J-A06018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL LEE BOURGEOIS :
:
Appellant : No. 570 MDA 2018
Appeal from the Judgment of Sentence November 3, 2017
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004224-2001
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED APRIL 12, 2019
Appellant Michael Lee Bourgeois appeals from the judgment of sentence
imposed after the trial court resentenced him to an aggregate term of eighty
years to life imprisonment for two counts of first-degree murder1 and related
offenses. Appellant claims the court imposed an unconstitutional de facto
sentence of life imprisonment without the possibility of parole (LWOP) in
violation of the Pennsylvania Supreme Court’s holding in Commonwealth v.
Batts, 163 A.3d 410 (Pa. 2017) (Batts II), and challenges the discretionary
aspects of his sentence. We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2502(a).
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On Saturday, September 1, 2001, [Appellant], along with Landon
May, Steven Estes, and Raymond Navarro Perez, committed a
burglary at the home of Lloyd and Beverly Good, who were away
on vacation for the extended Labor Day weekend. After
ransacking the home, the perpetrators fled the scene in the two
vehicles, which had been parked in the garage. Other items taken
from the house included revolvers, shotguns, rifles, shells,
assorted hunting knives, a compound bow, and cash.
The next day, September 2, 2001, [Appellant] and Estes entered
a Turkey Hill convenience store wearing camouflage and masks.
They pointed handguns at the clerk and demanded money. They
fled the store with $253.00. May later confessed that he was the
driver of the “get-away” car and that Drenea Rodriguez had
assisted in the planning of the robbery and also benefitted
financially from the crime.
The residential burglary was discovered by the Good family on
Monday, September 3, 2001. The home was processed for latent
fingerprints and on Wednesday, September 5, 2001, Trooper A.J.
Mizzoni of the Pennsylvania State Police received information that
one of the prints lifted from the Good residence matched
fingerprints on file belonging to [Appellant]. Efforts to locate
[Appellant] at his last known address . . . were unsuccessful on
September 5, 2001.
On the evening of September 5, 2001, Lucy Bourgeois Smith and
her husband, Terry Smith, went to [Appellant’s residence] to see
Lucy’s son, Appellant. [Appellant] had moved out of the family
home . . . approximately two months earlier and into [his current
residence], which was leased to Rodriguez. [Appellant] (age 17)
and Rodriguez (age 33) were romantically involved. The Smiths
dropped off a saxophone belonging to [Appellant], reminded him
of a scheduled doctor’s appointment, and informed him that the
State Police had called looking for him.
On Thursday, September 6, 2001, at approximately 10:00 a.m.,
the Ephrata Borough Police Department received a telephone call
from Diane Lamm, who was an employee of Terry Smith. Ms.
Lamm advised the police that Terry Smith had not come to work,
and that Terry’s wife, Lucy, was an elementary school principal
and that she also was not at work, which was unusual.
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Detective David Shupp and Officer Douglas Heilman responded to
[the Smiths’ residence] at approximately 10:30 a.m. Upon
learning from the State Police that [Appellant] was the son of Lucy
Smith, that his fingerprint had been discovered at the scene of a
local burglary, and that guns had been stolen from the house, the
officers called for backup. At approximately 10:55 a.m., several
officers entered the home through an unlocked sliding door. Upon
entering the master bedroom on the second floor, the officers
observed blood splatters on the mattress and wall and saw what
appeared to be a body wrapped in a comforter on the floor in a
pool of blood. A second body wrapped in bedding was found in a
front bedroom.
The body in the front bedroom was eventually identified as Terry
Smith and it appeared as though he had been stabbed repeatedly
and shot multiple times in the head. The body in the master
bedroom was identified as Lucy Smith and it appeared as though
she had been severely assaulted to the left side of the head, as
well as shot.
In the late morning hours of Thursday, September 6, 2001,
Corporal Raymond Guth of the Pennsylvania State Police and
Detective Shupp went to Rodriguez’s residence . . . to interview
[Appellant] regarding the Good burglary. During this interview,
[Appellant] admitted to the officers that he and Perez had
committed the Good burglary. [Appellant] was subsequently
arrested on the burglary charge and taken into custody by
Corporal Guth.
After waiving his Miranda[fn1] rights, [Appellant] gave a statement
to the police on September 6, 2001, in which he admitted that he
and May went to the Smith residence with the intent to commit a
burglary. They entered the residence through a second floor
window. When confronted by the Smiths during the course of the
burglary, [Appellant] stated that he and May bound the Smiths
with duct tape and then shot them with guns stolen from the Good
residence. [Appellant] further admitted to taking a quantity of
money from the house.
[fn1] Miranda v. Arizona, 384 U.S. 436 (1966).
On the evening of September 6, 2001, May was arrested for the
Good burglary and given his Miranda warnings, which he
acknowledged in writing. May then proceeded to give a statement
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to Detectives Ortenzi and Tobin in which he confessed to his
participation in the killings of Terry and Lucy Smith.
* * *
Wayne Ross, M.D., the Lancaster County forensic pathologist,
performed autopsies on the bodies of Lucy and Terry Smith on
September 7, 2001. He determined that Terry Smith was stabbed
47 times, his neck was cut at least five times, he was shot
“execution-style” five times, and he was strangled or asphyxiated.
There were no defensive wounds on Terry Smith.
During the autopsy of Lucy Smith, Dr. Ross obtained swabbings
from her mouth. These swabbings were examined by a forensic
scientist with the Pennsylvania State Police Laboratory, and were
found to contain spermatozoa. A forensic scientist supervisor with
the Pennsylvania State Police DNA Laboratory reported that the
blood sample from Landon May matched the DNA of the sperm
from the oral swabs taken from Lucy Smith. In addition to being
sexually assaulted, Lucy Smith was cut 51 times, shot in the head,
beaten on the left side of her head with a claw hammer, suffered
blunt force trauma to her forehead, had 17 fractures to her skull,
and was eventually smothered to death. She suffered defensive
wounds to her hands and arms.
Based upon this evidence, the Commonwealth charged
[Appellant], then 17 years old, with two counts of homicide,
criminal conspiracy, robbery and burglary at Information No.
4224-2001, and with robbery, conspiracy and theft at Information
No. 4975-2001, with respect to the Turkey Hill robbery. Pursuant
to section 6355(e) of the Juvenile Act, [Appellant’s] case was filed
directly in criminal court, as the criminal division is vested with
exclusive jurisdiction over the crime of murder.
On November 19, 2001, the Commonwealth informed [Appellant]
and the [c]ourt of its intention to seek the death penalty. The
three aggravating circumstances charged were that: (1)
[Appellant] committed a killing while in the perpetration of a
felony (burglary and robbery)[;] (2) in the commission of the
offense, [Appellant] knowingly created a grave risk of death to
another person in addition to the victim of the offense[;] and (3)
the offense was committed by means of torture . . . .
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The trial of [Appellant’s] co-defendant May began on November 1,
2002. The jury found May guilty on November 27, 2002, of two
counts of burglary, two counts of conspiracy, one count of
involuntary deviate sexual intercourse, and two counts of first-
degree murder for the killings of Terry and Lucy Smith. After a
penalty hearing, the jury returned two sentences of death against
May, having specifically found the aggravating factor of torture.
At that point, [Appellant] chose to resolve his charges through a
negotiated plea agreement with the Commonwealth. Accordingly,
on January 6, 2003, [Appellant] entered into an “Agreement for
Truthful Testimony” with the Commonwealth in which [Appellant]
agreed “to cooperate fully and truthfully with the Commonwealth
in the investigation and prosecution of the persons responsible for
the deaths of Lucy and Terry Smith, as well as the burglary,
assault, robbery and theft crimes perpetrated by [Appellant],
Landon May, Drenea Rodriguez, Steve Estes and any other person
or crime of which he has knowledge.” In exchange for this
cooperation and testimony, the Commonwealth agreed to present
a plea agreement in which [Appellant] would plead guilty to the
first-degree murders of Lucy and Terry Smith and receive
consecutive sentences of [LWOP].[fn7] As a result, [Appellant] was
spared the death penalty.
[fn7]Pennsylvania law mandated that if a person was found
guilty of first-degree murder and did not receive the death
penalty that he or she would receive a sentence of life
imprisonment without the possibility of parole. See 18
Pa.C.S. § 1102(a)(1).
* * *
On January 27, 2003, [Appellant] tendered a negotiated plea to
all of the charges, with the exception of one count of robbery at
No. 4224-2001 and one count of theft at No. 4975-2001, which
were to be nolle prossed by the Commonwealth at the time of
sentencing. After an extensive colloquy, the [trial court] accepted
[Appellant’s] guilty plea. [Appellant] waived his right to a
presentence investigation and was immediately sentenced to two
consecutive terms of [LWOP] for the first-degree murder charges,
with concurrent sentences of 10 to 20 years’ imprisonment for
each of the criminal conspiracy and burglary charges. The robbery
charge was nolle prossed at the time of sentencing.
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As part of the same proceeding, [Appellant] also pleaded guilty to
one count of robbery and one count of conspiracy to commit
robbery on Docket No. 4975-2001, and received concurrent
negotiated sentences of 10 to 20 years’ incarceration on each
charge. These sentences were also concurrent with the first count
of criminal homicide for Terry Smith. The theft charge was nolle
prossed as part of the negotiated plea agreement. No post-
sentence motions were filed nor did [Appellant] file a direct
appeal.
Trial Ct. Op., 6/6/18, 1-11 (some citations and footnotes omitted).
Between 2007 and 2010, Appellant filed two unsuccessful petitions
pursuant to the Post Conviction Relief Act2 (PCRA). On August 9, 2012, PCRA
counsel filed a third PCRA petition on Appellant’s behalf, raising claims related
to the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S.
460 (2012).3 Relying on Miller, Appellant argued that the Eighth Amendment
to the United States Constitution prohibits the imposition of mandatory LWOP
sentences for homicides committed by juvenile offenders. Appellant
concluded that the trial court imposed illegal, mandatory LWOP sentences for
his two murder convictions.
On July 7, 2014, the PCRA court denied Appellant’s petition, concluding
that Miller did not apply retroactively to cases on collateral review. This Court
affirmed the order, and Appellant timely filed a petition for allowance of
appeal. On February 24, 2016, the Pennsylvania Supreme Court granted
____________________________________________
2 42 Pa.C.S. §§ 9541-9546.
3The United States Supreme Court decided Miller on June 25, 2012, and
Appellant filed his third PCRA petition within sixty days of that decision.
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Appellant’s petition for allowance of appeal, vacated the Superior Court’s
decision, and remanded the matter for further proceedings. Specifically, the
Court cited the United States Supreme Court’s decision in Montgomery v.
Louisiana, 136 S. Ct. 718 (2016),4 holding that the States must apply Miller
retroactively. Thereafter, this Court reversed the PCRA court’s order, vacated
Appellant’s judgment of sentence, and remanded the case for resentencing.
Commonwealth v. Bourgeois, 1248 MDA 2014 (Pa. Super. July 29, 2016)
(unpublished mem.).
On October 27, 2017, prior to Appellant’s resentencing hearing, the
Commonwealth filed a sentencing memorandum. The memorandum provided
a statement of the case, discussion of relevant case law, and a sentencing
recommendation. The Commonwealth requested that the trial court sentence
Appellant to consecutive terms of fifty years to life imprisonment for each
murder conviction and consecutive statutory maximum sentences for
Appellant’s conspiracy and burglary convictions.
The trial court conducted Appellant’s resentencing hearing on November
3, 2017. After providing an on-the-record statement of its considerations, the
court resentenced Appellant to consecutive sentences of forty years to life
imprisonment for each murder conviction. The court also imposed concurrent
sentences of ten to twenty years’ imprisonment for the conspiracy and
____________________________________________
4 The United States Supreme Court issued this decision on January 27, 2016.
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burglary convictions. Therefore, the court imposed an aggregate sentence of
eighty years to life imprisonment.
Appellant timely filed a post-sentence motion on November 7, 2017.
Appellant argued that he would not be eligible for parole until he is ninety-
seven years old, but the average life expectancy in Pennsylvania is seventy-
eight and one-half years. Appellant also asserted that “the [t]rial [c]ourt failed
to fully appreciate [Appellant’s] distinctive youthful attributes and model
prisoner status, instead focusing its analysis on the facts and circumstances
surrounding the crime itself . . . .” Post-Sentence Mot., 11/7/17, at 2.
Appellant concluded that the court imposed a de facto LWOP sentence in
contravention of Miller and Montgomery, and he requested that the trial
court change the minimum sentence for each murder conviction to thirty-five
years’ imprisonment. The court denied Appellant’s post-sentence motion on
December 4, 2017.
Appellant’s current counsel subsequently entered her appearance and
timely filed a notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The trial court filed a responsive
Rule 1925(a) opinion, concluding that it had imposed legal sentences of forty
years to life imprisonment for each murder conviction. The court also claimed
that it properly weighed all relevant sentencing factors, and it did not abuse
its discretion by imposing consecutive sentences for the murder convictions.
While this appeal was pending, the Pennsylvania Supreme Court granted
allowance of appeal to consider whether a sentence of fifty years to life for a
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single count of first-degree murder constitutes a de facto life sentence. See
Commonwealth v. Felder, 41 EAL 2018 (Pa. filed June 19, 2018). On
February 21, 2018, this Court also decided Commonwealth v. Foust, 180
A.3d 416 (Pa. Super. 2018),5 and held that we must consider the individual
sentences for two counts of first-degree murder, not the aggregate sentence,
to determine if a sentence constitutes a de facto LWOP sentence. Id. at 437-
38.
Appellant now raises three questions for our review:
1. Did the trial court err in sentencing [Appellant] to an
unconstitutional de facto life sentence without the necessary
procedural protections, considerations and findings enumerated
by the Pennsylvania Supreme Court in Batts II?
2. Did the trial court err in failing to consider the Miller factors on
the record prior to sentencing [Appellant] to a de facto life
sentence?
3. Did the trial court abuse its discretion in sentencing [Appellant]
to a de facto life sentence by failing to properly apply Miller and
Batts II?
Appellant’s Brief at 3 (footnotes omitted).
In his first issue, Appellant cites Batts II for the proposition that Miller
and Montgomery “create a presumption of parole eligibility and require a
[juvenile offender] to be found irreparably corrupt before they can be
____________________________________________
5 The appellant in Foust timely filed a petition for allowance of appeal with
the Pennsylvania Supreme Court on March 23, 2018. On September 5, 2018,
the Court entered an order holding the petition for allowance of appeal pending
its disposition of Commonwealth v. Felder, 18 EAP 2018. Order, 126 WAL
2018 (Pa. filed Sept. 5, 2018). The Court has scheduled oral argument in
Felder for May 16, 2019.
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sentenced to life without parole.” Id. at 11. Appellant contends the trial
court’s imposition of an aggregate term of eighty years to life imprisonment
created a de facto LWOP sentence “that unconstitutionally deprives him of a
meaningful opportunity for release as he has not been found to be one of the
rare and uncommon juveniles who is irreparably corrupt.” Id. Appellant
acknowledges this Court’s decision in Foust. Id. at 12. Appellant insists,
however, that the Foust decision “sidesteps the mandates of Miller and Batts
II that [juvenile offenders] convicted of homicide who are capable of
rehabilitation be afforded the opportunity for parole.” Id.
Moreover, Appellant maintains his resentencing hearing was deficient,
because the “trial court did not address the central question posed in
Miller―whether [Appellant] is capable of rehabilitation―prior to sentencing
him to what amounted to a de facto life sentence.” Id. at 22. Even though
the Commonwealth did not seek a formal LWOP sentence at the resentencing
hearing, Appellant argues that the trial court’s noncompliance with Miller,
Montgomery, and Batts II undermined the entire proceeding and
constituted an error of law requiring this Court to vacate Appellant’s new
sentences. Id. at 24.
“We review the legality of a sentence de novo and our scope of review
is plenary.” Foust, 180 A.3d at 422 (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.” Id. at 431.
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Nevertheless, “we must consider the individual sentences, not the
aggregate, to determine if the trial court imposed a term-of-years sentence
which constitutes a de facto LWOP sentence.” Id. at 438. Further, this Court
has determined that sentences greater than forty years to life imprisonment
for juvenile offenders convicted of murder do not constitute impermissible de
facto LWOP sentences. See Commonwealth v. Bebout, 186 A.3d 462, 469-
70 (Pa. Super. 2018) (holding that a juvenile offender failed to establish that
a sentence of forty-five years to life imprisonment for second-degree murder
was not the functional equivalent of LWOP).
Instantly, the trial court emphasized the applicability of Foust because
Appellant’s case involved two murder victims:
The murder of each [of Appellant’s] victim[s] was carried out in a
dispassionate and calculated manner, each victim was tortured
and mutilated, and each murder showed an exceptionally callous
disregard for human suffering.
* * *
The consecutive sentence in this case, given multiple victims and
convictions, did not contravene the Commonwealth’s statutory
sentencing scheme in any way. [Appellant’s] argument that he
received a de facto life sentence because his consecutive, fixed-
term sentences for multiple crimes amount to the practical
equivalent of [LWOP] is an attempt by [Appellant] to invite the
appellate courts to ignore individualized sentencing.
[The] Superior Court soundly rejected this position in its very
recent decision in Commonwealth v. Foust . . . .
Trial Ct. Op. at 21-22 (citations omitted).
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The trial court went on to explain that Foust involved a juvenile offender
convicted of two counts of first-degree murder, and the Foust decision
expressed concern over “open[ing] the door to volume sentencing discounts
in cases involving multiple juvenile homicide offenses.” Id. at 23 (quoting
Foust, 180 A.3d at 436). Consequently, the trial court imposed consecutive
sentences of forty years to life imprisonment for each of Appellant’s first-
degree murder convictions.
In considering the constitutionality of Appellant’s individual murder
sentences, as mandated by Foust, this Court has already determined that a
sentence of forty-five years to life imprisonment is not the functional
equivalent of LWOP for a juvenile offender. See Bebout, 186 A.3d at 469-
70. In light of the applicable standard of review and the relevant case law,
the trial court did not commit an error of law that requires this Court to vacate
Appellant’s sentences.6 See Foust, 180 A.3d at 422.
In his second issue, Appellant contends he “is constitutionally entitled
to an individualized sentence that reflects his distinct youthful attributes.”
Appellant’s Brief at 25. To guarantee a proper sentence for a juvenile offender
facing LWOP, Appellant asserts that a trial court must examine several specific
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6 To the extent Appellant insists that this Court’s decision in Foust was
incorrect, we acknowledge that future rulings from the Pennsylvania Supreme
Court may produce new precedent regarding the sentencing of juvenile
offenders convicted of first-degree murder. Nevertheless, this Court is
constrained to apply existing precedent until such cases are overruled. See
Commonwealth v. El, 933 A.2d 657, 662 n.3 (Pa. Super. 2007).
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factors set forth in Miller.7 Id. The trial court, however, did not provide any
specific findings as to the Miller factors for this case. Id. at 26.
Appellant complains, “It is impossible to review whether the court
imposed an individualized sentence in accordance with the constitutional
mandates of Miller if there is no record detailing its considerations.” Id.
Appellant concludes the court committed legal error by failing to make on-the-
record findings regarding the Miller factors. Id. at 27.
Significantly, “a sentencing court must consider these Miller factors
only in cases where the Commonwealth is attempting to meet its burden of
overcoming the presumption against juvenile LWOP sentences.”
Commonwealth v. White, 193 A.3d 977, 983 (Pa. Super. 2018) (citation
omitted). Here, the Commonwealth did not attempt to overcome the
presumption against juvenile LWOP sentences in Appellant’s case. See
Commonwealth’s Sentencing Mem., 10/27/17, at 6 n.4. Therefore, the trial
court did not need to conduct an on-the-record examination of the Miller
____________________________________________
7 “[A]t a minimum[, the trial court] should consider a juvenile’s age at the
time of the offense, his diminished culpability and capacity for change, the
circumstances of the crime, the extent of his participation in the crime, his
family, home and neighborhood environment, his emotional maturity and
development, the extent that familial and/or peer pressure may have affected
him, his past exposure to violence, his drug and alcohol history, his ability to
deal with the police, his capacity to assist his attorney, his mental health
history, and his potential for rehabilitation.” Batts II, 163 A.3d at 421 n.5
(citation omitted).
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factors at the resentencing hearing in Appellant’s case. See White, 193 A.3d
at 983.8
In his third issue, Appellant argues that the trial court abused its
discretion, because it failed to provide adequate reasons to support the
sentence imposed. Appellant’s Brief at 28. Even if consideration of the Miller
factors were not required as a matter of law, Appellant maintains that “the
trial court’s failure here to properly weigh the mitigating factors on the record
resulted in an excessive and unreasonable sentence.” Id. Appellant also
complains that the court “allowed the facts of the crime to impermissibly
override mitigation, and it improperly relied on the mandatory minimum
established in Section 1102.1.” Id. at 31.
Appellant’s issue is a challenge to the discretionary aspects of his
sentence. It is well settled that “[c]hallenges to the discretionary aspects of
sentencing do not entitle an appellant to review as of right.” Commonwealth
v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citation omitted). Rather,
before reaching the merits of such claims, we must determine:
(1) whether the appeal is timely; (2) whether [the a]ppellant
preserved his issues; (3) whether [the a]ppellant’s brief includes
a concise statement of the reasons relied upon for allowance of
____________________________________________
8In White, this Court cited to Commonwealth v. Machicote, 172 A.3d 595,
602 n.3 (Pa. Super. 2017), appeal granted, 186 A.3d 370 (Pa. 2018), for the
proposition that a court need not consider the Miller factors where the
Commonwealth does not seek a LWOP sentence. The Pennsylvania Supreme
Court granted allowance of appeal in Machicote to determine whether a court
must consider the Miller factors regardless of whether the defendant
ultimately receives a LWOP sentence. Order, 4 WAL 2018 (Pa. filed May 22,
2018).
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appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is inappropriate under the [S]entencing [C]ode.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation
omitted).
Instantly, Appellant preserved his issue in a post-sentence motion and
timely appealed from the denial of his post-sentence motion. Appellant also
included in his brief a Pa.R.A.P. 2119(f) statement. Further, Appellant has
raised a substantial question for our review. See Foust, 180 A.3d at 439
(holding that an excessiveness claim based upon the imposition of consecutive
sentences for two murder convictions presents a substantial question);
Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (stating
that “an excessiveness claim in conjunction with an assertion that the court
did not adequately consider a mitigating factor may present a substantial
question” (citation omitted)).
Our standard of review in this context is as follows:
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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted).
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“A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender.”
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010) (citation
omitted).
Typically, when sentencing a defendant, the trial court is required
to consider the sentencing guidelines. In this case, however, no
sentencing guidelines exist for juveniles convicted of first-degree
murder prior to June 25, 2012. Instead, our Supreme Court in
Batts II held that, in these cases, the applicable “sentencing
guidelines” that the trial court should consider are the mandatory
minimum penalties set forth in section 1102.1.
Foust, 180 A.3d at 439 (citations omitted).
Here, at the resentencing hearing, the trial court explained:
In determining the minimum sentence in this case, I must look to
traditional sentencing considerations as outlined in the applicable
statutes and the case law. The sentence imposed here today must
take into consideration the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victims and
the community, and the rehabilitative needs of the defendant.
In this case, the [c]ourt must also be guided by Title 18, Section
1102.1(a), which provides for a minimum sentence of at least 35
years to life where the offender was 15 years of age or older at
the time of the crime. As indicated throughout the records,
[Appellant] was 17 years and approximately five months of age
on the date he committed these offenses.
* * *
I do note . . . for the purpose of this sentencing that the actions
of [Appellant] on September 6, 2001, which included the torture
of the victims, are among some of the most chilling, depraved and
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heinous acts I have reviewed in my career as a judge in nearly 18
years.
Although the Commonwealth is not seeking life without parole,
and I therefore am not required to make detailed findings on the
record regarding all of the factors outlined by the U.S. Supreme
Court and our state Supreme Court, as well as the applicable
statutes, I have chosen to consider and review all of those factors
in arriving at the appropriate sentence here today.
* * *
Again, I have considered in detail the materials provided to me
regarding [Appellant’s] conduct while he has been incarcerated. I
specifically note that his conduct has been commendable as a
model inmate. While [Appellant’s] good conduct in prison should
and has been considered by me in rendering my decision, it is but
one factor of many factors to be considered. It does not control
or mandate any particular outcome.
There is no doubt that [Appellant] has conducted himself in the
manner in which we would want inmates to behave, but some
things just cannot be taken back regardless of subsequent
behavior.
* * *
I simply cannot accept the proposition that a juvenile offender who
commits multiple murders must be afforded a volume discount
and not [be] held responsible for each and every life he has taken,
even if the sentence imposed approaches a lifetime in prison.
Youth matters, but so did the lives of the victims.
N.T. Resentencing, 11/3/17, at 151-52, 155, 157, 158.
In its Rule 1925(a) opinion, the trial court incorporated the above-
recited portion of the sentencing hearing where it provided the reasons for the
sentence it imposed. See Trial Ct. Op. at 33. The court further emphasized:
It is clear that in fashioning this sentence I did weigh all the
mitigating and aggravating factors in this case, including the
factors outlined in Batts II and the Miller . . . age-related factors
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codified in section 1102.1, even though [Appellant’s] individual
sentences of 40 years to life imprisonment did not constitute a de
facto [LWOP] sentence.
[Appellant] submitted a substantial amount of documentation for
my consideration. I reviewed all of these materials in exhausting
detail, which included documentation of [Appellant’s] conduct
while in prison since 2003 . . . .
* * *
In stark contrast to the certificates and achievements presented
by defense counsel, the Commonwealth submitted the transcript
of [Appellant’s] chilling confession, which I carefully reviewed, as
well as the gruesome autopsy reports for Lucy and Terry Smith. I
further read the entire transcript of [Appellant’s] prior guilty plea
and sentencing, which included very moving victim impact
statements from the children of Terry and Lucy Smith.
* * *
Finally, I critically observed and assessed the extensive testimony
of [Appellant] regarding his idyllic childhood and the “joy in just
being with family,” the problems that came with his parents’
divorce, including a move from Kansas to Pennsylvania, his efforts
to fit in at a new high school by drinking, smoking marijuana and
ingesting large quantities of Robitussin, his criminal behavior,
including theft, robbery and burglary, his relationship with 33-
year-old Drenea Rodriguez, and his life in prison following his
conviction. [Appellant] described his mother as “very loving,”
someone who “cared for her children,” “wanted the best for us,”
and “wanted us to succeed in everything that we done [sic].”
[Appellant] said Lucy Smith “was definitely a woman who gave
her heart to everyone and cared for everyone.” And yet,
[Appellant] admittedly tortured and brutally murdered this loving
and caring mother and her new husband, Terry Smith, because
they were simply “try[ing] to love [him]” and trying to help him
“be a better person.”
Id. at 32-35 (citations to the record and footnote omitted).
Based on our review of the record, we find no support for Appellant’s
assertion that the trial court failed to consider Appellant’s mitigating factors
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or that it imposed an excessive sentence. Among other things, the court
considered Appellant’s age, the circumstances of his childhood and family life,
the circumstances of the crimes, the impact on the victims, and Appellant’s
behavior while incarcerated. See id.
Ultimately, the court weighed each of those factors and found that an
aggregate term of eighty years to life imprisonment was appropriate.
Therefore, we discern no abuse of discretion in the trial court’s sentence. See
Foust, 180 A.3d at 441 (acknowledging that “[a]lthough this Court has
previously invalidated lengthy term-of-years sentences that trial courts have
run consecutively, most involved property crimes.” (citation omitted));
Commonwealth v. Baker, 72 A.3d 652, 664 (Pa. Super. 2013) (stating that,
in light of our standard of review, where the record demonstrates that the trial
court considered the appropriate sentencing factors, “we have no basis to find
that the sentence imposed is clearly unreasonable”).
Accordingly, we are constrained to affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/12/2019
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