Commonwealth v. Lekka

• Decision Date: 10 May 2019
• Docket Number: No. 772 EDA 2018,772 EDA 2018
• Citation: 210 A.3d 343
• Parties: COMMONWEALTH of Pennsylvania v. John LEKKA, Appellant
• Court: Pennsylvania Superior Court

210 A.3d 343

COMMONWEALTH of Pennsylvania

v.John LEKKA, Appellant

No. 772 EDA 2018

Superior Court of Pennsylvania.

Argued February 13, 2019

Filed May 10, 2019

Stuart M. Wilder, Doylestown, for appellant.

Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS,^* J.

OPINION BY COLINS, J.:

Appellant, John Lekka, appeals from the judgment of sentence, imposed upon resentencing for his 1978 conviction for first-degree murder,¹ of a minimum term of 45 years and a maximum term of life imprisonment and an order to pay restitution in the amount of $ 1,000 to his victim's family. We vacate the order of restitution and affirm the judgment of sentence in all other respects.

We briefly recount the underlying facts in this matter, which are set forth in a stipulation by the parties that was entered into the record at the sentencing hearing. Court's Ex. 2. On November 13, 1978, Appellant, then aged 17, and Robert Buli, then aged 16, were working on Buli's pickup truck at Buli's house when Diana Goeke, Buli's ex-girlfriend who was aged 17, arrived. Appellant, Buli and Goeke walked to a woody area behind a school where Buli grabbed Goeke in a headlock, yelling at Appellant repeatedly to hit Goeke. Appellant grabbed a piece of wood and hit her on the head, knocking Goeke to the ground. Buli and Appellant then each hit Goeke multiple times in the head with a metal pipe. Appellant and Buli proceeded to drag Goeke's body to a dug-out, earthen fort and left her there. Appellant and Buli returned later that evening with Appellant's sister's boyfriend at which point they heard Goeke gurgling inside the fort. The three young men then carried a 225-pound piece of concrete and placed it over the opening of the fort. Buli stomped on the concrete and it fell inside the fort onto Goeke, crushing her skull.

On November 16, 1978, Appellant and Buli confessed to their crimes in police interviews, and they were charged with first-degree murder and conspiracy.² On September 17, 1979, Appellant and Buli pleaded guilty to criminal homicide³ and conspiracy. A degree of guilt hearing took place on September 20, 1979, at which point Appellant and Buli were found guilty by the trial court of first-degree murder. On November 15, 1979, Appellant was sentenced to life imprisonment on the murder charge and a consecutive period of 5 to 10 years of incarceration on the conspiracy charge.

On July 8, 2010, Appellant filed a petition under the Post Conviction Relief Act (PCRA)⁴ in which he argued that his mandatory life sentence was unconstitutional under the Eighth and Fourteenth Amendments of the United States Constitutions. The PCRA court denied the petition without a hearing pursuant to Rule of Criminal Procedure 907. Appellant appealed the denial to this Court, which affirmed the PCRA court's decision.

In 2012, the United States Supreme Court held in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), that a mandatory sentence of life without possibility of parole for individuals who were under the age of 18 at the time of the offense violates the prohibition on cruel and unusual punishment in the Eighth Amendment of the United States Constitution. Id. at 479-80, 132 S.Ct. 2455. In Miller , the Supreme Court listed various factors that a court must consider when imposing a life-without-parole sentence on a juvenile offender including the "hallmark features" of youth, such as "immaturity, impetuosity, and failure to appreciate risks and consequences." Id. at 476-78, 132 S.Ct. 2455. This Court summarized the Miller factors in Commonwealth v. Knox , 50 A.3d 732 (Pa. Super. 2012), which were subsequently adopted by our Supreme Court in Commonwealth v. Batts , 620 Pa. 115, 66 A.3d 286 (2013) ( Batts I ), as follows:

[A]t a minimum [the sentencing court] should consider a juvenile's age at the time of the offense, his diminished culpability and capacity for change, the circumstances of the crime, the extent of his participation in the crime, his family, home and neighborhood environment, his emotional maturity and development, the extent that familial and/or peer pressure may have affected him, his past exposure to violence, his drug and alcohol history, his ability to deal with the police, his capacity to assist his attorney, his mental health history, and his potential for rehabilitation.

Id. at 297 (quoting Knox , 50 A.3d at 745 ).

Appellant filed a second PCRA petition on August 23, 2012, seeking the vacation of his life sentence pursuant to Miller . The PCRA court entered an order denying Appellant's second PCRA petition on November 7, 2014, which Appellant appealed to this Court. While the appeal of Appellant's second PCRA petition was pending before this Court, the U.S. Supreme Court ruled in Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), that Miller 's prohibition of mandatory life-without-parole sentences for juvenile offenders was a substantive rule that is retroactive in state cases on collateral review. Id. at 736. On March 23, 2016, this Court issued a decision vacating Appellant's mandatory life-without-parole sentence in light of Montgomery and remanding for resentencing.

Appellant's resentencing hearing took place over the course of three days in October 2017. At the conclusion of the hearing, the sentencing court sentenced Appellant to a minimum of 45 years and a maximum of life imprisonment on the first-degree murder charge with credit for time served. Sentencing Order, 10/5/17; N.T., 10/5/17, at 6. This sentence was ordered to run concurrently with the 5-to-10 year term of incarceration sentence previously imposed in 1979 for the conspiracy charge. Sentencing Order, 10/5/17; N.T., 10/5/17, at 7. In addition, the sentencing court ordered Appellant to pay $ 1,000 in restitution to the victim's heirs for funeral expenses.⁵ Sentencing Order, 10/5/17; N.T., 10/5/17, at 6-7. Appellant filed a motion for reconsideration of the sentence; at the hearing for the motion, Appellant attempted to submit his Exhibit D-1, which analyzed the disposition of the resentencing for each of the 120 juvenile offenders in Pennsylvania who were resentenced pursuant to Miller and Montgomery . On March 5, 2018, the sentencing court denied Appellant's motion for reconsideration and the admission of Exhibit D-1 into evidence. N.T., 3/5/18, at 3, 5-6. Appellant then filed a timely appeal of the judgment of sentence.⁶

Appellant presents six issues for our review:

1. Was the Appellant's sentence, ten years higher than that decreed by the Pennsylvania Supreme Court as a starting point for sentencing pre-2012 juveniles previously sentenced to life without parole, an abuse of discretion when the departure from that starting point was not explained?

2. Was the Appellant's sentence excessive when the sentencing court focused on what it inaccurately felt was the [Appellant]'s lack of insight and lack of acknowledgment of his role in the offense, and the nature of the crime, to the exclusion of an exemplary prison record and uncontradicted evidence that he was unlikely to re-offend?

[3]. Did the sentencing court err in excluding evidence of sentences imposed throughout the Commonwealth in similar cases to measure whether its sentence promoted uniformity and certainty in sentencing?

[4]. Did the sentencing court err in not applying the [ ] factors set forth in Miller v. Alabama?

[5]. Is a sentence of forty-five years to life to a 17-year-old convicted of first degree murder an illegal de facto life sentence that cannot be imposed when the Commonwealth certified it will not seek a life sentence?

[6]. Was a sentence of restitution imposed in the absence of any claim for it or evidence of the amount illegal?

Appellant's Brief at 3-4 (questions reordered to facilitate disposition; duplicative question omitted).

Appellant's first two issues relate to the discretionary aspect of his sentence. Where an appellant challenges the discretionary aspect of a sentence, we must engage in a four-part analysis to determine:

(1) whether the appeal is timely; (2) whether Appellant preserved his [ ] issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [pursuant to Rule of Appellant Procedure 2119(f), Pa.R.A.P. 2119(f) ]; and (4) whether the concise statement raises a substantial question that the sentence is [not] appropriate under the [S]entencing [C]ode.

Commonwealth v. Williams , 198 A.3d 1181, 1186 (Pa. Super. 2018) (citation omitted).

Appellant filed a timely notice of appeal, preserved his appellate issue in a post-sentence motion, and included in his brief the concise statement required by Rule 2119(f). Appellant's Brief at 34-38.⁷ Therefore, we will address the issue of whether Appellant has raised a substantial question that his sentence is not appropriate under the Sentencing Code.

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Manivannan , 186 A.3d 472, 489 (Pa. Super. 2018) (internal citations and quotation marks omitted).

In his first issue, Appellant argues that the sentencing court abused its discretion by not considering our Supreme Court's statement in Commonwealth v. Batts , 640 Pa. 401, 163 A.3d 410, 457-58 (2017) ( Batts II ), that a sentencing court resentencing a juvenile offender should "seek guidance" from the 35-year mandatory minimum for a 17-year old offender convicted of first-degree murder under Section 1102.1(a)(1) of the Crimes Code, 18 Pa.C.S. § 1102.1(a)(1). Appellant contends that this...