NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA LAMARR M. BROWN, v. Appellant No EDA 2012 Appeal from the Judgment of Sentence entered November 2, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR BEFORE: ALLEN, OTT, and COLVILLE,* JJ. MEMORANDUM BY ALLEN, J.: FILED SEPTEMBER 20, 2013 Lamarr M. Brown ( Appellant ) appeals from the judgment of sentence imposed following the revocation of his probation and parole. We affirm. follows: The trial court detailed the pertinent facts and procedural history as Appellant was arrested on August 28, 2010 and charged with simple assault, reckless endangerment, discharge of a firearm into an occupied structure, conspiracy, violations of the Uniform Firearms Act, attempted murder, aggravated assault and possession of an instrument of crime. Bail was set at $200, Appellant did not post bail. On March 7, 2011, [A]ppellant appeared before the [trial court] and entered a negotiated plea to conspiracy, discharging a firearm into an occupied structure and possession of an instrument of crime in exchange for a sentence of 6-23 months incarceration with immediate parole, followed by 4 years probation [F.N *Retired Senior Judge assigned to the Superior Court.

2 Pa.C.S. 903, 18 Pa.C.S , 18 Pa.C.S. 907]. On September 5, 2011, [A]ppellant was arrested and charged with possession of a controlled substance. On October 28, 2011, a violation hearing was scheduled, but was continued until December 2, 2011, pending resolution of the open charge. In the interim, [A]ppellant s parole was continued and he was ordered to report to his parole officer biweekly. On December 2, 2011, [A]ppellant failed to appear and a bench warrant was issued. On December 9, 2011, [A]ppellant was taken into custody pursuant to the bench warrant where he remained until his release on parole on April 23, [F.N. 2. The new charges were withdrawn on March 7, 2012]. On July 7, 2012, [A]ppellant was again arrested and charged with possession and possession with intent to deliver a controlled substance, marijuana, and the [trial court] lodged a detainer on July 9, On July 27, 2012, the Commonwealth filed a motion to proceed with the violation hearing pursuant to Commonwealth v. Daisey Kates. On November 2, 2012, the Daisey Kates hearing was conducted. Appellant s probation officer, Reba Sor, who had been supervising [A]ppellant for more than a year, testified under oath to the information outlined above which had been provided to the [trial court] in [A]ppellant s hearing summary. Police Officer Jason Yerjes testified that on July 7, 2012, he had arrested [A]ppellant after finding him in possession of 45 packets of marijuana. Following the hearing, [A]ppellant was found in technical violation of his probation. After hearing argument from both counsel for [A]ppellant and the [C]ommonwealth], [A]ppellant was sentenced to 2-5 years incarceration. 1 Trial Court Opinion, 3/22/13, at The trial court sentenced Appellant to 2 to 5 years of imprisonment for conspiracy (F-3), a concurrent 2 to 5 years for discharge of a firearm into an occupied structure (F-3), and a concurrent 2 to 5 years for possession of an instrument of crime (M-1)

3 Appellant filed a motion for reconsideration of his sentence, which the trial court denied on December 6, This appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P Appellant presents one issue for our review: DID THE [TRIAL] COURT ERR IN SENTENCING APPELLANT TO A NEW SENTENCE OF 2 TO 5 YEARS INCARCERATION WHERE APPELLANT WHO WAS ON PAROLE SHOULD HAVE BEEN RECOMMITTED TO JAIL TO SERVE THE BALANCE OF THE SENTENCE PREVIOUSLY IMPOSED? Appellant s Brief at 3. Appellant claims that his sentence is illegal because the trial court imposed a new sentence of 2 to 5 years, based on Appellant s violation of the conditions of his parole. He argues that parole violators can only be sentenced to serve the remainder of the sentence that was initially imposed, and that it was impermissible for the trial court to impose a new sentence for a parole violation. Appellant s Brief at Appellant asserts that the trial court s imposition of a new sentence is illegal and should be vacated. See Commonwealth v. Galletta, 864 A.2d 532, 538 (Pa. Super. 2004) (following revocation of parole the court is not free to give a new sentence; rather, upon revocation of parole, the only sentencing option available is recommitment to serve the balance of the term initially imposed). The trial court, however, disagreed. The trial court explained that at the November 2, 2012 hearing, it revoked both Appellant s probation and his parole. Trial Court Opinion, 3/22/13, at

4 Our Supreme Court has clarified the sentencing alternatives available following revocation of probation versus revocation of parole as follows: [A] court faced with a violation of probation may impose a new sentence so long as it is within the sentencing alternatives available at the time of the original sentence. 42 Pa.C.S. 9771(b) ( Upon revocation [of probation] the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation. ). In contrast, a court faced with a parole violation must recommit the parolee to serve the remainder of the original sentence of imprisonment, from which the prisoner could be reparoled. Commonwealth v. Holmes, 933 A.2d 57, 74, n.5 (Pa. 2007) (emphasis added). Here, the trial court made clear that at the November 2, 2012 hearing, it revoked both Appellant s parole and his probation, based upon offenses committed while Appellant was on parole but before the commencement of his probationary period. The trial court explained: [A]ppellant s matter involved revocation of both the parole and probation. The fact that [A]ppellant had not commenced serving probation when the new offense occurred did not prevent the [trial] court from revoking the prior order placing [A]ppellant on probation. The [trial] court has the authority to revoke [A]ppellant s probation despite the fact that, at the time of the revocation of probation, [A]ppellant had not yet begun to serve the probationary portion of the split sentence and even though the offense upon which revocation of probation was based occurred during the parole period and not the probationary period. Commonwealth v. Ware, 737 A.2d 251, 253 (Pa. Super. 1999) citing Commonwealth v. Wendowski, 420 A.2d 628 (1980) (If at any time before the defendant has completed the maximum period of probation or before he has begun service of his probation (emphasis in original) he should commit offenses of such nature as to demonstrate to the court he is unworthy of probation, and the granting of same would not - 4 -

5 be in subservience to the interests of justice and the best interests of the public, or the defendant, the court could revoke or change the order of probation). Moreover, upon revocation of probation, the sentencing alternatives available to the [trial] court are the same as were available at the time of the initial sentencing, due consideration being given to the time spent serving the order of probation. Commonwealth v. Crump, 995 A.2d 1280, 1285 (Pa. Super. 2010). Trial Court Opinion, 3/22/13, at 3-4. We agree with the trial court. In Commonwealth v. Ware, 737 A.2d 251 (Pa. Super. 1999), we held that the trial court had the authority to revoke appellant's probation despite the fact that, at the time of revocation of probation, appellant had not yet begun to serve the probationary portion of her split sentence and even though the offense upon which revocation of probation was based occurred during the parole period and not the probationary period. Ware, 737 A.2d at 253. We explained that [t]he fact that appellant had not commenced serving probation when the new offense occurred did not prevent the court from revoking its prior order placing appellant on probation. Id. quoting Commonwealth v. Dickens, 475 A.2d 141 (Pa. Super. 1984). See also Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000) ( sentencing court had the authority to revoke [the defendant s] probation despite the fact that [the defendant] was on parole at the time and had not yet begun her probationary term ). In such circumstances, the trial court ha[s] proper authority to revoke not only appellant's parole, but also to revoke appellant's probation. Moreover, once the court revoke[s] appellant's probation, it ha[s] the same sentencing - 5 -

6 options available that existed at the time of the original sentencing. Ware, 737 A.2d at 254. Thus, in the present case, the trial court had the authority to revoke both Appellant s probation and parole for the violations he committed while on parole, but before the commencement of his probationary period. Following revocation of Appellant s probation, the trial court had the authority to impose a new sentence of three concurrent 2 to 5 year terms of imprisonment. See Holmes supra ( a court faced with a violation of probation may impose a new sentence so long as it is within the sentencing alternatives available at the time of the original sentence ). 2 For the foregoing reasons, we affirm the judgment of sentence. Judgment of sentence affirmed. Judgment Entered. Prothonotary Date: 9/20/ The statutory maximum sentence for conspiracy and discharge of a firearm into an occupied structure, both felonies of the first degree, is seven years. See 18 Pa.C.S.A , 18 Pa.C.S.A and 18 Pa.C.S.A. 905 (a). The statutory maximum for Appellant s conviction of possession of an instrument of crime is five years. See 18 Pa.C.S.A. 907(a) and 1104(1)

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