Com. v. Johnson, S.

• Court: Superior Court of Pennsylvania
• Decided: September 5, 2024
• Docket: 39 MDA 2023
• Status: Unpublished

Opinion

J-A02043-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAKIR JOHNSON : : Appellant : No. 39 MDA 2023

Appeal from the Judgment of Sentence Entered July 13, 2022 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000903-2017

BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: SEPTEMBER 5, 2024

Shakir Johnson (“Johnson”) appeals nunc pro tunc from the judgment

of sentence imposed after the trial court revoked his probation. We affirm.

We summarize factual and procedural history of this matter from the

record. In 2017, Johnson entered a nolo contendere plea to one count of

simple assault, graded as a first-degree misdemeanor, after admitting the

Commonwealth’s evidence would show he shook, sat on, and/or struck an

eight-month-old child. See N.T., 6/9/17, at 4.1 At sentencing in August 2017,

the trial court determined Johnson had engaged in a course of conduct to

harm the child, and imposed an aggravated-range term of one to three years

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1 The Commonwealth had charged Johnson with two counts of aggravated assault, endangering the welfare of a child, and recklessly endangering another person. There was a plea agreement as to the charges, but no agreement as to sentencing. J-A02043-24

of imprisonment, followed by a consecutive term of two years of special

probation. See N.T., 8/28/17, at 3-4.

In October 2021, a detainer for a violation of special probation issued,

citing Johnson’s arrests on new charges. The trial court subsequently found

that the new charges were either dismissed or reduced to a summary offense,

lifted the detainer, and ordered Johnson continue on special probation. See

Order, 11/30/21, at 1. On June 17, 2022, the trial court again found Johnson

in violation of his special probation, but ordered him to continue serving the

balance of the original probationary sentence. See Order, 6/17/22, at 1. It

appears that Johnson violated his probation by absconding and hiding at his

paramour’s residence. See N.T., 7/13/22, at 2-3 (describing an incident

where Johnson absconded and probation officers found Johnson hiding at his

paramour’s residence or a nearby residence).

Another detainer issued shortly thereafter and alleged Johnson again

violated his special probation by being at his paramour’s residence. See

Detainer Order, 6/28/22, at 1; N.T., 7/13/22, at 2-3.2 At the revocation

2 We note the trial court referred to parole in sentencing order and its opinion.

See Order, 7/13/22, at 1 (indicating that the “original probation/parole” had been revoked); Trial Court Opinion, 7/20/23, at 2 (referring to “parole conditions”). However, Johnson’s original three-year maximum term of imprisonment imposed in August 2017 would have ended not later than before August 2020. See Order, 8/28/17, at 1. Therefore, the instant violation in June 2022 would have occurred the probationary portion of the original sentence, not a period of parole, and we discern no issue with an anticipatory revocation of probation. See Commonwealth v. Rosario, 294 A.3d 338, 356 (Pa. 2023) (holding that “the anticipatory revocation of a probation sentence that has yet to start is illegal under Pennsylvania law”).

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hearing, Johnson stipulated to his most recent violation, but he explained he

was only at the residence to pick up his clothes before his paramour’s eviction.

See N.T., 7/13/22, at 3-4. The trial court, after asking Johnson why he did

not explain himself to the probation officers, revoked the probationary

sentence, and immediately resentenced Johnson to twelve to twenty-four

months of imprisonment with credit for time served. See id. at 4-5;3 Order,

12/13/22, at 1.

Johnson filed an untimely motion to modify the sentence, and did not

file a direct appeal. Johnson then filed a timely Post Conviction Relief Act

(“PCRA”) petition,4 and the court reinstated Johnson’s post-sentence and

direct appeal rights. See Order, 12/6/22, at 1. Johnson filed a motion to

modify the sentence and an appeal nunc pro tunc. The trial court

subsequently granted additional credit for time served but otherwise denied

3 The trial court failed to enter any statement or explanation before imposing

the sentence following revocation. See N.T., 7/13/22, at 2-3. However, a claim that the trial court failed to state the reasons for its sentence is a waivable claim, see Commonwealth v. Bullock, 948 A.2d 818, 826 (Pa. Super. 2008), and Johnson did not object or raise this issue in any post- sentence motion to modify the sentence. Therefore, we will not consider the absence of a statement upon sentencing as a basis for relief. We add that the absence of the trial court’s statement does not impact the resolution of Johnson’s claims in this appeal.

4 See 42 Pa.C.S.A. §§ 9541-9546.

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the motion to modify the sentence. See Order, 1/11/23, at 1. Both Johnson

and the trial court have complied with Pa.R.A.P. 1925.5

Johnson raises the following issue for our review:

Whether . . . [the] sentence of twelve (12) to twenty-four (24) months following a revocation of probation was manifestly unreasonable and contrary to 42 Pa.C.S.A. § 9771(c)’s prohibition against total confinement where it is not essential to vindicate the authority of the court.

Johnson’s Brief at 4.

Our standard of review for probation revocations is as follows:

When considering an appeal from a sentence imposed following the revocation of probation, our review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing.

Revocation of a probation sentence is a matter committed to the sound discretion of the trial court, and that court’s decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretion.

5 Johnson’s Rule 1925(b) statement asserted three issues, two of which he

abandoned in this appeal. Compare Rule 1925(b) Statement, 5/10/23, at 1 with Johnson’s Brief at 4; see also Pa.R.A.P. 2116(a), 2119(a); Commonwealth v. McGill, 832 A.2d 1014, 1018 n.6 (Pa. 2003) (finding waiver where the appellant abandoned a claim on appeal). Johnson’s third issue stated: “Whether the sentence imposed was excessively harsh and a manifest abuse of discretion.” Rule 1925(b) Statement, 5/10/23, at 1.

Johnson’s Rule 1925(b) statement was facially untimely; however, the trial court appointed Johnson new appellate counsel after prior counsel filed the notice of appeal nunc pro tunc. New counsel timely requested an extension of time to file the statement and thereafter filed the statement within the time provided by the court.

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Commonwealth v. Parson, 259 A.3d 1012, 1019 (Pa. Super. 2021) (internal

citation omitted).

Section 9771 of the Sentencing Code authorizes the trial court to

resentence a probation violator to total confinement only if: (1) the defendant

has been convicted of another crime; (2) the conduct of the defendant

indicates that it is likely that he will commit another crime if he is not

imprisoned; or (3) such a sentence is essential to vindicate the authority of

the court. See 42 Pa.C.S.A. § 9771(c) (subsequently amended). When

imposing a sentence of total confinement, the trial court must also consider

the principle in section 9721(b) that “the sentence imposed should call for

confinement that is consistent with the protection of the public, the gravity of

the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.” See

Commonwealth v. Cartrette, 83 A.3d 1030, 1038, 1040-1042 (Pa. Super.

2013) (en banc) (internal citation and quotation marks omitted).

It is well settled that:

An appellant wishing to appeal the discretionary aspects of a probation-revocation sentence has no absolute right to do so but, rather, must petition this Court for permission to do so. Before this Court can address such a discretionary challenge, an appellant must invoke this Court’s jurisdiction by establishing that (1) the appeal was timely filed; (2) the challenge was properly preserved by objecting during the revocation sentencing or in a post- sentence motion; (3) his or her brief includes a concise statement of the reasons relied upon for allowance of appeal of the discretionary aspects of the sentence pursuant to Pa.R.A.P. 2119(f); and (4) the concise statement raises a substantial

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question that the sentence is inappropriate under the Sentencing Code.

Commonwealth v. Starr, 234 A.3d 755, 759 (Pa. Super. 2020) (internal

citation and quotation marks omitted).

Here, Johnson has properly appealed and filed a motion to modify the

sentence nunc pro tunc. In the motion to modify the sentence, he requested

a reduced sentence of county imprisonment or intermediate punishment,

arguing: (1) the one-to-two-year sentence was unduly harsh in light of the

violation; (2) he was making “great strides” utilizing a prison program; and

(3) he was not deserving of the possibility of serving the maximum term of

incarceration for his misdemeanor offense when he already served an

aggravated-range term of imprisonment. Post-Sentence Motion, 12/16/22,

at 2-3. Johnson has also included in his brief a Rule 2119(f) statement in

which he contends: (1) this appeal raises a substantial question because “his

conduct did not indicate imprisonment was required to prevent him from

committing another crime and less harsh options which would adequately

vindicate the authority of the court;” and (2) the sentence was harsh and

manifestly unreasonable because the violation was relatively minor, his

criminal history was minimal, and he had already served the one-to-three-

year term of imprisonment originally ordered by the trial court. Johnson’s

Brief at 9.

Following our review, we conclude Johnson waived his issue that,

pursuant to 42 Pa.C.S.A. § 9771(c), his most recent technical violation did not

merit the imposition of a sentence of total confinement. Johnson failed to

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raise this issue in his motion to modify the sentence or his Rule 1925(b)

statement. Therefore, Johnson did not preserve this issue for review, and we

will not address it. See Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa.

Super. 2012).

Johnson’s motion to modify, Rule 1925(b) statement, and Rule 2119(f)

statement, did preserve his issue that the sentence was unduly harsh and

manifestly unreasonable under the circumstances of this case. See Post-

Sentence Motion, 12/16/22, at 2-3; Rule 1925(b) Statement, 5/10/23, at 1;

Johnson’s Brief at 9. This issue raises a substantial question. See

Schutzues, 54 A.3d at 98 (“An argument that the trial court imposed an

excessive sentence to technical probation violations raises a substantial

question” (internal citation omitted)). Accordingly, we address the merits of

this issue.

Our standard of review is as follows:

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. An abuse of discretion is more than an error in judgment—a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (internal

citation omitted). This Court does not reweigh sentencing factors, nor will we

impose judgment in place of the sentencing court where the court was aware

of the information related to those factors. See Commonwealth v.

Lawrence, 313 A.3d 265, 286 (Pa. Super. 2024).

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As noted above, Johnson explains the violation at issue, i.e., being

present at his paramour’s residence to pick up clothes, as a minor technical

violation for which he had a reasonable explanation. See Johnson’s Brief at

13-14. He contends the trial court abused its discretion by requiring him to

serve time in prison at or near the statutory maximum for the underlying

simple assault conviction. See id. at 14.

The trial court, in its Rule 1925(a) opinion, responds that nothing in the

record suggests it failed to consider the relevant sentencing factors or imposed

a harsh sentence. See Trial Court Opinion, 7/20/23, at 6. The court

emphasizes Johnson accepted and understood the term prohibiting his

presence at his paramour’s residence but violated a condition of probation less

than week after a prior violation. See id. at 7.

We conclude Johnson’s arguments merit no relief. Although Johnson

focuses on his own explanation for why he violated a term of his probation,

the trial court had no obligation to weigh or credit the explanation, particularly,

where the court heard testimony that Johnson was arrested for the violation

while sitting on the porch of the residence. See N.T., 7/13/22, at 4-5;

Lawrence, 313 A.3d at 286. Moreover, he ignores the fact that shortly before

the current violation, the court previously found him in violation due to his

presence at the residence but continued his probationary term. See N.T,

7/13/22, at 2-3. Lastly, with respect to the underlying crime of simple assault,

graded as a first-degree misdemeanor, Johnson ignores the fact that the trial

court had previously determined he had engaged in a course of conduct to

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harm the then eight-month-old child. The facts that Johnson previously

served an aggravated-range sentence, or that the underlying crime was

graded as a first-degree misdemeanor, do not demonstrate that the instant

sentence following revocation was unreasonable.

In sum, having reviewed the record and Johnson’s arguments, we

conclude Johnson presents no basis to find a manifest abuse of discretion.

Therefore, his challenge to the harshness of the sentence fails.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 9/5/2024

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