Com. v. Velazquez, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIE ABNER VELAZQUEZ :
:
Appellant : No. 1476 MDA 2022
Appeal from the Judgment of Sentence Entered October 12, 2022
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001560-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 11, 2023
Appellant, Willie Abner Velazquez, appeals from the judgment of
sentence of 2 to 4 years’ incarceration, imposed after a jury convicted him of
driving under the influence of alcohol (DUI), 75 Pa.C.S. § 3802(a)(1) (general
impairment), and driving while operating privileges are suspended/revoked,
75 Pa.C.S. § 1543(b)(1.1)(iii) (third or subsequent violation). The trial court
also convicted Appellant of careless driving, 75 Pa.C.S. § 3714(a). On appeal,
Appellant contends that his sentence is illegal. After careful review, we affirm.
We need not summarize the facts underlying Appellant’s convictions,
aside from noting that the evidence presented at his trial on August 30, 2022,
established that Appellant drove his car while intoxicated on January 9, 2019.
At that time, Appellant’s driver’s license had been revoked due to previous
offenses.
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On October 12, 2022, Appellant was sentenced for his section
1543(b)(1.1)(iii) offense to the mandatory term of 2 to 4 years’ incarceration.
No further penalty was imposed at his remaining counts. Appellant filed a
timely notice of appeal, and he complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
court thereafter filed its Rule 1925(a) opinion. Herein, Appellant states one
issue for our review: “Did the trial court illegally sentence … [A]ppellant under
the recidivist section of the Vehicle Code as a third violation?” Appellant’s
Brief at 4.
Initially, this Court has stated:
Issues relating to the legality of a sentence are questions of law.
When the legality of a sentence is at issue, our standard of review
over such questions is de novo and our scope of review is plenary.
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. Ramos, 197 A.3d 766, 768–69 (Pa. Super. 2018).
(internal citations, quotations, and ellipses omitted).
Presently, Appellant begins his argument by claiming that section
1543(b)(1.1)(iii), “as to the imprisonment, is unconstitutional.” Appellant’s
Brief at 9. However, Appellant does not develop any clear argument to
support this claim.1
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1 We recognize that certain subparts of section 1543(b) have been struck down
as unconstitutionally vague because they fail to set forth a maximum term of
incarceration. See, e.g., Commonwealth v. Eid, 249 A.3d 1030 (Pa. 2021)
(Footnote Continued Next Page)
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Instead, Appellant develops a cursory (and rather confusing) argument
that his present violation of section 1543(b) was only his second, not his third,
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(finding section 1543(b)(1.1)(i) unconstitutionally vague because it fails to
specify a maximum term of imprisonment); Commonwealth v. Jackson,
271 A.3d 1286, 1288 (Pa. Super. 2022) (holding that section 1543(b)(1)(ii)
is unconstitutionally vague for the same reasons as set forth in Eid, as it
requires a sentence of “not less than 90 days” and “does not provide for a
maximum term of incarceration”). However, in Commonwealth v. Rollins,
292 A.3d 873 (Pa. 2023) (Rollins II), our Supreme Court affirmed this Court’s
decision that section 1543(b)(1)(iii) is not unconstitutionally vague because,
while the statute at issue in Eid was graded as a summary offense, section
1543(b)(1)(iii) is graded as a misdemeanor of the third degree. See id. at
877 (discussing our decision in Commonwealth v. Rollins, 161 EDA 2021,
unpublished memorandum at *2 (Pa. Super. filed Dec. 21, 2021) (Rollins I)).
[We] found this difference in grading significant because the
Vehicle Code explicitly states: “Title 18 (relating to crimes and
offenses), insofar as it relates to fines and imprisonment for
convictions of summary offenses, is not applicable to this title.”
[Rollins I, 161 EDA 2021, unpublished memorandum at *2].
Because no such provision exists for misdemeanors, [this] Court
applied the sentencing provisions set forth in the Crimes Code to
infer a maximum penalty of one year imprisonment. Id. (citing
18 Pa.C.S. § 106(b)(8) (“A crime is a misdemeanor of the third
degree if it is so designated in this title or if a person convicted
thereof may be sentenced to a term of imprisonment, the
maximum of which is not more than one year.”)). … [We]
therefore concluded [that s]ection 1543(b)(1)(iii) is not
unconstitutionally vague. Id.
Rollins II, 292 A.3d at 877. Here, as in Rollins, section
1543(b)(1.1)(iii) is also graded as a misdemeanor (of the first degree).
Thus, applying the sentencing provisions set forth in the Crimes Code,
we can infer a maximum sentence of five years. See 18 Pa.C.S. §
106(b)(6) (“A crime is a misdemeanor of the first degree if it is so
designated in this title or if a person convicted thereof may be sentenced
to a term of imprisonment, the maximum of which is not more than five
years.”). Therefore, without any developed argument by Appellant, we
discern no reason, on the face of section 1543(b)(1.1)(iii), to deem it
unconstitutionally vague.
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and, thus, he should have been sentenced under section 1543(b)(1.1)(ii)
rather than subpart (iii). From what we can discern, Appellant’s argument
hinges on the timeline of his prior section 1543(b) offenses. Specifically,
Appellant was convicted of his first section 1543(b) offense in 2006. He
committed a second violation of section 1543(b) on January 9, 2019 (which
underlies the present case), and a third violation on August 19, 2019.
What confuses the matter is that Appellant proceeded to trial and was
convicted of the latter, August 2019 violation before he was tried and
convicted of the earlier, January 2019 violation. Namely, for the August 2019
violation, Appellant was tried and convicted on July 20, 2022; for the January
2019 violation, he was tried and convicted on August 31, 2022. Thus,
although Appellant’s instant, section 1543(b) conviction was his third, the
January 2019 violation underlying his present conviction was only his second
in time. Consequently, Appellant avers that his present offense should have
been graded and sentenced under section 1543(b)(1.1)(ii) instead of (iii).
We are unconvinced. Initially, section 1543(b)(1.1) states, in its
entirety:
(1.1)(i) A person who has an amount of alcohol by weight in his
blood that is equal to or greater than .02% at the time of testing
or who at the time of testing has in his blood any amount of a
Schedule I or nonprescribed Schedule II or III controlled
substance, as defined in the act of April 14, 1972 (P.L. 233, No.
64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, or its metabolite or who refuses testing of blood or
breath and who drives a motor vehicle on any highway or
trafficway of this Commonwealth at a time when the person’s
operating privilege is suspended or revoked as a condition of
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acceptance of Accelerated Rehabilitative Disposition for a violation
of section 3802 or former section 3731 or because of a violation
of section 1547(b)(1) or 3802 or former section 3731 or is
suspended under section 1581 for an offense substantially similar
to a violation of section 3802 or former section 3731 shall, upon
a first conviction, be guilty of a summary offense and shall be
sentenced to pay a fine of $1,000 and to undergo imprisonment
for a period of not less than 90 days.
(ii) A second violation of this paragraph shall constitute a
misdemeanor of the third degree, and upon conviction thereof
the person shall be sentenced to pay a fine of $2,500 and to
undergo imprisonment for not less than six months.
(iii) A third or subsequent violation of this paragraph shall
constitute a misdemeanor of the first degree, and upon
conviction thereof the person shall be sentenced to pay a fine
of $5,000 and to undergo imprisonment for not less than two
years.
75 Pa.C.S. § 1543(b)(1.1)(i)-(iii) (footnoted omitted; emphasis added).
Here, Appellant’s focus on the word “violation” ignores the above-
emphasized language, “upon conviction thereof,” in each subpart of section
1543(b)(1.1). Considering all the statutory language together, it is clear that
section 1543(b)(1.1)(i), governing initial violations, requires a “first
conviction” for one to be sentenced to 90 days’ imprisonment. 75 Pa.C.S. §
1543(b)(1.1)(i). Hence, one cannot have a first violation under section
1543(b) without being convicted pursuant to that paragraph. Similarly, a
person must be convicted of a second violation to be subject to the increased
grading of a third-degree misdemeanor under section 1543(b)(1.1)(ii).
Likewise, a person must be convicted of a third violation to be subject to the
grading of a first-degree misdemeanor under section 1543(b)(1.1)(iii). In
other words, the phrase “violation of this paragraph” ultimately requires the
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person to be convicted of section 1543(b)(1.1) twice before triggering
section 1543(b)(1.1)(iii). Because here, Appellant had two, previous
convictions for violating section 1543(b)(1.1) when he was convicted and
sentenced in the present case, section 1543(b)(1.1)(iii) applied and his
sentence is not illegal.2
Judgment of sentence affirmed.
Judge McLaughlin joins this memorandum.
Judge Sullivan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/11/2023
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2 We recognize that Appellant’s claim could be read as suggesting due process
issues concerning whether he received adequate notice of the conduct
prohibited by section 1543(b)(1.1), as well as the concomitant penalties. See
Commonwealth v. Barud, 681 A.2d 162, 165 (Pa. 1996) (“As generally
stated, the void for vagueness doctrine requires that a penal statute define
the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement. Due process
requirements are satisfied if the statute provides reasonable standards by
which a person may gauge their future conduct.”) (citations omitted).
However, Appellant does not develop any due process argument; indeed, he
specifically limits his cursory constitutional claim “to the imprisonment”
portion of the statute, and frames his argument as a challenge to the legality
of his sentence. Appellant’s Brief at 9. Thus, we do not address any due
process issues.
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