Com. v. Moye, D.

J-S32003-21
2021 PA Super 225COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEAUNTAY DONTAZ MOYE :
:
Appellant : No. 1304 WDA 2020
Appeal from the Judgment of Sentence Entered November 17, 2020
In the Court of Common Pleas of Bedford County Criminal Division at
No(s): CP-05-CR-0000486-2015
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
OPINION BY LAZARUS, J.: FILED: NOVEMBER 19, 2021
This is Deauntay Dontaz Moye’s third direct appeal from his judgment
of sentence. After careful review, we affirm.
This Court has previously set forth the factual and procedural
background of this case as follows:
In January of 2015, two weeks before he turned seventeen, Moye
and another juvenile, Ryan Hardwick, arranged to purchase
marijuana from a dealer at a designated location. Although Moye
and Hardwick expected to meet the dealer, the dealer sent his
girlfriend, Stephanie Walters, [with whom Moye was acquainted],
to carry out the transaction. Walters arrived at the designated
location in her vehicle, picked up Moye and Hardwick, and drove
to a parking lot. After Moye and Hardwick inspected the drugs,
Moye, who was carrying a .22 revolver, shot Walters twice in the
head. Using the same gun, Hardwick then shot and killed Walter’s
dog, which was also in the car. Moye and Hardwick then moved
Walter’s body to the back seat of her vehicle, and proceeded to
drive the vehicle around the Altoona area for some time while they
got high on the marijuana. Walters was still alive for
approximately twenty minutes. Ultimately, [Moye and Hardwick]
dropped the vehicle off near an abandoned house, and Hardwick
hid the car keys and the gun at his house. Hardwick told police
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that he and Moye had been planning to rob someone for marijuana
for several weeks, and that Moye had been talking about wanting
to shoot someone.
Commonwealth v. Moye, 224 A.3d 48, 49 (Pa. Super. 2019).
On September 20, 2016, Moye entered a guilty plea to first-degree
murder,1 robbery-inflicts serious bodily injury,2 criminal use of a
communications facility,3 firearms not to be carried without a license,4
criminal conspiracy-possession with intent to deliver,5 abuse of a corpse,6
killing, maiming or poisoning domestic or zoo animals,7 unauthorized use of
automobiles or other vehicles,8 and possession of firearm by minor.9 On
December 2, 2016, the court sentenced Moye to life imprisonment without the
possibility of parole (LWOP) on the homicide count. On the remaining counts,
the court sentenced Moye to various prison terms ranging from a minimum of
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1 18 Pa.C.S.A. § 2501(a).
2 18 Pa.C.S.A. § 3701(a)(1)(i).
3 18 Pa.C.S.A. § 7512.
4 18 Pa.C.S.A. § 6106(a)(1).
5 18 Pa.C.S.A. § 903(a)(1); 35 P.S. § 780-113(a)(30).
6 18 Pa.C.S.A. § 5510.
7 18 Pa.C.S.A. § 5511(a)(1)(i).
8 18 Pa.C.S.A. § 3928(a).
9 18 Pa.C.S.A. § 6110.1(a).
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one month to a maximum of 20 years’ incarceration, all to run concurrently to
the other counts. Although the sentencing court had considered the post-
Miller v. Alabama, 567 U.S. 460 (2012),10 statutory factors set forth in 18
Pa.C.S.A. § 1102.1(d)(7),11 on appeal to this Court, we vacated and remanded
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10 In Miller, the United States Supreme Court held that statutory schemes
such as Pennsylvania’s, which imposed mandatory LWOP for certain homicide
convictions, constituted cruel and unusual punishment when applied to
juvenile homicide offenders. 567 U.S. at 469. In doing so, the Court
reaffirmed the principle “that children are constitutionally different from adults
for purposes of sentencing. Because juveniles have diminished culpability and
greater prospects for reform, [] they are less deserving of the most severe
punishments.” Id. (internal quotation marks and citation omitted).
11 Pennsylvania’s General Assembly responded to Miller by enacting a new
sentencing statute for juveniles convicted of first-degree murder after June
24, 2012. 18 Pa.C.S.A. § 1102.1(a). See 2012 P.L 1655. Section 1102.1(a)
provides than an individual convicted of first-degree murder after June 24,
2012, who was under the age of 18 but over the age of 15 at the time of the
offense, “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.A. § 1102.1(a)(1). When determining whether to impose a
sentence of LWOP on a juvenile convicted of murder, section 1102.1 requires
a court to consider and make findings on the record regarding “the [a]ge-
related characteristics of the defendant,” including:
(i) Age.
(ii) Mental capacity.
(iii) Maturity.
(iv) The degree of criminal sophistication exhibited by the
defendant.
(v) The nature and extent of any prior delinquent or criminal
history, including the success or failure of any previous attempts
by the court to rehabilitate the defendant.
(Footnote Continued Next Page)
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for resentencing in light of our Supreme Court’s decision in Commonwealth
v. Batts, 163 A.3d 410 (Pa. 2017) (Batts II),12 which required additional
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(vi) Probation or institutional reports.
(vii) Other relevant factors.
18 Pa.C.S.A. § 1102.1(d)(7)(i-vii).
12 Batts II was recently abrogated by the United States Supreme Court in
Jones v. Mississippi, 141 S. Ct. 1307 (2021). The Jones Court confirmed
that mandatory sentences of life without the possibility for juvenile offenders
violate the cruel and unusual punishment clause of the Eighth Amendment of
the United States Constitution, but the Court held that sentencing schemes
that allow the discretionary imposition of life sentences pass constitutional
muster and need not require a separate factual finding of permanent
incorrigibility before doing so. Jones, supra at 1311. As this Court en banc
recently explained in Commonwealth v. DeJesus, 2021 PA Super 213 (filed
Oct. 20, 2021):
[Jones] reiterated the principle that a LWOP sentence for a
juvenile homicide offender meets the requirements of the Eighth
Amendment so long as the sentence is part of a sentencing
scheme in which the sentencer has the discretion to impose a
sentence less than LWOP. [Jones, supra] at 1311. In addition,
the sentencing scheme only requires the sentencer to consider the
juvenile homicide offender’s “youth and attendant characteristics”
to meet the requirements of the Eighth Amendment. Id. at 1314
(quoting Miller, 567 U.S. at 483). The U.S. Supreme Court also
rejected the need for the sentencer to make “an on-the-record
sentencing explanation with an implicit finding of permanent
incorrigibility” to be legal under the Eighth Amendment. Id. at
1319. . . . In Batts II, our Supreme Court interpreted the Eighth
Amendment as [requiring] a sentencing court that imposes a
LWOP sentence [to] make a finding, supported by competent
evidence, of “permanent incorrigibility,” a standard much higher
than the requirement that the sentencing court consider a
“juvenile’s youth and attendant characteristics.” Since “[i]t is
beyond cavil that [Pennsylvania state courts are] bound by the
determinations of the United States Supreme Court on issues of
(Footnote Continued Next Page)
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safeguards beyond those set forth in section 1102.1. See Commonwealth
v. Moye, 1924 WDA 2016 (Pa. Super. filed Sept. 29, 2017) (unpublished
memorandum decision). The Batts II Court stated:
[T]o effectuate the mandate of Miller and Montgomery [v.
Louisiana, 36 S.Ct. 718 (2016)], procedural safeguards are
required to ensure that life-without-parole sentences are meted
out only to “the rarest of juvenile offenders” whose crimes reflect
“permanent incorrigibility,” “irreparable corruption” and
“irretrievable depravity,” as required by Miller and Montgomery.
. . . [W]e recognize a presumption against the imposition
of a sentence of life without parole for a juvenile offender.
To rebut the presumption, the Commonwealth bears the
burden of proving, beyond a reasonable doubt, that the
juvenile offender is incapable of rehabilitation.
Batts II, supra at 415-16 (emphasis added).
Pursuant to this Court’s remand order, and in compliance with Batts II,
the trial court conducted a resentencing hearing on September 6, 2018. In
advocating that the court resentence Moye to LWOP, the only new evidence
that the Commonwealth presented at the resentencing hearing was a victim
impact statement. Moye presented the testimony and supplemental expert
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federal law, including the construction and interpretation of the
federal constitution[,]” Hall v. Pa. Bd. of Probation and Parole,
851 A.2d 859, 863 (Pa. 2004), we must analyze this appeal based
on Jones. In other words, when reviewing the legality of a
sentencing court’s imposition of a LWOP sentence, we may
only focus on the Jones factors and not those espoused in
Batts II. We consider the Batts II factors as part of the
discretionary aspects of the LWOP sentence.
DeJesus, supra at *6-7 (emphasis added).
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report of Bruce Wright, M.D.,13 a forensic psychiatrist, who opined that it was
possible that Moye could be rehabilitated. Doctor Wright could not conclude
that Moye was permanently incorrigible or incapable of rehabilitation.
Nonetheless, on December 20, 2018, the trial court found Moye permanently
incorrigible beyond a reasonable doubt and re-imposed a sentence of LWOP
on the homicide conviction.
Moye filed post-sentence motions, which the court denied, and he filed
a second appeal to this Court. This Court set forth a comprehensive review
of the decisional law and the resentencing hearing notes of testimony,14 and
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13Doctor Wright prepared an expert report and provided expert testimony in
connection with Moye’s initial sentencing in 2016.
14 The panel stated:
[T]he record reflects that the sentencing court considered both
the factors announced in Miller and the factors appearing in
[section] 1102.1(d). In addressing those factors, the sentencing
court noted the following circumstances and events marking
Moye’s life from childhood up through his incarceration for his
homicide conviction[, including his “chaotic childhood,” “no stable
father-figure” early introduction to drug use and drug dealing,
“frequent fights” in elementary school, engaging in “arson by
burning down a couple of houses (one abandoned and two
occupied) because he and his friends were bored,” engaging in
“gunplay” by shooting guns all through the city of Baltimore and
participating “in gang activity due to his poor relationship with his
mother.”].
In 2010, when Moye was twelve, his mother moved him to Bedford
County, Pennsylvania, due to his criminal activities in Baltimore.
Moye’s behavioral issues continued after the move, and he was
kicked out of school in the sixth grade after he exposed himself.
Moye then attended an alternative education program for one and
(Footnote Continued Next Page)
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one-half years, before returning to school in the eighth grade.
Moye got into a fight and failed to do any work[] and was again
kicked out of school and sent back to an alternative education
program.
In 2011, when Moye was thirteen, he was placed in the Children’s
Aid Home because he got in a physical altercation with his mother
at school. Moye escaped from the home after thirty days, and
remained at large until police found him.
In 2013, when Moye was fifteen, he was re-admitted to the
Children’s Aid Home because he had pending delinquency and
dependency matters. Moye admitted to breaking into and stealing
cars. He also told [] Dr. Wright that, while living in Bedford
County, he threatened people with weapons while attempting to
steal from them, intimidated people, and continued to sell drugs.
D[octor] Wright also found that Moye had a severe substance
abuse problem, as he had consumed marijuana, alcohol and
opio[i]ds on a daily basis since pre-adolescence.
In 2014, Moye was placed at Outside In boot camp as part of the
delinquency action after he was caught stealing a car. Moye did
very well in that program and was released after five months and
placed on probation. However, less than two months after his
release from Outside In, Moye committed the offenses at issue.
In 2016, prior to his initial sentencing for the crimes in this matter,
Dr. Wright evaluated Moye and diagnosed him with conduct
disorder-childhood onset severe, cann[a]bis use disorder, alcohol
use disorder, and opioid use disorder. He also noted that Moye
had a history of severe and, at times, very dangerous impulsivity,
and very severe and dangerous recidivist behavior.
In 2018, prior to his resentencing for the crimes in this matter,
Dr. Wright re-evaluated Moye and prepared a supplemental expert
report. D[octor] Wright noted that Moye was briefly incarcerated
at SCI Camp Hill, and had no disciplinary or behavior problems at
that facility. However, since his transfer to SCI Pine Grove in
February 2017, he had experienced ups and downs. At SCI Pine
Grove, Moye was involved in a physical altercation with another
inmate, and was re-assigned to the Restrictive Housing Unit for
three days. He had another disciplinary problem when a verbal
(Footnote Continued Next Page)
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altercation with an inmate became physical, and Moye “messed
up” the other inmate’s face. Moye was reassigned to the
Restrictive Housing Unit for an additional period of time.
Notably, the sentencing court acknowledged that Dr. Wright
identified several positive prognostic indicators. Specifically, Dr.
Wright indicated that Moye expressed a desire to improve, and
was participating in classes, leadership development programs,
therapeutic communities, and religious activities. Moye indicated
that he understood that he had done something wrong when he
was a kid, but noted that he was now 20, and that he had grown
so much, and wanted the world to see that he was a changed
individual and can be in society again. Moye further indicated that
he had things he wanted to accomplish, namely, finish school,
take rehabilitation programs, and do some things on his own.
D[octor] Wright observed that Moye is relatively young and will
mature with time and continued treatment and rehabilitation.
The sentencing court also considered the presentence
investigation report (“PSI”), which indicated Moye’s juvenile
misdemeanor offenses of theft by unlawful taking and receiving
stolen property in 2013, and another theft by unlawful taking in
2014, which was graded as a third-degree felony. While Moye
was on supervision and probation for these offenses, he violated
the terms of such supervision and probation by testing positive for
marijuana, failing to report to the probation office and outpatient
drug and alcohol counseling for scheduled appointments, and
failing to meet his academic expectations and requirements. The
PSI also detailed Moye’s delinquency and dependency actions, and
placements with various agencies.
The PSI further indicated that on December 29, 2014, a violation
of probation was filed against Moye for testing positive for
marijuana on December 19, 2014, and for failing to report to the
probation office. A violation of probation hearing was scheduled
for January 9, 2015. On the afternoon preceding the [violation of
probation] hearing, Moye and his mother met with Moye’s
probation officer, who advised them of the different outcomes that
the court could impose the following day. Moye left the probation
office at approximately 4:50 p.m. on January 8, 2015, and
(Footnote Continued Next Page)
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acknowledged that the trial court had considered the statutory factors set
forth in section 1102.1. However, we again vacated and remanded for
resentencing, concluding that the Commonwealth failed to rebut the
presumption against LWOP as an appropriate individualized sentence for
Moye. We stated:
Based on our review of the record, and mindful of the
Commonwealth’s burden of proof, we conclude that the
sentencing court’s legal conclusion that Moye is entirely incapable
of being rehabilitated is not supported by the record. Moye
enjoyed a presumption against the imposition of a [LWOP]
sentence, and the Commonwealth bore the burden of proving
beyond a reasonable doubt that there is no possibility that Moye
could be rehabilitated at any point later in his life, no matter how
much time he spends in prison and regardless of the amount of
therapeutic interventions he receives. Indeed, the Batts II Court
recognized that a presumption operates as proof of the ultimate
fact unless and until the opposing party comes forward with
evidence sufficient to rebut the presumption. Critically, the
Commonwealth did not retain an expert, submit an expert report,
or present expert testimony on this critical issue. [15]
Commonwealth v. Moye, 224 A.3d at 56 (internal citations omitted).
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appeared in court the next morning at 9:00 a.m. In the
intervening hours, he murdered Walters.
Commonwealth v. Moye, 224 A.3d at 54-56 (citing N.T. Resentencing,
12/20/18, at 13-55) (internal citations omitted).
15 In Moye, we noted that Batts II did not specifically require expert
testimony for a court to determine that a juvenile offender is permanently
incorrigible, but that “it certainly highlighted the value of input from expert
psychologists.” Moye, supra at 56. The panel in Moye noted that the only
evidence the Commonwealth presented at resentencing was Walter’s mother’s
victim impact statement. Id. “The Commonwealth presented no evidence
whatsoever regarding Moye’s inability to be rehabilitated[.]” Id.
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We also stated that in making its legal determination that Moye is
permanently incorrigible and incapable of rehabilitation, the sentencing court
“largely ignored the positive prognostic indicators identified by Dr. Wright, and
repeatedly stated that the only factors suggesting that Moye could be
rehabilitated were his negative childhood environment, age and his positive
performance while in juvenile placement at Outside In.” Id. at 57. The
sentencing court’s “limited assessment” did not account for Moye’s efforts to
improve himself in prison, and it ignored “the credible expert opinion of Dr.
Wright that, in time and ‘with maturation, structure and appropriate
interventions,’ it is possible that Moye could be successfully rehabilitated.”
Id., citing Wright Supplemental Expert Report, 9/4/18 at 6. We cautioned
the court to be mindful of “Miller's central intuition,” which is “that children
who commit even heinous crimes are capable of change.” Id., citing
Montgomery v. Louisiana, 577 U.S. 190, 212 (2016). The panel instructed
the trial court, upon resentencing, to “provide [Moye] some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation.” Id. at 57, citing Miller, 567 U.S. at 479 (quoting Graham
v. Florida, 560 U.S. 48, 74 (2010) (emphasis added).
On November 17, 2020, Moye, at the age 21, was before the sentencing
court for the third time. At the resentencing hearing, the Commonwealth
again presented the testimony of the victim’s mother. The prosecutor asked
for a sentence of “forty-five (45) to ninety (90) years” see N.T., Resentencing
Hearing, 11/17/20, at 17, and defense counsel sought a sentence of 35 to 70
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years’ incarceration, see id. at 41 (where Moye would be eligible for parole at
age 51). On December 20, 2020, the court resentenced Moye to fifty years
to life; Moye will be eligible for parole at age 66.
Moye filed post-sentence motions, which the court denied. In this timely
appeal, Moye challenges the discretionary aspects and the constitutionality of
his sentence. See Appellant’s Brief, at 15. Of note, Moye claims his sentence
amounts to “de facto life.” Id. at 7.
Moye raises the following issues on appeal:
1. Whether the trial court’s sentence, which guarantees that
[Moye] will remain incarcerated until at the very least the
age of 66, leaves [Moye] with no meaningful opportunity to
obtain release based on demonstrated maturity and
rehabilitation at a reasonable age; but, rather, the trial court
imposed a sentence that is de facto life?
2. Whether the trial court’s application of fifty (50) years to
[Moye’s] natural life[,] as [Moye] was a juvenile at the time
of the offenses[,] violates the protections provided against
cruel punishment pursuant to the Eighth Amendment of the
United States Constitution and Article I, § 13 of the
Pennsylvania Constitution?
3. Whether the trial court imposed a sentence upon [Moye]
that exhibits bias, ill-will and prejudice that is also
manifestly excessive and excessively punitive in nature?
4. Whether the trial court abused its discretion in imposing a
sentence of fifty (50) years to [Moye’s] natural life when it
failed to consider mitigating evidence and factors presented
to the court?
5. Whether the trial court abused its discretion in applying the
required factors outlined in 18 Pa.C.S.A. § 1102.1(d) and 42
Pa.C.S.A. § 9721(b) to find that factors weighed heavily
against [Moye], thereby justifying the imposition of fifty
(50) years to [Moye’s] natural life?
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Appellant’s Brief, at 7-8 (re-ordered for ease of disposition).16
Moye’s constitutional challenge and his claim that the court imposed an
impermissible de facto life sentence present questions as to the legality of his
sentence. In such cases, our standard of review is de novo and our scope of
review is plenary. Commonwealth v. Melvin, 172 A.3d 14, 19 (Pa. Super.
2017). See Commonwealth v. Clary, 226 A.3d 571, 580 (Pa. Super. 2020)
(claim that trial court imposed impermissible de facto life sentence in violation
of Miller constitutes challenge to legality of sentence). Moreover, unless we
determine that Moye’s sentence is a de facto LWOP sentence, we need
not review whether the Commonwealth established beyond a reasonable
doubt that Moye is permanently incorrigible and incapable of rehabilitation.
Commonwealth v. Foust, 180 A.3d 416 (Pa. Super. 2018).
In Foust, this Court held a trial court “may not impose a term-of-years
sentence on a juvenile convicted of homicide if that term-of-years sentence
equates to a de facto LWOP sentence unless it finds, beyond a reasonable
doubt, that the juvenile is incapable of rehabilitation.” Id. at 433. There, the
juvenile was convicted of two killings. We held that courts “must consider the
individual sentences, not the aggregate, to determine if the trial court
imposed a term-of-years sentence [that] constitutes a de facto LWOP
sentence.” Id. at 438 (emphasis added). We concluded that the juvenile’s
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16 The Commonwealth has not filed a brief in this case.
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two consecutive sentences of 30 years to life, viewed individually, did not
constitute a de facto LWOP sentence. Id.
Notably, the Foust Court refused to draw a bright line as to what does
and does not constitute a de facto LWOP sentence, but it recognized that
“[t]here are certain term-of-years sentences [that] clearly constitute de facto
LWOP sentences. For example, a 150-year sentence is a de facto LWOP
sentence.” Id. at 438. The instant case, involving a sentencing term of 50
years to life, where the defendant is not eligible for parole until age 66, falls
clearly “between constitutional and unconstitutional parameters.” See
Commonwealth v. McGrath, 255 A.3d 581 (Pa. Super. 2021), overruled on
other grounds by Commonwealth v. DeJesus, supra.
In McGrath, we held a juvenile’s sentence of 48 years to life (where
McGrath would be eligible for parole at age 65) for the rape and murder of an
84-year-old woman did not amount to a de facto life sentence. We stated:
Here, the trial court properly considered the age when Appellant
would be eligible for parole in order to determine that the new
sentence was not the functional equivalent of a de facto sentence
of [LWOP]. Since Appellant will have a meaningful opportunity
to obtain his release, we agree with the trial court’s assessment
that Appellant’s sentence cannot be considered de facto [LWOP].
McGrath, 255 A.3d at 587 (emphasis added).
More on point is the decision in Commonwealth v. Anderson, 244
A.3d 40 (Pa. Super. 2019). There, we held that the juvenile defendant’s
resentence of 50 years to life, where he began serving his sentence at age 17
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and would be eligible for parole at age 67, was also not a de facto life sentence
without parole. Id. at 47. We stated:
Admittedly, Appellant herein will be sixty-seven years old, . . .
when he is first eligible for parole. He argues that his sentence
must “provide an opportunity for release based solely on
the most tenuous possibility of a defendant surviving the
minimum sentence imposed.” Appellant’s Brief at 29 (quoting
[Commonwealth v. ]Bebout, [186 A.3d 462,] 468 [(Pa. Super.
2018)]. He contends it must be “at least plausible that one
would survive until the minimum release date with some
consequential likelihood that a non-trivial amount of time
at liberty awaits.” Id. Nonetheless, he stops short of
demonstrating how the fifty-year minimum sentence imposed
herein violates those parameters. Appellant, while urging this
Court to apply the reasoning in Bebout, fails to establish that it
is unlikely he will survive until his minimum release date, or that
there is no opportunity for release in such time as to permit him
to enjoy a period of liberty. We are not willing to presume, without
more, that a fifty-year minimum sentence in these circumstances
affords him no reasonable possibility of release or a meaningful
life thereafter.
Id. (emphasis added).
Here, like Anderson, Moye has not demonstrated how his minimum
sentence violates those parameters. The trial court stated: “In my view of
[Moye’s] health, his age, I find that a minimum sentence of 50 years is not a
de facto life sentence. I believe that [it] provides some meaningful
opportunity for him to obtain a release based on his demonstrated maturity
and rehabilitation if that happens.” N.T. Resentencing Hearing, 11/17/20, at
76 (emphasis added). The court acknowledged Moye’s “minimum release
date” would “put him at 66” and that it is “at least plausible that he could
survive until the minimum release date.” Id.- 14 -
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As we understand defense counsel’s arguments at the second re-
sentencing hearing, Moye was unable to participate in many of the
occupational, educational, therapeutic, and rehabilitative programs offered in
prison because he was sentenced to LWOP; as a “lifer” he would not be eligible
for the programs until he had ten years’ good conduct, whereas other inmates
can participate after two years’ good conduct. See N.T. Resentencing
Hearing, 11/17/20, at 28. Moye’s current sentence affords him a meaningful
opportunity to engage in rehabilitative programs so as to obtain release, and
it is “at least plausible” he will survive until the age of 66.
Here, the trial court properly considered the age when Moye would be
eligible for parole in order to determine that the sentence was not a de facto
LWOP sentence. Moye will have a meaningful opportunity to obtain his release
and, therefore, we agree with the trial court’s assessment that Moye’s
sentence is not a de facto LWOP sentence. See Anderson, supra; McGrath,
supra; see also Commonwealth v. Summers, 245 A.3d 686 (Pa. Super.
2021) (concluding appellant’s 40-year-to-life sentence in which he would be
eligible for parole at age 57 not de facto LWOP); Commonwealth v. Lekka,
210 A.3d 343, 357-58 (Pa. Super. 2019) (concluding appellant’s 45 years to
life sentence in which he would be eligible for parole at age 62 not de facto
LWOP); Bebout, supra (concluding appellant’s 45 years to life sentence in
which he would be eligible for parole at age 60 not de facto LWOP).
With respect to Moye’s claim that the court erred in “imposing a
sentence of life imprisonment without the possibility of parole as [Moye] was
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a juvenile at the time of the offense which violates the protections against
cruel punishment pursuant to the Eighth Amendment of the United States
Constitution and Article I, § 13 of the Pennsylvania Constitution[,]” see
Appellant’s Brief, at 15, we reiterate that Batts II was abrogated by the
United States Supreme Court in Jones v. Mississippi. See supra n. 12. The
Jones Court confirmed that mandatory LWOP sentences for juvenile offenders
violate the Eighth Amendment protection against cruel and unusual
punishment, but the Court held sentencing schemes that allow discretionary
imposition of life sentences pass muster under the federal constitution and
need not require a separate finding of permanent incorrigibility. See Jones,
141 S. C.t at 1318-19. Because we conclude Moye’s sentence does not
amount to a de facto LWOP sentence, Moye no longer states a viable theory
of relief under the Eighth Amendment or under Article I, § 13. Foust, supra.
Moye’s final three issues challenge the discretionary aspects of his
sentence. A challenge to discretionary aspects of a sentence does not entitle
an appellant to review as a matter of right. Rather, before this Court can
address such a discretionary challenge, an appellant must comply with the
following requirements:
An appellant challenging the discretionary aspects of his sentence
must invoke the Superior Court’s jurisdiction on appeal by
satisfying a four-part test: (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. 2119(f); (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.
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Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015), quoting
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).
Moye has filed a timely notice of appeal, has preserved his claims in a
post-sentence motion, and has included in his brief a Rule 2119(f) statement.
Swope, supra. We must determine, then, whether he has raised a
substantial question as to the appropriateness of his sentence under the
Sentencing Code.
A substantial question exists where the appellant “sets forth a plausible
argument that the sentence violated a provision of the [S]entencing [C]ode
or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012) (citations
and quotations omitted). On appeal, a defendant must provide, in writing, a
statement specifying the following: (1) where his or her sentence falls in the
Sentencing Guidelines, (2) what provision of the Sentencing Code has been
violated, (3) what fundamental norm the sentence violated, and (4) the
manner in which it violated the norm. Id.In his Rule 2119(f) statement, Moye claims the court imposed an
excessive sentence, failed to consider mitigating factors, and did not properly
apply the statutory factors in 18 Pa.C.S.A. § 1102.1(d) and 42 Pa.C.S.A. §
9721(b). See Appellant’s Brief, at 16. We find Moye has raised a substantial
question. See Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super.
2005) (excessive sentencing claim made in conjunction with assertion that
court did not consider mitigating factors may raise substantial question). See
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also Commonwealth v. Mouzon, 812 A.2d 617, 625-26 (Pa. 2002) (claim
of excessive sentence, even within statutory limits, may raise substantial
question).
Accordingly, we will proceed to the merits of Moye’s final three claims
challenging discretionary aspects of his sentence.
Our standard of review regarding challenges to the discretionary aspects
of sentencing is well-settled:
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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted).
[A] sentencing court abuses its discretion when it considers the
criminal act, but not the criminal himself. The Sentencing Code
prescribes individualized sentencing by requiring the sentencing
court to consider the protection of the public, the gravity of the
offense in relation to its impact on the victim and the community,
and the rehabilitative needs of the defendant, [] and prohibiting a
sentence of total confinement without consideration of “the nature
and circumstances of the crime[,] and the history, character, and
condition of the defendant[.]” 42 Pa.C.S.[A.] § 9725.
Commonwealth v. Luketic, 162 A.3d 1149, 1160-61 (Pa. Super. 2017)
(some internal citations and quotation marks omitted). The rationale behind
such broad discretion and our deferential standard of appellate review is that
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“the sentencing court is in the best position to determine the proper penalty
for a particular offense based upon an evaluation of the individual
circumstances before it.” Commonwealth v. Moury, 992 A.2d 162, 169-70
(Pa. Super. 2010).
Our review of the record in this case indicates the sentencing judge did
not abuse his discretion in sentencing Moye. Contrary to Moye’s assertion
that the trial court disregarded mitigating factors, the trial court explicitly
stated that it considered
[Moye’s] age, his immaturity or failure to appreciate the risk and
consequence of his actions, his family and home environment
from which he [could] not extricate himself, the circumstances of
the homicide including the extent of participation [of] any family
and peer pressure, . . . the possibility of his rehabilitation and his
background, mental, and emotional development. []I have
discussed those all at length at the prior sentencing proceedings,
[see note 14, supra], and I’ll incorporate all of my discussion
from the prior sentencing proceeding on that.
N.T. Resentencing Hearing, 11/17/20, at 56, citing N.T. Resentencing Hearing,
12/20/18, at 13-55. The sentencing court fashioned Moye’s sentence in
accordance with all relevant statutory factors as required under Pennsylvania
law.17 The court also considered the statutory factors in section 1102.1(d),
including
____________________________________________
17 The court also had the opportunity to twice consider the factors that the
United States Supreme Court recommended for juveniles in Miller. See N.T.
Resentencing Hearing, 11/17/20, at 56-57. However, we need not review
whether the court properly considered the Miller factors where it chose not
to sentence Moye to LWOP and where Moye’s sentence does not amount to de
facto LWOP. See Batts II, supra at 460.
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the impact on the community, the threat of safety to the public
posed by the defendant, the nature and circumstances of the
crime, the degree of the defendant’s culpability, the sentencing
guidelines [] age-related characteristics including his mental
capacity, his maturity, degree of criminal sophistication, his prior
delinquent history and institutional and probation report.
Id. at 57-58, citing 18 Pa.C.S.A. § §1102.1(d)(7)(i-vii). The court then stated
that “because we’re not dealing with whether or not the defendant is
permanently incorrigible or incapable of being rehabilitated” it would review
the general sentencing factors under section 9721 of the Sentencing Code.
Id. at 58.
Section 9721(b) provides that the court shall fashion a sentence “that
is consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). The court is
required to consider and make findings on the record related to the following
factors:
(1) The impact of the offense on each victim, including oral and
written victim impact statements made or submitted by
family members of the victim detailing the physical,
psychological and economic effects of the crime on the
victim and the victim’s family. A victim impact statement
may include comment on the sentence of the defendant.
(2) The impact of the offense on the community.
(3) The threat to the safety of the public or any individual posed
by the defendant.
(4) The nature and circumstances of the offense committed by
the defendant.
(5) The degree of the defendant’s culpability.
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(6) Guidelines for sentence and resentencing adopted by the
Pennsylvania Commission on Sentencing.
(7) Age-related characteristics of the defendant, including:
(i) Age.
(ii) Mental capacity.
(iii) Maturity.
(iv) The degree of criminal sophistication exhibited by
the defendant.
(v) The nature and extent of any prior delinquent or
criminal history, including the success or failure of
any previous attempts by the court to rehabilitate
the defendant.
(vi) Probation or institutional reports.
(vii) Other relevant factors.
18 Pa.C.S.A. § 1102.1(d).
The trial court engaged in a careful and thoughtful consideration of each
of these factors and set forth its findings on the record. See N.T.
Resentencing Hearing, 11/17/20, at 57-75. In addition to noting that Moye’s
rehabilitative needs are extensive, the court considered the fact that Moye
committed other violent acts, also at a very young age, and other attempts at
rehabilitation, through dependency, delinquency, and probation, were
unsuccessful. Id. at 61-62. The court detailed prior attempts at rehabilitation
that had failed–his mother’s moving him from Baltimore to Bedford County in
addition to services and placement through the juvenile system and Children
& Youth Services. Id. at 66-67. See 42 Pa.C.S.A. § 9721(b)(7)(v). The court
also noted that Moye has engaged in assaultive behavior while in confinement,
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and that he has only responded to rehabilitation in a structured and confined
environment. Id. at 59, 62, 65. The court stressed that Moye committed this
homicide “less than two months after being released from placement[,]” and
“only hours after meeting with a probation officer and only hours before he
would be attending court for his juvenile delinquency hearing.” Id. at 66.
With respect to the gravity of the offense, the court specified this was
not a “spur of the moment killing,” or an “impassioned killing,”
[t]his was premeditated, pre-planned. And not only that, when
the plan changed in that the wrong person showed up[, Moye]
nonetheless still made the decision to kill someone. [By Moye’s]
own admission, the victim was essentially tortured by riding
around with her in the vehicle for at least, again, to his
statement[,] for at least 20 minutes while she was still alive after
being shot in the neck and head.
Id. at 63-64. The court also recognized, with regard to the protection of the
public, that Moye engaged in violent behavior from a very young age, including
arson, drug dealing and admitting to intimidating and “shooting randomly at
people while he lived in Baltimore.” Id. at 64.
The sentencing court thoroughly considered the factors outlined in
sections 1102.1(d) and 9721(b), and determined those factors weighed
against Moye. Moye’s argument that the court improperly weighed those
factors “heavily against [him],” fails. In the sentencing context, an abuse of
discretion is not shown merely by an error in judgment. Moye 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[-
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]will, or arrived at a manifestly unreasonable decision.” Commonwealth v.
Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007) (quoting Commonwealth v.
Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)). Moye has failed to
establish such an abuse. Moreover, in Commonwealth v. Walls, 926 A.2d
957 (Pa. 2007), our Supreme Court “specifically admonished that the weighing
of factors under [section] 9721(b) was exclusively for the sentencing court,
and an appellate court could not substitute its own weighing of those factors.”
Commonwealth v. Bowen, 975 A.2d 1120, 1123–24 (Pa. Super. 2009)
(emphasis added), citing Walls, supra at 966. See also Moury, supra at
169-70 (abuse of discretion may not be found merely because appellate court
might have reached different conclusion).
The court considered all the proper statutory factors, the Sentencing
Guidelines, the PSI, testimony from the victim’s mother, testimony from
Moye’s uncle, testimony from a friend of Moye’s family, and Dr. Wright’s
testimony, as well as Moye’s allocution. After consideration of all relevant
sentencing factors and mitigation evidence, the court ultimately determined a
term of fifty years to life was an appropriate sentence. The court’s findings
are well-supported by the record and reflect thoughtful and considered
judgment. We are unable to discern a manifest abuse of discretion.
Gonzalez, supra.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
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