J-S54006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICARDO ALPHONSO PEOPLES : : Appellant : No. 1298 WDA 2017
Appeal from the Order June 30, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008708-1997
BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY PANELLA, J.: FILED NOVEMBER 09, 2018
Ricardo Peoples appeals from the judgment of sentence entered on one
conviction for first-degree murder and one conviction for second-degree
murder. He contends the consecutive sentences of twenty years to life
constitute an abuse of the court’s sentencing discretion. In addition, his court
appointed attorney, Travis J. Dunn, Esquire, seeks permission to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm and grant
attorney Dunn permission to withdraw.
Peoples was seventeen years old when he shot and killed Orlando Price
and Dionda Morant in the course of robbing them. A jury convicted Peoples of
the first-degree murder of Price and the second-degree murder of Morant. The J-S54006-18
court subsequently imposed the then-mandatory sentences of life in prison
without possibility of parole for each of the murders consecutively.
On July 9, 2012, Peoples filed his second PCRA petition, asserting his
sentences of life without parole were unconstitutional under Miller v.
Alabama, 567 U.S. 460 (2012). Relying on Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013) (holding that Miller could not provide
relief in collateral proceedings), the PCRA court denied People’s PCRA petition.
However, in 2016, while the denial of People’s petition was on appeal to
the Supreme Court of Pennsylvania, the Supreme Court of the United States
implicitly overruled Cunningham and held that Miller provided a basis for
relief in collateral proceedings. See Montgomery v. Louisiana, 136 S.Ct.
718 (2016). The Supreme Court of Pennsylvania remanded Peoples’s appeal
to this Court, and we reversed the judgment of sentence and remanded the
case to the Court of Common Pleas for re-sentencing.
After a new sentencing hearing, the court sentenced Peoples to
consecutive terms of imprisonment of twenty years to life in prison. Peoples
filed a post-sentence motion, seeking reconsideration of the sentence. The
court denied reconsideration, and Peoples filed this timely appeal.
Prior to addressing the merits of Peoples’s requested appeal, we must
examine Attorney Dunn’s request to withdraw. Attorney Dunn has
substantially complied with the mandated procedure for withdrawing as
counsel. See Santiago, 978 A.2d at 361 (articulating Anders requirements);
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Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing
that counsel must inform client by letter of rights to proceed once counsel
moves to withdraw and append a copy of the letter to the petition). Peoples
did not file a response.
As counsel has met his technical obligation to withdraw, we must now
“make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.”
Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super. 2015)
(citation omitted).
Counsel has identified a single issue Peoples believes entitles him to
relief. Peoples asserts the court abused its discretion in imposing sentence.
He concedes this argument raises a challenge to the discretionary aspects of
his sentence. See Appellant’s Brief, at 6. “A challenge to the discretionary
aspects of a sentence must be considered a petition for permission to appeal,
as the right to pursue such a claim is not absolute.” Commonwealth v.
McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted). “Two
requirements must be met before we will review this challenge on its merits.”
Id. (citation omitted).
“First, an appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).
“Second, the appellant must show that there is a substantial question that the
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sentence imposed is not appropriate under the Sentencing Code.” Id. (citation
omitted). That is, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on the
reasons for which the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the merits.” Id.
(citation and emphasis omitted). Here, Peoples has preserved his arguments
through a post-sentence motion.
However, his appellate brief does not contain the requisite Rule 2119(f)
concise statement. The Commonwealth, while noting the absence of the Rule
2119(f) statement, has explicitly exercised its right not to object to this
violation of our Rules of Appellate Procedure. See Appellee’s Brief, at 22.
“[I]n the absence of any objection from the Commonwealth, we are
empowered to review claims that otherwise fail to comply with Rule 2119(f).”
Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa. Super. 2005) (citation
omitted). Peoples and the Commonwealth have fully briefed this issue in this
Court. In light of the detailed arguments presented by the parties and Attorney
Dunn’s’s petition to withdraw, we must address Peoples’s challenges. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating that
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where counsel files an Anders brief, this Court will review discretionary
aspects of sentencing claims that were not otherwise preserved). See also
Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006) (exercising
review of claim in absence of Rule 2119(f) statement where its absence did
not hamper ability to review).1 Therefore, we must determine if any of
Peoples’s claims raise substantial questions for our review.
First, Peoples argues the sentence imposed was “a de facto life sentence
without parole … in violation of his Eighth Amendment rights.” Appellant’s
Brief, at 15. As both attorney Dunn and the Commonwealth note, this Court
has recently rejected this argument under similar circumstances. See
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J-S54006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICARDO ALPHONSO PEOPLES : : Appellant : No. 1298 WDA 2017
Appeal from the Order June 30, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008708-1997
BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY PANELLA, J.: FILED NOVEMBER 09, 2018
Ricardo Peoples appeals from the judgment of sentence entered on one
conviction for first-degree murder and one conviction for second-degree
murder. He contends the consecutive sentences of twenty years to life
constitute an abuse of the court’s sentencing discretion. In addition, his court
appointed attorney, Travis J. Dunn, Esquire, seeks permission to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm and grant
attorney Dunn permission to withdraw.
Peoples was seventeen years old when he shot and killed Orlando Price
and Dionda Morant in the course of robbing them. A jury convicted Peoples of
the first-degree murder of Price and the second-degree murder of Morant. The J-S54006-18
court subsequently imposed the then-mandatory sentences of life in prison
without possibility of parole for each of the murders consecutively.
On July 9, 2012, Peoples filed his second PCRA petition, asserting his
sentences of life without parole were unconstitutional under Miller v.
Alabama, 567 U.S. 460 (2012). Relying on Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013) (holding that Miller could not provide
relief in collateral proceedings), the PCRA court denied People’s PCRA petition.
However, in 2016, while the denial of People’s petition was on appeal to
the Supreme Court of Pennsylvania, the Supreme Court of the United States
implicitly overruled Cunningham and held that Miller provided a basis for
relief in collateral proceedings. See Montgomery v. Louisiana, 136 S.Ct.
718 (2016). The Supreme Court of Pennsylvania remanded Peoples’s appeal
to this Court, and we reversed the judgment of sentence and remanded the
case to the Court of Common Pleas for re-sentencing.
After a new sentencing hearing, the court sentenced Peoples to
consecutive terms of imprisonment of twenty years to life in prison. Peoples
filed a post-sentence motion, seeking reconsideration of the sentence. The
court denied reconsideration, and Peoples filed this timely appeal.
Prior to addressing the merits of Peoples’s requested appeal, we must
examine Attorney Dunn’s request to withdraw. Attorney Dunn has
substantially complied with the mandated procedure for withdrawing as
counsel. See Santiago, 978 A.2d at 361 (articulating Anders requirements);
-2- J-S54006-18
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing
that counsel must inform client by letter of rights to proceed once counsel
moves to withdraw and append a copy of the letter to the petition). Peoples
did not file a response.
As counsel has met his technical obligation to withdraw, we must now
“make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.”
Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super. 2015)
(citation omitted).
Counsel has identified a single issue Peoples believes entitles him to
relief. Peoples asserts the court abused its discretion in imposing sentence.
He concedes this argument raises a challenge to the discretionary aspects of
his sentence. See Appellant’s Brief, at 6. “A challenge to the discretionary
aspects of a sentence must be considered a petition for permission to appeal,
as the right to pursue such a claim is not absolute.” Commonwealth v.
McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted). “Two
requirements must be met before we will review this challenge on its merits.”
Id. (citation omitted).
“First, an appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).
“Second, the appellant must show that there is a substantial question that the
-3- J-S54006-18
sentence imposed is not appropriate under the Sentencing Code.” Id. (citation
omitted). That is, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on the
reasons for which the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the merits.” Id.
(citation and emphasis omitted). Here, Peoples has preserved his arguments
through a post-sentence motion.
However, his appellate brief does not contain the requisite Rule 2119(f)
concise statement. The Commonwealth, while noting the absence of the Rule
2119(f) statement, has explicitly exercised its right not to object to this
violation of our Rules of Appellate Procedure. See Appellee’s Brief, at 22.
“[I]n the absence of any objection from the Commonwealth, we are
empowered to review claims that otherwise fail to comply with Rule 2119(f).”
Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa. Super. 2005) (citation
omitted). Peoples and the Commonwealth have fully briefed this issue in this
Court. In light of the detailed arguments presented by the parties and Attorney
Dunn’s’s petition to withdraw, we must address Peoples’s challenges. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating that
-4- J-S54006-18
where counsel files an Anders brief, this Court will review discretionary
aspects of sentencing claims that were not otherwise preserved). See also
Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006) (exercising
review of claim in absence of Rule 2119(f) statement where its absence did
not hamper ability to review).1 Therefore, we must determine if any of
Peoples’s claims raise substantial questions for our review.
First, Peoples argues the sentence imposed was “a de facto life sentence
without parole … in violation of his Eighth Amendment rights.” Appellant’s
Brief, at 15. As both attorney Dunn and the Commonwealth note, this Court
has recently rejected this argument under similar circumstances. See
Commonwealth v. Foust, 180 A.3d 416, 438 (Pa. Super. 2018) (finding
consecutive 30 years’ to life in prison sentences do not constitute de facto life
without parole sentences). We agree with counsel’s assessment that this claim
is meritless.
Peoples also argues the court erred in imposing a sentence that does
not provide him a meaningful opportunity to obtain release. He contends that
Graham v. Florida, 560 U.S. 48 (2010) (holding that a juvenile, non-
homicide offender must have a meaningful opportunity to obtain release), and
United States v. Corey Grant, 887 F.3d 131 (3d Cir. 2018), reh’g en banc
____________________________________________
1Additionally, Appellant’s brief does not comply with Pa.R.A.P. 2111(d), which requires the statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) to be appended to the brief of the appellant.
-5- J-S54006-18
granted, opinion vacated, 905 F.3d 285 (3d Cir. 2018) (holding that a juvenile
offender who could not obtain parole until age 72 did not have a meaningful
opportunity to obtain release), establish that his sentence is unconstitutional.
Even if we were to accept Grant as controlling law in this case, it is
clearly distinguishable. Peoples has an opportunity to obtain parole at age 58.
Considering he has been convicted of two murders, we can find nothing
unreasonable with that opportunity. Peoples’s second issue is meritless.
Our independent review of the record reveals no other, non-frivolous
issues that he could raise on appeal.
We affirm Peoples’s judgment of sentence and grant counsel’s petition
to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/9/2018
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