J-S62011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 DELBERT WILLIAMS                    :
                                     :
                   Appellant         :   No. 1718 WDA 2018

     Appeal from the Judgment of Sentence Entered August 16, 2018
           In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0010774-2004


 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 DELBERT RAY WILLIAMS                :
                                     :
                   Appellant         :   No. 1719 WDA 2018

     Appeal from the Judgment of Sentence Entered August 16, 2018
           In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0012748-2004


 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 DELBERT RAY WILLIAMS                :
                                     :
                   Appellant         :   No. 1720 WDA 2018

     Appeal from the Judgment of Sentence Entered August 16, 2018
           In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0015771-2004
J-S62011-19


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DELBERT RAY WILLIAMS                     :
                                          :
                   Appellant              :   No. 1721 WDA 2018

      Appeal from the Judgment of Sentence Entered August 16, 2018
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0001388-2005


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                    FILED FEBRUARY 11, 2020

      Appellant, Delbert Ray Williams, was a juvenile when he committed the

homicide and other crimes at issue in this appeal. He now primarily claims his

judgment of sentence for those crimes is illegal under Miller v. Alabama,

567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which banned

mandatory sentences of life imprisonment without the possibility of parole for

juvenile homicide offenders. We disagree, and after considering all of

Appellant’s claims, we affirm his judgment of sentence.

      Appellant robbed four people at gunpoint over the course of several days

in late July and early August of 2004, shooting and killing the last of his

victims. He was charged with multiple crimes, including first-degree murder.

Following a bench trial, the court convicted Appellant of first-degree murder,

four counts of robbery, one count of robbery of a motor vehicle and three

counts of criminal conspiracy. The court subsequently sentenced Appellant to,




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inter alia, the then-mandatory sentence of life imprisonment without the

possibility of parole for the first-degree murder charge.

      Appellant eventually filed a petition pursuant to the Post Conviction

Relief Act, 42 Pa. C.S.A. §§ 9541-9546, seeking resentencing on the basis of

Miller and Montgomery v. Louisiana, 136 S.Ct. 718, 734, (2016) (holding

Miller applies retroactively). The PCRA court granted the petition. Following

a hearing, the court resentenced Appellant to a term of imprisonment of 50

years to life for the first-degree murder charge and to an aggregate sentence

of 20 to 40 years for the robbery and criminal conspiracy charges. The court

ordered that all sentences run consecutively. In sum, then, Appellant’s total

aggregate sentence amounted to a term of imprisonment of 70 years to life.

      Appellant now makes a multifaceted argument that this judgment of

sentence still runs afoul of Miller. In Miller, the United States Supreme Court

held that the Eighth Amendment prohibits sentencing schemes that mandate

life in prison without the possibility for parole for juvenile homicide offenders.

567 U.S. at 479. The Court reasoned that such mandatory sentencing schemes

impermissibly fail to take into account the age and age-related characteristics

of a juvenile when sentencing him. 567 U.S. at 477-78, 489. The Miller Court

further held that “states must provide a juvenile convicted of a homicide

offense a meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation unless the sentencing authority finds that the

juvenile is incapable of rehabilitation.” Commonwealth v. Foust, 180 A.3d




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416, 431 (Pa. Super. 2018) (petition for allowance of appeal filed, March 23,

2018).

      The Miller court did not, however, deem all juvenile life sentences

without parole unconstitutional. To the contrary, such sentences are still

allowed if they are imposed after a full consideration of the age-related factors

set forth in Miller and its progeny. Miller, 567 U.S. at 480, 477-78. Those

factors include, inter alia, the juvenile’s age at the time of the offense, his

diminished culpability and capacity for change, the circumstances and extent

of his participation in the crime, his emotional maturity, his family, home and

neighborhood environment, his drug and alcohol history, his mental health

history and his potential for rehabilitation. See Commonwealth v. Knox, 50

A.3d 732, 745 (Pa. Super. 2012).

      Appellant first claims this Court should consider his “sentence in the

aggregate and hold that a sentence of 70 years to life is a de facto life

sentence” and is therefore illegal under Miller. Appellant’s Brief, at 15. We

have previously rejected the very underpinning of this argument. In Foust,

we specifically held that each sentence must be considered individually, rather

than in the aggregate, when determining whether a sentence constitutes a de

facto life-without-parole sentence. 180 A.3d at 438. Appellant argues that if

this Court were to only consider his individual sentence on the first-degree

murder charge of 50 years to life, that sentence alone impermissibly amounts

to the de facto equivalent of a life-without-parole sentence. In support of his

claim, Appellant maintains that because he will not be eligible for parole until

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he is 67 years old, he does not, as required by Miller, have any meaningful

opportunity for release. This claim warrants no relief.

      Appellant makes no attempt at discussing any of this Court’s 2018 case

law addressing similar arguments. This Court has refused to “draw a bright

line … delineating what constitutes a de facto [life-without-parole] sentence

and what constitutes a constitutional term-of-years sentence.” See Foust,

180 A.3d at 438. However, we recently stated in Commonwealth v. Bebout:

             The key factor in considering the upper limit of what
             constitutes a constitutional sentence, in this narrow
             context, appears to be 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.

186 A.3d 462, 468 (Pa. Super. 2018) (emphasis in original) (footnote and

citations omitted).

      Applying these principles to the defendant in Bebout, we held that the

appellant, who had been sentenced to 45 years to life, had not received a de

facto life-without-parole sentence. We based this on a determination that the

appellant did, in fact, have a meaningful opportunity for release because he

had the “potential to live for several decades outside of prison if paroled at

his minimum” when he would be 60 years old. Id., at 469 (emphasis in

original).




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       This Court once again held that a sentence of 45 years to life was not a

de facto life-without-parole sentence in both Commonwealth v. Lekka, 210

A.3d 343 (Pa. Super. 2019) and Commonwealth v. Hernandez, 217 A.3d

873 (Pa. Super. 2019). In Lekka and Hernandez, we noted that although

the appellant in each case would not be eligible for parole until the age of 62,

two years longer than the appellant in Bebout, neither had “shown any

significant difference between the ages at the earliest possible point of release

that would distinguish his case from Bebout.” Lekka, 210 A.3d at 358;

Hernandez, 217 A.3d at 879. The same can be said for Appellant, who has

failed to discuss or even cite to this Court’s holdings in these cases.1

       While Appellant does cite to selective statistical data regarding life

expectancy, he does not identify where this data was made part of the record.

Further, Appellant does not address the Bebout panel’s concerns regarding

the relevance of this type of statistical analysis. See Bebout, 186 A.3d at 469

(noting that life expectancies fluctuate greatly depending on what specific

circumstances are taken into account, and concluding that it is “not

immediately apparent how the courts should translate average life expectancy

data into” a standard for evaluating whether a given sentence represents a

life-without-parole sentence).




____________________________________________


1We recognize that Hernandez was filed after Appellant submitted his brief,
but both Bebout and Lekka were filed before.


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       And while Appellant asserts that he won’t have the opportunity to

develop a career or raise a family upon release, these assertions do not

demonstrate that “there is no plausible chance that [he] could survive until

the minimum release date with some consequential potential that a non-trivial

amount of time at liberty awaits.” Bebout, 186 A.3d at 468. As such, under

this Court’s current case law, Appellant has not established that his sentence

constitutes a de facto life sentence.2

       Next, Appellant urges this Court to find that his sentence is illegal under

Miller because it was imposed without the PCRA court first finding that

Appellant is incapable of rehabilitation. This claim also fails.

       In Foust, this Court specifically held that 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 [life-without-parole] sentence unless it

finds, beyond a reasonable doubt, that the juvenile is incapable of

rehabilitation.” 180 A.3d at 433. Foust, however, is not applicable to

Appellant’s case given our determination that his judgment of sentence does

not, as our case law now stands, constitute a de facto life sentence. As a


____________________________________________


2 Our Supreme Court granted allowance of appeal in Commonwealth v.
Felder, 2017 WL 6505643, -- A.3d -- (Pa. Super. 2017) (unpublished
memorandum), appeal granted, 187 A.3d 909 (Pa. 2018), to address the
question of whether this Court properly determined that a sentence of 50
years to life – the exact sentence imposed on Appellant - does not constitute
a de facto life sentence.




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result, the PCRA court was not obligated to find Appellant incapable of

rehabilitation.

       Appellant also claims that the trial court’s imposition of a mandatory life

maximum sentence violates Miller.3 This Court rejected this argument in

Commonwealth v. Ligon, 206 A.3d 1196 (Pa. Super. 2019). In Ligon, we

recognized that the Pennsylvania legislature responded to Miller by enacting

18 Pa. C.S.A. § 1102.1 (“Section 1102.1”). See id., at 1199 n.3. Section

1102.1 provides that individuals who are convicted for a first-degree murder

committed when they were between the ages of fifteen and seventeen years

must “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).         Accordingly, we held in Ligon that if a court

resentencing an appellant pursuant to Miller imposes a term-of-years

sentence, it is “statutorily required to sentence [the appellant] to a maximum

term of life imprisonment.” Ligon, 206 A.3d at 1200.

       We    again rejected the         same     claim advanced by   Appellant   in

Hernandez, stating that this Court “has explicitly held that such mandatory

maximums [as provided for by Section 1102.1] do not violate the Eighth

Amendment’s ban on cruel and unusual punishment or the mandates of

individualized sentencing.” 217 A.3d 873 at 879. Accordingly, Ligon and

Hernandez render Appellant’s claim meritless. See also Commonwealth v.
____________________________________________


3 Appellant actually makes this argument last in his brief but we have
considered it here for ease of discussion.

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Sesky, 170 A.3d 1105, 1108-09 (Pa. Super. 2017) (holding trial court was

required to impose maximum life sentence when it resentenced juvenile

defendant convicted of first-degree murder prior to Miller).

      Appellant also argues that his sentence is illegal because the PCRA court

did not consider the age-related factors set forth in Miller and its progeny

prior to resentencing him. According to Appellant, the PCRA court was required

to consider these factors because Section 1102.1 allows for the imposition of

a life-without-parole sentence and he therefore potentially faced such a

sentence.

      This Court recently rejected this very argument in Lekka, 210 A.3d 343

(Pa. Super. 2019). In Lekka, we specifically held that a trial court is not

required to consider the Miller factors in cases where the Commonwealth does

not seek, and the trial court does not impose, a life-without-parole sentence.

Id. at 357. Here, the Commonwealth did not seek, nor did Appellant receive,

a life-without-parole sentence. Therefore, pursuant to Lekka, the PCRA court

below was not required to consider the Miller factors.

      Nonetheless, as the Commonwealth points out in its brief, the PCRA

court did discuss the Miller factors prior to resentencing Appellant, even

though it was not required to do so. See N.T. PCRA Hearing, 8/16/18, at 23-

25. Appellant acknowledges this in his final claim, essentially arguing that the

PCRA court abused its discretion in the manner in which it considered those

factors. Specifically, Appellant contends that the PCRA court abused its

discretion by failing to consider evidence of his rehabilitation in prison and by

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basing his sentence on allegedly erroneous conclusions regarding his home

life and his history of alcohol and drug use. This claim fails.

        When an appellant raises a claim challenging the discretionary aspects

of his sentence, this Court will only review that claim if the appellant shows

that he filed a timely notice of appeal, properly preserved his claim at

sentencing or in a post-sentence motion, included a statement pursuant to

Pa.R.A.P. 2119(f) in his brief, and raised a substantial question that his

sentence is not appropriate under the Sentencing Code. See Commonwealth

v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013). Here, Appellant filed a timely

appeal, preserved his claim in a post-sentence motion and included a Rule

2119(f) statement in his brief.4

        The question remains, therefore, whether Appellant’s claim raises a

substantial question that the sentence is not appropriate under the Sentencing

Code.

              The determination of what constitutes a substantial
              question must be evaluated on a case-by-case basis.
              A substantial question exists only when the appellant
              advances a colorable argument that the sentencing
              judge’s actions were either: (1) inconsistent with a
              specific provision of the Sentencing Code; or (2)


____________________________________________


4 The PCRA court found that Appellant had waived any claims related to the
discretionary aspects of his sentence, ostensibly for failing to raise such claims
in his Concise Statement of Errors Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b). While Appellant’s claim is certainly not clearly delineated
in his 1925(b) Statement, the Statement does allege that the PCRA court did
not properly weigh the Miller factors. Given this, we find Appellant’s claim to
be sufficiently preserved.

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            contrary to the fundamental norms which underlie the
            sentencing process.

Id., quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(internal citations omitted).

      Here, Appellant claims, in effect, that the PCRA court did not consider

the evidence he presented related to his rehabilitation and arrived at

conclusions that were inconsistent with the evidence he presented regarding

his home life and his history of drug and alcohol use. This Court has previously

held that claims that a sentencing court failed to consider or did not

adequately consider certain factors do not raise a substantial question

warranting our review. See, e.g., Commonwealth v. Johnson, 961 A.2d

877, 880 (Pa. Super. 2008); Griffin, 65 A.3d at 936-37.

      While Appellant asserts that his claim presents a substantial question

because the court relied on “incorrect factual assertions” in crafting his

sentence, that is simply not the case. Appellant’s Brief, at 14. Rather,

Appellant presented evidence at his resentencing hearing about his

rehabilitation, home life and drug and alcohol use and believes that based on

that evidence, the court should have reached different conclusions as it related

to those factors. See Moury, 992 A.2d 162, 175 (Pa. Super. 2010) (finding

court’s refusal to weigh proposed mitigating factors as appellant wished did

not raise substantial question); Commonwealth v. Griffin, 804 A.2d 1, 9

(Pa. Super. 2002) (concluding claim that sentencing court ignored the

appellant’s evidence of good behavior in prison and other mitigating

circumstances did not raise substantial question).

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      Even if we were to find that Appellant’s claim raises a substantial

question, it offers him no basis for relief. Our standard of review for challenges

to the discretionary aspects of sentencing 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. Lekka, 210 A.3d 343, 350, quoting Commonwealth v.

Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (citation omitted). In

sentencing a defendant, the court must consider “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).

      To that end, the PCRA court stated in its opinion below:

            Despite the apparent waiver by [Appellant] of the
            right to challenge the discretionary aspect of
            sentencing, the Court will briefly address its reasons
            for the sentence imposed. [Appellant] engaged in a
            multi-day, multi-victim crime wave. He robbed former
            Pittsburgh Police Commander Gwen Elliot on [July 31],
            2004, pointing a gun at her head and stealing her car
            and her service weapon. Later, in the early morning
            hours of August 4, 2004, [Appellant] approached two
            other individuals … and once again, pointed a firearm
            at their heads and demanded they give him their
            property. They complied. Finally, approximately
            twenty-four hours later, he encountered Frank Ogri-

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            Little in Squirrel Hill, pointed a gun at him and
            demanded that he turn over his property. Mr. Ogri-
            Little did not give [Appellant] his backpack and
            [Appellant] fired as many as eight shots at or into the
            body of Mr. Ogri-Little, killing him.

            [Appellant] received three separate sentences for
            each incident … Each sentence imposed was within the
            standard range of the sentencing guidelines. The
            Court ran them consecutive rather than concurrent …
            [as] [e]ach incident and each victim deserved to have
            their crime recognized with a sentence.

            Our appellate courts have held that the imposition of
            consecutive rather than concurrent sentences lies
            within the sound discretion of the sentencing court.
            Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa.
            Super. 2005)[remainder of citation omitted].

                                      ***

            [Appellant] chose to commit criminal acts on three
            different occasions. He chose to victimize four
            different people, killing one and threatening to kill the
            other three. His acts ended one life and changed the
            lives of three others. His choices have consequences
            and the consequences are that he will serve time for
            each of those incidents.

PCRA Court Opinion, 4/25/19, at 8-10. The court also addressed Appellant’s

potential for rehabilitation at the resentencing hearing, ultimately concluding

that Appellant did not have the ability for “meaningful rehabilitation.” See N.T.

PCRA Hearing, 8/16/18, at 25.

      Appellant essentially claims that the court placed undue emphasis on

the circumstances of his crime, and failed to consider and adequately weigh

the evidence he presented about his rehabilitation in prison. This claim is

meritless given that, as noted above, the court did consider Appellant’s


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rehabilitation and that the “balancing of the Section 9721(b) sentencing

factors is the sole province of a sentencing judge.” Lekka, 210 A.3d at 353.

      Appellant also disagrees with the PCRA court’s conclusion about his

potential for rehabilitation, just as he disagrees with the court’s assessment

that he had a “good home life” and that his history of alcohol and drug use

was “really none.” N.T. PCRA Hearing, 8/16/18, at 24. According to Appellant,

these conclusions contradict the only evidence that was presented regarding

those factors at his hearing. That evidence included expert testimony from a

forensic psychologist who had evaluated Appellant as well as testimony from

Appellant’s family members. However, we presume that the court considered

the evidence Appellant presented regarding his rehabilitation, home life and

history of drug use, just as we presume a sentencing court considers all

mitigating   evidence   presented   to   it   at   a   sentencing   hearing.   See

Commonwealth v. Lewis, 595 A.2d 593, 600 (Pa. Super 1991), rev’d on

other grounds, 636 A.2d 619 (Pa. 1994) (this Court “will presume that the

trial judge considered the evidence of mitigating circumstances presented to

him at the sentencing hearing”). Appellant’s disagreement with the

conclusions the court reached after considering that evidence simply does not

amount to a showing that the court committed a manifest abuse of discretion

in fashioning his sentence.

      Judgment of Sentence Affirmed.




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J-S62011-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2020




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