Com. v. Johnson, C.

J-S79040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHRISTOPHER JOHNSON, :
:
Appellant : No. 549 EDA 2016
Appeal from the Judgment of Sentence January 15, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0003935-2011;
CP-51-CR-0003936-2011
BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 05, 2016
Christopher Johnson (“Johnson”) appeals from the judgment of
sentence imposed following his open plea of nolo contendere to two counts
of assault of a law enforcement officer, and his open guilty plea to two
counts each of simple assault and recklessly endangering another person,
and one count each of carrying firearms on public streets of Philadelphia and
possession of an instrument of crime.1 See 18 Pa.C.S.A. §§ 2702.1(a),
2701, 2705, 6108, 907(a). We affirm.
The trial court set forth the relevant facts as follows:
On October 21, 2010, Officer Michael Dunbar [(“Officer
Dunbar”)] and his partner, Officer Shawn McKnight [(“Officer
McKnight”)], responded to a radio call for burglary in the area of
3600 Germantown Avenue[,] around 12:18 a.m.[,] in a marked
police car and in full uniforms. While driving down towards the
1
Johnson was charged on two separate dockets. The trial court accepted his
pleas and imposed a sentence on both dockets simultaneously. Johnson
filed the instant appeal from both dockets.
J-S79040-16
end of the block, they heard a loud “pop” sound from a parked
white van that was next to them. Officer Dunbar testified that
he thought they were being shot at[,] and was shocked. There
was glass from the white van coming towards their police car.
The officers pulled over, exited the car, and took cover. They
then used a flashlight to look up into a third floor window at
3627 Germantown Avenue and saw several bullet holes through
the screen of the window. … [H]ighway patrol officers
surrounded the area and held the scene. The officers entered
that property and went up to the third floor[,] where they found
[Johnson], Aaron Spencer [(“Spencer”)], and Koran White
[(“White”)] pretending to be asleep. The officers took them out
for identification. Both [White] and [Spencer] provided a police
statement indicating that [Johnson] was the one who shot
outside the window. The officers noted that there was a firearm
on top of the roof of the adjacent property, which is outside of
the third floor window. Although [Johnson’s] DNA was excluded,
the officers recovered the firearm, which was tested as operable.
Paul Riley, an employee at Clock Bar, was interviewed that night
and gave a police statement that he heard multiple shots. He
first heard two shots. Three minutes later, he heard one more
shot, and five minutes later, he heard one last shot.
On October 25, 2010, [Johnson] called his mother[,] … while in
prison[,] and told her that he [thought] [Spencer] and [White]
“snitched on him.” He told his mother that he would not talk
about whether or not he shot at the police, but he told her that
his fingerprints are not on the gun because he “wiped it down.”
When his mother asked him if anybody else shot at the police,
[Johnson] responded [] “no, mom, I’m the only one who shot it.”
He admitted to missing while shooting outside the window[,] and
that the officers recovered the gun from the roof after he threw
the firearm outside the window. On another occasion, [Johnson]
again admitted that he was the person who shot at the police
and that he wiped the gun thoroughly. On October 26, 2010,
during another prison call, [Johnson] said that he was not
shooting at the cop car and that the cop car was nowhere near
there. Rather, he was shooting out the window for fun.
[Johnson] testified that he simply “fired at this minivan and
that’s it” because he “was intoxicated off of Xannies.” However,
there are trajectory rods that show the path of the bullet that go
directly down to the parked cars that were parked on the street.
[Additionally,] [Johnson] does not have a license to carry a
firearm.
-2-
J-S79040-16
Trial Court Opinion, 4/11/16, at 2-4 (internal citations omitted).
On September 15, 2015, Johnson entered the above-mentioned pleas.
The trial court deferred sentencing, and ordered a pre-sentence investigation
report (“PSI”) and a mental health evaluation. On January 15, 2016, after
reviewing the PSI, the trial court sentenced Johnson to an aggregate term of
12-24 years in prison,2 followed by 5 years of probation, with credit for time
served.
On January 25, 2016, Johnson filed a post-sentence Motion
challenging the discretionary aspects of his sentence, which the trial court
denied. Johnson subsequently filed a timely Notice of Appeal and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement.
On appeal, Johnson raises the following questions for our review:
I. Whether there was sufficient evidence to support [Johnson’s]
conviction for two counts of [a]ssault of [a] [l]aw [e]nforcement
[o]fficer?
II. Whether the sentence imposed by the trial court was
manifestly excessive and unreasonable, where the [trial] court
2
Relevant to this appeal, the trial court imposed a prison term of 6 to 12
years for each count of assault of law enforcement officer, to run
consecutive to each other. Notably, under the Sentencing Code, assault of a
law enforcement officer carries a mandatory minimum sentence of 20 years
in prison. See 42 Pa.C.S.A. § 9719.1; see also 18 Pa.C.S.A. § 2702.1(b)
(providing that “a person convicted under subsection (a) shall be sentenced
to a term of imprisonment fixed by the court at not more than 40 years.”).
However, after Johnson entered his plea of nolo contendere, the
Commonwealth agreed not to pursue the mandatory minimum sentence.
See N.T., 9/15/15, at 6, 13.
-3-
J-S79040-16
imposed consecutive sentences above the applicable guideline
range, which does not reflect [Johnson’s] rehabilitative needs
and is greater than that necessary to guarantee the protection of
the public?
Brief for Appellant at 5 (issues renumbered).
In his first claim, Johnson argues that there was insufficient evidence
to support his conviction for assault of a law enforcement officer. Id. at 17.
Johnson asserts that he lacked the mens rea necessary to support his
conviction because he was “foolishly firing random shots down onto the
street,” and he was not aware that the police officers were on the street at
that time. Id. at 19-20. Johnson acknowledges that he shot at the minivan,
but argues that he “wasn’t trying to shoot anybody.” Id. at 20.
Additionally, Johnson contends that he started firing shots before the officers
arrived, which supports his claim that he did not specifically intend to shoot
the officers. Id.
For purposes of review, a plea of nolo contendere is treated the same
as a guilty plea. Commonwealth v. Lewis, 791 A.2d 1227, 1230 (Pa.
Super. 2002). “By entering a plea of nolo contendere, a defendant waives
all defects and defenses except those concerning the jurisdiction of the
court, legality of sentence, and validity of plea.” Commonwealth v.
Nelson, 666 A.2d 714, 717 (Pa. Super. 1995) (citation omitted).
Accordingly, because Johnson pled nolo contendere, he is precluded
from presenting any defects or defenses aside from the limited grounds set
-4-
J-S79040-16
forth above. See id. Therefore, Johnson’s challenge to the sufficiency of
the evidence is waived.3
In his second claim, Johnson asserts that the trial court abused its
discretion by imposing consecutive sentences for the assault of a law
enforcement officer charges, above the aggravated guidelines range. 4 Brief
for Appellant at 12. Johnson claims that his sentence is manifestly
excessive, and that the trial court did not adequately consider his
rehabilitative needs. Id. at 12, 15. Johnson argues that he “took
substantial strides toward his rehabilitation” while in prison by completing
anger management and the “Choosing to Think and Thinking to Choose”
program, and by completing training in Microsoft Word and Excel. Id. at 16.
Johnson’s second claim challenges the discretionary aspects of his
sentence. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
3
Moreover, in Johnson’s Written Plea Colloquy, he acknowledged that he can
appeal only if (1) he “did not know what [he] was doing when [he] pled
[nolo contendere], or somebody forced [him] to do it—it was not voluntary;”
(2) he “was in the wrong court—the court did not have jurisdiction over [his]
case;” or (3) “the sentence the judge gave [him,] was for some reason
illegal or improper.” Written Plea Colloquy, 9/15/15, at 3. At the plea
hearing, Johnson also indicated that he reviewed the Written Plea Colloquy
with his counsel and understood its contents, including accepting the factual
basis for the plea. See N.T., 9/15/15, at 13-14.
4
Johnson’s prior record score was one. For assault of a law enforcement
officer, the offense gravity score was 13. The standard range of the
sentencing guidelines recommends a minimum sentence of 5½ to 7 years.
See 204 Pa. Code § 303.16(a).
-5-
J-S79040-16
2010).5 “It is well-settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.” Commonwealth v.
Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
We conduct a four-part analysis to determine: (1) whether the
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 the 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 (quotation marks and some citations omitted).
Here, Johnson filed a timely Notice of Appeal and preserved his issue
in a post-sentence Motion. Johnson also included a Rule 2119(f) Statement
in his brief. Accordingly, we will review Johnson’s Rule 2119(f) Statement to
determine whether he has raised a substantial question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citations omitted). “A substantial question
exists only when the appellant advances a colorable argument that the
5
Johnson’s plea of nolo contendere does not preclude a challenge to the
discretionary aspects of his sentence because there was no agreement as to
the sentence he would receive. See Commonwealth v. Brown, 982 A.2d
1017, 1019 (Pa. Super. 2009) (stating that an open guilty plea does not
preclude a challenge to the discretionary aspects of sentencing); see also
Lewis, supra.
-6-
J-S79040-16
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.” Id. (citations omitted).
Here, Johnson’s appellate brief contains the requisite Rule 2119(f)
Statement. In that Statement, Johnson presents the following claim upon
which he relies for allowance of appeal:
[T]he trial court imposed a manifestly excessive sentence, by
imposing [Johnson’s] sentence for the counts of assault of a law
enforcement officer consecutive[ly], which is unduly harsh,
without taking into account [Johnson’s] rehabilitative needs and
other mitigating factors, including [Johnson’s] expression of
remorse and acceptance of responsibility at the time of
sentencing, which violates the fundamental norms of sentencing,
thereby raising a substantial question for appellate review of
[Johnson’s] excessive sentence.
Brief for Appellant at 11 (capitalization omitted).
“This Court has [] held that an excessive sentence claim—in
conjunction with an assertion that the [trial] court failed to consider
mitigating factors—raises a substantial question.” Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (citing
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)).
Additionally,
[i]n determining whether a substantial question exists, this Court
does not examine the merits of whether the sentence is actually
excessive. Rather, we look 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.
-7-
J-S79040-16
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
Here, Johnson asserts that his aggregate sentence is unduly harsh and
disproportionate to his conduct, and that the trial court failed to consider
mitigating factors, including his rehabilitative needs. Brief for Appellant at
15. Accordingly, we will consider the merits of Johnson’s claim. See
Caldwell, 117 A.3d at 770; see also Commonwealth v. Bonner, 135
A.3d 592, 604 (Pa. Super. 2016) (concluding that a claim that appellant’s
standard range, consecutive sentences were excessive and the trial court
failed to consider appellant’s rehabilitative needs raised a substantial
question); Dodge, 77 A.3d at 1273 (finding that “[a]ppellant’s claim that
the [trial] court disregarded rehabilitation and the nature and circumstances
of the offense in handing down its sentence presents a substantial question
for our review.”).
Our standard of review of a challenge to the discretionary aspects of a
sentence 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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007).
-8-
J-S79040-16
The Sentencing Code provides that “the [trial] court shall follow the
general principle that the sentence imposed should call for confinement that
is consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). The trial
court must also consider the sentencing guidelines. See id.; see also
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating
that “[w]hen imposing a sentence, the [trial] court is required to consider
the sentence ranges set forth in the Sentencing Guidelines….”). Here, the
sentence imposed for each charge falls within the standard range of the
sentencing guidelines. See 204 Pa. Code § 303.16(a). Therefore, we may
only vacate Johnson’s sentence if “the case involves circumstances where
the application of the guidelines would be clearly unreasonable.” 42
Pa.C.S.A. § 9781(c)(2); see also Raven, 97 A.3d at 1254.
Initially, we observe that the sentencing court had the benefit of a PSI.
Trial Court Opinion, 4/11/16, at 6. “Where pre-sentence reports exist, we
shall continue to presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors. A pre-sentence
report constitutes the record and speaks for itself.” Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988); see also id. (stating that “[h]aving
-9-
J-S79040-16
been fully informed by the pre-sentence report, the sentencing court’s
discretion should not be disturbed.”).
Further, our review of the record reveals that the trial court considered
relevant mitigating factors prior to sentencing Johnson. At the sentencing
hearing, Johnson stated that he did not intend to harm the officers, and that
he regretted his “reckless” and “immature” actions. See N.T., 1/15/16, at
30-32. Thereafter, the trial court detailed its sentencing considerations,
stating the following:
I do understand that you did enter into pleas and you have
accepted responsibility. I listened to what you said today, I
listened to what your parents said, but I also listened to the
officer who was there. I find this extremely, extremely
disturbing. And again, like I said earlier, it’s just by grace that
it’s not a homicide. And I am glad that you are remorseful now.
I’m not exactly sure of everything you’re remorseful for, you
know, because you did talk about some other things.
N.T., 1/15/16, at 32-33. The trial court also reviewed Johnson’s record,
which includes several juvenile adjudications, as well as nine arrests, six
convictions and four supervision violations as an adult. See Trial Court
Opinion, 4/11/16, at 7. The trial court concluded that, “[d]ue to the
reprehensible and violent nature of the charges, the offense gravity score of
the charges, and [Johnson’s] previous violations of supervision,” the
sentence is necessary “to protect the public and the officers who are
carrying out their duties.” Id. Moreover, the trial court considered the
mental health report and police report. See id. at 6. Based upon this
evidence, the trial court imposed consecutive standard range sentences for
- 10 -
J-S79040-16
each of Johnson’s assault of a law enforcement officer charges.6 Discerning
no abuse of discretion by the trial court, we will not disrupt Johnson’s
sentence on appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2016
6
The consecutive nature of Johnson’s sentences, without more, does not
necessitate the conclusion that Johnson’s sentence is manifestly excessive.
See Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (stating
that “[g]enerally, Pennsylvania law affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed.”) (citation
omitted); see also Mastromarino, 2 A.3d at 589 (stating that appellant
was not entitled to a “volume discount” for multiple crimes).
- 11 -