Com. v. Brown, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARIANNA D. BROWN :
:
Appellant : No. 406 MDA 2023
Appeal from the Judgment of Sentence Entered February 17, 2023
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000799-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARIANNA DESIREE BROWN :
:
Appellant : No. 407 MDA 2023
Appeal from the Judgment of Sentence Entered February 17, 2023
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003398-2020
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: DECEMBER 5, 2023
Arianna Desiree Brown appeals from the judgment of sentence imposed
following revocation of her probation for technical violations. Upon review,
we affirm in part and vacate in part.
Briefly, Brown was serving probation sentences for involvement in two
unrelated crimes, a 2017 burglary, 799 CR 2018, and 2020 arson 3398 CR
2020. The burglary took place in November 2017, when Brown, along with
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two other individuals, broke into their neighbor’s apartment and stole a 50-
inch TV, Playstation-4, cell phones, vacuum cleaner, air conditioner, and
furniture. After the victim reported the break in, the police called Brown in
for questioning. She told the police what transpired and admitted her
involvement. Brown was arrested.
On March 15, 2019, [Brown] pled guilty to burglary and criminal
conspiracy to commit burglary.[1] The applicable sentencing
guidelines for burglary, a felony of the 1st degree, provided for a
standard range of six (6) to fourteen (14) months, with a
mitigated range to probation and an aggravated range to twenty
(20) months. For criminal conspiracy, also a felony of the 1st
degree, the standard range was three (3) to twelve (12) months,
with a mitigated range to probation and an aggravated range to
eighteen (18) months. [The court] immediately imposed terms of
two (2) years of Intermediate Punishment [(“IP”)] at each count
[concurrent], within the mitigated range of the guidelines.
VOP Court Opinion, 3/23/23, at 1 (excessive capitalization omitted).
The arson charges arose on February 13, 2020, while Brown was still
serving her IP sentences imposed in the burglary case. Brown flicked her
cigarette ashes in a partially full bathroom trashcan in the duplex where she
lived but accidentally dropped the whole cigarette in it. It caught on fire and
got out of control. Instead of going to a neighbor’s to call 911, Brown left and
went to a store to call 911. When she returned, the building was on fire.
Brown was arrested.
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1 18 Pa.C.S.A. §§3502 (a)(2) and 903.
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On November 4, 2021, [Brown] pled guilty to arson and causing
or risking catastrophe.[2] The applicable sentencing guidelines for
arson, a misdemeanor of the 1st degree, provided for a standard
range of three (3) to fourteen (14) months, with a mitigated range
to probation and an aggravated range to seventeen (17) months.
For causing or risking catastrophe, a felony of the 3rd degree, the
standard range was six (6) to sixteen (16) months, with a
mitigated range to three (3) months and an aggravated range to
nineteen (19) months. [The court] immediately imposed a term
of not less than eleven and one-half (11 1/2) nor more than
twenty-three (23) months in Dauphin County Prison for arson, a
sentence within the standard range, and five (5) years of
consecutive probation for causing or risking catastrophe, a
sentence outside the guidelines below the mitigated range.
[Brown was immediately paroled.]
On the same date as the guilty plea and sentencing [in the arson
case], we also found [Brown] in violation of her [IP] in the
burglary case]. We resentenced her for burglary to five (5) years
of probation and imposed no sentence for criminal conspiracy.
On May 24, 2022, we issued a bench warrant for [Brown] based
upon alleged violations of probation. The warrant was served
upon [Brown] on July 1, 2022 [and she was taken to jail]. [Brown]
was scheduled for revocation hearings in each of the ensuing five
(5) months, July, August, September, October, and November,
and each time she refused to leave her [jail] cell at Dauphin
County Prison and attend those hearings. On December 22, 2022,
the sixth (6th) scheduled revocation hearing, [Brown] once again
failed to attend. While no evidence was presented at that time
attributing [Brown’s] absence to her refusal, [Brown’s] counsel
informed the court that [Brown] refused to leave her cell to meet
with her the previous day. Accordingly, we determined it
appropriate to proceed with the hearing in absentia.
Prior to imposing sentence, we noted that we had the benefit of a
Presentence Investigation Report (PSI) and that [Brown] had
participated in its preparation. The PSI was made part of the
record. [In the burglary case], on the sole remaining count of
____________________________________________
2 18 Pa.C.S.A. §§ 3301(e) and 3302(b).
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burglary, we imposed a term of incarceration of not less than four
(4) nor more than twenty (20) years in a state correctional
institution. [In the arson case], we declined to revoke [Brown’s]
parole for arson and closed that count. However, at the second
count, causing or risking catastrophe, we resentenced [Brown] to
five (5) years of probation to be served consecutively to the
incarceration sentence imposed [in the burglary case].
On January 20, 2023, [Brown] filed a [petition to file a post-
sentence motion nunc pro tunc]. We granted that [m]otion on
January 23, 2023. [Brown] then filed a timely [post-sentence
motion nunc pro tunc] on January 27, 2023, requesting a new
revocation hearing at which [Brown] would be present. On
January 31, 2023, we granted [Brown’s] request, vacated the
sentence imposed on December 22, 2022, and scheduled a new
revocation hearing.
On February 17, 2023, [Brown] appeared for the revocation
hearing and was represented by counsel. We heard testimony
from [Brown’s] Probation Officer regarding the following alleged
violations of her probation:
a) [Brown] violated Condition Five (5), by failing to attend
and successfully complete treatment. Specifically, [Brown]
was enrolled in treatment with Pennsylvania Counseling
Services and Mazzitti & Sullivan but failed to follow through
with either program.
b) [Brown] violated Condition Nine (9), by failing to notify
her Probation Officer of a change of address. Specially,
[Brown’s] Probation Officer went to her approved address
on May 11, 2022, and learned that [she] had left that
residence approximately one (1) month before and had not
returned.
c) [Brown] violated Condition Ten (10), by failing to report
to the Probation Office as scheduled. [Brown] failed to
report as scheduled on April 14, 2022, and May 5, 2022.
d) [Brown] violated the special condition that she comply
with all recommended mental health treatment. Specifically,
although [Brown] participated in an intake meeting with
TEAMCare, she neglected to follow through with the
prescribed treatment. Furthermore, following
hospitalizations in February and March of 2022, [Brown]
was released with the recommendation to participate in a
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partial hospitalization program. She failed to attend any
such program; and
e) [Brown] violated the special condition that she reside only
at her mother’s residence.
We, once again, made the PSI part of the record. [Brown] was
afforded the opportunity to speak and only chose to address her
failure to appear at the previous revocation hearings. We then
imposed the same exact sentence as had been imposed on
December 22, 2022.
VOP Court Opinion, 3/23/23, at 1-4 (footnotes and citations omitted).
Brown filed another post-sentence motion, which the VOP court denied.
Brown filed these timely appeals.3 Brown and the court complied with
Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Brown raises the following three issues:
I. Whether the [VOP] court abused its discretion when it sentenced
[] Brown to a period of total incarceration [] of 4-20 years [in the
burglary case] when [] Brown committed no new crime, her
violations were technical, she was unlikely to commit a new crime,
and such action was unnecessary to vindicate the [c]ourt's
authority.
II. Whether the [VOP] court abused its discretion in fixing the
period of incarceration at 4-20 years [in the burglary case], when
the [VOP] court fixed a statutory maximum period of parole or
incarceration when this period of incarceration is excessive and
unreasonable considering her rehabilitative needs.
III. Whether the [VOP] court abused its discretion when it imposed
a consecutive period of probation [in the arson case], after a
maximum period of either incarceration or parole affixed [in the
burglary case] when [] [Brown’s] rehabilitative needs and
society's interest in punishment could be accomplished by the
sentence [in the burglary case].
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3 Upon Brown’s unopposed application, we consolidated her appeals.
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Brown’s Brief at 7.
Brown challenges the discretionary aspects of the sentence imposed
after her probation was revoked. A challenge to the discretionary aspects of
a sentence, following probation revocation, does not entitle an appellant to
review as of right; rather, such a challenge must be considered a petition for
permission to appeal. See Commonwealth v. Kalichak, 943 A.2d 285, 289
(Pa. Super. 2008). Before reaching the merits of a discretionary sentencing
issue, we must 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 [the] appellant's
brief has a fatal defect, [by failing to include a Pa.R.A.P. 2119(f)
statement]; and (4) whether there is a substantial question that
the sentence appealed from is not appropriate under the
Sentencing Code, [see] 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal
citation and brackets omitted).
Here, Brown satisfied the first three requirements under Moury.
Accordingly, we must determine whether she raised a substantial question.
In her Rule 2119(f) statement, Brown first claims that the trial court
abused its discretion by imposing a sentence of total confinement following
revocation of probation solely based on technical violations. Brown’s Brief at
19. The imposition of a sentence of total confinement after revocation of
probation for a technical violation, and not a new criminal offense, implicates
the “fundamental norms which underlie the sentencing process” raising a
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substantial question. Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.
Super. 2010); Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa.
Super. 2006) (claim that particular probation revocation sentence is excessive
in light of its underlying technical violations can present a question that this
Court should review).
Brown also claims that the court abused its discretion and did not
adequately consider her rehabilitative needs when it imposed an excessive
sentence of 4 to 20 years’ incarceration in the burglary case and a consecutive
5-year period of probation in the arson case without considering her mental
health issues. Brown’s Brief at 19-20. “[A]n excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question.” Commonwealth v. Caldwell, 117
A.3d 763, 770 (Pa. Super. 2015) (en banc).
Lastly, Brown claims that the court abused its discretion by imposing a
consecutive sentence of probation which was excessive. A court's exercise of
discretion in imposing a sentence concurrently or consecutively does not
ordinarily raise a substantial question. Commonwealth v. Mastromarino,
2 A.3d 581, 587 (Pa. Super. 2010). However, this Court has held that a
challenge to the excessiveness of consecutive sentences imposed following
revocation of probation, together with a claim that a trial court failed to
consider rehabilitative needs and mitigating factors upon fashioning the
sentence, presents a substantial question. Commonwealth v. Swope, 123
A.3d 333, 340 (Pa. Super. 2015).
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Therefore, we will address Brown's sentencing claims.
This Court has stated:
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.
In determining whether a sentence is manifestly excessive, the
appellate court must give great weight to the sentencing court's
discretion, as he or she is in the best position to measure factors
such as the nature of the crime, the defendant's character, and
the defendant's display of remorse, defiance, or indifference.
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. [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. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014)
(quotations and citations omitted).
When imposing a probation revocation sentence, the trial court must
follow the general principle that the sentence be “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(b). Additionally, where probation has
been revoked, a sentence of total confinement may only be imposed if:
(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.A. § 9771(c). In all cases where the trial court resentences an
offender following revocation of probation, the trial court must place its
reasons for the sentence on the record. 42 Pa.C.S.A. § 9721(b);
Commonwealth v. Cartrette, 83 A.3d 1030, 1040–1041 (Pa. Super. 2013).
“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 1282–1283.
Brown first claims that the VOP court abused its discretion when it
imposed an excessive sentence of total confinement based only on technical
violations. Specifically, Brown argues that she did not commit a new crime;
there were insufficient grounds to demonstrate that she was likely to commit
a new crime; or that incarceration was necessary to vindicate the court’s
authority. Instead, she maintains that her violations, which amounted to
failure to report and an inability to adjust to mental health treatment, were
related to her ongoing mental health and not an extension of her underlying
crimes. Brown’s Brief at 23-24. As such, Brown claims that the court should
not have imposed a sentence of total confinement.
We have held that, “[t]echnical violations can support revocation and a
sentence of incarceration when such violations are flagrant and indicate [a
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resistance] to reform.” Commonwealth v. Carver, 923 A.2d 495, 498 (Pa.
Super. 2007). However, we have rejected lengthy incarceration sentences
imposed solely based upon technical violations of probation on grounds of
unreasonableness. Commonwealth v. Williams, 69 A.3d 735 (Pa. Super.
2013); Commonwealth v. Parlante, 823 A.2d 927 (Pa. Super. 2003). Given
this Court's highly deferential standard of review, such relief should be
afforded only in rare cases. Commonwealth v. Walls, 926 A.2d 957, 964
(Pa. 2007).
Here, the VOP court based its sentence of total confinement on the
likelihood that Brown would commit a new crime and strongly disagreed with
Brown’s “bald claim” that she was unlikely to do so. VOP Court Opinion,
3/23/23, at 8. The court explained:
This is not a case where [Brown] incurred very minor violations
but otherwise demonstrated her amenability to probation
supervision and the efficacy of that form of supervision for her
rehabilitative needs. She failed to successfully engage in the most
important aspects of her rehabilitation. She failed to attend
counseling at two (2) different providers. She failed to live where
she was directed to live. She failed to keep her probation officer
informed of her whereabouts. She failed to attend to her mental
health treatment. She failed to report to her Probation Officer.
We believe [Brown’s] violations are at least as flagrant as those
discussed [] in [Commonwealth v. Capellini, 650 A.2d 1220(Pa. Super. 1997)] and are at least as indicative of an inability to
reform.
Furthermore, [Brown’s] claim that this abysmal adjustment to
probation supervision does not evidence a likeliness to commit a
new crime is curious considering her own history. [Brown] would
presumably have us examine her case in a vacuum limited to only
those violations that were before the [c]ourt on February 17,
2023. However, understanding [Brown’s] rehabilitative needs
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requires us to dig deeper than the immediate present. It only
requires a glance into the very recent past to see that this was not
[Brown’s] first time being revoked [in the burglary case], and that
she had committed the crimes [in the arson case] while being
supervised on [IP]. . . . [W]e find it likely that [Brown’s] inability
to conform to probation would lead to the commission of new
criminal offenses, as it did previously.
Id. at 8-9.
Given this explanation, we conclude that the VOP court did not abuse its
discretion in sentencing Brown to total confinement after revocation of her
probation. The court provided logical reasons for its finding that Brown’s
conduct indicated she was likely to commit another crime if not incarcerated.
Additionally, the court had a PSI, which it noted and made part of the
record. Although the court did not reference anything specifically from the
PSI, we observe that the report indicated Brown’s risk for recidivism was high.
It also indicated that her criminal attitudes/behavior patterns were moderate.
These findings support the court’s conclusion that Brown was likely to
reoffend.
Brown argues, however, that to impose a sentence of total incarceration
based solely on technical violations, there must be a relationship between the
probation violation and the underlying crime, i.e., likelihood of committing the
same type of offense, or the violations show the defendant does not care to
follow any court conditions. Brown’s Brief at 27. For support, Brown cites
Cappellini supra. There, the defendant pled guilty to various drug offenses.
Following revocation of probation, the court imposed a sentence of
incarceration. On appeal, this Court agreed that the defendant’s continued
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drug use, his claim he was drug free, combined with his resistance to
treatment and supervision, was sufficient to find that, unless incarcerated, the
defendant would likely commit another crime. Cappellini, 690 A.2d at 1225.
We agree that the court may consider the relationship between the
probation violation and the underlying offense when imposing a VOP sentence.
However, there is no absolute rule that the technical violations must relate
back to the underlying crimes, as Brown claims, for the court to impose a
sentence of total confinement. Rather, the Legislature set forth the bases for
doing so. See 42 Pa.C.S.A. § 9771(c). Here, as noted above, the VOP court
articulated a logical and proper basis for sentencing Brown to a term of total
confinement. Furthermore, Brown demonstrated that she does not care to
follow the court’s conditions. We, therefore, conclude that the court did not
abuse its discretion when it sentenced Brown to a term of total confinement.
In her second issue, Brown claims that the VOP court abused its
discretion, when it imposed a sentence of 4-20 years’ incarceration as unduly
excessive, given the nature of her violations and her mental health issues.
Brown’s Brief at 31. Although she acknowledges that the court could have
imposed a sentence of 10 to 20 years for the burglary alone, Brown argues
that the leap from a mitigated range sentence to a minimum sentence of 4
years’ incarceration, for only technical violations, was excessive. Id. at 31-
32. Additionally, Brown maintains that imposition of the statutory maximum
was likewise excessive. Id. at 34-35.
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Regarding the minimum sentence imposed following revocation, the
VOP court explained that Brown’s claim:
fails to account for the severity of [her] offenses and the
applicable sentencing guidelines. [Brown] was convicted of two
(2) [first degree felonies, a third-degree felony, and a first-degree
misdemeanor]. Burglary, arson, and risking catastrophe are all
crimes of victimization which carry a significant safety risk to
individuals and the community. If we had merely sentenced
[Brown] within the standard range of the sentencing guidelines
we could have imposed a minimum term of incarceration of fifty-
six (56) months. This would have been eight (8) months more
than the term ultimately imposed.
We do not believe it unfair to [Brown] to consider all the charges
of which she was convicted rather than merely the charges on
which we resentenced her on February 17, 2023. It is not as if
[Brown] successfully served her sentences at the conspiracy and
arson counts. We chose to impose no further sentence for
conspiracy at the [VOP hearing] on November 4, 2021, and we
chose to close the arson count rather than recommit [Brown] for
the unexpired portion of that sentence [at the revocation hearing
on February 17, 2023, ultimately]. We demonstrated mercy, as
we did when we imposed mitigated range sentences [in the
burglary case].
VOP Court Opinion, 3/23/23, at 9 (footnote omitted) (excessive capitalization
omitted). The court noted that “[a]lthough the sentencing guidelines are not
applicable to sentences imposed following the revocation of probation,
Commonwealth v. Fish, 752 A.2d 921, 924 (Pa. Super. 2000), we believe
they are relevant to demonstrate the reasonableness of the sentences
imposed relative to what could have been-imposed at the initial sentencing.”4
Id.____________________________________________
4 We observe that this is no longer the case in light of the recently enacted
Resentencing Guidelines. See discussion infra.
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Given the VOP court’s rationale for Brown’s minimum sentence, we
conclude that it did not abuse its discretion. Notably, 4 years’ incarceration is
well below the 10-year sentence she could have received for the burglary.
Further, considering Brown’s likelihood of recidivism, the court’s escalation of
sanctions was not unreasonable. And although Brown’s minimum sentence
was harsher than she desired, "[a court] does not necessarily abuse its
discretion in imposing a seemingly harsh post-revocation sentence where the
defendant originally received a lenient sentence and then failed to adhere the
conditions imposed on [them]." Commonwealth v. Schutzues, 54 A.3d 86,
99 (Pa. Super. 2012). We, therefore, conclude that the VOP court did not
abuse its discretion when it imposed Brown’s minimum sentence.
Regarding Brown’s maximum sentence, the VOP court noted that the
maximum sentence for burglary was 20 years. The maximum sentence for
causing or risking catastrophe was 7 years. As such, the court emphasized
that Brown’s sentence of 20 years did not exceed what it originally could have
imposed. VOP Court Opinion, 3/23/23, at 7.
However, we observe that, other than noting what it could have
imposed, the VOP court did not explain its reason for imposing a 20-year
maximum sentence. It simply imposed the maximum without consideration
of anything more. While we recognize that Brown did not raise an issue
regarding the court’s failure to specify on the record its reasons for doing so,
the court’s lack of explanation hampers our understanding, and therefore our
review, of why it imposed such a lengthy sentence.
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Notwithstanding this, we acknowledge that the VOP court could have
imposed a total maximum sentence of 27 years, but it imposed a 20-year
maximum sentence. Although this is below the aggregate maximum, it is still
a very substantial sentence. This is particularly so given that the court failed
to identify any relevant factors. See Parlante supra.As noted above, the VOP court had a PSI. As such, we typically
“presume that the [] court was aware of relevant information regarding
[appellant's] character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Bonner, 135 A.3d 592,
605 (Pa. Super. 2016), appeal denied, 145 A.3d 161 (Pa. 2016). However,
although the VOP court referenced the report at the hearing, it did not
comment on anything contained in it or seemingly consider any of the
information about Brown’s background indicated therein. The court did not
mention Brown’s age, terrible childhood, history of trauma, lack of education,
the nonviolent nature of her crimes, or most critically, Brown’s mental health
issues.
The PSI indicated that Brown was diagnosed with bi-polar disorder,
anxiety, and depression. She received SSD for her bi-polar disorder,
demonstrating that it is significant. The PSI also indicated that Brown does
not take her medication correctly or consistently. The PSI recommended that
she have an updated mental health evaluation. Despite this information, the
VOP court failed to address any of it in relation to Brown’s violations or her
rehabilitative needs.
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The VOP court’s failure to consider and address this significant
mitigating factor in any way, along with other factors, when it resentenced
Brown, fails to comply with our goal of individualized sentencing. This is
further compounded by the court’s failure to provide any reason for the
substantial maximum sentence. We therefore find that Brown’s maximum
sentence was unreasonable. See Parlante, 823 A.2d at 930-31. As such,
we conclude that the VOP court’s imposition of a 20-year statutory maximum
sentence constituted an abuse of discretion. Although our review is highly
deferential, the circumstances of this case preclude us from deferring to the
VOP court and require us to remand for resentencing.
In her third issue, Brown claims that the VOP court’s consecutive
sentence of probation imposed in the arson case was excessive. Brown argues
that, by imposing this sentence on top of a maximum period of incarceration
or parole in the burglary case, the VOP court crafted a supervision scheme of
25 years, which would subject her to supervision into her fifties. Brown
maintains that this is not warranted because any rehabilitation would be
accomplished by the 20-year sentence. Thus, according to Brown, such a
sentencing scheme constitutes too severe a punishment. Brown’s Brief at 35-
37.
In imposing this sentence, the VOP court explained that it was hopeful
that the sentence in the burglary case would serve Brown well and rehabilitate
her. However, because the court was uncertain if she would be paroled, it did
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not want her to be released from her 20-year sentence to the street without
any type of supervision. VOP Court Opinion, 3/23/23, at 10.
Initially, we observe that the recently enacted Resentencing Guidelines,
204 Pa. Code §§ 307.1-307.4, apply to Brown’s probation revocation in the
arson case.5 In relevant part, they provide:
(a) For a technical violation resulting in the revocation of an
order of probation, the resentencing guidelines shall be the
same as the initial sentencing guidelines . . . with
consideration given to any service of the original sentence.
Id. at § 307.3
Here, the initial guidelines for causing or risking catastrophe were: a
mitigated range up to three (3) months; a standard range six (6) to sixteen
(16) months; and aggravated range up to nineteen (19) months of
incarceration. Thus, the five-year sentence of probation fell within the initial
guidelines and, therefore, was consistent with the Resentencing Guidelines.
Regarding the consecutive nature of this sentence, we have long held
that a sentencing court has broad discretion as to whether a defendant serves
sentences consecutively or concurrently. Commonwealth v. Zirkle, 107
A.3d 127, 133 (Pa. Super. 2014).
Here, the court’s desire that Brown have supervision if she is not paroled
is logical to ensure that she can manage being in society after potentially being
incarcerated for so long. Nevertheless, we conclude that this consecutive
____________________________________________
5 The Resentencing Guidelines apply to revocation of probation for offenses
committed on or after January 1, 2020.
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sentence following the lengthy maximum sentence imposed in the burglary
case is excessive. As Brown argues, she will be subjected to supervision into
her fifties. However, if on remand, a lesser maximum sentence is imposed in
the burglary case, a consecutive sentence of probation may not be
unreasonable depending on its duration.
Having found that Brown’s sentence, in part, was manifestly excessive,
we conclude that it constituted an abuse of discretion. We therefore remand
this matter for resentencing.
Judgment of sentence affirmed in part and vacated. Case remanded for
resentencing consistent with this memorandum. Jurisdiction relinquished.
Judge Dubow and Judge Nichols concur in result.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/5/2023
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