Opinion
1538 MDA 2020
08-24-2021
COMMONWEALTH OF PENNSYLVANIA v. JOHN EARL LEBO, JR. Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 30, 2020 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-MD-0000335-1984
Joseph D. Seletyn, Esq.BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM
NICHOLS, J.
Appellant John Earl Lebo, Jr. appeals pro se from the judgment of sentence of two consecutive sentences of life without parole (LWOP), after his prior juvenile LWOP sentences were vacated. Appellant argues that the Commonwealth failed to prove he was permanently incorrigible. We affirm based on the trial court's opinion and deny Appellant's application for relief.
We state the facts and procedural history as presented by the trial court:
On January 31, 1984, [Appellant] was charged with two counts of first-degree murder, two counts of kidnapping, indecent assault, and theft by unlawful taking. [Appellant] was sixteen years old at the time of the murders. His victims were his aunt, Lana Hahn, and Ms. Hahn's two-year old child, Morgan Hahn. Acting alone, [Appellant] killed them both after taking his victims from their residence at gun point and making a long trek up a snow-covered mountain. Prior to leaving the residence, [Appellant] attempted to rape Ms. Hahn at knifepoint and attempted to do so a second time after they reached the top of the mountain.
Following a guilty plea on October 5, 1984, the [trial court] sentenced [Appellant] to two consecutive terms of life imprisonment without parole. [Appellant did not appeal.
Following a Post-Conviction Relief Act petition, and p]ursuant to Miller v. Alabama, 567 U.S. 460 (2012), Montgomery v. Louisiana, 136 S.Ct. 718 (2016) and Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017), [Appellant's] sentence was vacated and he was awarded a new sentencing hearing.
Trial Ct. Op., 2/25/21, at 1.
On October 30, 2020, the trial court conducted a sentencing hearing. The trial court summarized the extensive testimony presented at that hearing as follows:
The Commonwealth first called Trooper Daniel Wertz, a retired member of the Pennsylvania State Police who was involved in the investigation of the double murder leading to Appellant's arrest. Trooper Wertz testified that [Appellant] never expressed remorse for his crimes. [Appellant] demonstrated to Trooper Wertz how he shot two-year-old Morgan Hahn, telling the trooper that he blew him off of a rock. After relaying that description to the trooper, [Appellant] smiled at him. When asked why he shot the child, [Appellant] told Trooper Wertz that the boy was crying and making noise. Trooper Wertz further testified that [Appellant] had his victims make a 50-minute trek in very heavy snow from their home to the top of a mountain, where [Appellant] executed his plan to kill Ms. Hahn and her young son. On cross-examination Trooper Wertz acknowledged that he has had no interaction with [Appellant] since he was incarcerated.
John O'Brien, M.D., J.D., testified for the Commonwealth as an expert in forensic psychiatry. While Dr. O'Brien had requested an in-person examination of [Appellant], he was informed that [Appellant] was unavailable for an evaluation. Nonetheless, Dr. O'Brien was able to gather sufficient information to render an opinion/report. Dr. O'Brien reviewed Dauphin County Children & Youth documents, [Appellant's] juvenile case record,
Pennsylvania State Police records, extensive presentence mental health evaluations, transcript of [Appellant's] sentencing hearing, correctional records from the Pennsylvania Department of Corrections [(DOC)], a juvenile lifer packet, numerous pro se filings signed by [Appellant], and a letter addressed to the District Attorney's Office from [Appellant's] sister, Bonnie Edwards.
The records make reference to [Appellant's] first episodes of misbehavior occurring in kindergarten, so over time he had been evaluated multiple times by a variety of professionals. When [Appellant] was eight years old, Dauphin County Children & Youth began supervision and the records make reference to his evaluation in Kindergarten, and a representation by his mother that he was unmanageable at home. [Appellant] had numerous residential and treatment and therapeutic placements between 1980 and 1983 when he was between 13 and 16 years old. His juvenile case record revealed numerous charges and behavioral deterioration between the ages of 12 and 14. [Appellant] was discharged from a program to live with his paternal grandmother in July of 1983. His behavior appeared to be improving during that time until January of 1984, when he committed the murders. [Appellant's] police records between 1979 and 1981 included theft, arson, criminal mischief, burglary, burglary associated with home invasion, and attempted burglary.
Dr. O'Brien testified that while he reviewed extensive and detailed records and evaluations up until the crimes at issue, he was surprised at how little information was included in [Appellant's DOC] records since [Appellant's] incarceration in 1984. Notwithstanding the nature and gravity of his crimes, [Appellant] has undergone very little evaluation and treatment. Dr. O'Brien also noted that there is a great deal of material that has been generated by [Appellant] himself, including a vast amount of pro se filings, the most salient feature being that he alleges his innocence in those materials.
Dr. O'Brien pointed out that there is a striking consensus in all of [Appellant]'s evaluations that he does not have a psychiatric condition or illness. While there is evidence to support borderline intellectual functioning, the pleadings do not depict [Appellant] as incapable of making an argument or coming to a point. However, the records do repeatedly make reference to emotional detachment, marginal adjustment, poor response to placements, consistent minimization of responsibility, and no capacity for empathy. Dr. O'Brien opined that these traits are all consistent with an individual who has distanced himself actively from the offense and not really participated in anything focused on addressing the issues underlying it.
In terms of incorrigibility, one of the things Dr. O'Brien found most striking is that [Appellant] has been repeatedly documented to be unresponsive to efforts to treat him, and the word "incorrigibility" actually appears in his records on a number of occasions. The refractory quality of [Appellant's] behavioral problems is documented across the board in every setting - parents, foster care placements, juvenile placements, and therapeutic juvenile placements. His behavior was provocative and even sadistic. . . . He has participated in work while [in prison], enjoys making money, and has demonstrated himself to be able to behave. Dr. O'Brien testified that [Appellant] was not being pushed to focus on engaging himself in participating in programming of a therapeutic nature appropriate for his history and was able to remain complacent without anyone prodding him to do otherwise. [Dr. O'Brien also testified that it] is also possible that [Appellant's] behavior in prison is a manifestation of the benefits of structure and having an easy route in terms of not dealing with the issues related to his offenses. Dr. O'Brien relayed that it is not surprising for him to see a case where an inmate has a terrible criminal record and then they get incarcerated and they do not behave as they behaved outside; they adjust well to prison, possibly in light of the structure. Given these considerations, including the fact that the crimes reflect a shocking degree of depravity and were significantly egregious, Dr. O'Brien's conclusion to a reasonable degree of medical certainty is that [Appellant] has not demonstrated himself to be capable of rehabilitation.
Dr. Susan Rushing, [Esq., ] also a forensic psychiatric expert, was called as a witness for [Appellant]. Dr. Rushing met with
[Appellant] and also reviewed the extensive records that were available. Like Dr. O'Brien, Dr. Rushing noted very little in terms of [Appellant's] files during his term of incarceration. Prior to his imprisonment, Dr. Rushing testified as to [Appellant's] intellectual limitations and repeated findings of his lack of ability to relate to others, lack of attachment to people who should have been parental figures in his life, along with traits described as autistic qualities. There was social deprivation from a very young age. [Appellant's] mom was intellectually disabled and his father was in and out of drug rehabilitation. Moreover, the records contain references that [Appellant] was subject to both physical and sexual abuse. Unlike Dr. O'Brien, Dr. Rushing does not view [Appellant's] incarceration time as a period of lack of improvement. Her interpretation is that [Appellant] was put into a structured environment with appropriate support in terms of being fed and given an opportunity to work, which he did.
On cross[-]examination, Dr. Rushing was questioned about [Appellant's] risk of future danger, as suggested in [Appellant's] sister's letter to the District Attorney's Office. In such letter, Bonnie Edwards asked that her brother not be allowed to go free, that these crimes were premeditated and involved his own family[:] "Please, I beg and implore you to please reconsider letting him free. He's been in jail for over 30 years. He has no family. He has no one on the outside. He will not become anything but do more crime." Moreover, a summary update from the DOC on January 10, 2014 was referenced. Specifically, [Appellant] gave a summary of the killing and described the sexual aspect of the offense and murdering of both victims, indicating he shot the child because the child started to cry. Dr. Rushing concluded to a reasonable degree of medical certainty that, having not seen continued violence after incarceration, [Appellant's] record does not speak to someone who is permanently incorrigible.Id. at 3-7 (citations omitted and formatting altered). The Commonwealth requested that the trial court reimpose consecutive life sentences. N.T. Sentencing Hr'g, 10/30/20, at 77-78.
Appellant's counsel declined to make Appellant available to Dr. O'Brien. N.T. Sentencing Hr'g, 10/30/20, at 39.
At the conclusion of the hearing, the trial court again sentenced Appellant to two consecutive terms of LWOP. The trial court reasoned, among other things, that Appellant is permanently incorrigible. Id. at 85. Appellant timely filed a counseled post-sentence motion, which the trial court denied on November 16, 2020.
Appellant's counsel filed a timely notice of appeal and a timely court-ordered Pa.R.A.P. 1925(b) statement, which claimed that the Commonwealth failed to present sufficient evidence that he is permanently incorrigible and that the trial court abused its discretion by imposing sentences of LWOP. The trial court filed a responsive Rule 1925(b) decision addressing Appellant's claims.
Meanwhile, Appellant requested, and the trial court held, a Grazier hearing. On February 25, 2021, the trial court granted Appellant's request to represent himself pro se, and he subsequently filed a pro se appellate brief with this Court. On August 2, 2021, Appellant subsequently filed an application for relief in this Court requesting that this Court turn over various documents in his record. Appl. for Relief, 8/2/21.
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
We paraphrase the issues raised in Appellant's pro se appellate brief, which we have reordered, as follows:
Appellant's pro se brief violates numerous Rules of Appellate Procedure, including a failure to include a statement of questions involved under Pa.R.A.P. 2116. We decline to find waiver, however, as we are able to discern Appellant's arguments.
1. Appellant was never arrested or indicted by a grand jury.
2. Appellant has been falsely imprisoned because the [DOC] did not receive a signed BC-300B form.
3. The record establishes he was found guilty by a jury on the same day he pled guilty, which Appellant contends is impossible.
4. The criminal information was not signed by the district attorney.
5. Appellant appears to argue he should have been tried by the juvenile court.
6. The Commonwealth failed to establish Appellant was permanently incorrigible or unable to be rehabilitated.
Initially, Appellant's record reflects a signed BC-300B form, which is now known as a DC-300B form. Appellant appears to argue that because the DOC did not receive the form from the trial court per 42 Pa.C.S. § 9764, the DOC has no authority to detain him. Appellant's Brief at 2 (unpaginated). In Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014), this Court rejected a similar argument:
The language and structure of section 9764, viewed in context, make clear that the statute pertains not to the DOC's authority to detain a duly-sentenced prisoner, but, rather, sets forth the procedures and prerogatives associated with the transfer of an inmate from county to state detention. . . . Moreover, section 9764 neither expressly vests, nor implies the vestiture, in a prisoner of any remedy for deviation from the procedures prescribed within.Id. at 371 (footnote omitted); see generally 42 Pa.C.S. § 9764. Therefore, although we hold, infra, that Appellant waived this issue, it lacks merit.
Appellant's Brief at 1-7 (unpaginated).
We need not summarize Appellant's arguments in support of his initial five issues. It is well-settled that "[a]ny issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived." Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Here, Appellant failed to raise his initial five issues in his Rule 1925(b) statement, and therefore has waived them for appellate review. See id.
In support of his last issue, Appellant has argued, in a single sentence, that under Miller, the Commonwealth "never proved that [he] was ever permanently incorrigible or unable to be rehabilitated . . . ." Appellant's Brief at 6 (unpaginated).
The Commonwealth did not address the merits and instead argued that Appellant waived all of his issues by failing to file a brief that conformed with the Rules of Appellate Procedure. Commonwealth's Brief at 4.
"A claim challenging a sentencing court's legal authority to impose a particular sentence presents a question regarding the legality of the sentence." Commonwealth v. Clary, 226 A.3d 571, 580-81 (Pa. Super. 2020) (citation omitted). Our Supreme Court has explained:
"[I]n the absence of the sentencing court reaching a conclusion, supported by competent evidence, that the defendant will forever be incorrigible, without any hope for rehabilitation, a life-without-parole sentence imposed on a juvenile is illegal, as it is beyond the court's power to impose." Batts, 163 A.3d at 435, abrogated on other grounds by Jones v. Mississippi, 141 S.Ct. 1307 (2021). "The Jones Court confirmed that mandatory sentences of life without the possibility [of parole] for juvenile offenders violate the cruel and unusual punishment clause of the Eighth Amendment of the United States Constitution, but held that sentencing schemes which allow the discretionary imposition of life sentences pass constitutional muster and need not require a separate factual finding of permanent incorrigibility before doing so." Commonwealth v. McGrath, A.3d, 2021 WL 2641915, *2 n.1 (Pa. Super. 2021). We note, however, that Jones did not prevent "the States from imposing additional sentencing limits in cases involving defendants under 18 convicted of murder," and permits States to "require sentencers to make extra factual findings before sentencing an offender under 18 to life without parole." Jones, 141 S.Ct. at 1323. Therefore, Batts continues to bind this Court when the Commonwealth requests an LWOP sentence for a juvenile. McGrath, 2021 WL 2641915 at *4.
[W]e must review the sentencing court's legal conclusion that [the defendant] is eligible to receive a sentence of life without parole pursuant to a de novo standard and plenary scope of review. Because this legal conclusion is premised upon the presentation of testimony and the sentencing court's credibility determinations, it presents a mixed question of fact and law. In such
circumstances, we defer to the findings of fact made by the sentencing court as long as they are supported by competent evidence, but give no deference to that court's legal conclusions.Batts, 163 A.3d at 435-36 (citations omitted and formatting altered).
The McGrath Court explained that in Batts, our Supreme Court
concluded that to effectuate the mandate of Miller and [Montgomery, ] it would provide a procedural safeguard to ensure that LWOP sentences are meted out only to the rarest of juvenile offenders whose crimes reflect permanent incorrigibility by recognizing a presumption against the imposition of a LWOP sentence for a juvenile offender. Therefore, if the Commonwealth seeks a LWOP sentence for a juvenile offender, it must prove beyond a reasonable doubt that the offender exhibits such irretrievable depravity that rehabilitation is impossible. If the Commonwealth satisfies its burden of proof, the sentencing court has discretion to impose a LWOP sentence upon the juvenile offender.
When the Commonwealth requests a sentence of LWOP, the sentencing court must consider the Miller and Section 1102.1(d) factors on the record, before imposing a sentence. If the court imposes the requested LWOP sentence, it must find that the juvenile offender is permanently incorrigible and that rehabilitation would be impossible.McGrath, 2021 WL 2641915 at *3-4 (citations and footnotes omitted and formatting altered).
The Section 1102.1(d) factors follow:
(d) Findings.-In determining whether to impose a sentence of life without parole under subsection (a), the court shall consider and make findings on the record regarding the following:
(1) The impact of the offense on each victim, including oral and written victim impact statements made or submitted by family members of the victim detailing the physical, psychological and economic effects of the crime on the victim and the victim's family. A victim impact statement may include comment on the sentence of the defendant.
(2) The impact of the offense on the community.
(3) The threat to the safety of the public or any individual posed by the defendant.
(4) The nature and circumstances of the offense committed by the defendant.
(5) The degree of the defendant's culpability.
(6) Guidelines for sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing.
(7) Age-related characteristics of the defendant, including: (i) Age.
(ii) Mental capacity.
(iii) Maturity.
(iv) The degree of criminal sophistication exhibited by the defendant.
(v) The nature and extent of any prior delinquent or criminal history, including the success or failure of any previous attempts by the court to rehabilitate the defendant.
(vi) Probation or institutional reports.
(vii) Other relevant factors. 18 Pa.C.S. § 1102.1.
After careful review of the record, including the resentencing transcript, we conclude that the trial court thoroughly reviewed the record and considered the testimony and evidence introduced at the resentencing hearing. See Trial Ct. Op. at 1-12. Because the record supports the trial court's determination that the Commonwealth proved, via competent evidence, that Appellant was permanently incorrigible, we affirm the judgment of sentence based on the trial court's well-reasoned opinion. See id.; Batts, 163 A.3d at 435-36.
Judgment of sentence affirmed. Appellant's application for relief denied.
Judge Musmanno joins the memorandum.
Judge King concurs in the result.
Judgment Entered.