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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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16, 2015) (unpublished memorandum).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.”).




____________________________________________


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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