Commonwealth v. Bebout

186 A.3d 462

COMMONWEALTH of Pennsylvania, Appellee

v.Robert BEBOUT, Appellant

No. 1080 WDA 2017

Superior Court of Pennsylvania.

Argued February 27, 2018

Filed May 4, 2018

Reargument Denied July 10, 2018

Victor A. Delnore, Pittsburgh, for appellant.

Rebecca G. McBride, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.^*

OPINION BY BENDER, P.J.E.:

Appellant, Robert Bebout, appeals from the judgment of sentence of a minimum term of 45 years' incarceration, and a maximum term of life imprisonment ("45–life"), imposed following his resentencing pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).¹ Appellant challenges both the legality and the discretionary aspects of his sentence. After careful review, we affirm.

In 1981, Appellant, who was then only 15 years old, anally raped, beat with a brick, strangled, and ultimately murdered a seven-year-old boy in the West End section of Pittsburgh, leaving the child's nude body in the Saw Mill Run Creek. When police arrested Appellant several days later, he quickly confessed to the crime. On April 5, 1982, a jury convicted him of second-degree murder, and the trial court sentenced him to a mandatory term of LWOP. This Court affirmed his judgment of sentence on direct appeal. Commonwealth v. Bebout , 335 Pa.Super. 275, 484 A.2d 130 (1984). Appellant did not file a petition for allowance of appeal with our Supreme Court from our decision.

Appellant first filed for collateral relief in 1985, under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541 – 9551 (repealed April 13, 1988). The PCHA court denied Appellant's petition on February 5, 1986. He appealed, and after this Court affirmed that decision on December 4, 1986, Appellant did not seek further relief in our Supreme Court. See Commonwealth v. Bebout , 362 Pa.Super. 632, 520 A.2d 1211 (1986) (unpublished memorandum). Appellant filed his second PCHA petition on January 12, 1988. The PCHA court denied that petition on March 9, 1988, and it does not appear that Appellant appealed from that decision. However, he filed his third PCHA petition, this time pro se , on November 2, 1988. The PCHA court denied that petition on August 28, 1989. Again, Appellant does not appear to have appealed from that decision.

Appellant filed his fourth petition for collateral relief, this time under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. , on June 22, 2010. Appellant received appointed counsel who filed an amended petition on his behalf. In that petition, Appellant sought relief under the auspices of Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that the Eighth Amendment prohibits LWOP sentences for juveniles who did not commit homicide). On March 16, 2011, the PCRA court filed a notice of its intent to dismiss the petition under Pa.R.Crim.P. 907 and, on June 15, 2011, the court dismissed Appellant's petition. The PCRA court filed an amended dismissal order on July 25, 2011. On September 16, 2011, the court issued an order reinstating Appellant's appellate rights nunc pro tunc from the June 15, 2011 order. This Court affirmed the denial of Appellant's PCRA petition on May 10, 2012, and his subsequent petition for allowance of appeal to our Supreme Court was denied on November 28, 2012. Commonwealth v. Bebout , 50 A.3d 239 (Pa. Super. 2012) (unpublished memorandum), appeal denied , 618 Pa. 680, 57 A.3d 65 (2012).

Appellant filed his fifth petition for collateral relief, his second PCRA petition, on January 17, 2013. Therein, Appellant sought resentencing pursuant to Miller . While that petition was pending in the PCRA court, our Supreme Court issued its decision in Commonwealth v. Cunningham , 622 Pa. 543, 81 A.3d 1 (2013), holding that the rule announced in Miller did not apply retroactively to cases on collateral review. On this basis, the PCRA court denied Appellant's second PCRA petition on April 21, 2014. This Court affirmed on September 30, 2014, and our Supreme Court denied further review on January 28, 2015. Commonwealth v. Bebout , 107 A.3d 240 (Pa. Super. 2014), appeal denied , 630 Pa. 739, 108 A.3d 33 (2015).

On January 25, 2016, the Supreme Court of the United States decided Montgomery , which effectively reversed the Pennsylvania Supreme Court's decision in Cunningham . Appellant promptly filed a pro sePCRA petition on February 18, 2016, his third PCRA petition, and his sixth petition for collateral relief. The PCRA court appointed counsel, who then filed an amended PCRA petition on June 3, 2016. The Commonwealth filed an answer on June 30, 2016, conceding that Appellant should be resentenced pursuant to Miller and Montgomery . On October 31, 2016, the PCRA court issued an order granting resentencing, which ultimately occurred on May 17, 2017. Subsequently, on May 22, 2017, the PCRA/resentencing court issued an order granting Appellant's PCRA petition, vacating his LWOP sentence, and imposing a new sentence of 45–life, with time-credit for 13,154 days served. Appellant filed a timely post-sentence motion on May 31, 2017, which the PCRA/resentencing court denied on June 27, 2017. Appellant then filed a timely notice of appeal on July 26, 2017, and a timely, court-ordered Pa.R.A.P. 1925(b) statement on September 27, 2017. The PCRA/resentencing court filed its Rule 1925(a) opinion on October 6, 2017.

Appellant now presents the following questions for our review:

In view of the applicable legal standards and mitigation evidence introduced by [Appellant], did the resentencing court commit legal error by sentencing [him] to [45–life]?

In view of the applicable legal standards and mitigation evidence introduced by [Appellant], did the resentencing court abuse its discretion by sentencing [him] to [45–life]?

Appellant's Brief at 4.

We begin by addressing Appellant's first claim, wherein he asserts that his sentence of 45–life constitutes "the functional equivalent" of LWOP, or a de facto LWOP sentence, because the minimum sentence "exceeds [Appellant]'s life expectancy in prison...." Id. at 22–23. Appellant also argues that, because the lower court determined that he was not eligible for LWOP, his de facto LWOP sentence does not provide a meaningful opportunity for release as is ostensibly required under Miller and Montgomery .

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 . Commonwealth v. Barnes , 151 A.3d 121, 124 ( [Pa.] 2016) ; see also Montgomery , 136 S.Ct. at 731 (stating that because "[a] conviction or sentence imposed in violation of a substantive rule is not just erroneous but contrary to law and, as a result, void[, i]t follows, as a general principle, that a court has no authority to leave in place a conviction or sentence that violates a substantive rule") (citing Ex parte Siebold , 100 U.S. 371, 25 L.Ed. 717 (1879) ). As we have previously explained, our decisions pertaining to questions of sentencing illegality "have not always been smooth," with "complexities" arising "from disagreement among the members of the Court concerning whether a particular claim implicates the legality of a sentence." Commonwealth v. Spruill , 622 Pa. 299, 80 A.3d 453, 460–61 ( [Pa.] 2013). There is no dispute, however, that a claim challenging a sentencing court's legal authority to impose a particular sentence presents a question of sentencing legality. See, e.g. , Commonwealth v. Vasquez , 560 Pa. 381, 744 A.2d 1280, 1282 ( [Pa.] 2000) (question of "whether the trial court had the authority to impose a statutorily mandated fine" is a challenge to sentencing legality); Commonwealth v. Shiffler , 583 Pa. 478, 879 A.2d 185, 189 ( [Pa.] 2005) (claim regarding the court's authority to impose a particular sentence implicates the legality of the sentence); In re M.W. , 555 Pa. 505, 725 A.2d 729, 731 ( [Pa.] 1999) (same).

Commonwealth v. Batts , 640 Pa. 401, 163 A.3d 410, 434–35 (2017).

Recently, in Commonwealth v. Foust , 180 A.3d 416 (Pa. Super. 2018),² a panel of this Court held that "a trial court may not impose a term-of-years sentence, which constitutes a de facto LWOP sentence, on a juvenile offender convicted of homicide unless it finds, beyond a reasonable doubt, that he or she is incapable of rehabilitation." Id. at 431. The panel then considered whether Foust's aggregate sentence of 60 years to life (composed of two, consecutive terms of 30 years to life) constituted a de facto LWOP sentence. In conducting this analysis, the Foust Court first had to determine whether to analyze aggregate sentences or the individual components thereof. After determining that our sister states were split on this question, the panel ultimately decided to side with the states that had adopted the individual-sentence approach. Id. at 434–35. The panel arrived at that decision based, in part, on well-settled principles of Pennsylvania sentencing law, and on the analysis provided in McCullough v. State , 233 Md.App. 702, 168 A.3d 1045 (2017), cert. granted , 456 Md. 82, 171 A.3d 612 (2017). See Foust , 180 A.3d at 436–38.

The Foust Court then considered whether either of the appellant's 30 years to life sentences constituted a de facto LWOP sentence, and concluded that they did not. However, the panel "explicitly decline[d] to draw a bright line ... delineating what constitutes a de facto LWOP sentence and what constitutes a constitutional term-of-years sentence." Id. at 438. The Court "similarly decline[d] to set forth factors that trial courts must consider when making this determination, i.e. , whether they must look to the life expectancy of the population as a whole or a subset thereof and whether the defendant must be given a chance at a meaningful...