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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYLIEFF BROWN, :
:
Appellant : No. 3398 EDA 2016
Appeal from the Judgment of Sentence September 23, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0001530-2008
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 06, 2018
Kylieff Brown (“Brown”) appeals from the judgment of sentence
imposed following the revocation of his probation. We affirm.
On May 29, 2012, Brown entered a negotiated guilty plea, at CP-51-
CR-0010456-2009 (“No. 10456-2009”), to robbery and criminal conspiracy,1
and at CP-51-CR-0001530-2008 (“No. 1530-2008”), to possession with
intent to deliver a controlled substance (“PWID”)2 and criminal conspiracy.
Pursuant to the plea agreement, the trial court sentenced Brown, at No.
10456-2009, to two concurrent terms of 2 to 5 years in prison, and at No.
1530-2008, to two concurrent terms of 3 years of probation, to be served
consecutive to the sentence imposed at No. 10456-2009.
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1 18 Pa.C.S.A. §§ 3701, 903.
2 35 P.S. § 780-113(a)(30).
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In December 2013, while serving parole at No. 10456-2009, Brown
was arrested and charged with various offenses. Following a jury trial,
Brown was convicted of PWID. On September 9, 2016, the trial court
sentenced Brown to a term of 40 to 80 months in prison for his new PWID
conviction.3
The trial court conducted a Gagnon II4 hearing on September 23,
2016, during which Brown was found to be in violation of his probation at
No. 1530-2008. As a result of the violation, the trial court revoked Brown’s
probation, and sentenced him, at No. 1530-2008, to two consecutive terms
of 2 to 4 years in prison, to be served consecutive to the sentence imposed
for his 2016 conviction.
On September 28, 2016, Brown filed a pro se Notice of Appeal.
Brown, through counsel, filed a timely Petition to Reconsider Sentence. On
October 24, 2016, before the trial court ruled on his Petition to Reconsider
____________________________________________
3 The sentence imposed following his 2016 conviction is not at issue in the
instant appeal.
4 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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Sentence, Brown filed a timely, counseled Notice of Appeal.5, 6 The trial
court subsequently ordered Brown to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and Brown timely complied.
On appeal, Brown raises the following questions for our review:
I. Did [] the [trial] court abuse its discretion in ordering [Brown]
to serve an aggregate four to eight years [of] incarceration[,]
consecutive to a forty to eighty month sentence[,] where it did
not consider [Brown’s] rehabilitative needs or the nature of the
violation[,] and further failed to list reasons for its sentence on
the record?
II. Did [] the [trial] court’s sentencing procedure violate
[Brown’s] due process rights by failing to provide him written
notice of the nature of the claimed violations of probation before
his Gagnon II hearing?
Brief for Appellant at 4.
In his first claim, Brown asserts that the trial court abused its
discretion by imposing a manifestly excessive aggregate sentence, and
“failed to balance the nature of the violation of supervision with his
rehabilitative needs.” Id. at 13. Brown points out that the 2016 conviction
was his first violation of probation, and claims that the trial court should
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5 On November 21, 2016, this Court issued an Order dismissing Brown’s
first, pro se Notice of Appeal.
6 Because the 30th day following the imposition of Brown’s revocation
sentence fell on a Sunday, Brown’s Notice of Appeal, filed the following day,
was timely. See 1 Pa.C.S.A. § 1908; see also Pa.R.Crim.P. 708(E)
(providing that the filing of a motion to modify a sentence imposed following
the revocation of probation will not toll the 30-day appeal period).
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have considered Brown’s needs for drug treatment, employment, and
continued education. Id. at 14. Additionally, Brown argues that the trial
court failed to adequately state, on the record, its reasons for imposing the
sentence. Id. at 18.
Brown’s claim challenges the discretionary aspects of his sentence
imposed following the revocation of his probation. “Challenges to the
discretionary aspects of sentencing do not entitle an appellant to review as
of right.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
2010).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
We conduct a four-part analysis to determine: (1) whether the
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 the appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether the sentence
appealed from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
***
The determination of what constitutes a substantial question
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.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
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In the instant case, Brown filed a timely Notice of Appeal, preserved
his claims in his Petition to Reconsider Sentence, and included in his
appellate brief a separate Rule 2119(f) Statement. Accordingly, we will
review Brown’s Rule 2119(f) Statement to determine whether he has raised
a substantial question.
In his Rule 2119(f) Statement, Brown contends that his “sentence is
longer than what is necessary to protect the public or to address [his]
rehabilitative needs[,]” and that the trial court failed to adequately weigh the
gravity of the offense. Brief for Appellant at 11. Brown claims that, because
the trial court ordered that Brown serve his probation revocation sentence
consecutive to his sentence for the 2016 conviction, his aggregate sentence
is excessive. Id. at 11-12. Additionally, Brown asserts that the trial court
“failed to state adequate reasons on the record to explain this sentence and
why it was ordered to run consecutive.” Id. at 12.
Taken together, Brown’s claims raise a substantial question. See
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015)
(concluding that a “challenge to the imposition of [] consecutive sentences
as unduly excessive, together with [a] claim that the court failed to consider
[] rehabilitative needs and mitigating factors upon fashioning its sentence,
presents a substantial question.”); see also Commonwealth v. Catrette,
83 A.3d 1030, 1042 (Pa. Super. 2013) (stating that a claim that the trial
court imposed a sentence that is inconsistent with the gravity of the
violation, the need for public protection, or an appellant’s need for
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rehabilitation raised a substantial question); Commonwealth v. Parlante,
823 A.2d 927, 929 (Pa. Super. 2003) (concluding that claims that trial court,
after revoking probation, imposed a sentence that was grossly
disproportionate to the crimes, failed to consider appellant’s background and
the nature of the offenses, and failed to provide adequate reasons for the
sentence on the record raised a substantial question). Thus, we will
consider the merits of Brown’s claims.
Our standard of review is well-settled:
The imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court,
which, absent an abuse of that discretion, will not be disturbed
on appeal. An abuse of discretion is more than an error in
judgment—a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (citation
omitted).
The reason for this broad discretion and deferential
standard of appellate review is that the sentencing court is in the
best position to measure various factors and determine the
proper penalty for a particular offense based upon an evaluation
of the individual circumstances before it. Simply stated, the
sentencing court sentences flesh-and-blood defendants and the
nuances of sentencing decisions are difficult to gauge from the
cold transcript used upon appellate review. Moreover, the
sentencing court enjoys an institutional advantage to appellate
review, bringing to its decisions an expertise, experience, and
judgment that should not be lightly disturbed.
The sentencing court’s institutional advantage is, perhaps,
more pronounced in fashioning a sentence following the
revocation of probation, which is qualitatively different than an
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initial sentencing proceeding. At initial sentencing, all of the rules
and procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a defendant
appears before the court for sentencing proceedings following a
violation of the mercy bestowed upon him in the form of a
probationary sentence. For example, in such a case, contrary to
when an initial sentence is imposed, the Sentencing Guidelines do
not apply, and the revocation court is not cabined by Section
9721(b)’s requirement that “the sentence imposed should call for
confinement that is consistent with the protection of the public,
the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of
the defendant.” 42 Pa.C.S.A. § 9721.
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (some citations
and quotation marks omitted).
Upon revocation of probation, a sentencing court may choose from any
of the sentencing options that existed at the time of the original sentence,
including incarceration. 42 Pa.C.S.A. § 9771(b). However, the imposition of
total confinement upon revocation requires a finding that either “(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.” Id. § 9771(c).
Moreover, “[i]n every case in which the court … resentences an
offender following revocation of probation, … the court shall make as part of
the record, and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed.” Id. § 9721(b); see
also Pa.R.Crim.P. 708(D)(2) (providing that “[t]he judge shall state on the
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record the reasons for the sentence imposed.”). However, following
revocation of probation, a sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence or specifically reference the
statutes in question. See Pasture, 107 A.3d at 28 (stating that “since the
defendant has previously appeared before the sentencing court, the stated
reasons for a revocation sentence need not be as elaborate as that which is
required at initial sentencing.”).
Here, the trial court sentenced Brown to two consecutive terms of 2 to
4 years in prison following the revocation of his probation. Brown’s post-
revocation sentence is within statutory bounds, and is based on a new
criminal charge. See 42 Pa.C.S.A. § 9771(b), (c). Moreover, at the
Gagnon II hearing, the prosecutor indicated that Brown was still serving his
parole at the time of the 2016 conviction. See N.T., 9/23/16, at 6. The
prosecutor also noted that Brown had committed four disciplinary infractions
while he was in state prison, and an additional four infractions since he had
been in custody. See id. at 14. Additionally, Brown testified that while he
was reporting, all of his drug tests were negative; he had two jobs; and he
was going to school part-time. See id. at 11.
Further, the trial court stated that it was imposing the sentence it
would have imposed for the underlying conviction, had it not accepted the
negotiated guilty plea. See id. at 16. In its Opinion, the trial court also
noted that Brown’s plea agreement for the underlying charge “afforded
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[Brown] a substantial benefit by his not having to now face a violation of
probation on the robbery charge.” Trial Court Opinion, 6/23/17, at 12. The
trial court stated that “[Brown], by his actions, has demonstrated that he is
prone to violence and poses a risk to society.” Id. at 13.
Based upon the foregoing, we conclude that the record confirms that
the trial court was provided with sufficient information to make a fully
informed sentencing decision following the revocation of Brown’s probation.
Additionally, we conclude that Brown’s aggregated post-revocation sentence
of 4 to 8 years in prison is not manifestly excessive, and “the court was free
to impose the sentence consecutively to his other sentences for the crimes
he committed while on probation.” Swope, 123 A.3d at 341. Discerning no
abuse of discretion by the trial court, we will not disrupt Brown’s sentence on
appeal.
In his second claim, Brown argues that his due process rights were
violated because he did not receive adequate written notice of the alleged
probation violations prior to the Gagnon II hearing. Brief for Appellant at
21. Brown claims that he received written notice on the day of the hearing,
and therefore, he was denied adequate time to prepare for the hearing. Id.
at 22.
“Without question, [Brown] was entitled to written notice of the
revocation hearing, and adequate time to prepare for it.” Commonwealth
v. King, 430 A.2d 990, 991 (Pa. Super. 1981) (citing Gagnon, supra).
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However, a claim concerning improper notice and inadequate time to
prepare may be waived if a defendant fails to raise objections during the
probation revocation hearing. See King, 430 A.2d at 991 (citing
Commonwealth v. Collins, 424 A.2d 1254, 1254 (Pa. 1981), and holding
that objections not raised during a counselled revocation proceeding will not
be considered on appeal).
Our review of the transcripts reveals that Brown did not enter any
objections at the hearing, nor did he specifically allege that he had been
given inadequate notice by the sentencing court. Thus, Brown’s second
claim is waived. See King, supra; see also Collins, 424 A.2d at 1254.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/18
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