Com. v. Hooker, S.

• Court: Superior Court of Pennsylvania
• Decided: February 22, 2019
• Docket: 3833 EDA 2017
• Status: Unpublished

Opinion

J-S82021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHARIF HOOKER : : Appellant : No. 3833 EDA 2017

Appeal from the Judgment of Sentence November 9, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001279-2007

BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2019

Appellant, Sharif Hooker, appeals from the judgment of sentence

entered on November 9, 2017. We affirm.

In 2008, a jury found Appellant guilty of three counts of aggravated

assault, three counts of attempted murder, and one count each of criminal

conspiracy, robbery, and kidnapping.1 On June 26, 2008, the trial court

sentenced Appellant to serve an aggregate term of 20 to 40 years in prison

for his convictions.

Appellant filed a timely notice of appeal and, during this direct appeal,

Appellant’s counsel filed a petition for leave to withdraw and a brief pursuant

to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). On September 12, 2011, we granted ____________________________________________

118 Pa.C.S.A. §§ 2702(a), 901(a), 903(a)(1), 3701(a)(1)(ii), and 2901(a)(2), respectively. ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S82021-18

counsel’s petition for leave to withdraw and affirmed Appellant’s judgment of

sentence. Commonwealth v. Hooker, 34 A.3d 220 (Pa. Super. 2011)

(unpublished memorandum) at 1-14.

Following our original affirmance, Appellant filed a petition under the

Post Conviction Relief Act (“PCRA”) and claimed that his direct appellate

counsel failed to provide him with the requisite notice that counsel was going

to file a petition for leave to withdraw or an Anders brief in the Superior Court.

Appellant thus requested that the PCRA court reinstate his direct appellate

rights nunc pro tunc. Appellant’s Amended PCRA Petition, 5/8/15, at 1-2. On

February 18, 2016, the PCRA court granted Appellant relief and reinstated

Appellant’s direct appeal rights nunc pro tunc. PCRA Court Order, 2/18/16, at

1.

Appellant filed a timely appeal to this Court and claimed, among other

things: 1) that the evidence was insufficient to support his convictions, and

2) that his sentence was illegal because the trial court sentenced him to

unconstitutional mandatory minimum sentences on some of his convictions

and failed to merge his attempted murder and aggravated assault convictions

at sentencing. See Commonwealth v. Hooker, 170 A.3d 1244 (Pa. Super.

2017) (unpublished memorandum) at 1-13. We concluded that Appellant’s

sufficiency of the evidence claims failed, but that Appellant was entitled to

relief on the two, above-mentioned illegal sentencing claims. Id. Therefore,

on May 23, 2017, we affirmed Appellant’s convictions but vacated Appellant’s

judgment of sentence and remanded for resentencing. Id.

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On November 9, 2017, the trial court resentenced Appellant to serve an

aggregate term of 20 to 40 years in prison for his convictions. Appellant did

not file a post-sentence motion; however, Appellant filed a notice of appeal.

Appellant raises three claims on appeal:

[1.] Was the evidence insufficient to establish [the] finding of the jury that two of the complainants suffered serious bodily injury when the evidence only showed that one complainant received [ten] to 15 stitches in her ear and another complainant was shot in the thigh?

[2.] Is [Appellant] entitled to a new sentenc[ing] hearing when the trial court imposed a sentence of 20 to 40 years in prison at the re-sentencing hearing the same sentence that was imposed at the original sentencing which does not take into consideration [Appellant’s] good behavior in prison for 12 years while serving the sentence?

[3.] Is the sentence imposed at resentencing illegal because the trial court did not order credit for time served in the resentencing order when [Appellant] has spent over 11 years in custody prior to the resentencing serving his sentence in this case?

Appellant’s Brief at 2.

Appellant first claims that the evidence was insufficient to support his

convictions. Yet, since Appellant is on direct appeal following remand for the

limited purpose of resentencing, we may not reach the merits of Appellant's

challenge to his underlying convictions. Commonwealth v. Anderson, 801

A.2d 1264, 1266 (Pa. Super. 2002) (on direct review following remand for

resentencing, the only issues subject to appellate scrutiny are challenges to

the sentence imposed on remand); Commonwealth v. Lawson, 789 A.2d

252, 253–254 (Pa. Super. 2001) (“where a case is remanded to resolve a

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limited issue, only matters related to the issue on remand may be appealed”).

Appellant’s first claim thus fails, as it is unreviewable.

Second, Appellant challenges the discretionary aspects of his sentence.

See Appellant’s Brief at 9. This claim is waived, as Appellant did not challenge

the discretionary aspects of his sentence during the sentencing hearing or in

a post-sentence motion. See Pa.R.Crim.P. 720; Pa.R.A.P. 302(a) (“[i]ssues

not raised in the lower court are waived and cannot be raised for the first time

on appeal”); Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super.

2013) (“issues challenging the discretionary aspects of a 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”); see also N.T. Sentencing,

11/9/17, at 1-30.

Finally, Appellant claims that his sentence is illegal because the trial

court’s “re-sentencing order of [November 9, 2017] does not give him any

credit for time served nor does it order credit for time served.” Appellant’s

Brief at 11. This claim fails because the trial court’s November 9, 2017

resentencing order explicitly declares: “Credit for time served: [Appellant]

to receive credit for time already served on this matter.” Sentencing Order,

11/9/17, at 1. Therefore, since the record belies Appellant’s final claim on

appeal, the claim fails.

Judgment of sentence affirmed. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/19

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