Opinion
J-A27042-19 No. 3470 EDA 2018
01-08-2020
COMMONWEALTH OF PENNSYLVANIA Appellee v. DAVID VALASQUEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered September 5, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1200451-1997 BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
David Valasquez (Appellant) appeals from the September 5, 2018 judgment of sentence imposed following a resentencing hearing pursuant to Miller v. Alabama , 567 U.S. 460 (2012) and Montgomery v. Louisiana , 136 S.Ct. 718 (2016). We affirm
In Miller , the United States Supreme Court held that a "mandatory [sentence of] life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments." 567 U.S. at 465 (internal quotation marks omitted).
In Montgomery , the United States Supreme Court held that Miller applies retroactively to cases on state collateral review.
"On October 26, 1997, [Appellant], then aged seventeen years and two months old, was arrested and charged with murder and related offenses." Trial Court Opinion, 1/23/2019, at 1. These charges stemmed from the September 28, 1997 shooting death of John Anthony Marin (decedent) in a Dunkin Donuts shop in Philadelphia, Pennsylvania. A prior panel of this Court summarized the facts of this matter as follows.
Five to ten minutes before the shooting, decedent had ran into the shop in an excited state, and asked the cashier to call 911. Decedent told the cashier that three males had tried to rob him, and that one of the males was following him into the shop. Appellant came up to the window of the donut shop, and decedent pointed him out. Appellant returned to the shop five minutes later and shot decedent twice inside the store, then hopped on a chrome bicycle and fled across Roosevelt Boulevard, disappearing between the houses before police arrived. Decedent was pronounced dead at the scene by the [m]edical examiner, and police questioned [eyewitness, Norberto] Lopez[,] about the shooting. Lopez described [A]ppellant as wearing a matching green khaki outfit with green jacket and cap, and tan Timberland boots. He also showed police where [A]ppellant fled across the [b]oulevard and between the two houses[.] No weapons were found on decedent, or at the scene. Police did recover a working videotape from one of three surveillance cameras inside the store.
On October 22, 1997, Lopez was re-interviewed by police detectives at the 25th District station, and [he] identified [A]ppellant as the shooter from a police photo array. Lopez also informed detectives that he knew [A]ppellant as "David" because [A]ppellant used to date his next[-]door neighbor. Police secured [] arrest and search warrant[s] for [A]ppellant's residence ... and executed the warrants on October 25, 1997. Appellant was arrested in the basement, and the following items were recovered and placed on property receipts: a green shirt, a pair of tan boots, narcotics, two photos of [A]ppellant, and a letter addressed to [A]ppellant[.]
Appellant was taken to [p]olice headquarters where he was placed in an interrogation room until his mother arrived. In the presence of his mother, [A]ppellant was questioned by police detectives Joseph Centeno and Richard Harris. The detectives informed [A]ppellant that [Appellant] was there in response to [the] shooting, and, then proceeded to read him his rights. Both
[A]ppellant and his mother were read his rights, and given a written copy to read and sign, which they initialed. Appellant waived his right to counsel, and stated that he shot decedent because decedent had put a gun in his mouth, robbed him, and taken his money, and a wristwatch. Appellant went to his friend "Mike's" house and got a gun, then went to his friend "George's" house and picked up a bike, then went across the boulevard looking for decedent. After shooting him, [A]ppellant came back across the boulevard, took the gun back to Mike, and then dropped the bike off with George before going home. Police attempted to locate the male [A]ppellant referred to as "Mike," but were unable to find him. The murder weapon was never recovered.Commonwealth v. Valasquez , 959 A.2d 469 (Pa. Super. 2008), quoting Trial Court Opinion, 5/24/2006, at 2-4.
After a jury trial before the Honorable Robert A. Latrone, the jury convicted [Appellant] of first-degree murder, possession with intent to distribute (PWID), and possession of an instrument of crime (PIC), On May 10, 1999, Judge Latrone imposed the then-mandatory sentence of life imprisonment without parole [(LWOP)] for first-degree murder, and concurrent sentences of three to six years of imprisonment for PWID and two and one-half to five years of imprisonment for PIC.Trial Court Opinion, 1/23/2019, at 1 (unnecessary capitalization and quotation marks omitted). This Court affirmed Appellant's judgment of sentence on June 13, 2008, and our Supreme Court denied his petition for allowance of appeal. Valasquez , supra , appeal denied, 959 A.2d 469 (Pa. 2008).
When Appellant was arrested, he was in possession of heroin.
It appears the reason for the nearly ten-year delay between the imposition of Appellant's sentence in 1999 and this Court affirming Appellant's judgment of sentence in 2008 was partly due to the ineffective assistance of prior counsel. See Valasquez , supra ("Appellant filed a timely notice of appeal on June 8, 1999. On April 6, 2000, the appeal was dismissed due to counsel's failure to file a brief. Appellant filed a [petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,] new counsel was appointed and an amended petition filed seeking reinstatement of Appellant's direct appeal rights due to ineffective assistance. On May 30, 2002 the petition was granted and Appellant's direct appeal rights reinstated nunc pro tunc. Another appeal was filed but was again dismissed on September 5, 2002 due to counsel's failure to comply with Pa.R.A.P. 3517. Once again, Appellant sought and was granted PCRA relief on June 27, 2003 when the PCRA court reinstated Appellant's direct appeal rights nunc pro tunc[, and Appellant thereafter filed timely a nunc pro tunc appeal]").
On August 2, 2012, Appellant filed a PCRA petition, claiming that his sentence was unconstitutional under Miller . On February 26, 2016, after the United States Supreme Court issued its holding in Montgomery , Appellant filed a supplemental PCRA petition.
Appellant's petition was filed within sixty days of the issuance of Miller.
On September 5, 2018, th[e trial c]ourt granted [Appellant's PCRA petition] and vacated his May 10, 1999 sentence. Prior to sentencing, the Commonwealth agreed to recommend [a] sentence of [20] years to life imprisonment. After hearing the relevant evidence presented during the resentencing hearing, th[e trial court] rejected the Commonwealth's recommendation and imposed a [25] years to life imprisonment sentence for first-degree murder, and no further penalty on the remaining charges.
On September 17, 2018, [Appellant filed timely] a post-sentence motion for reconsideration of sentence. On October 31, 2018, [Appellant] filed a supplemental post-sentence motion. On November 1, 2018[,] after a hearing, th[e trial c]ourt denied the
[Appellant's] post-sentence motion. On November 29, 2018, the [Appellant] filed a timely notice of appeal[.]Trial Court Opinion, 1/23/2019, at 2 (unnecessary capitalization omitted).
The transcript from the hearing on Appellant's motion for reconsideration of sentence is not included in the certified record before us. "While this Court generally may only consider facts that have been duly certified in the record, [] where the accuracy of a document is undisputed and contained in the reproduced record, we may consider it." Commonwealth v. Barnett , 121 A.3d 534, 546 n.3 (Pa. Super. 2015). Here, the reproduced record contains the transcript and there is no dispute as to its contents. Therefore, we may consider the transcript in our review.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Although presented as four distinct issues, Appellant's claims on appeal are all interrelated. In essence, Appellant asserts the trial court abused its discretion and committed errors of law when it resentenced Appellant to 25 years to life imprisonment. Appellant's Brief at 5-6. Specifically, Appellant contends the trial court: (1) committed "legal error when resentencing [Appellant] to a lifetime maximum sentence[;]" (2) placed "too much weight on traditional penological justifications in light of [Appellant's] diminished culpability under the law and demonstrated rehabilitation[;]" (3) penalized Appellant for maintaining his innocence; (4) failed to consider "newly discovered evidence of a diagnosed intellectual disability and its impact on [Appellant's] waiver of Fifth Amendment rights that resulted in a conviction[;]" and (5) failed to consider all of the sentencing factors delineated in Miller. Id. Appellant's issues implicate both the legality and discretionary aspects of his sentence. We begin with the relevant legal principles.
A challenge to the legality of a particular sentence may be reviewed by any court on direct appeal; it need not be preserved in the lower courts to be reviewable and may even be raised by an appellate court sua sponte. ... [A] claim challenging a
sentencing court's legal authority to impose a particular sentence presents a question of sentencing legality.Commonwealth v. Batts ( Batts II ), 163 A.3d 410, 434-35 (Pa. 2017).
Unlike a claim challenging the legality of a sentence,
[c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his [or her] sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, 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, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (some citations omitted).
Here, as discussed supra, Appellant timely filed a notice of appeal, and he sought reconsideration of his sentence in a timely-filed post-sentence motion. In addition, he has included a concise statement of reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). See Appellant's Brief at 28-30. We now turn to consider whether Appellant has presented a substantial question for our review.
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul , 925 A.2d 825, 828 (Pa. Super. 2007). "A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (citation and quotation marks omitted).
In his 2119(f) statement, Appellant asserts the trial court abused its discretion and committed an error of law when the court made "a determination of sentence without adequate, evident consideration of the factors set out in Miller [.]" Appellant's Brief at 30. We find that Appellant has raised a substantial question. See Commonwealth v. Seagraves , 103 A.3d 839, 843 (Pa. Super. 2014) (concluding that discretionary-aspects claim following Miller resentencing raised a substantial question despite the fact that "prior decisions from this Court involving whether a substantial question has been raised by claims that the sentencing court 'failed to consider' or 'failed to adequately consider' sentencing factors has been less than a model of clarity and consistency") (citation and some quotation marks omitted).
If this Court grants appeal and reviews the sentence, the standard of review is well-settled: sentencing is vested in the discretion of the trial court, and will not be disturbed absent a manifest abuse of that discretion. An abuse of discretion involves a sentence which was manifestly unreasonable, or which resulted from partiality, prejudice, bias or ill will. It is more than just an error in judgment.Commonwealth v. Malovich , 903 A.2d 1247, 1252-53 (Pa. Super. 2006) (citations omitted).
Furthermore, because this appeal stems from the re-sentencing of a juvenile defendant convicted of first-degree murder pre- Miller , we review Appellant's claims cognizant of the following.
In Batts II , our Supreme Court held, inter alia, that a lower court, in resentencing a juvenile offender convicted of first-degree murder prior to Miller , may impose a minimum term-of-years sentence and a maximum sentence of life imprisonment, thus "exposing these defendants to parole eligibility upon the expiration of their minimum sentences." Batts II , 163 A.3d at 439. In determining the minimum term-of-years sentence, the Court mandated that lower courts consult the sentencing requirements codified at 18 Pa.C.S. § 1102.1 for guidance. Id. at 457. Specifically for a juvenile convicted of first-degree murder pre- Miller , the portion of section 1102.1 that a lower court must consider is the guidelines set forth in subsection 1102.1(a). Subsection 1102.1(a)(1) provides, in relevant part, as follows.
(a) First degree murder.--A person who has been convicted after June 24, 2012, of a murder of the first degree, first degree murder of an unborn child or murder of a law enforcement officer of the first degree and who was under the age of 18 at the time of the commission of the offense shall be sentenced as follows:
(1) A person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at least 35 years to life.
Commonwealth v. White , 193 A.3d 977, 984 (Pa. Super. 2018).
18 Pa.C.S. § 1102.1(a)(1).
Moreover, in addition to the traditional considerations a trial court is required to consider when resentencing a juvenile LWOP offender,
[t]he Miller Court concluded that sentencing for juveniles must be individualized. This requires consideration of the defendant's age at the time of the offense, as well as "its hallmark features," including:
Batts II , 163 A.3d at 431 (citations omitted).immaturity, impetuosity, and failure to appreciate risks and consequences[;] ... the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional[;] ... the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him[;] ... that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys[;] ... [and] the possibility of rehabilitation ... when the circumstances [i.e. (the youthfulness of the offender)] most suggest it.
With the foregoing in mind, and following a review of the certified record and the briefs for the parties, we conclude that the opinion of the Honorable Barbara A. McDermott thoroughly addresses Appellant's issues and arguments and applies the correct law to facts that are supported by the record. We discern no error of law or abuse of discretion. See Trial Court Opinion, 1/23/2019, at 5 (explaining that, before the re-sentencing hearing, the trial court "reviewed [Appellant's] Memorandum in Support of Resentencing, his Mitigation Report and Reentry Plan, his Housing Performance Record, records furnished by the Department of Corrections, numerous certificates of achievement-including his high school diploma-that he has earned, and a multitude of letters sent in support of [Appellant's re-sentencing ...,] heard argument from counsel that highlighted several mitigating factors under Miller , and considered testimony from [Appellant's] loved ones and acquaintances"); id. (explaining that the trial court declined to "consider mitigating factors in a vacuum" and instead balanced the mitigating factors, "including those outlined in Miller , with the facts of the case"); id. at 6 (stating that while Appellant's diminished capacity was considered, it is "but one factor amongst dozens that th[e trial c]ourt must, and ultimately did, consider in imposing a just sentence"); id. at 6-7 (asserting that it was "undoubtedly appropriate for a trial court to consider a defendant's lack of remorse as a factor in sentencing at sentencing, provided that it specifically considered in relation to protection of the public, the gravity of the offense, and the defendant's rehabilitative needs"); id. at 8-9 (explaining that Appellant's arguments concerning his intellectual disability lacked support and were too "nebulous to warrant relief"); id. at 9 (finding that Appellant's issues concerning his mental capacity, although framed "as a challenge to th[e trial c]ourt's perceived unwillingness to consider the mental deficiencies at the time he confessed to the crimes," were "nothing more than a thinly veiled attempt to re[-]litigate his conviction"); id. at 10 (explaining that Appellant's claim that the court relied too heavily on §1102.1(a) "in rendering its sentence ... ignores the fact that th[e trial c]ourt significantly deviated from the" statute's recommended minimum of 35 years' incarceration); id. at 11 (explaining that Appellant's challenge to the legality of his sentence, wherein he claims that the imposition of a mandatory life tail is unconstitutional, has already been litigated and this Court has continued to emphasize that lower courts are required to impose a maximum sentence of life imprisonment when resentencing juvenile defendant).
Therefore, we adopt the trial court's opinion of January 23, 2019 as our own and affirm Appellant's judgment of sentence based upon the reasons stated therein.,
Lastly, to the extent Appellant argues the trial court abused its discretion in failing to set forth its reasons for the sentence it imposed on the record, see Appellant's Brief at 39, we note that this claim was not presented in Appellant's post-sentence motion. Thus, it is waived. See Commonwealth v. McAfee , 849 A.2d 270, 275 (Pa. Super. 2004) ("Issues challenging the discretionary aspects of sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived.").
The parties shall attach a copy of the trial court's January 23, 2019 opinion to this memorandum in the event of further proceedings.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/8/20
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