Commonwealth of Pa. v. Bowers

• Decision Date: 29 June 2011
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellantv.Jamar R. BOWERS, Appellee.
• Court: Pennsylvania Superior Court

25 A.3d 349

2011 PA Super 135

COMMONWEALTH OF PENNSYLVANIA, Appellant

v.Jamar R. BOWERS, Appellee.

Superior Court of Pennsylvania.

Submitted Jan. 26, 2011.Filed June 29, 2011.

Alisa R. Hobart, Assistant District Attorney, Reading, for Commonwealth, appellant.Eric J. Taylor, Public Defender, Reading, for appellee.BEFORE: GANTMAN, LAZARUS and MUNDY, JJ.OPINION BY LAZARUS, J.:

The Commonwealth appeals from the judgment of sentence imposed in the Court of Common Pleas of Berks County, after appellee, Jamar R. Bowers (“Bowers”), pled guilty to driving under the influence of alcohol (“DUI”) and maximum speed limits.¹ Because the trial court illegally sentenced Bowers as a first-time DUI offender in direct contravention of 75 Pa.C.S.A. § 3806(b) and binding precedent, we vacate Bowers's judgment of sentence and remand for resentencing.

On September 5, 2008, the Commonwealth charged Bowers with two counts of DUI and the summary offense of careless driving.² On December 3, 2008, Bowers requested that the court accept him into an Accelerated Rehabilitative Disposition (“ARD”). On January 21, 2009, the court accepted Bowers into the ARD program for a 12–month period.

On June 13, 2009, while still enrolled in the ARD program, police stopped Bowers for speeding, and upon encountering Bowers, the officer observed the typical signs of intoxication. Bowers failed field sobriety tests administered by police, and subsequent blood analysis revealed a blood alcohol content of .118%. Consequently, the Commonwealth charged Bowers with two counts of DUI and the summary offense of maximum speed limits.

On August 5, 2009, the Commonwealth moved for Bowers to show cause as to why he should not be removed from ARD, having been arrested for DUI. On October 14, 2009, the court held a hearing on the Commonwealth's motion to terminate Bowers from ARD.³ At the hearing, the Commonwealth sought to withdraw its request, in response to which Bowers requested that the court remove him from the ARD program. The court complied and removed him from the program. On November 20, 2009, Bowers appeared for trial on his September 2008 charges, at the close of which the court granted Bowers's motion for judgment of acquittal as to the two DUI charges and acquitted him of careless driving.⁴

On November 30, 2009, Bowers filed a motion seeking to amend the information involving the June 13, 2009 case to reflect that the instant DUI charges be graded as first offenses because of his acquittal on the September 2008 DUI charges. On February 3, 2010, the court held a hearing on the motion and, subsequently, by order dated March 3, 2010, denied same. Nevertheless, when Bowers pled guilty to the instant DUI charges on March 12, 2010, the court sentenced him, as a first-time DUI offender, to the mandatory-minimum sentence of 48 hours' incarceration, plus fines and costs.

The Commonwealth filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed a Pa.R.A.P. 1925(a) opinion. On appeal, the Commonwealth raises the following issue for our review:

DID THE TRIAL COURT ERR BY FAILING TO SENTENCE BOWERS TO THE MANDATORY 30–DAY INCARCERATION PERIOD FOR HIS SECOND DUI OFFENSE, WHERE BOWERS DID NOT SUCCESSFULLY COMPLETE THE ARD PLACEMENT FOR HIS FIRST DUI OFFENSE?

Commonwealth's Brief, at 4.

The Commonwealth contends that the trial court erred by failing to sentence Bowers as a second-time DUI offender and that, consequently, the court's sentence was illegal. The Commonwealth relies on the plain language of Vehicle Code Section 3806(b) and Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987) ( en banc ) , appeal denied, 520 Pa. 586, 551 A.2d 213 (1988), for the proposition that ARD acceptance, alone, is sufficient to trigger the DUI sentencing enhancements. Accordingly, because Bowers accepted ARD for his first DUI arrest, he was a second-time offender for sentencing pursuant to Section 3806(b), despite his acquittal of the charges leading to his ARD acceptance. We agree.

A claim that the court improperly graded an offense for sentencing purposes implicates the legality of a sentence. Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa.Super.2004). A challenge to the legality of a sentence may be raised as a matter of right, is not subject to waiver, and may be entertained as long as the reviewing court has jurisdiction. Commonwealth v. Graeff, 13 A.3d 516, 517 (Pa.Super.2011). “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. Stevenson, 850 A.2d 1268, 1271 (Pa.Super.2004) ( en banc ). “We can raise and review an illegal sentence sua sponte.” Commonwealth v. Muhammed, 992 A.2d 897, 903 (Pa.Super.2010). When we address the legality of a sentence, our standard of review is plenary and is limited to determining whether the trial court erred as a matter of law. Commonwealth v. Johnson, 910 A.2d 60, 66 (Pa.Super.2006), appeal denied, 592 Pa. 766, 923 A.2d 1173 (2007).

The relevant statutory provisions at issue in this case are as follows:

§ 3804. Penalties

...

(b) High rate of blood alcohol; minors; commercial vehicles and school buses and school vehicles; accidents.—Except as set forth in subsection (c), an individual who violates section 3802(a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or damage to a vehicle or other property or who violates section 3802(b), (e) or (f) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 48 consecutive hours;

(ii) pay a fine of not less than $500 nor more than $5,000;

(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.

(2) For a second offense, to:

(i) undergo imprisonment of not less than 30 days;

(ii) pay a fine of not less than $750 nor more than $5,000;

(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(b)(1) and (2).

§ 3806 Prior offenses

(a) General rule.—Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:

(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance);

(2) an offense under former section 3731; (3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or

(4) any combination of the offenses set forth in paragraph (1), (2) or (3).

(b) Repeat offenses within ten years.—The calculation of prior offenses for purposes of sections 1553(d.2) (relating to occupational limited license), 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the present violation occurred for any of the following:

(1) an offense under section 3802;

(2) an offense under former section 3731;

(3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or

(4) any combination of the offenses set forth in paragraph (1), (2) or (3).

75 Pa.C.S.A. § 3806 (emphasis added).

In Becker, supra, police charged appellee with DUI in January 1984 under the now-repealed Drunk Driving Act. See 75 Pa.C.S.A. § 3731, repealed by 2003, Sept. 30, P.L. 120, No. 24, § 14, effective February 1, 2004. In particular, Section 3731(e)(2), provided that “Acceptance of [ARD] ... shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.” 75 Pa.C.S.A. § 3731(e)(2). Appellee accepted placement into ARD in August 1984 and less than one week later, on September 5, 1984, police arrested and charged him with another DUI. He pled guilty to the September DUI in January 1985, and the court sentenced him as a first-time DUI offender. The Commonwealth appealed, alleging that appellee, who had accepted ARD for his January 1984 DUI arrest, was a second-time offender.

An en banc panel of this Court reviewed Section 3731(e)(2), and finding its terms unambiguous, held “a defendant who is convicted of drunk driving after having accepted ARD to avoid prosecution for an earlier drunk driving charge must be sentenced as a repeat offender-whether or not he has ever completed the ARD program.” Becker, 530 A.2d at 893. In so holding, this Court stated:

One significant consequence of § 3731(e)(2) is that a defendant who is guilty of only one crime will be sentenced as though he had twice broken the law. In the instant case, Becker has not yet been tried for allegedly driving while intoxicated in January, the first charge. If ARD is revoked, he will stand trial on this charge, and he may well be found not guilty. Nevertheless, for purposes of § 3731(e)(2), whether a defendant was guilty or innocent at the time he accepted ARD is irrelevant. All that matters is that he be duly convicted on a subsequent occasion.

This may be a harsh result, but it is a result which is mandated by the language and policy of the Vehicle Code. The General Assembly demonstrated a special concern with the ARD program, and sought to ensure that both guilty and innocent participants in that program would have cause to reflect on the serious nature of the crime of drunk driving.

Id. at 891–92 (emphasis added).

The...