J-S27015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE J. JOHNSON,
Appellant No. 1392 MDA 2015
Appeal from the Judgment of Sentence March 13, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004392-2010
BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED MAY 10, 2016
Appellant, Andre J. Johnson, appeals from the judgment of sentence
entered on March 13, 2015, following the revocation of his probation.
We affirm.
The trial court set forth the relevant facts and procedural history of
this matter as follows:
Appellant was charged in June 2010, with indecent assault
of a person less than 16 years of age and corruption of minors.
He pled guilty and was sentenced on December 21, 2010. His
initial sentence was as follows:
Count 1: 23 months of county probation[.]
Count 2: 23 months of county probation
concurrent with Count 1.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Fines and costs on both.
Subsequently, Appellant was revoked on April 26, 2011.
At that hearing his sentence was as follows:
Count 1: 24 months of Intermediate
Punishment. First 3 months Work Release.
Count 2: 24 months of Intermediate
Punishment. First 3 months Work Release.
Concurrent with Count 1.
Time credit for March 1, 2011 to April 26,
2011.
On March 13, 2012, Appellant was revoked for a second
time. His sentence was as follows:
Count 1: 18 months of Intermediate
Punishment with the first 8 months in Work
Release. No Contact with 16 year old girl.
Count 2: 18 months of Intermediate
Punishment concurrent with Count 1.
Time credit for April 26, 2011 to July 26, 2011
and January 10, 2012 to March 13, 2012.
On June 7, 2013, Appellant was revoked for a third time.
His sentence was as follows:
Count 1: 24 months intermediate punishment.
First 18 months in Work Release[.]
Count 2: 60 months intermediate punishment.
First 18 months in Work Release, Concurrent
to Count 1.
Time credit of 10 months and 22 days.
On September 18, 2014, Appellant was revoked for a
fourth time. At that hearing, docket 1973 CR 2014 was nolle
prossed. His sentence was as follows:
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Docket 4392 CR 2010
o Count 1: 12-24 months of state
incarceration[.]
o Count 2: 60 months of state probation;
consecutive to Count 1[.]
o Time credit for 23 months and 10 days
towards Count 1.
Docket 2135 CR 2013: 6 to 12 months state
incarceration. Time Credit of 5 months 15
days, concurrent to the prior docket.
On [March1] 13, 2015, Appellant was revoked for a fifth
time on this docket and also revoked on docket 2135 CR 2013.
At that time, this Court[2] sentenced him as follows:
Docket 2135 CR 2013 was discharged.
At 4392 CR 2010:
o Count 1: closed[.]
____________________________________________
1
The cover sheet of the notes of testimony from Appellant’s probation
revocation and sentencing hearing is dated February 13, 2015. However, a
review of the docket reveals that the hearing occurred on March 13, 2015.
Additionally, the sentencing order, Appellant’s post-sentence motion, and
the Commonwealth’s response to Appellant’s post-sentence motion provide
that sentencing occurred on March 13, 2015. Accordingly, we are satisfied
that the hearing and sentencing occurred on March 13, 2015, and that the
notes of testimony dated February 13, 2015, which the trial court cited,
were dated incorrectly. Thus, we utilize March 13, 2015 as the date of the
hearing and sentencing.
2
While the trial court imposed a state sentence on September 18, 2014,
the record reflects that the Pennsylvania Board of Probation and Parole
(“PBPP”) did not commence supervision of Appellant pursuant to its
discretion to accept such cases under 37 Pa. Code § 65.1 (Board acceptance
of cases). PBPP Form 325 - Request for Special Probation/Parole
Supervision, 10/22/14, at 2; N.T., [3]/13/15, at 2. Thus, under these facts,
supervision and authority to revoke probation was properly with the Dauphin
County Court of Common Pleas.
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o Count 2: 1 to 5 years of state
incarceration[.]
o Time credit of 3 months and 29 days.
Appellant filed a post-sentence [motion] nunc pro tunc
which was denied. He then filed a PCRA [petition seeking the]
reinstatement of his post[-]sentencing and appellate rights which
was granted on July 13, 2015. He filed another post[-]sentence
motion and the Commonwealth filed a response. That post-
sentence motion was denied on August 6, 2015. He filed a
timely notice of [appeal] and was ordered to submit a
[Pa.R.A.P.] 1925(b) statement of errors. He complied with that
order on September 8, 2015.
Trial Court Opinion, 10/19/15, at 1-2.
On appeal, Appellant presents one issue for this Court’s consideration:
Whether the trial court erred in denying Appellant’s Post-
Sentence Motion where his sentence is excessive and
unreasonable and constitutes too severe a punishment in light of
the gravity of the offense, what is necessary to protect the
public, and Appellant’s rehabilitative needs?
Appellant’s Brief at 5 (underscoring omitted).
Appellant’s claim of error is a challenge to the discretionary aspects of
his sentence. An appellant seeking to appeal the discretionary aspects of a
probation-revocation sentence has no absolute right to do so but rather,
must petition this Court for permission. Commonwealth v. Kalichak, 943
A.2d 285, 289 (Pa. Super. 2008); 42 Pa.C.S. § 9781(b). However, before
this Court may review the merits of a challenge to the discretionary aspects
of a sentence, we must engage in a four-pronged analysis:
[W]e conduct a four part analysis to determine: (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,
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see Pa.R.Crim.P. [708]; (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, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)). See
also Pa.R.Crim.P. 708, cmt. (discussing proper preservation of issues
challenging discretionary aspects of a sentence imposed following a
revocation hearing).
We note that Appellant has met the first three parts of the four-prong
test: Appellant filed a timely appeal; Appellant preserved the issue in a
post-sentence motion; and Appellant included a statement pursuant to
Pa.R.A.P. 2119(f) in his brief. Thus, we next assess whether Appellant has
raised a substantial question.
A determination as to whether a substantial question exists is made on
a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.
2000). This Court will grant the appeal “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. at
912-913.
In his Rule 2119(f) statement, Appellant avers that the sentence is
manifestly excessive and unreasonable constituting a punishment that was
too severe. Appellant’s Brief at 9. We conclude that Appellant has raised a
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substantial question. See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.
Super. 2011) (“A claim that a sentence is manifestly excessive such that it
constitutes too severe a punishment raises a substantial question.”) (citation
omitted).
Our standard of review in cases involving challenges to the
discretionary aspects of a sentence is well settled. We have explained that:
[t]he 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, 1283-1284 (Pa.
Super. 2012).
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.
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super.
2003).
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). “Upon 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.”
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super.
2013) (internal quotation marks and citations omitted).
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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)[(1-3)].
Commonwealth v. Colon, 102 A.3d 1033, 1043-1044 (Pa. Super. 2014).
Finally, this Court must show a high degree of deference to the trial court’s
sentencing determinations because the trial court is in the best position to
determine the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it. Commonwealth v.
Walls, 926 A.2d 957, 961 (Pa. 2007) (citation omitted).
Here, the record reveals that Appellant, who was then twenty-three
years old, initially was arrested for engaging in sexual contact with a
thirteen-year-old girl. Complaint, 7/13/10; Trial Court Opinion, 10/19/15, at
3. As noted above, Appellant pled guilty and a sentence of probation was
imposed. Trial Court Opinion, 10/19/15, at 1, 3. Since that time, Appellant
has violated his probation by: testing positive for controlled substances;
submitting false urine tests; possessing drugs; possessing drug
paraphernalia; possessing pornography; failing to appear for a sex offender
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evaluation; having contact with a sixteen-year-old girl; failing to maintain
employment; failing to meet with his probation officer; being unsuccessfully
discharged from a sex offender therapy program; being charged with theft
and access device fraud; changing his address without permission; and
failing to attend sex offender treatment. Id. at 3. Following the summary
of Appellant’s voluminous list of probation violations, the trial court
succinctly stated:
Appellant has been revoked five times. He has failed to
follow through on sexual offender treatment. He has tested
positive for multiple controlled substances. He has had sexual
contact with a minor. Appellant clearly has not learned from his
past behaviors and clearly is incapable of getting the drug and
sexual offender treatment he needs while on probation.
Trial Court Opinion, 10/19/15, at 5.
After review, we discern no abuse of discretion in the sentence
imposed. Appellant repeatedly chose to violate the terms of his probation
and squander the myriad opportunities he had for rehabilitation. The instant
sentence was necessary to vindicate the authority of the court as Appellant
continued his pattern of defying the trial court’s conditions of supervision.
Nothing about the sentence imposed following Appellant’s most recent
probation violation strikes this Court as excessive or as an abuse of
discretion. Accordingly, we affirm Appellant’s judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2016
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Com. v. Johnson, A.
Combined Opinion