Com. v. Johnson, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS JOHNSON, JR. :
:
Appellant : No. 911 WDA 2020
Appeal from the Judgment of Sentence Entered June 24, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003375-2018
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED: JULY 21, 2021
Thomas Johnson, Jr., appeals from the judgment of sentence, entered
in the Court of Common Pleas of Erie County, after he entered a negotiated
guilty plea1 to one count of statutory sexual assault.2 Counsel has filed a
petition to withdraw on appeal pursuant to Anders v. California, 386 U.S.
____________________________________________* Retired Senior Judge assigned to the Superior Court.
1 Johnson’s guilty plea was negotiated as to the charges, but left open with
regard to sentencing. Johnson acknowledged in writing that, by virtue of his
conviction for statutory sexual assault, 18 Pa.C.S.A. § 3122.1(b), a Tier III
offense, he is subject to the provisions of Pennsylvania’s Sexual Offender
Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10 et seq.
See id.; see also Notice to Defendant of Duty to Register Pursuant to
[SORNA] Subchapter H, “Registration of Sexual Offenders,” 6/24/19.
2 18 Pa.C.S.A. § 3122.1(b) (first-degree felony where complainant under 16
years of age and defendant at least 11 years older).
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738 (1967). Upon review, we affirm Johnson’s judgment of sentence and
grant counsel’s petition to withdraw.
On March 4, 2019, [Johnson] entered a negotiated guilty plea
before the Honorable John J. Mead to count one, statutory sexual
assault. The charges at count two, unlawful contact with a minor,
and count three, corruption of minors, were nolle prossed. The
conviction at count one arose from [Johnson]’s actions in
engaging in sexual intercourse with a fifteen[-]year-old. On June
24, 2019, [Johnson] was sentenced . . . to five to ten years of
incarceration, consecutive to any other sentence [he] was
currently serving. The sentence was at the low end of the
standard range of the guidelines. A fully executed notice of
[Johnson]’s duty of lifetime registration for sexual offenders was
filed with the Clerk of Courts.
[Johnson] filed a motion to modify and reduce sentence, which
the court denied on July 15, 2019. On August 9, 2019, [Johnson]
filed a counseled notice of appeal[,] and on August 12, 2019, the
court issued a concise statement order [pursuant to Pa.R.A.P.
1925]. On September 3, 2019, plea and sentencing counsel filed
a statement of intent to file an Anders brief. On September 26,
2019, the court filed its Rule 1925(b) opinion.
On October 7, 2019, the Superior Court dismissed the appeal for
nonconformance with Pa.R.A.P. 3517 regarding filing of docket
statements. [Per Curiam Order, 10/7/19]. The order of October
7, 2019 directed counsel to certify within ten (10) days [that
Johnson] was notified of the entry of the order. As of March 11,
2020, no further filings were recorded on the Superior Court
docket. Thus, it appears no docketing statement was filed, and
[Johnson] was not notified of the dismissal of the appeal, or the
reason therefor[].
On March 5, 2020, [Johnson], pro se, filed a motion for post-
conviction collateral relief seeking, inter alia, reinstatement of
direct appeal rights. On March 17, 2020, the [c]ourt reinstated
direct appeal rights nunc pro tunc, granted [Johnson in forma
pauperis] status, and appointed . . . appellate counsel. The court
directed appellate counsel to file a notice of appeal within thirty
(30) days.
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On August 31, 2020, [Johnson]’s counsel filed a motion to file
notice of appeal nunc pro tunc, and concurrently filed a notice of
appeal. On September 2, 2020[,] the court granted the motion.
Concurrently, the court directed counsel to file a Rule 1925(b)
statement of matters complained of on appeal [with]in 21 days.
On September 21, 2020, [Johnson] filed a Rule 1925(b)
statement, averring as follows:
The trial court abused its discretion in sentencing [Johnson]
to five to ten years of incarceration consecutive to any other
sentence [Johnson] is currently serving[.]
Trial Court Opinion, 9/30/20, at 1-3 (unnecessary capitalization omitted).
On November 16, 2020, appellate counsel filed an Anders brief and
petition to withdraw as counsel. The brief was stricken, however, and the
petition denied by order dated November 25, 2020, because counsel did not
adequately comply with Anders and Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009).3 Counsel filed a brief on December 8, 2020, but did not file
a petition to withdraw as counsel. On March 2, 2021, this Court ordered
appellate counsel to (1) file a petition to withdraw as counsel, (2) serve the
petition upon Johnson with an attached copy of a notice of rights letter, and
(3) amend the cover page of her brief to indicate it is an Anders brief. Per
Curiam Order, 3/2/21, at 1. On March 9, 2021, counsel filed an amended
Anders brief, a motion to withdraw as counsel, and copy of her notice of rights
letter to Johnson, dated March 9, 2021. Johnson raises the following issue for
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3 Specifically, “[c]ounsel failed to attach the notice of rights letter to the
Petition for Permission to Withdraw as Counsel – attachment to the brief is
insufficient. See Commonwealth v. Hankerson, 118 A.3d 415, 419-20 (Pa.
Super. 2015)[.]” Order, 11/25/20, at 1.
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our review: “Whether the trial court abused its discretion when it sentenced
[Johnson] to a low end of the standard range sentence with a fully executed
notice of [his] duty of lifetime registration or sexual offenders?” Anders brief,
3/9/21, at 7.
Prior to reviewing Johnson’s claim, we must determine if counsel has
complied with the procedural requirements for withdrawal. An attorney
seeking to withdraw on appeal must comply with certain procedural and
briefing requirements. Specifically, counsel must:
(1) petition the [C]ourt for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; (2) furnish a copy
of the brief to the [appellant]; and (3) advise the [appellant] that
he or she has the right to retain private counsel or raise additional
arguments that the [appellant] deems worthy of the [C]ourt’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court, in Santiago, stated
that an Anders brief 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.
Santiago, supra at 361.
Counsel also must provide the appellant with a copy of the Anders brief,
together with a letter that advises the appellant of his or her right to “(1)
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retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3)
raise any points that the appellant deems worthy of the [C]ourt’s attention in
addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citation
omitted). Substantial compliance with these requirements is sufficient.
Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).
Here, counsel has filed a motion to withdraw and an Anders brief. In
her motion, counsel states that after a thorough and conscientious
examination of the record, she has determined that the appeal is wholly
frivolous. See Motion to Withdraw, 3/9/21. Additionally, counsel mailed
Johnson a copy of the Anders brief and a letter advising him of his right to
retain private counsel, represent himself on appeal, and/or raise any
additional issues he believed the Court should consider. 4 See Letter from
Attorney Hermann to Johnson, 3/9/21. Finally, counsel’s brief sets out one
issue of arguable merit and, pursuant to the dictates of Santiago, explains
why she believes the appeal to be frivolous. Accordingly, counsel has
substantially complied with the requirements of Anders and Santiago.
Therefore, we may review the issue raised by counsel and conduct our
independent review of the record.
____________________________________________
4 Johnson has not filed a pro se response to counsel’s Anders brief or retained
counsel to represent him on appeal.
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Johnson baldly asserts that the trial court abused its discretion in
sentencing him to five to ten years of incarceration for statutory sexual assault
pursuant to a negotiated plea agreement. No relief is due.
Our standard of review in sentencing matters 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. Hoch, 936 A.2d 515, 517 (Pa. Super. 2007).
“Generally, a plea of guilty amounts to a waiver of all defects and
defenses except those concerning the jurisdiction of the court, the legality of
the sentence, and the validity of the guilty plea.”5 Therefore, to the extent
that Johnson raises a challenge to the discretionary aspects of his sentence,
this claim is waived.6 Id.____________________________________________
5 Johnson does not challenge the jurisdiction of the sentencing court or the
validity of his guilty plea.
6 Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right. Commonwealth v. Tukhi, 149 A.3d 881,
888 (Pa. Super. 2016). Rather, an appellant challenging the discretionary
aspects of his sentence must invoke this Court’s jurisdiction by satisfying a
four-part test. Id. We evaluate:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
(Footnote Continued Next Page)
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Pursuant to 42 Pa.C.S.A. § 9781(c), this Court shall vacate an
appellant’s judgment of sentence and remand for resentencing only if the
sentencing court: (1) purported to sentence within the sentencing guidelines
but applied the guidelines erroneously; (2) sentenced within the sentencing
guidelines, but the case involves circumstances where the application of the
guidelines would be clearly unreasonable; or (3) sentenced outside the
sentencing guidelines and the sentence is unreasonable. Id. We consider,
inter alia, the nature and circumstances of the offense, the characteristics and
____________________________________________
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220-21 (Pa. Super. 2011)
(internal citations and quotation marks omitted).
To determine whether a substantial question exists, this Court looks to
“whether the appellant has forwarded a plausible argument that the sentence,
when it is within the guideline ranges, is clearly unreasonable. Concomitantly,
the substantial question determination does not require the court to decide
the merits of whether the sentence is clearly unreasonable.”
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013);
Commonwealth v. Felix, 539 A.2d 371, 378 (Pa. Super. 1988) (Court may
consider both Pa.R.A.P. 2119(f) statement and Pa.R.A.P. 1925(b) statement
of questions presented to determine if substantial questions are raised). Here,
Johnson has not advanced any argument, plausible or otherwise, that his
sentence is clearly unreasonable or inconsistent with any provision of the
Sentencing Code. See Anders Brief, at 11-14. Thus, even if Johnson’s
challenge to the discretionary aspects of his sentence were not waived, and
“even if we were to find merit to the appeal, we would be precluded from
reviewing it[. Griffin, supra.] . . . Nevertheless, it is necessary for us to
examine the merits of the appeal to determine if it is wholly frivolous to permit
counsel’s withdrawal.” Commonwealth v. Wilson, 578 A.2d 523, 525 (Pa.
Super. 1990) (internal quotations omitted).
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history of the defendant, the opportunity of the sentencing court to observe
the defendant, including any presentence investigation report (PSI), the
findings on which the sentence was based, and the Pennsylvania sentencing
guidelines. Id. at § 9781(d).
Instantly, Johnson has not identified any provision of the sentencing
guidelines, nor any other statute, allegedly violated by the sentencing court.
Johnson has also failed to demonstrate any circumstances under which
application of the guidelines would be clearly unreasonable. Johnson was 38
years old and on probation at the time he had sexual relations with a 15-year-
old friend of his daughter. The victim gave birth to Johnson’s child when she
was 16 years old. See N.T. Sentencing Hearing, 6/24/19, at 14. Johnson’s
sentence resulted from a negotiated plea agreement whereby two charges
against him were nolle prossed. The sentencing court stated on the record
that, in fashioning Johnson’s sentence, it considered: a PSI;7 the statements
of both counsel, Johnson, and Johnson’s two character witnesses; that
Johnson was on state supervision at the time of the offense; Johnson’s prior
criminal activity, including burglaries, receiving stolen property, retail theft,
criminal trespass, driving under the influence of alcohol, and violating a
protection from abuse order; the nature of Johnson’s offense, including the
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7 See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (where court
is in possession of PSI, we “presume that the sentencing judge was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors”).
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age difference between Johnson and his victim and the long-lasting impact on
the victim as a new, young mother; and the Pennsylvania Sentencing
Guidelines. See id. at 17-18. At the time of sentencing, Johnson’s prior
record score was five (5), and the offense gravity score of statutory sexual
assault was nine (9). See Guideline Sentence Form, 6/2019 (specific date
unascertainable due to holes punched in certified record). Therefore, a
standard-range sentence is 60 to 72 months of imprisonment. See 204 Pa.
Code § 303.16. Having been convicted of a first-degree felony, the maximum
sentence permitted by statute is a term of twenty years. See 18 Pa.C.S.A. §
1103. Here, Johnson’s sentence of five-to-ten years of imprisonment was
within the standard range sentence and below the statutory maximum
sentence. Moreover, the sentencing court has clear authority pursuant to
section 9721 to impose sentences either consecutively or concurrently. See
id.; see also Commonwealth v. Wright, 832 A.2d 1104, 1107 (Pa. Super.
2003) (same).
Under these circumstances, we find Johnson’s appeal to be wholly
frivolous.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2021
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