J-S15023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRYANT KEVIN JOHNSON

Appellant No. 1039 MDA 2014

Appeal from the Judgment of Sentence of May 19, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No.: CP-06-CR-0005037-2004

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRYANT KEVIN JOHNSON

Appellant No. 1040 MDA 2014

Appeal from the Judgment of Sentence of May 19, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No.: CP-06-CR-0000747-2005

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRYANT KEVIN JOHNSON

Appellant No. 1041 MDA 2014
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Appeal from the Judgment of Sentence of May 19, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No.: CP-06-CR-0000746-2005

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.: FILED MAY 15, 2015

Bryant Kevin Johnson appeals from the judgment of sentence entered 

on May 19, 2014, following the revocation of his special probation. We 

affirm.

A previous panel of this Court set forth the underlying history of this 

case as follows:

On April 4, 2005, Johnson pled guilty to multiple offenses, 

including theft by deception, identity theft, forgery, and 

tampering with public records. Johnson agreed to enter a guilty 

plea in exchange for three to six years’ incarceration, ten years’ 

probation, and 469 days’ credit for time already served. The 

469 days’ credit would be more than one-third of [Johnson’s] 

minimum sentence.

On that same day, the trial court sentenced Johnson pursuant to 

the negotiated plea agreement. However, at some later point, 

Johnson discovered that the Department of Corrections (“DOC”) 

refused to acknowledge this “credit time.” No direct appeal was 

taken to this Court, but on November 3, 2005, Johnson filed a 

timely PCRA petition,[1] which was then dismissed on November 

10, 2005.

Johnson filed a pro se request for reconsideration on November 

29, 2005, which was granted on January 13, 2006. The PCRA 

court appointed counsel and Johnson filed an amended petition. 

On March 22, 2006, the PCRA court issued notice of its intention 

to dismiss the petition without a hearing pursuant to 

Pa.R.Crim.P. 907. On May 1, 2006, the PCRA court entered an 

____________________________________________

1 See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.
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order denying Johnson’s PCRA petition as meritless. Johnson 

filed [a] timely appeal on May 16, 2006.

Commonwealth v. Johnson, Nos. 867-69 MDA 2006, unpublished 

memorandum at 1-2 (Pa. Super. Feb. 27, 2007).

Thereafter, the trial court has summarized the following facts and 

procedural history:

On February 2[7], 2007, the Superior Court reversed and 

remanded this matter for either a resentencing or the withdrawal 

of the plea because [Johnson’s] plea was “based on an 

expectation that was not legally possible.” See 

Commonwealth v. Rathfon, 899 A.2d 365 (Pa. Super. 2006). 

As a result, the Commonwealth . . . filed a motion to reschedule 

a status/sentencing hearing, which was ultimately held on April 

23, 2007. [Johnson] was resentenced to a period of not less 

than 626 days, reflecting the 469 days of credit due, or more 

than six years in a state correctional facility. [The only change 

to Johnson’s sentence was to order explicitly the credit for time 

served.]

On April 7, 2014, the Adult Probation Department requested [the 

trial c]ourt schedule a Gagnon II[

2

] hearing on the basis that 

[Johnson] allegedly violated four conditions of his special 

probation. A hearing was held on May 19, 2014, whereupon 

[Johnson], represented by counsel, admitted to violating three of 

the conditions: failure to reside in the approved residence, 

failure to report regularly and failure to abstain from the use of 

controlled substances. Notes of Testimony (“N.T.”), 5/19/2014, 

at 5. The [c]ourt found [Johnson] in violation of his special 

probation and it was revoked. [Johnson] was then resentenced 

in each of his three cases and the sentences were made 

concurrent to each other. [Johnson] was given credit for time 

served and made [RRRI3] eligible. On June 19, 2014, counsel 

____________________________________________

2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

3 See Recidivism Risk Reduction Incentive Act (“RRRI”), 61 Pa.C.S.A. 

§§ 4501, et seq.
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for [Johnson] filed a Notice of Appeal to the Superior Court. On 

June 23, 2014, [the trial court] ordered counsel to file a concise 

statement of the errors complained of on appeal [pursuant to 

Pa.R.A.P. 1925(b)], which he filed on July 14, 2014.

Trial Court Opinion (“T.C.O.”), 8/5/2014, at 2-3 (citations reformatted). The 

trial court entered its opinion pursuant to Pa.R.A.P. 1925(a) on August 5, 

2014.

Johnson presents three questions for our review:

1. Whether the sentence of the court of May 19, 2014 was 

illegal due to the fact that the court ordered credit time of 112 

days and made the sentence concurrent to a sentence [Johnson] 

was already serving from another county when the court knew 

the practice of the Pennsylvania Board of Probation and Parole 

would likely not properly credit the time served to [Johnson’s] 

case and would not make the sentence in this case concurrent to 

the sentence [Johnson] was serving from another county?

2. Whether the sentence of the court of May 19, 2014 was 

barred by res judicata because the Pennsylvania Board of 

Probation and Parole previously sentenced [Johnson] on April 8, 

2014 to serve 6 months for the identical technical violations for 

which the court revoked his probation in these cases and 

sentence him to an aggregate term of 1 year to 10 years?

3. Whether the sentence of the court [of] May 19, 2014 was 

excessive because it was only based upon technical violations 

and also did not account for the period of time [Johnson] already 

served on the probation sentence that was revoked?

Johnson’s Brief at 7. 

Before we address Johnson’s issues, we note that our standard of 

review of sentences following revocation of probation is as follows:

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. An abuse of discretion is more than an error in 
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judgment—a sentencing court has not abused its discretion 

unless the record discloses that the judgment exercised was 

manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will.

In determining whether a sentence is manifestly excessive, the 

appellate court must give great weight to the sentencing court’s 

discretion, as he or she is in the best position to measure factors 

such as the nature of the crime, the defendant’s character, and 

the defendant’s display of remorse, defiance, or indifference.

Upon revoking probation, a sentencing court may choose from 

any of the sentencing options that existed at the time of the 

original sentencing, including incarceration. 42 Pa.C.S.A. 

§ 9771(b). [U]pon 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. 

However, 42 Pa.C.S.A. § 9771(c) provides that once probation 

has been revoked, a sentence of total confinement may only be 

imposed if any of the following conditions exist:

(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.A. § 9771(c).

In addition, in all cases where the court resentences an offender 

following revocation of probation . . . the court shall make as a 

part of the record, and disclose in open court at the time of 

sentencing, a statement of the reason or reasons for the 

sentence imposed [and] [f]ailure to comply with these provisions 

shall be grounds for vacating the sentence or resentence and 

resentencing the defendant. 42 Pa.C.S. § 9721(b). A trial court 

need not undertake a lengthy discourse for its reasons for 

imposing a sentence or specifically reference the statute in 

question, but the record as a whole must reflect the sentencing 

court’s consideration of the facts of the crime and character of 

the offender.
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Commonwealth v. Colon, 102 A.3d 1033, 1043-44 (Pa. Super. 2014) 

(case citations and quotation marks omitted).

Under 42 Pa.C.S.A. § 9760, the sentencing court is to give credit 

“against the maximum term and any minimum term . . . for all 

time spent in custody as a result of the criminal charge for which 

a prison sentence is imposed or as a result of the conduct on 

which such a charge is based.” 42 Pa.C.S.A. § 9760(1).

Commonwealth v. Yakell, 876 A.2d 1040, 1042 (Pa. Super. 2005).

At Johnson’s 2005 sentencing, at Docket no. 747-05, he was subject 

to a maximum sentence of 120 months for forgery, 18 Pa.C.S.A. § 4101(c); 

at Docket no. 5037-04, he was subject to maximum sentences of eighty-four 

months for theft by deception for amounts between $25,000 and $50,000, 

18 Pa.C.S.A. § 3922, and to eighty-four months for identity theft as a third 

or subsequent offense, 18 Pa.C.S.A. § 4120(c)(1)(iv); and at Docket no. 

746-05, he was subject to a maximum sentence of eighty-four months for 

theft by deception for amounts between $25,000 and $50,000, 18 Pa.C.S.A. 

§ 3922. See Guideline Sentence Forms, 5/6/2005. The aggregate 

maximum sentence was 372 months, or thirty-one years. See 42 Pa.C.S.A. 

§ 9771(b). The revocation court’s aggregate sentence of not less than one 

nor more than ten years’ incarceration with credit for time served is well 

within the maximum sentence that could have been imposed at the time 

that the court granted Johnson a probationary sentence. See Colon, 102 

A.3d at 1043-44. Therefore, on its face, the court imposed a legal sentence, 

and we turn to a review of Johnson’s issues.
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In his first issue, Johnson contends that his revocation sentence is 

illegal because “the court is unable to direct that the new sentence be served 

concurrent to a technical parole violation and Johnson believes that he will 

not be awarded the 112 days credit time ordered by the trial court.” Id. at 

18. We disagree.

“A challenge to the Bureau of Correction’s computations or 

construction of the terms of sentences imposed is neither a direct nor even a 

collateral attack on the sentences imposed . . . .” Commonwealth v. 

Perry, 563 A.2d 511, 513 (Pa. Super. 1989). The appropriate vehicle for 

redress of any specific calculation of time served is an original action in the 

Commonwealth Court challenging the DOC’s computation, after exhausting 

any administrative remedies available through the DOC’s internal grievance 

process. Id. at 512-13; see also Black v. Pennsylvania Department of 

Corrections, 889 A.2d 672, 674 (Pa. Cmwlth. 2005).

“Where a sentencing court clearly gives credit against the VOP 

sentence for time served, it is DOC’s duty to carry out that sentencing order. 

DOC is bound to follow a trial court’s order granting an inmate credit for 

time served.” Allen v. Commonwealth, 103 A.3d 365, 372 (Pa. Cmwlth. 

2014).

If the alleged error is thought to be the result of an erroneous 

computation of sentence by the Bureau of Corrections, then the 

appropriate vehicle for redress would be an original action in the 

Commonwealth Court challenging the Bureau’s computation. If, 

on the other hand, the alleged error is thought to be attributable 

to ambiguity in the sentence imposed by the trial court, then a 
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writ of habeas corpus ad subjiciendum lies to the trial court for 

clarification and/or correction of the sentence imposed.

Commonwealth v. Perry, 563 A.2d 511, 512-13 (Pa. Super. 1989).

Here, Johnson argues that his sentence is illegal because the court 

knew that the Pennsylvania Board of Probation and Parole is unlikely to 

credit time served or run the underlying sentences concurrently to a 

sentence being served in another county. Johnson’s Brief at 18. At the 

revocation hearing, the trial court sentenced Johnson as follows:

May 19th, 2014, and this would be in 5037 of 2004, Count 5, 746 

of 2005, Count 2, 747 of 2005, Count 1, forgery, the Court 

enter[s] order after informal hearing having been held and 

[Johnson] having admitted the violations . . . .

With regard to 746 of 2005, Count 2, felony 3, sentence is that 

[Johnson] be committed for a period of no less than 1 year no 

more than 7 years to the Bureau of Corrections for confinement 

in a state correctional facility. [Johnson] is triple RI eligible, 112 

days credit. He will pay the court costs, $100 fine, $13,623.41 

in restitution. And he will pay the $50 criminal justice fee.

747 of 2005, Count 1 forgery, a felony of the 2nd degree, the 

sentence is that [Johnson] be committed for a period of no less 

than 1 year nor more than 10 years to the Bureau of Corrections 

for confinement in a state correctional facility. [Johnson] is 

triple RI eligible. This sentence is effective today and to be 

concurrent with 746 of 2005, Count 2, 112 days credit, pay the 

court costs, $50 fine, zero restitution and pay the $50 criminal 

justice enhancement fee.

On 5037 of 2004, Count 5, tampering with public records, the 

sentence is that [Johnson] be committed for a period of no less 

than 1 year no more than 7 years to the Bureau of Corrections 

for confinement in a state correctional facility. [Johnson] is 

triple RI eligible. This sentence shall be effective today and be 

concurrent with the sentence imposed at 746 of 2005, Count 2, 

747-2005, Count 1, 112 days credit. [Johnson] will pay the 

court costs, fine in the amount of $50, zero restitution, $50 
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criminal justice fee and in all three dockets submit to urine 

surveillance and other testing . . . .

Notes of Testimony (“N.T.”), 5/19/2014, at 11-13. The court unambiguously 

ordered that the three dockets on which Johnson was being revoked on May 

18, 2014, were to run concurrently to each other. Counsel for Johnson 

made the trial court aware that Johnson had previously been revoked in 

Philadelphia on violation of special parole. Id. at 8-10. Johnson does not 

allege that the Board of Probation and Parole actually has failed to credit him 

with the time served in this instant case; he merely argues that it is not 

“likely” to do so, thus constituting an illegal sentence by the trial court.

Upon review, Johnson’s revocation sentence in the instant appeal is 

unambiguous, and any future error in calculating Johnson’s time served 

must be challenged in the Commonwealth Court. See Perry, 563 A.2d at 

512-13. Johnson is not entitled to the relief he claims he is due in this 

issue.4

In his second issue, Johnson contends that his sentence is barred by 

the doctrine of res judicata because the Parole Board “previously sentenced 

____________________________________________

4

It is also worth noting that, unlike Johnson’s original underlying 

sentence, Johnson’s revocation sentence is not imposed pursuant to a guilty 

plea, and its legality does not depend upon whether it was knowing, 

intelligent, or voluntary. Therefore, the concern raised on direct appeal and 

discussed previously in Rathfon, supra, that his sentence was “based on an 

expectation that was not legally possible,” does not apply here. Rathfon, 

899 A.2d at 365. Instead, we review whether his revocation sentence was 

an exercise of sound discretion by the trial court. Colon, 102 A.3d at 1043-

44.
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[Johnson] on April 8, 2014 to serve 6 months for the exact same technical 

violations for which the court revoked his probation in this case and 

sentenced him to a term of 1-10 years.” Johnson’s Brief at 23. We 

disagree.

“This claim constitutes a challenge to the legality of the sentence. Our 

standard of review is whether an error of law occurred.” Commonwealth 

v. Weathers, 95 A.3d 908, 911 (Pa. Super. 2014).

Johnson contends that res judicata precludes the trial court from 

imposing sentence because “for the conduct that he is violating, the terms of 

his special probation in the three cases in Berks County is the same conduct 

that he was sentenced for 6 months as a technical parole violator on the 

parole case.” N.T. at 10. Johnson maintains that both the underlying parole 

which was revoked and the violations are the same as those for which he 

was sentenced here. However, as noted by the trial court at Johnson’s 

revocation hearing, the six-month sentence technical parole violation arose 

from completely separate charges in Philadelphia. See N.T. at 10. The 

instant underlying charges arose in Berks County, and as the court also 

observed, these charges (and the responsibility for resentencing Johnson for 

violation of special probation thereof) remain with the court in Berks. See 

T.C.O. at 6; see also Commonwealth v. Mitchell, 955 A.2d 433, 437 (Pa. 

Super. 2008) (“[T]he trial court at all times retained the power, authority, 

and jurisdiction to assess whether Appellant violated his ‘special’ probation, 

to revoke it, and to re-sentence Appellant following revocation[.]”).
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To the extent that Johnson seems to argue that the same behavior

which triggered a revocation of his parole in Philadelphia cannot also be 

counted as a violation of his special parole in Berks, such a claim is 

unavailing. Quite simply, “[t]he court may revoke an order of probation 

upon proof of the violation of specified conditions of the probation.” 42 

Pa.C.S.A. § 9771(b). The statute does not require one instance of violation 

per order revoking probation, nor is there any support in our case law to 

conclude that each instance of violation may only be applied to one

probation revocation at a time. Johnson’s second issue does not merit relief.

Third, Johnson contends that his sentence was “excessive because it 

was only based upon technical violations and also did not account for the 

period of time [Johnson] was already on the probation sentence that was 

revoked.” Johnson’s Brief at 25. We disagree.

A claim that a sentence is excessive presents a challenge to the 

discretionary aspects of sentence. Commonwealth v. Ahmad, 961 A.2d 

884, 886 (Pa. Super 2008). “A challenge to the discretionary aspects of a 

sentence must be considered a petition for permission to appeal, as the right 

to pursue such a claim is not absolute.” Commonwealth v. McAfee, 849 

A.2d 270, 274 (Pa. Super. 2004). 

To obtain review of the merits of a challenge to the discretionary 

aspects of a particular sentence, an appellant must include a Pa.R.A.P. 

2119(f) statement in his brief. Therein, “the appellant must show that 

there is a substantial question that the sentence imposed is not appropriate 
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under the Sentencing Code.” McAfee, 849 A.2d at 274. A substantial 

question requires a demonstration that “the sentence violates either a 

specific provision of the sentencing scheme set forth in the Sentencing Code 

or a particular fundamental norm underlying the sentencing process.” 

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (quoting 

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)). “Our inquiry 

must focus on the reasons for which the appeal is sought, in contrast to the 

facts underlying the appeal, which are necessary only to decide the appeal 

on the merits.” Id. (quoting Commonwealth v. Goggins, 748 A.2d 721, 

727 (Pa. Super. 2000) (en banc)) (emphasis omitted).

Johnson preserved his claim in a motion for reconsideration, filed a 

timely notice of appeal, and included in his brief a concise statement 

pursuant to Pa.R.A.P. 2119(f). See Johnson’s Brief at 16. Moreover, “a 

claim that a particular probation revocation sentence is excessive in light of 

its underlying technical violations can present a question that we should 

review.” Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 

2006). Thus, we will review the merits of Johnson’s excessiveness claim.

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. An abuse of discretion is more than an error in 

judgment—a sentencing court has not abused its discretion 

unless the record discloses that the judgment exercised was 

manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012).
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In determining whether a sentence is manifestly excessive, the 

appellate court must give great weight to the sentencing court’s 

discretion, as he or she is in the best position to measure factors 

such as the nature of the crime, the defendant’s character, and 

the defendant’s display of remorse, defiance, or indifference.

Mouzon, 828 A.2d at 1128.

[O]nce probation has been revoked, a sentence of total 

confinement may only be imposed if any of the following 

conditions exist:

(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.A. § 9771(c).

Colon, 102 A.3d at 1044. 

Here, the trial court considered the nature of Johnson’s violations to 

determine that his conduct indicated that it is likely that he would commit 

another crime, and that revocation was essential to vindicate the court’s 

authority. At the revocation hearing, the court observed that Johnson “failed 

to reside in an approved residence, failed to report regularly and failed to 

abstain from the use of controlled substances.” N.T. at 5. The court was 

made aware that Johnson had a drug and alcohol problem that led to the 

technical violations of the terms of his probation, and the court stated that 

Johnson would get treatment while incarcerated. Id. at 7-8. Therefore, the 

court found adequate reasons of record to state that Johnson was “no longer 
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amenable to a period of probation.” Id. at 12. Accordingly, the trial court 

did not abuse its discretion in ordering an aggregate revocation sentence of 

incarceration of one to ten years. Colon, 102 A.3d at 1044; Simmons, 56 

A.3d at 1283-84. Johnson’s third issue does not merit relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/15/2015