J-S47024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH DEMITRIUS JOHNSON                   :
                                               :
                       Appellant               :   No. 1783 WDA 2017

       Appeal from the Judgment of Sentence Entered November 1, 2017
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0001813-2017


BEFORE:      OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED NOVEMBER 1, 2018

        Joseph Demitrius Johnson appeals from the judgment of sentence

entered on November 1, 2017, after he pled guilty to firearms not to be carried

without a license and recklessly endangering another person (“REAP”).1

Johnson contends that it was unconstitutional for the trial court to include his

juvenile adjudication for robbery when calculating his prior record score. We

affirm.

        The facts underlying Johnson’s guilty plea are not dispositive of this

appeal and as such we do not reiterate them. Johnson was 19 years old when

he committed the above-referenced crimes. See Guideline Sentence Form, at

1. Based on Johnson’s prior record score of four, the Sentencing Guidelines

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*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6106 and 2705, respectively.
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suggested minimum sentences ranging from 36 to 42 months for the firearms

conviction and nine to 12 months for the REAP conviction. Notes of Testimony

(N.T.), Sentencing Hearing, 11/1/17, at 23. Johnson’s prior record score of

four was based on his juvenile adjudication for a robbery committed when he

was 16 years old.2 See Pre-Sentence Investigation (“PSI”) Report, at 4. At

the sentencing hearing, Johnson did not argue that it was improper for the

trial court to consider the robbery adjudication when calculating his prior

record score. Rather, defense counsel acknowledged Johnson’s prior record

score stating, “We have a gentleman who is only 20 years old with a prior

record score of four.” N.T., at 16. Johnson did not file a post-sentence motion.

This timely appeal followed.

        On appeal, Johnson asks us to review one issue:

        I.    Did the trial court err in its calculation of [Johnson’s] prior
              record score as the score should not include [Johnson’s]
              juvenile adjudications in the calculation under the logic
              propounded in Roper v. Simmons, 543 U.S. 551 (2005),
              Graham v. Florida, 560 U.S. 48 (2010), Miller v.
              Alabama, 567 U.S. 460 (2012), and Montgomery v.
              Louisiana, _____ U.S. _____ (2016)?

Johnson’s Br. at 7.

        Johnson challenges the constitutionality of the provision of the

Sentencing Guidelines that requires a court to include certain juvenile


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2   18 Pa.C.S.A. § 3701(a)(1).




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adjudications when calculating a defendant’s prior record score.3 See 204 Pa.

Code § 303.6(a). Our standard review is de novo and our scope is plenary.

See Commonwealth v. Bonner, 135 A.3d 592, 597 (Pa.Super. 2016),

appeal denied, 145 A.3d 161 (Pa. 2016).

        We begin by noting that Johnson did not preserve the issue presented

to this Court because he failed to raise the claim with the trial court. While

Johnson claims that he “preserved this challenge at the time of sentencing,”

we disagree. Johnson’s Br. at 10. Johnson cites to two pages of the sentencing

transcript, which read:

        Mr. Checque [defense counsel]: I’ve known Joseph for a while. I
        represented him when he was a juvenile on a couple occasions.
        And I know he’s been in a lot of trouble, but I’ve always been
        optimistic, you know, that he is a good kid who just keeps hanging
        with the wrong people. I think there could be a mental health
        component there if you look at the type of crimes. And there is -
        - whether, you know, the Court wants to take - - acknowledge it
        or not, there’s been a rash of gun violence. Even in the juvenile
        system there’s a rash of young juveniles who have had guns and
        firearms, and - -

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3   204 Pa. Code § 303.6 provides:

        (a) Juvenile adjudication criteria. Prior juvenile adjudications are
        counted in the Prior Record Score when the following criteria are met:

        (1) The juvenile offense occurred on or after the offender's 14th
        birthday, and


        (2) There was an express finding by the juvenile court that the
        adjudication was for a felony or one of the Misdemeanor 1 offenses listed
        in § 303.7(a)(4).


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      The Court: But saying someone can have a gun for self-protection
      because there are guns in the community is a self[-]fulfilling
      prophecy. Then everybody can have a gun.

      Mr. Checque: Your Honor, though, the beefs, if that’s the correct
      colloquial term, is real. There are 14, 15, 16 year old kids, you
      know, in high school who are afraid just because they’re on the
      east side of the city or west side of Erie, in their mind they’re
      validated, I have a gun, I’m going to protect myself, if I cross
      State Street I might get shot because I’m associated with these
      other kids. I’m not saying it’s the best excuse, and it’s not, but a
      lot of juveniles have been sent to placement and now they’re
      adults. And the prior record score is reflecting that. We have a
      gentleman who is only 20 years old with a prior record score of
      four. I would ask you take that into consideration.

N.T., 15-16; see also Johnson’s Br. at 10.

      Johnson did not preserve his claim on appeal based on our review of the

above cited portion of the sentencing hearing transcript and the entire

transcript itself. He did not argue that it was unconstitutional for the trial court

to include his juvenile adjudication. Rather, Johnson’s counsel simply

acknowledged his prior record score was the result of his juvenile acts. We

therefore conclude that Johnson has waived this issue. See Pa.R.A.P. 302(a)

(issue not raised before trial court is waived on appeal).

      Nevertheless, even if this issue were properly preserved for appellate

review, the claim is meritless. Johnson contends that “the inclusion of juvenile

adjudications when calculating the prior record score overlooks the juvenile’s

diminished culpability.” Johnson’s Br. at 12. However, as he admits in his brief,

our decision in Bonner rejected that argument. Id. at 14; see also Bonner,

135 A.3d at 600. In Bonner, this Court held that Section 303.6 was


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constitutional. Bonner, 135 A.3d at 603. Bonner argued that the holdings of

Miller, Roper, and Graham, supported the contention that including juvenile

adjudications in the prior record score discounts a juvenile’s diminished

capacity and therefore should be treated “differently than adult convictions

when calculating a prior record score.”4 Id. at 598-99. We disagreed with this

argument, stating:

       Roper, Graham, and Miller all addressed the constitutionality of
       sentencing a defendant for offenses committed as a juvenile. In
       this case, [Bonner] was an adult when he committed the instant
       offenses. Thus, Roper, Graham, and Miller are inapposite. See
       Commonwealth v. Lawson, 90 A.3d 1, 6–8 (Pa.Super.2014);
       Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super.2013),
       appeal denied, 622 Pa. 764, 81 A.3d 75 (2013). Here, [Bonner] is
       being held to account for conduct and choices he made as an adult
       with full knowledge of the nature and scope of his own criminal
       past, including juvenile adjudications. Thus, [Bonner’s] contention
       that the sentencing guidelines fail to recognize the lack of maturity
       of a youthful offender holds little sway in the instant
       circumstances. Moreover, the sentencing guidelines attempt to
       ensure that a defendant knows the prior juvenile adjudications
       that will be used during subsequent adult sentencing proceedings
       by limiting such use to those committed after he turned 14 and
       that (typically) occurred within the past 14 years. 204 Pa.Code §§
       303.6(a)(1), 303.6(c).




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4 See Miller v. Alabama, 567 U.S. 460, 489 (2012) (holding Eighth
Amendment prohibits imposition of life without parole on juvenile offender
who was under the age of 18 at the time of the criminal act); Graham v.
Florida, 560 U.S. 48, 82 (2010) (holding Eighth Amendment prohibits life
without parole being imposed on a juvenile who did not commit a homicide);
Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding Eighth and
Fourteenth Amendments prohibit the imposition of the death penalty on a
juvenile offender who was under 18 years old at the time of the criminal act).

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Id. at 600-01 (footnote omitted). Similarly, Johnson’s reliance on Roper,

Graham, and Miller is misguided because he was 19 years old at the time of

his offenses and as such they are irrelevant to this appeal. Johnson also relies

on Montgomery v. Louisiana, --- U.S. ---, 136 S.Ct. 718, 732 (2016), which

held that Miller could be applied retroactively “in cases on collateral review.”

Yet again his reliance on Montgomery is misplaced because the Court’s

decision there, like its decision in Miller, related to the sentencing of juvenile

offenders, and Johnson was not a juvenile when he committed the crimes at

issue. Id. at 725 (Montgomery was 17 years old at the time of his offense).

      Therefore, as in Bonner, it was not unconstitutional for the trial court

here to consider Johnson’s juvenile adjudication for robbery when calculating

his prior record score. Since Johnson’s adjudications satisfied the criteria of

Section 303.6, the trial court as a matter of law was required to include

Johnson’s adjudication for robbery when calculating his prior record score.

See 204 Pa. Code § 303.6(a). We affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2018



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