J-S42012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JIMMY JOHNSON,

                            Appellant                    No. 1127 WDA 2015


             Appeal from the Judgment of Sentence June 23, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000572-2015


BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                                  FILED JUNE 28, 2016

       Jimmy Johnson (“Appellant”) appeals from the June 23, 2015

judgment of sentence entered in the Court of Common Pleas of Erie County.

We affirm.

       On or about January 30, 2015, Appellant and Jhulyis Monroe

(“Monroe”) burglarized the home of Donna Alloway at 4156 West 30th Street,

assaulted the victim, Ridge Woodall, and removed various items from the

residence.     Criminal Information, 3/26/15, at 1–2.             Responding police

officers promptly      took Monroe        into   custody, where    he   admitted to

participating in the burglary with Appellant and identified a third person


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*
    Former Justice specially assigned to the Superior Court.
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waiting in a silver car who fled the scene.      Affidavit of Probable Cause,

1/30/15, at 1.

       Appellant was subsequently arrested and charged with burglary,

robbery, criminal trespass, and simple assault.         Criminal Information,

3/26/15, at 1–2.           Appellant pled guilty to robbery, 18 Pa.C.S. §

3701(a)(1)(V), and, in exchange, the Commonwealth nolle prossed all other

charges. N.T. Plea, 5/4/15, at 8–10. The trial court sentenced Appellant to

incarceration for an aggregate period of twenty-four to forty-eight months,

followed by two years of probation, and $1,715.02 in restitution.          N.T.

Sentencing, 6/23/15, at 30. Appellant filed a timely post-sentence motion,

which the trial court denied on July 21, 2015.          This appeal followed.

Appellant and the trial court have complied with Pa.R.A.P. 1925.

       Appellant raises the following questions for our consideration:

       A.   Whether the Sentencing Court erred in sentencing the
            Appellant with a Prior Record Score of a Repeat Felony
            Offender instead of with a Prior Record Score of five (5)[?]

       B.   Whether the [A]ppellant’s sentence is manifestly excessive,
            clearly unreasonable and inconsistent with the objectives of
            the Sentencing Code?

Appellant’s Brief at 3.1


____________________________________________


1
   In his Pa.R.A.P. 1925(b) statement of errors complained of on appeal,
Appellant challenged the imposition of restitution.   Pa.R.A.P. 1925(b)
Statement, 8/24/15, at ¶ B(b). Appellant has not raised this issue on
appeal. Therefore, we deem it abandoned.



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       In his first issue, Appellant raises a question of statutory construction

of the sentencing guidelines under 204 Pa.Code § 303.4.                       According to

Appellant, the sentencing court erred in applying the sentencing guidelines

to set Appellant’s prior record score at repeat felony offender, RFEL, and not

at five.    Appellant’s Brief at 6.     This is a question of law and “[t]hus, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Wilson, 101 A.3d 1151, 1153 (Pa. Super. 2014)

(italicization and citation omitted). “Consequently, we are not bound by the

lower court’s conclusions regarding the proper meaning of the applicable

provisions of this statute.” Commonwealth v. Devries, 112 A.3d 663, 670

(Pa. Super. 2015) (citation omitted).

       In   addressing     this   issue,   we     direct     the   parties’   attention   to

Commonwealth v. Stefon Johnson, 125 A.3d 822 (Pa. Super. 2015).

Therein, a panel of this Court affirmed an Erie County sentencing order

under circumstances strikingly similar to those at hand.2 As does Appellant,

Stefon Johnson contended “that the language of subsection 303.4(a)(2)

requires six prior convictions or adjudications, rather than six points, to

designate an offender as a RFEL.”              Id. at 828.    The panel “agree[d] with

Johnson that it is unclear from the statute’s language alone whether the

number six refers to prior convictions or prior record score points.” Id. at
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2
  The public defender representing Appellant in this appeal also represented
Stefon Johnson in his appeal.



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829.    Therefore, the panel consulted the Statutory Construction Act and

relevant case law to “ascertain the legislature’s intention.”        Id. at 830

(quoting 1 Pa.C.S.A. §§ 1921(c), 1922; Commonwealth v. Berryman, 649

A.2d 961 (Pa. Super. 1994)).       In doing so, the Stefon Johnson Court

“conclude[d] that there is no support for Johnson’s assertion that subsection

303.4(a)(2) requires six convictions or adjudications, and not six points on

his prior record score.” Id. Upon review of Appellant’s arguments in light of

the Stefon Johnson panel’s reasoning, we conclude that the holding of

Stefon Johnson is dispositive of Appellant’s first issue. Stefon Johnson,

125 A.3d at 828–832. Thus, Appellant is not entitled to the relief sought.

       Appellant next challenges the discretionary aspects of his sentence.

Appellant’s Brief at 7. This Court has held, “Where 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, 966 A.2d 585, 590 (Pa. Super. 2009).

       Before we reach the merits of Appellant’s sentencing 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, 70 A.3d 1281, 1286 (Pa. Super. 2013) (citing

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006)).


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“Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or in a motion to modify the

sentence imposed.”        Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation omitted).

       In this case, Appellant filed a timely notice of appeal and included a

concise statement of reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f) in his brief. However, Appellant did not preserve his claim

at the sentencing hearing or in his post-sentence motion.       Therefore, we

deny the petition for allowance of appeal of the discretionary aspects of

Appellant’s sentence.3

       Judgment of sentence affirmed.

____________________________________________


3
   Even if Appellant had preserved his sentencing claim, we would deny him
relief. In his Pa.R.A.P. 2119(f) statement, Appellant argues that “the
sentencing court sentenced within the guidelines but the case involves
circumstances where the application of the guidelines would be clearly
unreasonable.” Appellant’s Brief at 5 (quoting 42 Pa.C.S. § 9781(c)(2)). In
the argument section of his brief, Appellant contends that “the trial court
abused its discretion in sentencing Appellant to such a lengthy period of
incarceration, given the mitigating factors of his case.” Id. at 7.

      “This Court has held that an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.
Super. 2014) (citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.
Super. 2005)). Therefore, assuming Appellant had raised a substantial
question, we would apply this Court’s reasoning in disposing of Stefon
Johnson’s challenge to the discretionary aspects of his sentence to the facts
of the case sub judice. Stefon Johnson, 125 A.3d at 825–828. In doing
so, we would conclude that the evidence of record fails to establish that the
sentencing court abused its discretion. N.T. Sentencing, 6/23/15, at 23–30.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2016




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