Com. v. Hoffman, M. , 123 A.3d 1065 ( 2015 )

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2015 Pa. Super. 193
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL HOFFMAN
Appellant No. 2647 EDA 2013
Appeal from the Judgment of Sentence August 16, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011924-2012
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
OPINION BY GANTMAN, P.J.: FILED SEPTEMBER 11, 2015
Appellant, Michael Hoffman, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
open guilty plea to driving under the influence of alcohol (“DUI”). 1 We
vacate and remand for IPP evaluation and resentencing.
The relevant facts and procedural history of this appeal are as follows.
On January 1, 2011, Appellant crashed his car into another vehicle in a
Philadelphia parking garage. Police found Appellant very intoxicated at the
scene of the accident, and Appellant refused a breathalyzer test. Appellant
had a prior DUI offense. On June 24, 2011, the municipal court convicted
____________________________________________
1
75 Pa.C.S.A. § 3802(a)(1).
_________________________
*Retired Senior Judge assigned to the Superior Court.
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Appellant of DUI as a second offense with refusal of testing and sentenced
Appellant on August 8, 2011, to ninety (90) days to twelve (12) months’
imprisonment.
Appellant filed a motion for reconsideration on August 18, 2011, which
was denied by operation of law on December 19, 2011. On August 13,
2012, Appellant filed a petition to reinstate his appeal rights to the Court of
Common Pleas (“CCP”), nunc pro tunc, which the municipal court reinstated
on September 17, 2012. Appellant timely filed an appeal for a trial de novo
with the CCP on October 5, 2012.
On April 8, 2013, Appellant entered an open guilty plea to DUI as a
second offense with refusal of testing. The CCP sentenced Appellant on
August 16, 2013, to a mandatory minimum of ninety (90) days to six (6)
months’ imprisonment, with immediate parole after ninety (90) days, and
credit for time served. Appellant requested a sentence of house arrest or
another alternative sentence under the intermediate punishment program
(“IPP”). The Commonwealth did not object at that time. On September 16,
2013, Appellant filed a motion for post-sentence bail (R.O.R.), which the CCP
granted, pending appeal; Appellant also timely filed a notice of appeal. On
May 8, 2014, the CCP ordered a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a Rule
1925(b) statement on May 23, 2014.
Appellant raises one issue for our review:
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CAN A PHILADELPHIA COMMON PLEAS JUDGE ORDER
“HOUSE ARREST” AND/OR “INTERMEDIATE PUNISHMENT”
FOR A 2ND OFFENSE, TIER III DUI (MANDATORY MINIMUM
90 DAYS), OVER THE OBJECTION OF THE
COMMONWEALTH?
(Appellant’s Brief at 4).
Appellant argues he is eligible for IPP in Philadelphia, despite the
ninety (90) day statutory mandatory minimum for a second offense DUI with
refusal of testing. Appellant relies on Commonwealth v. Sarapa, 13 A.3d
961 (Pa.Super. 2011) as controlling, which allows the court the discretion to
impose intermediate punishment for qualified DUI offenders. Appellant
maintains the Commonwealth and the CCP erred in refusing to offer IPP, due
to the mandatory sentencing found in the DUI statute. Appellant concludes
this Court should remand the matter for evaluation to determine if Appellant
qualifies for IPP. We agree.
Initially, we observe:
The interplay between the mandatory minimum sentence
provisions of [75 Pa.C.S.A. § 3804], the exception
regarding sentencing options in 42 Pa.C.S. § 9721(a.1),
and the definition of “eligible offender” in 42 Pa.C.S. §
9802 requires a measure of statutory interpretation, and
[b]ecause statutory interpretation is a question of law, our
standard of review is de novo, and our scope of review is
plenary. In matters of statutory interpretation, the
General Assembly’s intent is paramount. Generally, such
intent is best expressed through the plain language of the
statute. Thus, [w]hen the words of a statute are clear and
free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit. Every
statute shall be construed, if possible, to give effect to all
its provisions. We presume the legislature did not intend a
result that is absurd, impossible, or unreasonable, and that
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it intends the entire statute to be effective and certain.
When evaluating the interplay of several statutory
provisions, we recognize that statutes that relate to the
same class of persons are in pari materia and should be
construed together, if possible, as one statute. If two
statutes conflict, they are to be construed so effect may be
given to both, if possible; if this is not possible, the special
provision prevails over the general one as an exception to
it, unless the general one was enacted later and there is
manifest legislative intent that it prevail.
Commonwealth v. Stotelmyer, ___ Pa. ___, ___, 110 A.3d 146, 149-50
(2015).
Section 9721 of the Sentencing Code states:
§ 9721. Sentencing Generally
(a) General Rule.—In determining the sentence to be
imposed the court shall, except as provided in subsection
(a.1), consider and select one or more of the following
alternatives, and may impose them consecutively or
concurrently:
(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
(6) County intermediate punishment.
(7) State intermediate punishment.
(a.1) Exception.—
(1) Unless specifically authorized under section
9763 (relating to a sentence of county
intermediate punishment) or Chapter 99
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(relating to State intermediate punishment),
subsection (a) shall not apply where a
mandatory minimum sentence is otherwise
provided by law.
42 Pa.C.S.A. § 9721 (emphasis of exception added). Section 3804 of the
DUI statute provides specific penalties for DUI offenders as follows:
§ 3804. Penalties
* * *
(c) Incapacity; highest blood alcohol; controlled
substances.—An individual who violates section
3802(a)(1) and refused testing of blood or breath or an
individual who violates section 3802(c) or (d) shall be
sentenced as follows:
* * *
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days;
(ii) pay a fine of not less than $1,500;
(iii) attend an alcohol highway safety school
approved by the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and
3815.
75 Pa.C.S.A. § 3804.
Section 9763 of the Sentencing Code addresses IPP sentencing, in
relevant part, as follows:
§ 9763. Sentence of county intermediate punishment
(a) General rule.—In imposing a sentence of county
intermediate punishment, the court shall specify at the
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time of sentencing the length of the term for which the
defendant is to be in a county intermediate punishment
program established under Chapter 98 (relating to county
intermediate punishment) or a combination of county
intermediate punishment programs. The term may not
exceed the maximum term for which the defendant could
be confined and the program to which the defendant is
sentenced. The court may order a defendant to serve a
portion of the sentence under section 9755 (relating to
sentence of partial confinement) or 9756 (relating to
sentence of total confinement) and to serve a portion in a
county intermediate punishment program or a combination
of county intermediate punishment programs.
* * *
(c) Restriction.—
(1) Any person receiving a penalty imposed pursuant
to 75 Pa.C.S. § 1543(b) (relating to driving while
operating privilege is suspended or revoked), former 75
Pa.C.S. § 3731 (relating to driving under influence of
alcohol or controlled substance) or 75 Pa.C.S. § 3804
(relating to penalties) for a first, second or third offense
under 75 Pa.C.S. Ch. 38 (relating to driving after
imbibing alcohol or utilizing drugs) may only be
sentenced to county intermediate punishment
after undergoing an assessment under 75 Pa.C.S. §
3814 (relating to drug and alcohol assessments).
(2) If the defendant is determined to be in need of
drug and alcohol treatment, the defendant may only be
sentenced to county intermediate punishment which
includes participation in drug and alcohol treatment
under 75 Pa.C.S. § 3815(c) (relating to mandatory
sentencing). The defendant may only be sentenced to
county intermediate punishment in:
(i) a residential inpatient program or a residential
rehabilitative center;
(ii) house arrest with electronic surveillance;
(iii) a partial confinement program such as work
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release, work camp and halfway facility; or
(iv) any combination of the programs set forth in
this paragraph.
* * *
42 Pa.C.S.A. § 9763(a), (c)(1)-(2) (emphasis added to text of statute).
Section 9804 of the Sentencing Code describes IPP and eligibility in
pertinent part as:
§ 9804. County intermediate punishment programs
* * *
(b) Eligibility.—
(1)(i) No person other than the eligible offender shall
be sentenced to a county intermediate punishment
program.
(ii) The prosecuting attorney, in the prosecuting
attorney’s sole discretion, may advise the court that the
Commonwealth has elected to waive the eligibility
requirements of this chapter if the victim has been
given notice of the prosecuting attorney’s intent to
waive the eligibility requirements and an opportunity to
be heard on the issue.
(iii) The court, after considering victim input, may
refuse to accept the prosecuting attorney’s waiver of
the eligibility requirements.
(2) The Pennsylvania Commission on Sentencing
shall employ the term “eligible offender” to further
identify offenders who would be appropriate for
participation in county intermediate punishment
programs. In developing the guidelines, the
commission shall give primary consideration to
protection of the public safety.
* * *
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(4)(i) Any person receiving a penalty imposed pursuant
to 75 Pa.C.S. § 1543(b) (relating to driving while
operating privilege is suspended or revoked), 3804
(relating to penalties) or 3808(a)(2) (relating to
illegally operating a motor vehicle not equipped with
ignition interlock) shall undergo an assessment
under 75 Pa.C.S. § 3814 (relating to drug and alcohol
assessments).
(ii) If the defendant is determined to be in need of
drug and alcohol treatment, a sentence to county
intermediate punishment shall include participation in
drug and alcohol treatment under 75 Pa.C.S. § 3815(c)
(relating to mandatory sentencing). The defendant may
only be sentenced to county intermediate punishment
in:
(A) a residential inpatient program or a residential
rehabilitative center;
(B) house arrest with electronic surveillance;
(C) a partial confinement program such as work
release, work camp and halfway facility; or
(D) any combination of the programs set forth in this
subparagraph.
(iii) If the defendant is determined not to be in need
of drug and alcohol treatment or if the defendant
receives a penalty imposed under 30 Pa.C.S. §
5502(c.1) (relating to operating watercraft under
influence of alcohol or controlled substance), the
defendant may only be sentenced to a county
intermediate punishment program in:
(A) house arrest with electronic surveillance;
(B) partial confinement programs such as work
release, work camps and halfway facilities; or
(C) any combination of the programs set forth in this
paragraph.
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(5) A defendant subject to 75 Pa.C.S.A. § 3804
(relating to penalties) may only be sentenced to
county intermediate punishment for a first,
second, or third offense.
42 Pa.C.S.A. § 9804(b)(1)-(2), (4)-(5) (internal emphasis added). The
county intermediate punishment (“CIP”) act defines an eligible offender as:
§ 9802. Definitions
* * *
“Eligible Offender.” Subject to section 9721(a.1)
(relating to sentencing generally), a person convicted of an
offense who would otherwise be sentenced to a county
correctional facility, who does not demonstrate a present
or past pattern of violent behavior and who would
otherwise be sentenced to partial confinement pursuant to
section 9724 (relating to partial confinement) or total
confinement pursuant to section 9725 (relating to total
confinement). The term does not include an offender who
has been convicted or adjudicated delinquent of a crime
requiring registration under Subchapter H of Chapter 97
(relating to registration of sexual offenders) or an offender
with a current conviction or a prior conviction within the
past ten years for any of the following offenses:
18 Pa.C.S. § 2502 (relating to murder).
18 Pa.C.S. § 2503 (relating to voluntary manslaughter).
18 Pa.C.S. § 2702 (relating to aggravated assault).
18 Pa.C.S. § 2703 (relating to assault by prisoner).
18 Pa.C.S. § 2704 (relating to assault by life prisoner).
18 Pa.C.S. § 2901(a) (relating to kidnapping).
18 Pa.C.S. § 3122.1(a)(1) (relating to statutory sexual
assault).
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18 Pa.C.S. § 3301 (relating to arson and related
offenses).
18 Pa.C.S. § 3502 (relating to burglary) when graded as
a felony of the first degree.
18 Pa.C.S. § 3701 (relating to robbery).
18 Pa.C.S. § 3923 (relating to theft by extortion).
18 Pa.C.S. § 4302(a) (relating to incest).
18 Pa.C.S. § 5121 (relating to escape).
42 Pa.C.S.A. § 9802 (footnote omitted).
The legislative intent in adopting IPP as a sentencing alternative was
“to give judges another sentencing option which would lie between probation
and incarceration with respect to sentencing severity; to provide a more
appropriate form of punishment/treatment for certain types of non-violent
offenders; to make the offender more accountable to the community; and to
help reduce the county jail overcrowding problem while maintaining public
safety.” Commonwealth v. Williams, 941 A.2d 14, 24 (Pa.Super. 2008)
(en banc) (quoting Commonwealth v. Arthur Williams, 868 A.2d 529,
534 (Pa.Super. 2005), appeal denied, 586 Pa. 726, 890 A.2d 1059 (2005)).
“[T]he grant or denial of a defendant’s request for IPP is largely within the
sound discretion of the trial court.” Id. The same discretion applies to IPP
in the context of a qualified first, second or third DUI offender, regardless
of the mandatory sentence set forth in the DUI statute, because the specific
provisions in 42 Pa.C.S. §§ 9763 and 9804 permit the court to sentence
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such offenders to IPP after they have undergone assessment—
notwithstanding the mandatory sentencing provisions of Section 3804 of the
DUI statute. Stotelmyer, supra at ___, 110 A.3d at 152.
Instantly, in response to Appellant’s issue, the trial court reasoned:
Appellant claims that at the time of sentencing [he]
requested “house arrest” and/or “intermediate
nd
punishment” with respect to a second (2 ) offense, Tier
III DUI (90 day mandatory). The [c]ourt opined that she
“did not have the authority” to [o]rder the mandatory
minimum to be served on house arrest; she further
indicated a desire to grant it in her discretion, but felt she
lacked said discretion.
* * *
While on its face, the mandatory minimums of the DUI
sentencing provisions in Pennsylvania require a mandatory
minimum 90 days incarceration with respect to a Tier III
DUI, 2nd offense within ten (10) years[,] [t]he legislation
enacted sets forth additional guidance.
* * *
[T]he [c]ourt believed it did lack the discretion to impose
an alternative sentence such as [IPP] or [h]ouse [a]rrest.
However, a fair reading of Sarapa...sets forth the ability of
a [c]ourt to impose alternative sentences for DUI offenders
if it is determined that, inter alia, the county restricts
access to one type of intermediate punishment.
Our General Assembly, in passing legislation enabling the
creation of county intermediate punishment programs,
intended to create a means of protecting society while at
the same time promoting efficiency and economy in
providing corrections services. Further, the legislature
aimed “[t]o promote accountability of offenders to their
local community.” 42 Pa.C.S. § 9803(2). The General
Assembly also stated that the purpose behind the Act was
to both “fill gaps in local correctional services available to
the court[,]” and “provide opportunities for offenders who
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demonstrate special needs to receive services which
enhance their ability to become contributing members of
the community.” 42 Pa.C.S. § 9803(3), (4). Accordingly,
this is a question of law to be resolved.
The holding in Sarapa...does not require, on remand, that
the trial court sentence Appellant to an IPP sentence;
rather, the sentencing court should carefully consider the
relevant criteria for IPP, the circumstances of Appellant’s
case, and whether Appellant would benefit from an IPP
sentence.
Accordingly, if applicable, this Court would accept a
remand and carefully review the local Philadelphia
Programs available in order to determine whether a
discretionary alternative sentence is proper application in
this specific instance.
(Trial Court Opinion, filed January 16, 2015, at 2-3). We accept the trial
court’s analysis. This case involves Appellant’s second DUI offense, which is
subject to the mandatory minimum sentence in 75 Pa.C.S.A. §
3804(c)(2)(i). Neither the Commonwealth nor the trial court objects to
Appellant’s request for an IPP evaluation. Thus, the best resolution of this
appeal is to remand the matter for Appellant to undergo IPP evaluation and
appropriate resentencing. See Commonwealth v. Jurczak, 86 A.3d 265
(Pa.Super. 2014) (explaining DUI offenders are required to undergo drug
and alcohol assessment to qualify for IPP); 42 Pa.C.S.A. § 9802; 42
Pa.C.S.A. § 9804(b). Accordingly, we vacate and remand for IPP evaluation
and resentencing.
Judgment of sentence vacated; case remanded with instructions.
Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2015
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