Com. v. Johnson, K.

Opinion

J-A10036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KENNETH JEROME JOHNSON

Appellant No. 1185 MDA 2014

Appeal from the Judgment of Sentence June 19, 2014 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000798-2013

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED APRIL 08, 2015

Appellant Kenneth Jerome Johnson appeals from the judgment of

sentence entered in the Lycoming County Court of Common Pleas following

his jury trial convictions for rape of an unconscious person, sexual assault

and indecent assault.1 We affirm.

The relevant facts and procedural history of this appeal are as follows.

On February 28, 2013, T.P. (“Victim”) was consuming alcoholic beverages at

the Port Tavern with her friends Athenia Smith, Menunah Sillah, and Jameer

Harrod. N.T., 1/27/14, at 10-12. Appellant was also at the bar, mostly

socializing with Smith. Id. at 13. When the bar closed, Victim drove her

friends back to Smith’s house, and Appellant followed them. Id. at 14.

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1 18 Pa.C.S. §§ 3121(a)(3), 3124.1, 3126(a)(4), respectively J-A10036-15

After consuming additional alcoholic beverages at the house, with her friends

and Appellant, Victim went to sleep on the couch. Id. at 23. Victim awoke

to find Appellant’s penis in her vagina. Id. at 25. Victim fought Appellant

off of her and eventually chased him out of the house. Id. at 28-30.

On January 28, 2014, a jury convicted Appellant of the aforementioned

charges. On June 19, 2014, the court sentenced Appellant to 81-168

months’ incarceration, followed by 3 years’ probation, for rape of an

unconscious person. The other convictions merged for sentencing purposes.

On July 14, 2014, Appellant timely filed a notice of appeal. On July 22,

2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely

complied on July 25, 2014.

Appellant raises the following issue for our review:

DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IMPOSING A MINIMUM SENTENCE OF 81 MONTHS, A SENTENCE WITHIN THE STANDARD RANGE OF THE SENTENCING GUIDELINES, WHERE THE APPELLANT’S CONDUCT WAS LESS THAN EGREGIOUS, HE WAS FOUND NOT TO BE A SEXUALLY VIOLENT PREDATOR, AND HIS EXEMPLARY CONDUCT BETWEEN THE TIME OF HIS ARREST AND SENTENCING?

Appellant’s Brief at 4.

In his sole issue on appeal, Appellant challenges the discretionary

aspects of his sentence. He argues his sentence is unreasonable in light of

his history, character, and rehabilitative needs. We disagree.

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When reviewing a challenge to the discretionary aspects of sentencing,

we determine whether the trial court has abused its discretion.

Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa.Super.2014).

“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.

Id.

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

issues in a post-sentence motion. Appellant’s brief includes a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).

Therefore, we must determine whether Appellant raises a substantial

question for our review.

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

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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.

Id. (internal citations omitted).

Additionally, “a claim of excessiveness that is raised against a

sentence within the statutory limits fails to raise a substantial question as a

matter of law.” Commonwealth v. Mouzon, 812 A.2d 617, 623 (Pa.2002).

Here, the court sentenced Appellant to 81-168 months’ incarceration,

followed by 3 years’ probation. The minimum sentence falls within the

guideline range of 72-90 months’ incarceration. Thus, Appellant’s bald

assertion that his sentence is too harsh fails to raise a substantial question

for review. See Mouzon, supra.

Judgment of sentence affirmed.

President Judge Gantman joins in the memorandum.

Judge Mundy concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/8/2015

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