Com. v. Popielarcheck, A.

J. A29001/16
2016 PA Super 276COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
APPELLANT : PENNSYLVANIA
:
v. :
:
ALEXIS POPIELARCHECK, :
:
Appellant :
: No. 1788 WDA 2015
Appeal from the Order October 9, 2015
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000079-2015
BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.
OPINION BY DUBOW, J.: FILED DECEMBER 06, 2016
The Commonwealth appeals from the October 9, 2015 Order denying
the Commonwealth’s Motion for Modification of Sentence and amending the
September 2, 2015 Judgment of Sentence.1 After careful review, we affirm
and hold that where a sentencing court sentences a DUI defendant to
County Intermediate Punishment (“CIP”) pursuant to 42 Pa.C.S. § 9763, the
sentencing court is not required to impose a mandatory maximum sentence
pursuant to 75 Pa.C.S. § 3804(d).
The relevant factual and procedural history of this case is as follows.
On June 15, 2015, Alexis Popielarcheck (“Appellee”) pled guilty to two
counts of Driving Under the Influence (DUI) (Second Offense - Ten Years);
1
The original Judgment of Sentence was amended to include the imposition
of electronic surveillance during Appellee’s house arrest, and to increase the
fine imposed from $1,000 to $1,500.
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thirteen counts of Disregard Traffic Lane; Reckless Driving; and Restraint
Systems as the result of an August 28, 2014 incident in which she was under
the influence of various controlled substances.2 The court ordered the
preparation of a pre-sentence investigation and modified Appellee’s bail to
require her to report to Greenbriar Treatment Center for inpatient drug and
alcohol therapy and to complete all recommended treatment.
The parties do not dispute the following. The instant offense was
Appellee’s second DUI offense in 10 years, was graded as a misdemeanor of
the first degree, and was punishable by a maximum sentence of five years.
Appellee was a qualified offender required to undergo “a full assessment for
alcohol and drug addiction” pursuant to 75 Pa.C.S. § 3814. Appellee did
undergo such an assessment, which found that she was “in need of
additional treatment.” If the trial court had not sentenced Appellee to CIP, a
mandatory five-year maximum sentence would apply, as discussed infra.
Moreover, the parties do not dispute that Appellee is eligible for a sentence
of CIP.
At the September 1, 2015 Sentencing Hearing, the court sentenced
Appellee to a total term of two years of CIP with 120 days to be served as
house arrest, with 21 days' credit for time at Greenbriar, and assessed a fine
of $1000 for the offense of DUI. The district attorney inquired about the
2
75 Pa.C.S. § 3802 (d)(1)(i) and (2); 75 Pa.C.S. § 3309; 75 Pa.C.S. §
3736; and 75 Pa. C.S. § 4581 (a)(2)(ii), respectively.
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total length of supervision due to statutory requirements, arguing
unsuccessfully that the court was required to sentence Appellee to the
statutory maximum range of her sentence, notwithstanding the court’s
discretion to sentence Appellant to CIP.
On September 11, 2015, the Commonwealth filed post-sentence
motions asserting that the sentencing court (i) erred by not imposing the
statutorily mandated fine; (ii) erred by not mandating electronic monitoring
as part of Appellee’s sentence of house arrest; (iii) erred by not imposing a
maximum term of five years; and (iv) abused its discretion in sentencing
Appellee to less than five years of supervision in light of the various factors
to be considered at sentencing.
By order entered October 9, 2015, the court amended its Sentencing
Order to reflect the correct fine and to include “[h]ouse arrest with electronic
surveillance,” adding that “[o]therwise, the sentence is legal and a proper
exercise of judicial discretion.”
The Commonwealth filed a timely appeal on November 6, 2015. Both
the trial court and the Commonwealth complied with Pa.R.A.P. 1925.
On appeal, the Commonwealth raises the following two issues:
I. Did the lower court err in disregarding the statutory mandate
requiring the imposition of a maximum sentence equal to the
statutorily available maximum for an offender deemed at an
initial assessment to be in need of further treatment?
Ii. Did the lower court abuse its discretion in failing to impose a
sentence with a long maximum term in order to achieve the
goals articulated by the [S]entencing [C]ode of assuring the
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safety of the public while providing for the rehabilitative needs of
the offender?
Commonwealth’s Brief at 9.
Legality of Appellee’s Sentence
In its first issue, the Commonwealth raises an issue of first impression.
The Commonwealth avers that the trial court was required as a matter of
law to sentence Appellee to the statutorily available maximum sentence
pursuant to 75 Pa.C.S. § 3804(d) because Appellee was deemed to be “in
need of additional treatment.” The Commonwealth acknowledges that,
notwithstanding mandatory minimum and maximum DUI penalties
enumerated in Section 3804, the trial court was vested with the discretion to
sentence Appellee to CIP in lieu of the applicable mandatory minimum
sentence. Nonetheless, the Commonwealth argues, the mandatory
maximum provision of Section 3804(d) still applies, and the trial court was
therefore required to impose the mandatory maximum sentence of five
years.
In contrast, Appellee avers that the Sentencing Code permits trial
courts to choose between two separate, “alternative” sentencing schemes.
She asserts that once the trial court exercised its discretion to sentence her
to CIP, neither the maximum nor the minimum provisions of Section 3804(d)
apply.
Addressing the Commonwealth’s averment requires us to revisit “the
interplay between the mandatory sentencing provision of the DUI statute
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and the discretionary sentencing provisions of the Sentencing Code, which
presents a question of law that compels plenary review to determine
whether the court committed an error of law.” Commonwealth v.
Williams, 941 A.2d 14, 21 (Pa. Super. 2008) (en banc) (citation and
internal quotation marks omitted).
Statutory interpretation is a question of law, therefore our standard of
review is de novo, and our scope of review is plenary. Commonwealth v.
Hall, 80 A.3d 1204, 1211 (Pa. 2013). “In all matters involving statutory
interpretation, we apply the Statutory Construction Act, 1 Pa.C.S. § 1501 et
seq., which provides that the object of interpretation and construction of
statutes is to ascertain and effectuate the intention of the General
Assembly.” Commonwealth v. McCoy, 962 A.2d 1160, 1166 (Pa. 2009)
(citation omitted).
Generally, a statute's plain language provides the best indication of
legislative intent. Id. We will only look beyond the plain language of the
statute when words are unclear or ambiguous, or the plain meaning would
lead to “a result that is absurd, impossible of execution or unreasonable.” 1
Pa.C.S. § 1922(1). Therefore, when ascertaining the meaning of a statute,
if the language is clear, we give the words their plain and ordinary meaning.
Hall, 80 A.3d at 1211.
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The statutory sections governing sentencing in DUI offenses are as
numerous as they are verbose. In an effort to avoid more confusion than is
necessary, we summarize the interplay of the relevant statutes as follows.
Under Section 9721 of the Sentencing Code, trial courts are
empowered to impose a sentence consisting of one or more alternatives
including, inter alia, imprisonment, probation, or CIP. 42 Pa.C.S. § 9721.
While Section 9721 generally permits a sentencing court to exercise its
discretion in choosing an appropriate sentence, under certain circumstances,
various other statutes mandate that sentencing courts impose mandatory
minimum and maximum sentences instead. See, e.g., 42 Pa.C.S. § 9718.2
(prescribing mandatory minimum sentences for second and subsequent
offenders of various sexual offenses).
Section 3804 of our DUI statute contains one such mandatory
sentencing scheme, with penalties enhanced based on prior DUI offenses or
a determination that the defendant is “in need of additional treatment.” See
75 Pa.C.S. § 3804; see also 75 Pa.C.S. § 3814 (mandating “a full
assessment for alcohol and drug addiction” where certain specified
conditions are met).
Relevant to the instant matter, Section 3804(d) provides that, “[i]f a
person is sentenced pursuant to this chapter and, after the initial
assessment required by Section 3814(1), the person is determined to be in
need of additional treatment pursuant to Section 3814(2), the judge shall
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impose a minimum sentence as provided by law and a maximum sentence
equal to the statutorily available maximum.” 75 Pa.C.S. § 3804(d). As our
Supreme Court has recognized, the purpose of the maximum sentence
mandate is to ensure that offenders “complete needed treatment.”
Commonwealth v. Taylor, 104 A.3d 479, 492 (Pa. 2014).
At first glance, the statutes permitting CIP sentences and the statutes
mandating minimum DUI sentences may seem inconsistent. However, as
this Court has recognized, the legislature adopted CIP “to give judges
another sentencing option” specifically one that “would lie between probation
and incarceration with respect to sentencing severity; to provide a more
appropriate form of punishment/treatment for certain types of non-violent
offenders; to make the offender more accountable to the community; and to
help reduce the county jail overcrowding problem while maintaining public
safety.” Williams, 941 A.2d at 24 (quotation omitted).
Moreover, Sections 9721 and 9763 specifically permit trial courts to
consider CIP for DUI offenders for first, second, or third offenses, in spite of
any mandatory minimum sentence elsewhere prescribed by law.3 42 Pa.C.S.
§§ 9721; 9763. As this Court has previously recognized, the DUI statute
and the Sentencing Code may be read together to permit a trial court to
3
Ordinarily, where a mandatory sentencing scheme applies, the trial court
no longer has the discretion it is ordinarily afforded under Section 9721 to
fashion a sentence of CIP. 42 Pa.C.S. § 9721(a.1).
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avoid a mandatory minimum sentence in favor of a sentence of CIP for
certain qualified offenders. Williams, 941 A.2d at 26.
This Court has repeatedly reaffirmed the right of sentencing courts to
consider CIP and rebuffed local efforts to eliminate or handicap this
discretion. See, e.g. Commonwealth v. Jurczak, 86 A.3d 265, 271-72
(Pa. Super. 2014) (rejecting county CIP plan that required all DUI offenders
to serve one-third of any applicable mandatory minimum sentence prior to
being eligible for CIP); Commonwealth v. Sarapa, 13 A.3d 961, 967-68
(Pa. Super. 2011) (rejecting county CIP plan that precluded CIP eligibility for
all DUI offenders).
In keeping with the intent of our legislature and the prior decisions of
this Court, we reaffirm our position that CIP is “a statutorily authorized
sentencing alternative . . . .” Jurczak, 86 A.3d 265, 267 (Pa. Super.
2014) (emphasis added).
Applying these principles to the instant case, we hold that by its plain
language, the mandatory maximum sentence provision in Section 3804(d)
applies only where a defendant “is sentenced pursuant to [that] chapter.”
75 Pa.C.S. § 3804(d). However, Appellee was not sentenced pursuant to
Chapter 38; she was sentenced under an alternative sentencing scheme to
CIP as authorized in Chapter 97 of our Sentencing Code. Therefore, neither
the mandatory minimum nor maximum provisions of our DUI statute apply
and the sentence imposed is not illegal.
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Discretionary Aspects of Appellee’s Sentence
In its second issue, the Commonwealth challenges the discretionary
aspects of Appellee’s sentence. A challenge to the discretionary aspects of
sentencing is not automatically reviewable as a matter of right.
Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008). Prior to
reviewing such a claim on its merits:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether the
issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant’s brief
has a fatal defect; and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code.
When appealing the discretionary aspects of a sentence, an
appellant must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement demonstrating
that there is a substantial question as to the appropriateness of
the sentence under the Sentencing Code . . . .
Id. (citations and quotations omitted). See also Pa.R.A.P. 2119(f).
The Commonwealth complied with the first two requirements by filing
a timely Notice of Appeal and preserving its sentencing issues by filing a
Petition to Reconsider Sentence. The Commonwealth also included a
separate Pa.R.A.P. 2119(f) Statement in its appellate brief.
Commonwealth’s Brief at 20-21.
As to whether the Commonwealth has presented a substantial
question, we note:
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
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substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and quotation omitted).
Here, the Commonwealth summarizes the evidence adduced during
Appellee’s Pre-Sentence Investigation suggesting she is in need of
treatment, and then summarily concludes that “the sentencing court abused
its discretion in imposing a total sentence of less than half the statutory
maximum available to ensure adequate supervision to promote the safety of
the public as well as the rehabilitative needs of [Appellee].”
Commonwealth’s Brief at 31-32.
The Commonwealth’s claim, that the sentencing court failed to
adequately consider these aggravating factors, closely mirrors the claims of
countless criminal defendants who aver that their sentencing courts failed to
adequately consider mitigating evidence. An argument that the sentencing
court failed to consider mitigating factors in favor of a lesser sentence does
not present a substantial question appropriate for our review.
Commonwealth v. Hanson, 856 A.2d 1254, 1257-58 (Pa. Super. 2004).
See also Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002)
(citing Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super.
1989) (en banc) (noting that an allegation that the sentencing court did not
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adequately consider various factors is, in effect, a request that this court
substitute its judgment for that of the lower court in fashioning a defendant’s
sentence).
Accordingly, we conclude that the Commonwealth’s assertion that the
trial court did not adequately consider Appellee’s need for treatment does
not raise a substantial question. Therefore, we will not review the merits of
this claim.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2016
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