J-S73032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                       Appellee

                  v.

JUSTIN RAPHAEL JOHNSON

                       Appellant                No. 420 WDA 2016


          Appeal from the Judgment of Sentence June 30, 2015
               in the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0002847-2014


COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                       Appellee

                  v.

JUSTIN RAPHAEL JOHNSON

                       Appellant                No. 421 WDA 2016


          Appeal from the Judgment of Sentence June 30, 2015
               in the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0002848-2014


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                   FILED OCTOBER 25, 2016

     Justin Raphael Johnson (“Appellant”) appeals from the June 30, 2015

judgment of sentence entered in the Erie County Court of Common Pleas
J-S73032-16



following his guilty plea to possession of a controlled substance, 1 possession

of a controlled substance with intent to deliver (“PWID”),2 and possession of

a firearm prohibited.3 After careful review, we affirm.

        On May 6, 2015, Appellant entered a negotiated guilty plea to

possession of a controlled substance at Docket No. CP-25-CR-0002847-

2014, and PWID and possession of a firearm prohibited4 at Docket No. CP-

25-CR-0002848-2014.            As    part      of   the   negotiated   guilty   plea,   the

Commonwealth nolle prossed the remaining charges against Appellant.5

        On June 30, 2015, the trial court sentenced Appellant to a term of 40

to 80 months’ incarceration on the PWID conviction, a term of 60 to 120

months’ incarceration on the possession of a firearm prohibited conviction to

be served consecutively to the PWID sentence, and term of 3 years’

probation for the possession of a controlled substance conviction to be
____________________________________________


1
    35 P.S. § 780-113(a)(16).
2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S. § 6105(a)(1).
4
    18 Pa.C.S. § 6105(a)(1).
5
  At Docket No. CP-25-CR-0002847-2014, the Commonwealth nolle prossed
two counts of PWID, one count of possession of a controlled substance, and
one count of possession of drug paraphernalia. At Docket No. CP-25-CR-
0002848-2014, the Commonwealth nolle prossed one count of possession of
a controlled substance, one count of possession of drug paraphernalia, one
count of receiving stolen property, one count of firearms not to be carried
without a license, and one count of conspiracy to commit receiving stolen
property.



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served consecutively to the possession of firearms prohibited conviction.

Appellant’s   aggregate   sentence   was   therefore    100    to   200   months’

incarceration followed by 3 years’ probation.

      Appellant did not file a direct appeal.   However, on September 23,

2015, Appellant filed a petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. § 9541 et seq., claiming ineffective assistance of

counsel and seeking the reinstatement of his post-sentence and direct

appeal rights. The PCRA court granted Appellant’s PCRA petition on January

21, 2016.

      On      February    19,   2016,   Appellant      filed   a    motion     for

reconsideration/modification of sentence, which the trial court denied on

February 22, 2016. On March 21, 2016, Appellant filed a notice of appeal.

On April 8, 2016, Appellant filed a concise statement of matters complained

of on appeal pursuant to Pa.R.A.P. 1925(b).         The trial court issued its

Pa.R.A.P. 1925(a) opinion on April 13, 2016.

      Appellant raises the following three (3) issues for our consideration:

      A. Whether the sentencing court abused its discretion in
      imposing a consecutive sentencing scheme as to the sentence
      imposed at docket number 2848 of 2014, which amounted to a
      manifestly excessive sentence?

      B. Whether the lower [c]ourt committed legal error and abused
      its discretion in failing to set forth a legally sufficient
      contemporaneous statement in support of the imposition of a
      consecutive sentencing scheme?

      C. Whether the legal predicate cited by the sentencing [c]ourt
      for the imposition of a consecutive sentencing scheme at docket
      number 2848 of 2014 that the respective criminal offenses

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J-S73032-16


      occurred at different times was not factually accurate and thus
      failed to comprise a valid and legally justifiable predicate for that
      sentencing election of consecutive sentences?

Appellant’s Brief, p. 2.

      Appellant’s claims challenge the discretionary aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must comply with the following requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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 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.

Allen, 24 A.3d at 1064.

      Here, Appellant filed a timely notice of appeal and preserved his

discretionary aspects of sentencing issue in a motion for reconsideration of

sentence.    Further, Appellant’s brief includes a concise statement of the

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).

See Appellant’s Brief, p. 4.       Accordingly, we now determine whether

Appellant has raised a substantial question for review and, if so, proceed to

a discussion of the        merits of the    claim.    See Pa.R.A.P. 2119(f);

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).




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       “A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the [sentencing] code or is contrary to the fundamental

norms    which     underlie    the   sentencing      process.”   Commonwealth        v.

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises

a substantial question on a case-by-case basis.”               Id.    A bald or generic

assertion that a sentence is excessive does not, by itself, raise a substantial

question justifying this Court’s review of the merits of the underlying claim.

Id.;    see   also    Commonwealth             v.   Harvard,     64   A.3d   690,   701

(Pa.Super.2013).       Additionally, a claim that a sentence is unreasonable

because the trial court decided to run certain portions of it consecutive to

one another also does not raise a substantial question for our review. See

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (a claim

that the consecutive nature of sentences violates the Sentencing Code fails

to raise a substantial question for review).           A substantial question exists

where the sentencing court failed to provide sufficient reasons for imposing a

sentence outside of the guidelines.6            Commonwealth v. Monohan, 860

A.2d 180, 182 (Pa.Super.2004).
____________________________________________


6
  Further, “[i]n every case where a sentencing court imposes a sentence
outside of the sentencing guidelines, the court must provide in open court a
contemporaneous statement of reasons in support of its sentence.”
Commonwealth v. Curran, 932 A.2d 103, 106 (Pa.Super.2007) (citing 42
(Footnote Continued Next Page)


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      Further, “[t]his Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.”         Commonwealth v. Disalvo, 70 A.3d 900, 903

(Pa.Super.2013); see also Commonwealth v. Ratushny, 17 A.3d 1269,

1273 (Pa.Super.2011) (“argument that the sentencing court failed to

adequately consider mitigating factors in favor of a lesser sentence does not

present      a     substantial     question      appropriate      for   our      review.”);

Commonwealth v.             Ladamus,       896    A.2d     592,   595   (Pa.Super.2006)

(“[A]ppellant’s contention that the trial court did not adequately consider a

mitigating       circumstance    when     imposing    sentence      does   not    raise   a

substantial question sufficient to justify appellate review of the merits of

such claim.”).        However, a challenge to the consecutive imposition of

sentences as unduly excessive together with a claim that the court failed to

consider     mitigating      factors    does     present    a     substantial    question.

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super.2015).

      Here, Appellant alleges that the trial court imposed an unreasonable

sentence by imposing consecutive sentences without adequate consideration




                       _______________________
(Footnote Continued)

Pa.C.S. § 9721). However, “where a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as appropriate under
the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010).




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of mitigating factors raised at sentencing.7        See Appellant’s Brief, 4-5.

Additionally, Appellant asserts that the trial court did not adequately place

reasons on the record as to why it imposed the sentence it did.         See id.

Based on the above authority, we conclude that Appellant raises a

substantial question for review.          See Swope, supra.   We will therefore

address the merits of Appellant’s discretionary aspects of sentencing claim.

       We review discretionary aspects of sentence claims under the following

standard of review:

             If this Court grants appeal and reviews the sentence, the
       standard of review is well-settled: sentencing is vested in the
       discretion of the trial court, and will not be disturbed absent a
       manifest abuse of that discretion.        An abuse of discretion
       involves a sentence which was manifestly unreasonable, or
       which resulted from partiality, prejudice, bias or ill will. It is
       more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted).

       Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion.       Instead, the trial court imposed a sentence that

was consistent with the protection of the public, took into account the

gravity of the offense as it related to the impact on the life of the victim and



____________________________________________


7
  Although not enumerated in Appellant’s brief, at sentencing, counsel for
Appellant argued Appellant’s age, his past good deeds, his prior enrollment
in school, his drug addiction, and his acceptance of responsibility as factors
that should have mitigated his sentence. See N.T. 6/30/2015, pp. 5-9.



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on the community, and considered the Appellant’s rehabilitative needs, as

required by 42 Pa.C.S. § 9721(b).

     In imposing sentence, the trial court considered the sentencing

guidelines, the pre-sentence investigation report, the circumstances of the

crimes, Appellant’s background and criminal history, the arguments of

counsel, the testimony of Appellant’s mother, and the testimony of Appellant

himself. N.T. 6/30/2015, pp. 5-15. The trial court then sentenced Appellant

to a standard range sentence thusly:

           I have read the presentence report in its entirety, including
     the Sentencing Guidelines. I’ve listened to what you had to say
     and your lawyer has had to say, Mr. Johnson, and what your
     mom has had to say. And I certainly empathize with your mom
     that she has to be here today. And I accept her representations
     of your good qualities and things that you have done, and that
     you are a caregiver and the things that she described. And that
     makes – that’s what makes it even more heart wrenching that
     she has to be here today.

           I mean, because the reality is this, and it’s no secret here,
     I mean, you’ve been in the criminal justice system as a juvenile
     for felony sexual offences while you were still in the juvenile
     system because you didn’t get discharged from Juvenile Court
     until August 17th of 2004. But while you are in the juvenile
     system you commit your first offenses as an adult, which are
     drug offenses, committed on June 9th of 2004. So you are – you
     basically went nonstop from the Juvenile System to the Adult
     System and you remained in the Adult System and you keep
     digging yourself deeper and deeper in the Adult System.

            In 2004, in addition to the offenses in Erie County, you are
     involved in a number of robberies down in Allegheny County for
     which you were given 5 to 10 years at that point. And obviously
     that’s very serious.

           In 2005 you have a prior possession with intent to deliver
     cocaine, which is what’s involved in this case. And in that case,
     according to the presentence report, it was 30.2 – 32.2 grams of

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J-S73032-16


     cocaine. So then you get out. You also have possession and
     drug charges for which I sentenced you back in November of
     2014 that were committed in February of 2014. One was
     February 4th and the other was February 16th.

          Meanwhile, these offenses that you are here on involved
     you selling crack cocaine on two separate occasions from your
     apartment in Granada on January 2nd of 2014, and the other is
     on June 12th of 2014. Then when you are arrested on those
     charges, you have a loaded gun and 6.15 grams of cocaine on
     you. I mean, that’s a pretty consistent pattern.

            You know, I recognize that at some point you were
     involved in school. And I accept your counsel’s representation
     you are an intelligent person. You strike me as an articulate
     person.     But unfortunately, you have chosen to use your
     intelligence in a criminal manner, and it’s while you are on
     supervision, on state supervision you’re engaged in these
     behaviors.

            You are selling crack cocaine in this community and you’re
     in possession of a loaded firearm. Those are two very lethal
     influences in this community, and I can’t just wink at it and say,
     oh, geez, you’ll never do that again. Because your track record
     tells me just the opposite.

            Now I’m going to fashion a sentence here that’s going to
     hold you accountable for each one of these separate offenses.
     I’m not going to – there is a light at the end of the tunnel, and
     it’s up to you to make something of your life, and I certainly
     hope you do, and I certainly hope you do something to make
     your mother proud of you.

           What I’ll do is this: At Count 1, Docket Number 2848 of
     2014, order a sentence in the middle of the standard range of
     the Sentencing Guidelines of 40 to 80 months. Order court
     costs. Order the lab fee of $113.

            At Count 5 at Docket Number 2847 – I’m sorry. Count 5 is
     Docket 2848, which is the possession of a firearm, loaded
     firearm. Order a sentence which appears to be in the mitigated
     range of the Sentencing Guidelines of 60 to 120 months. I
     mean, that’s a whole separate day, a whole separate set of
     facts, and a whole different crime. I’ll make that consecutive to
     Count 1 at Docket 2848. As part of that there is a lab fee for the
     firearm of $162.

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            At Count 3 at Docket Number 2847 of 2014, I’ll order a
      period of probation of 3 years, which I note is below the
      mitigated range of the Guidelines. And that will be consecutive
      to Count 5 at Docket Number 2848 of 2014.

N.T. 6/30/2015, pp. 13-16.

      We find no abuse of discretion in the trial court’s imposition of

Appellant’s standard range sentence.       Further, the trial court adequately

explained the imposition of sentence on the record. Accordingly, Appellant’s

excessiveness claims fail on the merits.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2016




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