Com. v. Johnston, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TRON JOHNSTON
Appellant No. 1777 WDA 2015
Appeal from the Judgment of Sentence January 24, 2014
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000053-2004
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 09, 2016
Tron J. Johnston appeals from the judgment of sentence entered in the
Court of Common Pleas of Jefferson County following revocation of his
probation. We affirm.
On March 3, 2004, after pleading guilty to three counts of possession
with intent to deliver (PWID)1 at docket numbers CR-700-2003, CR-51-2004
and CR-53-2004 and one count of possession of drug paraphernalia2 at CR-
52-2004, the trial court sentenced Johnston to two years’ probation. On
October 8, 2004, the court revoked Johnston’s probation after he tested
positive for heroin and resentenced him to five to ten years’ consecutive
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1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(32).
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incarceration at docket numbers CR-700-2003, CR-51-2004 and CR-53-2004
and six months’ to one year’s incarceration at docket number CR-52-2004,
for an aggregate term of fifteen-and-a-half to thirty-one years’ incarceration.
On November 3, 2005, this Court vacated Johnston’s entire sentence
and remanded to the trial court for resentencing. On remand, the trial court
resentenced Johnston to five years’ intermediate punishment at CR-700-
2003, two-and-a-half to five years’ incarceration and one year of probation
at CR-51-2004, one year of probation at CR-52-2004, and two years’
probation at CR-53-2004.
On April 7, 2011, Johnston pled guilty to reckless endangerment of
another person (REAP)3 in an unrelated case. At the time, Johnston had
completed serving his sentence at CR-700-2003. The trial court revoked his
probation at docket numbers CR-51-2004 and CR-53-20044 and sentenced
him to two-and-a-half to five years’ incarceration at CR-51-2004 and a
consecutive sentence of three years’ probation at CR-53-2004.
On January 24, 2014, after pleading guilty to recklessly endangering
the welfare of a child5 and simple assault,6 the trial court revoked Johnston’s
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3
18 Pa.C.S. § 2705.
4
Johnston had already served his probation at CR-52-2004.
5
18 Pa.C.S. § 4304.
6
18 Pa.C.S. § 2701.
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probation at CR-53-2004 and resentenced him to seven-and-a-half to fifteen
years’ incarceration for the underlying PWID conviction.
On January 21, 2015, Johnston filed a timely pro se PCRA petition,
alleging that revocation counsel failed to appeal the revocation sentence at
CR-53-2004 on his behalf and seeking reinstatement of his post-sentence
rights. Johnston was appointed PCRA counsel and filed an amended PCRA
petition on March 16, 2015. On October 15, 2015, the trial court reinstated
Johnston’s post-sentence rights. On October 21, 2015, Johnston filed a
motion to modify sentence, alleging that the revocation court abused its
discretion in sentencing him to seven-and-a-half to fifteen years’
incarceration at CR-53-2004. The revocation court denied the motion on
October 22, 2015. Johnston filed this timely appeal on November 9, 2015,
and then filed a Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal on November 22, 2015.
Johnston raises the following issue on appeal:
Did the trial court abuse its discretion by imposing the maximum
statutorily allowed probation revocation sentence of seven[-
]and[-]one[-]half (7½) to fifteen (15) years’ incarceration, with
credit for time served, without considering all relevant
sentencing factors, resulting in an excessive, unreasonable, and
harsh sentence contrary to the fundamental norms that underlie
the sentencing process[,] considering the nature of the crime?
Appellant’s Brief, at 5.
On appeal, Johnston’s primary contention is that the revocation court
placed “more emphasis on [Johnston’s] prior convictions, for which he had
already been sentenced . . . than [on] the underlying crime of [PWID],
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resulting in an excessive and unreasonably harsh sentence.” Appellant’s
Brief, at 21. This issue involves a challenge to the discretionary aspects of
Johnston’s revocation sentence.
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding and the legality of the
judgment of sentence imposed. Commonwealth v. Heilman, 876 A.2d
1021, 1026 (Pa. Super. 2005). Notwithstanding the stated scope of review
suggesting that only the legality of a sentence is reviewable, an appellant
may also challenge the discretionary aspects of a sentence imposed
following revocation. Commonwealth v. Sierra, 752 A.2d 910, 912 n.6
(Pa. Super. 2000). See also Commonwealth v. Cartrette, 83 A.3d 1030,
1034 (Pa. Super. 2013) (en banc) (scope of review following revocation
proceedings includes discretionary sentencing claims).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Sierra, supra. An appellant is not
entitled to review of the discretionary aspects of sentencing unless he or she
satisfies a four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
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Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en
banc) (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011)).
Instantly, Johnston filed a timely notice of appeal following the
reinstatement of his post-sentence rights, and he preserved his challenge to
the discretionary aspects of his sentence by raising the issue in a motion to
modify his sentence. Johnston’s brief includes a statement of the reasons
relied upon for allowance of appeal regarding the discretionary aspects of his
sentence pursuant to Pa.R.A.P. 2119(f). Accordingly, we must determine
whether Johnston presents a substantial question that the sentence from
which he appeals is not appropriate under the Sentencing Code.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa. Super. 2003). A substantial question exists “only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912–13.
Instantly, Johnston contends that his revocation sentence is
inconsistent with the provision of the Sentencing Code requiring that the
court consider “the gravity of the offense as it relates to the impact on the
life of the victim and on the community.” 42 Pa.C.S. § 9721(b). Johnston
argues that the revocation court considered only the gravity and impact of
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Johnston’s previous convictions for REAP, simple assault, and endangering
the life of a child for which he had already been sentenced, while failing to
take into account the relatively mild gravity and impact of Johnston’s
underlying conviction for PWID.
“In general, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.”
Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa. Super. 2006). A
sentence should not be disturbed where it is evident the court was aware of
the appropriate sentencing considerations and weighed them in a meaningful
fashion. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000).
We note that where the sentencing court has reviewed a presentence
investigation report, the court is considered to have appropriately weighed
the requisite sentencing factors. Commonwealth v. Naranjo, 53 A.3d 66,
72 (Pa. Super. 2012).
The Sentencing Guidelines do not apply to sentences imposed
following revocation of probation. Commonwealth v. Ferguson, 893 A.2d
735, 739 (Pa. Super. 2006). “[U]pon sentencing following a revocation of
probation, the trial court is limited only by the maximum sentence that it
could have imposed originally at the time of the probationary sentence.”
Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). A
court can sentence a defendant to total confinement after revoking probation
if the defendant was convicted of another crime, the defendant’s conduct
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indicates it is likely that he will commit another crime if he is not imprisoned,
or such a sentence is essential to vindicate the court’s authority.
Commonwealth v. Crump, 995 A.2d 1280, 1282-83 (Pa. Super. 2010).
Instantly, Johnston’s claim that the revocation court placed undue
emphasis on the gravity and impact of his past crimes, instead of on his
underlying PWID, raises a substantial question. Sierra, supra. However,
the record belies Johnston’s claim that the revocation court considered only
the gravity and impact of his previous convictions at the expense of
discounting his underlying conviction for PWID.
The record reveals that the revocation court reviewed several
presentence investigation reports dating back to 2004. The revocation court
offered ample support for resentencing Johnston to the statutory maximum
for his PWID conviction, namely Johnston’s repeated convictions for
unrelated crimes while on probation and his apparent inability to refrain from
breaking the law. The revocation court offered the following support for its
sentence:
I read your presentence investigation, the addendums, the
attachments; and, of course, this goes back to ’04. We’re
dealing with a situation where you’ve been convicted of
endangering [the] welfare of a child as a felony 3 and the simple
assault as a misdemeanor 1. The child is age four, and this
follows the last case, probation revocation on the other dockets.
And I sent you to state prison on – it was – you pled to a
recklessly endangering for the death of an individual who was
riding in your car. Considering that length of time, the fact that
you haven’t been crime-free, and [the] new charges involving
children, I think the recommendation is appropriate. So I’m
going to revoke your probation, sentence you to no less than 7[-
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]and[-]a[-]half nor more than 15 years concurrent with 639 and
209 of 2013.
N.T. Gagnon II Hearing, 1/22/14, at 4. The record supports the court’s
decision. Thus, Johnston’s discretionary aspects of sentencing claim merits
no relief. Hoover, supra. See also Fish, supra; Naranjo, supra.Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2016
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