For the Defense - Vol. 7, Issue 2 - 32

serving life sentences, and 18 Pa.C.S.A. § 1102(a), which
required a sentencing court to impose a mandatory life
sentence for those convicted of first- or second-degree
murder. To reconcile those statutes with Miller, the
Pennsylvania Supreme Court held that the trial court must
resentence Batts and consider his individual circumstances
to determine if he should be resentenced to life
imprisonment with or without parole. If the sentencing
court determined that a sentence of life imprisonment
with the possibility of parole was appropriate, the court
should impose a minimum term of years sentence which
must be served before the Parole Board could consider
parole. The Batts I Court left intact the maximum sentence
of life. This meant that the person would be eligible for
parole after serving the minimum sentence but would be
on lifetime parole. If the sentencing court determined
that a sentence of life imprisonment without parole was
appropriate, the sentencing court should impose a life
sentence.
Batts argued that the Pennsylvania Constitution's cruel
punishment clause (Article 1, Section 13) was broader
than the United States Constitution's cruel and unusual
punishment clause (Eighth Amendment). This was
significant because had Batts' argument been accepted,
the development of Pennsylvania law would not be tied to
the United States Supreme Court precedent and could be
broader and more protective. However, the Pennsylvania
Supreme Court rejected this argument even though it
acknowledged that, " In terms of the history, Appellant is
correct that there is an abiding concern, in Pennsylvania,
that juvenile offenders be treated commensurate with
their stage of emotional and intellectual development
and personal characteristics. " 17
After Batts I, Pennsylvania courts could begin imposing
sentences other than mandatory life imprisonment for
juveniles convicted of either first- or second-degree murder,
but this only applied to juveniles convicted after June 25,
2012, the date of Miller. In a 4-3 decision, the Pennsylvania
Supreme Court in Cunningham18
held that Miller was not
retroactive and, therefore, only applied to cases for which
there was a conviction after Miller. Fortunately, the United
States Supreme Court three years later in Montgomery
held that Miller was retroactive, overruling Cunningham
and setting the stage for new sentencing hearings for the
over five hundred Pennsylvania juvenile lifers.
Because it had never been done before, there were
many questions about juvenile lifer resentencing
proceedings, e.g., who had the burden of proof? what
was the legal standard? what notice was required if the
Commonwealth was seeking life without parole? These
and many other questions were addressed and resolved in
Batts II. The Pennsylvania Supreme Court held that it had
the constitutional authority to set up these procedures
pursuant its constitutional " power to prescribe general
32 For The Defense l Vol. 7, Issue 2
rules governing practice, procedure and the conduct of
all courts. " 19
Pursuant to this power, the Pennsylvania
Supreme Court ruled that there was a presumption against
imposition of a life without parole sentence and that to
overcome that presumption, the Commonwealth must
prove beyond a reasonable doubt that the defendant
is
irreparably
corrupted
or
irretrievably
depraved.
Reasonable notice must be provided if the Commonwealth
was seeking a life sentence. The Supreme Court held that
it was not necessary for the Commonwealth to have an
expert if they were seeking a life sentence. The Batts II
Court also held that a jury was not required to make the
determination that the defendant met the standard for
possible imposition of a life sentence.
With Batts II's establishment of juvenile lifer resentencing
rules, the Pennsylvania Supreme Court gave the trial
courts the guidance they needed to have constitutional
resentencing procedures. In fact, by March 31, 2022,
Pennsylvania had resentenced 474 of its 521 juvenile
lifers.20
The procedures that Batts II established for imposing
life sentences should similarly apply for a sentence that,
because of its length, should be treated the same as a
life sentence, i.e. - a de facto life sentence. The Superior
Court has struggled with what constitutes a de facto
life sentence. Foust21
recognized that the de facto life
issue was one of first impression in Pennsylvania. Foust
diagnosed the problem as determining when a lengthy
sentence became a de facto life sentence. The Foust Court
had to determine if a 60 year to life sentence, composed
of two consecutive 30 years to life sentences, was a de
facto life sentence. The Superior Court reasoned that:
There are certain term-of-years sentences
which clearly constitute de facto LWOP
sentences. For example, a 150-year sentence is
a de facto LWOP sentence. Similarly, there are
clearly sentences which do not constitute de
facto LWOP sentences. A sentence of 30 years
to life falls into this category. We are unaware
of any court that has found that a sentence of
30 years to life imprisonment constitutes a de
facto LWOP sentence for a juvenile offender.22
The Foust Court decided it did not have to analyze if a 60
year to life sentence as de facto life. Instead, it examined
the two 30 years to life consecutive sentences individually.
As the above paragraph demonstrates, the Court put the
rabbit in the hat and concluded that 30 years to life is
" clearly " not de facto Iife. Foust provided no analysis to
assist courts in determining the parameters of de facto
life.
The Superior Court in Felder also failed to provide any
helpful analysis.23
It concluded it was " unconvinced that
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