Com. v. Reber, B. ( 2019 )

J-S79030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRYAN RAY REBER :
:
Appellant : No. 994 MDA 2018
Appeal from the Judgment of Sentence May 24, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001716-2017
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 15, 2019
Appellant, Bryan Ray Reber, appeals from the judgment of sentence
entered on May 24, 2018. We affirm.
Following a stipulated bench trial on May 24, 2018, the trial court found
Appellant guilty of driving under the influence of alcohol and a drug or
combination of drugs (hereinafter “DUI”) and possessing drug paraphernalia.1
N.T. Trial, 5/24/18, at 7. The convictions arose out of Appellant’s actions on
May 6, 2017, when the police found Appellant asleep behind the wheel of a
stationary vehicle that had its engine running and its transmission in the drive
position. The arresting officer saw that Appellant had heroin on his lap and
subsequent testing revealed that Appellant had alcohol, methamphetamine,
and morphine in his blood. Affidavit of Probable Cause, 7/11/7, at 1.
____________________________________________
1 75 Pa.C.S.A. § 3802(d)(3) and 35 P.S. § 780-113(a)(32), respectively.
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After the stipulated trial, the parties immediately proceeded to
sentencing. At sentencing, the parties stipulated that Appellant had a prior
DUI offense. Moreover, the parties stipulated that Appellant’s prior DUI
occurred on May 21, 2006 and that Appellant was convicted of the DUI on May
23, 2007. See Appellant’s Sentencing Brief, 4/16/18, at 2; Commonwealth’s
Sentencing Brief, 5/18/18, at 1-2.
Notwithstanding this prior DUI conviction, Appellant claimed that he
should not be subject to the more severe grading and sentencing provisions
levied upon second-time DUI offenders, as his prior offense did not occur
“within 10 years prior to the date of the offense for which [Appellant was]
being sentenced.” See 75 Pa.C.S.A. § 3806(b)(1)(i) (“[f]or purposes of
sections . . . 3803 (relating to grading) [and] 3804 (relating to penalties) . . .
the prior offense must have occurred . . . within 10 years prior to the date of
the offense for which the defendant is being sentenced”); see also 75
Pa.C.S.A. § 3803(b)(4) (mandates a higher grading for individuals who violate
Section 3802(d), where the individual “has more than one prior offense”); 75
Pa.C.S.A. § 3804(b) (mandates increased penalties for individuals who violate
Section 3802(d) when it is “a second offense”).
Appellant argued that, to interpret Section 3806(b)(1)(i) properly and
determine whether he has a “prior offense” for purposes of that section, the
trial court must look to the dates that he actually committed his DUIs – which
were May 21, 2006 and May 6, 2017. Appellant claimed that, since more
than 10 years elapsed between these dates, he was not subject to Section
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3806(b)(1)(i)’s ten-year look-back provision and, thus, he did not have a
“prior offense” for purposes of Section 3806(b)(1)(i). Appellant’s Sentencing
Brief, 4/16/18, at 2.
Nevertheless, during sentencing, Appellant acknowledged this Court’s
recent opinion in Commonwealth v. Mock, 186 A.3d 434 (Pa. Super. 2018),
appeal granted, ___ A.3d ___, 2018 WL 6420180 (Pa. 2018). See N.T.
Sentencing, 5/24/18, at 3-4. In Mock, this Court held that “the phrase ‘prior
offense,’ as used in [75 Pa.C.S.A. § 3806(b)(1)(i)], refers to . . . the date of
conviction or other disposition” – not the date the individual actually
committed the prior DUI. Mock, 186 A.3d at 437-438. Therefore, Appellant
acknowledged that, under Mock, his “prior offense” occurred on the date he
was sentenced for his first DUI – which was May 23, 2007. See N.T.
Sentencing, 5/24/18, at 3-4. Appellant thus acknowledged that, since May
23, 2007 was “within 10 years prior to the date of the offense for which
[Appellant was] being sentenced” – which was May 6, 2017 – Mock required
the trial court to sentence him as a second-time DUI offender. Id. However,
during sentencing, Appellant informed the trial court that, even though the
trial court was bound by Mock, he was raising the claim for issue-preservation
purposes and so that a higher court could overrule Mock and grant him relief.
See id.
The trial court sentenced Appellant to serve a term of 90 days to five
years in jail, with a concurrent term of one year of probation, for his
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convictions. Id. at 8-9. Appellant filed a timely notice of appeal and now
raises one claim to this Court:
Whether the trial court committed reversible error when it
held that [Appellant’s] DUI conviction was a second offense
based on the provisions of 75 Pa.C.S. § 3806?
Appellant’s Brief at 5.
We need not engage in an extended discussion of Appellant’s claim on
appeal as Appellant acknowledges that Mock was binding on the trial court
and that Mock compelled the trial court’s sentencing decision. See
Appellant’s Brief at 19. While we understand that Appellant seeks to have
Mock overruled, we cannot do so. We, like the trial court, are bound by
Mock. See, e.g., Commonwealth v. Karash, 175 A.3d 306, (Pa. Super.
2017) (“a panel of this Court cannot overrule the decision by another panel”);
Commonwealth v. Taggert, 997 A.2d 1189, 1201 n.16 (Pa. Super. 2010)
(recognizing that “one three-judge panel of [the Superior] Court cannot
overrule another” three-judge panel). This is true even though the
Pennsylvania Supreme Court recently granted allowance of appeal in Mock.
See Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000)
(explaining that the Superior Court has “long held that as long as the
[precedential] decision has not been overturned by the Supreme Court, a
decision by our Court remains binding precedent”). Therefore, we must
conclude that Appellant’s claim fails as a matter of law.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/15/2019
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