J-A21044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSH ALLEN TOEPEL                          :
                                               :
                       Appellant               :   No. 3831 EDA 2016

            Appeal from the Judgment of Sentence October 20, 2016
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0003288-2015


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.                               Filed: January 2, 2019

        Josh Allen Toepel appeals from the judgment of sentence entered

following his convictions for possession of drug paraphernalia and driving

under the influence (“DUI”).1 Toepel argues that (1) his DUI sentence cannot

stand because the court imposed an increased penalty based on Toepel’s

refusal of blood testing, and (2) his sentence for possession of drug

paraphernalia is excessive. We affirm.

        The Pennsylvania State Police arrested Toepel on DUI charges on

December 13, 2014, and recovered items of drug paraphernalia from his

jacket during the arrest. The police transported Toepel to a hospital and read

him the O’Connell warnings,2 advising him that a refusal to submit his blood
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1   See 35 P.S. § 780-113(a)(32) and 75 Pa.C.S.A. § 3802(a)(1), respectively.

2See Commonwealth, Dep’t of Transp. v. O'Connell, 555 A.2d 873 (Pa.
1989).
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to chemical testing could result in increased criminal penalties. Toepel refused

to submit to blood testing. The items recovered from Toepel’s jacket (including

a straw, a rolled up one dollar bill, and a clear baggie, each with white residue

inside) tested positive for the presence of methamphetamine.

      The Commonwealth charged Toepel with the above-listed offenses. In

connection with his DUI charge, the bills of information specified that it was

Toepel’s second violation of the DUI statute and that the Commonwealth

sought mandatory sentencing under 75 Pa.C.S.A. § 3804(c) for Toepel’s

refusal to submit to blood testing. Following a two-day trial in April 2016, a

jury convicted Toepel of both DUI and possession of drug paraphernalia. The

jury also affirmatively found that Toepel refused blood testing.

      While Toepel awaited sentencing, the United States Supreme Court

decided Birchfield v. North Dakota, 136 S. Ct. 2160 (June 23, 2016),

wherein the Court held that criminal penalties could not be imposed for

refusing to submit to a warrantless blood test. Id. at 2186. The next month,

at his sentencing hearing, Toepel made an oral motion challenging the

imposition of an increased penalty to his case, in light of the Birchfield

decision. The court continued the hearing, but ultimately denied Toepel’s

motion, and imposed sentence on October 20, 2016. Toepel filed a timely

post-sentence motion and appeal, and the court stayed Toepel’s sentence

pending the appeal.




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       Toepel raises the following issues:

       I.     The trial court erred by increasing the grading, mandatory
              minimum, and statutory maximum sentence on the charge
              of driving under the influence, solely based on a refusal to
              submit to chemical testing in light of the Supreme Court’s
              holding in Birchfield v. North Dakota, 136 S.Ct. 2160
              (2016).

       II.    The trial court erred by finding [Toepel] “waived” his right
              to assert the unconstitutionality of the increased criminal
              penalties based solely on a refusal, by not asserting the
              unconstitutionality of the increased criminal penalties prior
              to the announcement of the holding in Birchfield on June
              23, 2016, but prior to the imposition of the judgment of
              sentence.

       III.   The sentence on[]possession of drug paraphernalia was
              clearly excessive and manifestly unreasonable.

Toepel’s Br. at i-ii.

                             I. Toepel’s DUI Sentence

       In his first two issues, Toepel argues that the court violated the holding

in Birchfield when it imposed a greater penalty due to Toepel’s refusal of

blood testing. Toepel’s argument goes to the legality of his sentence, and thus

our scope of review is plenary and our standard is de novo. Commonwealth

v. Ramos, ---A.3d----, 2018 PA Super 274 (Oct. 10, 2018).

       At the time of Toepel’s sentencing, the Motor Vehicle Code provided that

an offender faced greater penalties at sentencing if he or she had refused

blood testing in connection with a conviction under section 3802(a)(1). 3 As it
____________________________________________


3This section states that “[a]n individual may not drive, operate or be in actual
physical control of the movement of a vehicle after imbibing a sufficient



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relates to the case at hand, the Code provided that a violation of section

3802(a)(1) by a person who had one or more prior DUI offenses and who

refused blood testing was to be classified as a first-degree misdemeanor. See

§ 3803(b)(4) (2014).4 This exposed an offender to a maximum sentence of

five years’ incarceration. See 18 Pa.C.S.A. § 106(b)(6), (e). Moreover, a

second violation of section 3802(a)(1), with refusal, subjected the offender to

a mandatory minimum sentence of 90 days’ imprisonment. See 18 Pa.C.S.A.

§ 3804(c)(2)(i) (2012).5 In contrast, the Code provided and still provides that

when a person is convicted for violating section 3802(a)(1) of the Motor

Vehicle Code for the second time, the offense is classified as an ungraded

misdemeanor, and the offender is subject to a mandatory minimum of five

days’ imprisonment, with a maximum exposure of six months’ imprisonment.

See 75 Pa.C.S.A. §§ 3803(a)(1), 3804(a)(2)(i).

       Prior to Toepel’s sentencing, Birchfield announced that enhanced

penalties for refusal were unconstitutional. This Court has accordingly held

that “a defendant who refuses to provide a blood sample when requested by

police is not subject to the enhanced penalties provided in 75 Pa.C.S.A. §§
____________________________________________


amount of alcohol such that the individual is rendered incapable of safely
driving, operating or being in actual physical control of the movement of the
vehicle.” 75 Pa.C.S.A. § 3802(a)(1).

4 Post-Birchfield amendments to this section removing the enhanced
penalties for refusing blood testing go into effect on or about December 23,
2018.

5 Post-Birchfield amendments to this section removing enhanced penalties
for blood testing refusal went into effect in 2017.

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3803–3804.” Commonwealth v. Giron, 155 A.3d 635, 636–37 (Pa.Super.

2017). Toepel thus argues that the court erred in applying the enhanced

penalties. The trial court found that Toepel had waived the issue by failing to

raise it prior to or during trial, and concluded any application of Birchfield to

Toepel’s sentence would be impermissibly retroactive. See Trial Court

Opinion, filed October 19, 2017, at 10-11, 14-21.

      A challenge to the application of increased penalties attacks the legality

of the sentence, and is therefore non-waivable. The defendant may raise it for

the first time on direct review, and even an appellate court may bring it up

sua sponte. See Giron, 155 A.3d at 638 (raising impact of Birchfield on

defendant’s sentence sua sponte, where Birchfield was decided after

sentencing but before conclusion of direct review); see also Commonwealth

v. Kehr, 180 A.3d 754, 759 n.2 (Pa.Super. 2018) (stating that Birchfield

raises question regarding legality of sentence in cases where the defendant

received an increased punishment due to refusal); Commonwealth v.

Monarch, 165 A.3d 945, 952 n.3 (finding Birchfield’s application to

defendant’s sentence not waived by defendant’s failure to lodge timely

objection) (Pa.Super. 2017), appeal granted in part, 179 A.3d 3 (Pa. 2018).

      The Commonwealth, however, argues that Birchfield has no bearing

on Toepel’s case because the trial court did not actually apply a mandatory

minimum 90 days’ incarceration, it graded the offense as an ungraded

misdemeanor, and it did not exceed the six-month maximum sentence for an

ungraded misdemeanor. See Commonwealth’s Br. at 13-16. As Toepel

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acknowledges in his reply brief, there are discrepancies between the

sentencing disposition sheet issued by the court and the sentence pronounced

in open court.

       At sentencing, the trial court stated on the record that Toepel’s offense

was a misdemeanor of the first degree. It then sentenced him, according to

the transcript of the sentencing proceeding, to a total of 90 days to five years’

incarceration, with the first 45 days to be served in prison, with work release

eligibility; the second 45 days were to be served on house arrest, also with

work release eligibility. See N.T., 10/20/16, at 27. Id.

       However, the written sentencing order tells a different story. According

to the written order, for his DUI conviction, the court treated Toepel’s DUI

conviction as an ungraded misdemeanor, and sentenced him for that

conviction to 45 days of imprisonment6 followed by 90 days of county

intermediate punishment, the first 45 days of which are to be served under

house arrest in a Restrictive Intermediate Punishment Program. See

Sentencing Order, 10/20/16, at 2.

       Thus, according to the transcript, the court imposed the enhanced

penalty; according to the written sentencing order, it did not.

       Although the trial court’s Rule 1925(a) opinion is not determinative of

which sentence it imposed, we note that in the opinion the trial court

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6 See 42 Pa.C.S.A. § 9756(c.1) (authorizing court to impose a flat term of
imprisonment without parole for up to 90 days when the period of confinement
is followed immediately by a period of county intermediate punishment).

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repeatedly states that it did not increase Toepel’s sentence based on his

refusal of blood testing. See Trial Ct. Op. at 17, 19, 22-24. And, although the

trial court opinion gives inconsistent versions of Toepel’s sentence, none of

the versions included a 90-day minimum term of incarceration. Compare Trial

Ct. Op. at 1, 19, 23 (stating that the court sentenced Toepel to 90 days of

intermediate punishment, including an initial 45 days of incarceration and a

latter 45 days of house arrest), with id. at 17 (stating that court sentenced

Toepel to 45 days of imprisonment followed by 45 days of house arrest), and

id. at 10 (stating that court sentenced Toepel to 45 days of imprisonment and

90 days of intermediate punishment, including an initial 45 days of

imprisonment). The court states that if we were to remand this matter with

instructions not to apply the pre-Birchfield enhancement, it would impose

the “same” sentence, as it is within statutory limits. Id. at 22-23.

      When the court’s on-the-record statements about the sentence imposed

conflict with the court’s written sentencing order, the written order controls.

Commonwealth v. Borrin, 80 A.3d 1219, 1226 (Pa. 2013). Toepel’s

sentence set forth in the written sentencing order did not apply the invalid

portions of sections 3803 or 3804 based on his refusal of blood testing.

Toepel’s argument that his sentence is illegal under Birchfield is therefore

meritless.

                   II. Toepel’s Paraphernalia Sentence

      In his third issue, Toepel argues that we should vacate his sentence for

possession of drug paraphernalia because the trial court misapplied the

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Sentencing Guidelines. See Toepel’s Br. at 10-11. Toepel claims that while

the court purported to sentence him within the standard Guidelines range, his

sentence actually fell outside the Guidelines, and the court gave no “proper”

justification for sentencing him outside the Guidelines. Id. at 11. He also

asserts that his sentence was unduly harsh and excessive. Id. Toepel

contends that the only aggravating factor mentioned by the court in imposing

sentence was his driving record, which was unrelated to his drug

paraphernalia conviction. Id. at 28.

       The right to appeal the discretionary aspects of a sentence is not

absolute. Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004).

Before we review the merits of Toepel’s claim, we must determine whether

(1) the appeal is timely, (2) “the issue was properly preserved at sentencing

or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720,” (3)

Toepel has included in his brief a concise statement of the reasons relied upon

for allowance of appeal, and (4) “there is a substantial question that the

sentence appealed from is not appropriate under the Sentencing Code[.]”

Commonwealth v. Heaster, 171 A.3d 268, 271-72 (Pa.Super. 2017), appeal

denied, 181 A.3d 1078 (Pa. 2018).

       Toepel’s appeal is timely; he has preserved his issue in a post-sentence

motion;7 and he has included a Rule 2119(f) statement. A claim that the trial

____________________________________________


7 The only portion of his argument that he failed to preserve is his claim that
the aggravated-range sentence resulted from the court’s misunderstanding



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court failed to state its reasoning for imposing a sentence outside the

Guidelines    presents a substantial           question.   See Commonwealth v.

Antidormi, 84 A.3d 736, 759 (Pa.Super. 2014). Likewise, “[a] claim that the

sentencing court misapplied the [G]uidelines presents a substantial question.”

Commonwealth v. Archer, 722 A.2d 203, 211 (Pa.Super. 1998). We

therefore review the merits of Toepel’s claim.

       The parties agree that the standard range of the Guidelines called for a

minimum sentence falling between restorative sanctions and two months’

confinement. The court imposed a sentence of 90 days to one year of

confinement, and made Toepel eligible for house arrest after the first 45 days.

A sentence of confinement with immediate parole to house arrest, as opposed

to a sentence of house arrest imposed as a form of intermediate punishment,

is considered a sentence of confinement for purposes of the Sentencing

Guidelines. See Commonwealth v. McIntosh, 911 A.2d 513, 520 & n.10

(Pa.Super. 2006), rev'd in part on other grounds, 922 A.2d 873 (Pa. 2007).

Therefore, even though the court made Toepel eligible for parole to house

arrest after 45 days, Toepel’s minimum sentence for guidelines purposes is 90

days’ confinement, which exceeds the upper end of standard range. However,

Toepel is incorrect in his repeated assertions that the sentence falls outside of

the Sentencing Guidelines. The aggravated range of the Sentencing Guidelines
____________________________________________


that the Guidelines range extends to two years, rather than two months. See
Trial Ct. Op. at 25 n.16, 26 (stating that the standard guidelines range was
restorative sanctions to two years).


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extends to five months’ minimum confinement, and Toepel’s sentence falls

within that aggravated Guidelines range. See 204 Pa.Code. § 303.16(a).

      As with an above-the-Guidelines sentence, a court must state its

reasons for imposing an aggravated sentence, and a claim that it failed to do

so   raises   a   substantial   question   See   204   Pa.   Code   §   303.13(c);

Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa.Super. 2006). However,

the decision to sentence within the aggravated range “will not be disturbed

absent a manifest abuse of discretion.” Commonwealth v. Hoover, 492 A.2d

443, 444 (Pa.Super. 1985).

      The court explained its sentencing decision as follows at sentencing:

            It is always frustrating to the Court when people come in
      asking the Court to think about their children and their family at
      the time of sentencing when you, sir, quite frankly should have
      been thinking of them at the time you committed this crime. You
      risked hurting yourself and hurting someone else and perhaps
      being away from your family for a very long time by your actions.

            This is not an action that is a one-time mistake but one that
      dates back to 1996 that quite frankly you should have learned
      from by now.

            While there is no negative inference to your wife or her
      employment, []it is incredibly frustrating that you would try to use
      your wife’s good work at the time you got arrested for this, to try
      to get out of trouble with the police [when] you said repeatedly,
      [“]Do you know who my wife is[?] Do you know who my wife is[?”]

            It doesn’t matter who your wife is. You shouldn’t be driving
      under the influence of anything; and to use methamphetamine
      while you have a child at home, to drive under the influence while
      you have a child at home, it is great that she is a daddy’s girl, but
      daddy might not be there anymore for her when you kill someone
      else or kill yourself as a result of this.




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             You not only have three prior DUI’s, which should educate
      you on why this is a bad choice, but you have twenty-eight traffic
      violations dating back to 1996. The court considers that an
      aggravating factor in this case.

N.T., 10/20/16, at 25-27 (emphasis added).

      We find no abuse of discretion in the trial court’s sentence, or its reasons

for the sentence it imposed. Toepel’s drug use is intertwined with his driving

history and his DUI violations. Moreover, the court did not state that it was

sentencing Toepel in the standard range; rather, the court explicitly found an

aggravating factor in the case. As Toepel’s sentence falls within the

aggravated range and the trial court stated sufficient reasons to justify the

aggravated sentence, we affirm.

      Judgement of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/2/2019




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