Commonwealth v. JohnsonCommonwealth v. Johnson
Appellant, Stefon Johnson (“Johnson”), appeals from the judgment of sentence entered on January 28, 2015 in the Court of Common Pleas, Erie County. Upon review, we find no support for Johnson’s claim that the sentencing court abused its discretion by imposing a sentence that is manifestly excessive. We further conclude that the sentencing court properly considered Johnson’s prior record score, as opposed to the number of prior convictions in his criminal record, in determining that Johnson was a repeat felony offender. We therefore affirm.
A brief summary of the relevant facts and procedural history is as follows. Between March 9 and March 17, 2014, Johnson entered three separate businesses with a small handgun and instructed the individuаls therein to empty the contents of the cash registers. State police officers arrested Johnson on March 18, 2014 and charged him with conspiracy, robbery, receiving stolen property, firearms not to be carried without a license, terroristic threats with intent to terrorize another, theft by unlawful taking, persons not to possess a firearm, simple assault, recklessly endangering another person, and possessing instruments of crime.1
On November 26, 2014, Johnson pled guilty to two counts of robbery, and in exchange, the Commonwealth nolle prossed all other charges. Johnson appeared for a sentencing hearing on Janu
Defense counsel also contested the presentence investigation report (“PSI Report”), which designated Johnson a repeat felony offender (“RFEL”) pursuant to
Following its review of section 303.4(a)(2), the sentencing court rejected defense counsel’s argument, stating that a RFEL designation requires six points, not convictions, based upon the defendant’s prior record score. The sentencing court determined that Johnson was appropriately designated a RFEL based on his prior record score of six for first- and second-degree felonies and that the sentencing guidelines in the PSI Report were calculated correctly. After considering the PSI Report, the statutorily required factors set forth in the Sentencing Code, and the testimony offered by Johnson and his witnesses, the sentencing court sentenced Johnson to two concurrent terms of 102 to 204 months оf incarceration and ordered him to pay the costs of prosecution plus restitution in the amount of $793.
Johnson filed a motion for reconsideration on the same date as the sentencing hearing, requesting that the sentencing court reconsider its sentence and reduce the period of incarceration. Johnson alleged that he was improperly designated as a RFEL and that the sentencing court should have imposed a standard range guideline sentence rather than an aggravated range sentence. On January 29, 2015, the sentencing court denied Johnson’s motion for reconsideration.
Johnson timely filed a notice of appeal on February 6, 2015 and a concise statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On appeal, Johnson raises the following two issues for our review, which we have reordered for ease of disposition:
- Whether [Jоhnson’s] sentence is manifestly excessive, clearly unreasonable and inconsistent with the objectives of the Sentencing Code?
- Whether the [s]entencing [c]ourt erred in sentencing [Johnson] with a prior record score of a [RFEL] instead of with a prior record score of five (5)[?]
Johnson’s Brief at 4.
In his first issue on appeal, Johnson challenges the discretionary aspects of his sentence. Johnson’s Brief at 4. This Court has held, “[w]here an appellant challenges the discretionary aspects оf a sentence, there is no automatic right to appeal and an appellant’s appeal should be considered a petition for allowance of appeal.” Commonwealth v. Crork, 966 A.2d 585, 590 (Pa.Super.2009).
Before we reach the merits of this [issue], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant
In this case, Johnson filed a timely notice of appeal and preserved his claim on appeal in a post-sentence motion as well as in his Rule 1925(b) statement. Johnson also included a concise statement of reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f) in his brief. The question remaining for our determination, therefore, is whether Johnson raised a substantial question.
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. 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) contrаry to the fundamental norms which underlie the sentencing process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super.2013) (internal citations omitted).
In his Rule 2119(f) statement, Johnson argues that the sentencing court abused its discretion by imposing an excessive sentence “given the mitigating factors of his case.” Johnson’s Brief at 9. In support of his claim, Johnson relies on the testimony of his character witnesses that testified that he was immature and made mistakes, but that he had potential for rehabilitation. Id.
“This Court has held that an excessive sentence claim—in conjunction with an assertion that the court failed to consider mitigating factors—raises a substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super.2014) (citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005)).2 Thus, we will address the merits of Johnson’s claim.
Our standard of review for challenges to the discretionary aspects of sentencing is as follows:
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 reсord, 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. Disalvo, 70 A.3d 900, 903 (Pa.Super.2013) (quoting Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super.2012), appeal denied, 619 Pa. 686, 63 A.3d 774 (2013)).
Additionally, our review of the discretionary aspects of a sentence is confined by the statutory mandates of
The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
In all other cases[,] the appellate court shall affirm the sentence imposed by the sentencing court.
In reviewing the record, we consider:
(1) The nаture and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
Johnson does not argue that the sentencing court applied the guidelines erroneously or sentenced him outside the guidelines. Rather, Johnson asserts that the sentence was excessive in light of mitigating factors testified to at his sentencing hearing that the sentencing cоurt failed to consider. Johnson’s Brief at 9. Our review of the record reveals, however, that the sentencing court had the benefit of a PSI Report when fashioning Johnson’s sentence. “Where, as here, the trial court has the benefit of a pre-sentence report, we presume that the court was aware of 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).
Furthermore, the record reflects that thе sentencing court considered all mitigating factors prior to sentencing Johnson. At the sentencing hearing, the sentencing court detailed the factors it considered, stating:
I’ve considered a number of things here. I’ve considered the presentence report in its entirety and I’m going to make it a part of the record in this case. I’ve also considered the Pennsylvania Sentencing Code and all its factors, the guidelines, the testimony of the witnesses that have appeared in supрort of the defendant, and the various statements made by counsel and the defendant here today.
N.T., 2/12/15, at 21. The sentencing court further stated that it considered Johnson’s age, the seriousness of the offenses, and the fact that Johnson had a significant juvenile record. Id. at 21-22.
Thus, after reviewing the record, we conclude that there is no evidence of record to establish that the sentencing court “ignored or misapplied the law, exercised its judgement for reasons of partiality, prеjudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Disalvo, 70 A.3d at 903. Nor is there any basis for us to conclude that the sentencing court’s application of the guidelines in this case was clearly erroneous. See Raven;
In his second issue on appeal, Johnson raises a question of statutory construction of the sentencing guidelines under
The statute in question provides:
(a) Prior Record Score categories. Determination of the correct Prior Record Score category under this section is based on the type and number of prior convictions (§ 303.5) and prior juvenile adjudications (§ 303.6). There are eight Prior Record Score categories: Repeat Violent Offender (REVOC), Repeat Felony 1 and Felony 2 Offender (RFEL), and point-based categories of 0, 1, 2, 3, 4, and 5.
(1) Repeat Violent Offender Category (REVOC). Offenders who have two or more previous convictions or adjudications for four point offenses (§ 303.7(a)(1) and § 303.15) and whose current conviction carries an Offense Gravity Score of 9 or higher shall be classified in the Repeat Violent Offender Category.
(2) Repeat Felony 1 and Felony 2 Offender Category (RFEL). Offenders who have previous convictions or adjudications for Felony 1 and/or Felony 2 offenses which total 6 or more in the prior record, and who do not fall within the Repeat Violent Offender Category, shall be classified in the Repeat Felony 1 and Felony 2 Offender Category.
(3) Point-based Categories (0-5). Offenders who do not fall into the REVOC or RFEL categories shall be classified in a Point-based Category. The Prior Record Score shall be the sum of the points accrued based on previous convictions or adjudications, up to a maximum of five points.
Johnson assails the sentencing court’s application of the guidelines under section 303.4. Johnsоn’s Brief at 7-8. Johnson contends that the language of subsection 303.4(a)(2) requires six prior convictions or adjudications, rather than six points, to designate an offender as a RFEL.3 Id. On that basis, Johnson asserts that he does not meet the requirements of subsection 303.4(a)(2), and thus, the sentencing court improperly designated him as a RFEL. Id.4
After conducting extensive research on this issuе, we have not uncovered any Pennsylvania legal authority addressing the question raised. We must therefore undertake an interpretation of the statutory text to ascertain whether section 303.4 requires six points or six convictions or adjudications to designate an offender as a RFEL. In undertaking our review of this issue, we are mindful that the Statutory Construction Act guides our interpretation and provides that “[t]he object of all interpretation and construction of statutes is to ascertain the effectuate the intention of the General Assembly.”
As we have often recognized, “[t]he General Assembly’s intent is best expressed through the plain language of the statute.” Commonwealth v. Brown, 603 Pa. 31, 981 A.2d 893, 897 (2009); Commonwealth v. McCoy, 599 Pa. 599, 962 A.2d 1160, 1166 (2009). Therefore, when the terms of a statute are clear and unambiguous, they will be given effect consistent with their plain and common meaning.
Commonwealth v. Gerald, 47 A.3d 858, 859-60 (Pa.Super.2012) (quoting Commonwealth v. Hart, 611 Pa. 531, 28 A.3d 898, 908 (2011)).
Our review of the statutory text of section 303.4(a)(2) reveals that it instructs, in relevant part, that “[o]ffenders who have previous convictions or adjudications for Felony 1 and/or Felony 2 offenses which totаl 6 or more in the prior record” are deemed a RFEL.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of suсh statute.
Furthermore, the following presumptions may be used to determine the legislature’s intention:
(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.
(2) That the General Assembly intends the entire statute to be effective and certain.
(3) That the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth.
(4) That when a court of last resort has construed the language used in a statute, the General Assembly in subsequеnt statutes on the same subject matter intends the same construction to be placed upon such language.
(5) That the General Assembly intends to favor the public interest as against any private interest.
This Court has further established that
[s]ections of statutes are not to be isolated from the context in which they arise such that an individual interpretation is accorded one section which does not take into account the related sections of the same statute. Statutes do not exist sentence by sentеnce. Their sections and sentences comprise a composite of their stated purpose.
Commonwealth v. Berryman, 649 A.2d 961, 966 (Pa.Super.1994) (quoting Commonwealth v. Lurie, 524 Pa. 56, 569 A.2d 329, 331 (1990)). “An interpretation of the language of a statute must remain consistent throughout the statute.” Id.
Viewing section 303.4 in the context of the Criminal Sentencing Guidelines, we conclude that there is no support for Johnson’s assertion that subsection 303.4(a)(2) requires six convictions or adjudications, and not six points on his prior record score. Section 303.2 provides the procedure for determining the guideline sentence. See
Viewing section 303.4 in this context, we find it significant that the lan
[W]here the legislature includes specific language in one section of the statute and excludes it from another, the language should not be implied where excluded. Moreover, where a section of a statute contains a given provision, the omission of such a provision from a similar section is significant to show a different legislative intent.
Commonwealth v. Kinney, 777 A.2d 492, 495 (Pa.Super.2001) (quoting Fonner v. Shandon, Inc., 555 Pa. 370, 724 A.2d 903, 907 (1999) (citations and emphasis omitted)).
We find further suрport for our conclusion in section 303.16(a), which provides the Basic Sentencing Matrix. See
Johnson baldly states that “a strict interpretation of [section 303.4] requires the [a]ppellant to have six (6) previous juvenile adjudications for Felony 1 or 2 offenses.” Johnson’s Brief at 8. Although we agree that we must strictly construe penal statutes,
“courts are not required to give words of a criminal statute their narrowest meaning or disregard evident legislative intent.” Thus, we will not adopt the strictest possible interpretation if doing so would defeat the plain intent of the legislature. Again, we must bear in mind that the legislature “does not intend a result that is absurd, impossible of execution, or unreasonable, and that the legislature intends the entire statute to be effective and certain.”
Commonwealth v. Brown, 956 A.2d 992 (Pa.Super.2008) (internal citations omitted).
If we endorsed Johnson’s interpretation of section 303.4, we would be determining that the legislature intended to require a sentencing court to designate an offender in the REVOC and point-based categories by considering the total number of points
Accordingly, we conclude that the sentencing court appropriately dеtermined that a RFEL designation under subsection 303.4(a)(2) is based on a calculation of points in a defendant’s prior record score rather than the number of convictions or adjudications in his criminal history. The sentencing court therefore properly designated Johnson as a RFEL. Finding no error in the sentencing court’s determination, we affirm the judgment of sentence.
Judgment of sentence affirmed.
BOWES, J. joins the Opinion.
FITZGERALD, J. concurs in the result.