stating that “the imposition of consecutive, rather than concurrent sentences, may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.”
How later courts described this case
- stating that “the imposition of consecutive, rather than concurrent sentences, may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.”
- stating challenge to imposition of consecutive sentences states a substantial question if consecutive sentences “raise[] the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case.”
- explaining that a sentencing court’s application of an allegedly incorrect Offense Gravity Score challenges the discretionary aspects of sentencing
- finding that a claim that the trial court wrongly applied an offense gravity score was a claim challenging the discretionary aspects of a sentence
Written by the judges who cited it.
The opinion
DISSENTING OPINION BY
BENDER, J.:
I respectfully dissent. The Majority concludes that Thomas Lamonda failed to demonstrate a violation of Equal Protection where Lamonda’s sentence for Homicide by Vehicle (HBV) was enhanced for DUI based on the presence of inert cocaine metabolites in Lamonda’s bloodstream. In support of its conclusion, the Majority determines that “[providing staffer penalties should a driver cause the death of a person while under the influence of a controlled substance, regardless of whether such influence impaired the driver, is certainly rationally related to the goal of discouraging people from driving under the influence.” Majority Op. at 370. In my opinion, the Majority’s rationale begs the question, conflating the cause of the victims’ deaths in this HBV case with the presence of cocaine metabolites in the defendant’s bloodstream. The two are not the same except in the tendentious classification of Pennsylvania’s Motor Vehicle Code, which pillories drivers as “under the influence” when in fact the metabolites in the their bloodstreams have no physiological “influence” whatsoever. Simply stated, *373 a driver whose blood shows the presence of metabolites is, by reason of immutable biological processes, not under the influence of the substance in question. The infirmity of a sentence enhancement assuming that he is under such influence should be clear.
Lamonda’s argument on this point, exemplified in the following excerpt, is cogent and persuasive:
In the instant matter, through a series of stipulated facts, Mr. Lamonda was found guilty on Count 3 of the Information — Driving Under the Influence of Alcohol or Controlled Substance. 75 Pa. C.S.A. § 3802(d)(1)(iii). Specifically, evidence was presented that at the time Mr. Lamonda’s blood was drawn, there was reported to be in his blood a detectible level of Benzoylecgonine, a cocaine metabolite. This level was 300 na-nog./ml. The summary of the report indicates that the examination of Mr. La-monda’s blood “gave no indications that the person was under the influence of defectible psychoactive substances, including alcohol, at the time the sample was obtained.” Toxicology Report of Thomas Lamonda (Attachment 1 to Motion for Modification of Sentence). Nor is there any indication anywhere in the report that Mr. Lamonda was under the influence of defectible psychoactive substances, including alcohol, at the time of the accident.
To link this DUI, which is a strict liability DUI, without any requirement of impairment nor any relation to the automobile accident at all, to the sentence for Homicide by Vehicle Mounts, when these were not Homicide by Vehicle-DUI related (75 Pa.C.S.A. § 3735) charges is violative of Mr. Lamonda’s right to Equal Protection. There is no rational reason for this DUI to impinge in any way on the sentencing of Counts 1 and 2 on this Information. If the Commonwealth had felt that Mr. La-monda was truly impaired by anything during the course of this incident, there is no doubt whatsoever that Mr. Lamon-da would have been charged with Homicide by Vehicle-DUI related.
The DUI in the instant matter was simply a strict liability DUI as Mr. Lamon-da’s blood showed the presence of a cocaine metabolite. The amount of the metabolite was in no way affecting Mr. Lamonda’s ability to safely operate his motor vehicle and in no way contributed to the accident. To increase the Offense Gravity Score based solely on the fact that there was a defectible amount of cocaine metabolite but not an intoxicating amount of cocaine metabolite in Mr. Lamonda’s blood has no rational relation to any legitimate government interest and is therefore a violation of Mr. La-monda’s right to Equal Protection.
Brief for Appellant at 36-37.
Consistent with Lamonda’s argument, the record evidence compiled at trial sustains his assertion that the cocaine metabolite detected in his blood sample was not a cause of the HBV of which he was convicted; the forensic toxicology report which verified the presence of Benzoy-lecgonine characterized it merely as “an inactive transformation product.” See Forensic Toxocology Report, 9/7/07, at 2 (unnumbered) (Attachment 1 to Lamonda’s Post Sentence Motion). In addition, the Commonwealth introduced no evidence whatsoever to establish that an “inactive transformation product” could have any effect on Lamonda’s performance prior to the collision. Accordingly, the evidence does not establish a causal relationship between the presence of the metabolite in Lamonda’s blood and the counts of HBV of which he was convicted.
Given the absence of the foregoing causal link, I can discern no basis for im *374 position of sentence with any DUI enhancement. Contrary to the Majority’s conclusion, adding a DUI enhancement to a sentence for HBV bears no rational relationship to “the goal of discouraging people from driving under the influence^]” Majority Op. at 370, where the DUI offense was based on a legal fiction and the asserted DUI had no causal relationship with the HBV. Consequently, imposition of sentence here based on the Offense Gravity Score for a conviction of HBV-DUI effectively assumes and penalizes conduct by the defendant that was neither alleged nor proven, i.e., that the presence of an inert metabolite played a causal role in the deaths of the victims of the HBV. I find such a sentencing scheme untenable as a clear deprivation of the equal protection of the laws to which every defendant is entitled.
As the evidence established here, Ben-zoylecgonine is an “inactive transformation product” with no demonstrated effect on Lamonda’s performance and no causal relationship with the HBV he committed. Consequently, his offenses should properly have been scored as they were charged, i.e., merely as HBV — without relation to DUI — thereby incurring an Offense Gravity Score of 6 and a correspondingly reduced sentence. See 204 Pa.Code § 303.15. Nevertheless, the trial court did treat Lamonda’s strict liability DUI as a sentencing factor in assessing the penalty for his HBV convictions. The court stated its rationale, in part, as follows:
The presence of 300 nanograms per milliliter of a cocaine metabolite in [Lamon-da’s] system is still truly disturbing to the Court.
In fact there has been no explanation offered whatsoever as to why that was in his system.
N.T., Sentencing, 7/22/09, at 20.
I find the presence of the metabolite in question irrelevant to Lamonda’s commission of HBV; consequently, I find no basis for the trial court’s stated concern and no validity in the sentence it imposed. La-monda was not charged with HBV-DUI related and the Commonwealth introduced no evidence to establish that the presence of the metabolite had any causal relation to the collision. The fact that an inert metabolite is present in a defendant’s blood at the time of his commission of vehicular homicide does not render the offense more serious in the absence of a causal link between the metabolite and the homicide — regardless of whether the metabolite’s presence provides grounds for a separate DUI charge. Consequently, a court should not assume the higher Offense Gravity Score of 8 at sentencing, but should be constrained to address the HBV offense with the standard Offense Gravity Score of 6. The court’s reliance here on the higher Offense Gravity Score was not rationally related to the HBV offense of which Lamonda was convicted because that HBV offense bears no relationship whatsoever to DUI. Accordingly, the court’s action did violate Lamonda’s constitutional right to Equal Protection.
Based on the foregoing, I would vacate Lamonda’s judgment of sentence and remand for re-sentencing. Because the Majority declines this course, I must respectfully dissent.