Opinion
J-S71037-16 No. 2095 EDA 2015
03-15-2017
COMMONWEALTH OF PENNSYLVANIA v. MARK BROWN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 7, 2011 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0400851-2002 BEFORE: BOWES, PANELLA, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Mark Brown, appeals nunc pro tunc from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following revocation of his probation. Appellant challenges the discretionary aspects and legality of his revocation sentence. We affirm.
We adopt the facts and procedural history set forth by the trial court's opinion. See Trial Ct. Op., 3/17/16, at 1-3. Appellant raises the following issues on appeal:
I. Was the sentence imposed by the trial court, which was 5 to 10 years in state prison followed by 10 years['] probation, unjust, improper, manifestly unreasonable, and an abuse of discretion because the sentence imposed of total incarceration plus 10 years['] probation was contrary to the fundamental norms which underlie the sentencing process?
II. Was the sentence imposed by the trial court illegal because including the initial sentence of the court on the robbery offense of 11 ½ to 23 [months' imprisonment], the entire sentence imposed was longer than the maximum authorized allowable sentence of 20 years?Appellant's Brief at 2.
In his first issue, Appellant's challenges the discretionary aspects of his revocation sentence. Appellant argues his revocation sentence of five to ten years' imprisonment, followed by ten years' probation, is manifestly excessive. Appellant further alleges the court failed to consider mitigating factors, including Appellant's age, rehabilitative needs, family history, that he was gainfully employed while on probation, and that he remained crime-free for the majority of his probation. Appellant concludes this Court should vacate his judgment of sentence. We conclude Appellant is not entitled to relief.
Appellant preserved his discretionary aspects of sentencing issue by filing a post-sentence motion and notice of appeal nunc pro tunc, including a Pa.R.A.P. 2119(f) statement in his brief, and alleging that his discretionary aspects claims raised a substantial question. See Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super. 2006).
After careful consideration of Appellant's brief, the record, and the decision of the trial court, we affirm Appellant's discretionary aspects issue on the basis of the trial court's opinion. See Trial Ct. Op. at 4-11 (finding: (1) Appellant demonstrated that he was not amenable to probation when he committed new offenses; (2) Appellant originally pleaded guilty to first-degree robbery, first-degree aggravated assault, and criminal conspiracy, which each carried a maximum sentence of twenty years' imprisonment; (3) at the time of his original guilty plea, the plea/sentencing court had the statutory authority to sentence Appellant to a total of forty years' imprisonment; (4) the trial court imposed a reasonable sentence of five to ten years' imprisonment, followed by ten years' probation for all offenses; (5) before imposing Appellant's revocation sentence, the court considered all relevant factors, including the number of victims harmed by Appellant's criminal conduct, the manner in which he committed the crimes, the protection of society, Appellant's mental aptitude, employment history, prior criminal record, the sentencing guidelines, statutory maximums, and the factors set forth in 42 Pa.C.S. § 9721(b), such as Appellant's age, rehabilitative needs, and family history; (6) the court also balanced the interests of both society and Appellant in determining that his conduct indicated that probation was not an effective means by which to accomplish rehabilitation and deter future criminal conduct; (7) the court was not required to order a pre-sentence investigative report and a mental health evaluation; (8) the court had the opportunity to review Appellant's probation history, as well as his demeanor during several court proceedings; (9) the court properly revoked Appellant's sentence; (10) Appellant's claim lacks merit because the court had sufficient information to determine a reasonable sentence after revoking Appellant's probation).
In his second issue, Appellant argues his revocation sentence for robbery is illegal because his revocation sentence of five to ten years' imprisonment followed by ten years' probation combined with his original sentence of confinement, eleven-and-one-half to twenty-three months, exceeds the statutory maximum of twenty years for a first-degree felony. Appellant concludes this Court should vacate his judgment of sentence. We conclude Appellant is not entitled to relief.
See 18 Pa.C.S. § 1103(1). --------
"The issue of whether a sentence is illegal is a question of law and our scope of review is plenary." Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa. Super. 2010) (citation omitted).
Our statutory and case law are clear. Subsequent to revocation of probation, the sentencing court has available to it all the options permissible at the time of initial sentencing, giving due consideration to the time spent serving the order of probation. As long as the new sentence imposed does not exceed the statutory maximum when factoring in the incarcerated time already served, the sentence is not illegal. Additionally, the sentencing court cannot give a new split sentence where the period of incarceration and period of probation exceed the statutory maximum.Id. at 1285 (citations and quotation marks omitted). Nevertheless, "a defendant who had previously served time on a split sentence and was subsequently sentenced to the maximum term after revocation of his probation was entitled to credit for time served for his original period of incarceration." Id. at 1284-85 (citing Commonwealth v. Williams , 662 A.2d 658, 659 (Pa. Super. 1995)).
Here, Appellant was originally sentenced to eleven-and-one-half to twenty-three months' imprisonment for robbery. Upon revocation, the court resentenced Appellant on the robbery offense to five to ten years' imprisonment, followed by ten years' probation. Although combining these sentences would subject Appellant to a sentence beyond the twenty-year statutory maximum for a first-degree felony, the court granted Appellant credit for all time served upon imposing his revocation sentence. See N.T., 6/7/11, at 22. Therefore, Appellant's revocation sentence for robbery is not illegal, as it does not exceed the statutory maximum. See Crump , 995 A.2d at 1284-85. Accordingly, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/15/2017
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