J-S06029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID MOUA,                                :
                                               :
                       Appellant               :   No. 1270 EDA 2019

      Appeal from the Judgment of Sentence Entered December 27, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0000565-2000


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                                 Filed: May 8, 2020

        David Moua appeals from the judgment of sentence imposed on

December 27, 2018. In 2002, Moua was convicted by a jury of first-degree

murder, robbery, burglary, unlawful restraint, theft by unlawful taking,

possessing an instrument of crime, and criminal conspiracy.1 He was

sentenced to mandatory life imprisonment without the possibility of parole.

Because he was a juvenile at the time of the crime, that sentence was vacated

pursuant to Miller v. Alabama, 567 U.S. 460 (2012), and Commonwealth

v. Batts, 66 A.3d 286 (Pa. 2013). Following a resentencing hearing, the court

resentenced Moua to 48 years to life for first-degree murder. Moua claims the

sentence was an impermissible de facto life sentence, and argues the trial

court abused its discretion in fashioning his new sentence. We affirm.

____________________________________________


1   18 Pa.C.S.A. §§ 2502(a), 3701, 3502, 2902, 907, and 903, respectively.
J-S06029-20



      On April 4, 2000, Moua, his brother, and their friend Loi Nghiem broke

into the house of Moua’s neighbors, the Polites, to commit a robbery. Finding

Constantine Polites at home, Moua bound his wrists with zip ties and Nghiem

stabbed him over 40 times and shot him three times point blank in the head.

That evening, police investigating the murder brought Moua to the police

station; Moua’s father accompanied him because Moua was 16 years old at

the time. Moua gave a statement admitting to taking part in the murder and

robbery, and police charged him. Moua later claimed that he was not present

during the murder and that his earlier statement was false.

      After a jury trial, Moua was found guilty of first-degree murder, robbery,

burglary, possession of an instrument of a crime, and unlawful restraint. He

was sentenced to a mandatory term of life imprisonment without the

possibility of parole for the first-degree murder. The court also imposed a

consecutive sentence of five to 10 years of incarceration for robbery and

burglary (concurrent to one another), and consecutive sentences of one to

two years in prison for both possession of an instrument of a crime and

unlawful restraint (concurrent to one another).

      The court later vacated Moua’s initial sentence for first-degree murder

pursuant to Miller and Batts. It then held a resentencing hearing and

imposed a sentence of 48 years to life imprisonment for first-degree murder.

The consecutive sentences on the other counts remained the same, resulting

in an aggregate sentence of 54 years to life. This timely appeal followed.

      On appeal, Moua raises the following questions:

                                     -2-
J-S06029-20


   1. Whether the trial court imposed an (sic) constitutionally
      impermissible de facto life sentence when it imposed an aggregate
      sentence of 54 years to life on a juvenile offender convicted of
      first degree murder and related crimes and in the absence of a
      finding that [Moua] was permanently incorrigible, irreparably
      corrupt or irretrievably depraved[?]

   2. Whether the trial court abused its discretion in imposing an
      aggregate sentence of 54 years to life on a juvenile offender who
      was convicted of murder for a crime committed when he was 16
      years old and who has demonstrated remorse, rehabilitation and
      good conduct while incarcerated over a 19-year period[?]

Moua’s Br. at 3.

      In his first issue, Moua claims that his aggregate judgment of sentence

of 54 years to life imprisonment was the practical equivalent of a life sentence

and therefore was unconstitutional because the trial court did not find that he

met the criteria for life without parole. He claims that he will be eligible for

parole at age 71, after serving the minimum sentence, which age allegedly

exceeds the life expectancy for prisoners. If he does live until he is released,

Moua contends that he will be retirement-aged with no money and little

employment potential. This, he alleges, does not constitute a meaningful

opportunity for parole. See Moua’s Br. at 8. We disagree.

      Moua’s issue presents a challenge to the legality of his sentence.

      “[A] claim challenging a sentencing court’s legal authority to
      impose a particular sentence presents a question of sentencing
      legality.” Batts, 163 A.3d at 434-435 (citations omitted). “The
      determination as to whether a trial court imposed an illegal
      sentence is a question of law; an appellate court’s standard of
      review in cases dealing with questions of law is plenary.”
      Commonwealth v. Crosley, 180 A.3d 761, 771 (Pa.Super.
      2018) (citation omitted), appeal denied, 195 A.3d 166 (Pa. 2018).




                                     -3-
J-S06029-20



Commonwealth v. Hernandez, 217 A.3d 873, 878 (Pa.Super. 2019)

(citation formatting provided).

      [T]he key factor in considering the upper limit of what constitutes
      a constitutional sentence, as opposed to a de facto sentence of life
      in prison without parole for a juvenile who was not deemed
      incapable of rehabilitation, is whether there is some meaningful
      opportunity to obtain release based on demonstrated maturity and
      rehabilitation. To be meaningful or, at least, potentially
      meaningful, it must at least be plausible that one could survive
      until the minimum release date with some consequential likelihood
      that a non-trivial amount of time at liberty awaits.

Id. at 878 (quotation marks and citations omitted).

      This Court’s recent decision in Commonwealth v. Anderson involved

a similar claim put forth by a juvenile defendant who was resentenced to a

50-year minimum sentence, and would first be eligible for parole at age 67.

See Commonwealth v. Anderson, 224 A.3d 40, 47 (Pa.Super. 2019).

There, the Court found that Anderson failed to establish that he was unlikely

to survive until his minimum release date, or that there would be no

opportunity for liberty after release. Therefore, it held that it was “not willing

to presume, without more, that a fifty-year minimum sentence . . . affords

him no reasonable possibility of release or a meaningful life thereafter.” Id.

Therefore, the Court concluded that Anderson’s sentence did not constitute a

de facto life sentence.

      In the instant matter, the trial court concluded that Moua has a

reasonable possibility of living until his minimum sentence expires and

explained its reasons for the new sentence as follows:



                                      -4-
J-S06029-20


       In the case at bar, [Moua’s] new sentence was considered in light
       of the nature of the crime and the evidence presented at the
       resentencing hearing. The [c]ourt considered the safety of the
       public as well as the rehabilitative nature of [Moua] and the impact
       of [Moua’s] crimes on the victim’s family in determining an
       appropriate sentence. The [c]ourt paid special attention to the fact
       that prior to the rulings in Batts and Miller, [Moua] never once
       expressed remorse or responsibility for his crimes. These factors,
       as well as the fact that [Moua] has the possibility to live to his
       proposed parole date, as stipulated in Bebout,[2] are sufficient to
       uphold his new sentence.

Trial Court Opinion, 6/17/19, at 3.

       Moua has failed to demonstrate that he has no plausible chance of

survival until he has served his minimum sentence of 48 years for his first-

degree murder conviction. Although Moua asks us to consider his aggregate

minimum       sentence      (54    years),     we   rejected   that   contention   in

Commonwealth v. Foust, 180 A.3d 416, 438 (Pa.Super. 2018). We stated,

“[W]e 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

[life without parole] sentence.” Id. Pursuant to Foust, we consider only his

48-year sentence.

       Considered accordingly, Moua will be 65 years old when his relevant

minimum sentence expires. Moua has not shown any circumstances particular

to him that would persuade us that he cannot reasonably be expected to

survive until that age. We thus cannot conclude that his sentence “affords him

no reasonable possibility of release or a meaningful life thereafter.”

Anderson, 224 A.3d at 47. Accordingly, we decline to find that Moua’s
____________________________________________


2   Commonwealth v. Bebout, 186 A.3d 462 (Pa.Super. 2018).

                                           -5-
J-S06029-20



sentence constituted a de facto life sentence, necessitating a finding that he

is incapable of rehabilitation. Moua’s first issue does not merit relief.

      In his second issue, Moua challenges the discretionary aspects of his

sentence. Hence, we must determine:

      (1) whether the appeal is timely; (2) whether [the a]ppellant
      preserved his [] issue; (3) whether [the a]ppellant’s brief includes
      a concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence
      [pursuant to Pa.R.A.P. 2119(f)]; and (4) whether the concise
      statement raises a substantial question that the sentence is [not]
      appropriate under the [S]entencing [C]ode.

Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa.Super. 2018)

(citation omitted).

      The Commonwealth argues that Moua has waived this issue because his

brief does not include a Rule 2119(f) statement. We agree.

      If an appellant fails to include a Rule 2119(f) statement and the

Commonwealth objects, the appellant has waived his discretionary sentencing

claims. See Commonwealth v. Griffin, 149 A.3d 349, 353 (Pa.Super. 2016).

Rule 2119(f) requires an appellant who challenges the discretionary aspects

of a sentence in a criminal matter to “set forth in a separate section of the

brief a concise statement of the reasons relied upon for allowance of appeal

with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

      Moua’s brief does not contain a separate section setting forth a concise

statement of the reasons relied upon for allowance of appeal. Nor does he

include any discussion in his argument concerning whether his issue raises a

substantial   question   that   his   sentence    was    not   appropriate.   The

                                      -6-
J-S06029-20



Commonwealth objected to Moua’s failure to comply with Rule 2119(f).

Accordingly, we cannot ignore the violation. Therefore, we conclude that Moua

has waived his challenge to the discretionary aspects of his sentence.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:5/8/20




                                    -7-
