Com. v. Postie, F. , 110 A.3d 1034 ( 2015 )

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2015 PA Super 34COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
FREDRICK POSTIE, :
:
Appellant : No. 626 EDA 2013
Appeal from the Judgment of Sentence January 15, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division No(s).: CP-39-CR-0004173-2011
BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.: Filed: February 17, 2015
Appellant, Fredrick Postie, appeals pro se from the judgment of
sentence of a “flat” term of four months’ imprisonment, entered in the
Lehigh County Court of Common Pleas, following his bench conviction of
driving while operating privilege is suspended or revoked1 (“DWOPS”), a
summary offense.2 Appellant alleges the court erred in: (1) denying his
motion for recusal; (2) denying his suppression motion; (3) conducting
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 1543(a). “This was [Appellant’s] 20th conviction for driving
while operating privilege is suspended,” and thus the increased penalties of
Section 6503(a.1) applied. See 75 Pa.C.S. § 6503(a.1); Trial Ct. Op.,
4/12/13, at 2 n.5; N.T., Trial & Sentencing, 1/15/13, at 4.
2
The court also found Appellant guilty of false reports, 75 Pa.C.S. § 3748.
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partial and biased proceedings; (4) allowing the Commonwealth to reinstate
the charge of DWOPS that was previously withdrawn pursuant to a plea
agreement; (5) imposing a flat sentence of four months, without minimum
and maximum terms; and (6) ordering his sentence to be served in state
prison.3 We hold: (1) Appellant’s flat sentence for the summary offense of
DWOPS is not compliant with 42 Pa.C.S. § 9756; and (2) after review of the
certified record, it is not clear whether Appellant may serve the instant
sentence in state prison pursuant to 42 Pa.C.S. § 9762(a). We find no relief
is due on his remaining issues. Accordingly, we vacate the judgment of
sentence and remand for resentencing.
The underlying vehicle stop giving rise to these charges will be
discussed infra, in our disposition of Appellant’s suppression claim. On April
9, 2012, Appellant pleaded guilty to false identification to law enforcement
authorities and habitual offenders4 in exchange for the Commonwealth’s
withdrawing the DWOPS charge. Appellant subsequently withdrew the plea;
the circumstances of the withdrawal will likewise be discussed infra.
On August 14 and 15, 2012, the trial court conducted hearings on
Appellant’s suppression motion. Appellant later also filed a motion for the
trial judge’s recusal, arguing the judge had presided over the suppression
3
For ease of disposition, we have reordered Appellant’s issues.
4
18 Pa.C.S. § 4914; 75 Pa.C.S. § 6503.1.
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hearing, at which Appellant made admissions against his own interest. The
court denied both the suppression and recusal motions.
The case proceeded to a bench trial on January 15, 2013, on charges
of DWOPS and false reports.5 The officer who conducted the vehicle stop
was the sole witness, and Appellant did not present any evidence or testify.
The court found Appellant guilty of both counts and immediately sentenced
him to four months in state prison, to be served consecutive to the unrelated
state sentence he was currently serving.
Appellant did not file a post-sentence motion, but took this timely pro
se appeal.6 He complied with the court’s order to file a Pa.R.A.P. 1925(b)
5
On the eve of trial, January 14, 2013, the court entered an order granting,
after a hearing, Appellant’s “oral motion to discharge” his assistant public
defender, John F. Baurkot, Esq. and appointing Attorney Baurkot to act as
stand-by counsel. Order, 1/14/13. However, at the commencement of trial,
Appellant agreed to be represented by Attorney Baurkot. N.T., 1/15/13, at
4-5.
6
Two days after sentencing, Attorney Baurkot filed a motion to withdraw as
counsel, stating Appellant had “indicated a desire to represent himself in an
Appeal.” Atty. Baurkot’s Mot. to Withdraw as Counsel, 1/17/13, at ¶ 3. The
court then issued orders scheduling a hearing on this motion on,
respectively, February 21, March 22, and May 1, 2013. On May 1st, it
entered an order stating it had held the hearing and granting counsel leave
to withdraw. Although the court technically lacked jurisdiction to conduct
this hearing and allow counsel to withdraw, see Pa.R.A.P. 1701(a), in the
interest of judicial economy we decline to disturb Appellant’s pro se status in
the instant appeal. This panel could remand for a “proper” hearing for
Appellant’s knowing waiver of counsel. However, because Appellant had just
filed his own motion to discharge counsel three days before counsel filed his
motion, and the court stated it held hearings on both motions, we decline to
do so.
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statement of errors complained of on appeal. As summarized above, he
raises six allegations of trial court error.
Appellant’s first claim is that the trial court erred in denying his motion
for recusal. In support, he avers the court previously accepted his guilty
plea, allowed withdrawal of the plea, and presided over the suppression
hearing, at which he “made certain admissions of guilt.” Appellant’s Brief at
8. Appellant asserts he was prejudiced “with bias that could not have been
cured by any other means aside from recusal.” Id. We find no relief is due.
This Court has stated:
Our standard of review of a trial court’s determination not
to recuse from hearing a case is exceptionally deferential.
We recognize that our trial judges are “honorable, fair and
competent,” and although we employ an abuse of
discretion standard, we do so recognizing that the judge
himself is best qualified to gauge his ability to preside
impartially.
The party who asserts that a trial judge should
recuse bears the burden of setting forth specific
evidence of bias, prejudice, or unfairness.
“Furthermore, a decision by the trial court against
whom the plea of prejudice is made will not be
disturbed absent an abuse of discretion.”
Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009)
(citations omitted).
In support of his argument, Appellant cites Commonwealth v.
Simmons, 483 A.2d 953 (Pa. Super. 1984). In that case, this Court stated,
“In a case where the judge hears highly prejudicial testimony, such as a
withdrawn guilty plea, he should recuse himself from sitting as factfinder . . .
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.” Id. at 956 (citation omitted). However, we further note:
[T]he mere participation by the trial judge in an earlier
stage of the proceedings does not provide a per se basis
for requiring recusal of the trial judge.
The determination of whether a trial judge should
recuse himself depends upon the following: the type
of evidence that the judge hears; if the evidence is
inadmissible and is of a highly prejudicial nature, the
judge should recuse himself or declare a mistrial if it
is too late for recusal. The judge should also recuse
himself whenever there is substantial doubt as to his
ability to preside impartially. The burden to show
prejudice, however, is on the party seeking recusal.
If the evidence is admissible, or not of a highly
prejudicial nature, recusal is not required, and while
it may be the better practice to have a different
judge preside over trial than preside over pre-trial
proceedings, such a practice is not constitutionally
required and has not been made the basis for setting
aside a verdict reached in an otherwise proper trial.
This principle appears to be based on the prevailing
view that judicial fact-finders are capable of
disregarding prejudicial evidence.
Commonwealth v. Lott, 581 A.2d 612, 615 (Pa. Super. 1990).
With respect to the trial judge’s presiding over the suppression
hearing, Appellant does not explain what “certain admissions of guilt” he
made. See Appellant’s Brief at 8. We note that DWOPS is defined as
“driv[ing] a motor vehicle on any highway or trafficway” while one’s
operating privilege is suspended, revoked, or cancelled, and false reports is
defined as “giv[ing] information in oral or written reports . . . knowing or
having reason to believe that the information is false.” 75 Pa.C.S. §§
1543(a), 3748.
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The Commonwealth points to the following testimony by Appellant on
cross-examination:
[Commonwealth: This was the vehicle [t]hat you were
driving while you were suspended[?]
[Appellant:] Correct.
* * *
Q. Did you lie to [Pennsylvania State Police Trooper
Larry James McDaniel, the officer who stopped you]?
A. I gave him false identification, yes.
See N.T. Suppression H’rg, 8/15/12, at 18, 19; Commonwealth’s Brief at 8.
The trial court found recusal was not necessary, stating: “I was
capable of rendering a fair decision regardless of what I heard at
[Appellant’s] guilty plea and pretrial hearing.” Trial Ct. Op. at 3-4. The
charges against Appellant—DWOPS and false reports—were relatively
simple; the issues before the trial court were whether Appellant drove while
his driving privilege was suspended or revoked and whether he gave
information he knew to be false to Trooper McDaniel. On appeal, Appellant
makes no argument that his admissions at the suppression hearing were
inadmissible or that trial proceedings were flawed. See Lott, 581 A.2d at
615. We reject, on this same ground, Appellant’s argument pertaining to
the trial court’s presiding over his initial guilty plea. In light of the
foregoing, as well as the “prevailing view” that a trial judge is “capable of
disregarding prejudicial evidence,” we hold the trial court did not abuse its
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discretion in denying Appellant’s recusal motion. See Harris, 979 A.2d at
391-92; Lott, 581 A.2d at 615.
Appellant’s second claim on appeal is that the trial court erred in
finding Trooper McDaniel articulated the requisite reasonable suspicion to
stop him, and consequently, erred in denying his suppression motion.
Appellant contends Trooper McDaniel’s purported reasons for stopping him—
tinted windows and a prior encounter with the same vehicle several months
earlier—were deficient because: (1) the trooper did not “bother to test the
light transmittance levels of the window in question” and did not have the
equipment with him to do so; (2) the “alleged violation . . . could not
possibly have been corroborated through investigation or independent
evidence;” (3) no citation for tinted windows was ever issued; and (4)
although “Trooper McDaniel stated he could not see through the window on
the day of the stop, in full sunlight, he, while in court [at the suppression
hearing] under artificial lighting, said of Defense exhibit-1, a window tinted
to the same degree as the windows on the vehicle in question, that he was
able to see through it.” Appellant’s Brief at 9, 10, 12 (citation to
suppression transcript omitted). Appellant concludes Trooper McDaniel’s
“simple statement . . . that he knew the tint was in violation of the
Inspection Code amounted to nothin[g] more than a conclusory statement to
the trooper’s belief” and was “simply [a recitation of] the elements of the
alleged vehicle infraction.” Id. at 12. We find no relief is due.
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This Court has stated:
An appellate court’s standard of review in addressing a
challenge to a trial court’s denial of a suppression motion
is limited to determining whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. [Because] the
prosecution prevailed in the suppression court, we may
consider only the evidence of the prosecution and so much
of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where
the record supports the factual findings of the trial court,
we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Muhammed, 992 A.2d 897, 899-900 (Pa. Super. 2010)
(citation omitted).
Section 6308 of the Motor Vehicle Code provides that when a police
officer
has reasonable suspicion that a violation of this title is
occurring or has occurred, he may stop a vehicle . . . for
the purpose of checking the vehicle’s registration, proof of
financial responsibility, vehicle identification number or
engine number or the driver’s license, or to secure such
other information as the officer may reasonably believe to
be necessary to enforce the provisions of this title.
75 Pa.C.S. § 6308(b).
[T]o establish grounds for reasonable suspicion, the
officer must articulate specific observations which, in
conjunction with reasonable inferences derived from
those observations, led him reasonably to conclude,
in light of his experience, that criminal activity was
afoot and that the person he stopped was involved in
that activity. The question of whether reasonable
suspicion existed at the time [the officer conducted
the stop] must be answered by examining the
totality of the circumstances to determine whether
the officer who initiated the stop had a particularized
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and objective basis for suspecting the individual
stopped. Therefore, the fundamental inquiry of a
reviewing court must be an objective one, namely,
whether the facts available to the officer at the
moment of the [stop] warrant a [person] of
reasonable caution in the belief that the action taken
was appropriate.
. . . [“]While an actual violation need not be
established, a reasonable basis for the officer’s
belief is required to validate the stop.”
Muhammed, 992 A.2d at 900-01 (citations omitted) (emphasis added).
At the suppression hearing, Trooper McDaniel testified to the following.
“Several months” before the instant vehicle stop, Trooper McDaniel had
stopped a car for window tint on the side and rear windows. N.T.
Suppression H’rg, 8/14/12, at 7-8. He issued a citation to the driver, Kerry
Hoffman, who was also the owner of the vehicle, as well as a written
warning for the window tint violation and instruction to remove the window
tint.
On July 3, 2011, at approximately 7:56 PM, Trooper McDaniel saw the
same car. His “initial observation of the vehicle was that it had dark window
tint on the rear sides and rear window, which did not permit [him] to see
inside of the vehicle.” Id. at 7. The trooper testified that window tinting is
governed by Sections 4524(e)(1) and 4107(b)(2) of the Motor Vehicle
Code.7 Id. at 8. The trooper followed the vehicle, at which point he could
7
Section 4524(e)(1) provides: “No person shall drive any motor vehicle with
any sun screening device or other material which does not permit a person
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not “see the driver who was sitting in the driver’s seat through the rear
window.” Id.
In denying Appellant’s suppression motion, the trial court held:
I find credible [Trooper McDaniel’s] testimony that he
could not see through the rear window and that he
believed the tint to be so dark that it was in violation of
the inspection code. Furthermore, McDaniel had seen this
same vehicle before and issued the driver a warning to
have the tint removed. Upon seeing it a second time in
the same condition, McDaniel likely had probable cause
to pull the vehicle over.
Order, 10/15/12, at 2 n.1 (emphasis added).
In light of the trial court’s specific finding that Trooper McDaniel’s
testimony was credible, we find no abuse of discretion in its holding that the
trooper stated specific observations and properly concluded that criminal
activity was afoot. See Muhammed, 992 A.2d at 900-01. The trooper
clearly testified several months earlier, he issued a warning to the driver of
the vehicle to remove the tint on the windows, and on the day in question,
observed the same vehicle with windows dark enough that he could not see
through them. Furthermore, we find no merit to Appellant’s argument that
he was not issued a citation for tinted windows, as the law does not require
to see or view the inside of the vehicle through the windshield, side wing or
side window of the vehicle.” 75 Pa.C.S. § 4524(e)(1).
Section 4107(b)(2) sets forth the summary offense of “unlawful activities.”
See 75 Pa.C.S. § 4107(b)(2). Trooper McDaniel acknowledged this, stating:
“4107(b)(2), which is unlawful activities, would reference the inspection
manual.” N.T., 8/14/12, at 9. However, there was no further discussion or
explanation about an inspection manual.
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a violation to be established. See id. Accordingly, we do not disturb the
trial court’s suppression order.
Appellant’s third claim on appeal is that the court improperly made
biased and inflammatory remarks during the suppression hearing. Before
citing Appellant’s specific challenge, we quote the paragraph surrounding it,
in order to give context to his argument:
To protect our children from the harmful effects of over-
exposure to the Sun, we add sun-screening to the rear
windows of our sedans[.] For those who[ ] cannot afford
to purchase or maintain the fuel bills and payments of a
massive SUV, the Pennsylvania Department of
Transportation finds a way to discriminate against them by
creating rules that could suggest that the children of the
less fortunate are of less value than their counterparts
whom are more fortunate. Or as the suppression court
suggested, their cargo is more important or more
valuable than the little lives we entrust and confine
to these same locations.
Appellant’s Brief at 14-15 (citing N.T., 8/14/12, at 35) (emphasis added).
Appellant maintains, “When [J]udge Anthony uttered in court that people
who have tinted windows on their cars ‘are up to no good[,]’ he clearly held
a negative opinion of me which directly led to the deleterious outcome of
this case.” Id. at 15 (citing N.T., 8/14/12, at 31). We agree with the trial
court that this issue is waived.
The trial court suggested waiver for lack of specificity in Appellant’s
pro se 1925(b) statement. Pennsylvania Rule of Appellate Procedure
1925(b)(4) provides in pertinent part: “The Statement shall concisely
identify each ruling or error that the appellant intends to challenge with
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sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P.
1925(b)(4)(ii). The comment to this subsection acknowledges that
vagueness is a “very case specific inquir[y].” However, the comment
explains,
The more carefully the appellant frames the Statement,
the more likely it will be that the judge will be able to
articulate the rationale underlying the decision and provide
a basis for counsel to determine the advisability of
appealing that issue. Thus, counsel[8] should begin the
winnowing process when preparing the Statement and
should articulate specific rulings with which the appellant
takes issue and why.
Pa.R.A.P. 1925, cmt.
Appellant’s 1925(b) statement raises the issue as follows: “3) Whether
trial court erred in allowing trial Judge, during suppression hearing, to make
inflammatory and bias remarks indicating Defendant was guilty.” Appellant’s
Concise Statement of Errors Complained of on Appeal, 3/22/13, at 1
(verbatim). The trial court stated, “Without a more specific indication of
what remarks [Appellant] is referring to, I cannot properly address [his]
claim.” Trial Ct. Op. at 4.
The suppression hearing was conducted over two days. The first
8
As stated above, Appellant’s 1925(b) statement was prepared pro se.
“Although this Court is willing to construe liberally materials filed by a pro se
litigant, pro se status generally confers no special benefit upon an appellant.
Accordingly, a pro se litigant must comply with the procedural rules set forth
in the Pennsylvania Rules of the Court.” Commonwealth v. Lewis, 63
A.3d 1274, 1278 (Pa. Super. 2013) (citation omitted).
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volume of testimony is forty-three pages long and the second is thirty-nine.
Appellant’s 1925(b) statement does not cite any specific remark or transcript
page, but qualifies only that the court’s remarks “indicat[ed he] was guilty.”
Id. Without any further explanation by Appellant, we agree with the trial
court that the 1925(b) statement was overly vague.
Furthermore, the Commonwealth argues this issue is waived for
Appellant’s failure to challenge the trial court’s remarks in the proceedings
below. Commonwealth’s Brief at 14-15. We agree. While Appellant’s brief
identifies the remarks which he now challenges, our review of the record
reveals he raised no objection, either contemporaneously or in a post-verdict
motion, to them. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Appellant’s fourth claim on appeal is that the “trial court err[ed] in
allowing the Commonwealth to withdraw a summary offense and later
reinstate the same offense.” Appellant’s Brief at 17 (capitalization
removed). In support, he avers: (1) under his initial plea agreement, the
Commonwealth agreed to withdraw the DWOPS charge and recommend a
sentence of one to six months9 in exchange for his pleading to habitual
offenders and false identification; (2) Appellant pleaded accordingly; (3) the
Commonwealth then “abrogated this initial agreement when Assistant
9
The claim that the Commonwealth would recommend a sentence of one to
six months appears in the statement of the case section of Appellant’s brief.
Appellant’s Brief at 5.
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District Attorney who [sic] was present informed the court something on the
order of ‘that wasn’t my deal, I would recommend the court sentence him to
the max’, whereupon the court handed down a sentence of 1-24 months for
the [habitual offenders] charge, a misdemeanor 2 offense;” (4) the court
immediately allowed Appellant to withdraw his plea; and (5) the
Commonwealth reinstated the charge of DWOPS. Appellant’s Brief at 5, 18.
Appellant then concludes that because the Commonwealth failed to honor its
“agreement, the court should not have allowed the reinstating of this
charge.” Id. We find no relief is due.
We note:
Where a plea agreement has been entered of record and
accepted by the trial court, the state is required to abide
by the terms of the plea agreement. However, prior to the
entry of a guilty plea, the defendant has no right to
specific performance of an “executory” agreement.
Commonwealth v. Mebane, 58 A.3d 1243, 1246 (Pa. Super. 2012)
(quoting Mabry v. Johnson, 467 U.S. 504 (1984), disapproved on other
grounds, Puckett v. U.S., 556 U.S. 129 (2009); Santobello v. New York,
404 U.S. 257 (1971)).
The trial court recounted the procedural history more simply, as
follows:
As part of [Appellant’s] guilty plea of April 9, 2012, the
Commonwealth agreed not to pursue the charge of
[DWOPS. Appellant] subsequently made the decision to
withdraw that guilty plea and, as a result, the
Commonwealth determined it would again pursue that
charge.
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Trial Ct. Op. at 4.
The April 9, 2012 transcript is not included in the certified record, and
we therefore cannot ascertain the terms of the agreement as presented to
the trial court. Nevertheless, we may find no relief is due. Appellant initially
pleaded guilty to habitual offenders, a misdemeanor of the second degree
(“M-2”), and false identification, a misdemeanor of the third degree (“M-3”),
purportedly in exchange, in part, for the Commonwealth’s recommendation
of a one to six-month sentence. After he withdrew the plea, the
Commonwealth withdrew the M-3 false identification charge, reinstated the
charge of DWOPS, and added a charge of false reports. The latter two
offenses are both summary offenses.10
10
Although this was Appellant’s twentieth conviction of DWOPS, the charge
remained a summary offense. In Commonwealth v. Soboleski, 617 A.2d
1309 (Pa. Super. 1992), this Court explained:
A violation of section 1543(a)[, DWOPS,] is a summary
offense punishable by a fine of $200. 75 Pa.C.S. §
1543(a). If sentenced under the recidivist provision,
section 6503, the sentencing possibilities are enlarged—“a
fine of not less than $ 200 nor more than $ 1,000 or to
imprisonment for not more than six months, or both.” 75
Pa.C.S. § 6503. Pursuant to section 106(c) of the Crimes
Code, a fine of up to $1000 and/or imprisonment of up to
six months alters the grade of the offense, from a
summary offense to a misdemeanor of the third degree.
See 18 Pa.C.S. § 106(c) and (e). However, . . . section
6502(c) specifically states that this classification “as it
relates to fines and imprisonment for convictions of
summary offenses, is not applicable to [Title 75].” 75
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The trial court aptly noted the M-3 false identification charge carried a
maximum sentence of twelve months, whereas false reports exposed him
only to a $200 fine and no incarceration. See 18 Pa.C.S. § 1104(3); 75
Pa.C.S. § 3748;11 Trial Ct. Op. at 5. The DWOPS charge carried a maximum
sentence of six months. 75 Pa.C.S. § 6503(a.1).
In sum, after Appellant withdrew his plea, he was charged with lesser-
graded offenses that exposed him to lesser sentences; indeed, false reports
did not allow any sentence of incarceration. Furthermore, the DWOPS
charge exposed Appellant to a sentence of thirty days to six months, the
very same sentence that the Commonwealth allegedly promised to
recommend. Appellant’s brief ignores these circumstances, which are in his
favor, and instead only advances a bald insistence that the Commonwealth
should not have been allowed to pursue the so-called “reinstated” charges.
Appellant also ignores that the “new” charges carried the very same
sentence which the Commonwealth allegedly promised to recommend under
the plea agreement. In light of the foregoing, we deny relief on Appellant’s
Pa.C.S. § 6502(c). Consequently, the offense remains a
summary offense.
Id. at 1311 n.1.
11
The false report statute states: “Any person who gives information in oral
or written reports required by this subchapter knowing or having reason to
believe that the information is false is guilty of a summary offense and
shall, upon conviction, be sentenced to pay a fine of $200.” 75
Pa.C.S. § 3748.
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claim.
Appellant’s fifth claim on appeal is that the trial court erred in
imposing a “flat” sentence on the DWOPS conviction of four months’
imprisonment in a state correctional institution. Appellant avers the
Sentencing Code, as well as case authority, require a sentence of total
confinement to include minimum and maximum terms.12 We agree and
remand for resentencing.
We note Appellant did not raise this claim before the trial court or in
his 1925(b) statement. See Pa.R.A.P. 302(a), 1925(b)(4). Nevertheless, a
claim that a flat sentence should have instead had minimum and maximum
terms goes to the legality of the sentence, and such issues are non-
waivable. See Commonwealth v. Milhomme, 35 A.3d 1219, 1221 (Pa.
Super. 2011).
“Our scope of review of challenges to the legality of a sentence is
plenary, and the standard of review is de novo.” Id. Appellant’s DWOPS
conviction, although being his twentieth, is graded a summary offense. See
Soboleski, 617 A.2d at 1311 n.1; Sentencing Order, 1/15/13. Section 6503
of the Vehicle Code, which governs subsequent convictions of certain
12
Appellant cites Section 9721(a)(4) for the requirement of minimum and
mandatory terms. Appellant’s Brief at 16. However, Section 9721(a)
merely provides that in determining a sentence, the trial court shall consider
sentencing alternatives, and the alternative at (a)(4) is total confinement.
42 Pa.C.S. § 9721(a)(4).
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offenses, including DWOPS, provides in pertinent part that a person
convicted of a sixth or subsequent offense of DWOPS “shall be sentenced to
pay a fine of not less than $1,000 and to imprisonment for not less than 30
days but not more than six months.” 75 Pa.C.S. § 6503(a.1). Section 9756
of the Sentencing Code provides that in imposing total confinement, the trial
court shall specify a maximum period, as well as a minimum sentence that
does not exceed one-half of the maximum. 42 Pa.C.S. § 9756(a), (b)(1).
Although our review of Pennsylvania authority has not revealed a
decision discussing the applicability of Section 9756 to the particular
subsection of DWOPS of which Appellant was convicted, this Court has
applied Section 9756 applies to summary offenses and Vehicle Code
offenses.13
The plain language of Section 9756 of the Sentencing Code directs the
trial court to specify minimum and maximum periods imposing
imprisonment. See id.; Commonwealth v. Destephano, 87 A.3d 361,
365 (Pa. Super. 2014) (stating: (1) object of all interpretation and
construction of statutes is to ascertain and effectuate intention of General
Assembly; (2) every statute shall be construed, if possible, to give effect to
all its provisions; and (3) plain language of statute is generally best indicator
13
Commonwealth v. Basinger, 982 A.2d 121, 123, 127 (Pa. Super. 2009)
(holding sentence of ninety days’ imprisonment for DUI was illegal under 42
Pa.C.S. § 9756); Commonwealth v. Barzyk, 692 A.2d 211, 215-16 (Pa.
Super. 1997) (finding flat sentence of thirty days’ incarceration for summary
offense of harassment violated 42 Pa.C.S. § 9756).
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of General Assembly's intent). Although Pennsylvania courts have found
some exceptions provided by statute, none applies in the case before us.14
Accordingly, we agree with Appellant that his flat sentence of four months is
illegal under Section 9756, and we remand for the trial court to impose a
sentence that complies with that statute. See 42 Pa.C.S. § 9756(a),
(b)(1).15
In so holding, we reject the Commonwealth’s arguments in favor of
affirming the flat sentence. First, the Commonwealth reasons that Sections
1543(a) and 6503(a.1) of the Vehicle Code, when read together, “create an
exception to 42 Pa.C.S. § 9756(b) by permitting a sentencing court to
impose a mandatory sentence of 30 days and a discretionary sentence not to
exceed six months[ ] for subsequent violations of driving with a suspended
14
See Commonwealth v. Bell, 645 A.2d 211, 217 (Pa. 1994) (reasoning
flat five year sentence for possession with intent to deliver at least fifty
pounds of marijuana, 35 P.S. § 780-113(a)(30), would stand despite 42
Pa.C.S. § 9756, where 18 Pa.C.S. § 7508(a)(1)(iii) provides mandatory
minimum of five years’ imprisonment and 35 P.S. § 780-113(f)(2) provides
maximum of five years), cited with approval, Commonwealth v. Ramos,
83 A.3d 86, 91 (Pa. 2013).
15
See Commonwealth v. Milhomme, 35 A.3d 1219, 1221-22 (Pa. Super.
2011) (holding flat sentence of four months for delivery of a controlled
substance was illegal under 42 Pa.C.S. § 9756); Commonwealth v.
Mitchell, 986 A.2d 1241, 1244 (Pa. Super. 2009) (holding flat sentence of
six months for violation of protection from abuse order was valid but flat
sentence of ninety days for harassment was illegal); Basinger, 982 A.2d at
123, 127; Barzyk, 692 A.2d at 215-16; Commonwealth v. Cain, 637 A.2d
656, 658-59 (Pa. Super. 1994) (finding flat sentence of one year
imprisonment for criminal contempt of court illegal because court did not
specify any minimum sentence).
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license.[ ]” Commonwealth’s Brief at 19. We reject this interpretation.
Section 1543(a) merely defines the offense of DWOPS and states that
DWOPS is a summary offense and that an offender shall “be sentenced to
pay a fine of $200.” 75 Pa.C.S. § 1543(a). Section 6503(a.1) states, in
sum, “Certain repeat offenses.—A person convicted of a sixth or
subsequent offense under section 1543(a) shall be sentenced to pay a fine
of not less than $1,000 and to imprisonment for not less than 30 days but
not more than six months.” 75 Pa.C.S. § 6503(a.1). These subsections,
independently and read together, do not provide for a flat sentence.
The Commonwealth further contends Commonwealth v.
Klingensmith, 650 A.2d 444 (Pa. Super. 1994), “recognized that 75 Pa.C.S.
§ 1543(b) implicitly creates an exception to § 9756(b) by specifically
authorizing a trial court to impose a flat minimum mandatory sentence of
ninety days for driving with a suspended license when the suspension was
the result of a DUI conviction.” Commonwealth’s Brief at 20 (emphasis
added). “The Commonwealth submits that a 1543(a) violation is similarly
situated and thus receives the same treatment.” Id. (emphasis added).
We disagree, and find Klingensmith, when considered in historical
context, supports the opposite result. The Klingensmith Court first noted
that “[w]here two statutory sections arguably cover the same matter and
appear to be inconsistent, the specific provision will prevail over the general
provision.” Klingensmith, 650 A.2d at 447. The Court considered Section
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9756 to be the general provision. Id. The Court then applied the then-
applicable version of Section 1543(b), which stated that an offender “shall
be sentenced . . . to undergo imprisonment for a period of not less than 90
days.” Id. at 447 n.7. The current version of Section 1543(b) provides
that an offender shall “undergo imprisonment for a period of not less than
60 days nor more than 90 days.” 75 Pa.C.S. § 1543(b). Section 6503(a.1),
which applies to Appellant in this case, provides a similar range of sentence:
“not less than 30 days but not more than six months.” 75 Pa.C.S. §
6503(a.1). Accordingly, in the present case, there is no specific statutory
provision that would prevail over Section 9756’s requirement of minimum
and mandatory terms.
Appellant’s final issue on appeal is that the court abused its discretion
in ordering him to serve his sentence for a summary offense in state prison.
Although we vacate the judgment of sentence for the reasons set forth
above, we address this issue as it may arise at resentencing.
We first consider Section 9762, which governs where a sentence of
imprisonment will be served. Subsection 9762(a) applies in the case sub
judice and states:
(a) Sentences or terms of incarceration imposed
before a certain date.–For the three-year period
beginning on the effective date of this subsection,[16] all
16
The effective date of Section 9756 is Monday, August 6, 2012. See 1
Pa.C.S. § 1908; 42 Pa.C.S. § 9762(a). Appellant was sentenced on January
15, 2013, which falls within the three-year period immediately following.
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persons sentenced to total or partial confinement for the
following terms shall be committed as follows:
(1) Maximum terms of five or more years shall be
committed to the Department of Corrections for
confinement.
(2) Maximum terms of two years or more but less
than five years may be committed to the Department
of Corrections for confinement or may be committed to
a county prison within the jurisdiction of the court.
(3) Maximum terms of less than two years shall be
committed to a county prison within the jurisdiction of
the court.
See 42 Pa.C.S. § 9762(a)(1)-(3) (emphases added).
We also consider Subsection 9762(f):
(f) Aggregation.–For purposes of this section, the
sentences or terms of incarceration shall mean the entire
continuous term of incarceration to which a person is
subject, notwithstanding whether the sentence is the result
of any of the following:
(1) One or more sentences.
* * *
(4) Any other manner of sentence.
42 Pa.C.S. § 9762(f)(1), (4).
On appeal, the Commonwealth frames Appellant’s claim as a challenge
to the consecutive nature of his sentence, and thus the discretionary aspects
of his sentence. The Commonwealth then reasons Appellant has waived this
issue by failing to raise it before the trial court and raise a substantial
question. However, Subsection 9762(a) directs that a defendant “shall” or
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“may be” confined to state or county prison, depending on the length of the
sentence. See 42 Pa.C.S. § 9762(a)(1)-(3). Because Appellant’s claim goes
to the statutory authority of the court to sentence him to state prison, we
deem the claim is a challenge to the legality of sentence, and do not find
waiver. See Eisenberg, 98 A.3d at 1275.
Had Appellant not been serving any other sentence, Subsection
9762(a) would direct the instant sentence for DWOPS, capped by statute at
six months, to be completed in a county prison. See 42 Pa.C.S. §
9762(a)(3); 75 Pa.C.S. § 6503(a.1). However, the trial court specifically
imposed the instant sentence to run consecutive to an unrelated sentence he
was currently serving in state prison. N.T., 1/15/13, at 25. The record does
not indicate the length of the current state sentence. 17 In light of the fact
that the trial court will impose a new sentence upon remand, and the various
results that may arise under Section 9762(f), we direct the trial court, at
resentencing, to state where Appellant is to serve the new sentence and its
reasoning pursuant to Section 9762(f).
Judgment of sentence vacated. Case remanded for resentencing
consistent with this opinion.
17
Appellant states in his brief that he “is currently serving a 14-30 month
sentence imposed by the Northampton County Court of Common Pleas
docketed at CP0002304 (OTN:T1646783) for a conspiracy-burglary charge.”
Appellant’s Brief at 17 n.4. However, without any support it the record, we
will not rely on that statement in our disposition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2015
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