Com. v. Brooke, A., Jr. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ALBERT EDWARD BROOKE, JR. :
:
Appellant : No. 540 MDA 2021
Appeal from the Judgment of Sentence Entered April 21, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000614-2016
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 12, 2021
Appellant, Albert Edward Brooke, Jr., appeals from the judgment of
sentence of 3½ to 7 years’ incarceration, imposed after his term of probation
was revoked based on technical violations. Herein, Appellant challenges the
discretionary aspects and legality of his sentence. After careful review, we
affirm in part, and vacate in part.
On September 20, 2016, Appellant pled guilty to corruption of a minor
(COM), 18 Pa.C.S. § 6301(A)(1)(ii), and unlawful contact with a minor (UCM),
18 Pa.C.S. § 6318(A)(4). He was sentenced to 3 to 23 months’ incarceration
for his COM offense, and a consecutive term of 3 years’ probation for his UCM
conviction. While serving parole for his COM crime, Appellant violated the
conditions thereof. He was resentenced to serve the remaining 10 months’
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* Retired Senior Judge assigned to the Superior Court.
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and 22 days’ incarceration for that offense, as well as the consecutive term of
3 years’ probation originally imposed for his UCM crime.
Appellant was released on January 20, 2021, and began serving his term
of probation. On March 10, 2021, the Dauphin County Adult Probation
Department lodged a detainer against Appellant based on his violating the
terms of his probation. On April 21, 2021, a revocation hearing was
conducted. There, it was established that, while serving his probationary
sentence, Appellant
began corresponding with a woman in a very sexual manner.
Appellant inquired about her children and how old they were.
These communications were done through Facebook. Appellant
was not permitted to use social media. Appellant was [also found
to be] in possession of pornography when he was not permitted
to possess any type of pornography.
Trial Court Opinion (TCO), 6/30/21, at 2. Based on this conduct, the court
revoked Appellant’s probation and resentenced him to 3½ to 7 years’
imprisonment for his UCM conviction.
Appellant filed a timely post-sentence motion, asserting that the court
imposed an unduly harsh sentence without considering his history and
characteristics, and without stating adequate reasons on the record to support
the sentence. He also claimed that conditions imposed as part of his sentence
– namely, that sex-offender conditions apply, Appellant may not use social
media, he may not contact minors, and he must submit to a mental health
evaluation – are illegal under Commonwealth v. Mears, 972 A.2d 1210 (Pa.
Super. 2009). See Post-Sentence Motion, 4/26/21, at 1-2. The court did not
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rule on Appellant’s post-sentence motion before he filed a timely notice of
appeal within thirty days of his judgment of sentence following the revocation
of his probation.1 Appellant thereafter complied with the trial court’s order to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,
and the court filed a Rule 1925(a) opinion. Herein, Appellant states two issues
for our review:
[I.] Whether the trial court imposed a manifestly excessive [and]
unreasonable [sentence], and [committed] an abuse of
discretion[,] where the court imposed a sentence of [3½] to [7]
years in state prison without considering the history and
characteristics of [Appellant]?
[II.] Whether the conditions imposed by the trial court, including,
sex[-]offender conditions, no social media, no contact with
minors, and a mental health evaluation, are impermissible and
illegal sentences[,] as the court imposed a state sentence?
Appellant’s Brief at 5 (underlining omitted).
Appellant first contends that the court erred by imposing a term of
incarceration for a technical violation of his probation without adequately
considering his history and characteristics. This issue implicates the
discretionary aspects of his sentence.
Such a challenge to the discretionary aspects of a sentence is not
appealable as of right. Rather, [an a]ppellant must petition for
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1 Pursuant to Pa.R.Crim.P. 708(E), Appellant’s motion to reconsider did not
toll the thirty-day period to file an appeal from the sentence imposed following
revocation. See Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa.
Super. 2003) (“An appellant whose revocation of probation sentence has been
imposed after a revocation proceeding has 30 days to appeal her sentence
from the day her sentence is entered, regardless of whether or not she files a
post-sentence motion.”).
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allowance of appeal pursuant to 42 Pa.C.S.[] §
9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.
Super. 2004).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal
is timely; (2) whether [the a]ppellant preserved his issue;
(3) whether [the a]ppellant’s brief includes a [Pa.R.A.P.
2119(f)] concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects
of sentence; and (4) whether the concise statement raises
a substantial question that the sentence is appropriate
under the sentencing code. The third and fourth of these
requirements arise because [an a]ppellant’s attack on his
sentence is not an appeal as of right. Rather, he must
petition this Court, in his concise statement of reasons, to
grant consideration of his appeal on the grounds that there
is a substantial question. Finally, if the appeal satisfies each
of these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)
(citations omitted); see also Commonwealth v. Kalichak, 943
A.2d 285, 289 (Pa. Super. 2008) (“[W]hen a court revokes
probation and imposes a new sentence, a criminal defendant
needs to preserve challenges to the discretionary aspects of that
new sentence either by objecting during the revocation sentencing
or by filing a post-sentence motion.”).
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014).
Here, Appellant preserved his claim in his post-sentence motion, and he
filed a timely notice of appeal. Additionally, he has included a Rule 2119(f)
statement in his brief. Moreover, Appellant’s claim that the trial court
sentenced him to a term of total confinement 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
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which underlie the sentencing process.’”); Commonwealth v. Sierra, 752
A.2d 910, 913 (Pa. Super. 2000); Commonwealth v. Malovich, 903 A.2d
1247, 1253 (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[.]”). Accordingly, we will
consider the merits of Appellant’s sentencing challenge.
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. Simmons, 56 A.3d 1280, 1283–84 (Pa.
Super. 2012).
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.
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super.
2003).
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. 42 Pa.C.S.[] § 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). However, 42 Pa.C.S.[] § 9771(c)
provides that once probation has been revoked, a sentence of total
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confinement may only be imposed if any of the following
conditions exist:
(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.
42 Pa.C.S.[] § 9771(c).
“In addition, in all cases where the court resentences an offender
following revocation of probation ... the court shall make as a 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
[and] [f]ailure to comply with these provisions shall be grounds
for vacating the sentence or resentence and resentencing the
defendant.” Commonwealth v. Cartrette, 83 A.3d 1030, 1040–
1041 (Pa. Super. 2013) (internal quotations omitted); 42 Pa.C.S.
§ 9721(b). “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.
Colon, 102 A.3d at 1042-44.
Here, Appellant claims that the court fashioned an excessive sentence
without taking into account his history and characteristics. However, he does
not identify any specific facts about his history, or personal characteristics that
he possesses, which call for a lesser sentence. Instead, he focuses his
argument on the nature of his technical violation of probation, claiming that
the “court failed to consider that Appellant’s relationship was with a consenting
adult[,]” and that the pornography he possessed was “explicit photographs of
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this woman….” Appellant’s Brief at 16. He insists that these facts bely the
court’s conclusion that he poses a risk of reoffending. Id.Appellant did not preserve, in his post-sentence motion or Rule 1925(b)
statement, his claim that the facts underlying his technical violation of
probation show that he does not pose a risk of reoffending, thus warranting a
lesser sentence. He also argues, for the first time on appeal, that “the punitive
measures inherent in [the court’s] sentencing scheme could have been
accomplished with the imposition of a lesser sentence….” Appellant’s Brief at
18. Because Appellant did not raise these issues before the sentencing court,
or in his Rule 1925(b) statement, they are waived. See Commonwealth v.
Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (“[I]ssues challenging
the discretionary aspects of a sentence must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to
a discretionary aspect of a sentence is waived.”) (citation omitted); Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).
In regard to the claim that Appellant did preserve, i.e., that “the [c]ourt
abused its discretion and imposed an unduly harsh, maximum sentence,
without considering the history and characteristics of Appellant[,]” we deem
his argument meritless. Rule 1925(b) Statement, 5/19/21, at 1
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(unnumbered).2 Aside from vaguely claiming that his rehabilitative needs
called for a lesser sentence, Appellant does not explain exactly what about his
history or personal characteristics the court failed to adequately consider.
Moreover, the trial court noted that it “presided over Appellant’s original
sentencing and 2017 revocation. Thus, [the c]ourt was in possession of the
information provided in the original sentencing proceedings, including the
Sexual Offender’s Assessment Board report.” TCO at 4. Accordingly, the
record supports that the court was aware of Appellant’s history and
characteristics. The court explains that it fashioned his sentence of
imprisonment because “he violated his terms of probation twice by engaging
in risky behavior that puts him at risk for reoffending. [The c]ourt found a
term of incarceration necessary to prevent Appellant from reoffending.” Id.Appellant has not convinced us that the court’s sentencing decision was an
abuse of discretion.
Next, Appellant claims that the conditions imposed by the court as part
of his sentence are illegal. In support, he relies on our decision in Mears for
the proposition that the Pennsylvania Board of Probation and Parole (PBPP)
has the exclusive authority to determine the conditions of a defendant’s
parole. See Mears, 972 A.2d at 1212. Appellant insists that he “is subject
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2 Appellant also raised, in his Rule 1925(b) statement and in his Statement of
Questions Presented, that the court did not state sufficient reasons on the
record for his sentence. See id.; Appellant’s Brief at 5. However, he offers
no argument on that claim in his brief, thus abandoning it for our review.
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to the jurisdiction of the Department of Corrections and all conditions issued
by the trial court are invalid as an illegal sentence.” Appellant’s Brief at 21.
Initially, we observe that “[t]he matter of whether the trial court
possesses the authority to impose a particular sentence is a matter of legality
[of the sentence].” Commonwealth v. Dennis, 164 A.3d 503, 510 (Pa.
Super. 2017) (citation and quotation marks omitted). Furthermore,
[i]f no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence
must be vacated. In evaluating a trial court’s application of a
statute, our standard of review is plenary and is limited to
determining whether the trial court committed an error of law.
Commonwealth v. Leverette, 911 A.2d 998, 1001-02 (Pa. Super. 2006)
(citations omitted).
This Court has held that where the trial court imposes a maximum
imprisonment sentence of two or more years, the PBPP has exclusive authority
over the terms of the defendant’s parole. See 61 Pa.C.S. § 6132; see also
Commonwealth v. Coulverson, 34 A.3d 135, 141 (Pa. Super. 2011)
(recognizing “that ‘the [PBPP] has exclusive authority to determine parole
when the offender is sentenced to a maximum term of imprisonment of two
or more years’”) (quoting Mears, 972 A.2d at 1211 (additional citation
omitted)). Therefore, a trial court does not have statutory authority to impose
conditions on a state parole sentence, and “‘any condition the sentencing court
purport[s] to impose on [a defendant’s] state parole is advisory only.’”
Coulverson, 34 A.3d at 141-42 (quoting Mears, 972 A.2d at 1211 (additional
citation omitted)); see also 61 Pa.C.S. § 6134(b)(1), (2). However, unlike
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the statutes relating to total confinement, section 9754(b) of the Sentencing
Code authorizes trial courts to impose conditions on a defendant’s probation
sentence. See 42 Pa.C.S. § 9754(b); see also Commonwealth v. Koren,
646 A.2d 1205, 1209 (Pa. Super. 1994) (stating that a “sentencing court can
order a no-contact condition on probation,” as long as “that condition is
reasonably calculated to aid in the defendant’s rehabilitation”).
In this case, Appellant was not sentenced to probation and, because the
court imposed a sentence of imprisonment greater than two years, the PBPP
has exclusive authority over the terms of his parole. Therefore, the sentencing
court lacked statutory authority to impose parole conditions upon Appellant.
In its Rule 1925(a) opinion, the trial court explains that “the conditions
referenced by this [c]ourt during sentencing were advisory to the [PBPP].”
However, the court did not merely ‘reference’ suggested parole conditions at
the revocation and resentencing hearing. Instead, the court explicitly stated
that it was ordering those conditions. See N.T. Revocation/Resentencing,
4/21/21, at 9-10. Moreover, the court’s written sentencing order states as
follow:
AND NOW, this 21st day of April 2021, on Count 3, we will do
three and a half to seven years in state prison, a fine of $50 plus
costs. We will order the sex offender conditions. We will order
absolutely no Facebook, social media, or any device. We will order
absolutely no contact with children under 18, any child. We will
order the … sex offender special conditions, as well as state parole
sex offender conditions. We will give him the time credit of nine
months and three days, June 6th of 2020 to January 20th of
[20]21; and March 2 of [20]21 to today’s date.
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Sentencing Order, 4/21/21, at 1 (entered on 4/28/21). In an abundance of
caution, we must consider this record as indicating that the conditions stated
by the court are part of Appellant’s sentence, rather than just advisory
suggestions for the PBPP. Because no statutory authority exists for the court
to impose such conditions, we vacate that portion of the court’s sentencing
order, and affirm Appellant’s judgment of sentence in all other respects.
Judgment of sentence affirmed in part, vacated in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2021
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