J-S54006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RICARDO ALPHONSO PEOPLES                 :
                                          :
                    Appellant             :   No. 1298 WDA 2017

                    Appeal from the Order June 30, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0008708-1997


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J.:                      FILED NOVEMBER 09, 2018

      Ricardo Peoples appeals from the judgment of sentence entered on one

conviction for first-degree murder and one conviction for second-degree

murder. He contends the consecutive sentences of twenty years to life

constitute an abuse of the court’s sentencing discretion. In addition, his court

appointed attorney, Travis J. Dunn, Esquire, seeks permission to withdraw as

counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm and grant

attorney Dunn permission to withdraw.

      Peoples was seventeen years old when he shot and killed Orlando Price

and Dionda Morant in the course of robbing them. A jury convicted Peoples of

the first-degree murder of Price and the second-degree murder of Morant. The
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court subsequently imposed the then-mandatory sentences of life in prison

without possibility of parole for each of the murders consecutively.

      On July 9, 2012, Peoples filed his second PCRA petition, asserting his

sentences of life without parole were unconstitutional under Miller v.

Alabama,     567   U.S.   460    (2012).    Relying   on    Commonwealth       v.

Cunningham, 81 A.3d 1 (Pa. 2013) (holding that Miller could not provide

relief in collateral proceedings), the PCRA court denied People’s PCRA petition.

      However, in 2016, while the denial of People’s petition was on appeal to

the Supreme Court of Pennsylvania, the Supreme Court of the United States

implicitly overruled Cunningham and held that Miller provided a basis for

relief in collateral proceedings. See Montgomery v. Louisiana, 136 S.Ct.

718 (2016). The Supreme Court of Pennsylvania remanded Peoples’s appeal

to this Court, and we reversed the judgment of sentence and remanded the

case to the Court of Common Pleas for re-sentencing.

      After a new sentencing hearing, the court sentenced Peoples to

consecutive terms of imprisonment of twenty years to life in prison. Peoples

filed a post-sentence motion, seeking reconsideration of the sentence. The

court denied reconsideration, and Peoples filed this timely appeal.

      Prior to addressing the merits of Peoples’s requested appeal, we must

examine    Attorney   Dunn’s    request    to   withdraw.   Attorney   Dunn   has

substantially complied with the mandated procedure for withdrawing as

counsel. See Santiago, 978 A.2d at 361 (articulating Anders requirements);


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Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing

that counsel must inform client by letter of rights to proceed once counsel

moves to withdraw and append a copy of the letter to the petition). Peoples

did not file a response.

      As counsel has met his technical obligation to withdraw, we must now

“make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is in fact wholly frivolous.”

Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super. 2015)

(citation omitted).

      Counsel has identified a single issue Peoples believes entitles him to

relief. Peoples asserts the court abused its discretion in imposing sentence.

He concedes this argument raises a challenge to the discretionary aspects of

his sentence. See Appellant’s Brief, at 6. “A challenge to the discretionary

aspects of a sentence must be considered a petition for permission to appeal,

as the right to pursue such a claim is not absolute.” Commonwealth v.

McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted). “Two

requirements must be met before we will review this challenge on its merits.”

Id. (citation omitted).

      “First, an appellant must set forth in his brief a concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

aspects of a sentence.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).

“Second, the appellant must show that there is a substantial question that the


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sentence imposed is not appropriate under the Sentencing Code.” Id. (citation

omitted). That is, “the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying the

appeal, which are necessary only to decide the appeal on the merits.” Id.

(citation and emphasis omitted). Here, Peoples has preserved his arguments

through a post-sentence motion.

      However, his appellate brief does not contain the requisite Rule 2119(f)

concise statement. The Commonwealth, while noting the absence of the Rule

2119(f) statement, has explicitly exercised its right not to object to this

violation of our Rules of Appellate Procedure. See Appellee’s Brief, at 22.

      “[I]n the absence of any objection from the Commonwealth, we are

empowered to review claims that otherwise fail to comply with Rule 2119(f).”

Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa. Super. 2005) (citation

omitted). Peoples and the Commonwealth have fully briefed this issue in this

Court. In light of the detailed arguments presented by the parties and Attorney

Dunn’s’s petition to withdraw, we must address Peoples’s challenges. See

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating that


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where counsel files an Anders brief, this Court will review discretionary

aspects of sentencing claims that were not otherwise preserved). See also

Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006) (exercising

review of claim in absence of Rule 2119(f) statement where its absence did

not hamper ability to review).1 Therefore, we must determine if any of

Peoples’s claims raise substantial questions for our review.

       First, Peoples argues the sentence imposed was “a de facto life sentence

without parole … in violation of his Eighth Amendment rights.” Appellant’s

Brief, at 15. As both attorney Dunn and the Commonwealth note, this Court

has recently rejected this argument under similar circumstances. See

Commonwealth v. Foust, 180 A.3d 416, 438 (Pa. Super. 2018) (finding

consecutive 30 years’ to life in prison sentences do not constitute de facto life

without parole sentences). We agree with counsel’s assessment that this claim

is meritless.

       Peoples also argues the court erred in imposing a sentence that does

not provide him a meaningful opportunity to obtain release. He contends that

Graham v. Florida, 560 U.S. 48 (2010) (holding that a juvenile, non-

homicide offender must have a meaningful opportunity to obtain release), and

United States v. Corey Grant, 887 F.3d 131 (3d Cir. 2018), reh’g en banc



____________________________________________


1Additionally, Appellant’s brief does not comply with Pa.R.A.P. 2111(d), which
requires the statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) to be appended to the brief of the appellant.

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granted, opinion vacated, 905 F.3d 285 (3d Cir. 2018) (holding that a juvenile

offender who could not obtain parole until age 72 did not have a meaningful

opportunity to obtain release), establish that his sentence is unconstitutional.

      Even if we were to accept Grant as controlling law in this case, it is

clearly distinguishable. Peoples has an opportunity to obtain parole at age 58.

Considering he has been convicted of two murders, we can find nothing

unreasonable with that opportunity. Peoples’s second issue is meritless.

      Our independent review of the record reveals no other, non-frivolous

issues that he could raise on appeal.

      We affirm Peoples’s judgment of sentence and grant counsel’s petition

to withdraw.

      Judgment of sentence affirmed. Petition to withdraw as counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2018




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