J-S05041-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                  Appellee                :
                                          :
                    v.                    :
                                          :
ALBERT IRBY,                              :
                                          :
                  Appellant               :    1464 WDA 2017

          Appeal from the Judgment of Sentence September 6, 2017
              in the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0000013-1969

BEFORE:     OLSON, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED MARCH 28, 2018

     Albert Irby (Appellant) appeals from the September 6, 2017 judgment

of sentence imposed following a resentencing hearing pursuant to Miller v.

Alabama, 567 U.S. 460 (2012). We affirm.

           Appellant, who was seventeen years old at the time of the
     offense, was convicted by a jury of first-degree murder1 and was
     sentenced on May 6, 1971, to a mandatory sentence of life
     imprisonment without parole. Appellant confessed that on
     September 22, 1969, he entered a store intending to commit an
     armed robbery and shot the victim when the victim reached for
     his gun. On direct appeal, our Supreme Court affirmed.
     Commonwealth v. Irby, 284 A.2d 738 (Pa. 1971).
           _______
           1 Due to deficiencies in the decades[-]old record, it is not

           possible to determine if Appellant was convicted of
           additional offenses.

Commonwealth v. Irby, 145 A.3d 774 (Pa. Super. 2016) (unpublished

memorandum) at 1-2.



*Retired Senior Judge assigned to the Superior Court.
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        On August 6, 2012, Appellant filed his first PCRA petition claiming that

his sentence was unconstitutional under Miller.1 The PCRA court dismissed

the petition as untimely filed.2 Upon remand from our Supreme Court, this

Court vacated Appellant’s judgment of sentence and remanded for a new

sentencing hearing. Irby, 145 A.3d 774.

        On September 6, 2017, after a hearing, the PCRA court resentenced

Appellant to 48 years to life imprisonment. Appellant was granted leave to

file a post-sentence motion nunc pro tunc. In his motion, Appellant alleged,

inter alia, that his sentence was manifestly excessive. The PCRA court denied

Appellant’s motion on October 6, 2017.

        Appellant timely filed a notice of appeal.3     Appellant’s sole claim on

appeal is that his minimum sentence of 48 years of incarceration is manifestly

excessive. Appellant’s Brief at 3.

        Appellant challenges the discretionary aspects of his minimum sentence.


1   Appellant’s petition was filed within sixty days of the issuance of Miller.

2  This Court affirmed that order on appeal based on Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013), and Appellant filed a petition for
allowance of appeal to our Supreme Court. Thereafter, the United States
Supreme Court held that Miller applied retroactively, essentially overruling
Cunningham. Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Following
that decision, our Supreme Court granted Appellant’s petition for allowance of
appeal, vacated this Court’s order, and remanded for further proceedings.
Commonwealth v. Irby, 158 A.3d 63 (Pa. 2016) (per curiam).
3 Appellant complied with Pa.R.A.P. 1925(b). The PCRA court complied with
Pa.R.A.P. 1925(a) by issuing an order referring this Court to the resentencing
hearing transcript for a “detailed on-the-record-explanation for the sentence
imposed.” Order, 10/11/2017, at 1.

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      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant challenging
      the discretionary aspects of his sentence must invoke this Court’s
      jurisdiction by satisfying a four-part test:

         We 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.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

      Here, Appellant was granted leave to file a post-sentence motion nunc

pro tunc, timely filed a notice of appeal, and included a statement pursuant to

Rule 2119(f) in his brief. Thus, he has satisfied the first three requirements.

We now turn to consider whether Appellant has presented a substantial

question for our review.

      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 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.” Griffin, 65 A.3d at 935 (citation and quotation marks omitted).



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      In his 2119(f) statement, Appellant paraphrases the testimony

presented at the resentencing hearing, Appellant’s Brief at 11-13, and sets

forth boilerplate statements that a substantial question is raised when a

sentence is excessive and the sentencing court “did not provide sufficient

reasons for the excessive sentence” and “the sentence is so manifestly

excessive as to constitute too severe a punishment.” Appellant’s Brief at 13.

However, Appellant offers no analysis of how these legal conclusions apply to

the facts of his case. Rather, Appellant concludes his 2119(f) statement with

an analysis practically identical to the conclusion of his argument.        See

Appellant’s Brief at 23.

             As demonstrated in [Appellant’s] mitigation expert … report,
      and via the testimony at the 9/6/17 [r]e[]sentencing hearing,
      [Appellant] is a 65 year old man who is no longer a threat to
      anyone, he’s served over 48 years in prison for a crime he has
      always, consistently maintained that he never committed, there
      was nothing about the instant crime that was any more heinous
      than other robberies that resulted in a homicide, the instant case
      was clearly in the nature of a [second-degree murder] rather than
      a [first-degree murder] (which would suggest 30 to life pursuant
      to the [g]uidelines, rather than 35 to life),[4] he’s had no
      misconducts in the prison for the past 30 years, he’s been
      compliant with prescribed medications for the past 12 years, he
      was essentially a model prisoner, he has loving and responsible
      family who will take him in if paroled, he has [McArthur] Mosely
      [from Hill House Association who runs an assistance program for
      older adults released from prison] to assist with nearly every need
      and requirement if paroled, and [Appellant] will be totally


4 Insofar as Appellant claims that the PCRA court used the wrong guidelines,
his claim fails ab initio. Appellant was convicted of first-degree murder, and
thus the PCRA court correctly employed the guidelines for first-degree murder.
Appellant’s assessment of what degree of murder he believes he should have
been convicted of does not determine his sentencing guidelines.

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      compliant with any conditions of parole imposed on him if and
      when released from prison. Hence, the manifestly excessive
      minimum sentence of 48 years’ imprisonment was unwarranted,
      and constituted overkill, since 30 to life would have been more
      than adequate, and would have made it more likely that
      [Appellant] would be quickly paroled, which now may or may
      never happen. Hence, [Appellant] respectfully avers that he has
      raised substantial questions.

Appellant’s Brief at 14.

      As such, we find that Appellant’s specific issue on appeal amounts to an

allegation that his minimum sentence is manifestly excessive because the

PCRA court failed to consider adequately various mitigating factors. In that

regard,

      “this Court has held on numerous occasions that a claim of
      inadequate consideration of mitigating factors does not raise a
      substantial question for our review.” Commonwealth v.
      Disalvo, 70 A.3d 900, 903 (Pa.[ ]Super.[ ]2013) (internal citation
      omitted).

             However, “prior decisions from this Court involving whether
      a substantial question has been raised by claims that the
      sentencing court ‘failed to consider’ or ‘failed to adequately
      consider’ sentencing factors [have] been less than a model of
      clarity and consistency.” Commonwealth v. Seagraves, 103
      A.3d 839, 842 (Pa.[ ]Super.[ ]2014) (citing [Commonwealth v.
      Dodge[, 77 A.3d 1263 (Pa. Super. 2013)]). In []Dodge, this
      Court determined an appellant’s claim that the sentencing court
      “disregarded rehabilitation and the nature and circumstances of
      the offense in handing down its sentence” presented a substantial
      question. Dodge[, 77 A.3d] at 1273.

            This Court has also held that an excessive sentence claim—
      in conjunction with an assertion that the court failed to consider
      mitigating factors—raises a substantial question.




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Commonwealth v. Caldwell, 117 A.3d 763, 769–70 (Pa. Super. 2015) (en

banc) (some citations and quotation marks omitted). Based on the above

precedent, we find that Appellant has raised a substantial question and will

review the merits of his claim.

      In Commonwealth v. Batts (Batts II), 163 A.3d 410 (Pa. 2017), the

Court held, inter alia, that a trial court, in resentencing a juvenile offender

convicted prior to Miller, was constitutionally permitted to impose a minimum

term-of-years sentence and a maximum sentence of life imprisonment, thus

“exposing these defendants to parole eligibility upon the expiration of their

minimum sentences.” Batts II, 163 A.3d at 439. In fashioning a term-of-

years-to-life sentence, the lower court must consider the sentencing

requirements codified at 18 Pa.C.S. § 1102.1, which provides, in relevant part,

as follows.

      (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. § 1102.1. As the Court in Batts II explained,

      [t]he Miller Court concluded that sentencing for juveniles must
      be individualized. This requires consideration of the defendant’s



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      age at the time of the offense, as well as “its hallmark features,”
      including:

            immaturity, impetuosity, and failure to appreciate
            risks and consequences[;] ... the family and home
            environment that surrounds him—and from which he
            cannot usually extricate himself—no matter how
            brutal or dysfunctional[;] ... the circumstances of the
            homicide offense, including the extent of his
            participation in the conduct and the way familial and
            peer pressures may have affected him[;] ... that he
            might have been charged and convicted of a lesser
            offense if not for incompetencies associated with
            youth—for example, his inability to deal with police
            officers or prosecutors (including on a plea
            agreement) or his incapacity to assist his own
            attorneys[;] ... [and] the possibility of rehabilitation
            ... when the circumstances [i.e. (the youthfulness of
            the offender)] most suggest it.

Id. at 431 (citations omitted).

      In this case, prior to resentencing, the PCRA court provided a summary

of what it considered when fashioning Appellant’s sentence, which included

statements by Appellant and his family.

       [T]he law gives us some guidance on how to do these
      sentencings, and certainly … Batts [II] is a case that sets forth
      many different factors to consider.

            Also, our own Sentencing Code, section 9721, does the
      same thing. It sets forth factors to consider, to look at when
      sentencing. And certainly the murder statute in 1102 sets forth
      those things.

             And those are all things that I considered in trying to come
      up with what I believe takes into consideration the entirety of this
      situation, the crime itself, the impact on the victims, the threat to
      the community and certainly your own rehabilitative needs.

           In looking at those factors, I mean, I certainly note that you
      were close to 18 years old when this happened. There are

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     certainly sentencing situations where we’re dealing with 14- or
     15-year-olds or 16-year-olds, but that’s not the case here. You
     were 17-and-a-half when this occurred.

            You know, this is a very brutal circumstance where you go
     into the store with a gun drawn, demanding money or you would
     shoot. And you do shoot, twice, in the head and the hand of a
     person who is in that store for some money. Probably not a whole
     lot of money. This wasn’t a big store. This wasn’t a store making
     a ton of money.

           You know, you are the sole shooter in this matter. You
     know, I understand that you are protesting your innocence and
     that you are claiming your innocence even 48 years later. The
     jury has convicted you. There is a confession. I understand you’re
     saying that that confession was coerced, but that confession was
     also accepted by that jury.

           You know, we have a situation where we have a huge impact
     on the victim. We have a man who’s killed who has nine children
     and a wife to support, [who was] no longer there to support them,
     whose entire family relocates. They closed the store that is the
     source of their livelihood. And it also impacts the community.
     There is now an impact on the community. We have a shopkeeper
     who has left because of the violence created by you.

            You know, concerns in terms of capacity for change. I would
     like to say that there is a lot, but even your brother-in-law said
     that he hasn’t seen any change in 48 years. Sort of a difficult
     thing to hear from the stand, that he hasn’t seen any change in
     48 years.

           I have major concerns, very, very serious concerns, about
     your mental-health history, your potential for rehabilitation and
     your willingness to accept rehabilitation. And a lot of those
     concerns are based on your own words as you talked to me. You
     know, that you’re taking your medications to please people, to get
     out of the jail. And it’s not the reason you should be taking your
     medications.

           You should be taking your medications because you have a
     serious diagnosis that requires those medications to be taken to
     change your body chemistry so that you then will improve the way


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      you deal with everything in life. But that’s not what you told me.
      You told me it’s just sort of like taking an aspirin, it doesn’t have
      - - it doesn’t make a difference to you. It’s the same as taking an
      aspirin. You don’t feel any different effect when you take the
      medications or you don’t take the medications.

            You know, you tell me that you don’t really truly believe you
      have a problem, when the diagnoses go back a very long time
      describing those problems and describing a very serious and
      persistent mental-health diagnosis that does not improve over
      time unless you treat it and take medications.

             So I have very serious concerns about how you have dealt
      with your mental illness, how you will deal with your mental illness
      on the outside.      I have very serious concerns about your
      willingness to accept what you will need to accept as parole
      conditions if and when parole is ever set.

            You know, certainly the condition of mental-health
      treatment, certainly the condition of medications, perhaps the
      condition of not going to your sister’s house but going to
      something like a halfway house or, quite frankly, what I see as
      being more probably appropriate, a CRR, which is a community
      residential center for people with mental-health illnesses so that
      they can be monitored in taking their medications.

            You tell me, well, I don’t know, I have to wait and see, I’ve
      never been in that environment, I’m not sure how I’d react to that.
      It doesn’t give me a whole lot of confidence that you would follow
      that recommendation.

            So, sir, based on all of the testimony today, based on the
      long and involved report of your mitigation specialist, … based on
      the testimony that I heard here today from witnesses, as well as
      your own testimony, sir, at this point, on the charge of first-degree
      murder, I sentence you, sir, to a period of 48 years to life
      imprisonment.

N.T., 9/6/2017, at 49-54.

      Based on the above, it is clear that the PCRA court more than adequately

considered Appellant’s mitigating factors in fashioning his term-of-years to life


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sentence.   Appellant has already served his minimum sentence and is

consequently eligible for parole consideration.    We decline to find that

Appellant’s minimum sentence, essentially a sentence to time served, is

manifestly excessive. Accordingly, after a thorough review of the record and

briefs, we find Appellant has presented no issue on appeal which would

convince us to disturb his judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2018




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