Com. v. Jackson, D. ( 2022 )


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  • J-A02002-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    DANA ROMER JACKSON                         :
    :
    Appellant               :   No. 725 WDA 2021
    Appeal from the Judgment of Sentence Entered May 24, 2021
    In the Court of Common Pleas of Armstrong County Criminal Division at
    No(s): CP-03-SA-0000016-2020
    BEFORE:      OLSON, J., MURRAY, J., and PELLEGRINI, J.*
    MEMORANDUM BY OLSON, J.:                            FILED: FEBRUARY 8, 2022
    Appellant, Dana Romer Jackson, appeals from the judgment of sentence
    entered on May 24, 2021, following his guilty plea to driving while operating
    privilege is suspended or revoked (second offense).1 We affirm in part, vacate
    in part, and remand for further proceedings.
    We briefly summarize the facts and procedural history of this case as
    follows. On May 24, 2021, Appellant pled guilty to driving while operating
    privilege is suspended or revoked, his second violation.     Pursuant to statute,
    “[a] second violation of this [crime] shall constitute a summary offense and,
    upon conviction [], a person shall be sentenced to pay a fine of $1,000[.00]
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1   75 Pa.C.S.A. 1543(b)(1)(ii).
    J-A02002-22
    and to undergo imprisonment for not less than 90 days.”             75 Pa.C.S.A.
    § 1543(b)(1)(ii). Accordingly, the trial court sentenced Appellant to 90 days
    of house arrest and imposed a fine of $1,000.00. This timely appeal resulted.2
    On appeal, Appellant raises the following issue for our review:
    [Whether Appellant’s] sentence, imposed pursuant to the
    provisions of 75 Pa.C.S.[A.] § 1543(b)(1)(ii), is unlawful, in that
    the sentencing statute is unconstitutionally vague pursuant to the
    analogous findings of Commonwealth v. Eid, 
    249 A.3d 1030
     (Pa.
    2021)[?]
    Appellant’s Brief at 2.
    In this case, the trial court agrees with Appellant’s contention that his
    sentence is illegal:
    [Appellant] raises a single issue in his appeal, namely, whether
    the [trial c]ourt erred in sentencing him to 90 days of house arrest
    pursuant to [S]ection 1543(b)(1)(ii) of the [Motor] Vehicle Code,
    which [Appellant] argues is unconstitutionally vague and
    ambiguous pursuant to the recent Pennsylvania Supreme Court
    decision in Commonwealth v. Eid, 249 A.[3]d 1030 (Pa. 2021).
    [Because the issue] involves illegality of his sentence[, it] cannot
    be waived. Further, because the pertinent language of [Section]
    1543(b)(1)(ii) is identical to that held unconstitutional in Eid, the
    [trial court found] Eid to be controlling on the issue. Accordingly,
    [the trial c]ourt recommends that [this C]ourt vacate the house
    arrest portion of [Appellant’s] sentence, affirm the remainder of
    the sentence, and remand for any necessary further proceedings.
    Trial Court Opinion, 7/22/2021, at 1-2.
    ____________________________________________
    2   Appellant filed a notice of appeal on June 23, 2021. On June 28, 2021, the
    trial court ordered Appellant to file a concise statement of errors complained
    of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. The
    trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 22, 2021.
    -2-
    J-A02002-22
    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
    , 768–769 (Pa. Super. 2018).
    (internal citations, quotations, and ellipses omitted).
    A prior panel of this Court recently explained our Supreme Court’s
    holding in Commonwealth v. Eid, 
    249 A.3d 1030
     (Pa. 2021) as follows:
    Eid involved a defendant who was found guilty of the summary
    offense of [driving while operating privilege is suspended or
    revoked] by a person who refused a breath test and [who, as a
    result, was later] sentenced to 90 days to six months’
    imprisonment, pursuant to 75 Pa.C.S.A. § 1543(b)(1.1)(i). Eid,
    249 A.3d at 1034. Section 1543(b)(1.1)(i) provided that a person
    convicted under this section “shall, upon first conviction, be
    guilty of a summary offense and shall be sentenced to pay
    a fine of $1,000[.00] and to undergo imprisonment for a
    period of not less than 90 days.” Id. § 543(b)(1.1)(i)
    (emphasis added).
    On appeal, our Supreme Court struck down Section
    1543(b)(1.1)(i) as “unconstitutionally vague and inoperable,”
    holding that the language “not less than 90 days” did not provide
    for a maximum term of incarceration. Eid, 249 A.3d at 1044. The
    Court upheld the defendant's [] conviction and the imposition of a
    $1,000.00 fine but vacated the incarceration portion of his
    sentence for that offense. See id. The Eid Court reasoned that it
    refused to infer a maximum sentence because doing so would
    have forced it to “engage in sheer speculation as to which
    sentence the General Assembly intended.” Id. at 1043 (citation
    omitted).
    Commonwealth v. White, 
    2022 WL 128777
     (Pa. Super. January 14, 2022).
    -3-
    J-A02002-22
    Here, the trial court imposed Appellant’s sentence pursuant to 75
    Pa.C.S.A. § 1543(b)(1)(ii), which provides “a person shall be sentenced to pay
    a fine of $1,000[.00] and to undergo imprisonment for not less than 90
    days.”   75 Pa.C.S.A. § 1543(b)(1)(ii) (emphasis added).           While Eid was
    sentenced   pursuant    to   Section   1543(b)(1.1)(i),   rather   than   Section
    1543(b)(1)(ii), the language of the two subsections of the statute, to-wit, “not
    less than 90 days,” is identical. As such, because Section 1543(b)(1)(ii) does
    not provide for a maximum term of incarceration, it is unconstitutionally vague
    and inoperable for the same reasons expressed in Eid. Hence, we agree with
    the trial court’s assessment that Appellant’s sentence is illegal. Accordingly,
    consistent with the Supreme Court’s resolution in Eid, we affirm Appellant’s
    conviction and the imposition of the $1,000.00 fine but vacate the house
    arrest portion of his sentence and remand for additional proceedings.
    Judgment of sentence affirmed in part and vacated in part.            Case
    remanded for further proceedings. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 02/08/2022
    -4-
    

Document Info

Docket Number: 725 WDA 2021

Judges: Olson, J.

Filed Date: 2/8/2022

Precedential Status: Precedential

Modified Date: 2/8/2022