Commonwealth v. Foust

Decision Date21 February 2018
Docket NumberNo. 1118 WDA 2016,1118 WDA 2016
Citation180 A.3d 416
Parties COMMONWEALTH of Pennsylvania, Appellee v. Michael Paul FOUST, Appellant
CourtPennsylvania Superior Court

180 A.3d 416

COMMONWEALTH of Pennsylvania, Appellee
Michael Paul FOUST, Appellant

No. 1118 WDA 2016

Superior Court of Pennsylvania.

Argued August 15, 2017
Filed February 21, 2018

Marsha Levick, Philadelphia, for appellant.

Marie T. Veon, Assistant District Attorney, Franklin, for Commonwealth, appellee.



180 A.3d 420

I. Introduction

Appellant, Michael Paul Foust, appeals from the judgment of sentence entered on July 5, 2016, as made final by the denial of his post-sentence motion on July 19, 2016. In this case of first impression in Pennsylvania, we consider whether a term-of-years sentence which exceeds a juvenile homicide defendant's life expectancy constitutes an unlawful de facto sentence of life imprisonment without the possibility of parole ("LWOP"). As an initial matter, we hold that because the Supreme Court of the United States has severely limited the circumstances under which juvenile defendants may be sentenced to LWOP, a de facto LWOP sentence is illegal in certain circumstances when imposed upon a juvenile offender. We also conclude that, in cases such as the present one that involve multiple killings, we must evaluate the sentence for each crime separately when determining if a term-of-years sentence constitutes a de facto LWOP sentence. Finally, we affirm Appellant's judgment of sentence because, when separately considered, the consecutive, 30–years to life sentences imposed in this case for two killings do not constitute unlawful de facto LWOP punishments nor did the trial court abuse its discretion in imposing these sentences.

A. Factual Background

On November 22, 1993, Appellant, then 17 years old, and Kevin Zenker ("Zenker") drove from Oil City to Donald Foust's residence. Appellant and Zenker stole one of Donald Foust's handguns and then returned to Oil City. While they were driving past Darla Bump's ("Bump's") and Russell Rice's ("Rice's") residence, Zenker fired at Bump's dog. Appellant turned the vehicle around and passed the residence again. Bump and Rice got in their vehicle and began following Appellant and Zenker. Eventually, Appellant slowed the car to a stop, grabbed the firearm, jumped out of the vehicle, approached Bump's and Rice's vehicle, and opened fired. Bump and Rice died from multiple gunshot wounds sustained during Appellant's assault.

B. Procedural History

On February 1, 1994, the Commonwealth charged Appellant via criminal information with two counts of first-degree murder.1 On May 13, 1994, Appellant moved to transfer his case to the Juvenile Division of the Court of Common Pleas of Venango County. See 42 Pa.C.S.A. § 6355 (West 1994).2 The trial court denied that motion on May 24, 1994, and trial commenced on June 22, 1994. Appellant was convicted of both counts of first-degree murder. On June 30, 2014, the trial court sentenced Appellant to two consecutive terms of LWOP. On direct appeal, this Court affirmed and our Supreme Court denied allowance of appeal. Commonwealth v. Foust , 446 Pa.Super. 676, 667 A.2d 418 (1995) (unpublished memorandum), appeal denied , 543 Pa. 709, 672 A.2d 304 (1995).

On January 5, 1998, Appellant filed his first pro se petition pursuant to the Post–Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 – 9546. Counsel was appointed and the PCRA court held an evidentiary hearing. The PCRA court denied the petition on September 2, 1999. This Court

180 A.3d 421

affirmed the denial of relief and our Supreme Court denied allowance of appeal. Commonwealth v. Foust , 828 A.2d 397 (Pa. Super. 2003) (unpublished memorandum), appeal denied , 575 Pa. 702, 837 A.2d 1177 (2003).

On July 9, 2010, Appellant filed his second pro se PCRA petition. On October 18, 2010, the PCRA court dismissed the petition. This Court affirmed and our Supreme Court denied allowance of appeal. Commonwealth v. Foust , 34 A.3d 217 (Pa. Super. 2011) (unpublished memorandum), appeal denied , 613 Pa. 660, 34 A.3d 826 (2011). Appellant filed his third pro se PCRA petition on July 16, 2012. Counsel was appointed and filed an amended petition. On June 25, 2014, the PCRA court dismissed the petition.3

On February 24, 2016, Appellant filed his fourth pro se PCRA petition, which he amended on March 28, 2016. In that petition, he argued that his LWOP sentences violated the Eighth Amendment of the United States Constitution as interpreted by Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).4 On May 12, 2016, the PCRA court granted the petition and vacated Appellant's judgment of sentence.5

Counsel then was appointed for resentencing. On July 5, 2016, the trial court sentenced Appellant to 30 years to life for each first-degree murder conviction and ordered those two sentences to run consecutively. Hence, the trial court sentenced Appellant to an aggregate term of 60 years to life imprisonment. On July 15, 2016, Appellant challenged the legality of his sentence in a post-sentence motion. The trial court denied that motion on July 19, 2016. This timely appeal followed.6

C. Questions Presented

Appellant presents two issues for our review:

1. Pursuant to [ Miller , which invalidated] the Pennsylvania first and second[-]degree murder7 statutes for juveniles, was the only constitutional sentence available a sentence for third[-]degree murder?

2. Is it unconstitutional to impose a sentence of 60 years to life, a de facto sentence of [LWOP], on a juvenile absent
180 A.3d 422
a finding that the juvenile is one of the rare and uncommon juveniles who is permanently incorrigible, irreparably corrupt[,] or irretrievably depraved?

Appellant's Brief at 3.8

II. Discussion

Both of Appellant's issues challenge the legality of his sentence. We review the legality of a sentence de novo and our scope of review is plenary. Commonwealth v. Melvin , 172 A.3d 14, 19 (Pa. Super. 2017) (citation omitted). To understand Appellant's challenges to the legality of his sentence, it is necessary to understand the statutory framework governing juveniles9 convicted of first and second-degree murder.

A. Legal Background

1. Pennsylvania's Prior Statutory Scheme

At the time of Appellant's conviction, the Crimes Code provided that an individual, including a juvenile, convicted of first or second-degree murder must be sentenced to a term of life imprisonment. See 18 Pa.C.S.A. § 1102(a), (b) (West 1994). The Parole Code provided that an individual sentenced to a term of life imprisonment is not eligible for parole. See 61 Pa.C.S.A. § 6137(a)(1) (West 1994). Finally, the Juvenile Act provided that the term "delinquent act" does not include the crime of murder. See 42 Pa.C.S.A. § 6302 (West 1994).

Under that statutory framework, a juvenile who committed first or second-degree murder was charged as an adult. As occurred in the case sub judice , a defendant could then request that his or her case be transferred to the Juvenile Division. See 42 Pa.C.S.A. § 6355 (West 1994). If the trial court refused to transfer the case to the Juvenile Division, and the juvenile was convicted of first or second-degree murder, the trial court had to sentence the juvenile to life imprisonment and the juvenile would never become eligible for parole. Thus, a juvenile convicted of first or second-degree murder under this statutory scheme received a mandatory LWOP sentence.

2. History of Punishment for Juvenile Offenders

Having set forth the statutory framework when Appellant was convicted and sentenced, we turn to the historical underpinnings of that statutory scheme.

When our Republic was founded, individuals over the age of 14 who were convicted of crimes were treated like adults and subject to execution. See Victor L. Streib, Death Penalty for Children: The American Experience with Capital Punishment for Crimes Committed While Under Age Eighteen , 36 Okla. L. Rev. 613, 614 (1983) ("Streib"). Individuals between the ages of seven and fourteen were presumed ineligible for the death penalty; however, this presumption was rebuttable. See id. Only children under the age of seven were ineligible for the death penalty. See id. Before 1900, at least 95 juveniles were executed. See id. at 616. At least 14 of these juveniles were executed for crimes committed when they were 14 or younger. See id. at 619.

180 A.3d 423

In 1899, Illinois became the first state to separate the juvenile justice system from the criminal justice system. See 1899 Ill. Laws 131. Over the next four decades, almost every state and the federal government passed similar legislation, which treated some, or all, juvenile offenders differently than adult defendants. E.g. 1901 P.L. 279;10 see also Streib at 616–617. This decreased the number of juveniles tried in the criminal justice system...

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