Com. v. Johnson, J. ( 2021 )


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  • J-S51035-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JASON ERIC JOHNSON                         :
    :
    Appellant               :   No. 580 MDA 2020
    Appeal from the Judgment of Sentence Entered February 12, 2020
    In the Court of Common Pleas of Lackawanna County Criminal Division at
    No(s): CP-35-CR-0002589-2018
    BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
    MEMORANDUM BY McCAFFERY, J.:                        FILED FEBRUARY 09, 2021
    Jason Eric Johnson (Appellant) appeals from the judgment of sentence
    entered in the Lackawanna County Court of Common Pleas following his guilty
    pleas under two subsections of the sexual abuse of children statute:
    dissemination of photographs or film of a child engaging in a prohibited sexual
    act (dissemination of photographs) and possession of child pornography.1 He
    avers the trial court abused its discretion in ordering his sentences to run
    consecutively, and his sentences should have merged. We affirm.
    The trial court summarized the facts as follows: beginning in August of
    2017, Google Incorporated (Google) furnished approximately 10 reports to
    the National Center for Missing and Exploited Children (NCMEC) Cyber Tip
    Line, that between April 26 and August 10, 2017, the user name
    ____________________________________________
    1   18 Pa.C.S. § 6312(c), (d).
    J-S51035-20
    “jokerjohnson05®gmail.com”       uploaded    images    of   suspected      child
    pornography to Google’s photo sharing and storage service. Trial Ct. Op.,
    8/6/20, at 3.   The Pennsylvania State Police investigated and learned the
    reported user name and IP address were associated Appellant. On March 6,
    2018, police executed a search warrant on Appellant residence and retrieved
    a Nextbook Tablet.
    A data extraction of said tablet returned numerous images of child
    pornography. The pictures and videos depicted children posing
    naked or performing sexual acts. Said pictures and videos were
    received and distributed over Appellant’s home internet service
    provider[.]
    [In an interview with the State Police,] Appellant
    acknowledged that he had been viewing child pornography for
    roughly [15] years, has viewed hundreds of pornographic images
    on his tablet, and has uploaded numerous images onto Google+
    Photos. He then went on to admit that his viewing the images
    began out of curiosity but had progressed to the point of sexual
    gratification. Ultimately, a forensic analysis of the electronic
    devices seized from Appellant’s home identified [220] files of
    known child pornography.
    Id.
    The State Police charged Appellant with 412 counts of dissemination of
    photographs, 220 counts of child pornography, and one count of criminal use
    of a communication facility, 18 Pa.C.S. § 7512. Trial Ct. Op. at 3.
    On May 1, 2019, Appellant entered a guilty plea to ten counts of
    dissemination of photographs and ten counts of possession of child
    pornography, each graded as a felony of the second degree.            Appellant
    admitted to the facts as summarized by the Commonwealth, that on April 26
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    2017, he: (1) knowingly disseminated computer videotapes and films, and
    knowingly distributed and uploaded “10 images in video files that contained
    child pornography;” and (2) on the same date and time, he knowingly
    possessed or controlled “10 photographs depicting a child under the age of
    eight engaging in sexual conduct.”     N.T., 5/1/19, at 6-7.   Appellant was
    advised each count carried a maximum sentence of 10 years’ imprisonment
    and $25,000. Id. at 6.
    Appellant subsequently underwent a sexually violent predator (SVP)
    assessment and was found not to meet the criteria of an SVP.
    The trial court sentenced Appellant on February 12, 2020, after
    reviewing a pre-sentence investigation report (PSI). At sentencing, Appellant
    was 47 years old and had no criminal history. Although Appellant had no prior
    arrests, his admission of viewing child pornography was tempered by an
    argument that he did not profit from them nor “encourage others to make it
    [sic] by disseminating.”   N.T., 2/12/20, at 2-3.   Appellant requested his
    sentences to run concurrently, arguing his conduct was one “crime spree,”
    rather than multiple separate offenses. Id. at 4. The Commonwealth argued
    against concurrent sentences, reasoning Appellant possessed distinct images,
    which depicted different individuals. Id. at 7-8.
    The trial court agreed with the Commonwealth’s reasoning and imposed
    the following sentences: (1) on each of the ten counts of dissemination of
    photographs, a term of 12 to 24 months’ imprisonment, all to run
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    consecutively; (2) on two counts of possession of child pornography, terms of
    12 to 24 months, likewise to run consecutively; and (3) on each of the
    remaining eight counts of possession of child pornography, terms of 12 to 24
    months, to run concurrently with the first two possession of child pornography
    counts.    Appellant’s aggregate sentence was thus 12 to 24 years’
    imprisonment.
    On February 21, 2020, Appellant filed a timely post-sentence motion,
    which reiterated the arguments he presented at the sentencing hearing. The
    trial court denied the motion the same day. Appellant took a timely appeal
    and complied with the court’s order to file a Pa.R.A.P. 1925(b) statement of
    concise errors complained of on appeal.
    Appellant presents two related issues for our review:
    [1.] Whether the sentences imposed on each of the charges and
    in the aggregate were harsh and excessive and an abuse of
    discretion in light of the fact that Appellant has no prior record,
    that he does not have a criminal history of sexually offending, that
    his sexually violent predator assessment evaluation found that he
    does not suffer from a mental abnormality/personality disorder,
    that the crimes involved an ongoing action with the same motive
    assertedly [sic] making it a crime spree.
    [2.] Whether the trial court abused its discretion and impose a
    harsh and excessive sentence by failing to impose concurrent
    sentences on all counts since the offenses to which he pled
    occurred on the same date and time and was an ongoing action
    with the same motive assertedly [sic] making it a crime spree.
    Appellant’s Brief at 4.
    In his first issue, Appellant contends that while “none of the individual
    sentences is excessive, . . . the cumulative sentence is,” and “arguably would
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    amount to a life sentence if he were required to serve the [maximum] 24
    years.” Appellant’s Brief at 7, 12. Appellant claims “the trial court failed to
    consider the fact[s] that he was 46 years old at the time the offenses were
    committed” and that he admitted to his conduct. Id. at 12. Appellant further
    maintains “the long period of incarceration was not warranted by the facts of
    this case,” where although “he had been viewing child pornography for
    approximately 15 years, he had never acted on his impulses.” Id. at 12, 13.
    Appellant    thus    concludes   the   court   should   have   imposed   “minimal
    incarceration” and “a probationary period wherein he could seek the
    professional help to address his issues in the ‘real world.’” Id. at 13. In his
    second issue, Appellant avers the court erred in not ordering his sentences to
    run concurrently because “his criminal activity involved a crime spree.” Id.
    at 16-17.
    These claims go to the discretionary aspects of sentencing.            See
    Commonwealth v. Austin, 
    66 A.3d 798
    , 807, 808 (Pa. Super. 2013)
    (stating: (1) claim, that imposition of consecutive sentences resulted in a “de
    facto” life sentence and “a manifestly excessive aggregate sentence,” is a
    challenge to discretionary aspects of sentence; and (2) Pennsylvania law
    affords the sentencing court discretion to impose its sentences concurrently
    or consecutively).
    Before we reach the merits of a discretionary aspect of sentencing issue:
    We conduct a four-part analysis to determine: (1)
    whether appellant has filed a timely notice of appeal, see
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    Pa.R.A.P. 902 and 903; (2) whether the issue was
    properly preserved at sentencing or in a motion to
    reconsider and modify sentence, see Pa.R.Crim.P. 720;
    (3) whether appellant’s brief has a fatal defect, Pa.R.A.P.
    2119(f); and (4) whether there is a substantial question
    that the sentence appealed from is not appropriate under
    the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
    *     *   *
    “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) contrary to the fundamental norms which underlie the
    sentencing process.”
    A claim of excessiveness can raise a substantial question as to the
    appropriateness of a sentence under the Sentencing Code, even if
    the sentence is within the statutory limits. Bald allegations of
    excessiveness, however, do not raise a substantial question to
    warrant appellate review. Rather, a substantial question will be
    found “only where the appellant’s Rule 2119(f) statement
    sufficiently articulates the manner in which the sentence violates
    either a specific provision of the sentencing scheme set forth in
    the Sentencing Code or a particular fundamental norm underlying
    the sentencing process . . . .” . . .
    “Where [PSI] reports exist, we shall continue to presume that the
    sentencing judge was aware of relevant information regarding the
    defendant’s character and weighed those considerations along
    with mitigating statutory factors.”
    Commonwealth v. Watson, 
    228 A.3d 928
    , 935-36 (Pa. Super. 2020) (some
    citations omitted).
    In the case sub judice, Appellant filed a timely notice of appeal and
    raised these discretionary sentencing claims before the trial court.        See
    Austin, 
    66 A.3d at 808
    . Additionally, his appellate brief properly includes the
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    required Pa.R.A.P. 2119(f) statement. See 
    id.
     We thus consider whether
    Appellant’s Rule 2119(f) statement raises a substantial question. See 
    id.
    This Court has reasoned:
    The determination of what constitutes a substantial question must
    be evaluated on a case-by-case basis. “A substantial question
    exits 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) contrary to the
    fundamental norms which underlie the sentencing process.”
    Austin, 
    66 A.3d at 808
     (citations omitted).
    In Commonwealth v. Dodge, 
    957 A.2d 1198
     (Pa. Super. 2008)
    (Dodge II), the defendant was convicted of “37 counts of receiving stolen
    property, two counts of burglary, criminal trespass,” and other offenses. 
    Id. at 1199
    . At the time of sentencing, he was 42 years old. Commonwealth
    v. Dodge, 
    77 A.3d 1263
    , 1279 (Pa. Super. 2013) (Dodge III).               Dodge
    ultimately received, following two remands by this Court, an aggregate
    sentence of 40 years and 7 months to 81 years and 2 months’ imprisonment.
    
    Id. at 1266
    . He appealed to this Court, arguing “the imposition of consecutive
    sentences . . . based on the criminal conduct at issue, results in a manifestly
    excessive sentence,” and that “his sentence is ‘a virtual life sentence’ for non-
    violent property crimes.” 
    Id. at 1269, 1271
    . This Court observed:
    To make it clear, a defendant may raise a substantial question
    where he receives consecutive sentences within the guideline
    ranges if the case involves circumstances where the application of
    the guidelines would be clearly unreasonable, resulting in an
    excessive sentence; however, a bald claim of excessiveness due
    to the consecutive nature of a sentence will not raise a substantial
    question.
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    Id. at 1270
    .      Nevertheless, this Court concluded Dodge presented a
    substantial question, where he did not make “a boilerplate claim, insofar as
    he has cited pertinent legal authority that can be read to support his assertion
    that a substantial question that the sentence was not appropriate under our
    Sentencing Code exists.” 
    Id. at 1271
    .
    We reiterate that Appellant was 47 years old at the time of sentencing,
    and he received an aggregate sentence of 12 to 24 years’ imprisonment. His
    Rule 2119(f) statement avers that “if he were required to serve the full 24
    years,” the sentence “arguably would amount to a life sentence.” Appellant’s
    Brief at 7. Appellant further contends “his conduct was an ongoing action with
    the same motive,” and thus “the imposition of concurrent sentences was harsh
    and excessive.” Id. at 10. In light of our foregoing authority, we conclude
    Appellant has presented a substantial question. See Watson, 228 A.3d at
    935-36; Dodge III, 
    77 A.3d at 1270
    . Accordingly, we review the merits of
    his claims.
    We note the relevant standard of review:
    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.
    Watson, 228 A.3d at 936-37 (citations omitted).
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    Here, the trial court explained it “had ample opportunity to review the
    pre-sentence investigation, as well as . . . Appellant himself, prior to its
    imposition of sentence.” Trial Ct. Op. at 7. The court considered Appellant’s
    age, guilty plea, and “lack of criminal history,” as well as “the nature and
    circumstances of [his] crimes.”     Id. at 7-8.   The court emphasized that
    Appellant acknowledged, at the guilty plea, he understood the potential
    sentences for each count. Id. at 8. Pertinently, the court rejected Appellant’s
    assertion that his offenses should be viewed as a single crime spree. Id. at
    9. It noted that in Commonwealth v. Gatling, 
    807 A.2d 890
     (Pa. 2001)
    (plurality),
    the record established that the Defendant possessed 28
    pornographic pictures depicting different children in various sexual
    acts or the same children photographed multiple times. [The
    Gatling] Court determined that since every photograph of each
    child victimized that child and subjected him or her to the type of
    harm that the statute seeks to prevent, there were clearly 28
    different criminal acts. The Pennsylvania Supreme Court stated
    [its] rationale in treating each photograph as a separate crime is
    to “avoid giving criminals a ‘volume discount’ on crime.”
    Trial Ct. Op. at 9 (citations omitted).    Nevertheless, the court sentenced
    “Appellant at the low end of the standard range,” and directed that eight of
    his sentences run concurrently. See 
    id.
    Preliminarily, we note the decision cited by the trial court, Gatling,
    discussed sentencing merger, specifically “whether merger was precluded for
    the purpose of avoiding a ‘volume discount’ for multiple criminal acts.” See
    Gatling, 807 A.2d at 892 (opinion announcing judgment of the court) (OAJC).
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    Nevertheless, the trial court applied the above discussion to its analysis of
    Appellant’s discretionary aspects of sentencing claims, and on appeal,
    Appellant raises no argument the court erred in referring to Gatling in this
    context. But see Appellant’s Brief at 16 (arguing, in sentencing merger issue,
    that Gatling is distinguishable). Indeed, we observe he does not address or
    acknowledge the trial court’s opinion at all.      Instead, Appellant merely
    reiterates the same arguments presented at the sentencing hearing and in his
    post-sentence motion, which the trial court has already heard and rejected,
    for the reasons set forth above.
    We add that while Appellant emphasizes the consecutive nature of
    twelve of his counts, the trial court did order eight sentences to run
    concurrently. We also observe the trial court imposed lower-standard range
    sentences. After careful review of the record, the trial court’s opinion, and
    the parties’ briefs, we conclude Appellant has not established that any part of
    the trial court’s reasoning “ignored or misapplied the law” or indicated
    “partiality, prejudice, bias or ill will.” See Watson, 228 A.3d at 937.
    In his second issue, Appellant asserts his sentences should have
    merged.   In support, he avers:    (1) his twenty “crimes involve the same
    criminal purpose and . . . modus operandi;” (2) “his conduct in viewing [and
    disseminating] the images . . . involved the same behavior occurring on the
    same day and time period,” and thus comprise “a crime spree;” and (3) “he
    did not commit multiple criminal acts beyond what was required to establish
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    the elements of each of the crimes.” Appellant’s Brief at 13, 15, 16. No relief
    is due.
    At this juncture, we note Appellant did not raise a merger challenge
    before the trial court. Nevertheless, because this type of claim implicates the
    legality of sentence, it may not be waived, and we may review it on appeal.
    See Commonwealth v. Rhoades, 
    8 A.3d 912
    , 918 (Pa. Super. 2010) (“A
    claim that crimes should have merged for sentencing purposes raises a
    challenge to the legality of the sentence, which cannot be waived.”).
    This Court has explained:
    A claim that crimes should have merged for sentencing
    purposes raises a challenge to the legality of the sentence;
    therefore, our standard of review is de novo and our scope of
    review is plenary.
    Our legislature has defined the circumstances under which
    convictions for separate crimes may merge for the purpose of
    sentencing.
    Merger of sentences. No crimes shall merge for
    sentencing purposes unless the crimes arise from a single
    criminal act and all of the statutory elements of one
    offense are included in the statutory elements of the
    other offense. Where crimes merge for sentencing
    purposes, the court may sentence the defendant only on
    the higher graded offense.
    42 Pa.C.S.A. § 9765.
    To determine whether offenses are greater and lesser
    included offenses, we compare the elements of the
    offenses. If the elements of the lesser offense are all
    included within the elements of the greater offense and
    the greater offense has at least one additional element,
    which is different, then the sentences merge. If both
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    crimes require proof of at least one element that the
    other does not, then the sentences do not merge.
    Commonwealth v. Hill, 
    140 A.3d 713
    , 715-16 (Pa. Super. 2016).
    Pennsylvania jurisprudence has moved away from the prior “‘practical,
    hybrid approach’ that looks to the statutory elements of the respective crimes
    and evaluates whether the defendant was charged and convicted on a single
    set of facts that satisfies both offenses.” Commonwealth v. Quintua, 
    56 A.3d 399
    , 401 (Pa. Super. 2012).       “[T]he current state of merger law in
    Pennsylvania makes clear there is no merger if each offense requires proof of
    an element the other does not.” 
    Id.
    Appellant was convicted of ten counts under each of the following two
    subsections of the sexual abuse of children statute:
    (c) Dissemination of photographs, videotapes, computer
    depictions and films. — Any person who knowingly sells,
    distributes, delivers, disseminates, transfers, displays or exhibits
    to others, or who possesses for the purpose of sale, distribution,
    delivery, dissemination, transfer, display or exhibition to others,
    any book, magazine, pamphlet, slide, photograph, film,
    videotape, computer depiction or other material depicting a child
    under the age of 18 years engaging in a prohibited sexual act or
    in the simulation of such act commits an offense.
    (d) Child pornography. — Any person who intentionally views
    or knowingly possesses or controls any book, magazine,
    pamphlet, slide, photograph, film, videotape, computer depiction
    or other material depicting a child under the age of 18 years
    engaging in a prohibited sexual act or in the simulation of such
    act commits an offense.
    See 18 Pa.C.S. § 6312(c), (d).
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    Although Appellant properly cites the law generally for statutory
    elements and lesser and greater offenses, he presents no examination or
    comparison of the particular statutory provisions at issue here.              See
    Appellant’s Brief at 15. Instead, Appellant’s supporting argument is that the
    same set of facts — his conduct — could establish both dissemination of
    photographs and possession of child pornography. As stated above, however,
    Pennsylvania courts have rejected this “practical, hybrid” approach to
    sentencing merger. See Quintua, 
    56 A.3d at 401
    .
    Our comparison of the two subsections reveals that no sentencing relief
    is due, as each crime includes several distinct elements. Dissemination of
    child pornography requires, inter alia, the act of selling, distributing,
    delivering,   disseminating,   transferring,   displaying   or   exhibiting   child
    pornography to others, or possessing child pornography “for the purpose of
    sale, distribution, delivery, dissemination, transfer, display or exhibition to
    others.” 18 Pa.C.S. § 6312(c). Thus, although the crime of dissemination
    may involve the possession of child pornography, such possession, under the
    statute, must be for the specific purpose of dissemination. Id.
    Conversely, simple possession of child pornography does not require an
    act of dissemination, nor does it require possession for any particular purpose.
    See 18 Pa.C.S. § 6312(d). Instead, the statute merely defines this offense
    as the intentional viewing, knowing possession, or control of child
    pornography. Id. Relatedly, the offense of possession of child pornography
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    may be established without actual possession, through either the control or
    viewing of child pornography, neither of which are elements of dissemination.
    Compare 18 Pa.C.S. § 6312(c) with 18 Pa.C.S. § 6312(d).
    We conclude that because each crime contains at least one element that
    the other does not, the second prong of Section 9765 (requiring that all
    elements be shared) cannot be met. Accordingly, Appellant’s sentences for
    dissemination of photographs and possession of child pornography do not
    merge. See 18 Pa.C.S. § 6312(c), (d); 42 Pa.C.S.A. § 9765; Hill, 140 A.3d
    at 715-16.
    As we conclude there is no merit to Appellant’s discretionary aspects of
    sentencing or sentencing merger claims, we affirm the judgment of sentence.
    Judgment of sentence affirmed.
    Judge Murray joins this Memorandum.
    Judge McLaughlin concurs in the result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 02/09/2021
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Document Info

Docket Number: 580 MDA 2020

Filed Date: 2/9/2021

Precedential Status: Precedential

Modified Date: 2/9/2021