Opinion

Com. v. Brown, S.

Court
Superior Court of Pennsylvania
Filed
Nov 30, 2023
Status
Unpublished
On the bench
Lazarus, J.
Cited by
0 cases
Authority
More cited than 14.5%

The opinion

J-S38013-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SAMIYA T. BROWN, :

:

Appellant : No. 2322 EDA 2022

Appeal from the Judgment of Sentence Entered July 26, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0000774-2020

BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J.*

JUDGMENT ORDER BY LAZARUS, J.: FILED NOVEMBER 30, 2023

Samiya T. Brown appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after pleading guilty to third-

degree murder,1 endangering the welfare of children (EWOC),2 and possession

of an instrument of crime (PIC).3 On July 26, 2022, the trial court sentenced

Brown to consecutive terms of 20 to 40 years’ incarceration for third-degree

murder and 10 to 20 years’ incarceration for EWOC, the statutory maximum

for each offense, and no further penalty for PIC. Brown filed a timely notice

of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 2502(c).

2 Id. at § 4304(a)(1).

3 Id. at § 907(a).

J-S38013-23

complained of on appeal. After careful review, we vacate Brown’s judgment

of sentence and remand for resentencing.

On appeal, Brown claims that the trial court erred by imposing a

statutory maximum sentence without indicating an awareness of the

sentencing guidelines, without placing the guidelines on the record, without

considering Brown’s rehabilitative needs, and by imposing an excessive

sentence where the court ran the sentences consecutively.4 See Appellant’s

Brief, at 3. The Commonwealth agrees that the trial court failed to mention

the sentencing guidelines and place on the record the court’s reasons for its

upwards deviation from them. See Appellee’s Brief, at 2.

The Sentencing Code requires that the trial court consider the

sentencing guidelines, and “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.” 42 Pa.C.S.A. § 9721(b). Moreover, when a trial court

imposes a sentence outside the guidelines, a judge “must set forth on the

record, at sentencing, in the defendant’s presence, the permissible range of

sentences under the guidelines and, at least in summary form, the factual

basis and specific reasons which compelled the court to deviate from the

sentencing range.” Commonwealth v. Royer, 476 A.2d 453, 458 (Pa.

Super. 1984) (emphasis added). “Failure to comply shall be grounds for

____________________________________________

4 We need not reach Brown’s excessive sentencing claim as we are vacating

Brown’s judgment of sentence and remanding for resentencing. See

Commonwealth v. Beatty, 227 A.3d 1277, 1282 n.5 (Pa. Super. 2020).

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J-S38013-23

vacating the sentence . . . and resentencing the defendant.” 42 Pa.C.S.A. §

9721(b).

Here, the sentencing transcript reveals that the sentencing court failed

to set forth, in Brown’s presence, the permissible range of sentences she could

receive under the guidelines, nor did the sentencing judge mention the

guidelines at any point during Brown’s sentencing proceeding. At the outset

of sentencing, the sentencing court stated the counts at issue and that Brown’s

prior record score was zero. See N.T. Sentencing Hearing, 7/26/22, at 5.

When issuing Brown’s sentence, the trial court stated:

[T]his sentence that the Court is going to impose today is going

to be on the upper end of the allowable sentence in this matter.

[D]espite the . . . psycho[-]social report, that was provided by the

defense, the [c]ourt believes that the actions of Ms. Brown [do]

show wickedness of heart. It is such that the [c]ourt’s intention is

to limit the possibility of her having access to other children as

she goes forward.

On the charge of murder in the third-degree, the [c]ourt is going

to impose the maximum sentence of 20 to 40 years.

On the charge of [EWOC], the [c]ourt will impose . . . the

maximum sentence there, which is 10 to 20 years.

On the charge of [PIC], the [c]ourt will impose no further

[penalty].

So the sentence that is imposed here is 30 to 60 years to be

served in a state correctional institution.

Id. at 62-63.

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J-S38013-23

The court failed to mention the existence of a pre-sentence investigative

report (PSI),5 and whether the court had reviewed same, only referencing a

psycho-social report provided by Brown. See id. Nowhere did the court

indicate what the applicable guideline ranges were, that it considered the

guidelines, that it was sentencing Brown outside the guidelines, or provide a

statement of its reasons for such deviation. Accordingly, we are constrained

to vacate the judgment of sentence and remand for sentencing in accordance

with the Sentencing Code. See Royer, supra; 42 Pa.C.S.A. § 9721(b).

Judgment of sentence vacated. Case remanded. Jurisdiction

relinquished.

Date: 11/30/2023

____________________________________________

5 See N.T. Guilty Plea Hearing, 5/19/22, at 24 (ordering PSI and mental health

reports prior to sentencing).

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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