providing that recusal must first be sought and ruled upon by the trial court
How later courts described this case
- providing that recusal must first be sought and ruled upon by the trial court
Written by the judges who cited it.
The opinion
J-S27020-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK BROWN :
:
Appellant : No. 1651 EDA 2023
Appeal from the Judgment of Sentence Entered April 27, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009516-2008
BEFORE: LAZARUS, P.J., NICHOLS, J., and COLINS, J. *
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 18, 2024
Appellant Frank Brown appeals from the judgment of sentence imposed
following his convictions for robbery and related offenses. On appeal,
Appellant challenges the discretionary aspects of his sentence. After review,
we conclude that Appellant’s sentence is illegal, and that we are constrained
to vacate the judgment of sentence and remand for resentencing.
A prior panel of this Court summarized this case as follows:
[Appellant] was originally sentenced to an aggregate term of
seven to 14 years’ incarceration with 20 years’ probation after he
was convicted of multiple offenses, including robbery and firearms
not to be carried without a license, stemming from the robbery of
a ninety-one-year-old woman and her daughter-in-law.
[Appellant] eventually filed a petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, and the
matter was reassigned to a different trial judge due to the
retirement of the judge who had originally sentenced [Appellant].
The reassigned trial court denied [Appellant’s] PCRA petition. This
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S27020-24
Court, however, vacated [Appellant’s] judgment of sentence,
which included a mandatory minimum, after concluding it was
illegal pursuant to Alleyne v. United States, 570 U.S. 99 (2013).
See Commonwealth v. Brown, 193 A.3d 1054, 1524 EDA 2017
(Pa. Super. filed June 7, 2018) (unpublished memorandum)
(“Brown II”).
We remanded for resentencing, and the matter was assigned to
the same trial court which had denied [Appellant’s] PCRA petition
(“sentencing court”). The sentencing court ordered a presentence
investigation (“PSI”) report and a mental health evaluation, and it
scheduled a resentencing hearing for August 29, 2018. At the
hearing, the sentencing court recounted in great detail that
[Appellant] had incurred a slew of misconducts while he had been
in prison, and those misconducts demonstrated to the court that
[Appellant] had not been rehabilitated. It also interpreted
[Appellant’s] allocution as disparaging to the court. The court
proceeded to resentence [Appellant] to 12 to 35 years’
incarceration, followed by 15 years of reporting probation.
[Appellant] “did not respond with an abundance of equanimity to
[the significant] increase” in his sentence, and reacted by yelling
at, and threatening, the sheriff. Commonwealth v. Brown,
3234 EDA 2018, 2020 WL 4558808, at *5 (Pa. Super. filed August
7, 2020) (unpublished memorandum) (“Brown III”).
After witnessing this behavior, the sentencing court sua sponte
and immediately reconsidered [Appellant’s] sentence. The court
described [Appellant’s] behavior as threatening and disrespectful,
and resentenced [Appellant] to 19 to 59 years’ incarceration,
followed by 15 years of probation. Less than a month later, the
trial court once again sua sponte resentenced [Appellant] “to
correct a minor discrepancy,” this time resentencing [Appellant]
to an aggregate term of 14 to 40 years’ incarceration, with a
probationary tail of 15 years. Brown III, 2020 WL 4558808, at
*7.
[Appellant] filed a motion for reconsideration of his sentence. At
the hearing on the motion, the sentencing court once again
referenced [Appellant’s] prison misconducts, his disrespect for the
court, and his threatening behavior towards the sheriff. It also
acknowledged the mitigating circumstances [Appellant] had
presented. The court then resentenced [Appellant] for a fourth
time, giving him a sentence of 12 to 35 years’ incarceration with
no probationary tail.
-2-
J-S27020-24
[Appellant] appealed to this Court, arguing his sentence was
excessive and had been the product of vindictiveness. A panel of
this Court agreed, and once again remanded for resentencing. In
doing so, the panel found that the sentencing court had
improperly relied on [Appellant’s] prison misconducts as a basis
for increasing his sentence. See id. at *13. The panel also noted
the sentencing court had increased [Appellant’s] sentence after
improperly interpreting [Appellant’s] allocution as being
disparaging to the court, and then turned around and “sua sponte
increased the sentence further immediately after feeling
disparaged by [his] reaction to the first sentence.” Id. The panel
concluded with the following summary:
The record of the multiple sentencing hearings in this case
is extraordinary. In addition to the errors of law [made at
those hearings], the record is rife with personal interactions,
perceived slights, and sua sponte reconsiderations of
sentence that, at the very least, created the appearance of
personal bias. Accordingly, we are compelled to hold that
[Appellant’s] sentence is the product of an abuse of the trial
court’s considerable, but not unfettered, discretion.
Id. at *15. The panel then dropped the following footnote:
This Court lacks the authority to order sua sponte that
[Appellant’s] resentencing be conducted by a different
jurist. See Commonwealth v. Lucky, [229] A.3d [657] []
(Pa. Super. February 13, 2020) (citing Commonwealth v.
Whitmore, 912 A.2d 827 (Pa. 2006) (providing that recusal
must first be sought and ruled upon by the trial court)).
However, [Appellant] may file a motion to recuse on
remand.
Id. at *15 n.11.
[Appellant] did so, but the sentencing court denied his motion to
recuse. The court therefore proceeded to the resentencing of
[Appellant]. In doing so, the court stated that, although it
disagreed with this Court’s August 2020 memorandum, it would
nonetheless decline to “utilize the considerations that [this Court]
deemed unacceptable” when resentencing [Appellant]. N.T.
Sentencing, 1/4/21, at 15; see also id. at 16-17 (stating it would
not consider [Appellant’s] lack of progress in prison even though
it disagreed with this Court that it was not a proper consideration).
The court also stated that it “certainly [did not] want [[Appellant]]
-3-
J-S27020-24
to think that his sentence was increased because of something
other than what it should be.” Id. at 17.
The court informed the parties it would be using the sentencing
guidelines delineated by the defense. See id. at 14-15. Those
guidelines included a standard sentencing range of six months to
14 months, plus or minus six months for the aggravated and
mitigated ranges, for the firearms not to be carried without a
license charge. See id. The court then listed various
recommendations for [Appellant’s] sentence, and resentenced
[Appellant] to an aggregate term of six to 14 years’ incarceration,
to be followed by five years of probation. This sentence included
two to four years’ incarceration for the firearms not to be carried
without a license conviction. The court did not list the reasons for
its sentence on the record.
Commonwealth v. Brown, 1228 EDA 2021, 2022 WL 4100978, at *1-2 (Pa.
Super. filed Sept. 8, 2022) (unpublished mem.) (“Brown IV”) (some
formatting altered).
Ultimately, the Brown IV Court concluded that the sentencing court
imposed a sentence outside the sentencing guidelines, and “[t]hat mistake,
combined with this Court’s prior conclusion that an appearance of impropriety
existed with this sentencing judge sentencing [Appellant], requires us to
vacate the entire sentence and remand for resentencing before a new
sentencing judge.” See id., 2022 WL 4100978, at *6.
On April 27, 2023, Appellant appeared before a new sentencing court
for resentencing. The new sentencing court resentenced Appellant as follows:
Count 1 - 18 [Pa.C.S. § 2702(a)] – Aggravated Assault (F1). To
be confined for a minimum period of 54 Month(s) and a maximum
period of 108 Month(s)[.] The following conditions are imposed:
Credit for time served: Credit to be calculated by the Phila. Prison
System[.] Immediate Parole: [Appellant] paroled immediately.
[Appellant] not to go into custody. Re-Entry Plan - Eligible - Re-
Entry Plan: [Appellant] is eligible for a re-entry plan.
-4-
J-S27020-24
To be placed on Probation - County Regular Probation - for a
maximum period of 9 Year(s) . . . .
* * *
Other: 1st 5 years were served while in prison[.]
Other: This court would have intended to terminate probation on
5/1/25[.]
Count 2 - 18 [Pa.C.S. § 3701(a)(1)(ii)] – Robbery . . . (F1)[.] To
be confined for a minimum period of 54 Month(s) and a maximum
period of 108 Month(s)[.] The following conditions are imposed:
Credit for time served: Credit to be calculated by the Phila. Prison
System[.] Immediate Parole: [Appellant] paroled immediately.
[Appellant] not to go into custody. Re-Entry Plan - Eligible - Re-
Entry Plan: [Appellant] is eligible for a re-entry plan.
To be placed on Probation - County Regular Probation - for a
maximum period of 9 Year(s) . . . .
* * *
Other: 1st 5 years were served while in prison[.]
Other: This court would have intended to terminate probation on
5/1/25[.]
Sentencing Order, 4/27/23, at 1-2 (some formatting altered). These
sentences were ordered to run concurrently. See id. at 3. The trial court
imposed a sentence of guilty without further penalty on the remaining
eighteen counts. See id. at 2-3. This resulted in an aggregate sentence of
54 to 108 months’ incarceration followed by 9 years of probation. See id. at
1-3.
Appellant filed a timely post-sentence motion for reconsideration of his
sentence, which the trial court denied. This timely appeal followed. The trial
court did not order Appellant to file a concise statement of errors complained
-5-
J-S27020-24
of on appeal pursuant to Pa.R.A.P. 1925(b). However, the trial court filed a
Rule 1925(a) opinion on November 13, 2023.
On appeal, Appellant presents the following issue:
Whether the trial court erred when it sentenced Appellant . . . to
a term of incarcerat[i]on and probation which was manifestly
excessive and unreasonable?
Appellant’s Brief at 4.
Before considering Appellant’s challenge to the discretionary aspects of
his sentence, we first address the legality of his sentence. We note that this
Court may “review illegal sentences sua sponte[,]” and “[a]n illegal sentence
must be vacated.” Commonwealth v. Ramos, 197 A.3d 766, 768-69 (Pa.
Super. 2018) (citations omitted and formatting altered).
As stated, the trial court imposed nine-year probationary “tails” at
counts one and two. See Sentencing Order, 4/27/23, at 1-2. However, in its
resentencing order, the trial court directed that the first five years of
Appellant’s probation sentences “were served while [Appellant was] in
prison[.]” See id.
“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, 982 A.2d 121, 127 (Pa. Super. 2009) (citations omitted). This
Court has stated: “we find no support in the Pennsylvania statutes that the
-6-
J-S27020-24
General Assembly intended to permit defendants to serve a term of probation
and a term of state incarceration simultaneously.” Commonwealth v.
Allshouse, 33 A.3d 31, 36 (Pa. Super. 2011) (footnote omitted), overruled
on other grounds by Commonwealth v. Simmons, 262 A.3d 512 (Pa. Super.
2021) (en banc). Further, this Court has rejected the concept of “constructive
probation,” in which a defendant serves the probation tail of a split sentence
while simultaneously serving a consecutive incarceration sentence, as
“contrary to the various policy considerations underlying sentencing.” Id.
(footnote omitted).
Here, because the trial court imposed a sentence permitting Appellant
to serve the first five years of his nine-year term of probation simultaneously
with his incarceration sentence, Appellant’s sentence is illegal. See
Allshouse, 33 A.3d at 36-37; Commonwealth v. Patel, 1610 EDA 2023,
2024 WL 3440448, at *5 (Pa. Super. filed Jul. 17, 2024) (unpublished mem.). 1
For these reasons, we vacate Appellant’s sentence and remand for
resentencing consistent with this memorandum. 2 See Ramos, 197 A.3d at
769; Patel, 2024 WL 3440448, at *5 (stating that “[a]s our prevailing caselaw
prohibits concurrent terms of imprisonment and probation, we must remand
____________________________________________
1 See Pa.R.A.P. 126(b) (providing that we may cite to unpublished non-
precedential decisions of the Superior Court filed after May 1, 2019, for their
persuasive value).
2 Because we vacate Appellant’s sentence and remand for resentencing, we
do not reach Appellant’s challenge to the discretionary aspects of his sentence.
-7-
J-S27020-24
for the lower court to rectify [the appellant’s] sentencing scheme and to
ensure that an illegal sentence has not been imposed”).
Judgment of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Date: 11/18/2024
-8-