Commonwealth v. Farrow ( 2017 )

J-S03002-17
2017 PA Super 249COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RIKEA DSHON FARROW
Appellant No. 1576 WDA 2015
Appeal from the Judgment of Sentence September 10, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014532-2014
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
OPINION BY OLSON, J.: FILED JULY 27, 2017
Appellant, Rikea Dshon Farrow, appeals from the judgment of
sentence entered on September 10, 2015 in the Criminal Division of the
Court of Common Pleas of Allegheny County, following her convictions for
three counts of driving under the influence (DUI)-general impairment and
the summary offense of accidents involving an unattended vehicle. We
affirm, in part, vacate, in part, and remand for resentencing consistent with
the views expressed below.
The trial court prepared the following factual summary, which is
undisputed on appeal.
Shortly before 6:00 a.m. on June 22, 2014, Appellant was
driving a red vehicle. While driving, she struck two parked
vehicles in the 200 block of Marshall Avenue in the City of
Pittsburgh, and drove away from the scene. Officers Peter
Bechtold [and] Michael Douglas, and [Sergeant] Neal
Marrabello[,] were dispatched to the 200 block of Marshall
* Retired Senior Judge assigned to the Superior Court.
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Avenue for “a hit and run by a red vehicle.” At the accident site,
the officers encountered two damaged vehicles: one vehicle had
been struck from behind, causing it to hit the vehicle parked
directly in front of it.
Approximately one quarter mile from the accident scene, officers
observed a red vehicle with heavy front end damage. Appellant
was sitting near this vehicle with the keys in her hand. Officer
Bechtold approached Appellant and asked her what happened.
Appellant told Officer Bechtold that she hit a speed bump, and it
caused damage to her vehicle. Shortly after this, Appellant told
Sergeant Marrabello that she struck a guardrail, causing the
damage to her vehicle.
During these conversations, Appellant appeared visibly
intoxicated. Specifically, she had glassy, bloodshot eyes, a
strong odor of alcohol emanating from her mouth, her clothes
were soiled and stained, her speech was slurred, and she was
unbalanced on her feet. The officers determined that she was
intoxicated to the point where it was unsafe for her to operate a
motor vehicle. Officer Bechtold attempted to conduct a field
sobriety test, but Appellant became combative and began yelling
at Officers Bechtold and Douglas. Due to Appellant’s
belligerence and uncooperativeness, Officer Bechtold did not
attempt any further field sobriety tests. Appellant was arrested
and transported to the police station, where she refused to
submit to an intoxilyzer test[.]
Trial Court Opinion, 6/23/16, at 4-5 (record citations and footnote omitted).
Based upon the foregoing events, the Commonwealth filed a
four-count criminal information against Appellant on December 15, 2014.
Count one charged Appellant with DUI-general impairment and refusing
breath/blood alcohol testing in violation of 75 Pa.C.S.A. § 3802(a)(1) and 75
Pa.C.S.A. § 3804(c) of the Motor Vehicle Code. Count two charged Appellant
with DUI-general impairment where an accident resulting in damage to a
vehicle occurred in violation of 75 Pa.C.S.A. § 3802(a)(1) and 75 Pa.C.S.A.
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§ 3804(b). Count three charged Appellant with DUI-general impairment in
violation of 75 Pa.C.S.A. § 3802(a)(1). Count four charged Appellant with
accident involving damage to attended vehicle in violation of 75 Pa.C.S.A.
§ 3743. Relevant to counts one through three, the information states in full:
COUNT 1: DRIVING UNDER INFLUENCE OF ALCOHOL [OR]
CONTROLLED SUBSTANCE
The actor drove, operated or was in actual physical control of the
movement of a vehicle, upon a highway or trafficway of the
Commonwealth, after imbibing a sufficient amount of alcohol
such that the actor was rendered incapable of safely driving,
operating or being in actual physical control of the movement of
the vehicle, and the actor refused testing of blood or breath, in
violation of Section 3802(a)(1) and Section 3804(c) of the
Pennsylvania Vehicle Code, Act of June 17, 1976, 75 Pa.C.S.[A.]
§[§] 3802(a)(1) and 3804(c), as amended.
COUNT 2: DRIVING UNDER INFLUENCE OF ALCOHOL [OR]
CONTROLLED SUBSTANCE
The actor drove, operated or was in actual physical control of the
movement of a vehicle, upon a highway or trafficway of the
Commonwealth, after imbibing a sufficient amount of alcohol
such that the actor was rendered incapable of safely driving,
operating or being in actual physical control of the movement of
the vehicle, where there was an accident resulting in bodily
injury, serious bodily injury or death of another person or in
damage to a vehicle or other property, in violation of Section
3802(a)(1) and Section 3804(b) of the Pennsylvania Vehicle
Code, Act of June 17, 1976, 75 Pa.C.S.[A.] §[§] 3802(a)(1) and
3804(b), as amended.
COUNT 3: DRIVING UNDER INFLUENCE OF ALCOHOL [OR]
CONTROLLED SUBSTANCE
The actor drove, operated or was in actual physical control of the
movement of a vehicle, upon a highway or trafficway of the
Commonwealth, after imbibing a sufficient amount of alcohol
such that the actor was rendered incapable of safely driving,
operating or being in actual physical control of the movement of
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the vehicle, in violation of Section 3802(a)(1) of the
Pennsylvania Vehicle Code, Act of June 17, 1976, 75 Pa.C.S.[A.]
§ 3802(a)(1), as amended.
Criminal Information, 12/15/14.
Appellant proceeded to a nonjury trial that took place over the course
of June 9, 2015 and July 23, 2015. At trial, the Commonwealth amended
count four of the information to charge the summary offense of accidents
involving unattended vehicle under 75 Pa.C.S.A. § 3745. At the conclusion
of trial on July 23, 2015, the court found Appellant guilty at all four counts of
the information, as amended. On September 10, 2015, the trial court
sentenced Appellant to three to six days’ incarceration, together with a
concurrent term of six months’ probation, at count one.1 At the remainder
of the counts set forth in the information (counts two through four), the trial
court entered a determination of “guilty without further penalty.” Order of
Sentence, 9/10/15. Appellant did not file a post-sentence motion.
Appellant filed a timely notice of appeal on October 13, 2015.2 By
order of October 27, 2015, the trial court directed Appellant to file a concise
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1
Recall that count one of the information accused Appellant of DUI-general
impairment and refusal to submit to testing of her blood or breath, in
violation of 75 Pa.C.S.A. §§ 3802(a)(1) and 3804(c).
2
Thirty days from September 10, 2015 was October 10, 2015. October 10,
2015, however, was a Saturday and Monday, October 12, 2015, was the
Columbus Day holiday. Hence, Appellant’s October 13, 2015 filing was
timely. See 1 Pa.C.S.A. § 1908 (omitting Saturday, Sunday, and legal
holidays from time computations).
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statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After receiving an extension of time in which to obtain relevant transcripts of
the trial court proceedings, Appellant filed her concise statement on April 13,
2016. Thereafter, the trial court issued its Rule 1925(a) opinion on June 23,
2016.
Appellant raises a single issue for our consideration:
Did the trial court violate the prohibition on double jeopardy by
convicting [Appellant] of three separate DUI offenses based
upon a single instance of conduct, where two of those offenses
were not separate crimes but, rather, merely sentencing factors?
Appellant’s Brief at 5 (block capitalization omitted).
Appellant contends that the trial court violated the protection against
double jeopardy under the United States and Pennsylvania Constitutions3 in
convicting and sentencing her for three DUI offenses stemming from a single
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3
The double jeopardy clause of the United States Constitution provides:
“nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V. Pennsylvania's double
jeopardy clause declares: “No person shall, for the same offense, be twice
put in jeopardy of life or limb.” Pa. Const. art. 1, § 10. The Pennsylvania
Supreme Court has held that Pennsylvania's double jeopardy clause
“involves the same meaning, purpose, and end [as the double jeopardy
clause in the United States Constitution], thus, [Pennsylvania's clause] has
generally been construed as coextensive with its federal counterpart.”
Commonwealth v. McGee, 744 A.2d 754, 756 n.2 (Pa. 2000) (internal
quotations and citations omitted); Commonwealth v. Hallman, 67 A.3d
1256, 1260 (Pa. Super. 2013), appeal denied, 84 A.3d 1062 (Pa. 2014).
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episode of criminal conduct.4 Before we examine the merits of this claim,
we first determine whether Appellant properly preserved it for appellate
review. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).
The Commonwealth argues that Appellant waived appellate review of
her sole issue because she failed to object to the criminal information, or
otherwise raise her appellate claim, before the trial court. See
Commonwealth Brief at 8. In support of its position, the Commonwealth
submits that Appellant’s initial inclusion of her claim in her concise
statement is insufficient to preserve the issue for purposes of appeal. See
id. at 8-9, quoting Commonwealth v. Melendez-Rodriguez, 856 A.2d
1278, 1288-1289 (Pa. Super. 2004) (“[a] party cannot rectify the failure to
preserve an issue by proffering it in response to a Rule 1925(b) order”). The
Commonwealth also asserts that “the fact that [A]ppellant raised her claims
in constitutional terms does not [alter the conclusion that her claims are
subject to waiver].” Commonwealth Brief at 9, quoting Commonwealth v.
Strunk, 953 A.2d 577, 579 (Pa. Super. 2008) (“Even issues of constitutional
dimension cannot be raised for the first time on appeal.”). For these
reasons, the Commonwealth concludes that Appellant waived her double
____________________________________________
4
Appellant raises no challenge relating to the charge leveled at count four of
the information. Hence we shall affirm her conviction and sentence for
accidents involving unattended vehicle without further discussion.
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jeopardy challenge based upon the form of the criminal information and the
verdict/sentencing disposition rendered thereon. Commonwealth Brief at
9-10.
Appellant does not dispute the Commonwealth’s contention that she
lodged no objection to the form of the information before the trial court or
that she first raised her appellate claim in her concise statement. Instead,
Appellant analogizes her claim to a challenge to the sufficiency of the
evidence and, alternatively, to a challenge to the legality of her sentence.
With respect to the first component of her preservation argument (i.e.,
likening the present claim to a sufficiency challenge), Appellant accepts that
the evidence was sufficient to support a finding that she committed a single
DUI offense, but argues nonetheless that the record is insufficient to sustain
convictions for two additional DUI offenses. See Appellant’s Reply Brief at 1.
As to the second part of her argument (i.e., analogizing the instant issue to
a legality of sentencing claim), Appellant asserts that her double jeopardy
claim represents a constitutional challenge to the legality of her sentence,
which is not subject to waiver even if it is raised for the first time on appeal.5
Id. at 3. Appellant maintains that since her claim represents either a
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5
Here, Appellant points out that, under Pennsylvania law, a “sentence” is
not limited to a term of incarceration or probation but also includes a
determination of guilt without further penalty. See Appellant’s Reply Brief at
3, n.1, citing 42 Pa.C.S.A. § 9721(a)(2) (in fixing sentence trial court may
consider and impose, inter alia, “a determination of guilt without further
penalty”).
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sufficiency challenge or a challenge to the legality of her sentence, her
failure to raise the claim before the trial court does not impede appellate
review. See Appellant’s Reply Brief at 1-3, citing Pa.R.Crim.P. 606(A)(7)
(allowing defendant to challenge sufficiency of evidence to sustain conviction
by raising issue for first time on appeal); see also Commonwealth v.
Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (en banc) (“A challenge
to the legality of the sentence may be raised [on appeal] as a matter of
right, is non-waivable, and may be entertained [as] long as the reviewing
court has jurisdiction.”).
Within the context of this appeal, we are unwilling to characterize
Appellant’s present claim as a challenge to the sufficiency of the evidence.
Appellant nowhere claims that the undisputed record in this appeal is
insufficient to establish that she committed a DUI offense. She does not
seek wholesale discharge, but instead asks us to direct the trial court to
invalidate two of her DUI convictions at resentencing. See Appellant’s Brief
at 27 (under “conclusion”). In fact, the sufficiency of the Commonwealth’s
proof that she committed a DUI offense comprises part and parcel of
Appellant’s claim that the record fails to demonstrate that she committed the
two other DUI offenses for which she was convicted. Setting aside, then,
the undisputed sufficiency of the Commonwealth’s evidence that Appellant
committed a DUI offense, it is the remainder of Appellant’s “sufficiency”
challenge, i.e. that the trial court erred in finding Appellant guilty without
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further penalty at two additional DUI counts, which forms the core of
Appellant’s claim for relief. As we explain below, this aspect of Appellant’s
“sufficiency” challenge is practically indistinguishable from her double
jeopardy challenge to the validity of her sentence. Thus, for the reasons
that follow, we shall undertake appellate review on grounds that Appellant’s
claim is not subject to waiver because she has come forward with a colorable
double jeopardy objection to the legality of her sentence.
In Robinson, supra, this Court identified the types of claims exempt
from waiver because they involve challenges to the legality of a sentence.
We announced that the term “illegal sentence” referred to a class of cases
that includes: “(1) claims that the sentence fell outside of the legal
parameters prescribed by the applicable statute; (2) claims involving
merger/double jeopardy; and (3) claims implicating the rule in Apprendi v.
New Jersey, 530 U.S. 466 (2000).” Robinson, 931 A.2d at 21 (citations
omitted). We explained in Robinson that illegal sentencing claims challenge
“the fundamental legal authority of the court to impose the sentence that it
did.” Id.We read Appellant as advancing two separate, but closely related,
double jeopardy challenges to her judgment of sentence. Citing Ball v.
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United States, 470 U.S. 856 (1985),6 Appellant argues that the protection
against double jeopardy precluded the trial court from convicting and
sentencing her for three DUI offenses stemming from a single episode of
driving under the influence in violation of 75 Pa.C.S.A. § 3802(a)(1). See
Appellant’s Reply Brief at 1-3. Under Ball, Appellant reasons that two of her
convictions are unlawful, even though the trial court imposed no additional
penalty for those guilty verdicts. In the alternative, Appellant appears to
argue that, because a sentence under 42 Pa.C.S.A. § 9721(a)(2) may
include a determination of guilt without further penalty, the trial court
impermissibly imposed multiple sentences for a single criminal act. Since
these contentions plainly challenge the validity of Appellant’s judgment of
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6
In Ball, the United States government charged the defendant, a convicted
felon, of receiving a firearm in violation of 18 U.S.C. § 922(h)(1) and
possessing that same firearm in violation of 18 U.S.C. § 1202(a)(1).
Following conviction, the district court sentenced the defendant to
consecutive punishments. The court of appeals remanded the case with
instructions to impose concurrent sentences. The United States Supreme
Court reversed. Applying the test announced in Blockburger v. United
States, 284 U.S. 299 (1932), the Court determined that, “proof of illegal
receipt of a firearm necessarily includes proof of illegal possession of that
weapon.” Ball, 470 U.S. at 862 (emphasis in original). Based on this
assessment, the Court, while recognizing the government’s broad discretion
to simultaneously prosecute violations of §§ 922((h) and 1202(a), concluded
that Congress did not intend to subject individuals in the defendant’s
position to two convictions for the same criminal act. In the absence of
legislative history that supported multiple convictions and punishments for a
single act that constituted both receipt and possession of a firearm in
violation of §§ 922(h)(1) and 1202(a)(1), the Court held that proper remedy
was for the district court to vacate one of the defendant’s convictions.
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sentence under double jeopardy principles, we conclude that the present
claim is not subject to waiver and may be raised for the first time on appeal.
See Commonwealth v. Foster, 960 A.2d 160, 164 (Pa. Super. 2008)
(“argument premised upon double jeopardy-merger principles is considered
to relate to the legality of sentence”), affirmed, 17 A.3d 332 (Pa. 2011).
Accordingly, we turn to the merits of Appellant’s claims.
As we stated, the thrust of Appellant’s argument on appeal is that the
trial court violated the protection against double jeopardy by convicting and
sentencing her for three counts of DUI-general impairment stemming from a
single episode of criminal conduct. In developing this claim, Appellant
argues that the first three counts set forth in the information are virtually
identical in that they all allege a DUI-general impairment offense that
violated 75 Pa.C.S.A. § 3802(a)(1). Count one, however, adds a penalty
enhancement for refusing blood or breath tests in violation of 75 Pa.C.S.A.
§ 3804(c) and count two adds an enhancement for accidents resulting in
bodily injury, serious bodily injury or death, or damage to vehicle of other
property in violation of 75 Pa.C.S.A. § 3804(b). Appellant explains that
§ 3804 (entitled penalties) is a sentencing scheme setting forth mandatory
punishments for violating § 3802(a) under certain, identified conditions and,
as such, § 3804 does not create substantive offenses for purposes of
charging and convicting alleged offenders. Because § 3804 is not a criminal
statute, Appellant concludes that the trial court’s disposition at counts one,
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two, and three of the information constitutes multiple convictions and
sentences arising from a single instance of DUI-general impairment.
Appellant, anticipating the Commonwealth’s reliance on our opinion in
Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011), cites Ball and
argues that the protection against double jeopardy precludes multiple
convictions based upon the same criminal act. Appellant also argues that
the trial court subjected her to multiple sentences for the same criminal act
since a sentence under 42 Pa.C.S.A. § 9721(a)(2) may include a
determination of guilt without further penalty. Lastly, Appellant asks us to
revisit Mobley’s observation that we may refrain from finding a double
jeopardy violation where the trial court does not sentence the defendant on
both counts of an information that twice charges identical DUI offenses to
indicate a refusal of breath or blood alcohol testing. See Appellant’s Brief at
24-25.
The Commonwealth defends its charging practices and Appellant’s
multiple DUI convictions by citing prior decisions issued by this Court and
the United States Supreme Court. In particular, the Commonwealth points
to Alleyne v. United States, 133 S.Ct. 2151 (2013), wherein the Court
held that prosecutors must give notice to an accused of factors necessary for
the imposition of a mandatory minimum sentence and that an accused has
the right to have those factors determined by the factfinder beyond a
reasonable doubt. The Commonwealth argues that the information filed in
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this case reflects its effort to comply with constitutional requirements
mandated in Alleyne. The Commonwealth also directs our attention to
Commonwealth v. Langley, 145 A.3d 757 (Pa. Super. 2016), in which this
Court rejected a challenge to a charging document that alleged, in a single
count, that the defendant committed a DUI-general impairment offense and
thereafter included subparts stating that the defendant would be subject to
the enhanced penalties found in 75 Pa.C.S.A. §§ 3804(b)(2), 3804(c), and
3804(c.1). Although the Commonwealth acknowledges that the information
here, unlike the charging document in Langley, included the two § 3804
enhancements at separate counts, it argues that this distinction is
insignificant. Moreover, the Commonwealth insists that the charging
practice followed in this case is consistent with the prosecution’s duty to give
notice of enhanced penalties.
The Commonwealth also argues that if sentencing enhancements are
viewed as “elements” of a crime,7 then enhancements for accidents/property
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7
The Commonwealth cites the following authorities in support of this
contention. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(“facts that increase the prescribed range of penalties to which a criminal
defendant is exposed” are elements of the crime) (internal quotation marks
omitted); id. at 483 n.10 (“facts that expose a defendant to a punishment
greater than that otherwise legally prescribed were by definition ‘elements'
of a separate legal offense”); id. at 478 (“Any possible distinction between
an ‘element’ of a felony offense and a ‘sentencing factor’ was unknown to
the practice of criminal indictment, trial by jury, and judgment by court as it
existed during the years surrounding our Nation's founding.”) (footnote
(Footnote Continued Next Page)
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damage or refusal to allow blood or breath testing constitute new,
aggravated offenses that can be charged as separate counts that do not
merge since each enhancement contains an element that the other does not.
See Commonwealth Brief at 14, citing 42 Pa.C.S.A. § 9765. The
Commonwealth concludes that since no Pennsylvania appellate court has
adopted or applied Ball, the only way to effectuate Alleyne’s notice and
adjudicatory requirements is to hold that while separate sentences may
violate double jeopardy protections, separate convictions do not.
We employ the following principles in reviewing Appellant’s claims in
this appeal.
An appeal grounded in double jeopardy raises a question of
constitutional law. This Court's scope of review in making a
determination on a question of law is, as always, plenary.
Commonwealth v. Mattis, 686 A.2d 408, 410 (Pa. Super.
1996).
“The Double Jeopardy Clause, applicable to the States
through the Fourteenth Amendment, provides that no
person shall ‘be subject for the same offense to be twice put
in jeopardy of life or limb.’” Commonwealth v. Decker,
664 A.2d 1028, 1029 (Pa. Super. 1995) (citing [U.S. Const.
amend. V.). “Furthermore, the Double Jeopardy Clause []
protects against a second prosecution for the same offense
after acquittal. It protects against a second prosecution for
the same offense after conviction. And it protects against
multiple punishments for the same offense.” Id.Commonwealth v. Jackson, 10 A.3d 341, 344-345 (Pa. Super.
2010). Typically, to determine whether a defendant's protection
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(Footnote Continued)
omitted); Alleyne, 133 S.Ct. at 2159 (“If a fact was by law essential to the
penalty, it was an element of the offense.”).
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from multiple punishments for the same offense has been
violated, we apply the test set forth in [Blockburger;] [s]ee
Commonwealth v. Beckwith, 674 A.2d 276, 279 (Pa. Super.
1996). The [United States] Supreme Court explained this test
as follows:
In both the multiple punishment and multiple prosecution
contexts, th[e United States Supreme] Court has concluded
that where the two offenses for which the defendant is
punished or tried cannot survive the “same-elements” test,
the double jeopardy bar applies. The same-elements test,
sometimes referred to as the Blockburger test, inquires
whether each offense contains an element not contained in
the other; if not, they are the ‘same offense’ and double
jeopardy bars additional punishment and successive
prosecution.
United States v. Dixon, 509 U.S. 688, 696 (1993). We have
long followed the “same-elements” test of Blockburger in this
Commonwealth. See [Jackson, 10 A.3d at 344–345].
Hill v. Randolph, 24 A.3d 866, 871 (Pa. Super. 2011) (parallel citations
omitted).
Appellant's challenge is an unusual one. She does not rely on an
application of the Blockburger test since there is no doubt that her three
DUI-general impairment convictions under § 3802(a)(1) all involve the same
elements. Instead, the challenge that confronts Appellant is whether her
claim falls within the scope of the double jeopardy protection against
multiple punishments for the same offense. While it is clear that double
jeopardy shields defendants from multiple punishments for the same
offense, there is no Pennsylvania authority for the proposition that double
jeopardy precludes multiple convictions for the same offense. To overcome
this hurdle, Appellant cites Ball, in which the United States Supreme Court
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vacated separate convictions entered against a convicted felon for receiving
and possessing a firearm. In the alternative, Appellant argues that her
sentence of “guilty without further penalty,” which she received at counts
two and three, constitutes a “sentence” or “punishment” for purposes of the
protection against double jeopardy.
Under the circumstances of this case, we are inclined to agree with
Appellant’s latter position. In Ball, the United States Supreme Court framed
its analysis in terms of Congressional intent. In fact, the term “double
jeopardy” appears nowhere in the majority’s opinion. Given that
Pennsylvania’s double jeopardy jurisprudence prohibits multiple
punishments, but not convictions, for the same offense, we are reluctant to
incorporate and apply the holding in Ball as a component of Pennsylvania
law. Nonetheless, since a court may impose “guilt without further penalty”
as a sentence under 42 Pa.C.S.A. § 9721(a)(2), we shall treat the
dispositions at counts two and three as sentences for purposes of our double
jeopardy analysis.
Our discussion starts with the prior decision of this Court in Mobley,
which both parties cite and which discusses many issues relevant to this
appeal. In Mobley, the trial court convicted the defendant of two separate
counts of DUI-general impairment arising out of the same incident, where
one count alleged that the accused refused breath/blood testing. The only
issue raised by the defendant on appeal was whether there was sufficient
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evidence to convict him of DUI-general impairment. After rejecting the
defendant’s sufficiency challenge, the panel sua sponte turned to double
jeopardy issues raised by the defendant’s two convictions for DUI-general
impairment. After reviewing §§ 3802 and 3804, the panel concluded that
the provisions found in § 3804 were not elements of DUI offenses and
“delineate[ only] the applicable penalties to which a defendant is subject
when convicted of DUI.” Mobley, 14 A.3d at 894. With respect to the
refusal of blood/breath testing, the panel stated:
The refusal of a blood alcohol content (“BAC”) test is not a
separate element under 75 Pa.C.S. § 3802; rather, those who
refuse a BAC test must be charged pursuant to 75 Pa.C.S.
§ 3802(a)(1), general impairment. Since refusal of a
breath/blood test is not an element of the criminal offense that
pertains to guilt, the court should not have [twice] convicted
[Mobley] of the same criminal offense, DUI-general impairment,
arising out of the identical criminal episode. Instead, [Mobley]
should have been convicted of one count of DUI-general
impairment and been subject to the sentencing enhancement
provided by statute relative to a blood or breath test refusal.
See 75 Pa.C.S. § 3803(b)(2)(4); 75 Pa.C.S. § 3804(c).
Mobley, 14 A.3d at 891.
Although the decision in Mobley pre-dated Alleyne, the panel
astutely noted the emerging line of authority under Apprendi, supra and its
progeny which held that any fact that increased a maximum penalty, except
a prior conviction, required proof beyond a reasonable doubt, regardless of
whether the fact is labeled as an element of the offense or a sentencing
factor. See Mobley, 14 A.3d at 893. In view of these emerging
requirements, the panel acknowledged the Commonwealth’s practice of filing
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criminal informations with two general impairment counts to facilitate
adjudication by trial judges and avoid running afoul of Apprendi. Such
cases, the panel noted, confronted defendants with two charges of
§ 3802(a)(1). Mobley, therefore, cautioned that: “Charging the identical
criminal offense twice in the criminal information to indicate that one count
is alleging that a breath test/blood test refusal transpired constitutes
duplication of counts and creates possible double jeopardy implications if the
individual is sentenced on each count.” Mobley, 14 A.3d at 894. The
Mobley panel declined to order relief, however, since the trial court did not
sentence the defendant on both counts. Id. To avoid potential double
jeopardy concerns, Mobley suggested that the Commonwealth file its
charging documents with a single count of § 3802(a)(1) and simply add any
applicable enhancements to that single count.
After careful review, we are persuaded that, pursuant to the guidance
supplied in Mobley, the trial court violated Appellant’s protection against
double jeopardy. Here, the trial court imposed three separate sentences at
three counts that each alleged, at bottom, a single criminal act in violation of
the same criminal statute.8 As Appellant points out, such a disposition poses
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8
In its opinion, the trial court acknowledges that Appellant was charged with
and convicted of three counts of violating § 3802(a)(1). Trial Court Opinion,
6/23/16 at 6. However, the trial court concludes that Appellant’s double
jeopardy protections were not violated since she was only sentenced at
count one, and the remaining DUI convictions merged for sentencing
(Footnote Continued Next Page)
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significant collateral consequences, including unwarranted enhancement of
her prior record score (or prior DUI offense history) in subsequent criminal
proceedings and unjustified impediments to restoration of her driving
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(Footnote Continued)
purposes. Id. This conclusion, however, is flawed. The trial court did not
merge Appellant’s sentences but instead imposed “guilt without further
penalty” at counts two and three. Order of Sentence, 9/10/15. As we have
noted above, “guilt without further penalty” constitutes a sentence. See 42
Pa.C.S.A. § 9721(a)(2). Moreover, the court’s conclusion conflicts with
important concepts explained in Ball. There, the defendant was convicted of
two separate crimes - possession and receiving a firearm - and ultimately
sentenced to three years’ imprisonment on the receipt count and two years’
imprisonment on the possession count, to run concurrently. The Supreme
Court disagreed, however, and remanded the case to the trial court to
vacate one of the judgments. In reaching this conclusion, the Court noted
that “’punishment’ may be the equivalent of a criminal conviction and not
simply the imposition of sentence.” Ball, 470 U.S. at 861. The High Court
went on to state:
The second conviction, whose concomitant sentence is served
concurrently, does not evaporate simply because of the
concurrence of the sentence. The separate conviction, apart
from the concurrent sentence, has potential adverse collateral
consequences that may not be ignored. For example, the
presence of two convictions on the record may delay the
defendant’s eligibility for parole or result in an increased
sentence under a recidivist statute for a future offense.
Moreover, the second conviction may be used to impeach the
defendant’s credibility and certainly carries the societal stigma
accompanying any criminal convictions. Thus, the second
conviction, even if it results in no greater sentence, is an
impermissible punishment.
Id. at 864-865 (emphasis omitted; internal quotations omitted). Similarly,
Appellant’s convictions for all three counts of DUI simply do not evaporate
merely because the trial court deemed the counts to have merged for
sentencing purposes resulting in no further penalty for the convictions at
counts two and three. In this case, mere convictions that carry a sentence
of “no further penalty” are an impermissible punishment.
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privileges. See Appellant’s Brief at 22, citing Bell v. Commonwealth
Dep’t of Transportation, 96 A.3d 1005, 1019-1020 (Pa. 2014) (Penn DOT
may issue multiple driver’s license suspensions for multiple convictions
regardless of whether convictions merge for sentencing purposes and
regardless of whether they arose from a single criminal episode).
We further conclude that we are not bound by Mobley’s refusal to
grant relief. As a preliminary matter, Mobley did not raise and litigate a
double jeopardy claim in the context of his appeal. It appears that the panel
offered its analysis as gratuitous guidance for use in future litigation. See
In re L.J., 79 A.3d 1073, 1081 (Pa. 2013) (observing that stare decisis
applies only to issues actually raised, argued and adjudicated, and only
where the decision was necessary to the determination of the case). In
addition, Mobley’s determination to withhold relief rested on two cases,
Commonwealth v. McCoy, 895 A.2d 18 (Pa. Super. 2006) and
Commonwealth v. Williams, 871 A.2d 254 (Pa. super. 2005), which
involved issues of merger that are not present in this case. In McCoy, the
defendant was charged with violating § 3802(a)(1) (DUI-general
impairment) and § 3802(c) (DUI-highest rate). Similarly, in Williams, the
defendant was charged with violating § 3731(a)(1) (DUI-general
impairment) (repealed) and § 3731(a)(4)(i) (DUI-blood alcohol
concentration 0.10% or greater) (repealed). The sentences imposed
respectively in McCoy and Williams merged because all of the elements of
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the general impairment offenses were included within the elements of the
more serious offenses. Here, however, the double jeopardy issue did not
emerge because one act resulted in multiple convictions under distinct DUI
statutes. Instead, the issue here is whether a single criminal act can result
in multiple sentences for violations of the same DUI provision. We conclude
that it cannot.
This assessment is relevant to our rejection of a separate argument
advanced by the Commonwealth. In support of Appellant’s multiple
convictions and sentences, the Commonwealth suggests that because the
enhancements found in § 3804 are analogous to distinct elements of a
criminal offense, different enhancements may be alleged separately and are
not subject to merger. See Commonwealth’s Brief at 13-14. We are
unpersuaded by this analogy. The passage in Commonwealth v. Hopkins,
117 A.3d 247, 256-257 (Pa. 2015) upon which the Commonwealth relies,
when read in context, was intended to stress the new notice and
adjudicatory standards ushered in by Alleyne. It did not purport to
overturn Mobley’s prior determination that the enhancements found in
§ 3804 are not elements of a DUI offense. The doctrine of merger applies
were multiple “crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory elements of the other
offense.” 42 Pa.C.S.A. § 9765. Where these conditions are met, “the court
may sentence the defendant only on the higher graded offense.” Id. Here,
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in contrast, a single criminal act violated a single criminal statute and the
resulting sentence was subject to two distinct § 3804 enhancements, so long
as proper notice and adjudicatory standards were followed. The concept of
merger is inapplicable in these circumstances.
While we acknowledge the Commonwealth’s newly emerged duties
under Alleyne and progeny, we are not convinced that the charging
instrument employed in this case, with its attendant consequences, was the
only method by which the Commonwealth could discharge its obligations. In
Mobley, a previous panel of this Court cautioned the Commonwealth about
potential problems with its charging procedures and suggested a means to
avoid those pitfalls. Moreover, the variance between the information
approved in Langley and the charging document filed in this case is the
very feature that led to the imposition of multiple sentences for the same
offense.9 We cannot conclude, as the Commonwealth suggests, that these
differences were insignificant.
____________________________________________
9
Specifically, count one of the criminal information at issue in Langley
charged the defendant with DUI-general impairment under § 3802(a)(1) and
DUI-high rate of alcohol under § 3802(a)(2). Langley, 145 A.3d at 758.
The count went on to state that the defendant was subject to the enhanced
penalty contained in § 3804(b)(2) as his DUI violation under § 3802(a)(1)
resulted in an accident that caused bodily injury or property damage. Count
one also listed the mandatory minimum provisions in § 3804(c) for refusal of
testing blood or breath and § 3804(c.1) for violations involving a minor
occupant. Id. at 758-759. Thus, Mr. Langley was charged with only one
count of DUI (with notice provided in that count of the applicable sentence
(Footnote Continued Next Page)
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In the future, where a single DUI offense is subject to enhancements,
the Commonwealth should file a criminal information that sets forth a single
count under § 3802.10 Enhancements under § 3804 may be added as
subparts or subparagraphs, as appropriate. This will eliminate identical
criminal conduct leading to multiple convictions and sentences under the
same criminal statute and, simultaneously, supply the accused with the
requisite notice required under Alleyne. This method will also allow the
factfinder to make the necessary findings with respect to § 3804
enhancements, as Alleyne also commands.
While our decision vindicates important protections against double
jeopardy, it is not our intent to elevate form over substance. In this case,
the Commonwealth gave Appellant notice of the § 3804 enhancements that
it intended to pursue and proved their application beyond a reasonable
doubt. The Commonwealth, therefore, should not be hindered by our
decision herein. For these reasons, we vacate Appellant’s convictions and
sentences at counts one and two, affirm Appellant’s conviction but vacate
_______________________
(Footnote Continued)
enhancements) as opposed to the case sub judice where Appellant was
charged with and convicted of three separate counts of DUI.
10
To be clear, the Commonwealth may charge separate counts, as
appropriate, where the conduct at issue exposes the defendant to criminal
liability under multiple and distinct criminal provisions found in § 3802, such
as DUI-general impairment under § 3802(a)(1) and DUI-highest rate under
§ 3802(c). In such cases, if the Commonwealth seeks to add sentencing
enhancements under § 3804, such enhancements may be added as subparts
or subparagraphs under each count.
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her sentence at count three, and remand for resentencing at count three.
We also affirm Appellant’s conviction and sentence at count four. In fixing
Appellant’s sentence at count three, the trial court shall take into account its
prior findings as to the application of the § 3804 enhancements made in
connection with its deliberations on counts one and two. In so doing, the
court should also consider the recent opinions in Birchfield v. North
Dakota, 136 S.Ct. 2160 (2016) and Commonwealth v. Giron, 2017 WL
410267 (Pa. Super. 2017), which hold that a defendant who refuses to
provide a blood sample when requested by police is not subject to the
enhanced penalties provided in 75 Pa.C.S.A. §§ 3803–3804.
Convictions and judgments of sentence vacated as to counts one and
two. Conviction affirmed but judgment of sentence vacated at count three.
Conviction and judgment of sentence affirmed at count four. Case
remanded for resentencing at count three. Jurisdiction relinquished.
Solano, J. joins this opinion.
Strassburger, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 7/27/2017
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