# Com. v. Brown, G. > Superior Court of Pennsylvania · April 11, 2018 URL: https://www.frixlaw.com/law-library/cases/4263114 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** April 11, 2018 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4263114 ## Opinion text J-S13002-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GENE BROWN : : Appellant : No. 751 WDA 2016 Appeal from the Judgment of Sentence February 22, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002887-2015 BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 11, 2018 Appellant, Gene Brown, appeals from the judgment of sentence entered in the Allegheny County Court of Common Pleas, following his bench trial conviction for robbery.1 We affirm. In its opinion, the trial court accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. Appellant raises two issues for our review: SHOULD APPELLANT…HAVE BEEN ACQUITTED ON THE CRIME OF ARMED ROBBERY DUE TO THE COMMONWEALTH’S FAILURE TO PRESENT EVIDENCE PROVING, BEYOND A REASONABLE DOUBT, THAT HE WAS THE PERSON WHO ROBBED THE VICTIM…? EVEN IF THE COMMONWEALTH’S EVIDENCE WAS SUFFICIENT FOR A CONVICTION, SHOULD NOT ____________________________________________ 1 18 Pa.C.S.A. § 3701. J-S13002-18 APPELLANT’S POST-SENTENCE [MOTION] SEEKING A NEW TRIAL HAVE BEEN GRANTED? (Appellant’s Brief at 3). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable David R. Cashman, we conclude Appellant’s issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, filed May 16, 2017, at 6-11) (finding: (1) Commonwealth’s evidence was sufficient to identify Appellant as Victim’s assailant, despite inaccuracies; Appellant ignores fact that Victim identified Appellant at photo array, at preliminary hearing, and at trial; Appellant’s own statements to his sister on recorded prison phone call supported Victim’s identification testimony; Appellant actually identified himself as perpetrator, in phone conversation with his sister, when he said this Victim lived behind Sunoco station; Appellant testified at trial that he knew Victim lived behind Sunoco station through information acquired at preliminary hearing when he reviewed discovery material, which he said included Victim’s address; however, criminal complaint and affidavit of probable cause did not list Victim’s address, and preliminary hearing took place after Appellant’s phone call with his sister; (2) court as fact-finder evaluated credibility of Victim and Appellant, who both testified at trial; Victim was unequivocal in her identification of Appellant at photo array, at preliminary hearing, and at trial; discrepancies between Victim’s initial physical description of assailant and -2- J-S13002-18 Appellant’s actual height, age, and weight did not mean Victim misidentified Appellant; during phone conversation with his sister, Appellant did not deny robbing Victim, and Appellant provided his sister with information about Victim that he could not have learned at preliminary hearing, because preliminary hearing took place two months after phone call; verdict was not against weight of evidence). Accordingly, we affirm on the basis of the trial court’s opinion. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/11/2018 -3- I • • .� Circulated 03/19/2018 11:26 AM ·- IN THE FIFTH JUDICIAL DISTRICT OF THE COMM NWEALTH OF PENNSYLVANIA COUNTY OF ALLEGHENY COMMONWEALTH OF PENNSYLVANJA CRIMINAL DIVISION CC No. 201 02887 Superior Co No. 751WDA2016 vs. GENE BROWN OPINION DR. CASHMAN 308 Courth use 436 Grant reet Pittsburgh, A 15219 (412) 350-3 05 Copies Sent To: Michael Str ily, Esquire (lnteroffic ) Office of the District Attorney 4th Floor, C rthouse Pittsburgh, 'A 15219 '/) a:, 0 �:i. 0 {� o, Scott B. Ru olf, Esquire oz>- H ..:r '-'�1- (lnteroffic ) .,. ."' , · -- � ... t!.l U):Z L_. ::::c ..• t:(Y :'oc, -' - LL � 1.1_ �:!"'"; 0=0 ::c . 0:: .u .- u ..J t -� � <:( l.lJ (.:} ... IN THE FIFTH JUDICIAL DISTRICT OF THE COMM NWEALTH OF PENNSYLVANIA COUNTY OF ALLEGHENY CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA) CC No. 20150 87 vs. ) Superior Cour No. 751WDA2016 GENE BROWN ) OPINION On February 17, 2016, following a non-jury trial, t e appellant, Gene Brown, (hereinafter referred to as "Brown"), was found ilty of the charge of robbery, graded as a felony in the first degree. A present nee report was ordered and in light of the fact that a presentence report ad been prepared for Judge Williams as a result of Brown's conviction of a ther robbery charge, this Court scheduled sentencing for February 22, 2016. Following a sentencing hearing, Brown was sentenced to a period of i carceration of not less than three and one-half nor more than seven years c nsecutive to any sentence he was now serving, which was to be followed b a period of probation of seven years, during which he was to underg random drug screening. Brown filed timely post-sentence motions on arch 3, 2016, which motions, following a hearing, were denied on April 26, 20 6. Brown filed a timely appeal to the Superior Court nd was directed, pursuant to Pennsylvania Rule of Appellate Procedure 1 25(b), to file a concise statement of matters complained of on appeal. I that statement, Brown has raised seven claims of error. Initially Brown aintains that the 2 .. evidence was insufficient to support the conviction for ro bery since the Commonwealth did not prove beyond a reasonable doubt the identity of the individual who committed this crime. Brown next maint grading of the charge of robbery should have been a felo in the second degree since the Commonwealth did not establish that h threatened the victim with or put her in fear of serious bodily injury. Br wn also maintains that his conviction for the crime of robbery was against t e weight of the evidence. Brown also maintains that the Court erred in entencing him when the guidelines incorporated the deadly weapons enhance ent. Brown also suggests that this Court abused its discretion when it im osed what he believes to be a manifestly excessive sentence in view of e totality of the circumstances. Brown further maintains that this Court abused its discretion when it imposed the sentence consecutive to a y sentence that he was now serving. Finally, Brown maintains that this Co rt abused its discretion when it denied his request to modify his sente ce which was filed in his post-sentence motions. On December 27, 2014, at approximately 11:45 p. ., the victim, Taneisha Helms, (hereinafter referred to as "Helms"), wa returning to her residence located at 2337 Reed Street in the City of Pitts urgh after making purchases of some snacks and cigarettes at a Sunoco ser ce station. In addition to the bag containing her purchases, she also ha a cell phone. As she was walking in an alleyway from the Sunoco station o her residence, 3 ' ' someone ran up behind her and told her to "Shut the "F" p or he would blow her head off." This individual demanded her money and er phone then pushed her into a corner of the alley while he was holdin a shotgun that was pointed at her head. Helms gave him the ten dollars tha she had and her phone. He then ordered her to take off her clothing and s she dropped each article of clothing, the assailant would grab those items a d put them in a bin at the other end of the alleyway. He did this with her sh es, socks, pants and her underwear, each time separately taking those items the end of the alley. Helms had an opportunity to view her assailant in ight of the numerous times that he picked up her clothing from her nd she described him as being all dressed in black with a black hoodie, a b ck Carhartt jacket, black jeans and black shoes. When her assailant was pla ing the last item of her clothing at the other end of the alley, someone opene their window, looked down and saw her attacker, at which point he told Helms to get out of there and she ran from him and never looked back. Helms ran to her mother's residence which was tw doors down from hers and had her mother make a call to the police since s e no longer had a phone. The police arrived and she advised them of what ad transpired and also told them about the fact that she had been forced to trip and that her attacker placed her items of clothing at the other end oft e alley. The police went to the alley and then recovered her clothing. When he was interviewed 4 . "' by the police, she described her attacker as being a black male, somewhere between the ages of eighteen and twenty-two, approxim ely five foot six to five foot seven and one hundred fifty pounds with a thin uild. She told them that she did not know this person and that she was able o recognize him because although he had a hoodie, it was covering his he d and not his face. She was shown a photo array and immediately picked ou Brown as the individual who robbed her. After she identified him fro the photo array, Helms remembered that she had babysat for him until h was approximately two years old and that she knew Brown's mother. Brown was arrested on January 12, 2015, and he ad a telephone conversation with his sister on January 16, 2015. In tha phone conversation, Brown asked his sister to contact Delisha oodson and try to talk to her. His sister then asked him is that the woman that he made strip and he said no, that woman lives behind the Sunoco stat" n. His sister then advised him that the one that he made strip is the one th tis on the news. She asked him ifhe knew that to which he provided nor sponse. His sister then told him that the woman he made strip is the one t t she should talk to. Brown elected to testify and when he was asked b his counsel how he knew that the woman was caused to be stripped lived be ind the Sunoco station, Brown stated that before this phone call to his si ter, he went to a preliminary hearing and received the paperwork which p ovided him with 5 the address for the victim and incident report with respe t to what had happened. With this information he became aware ofw re she lived and what her address was. On cross-examination, Brown sta ed that he got the information from watching news coverage while he was· the jail. Brown has maintained that the evidence was insu cient to support the verdict against him since the Commonwealth did not stablish beyond a reasonable doubt the identity of Helms' attacker. He fur er maintains that the verdict was against the weight of the evidence. In C monwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-752 (2000), th Supreme Court set forth the standards to be employed when confronted wit the claims that the evidence was insufficient to support the verdict and the v rdict was against the weight of the evidence and the significance of those p rticular claims Appellant's remaining claim of error is that he Superior Court misstated the standard of review for a weight of th evidence claim. The standard of review refers to how the reviewin court examines the question presented. Morrison, 646 A.2d at 570. Ap ellant asserts that the Superior Court improperly interjected sufficie y of the evidence principles into its analysis and thus adjudicated t trial court's exercise of discretion by an incorrect measure. In order to address this claim we find it nee ssary to delineate the distinctions between a claim challenging the s ffi.ciency of the evidence and a claim that challenges the weight of he evidence. The distinction between these two challenges is critical A claim challenging the sufficiency of the evidence, if grant d, would preclude retrial under the double jeopardy provisions of the ifth Amendment to the United States Constitution, and Article I Sect" n 10 of the Pennsylvania Constitution, Tibbs v. Florida 457 .S. 31 102 S.Ct. 2211. 72 L.Ed.2d 652 (1982); Commonwealth v. Vo el 501 Pa. 314 461 A.2d 604 (1983), whereas a claim challenging the eight of the evidence if granted would permit a second trial Id 6 ... A claim challenging the sufficiency of the e dence is a question of law. Evidence will be deemed sufficient to supp the verdict when it establishes each material element of the crime c arged and the commission thereof by the accused, beyond a reaso able doubt. Commonwealth v. Karkaria 533 Pa. 412 625 A.2d 1167 1993 . Where the evidence offered to support the verdict is in co tradiction to the physical facts, in contravention to human experie e and the laws of nature, then the evidence is insufficient as a matt oflaw. Commonwealth v. Santana 460 Pa. 482 333 A.2d 76 1975 . When reviewing a sufficiency claim the court is required o view the evidence in the light most favorable to the verdict winner gi ing the prosecution the benefit of all reasonable inferences to be draw from the evidence. Commonwealth v. Chambers 528 Pa. 558 599 A.2 630 1991 . A motion for new trial on the grounds that t e verdict is contrary to the weight of the evidence, concedes th t there is sufficient evidence to sustain the verdict. Commonwealth v. iteman 336 Pa.Super. 120, 485 A.2d 459 (1984). Thus, the tria court is under no obligation to view the evidence in the light most fa orable to the verdict winner. Tibbs 457 U.S. at 38 n. 11 102 S. t. 221I.FN3 An allegation that the verdict is against the weight of he evidence is addressed to the discretion of the trial court. Com onwealth v. Brown 538 Pa. 410, 648 A.2d 1177 (1994). A new trial sho d not be granted because of a mere conflict in the testimony or beca se the judge on the same facts would have arrived at a different concl ion. Thompson, supra. A trial judge must do more than reassess th credibility of the witnesses and allege that he would not have assen ed to the verdict if he were a juror. Trial judges, in reviewing a claim hat the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine t at "notwithstanding all the facts, certain facts are so !early of greater weight that to ignore them or to give them equal w ight with all the facts is to deny justice." Id. FN3. In Tibbs, the United States Supreme urt found the following explanation of the critical distincti n between a weight and sufficiency review noteworthy: When a motion for new trial is made on the ound that the verdict is contrary to the weight of the evide ce, the issues are far different .... The [trial] court need not vie the evidence in the light most favorable to the verdict; it ma weigh the evidence and in so doing evaluate for itself t e credibility of the witnesses. If the court concludes that, despit the abstract 7 ' . sufficiency of the evidence to sustain the ve ict, the evidence preponderates sufficiently heavily against t e verdict that a serious miscarriage of justice may have occ ed, it may set aside the verdict, grant a new trial, and sub it the issues for determination by another jury. Tibbs 457 U.S. at 38 n. 11, 102 S.Ct. 2211 quoting nited States v. Lincoln, 630 F.2d 1313 (Cir.8th 1980). With respect to the claim that the evidence was insuffici t to support the verdict against him because the Commonwealth failed to stablish the identity of the individual who robbed him, Brown points ut the conflict in the information given to the police and Brown's physical escription. When Helms was initially interviewed by the police, she told th m that her assailant was anywhere between five six and five seven, ne hundred and fifty pounds, with a thin build and was approximately ei teen to twenty-two years old. Brown was eighteen at the time, six feet one a d two hundred and twenty pounds. Brown believes that this testimony was ore than sufficient to discredit Helms' identification of him as her assailant. This contention ignores the fact that Helms identified him from a photo a ray, identified him at the preliminary hearing that was ultimately held on arch 2, 2015, and also identified him at the time of trial While there was me dispute as to the description given by Helms as to the person that rob d her, her identification of Brown was supported by Brown's own st tements in a phone conversation that he had with his sister. When he sister sked him if Delisha Woodson was the individual he made strip, he said no, th t individual lived 8 right behind the Sunoco station. Brown maintained tha make this statement based upon the information that he ad acquired at the preliminary hearing when he was given the discovery ma erial in his case and was given the victim's address. It should be noted t t a review of the criminal complaint and the affidavit of probable cause do s not disclose the victim's address and Brown's preliminary hearing occurr d almost two months after he was arrested since it had been continued several times. If he would have obtained the information in the discovery ma rials as to the victim's address when he got that material at his prelimi ary hearing, then he would have obtained that information almost two mo hs after he had the conversation with his sister, which was four days after h was arrested. In viewing in the light most favorable to the Commonwealt and all reasonable inferences drawn therefrom, it is clear that the Common ealth established the identity of Helms' attacker and that Brown was prop rly convicted of that charge. An Appellate Court's standard of review when pre nted with the claim that the verdict was against the weight of the evid ce is distinct from the standard of review applied by the Trial Court Appellate review of a weight claim is a revie of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Brown, 648 A.2d at 1189. ecause the trial judge has had the opportunity to hear and see the evi ence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing trial court's determination that the verdict is against the weight o the evidence. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 5 (1976). One of the least assailable reasons for "'322 granting or denying new trial is the 9 .. lower court's conviction that the verdict was or was ot against the weight of the evidence and that a new trial should be grante in the interest of justice. Brown, supra. Com. v. Widmer, 560 Pa. 308, 321-22, 744 A.2d 745, 7 3 (2000). The term. 'discretion' imports the exercise of judgme t, wisdom and skill so as to reach a dispassionate conclusion, within the amework of the law, and is not exercised for the purpose of giving ef ct to the will of the judge. Discretion must be exercised on the foundati of reason, as opposed to prejudice, personal motivations, caprice arbitrary actions. Discretion is abused when the course pursued repres nts not merely an error of judgment, but where the judgment is manife tly unreasonable or where the law is not applied or where the record sho s that the action is a result of partiality, prejudice, bias or ill will. Com. v. Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753 ( 000) In using these standards, it is clear that this Court actin as the fact-finder in the non-jury trial, had a full opportunity to review the estimony in this matter and observe the witnesses that were called to test fy, specifically the victim and the appellant, who elected to testify. Helms w s unequivocal in her identification of Brown at the time that she was pres nted with a photo array, at the preliminary hearing and at the time of trial. Although there was a discrepancy in what she initially reported to the po ice and Brown's physical size, that description did not mean.that she was accurate in identifying him as the person that robbed her. Brown on he other hand never denied robbing her to his sister during their phone onversation and, in fact, provided his sister with information that he had to k ow prior to his preliminary hearing since he had not been given the disc ery material until almost two months after he was arrested, In taking thes 10 . consideration, it is clear that the verdict was appropriate and not against the weight of the evidence. Brown next maintains that be was improperly con icted of the crime of robbery graded as a felony in the first degree as opposed o robbery, a felony in the second degree. The crime of robbery is set forth at 18 Pa.C.S.A. §3701 as follows: §3701. Robbery (a) Offense defined.-- (1) A person is guilty of robbery if, in the course of c itting a theft, he: (i) inflicts serious bodily injury upon another; (ii) threatens another with or intentionally puts him i serious bodily injury; (iii) commits or threatens immediately to commit an felony of the first or second degree; (iv) inflicts bodily injury upon another or threatens other with or intentionally puts him in fear of immediate bodily inj ry; (v) physically takes or removes property from the pe son of another by force however slight; or (vi) takes or removes the money of a financial institu on without the permission of the financial institution by making a d mand of an employee of the financial institution orally or in writi g with the intent to deprive the financial institution thereof. (2) An act shall be deemed "in the course of committi g a theft" if it occurs in an attempt to commit theft or in flight after e attempt or commission. (3) For purposes of this subsection, a "financial insti tion" means a bank, trust company, savings trust, credit union or similar.i stituti.on. (b) Grading.-- (1) Except as provided under paragraph (2), robbery der subsection (a)(l)(iv) and (vi) is a felony of the second degree; ro ery under subsection (a)(l)(v) is a felony of the third degree; ot erwise, it is a felony of the first degree. (2) If the object of a robbery under paragraph (1) is a ontrolled substance or designer drug as those terms are defined in sectio 2 of the act of April 14, 1972 (P.L. 233, No. 64),1 known as The Controlled Substance, Drug, Device and Cosmetic Act, robbery is a felony of the fi st degree. Brown maintains that based upon the evidence presente at the time of trial, he should have been convicted of the crime of robbery as i entified under 11 .. ' t, §3701(e)(l)(iv), which means that at the time of the com ission of the robbery, the victim was threatened or intentionally put · fear of immediate bodily injury as opposed to the crime of robbery under §3 Ol(a)(2), where the victim is threatened with or intentionally put in fear of · bodily injury. The undisputed testimony in this case is t at Brown came up from behind Helms with a shotgun and pointed it at her ead and told her to be quiet or he would blow her head off. This threat can o y be considered a threat to inflict serious bodily injury or death. Brown co tinued these threats when he continually pointed the shotgun at Hel s' head during the course of this robbery and when he was forcing her to dis obe. Nothing about this threat which would suggest that the injury that was hreatened was anything but serious bodily injury. It is clear that when e threatened to blow her head off that he was placing her in fear of serio s bodily injury or death. Brown next maintains that this Court erred when t used the deadly weapons enhancement in determining the guidelines for rown's sentence. In this regard while Brown maintains that the applicab · weapon enhancement had to be proven beyond a reasona le doubt in light of the decisions in Alleyne v. United States, 133 S.Ct. 21 1 (2013) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2848 2000). This contention has been rejected in Pennsylvania in Commo wealth v. Buterbaugh, 91 A.3d 1247, 1270 (Pa. Super. 2014), w en the Court noted 12 • that the deadly weapon enhancement did not prescribe a tandard range beyond the statutory maximum and, accordingly, the fac rs to consider the deadly weapon enhancement only had to be proved by th preponderance of the evidence. It should be noted that even using the sent ncing guidelines where the deadly weapon enhancement has been invoke Brown's sentence of three and one-half to seven years was near the bottom nd of the standard range.' Brown's final three claims of error all deal with se tencing in that he maintains that his sentence was manifestly excessive in iew of the totality of the circumstances; that this Court abused its discretion hen it ordered that his sentence be served consecutive to any sentence he wa now serving; and, that this Court abused its discretion when it denied the odification of his sentence. In Commonwealth v. Mouzon, 828 A.2d 11 , 1128-1129 (Pa. Super. 2003), the Court examined the claim of whether r not a sentence was excessive and set forth the factors that were to be co sidered in making that determination. Sentencing is a matter vested in the soun discretion of the sentencing judge, and a sentence will not be distu ed on appeal absent a manifest abuse of discretion. Commonuie lth v. Johnson, 446 Pa.Super. 192, 666 A.2d 690 (1995). "To constitute an abuse of discretion, the sentence imposed must either exce the statutory limits or be manifestly excessive." Commonwealth . Gaddis, 432 Pa.Super. 523, 639 A.2d 462, 469 (1994) (citations mitted). In this context, an abuse of discretion is not shown merel by an error in judgment. Commonwealth u. Kocher, 529 Pa. 303, 02 A.2d 1308 1 The Sentencing Guidelines using the deadly weapon enhancement how a mitigated range sentence of twenty-eight months, a standard range sentence of forty o fifty-four months, and an aggravated range of sixty-six months. 13 •• (1992). Rather, the appellant must establish, by re erence to the record, that the sentencing court ignored or misap lied the law, exercised its judgment for reasons of partiality, pr iudice, bias or ill will, or arrived at a manifestly unreasonable decis · n. Commonwealth v. Rodda, 723 A.2d 212 (Pa.Super.1999). In determining whether a sentence is manifi stly excessive, the appellate court must give great weight to the sent cing court's discretion, as he or she is in the best position to m asure factors such as the nature of the crime, the defendant's charact r, and the defendant's display of remorse, defiance, or indiffe ence. Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa.Sup r.1997). Where an excessiveness claim is based on a court's sentencin outside the guideline ranges, we look, at a minimum, for an in ication on the record that the sentencing court understood the su gested sentencing range. 42 Pa.C.S.A. § 9721(b); Rodda, 723 A.2d at 14. When the court so indicates, it may deviate from the guidelines, if ecessary, to fashion a sentence which takes into account the protection fthe public, the rehabilitative needs of the defendant, and the grav ty of the particular offenses as it relates to the impact on the life of th victim and the community, so long as the court also states ofreco "the factual basis and specific reasons which compelled him to devia from the guideline range." Commonwealth v. Cunningham, 805 A.2d 66, 575 (Pa.Super.2002) (quoting Commonwealth v. Burkh Ider, 719 A.2d 346, 350 (Pa.Super.1998)). In evaluating a claim of this type, an appell te court must remember that the sentencing guidelines are mere y advisory, and the sentencing court may sentence a defendant outsid of the guidelines so long as it places its reasons for the deviation on th record. Cunningham, 805 A.2d at 575. "Our Supreme Cou t has indicated that if the sentencing court proffers reasons indicating at its decision to depart from the guidelines is not unreasonable, we must affirm a sentence that falls outside those guidelines .... " Co monwealth v. Davis, 737 A.2d 792, 798 (Pa.Super.1999) (citing C mmonwealth v. Smith, 543 Pa. 566, 673 A.2d 893 (1996)). In reviewing Brown's sentence, it is clear that ther is nothing manifestly excessive about his sentence. His sentence w near the bottom end of the standard range and was three and one-half to even years to be 14 • .• ' \ followed by a period of probation of seven years. This Co rt had the benefit of those guidelines and a presentence report which show d a continuing escalation of Brown's violent criminal behavior. His first contact with the criminal justice system occurred when he was eleven ye sold when his mother filed a petition for dependency stating that her s was out of control, aggressive and defiant and would leave their residence fi a week without permission. Approximately one year later on December 2, 2008, a petition was filed charging him with failure to comply with a law sentence for his failure to pay fines and costs relative to an adjudication Another petition for dependency was filed on February 3, 2009 when it was alleged that he would not follow the rules at his home, in luding curfew and school attendance and he was being verbally abusive to s mother. On January 19, 2011, another petition was filed charging fa' ure to comply as a result of his purchase of alcoholic beverages by a minor, isorderly conduct and harassment. During the summer of 2012, he was se t to Orlando, Florida to reside with a relative and while there, he was barged as a juvenile with sexually assaulting an eleven-year-old boy. On Dec mber 13, 2012, his mother once again filed a petition for dependency and a tition for protection of abuse since he continued to be violent and as threatening everyone in his house and was using drugs. His mother tated in this petition that he had pictured himself on Facebook holdin a gun and displaying various gang signs. His mother's petition for rotection from 15 • ,• ' ' abuse was granted and the defendant was adjudicated de endent and placed with his grandparents. In 2013 he was suspended from s hool for five days for bringing marijuana to school. While he was at the W rd home, he was charged and adjudicated of the charges of simple assault, terroristic threats and recklessly endangering another person. As an adult, he was convicted of the charge of poss ssion with intent to deliver a controlled substance in January of 2015. In No ember of 2015, he was found guilty following a bench trial before the Honor ble Joseph Williams of the crime of robbery, serious bodily injury, a criminal conspiracy. On January 5, 2016, he pied guilty to receivi g stolen property, although he had also been charged with burglary and the by unlawful taking, which charges were withdrawn in exchange for · plea to the charge of receiving stolen property. In reviewing his continually ggressive and violent behavior, his failure to avail himself of the rehabi itation opportunities offered to him in the Juvenile Court syste and his threat to kill his victim, it is clear that the sentence that was impo ed upon him was not manifestly excessive but appropriate for the protectio of the public, his rehabilitative needs and for protection of society in gener 1. This Court decided to run his sentence consecutive to the sentence imposed upon him by Judge Williams for the other robbe in which he was involved which followed almost the same pattern as the r bbery in this case with the exception that he did not require his victim to st ip. The 16 • ,. ., .. � presentence report in this matter clearly showed an indi dual who was violent, who was armed with deadly weapons and made t reats to use those deadly weapons if his desires were not met. In weighing ll of the factors to be considered, it was clear that his sentence should be co secutive rather than concurrent which would have provided him with a v lume discount for the commission of his crimes. Brown filed a post-sentence motion seeking to mod fy his sentence in which he alleged that in light of Brown's young age, that e should be afforded an opportunity to reestablish his life since he ha lost his educational opportunity and his ability to play football. one of these contentions impact the configuration of his sentence beca se Brown was willing to use a deadly weapon and threatened people wi the use of that deadly weapon by stating that he would blow the victim's head off if she did not do what he said. Compounding his violent nature wa the fact that he sought to demean and to degrade his victim by forcing be to strip off her clothes to ensure his getaway from this robbery. There s no basis that this Court saw that would necessitate the changing either the length of Brown's sentence or the fact that it should be served consecutive t his other sentence for robbery. DATED: , May 16, 2017 17 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4263114. Public record. Not legal advice.