Com. v. Bond, H. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAKIM BOND,
Appellant No. 1704 EDA 2015
Appeal from the Judgment of Sentence May 29, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007714-2009
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 06, 2016
Appellant, Hakim Bond, appeals from the judgment of sentence
imposed after resentencing for murder and related crimes. The court
originally imposed a term of life imprisonment without possibility of parole.
However, Appellant was still a juvenile at the time of the crime. On
resentencing, the court imposed a sentence of thirty-five years’
imprisonment to life, with credit for time served. Counsel has filed an
Anders1 brief, and petitioned for permission to withdraw. We affirm the
judgment of sentence and grant counsel permission to withdraw.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967).
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On January 20, 2006, Appellant and Nafeas[t] Flamer shot the victim,
Allen Moment, Jr., a total of fourteen times. Appellant, born on September
14, 1988, was seventeen at the time of the shooting. (See Resentencing
Order, 5/29/15). Mr. Moment survived the shooting but his injuries left him
“essentially quadriplegic.” (Commonwealth v. Bond, No. 3473 EDA 2012,
[2014 WL 10789960], at *3 n.2 (Pa. Super. filed Oct. 7, 2014) (unpublished
memorandum)). He remained hospitalized for two-and-a-half years,
requiring constant nursing care and frequent intensive care unit admissions
for the rest of his life. (See id.).
Although Mr. Moment knew his assailants (Appellant was a friend for
many years, and the Flamers were his cousins), he refused to identify them
until his doctor informed him that he was about to die. (See id. at *3). The
victim died on August 6, 2008. (See id. at *4).
A jury convicted Appellant of first-degree murder, conspiracy to
commit murder, and possession of an instrument of crime. He was
sentenced to life imprisonment without the possibility of parole. But
because he was a juvenile at the time of the commission of the crimes, in
2014 our predecessor panel vacated his judgment of sentence pursuant to
Miller v. Alabama, 132 S. Ct. 2455 (2012), and Commonwealth v. Batts,
66 A.3d 286 (Pa. 2013), and remanded the case to the trial court for re-
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sentencing. (See Bond, supra at *1). In all other respects, the panel
affirmed, rejecting Appellant’s other claims. (See id. at *1).2
On remand, the trial court resentenced Appellant to a term of not less
than thirty five years’ incarceration nor more than life imprisonment, with
credit for time served. (See N.T. Sentencing, 5/29/15, at 20-21). The court
expressly contemplated the possibility of release and supervision by the
State Parole Board. (See id. at 21).
On June 9, 2015, Appellant timely filed a notice of appeal, pro se. The
court appointed counsel, who filed a concise statement of errors indicating
his intention to file the instant Anders brief.3 (See Concise Statement,
7/23/15, at 1-2).
Direct appeal counsel seeking to withdraw under Anders must file a
petition averring that, after a conscientious examination of the record,
counsel finds the appeal to be wholly frivolous. Counsel must also file an
Anders brief referring to anything in the record that might arguably support
the appeal. See Anders, supra at 744.
____________________________________________
2
The prior panel rejected claims of prosecutorial misconduct, challenges to
the admission of the identification as a dying declaration, and attacks on the
sufficiency and the weight of the evidence. (See Bond, supra at *6-*15).
3
There is nothing in the record to indicate that Appellant filed any response.
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Anders counsel must also provide a copy of the Anders petition and
brief to the Appellant, advising him of the right to retain new counsel,
proceed pro se or raise any additional points worthy of this Court’s attention.
Our Supreme Court has clarified portions of the Anders procedure:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations to
the record; (2) refer to anything in the record that counsel
believes arguably supports the appeal; (3) set forth counsel’s
conclusion that the appeal is frivolous; and (4) state counsel’s
reasons for concluding that the appeal is frivolous. Counsel
should articulate the relevant facts of record, controlling case
law, and/or statutes on point that have led to the conclusion that
the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
If counsel’s petition and brief satisfy Anders and Santiago, we will
then undertake our own review of the appeal to determine if it is wholly
frivolous. If the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-frivolous issues,
we will deny the petition and remand for the filing of an advocate’s brief.
See Commonwealth v. Wrecks, 931 A.2d 717, 720–21 (Pa. Super. 2007).
Based on our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements of Anders and Santiago.
Therefore, we now have the responsibility to examine the case and
make an independent judgment to decide whether the appeal is in fact
wholly frivolous. See Wrecks, supra at 721.
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Counsel raises two questions in the Anders brief.
1. Whether the trial [j]udge resentenced [A]ppellant to a
legal sentence for Murder of the First Degree, by a juvenile, of
35 years to life with the possibility of parole, which was the
minimum sentence allowed by statute[?]
2. Whether the resentence is Cruel and Unusual
Punishment[?]
(Anders Brief, at 4).
Because the claims raised relate to the legality of sentence, our
standard of review is de novo and our scope of review is plenary. See
Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa. Super. 2014); see
also Commonwealth v. Carr, 543 A.2d 1232, 1234 (Pa. Super. 1988),
appeal denied, 554 A.2d 506 (Pa. 1988) (claim of unconstitutionally cruel
and unusual punishment raises challenge to legality of sentence).
Neither issue merits relief. Appellant’s sentence of thirty-five years to
life imprisonment with possibility of parole was a legal sentence. See 18
Pa.C.S.A. § 1102.1(a)(1). Because Appellant is no longer subject to
mandatory life imprisonment without the possibility of parole, his sentence
offends neither Miller nor Batts. Furthermore, this Court has previously
decided that Section 1102.1 does not offend the Cruel and Unusual
Punishment Clause of the Eighth Amendment. See Commonwealth v.
Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014), appeal denied, 114 A.3d
416 (Pa. 2015).
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On independent review, we find no other non-frivolous issues. We also
note that “where a case is remanded to resolve a limited issue, only matters
related to the issue on remand may be appealed.” Commonwealth v.
Lawson, 789 A.2d 252, 253 (Pa. Super. 2001) (citation omitted). The prior
panel reviewed and rejected all other direct appeal issues except for the life
without parole sentence. (See Bond, supra at 6-15).
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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