Commonwealth v. Poncala

CONCURRING OPINION BY

JOYCE, J.:

¶ 1 Although I agree that the judgment of sentence should be affirmed, I would affirm on the basis that the issue raised by Appellant was not preserved in his 1925(b) statement and is waived. Therefore, while I concur in the result, I write separately to distance myself from the Majority’s analysis of the 1925(b) issue and its consideration of the merits of an issue that should be deemed waived.

¶ 2 As the Majority correctly notes, Appellant filed a timely appeal from his judgment of sentence for driving under the influence. In his 1925(b) statement, Appellant identified one issue: Whether the sentencing court has discretion to impose an intermediate punishment sentence on a defendant convicted of driving under the influence for a third time in ten years.

f 3 In its 1925(a) opinion, the trial court did not address the issue raised by Appellant. Instead, the trial court stated that a review of Appellant’s record revealed that *106 his 2004 conviction was not his third DUI conviction in ten years, but rather was his fourth. The trial court reasoned that Appellant was ineligible for intermediate punishment under any circumstances, because Appellant had four DUI violations in ten years and because 42 Pa.C.S.A. § 9804(c) authorizes intermediate punishment as an alternative to imprisonment for up to a maximum of three offenses.

¶4 In his brief on appeal, Appellant raises a new issue: “Whether the instant offense is a third or fourth D.U.I. rendering [Appellant] eligible for [intermediate punishment]?” Appellant’s Brief, at 2. 6 This issue was not preserved in Appellant’s 1925(b) statement. The Majority nevertheless concludes that the issue is not waived on appeal. In doing so, the Majority ignores the mandate of Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), in which our Supreme Court reaffirmed the bright-line rule first enunciated in Commonwealth v. Lord, 553 Pa. 415 , 719 A.2d 306 (1998), that “[a]ny issues not raised in a 1925(b) statement will be deemed waived.” Lord, 553 Pa. at 420 , 719 A.2d at 309 . In Castillo, the Supreme Court also “specifically [voiced its] disapproval of prior decisions of the intermediate courts to the extent that they have created exceptions to Lord and have addressed issues that should have been deemed waived.” Castillo, 585 Pa. at 403 , 888 A.2d at 780 .

¶ 5 Relying on this Court’s recent decision in Commonwealth v. Zheng, 908 A.2d 285 (Pa.Super.2006), the Majority endorses the Zheng panel’s creation of an exception to Lord by addressing an issue that was not raised in Zheng’s 1925(b) statement, an issue that should have been deemed waived under the bright-line rule announced in Lord. 7 The Majority adopts the position taken in Zheng , stating “we will not penalize an appellant for failure to include in the Rule 1925(b) statement an issue that could not be known until clarification is made in the court’s Rule 1925(a) opinion. Justice requires such a result.” Majority Opinion at ¶ 11 (quoting Zheng, supra, at 288 (internal quotations and brackets omitted)). In doing so, the Majority has sanctioned an exception to Lord , disregarding the Supreme Court’s express disapproval of such exceptions as restated in Castillo. For that reason, I cannot join in the Majority Opinion, and instead concur in the result only. 8

. Appellant's Statement of the Question Presented, as phrased in his brief, suggests that Appellant was asking this Court to determine whether Appellant had three or four convictions for driving under the influence. A reading of the brief reveals that he in fact requested that we remand to the trial court for a hearing to determine the number of convictions. Appellant’s Brief, at 6.

. In Zheng , the panel entertained an issue not raised in Zheng’s 1925(b) statement because "the trial judge was vague as to why he found [Zheng] guilty at the time he announced his verdict,” and "if the trial ruling is vague, we cannot find waiver for failure to include an issue in the Rule 1925(b) statement that could not be known until clarification is made in the Rule 1925(a) opinion.” Id. at 286 and 288. It merits mention that the Judges comprising the Majority in the case sub judice were also members of the panel in the Zheng case, with Judge Gantman joining in the opinion authored by Judge Klein, and President Judge Emeritus McEwen concurring in the result.

.I recognize that Appellant had no reason to raise the number of DUI convictions as an issue in his 1925(b) statement. The number of convictions was not in dispute at the hearing. The documents in the record, including the transcripts of the sentencing hearing, indi *107 cate that Appellant’s conviction was his third in ten years. Nevertheless, I believe this Court is constrained by the dictates of Lord and its progeny, as recently reaffirmed in the Castillo case. Because the issue raised in Appellant’s brief was not preserved in his 1925(b) statement, and because it is not one this Court can raise sua sponte, this Court should not address the merits of the issue. See also Commonwealth v. Schofield, 585 Pa. 389, 393 , 888 A.2d 771, 774 (2005) (acknowledging the appeal of the equitable "interest of justice” argument advocated by Judge Klein’s dissent in Schofield (proposing consideration of a pro se 1925(b) statement that was procedurally defective), but reiterating that "a bright-line rule eliminates the potential for the inconsistent results that existed prior to Lord , when trial courts and appellate courts had discretion to address or to waive issues raised in non-compliant Pa.R.A.P.1925(b) statements.”)

I also note that Appellant did not request a remand to file a supplemental 1925(b) statement. See Commonwealth v. Castillo, supra, at 403 n. 6, 888 A.2d at 780 n. 6 (citing Commonwealth v. Moran, 823 A.2d 923 (Pa.Super.2003), in which this Court granted an appellant’s request for a remand to amend a timely 1925(b) statement). Absent a request for a remand and the filing of a supplemental 1925(b) statement, the only issue preserved for appeal was the one included in Appellant’s 1925(b) statement.