Com. v. Noble, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICARDO L. NOBLE :
:
Appellant : No. 204 WDA 2020
Appeal from the Judgment of Sentence Entered January 29, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000318-1992
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 21, 2020
Ricardo L. Noble (Noble) appeals from the judgment of sentence1
entered on January 29, 2018, by the Court of Common Pleas of Erie County
(trial court) following resentencing pursuant to Miller v. Alabama, 576 U.S.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 After a previous direct appeal following resentencing, this court remanded
Noble’s case for the limited purpose of allowing him to file a post-sentence
motion preserving his challenges to the discretionary aspects of his sentence.
Following remand, Noble filed his post-sentence motion on December 16,
2019, and the Commonwealth filed a response on January 23, 2020. The trial
court denied the motion on January 27, 2020, and Noble filed his appeal from
the order denying his post-sentence motion. Noble’s appeal properly lies from
the judgment of sentence imposed on January 29, 2018, and we have
amended the caption accordingly. See Commonwealth v. Shamberger,
788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc).
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460 (2012) and Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718(2016). After careful review, we affirm.
I.
We glean the following facts from the certified record and prior decisions
of this court. In 1992, Noble was found guilty following a jury trial of second-
degree murder, robbery and criminal conspiracy after he and two other
individuals robbed and killed a cab driver.2 Commonwealth v. Noble, 1770
Pittsburgh 1992, at *1 (Pa. Super. February 3, 1994) (unpublished
memorandum), allocatur denied, 647 A.2d 899 (Pa. 1994). Because there
was conflicting evidence regarding which of the three defendants actually shot
and killed the victim, Noble was convicted of second-degree murder because
the killing occurred during the course of a robbery. At the time of the murder,
Noble was 15 years old. Noble was sentenced to life in prison without the
possibility of parole, as was mandatory at the time, and this court affirmed
the judgment of sentence.
By way of background, in Miller, the United States Supreme Court held
that it is unconstitutional for states to sentence juvenile homicide defendants
to mandatory sentences of life imprisonment without the possibility of parole.
See Miller, supra at 465. In Montgomery, the Court determined that the
Miller holding constituted a substantive rule of constitutional law that must
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2 18 Pa.C.S. §§ 2502(b), 3701, 903.
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be applied retroactively to cases on collateral review. See Montgomery,
supra at 736. Following the decision in Montgomery, Noble filed a Post-
Conviction Relief Act (PCRA) petition alleging that his sentence was illegal.
The trial court granted relief, vacating his judgment of sentence and
scheduling a resentencing hearing in accordance with Miller and
Montgomery.
Prior to the resentencing hearing, counsel filed a sentencing
memorandum requesting a sentence of time served or 20 to 60 years’
incarceration. The defense argued that the doctor who evaluated Noble in
1992 had opined that he had a strong possibility of rehabilitation with proper
counseling and treatment. Noble had struggled in school at the time, in part
because he had to care for his siblings due to his mother’s alcoholism, but he
did not suffer from addiction or mental illness himself. He had one prior
juvenile adjudication for terroristic threats following an altercation with his
stepfather after Noble witnessed him abusing his mother. The defense argued
that Noble became very religious following his incarceration and sought parole
so that he could become a productive member of society. The defense
reiterated that Noble was not proven to be the shooter and argued that he did
not pose a danger to society if released. Finally, the memorandum argued
that because there was no constitutional sentencing scheme for second-
degree murder at the time of his 1992 sentencing, Noble should be sentenced
based on the sentencing statute for the most serious lesser-included offense
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of third-degree murder. Based on that statute, Noble would be sentenced to
a maximum of 20 years of incarceration or time served. The memorandum
requested in the alternative that Noble be sentenced to 20 to 60 years’
incarceration, as Noble’s co-defendant had been sentenced to 20 to 50 years
of incarceration following resentencing.
The Commonwealth filed a sentencing memorandum requesting that the
trial court resentence Noble to 50 years to life imprisonment. The
Commonwealth asserted that while Noble was convicted of second-degree
murder because the homicide occurred during the course of a robbery, it
believed Noble was the actual shooter. The Commonwealth’s memorandum
focused on Noble’s prison record, listing his numerous misconducts, mostly
for refusal to obey an order, which resulted in his placement in disciplinary
custody over the years. He incurred two misconducts for assault during his
incarceration, including one in 2014 for an assault on a staff member. Noble
also pled guilty in 2005 for Possessing Weapons or Implements for Escape and
was sentenced to 1 to 2 years of incarceration. The Commonwealth attached
prison records to its memorandum setting forth Noble’s misconducts and 2005
criminal conviction in more detail. The Commonwealth argued that a sentence
of 50 years to life imprisonment was necessary because Noble remained a
threat to the community and had not shown meaningful rehabilitation during
his incarceration.
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At the beginning of the resentencing hearing, Noble spoke on his own
behalf and informed the trial court that he did not agree with counsel’s
requested 20 to 60 year sentence. Notes of Testimony, 1/29/18, at 2-3. He
maintained his innocence of the crimes and asserted that he would only agree
to a sentence of time served. The trial court instructed him that if he was
dissatisfied with his attorney’s performance, Noble could file a PCRA petition
raising an ineffective assistance of counsel claim after the resentencing
hearing.
The first witness to testify on Noble’s behalf was Kaitlyn Dolak, a case
manager at GECAC.3 Dolak explained that she assists individuals who are
released from incarceration transition back into the community by helping
them find housing, employment, mental health services and drug and alcohol
services. The goal of GECAC’s services is to assist in reintegrating into the
community and provide support services that reduce the risk of recidivism.
Dolak interviewed Noble while he was incarcerated but did not review
any of his institutional records. She reported that after an interview, GECAC
accepted Noble into the program for intensive case management services,
which would include direct services from the program for at least one year.
She reported that Noble was cooperative and receptive to services. Since he
____________________________________________
3While not defined in the record, we understand this to refer to the Greater
Erie Community Action Committee. See GECAC: Greater Erie Community
Action Committee, www.gecac.org, last visited 6/5/20.
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was interested in HVAC training, GECAC would assist him finding a training
program and providing transportation. Noble had reported that he would live
with family if released and Dolak would meet with him at least once a week to
provide services.
Noble also presented testimony from Rahnay Ritchie, a friend who had
known Noble since middle school. Ritchie described Noble as outgoing and
bright and testified that Noble had never gotten into trouble or fights when
they knew each other. He believed the robbery and murder was out of
character for Noble at the time. Emberly Noble,4 Noble’s sister, also testified
that she exchanged letters with Noble throughout his incarceration to give him
updates and information on their family. Emberly testified that Noble
frequently offered her advice and support for issues in her personal life and
was a positive influence on her before and after his incarceration. She testified
that he had been a protective older brother before his incarceration.
Shadara Feliciano, Noble’s cousin, testified that she also wrote to Noble
on a weekly basis during his incarceration. She frequently sought his advice,
thought of him as a father figure, and viewed him as a positive influence in
her life. Feliciano testified that the family would support Noble if he was
released from incarceration and help him transition back into the home.
Carlajzah Mendez, Noble’s niece, also testified that she views Noble as a father
____________________________________________
4 For clarity, we refer to Emberly by her first name.
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figure and had sought his advice by writing him letters during his
incarceration. She testified that Noble provided her with support and was a
positive influence and encouraged her to pursue her education.
Finally, Noble testified on his own behalf. He began by denying all
involvement in the robbery and murder. The trial court reminded him that he
had been convicted and the hearing was for the purposes of resentencing only.
In addition, the trial court stated, “[n]o one is saying today, or at least I’m
not, that you are here as the shooter. That has not been proven in court, at
least not up to this point.” N.T. at 30. The trial court then directed Noble to
focus his comments on factors relevant to the resentencing, such as Noble’s
character, what he had accomplished in prison, and the ways in which he had
changed or stayed the same since his conviction. Noble argued that his
actions during the crime were a relevant factor in resentencing pursuant to
Miller, as it directed courts to consider the extent of the defendant’s
participation in the crime when sentencing juveniles found guilty of murder.
Noble then attempted to make legal arguments regarding the proceedings at
his decertification hearing in 1992 and the alleged ex post facto application of
the sentencing statute to his second-degree murder conviction. The trial court
repeatedly directed him to speak to his own character and growth and to allow
his attorney to make any relevant legal arguments.
Noble testified that despite being incarcerated in an adult prison since
he was 16 years old, he has tried to better himself, “not get caught up in a lot
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of negativity around [him], and also not become a hardened criminal.” N.T.
at 36. He earned his GED and a degree in African American History and
Science. He testified that he also attempted to educate himself outside of
the prison’s formal programs. He said that over the years he had attempted
to be an advocate for other prisoners who had been mistreated or wronged
while incarcerated, and he had written and published work regarding solitary
confinement. He acknowledged that he had “some violent altercations” over
the years, but said that he was not a violent person and understood that there
are better ways to handle problems. He reiterated his innocence for the
crimes for which he was convicted and said he had tried over the years to
speak up against injustice in the court system. He again argued that he did
not belong in an adult prison and that he had been confused by the court
system for many years during and after his initial trial proceedings.
The trial court again told Noble that he was convicted of the crimes
charged and should not make argument regarding his culpability. The trial
court also stated that it did not believe Noble did not understand the trial
proceedings and that Noble was an “intelligent young man” who had
understood the facts of the case and the witnesses against him. Noble
responded that his confusion and frustration at his conviction had led to some
of his misconducts and violations while in prison, but that he understood right
and wrong and could not excuse his actions. He requested that the trial court
disregard his counsel’s sentencing recommendation and resentence him to
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time served. Finally, he acknowledged the victim’s family, saying “I’m very,
very sorry for your loss and your pain and suffering—the pain and suffering,
and I hope one day, you acknowledge the facts in this case have proven I’m
not the one who killed [the victim], and I’m deeply sorry and remorseful for
what happened.” N.T. at 43-44.
The Commonwealth called William Niles, the defense expert who
authored a mitigation report. Niles testified that this case was the first time
he had written a mitigation report but he had worked with former prisoners in
the past. He opined in his report that Noble was a credit to his community in
prison despite some misconducts and assaults while incarcerated, including
an assault on a prison staff member. Based on interviews with Noble and his
family, Niles concluded that he had a low risk of reoffending if released. He
believed Noble was a credit to the community based on letters he wrote
advocating on behalf of other inmates. Niles noted that Noble had maintained
employment while incarcerated, though he was suspended from his jobs at
times and placed in restricted housing following various violations.
The Commonwealth also presented testimony from Scott Cleaver, the
victim’s nephew. Cleaver testified that the victim had suffered polio as a child
and had health issues until his death as a result. The victim’s mother died
when he was a child and his father was an alcoholic, and the victim developed
alcoholism in his adulthood. After retiring and becoming sober, he began
driving a cab because he “enjoyed people.” N.T. at 51. Cleaver said that his
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family had worried about the victim working as a cab driver because he was
incapable of protecting himself in the event of a robbery. Cleaver testified
that he was “positive” that Noble killed his uncle and requested that the court
impose a life sentence. N.T. at 52.
Following the reception of the evidence, the trial court resentenced
Noble to 40 years to life imprisonment, as well as court costs and restitution
for funeral expenses, for the second-degree murder charge. The trial court
acknowledged that there was insufficient evidence to establish that Noble had
been the shooter and said that it did not consider Noble to be the shooter
when imposing the sentence. The trial court stated that while Noble was a
juvenile at the time of the offense, he was of at least average intelligence and
did not suffer from any mental illness or disability. The trial court also
recognized that Noble had pursued his education and helped others while he
was in prison, but he nonetheless had a history of misconducts and one
criminal conviction while incarcerated.
After his resentencing hearing, Noble filed a direct appeal raising various
challenges to the trial court’s evidentiary rulings regarding sentencing, his
counsel’s effectiveness at resentencing, the transcription of the proceedings,
and the discretionary aspects of his sentence. Noble, supra. Finding that
Noble had not been properly informed of his post-sentence rights, this court
remanded the case to allow Noble to file a post-sentence motion preserving
his challenge to the discretionary aspects of his sentence, but affirmed in all
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other respects. Id. at *9. Noble timely filed a post-sentence motion on
remand, and the Commonwealth filed a response. The trial court denied the
motion, and Noble timely appealed. Noble and the trial court have complied
with Pa.R.A.P. 1925.
II.
Noble’s first three issues on appeal concern the legality and
discretionary aspects of his sentence.5 Noble argues that the trial court
abused its discretion in sentencing him to 40 years to life imprisonment as the
sentence is manifestly excessive, unreasonable and an ex post facto
imposition of the statute governing sentencing for juveniles convicted of
second-degree murder. He argues that the trial court improperly sentenced
him based on considerations of first-degree murder rather than second-degree
murder, and that the trial court disregarded his rehabilitative needs in
fashioning the sentence. Finally, he argues that the trial court relied on false
information when imposing the sentence.
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5 A challenge to the legality of a sentence presents a pure question of law,
over which our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Lekka, 210 A.3d 343, 355 (Pa. Super. 2019).
We review a challenge to the discretionary aspects of a sentence for an abuse
of discretion. Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.
Super. 2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2003). “An abuse
of discretion is more than just an error in judgment and, on appeal, the trial
court will not be found to have abused its discretion unless the record discloses
that the judgment exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will.” Id. (citations omitted).
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A.
We first address Noble’s challenges to the legality of his sentence. Noble
contends that his maximum sentence of life imprisonment violates the ex post
facto provisions of the state and federal constitutions. He argues that he may
only be sentenced to 10 to 20 years imprisonment, as “the only constitutional
sentence available at th[e] time of the crime and conviction was for the most
serious lesser included offense of third-degree murder.” Noble’s Brief at 26.
He also faults the trial court for failing to consider his individual level of
culpability and participation in the crime when fashioning the sentence, a
required factor for consideration under Miller, and he claims that the trial
court erred in sentencing him to pay restitution and costs of prosecution.
Following the decision in Miller, our Legislature enacted 18 Pa.C.S.
§ 1102.1 setting mandatory minimum sentences for juveniles convicted of
murder after its effective date of June 24, 2012. In Commonwealth v.
Batts, our Supreme Court concluded that for juveniles convicted before
Section 1102.1’s effective date, the sentencing court should be guided by the
minimum sentences set forth in Section 1102.1 when resentencing a juvenile
offender pursuant to Miller and Montgomery, though the minimum
sentences were not mandatory. Commonwealth v. Batts, 163 A.3d 410,
458 (Pa. 2017) (“Batts II”). Thus, the minimum sentences set forth in that
section are akin to “sentencing guidelines” when a trial court is sentencing a
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juvenile convicted of murder prior to the enactment of the statute.
Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018).
Here, the trial court complied with our Supreme Court’s instruction to
consider the minimum sentences set forth in that section as advisory when
crafting a minimum term-of-years for a juvenile who committed homicide
before the effective date. See Trial Court Opinion, 4/6/18, at 1-2 (citing to
Batts II’s requirement that sentencing courts consider Section 1102.1 factors
on resentencing juveniles convicted prior to its enactment). The trial court
ultimately concluded that a sentence of 40 years to life imprisonment was
warranted. As this sentence was not based on a mandatory ex post facto
imposition of the sentences proscribed in Section 1102.1 but rather on
considering Section 1102.1 as a guideline as required by Batts II, Noble’s
claim is meritless.
Similarly, Batts II rejected the claim that a juvenile convicted of first-
degree murder prior to June 24, 2012, must be sentenced as if he was
convicted of third-degree murder as a lesser-included offense. Batts II,
supra, at 457. The Supreme Court held that the prior sentencing statute for
juveniles convicted of first- or second-degree murder was unconstitutional in
light of Miller and Montgomery, but that provisions of the sentencing code
rendering that statute unconstitutional were severable. Specifically, the
statutory subsections prohibiting parole and requiring that a minimum
sentence be no more than half the maximum sentence were severable from
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the sentencing statute, and the juvenile may constitutionally be resentenced
to a minimum term-of-years. Id. at 458. The convictions for first- and
second-degree murder then remain in place, and the juvenile is not entitled
to have his conviction downgraded to the lesser-included offense of third-
degree murder. Id.; see also Commonwealth v. Lehman, 201 A.3d 1279,
1282-83 (Pa. Super. 2019). Noble’s contention then that he should be
sentenced as if he was convicted of third-degree murder is meritless.
Next, Noble claims that the trial court erred by failing to consider his
individual level of culpability and participation in the crime in crafting his
sentence, as this was a required factor enunciated in Miller for the trial court
to address when considering a sentence of life imprisonment without parole.
In Commonwealth v. Lekka, 210 A.3d 343, 356-57 (Pa. Super. 2019), this
court held that failure to consider the factors set forth in Miller renders a
sentence illegal only when the Commonwealth sought a sentence of life
imprisonment without parole at resentencing. Here, the Commonwealth did
not seek a sentence of life without parole but instead recommended a
sentence of 50 years to life imprisonment. As such, the trial court was not
required to consider any specific Miller factor making Noble’s claim meritless.6
____________________________________________
6We note that Noble argues that the trial court failed to consider this factor
primarily because the trial court discounted Noble’s repeated claims that he
was innocent of the murder and robbery. The trial court rightfully instructed
Noble that only his sentence was at issue in the hearing, and that he could
not attack the validity of his convictions. We do not view the trial court’s
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Finally, Noble contends that the trial court erred in sentencing him to
pay costs of prosecution7 and restitution of one-third of the victim’s funeral
expenses. In support of this assertion, Noble merely argues that he is
innocent of the murder and robbery and should not be required to pay costs
and restitution related to a crime he did not commit. See Noble’s Brief at 27-
30. He argues that he did not knowingly and intelligently agree to pay
restitution at his 1992 sentencing hearing. Id. We have previously held that
trial courts may impose restitution for funeral expenses in murder cases. See,
e.g., Commonwealth v. Yanoff, 690 A.2d 260, 266-67 (Pa. Super. 1997).
Similarly, the trial court is authorized by statute to impose costs of prosecution
as a sentence. 16 P.S. § 4403. Noble’s bare assertions of innocence do not
overcome these authorizations, as he was duly convicted of the crimes
following his trial.
____________________________________________
response to Noble’s statements proclaiming his innocence as the trial court
failing to consider the extent of Noble’s participation in the crime, especially
when the trial court was unequivocal that it did not consider Noble to be the
shooter. See N.T. at 62.
7 We note that the sentencing order requires Noble to pay costs of prosecution
“previously imposed,” and does not unconstitutionally require Noble to pay
the costs of prosecution associated with his 2018 resentencing hearing.
Sentencing Order, 1/29/18; see Commonwealth v. Lehman, 201 A.3d
1279, 1286 (Pa. Super. 2019) (holding that defendant could not be sentenced
to pay costs of prosecution associated with resentencing following Miller and
Montgomery).
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B.
We next consider Noble’s challenges to the discretionary aspects of his
sentence. “The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for permission to
appeal.” Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018)
(citation omitted). An appellant must preserve his claims at the time of
sentencing or in a post-sentence motion, file a timely notice of appeal, include
a statement of reasons for allowance of appeal pursuant to Rule of Appellate
Procedure 2119(f) in his brief, and raise a substantial question for review.
Here, Noble has complied with the first three requirements by filing a timely
post-sentence motion following the remand from this court, filing a timely
notice of appeal and concise statement, and including a statement pursuant
to Pa.R.A.P. 2119(f) in his brief. Thus, we turn to whether he has raised a
substantial question for our review.
“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. Clarke, 70 A.3d 1281, 1286–87 (Pa. Super. 2013)
(citation omitted). Noble contends that the trial court imposed a manifestly
excessive sentence under the circumstances without considering his
rehabilitative needs. This claim presents a substantial question for our review.
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Commonwealth v. DiClaudio, 210 A.3d 1070, 1075-76 (Pa. Super. 2019)
(citations omitted); Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.
Super. 2015) (holding that failure to consider rehabilitative needs and
mitigating factors raised a substantial question); 42 Pa.C.S. § 9721(b).
Noble also argues that the trial court sentenced him as if he was
convicted of first-degree murder rather than second-degree murder, and that
the trial court relied on erroneous information regarding his prison record
when imposing its sentence. A claim that the court relied on improper factors
in imposing the sentence also raises a substantial question. Commonwealth
v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). As we conclude that Noble
has raised a substantial question for our review, we proceed to the merits of
his claims.
C.
As noted supra, when resentencing a juvenile convicted of homicide
before Section 1102.1’s effective date, the sentencing court should be guided
by the minimum sentences set forth in that section. Batts II, supra. Section
1102.1 requires that a juvenile who is convicted of second-degree murder for
an offense committed when he is at least 15 years old be sentenced to a
minimum of 30 years’ to life imprisonment. 18 Pa.C.S. § 1102.1(c)(1).
“Offenders convicted of first-or second-degree murder prior to Miller remain
subject to mandatory maximum sentences of life imprisonment pursuant to
Section 1102.” Lekka, supra, at 356 n.10.
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A minimum term-of-years sentence for a juvenile convicted of murder
must ensure that the offender is afforded a “meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.”
Commonwealth v. Olds, 192 A.3d 1188 (Pa. Super. 2018) (quoting Graham
v. Florida, 560 U.S. 48, 75 (2010)); see also Commonwealth v. Foust,
180 A.3d 416, 431 (Pa. Super. 2018) (holding that a trial court may not
impose a minimum term-of-years sentence which constitutes a de facto life
without parole sentence on a juvenile convicted of homicide unless it finds
that the juvenile is incapable of rehabilitation). In addition, when the
Commonwealth does not seek a sentence of life without parole for a juvenile
offender, the sentencing court should apply the traditional sentencing
considerations when resentencing the offender. Batts II, supra, at 460
(citing 42 Pa.C.S. § 9721(b)).
These standards provide in part that “the sentence imposed should call
for confinement 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.
§ 9721(b). Pennsylvania’s individualized sentencing scheme requires
sentencing courts to examine these factors as they relate to the specific
defendant and crime before the court. Commonwealth v. Luketic, 162 A.3d
1149, 1160 (Pa. Super. 2017). When a sentencing court has ordered and
reviewed a pre-sentence investigation report, “we presume that the court was
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aware of all relevant sentencing factors.” Commonwealth v. Knox, 219
A.3d 186, 199 (Pa. Super. 2019). Moreover, we recognize that the sentencing
court, which is present at the hearing and observes all witnesses and the
defendant firsthand, “is in a superior position to review the defendant’s
character, defiance or indifference, and the overall effect and nature of the
crime.” Lekka, supra, at 353.
Here, Noble claims that the trial court abused its discretion by
disregarding his mitigating evidence and imposing a manifestly excessive
sentence under the circumstances. He also contends that the trial court
resentenced him “based on consideration of first-degree murder” rather than
second-degree murder, even though there was insufficient evidence at trial to
establish that Noble was the shooter. Noble’s Brief at 13. The record of the
sentencing hearing belies these claims.
The trial court in this case presided over Noble’s pre-trial, trial and
sentencing proceedings in 1992 and 1993 and was familiar with the history of
the case. Prior to the resentencing hearing, the trial court reviewed the pre-
sentence investigation report, the mitigation report, letters submitted on
behalf of Noble, victim impact statements and the sentencing memorandums
from the Commonwealth and the defense. After receiving testimony at the
sentencing hearing from character witnesses for Noble, Noble himself, Niles
and Scott Cleaver, the trial court made the following findings:
The Court would note first of all, that he finds there’s insufficient
evidence now, as there was back then as a matter of law, to
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determine that the defendant was, in fact, the shooter, and
therefore, he will not be sentenced with that as a factor.
The Court notes that the defendant was 15 at the time of the
crime, and as the Supreme Court has said of people his age, there
is diminished mental capacity, and lack of culpability, and the
Court has considered that as well.
Although the defendant was 15, he was of, at least, average
intelligence. He had no— or there was no evidence of any
intellectual disability, and he did not suffer from any mental illness
as a prior psychological report has indicated that was done at the
time.
The defendant indicates he has remorse for what happened, but
not for his participation in what happened, and refuses to accept
any responsibility for that, even though the verdict indicates
otherwise.
The Court has also considered the circumstances of the
defendant’s childhood, the fact that he obtained a GED, and the
fact that he has done some good things in prison to help others.
The Court, however, cannot overlook his prison record and his
misconducts, transfers and disciplinary problems that he has
caused or been involved in in prison, as well as the fact that within
the prison system, he was convicted of assault and related
offenses in 2014, although not in the legal system. He does have
a conviction from 2005, however, for having a weapon or
implements, for which he received one to two years.
The Court would note that the impact on the victim in this case
cannot be diminished or understated. Obviously, the victim
suffered the ultimate consequence. He was killed, and therefore,
not only does he have no further life, but his family members did
not have [an] opportunity to have a life with him, and by all
accounts, he had accomplished a great deal over a number of
handicaps, and being a fruitful and good citizen in the community,
who was working to serve the community and better himself.
And he was, in fact, helpless based on his physical disabilities, so
the killing certainly is considered by the community, to be
outrageous and something that no civilized society should
tolerate.
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N.T. at 62-64. The trial court subsequently imposed the sentence of 40 years
to life imprisonment.
Based on these findings, we conclude that the trial court considered all
required factors under Section 9721(b) in imposing its sentence, including
Noble’s rehabilitative needs based on his positive achievements in prison as
well as his record of misconducts and other violations. This court may not
reweigh the factors under Section 9721(b) if they were properly considered
by the sentencing court. Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa.
Super. 2012) (stating that “weighing of factors under 42 Pa.C.S. § 9721(b)
[is] exclusively for the sentencing court”). While the trial court must consider
the minimum sentences set forth in Section 1102.1 when imposing a sentence
on a juvenile convicted before its enactment, the court may exercise its
discretion to impose a higher sentence if warranted based on its weighing of
the 42 Pa.C.S. § 9721(b) factors. See Lekka, supra, at 353 (holding that
the trial court’s upward departure from the minimum suggested sentence for
a juvenile convicted of first-degree murder was not an abuse of discretion
when the juvenile acknowledged his guilt, but did not show any true insight
into his actions). The sentence renders Noble eligible for parole when he is
approximately 56 years old, granting him a meaningful opportunity to live a
portion of his life outside of prison. As the trial court here was aware of all
relevant factors based on the evidence at the sentencing hearing, the
sentencing memoranda, and the presentence investigation report, we
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presume it considered all mitigating evidence and find no abuse of discretion.
See Knox, supra.
Noble also contends that his sentence is excessive because one of his
co-defendants was resentenced to 20 to 50 years in prison. This argument is
meritless in light of Pennsylvania’s individualized sentencing scheme.
Luketic, supra, at 1161 (holding that a trial court abuses its discretion in
sentencing “by failing to investigate and consider the character of the
defendant” or imposing a pre-determined sentence without consideration of
evidence at the sentencing hearing). Two co-defendants may be differently
situated on any of the factors enumerated in Section 9721(b), and
individualized consideration of the evidence at sentencing may lead the court
to determine that co-defendants warrant different sentences. As the trial
court here considered all of the required factors pursuant to Section 9721(b)
in imposing Noble’s sentence, it is of no moment that his co-defendant
received a lesser sentence.
Next, Noble argues that the information the trial court relied on
regarding his misconducts and disciplinary record while incarcerated was
inaccurate and that he is entitled to a new sentencing hearing as a result. We
have previously held:
A sentence is invalid if the record discloses that the
sentencing court may have relied in whole or in part upon an
impermissible consideration. This is so because the court
violates the defendant’s right to due process if, in deciding
upon the sentence, it considers unreliable information, or
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information affecting the court’s impartiality, or information
that it is otherwise unfair to hold against the defendant.
Commonwealth v. Karash, 452 A.2d 528, 528-29 (Pa. Super.
1982) (citations omitted). Simply put, “the evidence upon which
a sentencing court relies must be accurate,” Commonwealth v.
Pfender, 540 A.2d 543, 548 (Pa. Super. 1988) (quotation and
quotation marks omitted), and there must be evidentiary proof of
the factor, upon which the court relied. See Commonwealth v.
P.L.S., 894 A.2d 120 (Pa. Super. 2006).
Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010).
Noble contends that the documentation that the Commonwealth
submitted to the trial court prior to sentencing did not accurately set forth his
record of misconducts while in prison, and the trial court abused its discretion
in relying on the information set forth in the records. He extensively sets forth
his own recollection of events leading to each misconduct, violation and
incident leading to his placement in restrictive housing. We find no evidence
in the record that the information regarding Noble’s prison record was
inaccurate. In his counseled sentencing memorandum, Noble acknowledged
that he had accrued misconducts during his incarceration, and he did not
challenge the validity of the prison records at the resentencing hearing. Noble
admitted at sentencing and in his pro se post-sentence motion that he earned
numerous misconducts and violations during his incarceration and has spent
much of his incarceration in restrictive housing as a result. Thus, we conclude
that trial court did not abuse its discretion in according weight to Noble’s
record of misconducts and violations while in prison rather than to Noble’s
own explanation of the events in his post-sentence motion.
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Accordingly, we conclude that the trial court did not abuse its discretion
in sentencing Noble to 40 years to life imprisonment.
III.
Finally, Noble contends that the trial court abused its discretion by failing
to replace his court-appointed counsel prior to the resentencing hearing, as
he believes that his attorney “only worked against [him] to help prosecution.”
Noble’s Brief at 60. This question is outside the scope of our remand that was
limited to allowing Noble to file a post-sentence motion preserving his
challenges to the discretionary aspects of his sentence. Noble, 420 WDA
2018, at *22. “[W]here a case is remanded to resolve a limited issue, only
matters related to the issue on remand may be appealed.” Commonwealth
v. Lawson, 789 A.2d 252, 253 (Pa. Super. 2001). Moreover, as we held
previously, any challenges based on ineffective assistance of counsel may not
be raised on direct appeal and are properly reserved for a petition pursuant
to the PCRA. Noble, 420 WDA 2018, at *17 (citing Commonwealth v.
Rivera, 199 A.3d 365, 372 n.3 (Pa. 2018)). No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2020
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