Commonwealth v. Bebout , 186 A.3d 462 ( 2018 )


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  • J-A06008-18
    
    2018 PA Super 114
    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
    OF
    PENNSYLVANIA
    Appellee
    v.
    ROBERT BEBOUT,
    Appellant                  No. 1080 WDA 2017
    Appeal from the Judgment of Sentence Entered May 22, 2017
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0003509-1981
    BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
    OPINION BY BENDER, P.J.E.:                                 FILED MAY 4, 2018
    Appellant, Robert Bebout, appeals from the judgment of sentence of a
    minimum term of 45 years’ incarceration, and a maximum term of life
    imprisonment (“45-life”), imposed following his resentencing pursuant to
    Miller v. Alabama, 
    567 U.S. 460
     (2012), and Montgomery v. Louisiana,
    
    136 S.Ct. 718
     (2016).1          Appellant challenges both the legality and the
    discretionary aspects of his sentence. After careful review, we affirm.
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1 In Miller, the Supreme Court of the United States “held that a juvenile
    convicted of a homicide offense could not be sentenced to life in prison without
    parole [(“LWOP”)] absent consideration of the juvenile's special circumstances
    in light of the principles and purposes of juvenile sentencing.” Montgomery,
    136 S.Ct. at 725. Subsequently, in Montgomery, the Court held that the
    Miller decision “announced a substantive rule of constitutional law” that
    applies retroactively. Id. at 736.
    J-A06008-18
    In 1981, Appellant, who was then only 15 years old, anally raped, beat
    with a brick, strangled, and ultimately murdered a seven-year-old boy in the
    West End section of Pittsburgh, leaving the child’s nude body in the Saw Mill
    Run Creek.       When police arrested Appellant several days later, he quickly
    confessed to the crime. On April 5, 1982, a jury convicted him of second-
    degree murder, and the trial court sentenced him to a mandatory term of
    LWOP.       This Court affirmed his judgment of sentence on direct appeal.
    Commonwealth v. Bebout, 
    484 A.2d 130
     (Pa. Super. 1984). Appellant did
    not file a petition for allowance of appeal with our Supreme Court from our
    decision.
    Appellant first filed for collateral relief in 1985, under the Post Conviction
    Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (repealed April 13, 1988). The
    PCHA court denied Appellant’s petition on February 5, 1986. He appealed,
    and after this Court affirmed that decision on December 4, 1986, Appellant
    did not seek further relief in our Supreme Court. See Commonwealth v.
    Bebout, 
    520 A.2d 1211
     (Pa. Super. 1986) (unpublished memorandum).
    Appellant filed his second PCHA petition on January 12, 1988. The PCHA court
    denied that petition on March 9, 1988, and it does not appear that Appellant
    appealed from that decision. However, he filed his third PCHA petition, this
    time pro se, on November 2, 1988. The PCHA court denied that petition on
    August 28, 1989. Again, Appellant does not appear to have appealed from
    that decision.
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    Appellant filed his fourth petition for collateral relief, this time under the
    Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., on June 22,
    2010. Appellant received appointed counsel who filed an amended petition on
    his behalf.   In that petition, Appellant sought relief under the auspices of
    Graham v. Florida, 
    560 U.S. 48
     (2010) (holding that the Eighth Amendment
    prohibits LWOP sentences for juveniles who did not commit homicide). On
    March 16, 2011, the PCRA court filed a notice of its intent to dismiss the
    petition under Pa.R.Crim.P. 907 and, on June 15, 2011, the court dismissed
    Appellant’s petition. The PCRA court filed an amended dismissal order on July
    25, 2011.     On September 16, 2011, the court issued an order reinstating
    Appellant’s appellate rights nunc pro tunc from the June 15, 2011 order. This
    Court affirmed the denial of Appellant’s PCRA petition on May 10, 2012, and
    his subsequent petition for allowance of appeal to our Supreme Court was
    denied on November 28, 2012. Commonwealth v. Bebout, 
    50 A.3d 239
    (Pa. Super. 2012) (unpublished memorandum), appeal denied, 
    57 A.3d 65
    (Pa. 2012).
    Appellant filed his fifth petition for collateral relief, his second PCRA
    petition, on January 17, 2013.        Therein, Appellant sought resentencing
    pursuant to Miller. While that petition was pending in the PCRA court, our
    Supreme Court issued its decision in Commonwealth v. Cunningham, 
    81 A.3d 1
     (Pa. 2013), holding that the rule announced in Miller did not apply
    retroactively to cases on collateral review.     On this basis, the PCRA court
    denied Appellant’s second PCRA petition on April 21, 2014.              This Court
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    affirmed on September 30, 2014, and our Supreme Court denied further
    review on January 28, 2015. Commonwealth v. Bebout, 
    107 A.3d 240
     (Pa.
    Super. 2014), appeal denied, 
    108 A.3d 33
     (Pa. 2015).
    On January 25, 2016, the Supreme Court of the United States decided
    Montgomery, which effectively reversed the Pennsylvania Supreme Court’s
    decision in Cunningham. Appellant promptly filed a pro se PCRA petition on
    February 18, 2016, his third PCRA petition, and his sixth petition for collateral
    relief. The PCRA court appointed counsel, who then filed an amended PCRA
    petition on June 3, 2016. The Commonwealth filed an answer on June 30,
    2016, conceding that Appellant should be resentenced pursuant to Miller and
    Montgomery. On October 31, 2016, the PCRA court issued an order granting
    resentencing, which ultimately occurred on May 17, 2017. Subsequently, on
    May 22, 2017, the PCRA/resentencing court issued an order granting
    Appellant’s PCRA petition, vacating his LWOP sentence, and imposing a new
    sentence of 45-life, with time-credit for 13,154 days served. Appellant filed a
    timely post-sentence motion on May 31, 2017, which the PCRA/resentencing
    court denied on June 27, 2017. Appellant then filed a timely notice of appeal
    on July 26, 2017, and a timely, court-ordered Pa.R.A.P. 1925(b) statement on
    September 27, 2017.      The PCRA/resentencing court filed its Rule 1925(a)
    opinion on October 6, 2017.
    Appellant now presents the following questions for our review:
    In view of the applicable legal standards and mitigation evidence
    introduced by [Appellant], did the resentencing court commit legal
    error by sentencing [him] to [45-life]?
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    In view of the applicable legal standards and mitigation evidence
    introduced by [Appellant], did the resentencing court abuse its
    discretion by sentencing [him] to [45-life]?
    Appellant’s Brief at 4.
    We begin by addressing Appellant’s first claim, wherein he asserts that
    his sentence of 45-life constitutes “the functional equivalent” of LWOP, or a
    de   facto   LWOP   sentence,   because   the   minimum    sentence   “exceeds
    [Appellant]’s life expectancy in prison….” Id. at 22-23. Appellant also argues
    that, because the lower court determined that he was not eligible for LWOP,
    his de facto LWOP sentence does not provide a meaningful opportunity for
    release as is ostensibly required under Miller and Montgomery.
    A challenge to the legality of a particular sentence may be
    reviewed by any court on direct appeal; it need not be preserved
    in the lower courts to be reviewable and may even be raised by
    an appellate court sua sponte. Commonwealth v. Barnes, …
    
    151 A.3d 121
    , 124 ([Pa.] 2016); see also Montgomery, 136
    S.Ct. at 731 (stating that because “[a] conviction or sentence
    imposed in violation of a substantive rule is not just erroneous but
    contrary to law and, as a result, void[, i]t follows, as a general
    principle, that a court has no authority to leave in place a
    conviction or sentence that violates a substantive rule”) (citing Ex
    parte Siebold, 
    100 U.S. 371
     … (1879)). As we have previously
    explained, our decisions pertaining to questions of sentencing
    illegality “have not always been smooth,” with “complexities”
    arising “from disagreement among the members of the Court
    concerning whether a particular claim implicates the legality of a
    sentence.” Commonwealth v. Spruill, … 
    80 A.3d 453
    , 460–61
    ([Pa.] 2013).     There is no dispute, however, that a claim
    challenging a sentencing court's legal authority to impose a
    particular sentence presents a question of sentencing legality.
    See, e.g., Commonwealth v. Vasquez, … 
    744 A.2d 1280
    , 1282
    ([Pa.] 2000) (question of “whether the trial court had the
    authority to impose a statutorily mandated fine” is a challenge to
    sentencing legality); Commonwealth v. Shiffler, … 
    879 A.2d 185
    , 189 ([Pa.] 2005) (claim regarding the court's authority to
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    impose a particular sentence implicates the legality of the
    sentence); In re M.W., … 
    725 A.2d 729
    , 731 ([Pa.] 1999) (same).
    Commonwealth v. Batts, 
    163 A.3d 410
    , 434–35 (Pa. 2017).
    Recently, in Commonwealth v. Foust, --- A.3d ----, 
    2018 WL 988904
    (Pa. Super. filed February 21, 2018),2 a panel of this Court held that “a trial
    court may not impose a term-of-years sentence, which constitutes a de facto
    LWOP sentence, on a juvenile offender convicted of homicide unless it finds,
    beyond a reasonable doubt, that he or she is incapable of rehabilitation.” Id.
    at *11. The panel then considered whether Foust’s aggregate sentence of 60
    years to life (composed of two, consecutive terms of 30 years to life)
    constituted a de facto LWOP sentence. In conducting this analysis, the Foust
    Court first had to determine whether to analyze aggregate sentences or the
    individual components thereof. After determining that our sister states were
    split on this question, the panel ultimately decided to side with the states that
    had adopted the individual-sentence approach. Id. at *13. The panel arrived
    at that decision based, in part, on well-settled principles of Pennsylvania
    sentencing law, and on the analysis provided in McCullough v. State, 
    168 A.3d 1045
     (Md. Spec. App. 2017), cert. granted, 
    171 A.3d 612
     (Md. 2017).
    See Foust, 
    2018 WL 988904
     at *14-*15.
    The Foust Court then considered whether either of the appellant’s 30
    years to life sentences constituted a de facto LWOP sentence, and concluded
    that they did not. However, the panel “explicitly decline[d] to draw a bright
    ____________________________________________
    2   See 1118 WDA 2016, filed as 
    2018 Pa.Super. 39
    .
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    line … delineating what constitutes a de facto LWOP sentence and what
    constitutes a constitutional term-of-years sentence.” Id. at *15. The Court
    “similarly decline[d] to set forth factors that trial courts must consider when
    making this determination, i.e., whether they must look to the life expectancy
    of the population as a whole or a subset thereof and whether the defendant
    must be given a chance at a meaningful post-release life.” Id. However, the
    Court did provide some guidance, as follows:
    There are certain term-of-years sentences which clearly constitute
    de facto LWOP sentences. For example, a 150–year [minimum]
    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. Even the study with the shortest life expectancy
    for an offender in [the a]ppellant's position places his life
    expectancy at 49 years, i.e., beyond 30 years.
    Id. Accordingly, the Foust Court determined that a “sentence of 30 years to
    life imprisonment does not constitute a de facto LWOP sentence which entitles
    a defendant to the protections of Miller.” Id.
    Instantly, Appellant’s 45-life sentence falls between the “clearly”
    constitutional and unconstitutional parameters suggested by the Foust Court.
    We note, however, that the Foust Court’s choice of a 150-year minimum
    sentence appears to be merely illustrative. Undoubtedly, the Court intended
    to suggest a sentence that clearly exceeded human life expectancy in absolute
    terms, rather than average life expectancy, or the life expectancy of some
    identifiable subset of the population. In that regard, the Foust Court could
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    just have easily listed 120-year or 100-year minimum sentences as examples
    of what “clearly” constitutes a de facto LWOP sentence, as the number of
    humans who could possibly survive their minimum sentence would be virtually
    nil.   The key factor in considering the upper limit of what constitutes a
    constitutional sentence, in this narrow context,3 appears to be whether there
    is “some meaningful opportunity to obtain release based on demonstrated
    maturity and rehabilitation.”        Graham, 560 U.S. at 75.    Implicit in this
    standard is the notion it would not be meaningful to provide an opportunity
    for release based solely on the most tenuous possibility of a defendant’s
    surviving the minimum sentence imposed.          To be meaningful or, at least,
    potentially meaningful, it must at least be plausible that one could survive
    until the minimum release date with some consequential likelihood that a non-
    ____________________________________________
    3 To be absolutely clear, the context of which we speak is limited to a juvenile
    sentenced or resentenced in compliance with Miller’s procedural demands,
    but who has not been determined to be the “exceedingly rare and uncommon
    juvenile whose crime reflects his permanent incorrigibility[, and] who
    therefore may be constitutionally sentenced to life without the possibility of
    parole.” Batts, 163 A.3d at 450 (citing Montgomery, 136 S.Ct. at 726, and
    Miller, 
    567 U.S. at 479-80
    ). Miller expressly permits LWOP sentences on
    such a finding, and its predecessor, Graham, was a case dealing exclusively
    with non-homicide offenses. Here, however, by its very nature, the sentence
    imposed did not reflect a finding of permanent incorrigibility by the sentencing
    court. Miller would become meaningless if a sentencing court could issue a
    de facto life sentence to a juvenile homicide defendant, while simultaneously
    failing to find that that juvenile defendant is permanently incorrigible; this
    much is clear. Nevertheless, defining what constitutes a de facto life sentence
    will be a difficult question for the courts to address long into the future. The
    one thing this Court can point to that will likely be an integral part of that
    question will be whether the promise of the opportunity for release on parole
    is meaningful.
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    trivial amount of time at liberty awaits. Thus, though it expressly declined to
    do so, the Foust Court seemed to suggest some sort of meaningful-
    opportunity-for-release standard    by declaring that a 150-years-to-life
    sentence constitutes a de facto LWOP sentence. If it had any other standard
    in mind for making that determination, the Foust Court’s analysis omitted it.
    Instantly, Appellant was sentenced to 45-life, and he has already been
    incarcerated for this crime since he was 15 years old. Accordingly, Appellant
    will be eligible for parole when he is 60 years old. Appellant argues that this
    constitutes a de facto life sentence because some studies have suggested that
    a very narrow subset of the population—individuals sentenced to life
    imprisonment as juveniles in Michigan—have an average life expectancy of
    50.6 years.   Appellant’s Brief at 24.   However, Appellant also cites to the
    Supreme Court of Connecticut, which recently noted that “government
    statistics indicate that the average life expectancy for a male in the United
    States is seventy-six years.”   Id. at 25 (quoting Casiano v. Commr. of
    Correction, 
    115 A.3d 1031
    , 1046 (Conn. 2015)).            The Commonwealth
    argues, and Appellant does not appear to dispute, that this data was not made
    part of the record in this case. We agree.
    Nevertheless, we would not find such data helpful to our analysis, except
    in the most general sense. By one measure, Appellant has already served an
    average lifetime. By the other, if paroled at his minimum or soon thereafter,
    Appellant potentially has the better part of two decades to live outside of
    prison before reaching average life expectancy.     The latter figure certainly
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    appears to suggest Appellant’s opportunity for release is meaningful, or, at
    least, that his potential to survive his minimum sentence is not trivial. The
    problem with Appellant’s arguments, however, even if he had submitted such
    data as evidence to the sentencing court, is that he is not offering a workable
    standard to this Court as to what constitutes a de facto life sentence.
    Appellant seems to suggest we should use data from a very narrow population
    of juvenile lifers in Michigan to craft a standard. Why not seek out data from
    an even narrower population, such as from white, male juvenile lifers from
    Western Pennsylvania who have already survived into their 50s, and who have
    comparable health statuses to Appellant? One could easily imagine that life
    expectancy data could fluctuate drastically in either direction as each new
    variable further narrows the studied population.         As becomes abundantly
    clear, the problem with the sort of statistical analysis suggested by Appellant
    is that it is not at all discernable which statistics we can rely on to predict life
    expectancy in specific cases, and we are virtually certain to have a standard
    that is in constant flux with the addition of each new study.
    An equally problematic concern is what we do with such statistics. It is
    not immediately apparent how the courts should translate average life
    expectancy data into a de facto LWOP sentence standard, and Appellant has
    not even suggested how we would do it. Certainty, or near certainty, that one
    will survive his or her minimum sentence is a useless standard. One cannot
    be certain to survive any sentence, however short.             Should, then, the
    constitutional maximum term of the imposed minimum sentence be half the
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    average life expectancy to provide a meaningful opportunity for release? One
    quarter? One tenth? The use of statistical analysis of life expectancies to
    govern a de facto LWOP standard appears to create a myriad of new questions
    without any easy answers, sending us down a constantly evolving rabbit hole
    from which we may never escape as more and more data arrives.
    Consequently, even if Appellant had properly admitted into evidence the
    relevant life expectancy statistics that he now raises in his brief, it is not
    evident how helpful they would have been to the construction of a standard
    for what constitutes a de facto LWOP sentence, or how such data dictates a
    result in this case.
    Thus, we turn to our limited case law for guidance, in the absence of a
    better standard. Appellant’s sentence does not fall into the category of
    sentences described in Foust; that is, his minimum sentence is not so long
    that it is virtually certain that he could not survive it. Indeed, it is at least
    plausible, and perhaps even likely, that Appellant could live many years past
    his earliest possible release date.
    Appellant   argues   that   delaying     parole   until   old   age   in   these
    circumstances (see footnote 3, supra), constitutes a constitutional violation
    because, ostensibly, it would not provide for a meaningful opportunity for
    release. See Appellant’s Brief at 26 (citing Bear Cloud v. State, 
    334 P.3d 132
     (Wyo. 2014), and State v. Null, 
    836 N.W.2d 41
     (Iowa 2013)). Neither
    Bear Cloud nor Null are controlling in this jurisdiction, and we find their
    analyses unpersuasive at this time.            Indeed, we consider Appellant’s
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    opportunity for release to be meaningful, especially in light of the gravity of
    his crime, because he has the potential to live for several decades outside of
    prison if paroled at his minimum.4
    Thus, based on the record and arguments before us, we conclude that
    Appellant has simply failed to meet his burden of demonstrating that the lower
    court sentenced him to a de facto LWOP sentence.            There simply is no
    comparison between the opportunity to be paroled at 60 years of age and
    100+ years of age. The difference is, quite literally, a lifetime.   As such, we
    are not convinced that Appellant’s sentence is the functional equivalent of
    LWOP. Accordingly, Appellant’s first claim must fail.
    Next, Appellant contends that the trial court abused its discretion by
    imposing a 45-life sentence, because it failed “to consider anything but
    [Appellant’s] offense.” Appellant’s Brief at 29. Appellant further argues that
    rehabilitation, not retribution, is the “paramount consideration in juvenile
    sentencing.”     Id. at 31.      In Appellant’s Rule 1925(b) concise statement,
    however, he presented the following claim:
    1. The Order constitutes an abuse of discretion and/or clear legal
    error by the [c]ourt considering all of the facts and
    circumstances of the case. In light of mitigating factors related
    to [Appellant]'s youth and upbringing, as well as [Appellant]'s
    subsequent rehabilitation in the nearly thirty-five years since
    ____________________________________________
    4 Appellant appears to have become a model prisoner in the decades since his
    conviction. See N.T. Resentencing, 5/22/17, at 7 (“[Appellant] has made a
    positive adjustment to prison life. I don’t think there is any question about
    that.”). Assuming Appellant continues on that path, he could very likely be
    paroled at his minimum.
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    the date of the offense, the sentence of [45-life] deserves
    reconsideration.
    Appellant’s Pa.R.A.P. 1925(b) Statement, 9/27/17, at 2 ¶ 1.
    Sentencing is a matter vested in the sound discretion of the
    sentencing judge, and a sentence will not be disturbed on appeal
    absent a manifest abuse of discretion. In this context, an abuse
    of discretion is not shown merely by an error in judgment. Rather,
    the appellant must establish, by reference to the record, that the
    sentencing court ignored or misapplied the law, exercised its
    judgment for reasons of partiality, prejudice, bias or ill will, or
    arrived at a manifestly unreasonable decision.
    Commonwealth v. Hoch, 
    936 A.2d 515
    , 517–18 (Pa. Super. 2007) (citation
    omitted). Moreover,
    [c]hallenges to the discretionary aspects of sentencing do not
    entitle an appellant to review as of right. Commonwealth v.
    Sierra, 
    752 A.2d 910
    , 912 (Pa. Super. 2000). An appellant
    challenging the discretionary aspects of his sentence must invoke
    this Court's jurisdiction by satisfying a four-part test:
    [W]e 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.A. § 9781(b).
    Commonwealth v. Evans, 
    901 A.2d 528
    , 533 (Pa. Super. 2006),
    appeal denied, 
    589 Pa. 727
    , 
    909 A.2d 303
     (2006) (internal
    citations omitted). Objections to the discretionary aspects of a
    sentence are generally waived if they are not raised at the
    sentencing hearing or in a motion to modify the sentence imposed.
    Commonwealth v. Mann, 
    820 A.2d 788
    , 794 (Pa. Super. 2003),
    appeal denied, 
    574 Pa. 759
    , 
    831 A.2d 599
     (2003).
    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
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    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.”
    Sierra, supra at 912-13.
    As to what constitutes a substantial question, this Court
    does not accept bald assertions of sentencing errors.
    Commonwealth v. Malovich, 
    903 A.2d 1247
    , 1252 (Pa. Super.
    2006). An appellant must articulate the reasons the sentencing
    court's actions violated the sentencing code. 
    Id.
    Commonwealth v. Moury, 
    992 A.2d 162
    , 170 (Pa. Super. 2010).
    The Commonwealth argues that, because Appellant did not raise them
    in his Rule 1925(b) statement, he “has waived the claims in his Brief that his
    sentence was based on the seriousness of his crime, it was disproportionate
    to his conviction, and it was unduly excessive.” Commonwealth’s Brief at 21.
    We agree.
    Appellant’s claim, as raised in his Rule 1925(b) statement, appears to
    differ significantly from those claims raised in his brief.   In the statement,
    Appellant essentially argued that the PCRA/resentencing court abused its
    discretion by failing to consider or give adequate weight to mitigating
    sentencing factors.5        In his brief, however, Appellant asserts that the
    PCRA/resentencing court abused its discretion by failing to make rehabilitation
    the paramount factor in crafting Appellant’s sentence, and by affording too
    ____________________________________________
    5 The PCRA/resentencing court suggested that Appellant’s failure-to-consider-
    mitigating-factors claim, as raised in his Rule 1925(b) statement, did not
    present a substantial question for our review. See Pa.R.A.P. 1925(a) Opinion,
    9/27/17, at 8 (citing Commonwealth v. Disalvo, 
    70 A.3d 900
    , 903 (Pa.
    Super. 2013) (“[A]rgument that the trial court failed to give adequate weight
    to mitigating factors does not present a substantial question appropriate for
    our review.”)).
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    much weight to the gravity of Appellant’s crime (and/or that the court
    overvalued retributive principles despite recognizing Appellant’s rehabilitative
    needs). We are compelled to agree with the Commonwealth that Appellant
    did not present these claims in his Rule 1925(b) statement. Accordingly, they
    are waived. Commonwealth v. Lord, 
    719 A.2d 306
    , 309 (Pa. 1998) (“Any
    issues not raised in a 1925(b) statement will be deemed waived.”). Thus, the
    only non-waived claim before this court is whether the PCRA/resentencing
    court failed to consider, or adequately consider, mitigating sentencing factors.
    As the court correctly noted in its Rule 1925(a) opinion, (see footnote 5,
    supra), such a claim does not present a substantial question for our review.
    Nevertheless, even if Appellant had presented a substantial question for
    our review in this regard, we would still find his claim meritless. The trial
    court clearly did consider several mitigating factors when it issued Appellant’s
    sentence. As accurately noted by the Commonwealth, the PCRA/resentencing
    court reviewed and considered:
    Appellant's Resentencing Memorandum[,] the Defense Mitigation
    Report prepared by Bianca D'Auria, M.S.W. and her testimony
    [extensively detailing Appellant’s exceptionally abusive childhood,
    as well as his significant rehabilitative efforts in prison], testimony
    from three State Correctional Institution employees [attesting to
    Appellant’s current good character and model behavior],
    Appellant's testimony, the Commonwealth's statement, defense
    counsel's statement, the trial and original sentencing hearing
    transcripts, and a letter from a former cellmate of Appellant.
    Commonwealth’s Brief at 24-25 (footnotes and citations to the record
    omitted). Indeed, the trial court summarized all of these mitigating factors
    prior to issuing Appellant’s sentence, and it did not appear to discredit any of
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    the mitigating evidence presented in Appellant’s favor. N.T. Resentencing,
    5/22/17, at 6-7.    The court weighed that mitigating evidence against the
    gravity of Appellant’s crime, and determined that he was not a suitable
    candidate for an LWOP sentence, which most certainly was a favorable
    determination for Appellant, albeit certainly justified on the record before us.
    The court then crafted a sentence which permits Appellant to seek parole in
    less than ten years. We would ascertain no abuse of discretion had Appellant
    presented a substantial question for our review, as the trial court clearly
    considered the mitigating evidence.    See Commonwealth v. Eicher, 
    605 A.2d 337
    , 355 (Pa. Super. 1992) (holding that “[b]ecause it [was] apparent
    from the … sentencing transcript that the sentencing court did not focus solely
    on the seriousness of the offenses but expressly applied the relevant
    mitigating factors in fashioning [the] appellant's sentence, we find no merit to
    [the] appellant's claim that the mitigating factors were ignored or assigned
    insufficient weight by the lower court”).
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/4/2018
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