Com. v. Moye, D.

J-S32003-21

                               2021 PA Super 225


 COMMONWEALTH 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
J-S32003-21


        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


____________________________________________


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).


                                           -2-
J-S32003-21



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

____________________________________________


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)


                                           -3-
J-S32003-21



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
____________________________________________


       (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)


                                           -4-
J-S32003-21



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


____________________________________________


       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).


                                           -5-
J-S32003-21



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
____________________________________________


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)


                                           -6-
J-S32003-21



____________________________________________


       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)


                                           -7-
J-S32003-21




____________________________________________


       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)


                                           -8-
J-S32003-21



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).

____________________________________________


       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.


                                           -9-
J-S32003-21



      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

                                     - 10 -
J-S32003-21



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?



                                      - 11 -
J-S32003-21



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




____________________________________________


16   The Commonwealth has not filed a brief in this case.

                                          - 12 -
J-S32003-21



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




                                     - 13 -
J-S32003-21



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 -
J-S32003-21



      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

                                       - 15 -
J-S32003-21



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.

                                    - 16 -
J-S32003-21



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

                                    - 17 -
J-S32003-21



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



                                     - 18 -
J-S32003-21



“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.

                                          - 19 -
J-S32003-21


      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.


                                     - 20 -
J-S32003-21


      (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,


                                         - 21 -
J-S32003-21



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[-



                                      - 22 -
J-S32003-21



]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.




                                    - 23 -
J-S32003-21


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2021




                          - 24 -