J-A24020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DEAUNTAY DONTAZ MOYE

                            Appellant              No. 1924 WDA 2016


        Appeal from the Judgment of Sentence Dated December 9, 2016
                In the Court of Common Pleas of Bedford County
             Criminal Division at No(s): CP-05-CR-0000486-2015

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

JUDGMENT ORDER BY SOLANO, J.:                  FILED SEPTEMBER 29, 2017

        Appellant Deauntay Dontaz Moye appeals from the judgment of

sentence of life imprisonment without parole, which was imposed on

December 2, 2016, after Moye pleaded guilty to criminal homicide1 and

other offenses.2 Moye was sixteen-years-old at the time he committed the

crimes.     After careful review, we vacate the judgment of sentence and

remand for resentencing.


____________________________________________
1   18 Pa.C.S. § 2501(a).

2 The other offenses were robbery during which there was infliction of
serious bodily injury, carrying a firearm without license, criminal use of a
communication facility, conspiracy — manufacture, delivery, or possession
with intent to manufacture or deliver a controlled substance, abuse of a
corpse, cruelty to animals by maiming a domestic animal, unauthorized use
of a motor or other vehicle, and possession of a firearm by a minor. See 18
Pa.C.S. §§ 3701(a)(1)(i), 6106(a)(1), 7512(a), 903, 5510, 5511(a)(1)(i),
3928(a), and 6110.1(a), respectively.
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      Due to our disposition, we need not restate the facts underlying

Moye’s convictions.         On December 20, 2016, Moye filed this timely direct

appeal in which he raises seven issues that assert that the trial court erred

by imposing a sentence of life imprisonment without parole.              Appellant’s

Brief at 8-10.

      Moye contends that “the trial court failed to properly consider [his] age

at the time of the instant offense,” Appellant’s Brief at 20, pursuant to Miller

v. Alabama, 567 U.S. 460, 465 (2012), which held that “mandatory life

without parole for those under the age of 18 at the time of their crimes

violates     the   Eighth    Amendment’s   prohibition   on   ‘cruel   and   unusual

punishments.’” In support, Moye quotes from the statement in Miller that

“juveniles have diminished culpability and greater prospects for reform” in

light of —

      three significant gaps between juveniles and adults.           First,
      children have a lack of maturity and an underdeveloped sense of
      responsibility, leading to recklessness, impulsivity, and heedless
      risk-taking. Second, children are more vulnerable to negative
      influences and outside pressures, including from their family and
      peers; they have limited control over their own environment and
      lack the ability to extricate themselves from horrific, crime-
      producing settings. And third, a child’s character is not as well
      formed as an adult’s; his traits are less fixed and his actions less
      likely to be evidence of irretrievable depravity.

Appellant’s Brief at 20-21 (quoting Miller, 567 U.S. at 471 (internal

brackets, citations, quotation marks, and some punctuation omitted)).

      Moye argues that his “age made him more impulsive and vulnerable to

family and peer pressures than an adult” and contends “that his background

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J-A24020-17


and   its   impact   upon   him   are   precisely   the   set   of   circumstances

contemplated” in Miller. Appellant’s Brief at 21-22. According to Moye, his

“circumstances” include: (1) at a young age, he “was put on the street as a

‘corner boy” to sell drugs”; (2) he moved from an urban area to “a very rural

town”; (3) after this move, he was “a young African-American child . . . in a

county that is over ninety-five percent Caucasian”; (4) he “was removed

from his home through a dependency action and was placed in a children’s

home”; (5) he “witnessed domestic violence in the household”; (6) he

“began to use controlled substances on a daily basis by age thirteen”; (7) he

“lack[ed] supervision”; and (8) he “excelled” when “placed in Outside In,” a

health and social services youth program, but “regressed” once “return[ed]

to his unstable home.” Id. (citing N.T., 12/2/16, at 36-38).

      The Commonwealth argues that the trial court “had the opportunity to

consider the factors . . . in Miller.”     Commonwealth’s Brief at 25.        The

Commonwealth continues:

      [Moye] attempts to find support for his position in Miller.
      However, the Miller decision was based on a state statute that
      made it mandatory for judges to sentence certain offenders to
      life without parole, while denying a sentencing court the
      opportunity to take into consideration a juvenile defendant’s age,
      immaturity and other factors associated with youth that a
      juvenile defendant does not have control over. The underlying
      basis for the Miller decision is simply not applicable in [Moye]’s
      situation.

Id. The trial court did not address Moye’s Miller claim in its opinion.

      Pursuant to Commonwealth v. Batts, 66 A.3d 286, 294-96 (Pa.

2013) [hereinafter Batts I], a juvenile may be sentenced to life without
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J-A24020-17


parole only if the trial court considers the appropriate age-related factors

detailed in Miller. The trial court sentenced Moye under a provision of the

Crimes Code, 18 Pa.C.S. § 1102.1(d)(7),3 that was enacted after the Miller

decision to provide that age-related factors be taken into account. However,

on June 26, 2017, after Moye’s sentencing hearing, our Supreme Court

decided a second appeal in Commonwealth v. Batts, 163 A.3d 410 (Pa.

2017) [hereinafter Batts II], in which it required additional safeguards

beyond those in Section 1102.1:

        [T]o effectuate the mandate of Miller and Montgomery [v.
        Louisiana, 136 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

____________________________________________
3   Section 1102.7(d) provides:

        In determining whether to impose a sentence of life without
        parole . . ., the court shall consider and make findings on the
        record regarding the following:
        ...
        (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.

                                           -4-
J-A24020-17


      the burden of proving, beyond a reasonable doubt, that the
      juvenile offender is incapable of rehabilitation.

Id. at 415-16. The Supreme Court vacated Batts’ sentence and remanded

for a new sentencing hearing. Id. at 460.

      Here, although the trial court considered the age-related factors set

forth in Miller, Batts I, and 18 Pa.C.S. § 1102.1(d)(7), it did not have the

benefit of our Supreme Court’s decision in Batts II, which established a

rebuttable presumption against a sentence of life without parole for a

juvenile offender.    Thus, we vacate Moye’s judgment of sentence and

remand    for   further   proceedings    consistent   with   Batts   II.    See

Commonwealth v. Coia, ___ A.3d ___, 2017 WL 3223019 at *4 (Pa.

Super. July 31, 2017) (vacating judgment of sentence imposed after trial

court held resentencing hearing under Batts I and remanding for new

sentencing hearing to comply with Batts II).

      Judgment of sentence vacated.            Case remanded.        Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017




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