Com. v. Dutrow, M.

J-A06034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL C. DUTROW
Appellant No. 1616 MDA 2015
Appeal from the Judgment of Sentence Entered August 20, 2015
In the Court of Common Pleas of Adams County
Criminal Division at No: CP-01-CR-0000074-2015
BEFORE: LAZARUS, STABILE, and DUBOW, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 16, 2016
Appellant, Michael C. Dutrow, appeals from the August 20, 2015
judgment of sentence imposing five years of intermediate punishment for
driving under the influence of alcohol, 75 Pa.C.S.A. § 3802(c) (highest rate
of alcohol). We affirm.
Appellant pled guilty to the aforementioned offense on May 21, 2015.
Appellant’s offense required a drug and alcohol assessment in accord with 75
Pa.C.S.A. § 3814 (“Drug and alcohol assessments”). The trial court
memorialized the parties’ plea agreement in its order accepting Appellant’s
guilty plea:
If the drug and alcohol assessment indicates the
Defendant is in need of treatment, the length of the
Intermediate Punishment Program will be five years. Otherwise,
the program will be a two-year program.
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Order, 5/21/2015, at 1. The parties’ agreement appears to track the
language of 75 Pa.C.S.A. § 3804(d),1 which provides that, for offenders who
are “in need of additional treatment” after the § 3814 assessment, “the
judge shall impose a minimum sentence as required by law and a maximum
sentence equal to the statutorily available maximum.” 74 Pa.C.S.A.
§ 3804(d). The parties agree that five years is the statutory maximum in
this case.2
The assessor recommended treatment, and the trial court therefore
imposed five years of intermediate punishment. Prior to sentencing,
Appellant voluntarily sought and completed a course of treatment. He
claims the course of treatment he completed satisfies the treatment
recommended by the assessor. Therefore, Appellant argues, he was not in
need of further treatment at the time of sentencing and the trial court
should have imposed two years of intermediate punishment. According to
the trial court, the fact of Appellant’s need for treatment, rather than the
date of its completion, required a five-year sentence under the terms of the
plea agreement. Trial Court Opinion, 10/6/2015, at 5. The longer sentence
imposed pursuant to the parties’ agreement in this case, as well as the
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1
As set forth below, we have no occasion to address the parties’ statutory
construction arguments.
2
Appellant’s second offense under § 3802(c) is a first-degree misdemeanor,
which carries a maximum sentence of five years. 75 Pa.C.S.A.
§ 3803(b)(4); 18 Pa.C.S.A. § 106(b)(6).
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longer sentence contemplated under § 3804(d), the trial court reasoned, “is
to ensure that the treatment is working and continues to work.” Id. The
court noted Appellant’s prolonged supervision after his first offense, and
concluded “extended supervision will help to ensure that Appellant gets the
necessary treatment and supervision to maintain his sobriety and to
discourage him from driving under the influence again.” Id.
Appellant filed a timely post-sentence motion on August 27, 2015.
The trial court denied the motion the next day. This timely appeal followed.
On appeal, Appellant argues the trial court’s sentence is illegal under
§ 3804(d), and that the trial court erred in denying his post-sentence motion
without a hearing.
“Settled Pennsylvania law makes clear that by entering a guilty plea,
the defendant waives his right to challenge on direct appeal all
nonjurisdictional defects except the legality of the sentence and the validity
of the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.
2013), appeal denied, 87 A.3d 319 (Pa. 2014). We have made an exception
to this rule, however, where the defendant pleads guilty pursuant to a plea
agreement with an open sentencing term. Commonwealth v. Tirado, 870
A.2d 362, 365 n.5 (Pa. Super. 2005). Appellant has not challenged the
validity of his plea. He argues his sentence is illegal because the trial court
misinterpreted § 3804(d) to require a five-year term. He argues that the
words “in need of additional treatment” in § 3804(d) do not apply where the
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defendant completes the needed treatment prior to sentencing. Appellant
believes the trial court’s alleged misinterpretation of § 3804(d) implicates
the legality of his sentence because the trial court believed it had no
alternative under § 3804(d) but to impose a five-year sentence, given the
assessor’s recommendation of treatment. Appellant relies on
Commonwealth v. Foster, 17 A.3d 332, 344-45 (Pa. 2011) (plurality), to
establish that his argument implicates the legality of his sentence.
We express no opinion on any aspect of Appellant’s sentence legality
argument, including whether or not his argument implicates sentencing
legality. As the trial court makes clear, it imposed its sentence “in accord
with the parties’ plea agreement.” Trial Court Opinion, 10/6/2015, at 2.
Nothing prevented Appellant from agreeing to serve an otherwise lawful
sentence, in this case five years of intermediate punishment, even assuming
(without deciding) that § 3804(d) does not require a five-year term under
present circumstances.3
Since Appellant’s sentencing legality argument is not dispositive, we
must discern whether Appellant’s argument is properly before this Court on
any other basis. As noted above, Appellant did not challenge the validity of
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3
The trial court opined that the sentence was in accord with both the
parties’ agreement and with statutory mandates. Trial Court Opinion,
10/6/2015, at 4. That statement does not require us to address the legality
of Appellant’s sentence, as enforcement of the parties’ plea agreement is a
sufficient independent basis to uphold Appellant’s sentence.
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his plea. If Appellant believed the trial court misinterpreted the phrase “in
need of treatment,” as that phrase was used in the plea agreement,
Appellant could have moved to withdraw his plea and thereby preserved this
issue for appellate review under Lincoln.
Thus, Appellant’s argument is properly before us only if we can treat it
as an appeal from a plea agreement with an open sentencing term in accord
with the rule cited in Tirado. We conclude we cannot. The sentencing term
of the parties’ agreement contemplates the imposition of one of two
sentences based on a contingency. It is therefore not an open term
agreement wherein the trial court retains discretion to impose any lawful
sentence. The proper sentence rests on interpretation of the phrase “in
need of treatment,” as that term is used in the plea agreement.
Interpretation of a plea agreement implicates contract law, not sentencing
discretion. See Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa.
Super. 2013) (en banc), appeal denied, 95 A.3d 276 (Pa. 2014). Appellant
did not present this issue to the trial court, and does not attempt to do so on
appeal.
In summary, we have concluded that Appellant’s sentencing legality
argument is not dispositive, and that this appeal from a sentence entered
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pursuant to a guilty plea is not properly before us on any other basis. 4 We
therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2016
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4
Given our disposition, the trial court’s decision not to conduct a hearing is
of no moment.
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