J-S60008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                         Appellee

                    v.

RYAN JAMES HARDWICK,

                         Appellant                  No. 1719 WDA 2016


          Appeal from the Judgment of Sentence October 11, 2016
             In the Court of Common Pleas of Bedford County
            Criminal Division at No(s): CP-05-CR-0000485-2015


BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                              FILED APRIL 3, 2018

      Appellant, Ryan James Hardwick, appeals from the judgment of

sentence entered on October 11, 2016, as made final by the denial of his post-

sentence motion on October 25, 2016. Appellant argues that his sentence

constitutes an illegal de facto sentence of life imprisonment without the

possibility of parole (“LWOP”). During the pendency of this appeal, this Court

issued Commonwealth v. Foust, 2018 WL 988904 (Pa. Super. Feb. 21,

2018), which held that de facto LWOP sentences are illegal when imposed on

juvenile homicide offenders unless the trial court finds, beyond a reasonable

doubt, that the defendant is incapable of rehabilitation. Foust bears on the

legality of Appellant’s sentence and, since the trial court is the appropriate

forum in which to litigate the mixed question of fact and law that must be

answered to resolve the issue, we vacate Appellant’s judgment of sentence


* Retired Justice specially assigned to the Superior Court
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and remand for further proceedings consistent with this memorandum and

Foust.

        The factual background of this case is as follows.   On January 8, 2015,

Appellant (then 15 years old) and Deauntay Moye (“Moye”) (then 16 years

old) arranged to purchase marijuana.         The seller did not arrive for the

transaction. Instead, his girlfriend, Stephanie Waters (“Waters”), arrived to

complete the transaction. During the purchase, Moye shot Waters twice and

Appellant shot Waters’ dog after it began barking. Appellant and Moye placed

Waters in the back seat of her vehicle and began driving around. Although

Waters was still alive, Appellant and Moye consciously chose not to drop her

off at the hospital or to otherwise seek medical attention. Eventually, Waters

died. Appellant and Moye continued smoking marijuana. They then parked

Waters’ vehicle, with her corpse in the back seat, at an abandoned house.

        The procedural history of this case is as follows. On December 3, 2015,

the Commonwealth charged Appellant via criminal information with 17

offenses including, inter alia, criminal homicide.1 Thereafter, the trial court

denied Appellant’s motion to transfer the case to the Juvenile Division. On

May 10, 2016, Appellant pled guilty to nine offenses including, inter alia, first-

degree murder.2 On October 11, 2016, the trial court sentenced Appellant to




1   18 Pa.C.S.A. § 2501.

2   18 Pa.C.S.A. § 2502(a).



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60 years to life imprisonment for the first-degree murder conviction and

concurrent sentences for the remaining eight convictions.       The trial court

denied Appellant’s post-sentence motion on October 25, 2016. This timely

appeal followed.3

        Appellant presents two issues for our review:

     1. Whether a sentence of 60 years to life [imprisonment] for a
        juvenile [convicted of first-degree murder] is cruel and unusual
        punishment . . . ?

     2. Whether the trial court abused its discretion in sentencing
        [Appellant] . . . to 60 years to life in prison?

Appellant’s Brief at 5 (complete capitalization removed).4

        In his first issue, Appellant argues that the sentence constitutes an

illegal de facto LWOP sentence. We review the legality of a sentence de novo

and our scope of review is plenary. Commonwealth v. Melvin, 172 A.3d

14, 19 (Pa. Super. 2017) (citation omitted).      As noted above, during the

pendency of this appeal, this Court issued Foust. In Foust, this Court held

that a de facto LWOP sentence for a juvenile homicide offender is illegal unless

the trial court finds, beyond a reasonable doubt, that the juvenile homicide

offender is incapable of rehabilitation. Foust, 2018 WL 988904 at *10-12.


3  On November 10, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On November 30, 2016, Appellant filed his concise
statement. On January 11, 2017, the trial court issued its Rule 1925(a)
opinion. Both issues raised on appeal are contained in Appellant’s concise
statement.

4   We have re-numbered the issues for ease of disposition.


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      Our review of the certified record indicates that the trial court did not

determine whether it was imposing a de facto LWOP sentence.5 Moreover,

the certified record indicates that neither Appellant nor the Commonwealth

presented evidence at the sentencing hearing from which the trial court could

make an informed finding on the issue. In light of Foust, the trial court must

make such a finding after receiving evidence (most likely including expert

testimony) and legal briefing on the mixed question of fact and law.6

Accordingly, we vacate Appellant’s judgment of sentence and remand for

further proceedings consistent with this memorandum and Foust.          As we

vacate on this basis, we need not address Appellant’s discretionary aspects

claim.

      Judgment of sentence vacated.          Case remanded.        Jurisdiction

relinquished.




5 The trial court alluded to the fact that Appellant would not be eligible for
parole until he was 75 years old. N.T., 10/11/16, at 33. As it imposed the
judgment of sentence prior to Foust, however, it did not determine whether
that constituted a de facto LWOP sentence.

6 Foust did not prescribe a per se rule for what constitutes a de facto LWOP
sentence.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2018




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