Com. v. Meredith, T.

J-S07010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TROY LEE MEREDITH,
Appellant No. 1115 MDA 2015
Appeal from the Judgment of Sentence June 4, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-SA-0000035-2015
BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 16, 2016
Troy Lee Meredith appeals from the judgment of sentence of ninety
days imprisonment that was imposed after he was convicted of driving with
a suspended license—DUI related.
The record reveals the following. On January 16, 2015, Appellant was
issued a citation for driving with a suspended license—DUI related. He was
convicted of that offense on April 2, 2015 by Magisterial District Judge Glenn
K. Manns. He appealed that decision to the Court of Common Pleas of
Franklin County, and was again convicted on May 28, 2015. Two
Chambersburg police officers observed Appellant, whom they recognized,
driving a blue Neon on East King and Main Streets in Chambersburg.
*
Former Justice specially assigned to the Superior Court.
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Appellant’s certified driving record revealed numerous past Motor Vehicle
Code violations and license suspensions. Most recently, Appellant’s license
was suspended for one year effective January 31, 2014, due to a conviction
for driving with a suspended license—DUI related.
The matter proceeded to sentencing, where the trial court imposed a
flat sentence of ninety days imprisonment. This sentence was imposed
pursuant to 75 Pa.C.S. § 1543(b)(1), which states, in pertinent part, that if
anyone drives a vehicle with a driver’s license suspended for a DUI offense,
that person “shall be sentenced to pay a fine of $500 and to undergo
imprisonment for a period of not less than 60 days nor more than 90 days.”
Appellant objected that the ninety-day flat sentence violated the provisions
of 42 Pa.C.S. § 9756(b)(1), which states that the court “shall impose a
minimum sentence of confinement which shall not exceed one-half of the
maximum sentence imposed.” This appeal followed imposition of sentence.
Appellant raises one contention on appeal,
Whether the Trial Court erred in imposing a flat term of 90
days imprisonment following Appellant’s conviction of Driving
While Operating Privilege is Suspended or Revoked, given the
Sentencing Code provision stating that, in imposing total
confinement, a court shall specify a maximum period as well as a
minimum sentence that does not exceed one-half of the
maximum.
Appellant’s brief at 5. Appellant relies upon § 9756(b)(1) and our decision in
Commonwealth v. Postie, 110 A.3d 1034 (Pa.Super. 2015).
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We note that “a claim that a flat sentence should have instead had
minimum and maximum terms goes to the legality of the sentence[.]” Id.
at 1043. “Our scope of review of challenges to the legality of a sentence is
plenary, and the standard of review is de novo.” Id. (citation omitted). In
Commonwealth v. Klingensmith, 650 A.2d 444 (Pa.Super. 1994), this
Court ruled on the question presently before this panel. Therein,
Klingensmith received a flat sentence of ninety days imprisonment under §
1543(b)(1) for driving with a suspended license—DUI related. At the time, §
1543(b)(1) mandated a ninety-day jail term for the crime in question. The
trial court also imposed a sentence of one to two years imprisonment for a
DUI offense. Thus, Klingensmith’s aggregate was one year and ninety days
to two years and ninety days.
On appeal, Klingensmith argued that the sentence violated §
9756(b)(1) since the minimum sentence exceeded one-half of the maximum
sentence. We observed that § 9756(b)(1) was a general statute applicable
to sentencing for all crimes while § 1543(b)(1) was specific to the offense of
driving with a suspended license—DUI related. The Klingensmith Court
ruled that “75 Pa.C.S. § 1543(b) implicitly creates an exception to 42
Pa.C.S. § 9756(b) by specifically authorizing a trial court to impose a flat
minimum mandatory sentence of ninety days for driving with a suspended
license when the license was suspended as a result of a prior DUI
conviction.” Id. at 447. Accord Commonwealth v. Ramos, 83 A.3d 86,
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92-93 (Pa. 2013) (ruling that minimum-maximum provision of § 9756(b)(1)
pertinent to all criminal sentences yielded to more specific minimum-
maximum sentencing paradigm applicable to persons convicted of drug-
trafficking offenses and upholding imposition of a five-year flat sentence).
In Postie, which is the case relied upon by Appellant, the defendant
was not sentenced under a statute that mandated imposition of a flat
sentence. Postie was convicted of driving while his driving privileges were
suspended and he was a repeat offender. The trial court imposed a flat
sentence on Postie of four months imprisonment. He was sentenced
pursuant to 75 Pa.C.S. § 6503(a.1), which sets forth, “A person convicted of
a sixth or subsequent offense under section 1543(a) shall be sentenced to . .
. imprisonment for not less than 30 days but not more than six months.”
The Postie Court noted that § 6503(a.1) did not call for the imposition
of a flat sentence and, instead, permitted a range of sentences. Within that
range, a sentence that was in compliance with § 9756(b)(1) was feasible in
that the trial court could have imposed a minimum sentence that did not
exceed one-half of the maximum sentence and still complied with §
6503(a.1). We thus agreed with Postie that his flat sentence of four months
violated § 9756(b)(1).
In this case, Klingensmith rather than Postie applies. While
Klingensmith involved a prior version of § 1543(b)(1) that called for
imposition of a sentence of ninety days imprisonment and did not allow a
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minimum of sixty days and a maximum of ninety days, the current version
of § 1543(b)(1) is not sufficiently distinguishable from the one examined in
Klingensmith. Section 1543(b)(1) now states that the sentence must be at
least sixty days but cannot exceed ninety days imprisonment. Its language
prohibits imposition of a minimum sentence that could be one-half or less of
the maximum sentence, unlike the sentencing provision examined in Postie.
Section 1543(b)(1) mandates a sentence that cannot be in compliance with
§ 9756(b)(1), remains specific to license suspension cases, compels
imposition of a flat sentence, and controls over the more general §
9756(b)(1). Ramos, supra; Klingensmith, supra. Thus, the flat
sentence of ninety days imprisonment is not infirm in this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2016
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