Commonwealth v. Brown
Commonwealth v. Brown
Opinion
Stephen Brown (a/k/a Rodney Greene) appeals from the judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, after he violated his probation by committing retail theft. Upon review, we affirm Brown's judgment of sentence.
The trial court summarized the facts as follows:
On April 10, 2005, [Brown] used the victim "P.R.'s" identity to open Chase Visa (charging $1200.00) and Sears credit cards (charging $1632.02), [ ] on several occasions identified himself as the complainant[,] and used Western Union to transfer money ($245.00) in the complainant's name. [Brown] also used complainant's identity to obtain phone service and provided complainant's identifying information for two traffic court citations. On November 3, 2005, police executed a search warrant on [Brown's] apartment and recovered credit cards, a driver's license, and check stubs in the names of the victims along with identification for multiple victims; the police also recovered blank police and district attorney office letterhead.
On April 9, 2007, [Brown] entered into a guilty plea to felony-three identity theft, 18 Pa.C.S. § 4120.... [Brown] was sentenced pursuant to his plea agreement to 11 ½ to 23 months['] incarceration with immediate parole, followed by four years['] reporting probation.
Trial Court Opinion, 6/11/15 at 1-2.
After sentencing, Brown was released on parole. The following day, April 10, 2007, Brown was taken into federal custody. On June 23, 2008, Brown pled guilty in federal court to three counts of mail fraud, 1 three counts of identity theft, 2 two counts of access device fraud, 3 three counts of aggravated identity theft, 4 and two counts of forgery of signatures of judge or court officer. 5 Brown was sentenced to 27 months' incarceration followed by 3 years of supervised release. Brown was released on September 26, 2013, from federal custody.
On April 24, 2014, Brown was arrested for retail theft. On March 9, 2015, he pled guilty to the charge and was sentenced to 30 days' probation. On April 7, 2015, Judge Chris R. Wogan held a violation of probation hearing with respect to Brown's 2007 conviction. Judge Wogan found that Brown's state probation did not begin until his release from federal custody on September 26, 2013, and, thus, his conviction for retail theft was a direct violation of that probation. Accordingly, Brown's probation was revoked and he was resentenced to 48 months of reporting probation and a $250.00 fine.
On April 10, 2015, Brown filed a notice of appeal from his probation revocation sentence and, on April 13, 2015, the court *186 ordered him to file a Pa.R.A.P.1925(b) concise statement of errors complained of on appeal within 21 days. On April 30, 2015, Brown filed a request for an extension to file his Rule 1925(b) statement, claiming that the notes of testimony from his violation of probation (VOP) hearing were not yet available. The court granted the extension until May 13, 2015. On May 13, 2015, counsel filed a second request for an extension, which was denied. The following day, the notes of testimony from the VOP hearing became available and, on May 19, 2015, Brown filed his Rule 1925(b) statement. A separate petition was filed requesting that the court accept the statement of errors nunc pro tunc. The trial court denied the petition and ruled that the Rule 1925(b) statement was therefore untimely.
Before we address the issue raised on appeal, we resolve a preliminary procedural matter. Instantly, the trial court found that Brown's Rule 1925(b) statement was not timely filed. While this often requires remand, where the trial court addresses the issues raised in an untimely Rule 1925(b) statement, we need not remand but may address the issues on their merits.
See
Commonwealth v. Thompson,
On appeal, Brown raises one issue for our review:
Did not the trial court err in finding Mr. Brown in violation of his probation, insofar as his probation had already expired long before the date of the purported violation?
Brief for Appellant, at 3.
The main thrust of Brown's appeal is that his probationary period began to run on December 26, 2008, at the conclusion of his 11 ½ to 23 month state incarceration sentence. Therefore, he claims his four-year probation sentence concluded on December 26, 2012, well before he committed the offense forming the basis for his violation on April 24, 2014. Specifically, Brown contends that his time spent in federal custody should count towards his state sentence. However, the trial court did not credit the federal time towards his state sentence, reasoning that Brown was released from Federal custody on September 26, 2013, and, thus, from that date his state probation sentence began to run. As such, Brown's retail theft was committed within the time he was serving his probation sentence and, thus, was a direct probation violation.
The issue on appeal concerns a question of law; thus, our scope of review is plenary and our standard of review is
de
*187
novo.
Commonwealth v. Mullins,
"No section of the Sentencing Code contemplates imprisonment as an element of a probationary sentence; probation is in fact a
less restrictive alternative
to imprisonment directed at rehabilitating the defendant without recourse to confinement during the probationary period."
Commonwealth v. Basinger,
Moreover, in
Commonwealth v. Allshouse,
The Allshouse court cited the following federal statute:
§ 3564. Running of a term of probation
(b) Concurrence with other sentences.-Multiple terms of probation, whether imposed at the same time or at different times, run concurrently with each other. A term of probation runs concurrently with any Federal, State, or local term of probation, supervised release, or parole for another offense to which the defendant is subject or becomes subject during the term of probation. A term of probation does not run while the defendant is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than thirty consecutive days.
While
Allshouse
may be factually distinguishable from the instant matter, we find its reasoning persuasive. As previously stated, probation rehabilitates a defendant in a less restrictive manner than total confinement.
Basinger,
Brown would have us adopt an approach to sentencing akin to "serve one sentence, get one free." However, this Court has specifically disapproved of such an approach. In
Commonwealth v. Hollawell,
Similarly, Brown would have us grant a windfall for his time served for the above-mentioned federal crimes. This double credit argument has been rejected.
Id.; see also
Commonwealth v. Merigris,
Accordingly, we hold that Brown's probationary sentence did not commence until his release from federal custody on September 26, 2013. Because Brown committed retail theft during his probationary period, his crime was a violation of that probation. Therefore, the trial court acted within its discretion when it revoked Brown's probation and resentenced him to 48 months' reporting probation.
Judgment of sentence affirmed.
18 U.S.C. § 1028A(a)(1).
We note that the trial court acknowledges that a delay in the transcription of notes of testimony is generally considered "good cause" warranting an enlargement of time to file a Rule 1925(b) statement.
See
Trial Court Opinion, 6/11/15, at 3-4 n. 1. However, the court denied Brown's second request for an extension, stating that "the notes were not necessary in this basic VOP case."
The Department of Corrections aggregated the sentences for his first and second convictions pursuant to 42 Pa.C.S. § 9757, which mandates automatic aggregation of sentences once a trial court imposes a consecutive sentence.
Commonwealth v. Ford-Bey,
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee v. Stephen J. BROWN, Appellant.
- Cited By
- 51 cases
- Status
- Published