Com. v. Dimaggio, K.

J-S33042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KRISTINE DIMAGGIO
Appellant No. 31 EDA 2014
Appeal from the Judgment of Sentence entered December 6, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0006896-2013
BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 25, 2014
Kristine DiMaggio appeals from the judgment of sentence entered
December 6, 2013, for her conviction of driving under the influence of a drug
or combination of drugs. Appellant -appointed counsel has filed an
Anders/Santiago1 brief and petitioned for leave to withdraw as counsel.
We affirm and grant the petition to withdraw.
Appellant was arrested on suspicion of DUI after her vehicle was
involved in an accident near the King of Prussia Mall in Upper Merion
Township, Montgomery County. After a stipulated bench trial, the trial court
found Appellant guilty of DUI under 75 Pa.C.S.A. § 3802(d)(2) (drug or
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1
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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combination of drugs). Appellant conceded that she operated a motor
vehicle while under the influence of drugs containing benzodiazepine and
amphetamine, and that the drugs rendered her incapable of safely driving.
She also stipulated that the current DUI was her second in the past ten
years. See id. § 3806. The trial court sentenced Appellant to 90 days to 5
years to be served in the county prison,2 and later denied her post-sentence
motion. Appellant appealed to this Court, after which her counsel sought
leave to withdraw and filed an Anders/Santiago brief.
Counsel raises one issue for our review:
Is the five (5) year maximum sentence imposed with respect to
Pa.C.S. §
[Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013)]?
Anders/Santiago Brief at 4.
under Anders/Santiago, counsel must (1) petition this Court for leave to
withdraw after certifying that a thorough review of the record indicates the
appeal is frivolous; (2) file a brief referring to anything in the record that
might arguably support the appeal; and (3) give the appellant a copy of the
brief and advise the appellant of the right to obtain new counsel or file a pro
se brief to raise any additional points for review. Commonwealth v.
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2
Although it was entered on the docket, the written order imposing the
judgment of sentence is not in the certified record. Counsel has provided a
photocopy of the order. See Anders/Santiago Brief at 2.
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Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). Additionally, the
Anders/Santiago brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
;
and
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
We find that counsel has met the procedural and substantive
requirements of Anders and Santiago. Counsel has petitioned for leave to
withdraw, filed a brief that refers us to anything that might support the
appeal, and informed Appellant of her right to hire a new lawyer or file a pro
se response.3
of Santiago listed above.
We now conduct an independent review of the sole issue raised: a
sentence.4 See Commonwealth v.
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3
Appellant has not filed a response.
4
The legality of a sentence is a question of law. Accordingly, our standard
of review is de novo, and our scope of review is plenary. Commonwealth
v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013).
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Washington, 63 A.3d 797, 800 (Pa. Super. 2013) (citing Santiago, 978
review of the
proceedings and make an independent judgment to decide whether the
appeal is, in fact, who
Appellant argues that her sentence is illegal based on our decision in
Musau. In Musau, the defendant was convicted of a second-offense DUI
where he refused to submit to blood alcohol testing. Musau, 69 A.3d at
755-56. He appealed, claiming that his sentence of 90 days to 5 years in
prison was illegal. Id.Construing the relevant statute, we agreed. Regarding the grading of
the various DUI offenses, the Vehicle Code provides:
(a) Basic offenses. Notwithstanding the provisions of
subsection (b):
(1) An individual who violates section 3802(a) (relating to
driving under influence of alcohol or controlled substance)
and has no more than one prior offense commits a
misdemeanor for which the individual may be sentenced to
a term of imprisonment of not more than six months and
to pay a fine under section 3804 (relating to penalties).
***
(b) Other offenses.
***
(4) An individual who violates section 3802(a)(1) where
the individual refused testing of blood or breath, or who
violates section 3802(c) or (d) and who has one or more
prior offenses commits a misdemeanor of the first degree.
Id. at 757 (quoting 75 Pa.C.S.A. § 3803) (emphasis added). We held,
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refusal to submit to blood alcohol testing results in the grading of the
offense as a first degree misdemeanor, the maximum sentence for a first or
Id. at 757-58.5
Musau is distinguishable. Section 3803(a)(1), which limits the
maximum sentence for DUI to six months notwithstanding § 3803(b) applies
only to individuals convicted of DUI under § 3802(a). That section prohibits:
(a) General impairment.--
(1) An individual may not drive, operate or be in actual
physical control of the movement of a vehicle after
imbibing 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 the
vehicle.
(2) An individual may not drive, operate or be in actual
physical control of the movement of a vehicle after
imbibing a sufficient amount of alcohol such that the
at least 0.08% but less than 0.10% within two hours after
the individual has driven, operated or been in actual
physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(a) (emphasis added). Here, Appellant was not
convicted of DUI of a sufficient amount of alcohol (1) that rendered her
incapable of safely driving or (2) such that her blood alcohol content was
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5
The Commonwealth filed a petition for allowance of appeal, at No. 510 EAL
2013, which the Supreme Court had held pending a decision in
Commonwealth v. Mendez, No. 32 EAP 2013. We also note that a bill is
pending before the General Assembly which would abrogate Musau by
changing the language in §
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between .08% and .10% within two hours of driving. Rather, she was
convicted of DUI of a drug or combination of drugs:
(d) 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
combination of drugs to a degree which impairs the
actual
physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(d). DUI under § 3802(d) is a first-degree misdemeanor
if, like here, it is a second offense. Id. § 3083(b)(4). The maximum
sentence for a first-degree misdemeanor is five years, the sentence that
Appellant received. 18 Pa.C.S.A. § 1104(1).
Because Musau is inapplicable, the maximum sentence that Appellant
could have received is five years not six months. Her sentence is therefore
legal, and we agree with counsel that Appellant
her sentence has no basis in law.
Having conducted an independent review, we determine that this
appeal is wholly frivolous. In addition, counsel has met the procedural
requirements to withdraw as counsel. Hence, we affirm the judgment of
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2014
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