J-S50019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES EARL HOUSE                           :
                                               :
                       Appellant               :   No. 78 WDA 2019

      Appeal from the Judgment of Sentence Entered December 14, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0002720-1999


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                          FILED SEPTEMBER 13, 2019

        James Earl House (Appellant) appeals from the judgment of sentence

imposed after he was re-sentenced pursuant to the directives of Miller v.

Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana, 136 S. Ct.

718 (2016). Upon review, we affirm.

        On March 31, 2000, a jury convicted Appellant — in connection with a

homicide that occurred on April 8, 1999 — of first-degree murder, 18 Pa.C.S.A.

§ 2502(a), criminal conspiracy (simple assault) 18 Pa.C.S.A. § 903(a), and

possession of a firearm without a license, 18 Pa.C.S.A. § 6106(a)(1). It is

undisputed that Appellant was 17 years old when he committed these crimes.

        On May 11, 2000, the trial court sentenced Appellant to then-mandatory

life without parole for first-degree murder, with consecutive sentences for the

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*   Retired Senior Judge assigned to the Superior Court.
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other convictions. Appellant filed a timely post-sentence motion, which the

trial court denied on May 23, 2000. Appellant filed a direct appeal, and the

Superior Court affirmed the judgment of sentence.               Commonwealth v.

House,     906    WDA     2001    (Pa.   Super.   Sept.   10,   2001)   (unpublished

memorandum).

       Following the United States Supreme Court’s decisions in Miller and

Montgomery, Appellant filed a petition pursuant to the Post Conviction Relief

Act, 42 Pa.C.S.A. § 9545 et seq., which ultimately resulted in Appellant being

granted a new sentencing hearing, and a sentence of 30 years to life

imprisonment for first-degree murder, with an aggregate sentence of 32 years

to life in prison.1 The trial court summarized:

             Following an extensive re-sentencing hearing on December
       6, 2018 and December 14, 2018, Appellant was re-sentenced to
       a period of incarceration of thirty (30) years to life with the
       possibility of parole for his first degree murder conviction. His
       revised aggregate sentence with other separate convictions is
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1 We recognize that 18 Pa.C.S.A. § 1102.1 provides that juveniles who commit
first-degree murder between the ages of 15 and 18, and who are convicted
after June 24, 2012, “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.” The statute does not apply to Appellant, who was
convicted in 2000, and in this case, the trial court had discretion to impose
the 30 year minimum term of imprisonment on Appellant for the murder
committed prior to June 25, 2012. See Commonwealth v. Sesky, 170 A.3d
1105, 1108 (Pa. Super. 2017) (“After our General Assembly passed section
1102.1, our Supreme Court held that it does not apply to those minors, like
Appellee, who were convicted of first or second-degree murder prior to June
25, 2012.”) (citation omitted)).




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       thirty-two (32) years to life with the possibility of parole.
       Appellant received credit for time served as of the date of his re-
       sentencing on December 14, 2018.

Sentencing Court Opinion, 3/12/19, at 1-2 (footnote omitted).

       Appellant filed this timely appeal. Both Appellant and the sentencing

court have complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant presents a single issue for our review:

       1. Did the Sentencing Court impose an unconstitutional sentence
          when it imposed the aggregate minimum sentence of 382
          years, a sentence which is a de facto life sentence, as it
          deprives Appellant of a meaningful opportunity for release?

Appellant’s Brief at 8.

       Appellant argues that his sentence “denied Appellant a meaningful

opportunity for relief as required by United States Supreme Court case law.”

Id. at 19. Recognizing Pennsylvania case law that is contrary to his claim,

Appellant “asks this Court to distinguish its prior holdings, and, given that

Appellant has raised this claim in the context of a non-waivable challenge to

the legality of the sentence, Appellant asks this Court to remand for the

sentencing court’s consideration of ‘any evidence made available by the

parties that bears on the offender’s mortality.’” Id. at 27. Upon review, we



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2  This is wrong. The record reflects that Appellant was sentenced to 30 years
to life for first-degree murder, with an aggregate of 32 years to life
imprisonment.      Re-Sentencing Order, 12/14/18.        However, throughout
Appellant’s brief, counsel references conflicting sentences 30 years to life and
32 years to life aggregate, and 35 years to life and an aggregate 38 years to
life. See Appellant’s Brief at 8, 18, 19, 20, 23. Counsel’s misstatements do
not impact Appellant’s issue and our analysis.

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find no basis upon which “to distinguish” our prior holdings regarding “de facto

life sentences” imposed after re-sentencing under Miller and Montgomery.

      We first note that Appellant’s claim implicates 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.”

Commonwealth v. Batts, 163 A.3d 410, 434-435 (Pa. 2017) (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).

      Instantly,   Appellant   asserts    that   “[c]ontrary    to   the    holding   in

[Commonwealth v.] Foust, the Court should consider whether the

aggregate sentence, not just the sentence for the homicide itself, constitutes

a de facto life sentence.” Appellant’s Brief at 27. However, Foust expressly

held “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.” Commonwealth v. Foust, 180 A.3d

416, 434 (Pa. Super. 2018). Even if we could consider the two year difference

between Appellant’s aggregate 32 year-to-life sentence, rather than his 30

year-to-life sentence for first-degree murder, the difference would not impact

our disposition.


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      In Foust, we stated 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. 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. Also, we “decline[d] to set forth factors that

trial courts must consider when making this determination.”            Id.   We

explained:

      There are certain term-of-years sentences which clearly constitute
      de facto [life without parole] sentences. For example, a 150–year
      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
      Appellant’s position places his life expectancy at 49 years, i.e.,
      beyond 30 years.

Id. We concluded that a “sentence of 30 years to life imprisonment does not

constitute a de facto [life without parole] sentence which entitles a defendant

to the protections of Miller.” Id.

      We have found likewise in other decisions analyzing whether a court

imposed a de facto life without parole sentence for a juvenile offender and

referencing Foust. See, e.g., Commonwealth v. Bebout, 186 A.3d 462

(Pa. Super. 2018) (sentence of 45 years to life did not constitute a de facto



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life without parole sentence); Commonwealth v. White, 193 A.2d 977 (Pa.

Super. 2018) (sentence of 35 years to life did not constitute a de facto life

without parole sentence).

      As noted, Appellant recognizes that “the Superior Court is bound by the

holding in Foust.” Appellant’s Brief at 27. We agree that Foust applies in

this case, where the record reveals that Appellant, who was 17 years old at

the time of the murder on April 8, 1999, was born on August 31, 1981. At

this writing, Appellant is 38 years old. The re-sentencing court explained:

             As to Appellant’s ability to be paroled, Appellant, who has
      been incarcerated since he was seventeen (17) years old, can be
      considered for parole by the State authorities when he is
      approximately forty-seven (47) years old regarding his new
      sentence of thirty (30) years to life sentence for first degree
      murder. Assuming arguendo, if considering Appellant’s minimum
      aggregate sentence as thirty-two (32) years to life, Appellant can
      be considered by the state authorities for possible parole when he
      is approximately forty-nine (49) years old. Appellant’s ability to
      live to at least forty-nine (49) years of age is plausible and would
      provide Appellant with a non-trivial amount of time at liberty.
      Moreover, even accounting for the aggregate time, Appellant’s
      potential of being paroled at the age of forty-nine (49) years old
      provides Appellant an earlier opportunity at a younger age to be
      paroled than the defendants in both Bebout and White.
      Therefore, re-sentencing Appellant to a sentence of thirty (30)
      years to life with the possibility of parole for his murder conviction
      (or thirty-two (32) years to life with the possibility [of parole] for
      his aggregate sentence) is not a de facto life sentence and
      provides Appellant with a meaningful and plausible opportunity for
      parole.

Sentencing Court Opinion, 3/12/19, at 10-11.

      Our review comports with that of the re-sentencing court. Based on the

record and prevailing law, we cannot conclude that Appellant’s sentence


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equates to a de facto life sentence. Accordingly, Appellant is not entitled to

relief.

          Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019




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