The opinion
J-A33002-16
2017 PA Super 59
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RUSSELL ROBIN WATSON
Appellant No. 1875 WDA 2015
Appeal from the Judgment of Sentence November 4, 2015
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000028-2015
BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*
OPINION BY LAZARUS, J.: FILED MARCH 08, 2017
Russell Robin Watson appeals from the judgment of sentence entered
in the Court of Common Pleas of Greene County. After our review, we
vacate and remand with instructions.
On June 11, 2015, Watson entered an open plea of no contest to
Driving Under the Influence (DUI) (Second Offense- [Within] Ten Years),1
Driving on Right Side of Roadway,2 and Disregard Traffic Lane.3 The court
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*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S. § 3802(a)(1), (c).
2
75 Pa.C.S. § 3301(a)(1).
3
75 Pa.C.S. § 3309.
Whenever any roadway has been divided into two or more
clearly marked lanes for traffic the following rules in
(Footnote Continued Next Page)
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ordered a presentencing investigation report (PSI), which was filed on July
7, 2015. The PSI included a DUI Drug and Alcohol Assessment
(Assessment), dated January 13, 2015. The Assessment included a
recommendation for treatment: “If he is found guilty he would be required
to complete the DUI Outpatient Treatment Program at the SPHS
[Southwestern Pennsylvania Human Services] CARE Center. He would also
need to complete the AAHS [Alcohol Highway Safety School], through
Greene County Probation Office.” DUI Drug and Alcohol Assessment,
1/13/15.
Nine months later, on September 1, 2015, President Judge Farley
Toothman held a sentencing hearing. There, the Commonwealth argued
that the mandatory sentence of five years’ imprisonment was appropriate.
See 75 Pa.C.S.A. § 3804(d).4 The court accepted into evidence the PSI,
which included Watson’s statement that he had “completed outpatient
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(Footnote Continued)
addition to all others not inconsistent therewith shall
apply: . . . A vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be
moved from the lane until the driver has first ascertained
that the movement can be made with safety.
75 Pa.C.S.A. § 3804(d).
4
Section 3803(b)(4) of the Vehicle Code provides that an individual who
violates section 3802(c) and has one or more prior offenses commits a
misdemeanor of the first degree. 75 Pa.C.S.A. § 3803(b)(4). A person
convicted of a misdemeanor of the first degree may be sentenced to a term
of imprisonment, the maximum of which is not more than five years.
18 Pa.C.S.A. § 106(b)(6).
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counseling at SPHS CARE, having attended from February 24, 2015 to April
15, 2015.” Presentence Investigation, 7/7/15, at 4. The trial court stated
that it “recognized the record indicated that [Watson] had completed all
provisions and recommendations of his Drug and Alcohol Assessment, prior
to sentencing[.]” Trial Court Opinion, 4/25/16, at 2.5
The court sentenced Watson to five years of County Intermediate
Punishment (CIP) supervision. N.T. Sentencing Hearing, 9/1/15, at 33.
Notably, the court stated:
The Court recognizes that the record indicates you have
complied with all provisions and recommendations of your
drug and alcohol assessment, and yet the Court encourages
the Defendant to seek treatment as is in his best interest. . . .
And further, we find you eligible to serve a sentence of County
Intermediate Punishment, and we direct that you become
familiar with the County Intermediate Punishment rules and
regulations and abide by them. . . . [H]aving found you eligible
to serve a sentence of County Intermediate Punishment
supervision, more specifically defined as the first 180 days on
house arrest with GPS and alcohol monitoring device attached,
with privileges of work release and furlough as reasonably
necessary to care for your family and child’s medical and mental
health matters, and thereafter, being four year[s] and 6 months,
we order you to be supervis[ed] according to the regular rules
and regulations. . . . This is a total sentence then of five years
of County Intermediate Punishment, with 180 days of house
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5
Watson was subject to the Assessment by virtue of his prior conviction,
within ten years, for an offense under section 3802, in particular, section
3802(c) (Highest rate of alcohol) (“An individual may not drive, operate or
be in actual physical control of the movement of a vehicle after imbibing a
sufficient amount of alcohol such that the alcohol concentration in the
individual's blood or breath is 0.16% or higher within two hours after the
individual has driven, operated or been in actual physical control of the
movement of the vehicle.”). 75 Pa.C.S.A. § 3802(c).
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arrest with privileges of furlough as ordered, fine of $1,550 and
225 hours of community service.
Id. at 32-33 (emphasis added).
On September 3, 2015, the court entered an order vacating its
September 1, 2015 sentencing order, noting it had failed to give Watson his
right of allocution. At resentencing on November 4, 2015, the court
confirmed the terms of the September 1, 2015 sentencing order. See N.T.
Resentencing Hearing, 11/4/15, at 15. In between the January 13, 2015
assessment and the resentencing hearing on November 4, 2015, Watson
had completed his Repeat Offenders Program and all other recommended
treatment. No further treatment was recommended.
At the resentencing hearing, the court noted, in particular, that
with regard to the Court being on the record with regard to
having sentenced the Defendant to a maximum term of 60
months, the Court does wish to confirm to the record it is
because this Court is bound by the statute and considers
the January 13, 2015 drug and alcohol assessment to
mandate the Court’s sentence to a maximum term, and
recognizing that in doing so, the Court has given more weight to
the January 13, 2015 assessment than the April 15, 2015
assessment.
Id. at 15-16 (emphasis added).
Watson filed a motion for reconsideration, which the trial court denied.
Watson filed this timely appeal. He argues that, because he completed
counseling and assessment pursuant to 75 Pa.C.S.A. § 3814, and no further
treatment was recommended, the court was not bound by statute to impose
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a mandatory sentence of five years’ CIP6 supervision. Watson claims that
the mandatory five years is applicable only if further treatment is necessary,
and that, otherwise, the court has discretion with respect to the term of CIP
supervision. It was the court’s understanding that it had no discretion to
sentence less than 60 months. See N.T. Sentencing Hearing, 11/4/15, at
19-20.
Watson raises the following issues for our review:
1. Was there a Drug and Alcohol Assessment performed
pursuant to 75 Pa.C.S.A. § 3814(2) indicating [Watson]
was in need of further treatment?
2. Did the lower court err in relying upon a Drug and Alcohol
Assessment which was not performed pursuant to 75
Pa.C.S.A. § 3814 in finding that the [Watson] was in need
of further treatment despite the fact he had done all
treatment mentioned in the only assessment that existed
at the time of sentencing?
3. Was there an abuse of discretion in failing to equitably
apply the statutory requirements of 75 Pa.C.S.A. §§
3804(d) and 3814?
Appellant’s Brief, at 8-9.
This case involves the relationship between the mandatory sentencing
provisions of the DUI statute and the discretionary sentencing provisions of
the Sentencing Code. This presents a question of law. “As with all
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6
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 ).
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questions of law, the appellate standard of review is de novo[.]” In re
Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en banc).
In Commonwealth v. Williams, 941 A.2d 14 (Pa. Super. 2008) (en
banc), this Court addressed the issue of whether, notwithstanding
mandatory DUI penalties, the sentencing court retains the discretion to
impose CIP in qualified programs for qualified offenders. Williams was
convicted of DUI under 75 Pa.C.S. § 3802(a)(1), a second offense, an
ungraded misdemeanor, not involving a BAC refusal, but involving an
accident. The court sentenced Williams to incarceration for a period of thirty
days, followed by five months’ probation. The court directed that “all
periods of incarceration shall be served under qualified restrictive
intermediate punishment on house arrest with electronic monitoring with
drug and alcohol testing monitored by the Mercer County Intermediate
Punishment Program [CIP] if [Williams] qualifies[.]” Williams, 941 A.2d at
20.
On appeal, we were asked to decide whether the sentencing court had
the statutory authority to impose a sentence under the CIP program, “in
light of the mandatory sentencing provisions of the DUI statute, which call
for a fixed term of imprisonment.” Id. at 18. We held the court acted
within its statutory authority and discretion when it imposed CIP for
Williams’ second DUI offense, so long as the program is a qualified
county intermediate punishment program and Williams is a qualified
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“eligible offender.”7 Id. at 26, citing Commonwealth v. Syno, 791 A.2d
363 (Pa. Super. 2002) (emphasis added).
Recently, in Commonwealth v. Popielarcheck, 2016 PA Super. 276,
--- A.3d --- (filed December 6, 2016), this Court held, as a matter of first
impression, that “where a sentencing court sentences a DUI defendant to
County Intermediate Punishment pursuant to 42 Pa.C.S. § 9763, the
sentencing court is not required to impose a mandatory maximum
sentence pursuant to 75 Pa.C.S. § 3804(d).” Id. at *1. There,
Popielarcheck pled guilty to two counts of DUI, (Second Offense – [Within]
Ten Years),8 and related offenses. The court ordered a presentence
investigation and modified bail to require Popielarcheck to report for
inpatient drug and alcohol therapy and to complete all recommended
treatment. The parties did not dispute that Popielarcheck was a qualified
offender and thus she was required to undergo “a full assessment for alcohol
and drug addiction,” pursuant to section 3814.9 The parties also did not
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7
See Commonwealth v. Arest, 734 A.2d 910 (Pa. Super. 1999) (en banc)
(holding sentence of intermediate punishment must be pursuant to approved
county intermediate punishment program). See also 204 Pa.Code § 303.12
(setting forth regulations and statutes that govern operation of and eligibility
for county intermediate punishment programs).
8
The parties did not dispute that this was Popielarcheck’s second DUI in ten
years, that it was graded as a misdemeanor of the first degree, and that she
faced a maximum sentence of five years.
9
Specifically, the full Assessment under section 3814(2) applies under the
following circumstances:
(Footnote Continued Next Page)
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dispute that, following the assessment, it was determined that Popielarcheck
was in need of further treatment, and that she was eligible for a
sentence of CIP.
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(Footnote Continued)
If a defendant is convicted or pleads guilty or no contest to a violation of
section 3802 (relating to driving under influence of alcohol or controlled
substance), the following apply prior to sentencing:
(1) The defendant shall be evaluated under section 3816(a) (relating to
requirements for driving under influence offenders) and any other additional
evaluation techniques deemed appropriate by the court to determine the
extent of the defendant's involvement with alcohol or other drug and to
assist the court in determining what type of sentence would benefit the
defendant and the public.
(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 paragraph (1) 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(2).
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The court sentenced Popielarcheck to a term of two years of CIP, with
120 days to be served on house arrest.10 The district attorney argued,
unsuccessfully, that the court was required to sentence to the statutory
maximum, notwithstanding the court’s discretion to impose a sentence of
CIP. See 42 Pa.C.S. § 9763.11 The Commonwealth challenged the
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10
We note that Popielarcheck was sentenced by President Judge Farley
Toothman, who also sentenced Watson in the instant case.
11
Section 9763 of the Sentencing Code addresses CIP sentencing, in
relevant part, as follows:
§ 9763. Sentence of county intermediate punishment
(a) General rule.— In imposing a sentence of county
intermediate punishment, the court shall specify at the
time of sentencing the length of the term for which the
defendant is to be in a county intermediate punishment
program established under Chapter 98 (relating to county
intermediate punishment) or a combination of county
intermediate punishment programs. The term may not
exceed the maximum term for which the defendant could
be confined and the program to which the defendant is
sentenced. The court may order a defendant to serve a
portion of the sentence under section 9755 (relating to
sentence of partial confinement) or 9756 (relating to
sentence of total confinement) and to serve a portion in a
county intermediate punishment program or a combination
of county intermediate punishment programs.
***
(c) Restriction.—
(1) Any person receiving a penalty imposed pursuant to 75
Pa.C.S. § 1543(b) (relating to driving while operating
privilege is suspended or revoked), former 75 Pa.C.S. §
3731 (relating to driving under influence of alcohol or
(Footnote Continued Next Page)
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sentence in post-sentence motions, claiming the court erred by: (1) not
imposing the statutorily mandated fine; (2) not mandating electronic
monitoring as part of the sentence of house arrest; and (3) not imposing a
maximum term of five years. The Commonwealth also claimed that in light
of the circumstances, a sentence of less than five years of supervision was
an abuse of discretion. Popielarcheck, supra at *1. Thereafter, the court
amended its sentencing order to correct the fine and to include house arrest
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(Footnote Continued)
controlled substance) or 75 Pa.C.S. § 3804 (relating to
penalties) for a first, second or third offense under 75
Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or
utilizing drugs) may only be sentenced to county
intermediate punishment after undergoing an
assessment under 75 Pa.C.S. § 3814 (relating to
drug and alcohol assessments).
(2) If the defendant is determined to be in need of drug
and alcohol treatment, the defendant may only be
sentenced to county intermediate punishment which
includes participation in drug and alcohol treatment under
75 Pa.C.S. § 3815(c) (relating to mandatory sentencing).
The defendant may only be sentenced to county
intermediate punishment in:
(i) a residential inpatient program or a residential
rehabilitative center;
(ii) house arrest with electronic surveillance;
(iii) a partial confinement program such as work
release, work camp and halfway facility; or
(iv) any combination of the programs set forth in this
paragraph.
***
42 Pa.C.S.A. § 9763(a), (c)(1)-(2) (emphasis added).
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with electronic surveillance, adding that “[o]therwise, the sentence is legal
and a proper exercise of judicial discretion.” Id. at *2.
The Commonwealth appealed, and this Court discussed the interplay of
the relevant sentencing statutes, in particular section 3804 of the DUI
statute, 75 Pa.C.S. § 3804, and sections 9721 and 9763 of the Sentencing
Code. 42 Pa.C.S. §§ 9721, 9763. Despite the fact that the assessment
indicated Popielarcheck was in need of further treatment, and noting that
the purpose of the maximum sentence mandate is to ensure that offenders
“complete needed treatment,” Commonwealth v. Taylor, 104 A.3d 479,
492 (Pa. 2014), we clarified that the court sentenced Popielarcheck under
the alternative sentencing provisions under Chapter 97 of the Sentencing
Code, not under the mandatory maximum provision in Chapter 38 of the
Vehicle Code. Popielarcheck, supra at *4. We stated:
Relevant to the instant matter, Section 3814(d) provides that,
“[i]f a person is sentenced pursuant to this chapter and,
after the initial assessment required by Section 3814(1),
the person is determined to be in need of additional
treatment pursuant to Section 3814(2), the judgment
shall impose a minimum sentence as provided by law and
maximum sentence equal to the statutorily available
maximum.” 75 Pa.C.S. § 3804(d). As our Supreme Court has
recognized, the purpose of the maximum sentence mandate is to
ensure that offenders “complete needed treatment.”
Commonwealth v. Taylor, 628 Pa. 547, 104 A.3d 479, 492
(Pa. 2014). At first glance, the statutes permitting CIP
sentences and the statutes mandating minimum DUI sentences
may seem inconsistent. However, as this Court has recognized,
the legislature adopted CIP “to give judges another sentencing
option” specifically one that “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
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accountable to the community; and to help reduce the county
jail overcrowding problem while maintaining public safety.”
[Commonwealth v.] Williams, 941 A.2d [14,] 21 [(Pa. Super.
2008) (en banc)] (quotation omitted).
Popielarcheck, supra at *3 (emphasis added). Relying on Williams,
supra, we explained that sections 9721 and 9763 explicitly permit a
sentencing court to consider intermediate punishment for DUI offenders “for
first, second, or third offenses, in spite of any mandatory minimum sentence
elsewhere prescribed by law.” Id., citing Williams, 941 A.2d at 21
(emphasis added).
Thus, as the Williams Court and, more recently, the Popielarcheck
Court, have recognized, the DUI statute and the Sentencing Code can be
read together to permit a sentencing court to avoid a mandatory minimum
sentence in favor of a sentence of CIP for certain eligible offenders. In other
words, even if found in need of further treatment, the court may sentence
under the Sentencing Code and avoid the mandatory maximum under the
Vehicle Code, Popielarcheck, supra, provided, of course, the defendant is
eligible.12 See note 6, supra. Cf. Commonwealth v. Sarapa, 13 A.3d
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12
In Commonwealth v. Hoffman, 123 A.3d 1065 (Pa. Super. 2015), this
Court stated:
The legislative intent in adopting [CIP] as a sentencing
alternative 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;
maintaining public safety. . . . The grant or denial of a
defendant's request for [CIP] largely within the sound discretion
(Footnote Continued Next Page)
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961 (Pa. Super. 2011) (holding, as a matter of first impression, that court
lacked authority to restrict eligibility to intermediate punishment program by
excluding DUI offenders, who were eligible based on statutory criteria).
Here, the court acknowledged that Watson had completed the
treatment recommended by the Drug and Alcohol Assessment. Although
the court found Watson eligible for CIP,13 and sentenced him pursuant to the
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(Footnote Continued)
of the trial court. The same discretion applies to [CIP] in
the context of a qualified first, second or third DUI
offender, regardless of the mandatory sentence set forth
in the DUI statute, because the specific provisions in 42
Pa.C.S. §§ 9763 and 9804 permit the court to sentence
such offenders to [CIP] after they have undergone
assessment—notwithstanding the mandatory sentencing
provisions of Section 3804 of the DUI statute.
Hoffman, 123 A.3d at 1070 (citations and quotations omitted) (emphasis
added).
13
Section 9804 of the Sentencing Code describes CIP and eligibility in
pertinent part as follows:
§ 9804. County intermediate punishment programs
(a) Description.—County intermediate punishment program
options shall include the following:
(1) Restrictive intermediate punishments providing for the
strict supervision of the offender including programs that:
(i) house the offender full or part time;
(ii) significantly restrict the offender’s movement and
monitor the offender's compliance with the program; or
(iii) involve a combination of programs that meet the
standards set forth under subparagraphs (i) and (ii).
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
(2) When utilized in combination with restrictive
intermediate punishments, restorative sanctions providing
for nonconfinement sentencing options that:
(i) Are the least restrictive in terms of the constraint of the
offender's liberties.
(ii) Do not involve the housing of the offender, either full
or part time.
(iii) Focus on restoring the victim to pre-offense status.
(b) Eligibility.—
(1) No person other than the eligible offender shall be
sentenced to a county intermediate punishment program.
(2) The Pennsylvania Commission on Sentencing shall
employ the term “eligible offender” to further identify
offenders who would be appropriate for participation in
county intermediate punishment programs. In developing
the guidelines, the commission shall give primary
consideration to protection of the public safety.
***
(4)(i) Any person receiving a penalty imposed pursuant to
75 Pa.C.S. § 1543(b) (relating to driving while operating
privilege is suspended or revoked), 3804 (relating to
penalties) or 3808(a)(2) (relating to illegally operating a
motor vehicle not equipped with ignition interlock) shall
undergo an assessment under 75 Pa.C.S. § 3814 (relating
to drug and alcohol assessments).
(ii) If the defendant is determined to be in need of drug
and alcohol treatment, a sentence to county intermediate
punishment shall include participation in drug and alcohol
treatment under 75 Pa.C.S. § 3815(c) (relating to
mandatory sentencing). The defendant may only be
sentenced to county intermediate punishment in:
(A) a residential inpatient program or a residential
rehabilitative center;
(B) house arrest with electronic surveillance;
(Footnote Continued Next Page)
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alternative sentencing provisions in the Sentencing Code, see 42 Pa.C.S. §
9804, the court believed it was bound to impose the CIP sentence for the
mandatory maximum term provided for in the Vehicle Code.
Popielarcheck has clarified this issue. Therefore, because the court was
under the misapprehension that it was bound to impose a five-year
maximum, we vacate the sentence and remand for resentencing in
accordance with this opinion.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
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(Footnote Continued)
(C) a partial confinement program such as work
release, work camp and halfway facility; or
(D) any combination of the programs set forth in this
subparagraph.
***
(5) A defendant subject to 75 Pa.C.S.A. § 3804 (relating to
penalties) may only be sentenced to county intermediate
punishment for a first, second, or third offense.
42 Pa.C.S.A. § 9804(b)(1)-(2), (4)-(5) (emphasis added).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2017
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