J-S65045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHNNY MARCELLUS COLLINS                   :
                                               :
                       Appellant               :   No. 915 MDA 2019

          Appeal from the Judgment of Sentence Entered April 30, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0006085-2010


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                             FILED JANUARY 23, 2020

        Appellant, Johnny Marcellus Collins, appeals pro se from the judgment

of sentence imposed by the Court of Common Pleas of Dauphin County (trial

court) on remand following this Court’s vacatur of the sentence originally

imposed by the trial court. We affirm.

        On May 8, 2012, Appellant was convicted by a jury of Delivery of a

Controlled Substance and Possession with Intent to Deliver a Controlled

Substance (PWID),1 and Tampering with Physical Evidence, Use or Possession

of Drug Paraphernalia, and Possession of Marijuana.2 These convictions arose


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*   Retired Senior Judge assigned to the Superior Court.
1   35 P.S. § 780-113(a)(30).
2 18 Pa.C.S. § 4910(1), 35 P.S. § 780-113(a)(32), and 35 P.S. § 780-
113(a)(31), respectively.
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out of a September 16, 2010, controlled cocaine buy and a search incident to

his arrest on October 19, 2010 for the controlled buy. On July 25, 2012, the

trial court sentenced Appellant to consecutive terms of 3 to 6 years’

incarceration for Delivery of a Controlled Substance; 5 to 10 years’

incarceration for PWID; 1 to 2 years’ incarceration for Tampering with Physical

Evidence; and 12 months’ probation for Use or Possession of Drug

Paraphernalia and imposed no further sentence for the Possession of

Marijuana conviction. On February 19, 2016, this Court affirmed the judgment

of sentence. Commonwealth v. Collins, 141 A.3d 599 (Pa. Super. 2016)

(unpublished memorandum).

        Appellant filed a timely first petition pursuant to the Post Conviction

Relief Act (PCRA)3 on May 4, 2016, which the trial court dismissed without a

hearing. Appellant timely appealed the dismissal of this PCRA petition, raising

numerous claims of ineffective assistance of counsel challenging both his

convictions and sentence.           These claims included arguments that his

aggregate sentence of 9 to 18 years’ incarceration, resulting from the trial

court’s imposition of the consecutive sentences, was manifestly excessive and

unreasonable and that his sentence was illegal under Alleyne v. United

States, 570 U.S. 99 (2013).           On March 19, 2019, this Court vacated the

judgment of sentence on the ground that the sentences that the trial court



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3   42 Pa.C.S. §§ 9541-9546.

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imposed for Delivery of a Controlled Substance and PWID were illegal under

Alleyne and Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014),

and remanded this case to the trial court for resentencing. Commonwealth

v. Collins, 1175 MDA 2018 at 21-22, 25 (Pa. Super. filed March 19, 2019)

(unpublished memorandum). In this memorandum opinion, the Court also

addressed and rejected Appellant’s other challenges to his convictions and

sentence, including his argument that his aggregate sentence was excessive.

       On April 30, 2019, the trial court resentenced Appellant to an aggregate

sentence of 5 to 10 years’ imprisonment, consisting of consecutive terms of 2

to 4 years’ incarceration for Delivery of a Controlled Substance; 2 1/2 to 5

years’ incarceration for PWID; and 6 months to 1 year of incarceration for

Tampering with Physical Evidence; and a consecutive period of 12 months’

probation for Use or Possession Of Drug Paraphernalia. Appellant filed a timely

motion to modify sentence, which the trial court denied on May 16, 2019. This

timely appeal followed.4

       Appellant raises the following single issue for our review:

       Whether the Lower Court erred by sentencing Appellant to
       consecutive terms totaling five (5) to ten (10) years imprisonment
       constitut[ing] too severe a punishment without regard to his
       rehabilitative needs?

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4 Appellant affirmed at this sentencing that he did not want to be represented
by counsel. N.T. Sentencing, 4/30/19, at 2. In addition, at this Court’s
direction, the trial court held a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998), at which Appellant indicated that he did not
want counsel to be appointed to represent him in this appeal.


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Appellant’s Brief at 3.      This is a challenge to the discretionary aspects of

Appellant’s    sentence     and    is   therefore   not   appealable   as   of   right

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en

banc); Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa. Super.

2016).    Rather, an appeal from the discretionary aspects of a sentence is

permitted only after this Court determines that there is a substantial question

that the sentence was not appropriate under the Sentencing Code.

Dempster, 187 A.3d at 272; Bynum-Hamilton, 135 A.3d at 184.5 No such

substantial question exists here.

       A claim that a sentence within statutory limits is excessive is generally

not sufficient to raise a substantial question, absent a claim that the sentence

violates a specific provision of the Sentencing Code or that the sentencing

court did not consider the sentencing guidelines or factors concerning the

crimes and the defendant that a sentencing court is to consider under the

Sentencing Code. Dempster, 187 A.3d at 272-23 n.6; Bynum-Hamilton,

135 A.3d at 184; Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.

2012); Commonwealth v. Titus, 816 A.2d 251, 255–56 (Pa. Super. 2003).




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5 An appellant challenging the discretionary aspects of sentence is also
required to satisfy other requirements, including filing a timely post sentence
motion and complying with Pa.R.A.P. 2119(f). See, e.g., Dempster, 187
A.3d at 272. Appellant has satisfied those other requirements here.

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      Here, there is no claim that the sentence violated any specific provision

of the Sentencing Code or that the sentences for the offenses of which

Appellant was convicted are not within the sentencing guidelines.      Moreover,

the record is clear that the sentencing court considered the sentencing

guidelines, the pre-sentence report, the relevant factors concerning Appellant,

including his lengthy criminal history, and Appellant’s crimes in imposing these

sentences. N.T. Sentencing, 4/30/19, at 3-9; Trial Court Opinion, 9/9/19, at

5-6. The fact that the sentences were imposed consecutively does not raise

a substantial question where the resulting total aggregate sentence is not

extremely lengthy for the criminal conduct at issue, there was more than one

episode of criminal conduct, and there is no basis for a claim that the

sentencing court failed to consider mitigating factors.    Commonwealth v.

Radecki, 180 A.3d 441, 468-70 (Pa. Super. 2018); Commonwealth v.

Zirkle, 107 A.3d 127, 133-34 (Pa. Super. 2014).

      Appellant argues that his sentence is excessive under this Court’s

decisions in Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011),

and Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008). Neither

of these decisions has any applicability here.    In both of those cases, the

consecutive sentences that were held excessive resulted in extraordinarily

lengthy   aggregate    sentences    that   were   effectively   life   sentences.

Coulverson, 34 A.3d at 148-50 (vacating aggregate 90-year maximum

sentence); Dodge, 957 A.2d at 1201-02 (aggregate 581/2-to-124 year


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sentence excessive). The aggregate 5 to 10 year sentence here, which does

not exceed the statutory maximum for either of Appellant’s separate crimes

of Delivery of a Controlled Substance and PWID, 35 P.S. § 780-113(f)(1.1),

bears no resemblance to those extreme sentences. Indeed, this Court has

already held in this case that an aggregate sentence of 9 to 18 years’

incarceration   for   Appellant’s   convictions   “is   neither   excessive   nor

unreasonable.” Commonwealth v. Collins, 1175 MDA 2018 at 18. A fortiori,

Appellant’s much reduced aggregate sentence of 5 to 10 years cannot be

viewed as manifestly excessive or unreasonable.

      Based on the foregoing, we conclude that Appellant’s challenge to the

discretionary aspects of his sentence does not raise a substantial question that

the sentence was not appropriate under the Sentencing Code. Accordingly,

we affirm the trial court’s judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2020




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