Commonwealth v. Moye

• Citation: 266 A.3d 666
• Decision Date: 19 November 2021
• Docket Number: No. 1304 WDA 2020,1304 WDA 2020
• Parties: COMMONWEALTH of Pennsylvania v. Deauntay Dontaz MOYE, Appellant
• Court: Pennsylvania Superior Court

266 A.3d 666

COMMONWEALTH of Pennsylvania

v.Deauntay Dontaz MOYE, Appellant

No. 1304 WDA 2020

Superior Court of Pennsylvania.

Submitted October 18, 2021

Filed: November 19, 2021

Karen S. Hickey, Public Defender, Philadelphia, for appellant.

Lesley R. Childers-Potts, District Attorney, Bedford, for Commonwealth, appellee.

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

OPINION BY LAZARUS, J.:

This is Deauntay Dontaz Moye's third direct appeal from his judgment of sentence. After careful review, we affirm.

This Court has previously set forth the factual and procedural background of this case as follows:

In January of 2015, two weeks before he turned seventeen, Moye and another juvenile, Ryan Hardwick, arranged to purchase marijuana from a dealer at a designated location. Although Moye and Hardwick expected to meet the dealer, the dealer sent his girlfriend, Stephanie Walters, [with whom Moye was acquainted], to carry out the transaction. Walters arrived at the designated location in her vehicle, picked up Moye and Hardwick, and drove to a parking lot. After Moye and Hardwick inspected the drugs, Moye, who was carrying a .22 revolver, shot Walters twice in the head. Using the same gun, Hardwick then shot and killed Walter's dog, which was also in the car. Moye and Hardwick then moved Walter's body to the back seat of her vehicle, and proceeded to drive the vehicle around the Altoona area for some time while they got high on the marijuana. Walters was still alive for approximately twenty minutes. Ultimately, [Moye and Hardwick] dropped the vehicle off near an abandoned house, and Hardwick hid the car keys and the gun at his house. Hardwick told police that he and Moye had been planning to rob someone for marijuana for several weeks, and that Moye had been talking about wanting to shoot someone.

Commonwealth v. Moye , 224 A.3d 48, 49 (Pa. Super. 2019).

On September 20, 2016, Moye entered a guilty plea to first-degree murder,¹ robbery-inflicts serious bodily injury,² criminal use of a communications facility,³ firearms not to be carried without a license,⁴ criminal conspiracy-possession with intent to deliver,⁵ abuse of a corpse,⁶ killing, maiming or poisoning domestic or zoo animals,⁷ unauthorized use of automobiles or other vehicles,⁸ and possession of firearm by minor.⁹ On December 2, 2016, the court sentenced Moye to life imprisonment without the possibility of parole (LWOP) on the homicide count. On the remaining counts, the court sentenced Moye to various prison terms ranging from a minimum of one month to a maximum of 20 years’ incarceration, all to run concurrently to the other counts. Although the sentencing court had considered the post- Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),¹⁰ statutory factors set forth in 18 Pa.C.S.A. § 1102.1(d)(7),¹¹ on appeal to this Court, we vacated and remanded for resentencing in light of our Supreme Court's decision in Commonwealth v. Batts , 640 Pa. 401, 163 A.3d 410 (2017) ( Batts II ),¹² which required additional safeguards beyond those set forth in section 1102.1. See Commonwealth v. Moye , 1924 WDA 2016, 2017 WL 4329780 (Pa. Super. filed Sept. 29, 2017) (unpublished memorandum decision). The Batts II Court stated:

[T]o effectuate the mandate of Miller and Montgomery [v. Louisiana , 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) ], procedural safeguards are required to ensure that life-without-parole sentences are meted out only to "the rarest of juvenile offenders" whose crimes reflect "permanent incorrigibility," "irreparable corruption" and "irretrievable depravity," as required by Miller and Montgomery .... [W]e recognize a presumption against the imposition of a sentence of life without parole for a juvenile offender. To rebut the presumption, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the juvenile offender is incapable of rehabilitation.

Batts II , supra at 415-16 (emphasis added).

Pursuant to this Court's remand order, and in compliance with Batts II , the trial court conducted a resentencing hearing on September 6, 2018. In advocating that the court resentence Moye to LWOP, the only new evidence that the Commonwealth presented at the resentencing hearing was a victim impact statement. Moye presented the testimony and supplemental expert report of Bruce Wright, M.D.,¹³ a forensic psychiatrist, who opined that it was possible that Moye could be rehabilitated. Doctor Wright could not conclude that Moye was permanently incorrigible or incapable of rehabilitation. Nonetheless, on December 20, 2018, the trial court found Moye permanently incorrigible beyond a reasonable doubt and re-imposed a sentence of LWOP on the homicide conviction.

Moye filed post-sentence motions, which the court denied, and he filed a second appeal to this Court. This Court set forth a comprehensive review of the decisional law and the resentencing hearing notes of testimony,¹⁴ and acknowledged that the trial court had considered the statutory factors set forth in section 1102.1. However, we again vacated and remanded for resentencing, concluding that the Commonwealth failed to rebut the presumption against LWOP as an appropriate individualized sentence for Moye. We stated:

Based on our review of the record, and mindful of the Commonwealth's burden of proof, we conclude that the sentencing court's legal conclusion that Moye is entirely incapable of being rehabilitated is not supported by the record. Moye enjoyed a presumption against the imposition of a [LWOP] sentence, and the Commonwealth bore the burden of proving beyond a reasonable doubt that there is no possibility that Moye could be rehabilitated at any point later in his life, no matter how much time he spends in prison and regardless of the amount of therapeutic interventions he receives. Indeed, the Batts II Court recognized that a presumption operates as proof of the ultimate fact unless and until the opposing party comes forward with evidence sufficient to rebut the presumption. Critically, the Commonwealth did not retain an expert, submit an expert report, or present expert testimony on this critical issue. ^{[15 ]}

Commonwealth v. Moye , 224 A.3d at 56 (internal citations omitted).

We also stated that in making its legal determination that Moye is permanently incorrigible and incapable of rehabilitation, the sentencing court "largely ignored the positive prognostic indicators identified by Dr. Wright, and repeatedly stated that the only factors suggesting that Moye could be rehabilitated were his negative childhood environment, age and his positive performance while in juvenile placement at Outside In." Id. at 57. The sentencing court's "limited assessment" did not account for Moye's efforts to improve himself in prison, and it ignored "the credible expert opinion of Dr. Wright that, in time and ‘with maturation, structure and appropriate interventions,’ it is possible that Moye could be successfully rehabilitated." Id. , citing Wright Supplemental Expert Report, 9/4/18 at 6. We cautioned the court to be mindful of " Miller's central intuition," which is "that children who commit even heinous crimes are capable of change." Id. , citing Montgomery v. Louisiana , 577 U.S. 190, 212, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). The panel instructed the trial court, upon resentencing, to "provide [Moye] some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation ." Id. at 57, citing Miller , 567 U.S. at 479, 132 S.Ct. 2455 (quoting Graham v. Florida , 560 U.S. 48, 74, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ) (emphasis added).

On November 17, 2020, Moye, at the age 21, was before the sentencing court for the third time. At the resentencing hearing, the Commonwealth again presented the testimony of the victim's mother. The prosecutor asked for a sentence of "forty-five (45) to ninety (90) years" see N.T., Resentencing Hearing, 11/17/20, at 17, and defense counsel sought a sentence of 35 to 70 years’ incarceration, see id. at 41 (where Moye would be eligible for parole at age 51). On December 20, 2020, the court resentenced Moye to fifty years to life; Moye will be eligible for parole at age 66.

Moye filed post-sentence motions, which the court denied. In this timely appeal, Moye challenges the discretionary aspects and the constitutionality of his sentence. See Appellant's Brief, at 15. Of note, Moye claims his sentence amounts to "de facto life." Id. at 7.

Moye raises the following issues on appeal:

1. Whether the trial court's sentence, which guarantees that [Moye] will remain incarcerated until at the very least the age of 66, leaves [Moye] with no meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation at a reasonable age; but, rather, the trial court imposed a sentence that is de facto life?

2. Whether the trial court's application of fifty (50) years to [Moye's] natural life[,] as [Moye] was a juvenile at the time of the offenses[,] violates the protections provided against cruel punishment pursuant to the Eighth Amendment of the United States Constitution and Article I, § 13 of the Pennsylvania Constitution ?

3. Whether the trial court imposed a sentence upon [Moye] that exhibits bias, ill-will and prejudice that is also manifestly excessive and excessively punitive in nature?

4. Whether the trial court abused its discretion in imposing a sentence of fifty (50) years to [Moye's] natural life when it failed to consider mitigating evidence and factors presented to the court?

5. Whether the trial court abused its discretion in applying the required factors outlined in 18 Pa.C.S.A. § 1102.1(d) and 42 Pa.C.S.A. § 9721(b) to find that factors weighed heavily against [Moye], thereby justifying the imposition of fifty (50) years to [Moye's] natural life?

Appellant's Brief, at 7-8 (re-ordered for ease of disposition).¹⁶

Moye's constitutional challenge and his claim that the court imposed an impermissible de facto life...