J-A06008-18

                                  2018 PA Super 114

    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    ROBERT BEBOUT,

                             Appellant                  No. 1080 WDA 2017


          Appeal from the Judgment of Sentence Entered May 22, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003509-1981


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

OPINION BY BENDER, P.J.E.:                                 FILED MAY 4, 2018

        Appellant, Robert Bebout, appeals from the judgment of sentence of a

minimum term of 45 years’ incarceration, and a maximum term of life

imprisonment (“45-life”), imposed following his resentencing pursuant to

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

136 S.Ct. 718 (2016).1          Appellant challenges both the legality and the

discretionary aspects of his sentence. After careful review, we affirm.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 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 [(“LWOP”)] absent consideration of the juvenile's special circumstances
in light of the principles and purposes of juvenile sentencing.” Montgomery,
136 S.Ct. at 725. Subsequently, in Montgomery, the Court held that the
Miller decision “announced a substantive rule of constitutional law” that
applies retroactively. Id. at 736.
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      In 1981, Appellant, who was then only 15 years old, anally raped, beat

with a brick, strangled, and ultimately murdered a seven-year-old boy in the

West End section of Pittsburgh, leaving the child’s nude body in the Saw Mill

Run Creek.       When police arrested Appellant several days later, he quickly

confessed to the crime. On April 5, 1982, a jury convicted him of second-

degree murder, and the trial court sentenced him to a mandatory term of

LWOP.       This Court affirmed his judgment of sentence on direct appeal.

Commonwealth v. Bebout, 484 A.2d 130 (Pa. Super. 1984). Appellant did

not file a petition for allowance of appeal with our Supreme Court from our

decision.

      Appellant first filed for collateral relief in 1985, under the Post Conviction

Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (repealed April 13, 1988). The

PCHA court denied Appellant’s petition on February 5, 1986. He appealed,

and after this Court affirmed that decision on December 4, 1986, Appellant

did not seek further relief in our Supreme Court. See Commonwealth v.

Bebout, 520 A.2d 1211 (Pa. Super. 1986) (unpublished memorandum).

Appellant filed his second PCHA petition on January 12, 1988. The PCHA court

denied that petition on March 9, 1988, and it does not appear that Appellant

appealed from that decision. However, he filed his third PCHA petition, this

time pro se, on November 2, 1988. The PCHA court denied that petition on

August 28, 1989. Again, Appellant does not appear to have appealed from

that decision.




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      Appellant filed his fourth petition for collateral relief, this time under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., on June 22,

2010. Appellant received appointed counsel who filed an amended petition on

his behalf.   In that petition, Appellant sought relief under the auspices of

Graham v. Florida, 560 U.S. 48 (2010) (holding that the Eighth Amendment

prohibits LWOP sentences for juveniles who did not commit homicide). On

March 16, 2011, the PCRA court filed a notice of its intent to dismiss the

petition under Pa.R.Crim.P. 907 and, on June 15, 2011, the court dismissed

Appellant’s petition. The PCRA court filed an amended dismissal order on July

25, 2011.     On September 16, 2011, the court issued an order reinstating

Appellant’s appellate rights nunc pro tunc from the June 15, 2011 order. This

Court affirmed the denial of Appellant’s PCRA petition on May 10, 2012, and

his subsequent petition for allowance of appeal to our Supreme Court was

denied on November 28, 2012. Commonwealth v. Bebout, 50 A.3d 239

(Pa. Super. 2012) (unpublished memorandum), appeal denied, 57 A.3d 65

(Pa. 2012).

      Appellant filed his fifth petition for collateral relief, his second PCRA

petition, on January 17, 2013.        Therein, Appellant sought resentencing

pursuant to Miller. While that petition was pending in the PCRA court, our

Supreme Court issued its decision in Commonwealth v. Cunningham, 81

A.3d 1 (Pa. 2013), holding that the rule announced in Miller did not apply

retroactively to cases on collateral review.     On this basis, the PCRA court

denied Appellant’s second PCRA petition on April 21, 2014.              This Court

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affirmed on September 30, 2014, and our Supreme Court denied further

review on January 28, 2015. Commonwealth v. Bebout, 107 A.3d 240 (Pa.

Super. 2014), appeal denied, 108 A.3d 33 (Pa. 2015).

      On January 25, 2016, the Supreme Court of the United States decided

Montgomery, which effectively reversed the Pennsylvania Supreme Court’s

decision in Cunningham. Appellant promptly filed a pro se PCRA petition on

February 18, 2016, his third PCRA petition, and his sixth petition for collateral

relief. The PCRA court appointed counsel, who then filed an amended PCRA

petition on June 3, 2016. The Commonwealth filed an answer on June 30,

2016, conceding that Appellant should be resentenced pursuant to Miller and

Montgomery. On October 31, 2016, the PCRA court issued an order granting

resentencing, which ultimately occurred on May 17, 2017. Subsequently, on

May 22, 2017, the PCRA/resentencing court issued an order granting

Appellant’s PCRA petition, vacating his LWOP sentence, and imposing a new

sentence of 45-life, with time-credit for 13,154 days served. Appellant filed a

timely post-sentence motion on May 31, 2017, which the PCRA/resentencing

court denied on June 27, 2017. Appellant then filed a timely notice of appeal

on July 26, 2017, and a timely, court-ordered Pa.R.A.P. 1925(b) statement on

September 27, 2017.      The PCRA/resentencing court filed its Rule 1925(a)

opinion on October 6, 2017.

      Appellant now presents the following questions for our review:

      In view of the applicable legal standards and mitigation evidence
      introduced by [Appellant], did the resentencing court commit legal
      error by sentencing [him] to [45-life]?

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      In view of the applicable legal standards and mitigation evidence
      introduced by [Appellant], did the resentencing court abuse its
      discretion by sentencing [him] to [45-life]?

Appellant’s Brief at 4.

      We begin by addressing Appellant’s first claim, wherein he asserts that

his sentence of 45-life constitutes “the functional equivalent” of LWOP, or a

de   facto   LWOP   sentence,   because   the   minimum    sentence   “exceeds

[Appellant]’s life expectancy in prison….” Id. at 22-23. Appellant also argues

that, because the lower court determined that he was not eligible for LWOP,

his de facto LWOP sentence does not provide a meaningful opportunity for

release as is ostensibly required under Miller and Montgomery.

             A challenge to the legality of a particular sentence may be
      reviewed by any court on direct appeal; it need not be preserved
      in the lower courts to be reviewable and may even be raised by
      an appellate court sua sponte. Commonwealth v. Barnes, …
      151 A.3d 121, 124 ([Pa.] 2016); see also Montgomery, 136
      S.Ct. at 731 (stating that because “[a] conviction or sentence
      imposed in violation of a substantive rule is not just erroneous but
      contrary to law and, as a result, void[, i]t follows, as a general
      principle, that a court has no authority to leave in place a
      conviction or sentence that violates a substantive rule”) (citing Ex
      parte Siebold, 100 U.S. 371 … (1879)). As we have previously
      explained, our decisions pertaining to questions of sentencing
      illegality “have not always been smooth,” with “complexities”
      arising “from disagreement among the members of the Court
      concerning whether a particular claim implicates the legality of a
      sentence.” Commonwealth v. Spruill, … 80 A.3d 453, 460–61
      ([Pa.] 2013).     There is no dispute, however, that a claim
      challenging a sentencing court's legal authority to impose a
      particular sentence presents a question of sentencing legality.
      See, e.g., Commonwealth v. Vasquez, … 744 A.2d 1280, 1282
      ([Pa.] 2000) (question of “whether the trial court had the
      authority to impose a statutorily mandated fine” is a challenge to
      sentencing legality); Commonwealth v. Shiffler, … 879 A.2d
      185, 189 ([Pa.] 2005) (claim regarding the court's authority to


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J-A06008-18


        impose a particular sentence implicates the legality of the
        sentence); In re M.W., … 725 A.2d 729, 731 ([Pa.] 1999) (same).

Commonwealth v. Batts, 163 A.3d 410, 434–35 (Pa. 2017).

        Recently, in Commonwealth v. Foust, --- A.3d ----, 2018 WL 988904

(Pa. Super. filed February 21, 2018),2 a panel of this Court held that “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 *11. The panel then considered whether Foust’s aggregate sentence of 60

years to life (composed of two, consecutive terms of 30 years to life)

constituted a de facto LWOP sentence. In conducting this analysis, the Foust

Court first had to determine whether to analyze aggregate sentences or the

individual components thereof. After determining that our sister states were

split on this question, the panel ultimately decided to side with the states that

had adopted the individual-sentence approach. Id. at *13. The panel arrived

at that decision based, in part, on well-settled principles of Pennsylvania

sentencing law, and on the analysis provided in McCullough v. State, 168

A.3d 1045 (Md. Spec. App. 2017), cert. granted, 171 A.3d 612 (Md. 2017).

See Foust, 2018 WL 988904 at *14-*15.

        The Foust Court then considered whether either of the appellant’s 30

years to life sentences constituted a de facto LWOP sentence, and concluded

that they did not. However, the panel “explicitly decline[d] to draw a bright

____________________________________________


2   See 1118 WDA 2016, filed as 2018 Pa.Super. 39.

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line … delineating what constitutes a de facto LWOP sentence and what

constitutes a constitutional term-of-years sentence.” Id. at *15. The Court

“similarly decline[d] to set forth factors that trial courts must consider when

making this determination, i.e., whether they must look to the life expectancy

of the population as a whole or a subset thereof and whether the defendant

must be given a chance at a meaningful post-release life.” Id. However, the

Court did provide some guidance, as follows:

      There are certain term-of-years sentences which clearly constitute
      de facto LWOP sentences. For example, a 150–year [minimum]
      sentence is a de facto LWOP sentence. Similarly, there are clearly
      sentences which do not constitute de facto LWOP 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 LWOP 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. Accordingly, the Foust Court determined that a “sentence of 30 years to

life imprisonment does not constitute a de facto LWOP sentence which entitles

a defendant to the protections of Miller.” Id.

      Instantly, Appellant’s 45-life sentence falls between the “clearly”

constitutional and unconstitutional parameters suggested by the Foust Court.

We note, however, that the Foust Court’s choice of a 150-year minimum

sentence appears to be merely illustrative. Undoubtedly, the Court intended

to suggest a sentence that clearly exceeded human life expectancy in absolute

terms, rather than average life expectancy, or the life expectancy of some

identifiable subset of the population. In that regard, the Foust Court could


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just have easily listed 120-year or 100-year minimum sentences as examples

of what “clearly” constitutes a de facto LWOP sentence, as the number of

humans who could possibly survive their minimum sentence would be virtually

nil.   The key factor in considering the upper limit of what constitutes a

constitutional sentence, in this narrow context,3 appears to be whether there

is “some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.”        Graham, 560 U.S. at 75.    Implicit in this

standard is the notion it would not be meaningful to provide an opportunity

for release based solely on the most tenuous possibility of a defendant’s

surviving the minimum sentence imposed.          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-


____________________________________________


3 To be absolutely clear, the context of which we speak is limited to a juvenile
sentenced or resentenced in compliance with Miller’s procedural demands,
but who has not been determined to be the “exceedingly rare and uncommon
juvenile whose crime reflects his permanent incorrigibility[, and] who
therefore may be constitutionally sentenced to life without the possibility of
parole.” Batts, 163 A.3d at 450 (citing Montgomery, 136 S.Ct. at 726, and
Miller, 567 U.S. at 479-80). Miller expressly permits LWOP sentences on
such a finding, and its predecessor, Graham, was a case dealing exclusively
with non-homicide offenses. Here, however, by its very nature, the sentence
imposed did not reflect a finding of permanent incorrigibility by the sentencing
court. Miller would become meaningless if a sentencing court could issue a
de facto life sentence to a juvenile homicide defendant, while simultaneously
failing to find that that juvenile defendant is permanently incorrigible; this
much is clear. Nevertheless, defining what constitutes a de facto life sentence
will be a difficult question for the courts to address long into the future. The
one thing this Court can point to that will likely be an integral part of that
question will be whether the promise of the opportunity for release on parole
is meaningful.

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J-A06008-18



trivial amount of time at liberty awaits. Thus, though it expressly declined to

do so, the Foust Court seemed to suggest some sort of meaningful-

opportunity-for-release standard    by declaring that a 150-years-to-life

sentence constitutes a de facto LWOP sentence. If it had any other standard

in mind for making that determination, the Foust Court’s analysis omitted it.

      Instantly, Appellant was sentenced to 45-life, and he has already been

incarcerated for this crime since he was 15 years old. Accordingly, Appellant

will be eligible for parole when he is 60 years old. Appellant argues that this

constitutes a de facto life sentence because some studies have suggested that

a very narrow subset of the population—individuals sentenced to life

imprisonment as juveniles in Michigan—have an average life expectancy of

50.6 years.   Appellant’s Brief at 24.   However, Appellant also cites to the

Supreme Court of Connecticut, which recently noted that “government

statistics indicate that the average life expectancy for a male in the United

States is seventy-six years.”   Id. at 25 (quoting Casiano v. Commr. of

Correction, 115 A.3d 1031, 1046 (Conn. 2015)).            The Commonwealth

argues, and Appellant does not appear to dispute, that this data was not made

part of the record in this case. We agree.

      Nevertheless, we would not find such data helpful to our analysis, except

in the most general sense. By one measure, Appellant has already served an

average lifetime. By the other, if paroled at his minimum or soon thereafter,

Appellant potentially has the better part of two decades to live outside of

prison before reaching average life expectancy.     The latter figure certainly

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appears to suggest Appellant’s opportunity for release is meaningful, or, at

least, that his potential to survive his minimum sentence is not trivial. The

problem with Appellant’s arguments, however, even if he had submitted such

data as evidence to the sentencing court, is that he is not offering a workable

standard to this Court as to what constitutes a de facto life sentence.

Appellant seems to suggest we should use data from a very narrow population

of juvenile lifers in Michigan to craft a standard. Why not seek out data from

an even narrower population, such as from white, male juvenile lifers from

Western Pennsylvania who have already survived into their 50s, and who have

comparable health statuses to Appellant? One could easily imagine that life

expectancy data could fluctuate drastically in either direction as each new

variable further narrows the studied population.         As becomes abundantly

clear, the problem with the sort of statistical analysis suggested by Appellant

is that it is not at all discernable which statistics we can rely on to predict life

expectancy in specific cases, and we are virtually certain to have a standard

that is in constant flux with the addition of each new study.

      An equally problematic concern is what we do with such statistics. It is

not immediately apparent how the courts should translate average life

expectancy data into a de facto LWOP sentence standard, and Appellant has

not even suggested how we would do it. Certainty, or near certainty, that one

will survive his or her minimum sentence is a useless standard. One cannot

be certain to survive any sentence, however short.             Should, then, the

constitutional maximum term of the imposed minimum sentence be half the

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average life expectancy to provide a meaningful opportunity for release? One

quarter? One tenth? The use of statistical analysis of life expectancies to

govern a de facto LWOP standard appears to create a myriad of new questions

without any easy answers, sending us down a constantly evolving rabbit hole

from which we may never escape as more and more data arrives.

Consequently, even if Appellant had properly admitted into evidence the

relevant life expectancy statistics that he now raises in his brief, it is not

evident how helpful they would have been to the construction of a standard

for what constitutes a de facto LWOP sentence, or how such data dictates a

result in this case.

      Thus, we turn to our limited case law for guidance, in the absence of a

better standard. Appellant’s sentence does not fall into the category of

sentences described in Foust; that is, his minimum sentence is not so long

that it is virtually certain that he could not survive it. Indeed, it is at least

plausible, and perhaps even likely, that Appellant could live many years past

his earliest possible release date.

      Appellant   argues   that   delaying     parole   until   old   age   in   these

circumstances (see footnote 3, supra), constitutes a constitutional violation

because, ostensibly, it would not provide for a meaningful opportunity for

release. See Appellant’s Brief at 26 (citing Bear Cloud v. State, 334 P.3d

132 (Wyo. 2014), and State v. Null, 836 N.W.2d 41 (Iowa 2013)). Neither

Bear Cloud nor Null are controlling in this jurisdiction, and we find their

analyses unpersuasive at this time.            Indeed, we consider Appellant’s

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J-A06008-18



opportunity for release to be meaningful, especially in light of the gravity of

his crime, because he has the potential to live for several decades outside of

prison if paroled at his minimum.4

       Thus, based on the record and arguments before us, we conclude that

Appellant has simply failed to meet his burden of demonstrating that the lower

court sentenced him to a de facto LWOP sentence.            There simply is no

comparison between the opportunity to be paroled at 60 years of age and

100+ years of age. The difference is, quite literally, a lifetime.   As such, we

are not convinced that Appellant’s sentence is the functional equivalent of

LWOP. Accordingly, Appellant’s first claim must fail.

       Next, Appellant contends that the trial court abused its discretion by

imposing a 45-life sentence, because it failed “to consider anything but

[Appellant’s] offense.” Appellant’s Brief at 29. Appellant further argues that

rehabilitation, not retribution, is the “paramount consideration in juvenile

sentencing.”     Id. at 31.      In Appellant’s Rule 1925(b) concise statement,

however, he presented the following claim:

       1. The Order constitutes an abuse of discretion and/or clear legal
          error by the [c]ourt considering all of the facts and
          circumstances of the case. In light of mitigating factors related
          to [Appellant]'s youth and upbringing, as well as [Appellant]'s
          subsequent rehabilitation in the nearly thirty-five years since

____________________________________________


4 Appellant appears to have become a model prisoner in the decades since his
conviction. See N.T. Resentencing, 5/22/17, at 7 (“[Appellant] has made a
positive adjustment to prison life. I don’t think there is any question about
that.”). Assuming Appellant continues on that path, he could very likely be
paroled at his minimum.

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        the date of the offense, the sentence of [45-life] deserves
        reconsideration.

Appellant’s Pa.R.A.P. 1925(b) Statement, 9/27/17, at 2 ¶ 1.

     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. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007) (citation

omitted). Moreover,

        [c]hallenges to the discretionary aspects of sentencing do not
     entitle an appellant to review as of right. Commonwealth v.
     Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
     challenging the discretionary aspects of his sentence must invoke
     this Court's jurisdiction by satisfying a four-part test:

        [W]e conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, see Pa.R.A.P.
        902 and 903; (2) whether the issue was properly preserved
        at sentencing or in a motion to reconsider and modify
        sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's
        brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
        there is a substantial question that the sentence appealed
        from is not appropriate under the Sentencing Code, 42
        Pa.C.S.A. § 9781(b).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
     appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal
     citations omitted). Objections to the discretionary aspects of a
     sentence are generally waived if they are not raised at the
     sentencing hearing or in a motion to modify the sentence imposed.
     Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003),
     appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

           The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis. Commonwealth v.
     Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial question


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J-A06008-18


       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) contrary
       to the fundamental norms which underlie the sentencing process.”
       Sierra, supra at 912-13.

             As to what constitutes a substantial question, this Court
       does not accept bald assertions of sentencing errors.
       Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
       2006). An appellant must articulate the reasons the sentencing
       court's actions violated the sentencing code. Id.

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

       The Commonwealth argues that, because Appellant did not raise them

in his Rule 1925(b) statement, he “has waived the claims in his Brief that his

sentence was based on the seriousness of his crime, it was disproportionate

to his conviction, and it was unduly excessive.” Commonwealth’s Brief at 21.

We agree.

       Appellant’s claim, as raised in his Rule 1925(b) statement, appears to

differ significantly from those claims raised in his brief.   In the statement,

Appellant essentially argued that the PCRA/resentencing court abused its

discretion by failing to consider or give adequate weight to mitigating

sentencing factors.5        In his brief, however, Appellant asserts that the

PCRA/resentencing court abused its discretion by failing to make rehabilitation

the paramount factor in crafting Appellant’s sentence, and by affording too
____________________________________________


5 The PCRA/resentencing court suggested that Appellant’s failure-to-consider-
mitigating-factors claim, as raised in his Rule 1925(b) statement, did not
present a substantial question for our review. See Pa.R.A.P. 1925(a) Opinion,
9/27/17, at 8 (citing Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.
Super. 2013) (“[A]rgument that the trial court failed to give adequate weight
to mitigating factors does not present a substantial question appropriate for
our review.”)).

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much weight to the gravity of Appellant’s crime (and/or that the court

overvalued retributive principles despite recognizing Appellant’s rehabilitative

needs). We are compelled to agree with the Commonwealth that Appellant

did not present these claims in his Rule 1925(b) statement. Accordingly, they

are waived. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any

issues not raised in a 1925(b) statement will be deemed waived.”). Thus, the

only non-waived claim before this court is whether the PCRA/resentencing

court failed to consider, or adequately consider, mitigating sentencing factors.

As the court correctly noted in its Rule 1925(a) opinion, (see footnote 5,

supra), such a claim does not present a substantial question for our review.

      Nevertheless, even if Appellant had presented a substantial question for

our review in this regard, we would still find his claim meritless. The trial

court clearly did consider several mitigating factors when it issued Appellant’s

sentence. As accurately noted by the Commonwealth, the PCRA/resentencing

court reviewed and considered:

      Appellant's Resentencing Memorandum[,] the Defense Mitigation
      Report prepared by Bianca D'Auria, M.S.W. and her testimony
      [extensively detailing Appellant’s exceptionally abusive childhood,
      as well as his significant rehabilitative efforts in prison], testimony
      from three State Correctional Institution employees [attesting to
      Appellant’s current good character and model behavior],
      Appellant's testimony, the Commonwealth's statement, defense
      counsel's statement, the trial and original sentencing hearing
      transcripts, and a letter from a former cellmate of Appellant.

Commonwealth’s Brief at 24-25 (footnotes and citations to the record

omitted). Indeed, the trial court summarized all of these mitigating factors

prior to issuing Appellant’s sentence, and it did not appear to discredit any of

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the mitigating evidence presented in Appellant’s favor. N.T. Resentencing,

5/22/17, at 6-7.    The court weighed that mitigating evidence against the

gravity of Appellant’s crime, and determined that he was not a suitable

candidate for an LWOP sentence, which most certainly was a favorable

determination for Appellant, albeit certainly justified on the record before us.

The court then crafted a sentence which permits Appellant to seek parole in

less than ten years. We would ascertain no abuse of discretion had Appellant

presented a substantial question for our review, as the trial court clearly

considered the mitigating evidence.    See Commonwealth v. Eicher, 605

A.2d 337, 355 (Pa. Super. 1992) (holding that “[b]ecause it [was] apparent

from the … sentencing transcript that the sentencing court did not focus solely

on the seriousness of the offenses but expressly applied the relevant

mitigating factors in fashioning [the] appellant's sentence, we find no merit to

[the] appellant's claim that the mitigating factors were ignored or assigned

insufficient weight by the lower court”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2018




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