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[U] Commonwealth v. Johnson

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ANTON TYRONE JOHNSON, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence May 17, 2013 in the Court of Common Pleas of Chester County Criminal Division at No.: CP-15-CR-0004156-2001

BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Anton Tyrone Johnson, appeals from the judgment of sentence entered following his guilty plea to two counts of robbery, one count of criminal conspiracy, and one count of persons not to possess firearms.[1] On appeal, Appellant challenges the discretionary aspects of his sentence. For the reasons discussed below, we affirm the judgment of sentence.

On August 26, 2011, Appellant and his co-defendants robbed the victims at gunpoint, inside their apartment. During the course of the robbery, Appellant shot the male victim in the hand and pistol-whipped him.

On February 21, 2013, Appellant entered an open guilty plea to the aforementioned charges. On April 8, 2013, the sentencing court sentenced Appellant to an aggregate mandatory minimum sentence[2] of not less than ten nor more than twenty years of incarceration on the robbery and persons not to possess firearms counts, to be served consecutively to a sentence imposed in a different county on a related matter. Further, the sentencing court sentenced Appellant to a term of incarceration of not less than five nor more than ten years on the conspiracy count, to be served consecutively to the robbery sentence. Appellant filed a timely post-sentence motion seeking modification of his sentence. Following a hearing on May 6, 2013, by order of May 17, 2013, the sentencing court vacated the conspiracy sentence and imposed a five-year probationary term to be served consecutively to the robbery sentence. Appellant filed the instant, timely appeal.[3]

On appeal, Appellant raises the following question for our review:

Did the sentencing court manifestly abuse its discretion when the court sentenced [Appellant] to an aggregate sentence of 10 to 20 years and five years probation on the charge of two counts of robbery, criminal conspiracy and persons not to possess firearms, to be served consecutively to the sentence of 10 to 20 years imposed by the Delaware County Court of Common Pleas on the charge of aggravated assault, when each case required a mandatory minimum sentence of ten years for a "second strike" but [Appellant] did not seriously injure any person in either case?

(Appellant's Brief, at 4).

On appeal, Appellant claims that the sentencing court abused its discretion when it sentenced Appellant to a consecutive term of incarceration because it did not consider mitigating factors. (See Appellant's Brief, at 9). Appellant further avers that the consecutive sentence was "manifestly unreasonable." (Id.).

Appellant challenges the discretionary aspects of his sentence on appeal.[4] The right to appeal the discretionary aspects of a sentence is not absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant challenges the discretionary aspects of the sentence imposed, he must present "a substantial question as to the appropriateness of the sentence[.]" Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa.Super. 2003) (citations omitted). An appellant must, pursuant to Pennsylvania Rule of Appellate Procedure 2119(f), articulate "a colorable argument that the sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing scheme." Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa.Super. 2005) (en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If an appellant's Rule 2119(f) statement meets these prerequisites, we determine whether a substantial question exists. See Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa. 2000). "Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits." Id. (emphases in original).

Here, Appellant has included a Rule 2119(f) statement in his brief. (See Appellant's Brief, at 9). Appellant argues that the sentence was manifestly excessive and unreasonable because the sentencing court: (1) failed to consider mitigating circumstances; and (2) imposed a consecutive sentence. (See id.).

Appellant claims that the sentencing court failed to consider mitigating factors such as the age of his prior offenses, and his social and psychological disadvantages. (See id.). It is well settled that a claim "that a sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence was inappropriate." Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.Super. 2008), appeal denied, 968 A.2d 1280 (Pa. 2009) (citation omitted). Thus, Appellant's claim that the sentencing court abused its discretion by failing to consider mitigating factors does not present a substantial question. Accordingly, we decline to review this issue.

Appellant also claims that the sentencing court unreasonably imposed a consecutive sentence. Pennsylvania law "affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question." Commonwealth v. Pass, 914 A.2d 442, 446–47 (Pa.Super. 2006) (citation omitted); see also Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995) (holding that appellant is not entitled to "volume discount" by having sentences run concurrently). But see Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009) (imposition of standard range sentences consecutively on thirty-seven counts of theft-related offenses for aggregate sentence of 58½ to 124 years' imprisonment constituted virtual life sentence and, thus, was so manifestly excessive as to raise a substantial question). "Thus, in our view, the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case." Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011). Here, Appellant makes no showing or claim that his case is similar to the virtual life sentence at issue in Dodge. As he has not done so, his claim that the trial court unreasonably imposed a consecutive sentence does not raise a substantial question.

Judgment of sentence affirmed. Jurisdiction relinquished.


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