DocketNumber: 01942
Judges: Cirillo, Olszewski, Brosky
Filed Date: 8/31/1993
Status: Precedential
Modified Date: 10/19/2024
This is an appeal from the judgment of sentence entered following acceptance of appellant’s pleas of guilt to the crimes of involuntary manslaughter
Appellant presents three issues for our review: (1) whether the sentencing court erred in failing to place adequate reasons on the record regarding imposition of sentence within the aggravated range of the Sentencing Guidelines; (2) whether appellant’s convictions for involuntary manslaughter and driving while under the influence merge for sentencing purposes; and (3) whether appellant’s sentence was excessive. For the reasons set forth below, we vacate the judgment of sentence imposed on the DUI conviction arising out of the August, 1991 accident and affirm the judgment of sentence imposed with regard to the other convictions.
Before addressing appellant’s claims, it is necessary to recount the relevant facts and history of this case. Appellant, John Huckleberry, was operating his vehicle in the early morning hours of August 13, 1991. Appellant was accompanied by his friend, Randall Vanderhoff. Both appellant and Mr. Vanderhoff had consumed approximately twelve beers each during the course of their ride and both were intoxicated.
Appellant entered into a plea agreement pursuant to which he would enter pleas of guilty to one count of involuntary manslaughter and two counts of driving while under the influence in exchange for the prosecutor’s agreement to nol pros all remaining charges. Appellant’s pleas were accepted by the court on September 18,1992. Appellant was sentenced on October 27, 1992. With regard to the August incident, appellant received a sentence of one and one-half (1)6) to four (4) years’ imprisonment for his involuntary manslaughter conviction. Appellant also received a concurrent sentence of thirty (30) days to twelve (12) months for his DUI conviction. A sentence of one (1) to (2) years was further imposed with respect to appellant’s DUI conviction arising out of the May accident. This sentence was directed to run consecutively to appellant’s other sentences. Appellant thus received an aggregate sentence of two and one-half (2)6) to six (6) years. Appellant filed a timely motion for reconsideration of sentence which was denied by the lower court. Appellant subsequently initiated this timely appeal.
We initially observe that appellant’s first and third issues present a challenge to the discretionary aspects of sentence. Before we may proceed to consider the merits of such claims, appellant must demonstrate that there is a substantial question that his sentence is inappropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). In furtherance of this requirement, appellant must include in his brief a concise statement of the reasons relied upon for allowance of the appeal. See Pa.R.AP., Rule 2119(f) and Commonwealth v.
Appellant’s second allegation of error requires us to ascertain whether the convictions arising out of the August, 1991 accident should have been merged for sentencing purposes. Questions of merger relate to the legality of sentence. Commonwealth v. Servich, 412 Pa.Super. at 133, 602 A.2d at 1345. The requirements of Commonwealth v. Tuladziecki and Rule 2119(f) do not apply to legality of sentencing issues. Id. See also 42 Pa.C.S.A. § 9781(a) (the defendant may appeal as of right the legality of the sentence). Consequently, we may proceed to consider the merits of appellant’s merger claim.
Appellant argues that his convictions for DUI and involuntary manslaughter arising out of the August accident merged for sentencing purposes. Appellant does not refer us to any relevant authority in support of his claim.
The law regarding the merger of offenses has been explicated by our Supreme Court in Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989) and Commonwealth v.
A person is guilty of involuntary manslaughter “when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.” 18 Pa.C.S.A. § 2504(a). By way of comparison, an individual commits the crime of driving while under the influence of alcohol where it is established that he drove, operated or was in actual physical control of the movement of
Comparison of the elements of the offenses persuades us that, under the circumstances presented here, the crimes of involuntary manslaughter and driving while under the influence of alcohol to a degree which rendered appellant incapable of driving safely merge for sentencing purposes. To be guilty of involuntary manslaughter, the Commonwealth was required to demonstrate that appellant caused the death of another as a direct result of his performance of an unlawful act in a reckless and grossly negligent manner. 18 Pa.C.S.A. § 2504(a), supra. In this case, the unlawful act forming the basis of appellant’s involuntary manslaughter conviction was that appellant violated 75 Pa.C.S.A. § 3731(a) by driving his vehicle at an excessive rate of speed while under the influence of alcohol to a degree which rendered him incapable of driving safely. Appellant’s DUI conviction was premised on this same conduct, i.e., driving his vehicle while under the influence of alcohol to a degree which rendered him incapable of driving safely as evidenced by his excessive speed and the accident. When viewed in this context, the elements of the crime of DUI thus are a necessary but not sufficient subcomponent of the
Where it is determined that a sentence is illegal, we may remand for resentencing or vacate and amend the invalid sentence directly. Commonwealth v. Kozrad, 346 Pa.Super. at 474, 499 A.2d at 1099; Commonwealth v. Alarie, 378 Pa.Super. 11, 19, 547 A.2d 1252, 1256 (1988), allocatur denied, 521 Pa. 616, 557 A.2d 720 (1989). In light of the circumstances in this case, we vacate the judgment of sentence imposed with respect to appellant’s DUI conviction arising out of the August, 1991 accident. The judgment of sentence for involuntary manslaughter and the judgment of sentence regarding the DUI conviction arising out of the May, 1992 incident is affirmed.
. 18 Pa.C.S.A. § 2504(a).
. 75 Pa.C.S.A. § 3731(a)(1).
. Subsequent blood-alcohol testing revealed that both appellant and Mr. Vanderhoff had blood-alcohol levels of .16% several hours after the accident.
. Subsequent blood-alcohol testing revealed appellant’s blood-alcohol level to be .21%.
. Even were we to excuse appellant's failure to file a Rule 2119(f) statement and further assume that appellant has presented a substantial question for review, he would not be entitled to any relief. Sentencing is a matter vested in the sound discretion of the trial court and the lower court’s judgment of sentence will not be disturbed by an appellate court absent an abuse of discretion. Commonwealth v. Clever, 395 Pa.Super. 192, 195, 576 A.2d 1108, 1110 (1990). Accord Commonwealth v. Martin, 416 Pa.Super. 507, 516, 611 A.2d 731, 735 (1992) and Commonwealth v. Wright, 411 Pa.Super. 111, 114, 600 A.2d 1289, 1291 (1991). Moreover, where a pre-sentence investigation report exists, it is presumed that the sentencing court considered all relevant factors and weighed those factors in a meaningful fashion. See Commonwealth v. Devers, 519 Pa. 88, 102, 546 A.2d 12, 18 (1988).
The sentencing court did not improperly rely upon factors that had been incorporated into the Sentencing Guidelines in imposing sentence within the aggravated range for appellant’s involuntary manslaughter conviction. See Order of Sentence, dated 10/27/92 at 2-3; Pennsylvania Commission on Sentencing Guideline Sentence Form, dated 10/28/92; Trial Court Opinion, filed 1/21/93, at 4-5 (providing that aggravated sentence was imposed because appellant had prior alcohol-related convictions which were not taken into account by the sentencing guidelines; appellant had an alcohol problem; appellant’s conduct in abusing alcohol and reckless driving indicates that he is a danger to society; prior probationary efforts had failed to rehabilitate appellant; and a lesser sentence would be inappropriate and depreciate the seriousness of the offense). The sentencing court likewise did not erroneously utilize the DUI conviction arising out of the August, 1991 accident to classify appellant as a second DUI offender with respect to the DUI conviction resulting from the May, 1992 accident. See Pennsylvania Commission on Sentencing Guideline Sentence Form, dated 10/28/92; Trial Court Opinion, filed 1/21/93, at 4 (indicating that appellant was a second offender for purposes of application of the DUI penalties because appellant had a prior DUI-related ARD disposition which occurred within seven years of the May conviction, i.e., in December, 1985); 75 Pa.C.S.A. § 3731(e)(1)(h) (imposing a mandatory minimum sentence of 30 days if the defendant has previously accepted ARD based on an offense under this section within the previous seven years) and § 3731(e)(2) (providing that acceptance of ARD for a charge brought under this section shall be considered a first conviction for the
. Appellee has likewise failed to provide us with a discussion of or citations to any pertinent authority. Rather, appellee concedes that the convictions merge.
. Although the Supreme Court revisited the issue in Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1992), the test enunciated by Justice McDermott was joined only by Justice Larsen. Justice Flaherty, who authored Weakland and Williams, commanded a majority of the votes as his concurrence was joined by Chief Justice Nix and Justice Cappy. Id., 526 Pa. at 347, 350, 586 A.2d at 378-379. Justices Zappala and Papadakos concurred in the result. Id. Burkhardt thus is a plurality decision which has no precedential effect. Commonwealth v. Anderson, 416 Pa.Super. 203, 217-218 n. 8, 610 A.2d 1042, 1048 n. 8 (1992) (en banc); Commonwealth v. Brown, 415 Pa.Super. 534, 540-541, 609 A.2d 1352, 1356 (1992).
. Because the sentence for the August DUI conviction was directed to run concurrently with the sentence imposed for the involuntary man