Com. v. Johnson, D.

J-S58021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DJIMON D. JOHNSON :
:
Appellant : No. 395 WDA 2019
Appeal from the Judgment of Sentence Entered November 5, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002321-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 7, 2020
Appellant, Djimon D. Johnson, appeals nunc pro tunc from the judgment
of sentence of 2-4 years’ imprisonment, imposed after the trial court revoked
his probation. We affirm.
Appellant summarizes the procedural and factual background of his case
as follows:1
On November 5, 2018, … Appellant appeared before the
Honorable William Cunningham of the Erie County Court of
Common Pleas for a probation revocation/re-sentencing hearing.
[] Appellant’s penalty stems from a conviction for Firearms Not to
Be Carried Without a License (Loaded) (18 Pa.C.S. § 6106(a)(1)).
This conviction was the result of a negotiated plea with the
Commonwealth entered on or about October 28, 2016. On
January 20, 2017, … Appellant was sentenced to a period of [11½
to 23 months] of incarceration followed by [5] years of probation.
[] Appellant received pre-sentence credit in the amount of [225]
days of incarceration.
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1 The Commonwealth did not file a brief in this matter.
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On September 7, 2017, … Appellant was granted parole.
On October 8, 2018, … Appellant was detained by Erie County
Adult Probation due to a number of violations of the conditions of
… Appellant’s probation and parole.
On November 6, 2018, a hearing on the violations was held before
Judge Cunningham where Adult Probation alleged that … Appellant
had violated [C]onditions [#]5 and 11. Specifically, Adult
Probation alleged that … Appellant had violated Condition #5
where he is ordered to comply with all municipal, county, state,
and federal laws, as well as the conditions of the vehicle code.
Adult Probation alleged [that] Appellant had been charged with
Driving While Operating Privilege [i]s Suspended or Revoked on
[8] occasions. Adult Probation submitted that … Appellant was
convicted of that offense on [5] occasions due to … Appellant[’s]
admitting his guilt. As of the date of the revocation hearing, the
other [3] allegations for Driving While Operating Privilege [i]s
Suspended or Revoked were awaiting disposition.
Further, Adult Probation alleged … Appellant violated Condition
#11 where he was directed to attend and successfully complete
any educational, vocational or therapeutic program offered by a
recognized agency. Adult Probation alleged … Appellant was
unsuccessfully discharged from the TASC random urinalysis
program on September 14, 2018.
At the revocation hearing, … Appellant admitted to the violations
of Conditions #5 and #11. The … court re-sentenced … Appellant
to [24 to 48] months of incarceration to be served consecutive to
the original period of incarceration of [11½ to 23 months] months.
This resulted in an aggregate re-sentence of [35½-71 months] of
incarceration. The court applied [482] days of credit.
A post-revocation motion seeking the reconsideration and/or
modification of … Appellant’s re-sentence was filed on November
16, 2018. Said motion was denied on November 20, 2018. No
Notice of Appeal was filed.
A motion for Post-Conviction Collateral Relief[2] was filed by …
Appellant, pro se, on February 8, 2019[,] seeking the
reinstatement of [his] appellate rights. Said motion was granted
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2 42 Pa.C.S. §§ 9541-9546.
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on February 14, 2019. A timely Notice of Appeal[, filed nunc pro
tunc,] followed on March 8, 2019.
Appellant’s Brief at 4-5.
After Appellant filed his notice of appeal, the trial court issued an order
directing him to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal within 21 days, and advised him that any issue not
properly included in his statement would be deemed waived. See Order,
3/14/2019. Appellant timely filed his statement.
Appellant presently raises one issue for our review:
Whether the re-sentenc[ing] of the trial court [was] manifestly
excessive, unreasonable and inconsistent with the objectives of
the Sentencing Guidelines?
Appellant’s Brief at 3.
At the outset, we observe that Appellant did not raise this issue in his
Rule 1925(b) statement. See Rule 1925(b) Statement, 4/2/2019.
Accordingly, we deem it waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement … are waived.”).
In addition to excluding this claim from his Rule 1925(b) statement,
Appellant also failed to raise it at sentencing or in his post-sentence motion.
See Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (“A
challenge to an alleged excessive sentence is a challenge to the discretionary
aspects of a sentence. Issues challenging the discretionary aspects of a
sentence must be raised in a post-sentence motion or by presenting the claim
to the trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.”) (citations
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omitted). Here, our review of the record demonstrates that Appellant did not
assert this claim at sentencing or in his post-sentence motion.3 Accordingly,
he has waived this issue on this basis as well.
Nevertheless, even if not waived for the above-stated reasons, we would
determine that the trial court did not abuse its discretion in resentencing
Appellant.
When reviewing sentencing matters, it is well-settled that:
[W]e must accord the sentencing court great weight as it is
in the best position to view the defendant’s character,
displays of remorse, defiance or indifference, and the overall
effect and nature of the crime. An appellate court will not
disturb the lower court[’]s judgment absent a manifest
abuse of discretion. In order to constitute an abuse of
discretion, a sentence must either exceed the statutory
limits or be so manifestly excessive as to constitute an
abuse of discretion. Further, a sentence should not be
disturbed where it is evident that the sentencing court was
aware of sentencing considerations and weighed the
considerations in a meaningful fashion.
Through the Sentencing Code, the General Assembly has enacted
a process by which defendants are to be sentenced. As a
threshold matter, a sentencing court may select one or more
options with regard to determining the appropriate sentence to be
imposed upon a defendant. These options include probation, guilt
without further penalty, partial confinement, and total
confinement. In making this selection, the Sentencing Code offers
general standards with respect to the imposition of sentence which
require the sentence to be 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. Thus, sentencing is individualized; yet,
the statute is clear that the court must also consider the
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3 Appellant also does not direct us to where he raised this issue below.
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sentencing guidelines adopted by the Pennsylvania Commission
on Sentencing.
In considering an appeal from a sentence imposed following the
revocation of probation, [o]ur review is limited to determining the
validity of the probation revocation proceedings and the authority
of the sentencing court to consider the same sentencing
alternatives that it had at the time of the initial sentencing.
Revocation of a probation sentence is a matter committed to the
sound discretion of the trial court and that court’s decision will not
be disturbed on appeal in the absence of an error of law or an
abuse of discretion.
It is the law of this Commonwealth that once probation has been
revoked, a sentence of total confinement may be imposed if any
of the following conditions exist in accordance with Section
9771(c) of the Sentencing Code:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely
that he will commit another crime if he is not imprisoned;
or
(3) such a sentence is essential to vindicate the authority of
the court.
42 Pa.[C.S.] § 9771(C).
The Commonwealth establishes a probation violation meriting
revocation when it shows, by a preponderance of the evidence,
that the probationer’s conduct violated the terms and conditions
of his probation, and that probation has proven an ineffective
rehabilitation tool incapable of deterring probationer from future
antisocial conduct. [I]t is only when it becomes apparent that the
probationary order is not serving this desired end [of
rehabilitation] the court’s discretion to impose a more appropriate
sanction should not be fettered.
Ahmad, 961 A.2d at 887-89 (most internal citations and quotation marks
omitted; some brackets added).
Appellant argues that the trial court did not need to impose such a
lengthy sentence when considering the protection of the public, the gravity of
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the offense, and his rehabilitative needs. Appellant’s Brief at 8. At sentencing,
the trial court provided the following reasons for its sentence:
I have listened to the evidence presented here today. I’ve read
the revocation summary in it[s] entirety. I’ve read the
presentence report i[n] it[s] entirety. I recall this case. I was the
sentencing judge. And … I have a number of concerns.
[Appellant] came into the juvenile justice system in 2012, and
there were a whole host of opportunities to work with [Appellant]
and services put in place to help [him], and [he] made little, if
any, progress. [Appellant] got revoked four different times at
Docket No. 551 of 2012.
[Appellant] originally had a deferred placement … so [he] could
stay with [his] mother, [but] that didn’t work out so [he] got
revoked and then sent to Vision Quest and [he got] revoked again.
And [Appellant’s] given the opportunity to stay in the community
in the collaborative intensive treatment program; that didn’t work
out and [he] got revoked from that. [Appellant was] given
electronic monitoring; that didn’t work out either.
So then [Appellant’s] back a number of other times. [He’s] given
opportunities to stay in the community and live with [his] family,
but [he] get[s] revoked. And then eventually [he] get[s] sent to
North Central Secure Treatment unit and [he is] discharged to the
custody of [his] mother, once again. And then [he is] back as an
adult.
I note this is [his] first adult offense. [Appellant was] discharged
on July 19th of 2016 from juvenile supervision. The offense that
[he was] here on was technically committed while [he was] still
under juvenile supervision. This offense was June 9th of 2016,
and [he was] in possession of a loaded firearm. And I would note
that technically [Appellant was] under supervision for possession
of … a loaded firearm by a minor. So that in and of itself was a
rather disturbing pattern when [he] presented for sentencing….
Nonetheless, I reread the sentencing guidelines this morning
because I looked at the sentence and knew that this was a break
for [him]. The standard range of the sentencing guidelines called
for 18 to 30 months[’ incarceration] as a minimum[,] and I gave
[him] much less than that to keep [him] at the county level and
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put services in place for [him] that would help [him] turn [his] life
around.
And it is unfortunate that I then gave [Appellant] an opportunity,
[he was] sent over to the work release center and [he] got
[him]self kicked out of there for just blatantly dishonest
behavior[,] forging time and signatures on passes. So there’s
another example of [Appellant’s] not being able to comply with
the rules, not being amenable to community supervision.
So [Appellant was] paroled [on] September 5th of 2017. And
when [he was] paroled, [it was] within the expectation that[,]
having served time in jail[,] [he] would want to turn [his] life
around, which was what [he was] telling me in a couple of letters
that [he] had sent me. And yet three days after [he is] out on
parole, [he is] committing the first of eight times [of] being
charged with driving with a suspended license, and [there is] no
excuse for that, none whatsoever.
While [Appellant was] … flaunting [sic] the law in that respect, in
March of 2017[,] [he] had been, by [his] own admission, smoking
marijuana. [His] probation officer sent [him] for an assessment,
which comes back no treatment necessary, which just tells me
that [he] blatantly lied to the assessor about what [his]
circumstances were because obviously [he] needed treatment.
But the sanction there wasn’t to revoke [him], there’s an
opportunity to work with [him].
So [Appellant’s] probation officer didn’t necessarily send [him] to
treatment, but [the probation officer] said [he] need[s] to go to
the [TASC] program, which is simply a drug and alcohol
monitoring program and [Appellant] couldn’t do that. [He] got
[him]self kicked out of that for a whole host of violations, even
after being put on a behavior contract.
So the cumulative effect of [his] attitude and [his] behavior…[,]
this is true as a juvenile and as an adult, [is] that [he does] not
feel like [he] need[s] to follow the laws, the criminal laws of this
country or this Commonwealth or the rules of [his] supervision,
whether [he is] under the juvenile or the adult system, and that’s
despite that fact [he has] been given a number of breaks and all
the resources necessary to straighten [his] act out.
I appreciate what [Appellant’s] mother had to say here today and
[his] family that’s here today. And to [his] mother’s credit,
obviously she’s been supportive of [him] since [he has] been a
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juvenile. [Appellant has] been discharged to her supervision and
custody[,] and yet [he] disrespect[s] her every time [he] go[es]
out and violate[s] the law. I don’t think that’s occurred to
[Appellant] yet….
N.T. Revocation and Re-sentencing Hearing, 11/5/2018, at 19-23.
We would discern no abuse of discretion. In fashioning Appellant’s
sentence, the court adequately considered the protection of the public, the
gravity of the offense, and his rehabilitative needs. See Ahmad, supra.
Accordingly, even if preserved, we would determine that Appellant’s argument
lacks merit. Thus, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/2020
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