J-S37037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRYSTAL BREWINGTON
Appellant No. 3016 EDA 2014
Appeal from the Judgment of Sentence September 22, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000306-2012,
CP-09-0003069-2012
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 20, 2015
Chrystal Brewington appeals from the judgment of sentence imposed
by the Court of Common Pleas of Bucks County, following the revocation of
her probation. Upon review, we affirm.
The trial court set forth the factual and procedural history of this case
as follows:
In 2012 [Brewington] entered guilty pleas in four cases,
numbers 306-2012, 317-2012, 3069-2012, and 2226-2012. In
306-2012, [Brewington] was charged with false alarms to
agencies of public safety, simple assault, resisting arrest, and
disorderly conduct – making unreasonable noise, disorderly
conduct – creating a hazardous or physically offensive condition,
and public drunkenness and similar misconduct. On March 7,
2012, she entered a guilty plea to those offenses and sentencing
was deferred. In 317-2012, [Brewington] was initially charged
with use/possession of drug paraphernalia, public drunkenness
and similar misconduct, and disorderly conduct – creating a
hazardous or physically offensive condition. The Commonwealth
thereafter withdrew the disorderly conduct charge. On March 7,
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2012, [Brewington] entered a guilty plea to the remaining
offenses. Sentencing was deferred. In 3069-2012,
[Brewington] was charged with simple assault and disorderly
conduct-engaging in fighting, threatening, violent or tumultuous
behavior. On June 26, 2012 she entered a guilty plea to those
offenses. Sentencing was deferred. In 2226-2012,
[Brewington] was initially charged with possessing instruments
of crime, theft by unlawful taking, receiving stolen property,
unauthorized use of automobiles and other vehicles, criminal
mischief, disorderly conduct – engaging in fighting, threatening,
violent or tumultuous behavior, and reckless driving. The
Commonwealth thereafter withdrew the theft and receiving
stolen property charges. On June 26, 2012, [Brewington]
entered a guilty plea to the remaining offenses. Sentencing was
deferred.
On August 17, 2012, [Brewington] stood for sentencing in all
four cases. In case number 306-2012, the sentencing guideline
ranges for the lead offenses are: mitigated- ~; standard – RS-9;
aggravated – 12. [Brewington] was sentenced to a term of
probation of five years. In case number 317-2012, the
sentencing guideline ranges for the lead offenses are: mitigated
- ~; standard – RS-2; aggravated – 5. [Brewington] was
sentenced to a term of probation of one year. On case number
3069-2012, the sentencing guidelines for the lead offenses are:
mitigated - ~; standard – RS-12; aggravated – 12.
[Brewington] was sentenced to a term of probation of two years.
As a condition of her probations, [Brewington] was ordered to
continue in mental health and drug and alcohol treatment. On
case number 2226-2012, the sentencing guidelines for the lead
offense set forth the following range of sentences: mitigated –
RS; standard – 3-14; aggravated – 17. [Brewington] was
sentenced to time served to twenty-three months with
immediate parole. All sentences were run concurrent to one
another.
On June 23, 2014, a probation violation hearing was held in case
numbers 306-2012 and 3069-2012 as a result of [Brewington]’s
drug use, failure to take medications as directed, failure to
comply with mental health treatment, multiple police contacts
alleging criminal behavior against an elderly individual and
reports of her driving without a license. [Brewington] agreed
that she was in violation of her probations. It was ordered that
she continue on probation. After that violation hearing,
[Brewington] absconded [supervision]. A warrant was issued for
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her arrest on July 2, 2014. On July 15, 2014, a hearing was
held and [Brewington] was released on recognizance pending
her probation violation hearing. On August 11, 2014,
Brewington appeared before Honorable Diane E. Gibbons and
was found in violation of her probation on both cases. At that
hearing, it was the recommendation of Adult Probation and
Parole that [Brewington] be found in violation of her probations,
that her probations be revoked and that she be resentenced to
eighteen months to thirty-six months to be served in a State
Correctional Facility four months on case number 306-2012 and
to a consecutive term of incarceration of six months to twenty-
four months on case number 3069-2012. Judge Gibbons
deferred sentence for sixty days and ordered Brewington to
attend Penndel Mental Health, take all medications, have no
contact with victim, not to drive, attend all appointments, and
meet all prior conditions.
Trial Court Opinion, 2/12/15, at 1-4 (footnotes omitted).
During her sixty-day sentence deferral, Brewington failed to take her
medications, failed to provide the required residence information and was
once again arrested by the Bristol Police. On September 12, 2014, she was
taken into police custody, after running around a picnic, naked, in front of a
hundred adults and children. She also broke the windshield of a woman’s
car and a teen boy’s headphones. She was charged with two counts of open
lewdness1 and one count of criminal mischief.2
On September 22, 2014, Judge Gibbons sentenced Brewington to an
aggregate sentence of two to five years in a state correctional facility.
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1
18 Pa.C.S. § 5901.
2
18 Pa.C.S. § 3304(a)(2).
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Brewington filed a motion for reconsideration, which was denied.
Brewington filed a timely notice of appeal that same day. She filed a timely
concise statement of errors complained of on appeal on November 12, 2014.
On appeal, Brewington presents two issues for our review:
1. Whether it was a violation of 42 Pa.C.S. § 9771 to impose a
sentence of total confinement for technical violations of
probation; and
2. Whether an aggregate sentence of 24 to 60 months was
manifestly excessive for technical violations of probation?
Appellants’ Brief, at 4.
These claims implicate the discretionary aspects of Brewington’s
sentence, which are not appealable as of right. Rather, an appellant
challenging the sentencing court’s discretion must invoke this Court’s
jurisdiction by satisfying a four-part test. Commonwealth v. Prisk, 13
A.3d 526 (Pa. Super. 2011).
We 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. § 9781(b).
Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006). An appellate court will find a “substantial question” and review the
decision of the trial court only where an aggrieved party can articulate clear
reasons why the sentence imposed by the trial court compromises the
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sentencing scheme as a whole. Commonwealth v. Tuladziecki, 522 A.2d
17 (Pa. 1987).
Here, Brewington has preserved her claim in her motion for
reconsideration, and filed a timely notice of appeal. Brewington has also
included in her brief a concise statement pursuant to Pa.R.A.P. 2119(f). See
Appellant’s Brief at 11. Moreover, Brewington’s claim that the trial court
sentenced her to a term of total confinement in excess of her original
sentence based solely on a technical violation raises a substantial question
for our review. See Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.
Super. 2010) (“The imposition of a sentence of total confinement after the
revocation of probation for a technical violation, and not a new criminal
offense, implicates the ‘fundamental norms which underlie the sentencing
process.’”); Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super.
2000); see also Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa.
Super. 2006) (“[A] claim that a particular probation revocation sentence is
excessive in light of its underlying technical violations can present a question
that we should review.”).
Brewington argues that the court did not provide
reasons on the record pursuant to 42 Pa.C.S. § 9771 to justify total
confinement. Under 42 Pa.C.S. § 9771(c), a court may sentence a
defendant to total confinement subsequent to revocation of probation if any
of the following conditions exist:
(1) the defendant has been convicted of another crime; or
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(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. § 9771(c)(1)-(3).
Brewington asserts that since she was not convicted of a crime at her
violation hearing, there was no evidence that her conduct was indicative that
she would commit another crime or was the sentence necessary to vindicate
the authority of the court. However, at the sentencing hearing, the
Commonwealth presented testimony from Brewington’s probation officer,
Ellyn H. Forquer, detailing violations and difficulties during Brewington’s
sixty-day sentencing deferral:
On August 15th, 2014 Miss Brewington failed to provide proof of
application of residence and was given an extension from [my]
supervisor and she continued to fail to provide verification. On
September 12, 2014, on-call Officer Hearn received a call from
Officer Ed O’Brien of Bristol Township Police. Miss Brewington
was in their custody due to the fact she was running around at a
picnic naked in front of a hundred adults and children. She
broke the windshield of a woman’s car and a teenager’s
headphones. She was charged with two counts of lewdness and
criminal mischief. On September 2nd, 2014 the Children & Youth
case worker reported that the father of Miss Brewington’s son
called her and stated Miss Brewington showed up to the
residence on September 1 at 1:00 o’clock in the morning, which
is a violation of her curfew. September 5th, 2015 while in
custody pending this hearing Miss Brewington incurred three
class one misconducts for disobeying a direct order, insolence,
and abusive language to staff.
Sentencing Hearing, 9/22/14 at 11-13.
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In light of the foregoing, Honorable Diane E. Gibbons concluded that
probation was ineffective in rehabilitating Brewington. At the sentencing
hearing, Judge Gibbons was clear about her reasoning for sentencing
Brewington to a state correctional facility:
I find that we have exhausted all available resources in the
community and we do not have the necessary resources at
Bucks County Correctional Facility in order to deal with what has
been an ongoing and extreme problem, and that only the
resources that are available to address the circumstances that
we have – that we are attempting to deal with on the County
level are only available in the State Correctional Facility.
Sentencing Hearing, 9/22/14, at 22-23.
Judge Gibbons’ finding satisfies the requirement under section 9771
(c)(2). Sentencing was originally deferred on Brewington’s probation
violations to give her one last opportunity to demonstrate that she could
comply with the conditions of her probation and treatment. See Violation of
Probation Hearing, 8/11/14, at 21-25. During that time, Brewington was re-
arrested, clearly demonstrating that “it is likely [s]he will commit another
crime if [s]he is not imprisoned.” 42 Pa.C.S. § 9771(c)(2). The trial court
therefore properly revoked Brewington’s probation and imposed a sentence
of total confinement. The sentence imposed was necessary to prevent
Brewington from continuing to endanger herself and others, is in accordance
with the dictates of section 9771(c), and did not otherwise constitute an
abuse of discretion.
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In her second issue on appeal, Brewington contends that an aggregate
sentence of 24 to 60 months’ imprisonment was manifestly excessive for
technical violations of probation. Brewington argues that one of her
technical violations, failure to take her mental health medication, occurred
because she was pregnant.3 Additionally, Brewington asserts that because
she served almost two years on probation without a violation, the aggregate
sentence was manifestly excessive and should be vacated and remanded for
resentencing. See Appellant’s Brief, at 10.
Upon revoking probation, a sentencing court may choose from any of
the sentencing options that existed at the time of the original sentencing,
including incarceration. See 42 Pa.C.S.A. § 9771 (b). “[U]pon revocation
[of probation] . . . the trial court is limited only by the maximum sentence
that it could have imposed originally at the time of the probationary
sentence.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super.
2013) (internal quotation marks and citations omitted). “A trial court need
not undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court’s consideration of the facts of the crime and
character of the offender.” Crump, 995 A.2d at 1282-83 (Pa. Super. 2010).
____________________________________________
3
Brewington was advised to discontinue the medicine or risk causing her
unborn child to suffer from birth defects.
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At the September 22, 2014 sentencing hearing, Brewington’s
probation officer provided specific sentencing requests:
On 306-2012, we would request that she be found in violation of
her probation, revoke and resentenced to 18-36 months to be
served in a State Correctional Facility. On 3069-2012, find in
violation of probation, revoke and resentenced to 6-24 months in
the State Correctional Facility to run consecutive for the parole
matter on 206-2012. The rationale for this recommendation is
due to the fact that [Brewington] has been afforded numerous
opportunities for treatment in the community. She has been
unsuccessful in the highest level of community care available.
She continues to willfully fail to take her medications and fail to
comply with the directives of her treatment provider, our
department as well as directives from Your Honor. We feel that
she would benefit from a long-term commitment in the
therapeutic community with a continuance of care that can only
be provided at the state level.
Sentencing Hearing, 9/22/14, at 15-16.
Upon review, we discern no abuse of discretion where the trial court
considered the appropriate factors in concluding Brewington’s repeated
attempts at rehabilitation had failed. See Commonwealth v. Simmons,
56 A.3d 1287 (Pa. Super. 2012). Brewington’s conduct reflects a flagrant
disregard for the rehabilitative purpose of the probation program and a lack
of respect for the authority of the court. Brewington continuously violated
the terms of her probation by abusing drugs and alcohol, failing to secure
permanent housing, failing to attend mental health appointments,
disobeying her curfew, and committing other technical violations. Although
Brewington was pregnant and unable to fulfill one of her probation
requirements, she committed multiple other technical violations during the
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span of her probation.4 Based on Brewington’s conduct while on probation,
it was reasonable for the trial court to impose a sentence of total
confinement to vindicate the court’s authority5 and provide Brewington with
access to long-term mental health and drug treatment that is only available
in the state system.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2015
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4
See N.T. Violation of Probation Hearing, 8/11/14 at 3-4, 8-9; N.T.
Sentencing Hearing, 9/22/14 at 4-6, 11-15.
5
See 42 Pa.C.S. § 9771(c)(3).
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