Com. v. Treece, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
KRYSTLE LYNN TREECE
Appellee No. 11 MDA 2020
Appeal from the Order Entered December 2, 2019
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0001856-2019
BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 10, 2021
Appellee, Krystie Lynn Treece, pleaded guilty to her fourth offense for
driving under the influence of marijuana (“DUI”),1 for which the mandatory
minimum was one year’s imprisonment. The court sentenced Appellee to one
to five years’ imprisonment. Several months after beginning her sentence,
Appellee moved for early parole. The court granted her motion and permitted
her to serve the duration of her mandatory minimum at home instead of in
prison.
The Commonwealth appeals the order granting early parole to this
Court. We reverse. Early parole is not permissible because she must serve
her entire one-year mandatory minimum sentence for DUI in prison.
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802.
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On August 26, 2019, Appellee pleaded guilty to driving under the
influence of marijuana in violation of 75 Pa.C.S.A. § 3802(d), her fourth such
violation. She was not eligible for intermediate punishment because it was
her fourth offense within ten years. N.T., 8/26/19, at 2 (guilty plea hearing).
Under 75 Pa.C.S.A. § 3804, her crime was a Tier 3 offense2 that required a
one-year mandatory minimum sentence of imprisonment. The trial court
sentenced Appellee to one to five years’ imprisonment in county prison. Id.
at 7. The trial court denied Appellee’s request for release from custody to
safeguard her employment during the work release application process.
Appellee lives in a rental property and has full custody over her children.
Prior to her imprisonment in this case, Appellee was gainfully employed. While
in prison, she attended relapse prevention classes, AA meetings, and church.
Appellee’s mother assisted by caring for Appellee’s children and taking over
rental payments.
On October 28, 2019, Appellee moved for early parole on the ground
that her children were suffering physically and emotionally due to her
imprisonment. During a hearing on December 2, 2019, noting the great
difficulty, beyond mere hardship, suffered by Appellee’s family, the trial court
granted her early parole and ordered her confined at home for the remainder
of her mandatory minimum period. On December 31, 2019, the
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2As discussed in greater depth below, Pennsylvania has three tiers of sentence
schemes for DUI offenses.
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Commonwealth appealed to this Court. Both the Commonwealth and the trial
court have complied with Pa.R.A.P. 1925.
The Commonwealth raises two issues in this appeal:
I. Whether the sentencing court erred as a matter of law in
granting parole where [Appellant] had been sentenced [to] 1-5
years’ incarceration for a 4th offense DUI, but only served 115
days of her mandatory 1-year sentence?
II. Whether the sentencing court erred in releasing [Appellant] to
house arrest as the sentencing court lacked jurisdiction to
sentence [Appellant] to house arrest to satisfy the mandatory
minimum sentence on a 4th offense DUI?
Commonwealth’s Brief at 4. We address these questions together because
they raise the same issue—whether the trial court properly granted early
parole to Appellee. In our view, early parole from mandatory minimum DUI
sentences is unavailable under two DUI statutes, 75 Pa.C.S.A. §§ 3804 and
3815.
We have jurisdiction to decide an appeal by the Commonwealth from an
order granting early parole to the defendant. 42 Pa.C.S.A. § 9781
(Commonwealth may appeal as of right the legality of a sentence);
Commonwealth v. Finley, 135 A.3d 196, 200 n.8 (Pa. Super. 2016) (citing
Commonwealth v. Hall, 652 A.2d 858 (1995), and Commonwealth v.
Jamison, 652 A.2d 862 (1995)) (concluding that Superior Court had
jurisdiction to address Commonwealth’s appeal from trial court’s grant of early
parole).
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When we construe a statute, we must give effect to the legislature’s
intent and to all of the statute’s provisions. 1 Pa.C.S.A. § 1921(a). The best
indication of legislative intent is the plain language of the statute. Matter of
Private Sale of Prop. by Millcreek Twp. Sch. Dist., 185 A.3d 282, 290-91
(Pa. 2018). In ascertaining the plain meaning, we consider the statutory
language in context and give words and phrases their “common and approved
usage.” Commonwealth by Shapiro v. Golden Gate Nat’l Senior Care
LLC, 194 A.3d 1010, 1027 (Pa. 2018). When statutory language is clear and
unambiguous, courts must give effect to the words of the statute and must
not disregard the text to implement its objective. Id.; 1 Pa.C.S.A. § 1921(b).
Pennsylvania’s DUI laws are embodied in Chapter 38 of the Vehicle
Code, 75 Pa.C.S.A. § 3801-3817 (“Driving After Imbibing Alcohol Or Utilizing
Drugs”). Section 3802, 75 Pa.C.S.A. § 3802, provides a three-tier scheme for
DUI offenses that punishes drivers with higher levels of alcohol in their blood
more severely than drivers with relatively lower blood alcohol levels. Tier 1
includes individuals who (1) imbibe a sufficient amount of alcohol such that
the individual is rendered incapable of safely driving, operating or being in
actual physical control of the movement of a vehicle or (2) drive “after
imbibing a sufficient amount of alcohol such that the individual is rendered
incapable of safely driving ... the vehicle” and who drive with a blood alcohol
concentration (“BAC”) of at least 0.08% but less than 0.10%. Id., § 3802(a).
Tier 2 includes individuals who drive with a BAC of at least 0.10% but less
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than 0.16%. Id., § 3802(b). Tier 3 includes individuals who drive with a BAC
of 0.16% or higher. Id., § 3802(c). In addition, Section 3802(d) prohibits
an individual from driving a vehicle while various controlled substances are in
her blood, or while she is under the influence of a drug (or a combination of
drugs and alcohol) that impairs her ability to drive safely. Id., § 3802(d).
Violation of Section 3802(d) is a Tier 3 offense. Id.
With this backdrop, we turn to Section 3804, the first of two statutes
central to our analysis. Section 3804 provides that certain first-time DUI
offenders “shall undergo a mandatory minimum term of six months’
probation.”3 75 Pa.C.S.A. § 3804(a)(1)(i). For second and subsequent DUI
offenses, a DUI offender “shall be sentenced” to “undergo imprisonment” of
“not less than” a prescribed length of time. 75 Pa.C.S.A. § 3804(a) (Tier 1
offenses), 3804(b) (Tier 2 offenses), 3804(c) (Tier 3 offenses). Four-time
offenders such as Appellee “shall . . . undergo imprisonment . . . of not less
than” one year. 75 Pa.C.S.A. § 3804(c)(3)(i).
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3 There are multiple exceptions to this rule. Many first-time DUI offenses
require imprisonment, such as offenses that involve (1) high or highest rates
of alcohol, (2) controlled substances, (3) operation of commercial or school
vehicles, (4) operation by a minor, (5) operation of a vehicle with a minor
occupant, or (6) an accident resulting in bodily injury, serious bodily injury or
death of any person or damage to a vehicle or other property. See 75
Pa.C.S.A. §§ 3802, 3804.
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Pennsylvania courts have held, in the course of construing a predecessor
DUI statute, 75 Pa.C.S.A. § 3731,4 and other statutes, that the plain meaning
of “imprisonment” is involuntary detention in a correctional institution.
Commonwealth v. Kyle, 874 A.2d 12, 17 (Pa. 2005) (construing meaning
of “imprisonment” within Section 3731); Commonwealth v. Kriston, 588
A.2d 898, 899-900 (Pa. 1991) (construing Section 3731; noting that many
statutes in Judiciary Code, Title 42, “demonstrate a legislative intent that
sentences of imprisonment are to be served in institutional settings”);
Commonwealth v. Nobles, 198 A.3d 1101, 1106-07 (Pa. Super. 2018)
(construing 42 Pa.C.S.A. § 9760(1), which governs credit for time served in
custody). Imprisonment does not include electronic home monitoring.
Kriston, 588 A.2d at 900-01 (“[i]f the legislature had intended that it would
be sufficient for an offender to stay at home, it would not have used the term
‘imprisonment,’ which, by its plain and ordinary meaning and by legislative
references to confinement found in the Sentencing Code, must be taken to
mean confinement in an institution”).
Given the plain meaning of “imprisonment” and the decisions cited
above, we conclude that Section 3804’s text, “shall . . . undergo imprisonment
. . . of not less than” a minimum prescribed period, requires involuntary
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475 Pa.C.S.A. § 3731 was repealed effective February 1, 2004 and replaced
by the DUI statutory regime presently in effect, Chapter 38 of the Vehicle
Code.
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detention in a correctional institution for the entire minimum period. Had the
legislature intended a different penalty, it would have expressly said so, as it
did by prescribing probation for certain first-time offenders. It elected not to
do so for repeat offenders such as Appellee, a choice that speaks volumes.
The grant of early parole to Appellee is invalid under Section 3804, because it
flies in the face of Section 3804’s requirement that Appellee undergo
imprisonment in a correctional institution for her entire mandatory minimum
term of one year.
Nor does the second key statute, 75 Pa.C.S.A. § 3815, permit early
parole from a mandatory minimum sentence. Section 3815, the lone DUI
statute that expressly refers to the court’s parole powers, provides in relevant
part:
(a) County supervision.--Notwithstanding the length of any
maximum term of imprisonment imposed pursuant to sections
3803 (relating to grading) and 3804 (relating to penalties), and
notwithstanding the provisions of section 17 of the act of August
6, 1941 (P.L. 861, No. 323), referred to as the Pennsylvania Board
of Probation and Parole Law, the sentencing judge may grant
parole under the supervision of the county parole system to any
offender serving a sentence for a violation of section 3802
(relating to driving under influence of alcohol or controlled
substance) and, if applicable, serving any concurrent sentence of
imprisonment for any misdemeanor offense arising from the same
criminal episode as the violation of section 3802. The power of
the sentencing judge to grant parole shall apply only to those
offenders whose sentences are being served in a county prison
pursuant to 42 Pa.C.S. § 9762 (relating to sentencing proceeding;
place of confinement) or section 3804(d). The sentencing judge
shall declare his intention to retain parole authority and
supervision at the time of sentencing in cases in which he would
not otherwise have parole authority and supervision.
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(b) Parole.—
(1) An offender who is determined pursuant to section 3814
(relating to drug and alcohol assessments) to be in need of drug
and alcohol treatment shall be eligible for parole in accordance
with the terms and conditions prescribed in this section following
the expiration of the offender’s mandatory minimum term of
imprisonment.
Id. Section 3815(a) creates an exception to the Parole Board’s authority by
authorizing the sentencing court to retain parole authority over a DUI offender
sentenced to serve a state sentence in county prison. Section 3815(b)
provides that when the court directs a DUI offender to undergo drug and
alcohol treatment, the offender is eligible for parole after the expiration of his
mandatory minimum term of imprisonment. Neither Section 3815(a) nor
Section 3815(b) states, or even hints, that early parole is available in a DUI
case. Indeed, Section 3815(b)’s express reference to the availability of parole
after completion of the mandatory minimum indicates that it is not available
before completion. See Commonwealth v. Ostrosky, 866 A.2d 423, 430
(Pa. Super. 2005) (“[t]he maxim, expressio unius est exclusio alterius,
establishes the inference that, where certain things are designated in a
statute, all omissions should be understood as exclusions”) (internal
quotations omitted).
The trial court urges us to leave its early parole order intact based on a
concurring opinion in Commonwealth v. Pryor, 500 A.2d 811 (Pa. Super.
1985), which contended that early parole was available under the DUI statute
then in effect, 75 Pa.C.S.A. § 3731. Id. at 815-16. The concurring opinion
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in Pryor is unpersuasive, because as we have held above, the plain language
of Sections 3804 and 3815 precludes early parole.5 We share the trial court’s
sympathy for Appellee’s family, but that cannot override the letter of the law.
Order reversed. Case remanded for further proceedings in accordance
with this memorandum. Jurisdiction relinquished.
Judge Strassburger joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/10/2021
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5 Indeed, early parole was unavailable while Section 3731 was in effect. Our
Supreme Court held several years after Pryor that Section 3731’s
requirement of mandatory minimum terms of “imprisonment” precluded early
parole. Kriston, 588 A.2d at 900 (“parole cannot be granted for one who has
been found guilty of driving under the influence of alcohol until the mandatory
minimum sentence has been served”).
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