Com. v. Warke, J.

J-S28042-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY SCOTT WARKE :
:
Appellant : No. 1506 MDA 2019
Appeal from the Judgment of Sentence Entered August 26, 2019
in the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001116-2019
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 07, 2020
Jeffrey Scott Warke (“Warke”) appeals from the judgment of sentence
entered following his conviction of illegally operating a motor vehicle not
equipped with an ignition interlock device, and the summary offenses of
registration of snowmobile or all-terrain vehicle (“ATV”), liability insurance,
and operation on streets and highways.1 We affirm.
On April 27, 2019, Pennsylvania State Police Trooper Joseph J. Aponick
(“Trooper Aponick”) was on patrol in a marked police cruiser. As he drove on
State Route 339 toward Brandonville, Trooper Aponick observed Warke riding
toward him on an ATV. Warke operated the ATV with two wheels on the
highway, and two wheels on the berm of the highway. Trooper Aponick
____________________________________________
1 See 75 Pa.C.S.A. §§ 3808(a)(1), 1711.1(a)(1), 7730(a), 7721(a).
J-S28042-20
activated his lights and stopped Warke’s vehicle. Upon investigation, Aponick
discovered that Warke’s ATV was not registered; a required ignition interlock
device was not installed on the ATV; and Warke did not have liability insurance
covering the ATV. Officer Aponick was thereafter dispatched on another call.
On July 29, 2019, the Commonwealth filed a Criminal Information
charging Warke with the above-described offenses. Following a bench trial,
the trial court convicted Warke of all charges. On August 26, 2019, the trial
court sentenced Warke to 30-60 days in jail for his conviction of operating a
motor vehicle without an ignition interlock device, plus fines, fees, and costs
for his remaining convictions. Warke filed a post-sentence Motion to modify
his sentence, which the trial court denied.2 Thereafter, Warke filed the instant
timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
Warke presents the following claim for our review: “Is the Ignition
Interlock Law, 75 Pa.C.S.A. § 3805, unconstitutional?” Brief for Appellant at
4.
As this Court has explained,
[w]hen an appellant challenges the constitutionality of a statute,
[he] presents this Court with a question of law. Our consideration
of questions of law is plenary. A statute is presumed to be
constitutional and will not be declared unconstitutional unless it
____________________________________________
2 Warke also filed a post-sentence Motion requesting that the trial court amend
its sentence to allow for intermediate punishment. The trial court denied
Warke’s Motion. However, on October 7, 2019, the trial court amended its
sentence to delay incarceration until after Warke’s direct appeal is resolved.
-2-
J-S28042-20
clearly, palpably, and plainly violates the constitution. Thus, the
party challenging the constitutionality of a statute has a heavy
burden of persuasion.
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004).
Warke claims Section 3805 of the Motor Vehicle Code3 arbitrarily
establishes a classification of individuals based upon how many vehicles they
owned. Brief for Appellant at 12. Warke argues that “[t]reating offenders
differently[,] based upon the number of vehicles owned by each[,] creates an
arbitrary classification which does not bear a fair and substantial relationship
to the object of the legislation.” Id. According to Warke, “to require the
offender to actually own a vehicle that is equipped with the device in order to
secure a restricted license bears no reasonable relationship to the object of
the legislation.” Id. at 13.
Warke additionally argues that the classification is arbitrary and
overbroad. Id. Warke posits that an offender in a household where all
vehicles are leased, or owned by another family member, is prohibited from
obtaining a restricted license, “even if the owner of the vehicle is willing to
allow it to be equipped with an ignition interlock device.” Id. According to
Warke, “[l]imiting multiple DUI offenders following a one-year license
suspension to a restricted license during a second year that prohibits them
____________________________________________
3Warke generally refers to Act 63 of 2000 (“Act 63”), 42 Pa.C.S.A. §§ 7001-
7003. However, Warke specifically takes issue with section 3805 of the Motor
Vehicle Code, which required him to have an ignition interlock device installed
on any motor vehicle owned by him.
-3-
J-S28042-20
from operating a motor vehicle unless it is equipped with an ignition interlock
device would be sufficient to accomplish the goal of the legislation.” Id. at
14. Warke asserts that, by adding the requirement that the offender actually
own a vehicle, “and that every vehicle owned by the offender be equipped
with the device, is arbitrary, unreasonable, and therefore unconstitutional.”
Id. In short, Warke argues that the following classes of people are treated
differently by the statute: (a) leaseholders versus owners of vehicles; (b)
drivers subject to supervision, whereby a certification of compliance could be
made, versus unsupervised drivers; and (c) owners versus operators of
vehicles (i.e., requiring an ignition interlock device to be installed on all
vehicles owned by the offenders as opposed to the vehicles actually driven by
the offender). Id. at 15-17.
Warke also asserts that multiple DUI offenders, following a one-year-
license suspension, are limited to a restricted license that prohibits them from
operating a motor vehicle, unless it is equipped with an ignition interlock
device. Id. at 17. However, the legislation unnecessarily requires that the
offender actually own a vehicle, and that every vehicle owned by the offender
be equipped with the device. Id. Warke contends that this requirement is
arbitrary, unreasonable, and unconstitutional. Id.
As our Supreme Court has explained, “the constitutionality of a statute
is a pure question of law, our standard of review is de novo and our scope of
-4-
J-S28042-20
review is plenary.” Commonwealth v. Omar, 981 A.2d 179, 185 (Pa.
2009) (citation omitted).
Before addressing the constitutional issues raised by Warke, we first
must ascertain whether they were preserved for appellate review. Our review
of the record discloses that Warke preserved the following claims for appellate
review:
An ATV cannot be equipped with an ignition interlock system. A
motorcycle cannot be equipped with an ignition interlock system.
Therefore, a defendant cannot own a motorcycle or ATV and have
his operating privileges allowed for any motor vehicle, including
those equipped with an ignition interlock system.
Therefore, these statutes unconstitutionally deprive a
defendant of property without due process of law.
Statute is overbroad and unenforceable.
Concise Statement, 10/21/19 (emphasis added).
Warke’s Pa.R.A.P. 1925(b) Concise Statement does not preserve a
constitutional challenge based upon the Equal Protection Clause of the United
States or Pennsylvania Constitutions. See id. Our review further discloses
that the trial court did not address this claim in its Opinion. Accordingly,
Warke’s equal protection claim is waived. See Pa.R.A.P. 302(a) (stating that
an issued cannot be raised for the first time on appeal); Pa.R.A.P.
1925(b)(4)(vii) (stating that issues not included in the concise statement are
waived); Commonwealth v. Rolan, 964 A.2d 398, 409 (Pa. Super.
2008) (citations omitted) (stating “[w]here the trial court orders an
[a]ppellant to file a concise statement of matters complained of on appeal
-5-
J-S28042-20
under Pa.R.A.P. 1925, any issue not contained in that statement is waived on
appeal.”).
In its Opinion, the trial court addressed Warke’s challenge to the statute
as overbroad, and concluded that it lacks merit. See Trial Court Opinion,
12/19/19, at 5-6. We agree with and affirm on the basis of the trial court’s
Opinion with regard to this claim.4 See id.
Judgment of sentence affirmed.
Judge Olson joins the memorandum.
Judge Bowes concurs in the result.
____________________________________________
4 We additionally observe the following. Every Pennsylvania statute is
presumed valid and will not be declared unconstitutional unless the party
challenging it carries a heavy burden of persuasion to demonstrate that the
statute clearly, palpably, and plainly violates the Constitution.
Commonwealth v. Morrison, 934 A.2d 709, 713 (Pa. Super. 2007). Our
Supreme Court has explained that “[a] statute is ‘overbroad’ if by its reach it
punishes constitutionally protected activity[,] as well as illegal activity.”
Commonwealth v. Barud, 681 A.2d 162, 165 (Pa. 1996). If it does not
reach both categories of activity, “then the overbreadth challenge must fail.”
Commonwealth v. Costa, 861 A.2d 358, 362 (Pa. Super. 2004). The
Pennsylvania Supreme Court has clearly held that driving is not a right, but
instead is a privilege which may be enjoyed only by those who comply with
the requirements of the laws related thereto. Alexander v. DOT, Bureau of
Driver Licensing, 880 A.2d 552, 561 (Pa. 2005). Here, Warke does not
clearly, palpably, and plainly demonstrate that the statute punishes a
constitutionally-protected activity.
-6-
J-S28042-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/07/2020
-7-
-"circulated 07/09/2020 04:33 PM
COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY
CRIMINAL DIVISION
COMMONWEALTH OF No. 1116-2019
PENNSYLVANIA
v.
JEFFREYS. WARKE,
Defendant
A. McCall Young, Esquire- for the Commonwealth
Kent D. Watkins, Esquire - for the Defendant
OPINION OF COURT
MILLER, J.
Defendant, Jeffrey S. Warke, hereinafter "Appellant" has appealed our
August 26, 2019 sentencing order imposed after non-jury bench trial. The
appeal concerns Count 1: Illegally Operating a Motor Vehicle Not Equipped
with an Ignition Interlock Device pursuant to 75 Pa. C.S.A. §3808(a)(l), a
I
Misdemeanor. Counts 2, 3 and 4 are Summary Offenses which have not been
complained of on appeal. This Court conducted the non-jury bench trial on
August 26, 2019. We found the Defendant guilty of all four (4) Counts. The
latter three (3) Counts are summary violations of the Motor Vehicle Code as
follows: Count 2: Registration of Snowmobile or ATV 75 Pa. C.S.A.
§1711. l(a)(l); Count 3: Liability Insurance 75 Pa. C.S.A. §7730(a); and Count
4: Operation on Streets and Highways 75 Pa. C.S.A. §7721(a). We submit this
Opinion in support of the Court's verdict of guilty on all four (4) Counts and
sentencing to thirty (30) to sixty (60) days incarceration in Schuylkill County.
2
Appellant filed a timely Concise Statement of Matters for which he
complains on appeal citing Title 75 Pa. C.S.A. §7702 definition of all-terrain
vehicles; Title 75 C.S.A. §102 defining motor vehicles; and Title 75 C.S.A.
§3805(a)(l) concerning the ignition interlock requirements and Title 75 C.S.A.
§3805(d) requiring the operator to secure an unrestricted license involving "the
movement of any vehicle within this Commonwealth unless the motor vehicle is
equipped with an ignition interlock system." (Emphasis added). Title 75 PA
C.S.A §101 et seq "Vehicle Code."
Essentially Appellant asserts that the all-terrain vehicle (ATV) is not
included as a motor vehicle subject to the restriction of acquiring an ignition
interlock system before operating the motor vehicle. Appellant admits he was
operating an ATV in Mahanoy Township, Schuylkill County northbound on
State Route 339 in Mahanoy Township, Schuylkill County on April 27, 2019 at
approximately 4:57 p.m., although he claimed he was on the berm contrary to
the Affiant's credible testimony. The ATV was a red/black Yamaha Banshee
that did not have a registration displayed nor could the Appellant produce any
liability insurance for the ATV. Furthermore, Appellant's Pennsylvania license
revealed that an ignition interlock is required on all vehicles that Appellant
operates. This was proven by the Officer's review of the certified driver's record
which was admitted as Commonwealth's Exhibit 1. Appellant after testifying
admitted he is required to have an ignition interlock system on his vehicles.
Appellant contends that 75 Pa. C.S.A. §7702 proves the ATV is not a
motor vehicle subject to the Ignition Interlock Statute and cites the definitions
3
section of Chapter 77 which defines ATV as "a motorized off-highway vehicle
which travels on three or more off-highway tires ... " This term does not include
snowmobile; trail bikes; motorboats; golf carts; aircraft; dune buggies;
automobiles; construction machines; trucks or home utility machines; military,
fire, emergency and law enforcement vehicles; implements of husbandry;
multipurpose agricultural vehicles; vehicles used by the department; or any
vehicle that is or is required to be registered under Chapter 13 (relating to
registration of vehicles). In addition, this term does not include off-road motor
vehicles used exclusively as utility vehicles for agricultural or business
operations and incidentally operated or moved upon the highway.
Title 75 C.S.A. §102 defines motor vehicles as "a vehicle which is self-
propelled except an electric personal assistive mobility device or a vehicle
which is propelled solely by human power." Appellant's argument fails for a
plain reading of that definition with the general rule applicable to 75 Pa. C.S.A.
§3805 requiring ignition interlock states "Any motor vehicle to be operated by
the individual has been equipped with an ignition interlock system and
remains so for the duration of the restricted license period." This provision
applies to "any motor vehicle" which is equally applicable to an ATV as defined
by 75 Pa. C.S.A. §7702: "A motorized off-highway vehicle which travels on
three or more off-highway tires ... " As such, an ATV is a motorized vehicle
although defined as off-highway as set forth in Chapter 77 of the Code as
applicable to Chapter 38 concerning ignition interlock of the Code. Appellant
argues that ATVs are by definition excluded from the ignition interlock
4
mandates even though the ignition interlock requirement applies to "any motor
vehicle." In this Court's opinion under the plain meaning of the code that ATV1s
are covered by the sections cited by Appellant's definition of "a
motorized ... vehicle."
Appellant further submits "an ATV cannot be equipped with an ignition
interlock system. A motorcycle cannot be equipped with an ignition interlock
system. Therefore, a Defendant cannot operate a motorcycle or an ATV
because he cannot operate them without an ignition interlock system installed
on them as well as Defendant's other motor vehicle that is equipped with an
ignition interlock system." Thereby making these provisions of the Code
"unconstitutionally overbroad and unenforceable." Our Supreme Court in
Whalen v. Commonwealth of Pennsylvania, Department of Transportati.on,
Bureau of Driver Licensing, 613 Pa. 64, 32 A.3d 677 (2011) has held: The
purpose of the ignition interlock statute is not to impose further punishment
on repeat DUI offenders for past conduct, but rather to protect society from
those whose history suggests that they may continue to drive while intoxicated.
Alexander v. Commonwealth of Pennsylvania, Department of
Transportation, 583 Pa. 592 880 A.2d 552, 560-61 (2003). This implication
is exactly what Appellant fails to understand. Appellant must not operate any
motor vehicle whether it be a motorcycle or ATV on the highways of the
Commonwealth with a record of multiple DUI offenses unless the motor vehicle
Appellant is operating is equipped with an ignition interlock device as
mandated by 75 Pa. C.S.A. §3805 and includes an ATV for it is a motorized
5
vehicle. Defendant may operate his car because it has an ignition interlock
system but not any other motorized vehicle including an ATV or motorcycle not
modified with an ignition interlock system.
Commonwealth submitted the testimony of Pennsylvania State Trooper
Joseph Aponick with Commonwealth's Exhibit No. l being admitted into the
record as Appellant's certified driver history confirming the mandate of an
ignition interlock system. Appellant also testified.
As such, we imposed the sentence as set forth in the Sentencing Order
after finding Appellant guilty on all four (4) Counts. Appellant has not yet
served the incarceration sentence of thirty (30) to sixty (60) days pending the
Superior Court's Order.
Accordingly, we enter the foregoing Order.
BY THE COURT:
6