J-S30045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GREGORY BROWN,                             :
                                               :
                       Appellant               :      No. 2314 EDA 2018

          Appeal from the Judgment of Sentence Entered July 9, 2018
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1012061-2005

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED OCTOBER 07, 2019

        Gregory Brown (“Brown”) appeals from the judgment of sentence

entered following his third violation of probation, which was imposed upon his

negotiated guilty plea to possession with intent to deliver a controlled

substance (“PWID”).1 We reverse and remand for resentencing.

        In its Opinion, the trial court summarized the history underlying the

instant appeal as follows:

        On December 20, 2005, [Brown] appeared before [the trial court]
        and pled guilty to [PWID]. Per his negotiated sentence, [the
        court] sentenced [Brown] to 6 to 23 months [of] county
        incarceration[,] plus one year reporting probation, with immediate
        parole. [Brown] denied that he had a drug problem.

             Less than one month later, on January 14, 2006, [Brown]
        was arrested and charged with PWID, knowing and intentional
        possession of a controlled substance (K&I), recklessly
        endangering another person (REAP) and resisting arrest. On June
____________________________________________


1   35 P.S. § 780-113(a)(30).
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     14, 2006, [Brown] appeared before [the trial court] and pled guilty
     to K&I and resisting arrest. [The trial court] sentenced him to 2
     years of probation. On that same date, [Brown] appeared before
     [the trial court] for his first violation hearing. [The trial court]
     found him in direct violation, revoked his parole, and sentenced
     him to serve back time. On October 20, 2006, [Brown] was
     granted work release[,] and immediately absconded from
     supervision.

           Nearly two years later, on August 20, 2008, [Brown] was
     apprehended by the warrant unit. On September 25, 2008, he
     was sentenced by [the trial court] to 6 to 23 months [of] county
     incarceration for violating his probation. [Brown] served his
     sentence in Passaic County Jail in New Jersey[,] as a result of
     overcrowded conditions in Philadelphia. [Brown] was scheduled
     to appear before [the trial court] for a violation hearing on
     September 25, 2008, October 12, 2008, and February 6, 2009[,]
     but on each occasion[,] he was not brought down from Passaic
     County. On February 14, 2009, [Brown] was released from
     custody. On that date, he was served with [N]otice to appear
     before [the trial court] on March 12, 2009. [Brown] failed to
     appear on that date and absconded from supervision. [The trial
     court] issued a judge-only bench warrant, and wanted cards were
     issued on April 13, 2009.       [Brown] was apprehended by
     authorities on July 20, 2009.

            On August 17, 2009, [Brown] appeared before [the trial
     court] for his second violation hearing. [The court] found him in
     technical violation for absconding from supervision, not paying
     fines and costs, failing to get a job, and not complying with any of
     [the] [c]ourt’s orders. [The trial court] terminated [Brown’s]
     parole, revoked his probation, and sentenced him to 3 to 6 years
     [of] state incarceration[,] plus 4 years [of] reporting probation.
     [Brown] was ordered to complete drug treatment, receive job
     training, and pay costs and fines at a rate of $25 per month.

          On July 17, 2015, [Brown] was released to begin serving
     probation. On October 9, 2015, [Brown] was arrested and
     charged with vending prohibited and disorderly conduct. These
     charges were later withdrawn, and [the court] permitted
     [Brown’s] probation to continue. At the time, [Brown] was being
     supervised by the State Parole Board and was residing at Self Help
     Recovery House.


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             [Brown] appeared before [the trial court] on March 4,
      2016[,] for a status hearing[,] and [the court] allowed [Brown’s]
      probation to continue. Thereafter, [Brown] absconded from
      supervision and failed to appear at his next status hearing on June
      17, 2016. [Brown] was apprehended by authorities on July 21,
      2016. On October 3, 2016, [Brown] appeared before [the trial
      court] for a violation hearing ….        [The trial court] allowed
      [Brown’s] probation to continue and ordered him to undergo a
      Forensic Intensive Recovery (FIR) evaluation. [Brown] reported
      to his probation officer on October 5, 2016[,] and stated that he
      used marijuana to control his lupus symptoms. He did not
      complete a[n] FIR evaluation due to an address verification issue
      involving his mother. [Brown] continued to report to his probation
      officer, testing positive for marijuana use at each visit, until April
      6, 2017, after which he absconded from supervision. [Brown] was
      apprehended by authorities on June 14, 2018.

            On July 9, 2018, [Brown] appeared before [the trial court]
      for his third violation hearing.   First, [the court] reviewed
      [Brown’s] history since his first appearance in 2005…. The
      Probation Officer recommended revocation and a term of
      incarceration.

            Next, defense counsel admitted that [Brown] had spent
      most of the last 13 years absconding, but that he had a substance
      abuse problem and also suffered from lupus. She stated that she
      would normally recommend a state sentence of 1½ to 3 years,
      but instead recommended a county sentence so that [Brown]
      could treat his lupus locally.

            The Commonwealth argued that based upon the probation
      summary report, [Brown] had not yet taken responsibility for his
      actions, and was taking advantage of the system.            The
      Commonwealth stated that it would defer sentencing to the
      discretion of the court.

Trial Court Opinion, 12/4/18, at 1-4.

      On July 9, 2018, after a hearing, the trial court found Brown in violation

of his probation for absconding from supervision. See id. at 4. The trial court

sentenced Brown to 1½ to 3 years in prison, with no subsequent probationary


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term. The trial court specifically stated, on the record, that a prison term was

necessary to vindicate the authority of the court. See N.T., 7/9/18, at 14

(wherein the trial court stated that a sentence of total confinement was

“absolutely necessary to vindicate the authority of the [c]ourt.”). Brown filed

a post-sentence Motion, which the trial court denied. Thereafter, Brown filed

the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

      Brown presents the following claims for our review:

      1. Did not the sentencing court violate the requirements of 42
         [Pa.C.S.A. §] 9771(c) … when, after revoking his probation, it
         sentenced [Brown] to a period of total confinement[,] where[]
         1) he had not been convicted of[,] or charged with[,] a new
         crime, 2) the record did not demonstrate any likelihood that he
         would commit a new crime if not incarcerated, and 3)
         incarceration was not essential to vindicate the authority of the
         court?

      2. Was not the [trial] court’s imposition of a one and one-half
         (1½) to three (3) year sentence of incarceration[,] for technical
         violations of probation, manifestly excessive and an abuse of
         discretion[,] where the court failed to give individualized
         consideration to [Brown’s] personal history, rehabilitative
         needs or background, and without explaining how, as a matter
         of law, this sentence was the least stringent one adequate to
         protect the community and to serve the rehabilitative needs of
         [Brown]?

      3. Did not the trial court err and abuse its discretion by sentencing
         [] Brown to an excessive period of incarceration?

Brief for Appellant at 4.




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      Brown challenges the discretionary aspects of his sentence. Challenges

to the discretionary aspects of sentencing do not entitle a petitioner to review

as of right. Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:
      (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.

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015) (citation

omitted).

      Here, Brown timely filed his Notice of Appeal, and preserved his claims

in a post-sentence Motion. Brown’s appellate brief does not include a concise

statement of the reasons he relies upon for allowance of appeal, with respect

to the discretionary aspects of his sentence, as required by Pa.R.A.P. 2119(f).

See Brief for Appellant at 8-10. However, because the Commonwealth does

not object to this defect, we will proceed to address whether Brown has raised

a substantial question. See Commonwealth v. Lutes, 793 A.2d 949, 964

(Pa. Super. 2002) (holding that, if the Commonwealth does not object to the

appellant’s failure to comply with Pa.R.A.P. 2119(f), the Superior Court may

entertain the discretionary sentencing claim).

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,


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533 (Pa. Super. 2011). “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.” Id. (internal citations omitted).

      Brown first claims that the trial court’s sentence is inconsistent with 42

Pa.C.S.A. § 9771(c), because the court imposed a sentence of total

confinement, where he had not been charged with a new crime, was not likely

to commit a new crime, and where total confinement was not necessary to

vindicate the court’s authority. See Brief for Appellant at 14. Brown’s second

and third claims challenge his sentence as manifestly excessive, because the

trial court failed to give individualized consideration to his personal history,

rehabilitative needs, and background, and provide an explanation as to how

the sentence was the least stringent sentence adequate to protect the

community. Id. at 20, 23.

      Upon review, Brown’s claims raise substantial questions that his

sentence was inconsistent with a specific provision of the Sentencing Code.

See 42 Pa.C.S.A. § 9771(c) (limiting a sentencing court’s authority to impose

a sentence of total confinement upon the violation of the conditions of

probation), § 9721(b) (providing that the sentence imposed should call for

confinement that is consistent with the protection of the public, the gravity of




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the offense, and the rehabilitative needs of the defendant). Accordingly, we

will address Brown’s challenges to the discretionary aspects of his sentence.

      We will address the merits of Brown’s claims together.        Brown first

claims that the trial court violated 42 Pa.C.S.A. § 9771(c) by sentencing him

to a period of total confinement. Brief for Appellant at 14. Brown asserts that

he is a 34-year-old father with lupus, and “suffers through cannabis addiction

in an attempt to control his [l]upus pain symptoms.” Id. Brown concedes

that his “sporadic reporting and positive drug testing placed him in technical

violation of his probation[.]” Id. However, Brown argues that his behavior

was the result of his use of marijuana for medical purposes, and that he did

not “turn himself in” because he feared dying in prison.         Id. at 14-15.

According to Brown, his violation of the conditions of his probation, alone, did

not give the trial court the authority to imprison him. Id. at 15. Further,

Brown argues that the record did not support the sentence imposed, as he

was not charged with new crimes; there was no finding that he was likely to

commit another crime; and, total confinement is not necessary to vindicate

the authority of the trial court. Id. at 14, 15.

      In his second claim, Brown argues that the trial court’s sentence is

manifestly excessive.   See id. at 20.      According to Brown, the trial court

improperly failed to give individualized consideration to his personal history

and rehabilitative needs. See id. Brown further argues that the trial court

improperly failed to explain how this sentence is the least stringent sentence


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necessary to protect the community and serve his rehabilitative needs. See

id.

      In his third claim, Brown argues that the trial court imposed an

“excessive period of incarceration.” Id. at 23. Brown argues that the trial

court improperly focused upon his technical violations, rather than his

background, rehabilitative needs and mitigating circumstances.         Id. at 23.

According to Brown, “[b]ecause the trial court made no reference to [Brown’s]

severe health problems and rehabilitative needs,” the court violated the

Sentencing Code and the fundamental norms underlying the sentencing

process. Id.

      The “[r]evocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court’s decision will not be disturbed

on appeal in the absence of an error of law or an abuse of discretion.”

Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007).

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

See Commonwealth v. Cartrette, 83 A.3d 1030, 1033-35 (explaining that

notwithstanding prior decisions, which stated our scope of review in revocation

proceedings is limited to the validity of the proceedings and legality of

sentence, this Court’s scope of review on appeal from revocation sentencing

can also include discretionary sentencing challenges).


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      Once probation has been revoked, a sentence of total confinement may

only be imposed if any of the following conditions exist:

      (1)   the defendant has been convicted of another crime; or

      (2)   the conduct of the defendant indicates that it is likely that
            he will commit another crime if he is not imprisoned; or

      (3)   such a sentence is essential to vindicate the authority of the
            court.

42 Pa.C.S.A. § 9771(c).

      Our review of the record discloses that Brown had committed no

additional crimes, and the record reflects no evidence that Brown is likely to

commit another crime, if he is not imprisoned. Rather, the record reflects that

Brown committed only technical violations of his probation.        Further, the

record reflects that Brown used marijuana to self-treat lupus. There is nothing

of record disputing his assertion.

      Given the length of Brown’s probation to date, and the nature of Brown’s

technical violation, we conclude that the trial court abused its discretion in

sentencing Brown to total confinement. Based upon our review of the record,

a sentence of total confinement was not necessary to vindicate the trial court’s

authority. Consequently, we reverse the judgment of sentence and remand

for resentencing consistent with this Memorandum.

      Judgment of sentence reversed.        Case remanded for resentencing

consistent with this Memorandum. Superior Court jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/19




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