Commonwealth v. Jurczak

• Decision Date: 21 February 2014
• Citation: 86 A.3d 265,2014 PA Super 31
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. James JURCZAK, Appellee.
• Court: Pennsylvania Superior Court

86 A.3d 265

2014 PA Super 31

COMMONWEALTH of Pennsylvania, Appellant

v.James JURCZAK, Appellee.

Superior Court of Pennsylvania.

Submitted Jan. 6, 2014.

Filed Feb. 21, 2014.

John P. Friedman, Assistant District Attorney, Waynesburg, for Commonwealth, appellant.

David F. Pollock, Waynesburg, for appellee.

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

OPINION BY ALLEN, J.:

The Commonwealth appeals from the judgment of sentence imposed after a jury found Appellee, James Jurczak (“Jurczak”), guilty of driving under the influence of alcohol and a drug or combination of drugs to a degree that impaired his ability to safely drive, 75 Pa.C.S.A. § 3802(d)(3); one count of possession of a small amount of marijuana, 35 P.S. § 780–113(a)(31)(i); and one count of possession of drug paraphernalia 35 P.S. § 780–112(a)(32). Additionally, the trial court found Appellant guilty of violating 75 Pa.C.S.A. § 3323(b), relating to stop signs and yield signs. We affirm.

The pertinent facts are as follows: On March 6, 2011, Trooper John Pash of the Pennsylvania State Police observed Jurczak, who was driving east on Clarksville Road, fail to stop at a stop sign. Affidavit of Probable Cause, 5/17/11, at 1. Trooper Pash followed Jurczak's vehicle and observed it cross the fog line three times and the double yellow line three times. Id. Jurczak activated a left turn signal on his vehicle at a traffic light, but failed to turn. Id. Trooper Pash stopped Jurczak's vehicle and upon approaching Jurczak, detected the odor of alcohol and observed that Jurczak's eyes were bloodshot and his speech was slurred. Id. Trooper Pash asked Jurczak to exit his vehicle, and conducted a pat down of Jurczak's outer clothing, during which he felt an object that he suspected was a marijuana pipe in Jurczak's pocket. Trooper Pash removed the object, which was a marijuana pipe with burnt marijuana inside it. Trooper Pash asked Jurczak to perform a breathalyzer test but Jurczak refused. Trooper Pash conducted a field sobriety test which Jurczak failed. Id. Jurczak was arrested and charged with the aforementioned crimes. Id.

A jury trial commenced on February 19, 2013, at the conclusion of which Jurczak was convicted. On June 5, 2013, the trial court sentenced Jurczak to 100 hours of community service, fines totaling $1725, and one year of County Intermediate Punishment (“CIP”) to be served as ninety days of house arrest with GPS and alcohol monitoring, followed by nine months of probation. Trial Court Order, 6/5/13, at 6. In addition, the trial court found Jurczak eligible for work release while on house arrest, and granted Jurczak furloughs as reasonably necessary to transport his disabled child to medical and/or mental health appointments and services. Id.

The Commonwealth filed a post-sentence motion on June 10, 2013, asserting that the sentence did not comply with the requirements of the Greene County Intermediate Punishment statutes or the Sentencing Code. The trial court denied the Commonwealth's motion on June 17, 2013. This appeal followed. The trial court directed the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and the Commonwealth complied. On August 19, 2013, the trial court entered an opinion pursuant to Pa.R.A.P. 1925(a).

The Commonwealth presents one issue for our review:

I. DID THE SENTENCING COURT ERR IN FINDING THAT THE GREENE COUNTY INTERMEDIATE PUNISHMENT PLAN, WHICH AUTHORIZED ELECTRONIC HOME MONITORING (AS ONE OF THREE QUALIFIED RESTRICTIVE INTERMEDIATE PUNISHMENT PROGRAMS) FOR DUI SENTENCES ONLY AFTER ONE–THIRD (1/3) OF THE MANDATORY MINIMUM SENTENCE IS SERVED AS INCARCERATION, VIOLATED STATUTE AND, THUS, ERRED IN SENTENCING [JURCZAK] TO A TERM OF 90 DAYS ELECTRONIC HOME MONITORING AS A COUNTY IP SENTENCE WHICH WAS NOT AUTHORIZED BY THE IP PLAN?

Commonwealth Brief at 10.

The Commonwealth asserts that the sentences imposed by the trial court were illegal. Commonwealth Brief at 12–25. “The scope and standard of review in determining the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court's application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.” Commonwealth v. Leverette, 911 A.2d 998, 1001–1002 (Pa.Super.2006) (citations omitted).

Here, the Commonwealth argues that the trial court's sentence did not conform to the requirements of the Greene County Intermediate Punishment Plan, which was implemented pursuant to the County Intermediate Punishment Act, 42 Pa.C.S.A. § 9801 et seq.

Section 9721 of the Pennsylvania Sentencing Code sets forth general sentencing alternatives, and provides in pertinent part:

(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.

42 Pa.C.S.A. § 9721 (emphasis added).

County intermediate punishment is a statutorily authorized sentencing alternative pursuant to 42 Pa.C.S.A. § 9721(a)(6). Commonwealth v. Williams, 941 A.2d 14, 21 (Pa.Super.2008) ( en banc ). “In adopting [intermediate punishment] as a sentencing alternative, ‘[t]he Legislature's intent 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.’ ” Id. at 24 (citations omitted). “Thus, the grant or denial of a defendant's request for [intermediate punishment] is largely within the sound discretion of the trial court.” Id.

However, section 9763 of the Sentencing Code and the CIP Act, 42 Pa.C.S.A. § 9801 et seq., impose certain restrictions on the sentencing court. In pertinent part, § 9763(c)(1) and § 9804(b)(4)(i) provide that a defendant such as Jurczak who is being sentenced for a first, second or third DUI related offense, may only be sentenced to county intermediate punishment after undergoing a drug and alcohol assessment.

The trial court in its Pa.R.A.P. 1925(a) opinion noted that Jurczak underwent the required drug and alcohol assessment, which reflected that Jurczak was not dependent and needed no further treatment. Trial Court Opinion, 8/19/13, at 4–5.

Where an defendant is found not to be in need of treatment after a drug and alcohol assessment is performed, the Sentencing Code provides:

(3) If the defendant is determined not to be in need of drug and alcohol treatment, the defendant may only be sentenced to county intermediate punishment in:

(i) house arrest with electronic surveillance;

(ii) partial confinement programs such as work release, work camps and halfway facilities; or

(iii) any combination of the programs set forth in this paragraph.

42 Pa.C.S.A. § 9763(c)(3).¹ The CIP Act contains a similar provision.²

In this case, the trial court sentenced Jurczak to a CIP sentence of house arrest with electronic surveillance in accordance with §§ 9763(c)(3)(i) and 9804(b)(4)(iii)(A). The Commonwealth argues that the sentence violates the “Greene County Intermediate Punishment Plan” which provides:

[A]ny DUI offender with a mandatory sentence of incarceration of more than thirty (30) days will serve at least one-third (1/3) of the mandatory as total confinement before becoming eligible for home electronic monitoring.

Greene County Intermediate Punishment Plan, Section 5 (emphasis added).

In fashioning its sentence, the trial court concluded that the Greene County Intermediate Plan, which required Jurczak to serve at least one-third of the mandatory sentence in total confinement, was inconsistent with the Sentencing Code, which required the trial court to impose a CIP sentence of either house arrest, partial confinement, or some combination thereof, and did not mandate a sentence of total confinement for defendants such as Jurczak. See§ 9763(c)(3)(i) and 9804(b)(4)(iii)(A), supra.

The Commonwealth claims that each county is authorized to develop its own CIP plan under the Sentencing Code. Accordingly, the Commonwealth argues that the Greene County CIP plan, which limits the option of house arrest with electronic monitoring to DUI offenders who have served one-third of their mandatory sentence, comports with the intent of the legislature to permit counties to formulate individual CIP plans.

Before we address the merits of the Commonwealth's claim, we will provide a brief overview of county intermediate punishment programs. Pursuant to the CIP Act, the appropriate county prison board, Criminal Justice Coordinating Commission, or specially established CIP board “may develop a county intermediate punishment plan to be submitted to the Pennsylvania Commission on Crime and Delinquency” for approval. 42 Pa.C.S.A. §§ 9802, 9804(a), 9805(c), 9806. The county board has certain powers and duties enumerated in § 9805(d), which include the power to “adopt a county intermediate punishment plan, including program policies for administration”. 42 Pa.C.S.A. § 9805(c).

In authorizing the board to create such a CIP plan “which describes a proposed intermediate punishment program”, the CIP Act does not authorize the board to create its own eligibility requirements for admission into a CIP program. 42 Pa.C.S.A. §§ 9802, 9805(d)(3). Rather, the CIP Act expressly provides that “no person other than the eligible offender shall be sentenced to a county...