J-S71037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

FRANK JOHNSON

                            Appellant              No. 829 WDA 2015


             Appeal from the Judgment of Sentence May 15, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0018920-2008


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED DECEMBER 14, 2015

       Frank Johnson brings this appeal from the judgment of sentence

entered on May 15, 2015, in the Court of Common Pleas of Allegheny

County. A jury convicted Johnson of delivery of a controlled substance,

possession with intent to deliver (PWID), criminal conspiracy, possession of

a controlled substance, possession of drug paraphernalia, and possession of

a small amount of marijuana.1 Following a PCRA appeal wherein this Court

vacated the order denying PCRA relief and remanded for additional




____________________________________________


1
  35 P.S. §§ 780-113(a)(30), (a)(30), 18 Pa.C.S. § 903, 35 P.S. §§(a)(16),
(a)(32), and (a)(31), respectively.
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proceedings,2 the trial court resentenced Johnson to an aggregate term of

six to 15 years’ imprisonment.3

       In this appeal, Johnson challenges the discretionary aspects of

sentencing, claiming the court failed to consider — in light of his good

conduct in prison from the time of the initial sentence in this matter — all of

the relevant sentencing factors. See Johnson’s Brief at 3.

       The procedural history of this case is summarized by the trial court in

its opinion, as follows:

             On August 2, 2011, a jury convicted [Johnson] of Delivery
       of a Controlled Substance (35 [P.S.] § 780-113(a)(30)),
       Possession with Intent to Deliver (35 [P.S.] § 780-113(a)(30)),1
       Criminal Conspiracy (18 Pa.C.S. § 903), Possession of a
       Controlled Substance (35 [P.S.] § 780- 113(a)(16)), Possession
       of Drug Paraphernalia (35 [P.S.] § 780-113(a)(32)), and
       Possession of a Small Amount of Marijuana (35 [P.S.] § 780-
       113(a)(31)). [Johnson] was sentenced on October 17, 2011, to a
       term of incarceration of 6[0] to 120 months on the Possession
       with Intent to Deliver2 count, a consecutive sentence of 30 to 60
       months on the Criminal Conspiracy count, and no further penalty
       on the remaining counts,3 for an aggregate sentence of seven
       and one half to 15 years. On March 16, 2012, [Johnson]
       appealed this judgment, alleging sufficiency of evidence and
       sentencing errors. The Superior Court of Pennsylvania affirmed
       the judgment of sentence on November 5, 2012. The Supreme
       Court of Pennsylvania denied [Johnson’s] Petition for Allowance
____________________________________________


2
 See Commonwealth v. Johnson, 120 A.3d 1054 [1073 WDA 2014] (Pa.
Super. 2015) (unpublished memorandum).
3
   The trial court notes in its opinion that the court conducted a full
resentencing hearing following remand. See Trial Court Opinion, 8/26/2015,
at 3 n.5.




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     of Appeal on April 30, 2013. [See Commonwealth v. Johnson,
     63 A.3d 820 (Pa. Super. 2012) (unpublished memorandum),
     appeal denied, 65 A.3d 413 (Pa. 2013).]

     __________________________________________
        1
          The jury was not asked to make any specific finding
        regarding the amount of cocaine.
        2
            This sentence reflects a five year mandatory minimum.
        3
          Possession of a Controlled Substance merged with
        Delivery of a Controlled Substance and Possession with
        Intent to Deliver at sentencing.
     __________________________________________

            Next, [Johnson] filed a Post Conviction Relief Act (PCRA)
     petition on July 22, 2013. This Court ultimately dismissed the
     petition for a lack of arguable merit on June 9, 2014. [Johnson]
     appealed the dismissal of the PCRA petition on July 1, 2014. In
     his petition, [Johnson] asserts that his sentence was illegal
     under Alleyne v. United States, 133 S.Ct. 2151 (2013), and
     that this Court failed to award time credit to [Johnson]. The
     Superior Court affirmed this Court on the Alleyne issue, and
     remanded the case on the issue of the time credit4. After a
     hearing,5 this Court resentenced [Johnson] to 42 to 120 months
     on the Possession with Intent to Deliver conviction, a
     consecutive sentence of 30 to 60 months on the Criminal
     Conspiracy count, and no further penalty on the remaining
     counts.6 [Johnson] filed a Notice of Appeal on May 26, 2015 and
     a Concise Statement of Matters Complained of on Appeal on
     June 2, 2015.
     ___________________________________________________


        4
          The Superior Court remanded back to this Court to
        clarify and make a record as to whether [Johnson] is
        entitled to time served on two previous incarcerations.
        See Commonwealth v. Johnson, No. 1073 WDA 2014,
        *4-5 (Pa. Super. March 13, 2014).
        5
          Given the changes in the law since the time of
        sentencing related to the Alleyne decision, out of an



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         abundance of caution,     this   Court   conducted   a   full
         resentencing hearing.
         6
         The issue of time credit was resolved by agreement of
        counsel.
     _______________________________________________

Trial Court Opinion, 8/26/2015, at 2–3.

     As stated above, the sole issue raised in this appeal is a challenge to

the discretionary aspects of sentencing. With regard to such a claim:


         This Court has held, “[w]here an appellant challenges the
         discretionary aspects of a sentence, there is no automatic
         right to appeal and an appellant’s appeal should be
         considered a petition for allowance of appeal.”
         Commonwealth v. Crork, 2009 PA Super 24, 966 A.2d
         585, 590 (Pa. Super. 2009).

         Before we reach the merits of this [issue], we must
         engage in a four part analysis to determine: (1) whether
         the appeal is timely; (2) whether Appellant preserved his
         issue; (3) whether Appellant's brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate
         under the sentencing code.

     Commonwealth v. Clarke, 2013 PA Super 190, 70 A.3d 1281,
     1286 (Pa. Super. 2013) (citing Commonwealth v. Malovich,
     2006 PA Super 183, 903 A.2d 1247, 1250 (Pa.Super. 2006)).


                                   ****

         The determination of what constitutes a substantial
         question must be evaluated on a case-by-case basis. 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.”

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       Commonwealth v. Griffin, 2013 PA Super 70, 65 A.3d 932,
       935 (Pa. Super. 2013) (internal citations omitted).

Commonwealth v. Stefon Johnson, 2015 PA Super 221, 2015 Pa. Super.

LEXIS 698 (Pa. Super. October 20, 2015).

       Here, Johnson has filed a timely notice of appeal, preserved the issue

on a post-sentence motion to modify sentence, and included in his brief a

Pa.R.A.P. 2119(f) statement. Therefore, we must consider whether Johnson

has presented a substantial question for review.

       The Rule 2119(f) statement included in Johnson’s brief sets forth the

claim, inter alia, that the sentencing court failed to adequately consider all

relevant evidence of Johnson’s conduct in prison since his sentencing on

October 17, 2011. See Johnson’s Brief at 9.        To the extent that Johnson

relies on Commonwealth v. Losch, 535 A.2d 115, 119 (Pa. Super. 1987)

(finding appellant’s arguments, including that the trial court erred at

resentencing hearing by disregarding relevant evidence of his good conduct

in prison, presented a substantial question), we will review Johnson’s

discretionary sentencing challenge.4
____________________________________________


4
  Furthermore, we recognize that a substantial question exists when a
sentencing court imposes a sentence in the aggravated range without
considering mitigating factors. Commonwealth v. Felmlee, 828 A.2d
1105, 1107 (Pa. Super. 2003) (en banc). Here, while Johnson’s sentence of
30 to 60 months’ imprisonment on the conspiracy charge was a standard
range sentence, his sentence of 42 to 120 months’ imprisonment on the
PWID charge is an aggravated-range sentence. For both offenses, Johnson’s
Offense Gravity Score was 8 and his Prior Record Score was 5. Therefore,
under the Pennsylvania Sentencing Guidelines, the standard range minimum
(Footnote Continued Next Page)


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      The principles that guide our review are well settled:

          Our Court has stated that the proper standard of review
          when considering whether to affirm the sentencing court’s
          determination is an abuse of discretion. … “An abuse of
          discretion may not be found merely because an appellate
          court might have reached a different conclusion, but
          requires a result of manifest unreasonableness, or
          partiality, prejudice, bias, or ill-will, or such lack of
          support so as to be clearly erroneous.”



                                            ****

          … [T]he Sentencing Code offers general standards with
          respect to the imposition of sentence which require the
          sentencing court to impose 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.” 42 Pa.C.S. § 9721(b). …

Commonwealth v. Walls, 926 A.2d 957, 961–962 (Pa. 2007) (citations

and footnotes omitted).

      In reviewing a sentence on appeal, “[t]he appellate court shall vacate

the sentence and remand the case to the sentencing court with instructions

if it finds … the sentencing court sentenced within the sentencing guidelines

but the case involves circumstances where the application of the guidelines

would be clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2). In making this




                       _______________________
(Footnote Continued)

sentence was 27 to 33 months, and the aggravated range sentence was 42
months.



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“unreasonableness” inquiry, the appellate court reviews the record, having

regard for:

         (1)   The nature and circumstances of the offense and
               the history and characteristics of the defendant.

         (2)   The opportunity of the sentencing court to observe
               the    defendant,   including   any   presentence
               investigation.

         (3)   The findings upon which the sentence was based.

         (4)   The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      In Losch, supra, the defendant attempted to introduce new evidence

of his good conduct in prison at his resentencing hearing. The trial court

found that such evidence was irrelevant.     On appeal, this Court found the

trial court erred in disregarding evidence of the defendant’s good conduct in

prison since his original sentence. This Court instructed:

      We hold that the trial judge must consider evidence of
      appellant’s good conduct in prison. Yet, the trial judge is also
      free to consider a broad range of other information. He may
      review all of the testimony and exhibits introduced at both of
      appellant’s prior sentencing hearings. He may also allow the
      prosecution to introduce evidence relating to appellant's bad
      conduct, if any, since the time that judgment of sentence was
      last imposed. Appellant’s favorable adjustment to life in the
      penitentiary is only one of several variables upon which the trial
      judge should focus; there is no right to have this one factor take
      precedence over all others. In the end, the trial court may
      conclude that appellant’s new evidence pales in significance
      when compared with the other aspects of his case including the
      gravity of his offenses.

Id., 535 A.2d at 123 (emphasis in original) (citation and footnote
omitted).

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     Following Losch, this Court reiterated:

     When a sentence is vacated and the case is remanded to the
     sentencing court for resentencing, the sentencing judge should
     start afresh. Commonwealth v. Losch, 369 Pa.Super. 192, 535
     A.2d 115 (1987). “Reimposing a judgment of sentence should
     not be a mechanical exercise.” Id. at 206, 535 A.2d at
     122. “Given the important nature of the interests involved, the
     judge at the second sentencing hearing should reassess the
     penalty to be imposed on the defendant--especially where
     defense counsel comes forward with relevant evidence which
     was not previously available.” Id. Thus, [the defendant’s]
     conduct since the prior sentencing hearing is relevant at
     resentencing. Id. at 208, 535 A.2d at 123. The sentencing judge
     must take note of this new evidence and reevaluate whether the
     jail term which [the defendant] received is a just and
     appropriate punishment. Id.

Commonwealth v. Jones, 640 A.2d 914, 919–920 (Pa. Super. 1994).

     Johnson argues that the court did not “start afresh,” but rather

“limited its discretion and review to how the new evidence would impact a

determination already made — or a mind already made up — regarding the

sentence imposed on May 15, 2015.”          Johnson’s Brief at 14–15.    We

disagree.

     Here, at sentencing, the trial court stated:

     I have considered the guidelines.          I have reviewed both
     presentence reports, and I will note that in addition to being on
     probation, three cases at the time that he was picked up on
     these charges, his supervision history has been poor, including
     abscondings, specifically while on EHM [Electoninc Home
     Monitoring] and he does have an extensive record beginning at
     age 15 – quite a long history up to his sentence in this case.
     And his records also indicate severe disciplinary problems in the
     school. All of these things are risk factors.




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       And in light of that, I will sentence him at Count 2 to a sentence
       of 42 to 120 months, and allow him to prove to the Parole Board
       when he has turned himself around and chosen to become a
       productive member of society.

       At the Conspiracy count, I believe that is Count 3, the same
       standard sentence that was imposed originally of 30 to 60
       months, and that would be consecutive.

       The reason for the sentence is, I believe the guidelines for Mr.
       Johnson underrepresent the extent of his criminal history up to
       the time of sentencing. Five being as high as it can go. And the
       number of arrests, combined with the age at which he began,
       and the ongoing issues with drugs, school records, all of those
       factors place him in a high risk category, as well as his poor
       supervision in the community.

N.T., 5/15/2015, at 6–7.          The court imposed no further penalty on the

remaining counts.

       The record reflects the trial court had the benefit of two previously

prepared presentence investigation reports, and received evidence of

Johnson’s good behavior in prison proffered by trial counsel.       See N.T.,

5/15/2015, at 2–4. The trial judge explicitly noted on the record that she

had reviewed the certificates of completion and attendance for programs

that Johnson was enrolled while in prison. Id. at 4.5 The court heard trial

counsel’s argument that Johnson should be sentenced at Counts 2 and 3 in

the standard range and that the sentences run concurrently or, if made to
____________________________________________


5
  See also Trial Court Opinion, 8/26/2015, at 6 n.7. (“[Johnson] provided
certifications he obtained while incarcerated showing the successful
completion of an Occupational Safety Health and training Course,
Completion of Introduction to the Nurturing Program, and completion of a
‘Thinking For A Change’ program. [Johnson] also obtained clearance to work
a job outside of the prison grounds.”).



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run consecutively, in the bottom of the standard range with a 27-month

minimum.       Id.   The court also permitted Johnson to speak on his own

behalf, and Johnson informed the court that he had obtained a job outside

the prison and was “learning how to work with others” and “staying on the

right pace.”    N.T., 5/15/2015, at 5–6.       Lastly, the court heard from the

Commonwealth, which only asked the court to consider the guidelines. Id.

at 6.

        In imposing sentence, the trial court, while not specifically discussing

Johnson’s evidence of good conduct in prison since the initial sentence, did

find that Johnson should “prove to the Parole Board when he has turned

himself around and chosen to become a productive member of society.”

N.T., 5/15/2015, at 6.      This comment reveals that the court recognized

Johnson’s evidence of good conduct, but did not find that it outweighed

other factors. As the trial court explained in its opinion:

        At the conspiracy count, this Court imposed a sentence within
        the standard range of the Sentencing Guidelines, which carries
        its own presumption of reasonability. … The sentence at this
        Count remained unchanged from the original sentence on
        October 17, 2011.

        At the PWID count, this Court sentenced [Johnson] to 42 to 120
        months incarceration, which was in the aggravated range. This
        Court noted at sentencing that the sentencing guidelines
        underrepresented the extent of his criminal history. His Prior
        Record Score of five is the maximum score. His number of
        arrests, combined with the age at which he began, and the
        ongoing issues with drugs, school records, and his poor
        supervision in the community, all of these factors place him in a
        high risk category for re-offense, justifying the Court’s deviation
        from the standard range. In addition, the Court notes that the

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      sentence at this Count represents a reduction from the
      mandatory minimum reflected in the original sentence. Should
      [Johnson] demonstrate his rehabilitation to the Parole Board, he
      would be eligible for release 18 months earlier than under the
      previously imposed sentence.

      … While this Court considered [Johnson’s] efforts to make
      positive changes in his life, this Court must also take into
      account its duty to protect the public, the gravity of the offense,
      [Johnson’s] extensive criminal history and failure to respond well
      to community supervision as well as [Johnson’s] need for
      rehabilitation.

Trial Court Opinion, 8/26/15, at 5 (citation omitted) (footnote omitted).

      We find that the transcript of the sentencing hearing and the trial

court’s Rule 1925(a) opinion sufficiently demonstrate that the trial court

considered “afresh” all relevant sentencing factors, including Johnson’s

evidence of good conduct in prison, in fashioning the new sentence. In this

regard, we note that this Court may not reweigh the sentencing factors

considered by the trial court.       See Walls, supra, 926 A.2d at 968

(concluding “Superior Court exceeded its standard of review and erred in

making certain legal determinations which led it to supplant the sentencing

court’s discretion”). Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015

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