J-A17024-16


                                  2016 PA Super 173

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STEPHEN J. BROWN

                            Appellant                  No. 1033 EDA 2015


              Appeal from the Judgment of Sentence April 7, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0203611-2006,
                             CP-51-cr-0308891-2006


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

OPINION BY LAZARUS, J.:                               FILED AUGUST 09, 2016

        Stephen Brown (a/k/a Rodney Greene) appeals from the judgment of

sentence, entered in the Court of Common Pleas of Philadelphia County,

after he violated his probation by committing retail theft. Upon review, we

affirm Brown’s judgment of sentence.

        The trial court summarized the facts as follows:

        On April 10, 2005, [Brown] used the victim “P.R.’s” identity to
        open Chase Visa (charging $1200.00) and Sears credit cards
        (charging $1632.02), [] on several occasions identified himself
        as the complainant[,] and used Western Union to transfer money
        ($245.00) in the complainant’s name.       [Brown] also used
        complainant’s identity to obtain phone service and provided
        complainant’s identifying information for two traffic court
        citations. On November 3, 2005, police executed a search
        warrant on [Brown’s] apartment and recovered credit cards, a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        driver’s license, and check stubs in the names of the victims
        along with identification for multiple victims; the police also
        recovered blank police and district attorney office letterhead.

        On April 9, 2007, [Brown] entered into a guilty plea to felony-
        three identity theft, 18 Pa.C.S. §4120. . . . [Brown] was
        sentenced pursuant to his plea agreement to 11 ½ to 23
        months[’] incarceration with immediate parole, followed by four
        years[’] reporting probation.

Trial Court Opinion, 6/11/15 at 1-2.

        After sentencing, Brown was released on parole.      The following day,

April 10, 2007, Brown was taken into federal custody. On June 23, 2008,

Brown pled guilty in federal court to three counts of mail fraud,1 three

counts of identity theft,2 two counts of access device fraud,3 three counts of

aggravated identity theft,4 and two counts of forgery of signatures of judge

or court officer.5 Brown was sentenced to 27 months’ incarceration followed

by 3 years of supervised release.          Brown was released on September 26,

2013, from federal custody.

        On April 24, 2014, Brown was arrested for retail theft. On March 9,

2015, he pled guilty to the charge and was sentenced to 30 days’ probation.

____________________________________________


1
    18 U.S.C. § 1341.
2
    18 U.S.C. § 1028(a)(7).
3
    18 U.S.C. § 1029(a)(2).
4
    18 U.S.C. § 1028A(a)(1).
5
    18 U.S.C. § 505.




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On April 7, 2015, Judge Chris R. Wogan held a violation of probation hearing

with respect to Brown’s 2007 conviction. Judge Wogan found that Brown’s

state probation did not begin until his release from federal custody on

September 26, 2013, and, thus, his conviction for retail theft was a direct

violation of that probation. Accordingly, Brown’s probation was revoked and

he was resentenced to 48 months of reporting probation and a $250.00 fine.

     On April 10, 2015, Brown filed a notice of appeal from his probation

revocation sentence and, on April 13, 2015, the court ordered him to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal

within 21 days. On April 30, 2015, Brown filed a request for an extension to

file his Rule 1925(b) statement, claiming that the notes of testimony from

his violation of probation (VOP) hearing were not yet available. The court

granted the extension until May 13, 2015. On May 13, 2015, counsel filed a

second request for an extension, which was denied. The following day, the

notes of testimony from the VOP hearing became available and, on May 19,

2015, Brown filed his Rule 1925(b) statement. A separate petition was filed

requesting that the court accept the statement of errors nunc pro tunc. The

trial court denied the petition and ruled that the Rule 1925(b) statement was

therefore untimely.

     Before we address the issue raised on appeal, we resolve a preliminary

procedural matter.    Instantly, the trial court found that Brown’s Rule

1925(b) statement was not timely filed. While this often requires remand,

where the trial court addresses the issues raised in an untimely Rule

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1925(b) statement, we need not remand but may address the issues on

their merits. See Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.

Super. 2012).      Instantly, the trial court has addressed the issue raised in

Brown’s untimely Rule 1925(b) statement and, as such, we may address the

issue on its merits.     Id. See also Commonwealth v. Burton, 973 A.2d

428, 433 (Pa. Super. 2009) (“[I]f there is an untimely filing, this Court may

decide the appeal on the merits if the trial court had adequate opportunity to

prepare an opinion addressing the issues being raise on appeal”).6

       On appeal, Brown raises one issue for our review:

       Did not the trial court err in finding Mr. Brown in violation of his
       probation, insofar as his probation had already expired long
       before the date of the purported violation?

Brief for Appellant, at 3.

       The main thrust of Brown’s appeal is that his probationary period

began to run on December 26, 2008, at the conclusion of his 11½ to 23

month state incarceration sentence.            Therefore, he claims his four-year

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6
  We note that the trial court acknowledges that a delay in the transcription
of notes of testimony is generally considered “good cause” warranting an
enlargement of time to file a Rule 1925(b) statement. See Trial Court
Opinion, 6/11/15, at 3-4 n.1. However, the court denied Brown’s second
request for an extension, stating that “the notes were not necessary in this
basic VOP case.” Id. at 4 n.1. While this may be true, we also recognize
that without the notes to prepare the statement, a party could run afoul of
the requirement that the Rule 1925(b) statement “concisely identify each
ruling or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.”         Pa.R.A.P. 1925(b)(4)(ii)
(emphasis added). Accordingly, we address the merits of Brown’s appeal.



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probation sentence concluded on December 26, 2012, well before he

committed the offense forming the basis for his violation on April 24, 2014.

Specifically, Brown contends that his time spent in federal custody should

count towards his state sentence. However, the trial court did not credit the

federal time towards his state sentence, reasoning that Brown was released

from Federal custody on September 26, 2013, and, thus, from that date his

state probation sentence began to run.     As such, Brown’s retail theft was

committed within the time he was serving his probation sentence and, thus,

was a direct probation violation.

      The issue on appeal concerns a question of law; thus, our scope of

review is plenary and our standard of review is de novo. Commonwealth

v. Mullins, 918 A.2d 82, 84 (Pa. 2007). The issue as to whether a state

probation period can be served while in federal imprisonment is an issue of

first-impression in our Court.   For the following reasons, we conclude that

state probation time cannot run while a defendant is serving a federal

sentence or the court would be permitting a defendant to simultaneously

serve two distinct sentences which, in essence would be “killing two birds

with one stone.”   Accordingly, the trial court correctly concluded that the

time Brown spent in federal custody did not count towards his state

sentence and, therefore, his state probation sentence began to run on

September 26, 2013, when he was released from federal custody.

      “No section of the Sentencing Code contemplates imprisonment as an

element of a probationary sentence; probation is in fact a less restrictive

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alternative to imprisonment directed at rehabilitating the defendant without

recourse to confinement during the probationary period.” Commonwealth

v. Basinger, 982 A.2d 121, 127 (Pa. Super. 2009) (emphasis added). The

sentencing court assigns specific probationary conditions and requirements

the defendant must abide by to assist the defendant in leading a law-abiding

life. 42 Pa.C.S. § 9754. Where a probationary sentence is employed, the

Sentencing Code includes conditions to insure the defendant is rehabilitated

as a law-abiding citizen who modifies his behavior without the total

confinement of incarceration.          Basinger, 982 A.2d at 127.       The plain

language of the Sentencing Code itself does not contemplate incarceration

as a condition of probation. See, e.g., 42 Pa.C.S. § 9754(c).

       Moreover, in Commonwealth v. Allshouse, 33 A.3d 31 (Pa. Super.

2011), this Court specifically rejected the idea of “constructive probation.”

In Allshouse, the defendant was convicted and sentenced to two years’

incarceration followed by a consecutive term of two years’ probation. Five

months later, the defendant was sentenced to one to three years’

incarceration on a separate offense.           Upon serving his maximum five-year

sentence,7 he was detained for a probation violation stemming from the first


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7
  The Department of Corrections aggregated the sentences for his first and
second convictions pursuant to 42 Pa.C.S. § 9757, which mandates
automatic aggregation of sentences once a trial court imposes a consecutive
sentence. Commonwealth v. Ford-Bey, 590 A.2d 782, 783 (Pa. Super.
1991).



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conviction.   Allshouse argued that he “constructively served” his probation

on his first sentence while he was incarcerated for the second conviction.

This Court disagreed, and being a case of first impression, looked to relevant

federal law for guidance. Allshouse, 33 A.3d at 36.

      The Allshouse court cited the following federal statute:

      § 3564. Running of a term of probation

      (b) Concurrence with other sentences.—Multiple terms of
      probation, whether imposed at the same time or at different
      times, run concurrently with each other. A term of probation
      runs concurrently with any Federal, State, or local term of
      probation, supervised release, or parole for another offense to
      which the defendant is subject or becomes subject during the
      term of probation. A term of probation does not run while
      the defendant is imprisoned in connection with a
      conviction for a Federal, State, or local crime unless the
      imprisonment is for a period of less than thirty
      consecutive days.

18 U.S.C. § 3564(b) (emphasis in original). The Court found that there is

“no support in the Pennsylvania statutes that the General Assembly intended

to permit defendants to serve a term of probation and a term of state

incarceration simultaneously.” Allshouse, 33 A.3d at 36.

      While Allshouse may be factually distinguishable from the instant

matter, we find its reasoning persuasive.    As previously stated, probation

rehabilitates a defendant in a less restrictive manner than total confinement.

Basinger, supra. As such, logic would lead to the conclusion that a term of

probation cannot be served while the defendant is imprisoned on an

unrelated sentence, whether it be in a state facility as in Allshouse or in

federal custody as with Brown.

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       Brown would have us adopt an approach to sentencing akin to “serve

one sentence, get one free.”         However, this Court has specifically

disapproved of such an approach.     In Commonwealth v. Hallowell, 604

A.2d 723 (Pa. Super. 1992), the defendant argued that he should receive

credit for the same period of pre-sentence incarceration served on two

unrelated criminal incidents.    This Court rejected Hallowell’s argument,

stating this would give defendant “a windfall in sentencing for a completely

unrelated crime.   This court does not deal in ‘volume discounts.’”    Id. at

726.

       Similarly, Brown would have us grant a windfall for his time served for

the above-mentioned federal crimes. This double credit argument has been

rejected. Id.; see also Commonwealth v. Merigris, 681 A.2d 194, 195

(Pa. Super. 1996) (stating 42 Pa.C.S. § 9760 bars defendant from receiving

credit against more than one sentence for time served).

       Accordingly, we hold that Brown’s probationary sentence did not

commence until his release from federal custody on September 26, 2013.

Because Brown committed retail theft during his probationary period, his

crime was a violation of that probation.     Therefore, the trial court acted

within its discretion when it revoked Brown’s probation and resentenced him

to 48 months’ reporting probation.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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