J-A22012-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                  v.

JAMES JOHNSON

                       Appellant                   No. 2653 EDA 2016


        Appeal from the Judgment of Sentence November 17, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004034-2013
                         CP-51-CR-0005333-2013


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 17, 2017

     James Johnson appeals from the aggregate judgment of sentence of

thirty-six to seventy-two years incarceration imposed after he was found to

be in violation of two probationary sentences. We affirm.

     Appellant was charged with a litany of crimes for two separate

robberies. The first occurred on November 13, 2012, when Appellant, along

with another individual, ordered food for delivery from a local restaurant.

When the driver arrived, Appellant’s conspirator pointed a gun at the driver

while Appellant demanded money and the victim’s cell phone.        Two days

later, the two men lured an individual to a home by posing as a woman




* Retired Senior Judge specially assigned to the Superior Court.
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online.   When the victim arrived, Appellant’s conspirator again pointed a

firearm at the victim while Appellant took items from his person.

      On October 17, 2013, Appellant entered an open guilty plea at the

above-captioned dockets.      At 2013-4034, he pled guilty to robbery –

threatening another with serious bodily injury, 18 Pa.C.S. § 3701(a)(1)(ii),

conspiracy to do same, and possession of an instrument of crime. At 2013-

5333, Appellant pled guilty to the same three crimes; however, the robbery

was charged under the inflicting serious bodily injury subsection, 18 Pa.C.S.

§ 3701(a)(1)(i). Sentencing was deferred.

      On March 14, 2014, Appellant received four identical sentences of

eleven and one-half to twenty-three months of incarceration, followed by a

ten year period of probation, at the counts of robbery and conspiracy. No

further penalty was imposed at the remaining two charges.              All four

sentences were imposed concurrently to each other, and Appellant was

immediately paroled.

      On March 27, 2015, Appellant was arrested and subsequently

convicted of, inter alia, robbery.    The Commonwealth initiated violation

proceedings, and, following Appellant’s conviction, the trial court (hereinafter

“VOP court”) revoked probation.       The VOP court imposed four identical

sentences of nine to eighteen years imprisonment at the two counts of

robbery and two counts of conspiracy, imposed consecutively.              Thus,




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Appellant’s    aggregate     sentence      was   thirty-six   to   seventy-two   years

incarceration. Appellant sought reconsideration, stating the following:

       4. That the term of imprisonment imposed herein is excessive
       given the level of culpability of the defendant;

       5. That it is respectfully urged that the sentence in this matter
       be reconsidered in order to allow the Defendant to be sentenced
       in accordance with the appropriate guideline recommendations.

Petition for Reconsideration, 11/20/15, at 1-2.

       That request was denied.         Appellant failed to timely appeal the VOP

sentence, resulting in the quashal of his appeal on June 20, 2016. Appellant

successfully petitioned for reinstatement of his appellate rights through a

timely PCRA petition.

       Appellant raises one question, which was preserved in his Pa.R.A.P.

1925(b) statement, for our review: “Did the Trial Court abuse its discretion

when sentenc[ing] the Appellant to an aggregate sentence of 36 to 72 years

following a violation of probation hearing?” Appellant’s brief at 3. However,

the argument portion of the brief raises two subsidiary claims: that the

sentence imposed was excessive, Id. at 10, and that the VOP court failed to

contemporaneously state its reasons for imposing the sentence, Id. at 13.1



____________________________________________


1 We find that these subsidiary questions are fairly suggested by the
statement of questions and therefore do not find the claims waived. See
Pa.R.A.P. 2116(a).



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      Appellant’s claim pertains to the discretionary aspects of his sentence.

There is no right to appeal for such questions.      We determine whether

Appellant has invoked this Court’s jurisdiction by examining the following

four criteria:

      (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
      [complies with] 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, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing

Commonwealth v. Samuel, 102 A.3d 1001, 1006–07 (Pa.Super. 2014)).

Herein, the first and third requirements are clearly met. The Commonwealth

avers that Appellant has failed to preserve his arguments and failed to

present a substantial question.     We agree with respect to one of the

subsidiary claims, but conclude that the other claim has been preserved.

      First, we examine Appellant’s assertion that the VOP court failed to

place its reasons for imposing the sentence on the record in contravention of

Pa.R.Crim.P. 708(D)(2), which states that “[t]he judge shall state on the

record the reasons for the sentence imposed.” However, Appellant failed to

object at the time of sentencing or present that issue in his motion for

reconsideration.   As our Supreme Court explained in Commonwealth v.

Reaves, 923 A.2d 1119 (Pa. 2007), the necessity of requiring an objection

to a failure to comply with this requirement serves a purpose:


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      Requiring the VOP sentencing court to state the reasons for its
      sentence provides a procedural mechanism for the aggrieved
      party both to attempt to rebut the court's explanation and
      inclination before the sentencing proceeding ends, and to
      identify and frame substantive claims for post-sentence motions
      or appeal. The Rule creates a procedural right of immediate,
      contemporaneous complaint if no judicial explanation was
      forthcoming. In a preserved-issue, direct appeal context, if the
      aggrieved party contemporaneously objects to a failure to
      comply with the Rule, as it is supposed to, and the court
      responds by still refusing to state the reasons for the sentence in
      violation of the Rule, it is proper for the appellate court to
      remand for a new sentencing procedure, even in the absence of
      the aggrieved party identifying something substantively
      erroneous with the sentence.

Id.   at   1129    (footnote   omitted).     Therefore,   we    agree   with   the

Commonwealth that Appellant failed to preserve this claim.

      We now examine Appellant’s contention that the overall length of the

sentence was manifestly excessive, as the court did not consider mitigating

factors.    This    claim   was   properly   preserved,   as    the   motion   for

reconsideration stated that the original sentence “was excessive given the

level of culpability of the defendant[.]”        Petition for Reconsideration,

11/20/15, at 1.       Additionally, a claim that the sentence is manifestly

excessive, when paired with an allegation that the court failed to consider

mitigating factors and rehabilitative needs, presents a substantial question.

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

Therefore, we address the merits.

      When reviewing a sentence, we apply the following standard of review.




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              Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (citing

Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)).

      Section 9771 of the Sentencing Code governs the trial court’s ability to

impose total confinement following revocation of probation; the court may

do so only if it finds one of three conditions has been met:

      (c) Limitation on sentence of total confinement.--The court shall
      not impose a sentence of total confinement upon revocation
      unless it finds that:

            (1) the defendant has been convicted of another
            crime; or

            (2) the conduct of the defendant indicates that it is
            likely that he will commit another crime if he is not
            imprisoned; or

            (3) such a sentence is essential to vindicate the
            authority of the court.

42 Pa.C.S. § 9771(c). Thus, the § 9771(c) factors, standing alone, govern

only a VOP court’s ability to impose total confinement at all, as opposed to

dictating the length of confinement. See 204 Pa.Code 303.1(b) (sentencing

guidelines do not apply to revocation of probation sentences). However, we

held in Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en



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banc), that a VOP court must follow § 9721(b) in tandem with § 9771.

Thus, this Court’s scope of review in appeals from revocation sentences

encompasses the discretionary aspects of the sentence. “Such issues should

not escape review merely because a defendant’s revocation sentence falls

within the statutory limits.” Id. at 1038.

      At this juncture, we note that our review of initial sentencing decisions

is quite deferential, and, in the VOP context, it is arguably more so.      In

Commonwealth v. Pasture, 107 A.3d 21 (Pa. 2014), our Supreme Court

reversed a decision from this Court vacating a revocation sentence, holding

that we gave “insufficient deference to the revocation court’s imposition of

the sentence following the revocation of [appellant]’s probation[.]”    Id. at

22. Pasture noted that a trial court’s initial sentencing decision is afforded

broad discretion, because the court “sentences flesh-and-blood defendants

and the nuances of sentencing decisions are difficult to gauge from the cold

transcript used upon appellate review. Moreover, the sentencing court

enjoys an institutional advantage to appellate review, bringing to its

decisions an expertise, experience, and judgment that should not be lightly

disturbed.” Id. at 27 (citing Commonwealth v. Walls, 926 A.2d 957, 961

(Pa. 2007)).   Pasture went on to observe that this rationale applies with

even more force in the revocation context:

      The sentencing court's institutional advantage is, perhaps, more
      pronounced in fashioning a sentence following the revocation of
      probation, which is qualitatively different than an initial

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      sentencing proceeding. At initial sentencing, all of the rules and
      procedures designed to inform the court and to cabin its
      discretionary sentencing authority properly are involved and play
      a crucial role. However, it is a different matter when a defendant
      reappears before the court for sentencing proceedings following
      a violation of the mercy bestowed upon him in the form of a
      probationary sentence. For example, in such a case, contrary to
      when an initial sentence is imposed, the Sentencing Guidelines
      do not apply, and the revocation court is not cabined by Section
      9721(b)'s requirement that “the sentence imposed should call
      for confinement 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.”

Id. at 27.

      In Commonwealth v. Derry, 150 A.3d 987 (Pa.Super. 2016), we

stated that the VOP court must consider § 9721(b) in fashioning a sentence.

      In addition to issuing 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 [,]” a VOP court must
      also consider, for example, whether the sentence imposed is
      “essential to vindicate the authority of the court[,]” and must
      give “due consideration ... to the time spent serving the order of
      probation.” 42 Pa.C.S. § 9771(c). Both of these concerns are
      unique to VOP sentencing hearings and may, in the end, weigh
      heavily on a court's consideration of an appropriate VOP
      sentence. But such additional considerations do not, as a
      necessary consequence, render the Section 9721(b) factors
      inapplicable for purposes of VOP sentences.

Id. at 994.

      Appellant’s complaint is that the VOP court failed to consider his

background and rehabilitative needs as mandated by § 9721(b). Appellant

notes that, in addition to his own remarks, he presented the testimony of his



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sister and father, who collectively spoke to his background and mitigating

circumstances.     Furthermore, Appellant does not dispute that a period of

incarceration was justified to vindicate the court’s authority, but asserts that

“A lesser sentence would have clearly sufficed in this respect.” Appellant’s

brief at 12.

      We find no abuse of discretion. First, the VOP court’s opinion states

that the judge considered the evidence presented by Appellant and his

witnesses, but notes that its original sentence was based “in part . . . on the

same mitigating circumstances that [Appellant]’s family brought up at his

Violation of Probation hearing.”      VOP Court Opinion, 11/30/16, at 5.

Furthermore, the court expressed concern that Appellant, who was already

serving a sentence for committing two gunpoint robberies, committed

another robbery a little over a year “after being given such a generous

second chance[.]”      Id.   Therefore, the court considered the § 9721(b)

factors against the § 9771(c) factors and we have no license to reweigh that

balancing.     Our precedents recognize that “it is a different matter when a

defendant reappears before the court for sentencing proceedings following a

violation of the mercy bestowed upon him in the form of a probationary

sentence.” Pasture, supra at 27. Appellant’s sentence is lengthy, but we

cannot conclude that the VOP court abused its discretion in imposing it.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




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