Com. v. Collins, J. ( 2020 )

J-S65045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHNNY MARCELLUS COLLINS :
:
Appellant : No. 915 MDA 2019
Appeal from the Judgment of Sentence Entered April 30, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006085-2010
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JANUARY 23, 2020
Appellant, Johnny Marcellus Collins, appeals pro se from the judgment
of sentence imposed by the Court of Common Pleas of Dauphin County (trial
court) on remand following this Court’s vacatur of the sentence originally
imposed by the trial court. We affirm.
On May 8, 2012, Appellant was convicted by a jury of Delivery of a
Controlled Substance and Possession with Intent to Deliver a Controlled
Substance (PWID),1 and Tampering with Physical Evidence, Use or Possession
of Drug Paraphernalia, and Possession of Marijuana.2 These convictions arose
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
2 18 Pa.C.S. § 4910(1), 35 P.S. § 780-113(a)(32), and 35 P.S. § 780-
113(a)(31), respectively.
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out of a September 16, 2010, controlled cocaine buy and a search incident to
his arrest on October 19, 2010 for the controlled buy. On July 25, 2012, the
trial court sentenced Appellant to consecutive terms of 3 to 6 years’
incarceration for Delivery of a Controlled Substance; 5 to 10 years’
incarceration for PWID; 1 to 2 years’ incarceration for Tampering with Physical
Evidence; and 12 months’ probation for Use or Possession of Drug
Paraphernalia and imposed no further sentence for the Possession of
Marijuana conviction. On February 19, 2016, this Court affirmed the judgment
of sentence. Commonwealth v. Collins, 141 A.3d 599 (Pa. Super. 2016)
(unpublished memorandum).
Appellant filed a timely first petition pursuant to the Post Conviction
Relief Act (PCRA)3 on May 4, 2016, which the trial court dismissed without a
hearing. Appellant timely appealed the dismissal of this PCRA petition, raising
numerous claims of ineffective assistance of counsel challenging both his
convictions and sentence. These claims included arguments that his
aggregate sentence of 9 to 18 years’ incarceration, resulting from the trial
court’s imposition of the consecutive sentences, was manifestly excessive and
unreasonable and that his sentence was illegal under Alleyne v. United
States, 570 U.S. 99 (2013). On March 19, 2019, this Court vacated the
judgment of sentence on the ground that the sentences that the trial court
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3 42 Pa.C.S. §§ 9541-9546.
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imposed for Delivery of a Controlled Substance and PWID were illegal under
Alleyne and Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014),
and remanded this case to the trial court for resentencing. Commonwealth
v. Collins, 1175 MDA 2018 at 21-22, 25 (Pa. Super. filed March 19, 2019)
(unpublished memorandum). In this memorandum opinion, the Court also
addressed and rejected Appellant’s other challenges to his convictions and
sentence, including his argument that his aggregate sentence was excessive.
On April 30, 2019, the trial court resentenced Appellant to an aggregate
sentence of 5 to 10 years’ imprisonment, consisting of consecutive terms of 2
to 4 years’ incarceration for Delivery of a Controlled Substance; 2 1/2 to 5
years’ incarceration for PWID; and 6 months to 1 year of incarceration for
Tampering with Physical Evidence; and a consecutive period of 12 months’
probation for Use or Possession Of Drug Paraphernalia. Appellant filed a timely
motion to modify sentence, which the trial court denied on May 16, 2019. This
timely appeal followed.4
Appellant raises the following single issue for our review:
Whether the Lower Court erred by sentencing Appellant to
consecutive terms totaling five (5) to ten (10) years imprisonment
constitut[ing] too severe a punishment without regard to his
rehabilitative needs?
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4 Appellant affirmed at this sentencing that he did not want to be represented
by counsel. N.T. Sentencing, 4/30/19, at 2. In addition, at this Court’s
direction, the trial court held a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998), at which Appellant indicated that he did not
want counsel to be appointed to represent him in this appeal.
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Appellant’s Brief at 3. This is a challenge to the discretionary aspects of
Appellant’s sentence and is therefore not appealable as of right
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc); Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa. Super.
2016). Rather, an appeal from the discretionary aspects of a sentence is
permitted only after this Court determines that there is a substantial question
that the sentence was not appropriate under the Sentencing Code.
Dempster, 187 A.3d at 272; Bynum-Hamilton, 135 A.3d at 184.5 No such
substantial question exists here.
A claim that a sentence within statutory limits is excessive is generally
not sufficient to raise a substantial question, absent a claim that the sentence
violates a specific provision of the Sentencing Code or that the sentencing
court did not consider the sentencing guidelines or factors concerning the
crimes and the defendant that a sentencing court is to consider under the
Sentencing Code. Dempster, 187 A.3d at 272-23 n.6; Bynum-Hamilton,
135 A.3d at 184; Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.
2012); Commonwealth v. Titus, 816 A.2d 251, 255–56 (Pa. Super. 2003).
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5 An appellant challenging the discretionary aspects of sentence is also
required to satisfy other requirements, including filing a timely post sentence
motion and complying with Pa.R.A.P. 2119(f). See, e.g., Dempster, 187
A.3d at 272. Appellant has satisfied those other requirements here.
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Here, there is no claim that the sentence violated any specific provision
of the Sentencing Code or that the sentences for the offenses of which
Appellant was convicted are not within the sentencing guidelines. Moreover,
the record is clear that the sentencing court considered the sentencing
guidelines, the pre-sentence report, the relevant factors concerning Appellant,
including his lengthy criminal history, and Appellant’s crimes in imposing these
sentences. N.T. Sentencing, 4/30/19, at 3-9; Trial Court Opinion, 9/9/19, at
5-6. The fact that the sentences were imposed consecutively does not raise
a substantial question where the resulting total aggregate sentence is not
extremely lengthy for the criminal conduct at issue, there was more than one
episode of criminal conduct, and there is no basis for a claim that the
sentencing court failed to consider mitigating factors. Commonwealth v.
Radecki, 180 A.3d 441, 468-70 (Pa. Super. 2018); Commonwealth v.
Zirkle, 107 A.3d 127, 133-34 (Pa. Super. 2014).
Appellant argues that his sentence is excessive under this Court’s
decisions in Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011),
and Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008). Neither
of these decisions has any applicability here. In both of those cases, the
consecutive sentences that were held excessive resulted in extraordinarily
lengthy aggregate sentences that were effectively life sentences.
Coulverson, 34 A.3d at 148-50 (vacating aggregate 90-year maximum
sentence); Dodge, 957 A.2d at 1201-02 (aggregate 581/2-to-124 year
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sentence excessive). The aggregate 5 to 10 year sentence here, which does
not exceed the statutory maximum for either of Appellant’s separate crimes
of Delivery of a Controlled Substance and PWID, 35 P.S. § 780-113(f)(1.1),
bears no resemblance to those extreme sentences. Indeed, this Court has
already held in this case that an aggregate sentence of 9 to 18 years’
incarceration for Appellant’s convictions “is neither excessive nor
unreasonable.” Commonwealth v. Collins, 1175 MDA 2018 at 18. A fortiori,
Appellant’s much reduced aggregate sentence of 5 to 10 years cannot be
viewed as manifestly excessive or unreasonable.
Based on the foregoing, we conclude that Appellant’s challenge to the
discretionary aspects of his sentence does not raise a substantial question that
the sentence was not appropriate under the Sentencing Code. Accordingly,
we affirm the trial court’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2020
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