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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FRANK BROWN, :
:
Appellant : No. 937 EDA 2019
Appeal from the Judgment of Sentence Entered March 1, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007605-2015
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 29, 2020
Frank Brown (“Brown”) appeals from the judgment of sentence imposed
following the revocation of his probation. We vacate and remand for
resentencing.
On January 12, 2017, Brown pled guilty to possession with intent to
deliver a controlled substance, conspiracy, and possession of an instrument of
crime.1 On the same day, he was sentenced to an aggregate term of 9 to 23
months in prison, followed by two years of probation.
Following his release, Brown was arrested on December 15, 2017, and
charged with persons not to possess a firearm (the “Firearm Arrest”). The
Commonwealth withdrew the charge in April 2018. The trial court held a
probation violation hearing related to the Firearm Arrest on April 26-27, 2018
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1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903, 907(a).
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(the “First Hearing”). At the hearing, the Commonwealth stated that it had
withdrawn the firearm charges based on its determination that the predicate
for the traffic stop that led to the discovery of the firearm was insufficient.
The hearing was continued until the next day, where, after a sidebar
discussion, the trial court stated, “[i]nasmuch as the open matter has been
withdrawn, we will mark this probation to continue and the detainer will be
lifted.” N.T., 4/27/18, at 4. The trial court also issued an accompanying Order
continuing Brown’s probation, and lifting his detainer. Order, 4/27/18.
On September 12, 2018, while he was still on probation, Brown was
again arrested and charged with possession with intent to deliver a controlled
substance, and other related offenses (the “Drug Arrest”). On November 27,
2018, the Commonwealth withdrew the charges. A probation violation hearing
was held on January 4, 2019 (the “Second Hearing”). At the hearing, the trial
court reviewed Brown’s record and the circumstances underlying the Drug
Arrest, and noted that the record listed the Firearm Arrest. The trial court
stated that it was unsure of the status of Brown’s probation in light of the
Firearm Arrest, and continued the hearing in order to gather more information
on the circumstances of the Firearm Arrest.
The revocation hearing reconvened on February 15, 2019, during which
the Commonwealth presented testimony from the arresting officer regarding
the circumstances of the prior Firearm Arrest. Brown objected to the trial
court’s consideration of the Firearm Arrest, based on the trial court’s prior
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disposition at the First Hearing to continue Brown’s probation, and moved to
suppress the evidence of the firearm that police had found in Brown’s
possession during the Firearm Arrest.
On March 1, 2019, the trial court denied Brown’s Motion to suppress the
firearm, and found that Brown had violated his probation on the basis of his
non-compliance with drug treatment and vocational training, as well as the
Firearm Arrest and the Drug Arrest. On the same day, the trial court issued
an Order revoking Brown’s probation, and sentenced Brown to a term of 2 to
4 years in prison, followed by 3 years of probation. Brown filed a Motion for
reconsideration, which the trial court denied. Brown filed a timely Notice of
Appeal.2
Brown raises the following issues for our review:
1. Did not the trial court lack authority under 42 Pa.C.S.[A.]
§ 5505 when, after eleven months, it changed [Brown’s] April
2018 revocation hearing disposition of probation to imprisonment,
following a Daisey Kates[3] hearing; and did not the increase in
punishment in violation of statutory law violate double jeopardy
rights under the Pennsylvania and United States Constitutions?
2. Was not the evidence insufficient as a matter of law to establish
a technical violation of probation, based upon [the Firearm
Arrest], where the trial court erroneously denied [Brown’s]
[M]otion to suppress at a Daisey Kates hearing related to that
arrest?
3. Did not the trial court’s revocation hearing on January 4,
2019[,] and resultant sentence imposed on March 1, 2019[,]
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2 The trial court did not order Brown to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
3 See Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973).
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violate [Brown’s] state and federal constitutional right to due
process[,] as he was not provided adequate written notice that his
revocation hearing would be based, in part, upon charges incurred
on December 15, 2017[,] and which were nolle prossed on April
2018 and disposed of at another revocation hearing on April 27,
2018, as required by Gagnon v. Scarpelli, 411 U.S. 778 (1973),
and Morrissey v. Brewer, 408 U.S. 471, 488-[]89 (1972)?
4. Were not [Brown’s] [d]ue [p]rocess rights under the state and
federal Constitutions violated during two Daisey Kates hearings,
inasmuch as the burden for establishing a technical violation of
probation at such hearings should be established by clear and
convincing evidence, rather than a preponderance of evidence?
5. Did not the trial court err and violate the requirements of 42
Pa.C.S.A. § 9771(c) by sentencing [Brown] to total confinement[,]
absent him having been convicted of a new crime, absent any
indication that he was likely to commit a new crime, and absent a
showing that the sentence was “essential to vindicate the
authority of the court”?
6. Did not the [trial] court err as a matter of law and violate the
discretionary aspect[s] of sentencing when it imposed a
manifestly excessive and unreasonable sentence, inasmuch as the
[trial] court did not state adequate grounds for imposing such a
sentence, such a sentence lacked sufficient support in the
record[,] and such sentence failed to give individualized
consideration to [Brown’s] personal history and background, and
was in excess of what was necessary to address the gravity of the
offense, the protection of the community, and [Brown’s]
rehabilitative needs?
Brief for Appellant at 4-6 (footnote added).
In his first claim, Brown argues that the trial court erred when it changed
its disposition of Brown’s violation of probation by issuing an Order revoking
Brown’s probation more than 30 days after it originally had granted Brown’s
Motion to continue his probation. Id. at 21-22. Brown brings to our attention
that, despite the trial court originally granting his Motion to continue his
probation in April 2018, the trial court proceeded to hold another hearing,
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based on the same conduct, in February 2019, and revoked his probation. Id.
at 21-22. According to Brown, under 42 Pa.C.S.A. § 5505, the trial court
lacked the authority to modify an order more than 30 days after its entry. Id.
at 21.4
Our scope of review over a trial court’s authority to correct a sentencing
error is plenary, and our standard of review is de novo. Commonwealth v.
Kremer, 206 A.3d 543, 547-48 (Pa. Super. 2019). Generally, “a court upon
notice to the parties may modify or rescind any order within 30 days after its
entry, notwithstanding the prior termination of any term of court, if no appeal
from such order has been taken or allowed.” 42 Pa.C.S.A. § 5505. A limited
exception to the 30-day rule exists in cases where there exists a “clear clerical
error” or a “patent and obvious error” in the trial court’s order.
Commonwealth v. Holmes, 933 A.2d 57, 66 (Pa. 2007); Kremer, 206 A.3d
at 548. Our Supreme Court has stated that the trial court’s inherent authority
to correct an error outside of the 30-day period is limited. Holmes, 933 A.2d
at 67. “[A]n alleged error must qualify as a clear clerical error (or a patent
and obvious mistake) in order to be amenable to correction.”
Commonwealth v. Borrin, 12 A.3d 466, 473 (Pa. Super. 2011) (en banc),
aff’d, 80 A.3d 1219 (Pa. 2013). When “a trial court’s stated intentions during
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4 We note that the Commonwealth, in its brief, agrees with Brown’s argument
that the trial court improperly modified his sentence under section 5505 when
it factored the Firearm Arrest into its sentence. Commonwealth’s Brief at 10-
12.
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the sentencing hearing are ambiguous, then the terms of the sentence in the
[signed] sentencing order control, and the trial court cannot correct its
perceived mistake.” Id. (citation omitted).
Here, the trial court held the First Hearing for the purposes of addressing
the Firearm Arrest. The trial court ultimately determined that it would grant
Brown’s Motion to continue his probation in light of the Commonwealth’s
decision to nolle prosse the firearms charges. Several months later, at the
Second Hearing, the trial court, after continuing the hearing to learn more
information about the Firearm Arrest and over Brown’s objection, determined
that Brown had violated his probation and imposed a new sentence based, in
part, on the Firearm Arrest. See N.T., 3/1/19, at 27-28 (wherein the trial
court states that Brown violated his probation “after the finding that he was
in possession of a firearm. … And while on [probation, Brown] sold drugs[,]
carried a firearm and fled from police.”) (emphasis added). The record
confirms that the trial court’s unambiguous intent at the First Hearing was to
continue Brown’s probation in light of the Commonwealth’s decision not to
prosecute the charges arising from the Firearm Arrest. Order, 4/27/18.
Moreover, our review of the record reveals no patent and obvious error in the
trial court’s April 27, 2018 Order to continue Brown’s probation in light of the
Firearm Arrest. Accordingly, we conclude that the trial court improperly
modified Brown’s sentence, beyond the 30-day period permitted in section
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5505, when it factored the Firearm Arrest into its imposition of sentence
following the Second Hearing.5 Borrin, supra.
Because the record demonstrates that the trial court incorporated the
Firearm Arrest into the sentencing scheme imposed at the Second Hearing,
Brown’s sentence is illegal and must be vacated. Accordingly, we vacate the
judgment of sentence in its totality and remand for resentencing, without
consideration of the Firearm Arrest.
Judgment of sentence vacated; case remanded for resentencing with
instructions. The Prothonotary is directed to remand the certified record to
the trial court. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/20
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5 Due to our disposition of Brown’s first issue, we decline to address Brown’s
remaining issues on appeal.
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