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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

               v.


    WILLIAM HINES,

                     Appellant                    No. 1245 WDA 2017

         Appeal from the Judgment of Sentence Entered July 18, 2017
              in the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0013322-1970

BEFORE:     GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED JUNE 03, 2019

       William Hines ("Hines") appeals from the judgment of sentence imposed

after he was resentenced pursuant to Miller v. Alabama, 567 U.S. 460

(2012), and Montgomery v. Louisiana, 136      S. Ct. 718   (2016).1,2 We affirm.

       In 1970, Hines brutally assaulted, raped, and murdered seventeen-year

old Eileen Taylor ("Taylor"). Taylor's nude body was discovered behind a Giant

Eagle store, covered in lacerations and bruises. There were superficial lesions

on her throat, bruises on her breasts, and approximately 100 puncture wounds



1The Supreme Court in Miller held that sentencing schemes mandating life
in prison without parole ("LWOP") for defendants who committed their crimes
while under the age of eighteen violate the Eighth Amendment's prohibition
on "cruel and unusual punishments." Miller, 567 U.S. at 465.

2The Supreme Court in Montgomery held that the Miller decision announced
a new substantive rule of constitutional law that applies retroactively.
Montgomery, 136 S. Ct. at 736.
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on the left side of her body. A piece of wood found at the scene, tapered at

one end, splintered and sharp, had been forcefully inserted into Taylor,

causing severe vaginal mutilation.         Police also discovered          a   stone lodged in

the back of Taylor's head, which had fractured her skull and caused it to

become concave. An investigation led to Hines's arrest.

        On September 29, 1970, Hines, who was 15 years old at the time, pled

guilty to criminal homicide.          Following   a       degree of guilt hearing, held on

October 2, 1970, the trial court found Hines guilty of murder in the first

degree.3 The trial court sentenced Hines to           a    mandatory prison term of LWOP.

Hines appealed, and our Supreme Court ultimately reversed his conviction,

vacated his guilty plea, and remanded for             a   jury trial. See Commonwealth
v. Hines, 437 A.2d 1180 (Pa. 1981).               In 1982,       a   jury convicted Hines of
murder in the first degree, and the trial court sentenced him to                 a   mandatory

prison term of LWOP. This Court affirmed the judgment of sentence, and our

Supreme Court denied Hines's Petition for allowance of appeal.                            See

Commonwealth v. Hines, 491 A.2d 907                   (Pa. Super. 1985).

        Hines    subsequently filed several           unsuccessful       Petitions   for relief

pursuant to the Post Conviction Relief Act ("PCRA").4 Nonetheless, Hine's

most recent PCRA Petition, filed on February 23, 2016, resulted in                           a

resentencing hearing pursuant to Miller.                   After stating on the record its



3   See 18 Pa.C.S.A.   §   2502(a).

4   See 42 Pa.C.S.A. §§ 9541-9546.
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considerations in fashioning the new sentence, the trial court resentenced

Hines, on July 18, 2017, to 50 years to life in prison, with credit for time

served.     Hines filed   a   timely post -sentence Motion, which the trial court
denied. Thereafter, Hines filed      a   timely Notice of Appeal and   a   court -ordered

Pa.R.A.P. 1925(b) Concise Statement.

        On appeal, Hines raises the following question      for our review:
        Did the  trial court abuse its discretion in imposing a manifestly
        excessive and unreasonable sentence of 50 years to life
        [in prison], which far exceeds the minimum term of 35 years
        under 18 Pa.C.S.[A.] § 1102.1[(a)(1)], which the court is not
        bound by, but should give due consideration to in this case, and
        which did not take into account all of the sentencing factors under
        the [S]entencing [C]ode?
Brief for Appellant at 5.

        Hines asserts that the trial court failed to consider all relevant,

mitigating factors when it resentenced him in excess of the statutory

minimum.      Brief for Appellant at 24-25. Specifically, Hines claims that the

trial court did not adequately consider, among other things, that
             "he was able to mature, recover mentally and emotionally from
             the physical abuse he suffered as a child, learn to manage his
             anger, and understand the impact, risks and consequences of his
             actions" while he was in prison;
              he began abusing alcohol and illegal substances at age 11, and,
              until recently, continued to abuse such substances;
             he achieved a degree from Villanova, attended therapy, learned
             janitorial skills, and became an artist while incarcerated; and
                 he had been   fully rehabilitated.
Id. at 25-26,     30.   Additionally, Hines contends that the trial court failed to

consider whether his sentence was the "least stringent necessary to protect

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the community and to serve [his] rehabilitative needs...."             Id. at   30. Further,

Hines claims that the trial court "failed to give any reasons [to support the

sentence,] having regard to the nature and circumstances of the crime and

[his] history, character, and condition..." or any other factors "statutorily

required under 42 Pa.C.S.A.     §   9721(b) or 42 Pa.C.S.A.            §   9725." Brief for
Appellant at 30-31.

        Hines's claim challenges the discretionary aspects of his sentence. See

Commonwealth            v.    Pennington,                 751       A.2d        212,    215

(Pa. Super. 2000) (stating    that "[an appellant who] claims his sentence                is

excessive [] does not challenge its legality;                   rather, he challenges its

discretionary aspects.").      "Challenges to the discretionary aspects of

sentencing do not entitle an appellant to review as of right." Commonwealth

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

              Prior to reaching the merits of a discretionary sentencing
        issue, it must be determined: (1) whether [Hines] filed a timely
        notice of appeal, pursuant to Pa.R.A.P. 902 and 903; (2) whether
        [Hines] properly preserved [the issue] at sentencing or in a
        motion to reconsider and modify sentence, pursuant to
        Pa.R.Crim.P. 720; (3) whether [Hines's] brief has a fatal defect,
        pursuant to 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, pursuant to 42 Pa.C.S.A.
        §   9781(b).
Commonwealth v. Schrader,            141    A.3d 558, 563 (Pa. Super. 2016)

(citations omitted).

        The record reveals that Hines filed       a    timely Notice of Appeal, properly

preserved the substance of his appeal in      a       post -sentence Motion, satisfied his


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obligation under Pa.R.A.P. 2119(f), and raised              a   substantial question. See

Commonwealth v. Johnson, 125 A.3d 822, 826                       (Pa. Super. 2015) (stating

that "[t]his Court has held that an excessive sentence claim-in conjunction

with an assertion that the court failed to consider mitigating factors-raises              a

substantial question." (citation omitted)). Thus, we will address the merits of

Hines's appeal.

         Our standard of review in an appeal from the discretionary aspects of

sentencing       is   well settled:

        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. An abuse of discretion is
        more than just an error in judgment, and, on appeal, the trial
        court will not be found to have abused its discretion unless the
        record discloses that the judgment exercised was manifestly
        unreasonable, or the result of partiality, prejudice, bias, or ill -will.
Commonwealth v. Paul, 925 A.2d 825, 829                   (Pa. Super. 2007) (citation and

quotation marks omitted).

        Section 9721(b) requires        a   court to "follow the general principle that the

sentence imposed should [be] consistent with the protection of the public, the

gravity of the offense as it relates to the impact on the life of the victim and

on the community, and the rehabilitative needs of the defendant."                        42

Pa.C.S.A.    §        9721(b).    Section 9721(b) also directs the court to consider

relevant sentencing guidelines when fashioning             a    sentence.    Id.
        Section 1102.1(a)(1) requires the imposition of               a     35 -year minimum

sentence for          a   minor who commits murder in the first degree. 18 Pa.C.S.A.



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§    1102.1(a)(1). Additionally, Section 1102.1(a)(1) permits the imposition of

a   life sentence.

        Section 9725 provides that          a   court "shall impose         a   sentence of total

confinement if, having regard to the nature and circumstances of crime[,] and

the history, character, and condition of defendant," confinement                         is   necessary

because there is an undue risk that the defendant will commit another crime;

the defendant needs correctional treatment that would most effectively be

offered by commitment to institution; or                a   lesser sentence would depreciate

the seriousness of the crime. 42 Pa.C.S.A.                  §   9725.

        In challenging his sentence, Hines emphasizes that his minimum

sentence    is   greater than 35 years.          Brief for Appellant at 25. The 35 -year

sentence mandated by Section 1102.1(a)(1) is                     a   minimum sentence. Section

1102.1(a)(1) authorizes not only        a   life sentence, but also LWOP, for the crime

Hines committed.            Section 1102.1 is inapplicable in this case, as Hines's

conviction predates the statute insofar as Section 1102.1                                 pertains to

convictions occurring after June 24, 2012.                      Nonetheless, courts should be

guided by the relevant sentencing statutes in fashioning                        a   sentence.      See

Commonwealth v. Batts, 163 A.3d 410, 458                              (Pa. 2017);       see also 42

Pa.C.S.A.    §   9721(b).

        Hines's sentence of 50 years to life in prison fits squarely within the

guidelines provided by Section 1102.1(a)(1). Accordingly, Hines's argument

that his sentence      is    excessive is without merit.                See Commonwealth v.

Boyer, 856 A.2d 149, 154           (Pa. Super. 2004)(providing             that     a   sentence that

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falls below the maximum sentence for                 a   crime cannot be excessive). Thus,

we cannot afford Hines relief on this basis.

           Hines also asserts that the trial court did not give due consideration to

his alleged rehabilitation, or other mitigating factors.                    At the resentencing

hearing,       Hines    presented       the     testimony      of   Alice    Applegate,   Ph.D.

("Dr. Applegate"),        a   forensic psychologist, who testified that, after completing

a   psychological evaluation of Hines, she could say that he "has used his many

years [in prison] to rehabilitate himself. He is an artist. He has done murals

... is a   past athlete   ...   and he's become      a   student. [H]e has used the past 47

years to mature, to change, to grow and to come to this point.                            He is

rehabilitated."        N.T., 7/18/17, 34.          Additionally, Hines relies on his own

testimony that he "grew up,"            is   "sorry for killing the person [he's] in prison

for," and doesn't "see [the victim]           as an enemy" in order to bolster his position

that incarceration        is no   longer necessary.5 Brief for Appellant at 30. Hines

further contends that the trial court failed to consider the nature and

circumstances of the crime, as well as Hines's history, character and condition.

Brief for Appellant at 30-31.

           The record belies Hines's argument.              To the contrary, the trial court

considered both the nature of the crime and the impact it had on the victim's



5 We note that although Hines highlights Dr. Applegate's favorable testimony,
the trial court also heard testimony from Dr. Applegate as to Hines's recent
and continuous "misconducts" at the prison, including raping other inmates,
disobeying orders, fighting, possessing a shiv and metal pipe, and using
solvents. See N.T., 7/18/17, 38.
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family. See N.T., 7/18/17, 80, 81-82 (wherein the trial court stated that it

"considered again the nature of the offense," as well as the testimony from

the victim's family as to the "long-lasting effect that this case has had [] on

them," and the detailed testimony from the police officer who was at the scene
of crime); see also id. at 7-15 (wherein the victim's family members testified

as to the deep depression of the     victim's parents, their undergoing mental

health procedures and therapy, the family's eventual relocation outside of the

community, and the premature death and job loss of the victim's father

following the victim's rape and murder).

        The court also considered testimony from Hines's friends and family

regarding his changed character, articulable achievements while incarcerated,

socio-economic background, and familial upbringing. See id. at 80 (wherein

the trial court stated that it "has considered [Hines's] age at the time that this

offense was committed, [his] culpability for the offense    ...   [and] his ability to

change. In evidence [], he's changed. Some of it very positive. Some of it

not so positive.    It appears that he's made effective   use of the time that he

spent in prison."); see also id. at 81-82 (wherein the trial court stated that

it    considered   Hines's   background    and   achievements      outlined   in   the

Memorandum in aid of sentencing, as well as testimony regarding the impact

of the case on Hines's family); id. at 51 (discussing Hines's personality

development);      id. at 54 (discussing the "racial strife and conflict            in

Homewood," where Hines was raised); id. at 57 (discussing Hines's academic



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and artistic advancements); id. at 62 (discussing Hines's upbringing and

family troubles).

        Additionally, the trial court considered both the expert testimony and

evaluations of Dr. Applegate.            See id. at 80-81.      Lastly, the trial court

reviewed   a   Memorandum in aid of sentencing, prepared by Hines, and relied

on its substance in resentencing Hines. See             id. at 78 (wherein the court
temporarily recessed from the resentencing hearing in order to "go over the

Memorandum[,]         ...   [as it was] fairly lengthy with some exhibits"); see also

id. at 82 (wherein the trial court specifically mentions its consideration of the
information contained in Hines's Memorandum).

        A review of the record demonstrates         that the trial court referenced the

appropriate      sentencing       guidelines,    made   the   requisite   inquiries   and

considerations, including evidence favorable to Hines, and imposed           a   sentence

that not only    is   appropriate given the seriousness of the crime, but also          is

clearly permissible under the law. As such, we cannot find that the trial court

abused its discretion, and affirm the judgment of sentence.

        Judgment of sentence affirmed.

Judgment Entered.


                  7.,,ezetr,r1P-
J   seph D. Seletyn, Es
Prothonotary


Date: 6/3/2019

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