Com. v. O'Neal, T.

J-S16023-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS CHARLES O'NEAL :
:
Appellant : No. 1664 EDA 2019
Appeal from the Judgment of Sentence Entered April 2, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002789-1994
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 21, 2020
Thomas Charles O’Neal appeals from the judgment of sentence entered
after being resentenced pursuant to Miller v. Alabama, 567 U.S. 460 (2012),
and Montgomery v. Louisiana, ––– U.S. ––––, 136 S.Ct. 718 (2016). He
maintains that the trial court imposed an improper de facto life sentence. We
affirm.
In 1995, O’Neal pled guilty to first-degree murder and the trial court
sentenced him to life without the possibility of parole [“LWOP”].1 O’Neal was
17 years old when he committed the crime. After a series of unsuccessful
PCRA petitions, in April 2019 the court resentenced O’Neal to 48 years to life
____________________________________________
1 18 Pa.C.S.A. § 2502(a).
J-S16023-20
imprisonment.2 O’Neal filed a post-sentence motion, which the court denied.
This timely appeal followed.
O’Neal presents the following issue to this Court:
Whether the trial court imposed an constitutionally
impermissible de facto life sentence when it imposed a
sentence of 48 years to life on a juvenile offender convicted
of first degree murder, where the Commonwealth did not
seek the imposition of life in prison without the possibility of
parole and where there was no finding that [O’Neal] was
permanently incorrigible, irreparably corrupt or irretrievably
depraved[?]
O’Neal’s Br. at 3.
O’Neal’s claim challenges the legality of his sentence. “The
determination as to whether a trial court imposed an illegal sentence is a
question of law; an appellate court’s standard of review in cases dealing with
questions of law is plenary.” Commonwealth v. Crosley, 180 A.3d 761, 771
(Pa.Super. 2018), appeal denied, 195 A.3d 166 (Pa. 2018) (citation omitted).
“[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.” Commonwealth v. Foust, 180 A.3d 416, 431
(Pa.Super. 2018). The Foust Court declined to draw a “bright line in this case
delineating what constitutes a de facto LWOP sentence and what constitutes
a constitutional term-of-years sentence.” Id. at 438. However, it held that
____________________________________________
2 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.
-2-
J-S16023-20
“the individual sentences must be considered” when determining the
constitutionality of the sentence and whether it constitutes a de facto life
sentence. Id. at 434.
In Commonwealth v. Bebout, this Court held that a term of 45 years
to life did not amount to a de facto life sentence. Bebout, 186 A.3d 462, 469
(Pa.Super. 2018). The Court stated that [“t]he key factor in considering the
upper limit of what constitutes a constitutional sentence . . . appears to be
whether there is ‘some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.’” Id. at 468 (quoting Graham v.
Florida, 560 U.S. 48, 75 (2010)). It concluded that there was a meaningful
opportunity where it was “at least . . . plausible that one could survive until
the minimum release date with some consequential likelihood that a non-
trivial amount of time at liberty awaits.” Id. (emphasis omitted). Applying this
standard, the Court determined that Bebout, who was 15 years old at the time
of the crime, would be eligible for parole at age 60. Id. Thus, it concluded that
“[Bebout’s] 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 [Bebout] could live many years past his earliest possible release date.”
Id. at 469.
In the instant case, O’Neal maintains that though the court did not
impose a life sentence, his sentence in effect amounts to one. See O’Neal’s
Br. at 5. He alleges that despite the possibility of being paroled at 66 years
old, “he would only have the opportunity for parole beyond his expected
-3-
J-S16023-20
retirement age with no money and little potential for employment.” Id. at 6.
O’Neal’s claim is meritless.
O’Neal was 17 years old at the time he committed the murder. O’Neal
would be eligible for parole at 65 years old, only five years longer than the
appellant in Bebout. As in Bebout, we conclude that “it is at least plausible,
and perhaps even likely, that [O’Neal] could live many years past his earliest
possible release date.” Bebout, 186 A.3d at 469. We therefore conclude that
the court’s sentence of 48 years to life imprisonment is not a de facto life
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/20
-4-