Com. v. Irby, A. ( 2018 )

J-S05041-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALBERT IRBY, :
:
Appellant : 1464 WDA 2017
Appeal from the Judgment of Sentence September 6, 2017
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000013-1969
BEFORE: OLSON, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 28, 2018
Albert Irby (Appellant) appeals from the September 6, 2017 judgment
of sentence imposed following a resentencing hearing pursuant to Miller v.
Alabama, 567 U.S. 460 (2012). We affirm.
Appellant, who was seventeen years old at the time of the
offense, was convicted by a jury of first-degree murder1 and was
sentenced on May 6, 1971, to a mandatory sentence of life
imprisonment without parole. Appellant confessed that on
September 22, 1969, he entered a store intending to commit an
armed robbery and shot the victim when the victim reached for
his gun. On direct appeal, our Supreme Court affirmed.
Commonwealth v. Irby, 284 A.2d 738 (Pa. 1971).
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1 Due to deficiencies in the decades[-]old record, it is not
possible to determine if Appellant was convicted of
additional offenses.
Commonwealth v. Irby, 145 A.3d 774 (Pa. Super. 2016) (unpublished
memorandum) at 1-2.
*Retired Senior Judge assigned to the Superior Court.
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On August 6, 2012, Appellant filed his first PCRA petition claiming that
his sentence was unconstitutional under Miller.1 The PCRA court dismissed
the petition as untimely filed.2 Upon remand from our Supreme Court, this
Court vacated Appellant’s judgment of sentence and remanded for a new
sentencing hearing. Irby, 145 A.3d 774.
On September 6, 2017, after a hearing, the PCRA court resentenced
Appellant to 48 years to life imprisonment. Appellant was granted leave to
file a post-sentence motion nunc pro tunc. In his motion, Appellant alleged,
inter alia, that his sentence was manifestly excessive. The PCRA court denied
Appellant’s motion on October 6, 2017.
Appellant timely filed a notice of appeal.3 Appellant’s sole claim on
appeal is that his minimum sentence of 48 years of incarceration is manifestly
excessive. Appellant’s Brief at 3.
Appellant challenges the discretionary aspects of his minimum sentence.
1 Appellant’s petition was filed within sixty days of the issuance of Miller.
2 This Court affirmed that order on appeal based on Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013), and Appellant filed a petition for
allowance of appeal to our Supreme Court. Thereafter, the United States
Supreme Court held that Miller applied retroactively, essentially overruling
Cunningham. Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Following
that decision, our Supreme Court granted Appellant’s petition for allowance of
appeal, vacated this Court’s order, and remanded for further proceedings.
Commonwealth v. Irby, 158 A.3d 63 (Pa. 2016) (per curiam).
3 Appellant complied with Pa.R.A.P. 1925(b). The PCRA court complied with
Pa.R.A.P. 1925(a) by issuing an order referring this Court to the resentencing
hearing transcript for a “detailed on-the-record-explanation for the sentence
imposed.” Order, 10/11/2017, at 1.
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Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We conduct 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.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Here, Appellant was granted leave to file a post-sentence motion nunc
pro tunc, timely filed a notice of appeal, and included a statement pursuant to
Rule 2119(f) in his brief. Thus, he has satisfied the first three requirements.
We now turn to consider whether Appellant has presented a substantial
question for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
828 (Pa. Super. 2007). “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.” Griffin, 65 A.3d at 935 (citation and quotation marks omitted).
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In his 2119(f) statement, Appellant paraphrases the testimony
presented at the resentencing hearing, Appellant’s Brief at 11-13, and sets
forth boilerplate statements that a substantial question is raised when a
sentence is excessive and the sentencing court “did not provide sufficient
reasons for the excessive sentence” and “the sentence is so manifestly
excessive as to constitute too severe a punishment.” Appellant’s Brief at 13.
However, Appellant offers no analysis of how these legal conclusions apply to
the facts of his case. Rather, Appellant concludes his 2119(f) statement with
an analysis practically identical to the conclusion of his argument. See
Appellant’s Brief at 23.
As demonstrated in [Appellant’s] mitigation expert … report,
and via the testimony at the 9/6/17 [r]e[]sentencing hearing,
[Appellant] is a 65 year old man who is no longer a threat to
anyone, he’s served over 48 years in prison for a crime he has
always, consistently maintained that he never committed, there
was nothing about the instant crime that was any more heinous
than other robberies that resulted in a homicide, the instant case
was clearly in the nature of a [second-degree murder] rather than
a [first-degree murder] (which would suggest 30 to life pursuant
to the [g]uidelines, rather than 35 to life),[4] he’s had no
misconducts in the prison for the past 30 years, he’s been
compliant with prescribed medications for the past 12 years, he
was essentially a model prisoner, he has loving and responsible
family who will take him in if paroled, he has [McArthur] Mosely
[from Hill House Association who runs an assistance program for
older adults released from prison] to assist with nearly every need
and requirement if paroled, and [Appellant] will be totally
4 Insofar as Appellant claims that the PCRA court used the wrong guidelines,
his claim fails ab initio. Appellant was convicted of first-degree murder, and
thus the PCRA court correctly employed the guidelines for first-degree murder.
Appellant’s assessment of what degree of murder he believes he should have
been convicted of does not determine his sentencing guidelines.
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compliant with any conditions of parole imposed on him if and
when released from prison. Hence, the manifestly excessive
minimum sentence of 48 years’ imprisonment was unwarranted,
and constituted overkill, since 30 to life would have been more
than adequate, and would have made it more likely that
[Appellant] would be quickly paroled, which now may or may
never happen. Hence, [Appellant] respectfully avers that he has
raised substantial questions.
Appellant’s Brief at 14.
As such, we find that Appellant’s specific issue on appeal amounts to an
allegation that his minimum sentence is manifestly excessive because the
PCRA court failed to consider adequately various mitigating factors. In that
regard,
“this Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a
substantial question for our review.” Commonwealth v.
Disalvo, 70 A.3d 900, 903 (Pa.[ ]Super.[ ]2013) (internal citation
omitted).
However, “prior decisions from this Court involving whether
a substantial question has been raised by claims that the
sentencing court ‘failed to consider’ or ‘failed to adequately
consider’ sentencing factors [have] been less than a model of
clarity and consistency.” Commonwealth v. Seagraves, 103
A.3d 839, 842 (Pa.[ ]Super.[ ]2014) (citing [Commonwealth v.
Dodge[, 77 A.3d 1263 (Pa. Super. 2013)]). In []Dodge, this
Court determined an appellant’s claim that the sentencing court
“disregarded rehabilitation and the nature and circumstances of
the offense in handing down its sentence” presented a substantial
question. Dodge[, 77 A.3d] at 1273.
This Court has also held that an excessive sentence claim—
in conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question.
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Commonwealth v. Caldwell, 117 A.3d 763, 769–70 (Pa. Super. 2015) (en
banc) (some citations and quotation marks omitted). Based on the above
precedent, we find that Appellant has raised a substantial question and will
review the merits of his claim.
In Commonwealth v. Batts (Batts II), 163 A.3d 410 (Pa. 2017), the
Court held, inter alia, that a trial court, in resentencing a juvenile offender
convicted prior to Miller, was constitutionally permitted to impose a minimum
term-of-years sentence and a maximum sentence of life imprisonment, thus
“exposing these defendants to parole eligibility upon the expiration of their
minimum sentences.” Batts II, 163 A.3d at 439. In fashioning a term-of-
years-to-life sentence, the lower court must consider the sentencing
requirements codified at 18 Pa.C.S. § 1102.1, which provides, in relevant part,
as follows.
(a) First degree murder.--A person who has been convicted
after June 24, 2012, of a murder of the first degree, first degree
murder of an unborn child or murder of a law enforcement officer
of the first degree and who was under the age of 18 at the time
of the commission of the offense shall be sentenced as follows:
(1) A person who at the time of the commission of the
offense was 15 years of age or older shall be sentenced to
a term of life imprisonment without parole, or a term of
imprisonment, the minimum of which shall be at least 35
years to life.
18 Pa.C.S. § 1102.1. As the Court in Batts II explained,
[t]he Miller Court concluded that sentencing for juveniles must
be individualized. This requires consideration of the defendant’s
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age at the time of the offense, as well as “its hallmark features,”
including:
immaturity, impetuosity, and failure to appreciate
risks and consequences[;] ... the family and home
environment that surrounds him—and from which he
cannot usually extricate himself—no matter how
brutal or dysfunctional[;] ... the circumstances of the
homicide offense, including the extent of his
participation in the conduct and the way familial and
peer pressures may have affected him[;] ... that he
might have been charged and convicted of a lesser
offense if not for incompetencies associated with
youth—for example, his inability to deal with police
officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own
attorneys[;] ... [and] the possibility of rehabilitation
... when the circumstances [i.e. (the youthfulness of
the offender)] most suggest it.
Id. at 431 (citations omitted).
In this case, prior to resentencing, the PCRA court provided a summary
of what it considered when fashioning Appellant’s sentence, which included
statements by Appellant and his family.
[T]he law gives us some guidance on how to do these
sentencings, and certainly … Batts [II] is a case that sets forth
many different factors to consider.
Also, our own Sentencing Code, section 9721, does the
same thing. It sets forth factors to consider, to look at when
sentencing. And certainly the murder statute in 1102 sets forth
those things.
And those are all things that I considered in trying to come
up with what I believe takes into consideration the entirety of this
situation, the crime itself, the impact on the victims, the threat to
the community and certainly your own rehabilitative needs.
In looking at those factors, I mean, I certainly note that you
were close to 18 years old when this happened. There are
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certainly sentencing situations where we’re dealing with 14- or
15-year-olds or 16-year-olds, but that’s not the case here. You
were 17-and-a-half when this occurred.
You know, this is a very brutal circumstance where you go
into the store with a gun drawn, demanding money or you would
shoot. And you do shoot, twice, in the head and the hand of a
person who is in that store for some money. Probably not a whole
lot of money. This wasn’t a big store. This wasn’t a store making
a ton of money.
You know, you are the sole shooter in this matter. You
know, I understand that you are protesting your innocence and
that you are claiming your innocence even 48 years later. The
jury has convicted you. There is a confession. I understand you’re
saying that that confession was coerced, but that confession was
also accepted by that jury.
You know, we have a situation where we have a huge impact
on the victim. We have a man who’s killed who has nine children
and a wife to support, [who was] no longer there to support them,
whose entire family relocates. They closed the store that is the
source of their livelihood. And it also impacts the community.
There is now an impact on the community. We have a shopkeeper
who has left because of the violence created by you.
You know, concerns in terms of capacity for change. I would
like to say that there is a lot, but even your brother-in-law said
that he hasn’t seen any change in 48 years. Sort of a difficult
thing to hear from the stand, that he hasn’t seen any change in
48 years.
I have major concerns, very, very serious concerns, about
your mental-health history, your potential for rehabilitation and
your willingness to accept rehabilitation. And a lot of those
concerns are based on your own words as you talked to me. You
know, that you’re taking your medications to please people, to get
out of the jail. And it’s not the reason you should be taking your
medications.
You should be taking your medications because you have a
serious diagnosis that requires those medications to be taken to
change your body chemistry so that you then will improve the way
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you deal with everything in life. But that’s not what you told me.
You told me it’s just sort of like taking an aspirin, it doesn’t have
- - it doesn’t make a difference to you. It’s the same as taking an
aspirin. You don’t feel any different effect when you take the
medications or you don’t take the medications.
You know, you tell me that you don’t really truly believe you
have a problem, when the diagnoses go back a very long time
describing those problems and describing a very serious and
persistent mental-health diagnosis that does not improve over
time unless you treat it and take medications.
So I have very serious concerns about how you have dealt
with your mental illness, how you will deal with your mental illness
on the outside. I have very serious concerns about your
willingness to accept what you will need to accept as parole
conditions if and when parole is ever set.
You know, certainly the condition of mental-health
treatment, certainly the condition of medications, perhaps the
condition of not going to your sister’s house but going to
something like a halfway house or, quite frankly, what I see as
being more probably appropriate, a CRR, which is a community
residential center for people with mental-health illnesses so that
they can be monitored in taking their medications.
You tell me, well, I don’t know, I have to wait and see, I’ve
never been in that environment, I’m not sure how I’d react to that.
It doesn’t give me a whole lot of confidence that you would follow
that recommendation.
So, sir, based on all of the testimony today, based on the
long and involved report of your mitigation specialist, … based on
the testimony that I heard here today from witnesses, as well as
your own testimony, sir, at this point, on the charge of first-degree
murder, I sentence you, sir, to a period of 48 years to life
imprisonment.
N.T., 9/6/2017, at 49-54.
Based on the above, it is clear that the PCRA court more than adequately
considered Appellant’s mitigating factors in fashioning his term-of-years to life
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sentence. Appellant has already served his minimum sentence and is
consequently eligible for parole consideration. We decline to find that
Appellant’s minimum sentence, essentially a sentence to time served, is
manifestly excessive. Accordingly, after a thorough review of the record and
briefs, we find Appellant has presented no issue on appeal which would
convince us to disturb his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2018
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