Com. v. Langley , 2016 Pa. Super. 179 ( 2016 )

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2016 PA Super 179COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RYAN O. LANGLEY,
Appellant No. 2508 EDA 2015
Appeal from the Judgment of Sentence July 8, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0001783-2014
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED AUGUST 12, 2016
Appellant Ryan O. Langley appeals from the judgment of sentence
entered by the Court of Common Pleas of Montgomery County after the trial
court convicted him of Driving Under the Influence (DUI) and Driving at an
Unsafe Speed. After careful review, we affirm.
On November 14, 2013, police responded to a report of a motor
vehicle accident in Lower Merion, Pennsylvania. In investigating the scene
and the drivers involved in the accident, officers spoke with Appellant and
noticed an odor of alcohol on his breath. After Appellant failed field sobriety
testing, he was placed under arrest for DUI. Appellant’s blood alcohol
concentration level (BAC) was determined to be .092%.
Appellant was charged with two counts of DUI under 75 Pa.C.S. §
3802(a)(1) (incapable of safely driving) and 75 Pa.C.S. § 3802(a)(2) (BAC
*Former Justice specially assigned to the Superior Court.
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greater than .08% and less than .10%) as well as one count of failing to
drive at a safe speed (75 Pa.C.S. § 3361). In addition, Count 1 of the
criminal information stated Appellant was subject to the enhanced penalty
contained in 75 Pa.C.S. § 3804(b)(2) as his DUI violation under Section
3802(a)(1) resulted in an accident that caused bodily injury or property
damage. Count 1 also listed the mandatory minimum provisions in 75
Pa.C.S. § 3804(c) (refusal of testing of blood or breath) and 75 Pa.C.S. §
3804(c.1) (violation involving minor occupant), but clarified that neither
provision was applicable in this case. The information noted this was
Appellant’s second DUI offense.
Appellant filed an omnibus pre-trial motion, asking the trial court to
quash Count 1 and demanding a jury trial. The trial court denied Appellant’s
pre-trial motion. After a bench trial, the trial court convicted Appellant of
DUI (incapable of safely driving) and failing to drive a safe speed. Appellant
was sentenced to thirty days to six months incarceration. This timely appeal
followed. Appellant complied with the trial court’s order to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review on appeal:
A. Did the trial court err by not quashing Count 1 of the Bill of
Information, which contained four paragraphs, where three of
the paragraphs are not elements of the offense but rather
sentencing provisions, which violates Pa.R.Crim. P. 560[?]
B. Did the trial court err by ruling that Article I, Section 9 of the
Pennsylvania Constitution does not guarantee a jury trial for
an ungraded misdemeanor DUI?
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Appellant’s Brief, at 2.
Appellant first claims the trial court erred in denying his request to
quash Count 1 of the criminal information as he contended it contained
superfluous language that included facts and potential penalties and beyond
the elements of the crime charged. Appellant argues the extra information
violates Pa.R.Crim.P. 560, which states that an information “shall be valid
and sufficient in the law if it contains … (5) a plain and concise statement of
the essential elements of the offense substantially the same as or cognate to
the offense alleged in the complaint.” Pa.R.Crim.P. 560. We disagree.
Appellant specifically takes issue with the Commonwealth’s allegation
that Appellant’s conduct resulted in an “accident resulting in bodily injury,
serious bodily injury, injury or death of any person or damage to a vehicle or
other property.” Information, at 1. By including this language in the
information, the Commonwealth put Appellant on notice that he would be
subject to the mandatory minimum provision set forth in Section 3804(b).
Our Supreme Court recently emphasized that:
when a factual determination is necessary for the imposition of a
mandatory minimum sentence, the facts must be considered an
element of a new, distinct aggravated offense. Moreover, as an
element of the offense, the factual determination must be
specifically alleged in the charging document, and the defendant
has a right to have that fact determined by a jury beyond a
reasonable doubt.
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Commonwealth v. Hopkins, ___Pa.___, 117 A.3d 247, 256-57 (2015)
(citing Alleyne v. United States, ___U.S.___, 133 S.Ct. 2152, 2160-63
(2013)).
Here, the Commonwealth specifically alleged in the Count 1 of the
criminal information that it would attempt to prove that Appellant was
subject to the mandatory minimum of 30 days imprisonment set forth in
Section 3804(b)(2)(i) which applies where an individual, who commits a
second offense DUI, causes an accident resulting to injury or property
damage. Pursuant to Alleyne and Hopkins, the Commonwealth was
required to include such facts in the information, which if proven, would
increase the prescribed penalty to which Appellant was exposed.1
Moreover, we also reject Appellant’s claim that the Commonwealth
violated Rule 560 by stating in the criminal information that it would not
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1
Appellant does not argue that Section 3804 is unconstitutional pursuant to
Alleyne. To the extent his argument could be characterized as raising such
an issue, this claim would fail. While our courts have found several of our
mandatory minimum statutes unconstitutional in light of Alleyne, the
offending provisions in those cases contained language allowing the trial
court to increase a defendant’s penalty based on facts proven by a
preponderance of the evidence standard at sentencing. See
Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.Super. 2013) (finding
Alleyne “renders those Pennsylvania mandatory minimum sentencing
statutes that do not pertain to prior convictions constitutionally infirm insofar
as they permit a judge to automatically increase a defendant's sentence
based on a preponderance of the evidence standard”). The statute in this
case, Section 3804, does not contain any language allowing the trial judge
to make findings of fact triggering the mandatory minimum at sentencing
based on a preponderance of the evidence standard.
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seek the enhanced penalties set forth in 75 Pa.C.S. § 3804(c) (refusal of
testing of blood or breath) and 75 Pa.C.S. § 3804(c.1) (violation involving
minor occupant). We agree with the Commonwealth that listing these facts
provided further clarification to the trial court of which mandatory minimum
sentence provision was implicated in these circumstances. As the
Commonwealth fulfilled the requirement in Rule 560(B)(5) that the
Commonwealth set forth the essential elements of the offense in a plain and
concise statement, the trial court did not err in refusing Appellant’s request
to quash Count 1 of the information.
Second, Appellant cites Article I, Section 9 of the Pennsylvania
Constitution in arguing that he was deprived of his right to a jury trial on the
DUI charges. Appellant asks this Court to interpret our Constitution as
providing an “absolute” right to a jury trial in all criminal prosecutions.
However, our Supreme Court has already spoken directly to this issue in
Commonwealth v. Mayberry, 459 Pa. 91, 97, 327 A.2d 86, 89 n.9 (1974),
and established that both U.S. Constitution and Article I, Section 9 of the
Pennsylvania Constitution only guarantee a defendant a right to a jury trial
for “serious offenses,” or crimes which carry more than a six month
maximum prison sentence. In contrast, crimes that carry a maximum of six
months’ imprisonment or less are considered “petty offenses” for which
there is no right to a jury trial. Id. at 98, 327 A.2d at 89.
Appellant responds by arguing that DUI offenses should not be
deemed petty offenses as “an individual’s first DUI is a stepping stone to
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harsher penalties for subsequent offenses.” Appellant’s Brief, at 20. In
addition, Appellant argues that the Pennsylvania Constitution should be
interpreted more broadly than the federal Constitution as Article I, Section 6
refers to a citizen’s right to a trial by jury as “inviolate.” Pa.Const. art.I, § 6.
However, Appellant ignores our past precedent in Commonwealth v.
Kerry, 906 A.2d 1237 (Pa.Super. 2006), in which we rejected the identical
arguments as applied to DUI charges:
Appellant first submits that although the maximum incarceration
for a first offense under 75 Pa.C.S.A. § 3802(a)(1), with a
refusal to submit to chemical testing, is no more than six
months, this conviction severely affects subsequent convictions
under the statute. Therefore, he argues that the offense should
be considered serious in the constitutional sense and entitles him
to a jury trial. We disagree.
The test is clear. The decisions of the Supreme Court of the
United States ‘have established a fixed dividing line between
petty and serious offenses: those crimes carrying [a sentence of]
more than six months [ ] are serious [crimes] and those carrying
[a sentence of six months or] less are petty crimes.’
Commonwealth v. Mayberry, 459 Pa. 91, 98, 327 A.2d 86, 89
(1974) (quoting Codispoti v. Pennsylvania, 418 U.S. 506,
512, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974)). It is well-settled
that a legislature's determination that an offense carries a
maximum prison term of six months or less indicates its view
that an offense is “petty.” Blanton v. North Las Vegas, 489
U.S. 538, 543, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). As
further explained in Blanton,
It has long been settled that there is a category of
petty crimes or offenses which is not subject to the
Sixth Amendment jury trial provision. In determining
whether a particular offense should be categorized
as petty, our early decisions focused on the nature of
the offense and on whether it was triable by a jury at
common law. In recent years, however, we have
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sought more objective indications of the seriousness
with which society regards the offense. [W]e have
found the most relevant such criteria in the severity
of the maximum authorized penalty. In fixing the
maximum penalty for a crime, a legislature
include[s] within the definition of the crime itself a
judgment about the seriousness of the offense. The
judiciary should not substitute its judgment as to
seriousness for that of a legislature, which is far
better equipped to perform the task, and [is]
likewise more responsive to changes in attitude and
more amenable to the recognition and correction of
their misperceptions in this respect.
Id. at 541–542, 109 S.Ct. 1289 (internal quotation marks and
citations omitted).
As set forth above, we determine whether an offense is serious
by looking to the judgment of the legislature, primarily as
expressed in the maximum authorized term of imprisonment.
Here, by setting the maximum authorized prison term at six
months, the Legislature categorized the violation of § 3802(a)(1)
as petty for purposes of a defendant's jury trial rights. This
categorization is not affected by the potential for a
defendant to be subject to increased incarceration for a
subsequent DUI offense. Much like a defendant charged with
multiple petty offenses, the fact that the potential exists for an
aggregate sentence exceeding six months' incarceration does not
entitle such a defendant to a jury trial. See Lewis v. United
States, 518 U.S. 322, 327, 116 S.Ct. 2163, 135 L.Ed.2d 590(1996) … Moreover, applying these principles in Blanton, the
United States Supreme Court found that first-time DUI
offenders, where the maximum authorized prison sentence does
not exceed six months, are not entitled to a jury trial. In
reaching this decision, the Court further noted that “we ascribe
little significance to the fact that a DUI offender faces increased
penalties for repeat offenses. Recidivist penalties of the
magnitude imposed for DUI are commonplace and, in any event,
petitioners do not face such penalties here.” Blanton, 489 U.S.
at 545, 109 S.Ct. 1289.
Appellant also argues that, unlike the United States Constitution,
Article 1, Section 6 of the Pennsylvania Constitution contains the
word “inviolate” when referring to the right to a jury trial and
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therefore should be interpreted more broadly so as to afford
defendants the right to a jury trial. We cannot agree. What
Appellant fails to recognize is that our Supreme Court's decision
in Mayberry, supra, at 97 n. 9, 327 A.2d at 89 n. 9, also
considered Article 1, Sections 6 and 9 of the Pennsylvania
Constitution in applying the fixed dividing line test articulated by
the United States Supreme Court. Despite differences in the
language of the United States and Pennsylvania constitutional
provisions, both provisions have been interpreted to guarantee
the right to a jury trial in a criminal matter only as it existed at
common law. Thus, there is no constitutional right to trial by jury
for “petty” offenses. Consequently, this argument is likewise
unavailing. It was not error, therefore, to deny Appellant a jury
trial.
Kerry, 906 A.2d at 1239-40 (emphasis added). As our precedent in Kerry
is directly controlling, we conclude the trial court did not err in finding that
Appellant was not entitled to a jury trial for his DUI charges.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2016
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