J-S37036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TRON JOHNSTON

                            Appellant               No. 1777 WDA 2015


           Appeal from the Judgment of Sentence January 24, 2014
              In the Court of Common Pleas of Jefferson County
             Criminal Division at No(s): CP-33-CR-0000053-2004


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                             FILED MAY 09, 2016

        Tron J. Johnston appeals from the judgment of sentence entered in the

Court of Common Pleas of Jefferson County following revocation of his

probation. We affirm.

        On March 3, 2004, after pleading guilty to three counts of possession

with intent to deliver (PWID)1 at docket numbers CR-700-2003, CR-51-2004

and CR-53-2004 and one count of possession of drug paraphernalia2 at CR-

52-2004, the trial court sentenced Johnston to two years’ probation.      On

October 8, 2004, the court revoked Johnston’s probation after he tested

positive for heroin and resentenced him to five to ten years’ consecutive

____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(32).
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incarceration at docket numbers CR-700-2003, CR-51-2004 and CR-53-2004

and six months’ to one year’s incarceration at docket number CR-52-2004,

for an aggregate term of fifteen-and-a-half to thirty-one years’ incarceration.

        On November 3, 2005, this Court vacated Johnston’s entire sentence

and remanded to the trial court for resentencing. On remand, the trial court

resentenced Johnston to five years’ intermediate punishment at CR-700-

2003, two-and-a-half to five years’ incarceration and one year of probation

at CR-51-2004, one year of probation at CR-52-2004, and two years’

probation at CR-53-2004.

        On April 7, 2011, Johnston pled guilty to reckless endangerment of

another person (REAP)3 in an unrelated case.       At the time, Johnston had

completed serving his sentence at CR-700-2003. The trial court revoked his

probation at docket numbers CR-51-2004 and CR-53-20044 and sentenced

him to two-and-a-half to five years’ incarceration at CR-51-2004 and a

consecutive sentence of three years’ probation at CR-53-2004.

        On January 24, 2014, after pleading guilty to recklessly endangering

the welfare of a child5 and simple assault,6 the trial court revoked Johnston’s

____________________________________________


3
    18 Pa.C.S. § 2705.
4
    Johnston had already served his probation at CR-52-2004.
5
    18 Pa.C.S. § 4304.
6
    18 Pa.C.S. § 2701.



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probation at CR-53-2004 and resentenced him to seven-and-a-half to fifteen

years’ incarceration for the underlying PWID conviction.

      On January 21, 2015, Johnston filed a timely pro se PCRA petition,

alleging that revocation counsel failed to appeal the revocation sentence at

CR-53-2004 on his behalf and seeking reinstatement of his post-sentence

rights. Johnston was appointed PCRA counsel and filed an amended PCRA

petition on March 16, 2015. On October 15, 2015, the trial court reinstated

Johnston’s post-sentence rights.     On October 21, 2015, Johnston filed a

motion to modify sentence, alleging that the revocation court abused its

discretion   in   sentencing   him   to   seven-and-a-half   to   fifteen   years’

incarceration at CR-53-2004.     The revocation court denied the motion on

October 22, 2015. Johnston filed this timely appeal on November 9, 2015,

and then filed a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal on November 22, 2015.

      Johnston raises the following issue on appeal:

      Did the trial court abuse its discretion by imposing the maximum
      statutorily allowed probation revocation sentence of seven[-
      ]and[-]one[-]half (7½) to fifteen (15) years’ incarceration, with
      credit for time served, without considering all relevant
      sentencing factors, resulting in an excessive, unreasonable, and
      harsh sentence contrary to the fundamental norms that underlie
      the sentencing process[,] considering the nature of the crime?

Appellant’s Brief, at 5.

      On appeal, Johnston’s primary contention is that the revocation court

placed “more emphasis on [Johnston’s] prior convictions, for which he had

already been sentenced . . . than [on] the underlying crime of [PWID],

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resulting in an excessive and unreasonably harsh sentence.”        Appellant’s

Brief, at 21. This issue involves a challenge to the discretionary aspects of

Johnston’s revocation sentence.

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding and the legality of the

judgment of sentence imposed.      Commonwealth v. Heilman, 876 A.2d

1021, 1026 (Pa. Super. 2005). Notwithstanding the stated scope of review

suggesting that only the legality of a sentence is reviewable, an appellant

may also challenge the discretionary aspects of a sentence imposed

following revocation.    Commonwealth v. Sierra, 752 A.2d 910, 912 n.6

(Pa. Super. 2000). See also Commonwealth v. Cartrette, 83 A.3d 1030,

1034 (Pa. Super. 2013) (en banc) (scope of review following revocation

proceedings includes discretionary sentencing claims).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.    Sierra, supra.    An appellant is not

entitled to review of the discretionary aspects of sentencing unless he or she

satisfies 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]; 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.




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Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en

banc) (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011)).

      Instantly, Johnston filed a timely notice of appeal following the

reinstatement of his post-sentence rights, and he preserved his challenge to

the discretionary aspects of his sentence by raising the issue in a motion to

modify his sentence. Johnston’s brief includes a statement of the reasons

relied upon for allowance of appeal regarding the discretionary aspects of his

sentence pursuant to Pa.R.A.P. 2119(f).     Accordingly, we must determine

whether Johnston presents a substantial question that the sentence from

which he appeals is not appropriate under the Sentencing Code.

     The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.      Commonwealth v. Anderson, 830

A.2d 1013 (Pa. Super. 2003). 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.” Sierra, supra at 912–13.

     Instantly,   Johnston   contends   that   his   revocation   sentence   is

inconsistent with the provision of the Sentencing Code requiring that the

court consider “the gravity of the offense as it relates to the impact on the

life of the victim and on the community.” 42 Pa.C.S. § 9721(b). Johnston

argues that the revocation court considered only the gravity and impact of

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Johnston’s previous convictions for REAP, simple assault, and endangering

the life of a child for which he had already been sentenced, while failing to

take into account the relatively mild gravity and impact of Johnston’s

underlying conviction for PWID.

      “In general, the imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial court, which,

absent an abuse of that discretion, will not be disturbed on appeal.”

Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa. Super. 2006).               A

sentence should not be disturbed where it is evident the court was aware of

the appropriate sentencing considerations and weighed them in a meaningful

fashion.   Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000).

We note that where the sentencing court has reviewed a presentence

investigation report, the court is considered to have appropriately weighed

the requisite sentencing factors. Commonwealth v. Naranjo, 53 A.3d 66,

72 (Pa. Super. 2012).

      The Sentencing Guidelines do not apply to sentences imposed

following revocation of probation. Commonwealth v. Ferguson, 893 A.2d

735, 739 (Pa. Super. 2006). “[U]pon sentencing following a revocation of

probation, the trial court is limited only by the maximum sentence that it

could have imposed originally at the time of the probationary sentence.”

Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001). A

court can sentence a defendant to total confinement after revoking probation

if the defendant was convicted of another crime, the defendant’s conduct

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indicates it is likely that he will commit another crime if he is not imprisoned,

or such a sentence is essential         to vindicate the     court’s authority.

Commonwealth v. Crump, 995 A.2d 1280, 1282-83 (Pa. Super. 2010).

      Instantly, Johnston’s claim that the revocation court placed undue

emphasis on the gravity and impact of his past crimes, instead of on his

underlying PWID, raises a substantial question. Sierra, supra. However,

the record belies Johnston’s claim that the revocation court considered only

the gravity and impact of his previous convictions at the expense of

discounting his underlying conviction for PWID.

      The record reveals that the revocation court reviewed several

presentence investigation reports dating back to 2004. The revocation court

offered ample support for resentencing Johnston to the statutory maximum

for his PWID conviction, namely Johnston’s repeated convictions for

unrelated crimes while on probation and his apparent inability to refrain from

breaking the law. The revocation court offered the following support for its

sentence:

      I read your presentence investigation, the addendums, the
      attachments; and, of course, this goes back to ’04. We’re
      dealing with a situation where you’ve been convicted of
      endangering [the] welfare of a child as a felony 3 and the simple
      assault as a misdemeanor 1. The child is age four, and this
      follows the last case, probation revocation on the other dockets.
      And I sent you to state prison on – it was – you pled to a
      recklessly endangering for the death of an individual who was
      riding in your car. Considering that length of time, the fact that
      you haven’t been crime-free, and [the] new charges involving
      children, I think the recommendation is appropriate. So I’m
      going to revoke your probation, sentence you to no less than 7[-


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      ]and[-]a[-]half nor more than 15 years concurrent with 639 and
      209 of 2013.

N.T. Gagnon II Hearing, 1/22/14, at 4.     The record supports the court’s

decision. Thus, Johnston’s discretionary aspects of sentencing claim merits

no relief.   Hoover, supra.    See also Fish, supra; Naranjo, supra.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2016




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