it retroactive for juveniles convicted of first or
second-degree murder after June 24, 2012. Moreover, our
General Assembly amended section 1102 to clarify that it
does not apply to juveniles convicted of first or second-degree murder after June 24, 2012. Section 1102,
therefore, applies to adults convicted of first or second-degree
murder and juveniles convicted of first or second-degree
murder prior to June 25, 2012.
Olds, supra at 1193-94 (emphasis added).
Here, the jury convicted Derrickson of second-degree murder on
October 12, 1995. Because Derrickson’s conviction occurred “prior to June
25, 2012,” see Olds, supra, the court had “statutory authorization” when it
sentenced him to a maximum of life in prison pursuant to section 1102(b).
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See Pi Delta Psi, Inc., supra. Additionally, we have previously noted the
Seskey decision indirectly held that sections 1102(a) and 1102(b) should be
treated the same. See
Olds, supra at 1195 (“Seskey implicitly held that
there was no reason to follow a different approach when assessing the
constitutionality of section 1102(b).”). Therefore, Derrickson’s second claim
on appeal fails.
Next, Derrickson argues that the court improperly relied on 18 Pa.C.S.A.
§ 1102.1,6 which deprived him of an individualized sentence. See Appellant’s
Brief, at 60-65. Specifically, Derrickson claims that, during the sentencing
hearing, the court relied on the mandatory minimum sentence for juveniles
older than fifteen years of age convicted of second-degree murder after June
24, 2012, as set out in section 1102.1(c)(1).7 Id. at 60. Derrickson states
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6 Section 1102.1(c)(1) states, “A person who at the time of the commission
of the offense was 15 years of age or older shall be sentenced to a term of
imprisonment the minimum of which shall be at least 30 years to life.” 18
Pa.C.S.A. § 1102.1(c)(1) (emphasis added).
7 At sentencing, the court stated:
I undertook similarly diligent efforts to assure my continued
familiarity with the law applicable to the current considerations
this resentencing presents. [] Miller [] and Montgomery []
ensure that life-without-parole-sentences are meted out only to
the rarest of juvenile offenders whose crimes reflect[] permanent
incorrigibility, irreparable corruption, and irretrievable depravity[.
I]n [Batts II, the Pennsylvania Supreme Court] established
procedural safeguards and promulgated additional directives to
trial courts detailing those proper considerations attend[ant] to
juvenile murderer resentencings. Regarding such, the [] Court[]
has directed there’s a presumption against the imposition of life
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that “[r]eliance on a thirty[-]year mandatory minimum as a starting point
[below which the court would not go] for the minimum sentence[] was not
required,” and that such reliance deprived Derrickson of his right to an
individualized sentence, under Miller. Appellant’s Brief, at 62, 65. We
disagree.
We have previously noted that in Batts II, our Supreme Court required
trial courts to consider the penalties set forth in section 1102.1 when
resentencing juveniles who were initially sentenced to LWOP. See
Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018) (“[T]he
[sentencing] court is required to consider the sentencing guidelines. . . . [N]o
sentencing guidelines exist for juveniles convicted . . . prior to June 25,
2012. Instead, our Supreme Court in Batts II held that . . . the applicable
sentencing guidelines . . . are the mandatory minimum penalties set forth
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without parole for a [d]efendant convicted of murder committed
as a juvenile[. T]o rebut the presumption[,] the Commonwealth
has the burden to prove beyond a reasonable doubt the juvenile
[offender] is permanently incorrigible and thus unable to be
rehabilitated. To be constitutionally valid, the sentencing court
must find a juvenile offender is permanently incorrigible and that
rehabilitation would be impossible. The sentencing court’s
decision must take into account the factors announced in
Miller and section 1102.1 of the Pennsylvania Crimes Code.
N.T. Sentencing, 11/8/18, at 5-7 (emphasis added). As we discuss in greater
detail, infra, the court’s statement was a correct pronouncement of the law if
the Commonwealth had sought a LWOP sentence for Derrickson. In this case,
the Miller factors were irrelevant because the Commonwealth did not seek
such a sentence. On the other hand, also discussed in greater detail, infra,
the court correctly stated that it was required to consider section 1102.1.
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in section 1102.1.”) (internal citations and quotation marks omitted); see
also Commonwealth v. Melvin, 172 A.3d 14, 21 (Pa. Super. 2017) quoting
Commonwealth v. Walls,
926 A.2d 957, 962-63 (Pa. 2007) (“[W]hile the
court must consider the guidelines, the court is also afforded broad
discretion in sentencing matters, as it is in the best position to evaluate the
individual circumstances before it.”) (emphasis added).
Although the decisions in Foust and Batts II pertained to appellants
convicted of first-degree murder and resentenced under section 1102(a), we
find that that difference is of no moment. Similar to section 1102(a), there
are no sentencing guidelines under section 1102(b) for the court to consider
when resentencing juvenile offenders convicted of second-degree murder.8
Here, because there are no such sentencing guidelines for section 1102(b),
the court was required to consider the maximum terms set forth in section
1102.1. See Foust, supra; see also Batts II, supra at 458 (“[W]e believe
that section 1102.1 will ‘help frame the exercise of judgment by the court in
imposing a sentence’ and ‘may provide an essential starting point . . . that
must be respected and considered’ when determining the appropriate
minimum sentence for a juvenile convicted of first-degree murder prior to
the Miller decision.”) (citation omitted; emphasis added). Our review of the
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8 At sentencing, the Commonwealth’s attorney argued, and Derrickson did not
dispute, that under the sentencing guidelines, a juvenile in Derrickson’s
sentencing posture, convicted after the enactment of the new sentencing
provision in section 1102.1, would face up to a suggested fifty-two years’
imprisonment. See N.T. Sentencing, 11/1/18, at 38-39.
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sentencing transcript reveals the court thoughtfully considered a multitude of
factors, including section 1102.1, as is required. See Batts II, supra.
Therefore, there was no error and Derrickson’s third claim on appeal fails.
Next, Derrickson argues that his sentence was illegally imposed where
the sentencing court failed to consider the Miller factors as they were
reiterated in Machicote, 206 A.3d at 1113. See Appellant’s Brief, at 33-41.
Specifically, Derrickson notes that our Supreme Court, in Batts II, required
consideration of the Miller factors anytime the Commonwealth seeks
imposition of a LWOP sentence on a juvenile offender. See Batts II, supra
at 455 (to overcome presumption against imposition of LWOP sentence for
juvenile offender, Commonwealth must prove juvenile is constitutionally
eligible for sentence and may present evidence relating to factors announced
in Miller and appearing in section 1102.1(d)). Derrickson “respectfully”
claims that “[t]he Pennsylvania Supreme Court didn’t go far enough[] in
requiring consideration [] of the Miller factors[] only when the juvenile faces
life. This is because even if the Commonwealth does not seek a life without
parole sentence, the sentencing court still has wide discretion in fashioning an
appropriate minimum sentence.” Appellant’s Brief, at 35-36. Derrickson
notes that this Court has upheld lengthy minimum sentences ranging from
thirty years to fifty years against challenges that they amount to de facto life
sentences. Id. at 36. He concludes that the Miller factors, as set out in
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Machicote, are applicable to cases such as his, where the Commonwealth
has not sought a LWOP sentence.9 Id. at 37.
First, we note again that the specific constitutional issue in Miller is “the
mandatory nature of [a sentence of life imprisonment] when section
6137(a)(3) (which prohibits parole) is applied. Thus, section
6137(a)(3) cannot be applied to juveniles convicted of second-degree murder
prior to June 25, 2012.” Olds, supra at 1195. Therefore, if a juvenile
defendant, like Derrickson, is sentenced to a maximum term of life with a
minimum term of imprisonment after which the defendant becomes parole-
eligible, the constitutional concerns in Miller are not implicated. See
id. at
1196 citing Graham, supra.
Second, we recently affirmed a defendant’s judgment of sentence for a
first-degree murder conviction where the court did not consider the Miller
factors and where the Commonwealth did not seek, and the court did not
impose, a LWOP sentence. See Commonwealth v. Lekka, 210 A.3d 343,
357 (Pa. Super. 2019); see also Commonwealth v. White,
193 A.3d 977,
983 (Pa. Super. 2018) (“[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
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9 We note that this argument does not follow. Indeed, if this Court has
previously held that lengthy minimum sentences do not amount to de facto
life in prison, then imposition of a lengthy minimum sentence would not
automatically trigger LWOP review. In fact, Derrickson cites to no specific
authority for his claim.
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sentences. Because the Commonwealth did not seek a LWOP sentence, this
issue is moot as application of the Miller factors is immaterial.”).
Here, the Commonwealth did not seek, and the court did not impose, a
LWOP sentence. Therefore, the court was not required to consider the Miller
factors, see Lekka, supra, and Derrickson’s fourth claim on appeal fails. See
Appellant’s Brief, at 35 (“[Derrickson] concedes that Machicote by its express
terms requires on-the-record consideration of the Miller factors, only in the
event that a sentence of life imprisonment [without parole] is a
possibility.”) (emphasis added). To the extent that Derrickson’s claim raises
concern that the court failed to consider relevant sentencing factors outlined
in the Sentencing Code, we consider such arguments under the discretionary-
aspects-of-sentencing analysis. See
White, supra at 983.
Finally, Derrickson challenges the discretionary aspects of his sentence.
It is well-established that:
The right to appeal the discretionary aspects of a sentence is not
absolute. To determine whether an appellant has properly
preserved the discretionary aspects of sentencing for appellate
review, we must conduct the following four[-]part analysis: (1)
whether appellant has filed a timely notice of appeal; (2) whether
the issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant’s brief has
a fatal defect; and (4) whether there is a substantial question that
the sentence appealed from is not appropriate under the
Sentencing Code. The determination of whether a particular issue
raises a substantial question is to be evaluated on a case-by-case
basis. Generally, however, in order to establish a substantial
question, the appellant must show actions by the sentencing court
inconsistent with the Sentencing Code or contrary to the
fundamental norms underlying the sentencing process.
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Commonwealth v. Dunphy, 20 A.3d 1215, 1220-21 (Pa. Super. 2011)
(internal citations, quotations marks, and footnotes omitted).
Here, Derrickson has filed a timely notice of appeal, preserved the issue
in a motion to reconsider sentence, see Defendant’s Motion [for]
Reconsideration, 11/16/18, at 1-3, and has included a Pa.R.A.P. 2119(f)
statement in his brief.10 See Appellant’s Brief, at 42. Moreover, Derrickson’s
Rule 2119(f) statement raises three recognized substantial questions insofar
as it alleges that: his sentence is “manifestly excessive and overly harsh, and
is unreasonable,” that it was imposed “based on the serious nature of the
crime,” and that the “sentencing court failed to give due consideration as is
required by 42 Pa.C.S. [§] 9721(b).” Appellant’s Brief, at 42.
We note that a claim that a sentence is manifestly excessive might raise
a substantial question if the appellant’s Rule 2119(f) statement sufficiently
articulates the manner in which the sentence imposed violates a specific
provision of the Sentencing Code or the norms underlying the sentencing
process. Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).
____________________________________________
10 Both the trial court and Commonwealth question whether Derrickson
properly preserved this claim for appeal. See Appellee’s Brief, at 27; Trial
Court Opinion, 11/27/19, at 45-49. Derrickson’s motion for reconsideration
was sufficient for preservation purposes. See
Dunphy, supra (issue can be
preserved “in a motion to reconsider and modify sentence”) (emphasis
added). Moreover, we have previously found that, where an appellant timely
appeals from his judgment of sentence, argues that his sentence is excessive
at the time of sentencing, includes a Pa.R.A.P. 2119(f) statement in his brief,
and raises a substantial question, we may address the merits of the appeal.
See Commonwealth v. Hill,
210 A.3d 1104, 1116 (Pa. Super. 2019). Here,
Derrickson has satisfied each of the Hill elements; therefore, we may proceed
to the merits of his appeal.
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Additionally, “an averment that the court sentenced based solely on the
seriousness of the offense and failed to consider all relevant factors raises a
substantial question . . . [and] an allegation that the court considered an
impermissible sentencing factor raises a substantial question.”
Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (internal
citations omitted). Moreover, a claim that “the trial court failed to consider
relevant sentencing criteria, including the protection of the public, the gravity
of the underlying offense and the rehabilitative needs of Appellant, as 42
Pa.C.S.A. § 9721(b) requires[,]” presents a substantial question for our
review. Commonwealth v. Riggs,
63 A.3d 780, 786 (Pa. Super. 2012).
Therefore, we will proceed to the merits of Derrickson’s claims.
Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Blount, 207 A.3d 925, 934-35 (Pa. Super. 2017)
(quoting Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa. Super. 2014)).
Moreover, this Court’s review of the discretionary aspects of a sentence is
governed by 42 Pa.C.S.A. §§ 9781(c) and (d). Commonwealth v. Dodge,
77 A.3d 1263, 1274 (Pa. Super. 2013). Section 9781(c) reads:
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(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.
42 Pa.C.S.A. § 9781(c). Subsection 9781(d) requires that in reviewing the
record, we consider:
(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.A. § 9781(d).
Here, Derrickson claims that the trial court abused its discretion by
considering “the breadth and seriousness of [Derrickson’s] juvenile record
[more] than any other factor,” and that the court “appears to have
disregarded the offenses for which [Derrickson] was actually adjudicated, and
assumed that he committed many more serious crimes.” Appellant’s Brief, at
48. He also argues that the court “did not follow the mandate of [s]ection
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9721(b) by considering [Derrickson’s] character.” Id. at 51. Finally,
Derrickson claims that the court did not “explain how [Derrickson’s] efforts at
rehabilitation factored into the sentence imposed,” id. at 49, and that the
sentencing court did “not place[] on the record any reason why [Derrickson]
should wait any longer for parole review.” Id. at 50-51.
Here, the trial court presided over the two-day sentencing hearing and
heard Derrickson’s post-sentence motion to reconsider the sentence. The
sentencing hearing commenced on November 1, 2018, where the court was
presented with Derrickson’s sentencing memorandum and fifty-six appended
exhibits, including two expert reports. The court then noted the supportive
presence of fifteen of Derrickson’s family members and friends, see N.T.
Sentencing, 11/1/18, at 7-9, heard testimony from four of those supporters,
see id. at 10-22, and heard Derrickson’s allocution. See id. at 22-29. The
Commonwealth then presented the court with the victim’s supporting family
members in attendance, and presented two victim impact statements from
1995. See id. at 29-35. The court also heard argument from Derrickson’s
counsel and from the Commonwealth attorney. See id. at 35-49. The court
then continued the hearing to November 8, 2018, to gain additional time to
consider all of the evidence presented.
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At the November 8 hearing, in addition to stating the evidentiary bases
for rendering its sentence,11 the court stated its findings of fact and the factors
____________________________________________
11 Upon reconvening the sentencing hearing on November 8, 2018, the
court stated:
Since the close of the resentencing evidentiary presentation, I
have had the opportunity to fully review and consider each
and every evidentiary exhibit, all admitted without opposition,
including but not limited to the various Pennsylvania Department
of Correction materials, [] Derrickson’s Delaware County juvenile
court file, the mitigation report of Dr. [Taylor], as well as that of
Dr. Wynn, particularly those reports, as they’re salient to []
Derrickson’s childhood up to the time where he committed his
offenses, [] as well as his then–age-related characteristics,
and [] Derrickson’s current rehabilitative prospects. I have
likewise fully reviewed and considered the balance of the defense’s
56 exhibits appended to its memorandum in support of
resentencing, which, among other things, were a number of
educational and vocational certificates, as well as varied
completed treatment recognitions and a listing of inmate
organizational involvement, including such a group [] Derrickson
helped found. I’ve equally deliberated and reflected on
testimony of every prosecution and defense resentencing
witness, including but not limited to those speaking with such
understandable emotion about individual and familial impact, as
well as similar such emotive statements of the victim’s family
members the prosecution read aloud, and certainly those persons
who have [] described with [] Derrickson their interactions
throughout his incarceration and those who voiced their varied
support of him[,] and of course that [testimony] offered by
[] Derrickson when he exercised his right of allocution.
…
The sentencing court’s decision must take into account the
factors announced in Miller[, see supra at n.7,] and section
1102.1 of the Pennsylvania Crimes Code. Traditional
sentencing considerations also apply. Now, having considered all
the evidence made available to it, this [c]ourt understands the
most difficult[,] yet intellectually and legally honest decision the
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it considered in imposing Derrickson’s sentence. See N.T. Sentencing,
11/8/18, at 7-20. Specifically, contrary to Derrickson’s claim, the court
weighed not only Derrickson’s juvenile record, see id. at 10-11, 14-18, but
also the specific crime underlying his second-degree murder conviction.12
Moreover, the court clearly considered Derrickson’s character and efforts at
____________________________________________
Commonwealth made[,] in not seeking once more for []
Derrickson the re[-]imposition of [LWOP]. Hence, it is for this
[c]ourt to determine, following the directives from both the
United States [and] Pennsylvania Supreme Courts[,] a minimum
term of years, along with the mandate of life maximum,
which will, as deemed proper by the Pennsylvania Board of
Probation and Parole, render [] Derrickson parole-releaseeligible.
N.T. Sentencing, 11/8/18, at 4-7 (emphasis added).
12 The court explained:
The nature and circumstances of Mr. Cassidy’s murder are those
of a senseless and needless act of firearm–driven violence. Mr.
Derrickson, despite his continued claims of innocence, was found
beyond a reasonable doubt by a jury to have shot and killed in the
course of robbing [] Mr. Cassidy, a seemingly unarmed victim from
whom Mr. Derrickson, with his brandished handgun, could have
otherwise readily stolen the money he sought. Throughout the
years of directing collateral litigation at bar, the integrity of this
conviction has withstood any and all challenges. Mr. Derrickson
bears the full weight of his conviction’s culpability in that he was
not found guilty as an unarmed accomplice aiding a criminal
cohort when acting as a lookout. Rather, he was the principal and
with a gun by his own hand shot twice and murdered Mr. Cassidy.
There is nothing attend[ant] to Mr. Derrickson’s criminality that
suggests any notable degree of illicit sophistication.
N.T. Sentencing, 11/8/18, at 8-9.
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rehabilitation,13 in addition to the other factors specified under section
9721(b). Finally, we note that the court was neither required to state anything
regarding specifically how Derrickson’s efforts at rehabilitation factored into
the sentence, nor specifically why Derrickson should wait longer for parole
review. See Foust, supra at 439 (“The [trial] court is not required to parrot
the words of the Sentencing Code, stating every factor that must be
considered under Section 9721(b), however, the record as a whole must
reflect due consideration by the court of the statutory considerations at the
time of sentencing.”). Derrickson has shown neither that the sentencing court
“applied the guidelines erroneously,” see 42 Pa.C.S. § 9781(c)(1), nor that
Derrickson’s “case involves circumstances where the application of the
guidelines would be clearly unreasonable.” See 42 Pa.C.S. § 9781(c)(2).
Therefore, we affirm the sentence imposed by the sentencing court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/20
____________________________________________
13 The court stated, “Mr. Derrickson was found by Drs. Taylor and Wynn, as
well as the relevant Pennsylvania Department of Correction[s] personnel, to
presently be a low risk of both recidivating generally and/or violently. There
is no evidence to the contrary.” N.T. Sentencing, 11/8/18, at 8.
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