Com. v. Johnson, M.

• Court: Superior Court of Pennsylvania
• Decided: September 8, 2022
• Docket: 2038 EDA 2021
• Status: Unpublished

Opinion

J-S30037-22 J-S30038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARCUS JOHNSON : : Appellant : No. 2038 EDA 2021

Appeal from the Judgment of Sentence Entered March 13, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008598-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARCUS JOHNSON : : Appellant : No. 2039 EDA 2021

Appeal from the Judgment of Sentence Entered March 13, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007351-2016

BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 08, 2022

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S30037-22 J-S30038-22

In these consolidated cases,1 Marcus Johnson (Johnson) appeals nunc

pro tunc from the judgment of sentence imposed by the Court of Common

Pleas of Philadelphia County (trial court) after his guilty plea to one count of

Carrying a Firearm without a License, 18 Pa.C.S. § 6106(a)(1), at each of the

above docket numbers. He challenges the discretionary aspects of his

sentence, arguing it was unduly harsh and excessive. We affirm.

We take the following factual background and procedural history from

the trial court’s January 3, 2022 opinion and our independent review of the

record.

I.

Johnson was arrested on July 23, 2015, at 3:00 a.m. with an

unregistered nine-millimeter firearm in his pocket that was loaded with nine

rounds. On December 2, 2015, Johnson entered an open guilty plea to one

count of Carrying a Firearm without a License at case 8598-2015 and was

released on bail pending sentencing. (See Trial Disposition and Dismissal

Form, 12/02/15, at 1). At the hearing, the court informed Johnson that it was

giving him a chance and that, if he were arrested for any other firearms

violations, he would be facing a state sentence. Johnson failed to appear for

1Because both of Johnson’s appeals involve the same judgment of sentence, we have consolidated them for our review and disposition.

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the May 18, 2016 sentencing hearing and the court issued a bench warrant.

(See N.T. Sentencing, 3/13/18, at 4-5).

On July 18, 2016, while still on bench warrant status, Johnson was

arrested in Montgomery County and charged with possession of a controlled

substance with intent to deliver (PWID) to which he pleaded guilty. On July

21, 2016, police officers were sent an Instagram post in which Johnson

referred to his membership in the violent D4W gang in West Philadelphia and

showed him holding firearms. When the police went to Johnson’s home to

investigate, they located a loaded .380 gun that matched the firearm in the

Instagram post. (See Trial Court Opinion, 1/03/22, at 1-2); (N.T. Sentencing,

at 5-7). Johnson was arrested and charged with various violations of the

Uniform Firearms Act (VUFA)2 at case 7351-2016.

On December 14, 2016, Johnson entered an open guilty plea to the lead

charge of Carrying a Firearm without a License at case 7351-2016.

On March 13, 2018,3 Johnson appeared before the trial court for

sentencing on the gun convictions at cases 8598-2015 and 7351-2016.

2Carrying a Firearm without a License, Possession of a Firearm Prohibited, and Carrying a Firearm in Public in Philadelphia. See 18 Pa.C.S. §§ 6106(a)(1), 6105(a)(1), and 6108.

3Johnson was incarcerated for his conviction in Montgomery County during 2017, having been sentenced to six to twenty-three months’ incarceration. While in custody, he incurred multiple infractions for failure to comply with a valid order, violating posted rules and disrespecting staff members. He also (Footnote Continued Next Page)

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Johnson’s offense gravity score was nine and prior record score was zero. The

court had the benefit of a Presentence Investigation Report (PSI) and heard

argument from counsel, allocution from Johnson and the testimony of his

mother and aunt. At the conclusion of this testimony, the court imposed

consecutive sentences for an aggregate term of not less than seven nor more

than fourteen years’ incarceration, which was within the statutory range but

exceeded the recommended sentencing guideline of twelve to twenty-four

months per offense. The court explained it “sentenced him … to vindicate the

[c]ourt’s authority … for the protection of the public … prevention of crime …

for punishment … and … for rehabilitation.” (Id. at 21).

Two weeks later, on March 27, 2018, Johnson filed a post sentence

motion that the court did not decide because it was untimely. On October 16,

2020, the court granted Johnson’s petition filed pursuant to the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and reinstated his

right to file post-sentence motions and an appeal nunc pro tunc. Johnson

timely filed a post-sentence motion on November 2, 2020, and on September

20, 2021, he received notice that it had been denied by operation of law. On

September 30, 2021, Johnson filed the timely notice of appeal. He filed a

participated in a prison fight in which two inmates were injured. (See N.T. Sentencing, at 5-6).

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timely court-ordered statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b).

Johnson raises one issue in which he maintains that his March 13, 2018

judgment of sentence was “harsh and excessive.” (Johnson’s Brief, at 7);

(see also id. at 14) (claiming “sentence was excessive and unreasonable”.)

II.

In support of his claim, Johnson argues that the court failed to consider

certain mitigating factors such as the fact that he pleaded guilty and indicated

remorse, his family supported him, even testifying on his behalf, and his

education and history. (See id. at 14-15). He also maintains that the court

failed to provide appropriate reasons for deviating from the guidelines where

it merely “made a cursory mention” of the reasons for the sentence. (Id. at

17). These claims challenge the discretionary aspects of Johnson’s sentence.4

See Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005) (claim

that sentence is manifestly excessive goes to discretionary aspects of

sentencing); Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super.

4 “Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted).

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1998) (en banc) (“[M]isapplication of the Sentencing Guidelines constitutes a

challenge to the discretionary aspects of sentence.”); Commonwealth v.

Cruz-Centano, 668 A.2d 536, 545 (Pa. Super. 1995), appeal denied, 676

A.2d 1195 (Pa. 1996) (claim that sentencing court failed to consider certain

mitigating factor implicates the discretionary aspects of sentence).

“The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-part

test to invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence.” Id. We conduct this four-part test to determine

whether:

(1) The appellant preserved the issue either by raising it at the time of sentencing or in a post[-]sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013), appeal

denied, 86 A.3d 231 (Pa. 2014) (citation omitted).

Here, Johnson filed a post-sentence motion and notice of appeal and

has included a Rule 2119(f) statement in his brief. Thus, we consider whether

he has raised a substantial question.

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Ali, 197 A.3d 742,

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760 (Pa. Super. 2018), appeal denied, 207 A.3d 911 (Pa. 2019). “A defendant

presents a substantial question when he sets forth a plausible argument that

the sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotation marks and citations

omitted), appeal denied, 91 A.3d 161 (Pa. 2014).

Johnson’s argument that the court abused its discretion in failing to

provide reasons for his sentence pursuant to 42 Pa.C.S. § 9721(b) raises a

substantial question, although his claim that the court failed to weigh certain

mitigating factors in his favor does not. See Commonwealth v. Kane, 10

A.3d 327, 336 (Pa. Super. 2010) (a claim that the court inadequately

considered certain mitigating factors does not raise a substantial question).

Moreover, neither argument has merit.

It is well-settled that in considering the appropriate sentence, the trial

court must consider “the protection of the public, the gravity of the offense as

it relates to the impact on the life of the victim and the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S. 9721(b). It is within the

province of the trial court to weigh these factors and the appellate court cannot

reweigh them and substitute its own judgment. See Commonwealth v.

Bowen, 975 A.2d 1120, 1123 (Pa. Super. 2009). The trial court has the

discretion to impose a sentence outside of the sentencing guidelines provided

that it “demonstrate[s], on the record, an awareness of [them] and offer[s] a

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contemporaneous written statement of the reason for deviating from [them].”

See Commonwealth v. Wallace, 244 A.3d 1261, 1279 (Pa. Super. 2021)

(citing 42 Pa.C.S. § 9721(b)). The “contemporaneous written statement”

requirement is satisfied “when the judge states his reasons for the sentence

on the record and in the defendant’s presence.” Commonwealth v. Durazo,

210 A.3d 316, 321 (Pa. Super. 2019) (citation omitted).

Here, the trial court explains that it:

considered the Guidelines, but deviated from them for the protection of the public, to punish [Johnson], and to better meet [his] rehabilitative needs. Contrary to [Johnson’s] assertion, this Court is not required to give a specific degree of deference to any particular mitigating or aggravating factor. Nor is this court required to impose a sentence equal to or lesser than that recommended by the Commonwealth. More importantly, this court did in fact consider all of the factors [Johnson] mentions …. This court was aware of the information in the [PSI] regarding [Johnson]’s education, family history, and dependency. This court took note of [Johnson]’s strong family support, and the fact that multiple members of his family spoke on his behalf at sentencing. This court also considered [Johnson]’s statements at the time of sentencing, and the fact that he took responsibility for his actions and expressed a desire to do better going forward. This court did not fashion its sentence because of a disregard for these factors, but because of the significant aggravating factors in this case that led it to believe that [Johnson] is a serious threat to public safety if not incarcerated. This court released [Johnson] on bail after he pled guilty to a firearms offense. At that time, [Johnson] was informed that this court was giving him a chance, and that if he picked up additional firearms cases while out on bail, it would impact this court’s sentence. [Johnson] failed to appear for sentencing, indicating a clear lack of appreciation for the gravity of his crime and a lack of respect for the courts and the laws of the Commonwealth. He was then arrested for another firearms charge. He was then arrested for a third case in [Montgomery] County, this time for drugs. [Johnson] was also involved in a fight while in custody. That fight resulted in cuts and bleeding to at least one other inmate. In summary, this court offered [Johnson]

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a substantial opportunity to show that he was able to be rehabilitated without a custodial sentence when it released him on bail, and [Johnson] responded by committing more crimes. Nothing about [Johnson]’s conduct indicates that he is willing or able to obey the law if not incarcerated. To the contrary, his actions make it clear that he poses a significant threat to public safety if not incarcerated, and that his rehabilitative needs cannot be addressed without a significant sentence. …

(Trial Court Opinion, 1/03/22, at 4-5) (some capitalization omitted). We

discern no abuse of discretion.

First, as observed by the trial court, it had the benefit of a PSI and,

therefore, “we presume that the court was aware of the relevant information

regarding the defendant’s character and weighed those considerations along

with any mitigating factors.” Commonwealth v. Seagraves, 103 A.3d 839,

842 (Pa. Super. 2014). “[W]here the court has been so informed, its

discretion should not be disturbed.” Commonwealth v. Ventura, 975 A.2d

1128, 1135 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).

Second, the sentencing hearing notes of testimony support the trial

court’s decision. It reflects that the court received the argument of the

Commonwealth and Johnson’s counsel in which they advised the court of the

sentencing guidelines three times. (See N.T. Sentencing, at 3, 4, 17).

Counsel informed the court of Johnson’s educational background, his failure

to appear on May 18, 2021 for the deferred sentencing in case 8598-2015,

and his drug history. (See id. at 5). Both counsel noted his affiliation with

the D4W gang, whose members have been involved in violent gun-related

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crimes and drug sales. (See id. at 5-6, 8). In fact, while out on bail and

awaiting sentencing, Johnson himself was shot and was also arrested and

pleaded guilty to PWID in Montgomery County. (See id. at 4-5, 9). Counsel

provided the court with evidence of Johnson’s violence-related infraction while

in custody for the PWID charge and explained the circumstances of the arrests

herein, particularly the fact that he was arrested for his second firearms

offense (7351-2016) while on bail for the first (8598-2015) despite the court

having given him a break and a warning that should he commit another gun-

related offense, he would be subject to state incarceration. (See id. at 4-5,

11-13). The court heard the allocution of Johnson in which he admitted that

he “messed up,” but stated he is trying his best. (Id. at 17). It also heard

the testimony of Johnson’s mother and aunt in which they denied the

allegations against him. (See id. at 14-17). After receiving this testimony,

it imposed the sentence to vindicate its authority, protect the public, prevent

crime, and punish and rehabilitate him. (See id. at 21).

Based on the foregoing, we conclude that the court did not abuse its

discretion by imposing a “manifestly unreasonable” judgment of sentence.

Antidormi, supra at 760. Johnson’s issue lacks merit.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/8/2022

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