Com. v. Johnson, J.

J-S73032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN RAPHAEL JOHNSON
Appellant No. 420 WDA 2016
Appeal from the Judgment of Sentence June 30, 2015
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002847-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN RAPHAEL JOHNSON
Appellant No. 421 WDA 2016
Appeal from the Judgment of Sentence June 30, 2015
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002848-2014
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 25, 2016
Justin Raphael Johnson (“Appellant”) appeals from the June 30, 2015
judgment of sentence entered in the Erie County Court of Common Pleas
J-S73032-16
following his guilty plea to possession of a controlled substance, 1 possession
of a controlled substance with intent to deliver (“PWID”),2 and possession of
a firearm prohibited.3 After careful review, we affirm.
On May 6, 2015, Appellant entered a negotiated guilty plea to
possession of a controlled substance at Docket No. CP-25-CR-0002847-
2014, and PWID and possession of a firearm prohibited4 at Docket No. CP-
25-CR-0002848-2014. As part of the negotiated guilty plea, the
Commonwealth nolle prossed the remaining charges against Appellant.5
On June 30, 2015, the trial court sentenced Appellant to a term of 40
to 80 months’ incarceration on the PWID conviction, a term of 60 to 120
months’ incarceration on the possession of a firearm prohibited conviction to
be served consecutively to the PWID sentence, and term of 3 years’
probation for the possession of a controlled substance conviction to be
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1
35 P.S. § 780-113(a)(16).
2
35 P.S. § 780-113(a)(30).
3
18 Pa.C.S. § 6105(a)(1).
4
18 Pa.C.S. § 6105(a)(1).
5
At Docket No. CP-25-CR-0002847-2014, the Commonwealth nolle prossed
two counts of PWID, one count of possession of a controlled substance, and
one count of possession of drug paraphernalia. At Docket No. CP-25-CR-
0002848-2014, the Commonwealth nolle prossed one count of possession of
a controlled substance, one count of possession of drug paraphernalia, one
count of receiving stolen property, one count of firearms not to be carried
without a license, and one count of conspiracy to commit receiving stolen
property.
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served consecutively to the possession of firearms prohibited conviction.
Appellant’s aggregate sentence was therefore 100 to 200 months’
incarceration followed by 3 years’ probation.
Appellant did not file a direct appeal. However, on September 23,
2015, Appellant filed a petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. § 9541 et seq., claiming ineffective assistance of
counsel and seeking the reinstatement of his post-sentence and direct
appeal rights. The PCRA court granted Appellant’s PCRA petition on January
21, 2016.
On February 19, 2016, Appellant filed a motion for
reconsideration/modification of sentence, which the trial court denied on
February 22, 2016. On March 21, 2016, Appellant filed a notice of appeal.
On April 8, 2016, Appellant filed a concise statement of matters complained
of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued its
Pa.R.A.P. 1925(a) opinion on April 13, 2016.
Appellant raises the following three (3) issues for our consideration:
A. Whether the sentencing court abused its discretion in
imposing a consecutive sentencing scheme as to the sentence
imposed at docket number 2848 of 2014, which amounted to a
manifestly excessive sentence?
B. Whether the lower [c]ourt committed legal error and abused
its discretion in failing to set forth a legally sufficient
contemporaneous statement in support of the imposition of a
consecutive sentencing scheme?
C. Whether the legal predicate cited by the sentencing [c]ourt
for the imposition of a consecutive sentencing scheme at docket
number 2848 of 2014 that the respective criminal offenses
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occurred at different times was not factually accurate and thus
failed to comprise a valid and legally justifiable predicate for that
sentencing election of consecutive sentences?
Appellant’s Brief, p. 2.
Appellant’s claims challenge the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011). Before this Court can address such a discretionary
challenge, an appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying 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]; (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.
Allen, 24 A.3d at 1064.
Here, Appellant filed a timely notice of appeal and preserved his
discretionary aspects of sentencing issue in a motion for reconsideration of
sentence. Further, Appellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).
See Appellant’s Brief, p. 4. Accordingly, we now determine whether
Appellant has raised a substantial question for review and, if so, proceed to
a discussion of the merits of the claim. See Pa.R.A.P. 2119(f);
Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).
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“A substantial question will be found where the defendant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the [sentencing] code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v.
Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see
also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises
a substantial question on a case-by-case basis.” Id. A bald or generic
assertion that a sentence is excessive does not, by itself, raise a substantial
question justifying this Court’s review of the merits of the underlying claim.
Id.; see also Commonwealth v. Harvard, 64 A.3d 690, 701
(Pa.Super.2013). Additionally, a claim that a sentence is unreasonable
because the trial court decided to run certain portions of it consecutive to
one another also does not raise a substantial question for our review. See
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (a claim
that the consecutive nature of sentences violates the Sentencing Code fails
to raise a substantial question for review). A substantial question exists
where the sentencing court failed to provide sufficient reasons for imposing a
sentence outside of the guidelines.6 Commonwealth v. Monohan, 860
A.2d 180, 182 (Pa.Super.2004).
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6
Further, “[i]n every case where a sentencing court imposes a sentence
outside of the sentencing guidelines, the court must provide in open court a
contemporaneous statement of reasons in support of its sentence.”
Commonwealth v. Curran, 932 A.2d 103, 106 (Pa.Super.2007) (citing 42
(Footnote Continued Next Page)
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Further, “[t]his Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903
(Pa.Super.2013); see also Commonwealth v. Ratushny, 17 A.3d 1269,
1273 (Pa.Super.2011) (“argument that the sentencing court failed to
adequately consider mitigating factors in favor of a lesser sentence does not
present a substantial question appropriate for our review.”);
Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa.Super.2006)
(“[A]ppellant’s contention that the trial court did not adequately consider a
mitigating circumstance when imposing sentence does not raise a
substantial question sufficient to justify appellate review of the merits of
such claim.”). However, a challenge to the consecutive imposition of
sentences as unduly excessive together with a claim that the court failed to
consider mitigating factors does present a substantial question.
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super.2015).
Here, Appellant alleges that the trial court imposed an unreasonable
sentence by imposing consecutive sentences without adequate consideration
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(Footnote Continued)
Pa.C.S. § 9721). However, “where a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as appropriate under
the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010).
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of mitigating factors raised at sentencing.7 See Appellant’s Brief, 4-5.
Additionally, Appellant asserts that the trial court did not adequately place
reasons on the record as to why it imposed the sentence it did. See id.Based on the above authority, we conclude that Appellant raises a
substantial question for review. See Swope, supra. We will therefore
address the merits of Appellant’s discretionary aspects of sentencing claim.
We review discretionary aspects of sentence claims under the following
standard of review:
If this Court grants appeal and reviews the sentence, the
standard of review is well-settled: sentencing is vested in the
discretion of the trial court, and will not be disturbed absent a
manifest abuse of that discretion. An abuse of discretion
involves a sentence which was manifestly unreasonable, or
which resulted from partiality, prejudice, bias or ill will. It is
more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)
(citations omitted).
Our review of the sentencing transcript reveals that the lower court did
not abuse its discretion. Instead, the trial court imposed a sentence that
was consistent with the protection of the public, took into account the
gravity of the offense as it related to the impact on the life of the victim and
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7
Although not enumerated in Appellant’s brief, at sentencing, counsel for
Appellant argued Appellant’s age, his past good deeds, his prior enrollment
in school, his drug addiction, and his acceptance of responsibility as factors
that should have mitigated his sentence. See N.T. 6/30/2015, pp. 5-9.
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on the community, and considered the Appellant’s rehabilitative needs, as
required by 42 Pa.C.S. § 9721(b).
In imposing sentence, the trial court considered the sentencing
guidelines, the pre-sentence investigation report, the circumstances of the
crimes, Appellant’s background and criminal history, the arguments of
counsel, the testimony of Appellant’s mother, and the testimony of Appellant
himself. N.T. 6/30/2015, pp. 5-15. The trial court then sentenced Appellant
to a standard range sentence thusly:
I have read the presentence report in its entirety, including
the Sentencing Guidelines. I’ve listened to what you had to say
and your lawyer has had to say, Mr. Johnson, and what your
mom has had to say. And I certainly empathize with your mom
that she has to be here today. And I accept her representations
of your good qualities and things that you have done, and that
you are a caregiver and the things that she described. And that
makes – that’s what makes it even more heart wrenching that
she has to be here today.
I mean, because the reality is this, and it’s no secret here,
I mean, you’ve been in the criminal justice system as a juvenile
for felony sexual offences while you were still in the juvenile
system because you didn’t get discharged from Juvenile Court
until August 17th of 2004. But while you are in the juvenile
system you commit your first offenses as an adult, which are
drug offenses, committed on June 9th of 2004. So you are – you
basically went nonstop from the Juvenile System to the Adult
System and you remained in the Adult System and you keep
digging yourself deeper and deeper in the Adult System.
In 2004, in addition to the offenses in Erie County, you are
involved in a number of robberies down in Allegheny County for
which you were given 5 to 10 years at that point. And obviously
that’s very serious.
In 2005 you have a prior possession with intent to deliver
cocaine, which is what’s involved in this case. And in that case,
according to the presentence report, it was 30.2 – 32.2 grams of
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cocaine. So then you get out. You also have possession and
drug charges for which I sentenced you back in November of
2014 that were committed in February of 2014. One was
February 4th and the other was February 16th.
Meanwhile, these offenses that you are here on involved
you selling crack cocaine on two separate occasions from your
apartment in Granada on January 2nd of 2014, and the other is
on June 12th of 2014. Then when you are arrested on those
charges, you have a loaded gun and 6.15 grams of cocaine on
you. I mean, that’s a pretty consistent pattern.
You know, I recognize that at some point you were
involved in school. And I accept your counsel’s representation
you are an intelligent person. You strike me as an articulate
person. But unfortunately, you have chosen to use your
intelligence in a criminal manner, and it’s while you are on
supervision, on state supervision you’re engaged in these
behaviors.
You are selling crack cocaine in this community and you’re
in possession of a loaded firearm. Those are two very lethal
influences in this community, and I can’t just wink at it and say,
oh, geez, you’ll never do that again. Because your track record
tells me just the opposite.
Now I’m going to fashion a sentence here that’s going to
hold you accountable for each one of these separate offenses.
I’m not going to – there is a light at the end of the tunnel, and
it’s up to you to make something of your life, and I certainly
hope you do, and I certainly hope you do something to make
your mother proud of you.
What I’ll do is this: At Count 1, Docket Number 2848 of
2014, order a sentence in the middle of the standard range of
the Sentencing Guidelines of 40 to 80 months. Order court
costs. Order the lab fee of $113.
At Count 5 at Docket Number 2847 – I’m sorry. Count 5 is
Docket 2848, which is the possession of a firearm, loaded
firearm. Order a sentence which appears to be in the mitigated
range of the Sentencing Guidelines of 60 to 120 months. I
mean, that’s a whole separate day, a whole separate set of
facts, and a whole different crime. I’ll make that consecutive to
Count 1 at Docket 2848. As part of that there is a lab fee for the
firearm of $162.
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At Count 3 at Docket Number 2847 of 2014, I’ll order a
period of probation of 3 years, which I note is below the
mitigated range of the Guidelines. And that will be consecutive
to Count 5 at Docket Number 2848 of 2014.
N.T. 6/30/2015, pp. 13-16.
We find no abuse of discretion in the trial court’s imposition of
Appellant’s standard range sentence. Further, the trial court adequately
explained the imposition of sentence on the record. Accordingly, Appellant’s
excessiveness claims fail on the merits.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2016
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