Com. v. Johnson, J. ( 2022 )

J-S27036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH JOHNSON :
:
Appellant : No. 1496 EDA 2021
Appeal from the Judgment of Sentence Entered July 16, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004171-2019
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 13, 2022
Joseph Johnson (“Johnson”) appeals from the judgment of sentence
imposed after he entered open guilty pleas to persons not to possess firearms
and possession with intent to deliver a controlled substance (“PWID”).1 We
affirm.
The trial court summarized the factual history of this appeal as follows:
Officers observed [Johnson] provide marijuana to a
confidential informant in exchange for pre-recorded buy money
from his home on April 30, 2019, May 2, 2019, and May 3, 2019.
[Johnson] was arrested outside of his home immediately following
the final sale on May 3, 2019. The prerecorded buy money was
found on his person at the time of his arrest. Officers then
executed a search warrant at [Johnson’s] home and recovered
drugs, materials used for the sale of such drugs, firearms, and
ammunition[, including] three loaded firearms, one of which was
loaded with a fifty-one round barrel magazine[.] [F]ive additional
firearms and ammunition were recovered from a safe . . ..
____________________________________________
1 See 18 Pa.C.S.A. § 6105; 35 P.S. § 780-113(a)(30).
J-S27036-22
Trial Court Opinion, 2/15/22, at 1-2. Johnson, who was represented by
privately retained counsel (“plea counsel”), pleaded guilty to one count each
of persons not to possess firearms and PWID. On July 16, 2021, the trial court
sentenced Johnson to an aggregate term of five to ten years of imprisonment.2
Johnson did not object to the trial court’s sentence and did not file a post-
sentence motion. Johnson timely appealed, and both he and the trial court
complied with Pa.R.A.P. 1925.3
Johnson raises the following issue on appeal:
Did the lower court abuse its discretion by imposing an
unreasonable and manifestly excessive sentence that failed to
adhere to the general sentencing principles set forth in 42
Pa.C.S.A. § 9721(b), in that the [c]ourt imposed a sentence that
exceeded what was necessary to protect the public, and the
community, failed to fully consider [Johnson’s] background and
____________________________________________
2 The trial court sentenced Johnson to three to six years of imprisonment for
the firearms offense, which was within the standard range of the sentencing
guidelines, and a consecutive two to four years of imprisonment for PWID,
which was outside the guideline range.
The transcripts of the sentencing hearings on July 13 and July 16, 2021, are
mislabeled. Specifically, the transcript labeled July 13 contains the testimony
from the July 16 hearing, when the trial court imposed its sentence, and the
transcript labeled July 16 hearing contains the testimony from the July 13
hearing. See Trial Court Opinion, 2/15/22, at 2 n.1. We will cite to the
transcript reflecting the court’s imposition of sentence as “N.T., 7/13/21,”
although that hearing occurred on July 16.
3 After filing the notice of appeal, plea counsel filed an application to withdraw
from representation in this Court. This Court granted the application and
remanded for the trial court to determine whether Johnson was entitled to
appointed counsel. See Order, 8/24/21. The trial court appointed present
counsel who, with leave of the trial court, filed a nunc pro tunc Rule 1925(b)
statement. Present counsel did not seek leave to file or file post-sentence
motions nunc pro tunc.
-2-
J-S27036-22
character, and imposed a sentence that was well beyond what was
necessary to foster the rehabilitative needs of [Johnson]?
Johnson’s Brief at 4.
Johnson sole issue in this appeal challenges the discretionary aspects of
the trial court’s aggregate sentence. A challenge to the discretionary aspects
of a sentence does not entitle an appellant to review as of right. See
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Rather,
such a challenge is considered a petition for permission to appeal. See
Commonwealth v. Christman, 225 A.3d 1104, 1107 (Pa. Super. 2019).
Before reaching the merits of a discretionary sentencing issue,
[w]e conduct a four-part analysis to determine: (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; (3) 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, 42 Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (internal citation and brackets omitted).
In the case sub judice, Johnson did not object to the trial court’s
aggregate sentence at the sentencing hearing, and he did not file a post-
sentence motion to reconsider or modify his sentence.4 Thus, he has waived
____________________________________________
4 We acknowledge Johnson’s claim that plea counsel refused his request to file
post-sentence motions. See Johnson’s Brief at 6. However, Johnson did not
raise this claim of ineffective assistance of counsel in the trial court, nor would
such a claim be cognizable under the circumstances of this direct appeal. See
Commonwealth v. Rosenthal, 233 A.3d 880, 886-87 (Pa. Super. 2020)
(discussing the limited exceptions that permit a court to consider ineffective
(Footnote Continued Next Page)
-3-
J-S27036-22
any issue challenging the discretionary aspects of the sentence. See
Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975-76 (Pa. Super.
2019) (noting that that “[o]bjections to the discretionary aspects of a sentence
are generally waived if they are not raised at the sentencing hearing or in a
motion to modify the sentence imposed”) (internal citation and quotations
omitted).
Because there are no preserved issues in this appeal, we affirm the
judgment of sentence.5
Judgment of sentence affirmed.
____________________________________________
assistance of counsel claims in a direct appeal); see also Commonwealth v.
Delgros, 183 A.3d 352, 361 (Pa. 2018); Commonwealth v. Holmes, 79
A.3d 562, 563-64 (Pa. 2013).
5Even if Johnson had properly preserved his issue, we would find it meritless.
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. See Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.
Super. 2009) (internal citations omitted). A trial court that has the benefit of
a pre-sentence investigation report is presumed to be aware of the relevant
sentencing considerations. See Commonwealth v. Ventura, 975 A.2d
1128, 1135 (Pa. Super. 2009). Moreover, a sentencing court retains
discretion whether to impose concurrent or consecutive sentences. See
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).
Here, Johnson asserts that the trial court failed to consider his individual
circumstances and mitigating factors before imposing the aggregate sentence
of five to ten years of imprisonment. However, the trial court clearly set forth
its reasons for sentencing outside the guidelines for PWID and running that
sentence consecutively to the standard range sentence for the firearms
offense, and we would find no abuse of discretion in its consideration and
weighing of all relevant sentencing factors, including the appropriate
mitigating factors cited by Johnson. See N.T., 7/13/21, at 46-51.
-4-
J-S27036-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2022
-5-