J-S32017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEXTER JOHNSON
Appellant No. 312 EDA 2015
Appeal from the Judgment of Sentence August 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013307-2012
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED MAY 02, 2016
Appellant, Dexter Johnson, appeals from the aggregate judgment of
sentence of time served (249 days) to 23 months’ incarceration, with
immediate parole, imposed by the trial court following Appellant’s
convictions for two counts of possession of a controlled substance, and one
count of possession of a small amount of marijuana.1 After careful review,
we affirm.
The trial court summarized the procedural background of this case as
follows.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(16) and (31), respectively.
J-S32017-16
On April 17, 2014, [Appellant] entered a plea
of guilty to Intentional Possession of a Controlled
Substance and Possession of a Small Amount of
Marijuana. The [trial c]ourt held its judgment under
advisement. [Appellant] then proceeded to trial
before th[e trial c]ourt, sitting with a jury, on the
charges of Manufacture, Delivery, or Possession with
Intent to Manufacture or Deliver a Controlled
Substance and Intentional Possession of a Controlled
Substance.
On April 18, 2014, the jury returned verdicts of
not guilty on the charge of Manufacture, Delivery, or
Possession with Intent to Manufacture or Deliver a
Controlled Substance, and guilty of Intentional
Possession of a Controlled Substance. The [trial
c]ourt then found [Appellant] guilty of the charges of
Intentional Possession of a Controlled Substance and
Possession of a Small Amount of Marijuana, pursuant
to the guilty pleas. Sentencing was deferred for
preparation of a pre-sentence investigation report.
A sentencing hearing was held on August 29,
2014, at which time [Appellant] was sentenced to
time served (249 days) to 23 months incarceration,
with immediate parole. The conditions of
[Appellant’s] parole included intensive supervision by
the Probation Department’s Mental Health Unit and
sex offender treatment.
Trial Court Opinion, 6/23/15, at 1-2 (citations omitted).
On September 7, 2014, Appellant filed a petition for reconsideration of
sentence, in which he asked the trial court to “reconsider the condition of
parole that [Appellant] attend and complete sex offender treatment as it
violates 42 Pa. C.S. § 9754(c)(13) [because] sex offender treatment is not
related to [Appellant’s] rehabilitation regarding drug use and/or abuse.”
Petition for Reconsideration of Sentence, 9/7/14, at 2. Appellant further
averred “[i]t is impermissible for [the trial] court to impose sex offender
-2-
J-S32017-16
treatment as there is no competent evidence that this treatment is needed
for [Appellant’s] rehabilitation.” Id. The Commonwealth did not file a
response. On January 6, 2015, Appellant’s motion was denied by operation
of law. Appellant filed this timely appeal on January 28, 2015.2
On appeal, Appellant presents a single issue for our review.
Did not the lower court err as a matter of law and abuse
its discretion in imposing a condition of his sentence which
mandated sex offender treatment where the crime for
which [A]ppellant was sentenced was misdemeanor drug
possession?
Appellant’s Brief at 3.
Before reaching the merits of Appellant’s argument, we address the
Commonwealth’s contention that Appellant’s argument is waived because
Appellant’s counsel, at sentencing, stated she “had no objection” to
Appellant attending a sex offender treatment program as a condition of
parole. Commonwealth’s Brief at 3, citing N.T., 8/29/14, at 11. Our review
of the sentencing transcript reveals the following.
THE COURT: I also want sex offender
treatment.
[DEFENSE COUNSEL]: I have no objection to that, Your
Honor.
THE COURT: I am ordering it. … Please
advise your client.
____________________________________________
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
-3-
J-S32017-16
[DEFENSE COUNSEL]: So [Appellant], you have been
sentenced by the Honorable
Judge Campbell. He’s given you
a sentence of time served to 23
months with immediate parole.
You are also ordered to
undergo a dual diagnoses FIR
and you are to comply with the
agreement that the evaluation
has ordered. [sic] So that is
inpatient or either outpatient,
and you need to comply with
that too.
You are also to seek job
training and maintain
employment. Additionally, you
will be supervised. You are
going to have to undergo sex
offender treatment in addition
to fees that have also been
waived. Do you understand the
sentence?
[APPELLANT]: Yes.
N.T., 8/29/14, at 11-12.
The Commonwealth cites Commonwealth v. Brightwell, 388 A.2d
1063 (Pa. 1978) to support its waiver argument. In Brightwell, our
Supreme Court determined the appellant failed to preserve his appellate
issue concerning the jury’s return of a guilty verdict where, at sidebar,
appellant’s counsel agreed that the verdict would be recorded as third-
degree murder, and subsequently, when the trial court announced the
verdict, defense counsel did not object. Defense counsel subsequently
alleged in a post-verdict motion that the jury could not lawfully return a
-4-
J-S32017-16
verdict of guilty of both murder of the third degree and voluntary
manslaughter, but the Supreme Court responded that “by waiting until post-
verdict motions to raise the issue, appellant deprived the [trial] court of an
opportunity to correct any error. Consequently, appellant may not now
complain of inconsistency in the verdict.” Id. at 1066.
Here, Brightwell is inapplicable because the trial court was not
deprived of the opportunity to correct Appellant’s alleged sentencing error.
Although the trial court declined to act on Appellant’s petition for
reconsideration of sentence, it could have done so. We therefore proceed to
address Appellant’s claim that the trial court abused its discretion by
mandating sex offender treatment.
Appellant asserts that the trial court’s imposition of sex offender
treatment as a condition of parole3 was not “reasonably related to
[A]ppellant’s rehabilitative success.” Appellant’s Brief at 9. Accordingly,
Appellant challenges the discretionary aspects of his sentence.
Commonwealth v. Dewey, 57 A.3d 1267, 1269 (Pa. Super. 2012)
(parolee’s challenge to the reasonableness of his condition of parole
____________________________________________
3
The Board of Probation and Parole does not have authority in this case
because Appellant was sentenced “for a maximum period of less than two
years.” 61 Pa.C.S.A. § 6132(a)(2)(ii).
-5-
J-S32017-16
constituted a challenge to the discretionary aspects of his underlying
sentence).
“There is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d
663, 666 (Pa. Super. 2014) (citation omitted). When an appellant makes an
argument pertaining to the discretionary aspects of his sentence, this Court
considers such an argument to be a petition for permission to appeal.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n
[a]ppeal is permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under the
sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (en banc) (internal quotation marks and citation omitted).
Prior to reaching the merits of a discretionary aspects of sentencing
issue, this Court is required to conduct a four-part analysis to determine
whether a petition for permission to appeal should be granted.
Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we
must determine the following.
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, 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
-6-
J-S32017-16
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
[Pa.C.S.A.] § 9781(b).
Id.
Instantly, Appellant filed a timely petition for reconsideration of
sentence and notice of appeal. Also, his brief includes a Rule 2119(f)
statement. Appellant’s Brief at 6-8. We therefore proceed to address
whether Appellant has raised a substantial question for our review.
“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), appeal denied, 81 A.3d 75
(Pa. 2013). “A substantial question exists only when the appellant advances
a colorable argument that the 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). “Additionally, we cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Provenzano,
50 A.3d 148, 154 (Pa. Super. 2012).
In this case, Appellant avers that the trial court abused its discretion
by imposing a condition of parole – sex offender treatment – “which was not
reasonably related to the offense of simple possession of a controlled
substance.” Appellant’s Brief at 6. Appellant specifically maintains that the
-7-
J-S32017-16
trial court “failed to tailor the [parole] conditions in a reasonable fashion, as
42 Pa.C.S.A. § 9754(b) requires. There was no competent evidence of
record to justify the imposition of sex offender treatment.” Id. at 7.
Because Appellant asserts an inconsistency with the Sentencing Code,
referencing 42 Pa.C.S.A. § 9754, we find that he has raised a substantial
question. Section 9754 provides in relevant part as follows.
§ 9754. Order of probation
…
(b) Conditions generally.--The court shall attach
such of the reasonable conditions authorized by
subsection (c) of this section as it deems necessary
to insure or assist the defendant in leading a law-
abiding life.
(c) Specific conditions.--The court may as a
condition of its order require the defendant:
…
(13) To satisfy any other conditions reasonably
related to the rehabilitation of the defendant
and not unduly restrictive of his liberty or
incompatible with his freedom of conscience.
42 Pa.C.S.A. § 9754.4
Our review of the record refutes Appellant’s claim that the trial court’s
imposition of sex offender treatment was not reasonably related to the
rehabilitation of Appellant. The trial court explained, in detail, as follows.
____________________________________________
4
Although Section 9754(b) pertains to probation, “the conditions of
probation are examined under the same standards as conditions of parole.”
Dewey, supra at 1269 n.1.
-8-
J-S32017-16
It is well-settled that where the trial court had
the benefit of a presentence investigation report, it is
presumed to be “aware of all appropriate sentencing
factors and considerations.” Commonwealth v.
Downing, 990 A.2d 788, 794 (Pa. Super. 2010)
(citation omitted).
Here, the Criminal History Report established
that on June 11, 2004, [Appellant] was arrested in
Montgomery County on charges [of] Indecent
Assault-Person Less than 16 Years Old (M-2) and
Corruption of Morals of Minors (M-1), CP-46-CR-
0004564-2004. The Report further stated:
DISPOSITION: On 11/20/05, [Appellant] pled
guilty [and] was sentenced to seven to 23
months incarceration as to the Indecent
Assault offense and three years consecutive
probation as to the Corruption of Minors
offense.
VIOLATION #1: On 7/12/05, the probation
and parole were revoked due to technical and
direct violations. Conviction #4 was a direct
violation. As to the Indecent Assault, he was
re-sentenced to serve his Back Time imposed
with no earned/good time credited. As to the
Corruption of Minors offense, three years’
probation was re-imposed. He was ordered to
be supervised by the Sex Offender Unit and
attend sex offender treatment.
VIOLATION #2: On 4/21/06, the sentence was
revoked due to technical and direct violations.
Conviction #5 was a direct violation. He was
re-sentenced to serve his remaining back time
as to the Indecent Assault offense. He was re-
sentenced to one to two years state
incarceration as to the Corruption of Minors
offense. He served this sentence at SCI
Cresson under inmate #GQ-1270. He was
never paroled. He completed this sentence on
3/6/08.
-9-
J-S32017-16
Additionally, the Pre-Sentence Report states:
“It should be noted that [Appellant] was convicted of
a sex offense by Montgomery County in 2004. He
was required to attend and complete sex offender
treatment. It is unknown if this was completed.”
PSR, p. 2. “It could not be ascertained if he
attended or completed sex offender treatment. Due
[to] the 2012 Adam Walsh Act, he is required to
complete sex offender treatment if the treatment
was never previously afforded to him or if it was not
completed on supervision.” PSR, p. 4.
…
Under all the circumstances presented here,
the [trial c]ourt chose to fashion a sentence which
would address [Appellant’s] major mental illness, his
long history of poly-substance addiction, his
homelessness, his lack of family support, and,
saliently for this appeal, his untreated history
of prior sexual misconduct.
The goal of including sex offender treatment
was to impose a condition “reasonably related to the
rehabilitation of the defendant and not unduly
restrictive of his liberty or incompatible with his
freedom of conscience.” 42 Pa.C.S. § 9754(c)(13).
This was an appropriate exercise of sentencing
discretion, and was a condition with a direct nexus to
[Appellant]’s history and his likelihood of success on
parole.
Trial Court Opinion, 6/23/15, at 3-4 (emphasis added).
The trial court’s reasoning is supported by the record, particularly the
Pre-Sentence Report.5 We therefore find no abuse of discretion by the trial
____________________________________________
5
The Pre-Sentence Report was omitted from the original record transmitted
to this Court. However, on January 4, 2016, the Commonwealth filed an
Application to Correct the Original Record Pursuant to Pennsylvania Rule of
(Footnote Continued Next Page)
- 10 -
J-S32017-16
court’s imposition of sex offender treatment as part of Appellant’s sentence.
Accordingly, we affirm the August 29, 2014 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2016
_______________________
(Footnote Continued)
Appellate Procedure 1926. On January 22, 2016, we granted the application
and directed the trial court to certify and transmit the Pre-Sentence Report
to Superior Court. The Pre-Sentence Report was received and docketed as
part of the certified record on February 4, 2016.
- 11 -