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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 CR52-2004, 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). 
J-S37036-16 

- 2 - 

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. 
J-S37036-16 

- 3 - 

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 (71⁄2) 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], 
J-S37036-16 

- 4 - 

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. 
J-S37036-16 

- 5 - 

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 
J-S37036-16 

- 6 - 

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 
J-S37036-16 

- 7 - 

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[-
J-S37036-16 

- 8 - 

]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