Com. v. Johnson, N.

C
J-S74044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NASEER JOHNSON                             :
                                               :
                       Appellant               :   No. 2410 EDA 2018

          Appeal from the Judgment of Sentence Entered June 21, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0000776-2016


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            Filed: April 30, 2021

        Appellant, Naseer Johnson, appeals from the judgment of sentence of

13 to 38 years’ incarceration entered in the Court of Common Pleas of

Montgomery County after he pleaded guilty to one count each of Rape,

Aggravated Assault, and Aggravated Indecent Assault.1 Herein, he challenges

his lifetime registration as a Sexually Violent Predator (“SVP”) under the

Sexual Offenders Registration and Notification Act (“SORNA II”), Subchapter

H, 42 Pa.C.S.A. §§ 9799.10-42, the discretionary aspects of his standard

range guideline sentence, and the imposition of costs at sentencing. After

careful review, we affirm.




____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 PA.C.S.A. §§ 3121(a)(1), 2702(a)(1), and 3125(a)(2), respectively.
J-S74044-19



      The Affidavit of Probable Cause included within the Police Criminal

Complaint filed in the present matter supplied the facts to which Appellant

stipulated to at the time of his guilty plea and sentencing. Specifically, the

Affidavit alleged the following:

             On December 23, 2015 at 5:01 p.m., the Upper Dublin
      Township Police Department was dispatched to "The Villa," located
      at 701 Bethlehem Pike in the Ambler section of Upper Dublin
      Township, for a completed sexual assault. The victim in this
      investigation . . . has been employed as a clinical intern at "The
      Villa" since August 31, 2015. [She] reported to Upper Dublin
      Police Officers at the scene that she was forcefully raped by a
      resident of "The Villa" named Naseer Johnson (date of birth
      11/08/1997).

            [The victim] reported that she was strangled by Naseer
      Johnson to the point that she lost control of her bladder and
      urinated on the cafeteria floor[, a report corroborated by a
      discovery of a puddle of urine at the location]. [She reported]
      that the sexual assault occurred in the cafeteria of "The Villa"
      following a counseling session she had with Naseer Johnson.

            [She] was transported to Abington Memorial Hospital by
      Ambler Ambulance at 5:25 p.m., where she was interviewed and
      examined by Karen Dougherty, a Sexual Assault Nurse Examiner.
      Nurse Dougherty's examination revealed that [she] displayed
      tenderness and pain to her head, mouth and jaw, and upper
      extremities as well as erythema on her cervix consistent with
      recent sexual intercourse.

             [A] formal, written statement [was taken from the victim]
      following her examination by Nurse Dougherty. [The victim]
      reported that she is currently employed as a clinical intern at "The
      Villa" and has been so employed since August 31, 2015. She
      reported that on December 23, 2015, she went to St. Dominick’s,
      a housing unit on the grounds of "The Villa", to meet a resident
      for a counseling session. [She] reported that the resident she was
      supposed to counsel was sleeping, so she asked the residential
      counselor if any of his residents wanted to talk.



                                     -2-
J-S74044-19


             [The victim] reported that while she was speaking with the
     residential counselor, Naseer Johnson was present and was asked
     by the residential counselor if he wanted to speak with [the
     victim]. [The victim] reported that Naseer Johnson said he felt
     like talking and she took him to her office for a counseling session.

           [The victim] reported that prior to the evening of December
     23, 2015, she never counseled or spoke to Naseer Johnson. [She]
     reported that the counseling session with Naseer Johnson lasted
     approximately thirty minutes and was atypical from counseling
     sessions she has had with other residents of "The Villa.” [She]
     reported that the session began normally in that Naseer Johnson
     was telling her about his life and why he couldn't go home for
     Christmas, but quickly changed when Johnson began asking [her]
     questions about her internship and personal questions such as
     where she attended school.

           [The victim] reported that when she completed the
     counseling session with Naseer Johnson, they left her office and
     he asked if he could see Carol, an employee at "The Villa", because
     she had his Christmas gifts. [The victim] reported that she and
     Naseer Johnson then walked to Carol's office but she was not
     there. [The victim] reported that Naseer Johnson then kept
     asking her if anyone was in the building to which she replied, "I
     guess not."

           [The victim] reported that Naseer Johnson then asked her if
     he could go to the bathroom, to which [she replied] that he could
     use the bathroom back at his unit [instead]. [She] reported that
     Naseer Johnson then walked to the bathroom and tried opening
     the door, but it was locked. At this point, [ ] she told Naseer
     Johnson that she had to walk him back to his unit, and she began
     walking with him toward one of the stairwells.

           [The victim] reported that Naseer Johnson directed her
     toward another stairwell, stating that the flight of stairs was a
     quicker way back to his unit. [She] reported that as she began to
     walk up the stairs, Naseer Johnson pulled her off of the stairs by
     grabbing onto the hood of her jacket and strangling her neck while
     standing behind her.

            [The victim] reported that after Johnson pulled her off the
     stairs, he began striking her repeatedly to the back of her head.
     [She] made several attempts to strike, pull away, and run from

                                     -3-
J-S74044-19


     Naseer Johnson, but she was unable to escape his grasp as he
     grabbed her and repeatedly banged her head against the cafeteria
     wall. [The victim] reported that Naseer Johnson then took her to
     the ground forcefully and pulled her pants and underwear down
     to her ankles. [She] reported that Naseer Johnson, now on top of
     her, began strangling her and said, "If you scream, I'm going to
     kill you".

           [The victim] reported that while Naseer Johnson strangled
     her she urinated on the cafeteria floor. [She] reported that after
     Naseer Johnson threatened to kill her she stopped resisting. [She]
     reported that she stopped resisting because she feared that
     Naseer Johnson would kill her.

             [The victim] reported that Johnson proceeded to take his
     pants down and forcefully inserted his penis inside of [her] vagina.
     [She] reported that during the sexual assault, Naseer Johnson
     lifted her shirt and bra and kissed her breasts and mouth. [She]
     reported that when she tried to move her head or arms during the
     sexual assault, Naseer Johnson forcefully pinned her arms to the
     cafeteria floor.

            [The victim] reported that Naseer Johnson forcefully
     penetrated her vagina with his penis for approximately fifteen to
     twenty minutes. [She] reported that Naseer Johnson may have
     ejaculated inside of her vagina. [She] reported that following the
     rape, she asked Naseer Johnson if he trusted her, [in an attempt
     to save her own life], because she didn't know if he was going to
     kill her after he raped her. [She] reported that at no time prior to
     or during the previously described sexual assault did she consent
     to sexual activity of any kind with Naseer Johnson.

            Following [the] interview with [the victim], [investigating
     officers] interviewed and took a formal written statement from
     Naseer Johnson at the Upper Dublin Township Police Department.
     Prior to this interview and formal statement, Naseer Johnson was
     read and explained his Constitutional Rights as they are written
     on the Upper Dublin Township Police Department Constitutional
     Rights form. Naseer Johnson waived his Constitutional Rights and
     provided us with a formal written statement.

           Naseer Johnson's statement corroborated [the victim’s]
     statement. Naseer Johnson admitted he strangled, repeatedly
     grabbed, struck, and banged the victim's head onto the cafeteria

                                    -4-
J-S74044-19


       floor. Naseer Johnson reported that he forcefully stuck his penis
       inside of [the victim’s] vagina knowing that he did not have
       consent to do so. Naseer Johnson reported that prior to him
       raping [the victim], he strangled her and said, "If you scream, I'm
       going to kill you."

Affidavit of Probable Cause, 12/24/2015, at 1-3.

       On August 3, 2016, Appellant pleaded guilty to the above-mentioned

charges, as well as to simple assault in an unrelated case.2 At Appellant’s

June 21, 2018, sentencing hearing, the court considered the defense

argument for leniency, which centered on Appellant’s history as a two year-

old victim of sexual abuse, his removal from the family home and placement

in various foster homes over many years, and the alleged deprivation of love,

guidance, and support that flowed from the absence of a “true family” in his

life. N.T. at 23.

       Also offered was a more specific account of Appellant’s mental health

history that included a childhood diagnosis of bipolar disorder, anger issues,

and depression.

Id. Though he received

treatment for these conditions, the

defense argued that Appellant’s illicit drug and alcohol abuse starting at age

11 undermined the efficacy of the treatment and contributed to his suicide

attempt at the age of 13.

Id.

____________________________________________

2 At

the same hearings, Appellant also entered an open guilty plea and
received sentence, respectively, in a separate case docketed with the lower
court at 2307-16 involving one count of simple assault stemming from his
unrelated attack against a different female victim in the women’s bathroom in
a public library. His appeal from the judgment of sentence entered in that
companion case is presently docketed at No. 522 EDA 2019, wherein he
advances a challenge to the imposition of costs at sentencing identical to the
third issue he raises in the case sub judice.

                                           -5-
J-S74044-19



      From that time, counsel maintained, Appellant continued to abuse

alcohol, which, combined with his mental illness, had created multiple

behavioral issues that prevented him from completing high school. Counsel

maintained it was this history that led to the offense Appellant committed in

the present matter. N.T. at 24.

      At the outset of the court’s sentencing remarks, it recognized both

Appellant’s pre-sentencing allocution and his acceptance of responsibility

during the guilty plea colloquy, and it therefore noted “[s]o, I have factored

that allocution into the court’s decision.” N.T. at 57. The court then placed

on the record the reasons for its sentence, which it acknowledged must include

a review of the Sexual Offender Risk Assessment, the presentence

investigation report, victim impact statements, sentencing guidelines,

Appellant’s mitigating circumstances, and the facts that were read into the

record at Appellant’s guilty plea.

      Specifically, the court shared its observations, as follows:

            It is difficult to fathom a crime more replete with terror and
      depravity than what the defendant did. And again, this is referring
      to the rape of [the clinical intern]. The context again . . . on this
      fateful Christmas Eve of 2015 when all that [she] was doing was
      being an intern in a field that she was hoping that she would be
      able to seek her profession in.

             And essentially what is so chilling about it is essentially
      going into this was appears to be unaccompanied and simply
      asking if anybody needed to talk. I can’t imagine anything more
      startling than what happened.
             ...




                                      -6-
J-S74044-19


            [I]t’s chilling what occurred to [the clinical intern]. She
     simply wanted to help. Again, this defendant’s background, his
     upbringing, factors indicate that he didn’t have much of a chance,
     but it appears that he was appropriately placed because of that
     background.
            ...

           And this poor woman waged in to one of the most horrific
     experiences that I think anybody could ever imagine. And there’s
     no more or less.

            Christmas Eve, he brutally raped her, pure and simple.
     Brutally raped her, he committed an aggravated indecent assault,
     another form of sexual assault that he perpetrated upon her. And
     then, to even make this more horrific, either was attempting to
     kill her, but in the form of her assault, strangulation and the
     injuries that he visited upon her only underscore the absolute
     danger this defendant presents.
            ...

           And again, you say he’s 18 and he never had a chance. This
     court has to weigh that into the rehabilitative needs of the
     defendant. And I have, but I can’t get the scene of violence,
     sexual violence that he perpetrated upon this woman who will
     never be the same.
           ...

           But this defendant was barely an adult and he has been in
     a system and he is clearly marginalized as a result of things that
     happened to him in his childhood that should have never
     happened to anyone. And resources and love, commitment, they
     should have been available to him [but] were not. And in the end,
     at the age of 18, a potentially violent predator was amongst us
     and [the clinical intern] never saw it coming.

            So, I have to sentence the crime along with the defendant.
     And the crime, you know, that this defendant committed, again,
     is the most serious, I think, in the Crimes Code. So [the sentence]
     is consistent with protection of the public.

           I don’t know, you know, the future of this defendant. One
     can only hope that he will – it’s sad that he has to grow into a man
     in the prison system, but [sentencing] consistent with the
     protection of the public is of paramount importance.

                                    -7-
J-S74044-19



            And again, [the victim in the prior assault occurring in the
     library bathroom] – I don’t know – by fate didn’t suffer more
     serious injuries. The victim impact statement lent weight as to
     the violence that she felt in that moment of her life back in the
     public library, but words can’t begin to describe the terror that
     [the clinical intern in the present case] must have felt on
     Christmas Eve of 2015. So, the weight is almost totally to the
     victim, the impact of the life of the victim.

           I have factored in the rehabilitative needs of the defendant.
     And again, I don’t know what a state correctional system can
     offer, but the sentence, and concededly so, is weighted with
     Factors 1 and 2 heavily.

           I’ve attempted to factor in there [ ] knowing that this
     defendant, sadly, in his world never had a chance. Never had a
     chance. And hopefully the growth he has begun since he has been
     in the county correctional system over 18 or 19 months has
     started that process.

           So, this is a sentence that is weighted heavily taking into
     consideration the guidelines. I’ve decided not to put it into the
     aggravated range solely because this defendant did take
     accountability and responsibility, but they will be consecutive
     sentences because I need to weigh consistent with protection of
     the public and the impact that this has had upon the victims and
     the community in general.

           He is high risk. I can’t say that there’s any higher risk than
     the defendant based upon his Sexual Offender Risk Assessment.
     Therefore, any supervision should be consistent with that.

            So total confinement is the sentence of this court. And total
     confinement is necessary because, based upon everything that
     this court has placed upon the record, there is an absolute undue
     risk this defendant would commit another crime. There is no
     doubt about that.

           Again, I am factoring in – I am not factoring in the Sexually
     Violent Predator Assessment because I’m not permitted to do so
     in terms of sentencing, but I am factoring in the Sexual Offender
     Risk Assessment. This defendant is an undue risk of committing
     such a crime if he was not subject to total confinement.

                                    -8-
J-S74044-19



           He is in need of correctional treatment because that is the
     only place in which we can confine someone that committed that
     type of crime this defendant did commit.

N.T. at 57-64.

     Informed by the Sex Offenders Assessment Board’s (“SOAB”) report, to

which Appellant stipulated, the court found Appellant to be a Sexual Violent

Predator (“SVP”), and it participated in the Commonwealth’s advisement of

Appellant as to his consequent registration requirements.    The court then

imposed an aggregate sentence of 13 to 38 years’ incarceration, which

comprised consecutive terms of five and one-half to 15 years for rape, four

and one-half years for aggravated assault, and three to eight years for

aggravated indecent assault. N.T. at 64-66. Subsequently, the court denied

Appellant’s motion for reconsideration of sentence.      This timely appeal

followed.

     Appellant presents the following questions for our consideration:

     1. Was Mr. Johnson illegally sentenced to lifetime registration
        requirements because the newly enacted Act 29 (“SORNA II”)
        is unconstitutional and the lifetime registration exceeds the
        maximum term of his sentence?

     2. Did the sentencing court abuse its discretion by sentencing Mr.
        Johnson, who was just 18 years old at the time of the offense,
        to three consecutive sentences with an aggregate maximum of
        up to thirty-eight (38) years in prison where Mr. Johnson’s
        violent behavior is informed by his experiences as a victim of
        child sexual abuse; he is affected by multiple disabilities; he
        was severely under-nurtured from birth with no meaningful
        family support throughout his childhood; and he was
        essentially raised by the system and will now graduate to an
        adulthood of decades of incarceration in punitive settings that
        are not resourced to meet his rehabilitative needs?

                                   -9-
J-S74044-19




       3. Did the sentencing court illegally impose costs on Mr. Johnson,
          who is indigent, without making a determination regarding his
          ability to pay costs?

Brief for Appellant, at 5.

       In Appellant’s first issue, he contends that the lifetime registration

requirements of SORNA II, Subchapter H,3 applicable to him are punitive in

effect and, consequently, unconstitutionally subject him to punishment that

extends beyond the maximum term of his sentence. We note that counsel for

Appellant prepared this argument prior to the decision of the Pennsylvania

Supreme Court in Butler II.

       In Butler II, the Supreme Court reversed this Court's decision4 that

the SVP designation procedure in question was unconstitutional. Specifically,
____________________________________________


3 “Subchapter H is based on the original SORNA statute and is applicable to
offenders, ..., who committed their offenses after the December 20, 2012
effective of SORNA.” Commonwealth v. Butler, 

226 A.3d 972

, 981 n.11
(Pa. 2020) (“Butler II”); See 42 Pa.C.S.A. § 9799.10-41.          SORNA was
enacted in 2011 and became effective on December 20, 2012. Through Acts
10 and 29 of 2018, the General Assembly split Subchapter H of SORNA into a
Revised Subchapter H and Subchapter I. Subchapter I addresses sexual
offenders who committed an offense on or after April 22, 1996, but before
December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75.              Revised
Subchapter H, which applies to offenders such as Appellant who committed
an offense on or after December 20, 2012, contains stricter requirements than
Subchapter I. See 42 Pa.C.S.A. §§ 9799.10-9799.42. Thus, Appellant
became subject to registration under Subchapter H of the Pennsylvania
Sentencing Code pursuant to Act 29.

4Commonwealth v. Butler, 

173 A.3d 1212

, 1215 (Pa. Super. 2017) (holding
challenges to sexual offender registration obligations under Commonwealth
v. Muniz, 

164 A.3d 1189

(Pa. 2017) implicate legality of sentence), reversed,

226 A.3d 972

(Pa. 2020) (“Butler II”).



                                          - 10 -
J-S74044-19



the High Court held that SORNA II, Subsection H’s registration, notification,

and counseling (“RNC”) requirements as applied to SVPs did not constitute

constitutional criminal punishment:

       Although we recognize the RNC requirements impose affirmative
       disabilities or restraints upon SVPs, and those requirements have
       been historically regarded as punishment, our conclusions in this
       regard are not dispositive on the larger question of whether the
       statutory requirements constitute criminal punishment. This is
       especially so where the government in this case is concerned with
       protecting the public, through counseling and public notification
       rather than deterrent threats, not from those who have been
       convicted of certain enumerated crimes, but instead from those
       who have been found to be dangerously mentally ill. Under the
       circumstances, and also because we do not find the RNC
       requirements to be excessive in light of the heightened public
       safety concerns attendant to SVPs, we conclude the RNC
       requirements do not constitute criminal punishment.

Id. at 992-993

(internal citation omitted). See also Commonwealth v.

Torsilieri, 

232 A.3d 567

, 572 n.2 (Pa. 2020) (distinguishing the Butler II

holding from the constitutional challenges to Subchapter H raised by appellant

Torsilieri, noting, “as Butler II involves provisions related to the SVP

designation process, it is not relevant to [appellant Torsilieri], who was not

designated an SVP.”).

       Therefore, the entirety of Appellant’s constitutional challenge is at odds

with and, thus, nullified by Butler II. As such, it can afford him no relief.

       In Appellant’s second issue, he contends the court abused its sentencing

discretion by failing to consider mitigating factors and imposing consecutive

____________________________________________




                                          - 11 -
J-S74044-19



sentences. Appellant thus challenges the discretionary aspects of his

sentence.

     Challenges to the discretionary aspects of sentencing do not
     entitle an appellant to an appeal as of right. Prior to reaching the
     merits of a discretionary sentencing issue[, w]e conduct a four-
     part analysis to determine: (1) whether appellant has filed a
     timely notice of appeal, see 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).

Commonwealth v. Manivannan, 

186 A.3d 472

, 489 (Pa. Super. 2018)

(quotation marks and some citations omitted).

     Here, Appellant filed a timely notice of appeal, preserved his issue in a

post-sentence motion, and included a statement in his brief pursuant to

Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”). The final requirement, whether

the question raised by Appellant is a substantial question meriting our

discretionary review, “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.” 

Manivannan,

186 A.3d at 489

(quotation marks and some citations omitted).

     In his Rule 2119(f) Statement, Appellant contends that the trial court

abused its discretion when it imposed standard-range guideline sentences by



                                    - 12 -
J-S74044-19



failing to properly consider his mitigating circumstances and by ordering his

sentences to run consecutively.

     As to whether a challenge to consecutive sentences within the guideline

ranges raises a substantial question, this Court has made the following

observations: was discussed by this Court in:

     We consistently have recognized that excessiveness claims
     premised on imposition of consecutive sentences do not raise a
     substantial question for our review. See Commonwealth v.
     Caldwell, 

117 A.3d 763

, 769 (Pa. Super. 2015) (en banc)
     (stating, “[a] court's exercise of discretion in imposing a sentence
     concurrently or consecutively does not ordinarily raise a
     substantial question[.]”), appeal denied, 

633 Pa. 774

, 

126 A.3d
1282

(2015); see also Commonwealth v. Ahmad, 

961 A.2d
884

, 887 n.7 (Pa. Super. 2008); Commonwealth v. Pass, 

914
A.2d 442

, 446–47 (Pa. Super. 2006). Additionally, Appellant
     claims that the trial court failed to consider his mitigating
     circumstances, specifically his “advanced” age of over seventy
     years. Appellant's Brief at 50. In Commonwealth v. Eline, 

940
A.2d 421

(Pa. Super. 2007), we concluded that an appellant's
     argument that “the trial court failed to give adequate
     consideration to [his] poor health and advanced age” in fashioning
     his sentence does not raise a substantial question. 

Eline, 940
A.2d at 435

. In so concluding, we explained that “[t]his court has
     held on numerous occasions that a claim of inadequate
     consideration of mitigating factors does not raise a substantial
     question for our review.”

Id. (citation omitted); see

     Commonwealth v. Disalvo, 

70 A.3d 900

(Pa. Super. 2013)
     (citations omitted) (“This Court has held on numerous occasions
     that a claim of inadequate consideration of mitigating factors does
     not raise a substantial question for our review.”); see also
     Commonwealth v. Berry, 

785 A.2d 994

(Pa. Super. 2001)
     (explaining allegation that sentencing court failed to consider
     certain mitigating factor generally does not raise a substantial
     question); Commonwealth v. Cruz–Centeno, 

447 Pa. Super.
98

, 

668 A.2d 536

, 545 (1995) (“[a]n allegation that a sentencing
     [judge] ‘failed to consider’ or ‘did not adequately consider’ certain
     factors does not raise a substantial question that the sentence was
     inappropriate,”), appeal denied, 

544 Pa. 653

, 

676 A.2d 1195

                                    - 13 -
J-S74044-19


      (1996); Commonwealth v. Bershad, 

693 A.2d 1303

, 1309 (Pa.
      Super. 1997) (finding absence of substantial question where
      appellant argued the trial court failed to adequately consider
      mitigating factors and to impose an individualized sentence).
      Consistent with the foregoing cases, we conclude that Appellant
      failed to raise a substantial question with respect to his
      excessiveness claim premised on the imposition of consecutive
      sentences and inadequate consideration of mitigating factors.

Commonwealth v. Radecki, 

180 A.3d 441

, 468–69 (2018).                See also

Commonwealth v. Caldwell, 

117 A.3d 763

(Pa. Super. 2015) (en banc)

(“The imposition of consecutive, rather than concurrent, sentences may raise

a substantial question in only the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.”) (citations and internal quotation marks

omitted).

      Unlike the circumstances discussed in 

Radecki, 180 A.3d at 469

, and

Caldwell, 117 A.3d at 769

, Appellant's Rule 2119(f) Statement claims neither

that the length of his aggregate sentence was excessive given the criminal

conduct involved, nor does he assert that the trial court's application of the

guidelines was somehow unreasonable.          Indeed, in the case sub judice,

Appellant’s criminal conduct was not only most violent, but also the second

brutal, ambush-style sexual attack that he carried out in a relatively short

span of time. Accordingly, Appellant's assertion that the trial court abused its

discretion by sentencing him in the standard range of the sentencing

guidelines for all charges and by ordering his sentences to run consecutively

does not raise a substantial question.

Id. at 8.

– 14 –

J-S74044-19



       The crux of Appellant’s discretionary aspect challenge lies, instead, in

his insistence that the trial court failed to consider mitigating evidence

properly. We note that “[a]n allegation that the sentencing court failed to

consider certain mitigating factors generally does not necessarily raise a

substantial question.” Commonwealth v. Moury, 

992 A.2d 162

, 171 (Pa.

Super. 2010) (citing Commonwealth v. Wellor, 

731 A.2d 152

, 155 (Pa.

Super. 1999) (reiterating allegation that sentencing court “failed to consider”

or “did not adequately consider” certain factors generally does not raise

substantial question)).

       An exceptional instance where this Court has identified a substantial

question from an allegation that a trial court failed to consider adequately

mitigating circumstances was in Commonwealth v. Felmlee, 

828 A.2d

1105

, 1107 (Pa. Super. 2003) (en banc), where the sentencing court

sentenced in the aggravated range of the sentencing guidelines.           This,

however, is not the case in the current appeal. For this reason, Appellant's

allegations in his Rule 2119(f) Statement concerning mitigating evidence do

not raise a substantial question, either.5



____________________________________________


5 Even if we were to identify a substantial question in Appellant’s claim of
insufficiently considered mitigating circumstances, we would find the claim
belied by the record of the trial court’s open court statement of reasons
crediting Appellant’s allocution, his expression of remorse, and the
considerable hardships he endured throughout his childhood for its decision to
downgrade what otherwise would have been an aggravated range sentence to
a standard range sentence.

                                          - 15 -
J-S74044-19



      Consequently, none of Appellant's arguments in his Rule 2119(f)

Statement raises a substantial question. For this reason, we conclude he has

not preserved his challenge to the discretionary aspects of sentencing.

      In Appellant’s final issue, raised for the first time in this appeal, he posits

that the court erroneously ordered Appellant to pay the costs of prosecution

without first considering Appellant’s ability to pay such costs.           Because

Appellant’s claim challenges the sentencing court's authority to impose costs

as part of its sentencing order, it implicates the legality of his sentence and

represents a non-waivable claim.       See Commonwealth v. Lehman, 

201

A.3d 1279

, 1283 (Pa. Super. 2019), aff’d, 

243 A.3d 7

(Pa. 2020).               “Our

standard of review over such questions is de novo and our scope of review is

plenary.” Commonwealth v. White, 

193 A.3d 977

, 985 (Pa. Super. 2018)

(citing Commonwealth v. Cardwell, 

105 A.3d 748

, 750 (Pa. Super. 2014)).

      The Judiciary Code requires a trial court to order a convicted defendant

to pay costs pursuant to 42 Pa.C.S.A. § 9721(c.1), which provides:

      Mandatory payment of costs.—Notwithstanding the provisions of
      section 9728 (relating to collection of restitution, reparation, fees,
      costs, fines and penalties) or any provision of law to the contrary,
      in addition to the alternatives set forth in subsection (a), the
      court shall order the defendant to pay costs. In the event
      the court fails to issue an order for costs pursuant to section 9728,
      costs shall be imposed upon the defendant under this
      section.      No court order shall be necessary for the
      defendant to incur liability for costs under this section. The
      provisions of this subsection do not alter the court's discretion
      under Pa.R.Crim.P. 706(C) (relating to fines or costs).

42 Pa.C.S.A. § 9721(c.1) (emphasis added).



                                       - 16 -
J-S74044-19



      As this Court recently recognized in Commonwealth v. Lopez, 

2021

Pa. Super. 51

(filed March 23, 2021) (en banc), the Pennsylvania Rules of

Criminal Procedure, Sentencing Code, and established decisional law confer

upon a trial court discretion over whether to hold an ability-to-pay hearing at

the time of sentencing. Only before incarcerating a defendant for failing to

pay the costs imposed must a court hold a hearing. See Lopez, at **13-14

(explaining, “unless and until a defendant is in peril of going to prison for

failing to pay the costs imposed on him. It is only at that point that the

mandate for an ability-to-pay hearing arises”).

      Appellant is not facing incarceration for failing to pay the costs of

prosecution imposed at his sentencing. Thus, he was not entitled to an ability-

to-pay hearing at that time, which renders meritless his claim that the trial

court erred in failing to conduct such a hearing prior to imposing costs.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/21




                                    - 17 -

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