J-S16020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYMARR DAQUAN ALFORD :
:
Appellant : No. 1626 MDA 2018
Appeal from the PCRA Order Entered September 20, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001969-2012
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 09, 2019
Raymarr Daquan Alford (Appellant) appeals from the order dismissing
his timely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
On July 9, 2012, just five days shy of his 18th birthday, Appellant shot
and killed Kevan Connelly at Flanagan Park in Williamsport, Pennsylvania.
Appellant was charged with murder and related crimes, and on April 30, 2014,
a jury convicted him of first-degree murder, criminal conspiracy, possessing
an instrument of crime, recklessly endangering another person (REAP), and
firearms not to be carried without a license. On November 10, 2014, the trial
court sentenced Appellant, pursuant to 18 Pa.C.S.A. § 1102.1(a)(1) (Sentence
of persons under the age of 18 for murder), to 50 years to life imprisonment.
On his remaining convictions, the trial court sentenced Appellant to
consecutive terms of 9½ to 40 years for criminal conspiracy, 1 to 2 years for
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REAP, and 2 to 7 years for firearms not to be carried without a license.
Appellant’s aggregate sentence was 62½ years to life imprisonment.
On December 16, 2015, this Court affirmed Appellant’s judgment of
sentence. See Commonwealth v. Alford, 475 MDA 2015 (Pa. Super. Dec.
16, 2015) (unpublished memorandum). On August 3, 2016, the Supreme
Court of Pennsylvania denied Appellant’s petition for allowance of appeal.
On June 13, 2017, Appellant filed a timely pro se PCRA petition. On
August 30, 2017, the PCRA court appointed counsel to represent Appellant
during PCRA proceedings. In his petition, Appellant asserted that his trial
counsel was ineffective for failing to file a decertification petition to transfer
his case for disposition in juvenile court, and his sentence was illegal because
his 50-year to life sentence for first-degree murder was an unconstitutional
de facto life sentence.
On August 27, 2018, the PCRA court issued notice of its intent to dismiss
Appellant’s PCRA petition pursuant to Pennsylvania Rule of Criminal Procedure
907. On September 20, 2018, the PCRA court formally dismissed Appellant’s
PCRA petition. This timely appeal followed. On October 1, 2018, the PCRA
court ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On
October 8, 2018, Appellant filed a timely Rule 1925(b) statement.
Appellant presents the following issues for our review:
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1. Whether trial counsel was ineffective for failing to file a
decertification motion that, if successful, would have transferred
his case to the juvenile court system.
2. Whether Appellant received a de facto sentence of life
imprisonment without the possibility of parole in violation of the
Eighth Amendment of the United States Constitution when he
received a sentence of 50 years for a homicide offense committed
as a juvenile.
Appellant’s Brief at 6.
We review the denial of PCRA relief by “examining whether the PCRA
court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.
Appellant’s first issue challenges the effectiveness of trial counsel. In
deciding ineffective assistance of counsel claims, we begin with the
presumption that counsel rendered effective assistance. Commonwealth v.
Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,
the petitioner must establish: “(1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel’s action or failure to act; and (3)
the petitioner suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability that the result of the
proceeding would have been different.” Id. (citation omitted). To
demonstrate prejudice in an ineffective assistance of counsel claim, “the
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petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the
petitioner fails to prove any of these prongs, the claim is subject to dismissal.
Bomar, 104 A.3d at 1188.
Appellant argues that trial counsel was ineffective for failing to file a
decertification motion to transfer his case to juvenile court. Appellant
maintains that, based on his difficult upbringing and mental health issues, he
is amenable to treatment, supervision and rehabilitation as a juvenile, and
that consequently, the trial court would have granted the decertification
motion.
The PCRA court, who also sat as the trial court, rejected this claim,
explaining:
When deciding whether to transfer a criminal case to juvenile
court, there are several factors that must be considered. As
noted, “[u]nder the current statutory framework, a juvenile who
commits first or second-degree murder must be charged as an
adult. A Petitioner can then request that his or her case be
transferred to the Juvenile Division[.]” Commonwealth v.
Foust, 180 A.3d 416, 428 (Pa. Super. 2018). Petitioner has the
burden of proof and must show that transferring his first-degree
murder case would serve the public interest. In determining
whether such a transfer serves the public interest, 42 Pa.C.S. §
6355 provides the following factors for a court to evaluate:
(A) the impact of the offense on the victim or victims;
(B) the impact of the offense on the community;
(C) the threat to the safety of the public or any individual
posed by the child;
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(D) the nature and circumstances of the offense allegedly
committed by the child;
(E) the degree of the child’s culpability;
(F) the adequacy and duration of dispositional alternatives
available under this chapter and in the adult criminal, justice
system; and
(G) whether the child is amenable to treatment, supervision
or rehabilitation as a juvenile [. . .]
In this case, the impact on the victim and community is severe.
[Appellant] murdered the victim in front of the victim’s younger
brother, and the grief and suffering of the victim’s family is
immeasurable. Furthermore, [Appellant]’s actions have created
tension and unease within the community. This brazen shooting
of the victim in a popular public park has made local residents fear
for their own safety and that of their children. Given the level of
sophistication and planning involved as well as the violent and
deadly nature of [Appellant]’s offenses, this [c]ourt does not
believe [Appellant] could prove that the transfer would have
served the public interest. Although [Appellant] may be amenable
to treatment, the gravity of the other factors outweighs this
consideration. This [c]ourt would not have approved the transfer
of this case to juvenile court. Therefore, this [c]ourt cannot find
that [Appellant] has established that [trial counsel] was ineffective
merely because he did not file the decertification motion, since
that Motion would have most likely been unsuccessful. “A chosen
strategy will not be found to have lacked a reasonable basis unless
it is proven ‘that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.’”
Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006)
(quoting Commonwealth v. Howard, 719 A.2d 233, 237 (Pa.
1998)). Since there was no guarantee of success had trial counsel
filed a decertification petition, this issue has no merit.
PCRA Court Opinion, 8/27/18, at 3-4.
Based upon our review of the record and applicable authority, we agree
with the PCRA court’s disposition of this issue. As the PCRA court recognizes,
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whether a defendant is amenable to treatment, supervision or rehabilitation
as a juvenile is but one consideration when a court determines whether it will
transfer a case to juvenile court. See id. (citing 42 Pa.C.S.A. § 6355).1
In this case, the PCRA court referenced the other statutory factors, such
as the impact of the offense on the victim, the impact of the offense on the
community, the threat to the safety of the public posed by Appellant, the
nature and circumstances of the offense committed, and the degree of
Appellant’s culpability. The PCRA court determined that given the horrific
nature of the crime, it would not have transferred Appellant’s case to juvenile
court had trial counsel filed a motion for decertification. Id. Accordingly, we
conclude that the PCRA court did not err in dismissing Appellant’s ineffective
assistance of counsel claim, as trial counsel cannot be ineffective for failing to
request relief that the trial court would not have granted. See
Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa. 2012) (“Counsel will not
be deemed ineffective for failing to raise a meritless claim.”).
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1 Although 42 Pa.C.S.A. § 6355 applies to transfer to criminal proceedings
from juvenile court, and 42 Pa.C.S.A. § 6322 prescribes transfer from criminal
proceedings to juvenile court, Section 6322 instructs, “In determining whether
the child has so established that the transfer [to juvenile court] will serve the
public interest, the court shall consider the factors contained in section
6355(a)(4)(iii) (relating to transfer to criminal proceedings).” 42 Pa.C.S.A. §
6322.
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In his second issue, Appellant challenges the legality of his sentence.
Appellant argues that the PCRA court erred in dismissing his claim that his 50-
year sentence for first-degree murder was unconstitutional and created a de
facto life sentence. Appellant emphasizes that he will be approximately 80
years old after he completes his minimum aggregate sentence of 62½ years.
We have previously summarized the applicable authority:
In Miller, the Supreme Court of the United States held that a
juvenile convicted of a homicide offense could not be sentenced
to life in prison without parole absent consideration of the
juvenile’s special circumstances in light of the principles and
purposes of juvenile sentencing. Subsequently, in Montgomery,
the Court held that the Miller decision announced a substantive
rule of constitutional law that applies retroactively.
Commonwealth v. Bebout, 186 A.3d 462, 472 n.1 (Pa. Super. 2018)
(citations omitted).
Section 1102.1, which the General Assembly enacted in the wake of the
Miller decision, prescribes sentencing for those who commit first-degree
murder while under the age of 18:
(a) First degree murder.--A person who has been convicted
after June 24, 2012, of a murder of the first degree, first degree
murder of an unborn child or murder of a law enforcement
officer of the first degree and who was under the age of 18 at
the time of the commission of the offense shall be sentenced
as follows:
(1) A person who at the time of the commission of the
offense was 15 years of age or older 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).
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In Commonwealth v. Foust, 180 A.3d 416 (Pa. Super. 2018), we held
that “a trial court may not impose a term-of-years sentence, which constitutes
a de-facto [life-without-parole] 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. However, we “explicitly decline[d] to
draw a bright line . . . delineating what constitutes a de facto [life without
parole] sentence and what constitutes a constitutional term-of-years
sentence.” Id. at 438. Similarly, we “decline[d] to set forth factors that trial
courts must consider when making this determination.” Id. We further
explained:
There are certain term-of-years sentences which clearly constitute
de facto [life without parole] sentences. For example, a 150-year
[minimum] sentence is a de facto [life without parole] sentence.
Similarly, there are clearly sentences which do not constitute de
facto [life without parole] sentences. A sentence of 30 years to
life falls into this category. We are unaware of any court that has
found that a sentence of 30 years to life imprisonment constitutes
a de facto [life without parole] sentence for a juvenile offender.
Even the study with the shortest life expectancy for an offender in
[the a]ppellant’s position places his life expectancy at 49 years,
i.e., beyond 30 years.
Id.
Including Foust, there have been numerous published opinions of this
Court analyzing whether a sentence fashioned by a trial court amounted to a
de facto life without parole sentence for a juvenile offender. See, e.g., Foust,
180 A.3d at 438 (holding that a sentence of 30 years to life did not constitute
a de facto life sentence, where the defendant was charged with two counts of
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first-degree murder and received consecutive, 30-year-to-life sentences at
each conviction); Bebout, 186 A.3d at 469-70 (holding that a sentence of 45
years to life did not constitute a de facto life without parole sentence);
Commonwealth v. White, 193 A.3d 977, 986 (Pa. Super. 2018) (holding a
sentence of 35 years to life did not constitute a de facto life without parole
sentence); see also Commonwealth v. Elliott, 1769 WDA 2017, 2018 WL
3764983 at *4 (Pa. Super. Aug. 9, 2018) (unpublished memorandum)2
(holding that a 50-year to life sentence was not a de facto life sentence where
the juvenile offender would be eligible for parole at age 70 and thus possessed
a “meaningful possibility of parole”).
Instantly, Appellant contends that we should consider the entirety of his
sentence (62½ years to life) in determining whether he received a de facto
life without parole sentence. Appellant’s Brief at 36-38. In Foust, however,
we held that “when considering the constitutionality of a sentence, the
individual sentences must be considered when determining if a juvenile
received a de facto [life without parole] sentence.” Foust, 180 A.3d at 434
(emphasis added). Consequently, we must analyze Appellant’s 50-year
sentence for first-degree murder separately from the sentences he received
for his other convictions.
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2 As an unpublished decision, we cite Elliott for its persuasive value.
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The trial court sentenced Appellant to a minimum term of 50 years of
incarceration for his first-degree murder conviction. According to the
sentencing order, Appellant’s sentence began to run on September 20, 2012,
when Appellant was 18 years and 2 months of age. See Sentencing Order,
11/10/14. Thus, the minimum tail of Appellant’s 50-year sentence for his
first-degree murder conviction will conclude when he is 68 years old. We
acknowledge that because of his aggregate sentence, Appellant will still be
serving time for his other convictions. Nevertheless, he may obtain parole.
Based on our review of the record and the applicable law, we cannot conclude
that Appellant’s 50-year to life sentence for his first-degree murder conviction
constitutes a de facto life without parole sentence. Accordingly, Appellant’s
second issue does not merit relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/09/2019
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Com. v. Alford, R.
Combined Opinion