Commonwealth v. Popielarcheck

190 A.3d 1137

COMMONWEALTH of Pennsylvania, Appellant

v.Alexis POPIELARCHECK, Appellee

No. 41 WAP 2017

Supreme Court of Pennsylvania.

Argued: April 10, 2018

Decided: August 17, 2018

Marjorie Joan Fox, Esq., for Appellant Commonwealth of Pennsylvania.

Harry J. Cancelmi Jr., Esq., for Appellee Alexis Patricia Popielarcheck.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DONOHUE

We granted review in this case to consider the interplay between two alternative sentencing schemes for persons convicted of a second offense for driving under the influence or alcohol or a controlled substance ("DUI"). In particular, we agreed to decide whether, when sentencing a repeat offender in need of further treatment to county intermediate punishment ("CIP") under section 9763 of the Sentencing Code, 42 Pa.C.S. § 9763, the sentencing court must impose the statutory maximum sentence under section 3804(d) of the Vehicle Code, 75 Pa.C.S. § 3804(d). As we conclude that the Sentencing Code and the Vehicle Code establish independent alternative sentencing schemes, the sentencing court in this case was not required to impose the statutory maximum sentence when ordering Appellee Alexis Popielarcheck ("Popielarcheck") to serve a CIP sentence. Accordingly, the order of the Superior Court is hereby affirmed.

On August 8, 2014, police stopped Popielarcheck after observing her weaving onto and over road markers. A blood draw confirmed that she had in her system a combination of alprazolam, marijuana, cocaine, benzoylecognine, and hydrocodone. On January 15, 2015, the police filed a criminal complaint. On March 3, 2015, Popielarcheck underwent a drug and alcohol assessment at the Greene County Human Services Drug and Alcohol program, but she failed to pursue the treatment recommendation. On June 4, 2015, she underwent a second assessment at the same facility, which resulted in a recommendation that she pursue inpatient treatment at the Greenbriar Treatment Center ("Greenbriar").

On June 15, 2015, Popielarcheck plead guilty to two misdemeanor counts of DUI, 75 Pa.C.S. § 3802(d)(1)(i) (marijuana) and (d)(2) (various).¹ The sentencing court modified her bail to require that she attend and complete the recommended treatment at Greenbriar. Popielarcheck began treatment on June 23, 2015 and completed it on July 14, 2015. On September 1, 2015, the court conducted a sentencing hearing. Her discharge summary from Greenbriar, which was admitted into evidence without objection, reflected that her prognosis at the time of discharge was "poor" and that her success would depend upon her following through with aftercare recommendations. N.T, 9/1/2015, at 17-18. Popielarcheck, who had one prior DUI conviction in 2007, testified to relapsing "many times over." Id. at 12.

Under the Sentencing Code, Popielarcheck was eligible for a CIP sentence. 42 Pa.C.S. § 9804. Conversely, under the Vehicle Code, Popielarcheck's minimum term of confinement was ninety days, 75 Pa.C.S. § 3804(c)(2)(a), and her maximum term of confinement was five years, as her crimes ( 75 Pa.C.S. § 3802(d)(1)(i) and (d)(2) ) are first-degree misdemeanors, 75 Pa.C.S. § 3803(b)(4), which carry a five-year maximum sentence. See 18 Pa.C.S. § 1104(1).

The trial court sentenced Popielarcheck to a CIP sentence, consisting of "total supervision of 2 years, with the first 120 days to be served on house arrest at a residence approved by the probation and parole office, and thereafter, 20 months of regular supervision." Order, 9/1/2015, at 4. She received twenty-one days of credit for the time she spent at Greenbriar. Id. The Commonwealth, both at the sentencing hearing and then in a post-trial motion, argued that the court's sentence failed to comply with section 3804(d) of the Vehicle Code.² N.T., 9/1/2015, at 36-37; Petition for Modification of Sentence, 9/11/15, ¶¶ 16-19. In particular, the Commonwealth argued that section 3804(d) provides that when a pre-sentence drug and alcohol assessment results in a finding that the individual is in need of additional treatment, the court must impose "a maximum sentence equal to the statutorily available maximum." Petition for Modification of Sentence, 9/11/15, ¶¶ 16 (citing 75 Pa.C.S. § 3804(d) ). Because Popielarcheck's two drug and alcohol assessments both resulted in findings that she was in need of additional treatment, the Commonwealth argued that her CIP sentence had to be for a term of five years, the statutory maximum sentence for misdemeanors of the first degree. Id.

The sentencing court denied the post-trial motion and the Commonwealth appealed.³ In its opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, the sentencing court explained that it applied its discretion and did not sentence Popielarcheck to the five-year statutory maximum under 75 Pa.C.S. § 3804(d) despite that it is what "the statutory language appears to mandate." Trial Court Opinion 4/25/2016, at 5. The sentencing court questioned whether the language was mandatory or discretionary and indicated that it "would appreciate some clear direction from the Appellate Court on how ... to proceed." Id. at 6.

The Superior Court affirmed the sentence, holding that a sentencing court is authorized to sentence a defendant convicted of a second DUI offense to a CIP sentence under the Sentencing Code, and that because Popielarcheck was not sentenced under the Vehicle Code, section 3804(d) did not apply. Commonwealth v. Popielarcheck , 151 A.3d 1088, 1093 (Pa. Super. 2016). The Superior Court noted that section 3804(d) begins with an important restriction on its application, namely, that it applies only if the defendant "is sentenced pursuant to this chapter." Id. (quoting 75 Pa.C.S. § 3804(d) ). The Superior Court understood "this chapter" to refer to Chapter 38 of the Vehicle Code, and because the trial court sentenced Popielarcheck pursuant to Chapter 97 of the Sentencing Code, "neither the mandatory minimum nor maximum provisions of [section 3804(d) of the Vehicle Code] apply and the sentence imposed is not illegal." Id.

We granted allowance of appeal to determine whether an individual sentenced to CIP is nonetheless subject to the mandatory maximum in section 3804(d) of the Vehicle Code. 75 Pa.C.S. § 3804(d). Because this is a matter of statutory interpretation, our scope of review is plenary and the standard of review is de novo. Commonwealth v. Cullen-Doyle , 640 Pa. 783, 164 A.3d 1239, 1241 (2017) ; Commonwealth v. Taylor , 628 Pa. 547, 104 A.3d 479, 485-86 (2014). As always, when interpreting statutory provisions, we aim to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a). The best indication of the General Assembly's intent may be found in the plain language of the statute. Commonwealth v. Wright , 609 Pa. 22, 14 A.3d 798, 814 (2011). "When 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).

In support of its position, the Commonwealth concedes that sentencing courts have the discretion to sentence an eligible DUI offender to a CIP sentence under the Sentencing Code rather than a sentence of total confinement under the Vehicle Code. Commonwealth's Brief at 17-18. The Commonwealth maintains, however, that even when sentencing under the Sentencing Code, the sentence must comply with section 3804(d) of the Vehicle Code. Id. at 17. According to the Commonwealth, no statutory language in the Sentencing Code supplants the requirements of section 3804(d) and thus, the Superior Court erred in ruling that the Sentencing Code provides a "wholesale bypass" of that provision. Id.

In response, Popielarcheck contends that section 3804(d) applies only when a court imposes a sentence of total confinement under the Vehicle Code. Popielarcheck's Brief at 15-16. She notes that by its terms, section 3804(d) applies only when an offender is sentenced pursuant to Chapter 38 of the Vehicle Code. Id. at 14. Moreover, section 3804(d) cannot have any application to a CIP sentence, as it establishes minimum and maximum periods of incarceration for a DUI offender in need of further treatment. Id. CIP sentences, however, are not minimum-maximum sentences, but rather are for a single definite term. Id. at 15. Popielarcheck insists that the Sentencing Code and the Vehicle Code provide alternative sentencing schemes for DUI offenders, and that sentencing courts should exercise their discretion in selecting an individualized sentence for each defendant. Here, the sentencing court imposed a CIP sentence in recognition of, inter alia, her addiction and the treatment steps that she had made towards a recovery. Id. at 17.

Our analysis begins with a review of the relevant statutes. Section 9721 of the Sentencing Code provides courts with alternative sentencing options.

§ 9721. Sentencing Generally

(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.

(a.1) Exception.—

(1) Unless specifically authorized under section 9763 (relating to a sentence of county intermediate punishment) or 61 Pa.C.S. Ch. 41 (relating to State intermediate punishment), subsection (a) shall not apply where a mandatory minimum sentence is otherwise provided by law.

42 Pa.C.S. § 9721(a) - (a.1).⁴

Two of these alternatives concern us here: CIP sentences pursuant to Chapter 97 of the Sentencing Code and sentences of total confinement pursuant to Chapter 38 of the Vehicle Code. Section 9763(a) of the Sentencing Code provides as follows:

§ 9763. Sentence of county intermediate punishment

(a)

...