For the Defense - Vol. 7, Issue 2 - 34

and defense argued that in Batts II, the Pennsylvania
Supreme Court did precisely what Jones explicitly said the
Court was permitted to do: set up appropriate procedures
to implement Miller and Montgomery. However, the
Supreme Court in Felder went a different route. The
Felder Court read Jones as implementing the Eighth
Amendment by narrowly reading Miller as only requiring
that a sentencing judge be aware that the juvenile was a
juvenile. For this reason, Felder overruled Batts II as the
Eighth Amendment did not require the procedures it had
created in Batts II.
2022 Onwards!
So, after a decade of litigation post-Miller, we can now
look at what legal issues remain open, particularly in light
of Felder. It is clear that mandatory life sentences are
barred, and discretionary life sentences are permitted in
appropriate circumstances. I see three challenges to life
sentences (or de facto life) that are still viable: challenges
to the discretionary aspects of a life (or de facto) sentence,
challenges under the Pennsylvania Constitution, and a
challenge under Jones and Miller.
Abuse of Discretion Challenges to Life Without Parole
Sentences
You can still challenge a judge's imposition of a
discretionary life sentence as an abuse of discretion.
Though discretionary challenges of sentences are
commonly unsuccessful, there is reason to be hopeful
that a challenge to a discretionary life sentence might be
viewed differently by the Superior Court. The juvenile in
Schroat30
change[,] " Montgomery, 577 U.S. at 212, 136
S.Ct. 718.31
It is important to note that Schroat had properly
preserved his challenge to the discretionary aspects of
his sentence by 1) preserving the issue at sentencing or
in a post-sentence motion, 2) complying with Pa.R.A.P.
2119(f), which required that the appellate brief have
a separate section setting forth a concise statement of
the reasons relied upon for allowance of appeal of the
discretionary aspects of a sentence, and 3) by presenting
a substantial question that the sentence appealed from
is not appropriate under the Sentencing Code. The
Superior Court will likely find waiver of even a meritorious
challenge to a life sentence if these procedures are not
explicitly followed. In DeJesus,32
the Superior Court en
banc found a challenge to the discretionary aspects of a
life sentence waived because the defendant on appeal did
not comply with Pa.R.A.P. 2119(f) and did not explain why
the sentence was not appropriate under the Sentencing
Code.
challenged his discretionary life sentence. At
the sentencing hearing, the defense had presented an
expert witness, a psychiatrist, who testified that Schroat
was a minimal risk to reoffend and had demonstrated
rehabilitation while in prison. The Commonwealth did not
present any expert testimony to contradict the defense
expert. The sentencing judge found that the defendant
would likely reoffend and discounted the uncontradicted
testimony of the defense expert. The Superior Court
found that the sentencing court had abused its discretion:
In total, the court's opinion reflects a lack
of consideration for Appellant's youth,
history, and rehabilitative needs in favor of
an inordinate focus on the heinous act he
committed as a minor. Appellant presented
significant, uncontroverted evidence that
he has matured and made steps toward
rehabilitation while in prison. Yet, in the
sentencing court's view, Appellant has made
no progress because he committed murder
in 1992. This view directly contradicts the
Supreme Court's edict that " children who
commit even heinous crimes are capable of
34 For The Defense l Vol. 7, Issue 2
Schroat is also significant because it was the first case
to consider the impact of the Supreme Court's decision in
Felder on appellate review of life sentences. By finding
the life sentence an abuse of discretion, the Schroat
Court demonstrated that there will be robust appellate
review of such sentences. This may be precisely what
Justice Donohue referred to in her concurrence denying
reargument in Felder as an as-applied challenge. She
noted; " However, Jones itself explicitly stated that there
was no as-applied challenge in that case. 'Moreover, this
case does not properly present-and thus we do not
consider-any as-applied Eighth Amendment claim of
disproportionality regarding Jones's sentence.' Jones, 141
S. Ct. at 1322. "
The Pennsylvania Constitution Is Broader Than the
Federal Constitution
In both Batts I and Batts II, the defense had challenged
the life without parole sentences under both the United
States and Pennsylvania Constitutions. The Pennsylvania
Supreme Court in Batts I and Batts II rejected the
arguments, finding that the Pennsylvania Constitution's
cruel punishment clause under Section 1, Article 13 was
co-extensive with the United States Constitution's Eighth
Amendment. This is important because if the Pennsylvania
Constitution was broader, Pennsylvania would be free to
provide broader protections than those accorded under
the Eighth Amendment and a decision like Jones would
not limit the development of law in Pennsylvania. Justice
Donohue specifically noted in her concurrence:
Today's decision does not foreclose further
developments in the law as to the legality of
juvenile life without parole sentences (or their

For the Defense - Vol. 7, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 2

Contents
For the Defense - Vol. 7, Issue 2 - 1
For the Defense - Vol. 7, Issue 2 - 2
For the Defense - Vol. 7, Issue 2 - Contents
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