Commonwealth v. Lee

260 A.3d 208

COMMONWEALTH of Pennsylvania

v.Nicole LEE, Appellant

No. 1396 EDA 2020

Superior Court of Pennsylvania.

Argued April 15, 2021

Filed July 27, 2021

Eric C. Closs, Stroudsburg, Public Defender, for appellant.

Alexandria P. Solt, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, Nicole Lee, appeals from the order entered in the Court of Common Pleas of Monroe County which denied her "Motion to Determine Legality of Sentence" filed with the court during a revocation of probation hearing. Herein, Appellant contends that the application of the mandatory minimum sentencing provision of 75 Pa.C.S.A. § 3806, designating a prior adjudication of delinquency as a "prior offense" triggering the mandatory sentencing enhancements of 75 Pa.C.S.A. § 3806 was both unconstitutional and in conflict with governing decisional law. We affirm.

On January 22, 2020, Appellant entered a counseled guilty plea to one count of DUI-Controlled Substance, Impaired Ability under 75 Pa.C.S. § 3802(d)(2). The Commonwealth had initially filed the charge as a first offense and offered Appellant Accelerated Rehabilitated Disposition ("ARD"), but it amended the criminal information to charge her as an ARD-ineligible second offender, upon discovering her 2011 adjudication of delinquency for DUI. See 75 Pa.C.S. § 3806(a) (prior offense for DUI sentencing includes adjudication of delinquency).¹

On June 16, 2020, the trial court sentenced Appellant to probation for a period of 24 months, with a condition that she serve 90 days under house arrest with electronic home monitoring. This 90-day mandatory minimum penalty was imposed pursuant to 75 Pa.C.S. § 3804(c)(2)(i), which provides that an individual who violates Section 3802(d) as a second DUI offense shall undergo not less than 90 days imprisonment. The court also imposed a mandatory $1,500 fine, additional fees and costs, and suspended her driving privileges for 18 months.

Two days later, on June 18, 2020, Appellant tested positive for opiates and fentanyl, at which time she also made a written admission that she used heroin intravenously on June 15, 2020. She tested positive again on June 22, 2020, and she signed an admission that she had used heroin on June 18, 2020. Accordingly, the court scheduled a revocation of probation hearing for July 20, 2020.

On July 16, 2020, four days prior to the scheduled revocation hearing, Appellant filed a "Motion to Determine Legality of Sentence" assailing the Commonwealth's use of her adjudication of delinquency-DUI as a prior offense for purposes of imposing a second-offender mandatory sentencing enhancement. On July 20, 2020, at the conclusion of the revocation hearing, the trial court denied Appellant's motion, revoked her probation, and resentenced her to a term of incarceration of not less than 90 days nor more than 24 months less one day, to be served in the Monroe County Correctional Facility.

On July 23, 2020, Appellant filed the present appeal in which she raises one question for our review:

Whether, considering the holding in [Commonwealth v. ] Chichkin , [232 A.3d 959 (Pa. Super. 2020)], the Sentencing Court erred in grading [Appellant's] DUI offense as a 2nd offense based upon a prior adjudication of delinquency for DUI?

Appellant's brief, at 4.

Following probation violation proceedings, this Court's scope of review is limited to verifying the validity of the proceeding and the legality of the sentence imposed. Commonwealth v. Heilman , 876 A.2d 1021 (Pa. Super. 2005). "The defendant or the Commonwealth may appeal as of right the legality of the sentence." 42 Pa.C.S.A. § 9781(a). As long as the reviewing court has jurisdiction, a challenge to the legality of the sentence is non-waivable and the court can even raise and address it sua sponte. Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa. Super. 2001). See also Commonwealth v. Robinson , 931 A.2d 15, 19–20 (Pa. Super. 2007). "Issues relating to the legality of a sentence are questions of law...." Commonwealth v. Diamond , 945 A.2d 252, 256 (Pa. Super. 2008), appeal denied, 598 Pa. 755, 955 A.2d 356 (2008). As with all questions of law on appeal, our "standard of review is de novo and our scope of review is plenary." Id .

"A claim that implicates the fundamental legal authority of the court to impose a particular sentence constitutes a challenge to the legality of the sentence." Commonwealth v. Catt , 994 A.2d 1158, 1160 (Pa. Super. 2010) (en banc ). "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated." Id. (quoting Commonwealth v. Watson , 945 A.2d 174, 178–79 (Pa. Super. 2008) ). Likewise, a sentence that exceeds the statutory maximum is illegal. Commonwealth v. Bradley , 575 Pa. 141, 834 A.2d 1127 (2003). If a court "imposes a sentence outside of the legal parameters prescribed by the applicable statute, the sentence is illegal and should be remanded for correction." Commonwealth v. Vasquez , 560 Pa. 381, 388, 744 A.2d 1280, 1284 (2000).

Commonwealth v. Infante , 63 A.3d 358, 363 (Pa. Super. 2013).

Initially, we note that Appellant's sole issue on appeal challenging the legality of her sentence focuses not on the propriety of the revocation proceedings and revocation sentence, per se, but on the legality of her underlying DUI—second offender sentence, which she claims was unlawfully based on the court's determination that her prior adjudication of delinquency for DUI qualifies as a "prior offense" for purposes of DUI sentencing. When previously confronted with a procedurally irregular claim of sentence illegality, this Court has opined as follows:

When, on appeal from a sentence imposed following probation revocation, an appellant collaterally attacks the legality of the underlying conviction or sentence,

such an approach is incorrect and inadequate for two reasons. First any collateral attack of the underlying conviction [or sentence] must be raised in a petition pursuant to the Post–Conviction Relief Act. Second, such an evaluation ignores the procedural posture of [the] case, where the focus is on the probation revocation hearing and the sentence imposed consequent to the probation revocation, not the underlying conviction and sentence.

Commonwealth v. Beasley , 391 Pa. Super. 287, 570 A.2d 1336, 1338 (1990). The PCRA provides the sole means for obtaining collateral review of a judgment of sentence. Commonwealth v. Fowler , 930 A.2d 586, 591 (Pa. Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) ; 42 Pa.C.S.A. § 9542. "[A] court may entertain a challenge to the legality of the sentence so long as the court has jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the filing of a timely PCRA petition." Id . at 592 (quoting Commonwealth v. Berry , 877 A.2d 479, 482 (Pa.Super.2005) (en banc ), appeal denied, 591 Pa. 688, 917 A.2d 844 (2007) ). "Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the exceptions thereto." Fowler , supra . Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. Commonwealth v. Robinson , 575 Pa. 500, 837 A.2d 1157 (2003). Thus, a collateral claim regarding the legality of a sentence can be lost for failure to raise it in a timely manner under the PCRA. Commonwealth v. Wojtaszek , 951 A.2d 1169, 1173 n. 9 (Pa.Super.2008), appeal denied, 600 Pa. 733, 963 A.2d 470 (2009).

Infante , 63 A.3d at 363–65.

Here, because Appellant filed her motion challenging the legality of the DUI sentence more than 10 days after the lower court's sentencing order, it may not qualify as a timely post-sentence motion. Nor was her motion filed with this Court as a direct appeal from her Underlying DUI sentence.

However, consistent with our above-referenced jurisprudence, we may consider her counseled challenge to the legality of the underlying DUI sentence as a timely first PCRA petition, as it was filed within one year of the time her judgment of sentence became final. We, therefore, proceed with merits review of her claim.

As our disposition of the present matter turns in significant part on an interpretation of Vehicle Code Section 3806(a), and given our need to ascertain and effectuate the intent of the legislature in the absence of a determination by the Pennsylvania Supreme Court regarding the use of a prior adjudication of delinquency as a predicate "prior offense" for imposing a mandatory sentencing enhancement under the relevant statutory scheme, we set forth the following standard of review regarding statutory interpretation:

The legislature has directed that "[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." 1 Pa.C.S. § 1921(b). See also Commonwealth v. Heberling , 451 Pa. Super. 119, 678 A.2d 794, 795 (1996). Accordingly, "even where legislation demonstrates a ‘recidivist philosophy,’ that philosophy cannot be exalted over the plain meaning of the statute." West v. Commonwealth Dep't of Transp ., 685 A.2d 649, 651 (Pa. Cmwlth. 1996).

Consequently, "[i]n construing a statute to determine its meaning, the courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words." Id . See also Commonwealth v. Harner , 533 Pa. 14, 20, 617 A.2d 702, 705 (1992) ("When language of a statute is clear and unambiguous, it must be given effect in accordance with its plain and common meaning."). We will consider the language of a statute ambiguous "only where it will bear two or more meanings." City of Philadelphia v. Schaller , 148 Pa.Super. 276, 25 A.2d 406, 409 (1942). See also Pennsylvania Assigned Claims Plan v. English

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