J-A22012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES JOHNSON
Appellant No. 2653 EDA 2016
Appeal from the Judgment of Sentence November 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004034-2013
CP-51-CR-0005333-2013
BEFORE: BOWES, LAZARUS AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 17, 2017
James Johnson appeals from the aggregate judgment of sentence of
thirty-six to seventy-two years incarceration imposed after he was found to
be in violation of two probationary sentences. We affirm.
Appellant was charged with a litany of crimes for two separate
robberies. The first occurred on November 13, 2012, when Appellant, along
with another individual, ordered food for delivery from a local restaurant.
When the driver arrived, Appellant’s conspirator pointed a gun at the driver
while Appellant demanded money and the victim’s cell phone. Two days
later, the two men lured an individual to a home by posing as a woman
* Retired Senior Judge specially assigned to the Superior Court.
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online. When the victim arrived, Appellant’s conspirator again pointed a
firearm at the victim while Appellant took items from his person.
On October 17, 2013, Appellant entered an open guilty plea at the
above-captioned dockets. At 2013-4034, he pled guilty to robbery –
threatening another with serious bodily injury, 18 Pa.C.S. § 3701(a)(1)(ii),
conspiracy to do same, and possession of an instrument of crime. At 2013-
5333, Appellant pled guilty to the same three crimes; however, the robbery
was charged under the inflicting serious bodily injury subsection, 18 Pa.C.S.
§ 3701(a)(1)(i). Sentencing was deferred.
On March 14, 2014, Appellant received four identical sentences of
eleven and one-half to twenty-three months of incarceration, followed by a
ten year period of probation, at the counts of robbery and conspiracy. No
further penalty was imposed at the remaining two charges. All four
sentences were imposed concurrently to each other, and Appellant was
immediately paroled.
On March 27, 2015, Appellant was arrested and subsequently
convicted of, inter alia, robbery. The Commonwealth initiated violation
proceedings, and, following Appellant’s conviction, the trial court (hereinafter
“VOP court”) revoked probation. The VOP court imposed four identical
sentences of nine to eighteen years imprisonment at the two counts of
robbery and two counts of conspiracy, imposed consecutively. Thus,
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Appellant’s aggregate sentence was thirty-six to seventy-two years
incarceration. Appellant sought reconsideration, stating the following:
4. That the term of imprisonment imposed herein is excessive
given the level of culpability of the defendant;
5. That it is respectfully urged that the sentence in this matter
be reconsidered in order to allow the Defendant to be sentenced
in accordance with the appropriate guideline recommendations.
Petition for Reconsideration, 11/20/15, at 1-2.
That request was denied. Appellant failed to timely appeal the VOP
sentence, resulting in the quashal of his appeal on June 20, 2016. Appellant
successfully petitioned for reinstatement of his appellate rights through a
timely PCRA petition.
Appellant raises one question, which was preserved in his Pa.R.A.P.
1925(b) statement, for our review: “Did the Trial Court abuse its discretion
when sentenc[ing] the Appellant to an aggregate sentence of 36 to 72 years
following a violation of probation hearing?” Appellant’s brief at 3. However,
the argument portion of the brief raises two subsidiary claims: that the
sentence imposed was excessive, Id. at 10, and that the VOP court failed to
contemporaneously state its reasons for imposing the sentence, Id. at 13.1
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1 We find that these subsidiary questions are fairly suggested by the
statement of questions and therefore do not find the claims waived. See
Pa.R.A.P. 2116(a).
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Appellant’s claim pertains to the discretionary aspects of his sentence.
There is no right to appeal for such questions. We determine whether
Appellant has invoked this Court’s jurisdiction by examining the following
four criteria:
(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, see Pa.R.Crim.P. 720; (3) whether appellant's brief
[complies with] 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. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing
Commonwealth v. Samuel, 102 A.3d 1001, 1006–07 (Pa.Super. 2014)).
Herein, the first and third requirements are clearly met. The Commonwealth
avers that Appellant has failed to preserve his arguments and failed to
present a substantial question. We agree with respect to one of the
subsidiary claims, but conclude that the other claim has been preserved.
First, we examine Appellant’s assertion that the VOP court failed to
place its reasons for imposing the sentence on the record in contravention of
Pa.R.Crim.P. 708(D)(2), which states that “[t]he judge shall state on the
record the reasons for the sentence imposed.” However, Appellant failed to
object at the time of sentencing or present that issue in his motion for
reconsideration. As our Supreme Court explained in Commonwealth v.
Reaves, 923 A.2d 1119 (Pa. 2007), the necessity of requiring an objection
to a failure to comply with this requirement serves a purpose:
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Requiring the VOP sentencing court to state the reasons for its
sentence provides a procedural mechanism for the aggrieved
party both to attempt to rebut the court's explanation and
inclination before the sentencing proceeding ends, and to
identify and frame substantive claims for post-sentence motions
or appeal. The Rule creates a procedural right of immediate,
contemporaneous complaint if no judicial explanation was
forthcoming. In a preserved-issue, direct appeal context, if the
aggrieved party contemporaneously objects to a failure to
comply with the Rule, as it is supposed to, and the court
responds by still refusing to state the reasons for the sentence in
violation of the Rule, it is proper for the appellate court to
remand for a new sentencing procedure, even in the absence of
the aggrieved party identifying something substantively
erroneous with the sentence.
Id. at 1129 (footnote omitted). Therefore, we agree with the
Commonwealth that Appellant failed to preserve this claim.
We now examine Appellant’s contention that the overall length of the
sentence was manifestly excessive, as the court did not consider mitigating
factors. This claim was properly preserved, as the motion for
reconsideration stated that the original sentence “was excessive given the
level of culpability of the defendant[.]” Petition for Reconsideration,
11/20/15, at 1. Additionally, a claim that the sentence is manifestly
excessive, when paired with an allegation that the court failed to consider
mitigating factors and rehabilitative needs, presents a substantial question.
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015).
Therefore, we address the merits.
When reviewing a sentence, we apply the following standard of review.
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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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (citing
Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)).
Section 9771 of the Sentencing Code governs the trial court’s ability to
impose total confinement following revocation of probation; the court may
do so only if it finds one of three conditions has been met:
(c) Limitation on sentence of total confinement.--The court shall
not impose a sentence of total confinement upon revocation
unless it finds that:
(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). Thus, the § 9771(c) factors, standing alone, govern
only a VOP court’s ability to impose total confinement at all, as opposed to
dictating the length of confinement. See 204 Pa.Code 303.1(b) (sentencing
guidelines do not apply to revocation of probation sentences). However, we
held in Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en
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banc), that a VOP court must follow § 9721(b) in tandem with § 9771.
Thus, this Court’s scope of review in appeals from revocation sentences
encompasses the discretionary aspects of the sentence. “Such issues should
not escape review merely because a defendant’s revocation sentence falls
within the statutory limits.” Id. at 1038.
At this juncture, we note that our review of initial sentencing decisions
is quite deferential, and, in the VOP context, it is arguably more so. In
Commonwealth v. Pasture, 107 A.3d 21 (Pa. 2014), our Supreme Court
reversed a decision from this Court vacating a revocation sentence, holding
that we gave “insufficient deference to the revocation court’s imposition of
the sentence following the revocation of [appellant]’s probation[.]” Id. at
22. Pasture noted that a trial court’s initial sentencing decision is afforded
broad discretion, because the court “sentences flesh-and-blood defendants
and the nuances of sentencing decisions are difficult to gauge from the cold
transcript used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to its
decisions an expertise, experience, and judgment that should not be lightly
disturbed.” Id. at 27 (citing Commonwealth v. Walls, 926 A.2d 957, 961
(Pa. 2007)). Pasture went on to observe that this rationale applies with
even more force in the revocation context:
The sentencing court's institutional advantage is, perhaps, more
pronounced in fashioning a sentence following the revocation of
probation, which is qualitatively different than an initial
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sentencing proceeding. At initial sentencing, all of the rules and
procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a defendant
reappears before the court for sentencing proceedings following
a violation of the mercy bestowed upon him in the form of a
probationary sentence. For example, in such a case, contrary to
when an initial sentence is imposed, the Sentencing Guidelines
do not apply, and the revocation court is not cabined by Section
9721(b)'s requirement 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.”
Id. at 27.
In Commonwealth v. Derry, 150 A.3d 987 (Pa.Super. 2016), we
stated that the VOP court must consider § 9721(b) in fashioning a sentence.
In addition to issuing a sentence 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 [,]” a VOP court must
also consider, for example, whether the sentence imposed is
“essential to vindicate the authority of the court[,]” and must
give “due consideration ... to the time spent serving the order of
probation.” 42 Pa.C.S. § 9771(c). Both of these concerns are
unique to VOP sentencing hearings and may, in the end, weigh
heavily on a court's consideration of an appropriate VOP
sentence. But such additional considerations do not, as a
necessary consequence, render the Section 9721(b) factors
inapplicable for purposes of VOP sentences.
Id. at 994.
Appellant’s complaint is that the VOP court failed to consider his
background and rehabilitative needs as mandated by § 9721(b). Appellant
notes that, in addition to his own remarks, he presented the testimony of his
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sister and father, who collectively spoke to his background and mitigating
circumstances. Furthermore, Appellant does not dispute that a period of
incarceration was justified to vindicate the court’s authority, but asserts that
“A lesser sentence would have clearly sufficed in this respect.” Appellant’s
brief at 12.
We find no abuse of discretion. First, the VOP court’s opinion states
that the judge considered the evidence presented by Appellant and his
witnesses, but notes that its original sentence was based “in part . . . on the
same mitigating circumstances that [Appellant]’s family brought up at his
Violation of Probation hearing.” VOP Court Opinion, 11/30/16, at 5.
Furthermore, the court expressed concern that Appellant, who was already
serving a sentence for committing two gunpoint robberies, committed
another robbery a little over a year “after being given such a generous
second chance[.]” Id. Therefore, the court considered the § 9721(b)
factors against the § 9771(c) factors and we have no license to reweigh that
balancing. Our precedents recognize that “it is a different matter when a
defendant reappears before the court for sentencing proceedings following a
violation of the mercy bestowed upon him in the form of a probationary
sentence.” Pasture, supra at 27. Appellant’s sentence is lengthy, but we
cannot conclude that the VOP court abused its discretion in imposing it.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2017
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