Com. v. Hopper, J. ( 2022 )

J-S20019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JANET LEE HOPPER :
:
Appellant : No. 18 WDA 2022
Appeal from the Judgment of Sentence Entered October 5, 2021
In the Court of Common Pleas of Armstrong County
Criminal Division at CP-03-CR-0000797-2020
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY MURRAY, J.: FILED: JUNE 23, 2022
Janet Lee Hopper (Appellant) appeals from the judgment of sentence
imposed after she pled guilty to driving under the influence of alcohol, general
impairment, (DUI), and driving under suspension, DUI related, (DUS).1
On May 29, 2020, Appellant was involved in a car accident. As a result,
the Commonwealth charged her with DUI and DUS. At Appellant’s guilty plea
hearing, the assistant district attorney (ADA) explained:
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1 75 Pa.C.S.A. §§ 3802(a)(1), 1543(b)(1.1)(i). The trial court did not
sentence Appellant to incarceration for her DUS conviction. Nonetheless, we
recognize the Pennsylvania Supreme Court’s recent decision affirming a DUS
conviction but vacating the sentence of incarceration because “the only
punishment that lawfully may be imposed at this time for a violation of DUS
pursuant to subsection 1543(b)(1.1)(i) is the mandatory $1,000 fine.”
Commonwealth v. Eid, 249 A.3d 1030, 1044 (Pa. 2021).
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[Appellant] displayed multiple signs of being highly intoxicated,
including a strong odor of alcohol and various off-kilter statements
that she had made. Field sobriety tests were not able to be
conducted due to her level of impairment. She was taken into
custody and refused to submit to a chemical test of blood.
At the time of this offense, her license was suspended due
to prior DUIs.
N.T., 8/4/21, at 6-7. The ADA also stated that Appellant’s DUI “would be her
seventh lifetime DUI.” Id. at 5. Appellant’s attorney (Defense Counsel) added
that Appellant was “aware this is a Chichkin2 first offense and the DUIs will
be brought up at presentence, but it is a first offense in ten years.” Id. at
6 (emphasis added).
Appellant admitted she had been drinking at the time of the accident,
and did not have a valid driver’s license because she “lost them prior [due] to
other” DUIs. Id. at 7. The trial court asked Appellant whether she was aware
of the “mandatory minimum periods of confinement?” Id. Appellant
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2 In Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), this Court
found 75 Pa.C.S.A. § 3806(a) to be unconstitutional insofar as it defined a
prior acceptance of ARD as constituting a prior offense for sentencing
purposes. However, on January 4, 2022, the Pennsylvania Supreme Court
granted allowance of appeal, currently pending, to consider:
Whether the Superior Court erred in holding for DUI sentencing
purposes that the Defendant’s conviction was a first offense in ten
years as opposed to a second offense in ten years based upon the
defective holding in Commonwealth v. Chichkin, 232 A.3d 959(Pa. Super. 2020) that acceptance of ARD could not be treated as
a prior conviction?
Commonwealth v. Verbeck, 270 A.3d 1098, 1099 (Pa. 2022).
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responded, “Yes, sir.” Id. The trial court accepted Appellant’s plea, ordered
a presentence investigation report (PSI), and scheduled sentencing for
October 5, 2021.
At sentencing, the trial court referenced the PSI and asked Appellant
whether there was anything in the PSI she “wish[ed] to bring to [the court’s]
attention as wrong or inaccurate?” N.T., 10/5/21, at 3. Defense Counsel
responded, “the only thing that’s wrong, it’s not a big deal, she has moved
recently to” a different address. Id.Appellant’s attorney further stated that Appellant, “for the most part,”
had been sober from 2002 to 2016. Id. at 5. At the time of sentencing,
Appellant was 59 years old. She had been in an abusive relationship, and had
recent surgery and “a lot of accidents.” Id. at 5. Appellant was “currently on
16 medications [and] scheduled to start physical therapy[.]” Id.
Defense Counsel requested the trial court sentence Appellant to house
arrest. See id. at 11. The court declined, saying: “If I were to place your
client on house arrest, then she would be sentenced to less of a penalty on
her seventh DUI than she was on her first DUI. … So it makes no sense to
me to go backward.” Id. at 11-12. The trial court twice remarked, and
Defense Counsel conceded, that seven DUIs was “extraordinary.” Id. at 12.
Nevertheless, the court specified it was sentencing Appellant “as a tier one,
first offense DUI.” Id. at 13. The trial court sentenced Appellant to three to
six months of incarceration for DUI, with no confinement for DUS.
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Appellant filed a timely post-sentence motion to modify sentence. The
trial court held a hearing on December 16, 2021, and entered an order denying
the motion on December 21, 2021. Appellant filed a timely appeal. Both
Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
Appellant presents the following issues for review:
WHETHER THE SENTENCING COURT IMPOSED AN ILLEGAL
SENTENCE WHEN IT SENTENCED APPELLANT TO NINETY (90)
DAYS TO SIX (6) MONTHS IMPRISONMENT FOR A VIOLATION OF
75 PA.C.S. § 3802(a)(1), WHERE APPELLANT’S VIOLATION WAS
DEEMED A FIRST OFFENSE PURSUANT TO 75 PA.C.S. § 3806 AND
THE ONLY AUTHORIZED SENTENCE IS SIX MONTHS OF
PROBATION?
WHETHER 75 PA.C.S. § 3804(a)(1) IS UNCONSTITUTIONALLY
VAGUE WHERE IT CAN BE INTERPRETTED TO MANDATE A PERIOD
OF SIX (6) MONTHS OF PROBATION FOR A DUI GENERAL
IMPAIRMENT FIRST OFFENSE?
Appellant’s Brief at 4.
Appellant argues her sentence of three to six months of incarceration is
illegal because her conviction was a first offense under 75 Pa.C.S.A. § 3806,
which defines prior offenses. Appellant’s Brief at 8. She also claims the
penalties for DUI, general impairment, set forth in 75 Pa.C.S.A. § 3804(a)(1),
are unconstitutionally vague. Id. Appellant contends § 3804 must be “strictly
interpreted in [her] favor,” and “requires a finding that the only authorized
punishment for a Tier I DUI offense that is a first offense is six months of
probation.” Id. She further argues “the rule of lenity also requires a finding
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that the only authorized punishment for a Tier I DUI offense ... is six months
of probation.” Id.3
When Appellant entered her guilty plea, she waived “all defects and
defenses except lack of jurisdiction, invalidity of the plea, and illegality of the
sentence.” Commonwealth v. Tareila, 895 A.2d 1266, 1267 (Pa. Super.
2006). Appellant’s challenge to the fundamental authority of the trial court to
impose her sentence constitutes a challenge to the legality of the sentence.
Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010) (citations
omitted). When the legality of a sentence is at issue, our “standard of review
is de novo and our scope of review is plenary.” Id.Appellant first argues, without supporting authority, that “the only
authorized punishment for a Tier I first offense DUI is six months of
probation.” Appellant’s Brief at 9, 13. Prevailing case law, particularly
Commonwealth v. Brown, 240 A.3d 970 (Pa. Super. 2020), refutes this
argument.
Section 3804 of the Vehicle Code sets forth mandatory minimum
sentences for DUI offenders, and provides that the mandatory minimum
penalty for a first offense DUI, general impairment, is six months of
probation. See 75 Pa.C.S.A. § 3804(a)(1)(i). With respect to § 3806 and
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3 The Commonwealth has advised it “does not intend to file an appellee brief
in the above stated matter.” Letter, 4/19/22.
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prior offenses, we have stated that Vehicle Code “provisions relating to prior
offenses ... do not dictate the defendant’s guideline sentence range, only the
minimum that [s]he must serve.” Commonwealth v. Cook, 941 A.2d 7, 13
(Pa. Super. 2007) (italics in original). Moreover, in Brown, supra, this Court
expressly rejected Appellant’s argument. Like Appellant, the appellant in
Brown, “fail[ed] to cite to a decision supporting his statutory interpretation,”
id. at 973, arguing that
the trial court had no authority to impose a minimum sentence
greater than the six months’ probation that Section 3804(a)(1)(i)
sets forth as a mandatory minimum sentence. Specifically, he
maintain[ed] the court was not permitted to rely as it did upon
the record or sentencing guidelines where the plain and
unequivocal statutory language setting forth the mandatory
minimum term of sentencing required imposition of a six month
probationary sentence.
Brown, 240 A.3d at 972.
This Court rejected the argument, finding “no compelling reason … to
depart not only from the Commonwealth Court’s jurisprudence declining to
construe Section 3804(a)(1) as requiring in all cases a minimum sentence of
probation for all first-time offenders, but also from our own jurisprudence
obligating courts to consider guideline sentences when they exceed
mandatory minimum sentences.” Id. at 973. We observed:
In Commonwealth v. Lewis, 45 A.3d 405, 411–13 (Pa. Super.
2012) (en banc), this Court reviewed whether a trial court had
abused its discretion when it imposed a sentence exceeding the
applicable mandatory minimum sentence [] for PWID after
considering both the standard guideline range [] and the statutory
maximum[.] At the outset, our Court sitting en banc,
acknowledged that it was the trial court’s obligation to consider
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the imposition of a guideline range sentence when the guidelines
exceeded the statutory mandatory minimum sentence:
A sentencing court “has no power to sentence below
the mandatory minimum notwithstanding any
guidelines provision.” Commonwealth v. Morgan,
425 Pa. Super. 344, 625 A.2d 80, 84–85 (1993).
However, the sentencing court must consider the
sentencing guidelines “whenever the guidelines
suggest a longer sentence than the mandatory
minimum required.” Id. (emphasis omitted). See
also 204 Pa. Code § 303.9 (stating that “[w]hen the
[guidelines] sentence recommendation is higher than
that required by a mandatory sentencing statute, the
court shall consider the guideline[s] sentence
recommendation”). …
Brown, 240 A.3d at 973-74 (emphasis in original) (quoting Lewis, 45 A.3d
at 411-12).
We thus “reject[ed a]ppellant’s bare assertion that the mandatory
minimum sentencing provision within Section 3804(a)(1) represents the only
sentence available to a court in imposing sentence in such cases,” and found
the appellant’s three to six month sentence to be “consistent with
controlling authority requiring courts to consider imposition of applicable
guideline range sentences when they exceed statutory minimums.” Id. at
974.
Instantly, Appellant acknowledges our holding in Brown, but asserts it
“was wrongly decided.” Appellant’s Brief at 9. Appellant disregards that we
“are bound by decisional and statutory legal authority.” Matter of M.P., 204
A.3d 976, 986 (Pa. Super. 2019). In particular, we are bound by our decision
in Brown. See Czimmer v. Janssen Pharmaceuticals, Inc., 122 A.3d
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1043, 1063 n.19 (Pa. Super. 2015) (explaining it is beyond the power of a
Superior Court panel to overrule a prior Superior Court decision, except in
circumstances where intervening authority by the Supreme Court calls into
question a previous decision of this Court). Accordingly, we are not persuaded
by Appellant’s argument that § 3804(a)(1) “authorized only” the mandatory
minimum sentence of six months of probation.
Likewise, we are not persuaded by Appellant’s argument that
§ 3804(a)(1) is unconstitutionally vague. The constitutionality of a statute is
a question of law; therefore, our scope of review is plenary. Commonwealth
v. Crawford, 24 A.3d 396, 400 (Pa. Super. 2011) (citation omitted). “The
constitutional validity of duly enacted legislation is presumed. The party
seeking to overcome the presumption of validity must meet a formidable
burden.” Id. “A statute will not be declared unconstitutional unless it clearly,
palpably, and plainly violates the Constitution; all doubts are to be resolved
in favor of a finding of constitutionality.” Id.Appellant assails the Vehicle Code’s “inartful” statutory language,
distinguishing what “might convey to an ordinary citizen,” in comparison to
what “attorneys might reasonably assume” regarding penalties. See
Appellant’s Brief at 16. Appellant does not cite pertinent legal authority to
support her argument and meet her “formidable burden.” Crawford, supra.Appellant also relies on the rule of lenity, arguing “the only lawful sentence
that can be imposed on [her] is a fine and possibly probation.” Appellant’s
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Brief at 21. The rule of lenity refers to the “mandate that ambiguous penal
statutes be interpreted in favor or the criminal defendant.” Commonwealth
v. Jarowecki, 985 A.2d 955, 963 (Pa. 2009). Once again, Appellant assails
the vagueness of the Vehicle Code, but provides no persuasive legal authority
for her argument. Rather, she refers to “the potential unpleasant task asked
of this Honorable Court” regarding “Pennsylvania’s current DUI scheme,
[which] from its inception, was destined to create problems.” Appellant’s Brief
at 22. Appellant asserts “our legislature created some confusion, as well as
some unfairness,” and essentially asks that we deviate from existing law. As
noted above, we are bound by existing authority and our prior decisions.
The Vehicle Code provides that an individual who is convicted under
§3802(a) of DUI, general impairment, as a first offense, “undergo a
mandatory minimum term of six months’ probation” pursuant to
§ 3804(a)(1)(i), as well as “a term of imprisonment of not more than six
months” pursuant to § 3803(a)(1). The trial court correctly observed:
The instant case is controlled by 75 Pa.C.S.A. §
3804(a)(1)(i) and 75 Pa.C.S.A. § 3803(a)(1). In
Commonwealth v. Brown, 240 A.3d 970 (Pa. Super. 2020), the
Superior Court held that § 3804(a)(1)(i) sets forth the mandatory
minimum sentence of a Tier I DUI offense at six (6) months of
probation. Additionally, § 3803(a)(1) sets forth the maximum
sentence for the Tier I DUI offense at no more than six (6) months
and to pay a fine. Section 3804(a)(1)(i) is not the only sentence
available to the [trial c]ourt as … 3803(a)(1) sets the maximum
sentence. Id. at 974. Furthermore, the [c]ourt may consider
guideline range sentences when sentencing defendants to more
than the statutory minimum. Id.
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After reviewing the presentence investigation report, which
noted the applicable standard range as well as [Appellant’s]
history of DUIs, the [c]ourt noted the mandatory minimum
sentence was inadequate, as the present case was [Appellant’s]
seventh DUI conviction. Accordingly, [Appellant] was convicted
of a Tier I DUI offense and the [c]ourt sentenced [her] to three
(3) to six (6) months incarceration. The sentence imposed was
within the guideline range from § 3803(a)(1) and § 3804(a)(1).
Trial Court Opinion, 1/24/22, at 2.
Appellant’s sentence of 3 to 6 months of incarceration for DUI is
consistent with statutory and case law. The sentence is legal, and Appellant’s
claims to the contrary do not merit relief.
Judgment of sentence affirmed.
Judge King joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2022
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