J-S56031-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAMARR M. BROWN,
Appellant
No. 3305 EDA 2012
Appeal from the Judgment of Sentence entered November 2, 2012,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0015748-2010.
BEFORE: ALLEN, OTT, and COLVILLE,* JJ.
MEMORANDUM BY ALLEN, J.:
FILED SEPTEMBER 20, 2013
Lamarr M. Brown (“Appellant”) appeals from the judgment of sentence
imposed following the revocation of his probation and parole. We affirm.
The trial court detailed the pertinent facts and procedural history as
follows:
Appellant was arrested on August 28, 2010 and charged
with simple assault, reckless endangerment, discharge of a
firearm into an occupied structure, conspiracy, violations of the
Uniform Firearms Act, attempted murder, aggravated assault
and possession of an instrument of crime. Bail was set at
$200,000.00. Appellant did not post bail. On March 7, 2011,
[A]ppellant appeared before the [trial court] and entered a
negotiated plea to conspiracy, discharging a firearm into an
occupied structure and possession of an instrument of crime in
exchange for a sentence of 6-23 months incarceration with
immediate parole, followed by 4 years probation [F.N. 1. 18
*Retired Senior Judge assigned to the Superior Court.
J-S56031-13
Pa.C.S. § 903, 18 Pa.C.S. § 2707.1, 18 Pa.C.S. § 907]. On
September 5, 2011, [A]ppellant was arrested and charged with
possession of a controlled substance. On October 28, 2011, a
violation hearing was scheduled, but was continued until
December 2, 2011, pending resolution of the open charge. In
the interim, [A]ppellant’s parole was continued and he was
ordered to report to his parole officer biweekly. On December 2,
2011, [A]ppellant failed to appear and a bench warrant was
issued.
On December 9, 2011, [A]ppellant was taken into
custody pursuant to the bench warrant where he remained until
his release on parole on April 23, 2012. [F.N. 2. The new
charges were withdrawn on March 7, 2012]. On July 7, 2012,
[A]ppellant was again arrested and charged with possession and
possession with intent to deliver a controlled substance,
marijuana, and the [trial court] lodged a detainer on July 9,
2012. On July 27, 2012, the Commonwealth filed a motion to
proceed with the violation hearing pursuant to Commonwealth v.
Daisey Kates. On November 2, 2012, the Daisey Kates hearing
was conducted. Appellant’s probation officer, Reba Sor, who had
been supervising [A]ppellant for more than a year, testified
under oath to the information outlined above which had been
provided to the [trial court] in [A]ppellant’s hearing summary.
Police Officer Jason Yerjes testified that on July 7, 2012, he had
arrested [A]ppellant after finding him in possession of 45
packets of marijuana. Following the hearing, [A]ppellant was
found in technical violation of his probation.
After hearing
argument from both counsel for [A]ppellant and the
[C]ommonwealth], [A]ppellant was sentenced to 2-5 years
incarceration.1
Trial Court Opinion, 3/22/13, at 1-2.
____________________________________________
1
The trial court sentenced Appellant to 2 to 5 years of imprisonment for
conspiracy (F-3), a concurrent 2 to 5 years for discharge of a firearm into an
occupied structure (F-3), and a concurrent 2 to 5 years for possession of an
instrument of crime (M-1).
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Appellant filed a motion for reconsideration of his sentence, which the
trial court denied on December 6, 2012.
This appeal followed.
Both
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents one issue for our review:
DID THE [TRIAL] COURT ERR IN SENTENCING APPELLANT TO A
NEW SENTENCE OF 2 TO 5 YEARS INCARCERATION WHERE
APPELLANT WHO WAS ON PAROLE SHOULD HAVE BEEN
RECOMMITTED TO JAIL TO SERVE THE BALANCE OF THE
SENTENCE PREVIOUSLY IMPOSED?
Appellant’s Brief at 3.
Appellant claims that his sentence is illegal because the trial court
imposed a new sentence of 2 to 5 years, based on Appellant’s violation of
the conditions of his parole.
He argues that parole violators can only be
sentenced to serve the remainder of the sentence that was initially imposed,
and that it was impermissible for the trial court to impose a new sentence
for a parole violation. Appellant’s Brief at 9-10. Appellant asserts that the
trial court’s imposition of a new sentence is illegal and should be vacated.
See Commonwealth v. Galletta, 864 A.2d 532, 538 (Pa. Super. 2004)
(following revocation of parole the court is not free to give a new sentence;
rather, upon revocation of parole, the only sentencing option available is
recommitment to serve the balance of the term initially imposed). The trial
court, however, disagreed. The trial court explained that at the November
2, 2012 hearing, it revoked both Appellant’s probation and his parole. Trial
Court Opinion, 3/22/13, at 3-4.
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Our Supreme Court has clarified the sentencing alternatives available
following revocation of probation versus revocation of parole as follows:
[A] court faced with a violation of probation may impose a new
sentence so long as it is within the sentencing alternatives
available at the time of the original sentence. 42 Pa.C.S. §
9771(b) (“Upon revocation [of probation] the sentencing
alternatives available to the court shall be the same as were
available at the time of initial sentencing, due consideration
being given to the time spent serving the order of probation.”).
In contrast, a court faced with a parole violation must recommit
the parolee to serve the remainder of the original sentence of
imprisonment, from which the prisoner could be reparoled.
Commonwealth v. Holmes, 933 A.2d 57, 74, n.5 (Pa. 2007) (emphasis
added).
Here, the trial court made clear that at the November 2, 2012 hearing,
it revoked both Appellant’s parole and his probation, based upon offenses
committed while Appellant was on parole but before the commencement of
his probationary period. The trial court explained:
[A]ppellant’s matter involved revocation of both the parole
and probation. The fact that [A]ppellant had not commenced
serving probation when the new offense occurred did not prevent
the [trial] court from revoking the prior order placing [A]ppellant
on probation. The [trial] court has the authority to revoke
[A]ppellant’s probation despite the fact that, at the time of the
revocation of probation, [A]ppellant had not yet begun to serve
the probationary portion of the split sentence and even though
the offense upon which revocation of probation was based
occurred during the parole period and not the probationary
period. Commonwealth v. Ware, 737 A.2d 251, 253 (Pa.
Super. 1999) citing Commonwealth v. Wendowski, 420 A.2d
628 (1980) (If at any time before the defendant has completed
the maximum period of probation or before he has begun
service of his probation (emphasis in original) he should
commit offenses of such nature as to demonstrate to the court
he is unworthy of probation, and the granting of same would not
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be in subservience to the interests of justice and the best
interests of the public, or the defendant, the court could revoke
or change the order of probation). Moreover, upon revocation of
probation, the sentencing alternatives available to the [trial]
court are the same as were available at the time of the initial
sentencing, due consideration being given to the time spent
serving the order of probation. Commonwealth v. Crump, 995
A.2d 1280, 1285 (Pa. Super. 2010).
Trial Court Opinion, 3/22/13, at 3-4.
We agree with the trial court. In Commonwealth v. Ware, 737 A.2d
251 (Pa. Super. 1999), we held that the trial court “had the authority to
revoke appellant's probation despite the fact that, at the time of revocation
of probation, appellant had not yet begun to serve the probationary portion
of her split sentence and even though the offense upon which revocation of
probation was based occurred during the parole period and not the
probationary period.”
Ware, 737 A.2d at 253.
We explained that “[t]he
fact that appellant had not commenced serving probation when the new
offense occurred did not prevent the court from revoking its prior order
placing appellant on probation.” Id. quoting Commonwealth v. Dickens,
475 A.2d 141 (Pa. Super. 1984). See also Commonwealth v. Sierra, 752
A.2d 910, 912 (Pa. Super. 2000) (“sentencing court had the authority to
revoke [the defendant’s] probation despite the fact that [the defendant] was
on parole at the time and had not yet begun her probationary term”). In
such circumstances, the trial court “ha[s] proper authority to revoke not only
appellant's parole, but also to revoke appellant's probation. Moreover, once
the court revoke[s] appellant's probation, it ha[s] the same sentencing
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options available that existed at the time of the original sentencing.” Ware,
737 A.2d at 254.
Thus, in the present case, the trial court had the authority to revoke
both Appellant’s probation and parole for the violations he committed while
on parole, but before the commencement of his probationary period.
Following revocation of Appellant’s probation, the trial court had the
authority to impose a new sentence of three concurrent 2 to 5 year terms of
imprisonment.
See Holmes supra (“a court faced with a violation of
probation may impose a new sentence so long as it is within the sentencing
alternatives available at the time of the original sentence”).2
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Prothonotary
Date: 9/20/2013
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2
The statutory maximum sentence for conspiracy and discharge of a firearm
into an occupied structure, both felonies of the first degree, is seven years.
See 18 Pa.C.S.A. § 2707.1, 18 Pa.C.S.A. § 1103 and 18 Pa.C.S.A. § 905 (a).
The statutory maximum for Appellant’s conviction of possession of an
instrument of crime is five years. See 18 Pa.C.S.A. §§ 907(a) and 1104(1).
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