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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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, 20 14 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 sent ence 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 co unts 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 paraphernalia 2 at CR52-2004, the trial court sentenced Johnston to two years’ probation. On October 8, 2004, the court revoked Johnston’s proba tion 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 dock et number CR-52-2004, for an aggregate term of fifteen-and-a-half to thir ty-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 pu nishment at CR-700- 2003, two-and-a-half to five years’ incarceration a nd 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-53-20 04 4 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 C R-53-2004. On January 24, 2014, after pleading guilty to reck lessly endangering the welfare of a child 5 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 seve n-and-a-half to fifteen years’ incarceration for the underlying PWID convic tion. On January 21, 2015, Johnston filed a timely pro se PCRA petition, alleging that revocation counsel failed to appeal t he revocation sentence at CR-53-2004 on his behalf and seeking reinstatement of his post-sentence rights. Johnston was appointed PCRA counsel and fi led an amended PCRA petition on March 16, 2015. On October 15, 2015, t he trial court reinstated Johnston’s post-sentence rights. On October 21, 20 15, Johnston filed a motion to modify sentence, alleging that the revoca tion 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 appea l on November 9, 2015, and then filed a Pa.R.A.P. 1925(b) concise statemen t 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 imposin g the maximum statutorily allowed probation revocation sentence o f seven[- ]and[-]one[-]half (71⁄2) to fifteen (15) years’ incarc eration, with credit for time served, without considering all rel evant sentencing factors, resulting in an excessive, unre asonable, and harsh sentence contrary to the fundamental norms th at underlie the sentencing process[,] considering the nature of the crime? Appellant’s Brief, at 5. On appeal, Johnston’s primary contention is that t he revocation court placed “more emphasis on [Johnston’s] prior convict ions, for which he had already been sentenced . . . than [on] the underlyi ng crime of [PWID],J-S37036-16

- 4 -

resulting in an excessive and unreasonably harsh se ntence.” Appellant’s Brief, at 21. This issue involves a challenge to t he discretionary aspects of Johnston’s revocation sentence. When reviewing the outcome of a revocation proceedi ng, this Court is limited to determining the validity of the proceedi ng 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 s entence 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 f ollowing revocation proceedings includes discretionary sentencing claim s). Challenges to the discretionary aspects of sentenci ng 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 pr operly preserved at sentencing or in a motion to reconside r 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 fro m 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 appea l following the reinstatement of his post-sentence rights, and he p reserved his challenge to the discretionary aspects of his sentence by raisin g the issue in a motion to modify his sentence. Johnston’s brief includes a s tatement of the reasons relied upon for allowance of appeal regarding the d iscretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). Accordingl y, we must determine whether Johnston presents a substantial question th at the sentence from which he appeals is not appropriate under the Sente ncing 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 se ntencing judge’s actions were either: (1) inconsistent with a specific prov ision of the Sentencing Code; or (2) contrary to the fundamental norms whic h underlie the sentencing process.” Sierra , supra at 912–13. Instantly, Johnston contends that his revocation se ntence is inconsistent with the provision of the Sentencing C ode requiring that the court consider “the gravity of the offense as it re lates 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 th e gravity and impact ofJ-S37036-16

- 6 -

Johnston’s previous convictions for REAP, simple as sault, and endangering the life of a child for which he had already been s entenced, while failing to take into account the relatively mild gravity and i mpact of Johnston’s underlying conviction for PWID. “In general, the imposition of sentence following t he revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be dis turbed on appeal.” Commonwealth v. Hoover , 909 A.2d 321, 322 (Pa. Super. 2006). A sentence should not be disturbed where it is eviden t the court was aware of the appropriate sentencing considerations and weigh ed them in a meaningful fashion. Commonwealth v. Fish , 752 A.2d 921, 923 (Pa. Super. 2000). We note that where the sentencing court has reviewe d a presentence investigation report, the court is considered to ha ve 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 fol lowing a revocation of probation, the trial court is limited only by the m aximum sentence that it could have imposed originally at the time of the pr obationary 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, th e defendant’s conductJ-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 co urt’s authority. Commonwealth v. Crump , 995 A.2d 1280, 1282-83 (Pa. Super. 2010). Instantly, Johnston’s claim that the revocation cou rt placed undue emphasis on the gravity and impact of his past crim es, instead of on his underlying PWID, raises a substantial question. Sierra , supra . However, the record belies Johnston’s claim that the revocat ion 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 review ed several presentence investigation reports dating back to 20 04. 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 apparen t inability to refrain from breaking the law. The revocation court offered the following support for its
sentence: I read your presentence investigation, the addendum s, the attachments; and, of course, this goes back to ’04. We’re dealing with a situation where you’ve been convicte d 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 pl ed to a recklessly endangering for the death of an individu al who was riding in your car. Considering that length of tim e, 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 w ith 639 and 209 of 2013. N.T. Gagnon II

Hearing, 1/22/14, at 4. The record supports the c ourt’s decision. Thus, Johnston’s discretionary aspects o f 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