Com. v. Johnson, B.

J-S15023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

Appellee

v.

BRYANT KEVIN JOHNSON

Appellant No. 1039 MDA 2014

Appeal from the Judgment of Sentence of May 19, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0005037-2004

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

BRYANT KEVIN JOHNSON

Appellant No. 1040 MDA 2014

Appeal from the Judgment of Sentence of May 19, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0000747-2005

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

BRYANT KEVIN JOHNSON

Appellant No. 1041 MDA 2014
J-S15023-15

Appeal from the Judgment of Sentence of May 19, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0000746-2005

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.: FILED MAY 15, 2015

Bryant Kevin Johnson appeals from the judgment of sentence entered

on May 19, 2014, following the revocation of his special probation. We

affirm.

A previous panel of this Court set forth the underlying history of this

case as follows:

On April 4, 2005, Johnson pled guilty to multiple offenses,
including theft by deception, identity theft, forgery, and
tampering with public records. Johnson agreed to enter a guilty
plea in exchange for three to six years’ incarceration, ten years’
probation, and 469 days’ credit for time already served. The
469 days’ credit would be more than one-third of [Johnson’s]
minimum sentence.

On that same day, the trial court sentenced Johnson pursuant to
the negotiated plea agreement. However, at some later point,
Johnson discovered that the Department of Corrections (“DOC”)
refused to acknowledge this “credit time.” No direct appeal was
taken to this Court, but on November 3, 2005, Johnson filed a
timely PCRA petition,[1] which was then dismissed on November
10, 2005.

Johnson filed a pro se request for reconsideration on November
29, 2005, which was granted on January 13, 2006. The PCRA
court appointed counsel and Johnson filed an amended petition.
On March 22, 2006, the PCRA court issued notice of its intention
to dismiss the petition without a hearing pursuant to
Pa.R.Crim.P. 907. On May 1, 2006, the PCRA court entered an
____________________________________________

1
See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.

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order denying Johnson’s PCRA petition as meritless. Johnson
filed [a] timely appeal on May 16, 2006.

Commonwealth v. Johnson, Nos. 867-69 MDA 2006, unpublished

memorandum at 1-2 (Pa. Super. Feb. 27, 2007).

Thereafter, the trial court has summarized the following facts and

procedural history:

On February 2[7], 2007, the Superior Court reversed and
remanded this matter for either a resentencing or the withdrawal
of the plea because [Johnson’s] plea was “based on an
expectation that was not legally possible.” See
Commonwealth v. Rathfon, 899 A.2d 365 (Pa. Super. 2006).
As a result, the Commonwealth . . . filed a motion to reschedule
a status/sentencing hearing, which was ultimately held on April
23, 2007. [Johnson] was resentenced to a period of not less
than 626 days, reflecting the 469 days of credit due, or more
than six years in a state correctional facility. [The only change
to Johnson’s sentence was to order explicitly the credit for time
served.]

On April 7, 2014, the Adult Probation Department requested [the
trial c]ourt schedule a Gagnon II[2] hearing on the basis that
[Johnson] allegedly violated four conditions of his special
probation. A hearing was held on May 19, 2014, whereupon
[Johnson], represented by counsel, admitted to violating three of
the conditions: failure to reside in the approved residence,
failure to report regularly and failure to abstain from the use of
controlled substances. Notes of Testimony (“N.T.”), 5/19/2014,
at 5. The [c]ourt found [Johnson] in violation of his special
probation and it was revoked. [Johnson] was then resentenced
in each of his three cases and the sentences were made
concurrent to each other. [Johnson] was given credit for time
served and made [RRRI3] eligible. On June 19, 2014, counsel
____________________________________________

2
See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3
See Recidivism Risk Reduction Incentive Act (“RRRI”), 61 Pa.C.S.A.
§§ 4501, et seq.

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for [Johnson] filed a Notice of Appeal to the Superior Court. On
June 23, 2014, [the trial court] ordered counsel to file a concise
statement of the errors complained of on appeal [pursuant to
Pa.R.A.P. 1925(b)], which he filed on July 14, 2014.

Trial Court Opinion (“T.C.O.”), 8/5/2014, at 2-3 (citations reformatted). The

trial court entered its opinion pursuant to Pa.R.A.P. 1925(a) on August 5,

2014.

Johnson presents three questions for our review:

1. Whether the sentence of the court of May 19, 2014 was
illegal due to the fact that the court ordered credit time of 112
days and made the sentence concurrent to a sentence [Johnson]
was already serving from another county when the court knew
the practice of the Pennsylvania Board of Probation and Parole
would likely not properly credit the time served to [Johnson’s]
case and would not make the sentence in this case concurrent to
the sentence [Johnson] was serving from another county?

2. Whether the sentence of the court of May 19, 2014 was
barred by res judicata because the Pennsylvania Board of
Probation and Parole previously sentenced [Johnson] on April 8,
2014 to serve 6 months for the identical technical violations for
which the court revoked his probation in these cases and
sentence him to an aggregate term of 1 year to 10 years?

3. Whether the sentence of the court [of] May 19, 2014 was
excessive because it was only based upon technical violations
and also did not account for the period of time [Johnson] already
served on the probation sentence that was revoked?

Johnson’s Brief at 7.

Before we address Johnson’s issues, we note that our standard of

review of sentences following revocation of probation is as follows:

The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on
appeal. An abuse of discretion is more than an error in

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judgment—a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.

In determining whether a sentence is manifestly excessive, the
appellate court must give great weight to the sentencing court’s
discretion, as he or she is in the best position to measure factors
such as the nature of the crime, the defendant’s character, and
the defendant’s display of remorse, defiance, or indifference.

Upon revoking probation, a sentencing court may choose from
any of the sentencing options that existed at the time of the
original sentencing, including incarceration. 42 Pa.C.S.A.
§ 9771(b). [U]pon revocation [of probation] . . . the trial court
is limited only by the maximum sentence that it could have
imposed originally at the time of the probationary sentence.
However, 42 Pa.C.S.A. § 9771(c) provides that once probation
has been revoked, a sentence of total confinement may only be
imposed if any of the following conditions exist:

(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.A. § 9771(c).

In addition, in all cases where the court resentences an offender
following revocation of probation . . . the court shall make as a
part of the record, and disclose in open court at the time of
sentencing, a statement of the reason or reasons for the
sentence imposed [and] [f]ailure to comply with these provisions
shall be grounds for vacating the sentence or resentence and
resentencing the defendant. 42 Pa.C.S. § 9721(b). A trial court
need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing
court’s consideration of the facts of the crime and character of
the offender.

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Commonwealth v. Colon, 102 A.3d 1033, 1043-44 (Pa. Super. 2014)

(case citations and quotation marks omitted).

Under 42 Pa.C.S.A. § 9760, the sentencing court is to give credit
“against the maximum term and any minimum term . . . for all
time spent in custody as a result of the criminal charge for which
a prison sentence is imposed or as a result of the conduct on
which such a charge is based.” 42 Pa.C.S.A. § 9760(1).

Commonwealth v. Yakell, 876 A.2d 1040, 1042 (Pa. Super. 2005).

At Johnson’s 2005 sentencing, at Docket no. 747-05, he was subject

to a maximum sentence of 120 months for forgery, 18 Pa.C.S.A. § 4101(c);

at Docket no. 5037-04, he was subject to maximum sentences of eighty-four

months for theft by deception for amounts between $25,000 and $50,000,

18 Pa.C.S.A. § 3922, and to eighty-four months for identity theft as a third

or subsequent offense, 18 Pa.C.S.A. § 4120(c)(1)(iv); and at Docket no.

746-05, he was subject to a maximum sentence of eighty-four months for

theft by deception for amounts between $25,000 and $50,000, 18 Pa.C.S.A.

§ 3922. See Guideline Sentence Forms, 5/6/2005. The aggregate

maximum sentence was 372 months, or thirty-one years. See 42 Pa.C.S.A.

§ 9771(b). The revocation court’s aggregate sentence of not less than one

nor more than ten years’ incarceration with credit for time served is well

within the maximum sentence that could have been imposed at the time

that the court granted Johnson a probationary sentence. See Colon, 102

A.3d at 1043-44. Therefore, on its face, the court imposed a legal sentence,

and we turn to a review of Johnson’s issues.

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In his first issue, Johnson contends that his revocation sentence is

illegal because “the court is unable to direct that the new sentence be served

concurrent to a technical parole violation and Johnson believes that he will

not be awarded the 112 days credit time ordered by the trial court.” Id. at

18. We disagree.

“A challenge to the Bureau of Correction’s computations or

construction of the terms of sentences imposed is neither a direct nor even a

collateral attack on the sentences imposed . . . .” Commonwealth v.

Perry, 563 A.2d 511, 513 (Pa. Super. 1989). The appropriate vehicle for

redress of any specific calculation of time served is an original action in the

Commonwealth Court challenging the DOC’s computation, after exhausting

any administrative remedies available through the DOC’s internal grievance

process. Id. at 512-13; see also Black v. Pennsylvania Department of

Corrections, 889 A.2d 672, 674 (Pa. Cmwlth. 2005).

“Where a sentencing court clearly gives credit against the VOP

sentence for time served, it is DOC’s duty to carry out that sentencing order.

DOC is bound to follow a trial court’s order granting an inmate credit for

time served.” Allen v. Commonwealth, 103 A.3d 365, 372 (Pa. Cmwlth.

2014).

If the alleged error is thought to be the result of an erroneous
computation of sentence by the Bureau of Corrections, then the
appropriate vehicle for redress would be an original action in the
Commonwealth Court challenging the Bureau’s computation. If,
on the other hand, the alleged error is thought to be attributable
to ambiguity in the sentence imposed by the trial court, then a

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writ of habeas corpus ad subjiciendum lies to the trial court for
clarification and/or correction of the sentence imposed.

Commonwealth v. Perry, 563 A.2d 511, 512-13 (Pa. Super. 1989).

Here, Johnson argues that his sentence is illegal because the court

knew that the Pennsylvania Board of Probation and Parole is unlikely to

credit time served or run the underlying sentences concurrently to a

sentence being served in another county. Johnson’s Brief at 18. At the

revocation hearing, the trial court sentenced Johnson as follows:

May 19th, 2014, and this would be in 5037 of 2004, Count 5, 746
of 2005, Count 2, 747 of 2005, Count 1, forgery, the Court
enter[s] order after informal hearing having been held and
[Johnson] having admitted the violations . . . .

With regard to 746 of 2005, Count 2, felony 3, sentence is that
[Johnson] be committed for a period of no less than 1 year no
more than 7 years to the Bureau of Corrections for confinement
in a state correctional facility. [Johnson] is triple RI eligible, 112
days credit. He will pay the court costs, $100 fine, $13,623.41
in restitution. And he will pay the $50 criminal justice fee.

747 of 2005, Count 1 forgery, a felony of the 2 nd degree, the
sentence is that [Johnson] be committed for a period of no less
than 1 year nor more than 10 years to the Bureau of Corrections
for confinement in a state correctional facility. [Johnson] is
triple RI eligible. This sentence is effective today and to be
concurrent with 746 of 2005, Count 2, 112 days credit, pay the
court costs, $50 fine, zero restitution and pay the $50 criminal
justice enhancement fee.

On 5037 of 2004, Count 5, tampering with public records, the
sentence is that [Johnson] be committed for a period of no less
than 1 year no more than 7 years to the Bureau of Corrections
for confinement in a state correctional facility. [Johnson] is
triple RI eligible. This sentence shall be effective today and be
concurrent with the sentence imposed at 746 of 2005, Count 2,
747-2005, Count 1, 112 days credit. [Johnson] will pay the
court costs, fine in the amount of $50, zero restitution, $50

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criminal justice fee and in all three dockets submit to urine
surveillance and other testing . . . .

Notes of Testimony (“N.T.”), 5/19/2014, at 11-13. The court unambiguously

ordered that the three dockets on which Johnson was being revoked on May

18, 2014, were to run concurrently to each other. Counsel for Johnson

made the trial court aware that Johnson had previously been revoked in

Philadelphia on violation of special parole. Id. at 8-10. Johnson does not

allege that the Board of Probation and Parole actually has failed to credit him

with the time served in this instant case; he merely argues that it is not

“likely” to do so, thus constituting an illegal sentence by the trial court.

Upon review, Johnson’s revocation sentence in the instant appeal is

unambiguous, and any future error in calculating Johnson’s time served

must be challenged in the Commonwealth Court. See Perry, 563 A.2d at

512-13. Johnson is not entitled to the relief he claims he is due in this

issue.4

In his second issue, Johnson contends that his sentence is barred by

the doctrine of res judicata because the Parole Board “previously sentenced
____________________________________________

4
It is also worth noting that, unlike Johnson’s original underlying
sentence, Johnson’s revocation sentence is not imposed pursuant to a guilty
plea, and its legality does not depend upon whether it was knowing,
intelligent, or voluntary. Therefore, the concern raised on direct appeal and
discussed previously in Rathfon, supra, that his sentence was “based on an
expectation that was not legally possible,” does not apply here. Rathfon,
899 A.2d at 365. Instead, we review whether his revocation sentence was
an exercise of sound discretion by the trial court. Colon, 102 A.3d at 1043-
44.

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[Johnson] on April 8, 2014 to serve 6 months for the exact same technical

violations for which the court revoked his probation in this case and

sentenced him to a term of 1-10 years.” Johnson’s Brief at 23. We

disagree.

“This claim constitutes a challenge to the legality of the sentence. Our

standard of review is whether an error of law occurred.” Commonwealth

v. Weathers, 95 A.3d 908, 911 (Pa. Super. 2014).

Johnson contends that res judicata precludes the trial court from

imposing sentence because “for the conduct that he is violating, the terms of

his special probation in the three cases in Berks County is the same conduct

that he was sentenced for 6 months as a technical parole violator on the

parole case.” N.T. at 10. Johnson maintains that both the underlying parole

which was revoked and the violations are the same as those for which he

was sentenced here. However, as noted by the trial court at Johnson’s

revocation hearing, the six-month sentence technical parole violation arose

from completely separate charges in Philadelphia. See N.T. at 10. The

instant underlying charges arose in Berks County, and as the court also

observed, these charges (and the responsibility for resentencing Johnson for

violation of special probation thereof) remain with the court in Berks. See

T.C.O. at 6; see also Commonwealth v. Mitchell, 955 A.2d 433, 437 (Pa.

Super. 2008) (“[T]he trial court at all times retained the power, authority,

and jurisdiction to assess whether Appellant violated his ‘special’ probation,

to revoke it, and to re-sentence Appellant following revocation[.]”).

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To the extent that Johnson seems to argue that the same behavior

which triggered a revocation of his parole in Philadelphia cannot also be

counted as a violation of his special parole in Berks, such a claim is

unavailing. Quite simply, “[t]he court may revoke an order of probation

upon proof of the violation of specified conditions of the probation.” 42

Pa.C.S.A. § 9771(b). The statute does not require one instance of violation

per order revoking probation, nor is there any support in our case law to

conclude that each instance of violation may only be applied to one

probation revocation at a time. Johnson’s second issue does not merit relief.

Third, Johnson contends that his sentence was “excessive because it

was only based upon technical violations and also did not account for the

period of time [Johnson] was already on the probation sentence that was

revoked.” Johnson’s Brief at 25. We disagree.

A claim that a sentence is excessive presents a challenge to the

discretionary aspects of sentence. Commonwealth v. Ahmad, 961 A.2d

884, 886 (Pa. Super 2008). “A challenge to the discretionary aspects of a

sentence must be considered a petition for permission to appeal, as the right

to pursue such a claim is not absolute.” Commonwealth v. McAfee, 849

A.2d 270, 274 (Pa. Super. 2004).

To obtain review of the merits of a challenge to the discretionary

aspects of a particular sentence, an appellant must include a Pa.R.A.P.

2119(f) statement in his brief. Therein, “the appellant must show that

there is a substantial question that the sentence imposed is not appropriate

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under the Sentencing Code.” McAfee, 849 A.2d at 274. A substantial

question requires a demonstration that “the sentence violates either a

specific provision of the sentencing scheme set forth in the Sentencing Code

or a particular fundamental norm underlying the sentencing process.”

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (quoting

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)). “Our inquiry

must focus on the reasons for which the appeal is sought, in contrast to the

facts underlying the appeal, which are necessary only to decide the appeal

on the merits.” Id. (quoting Commonwealth v. Goggins, 748 A.2d 721,

727 (Pa. Super. 2000) (en banc)) (emphasis omitted).

Johnson preserved his claim in a motion for reconsideration, filed a

timely notice of appeal, and included in his brief a concise statement

pursuant to Pa.R.A.P. 2119(f). See Johnson’s Brief at 16. Moreover, “a

claim that a particular probation revocation sentence is excessive in light of

its underlying technical violations can present a question that we should

review.” Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super.

2006). Thus, we will review the merits of Johnson’s excessiveness claim.

The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on
appeal. An abuse of discretion is more than an error in
judgment—a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012).

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In determining whether a sentence is manifestly excessive, the
appellate court must give great weight to the sentencing court’s
discretion, as he or she is in the best position to measure factors
such as the nature of the crime, the defendant’s character, and
the defendant’s display of remorse, defiance, or indifference.

Mouzon, 828 A.2d at 1128.

[O]nce probation has been revoked, a sentence of total
confinement may only be imposed if any of the following
conditions exist:

(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.A. § 9771(c).

Colon, 102 A.3d at 1044.

Here, the trial court considered the nature of Johnson’s violations to

determine that his conduct indicated that it is likely that he would commit

another crime, and that revocation was essential to vindicate the court’s

authority. At the revocation hearing, the court observed that Johnson “failed

to reside in an approved residence, failed to report regularly and failed to

abstain from the use of controlled substances.” N.T. at 5. The court was

made aware that Johnson had a drug and alcohol problem that led to the

technical violations of the terms of his probation, and the court stated that

Johnson would get treatment while incarcerated. Id. at 7-8. Therefore, the

court found adequate reasons of record to state that Johnson was “no longer

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amenable to a period of probation.” Id. at 12. Accordingly, the trial court

did not abuse its discretion in ordering an aggregate revocation sentence of

incarceration of one to ten years. Colon, 102 A.3d at 1044; Simmons, 56

A.3d at 1283-84. Johnson’s third issue does not merit relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2015

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