Com. v. Zeruth, L.

J-S10010-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOUIS ROY ZERUTH :
:
Appellant : No. 2172 EDA 2022
Appeal from the Judgment of Sentence Entered July 11, 2022
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000611-2021
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY PANELLA, P.J.: FILED APRIL 26, 2023
Louis Roy Zeruth appeals the judgement of sentence entered by the
Monroe County Court of Common Pleas on July 11, 2022. Specifically, Zeruth
claims the sentencing court abused its discretion by relying on the uncertain
assumption that Zeruth would be accepted into the state drug treatment
program and failing to weigh the legislative intent of DUI sentencing
guidelines.
For purposes of this appeal, the following factual and procedural history
is undisputed. The Commonwealth charged Zeruth with driving a lawnmower
on a public road while under the influence of narcotics.1 Zeruth entered into a
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1Testing revealed the presence of methamphetamine, amphetamine, and
marijuana in Zeruth’s blood.
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negotiated guilty plea agreement. Pursuant to the agreement, Zeruth pleaded
guilty to driving under the influence (“DUI”) - general impairment in exchange
for the Commonwealth dismissing all associated charges. While this was
Zeruth’s fourth conviction for DUI, for sentencing purposes it was treated as
a second offense.
In preparation for sentencing, the court ordered that a Pre-Sentence
Investigation (“PSI”) report be prepared and Zeruth undergo a drug and
alcohol evaluation. However, Zeruth failed to appear for the PSI interview and
did not complete the evaluations. See Id. at 2. After Zeruth failed to appear
for the sentencing hearing, the court issued a bench warrant and Zeruth was
arrested.
The PSI report and drug and alcohol evaluations were performed while
Zeruth was in custody, and he appeared for sentencing on July 11, 2022. The
court sentenced Zeruth to 15-60 months of incarceration. See Order-
Sentencing, 7/11/22, at 1. Additionally, Zeruth was ordered to pay $1,950 in
fines plus court costs, undergo DUI multiple offender program, complete drug
and alcohol treatment, and undergo an 18-month driver’s license suspension.
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Zeruth filed for reconsideration of the controlled-substances sentence
which was denied after a hearing on July 26, 2022. See Order-Reconsideration
of Sentence, 7/26/22. He now appeals.2
On appeal, Zeruth raises two separate challenges to the sentence
imposed. First, he argues the trial court abused its discretion in sentencing
because the sentencing court assumed that Zeruth would be accepted into the
state drug treatment program when such enrollment was not assured.
Second, Zeruth claims the trial court abused its discretion by failing to weigh
the legislature’s intent by providing for a mandatory minimum sentence of
thirty (30) days in DUI sentencing guidelines. Zeruth concedes that both of
his issues raise challenges to the discretionary aspects of his sentence. See
Appellant’s Brief at 9, 16.
We therefore review the sentence imposed for an abuse of discretion.
See Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). “Sentencing
is a matter vested in the sound discretion of the sentencing judge, and a
sentence will not be disturbed on appeal absent a manifest abuse of
discretion.” Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.
2006)(citations omitted). The right to appeal from the discretionary aspects
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2The court sentenced Zeruth on a charge that he possessed narcotics when
he was a passenger in a friend’s truck at trial court docket number 1248 CR
2021. Zeruth did not file an appeal from the sentence imposed at 1248 CR
2021. See Trial Court Opinion, 11/7/22, at 4.
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of a sentence is not absolute. See Id. at 1274. To challenge the discretionary
aspects of a sentence, an appellant must invoke a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
and brackets omitted). While a failure to include the Pa.R.A.P. 2119(f)
statement does not automatically waive an appellant’s argument, “we are
precluded from reaching the merits of the claim when the Commonwealth
lodges an objection to the omission of the statement.” See Commonwealth
v. Roser, 914 A.2d 447, 457 (Pa. Super. 2006) (citation omitted).
Applying the four-part test, it is apparent that Zeruth failed to meet the
third requirement because his brief has a fatal defect. Specifically, Zeruth
failed to include in his appellate brief the separate concise statement required
by rule Pa.R.A.P 2119(f):
(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal
matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence. The statement
shall immediately precede the argument on the merits with
respect to the discretionary aspects of the sentence.
The Commonwealth objected to the fatal defect in Zeruth’s brief: “At no point
does [Zeruth] set forth a Rule 2119(f) concise statement of a colorable claim
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alleging that his sentence is inconsistent with a provision of the Sentencing
Code or a fundamental norm underlying the sentencing process.”
Commonwealth’s Brief, 2/6/2023, at 7. Recognizing the Commonwealth’s
objection, we are precluded from addressing the merits of Zeruth’s claim on
appeal and therefore, his issue is waived.
However, in reviewing Zeruth’s claim, we noted the sentence imposed
by the trial court included an 18-month driver’s license suspension. See
Order-Sentencing, at 1. In imposing the suspension, the court acted outside
its authority and, therefore, that aspect of the sentence is illegal. Although
Zeruth did not raise this issue in his appeal, we may raise the issue of
sentencing legality sua sponte. See Commonwealth v. Infante, 63 A.3d
358, 363 (Pa. Super. 2013). “If no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to correction. An illegal
sentence must be vacated.” Commonwealth v. Moroz, 284 A.3d 227, 230
(Pa. Super. 2022) (citations omitted).
While the judiciary’s role is “limited to determining guilt” of DUI, the
Pennsylvania’s Motor Vehicle Code grants the executive branch, through the
Department of Transportation, the authority to issue, regulate and suspend
motor vehicle licenses. Commonwealth v. Mockaitis, 834 A.2d 488, 500-
501 (Pa. 2003) (citations omitted). “Under our statutory scheme, actual
imposition of a license suspension has been vested in an administrative
agency over which the criminal judge has no control and for which he has no
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responsibility.” Id. (citations and quotation marks omitted). Further, section
3804 of our Motor Vehicle Code, which became effective November 8, 2022,
grants the Department of Transportation the exclusive authority to impose
suspensions:
The department shall suspend the operating privilege of an
individual . . . upon receiving a certified record of the individual’s
conviction of or an adjudication of delinquency for:
(i) an offense under section 3802 [relating to DUI
offenses.]
75 Pa.C.S. § 3804(e)(1)(i).
Pennsylvania law grants the Department of Transportation, not the
courts, the authority to impose license suspensions. Therefore, the trial court
in this case lacked the authority to suspend Zeruth’s license and, in that
respect, the sentence is illegal. As a result, we vacate the license suspension
aspects of the July 11, 2022 sentence.3 We affirm all other aspects of his
judgment of sentence.
Judgment of sentence affirmed in part, vacated in part.
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3 To be clear, our holding does not preclude the Department of Transportation
from suspending Zeruth’s license in accordance with its legal duties.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2023
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