J-S73032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUSTIN RAPHAEL JOHNSON

Appellant No. 420 WDA 2016

Appeal from the Judgment of Sentence June 30, 2015

in the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0002847-2014

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUSTIN RAPHAEL JOHNSON

Appellant No. 421 WDA 2016

Appeal from the Judgment of Sentence June 30, 2015

in the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0002848-2014

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED OCTOBER 25, 2016

Justin Raphael Johnson (“Appellant”) appeals from the June 30, 2015 

judgment of sentence entered in the Erie County Court of Common Pleas 
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following his guilty plea to possession of a controlled substance,1 possession 

of a controlled substance with intent to deliver (“PWID”),2and possession of 

a firearm prohibited.3 After careful review, we affirm.

On May 6, 2015, Appellant entered a negotiated guilty plea to 

possession of a controlled substance at Docket No. CP-25-CR-0002847-

2014, and PWID and possession of a firearm prohibited4at Docket No. CP25-CR-0002848-2014. As part of the negotiated guilty plea, the 

Commonwealth nolle prossed the remaining charges against Appellant.5

On June 30, 2015, the trial court sentenced Appellant to a term of 40 

to 80 months’ incarceration on the PWID conviction, a term of 60 to 120 

months’ incarceration on the possession of a firearm prohibited conviction to 

be served consecutively to the PWID sentence, and term of 3 years’ 

probation for the possession of a controlled substance conviction to be 

____________________________________________

1 35 P.S. § 780-113(a)(16).

2 35 P.S. § 780-113(a)(30).

3 18 Pa.C.S. § 6105(a)(1).

4 18 Pa.C.S. § 6105(a)(1).

5 At Docket No. CP-25-CR-0002847-2014, the Commonwealth nolle prossed

two counts of PWID, one count of possession of a controlled substance, and 

one count of possession of drug paraphernalia. At Docket No. CP-25-CR0002848-2014, the Commonwealth nolle prossed one count of possession of 

a controlled substance, one count of possession of drug paraphernalia, one 

count of receiving stolen property, one count of firearms not to be carried 

without a license, and one count of conspiracy to commit receiving stolen 

property.
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served consecutively to the possession of firearms prohibited conviction. 

Appellant’s aggregate sentence was therefore 100 to 200 months’ 

incarceration followed by 3 years’ probation.

Appellant did not file a direct appeal. However, on September 23, 

2015, Appellant filed a petition pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. § 9541 et seq., claiming ineffective assistance of 

counsel and seeking the reinstatement of his post-sentence and direct 

appeal rights. The PCRA court granted Appellant’s PCRA petition on January 

21, 2016. 

On February 19, 2016, Appellant filed a motion for 

reconsideration/modification of sentence, which the trial court denied on 

February 22, 2016. On March 21, 2016, Appellant filed a notice of appeal. 

On April 8, 2016, Appellant filed a concise statement of matters complained 

of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued its 

Pa.R.A.P. 1925(a) opinion on April 13, 2016.

Appellant raises the following three (3) issues for our consideration:

A. Whether the sentencing court abused its discretion in 

imposing a consecutive sentencing scheme as to the sentence 

imposed at docket number 2848 of 2014, which amounted to a 

manifestly excessive sentence?

B. Whether the lower [c]ourt committed legal error and abused 

its discretion in failing to set forth a legally sufficient 

contemporaneous statement in support of the imposition of a 

consecutive sentencing scheme?

C. Whether the legal predicate cited by the sentencing [c]ourt 

for the imposition of a consecutive sentencing scheme at docket 

number 2848 of 2014 that the respective criminal offenses 
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occurred at different times was not factually accurate and thus 

failed to comprise a valid and legally justifiable predicate for that 

sentencing election of consecutive sentences?

Appellant’s Brief, p. 2.

Appellant’s claims challenge the discretionary aspects of his sentence. 

“Challenges to the discretionary aspects of sentencing do not entitle a 

petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super.2011). Before this Court can address such a discretionary 

challenge, an appellant must comply with the following requirements:

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying 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]; (3) 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.

Allen, 24 A.3d at 1064.

Here, Appellant filed a timely notice of appeal and preserved his 

discretionary aspects of sentencing issue in a motion for reconsideration of 

sentence. Further, Appellant’s brief includes a concise statement of the 

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). 

See Appellant’s Brief, p. 4. Accordingly, we now determine whether 

Appellant has raised a substantial question for review and, if so, proceed to 

a discussion of the merits of the claim. See Pa.R.A.P. 2119(f); 

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).
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“A substantial question will be found where the defendant advances a 

colorable argument that the sentence imposed is either inconsistent with a 

specific provision of the [sentencing] code or is contrary to the fundamental 

norms which underlie the sentencing process.” Commonwealth v. 

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see 

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises 

a substantial question on a case-by-case basis.” Id. A bald or generic 

assertion that a sentence is excessive does not, by itself, raise a substantial 

question justifying this Court’s review of the merits of the underlying claim. 

Id.; see also Commonwealth v. Harvard, 64 A.3d 690, 701 

(Pa.Super.2013). Additionally, a claim that a sentence is unreasonable 

because the trial court decided to run certain portions of it consecutive to 

one another also does not raise a substantial question for our review. See 

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (a claim 

that the consecutive nature of sentences violates the Sentencing Code fails 

to raise a substantial question for review). A substantial question exists 

where the sentencing court failed to provide sufficient reasons for imposing a 

sentence outside of the guidelines.6 Commonwealth v. Monohan, 860 

A.2d 180, 182 (Pa.Super.2004). 

____________________________________________

6

Further, “[i]n every case where a sentencing court imposes a sentence 

outside of the sentencing guidelines, the court must provide in open court a 

contemporaneous statement of reasons in support of its sentence.” 

Commonwealth v. Curran, 932 A.2d 103, 106 (Pa.Super.2007) (citing 42 

(Footnote Continued Next Page)
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Further, “[t]his Court has held on numerous occasions that a claim of 

inadequate consideration of mitigating factors does not raise a substantial 

question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 

(Pa.Super.2013); see also Commonwealth v. Ratushny, 17 A.3d 1269, 

1273 (Pa.Super.2011) (“argument that the sentencing court failed to 

adequately consider mitigating factors in favor of a lesser sentence does not 

present a substantial question appropriate for our review.”); 

Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa.Super.2006) 

(“[A]ppellant’s contention that the trial court did not adequately consider a 

mitigating circumstance when imposing sentence does not raise a 

substantial question sufficient to justify appellate review of the merits of 

such claim.”). However, a challenge to the consecutive imposition of 

sentences as unduly excessive together with a claim that the court failed to 

consider mitigating factors does present a substantial question. 

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

Here, Appellant alleges that the trial court imposed an unreasonable 

sentence by imposing consecutive sentences without adequate consideration 

(Footnote Continued) _______________________

Pa.C.S. § 9721). However, “where a sentence is within the standard range 

of the guidelines, Pennsylvania law views the sentence as appropriate under 

the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171 

(Pa.Super.2010).
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of mitigating factors raised at sentencing.7 See Appellant’s Brief, 4-5. 

Additionally, Appellant asserts that the trial court did not adequately place 

reasons on the record as to why it imposed the sentence it did. See id. 

Based on the above authority, we conclude that Appellant raises a 

substantial question for review. See Swope, supra. We will therefore 

address the merits of Appellant’s discretionary aspects of sentencing claim.

We review discretionary aspects of sentence claims under the following 

standard of review:

If this Court grants appeal and reviews the sentence, the 

standard of review is well-settled: sentencing is vested in the 

discretion of the trial court, and will not be disturbed absent a 

manifest abuse of that discretion. An abuse of discretion 

involves a sentence which was manifestly unreasonable, or 

which resulted from partiality, prejudice, bias or ill will. It is 

more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006) 

(citations omitted).

Our review of the sentencing transcript reveals that the lower court did 

not abuse its discretion. Instead, the trial court imposed a sentence that 

was consistent with the protection of the public, took into account the 

gravity of the offense as it related to the impact on the life of the victim and 

____________________________________________

7 Although not enumerated in Appellant’s brief, at sentencing, counsel for 

Appellant argued Appellant’s age, his past good deeds, his prior enrollment 

in school, his drug addiction, and his acceptance of responsibility as factors 

that should have mitigated his sentence. See N.T. 6/30/2015, pp. 5-9.
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on the community, and considered the Appellant’s rehabilitative needs, as 

required by 42 Pa.C.S. § 9721(b).

In imposing sentence, the trial court considered the sentencing 

guidelines, the pre-sentence investigation report, the circumstances of the 

crimes, Appellant’s background and criminal history, the arguments of 

counsel, the testimony of Appellant’s mother, and the testimony of Appellant 

himself. N.T. 6/30/2015, pp. 5-15. The trial court then sentenced Appellant 

to a standard range sentence thusly:

I have read the presentence report in its entirety, including 

the Sentencing Guidelines. I’ve listened to what you had to say 

and your lawyer has had to say, Mr. Johnson, and what your 

mom has had to say. And I certainly empathize with your mom 

that she has to be here today. And I accept her representations 

of your good qualities and things that you have done, and that 

you are a caregiver and the things that she described. And that 

makes – that’s what makes it even more heart wrenching that 

she has to be here today.

I mean, because the reality is this, and it’s no secret here, 

I mean, you’ve been in the criminal justice system as a juvenile 

for felony sexual offences while you were still in the juvenile 

system because you didn’t get discharged from Juvenile Court 

until August 17th of 2004. But while you are in the juvenile 

system you commit your first offenses as an adult, which are 

drug offenses, committed on June 9th of 2004. So you are – you 

basically went nonstop from the Juvenile System to the Adult 

System and you remained in the Adult System and you keep 

digging yourself deeper and deeper in the Adult System.

In 2004, in addition to the offenses in Erie County, you are 

involved in a number of robberies down in Allegheny County for 

which you were given 5 to 10 years at that point. And obviously

that’s very serious. 

In 2005 you have a prior possession with intent to deliver 

cocaine, which is what’s involved in this case. And in that case, 

according to the presentence report, it was 30.2 – 32.2 grams of 
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cocaine. So then you get out. You also have possession and 

drug charges for which I sentenced you back in November of 

2014 that were committed in February of 2014. One was 

February 4th and the other was February 16th.

Meanwhile, these offenses that you are here on involved 

you selling crack cocaine on two separate occasions from your 

apartment in Granada on January 2nd of 2014, and the other is 

on June 12th of 2014. Then when you are arrested on those 

charges, you have a loaded gun and 6.15 grams of cocaine on 

you. I mean, that’s a pretty consistent pattern.

You know, I recognize that at some point you were 

involved in school. And I accept your counsel’s representation 

you are an intelligent person. You strike me as an articulate 

person. But unfortunately, you have chosen to use your 

intelligence in a criminal manner, and it’s while you are on 

supervision, on state supervision you’re engaged in these 

behaviors.

You are selling crack cocaine in this community and you’re 

in possession of a loaded firearm. Those are two very lethal 

influences in this community, and I can’t just wink at it and say, 

oh, geez, you’ll never do that again. Because your track record 

tells me just the opposite. 

Now I’m going to fashion a sentence here that’s going to 

hold you accountable for each one of these separate offenses. 

I’m not going to – there is a light at the end of the tunnel, and 

it’s up to you to make something of your life, and I certainly 

hope you do, and I certainly hope you do something to make 

your mother proud of you.

What I’ll do is this: At Count 1, Docket Number 2848 of 

2014, order a sentence in the middle of the standard range of 

the Sentencing Guidelines of 40 to 80 months. Order court 

costs. Order the lab fee of $113.

At Count 5 at Docket Number 2847 – I’m sorry. Count 5 is 

Docket 2848, which is the possession of a firearm, loaded 

firearm. Order a sentence which appears to be in the mitigated 

range of the Sentencing Guidelines of 60 to 120 months. I 

mean, that’s a whole separate day, a whole separate set of 

facts, and a whole different crime. I’ll make that consecutive to 

Count 1 at Docket 2848. As part of that there is a lab fee for the 

firearm of $162.
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At Count 3 at Docket Number 2847 of 2014, I’ll order a 

period of probation of 3 years, which I note is below the 

mitigated range of the Guidelines. And that will be consecutive 

to Count 5 at Docket Number 2848 of 2014.

N.T. 6/30/2015, pp. 13-16. 

We find no abuse of discretion in the trial court’s imposition of 

Appellant’s standard range sentence. Further, the trial court adequately 

explained the imposition of sentence on the record. Accordingly, Appellant’s 

excessiveness claims fail on the merits.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/2016