Opinion
962 MDA 2022 J-A13023-23
09-27-2023
COMMONWEALTH OF PENNSYLVANIA v. LUIS GABRIEL TORRES, JR. Appellant
Appeal from the Judgment of Sentence Entered April 18, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005092-2018
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E. [*]
OPINION
LAZARUS, J.
Luis Gabriel Torres, Jr., appeals from the judgment of sentence, entered in the Court of Common Pleas of Lancaster County, following his convictions of one count each of rape of a child and aggravated indecent assault of a child, and three counts each of involuntary deviate sexual intercourse with a child (IDSI), indecent assault of a person less than thirteen years of age,and unlawful contact with a minor-sexual offenses. Upon review, we affirm.
This Court in Commonwealth v. Monaco, 869 A.2d 1026 (Pa.Super. 2005), analyzed the due process claim without expressly applying the framework for pre-arrest delay discussed in Commonwealth v. Snyder, 713 A.2d 596 (Pa. 1998), and Commonwealth v. Wright, 865 A.2d 894 (Pa.Super. 2004), namely determining whether there was actual prejudice to the defendant and no proper reasons for postponing the arrest. The Armolt Court, while not deciding the due process claim, did discuss Monaco and its "'bad faith' exception" to the rule that adults can be tried for juvenile conduct. Commonwealth v. Armolt, 294 A.3d 364, 374 n.13 (Pa. 2023). However, Armolt neither (1) examined the due process precedent such as Snyder and Wright that generally applicable to claims of pre-arrest delay in connection with its due-process assessment, nor (2) decided the continued viability of Monaco's "improper motive" inquiry divorced from that precedent. Id. ("[W]e express no opinion about [Monaco's] viability; we merely conclude appellant failed to show the Commonwealth acted in bad faith here, so the plain language of the statute controls."). Justice Wecht in his concurrence, joined by Justice Donohue, considered at length the possible legal basis for Monaco's exception, observing that "such a rule serves a vital interest," and "should be examined in an appropriate case." Id. at 386 (Wecht, J. concurring). I do not think this is that case. Nonetheless, as the author of Monaco, I submit that the same due process guarantees that require dismissal of prosecutions based upon pre-arrest delay inform the Monaco exception. As there is no indication of improper motives for delaying Appellant's prosecution in this case, I need not expound upon whether being subjected to criminal sentencing rather than juvenile disposition can itself amount to actual prejudice under Snyder and Wright. I note that Justices Wecht and Donohue suggest that it cannot. Id. at 393 (Wecht, J., concurring) ("Armolt could claim no right (constitutional, statutory, or otherwise) to a juvenile disposition of his charges. Consequently, Armolt is entitled to no comparison between the way his case proceeded and how it would have proceeded in juvenile court. . . . Armolt [cannot] establish that his sentence constituted an equal protection or due process violation; the law does not demand that he be tried as a juvenile in the first instance").
Id. at § 3125(b).
The Commonwealth contends that Appellant, like the defendant in Commonwealth v. Anderson, 630 A.2d 47 (Pa.Super. 1993), is himself responsible for the delay. Specifically, the Commonwealth cites Appellant's silencing threats to his young siblings over whom he had authority as the reason the Commonwealth lacked evidence to prosecute in 2009. See Commonwealth's brief at 14-16. The trial court did not cite this as the basis for its denial.
Id. at § 3123(b).
The Miller Court held that mandatory life imprisonment without parole for people who were juveniles at the time of their crimes constitutes cruel and unusual punishment given the hallmark, yet usually transient, features of youth such as "immaturity, impetuosity, and failure to appreciate risks and consequences." Miller v. Alabama, 567 U.S. 460, 477 (2012).
Id. at § 3126(a)(7).
Id. at § 6318(a)(1).
Between June 2008 and March 2011, Torres, his mother, and four of his younger half-siblings were living with maternal grandmother in a residence located at 16 Parkside Avenue in Lancaster Township. Throughout this period, Torres sexually abused three of his younger half-siblings, his half-sister D.A.L. (f) and his half-brothers D.A.L. (m) and D.D.L. At the time of the offenses, all three children were between the ages of two-and-a-half and six years old, and Torres was between the ages of 13 to 15. Torres was often left in charge of his younger half-siblings because their mother was working sixteen hours a day to support their family.
D.A.L. (f) reported that she was approximately six years old when the abuse began. Torres would make D.A.L. (f) go to Torres' bedroom and touch her in places where she did not want to be touched. Torres would also digitally penetrate her vagina, force her to perform oral sex on him, force her to swallow his ejaculate, and force her to have sex with him. In May 2009, she attempted to disclose Torres' abuse by telling her mother, who called the police. Mother also confronted Torres, who claimed that his half-sister was lying. Ultimately, D.A.L. (f) was interviewed by Lancaster County Children's Alliance, but she declined to tell the interviewer about the abuse. None of Torres' other siblings was interviewed at this time, and no charges were filed.
Prior to the interview, mother had warned D.A.L. (f) that if she reported the accusations against Torres, Torres may kill himself.
Subsequently, in March 2018, D.A.L. (f) again told her parents that Torres had sexually abused her. Following this report, Torres' two younger half-brothers D.A.L. (m) and D.L.L. came forward and also disclosed sexual abuse by Torres. Both D.A.L. (m) and D.L.L. reported that Torres would individually bring each boy into Torres' room, where he would force them to perform oral sex on him and ejaculate in their mouths. Both D.A.L. (m) and D.L.L. also reported that Torres would show them pornography. D.A.L. (m) and D.L.L. were approximately 4 years old and 2½ years old, respectively, when the abuse began. All three half-siblings reported that Torres would threaten them afterwards that things would get worse if they told anyone.
On July 23, 2018, the Commonwealth charged Torres with, inter alia, the above-mentioned offenses. Torres was 23 years old when the Commonwealth filed charges. On August 7, 2020, Torres filed a motion to dismiss asserting, inter alia, that he could not be charged in criminal court with offenses that he had committed as a juvenile and that he should be prosecuted in Juvenile Court under the Juvenile Act. In particular, Torres argued that the Commonwealth had acted in bad faith when it failed to investigate D.A.L. (f)'s report in 2009 by failing to also interview the other children. On November 16, 2020, the trial court denied Torres' motion.
On August 23, 2021, Torres proceeded to a three-day jury trial, after which he was convicted of the above-mentioned offenses. The trial court postponed sentencing and ordered a pre-sentence investigation report (PSI). On April 18, 2022, the trial court conducted a sentencing hearing and sentenced Torres to 10 to 20 years' imprisonment for his conviction of rape of a child; 10 to 20 years' imprisonment for Torres' conviction at Count 2 - IDSI; 9 to 20 years' imprisonment for each of Torres's conviction at Counts 3 and 4 of IDSI; 10 to 20 years' imprisonment for one conviction of unlawful contact with a minor; and 9 to 20 years' imprisonment for each remaining conviction of unlawful contact with a minor. The trial court merged the remainder of the convictions for sentencing purposes. The trial court imposed Torres' sentences for rape of a child and Count 3 - IDSI consecutively. The remainder of Torres' sentences were imposed concurrently, resulting in an aggregate sentence of 19 to 40 years' imprisonment.
Torres filed a timely post-sentence motion challenging the discretionary aspects of his sentence and asserting that an "adult-based sentence" violated his constitutional rights where he committed the crimes as a juvenile. On June 3, 2022, the trial court denied Torres' post-sentence motion. Torres filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Torres now raises the following claims for our review:
1. Did the trial court err in denying the [m]otion to [d]ismiss because the late[ ]filing of the charges against [] Torres, nine years after they were first reported to the police, violated [] Torres' due process rights under the Pennsylvania and United States Constitutions, and [] Torres was prejudiced by the late[ ]filing of the charges against him because, inter alia, he lost the ability to have these charges resolved in the juvenile court?
2. Did the mandatory minimum sentence of ten years' incarceration for rape of a child and the aggregate, adult-based sentence of 19 to 40 years constitute cruel and unusual punishment, in violation of the Pennsylvania and United States Constitutions, where [] Torres was between 13 and 15 years old when the offenses were committed?
3. Was the imposition of consecutive sentences, for an aggregate sentence of 19 to 40 years['] incarceration, manifestly excessive, clearly unreasonable under the circumstances, and an abuse of the court's discretion?
Brief for Appellant, at 8-9.
In his first claim, Torres claims the trial court erred in denying his motion to dismiss based upon the Commonwealth's purported late[ ]filing of the instant offenses against him. See Brief for Appellant, at 25-34.
Torres' claim relies upon the contention that Torres should have received benefits of the Juvenile Act because he was a minor at the time the offenses were committed, despite the charges being filed when he was 23 years old. This claim has been foreclosed by our Supreme Court's recent decision in Commonwealth v. Armolt, 294 A.3d 364 (Pa. 2023).
In Armolt, our Supreme Court determined that the Juvenile Act "clearly and unambiguously refutes" the notion that an adult defendant should be tried in juvenile court. See id. at 372. The Court rejected the argument that the defendant, a 42-year-old male who committed offenses when he was a juvenile, should be tried in juvenile court where he alleged that the Commonwealth's bad faith in delaying the filing of charges caused him to lose the benefits of juvenile court. See id. Indeed, the Court, in rejecting the "bad faith" argument, emphasized that Section 6302 of the Juvenile Act defines a "child" as an individual who is "under the age of 18 years" or "is under the age of 21 years who committed an act of delinquency before reaching the age of 18 years." 42 Pa.C.S.A. § 6302; see also Armolt, supra. Thus, the Supreme Court concluded that "the [Juvenile] Act plainly extends juvenile jurisdiction to offenders who committed an offense while under the age of eighteen only if they are prosecuted before turning twenty-one." Id. (emphasis added). We find Armolt to be directly on point and controlling.
Here, Torres was between the ages of 13 and 15 years old at the time the offenses occurred. However, Torres was not criminally charged until he turned 23 years old. See Trial Court Opinion, 7/28/22, at 1. Consequently, Torres was not entitled to be tried in Juvenile Court, and the trial court did err when it denied Torres's motion to dismiss. See id.; Armolt, supra. Accordingly, Torres is afforded no relief on this claim.
In his second claim, Torres raises two sub-issues, which we address together for ease of disposition. In his first sub-issue, Torres contends that the trial court's imposition of the mandatory minimum 10 years' imprisonment for his rape of a child conviction was unconstitutional. See Brief for Appellant, at 35-58. Torres argues that, because he was a minor at the time he committed the offenses, the Eighth Amendment to the United States Constitution and Article I, Section 13, of the Pennsylvania Constitution prohibit the application of a mandatory minimum sentence. See id. at 36-40. In his second sub-issue, Torres contends that his aggregate sentences of 19 to 40 years' incarceration constitute cruel and unusual punishment, in violation of the United States and Pennsylvania Constitutions, because he was a minor at the time of the offense. Id. at 35-58.
In support of both sub-issues, Torres cites to myriad other jurisdictions' case law, provides a robust history of various juvenile statutes in other states, and cites our Supreme Court's most recent decisions regarding juvenile life sentences. Id. (citing Commonwealth v. Felder, 269 A.3d 1232 (Pa. 2022)). Torres asks that this Court "declare that the Eighth Amendment to the United States Constitution and Article I Section 13 of the Constitution of the Commonwealth of Pennsylvania require a criminal court to consider the diminished culpability of youth when imposing a sentence where the defendant committed the crime as a child . . . [and] declare that the Eighth Amendment and Article 1, Section 13, forbid the application of mandatory minimum sentences to defendants who committed their crimes as children." Id. at 58.
The Eighth Amendment to the United States Constitution states that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." U.S. Const. amend. VIII. The Eighth Amendment is unique in constitutional jurisprudence because it "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality). "[T]he Eighth Amendment's protection against excessive or cruel and unusual punishment flows from the basic 'precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.'" Kennedy v. Lousiana, 554 U.S. 407, 419 (2008) (quoting Weems v. United States, 217 U.S. 349, 367 (1910)).
Additionally, "the guarantee against cruel punishment contained in the Pennsylvania Constitution, Article 1, Section 13, provides no broader protections against cruel and unusual punishment than those extended under the Eighth Amendment to the United States Constitution." Commonwealth v. Lankford, 164 A.3d 1250, 1252 (Pa. Super. 2017) (citation omitted). The Eighth Amendment does not require strict proportionality between the crime committed and the sentence imposed; rather, it forbids only extreme sentences that are grossly disproportionate to the crime. See id.
Here, Torres was convicted of rape of a child, and sentenced in accordance with the mandatory minimum pursuant to section 9718, which provides, in relevant part:
Sentences for offenses against infant persons
(a) Mandatory sentence.--
(3) A person convicted of the following offenses shall be sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S.[A.] § 3121(c) and (d)--not less than ten years.42 Pa.C.S.A. § 9718(a)(3).
Importantly, the mandatory minimum sentence under section 9718(a)(3) has already been upheld by our Supreme Court. See Commonwealth v. Resto, 179 A.3d 18 (Pa. 2018). Additionally, Torres' argument would essentially require us to invalidate all mandatory minimums for juvenile offenders. To do so would invalidate case law set forth by the Supreme Court of the United States, our Supreme Court of Pennsylvania, and other panels of this Court. We categorically lack the authority to overturn any of those decisions.
The plurality's OAJC in Resto, although binding on the parties in that case, has limited precedential value because it did not command the majority of the justices participating in the case. See Commonwealth v. Brown, 23 A.3d 544, 556 (Pa. Super. 2011) (citation omitted). However, where concurring opinions enumerate the portions of the plurality's opinion in which the author joins, those portions in agreement gain precedential value. See id. As the plurality's OAJC and the concurring opinions in Resto agree, section 9718(a)(3)'s ten-year mandatory minimum is not unconstitutional under Alleyne v. U.S., 570 U.S. 99 (2013). See Resto, supra. Consequently, Resto is binding here, where Torres was sentenced to the ten-year mandatory minimum under Section 9718(a)(3) for his conviction of rape of a child.
Moreover, nearly all of the law Torres cites applies to life sentences for juveniles tried as adults. See Miller v. Alabama, 567 U.S. 460 (2012) (holding mandatory life sentences without parole for juvenile offenders violate the Eighth Amendment); Felder, supra. By contrast, as noted supra, Torres is no longer a juvenile and Torres was sentenced to an aggregate 19 to 40 years in prison, not a life sentence. Therefore, none of those decisions is applicable to the instant case and we decline Torres' invitation to "forbid the application of mandatory minimum sentences to defendants who committed their crimes as children." See Brief for Appellant, at 58. Furthermore, Torres was not entitled to any special sentencing benefits under the Juvenile Act. See Armolt, supra. We conclude that there is no support in the law for Torres' claim, and, therefore, Torres' claim fails.
To the extent that Torres argues the trial court erred in failing to consider his age at the time of the offense, that argument is more appropriately framed as a challenge to the discretionary aspects of his sentence, as we discuss infra. See Commonwealth v. Summers, 245 A.3d 686, 692 (Pa. Super. 2021) (trial court's alleged failure to consider defendant's age at time of offense invokes discretionary aspects of sentencing).
In his third claim, Torres contends that his sentence to 19 to 40 years' incarceration is manifestly excessive, clearly unreasonable, and, in so sentencing him, the trial court ignored significant mitigation including Torres' age at the time of the offenses and the abuse Torres himself suffered as a child. See Brief for Appellant, 22-24. Torres' claim challenges the discretionary aspects of his sentence, from which there is no automatic right to appeal. See Commonwealth v. Austin, 66 A.3d 798, 807-08 (Pa. Super. 2013). Rather, when an appellant challenges the discretionary aspects of his sentence, we must consider his brief on this issue as a petition for permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997). Prior to reaching the merits of a discretionary sentencing issue,
[this Court conducts] 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
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) (quotation marks and some citations omitted).
Here, Torres has filed a timely notice of appeal, post-sentence motion, and properly included a Rule 2119(f) statement in his brief. Moreover, Torres' claim raises a substantial question. See Commonwealth v. Swope, 117 A.3d 763, 770 (Pa. Super. 2015) (excessive sentence claim combined with claim that court failed to consider mitigating factors raises substantial question). Accordingly, we shall review the discretionary aspects of Torres' sentence.
We adhere to the following standard of review:
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 as a manifestly unreasonable decision.Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007) (citation omitted).
A sentencing judge has broad discretion in determining a reasonable penalty, and appellate courts afford the sentencing court great deference, as it is the sentencing court that is in the best position to "view the defendant's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime." Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citation omitted). When imposing a sentence, the sentencing court must consider "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). "[A] court is required to consider the particular circumstances of the offense and the character of the defendant." Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). In particular, the sentencing court should refer to the defendant's prior criminal record, his age, personal characteristics, and his potential for rehabilitation. Id.
Instantly, the trial court had the benefit of a PSI. N.T. Sentencing Hearing, 4/18/22, at 7, 19. "[W]here the trial court is informed by a [PSI], it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed." Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citation omitted). Additionally, the trial court sentenced Torres in the standard range for each count, and the court imposed only two sentences consecutively. See Sentencing Order, 4/18/22, at 1-3; see also Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa. Super. 2010) (this Court will not disturb consecutive sentences unless aggregate sentence is "grossly disparate" to defendant's conduct); Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa. Super. 2018) (sentencing court afforded broad discretion to impose sentences concurrently or consecutively).
At the sentencing hearing, the trial court provided a robust history of Torres' life and upbringing including, but not limited to, the sexual, physical, and emotional abuse Torres suffered at the hands of his biological mother and stepfather. See N.T. Sentencing Hearing, 4/18/22, at 19-25. Additionally, the trial court expressly stated that it considered that Torres was born to two teenage parents, who later separated and remarried, his current engagement, the bonds Torres has with his half-siblings on his biological father's side, and his employment history. Id. In total, the trial court considered a detailed summary of Torres' life from birth to present, including his struggles and his achievements. Id.
Therefore, our review confirms that the trial court considered all of the relevant sentencing factors, and appropriately set forth its reasons for imposing an aggregate 19 to 40 year period of incarceration. See Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (appellate court cannot reweigh sentencing factors in place of trial court merely because trial court did not weigh factors as defendant would have liked). Moreover, as indicated above, the trial court had the benefit of a PSI and imposed only standard-range sentences. See Ventura, supra. The trial court's consecutive imposition of two of those sentences is of no moment. See Radecki, supra. Therefore, we conclude that the trial court did not abuse its discretion in imposing Torres' sentence, and that Torres' challenge to the discretionary aspects of his sentence is without merit. See Robinson, supra.
Judgment of sentence affirmed.
Stevens, P.J.E., joins this Opinion.
Bowes, J., files a Concurring Opinion.
Judgment Entered.
CONCURRING OPINION BY BOWES, J.
I agree with my esteemed colleagues that Appellant's judgment of sentence should be affirmed. Further, I fully join the Majority's resolution of Appellant's final issue challenging the discretionary aspects of his sentence. See Majority Opinion at 10-13. I write separately because I would resolve Appellant's other two claims differently.
Appellant first argues that the trial court should have granted his motion to dismiss because his due process rights under the U.S. and Pennsylvania constitutions were violated when the Commonwealth's filed criminal charges against him nine years after it received complaints about acts that he committed at ages thirteen through fifteen. As its basis for rejecting it, the Majority cites Commonwealth v. Armolt, 294 A.3d 364 (Pa. 2023), in which our High Court held that the adult criminal court had jurisdiction to try, convict, and sentence forty-two-year-old Armolt for crimes that he committed when he was a juvenile. See Majority Opinion at 5-6. However, in reaching that decision, the Armolt Court deemed waived for lack of development, and therefore did not resolve, Armolt's claims that subjecting him to criminal punishment for crimes committed while he was a juvenile violated constitutional guarantees of due process, equal protection, and freedom from cruel and unusual punishment. See Armolt, supra at 379-80.
Unlike Armolt, Appellant does not contend that the trial court lacked jurisdiction to try him as an adult for offenses he committed as a juvenile. Indeed, he expressly concedes that "the adult criminal justice system had jurisdiction over [him]." Appellant's brief at 34-35. Rather, Appellant raises a constitutional challenge to his belated prosecution that Armolt had waived. Specifically, Appellant argues that the delay in prosecuting him violated his due process rights because he suffered actual prejudice from the delay and the Commonwealth proffered no reasonable basis for it. See Appellant's brief at 29-34 (citing, inter alia, Commonwealth v. Wright, 865 A.2d 894, 901 (Pa.Super. 2004) ("[P]re-arrest delay constitutes a due process violation where there has occurred actual prejudice to the defendant and there existed no proper reasons for postponing the defendant's arrest." (cleaned up)).
Accordingly, I cannot agree with my colleagues that the Armolt decision informs our resolution of Appellant's due process claim. Instead, I would affirm the denial of Appellant's motion to dismiss based upon the reasoning of the trial court. See Trial Court Opinion, 7/28/22, at 7 (explaining that, even if Appellant were able to establish actual prejudice, there was nothing improper about the delay, as the singe victim who made a report in 2009 failed to stand by her allegations during a subsequent forensic interview, and charges were promptly filed in 2018 when Appellant's siblings next alleged abuse and substantiated the claims). Accord Commonwealth v. Monaco, 869 A.2d 1026 (Pa.Super. 2005) (holding there was no merit to due process claim raised in connection with adult prosecution for offenses committed by juvenile where there was no improper motivation for the delay);1 Commonwealth v. Anderson, 630 A.2d 47 (Pa.Super. 1993) (reversing dismissal of charges against adult for offenses committed as a child where the appellant was responsible for the delay due to his "deliberate avoidance of the justice system").2
My disagreement with the Majority's resolution of Appellant's second issue is in a similar vein. There, Appellant argues that (1) a ten-year mandatory minimum sentence, and (2) an aggregate term of nineteen to forty years of incarceration, imposed for the repeated sexual abuse of his much-younger siblings while he was a young teenager, constitutes cruel and unusual punishment. See Appellant's brief at 35-58.
Specifically, Appellant relies upon Miller v. Alabama, 567 U.S. 460 (2012), and its progeny in asserting that "'a sentencer must have discretion to consider youth before imposing' sentence."3 Appellant's brief at 43 (quoting Jones v. Mississippi, 141 S.Ct. 1307, 1316 (2021) (emphasis omitted)). He therefore urges us to declare that the Eighth Amendment of the federal Constitution, and Article I, § 13 of the Pennsylvania Constitution: (1) "require a criminal court to consider the diminished culpability of youth when imposing a sentence where the defendant committed the crime as a child;" and (2) "forbid the application of mandatory minimum sentences to defendants who committed their crimes as children." Appellant's brief at 58.
In declining Appellant's request, the Majority asserts that so ruling would run afoul of our Supreme Court's plurality decision in Commonwealth v. Resto, 179 A.3d 18 (Pa. 2018). See Majority Opinion at 9. As the Majority correctly observes, three of the five Justices who participated in deciding Resto agreed that 18 Pa.C.S. § 9718, which requires a mandatory minimum sentence of not less than ten years for persons convicted of, inter alia, rape of a child, does not violate the Sixth Amendment's prohibition against judicial fact-finding recognized in Alleyne v. United States, 570 U.S. 99 (2013). See Majority Opinion at 9 n.8. However, the Resto Court did not review § 9718 pursuant to the Eighth Amendment.
The Majority also rejects Appellant's Eighth Amendment challenge to § 9718 because it finds the decisions upon which Appellant relies inapplicable since they involve life sentences for juveniles tried as adults rather than lesser terms. See Majority Opinion at 9-10. Further, the Majority reiterates that Appellant "was not entitled to any special sentencing benefits under the Juvenile Act." Id. at 10 (citing Armolt, supra).
Respectfully, I fail to see how our High Court's Resto decision has any relevance to the instant appeal. No claim of cruel and unusual punishment was raised in that case. The fact that the mandatory minimum statute at issue survived a Sixth Amendment challenge does not make it impervious to attack on other constitutional bases. Further, since jurisdiction is not at issue in the case sub judice, and, as discussed above, that was the only issue decided in Armolt, that case also does not supply relevant guidance to this constitutional challenge.
Even so, I find the learned Majority's election not to make the declarations of unconstitutionality that Appellant seeks to be correct. The Supreme Court's Miller decision, even by extension of its foundational recognition of the transience of youth and its attendant lack of sound decision-making, did not invalidate the imposition of all mandatory sentences upon juvenile offenders, only those which "irrevocably sentenc[e] them to a lifetime in prison." Miller, supra at 479. When the Commonwealth does not seek a sentence of life without the possibility of parole, "[t]he sentencing court is not required to consider the Miller factors[.]" Commonwealth v. Summers, 245 A.3d 686, 693 (Pa.Super. 2021). Furthermore, Appellant's argument that a ten-year mandatory minimum sentence for a juvenile convicted of rape of a child violates the Eighth Amendment requirements established by Miller and its progeny has already been implicitly rejected by our holding that the Miller decision bore no relevance to a challenge to the thirty-year mandatory minimum for second-degree murder. See Commonwealth v. Derrickson, 242 A.3d 667, 678-79 (Pa.Super. 2020).
I also discern no merit in Appellant's Miller-based Eighth Amendment attack upon his aggregate sentence. As the Majority properly notes in resolving Appellant's discretionary aspects claim, the trial court here thoroughly considered the mitigating factor of Appellant's youth, along with the other pertinent evidence, in determining the sentence best suited to meeting his rehabilitative needs. See Majority Opinion at 12-13. Indeed, the trial court "extensively considered . . . Appellant's youth at the time of the commission of his offenses" in arriving at the aggregate sentence it deemed necessary and appropriate in light of all of the sentencing factors. See Trial Court Opinion, 7/28/2, at 13-14. Thus, the trial court in fact undertook the very consideration of youth that Miller would require.
Moreover, the punishment imposed upon Appellant is not out of proportion with Appellant's conduct. As the trial court indicated, "Appellant preyed upon three minor children of a very tender age," and there was "an inherent cruelty [to] his conduct" given the position of authority that he held as a caregiver. Id. at 14. With all sentences falling within the standard range and all running currently but for one, Appellant will serve a fraction of the time that the court could have lawfully imposed. There is no manifest abuse of discretion here, let alone so harsh a sentence as to be unconstitutionally cruel and unusual.
It is for these reasons that I would affirm Appellant's judgment of sentence.
[*] Former Justice specially assigned to the Superior Court.