Opinion
J-S32043-16 No. 1391 EDA 2015
05-17-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. OMAR RASHAD HOOKS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 15, 2015 in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0002355-2010 BEFORE: BOWES, J., MUNDY, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Omar Rashad Hooks, appeals from the judgment of sentence imposed on April 15, 2015., Appellant was sentenced to a term of imprisonment not less than thirty-five years nor more than life for his jury conviction of murder of the first degree, and a concurrent aggregate sentence of not less than two nor more than four years' incarceration for his conviction of firearms not to be carried without a license, and possessing an instrument of a crime. Appellant challenges the discretionary aspects and legality of his sentence. We affirm, in part on the basis of the trial court opinion.
The trial court imposed the April 15, 2015 sentence after granting Appellant's post-sentence motion filed November 17, 2014, seeking a modification of the sentence imposed on re-sentencing on November 5, 2014.
We have amended the caption in this matter to reflect the April 15, 2015 date on which the trial court re-sentenced Appellant.
18 Pa.C.S.A. §§ 6106, 907 respectively.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. ( See Trial Court Opinion, 11/05/15, at 1-2). Therefore, we have no reason to restate them here at length.
For the convenience of the reader, we note that on April 17, 2010, Appellant, who was sixteen years old, shot and killed Thomas Green, who was unarmed. Evidence at trial supported the fact that Appellant shot Green in retaliation for Green smacking Appellant in the face and knocking his glasses off during a "slap-box" fight. Testimony also supported the conclusion that Appellant was under the influence of drugs or alcohol before the shooting; however, the jury did not accept the diminished capacity defense which was offered at trial. On December 8, 2011, the jury found Appellant guilty of murder of the first degree, firearm carried without a license, and possessing an instrument of a crime.
Although the trial court opinion indicates that Appellant killed his victim on April 10, 2010, ( see Trial Ct. Op., at 7), the record is clear that Appellant committed his crime on April 17, 2010. ( See Trial Ct. Op., at 1).
On January 31, 2012, the trial court sentenced Appellant to a mandatory sentence of life in prison without the possibility of parole for the murder conviction and imposed a consecutive aggregate term of imprisonment of not less than two nor more than five years on the remaining counts.
On direct appeal, a prior panel of this court affirmed Appellant's convictions, but remanded for a new sentencing hearing in accordance with the holdings in Miller v. Alabama , 132 S.Ct. 2455 (2012), and Commonwealth v. Batts , 66 A.3d 286 (Pa. 2013). ( See Commonwealth v. Hooks , 91 A.3d 1280 (Pa. Super. 2012) (unpublished memorandum)).
After a sentencing hearing on November 5, 2014, the trial court sentenced Appellant to a term of imprisonment of not less than forty years to life for murder of the first degree and a consecutive aggregate sentence of not less than two nor more than five years' incarceration on the remaining offenses. Appellant filed a post-sentence motion for reconsideration. The trial court held a hearing on Appellant's post-sentence motion on March 11, 2015.
On April 15, 2015, the trial court granted Appellant's motion for reconsideration and modified his sentence for the murder of the first degree conviction to not less than thirty-five years nor more than life imprisonment and imposed his sentence on the remaining charges concurrently. This timely appeal followed.
Appellant filed his timely Rule 1925(b) statement of errors complained of on appeal on June 16, 2015. See Pa.R.A.P. 1925(b). The trial court entered its opinion on November 5, 2015. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises three questions for our review:
1. Is the sentence imposed illegal given that there is no statutory authorization for a sentence of thirty-five years to life?(Appellant's Brief, at 4) (questions renumbered for ease of disposition).
2. Did the sentencing court commit abuse of discretion when it based the sentence imposed entirely or in part on the fact that Appellant did not accept responsibility for the crime or show remorse, where Appellant at all times has maintained his innocence of the crime?
3. Did the sentencing court abuse its discretion in imposing a sentence that was overly harsh and manifestly excessive, and based upon the seriousness of the crime alone?
On March 4, 2016, the Commonwealth filed an application for extension of time to file its brief and, thereafter, filed its brief on March 18, 2016. We deem the Commonwealth's brief timely filed nunc pro tunc.
In the first issue, Appellant claims that his sentence of not less than thirty-five years to life imprisonment for murder of the first-degree is an illegal sentence because it lacks statutory authorization. ( See Appellant's Brief, at 35-42). Appellant concedes that "this very question was presented [to our Pennsylvania Supreme Court] in [] Batts , [ supra ]." (Appellant's Brief, at 41). However, he "requests that this Court revisit the question of an appropriate remedy." ( Id.). We decline to do so.
We note that Appellant's Rule 1925(b) statement presents five issues, all of which challenge discretionary aspects of the sentence. ( See Statement of Matters Complained of on Appeal, 6/16/15, at 1-2). Appellant did not present any challenge to the legality of his sentence in his statement; however, challenges to the legality of a sentence cannot be waived. See Commonwealth v. Foster , 17 A.3d 332, 343-44 (Pa. 2011) ("failure to . . . include the sentencing issue in a Rule 1925(b) statement . . . is not fatal to the defendant's challenge to . . . legality of sentencing claim for that matter, because the fundamental issue raised concerns the sentencing court's constitutional or statutory authority to act as it did.").
Our standard of review for challenges to legality of a sentence is well-settled.
If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. Moreover, challenges to [a]n illegal sentence can never be waived and may be reviewed sua sponte by this Court. An illegal sentence must be vacated.Commonwealth v. Randal , 837 A.2d 1211, 1214 (Pa. Super. 2003) (citations omitted).
In Batts , our Supreme Court considered the argument that no statutory authorization existed for sentencing a juvenile for first degree murder, and concluded that juveniles convicted of murder of the first degree prior to Miller "are subject to a mandatory maximum sentence of life imprisonment as required by Section 1102(a), accompanied by a minimum sentence determined by the common pleas court upon resentencing." Batts , supra at 297. The Batts Court declined to sentence Batts to the lesser offense of third-degree murder because his conviction for first-degree murder had not been vacated. See id. at 296-97.
If a majority of the Justices of this Court, after reviewing an appeal before us (taken either by way of direct appeal or grant of allowance of appeal), join in issuing an opinion, our opinion becomes binding precedent on the courts of this Commonwealth. Our majority opinion is binding not only on the parties before us, under the doctrine of law of the case, but is precedent as to different parties in cases involving substantially similar facts, pursuant to the rule of stare decisis[.]Commonwealth v. Tilghman , 673 A.2d 898, 903 (Pa. 1996) (citations and footnotes omitted). Accordingly, Appellant's challenge to the legality of his sentence does not merit relief. See Batts , supra at 296-97; Tilghman , supra at 903.
In his remaining two issues, Appellant challenges the discretionary aspects of his sentence. ( See Appellant's Brief, at 4).
"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. Hoch , 936 A.2d 515, 518 (Pa. Super. 2007) (citation omitted). In order to reach the merits of such claim, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.Commonwealth v. Edwards , 71 A.3d 323, 329-30 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).
Here, Appellant timely filed a motion to modify sentence and notice of appeal and included a Rule 2119(f) statement in his brief. ( See Appellant's Brief, at 20); Pa.R.A.P. 2119(f). Furthermore, an assertion that a sentence is manifestly excessive such that it constitutes too severe a punishment raises a substantial question. See Commonwealth v. Mouzon , 812 A.2d 617, 624 (Pa. 2002). Additionally, "an allegation that the court considered an impermissible sentencing factor raises a substantial question." Commonwealth v. Macias , 968 A.2d 773, 776 (Pa. Super. 2009). Therefore, we will review Appellant's claim.
Appellant argues that the court erred in imposing his sentence because it considered an impermissible factor, Appellant's lack of remorse, and imposed a manifestly excessive sentence, which was based only on the seriousness of the crime. ( See Appellant's Brief, at 21-35). We disagree.
Our standard of review of a sentencing challenge is well-settled:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.Commonwealth v. Glass , 50 A.3d 720, 727 (Pa. Super. 2012), appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).
In the instant matter, the sentencing court had the benefit of a Pre-Sentence Investigation Report. We have stated that:
[w]hen imposing a sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. . . . Where the sentencing court had the benefit of a [PSI], we can assume the sentencing court was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors.Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) (quotation marks and citations omitted).
When sentencing a juvenile for first-degree murder, the Pennsylvania Supreme Court has explained:
[A]t a minimum [the trial court] should consider a juvenile's age at the time of the offense, his diminished culpability and capacity for change, the circumstances of the crime, the extent of his participation in the crime, his family, home and neighborhood environment, his emotional maturity and development, the extent that familial and/or peer pressure may have affected him, his past exposure to violence, his drug and alcohol history, his ability to deal with the police, his capacity to assist his attorney, his mental health history, and his potential for rehabilitation.Batts , supra at 297.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned and very thorough opinion of the trial court we conclude that there is no merit Appellant's challenge to the discretionary aspects of his sentence. The trial court opinion properly disposes of the questions presented. ( See Trial Ct. Op., at 4-18 (concluding (1) sentencing court imposed individualized sentence after considering all evidence presented at trial and sentencing hearings in light of Miller , supra , and Batts , supra factors for juveniles convicted of first-degree murder; (2) sentencing court did not punish Appellant for exercising his constitutional right and remaining silent, but rather considered Appellant's remarks throughout sentencing, concluded he consistently shifted blame and failed to accept responsibility, and considered that, among other sentencing factors, in fashioning individualized sentence.)). See Glass , supra at 727; Moury , supra at 171; Batts , supra at 297. Accordingly, we affirm on the basis of the trial court's opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/17/2016
Image materials not available for display.