J-S16023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THOMAS CHARLES O'NEAL                      :
                                               :
                       Appellant               :   No. 1664 EDA 2019

          Appeal from the Judgment of Sentence Entered April 2, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0002789-1994


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JULY 21, 2020

        Thomas Charles O’Neal appeals from the judgment of sentence entered

after being resentenced pursuant to Miller v. Alabama, 567 U.S. 460 (2012),

and Montgomery v. Louisiana, ––– U.S. ––––, 136 S.Ct. 718 (2016). He

maintains that the trial court imposed an improper de facto life sentence. We

affirm.

        In 1995, O’Neal pled guilty to first-degree murder and the trial court

sentenced him to life without the possibility of parole [“LWOP”].1 O’Neal was

17 years old when he committed the crime. After a series of unsuccessful

PCRA petitions, in April 2019 the court resentenced O’Neal to 48 years to life




____________________________________________


1   18 Pa.C.S.A. § 2502(a).
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imprisonment.2 O’Neal filed a post-sentence motion, which the court denied.

This timely appeal followed.

        O’Neal presents the following issue to this Court:

           Whether the trial court imposed an constitutionally
           impermissible de facto life sentence when it imposed a
           sentence of 48 years to life on a juvenile offender convicted
           of first degree murder, where the Commonwealth did not
           seek the imposition of life in prison without the possibility of
           parole and where there was no finding that [O’Neal] was
           permanently incorrigible, irreparably corrupt or irretrievably
           depraved[?]

O’Neal’s Br. at 3.

        O’Neal’s   claim    challenges     the   legality   of   his   sentence.   “The

determination as to whether a trial court imposed an illegal sentence is a

question of law; an appellate court’s standard of review in cases dealing with

questions of law is plenary.” Commonwealth v. Crosley, 180 A.3d 761, 771

(Pa.Super. 2018), appeal denied, 195 A.3d 166 (Pa. 2018) (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.” Commonwealth v. Foust, 180 A.3d 416, 431

(Pa.Super. 2018). The Foust Court declined to draw a “bright line in this case

delineating what constitutes a de facto LWOP sentence and what constitutes

a constitutional term-of-years sentence.” Id. at 438. However, it held that

____________________________________________


2   Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.

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“the individual sentences must be considered” when determining the

constitutionality of the sentence and whether it constitutes a de facto life

sentence. Id. at 434.

      In Commonwealth v. Bebout, this Court held that a term of 45 years

to life did not amount to a de facto life sentence. Bebout, 186 A.3d 462, 469

(Pa.Super. 2018). The Court stated that [“t]he key factor in considering the

upper limit of what constitutes a constitutional sentence . . . appears to be

whether there is ‘some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.’” Id. at 468 (quoting Graham v.

Florida, 560 U.S. 48, 75 (2010)). It concluded that there was a meaningful

opportunity where it was “at least . . . plausible that one could survive until

the minimum release date with some consequential likelihood that a non-

trivial amount of time at liberty awaits.” Id. (emphasis omitted). Applying this

standard, the Court determined that Bebout, who was 15 years old at the time

of the crime, would be eligible for parole at age 60. Id. Thus, it concluded that

“[Bebout’s] 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 [Bebout] could live many years past his earliest possible release date.”

Id. at 469.

      In the instant case, O’Neal maintains that though the court did not

impose a life sentence, his sentence in effect amounts to one. See O’Neal’s

Br. at 5. He alleges that despite the possibility of being paroled at 66 years

old, “he would only have the opportunity for parole beyond his expected

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retirement age with no money and little potential for employment.” Id. at 6.

O’Neal’s claim is meritless.

      O’Neal was 17 years old at the time he committed the murder. O’Neal

would be eligible for parole at 65 years old, only five years longer than the

appellant in Bebout. As in Bebout, we conclude that “it is at least plausible,

and perhaps even likely, that [O’Neal] could live many years past his earliest

possible release date.” Bebout, 186 A.3d at 469. We therefore conclude that

the court’s sentence of 48 years to life imprisonment is not a de facto life

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/20




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