J-A06018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL LEE BOURGEOIS                      :
                                               :
                       Appellant               :   No. 570 MDA 2018

           Appeal from the Judgment of Sentence November 3, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0004224-2001


BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 12, 2019

        Appellant Michael Lee Bourgeois appeals from the judgment of sentence

imposed after the trial court resentenced him to an aggregate term of eighty

years to life imprisonment for two counts of first-degree murder1 and related

offenses.    Appellant claims the court imposed an unconstitutional de facto

sentence of life imprisonment without the possibility of parole (LWOP) in

violation of the Pennsylvania Supreme Court’s holding in Commonwealth v.

Batts, 163 A.3d 410 (Pa. 2017) (Batts II), and challenges the discretionary

aspects of his sentence. We affirm.

        The trial court opinion set forth the relevant facts of this appeal as

follows:

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 2502(a).
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     On Saturday, September 1, 2001, [Appellant], along with Landon
     May, Steven Estes, and Raymond Navarro Perez, committed a
     burglary at the home of Lloyd and Beverly Good, who were away
     on vacation for the extended Labor Day weekend.             After
     ransacking the home, the perpetrators fled the scene in the two
     vehicles, which had been parked in the garage. Other items taken
     from the house included revolvers, shotguns, rifles, shells,
     assorted hunting knives, a compound bow, and cash.

     The next day, September 2, 2001, [Appellant] and Estes entered
     a Turkey Hill convenience store wearing camouflage and masks.
     They pointed handguns at the clerk and demanded money. They
     fled the store with $253.00. May later confessed that he was the
     driver of the “get-away” car and that Drenea Rodriguez had
     assisted in the planning of the robbery and also benefitted
     financially from the crime.

     The residential burglary was discovered by the Good family on
     Monday, September 3, 2001. The home was processed for latent
     fingerprints and on Wednesday, September 5, 2001, Trooper A.J.
     Mizzoni of the Pennsylvania State Police received information that
     one of the prints lifted from the Good residence matched
     fingerprints on file belonging to [Appellant]. Efforts to locate
     [Appellant] at his last known address . . . were unsuccessful on
     September 5, 2001.

     On the evening of September 5, 2001, Lucy Bourgeois Smith and
     her husband, Terry Smith, went to [Appellant’s residence] to see
     Lucy’s son, Appellant. [Appellant] had moved out of the family
     home . . . approximately two months earlier and into [his current
     residence], which was leased to Rodriguez. [Appellant] (age 17)
     and Rodriguez (age 33) were romantically involved. The Smiths
     dropped off a saxophone belonging to [Appellant], reminded him
     of a scheduled doctor’s appointment, and informed him that the
     State Police had called looking for him.

     On Thursday, September 6, 2001, at approximately 10:00 a.m.,
     the Ephrata Borough Police Department received a telephone call
     from Diane Lamm, who was an employee of Terry Smith. Ms.
     Lamm advised the police that Terry Smith had not come to work,
     and that Terry’s wife, Lucy, was an elementary school principal
     and that she also was not at work, which was unusual.




                                   -2-
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     Detective David Shupp and Officer Douglas Heilman responded to
     [the Smiths’ residence] at approximately 10:30 a.m. Upon
     learning from the State Police that [Appellant] was the son of Lucy
     Smith, that his fingerprint had been discovered at the scene of a
     local burglary, and that guns had been stolen from the house, the
     officers called for backup. At approximately 10:55 a.m., several
     officers entered the home through an unlocked sliding door. Upon
     entering the master bedroom on the second floor, the officers
     observed blood splatters on the mattress and wall and saw what
     appeared to be a body wrapped in a comforter on the floor in a
     pool of blood. A second body wrapped in bedding was found in a
     front bedroom.

     The body in the front bedroom was eventually identified as Terry
     Smith and it appeared as though he had been stabbed repeatedly
     and shot multiple times in the head. The body in the master
     bedroom was identified as Lucy Smith and it appeared as though
     she had been severely assaulted to the left side of the head, as
     well as shot.

     In the late morning hours of Thursday, September 6, 2001,
     Corporal Raymond Guth of the Pennsylvania State Police and
     Detective Shupp went to Rodriguez’s residence . . . to interview
     [Appellant] regarding the Good burglary. During this interview,
     [Appellant] admitted to the officers that he and Perez had
     committed the Good burglary. [Appellant] was subsequently
     arrested on the burglary charge and taken into custody by
     Corporal Guth.

     After waiving his Miranda[fn1] rights, [Appellant] gave a statement
     to the police on September 6, 2001, in which he admitted that he
     and May went to the Smith residence with the intent to commit a
     burglary. They entered the residence through a second floor
     window. When confronted by the Smiths during the course of the
     burglary, [Appellant] stated that he and May bound the Smiths
     with duct tape and then shot them with guns stolen from the Good
     residence. [Appellant] further admitted to taking a quantity of
     money from the house.

        [fn1]   Miranda v. Arizona, 384 U.S. 436 (1966).

     On the evening of September 6, 2001, May was arrested for the
     Good burglary and given his Miranda warnings, which he
     acknowledged in writing. May then proceeded to give a statement

                                     -3-
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     to Detectives Ortenzi and Tobin in which he confessed to his
     participation in the killings of Terry and Lucy Smith.

                                 *    *    *

     Wayne Ross, M.D., the Lancaster County forensic pathologist,
     performed autopsies on the bodies of Lucy and Terry Smith on
     September 7, 2001. He determined that Terry Smith was stabbed
     47 times, his neck was cut at least five times, he was shot
     “execution-style” five times, and he was strangled or asphyxiated.
     There were no defensive wounds on Terry Smith.

     During the autopsy of Lucy Smith, Dr. Ross obtained swabbings
     from her mouth. These swabbings were examined by a forensic
     scientist with the Pennsylvania State Police Laboratory, and were
     found to contain spermatozoa. A forensic scientist supervisor with
     the Pennsylvania State Police DNA Laboratory reported that the
     blood sample from Landon May matched the DNA of the sperm
     from the oral swabs taken from Lucy Smith. In addition to being
     sexually assaulted, Lucy Smith was cut 51 times, shot in the head,
     beaten on the left side of her head with a claw hammer, suffered
     blunt force trauma to her forehead, had 17 fractures to her skull,
     and was eventually smothered to death. She suffered defensive
     wounds to her hands and arms.

     Based upon this evidence, the Commonwealth charged
     [Appellant], then 17 years old, with two counts of homicide,
     criminal conspiracy, robbery and burglary at Information No.
     4224-2001, and with robbery, conspiracy and theft at Information
     No. 4975-2001, with respect to the Turkey Hill robbery. Pursuant
     to section 6355(e) of the Juvenile Act, [Appellant’s] case was filed
     directly in criminal court, as the criminal division is vested with
     exclusive jurisdiction over the crime of murder.

     On November 19, 2001, the Commonwealth informed [Appellant]
     and the [c]ourt of its intention to seek the death penalty. The
     three aggravating circumstances charged were that: (1)
     [Appellant] committed a killing while in the perpetration of a
     felony (burglary and robbery)[;] (2) in the commission of the
     offense, [Appellant] knowingly created a grave risk of death to
     another person in addition to the victim of the offense[;] and (3)
     the offense was committed by means of torture . . . .




                                     -4-
J-A06018-19


     The trial of [Appellant’s] co-defendant May began on November 1,
     2002. The jury found May guilty on November 27, 2002, of two
     counts of burglary, two counts of conspiracy, one count of
     involuntary deviate sexual intercourse, and two counts of first-
     degree murder for the killings of Terry and Lucy Smith. After a
     penalty hearing, the jury returned two sentences of death against
     May, having specifically found the aggravating factor of torture.

     At that point, [Appellant] chose to resolve his charges through a
     negotiated plea agreement with the Commonwealth. Accordingly,
     on January 6, 2003, [Appellant] entered into an “Agreement for
     Truthful Testimony” with the Commonwealth in which [Appellant]
     agreed “to cooperate fully and truthfully with the Commonwealth
     in the investigation and prosecution of the persons responsible for
     the deaths of Lucy and Terry Smith, as well as the burglary,
     assault, robbery and theft crimes perpetrated by [Appellant],
     Landon May, Drenea Rodriguez, Steve Estes and any other person
     or crime of which he has knowledge.” In exchange for this
     cooperation and testimony, the Commonwealth agreed to present
     a plea agreement in which [Appellant] would plead guilty to the
     first-degree murders of Lucy and Terry Smith and receive
     consecutive sentences of [LWOP].[fn7] As a result, [Appellant] was
     spared the death penalty.

        [fn7]Pennsylvania law mandated that if a person was found
        guilty of first-degree murder and did not receive the death
        penalty that he or she would receive a sentence of life
        imprisonment without the possibility of parole. See 18
        Pa.C.S. § 1102(a)(1).

                                *    *    *

     On January 27, 2003, [Appellant] tendered a negotiated plea to
     all of the charges, with the exception of one count of robbery at
     No. 4224-2001 and one count of theft at No. 4975-2001, which
     were to be nolle prossed by the Commonwealth at the time of
     sentencing. After an extensive colloquy, the [trial court] accepted
     [Appellant’s] guilty plea.    [Appellant] waived his right to a
     presentence investigation and was immediately sentenced to two
     consecutive terms of [LWOP] for the first-degree murder charges,
     with concurrent sentences of 10 to 20 years’ imprisonment for
     each of the criminal conspiracy and burglary charges. The robbery
     charge was nolle prossed at the time of sentencing.


                                    -5-
J-A06018-19


        As part of the same proceeding, [Appellant] also pleaded guilty to
        one count of robbery and one count of conspiracy to commit
        robbery on Docket No. 4975-2001, and received concurrent
        negotiated sentences of 10 to 20 years’ incarceration on each
        charge. These sentences were also concurrent with the first count
        of criminal homicide for Terry Smith. The theft charge was nolle
        prossed as part of the negotiated plea agreement. No post-
        sentence motions were filed nor did [Appellant] file a direct
        appeal.

Trial Ct. Op., 6/6/18, 1-11 (some citations and footnotes omitted).

        Between 2007 and 2010, Appellant filed two unsuccessful petitions

pursuant to the Post Conviction Relief Act2 (PCRA). On August 9, 2012, PCRA

counsel filed a third PCRA petition on Appellant’s behalf, raising claims related

to the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S.

460 (2012).3 Relying on Miller, Appellant argued that the Eighth Amendment

to the United States Constitution prohibits the imposition of mandatory LWOP

sentences for homicides committed by juvenile offenders.               Appellant

concluded that the trial court imposed illegal, mandatory LWOP sentences for

his two murder convictions.

        On July 7, 2014, the PCRA court denied Appellant’s petition, concluding

that Miller did not apply retroactively to cases on collateral review. This Court

affirmed the order, and Appellant timely filed a petition for allowance of

appeal.    On February 24, 2016, the Pennsylvania Supreme Court granted

____________________________________________


2   42 Pa.C.S. §§ 9541-9546.

3The United States Supreme Court decided Miller on June 25, 2012, and
Appellant filed his third PCRA petition within sixty days of that decision.



                                           -6-
J-A06018-19



Appellant’s petition for allowance of appeal, vacated the Superior Court’s

decision, and remanded the matter for further proceedings. Specifically, the

Court cited the United States Supreme Court’s decision in Montgomery v.

Louisiana, 136 S. Ct. 718 (2016),4 holding that the States must apply Miller

retroactively. Thereafter, this Court reversed the PCRA court’s order, vacated

Appellant’s judgment of sentence, and remanded the case for resentencing.

Commonwealth v. Bourgeois, 1248 MDA 2014 (Pa. Super. July 29, 2016)

(unpublished mem.).

        On October 27, 2017, prior to Appellant’s resentencing hearing, the

Commonwealth filed a sentencing memorandum. The memorandum provided

a statement of the case, discussion of relevant case law, and a sentencing

recommendation. The Commonwealth requested that the trial court sentence

Appellant to consecutive terms of fifty years to life imprisonment for each

murder conviction and consecutive statutory maximum sentences for

Appellant’s conspiracy and burglary convictions.

        The trial court conducted Appellant’s resentencing hearing on November

3, 2017. After providing an on-the-record statement of its considerations, the

court resentenced Appellant to consecutive sentences of forty years to life

imprisonment for each murder conviction. The court also imposed concurrent

sentences of ten to twenty years’ imprisonment for the conspiracy and




____________________________________________


4   The United States Supreme Court issued this decision on January 27, 2016.

                                           -7-
J-A06018-19



burglary convictions. Therefore, the court imposed an aggregate sentence of

eighty years to life imprisonment.

      Appellant timely filed a post-sentence motion on November 7, 2017.

Appellant argued that he would not be eligible for parole until he is ninety-

seven years old, but the average life expectancy in Pennsylvania is seventy-

eight and one-half years. Appellant also asserted that “the [t]rial [c]ourt failed

to fully appreciate [Appellant’s] distinctive youthful attributes and model

prisoner status, instead focusing its analysis on the facts and circumstances

surrounding the crime itself . . . .”     Post-Sentence Mot., 11/7/17, at 2.

Appellant concluded that the court imposed a de facto LWOP sentence in

contravention of Miller and Montgomery, and he requested that the trial

court change the minimum sentence for each murder conviction to thirty-five

years’ imprisonment. The court denied Appellant’s post-sentence motion on

December 4, 2017.

      Appellant’s current counsel subsequently entered her appearance and

timely filed a notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The trial court filed a responsive

Rule 1925(a) opinion, concluding that it had imposed legal sentences of forty

years to life imprisonment for each murder conviction. The court also claimed

that it properly weighed all relevant sentencing factors, and it did not abuse

its discretion by imposing consecutive sentences for the murder convictions.

      While this appeal was pending, the Pennsylvania Supreme Court granted

allowance of appeal to consider whether a sentence of fifty years to life for a

                                      -8-
J-A06018-19



single count of first-degree murder constitutes a de facto life sentence. See

Commonwealth v. Felder, 41 EAL 2018 (Pa. filed June 19, 2018).                   On

February 21, 2018, this Court also decided Commonwealth v. Foust, 180

A.3d 416 (Pa. Super. 2018),5 and held that we must consider the individual

sentences for two counts of first-degree murder, not the aggregate sentence,

to determine if a sentence constitutes a de facto LWOP sentence. Id. at 437-

38.

       Appellant now raises three questions for our review:

       1. Did the trial court err in sentencing [Appellant] to an
       unconstitutional de facto life sentence without the necessary
       procedural protections, considerations and findings enumerated
       by the Pennsylvania Supreme Court in Batts II?

       2. Did the trial court err in failing to consider the Miller factors on
       the record prior to sentencing [Appellant] to a de facto life
       sentence?

       3. Did the trial court abuse its discretion in sentencing [Appellant]
       to a de facto life sentence by failing to properly apply Miller and
       Batts II?

Appellant’s Brief at 3 (footnotes omitted).

       In his first issue, Appellant cites Batts II for the proposition that Miller

and Montgomery “create a presumption of parole eligibility and require a

[juvenile offender] to be found irreparably corrupt before they can be

____________________________________________


5 The appellant in Foust timely filed a petition for allowance of appeal with
the Pennsylvania Supreme Court on March 23, 2018. On September 5, 2018,
the Court entered an order holding the petition for allowance of appeal pending
its disposition of Commonwealth v. Felder, 18 EAP 2018. Order, 126 WAL
2018 (Pa. filed Sept. 5, 2018). The Court has scheduled oral argument in
Felder for May 16, 2019.

                                           -9-
J-A06018-19



sentenced to life without parole.”   Id. at 11.   Appellant contends the trial

court’s imposition of an aggregate term of eighty years to life imprisonment

created a de facto LWOP sentence “that unconstitutionally deprives him of a

meaningful opportunity for release as he has not been found to be one of the

rare and uncommon juveniles who is irreparably corrupt.”        Id.   Appellant

acknowledges this Court’s decision in Foust. Id. at 12. Appellant insists,

however, that the Foust decision “sidesteps the mandates of Miller and Batts

II that [juvenile offenders] convicted of homicide who are capable of

rehabilitation be afforded the opportunity for parole.” Id.

      Moreover, Appellant maintains his resentencing hearing was deficient,

because the “trial court did not address the central question posed in

Miller―whether [Appellant] is capable of rehabilitation―prior to sentencing

him to what amounted to a de facto life sentence.” Id. at 22. Even though

the Commonwealth did not seek a formal LWOP sentence at the resentencing

hearing, Appellant argues that the trial court’s noncompliance with Miller,

Montgomery, and Batts II undermined the entire proceeding and

constituted an error of law requiring this Court to vacate Appellant’s new

sentences. Id. at 24.

      “We review the legality of a sentence de novo and our scope of review

is plenary.” Foust, 180 A.3d at 422 (citation omitted). “[A] trial court may

not impose a term-of-years sentence, which constitutes a de facto LWOP

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.

                                     - 10 -
J-A06018-19



      Nevertheless, “we 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 LWOP sentence.” Id. at 438. Further, this Court

has determined that sentences greater than forty years to life imprisonment

for juvenile offenders convicted of murder do not constitute impermissible de

facto LWOP sentences. See Commonwealth v. Bebout, 186 A.3d 462, 469-

70 (Pa. Super. 2018) (holding that a juvenile offender failed to establish that

a sentence of forty-five years to life imprisonment for second-degree murder

was not the functional equivalent of LWOP).

      Instantly, the trial court emphasized the applicability of Foust because

Appellant’s case involved two murder victims:

      The murder of each [of Appellant’s] victim[s] was carried out in a
      dispassionate and calculated manner, each victim was tortured
      and mutilated, and each murder showed an exceptionally callous
      disregard for human suffering.

                                  *     *      *

      The consecutive sentence in this case, given multiple victims and
      convictions, did not contravene the Commonwealth’s statutory
      sentencing scheme in any way. [Appellant’s] argument that he
      received a de facto life sentence because his consecutive, fixed-
      term sentences for multiple crimes amount to the practical
      equivalent of [LWOP] is an attempt by [Appellant] to invite the
      appellate courts to ignore individualized sentencing.

      [The] Superior Court soundly rejected this position in its very
      recent decision in Commonwealth v. Foust . . . .

Trial Ct. Op. at 21-22 (citations omitted).




                                      - 11 -
J-A06018-19



       The trial court went on to explain that Foust involved a juvenile offender

convicted of two counts of first-degree murder, and the Foust decision

expressed concern over “open[ing] the door to volume sentencing discounts

in cases involving multiple juvenile homicide offenses.” Id. at 23 (quoting

Foust, 180 A.3d at 436). Consequently, the trial court imposed consecutive

sentences of forty years to life imprisonment for each of Appellant’s first-

degree murder convictions.

       In considering the constitutionality of Appellant’s individual murder

sentences, as mandated by Foust, this Court has already determined that a

sentence of forty-five years to life imprisonment is not the functional

equivalent of LWOP for a juvenile offender. See Bebout, 186 A.3d at 469-

70. In light of the applicable standard of review and the relevant case law,

the trial court did not commit an error of law that requires this Court to vacate

Appellant’s sentences.6 See Foust, 180 A.3d at 422.

       In his second issue, Appellant contends he “is constitutionally entitled

to an individualized sentence that reflects his distinct youthful attributes.”

Appellant’s Brief at 25. To guarantee a proper sentence for a juvenile offender

facing LWOP, Appellant asserts that a trial court must examine several specific
____________________________________________


6 To the extent Appellant insists that this Court’s decision in Foust was
incorrect, we acknowledge that future rulings from the Pennsylvania Supreme
Court may produce new precedent regarding the sentencing of juvenile
offenders convicted of first-degree murder. Nevertheless, this Court is
constrained to apply existing precedent until such cases are overruled. See
Commonwealth v. El, 933 A.2d 657, 662 n.3 (Pa. Super. 2007).



                                          - 12 -
J-A06018-19



factors set forth in Miller.7 Id. The trial court, however, did not provide any

specific findings as to the Miller factors for this case. Id. at 26.

       Appellant complains, “It is impossible to review whether the court

imposed an individualized sentence in accordance with the constitutional

mandates of Miller if there is no record detailing its considerations.”       Id.

Appellant concludes the court committed legal error by failing to make on-the-

record findings regarding the Miller factors. Id. at 27.

       Significantly, “a sentencing court must consider these Miller factors

only in cases where the Commonwealth is attempting to meet its burden of

overcoming       the    presumption       against   juvenile   LWOP    sentences.”

Commonwealth v. White, 193 A.3d 977, 983 (Pa. Super. 2018) (citation

omitted).     Here, the Commonwealth did not attempt to overcome the

presumption against juvenile LWOP sentences in Appellant’s case.              See

Commonwealth’s Sentencing Mem., 10/27/17, at 6 n.4. Therefore, the trial

court did not need to conduct an on-the-record examination of the Miller




____________________________________________


7 “[A]t a minimum[, the trial court] should consider a juvenile’s age at the
time of the offense, his diminished culpability and capacity for change, the
circumstances of the crime, the extent of his participation in the crime, his
family, home and neighborhood environment, his emotional maturity and
development, the extent that familial and/or peer pressure may have affected
him, his past exposure to violence, his drug and alcohol history, his ability to
deal with the police, his capacity to assist his attorney, his mental health
history, and his potential for rehabilitation.” Batts II, 163 A.3d at 421 n.5
(citation omitted).



                                          - 13 -
J-A06018-19



factors at the resentencing hearing in Appellant’s case. See White, 193 A.3d

at 983.8

       In his third issue, Appellant argues that the trial court abused its

discretion, because it failed to provide adequate reasons to support the

sentence imposed. Appellant’s Brief at 28. Even if consideration of the Miller

factors were not required as a matter of law, Appellant maintains that “the

trial court’s failure here to properly weigh the mitigating factors on the record

resulted in an excessive and unreasonable sentence.”        Id.   Appellant also

complains that the court “allowed the facts of the crime to impermissibly

override mitigation, and it improperly relied on the mandatory minimum

established in Section 1102.1.” Id. at 31.

       Appellant’s issue is a challenge to the discretionary aspects of his

sentence. It is well settled that “[c]hallenges to the discretionary aspects of

sentencing do not entitle an appellant to review as of right.” Commonwealth

v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citation omitted). Rather,

before reaching the merits of such claims, we must determine:

       (1) whether the appeal is timely; (2) whether [the a]ppellant
       preserved his issues; (3) whether [the a]ppellant’s brief includes
       a concise statement of the reasons relied upon for allowance of
____________________________________________


8In White, this Court cited to Commonwealth v. Machicote, 172 A.3d 595,
602 n.3 (Pa. Super. 2017), appeal granted, 186 A.3d 370 (Pa. 2018), for the
proposition that a court need not consider the Miller factors where the
Commonwealth does not seek a LWOP sentence. The Pennsylvania Supreme
Court granted allowance of appeal in Machicote to determine whether a court
must consider the Miller factors regardless of whether the defendant
ultimately receives a LWOP sentence. Order, 4 WAL 2018 (Pa. filed May 22,
2018).

                                          - 14 -
J-A06018-19


      appeal with respect to the discretionary aspects of sentence; and
      (4) whether the concise statement raises a substantial question
      that the sentence is inappropriate under the [S]entencing [C]ode.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation

omitted).

      Instantly, Appellant preserved his issue in a post-sentence motion and

timely appealed from the denial of his post-sentence motion. Appellant also

included in his brief a Pa.R.A.P. 2119(f) statement. Further, Appellant has

raised a substantial question for our review. See Foust, 180 A.3d at 439

(holding that an excessiveness claim based upon the imposition of consecutive

sentences for two murder convictions presents a substantial question);

Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (stating

that “an excessiveness claim in conjunction with an assertion that the court

did not adequately consider a mitigating factor may present a substantial

question” (citation omitted)).

      Our standard of review in this context 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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).




                                    - 15 -
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     “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010) (citation

omitted).

     Typically, when sentencing a defendant, the trial court is required
     to consider the sentencing guidelines. In this case, however, no
     sentencing guidelines exist for juveniles convicted of first-degree
     murder prior to June 25, 2012. Instead, our Supreme Court in
     Batts II held that, in these cases, the applicable “sentencing
     guidelines” that the trial court should consider are the mandatory
     minimum penalties set forth in section 1102.1.

Foust, 180 A.3d at 439 (citations omitted).

     Here, at the resentencing hearing, the trial court explained:

     In determining the minimum sentence in this case, I must look to
     traditional sentencing considerations as outlined in the applicable
     statutes and the case law. The sentence imposed here today must
     take into consideration the protection of the public, the gravity of
     the offense as it relates to the impact on the life of the victims and
     the community, and the rehabilitative needs of the defendant.

     In this case, the [c]ourt must also be guided by Title 18, Section
     1102.1(a), which provides for a minimum sentence of at least 35
     years to life where the offender was 15 years of age or older at
     the time of the crime. As indicated throughout the records,
     [Appellant] was 17 years and approximately five months of age
     on the date he committed these offenses.

                                  *     *      *

     I do note . . . for the purpose of this sentencing that the actions
     of [Appellant] on September 6, 2001, which included the torture
     of the victims, are among some of the most chilling, depraved and


                                      - 16 -
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      heinous acts I have reviewed in my career as a judge in nearly 18
      years.

      Although the Commonwealth is not seeking life without parole,
      and I therefore am not required to make detailed findings on the
      record regarding all of the factors outlined by the U.S. Supreme
      Court and our state Supreme Court, as well as the applicable
      statutes, I have chosen to consider and review all of those factors
      in arriving at the appropriate sentence here today.

                                  *      *      *

      Again, I have considered in detail the materials provided to me
      regarding [Appellant’s] conduct while he has been incarcerated. I
      specifically note that his conduct has been commendable as a
      model inmate. While [Appellant’s] good conduct in prison should
      and has been considered by me in rendering my decision, it is but
      one factor of many factors to be considered. It does not control
      or mandate any particular outcome.

      There is no doubt that [Appellant] has conducted himself in the
      manner in which we would want inmates to behave, but some
      things just cannot be taken back regardless of subsequent
      behavior.

                                   *     *      *

      I simply cannot accept the proposition that a juvenile offender who
      commits multiple murders must be afforded a volume discount
      and not [be] held responsible for each and every life he has taken,
      even if the sentence imposed approaches a lifetime in prison.
      Youth matters, but so did the lives of the victims.

N.T. Resentencing, 11/3/17, at 151-52, 155, 157, 158.

      In its Rule 1925(a) opinion, the trial court incorporated the above-

recited portion of the sentencing hearing where it provided the reasons for the

sentence it imposed. See Trial Ct. Op. at 33. The court further emphasized:

      It is clear that in fashioning this sentence I did weigh all the
      mitigating and aggravating factors in this case, including the
      factors outlined in Batts II and the Miller . . . age-related factors


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      codified in section 1102.1, even though [Appellant’s] individual
      sentences of 40 years to life imprisonment did not constitute a de
      facto [LWOP] sentence.

      [Appellant] submitted a substantial amount of documentation for
      my consideration. I reviewed all of these materials in exhausting
      detail, which included documentation of [Appellant’s] conduct
      while in prison since 2003 . . . .

                                  *     *      *

      In stark contrast to the certificates and achievements presented
      by defense counsel, the Commonwealth submitted the transcript
      of [Appellant’s] chilling confession, which I carefully reviewed, as
      well as the gruesome autopsy reports for Lucy and Terry Smith. I
      further read the entire transcript of [Appellant’s] prior guilty plea
      and sentencing, which included very moving victim impact
      statements from the children of Terry and Lucy Smith.

                                  *     *      *

      Finally, I critically observed and assessed the extensive testimony
      of [Appellant] regarding his idyllic childhood and the “joy in just
      being with family,” the problems that came with his parents’
      divorce, including a move from Kansas to Pennsylvania, his efforts
      to fit in at a new high school by drinking, smoking marijuana and
      ingesting large quantities of Robitussin, his criminal behavior,
      including theft, robbery and burglary, his relationship with 33-
      year-old Drenea Rodriguez, and his life in prison following his
      conviction. [Appellant] described his mother as “very loving,”
      someone who “cared for her children,” “wanted the best for us,”
      and “wanted us to succeed in everything that we done [sic].”
      [Appellant] said Lucy Smith “was definitely a woman who gave
      her heart to everyone and cared for everyone.”             And yet,
      [Appellant] admittedly tortured and brutally murdered this loving
      and caring mother and her new husband, Terry Smith, because
      they were simply “try[ing] to love [him]” and trying to help him
      “be a better person.”

Id. at 32-35 (citations to the record and footnote omitted).

      Based on our review of the record, we find no support for Appellant’s

assertion that the trial court failed to consider Appellant’s mitigating factors


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or that it imposed an excessive sentence.      Among other things, the court

considered Appellant’s age, the circumstances of his childhood and family life,

the circumstances of the crimes, the impact on the victims, and Appellant’s

behavior while incarcerated. See id.

      Ultimately, the court weighed each of those factors and found that an

aggregate term of eighty years to life imprisonment was appropriate.

Therefore, we discern no abuse of discretion in the trial court’s sentence. See

Foust, 180 A.3d at 441 (acknowledging that “[a]lthough this Court has

previously invalidated lengthy term-of-years sentences that trial courts have

run consecutively, most involved property crimes.” (citation omitted));

Commonwealth v. Baker, 72 A.3d 652, 664 (Pa. Super. 2013) (stating that,

in light of our standard of review, where the record demonstrates that the trial

court considered the appropriate sentencing factors, “we have no basis to find

that the sentence imposed is clearly unreasonable”).

      Accordingly, we are constrained to affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/12/2019


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