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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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.




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           [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



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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).




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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

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             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


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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.



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                 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.



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                    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)


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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.



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