Com. v. Hynes, D. ( 2016 )

J-S47029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENNIS JARED HYNES
Appellant No. 1587 MDA 2015
Appeal from the Judgment of Sentence August 14, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0004484-2014
BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 06, 2016
Dennis Hynes appeals from his judgment of sentence for driving under
the influence (“DUI”) in violation of 75 Pa.C.S. §§ 3802(d)(1)(i) and
3802(d)(2). The trial court and the Commonwealth agree with Hynes that
his sentence as a second time DUI offender violates his rights under the Ex
Post Facto clauses of the United States and Pennsylvania Constitutions.
Accordingly, we reverse Hynes’ judgment of sentence and direct the trial
court to sentence him as a first time offender.
Hynes also argues that his sentences under subsections 3802(d)(1)(i)
and 3802(d)(2) should merge for sentencing purposes because they took
place during a single criminal act. For the reasons provided below, we hold
that these offenses do not merge.
The following chronology is relevant:
1
J-S47029-16
On January 28, 2014, Hynes was arrested in Columbia County for DUI.
On October 7, 2014, Hynes was arrested in Luzerne County, once
again for DUI. On November 10, 2014, Hynes was charged in the Luzerne
County case with one count of DUI under 75 Pa.C.S. § 3802(d)(1)(i) and one
count of DUI under 75 Pa.C.S. § 3802(d)(2). Both counts arose from the
incident on October 7, 2014. Hynes also was charged with one count of
possession of a small amount of marijuana for personal use under 35 P.S. §
780-113(a)(31)(i).
On January 12, 2015, Hynes was sentenced in the Columbia County
case as a first time DUI offender. Hynes did not appeal from his Columbia
County sentence.
On May 29, 2015, Hynes pled guilty in the Luzerne County case to one
count of DUI under section 3802(d)(1)(i), one count under section
3802(d)(2) and one count of possession of a small amount of marijuana for
personal use.
The Luzerne County Probation Department prepared a Pre-Sentence
Investigation report recommending that as a result of his Columbia County
sentence, the Luzerne County court should sentence Hynes as a second time
DUI offender under the December 26, 2014 amendment to 75 Pa.C.S. §
3806(b). Hynes filed a detailed memorandum contending that application of
amended section 3806 violated his rights under the Ex Post Facto Clause of
the United States Constitution.
-2-
J-S47029-16
On August 14, 2015, the Luzerne County court applied amended
section 3806 and sentenced Hynes as a second time DUI offender. The
court refused to merge the DUI counts for purposes of sentencing and
sentenced Hynes to two concurrent terms of 18 months’ intermediate
punishment with the first 90 days under house arrest. The court also
sentenced Hynes to six months’ consecutive probation for possession of a
small amount of marijuana for personal use. Hynes filed a timely notice of
appeal, and both Hynes and the Luzerne County court complied with
Pa.R.A.P. 1925.
Hynes raises two issues in this appeal: (1) his sentence as a second
time DUI offender violates the Ex Post Facto clauses of the United States and
Pennsylvania Constitutions; and (2) his two DUI counts should merge for
purposes of sentencing.
With regard to Hynes’ first argument, the Commonwealth concedes in
its appellate brief that Hynes’ sentence as a second time offender violates
his rights under the Ex Post Facto clauses. The Luzerne County court
concedes the same point in its Pa.R.A.P. 1925 opinion. See id. at 2 (“given
the Commonwealth’s position, and a review of the current law, this Court
agrees that [section 3806(b)] cannot be retroactively applied”). Based on
these stipulations, we will reverse Hynes’ judgment of sentence and remand
-3-
J-S47029-16
with directions that the trial court resentence Hynes as a first-time DUI
offender.1
____________________________________________
1
For the sake of completeness, we will summarize Hynes’ Ex Post Facto
objection to application of the December 26, 2014 amendment to 75 Pa.C.S.
§ 3806.
The December 26, 2014 amendment added the following italicized text to
original section 3806:
§ 3806. Prior offenses
(a) General rule.-- Except as set forth in subsection (b), the term
“prior offense” as used in this chapter shall mean a conviction,
adjudication of delinquency, juvenile consent decree, acceptance of
Accelerated Rehabilitative Disposition or other form of preliminary
disposition before the sentencing on the present violation for any of
the following:
(1) an offense under section 3802 (relating to driving under
influence of alcohol or controlled substance);
(2) an offense under former section 3731;
(3) an offense substantially similar to an offense under paragraph (1)
or (2) in another jurisdiction; or
(4) any combination of the offenses set forth in paragraph (1), (2) or
(3).
(b) Repeat offenses within ten years.--The calculation of prior
offenses for purposes of sections 1553(d.2) (relating to occupational
limited license), 3803 (relating to grading) and 3804 (relating to
penalties) shall include any conviction, whether or not judgment of
sentence has been imposed for the violation, adjudication of
delinquency, juvenile consent decree, acceptance of Accelerated
Rehabilitative Disposition or other form of preliminary disposition
within the ten years before the sentencing on the present violation for
any of the following:
(Footnote Continued Next Page)
-4-
J-S47029-16
Hynes’ second issue -- whether his DUI counts under subsections
3802(d)(1)(i) and d)(2) merge for purposes of sentencing -- implicates the
legality of his sentence. Thus, our standard of review is de novo and the
_______________________
(Footnote Continued)
(1) an offense under section 3802;
(2) an offense under former section 3731;
(3) an offense substantially similar to an offense under paragraph (1)
or (2) in another jurisdiction; or
(4) any combination of the offenses set forth in paragraph (1), (2) or
(3).
Id. (emphasis added).
Hynes argued that at the time of his Columbia and Luzerne County incidents,
the pre-December 26, 2014 version of section 3806 was in effect. Under
this version, a prior DUI incident would not constitute a “prior offense”
unless the defendant was sentenced for the prior incident at the time of the
new offense. Since Hynes had not been sentenced for his Columbia County
offense at the time of his Luzerne County offense, he could only be
sentenced as a first time offender in Luzerne County. Under amended
section 3806, a prior DUI incident would constitute a “prior offense” if the
defendant was sentenced for the prior incident at the time of sentencing for
the new offense. Under this amendment, Hynes could be sentenced as a
second time DUI offender in Luzerne County, because he had already been
sentenced for DUI in Columbia County at the time of sentencing in Luzerne
County.
Hynes argued that application of amended section 3806 violated the Ex Post
Facto Clause, because the prior version of section 3806 had been in effect at
the time of his Columbia and Luzerne County offenses, and amended section
3806 did not take effect until after both offenses. The trial court and the
Commonwealth now concede that Hynes’ position on this issue is correct.
Thus, the Luzerne County court must resentence Hynes as a first-time DUI
offender.
-5-
J-S47029-16
scope of our review is plenary. See Commonwealth v. Collins, 764 A.2d
1056, 1057 n. 1 (Pa.2001).
Section 9765 of the Sentencing Code provides:
No crimes shall merge for sentencing purposes unless the 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. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher[-]graded
offense.
42 Pa.C.S. § 9765. Accordingly, merger is appropriate only when two distinct
criteria are satisfied: (1) the crimes arise from a single criminal act; and (2)
all of the statutory elements of one of the offenses are included within the
statutory elements of the other. Id. “[T]he plain language of Section 9765
precludes courts from merging sentences when each offense contains a
statutory element that the other does not.” Commonwealth v. Raven, 97
A.3d 1244, 1250 (Pa.Super.2014). This precept applies whether the
offenses are codified in different statutes or in different subsections of the
same statute. See Raven, 97 A.3d at 1251-52 (different statutes);
Commonwealth v. Rhoades, 8 A.3d 912, 918 (Pa.Super.2010) (different
subsections of same statute).
75 Pa.C.S. § 3802(d)(1)(i) reads:
Controlled substances - An individual may not drive, operate, or
be in actual physical control of the movement of a vehicle under
any of the following circumstances: (1) there is in the
individual's blood any amount of a: (i) Schedule I Controlled
Substance, as defined in the Act of April 14, 1972 (P.L. 233, No.
-6-
J-S47029-16
64), known as the Controlled Substance, Drug Device and
Cosmetic Act.
Id.
75 Pa.C.S. § 3802(d)(2) reads:
Controlled substances - An individual may not drive, operate, or
be in actual physical control of the movement of a vehicle under
any of the following circumstances: [...] (2) The individual is
under the influence of a drug or a combination of drugs to a
degree which impairs the individual's ability to safely drive,
operate, or be in actual, physical control of the movement of the
vehicle.
Id.
Each of these subsections contains an element that the other does not.
Section 3802(d)(1)(i) requires proof that the defendant has any amount of a
Schedule I controlled substance in his blood; section 3802(d)(2) requires
proof that the defendant is under the influence of a drug or combination of
drugs to a degree which impairs his ability to safely drive, operate or be in
actual physical control of the movement of his vehicle. As a result of these
different elements, the Commonwealth can prove a violation of one
subsection without proving a violation of the other. If the Commonwealth
proves that the defendant has any amount of a Schedule I controlled
substance in his blood but fails to prove that he was under the influence, this
will make out a section 3802(d)(1)(i) violation but not a section 3802(d)(2)
violation. Conversely, if the Commonwealth proves that the defendant is
under the influence of a non-Schedule I drug to a degree that impairs his
ability to safely drive his vehicle, this will make out a section 3802(d)(2)
-7-
J-S47029-16
violation but not a section 3802(d)(1)(i) violation. Therefore, the trial court
correctly held that Hynes’ section 3802(d)(1)(i) violation does not merge
with his section 3802(d)(2) violation. See Raven, 97 A.3d at 1251-52
(count for accidents involving death or personal injury (AIDPI) while not
properly licensed, and count for driving while operating privileges suspended
or revoked-DUI related (DWS–DUI related) were not subject to merger for
sentencing purposes, where DWS–DUI related count imposed requirement
that license suspension be related to DUI or ARD, an element not
contemplated by AIDPI statute; count for AIDPI and count for habitual
offenders were not subject to merger for sentencing purposes where
conviction for habitual offenders required Commonwealth to demonstrate
that defendant had accumulated three separate convictions for serious traffic
offenses within five-year period, while AIDPI had no such element and
additionally required that defendant cause accident resulting in injury or
death); Rhoades, 8 A.3d at 918 (two counts of aggravated assault were not
subject to merger for sentencing purposes; charges were based on different
subsections of statute, with one requiring assault to be caused or attempted
“with a deadly weapon,” which element was not contained in other
subsection prohibiting any attempt to cause or the causing of serious bodily
injury without limiting itself to any particular mode of causing such injury).
-8-
J-S47029-16
Therefore, the trial court has the authority to impose separate
sentences on each DUI count at the time of resentencing.2
Judgment of sentence reversed; case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
____________________________________________
2
Because we are remanding for resentencing on both DUI counts, we also
vacate Hynes’ sentence for possession of a small amount of marijuana for
personal use and remand for sentencing on this count. We take this step to
give the trial court the opportunity to restructure its entire sentencing
scheme. See Commonwealth v. Goldhammer, 517 A.2d 1280, 1283–84
(Pa.1986); Commonwealth v. Vanderlin, 580 A.2d 820, 831
(Pa.Super.1990) (if court errs in its sentence on one count in multi-count
case, then all sentences for all counts will be vacated so court can
restructure its entire sentencing scheme).
We also take this opportunity to mention another issue that may arise at
resentencing. In his appellate brief, Hynes claims that the Commonwealth
stipulated during his guilty plea hearing that his two DUI counts must merge
for sentencing purposes. We are unable to confirm Hynes’ claim because
the guilty plea hearing transcript is not in the certified record. Nevertheless,
Hynes remains free to raise this issue at the time of resentencing.
-9-