Commonwealth v. Dennis, 1935 WDA 2015

• Decision Date: 22 May 2017
• Docket Number: No. 1935 WDA 2015,1935 WDA 2015
• Citation: 164 A.3d 503
• Parties: COMMONWEALTH of Pennsylvania v. Robert Louis DENNIS, Appellant
• Court: Pennsylvania Superior Court

164 A.3d 503

COMMONWEALTH of Pennsylvania

v.Robert Louis DENNIS, Appellant

No. 1935 WDA 2015

Superior Court of Pennsylvania.

Argued January 10, 2017

Filed May 22, 2017

Brandon P. Ging, Public Defender, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, OLSON AND STRASSBURGER,^* JJ.

OPINION BY BOWES, J.:

Appellant appeals from the judgment of sentence of ninety days house arrest and eighteen months probation following his guilty plea for driving under the influence ("DUI") and driving without a license. He raises statutory and constitutional challenges to the trial court's pre-sentencing revocation of bond for purposes of completing an alcohol assessment. We condemn the imprisonment of Appellant for his inability to pay for that assessment upfront. We are, however, constrained to affirm judgment of sentence, as Appellant received time credit for this period of incarceration.

On April 30, 2015, Appellant was arrested for operating a motor vehicle while under the influence of alcohol. His breath test revealed a blood alcohol content of .268%. Appellant, who had a prior DUI conviction, was charged with two counts of DUI and the summary offense of driving without a license.

On September 23, 2015, Appellant pleaded guilty to one count of DUI, graded as a misdemeanor of the first degree, and the summary offense. Sentencing was scheduled for October 27, 2015. In the interim, Appellant was ordered to undergo a Court Reporting Network ("CRN") assessment plus a separate drug and alcohol assessment.

Appellant appeared for sentencing in compliance with the CRN requirement. However, he informed the court that he was unable to complete the second assessment since he could not afford a $100 payment required upfront by the assessor. Appellant repeated his willingness to complete the requirement and suggested that the court either waive the assessment or order the provider to complete the assessment without payment of the fee, with repayment to follow as part of court costs.

The trial court refused to waive the requirement and stated that the assessment could not be added to court costs. The judge then informed Appellant that the fee must be collected upfront, due to "a pretty strict policy, I think uniform throughout the criminal division." N.T. 10/27/15, at 4. The judge then stated, "Why doesn't [Appellant] come up with a hundred bucks in a week or so, give him a break instead of sending him to jail. I mean that's the alternative." Id. at 4–5.¹ Appellant stated, "I don't have [the money], sir, I just rather do my time and get it over with, sir." Id. at 5. The trial court thereafter revoked Appellant's bond and remanded him to the Allegheny County Jail, with sentencing to follow "[a]s soon as that assessment is completed[.]". Id. at 6. The assessment was completed on November 9, 2015. Appellant remained incarcerated from October 27, 2015, through November 10, 2015.

On November 9, 2015, Appellant filed a motion asking the trial court to certify the order for interlocutory appeal. On November 10, 2015, the trial court denied the motion and imposed the aforementioned sentence, with time credit for the fifteen-day period of incarceration.

Appellant filed a timely notice of appeal, and complied with the order to file a concise statement of matters complained of on appeal. The trial court filed an opinion in response and the matter is ready for our review. Appellant raises the following issue:

When [Appellant] entered a guilty plea to DUI but was financially unable to pay the preliminary fee for taking the mandatory, pre-sentence drug and alcohol assessment pursuant to 75 Pa.C.S. § 3814, whether the trial court's decision to incarcerate him so that the assessment could be performed in the Allegheny County Jail violated 75 Pa.C.S. § 3815(f)(2), as well as [Appellant]'s federal and state constitutional rights to equal protection and due process of law?

Appellant's brief at 5.

Initially, we must address whether this appeal should be dismissed as moot, as urged by the Commonwealth, since Appellant's sole claim on appeal challenges the fifteen days he remained incarcerated for purposes of completing the assessment. Since Appellant was released long ago and received credit for that time as applied to his house arrest sentence, the Commonwealth maintains that there is no relief to give.

"As a general rule, an actual case or controversy must exist at all stages of the judicial process, or a case will be dismissed as moot." In re D.A., 801 A.2d 614, 616 (Pa.Super. 2002) (quoting In re Duran, 769 A.2d 497 (Pa.Super. 2001) ). However, this Court will decide questions that have otherwise been rendered moot when, inter alia , "the question presented is capable of repetition and apt to elude appellate review." Commonwealth v. Nava, 966 A.2d 630, 633 (Pa.Super. 2009) (citation omitted). Since Appellant maintains that Allegheny County requires the $100 fee in all cases, an assertion that is corroborated by the trial court, we find that this issue is likely to reoccur and apt to elude our review. Thus, we decline to dismiss the appeal as moot.

We now turn to Appellant's claim, that his fifteen-day incarceration violated the statutory scheme and the United States Constitution. At issue is the propriety of the trial court's application of statutory provisions governing the administration of drug and alcohol assessments prior to imposing a DUI sentence. Matters of statutory interpretation present questions of law, and our standard of review is de novo . Commonwealth v. Johnson, 125 A.3d 822 (Pa.Super. 2015). We conclude that the trial court lacked statutory authority to commit Appellant to jail for nonpayment and therefore do not reach Appellant's constitutional claims. See Commonwealth v. Ludwig, 583 Pa. 6, 874 A.2d 623, 628 (2005) ("[C]ourts have the duty to avoid constitutional difficulties, if possible, by construing statutes in a constitutional manner.").

Since this claim concerns the interplay of several statutes, we briefly review the role of an alcohol and/or drug assessment as a component of a DUI sentence. Sections3814 and 3816 of the Vehicle Code mandate assessments in the following circumstances. First, § 3816, the aforementioned CRN provision, requires an assessment for every individual convicted of a DUI:

(a) Evaluation using Court Reporting Network.— In addition to any other requirements of the court, every person convicted of a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) ... shall, prior to sentencing ... be evaluated using Court Reporting Network instruments issued by the department and any other additional evaluation techniques deemed appropriate by the court to determine the extent of the person's involvement with alcohol or controlled substances and to assist the court in determining what sentenc[e] ... would benefit the person or the public.

75 Pa.C.S. § 3816. Wholly apart from this CRN evaluation, § 3814 mandates a full assessment in the following circumstances:

(2) The defendant shall be subject to a full assessment for alcohol and drug addiction if any of the following subparagraphs apply:

(i) The defendant, within ten years prior to the offense for which sentence is being imposed, has been sentenced for an offense under:

(A) section 3802;

(B) former section 3731; or

(C) an equivalent offense in another jurisdiction.

(ii) Either:

(A) the evaluation under [CRN] indicates there is a need for counseling or treatment; or

(B) the defendant's blood alcohol content at the time of the offense was at least .16%.

....

75 Pa.C.S. § 3814. Appellant was subject to a full assessment due to his blood alcohol content exceeding .16% as well as his prior conviction. In Commonwealth v. Taylor, 628 Pa. 547, 104 A.3d 479 (2014), our Supreme Court held that these assessments are not discretionary and the county is obligated to ensure the availability of such assessments.

The trial court is required to utilize these assessments in fashioning a sentence. First, the penalties provisions set forth at 75 Pa.C.S. § 3804 specify that any individual convicted of a DUI offense must "comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815." See 75 Pa.C.S. § 3804(a) - (c). Additionally, a separate provision, entitled "Mandatory Sentencing" specifically states that, where a term of imprisonment is imposed, the offender must conform to the assessment recommendations. 75 Pa.C.S. § 3815. Sentencing cannot occur until the assessments are completed. See Commonwealth v. Taylor, 628 Pa. 547, 104 A.3d 479, 491 (2014) (describing the assessment procedure as demonstrating legislative intent that the sentencing court utilize the assessment as a sentencing aid in creating a sentence for the benefit of the offender and the public.).

The sole issue on appeal is whether the trial court violated this scheme when it revoked Appellant's bond and remanded him to county jail due to the failure to pay the $100 charge, which Appellant attributed to his indigency.

Preliminarily, we address the trial court's position, adopted by the Commonwealth herein, that Appellant waived any claim respecting this action as he requested to be incarcerated. We quote the pertinent portion of the October 27, 2015 transcript:

[APPELLANT'S COUNSEL]: Your Honor, my concern is this. Mr. Dennis is willing to do the assessment. It's a financial matter. He doesn't have the one hundred dollars that's required that day. I understand the alternative to get the assessment would be to go to jail but I also don't think that it's fair or his fault he needs to sit in jail just to have the assessment. I would ask the court to consider either waiving the assessment—

THE COURT: I can't waive it.

[APPELLANT'S COUNSEL]: I understand that. But the purpose of the statute and case law that supports it was so that the assessment can be done so that the sentencing judge would have an

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