Com. v. Filan, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
MARLEAH CLARRINDA FILAN :
:
Appellant : No. 942 MDA 2020
Appeal from the Judgment of Sentence Entered June 8, 2020
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000292-2019
BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 19, 2021
Marleah Clarrinda Filan (“Filan”) appeals from the judgment of sentence
entered following her conviction of two counts of driving under the influence
of a controlled substance (“DUI”), and one count each of possession of drug
paraphernalia and possession of a small amount of marijuana.1 We vacate
and remand for resentencing.
On September 6, 2018, shortly before 9:00 p.m., Littlestown Borough
Police Officers Anthony Gilberto (“Officer Gilberto”) and Nathanial Owens
(“Officer Owens”), while driving on patrol, pulled behind a silver Subaru
station wagon. The officers’ attention was drawn to the silver Subaru at the
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1 See 18 Pa.C.S.A. § 3802(d)(1)(i), (ii); 35 P.S. § 780-113(a)(32), (38).
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intersection of South Queen Street and Cemetery Street, in Littlestown,
Adams County.
They observed the silver Subaru almost came to a complete stop
in the roadway and the front passenger of the Subaru motioned
to a man standing on the western corner of Cemetery Street and
South Queen Street. Officer Owens slowed his vehicle as a result
of the silver Subaru almost coming to a complete stop in the
roadway.
Suppression Court Opinion, 7/11/19, at 2 (paragraph designations and
formatting omitted). As the officers followed the Subaru, they noticed that
the Subaru’s front windows were open, and further detected an odor of burnt
marijuana. As they continued following the Subaru, the officers detected a
strong odor of burnt marijuana emanating from the vehicle. Thereafter, the
officers stopped the vehicle. During the course of the vehicle stop, the officers
detected the odor of marijuana coming from inside of the vehicle. The officers
subsequently searched the vehicle, recovering a burnt marijuana “roach” from
the inside of the vehicle, and a second burnt marijuana “roach” was recovered
from Filan’s person. Id. at 3.
Following her arrest, Filan filed a Motion to suppress the items seized as
a result of the vehicle stop. Following a hearing, the trial court denied the
Motion. On November 19, 2019, after a non-jury trial, the trial court found
Filan guilty of the above-described charges. On January 10, 2020, Filan filed
a Motion to continue sentencing pending completion of inpatient treatment.
The trial court granted a continuance until March 17, 2020. Because of
COVID-19 restrictions, sentencing was continued to June 8, 2020.
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On June 8, 2020, Filan appeared with counsel for sentencing. The trial
court found that Filan had a prior conviction, based upon her stipulation to a
prior Accelerated Rehabilitative Disposition (“ARD”). Therefore, the trial court
sentenced Filan, for her first count of DUI (75 Pa.C.S.A. § 3802(d)(1)(i)), to
60 months of probation with 180 days of restricting DUI conditions, all on
house arrest with electronic monitoring. The trial court imposed no sentence
for Filan’s remaining conviction of DUI (75 Pa.C.S.A. § 3802(d)(1)(ii)),
concluding that it merged with her first count for sentencing purposes. For
her conviction of possession of drug paraphernalia, the trial court imposed a
concurrent twelve-month term of probation.
On June 30, 2020, Filan filed a “Motion for Modification of Sentence Nunc
Pro Tunc and for Extension of Time in Which to Report or Secure a Residence
for House Arrest” (the “Post Sentence Motion”). On June 30, 2020, the trial
court denied the Post Sentence Motion. Filan timely filed a Notice of Appeal,
followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal.
Filan presents the following issue for our review:
Whether the sentencing court erred in denying [the Post Sentence
Motion,] inasmuch as said denial deprived [Filan] of the right to
due process of law and subjected her to an unconstitutional and
unlawful sentence[,] as pronounced in this Court’s decision in
Commonwealth v. Chichkin, [232 A.3d 959 (Pa. Super. 2020),]
on May 20, 2020?
Brief for Appellant at 7.
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Filan claims that the circumstances of her case are indistinguishable
from those presented in Chichkin and Commonwealth v. Roche, 3475 EDA
2018, which was consolidated with Chichkin. Brief for Appellant at 11.
According to Filan, the following stipulation was entered on the record at her
bench trial:
[Filan] has a prior conviction for driving under the influence[,]
which stems from an incident on March 28, 2018, in Wyoming
County, Pennsylvania, which resulted in [her] being placed on ARD
on September 21, 2018, for a period of 12 months.
Id. (citation omitted). Filan argues that, although the stipulation referred to
a “prior conviction,” this is an error. Id. at 12. Filan argues that she
successfully completed ARD, and that the instant offense should have been
treated as a first offense, in accordance with this Court’s holding in Chichkin.
Id. Filan points out that the Superior Court’s decision in Chichkin was filed
19 days prior to her sentencing. Id. According to Filan, her request to file
the Post Sentence Motion was appropriate, as counsel’s failure to challenge
her sentence resulted in the denial of due process, and is an appropriate basis
upon which to grant nunc pro tunc relief. Id. at 12-13.
As our Supreme Court has recognized, “where the mandatory minimum
sentencing authority on which the sentencing court relied is rendered void on
its face, and no separate mandatory authority supported the sentence, any
sentence entered under such purported authority is an illegal sentence for
issue preservation purposes on direct appeal.” Commonwealth v.
Dimatteo, 177 A.3d 182, 187 (Pa. 2018). Because Filan challenges the
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legality of her sentence, any failure to timely file the Post Sentence Motion
does not preclude our review. See id.Motor Vehicle Code Section 3806 defines the term “prior offense”
as, inter alia,
any conviction for which judgment of sentence has been imposed,
adjudication of delinquency, juvenile consent decree, acceptance
of [ARD] or other form of preliminary disposition before the
sentencing on the present violation for …
(1) an offense under section 3802 (relating to driving under
influence of alcohol or controlled substance)[.]
75 Pa.C.S.A. § 3806(a)(1). In Chichkin, this Court, analyzing Section
3806(a)(1), and applying the United States Supreme Court’s decisions in
Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New
Jersey, 530 U.S. 466 (2000), concluded that Section 3806(a)(1)’s inclusion
of ARD as a “prior offense” for sentencing purposes is unconstitutional.2 As
Filan points out, Chichkin was filed prior to her sentencing.
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2 Specifically, this Court concluded that
the particular provision of 75 Pa.C.S.[A.] § 3806(a), which
defines a prior acceptance of ARD in a DUI case as a “prior
offense” for DUI sentencing enhancement purposes, offends the
Due Process Clause and is therefore unconstitutional. We thus
further conclude [that the appellants’] constitutional rights were
violated when the trial court increased their sentences based
solely upon their prior acceptances of ARD, absent proof beyond
a reasonable doubt that [the a]ppellants committed the prior
offenses.
Chichkin, 232 A.3d at 971.
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Here, the trial court improperly considered Filan’s prior ARD as a prior
conviction for sentencing purposes. The trial court has forwarded to this Court
a Supplemental Opinion, acknowledging that Filan’s sentence is illegal under
Chichkin, and requesting a remand for resentencing. See Trial Court
Opinion, 10/26/20, at 2. Because the record supports Filan’s claim of an illegal
sentence, we agree with the trial court’s recommendation. Accordingly, we
vacate Filan’s judgment of sentence, and remand for resentencing in
accordance with Chichkin.
Judgment of sentence vacated. Case remanded for resentencing in
accordance with this Memorandum. Superior Court jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/19/2021
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