J-A07018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JARED PAUL SCHILLINGER

                            Appellant                No. 1498 WDA 2015


          Appeal from the Judgment of Sentence Entered August 6, 2015
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0003354-2014


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JULY 27, 2017

        Appellant Jared Paul Schillinger appeals from August 6, 2015 judgment

of sentence entered in the Court of Common Pleas of Allegheny County

(“trial court”), following his bench convictions for homicide by vehicle while

driving under the influence, homicide by vehicle, involuntary manslaughter,

three counts of driving under the influence (“DUI”), reckless driving, careless

driving, and a violation of driving vehicle at a safe speed.1 Upon review, we

affirm.

        On February 16, 2013, Appellant crashed his vehicle at a high rate of

speed into the back of another vehicle operated by an eighteen-year-old
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  75 Pa.C.S.A. §§ 3735 and 3732, 18 Pa.C.S.A. § 2504(a), 75 Pa.C.S.A.
§§ 3802(c), 3802(a)(1), 3802(a)(1), 3736(a), 3714(a), and 3361.
J-A07018-17



woman, Rikki Fleming, who died from massive blunt force trauma.                After

Appellant completed two field sobriety tests and exhibited clues of

impairment, he was transported to a hospital for a blood draw.               At the

hospital, Appellant was read verbatim a DL-26 form containing the implied

consent warnings.2        Appellant signed the form, consenting to the blood

draw.      On February 12, 2014, Appellant was charged with the above-

referenced crimes.        Appellant eventually proceeded to a non-jury trial,3

following which the trial court found him guilty of the crimes charged. On

August 6, 2015, at sentencing, the trial court observed that Appellant had a

previous DUI charge for which he was accepted into the Accelerated

Rehabilitative     Disposition     (“ARD”)     program,    which   he   successfully

completed.       Thereafter, in the case at bar, Appellant was charged and

convicted of three additional DUI counts. The trial court, however, did not

sentence him on the three DUI counts, as they merged with the offense of

homicide while driving under the influence.               The trial court sentenced

Appellant to four to eight years’ imprisonment for homicide while driving

under the influence.4            Appellant timely filed post-sentence motions,
____________________________________________


2
   The DL–26 form contains warnings of the potential consequences of an
individual’s refusal to consent to a blood test, including that the individual’s
license could be suspended for at least one year, and that, if convicted of
violating 75 Pa.C.S.A. § 3802(a), the individual will face more severe
penalties because of the refusal.
3
    On May 6, 2015, Appellant waived his right to a jury trial.
4
    No additional penalty was imposed for the other convictions.



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J-A07018-17



challenging the discretionary aspects of his sentence.             In particular,

Appellant argued, inter alia, the trial court abused its discretion in

considering, as an aggravating circumstance, his completion of the ARD

program for a prior DUI offense.           On September 1, 2015, the trial court

denied Appellant’s post-sentence motions. Appellant timely appealed to this

Court.     The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.            Appellant complied.    In

response, the trial court issued a Pa.R.A.P. 1925(a) opinion on June 27,

2016.

        On August 16, 2016, while this appeal was pending, Appellant filed in

this Court a “Petition for Remand for Supplemental Filing in light of

Birchfield.”5     Appellant requested that this Court remand his case to the

trial court for purposes of allowing him an opportunity to supplement his

post-sentence motion in light of the United States Supreme Court’s decision

in Birchfield, which was issued on June 23, 2016.          Specifically, Appellant
____________________________________________


5
  Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). As is relevant to
this case, in Birchfield, the police arrested Michael Beylund (“Beylund”) for
DUI, while he was driving in North Dakota. Beylund was read the implied
consent law. According to North Dakota law, if Beylund were to refuse
consent, he would be subjected to enhanced penalties. Beylund ultimately
consented to the blood draw, but he later unsuccessfully challenged the
voluntariness of his consent in the state courts. In Birchfield, the United
States Supreme Court overturned the North Dakota Supreme Court’s
decision, concluding that the state court’s determination rested “on the
erroneous assumption that the State could permissibly compel [] blood . . .
tests” by “impos[ing] criminal penalties on the refusal to submit to such a
test.” Birchfield, 136 S. Ct. at 2185-86.



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sought to challenge for the first time the voluntariness of his consent to the

blood draw. On August 25, 2016, we denied Appellant’s petition for remand

without prejudice.

        On appeal, Appellant raises two issues for our review:

        [I.] In cases pending on direct appeal in state court, must the
        United States Supreme Court’s decision in Birchfield . . . be
        given retroactive effect?

        [II.] Did the trial court abuse its discretion at sentencing` by
        relying on an impermissible factor—[Appellant’s] completion of
        the [ARD] program—which it deemed the sole aggravating
        factor?

Appellant’s Brief at 6 (unnecessary capitalization omitted).

        Appellant first argues that he is entitled to a remand in light of

Birchfield so that he may challenge the voluntariness of his consent to the

blood draw.       Appellant argues that the implied consent warnings, as

contained on form DL-26, would have subjected him to enhanced criminal

penalties, had he not consented to the blood draw.6

        At the outset, we must determine whether Appellant has preserved his

first issue for our review. It is axiomatic that an issue may not be raised for

the first time on appeal.       See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

Our review of the record here indicates that Appellant failed to challenge the

voluntariness of his consent to the blood draw at any stage of the lower

____________________________________________


6
    The Commonwealth does not object to Appellant’s Birchfield argument.



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court proceedings. As a result, he did not preserve this issue for our review.

Additionally, Appellant did not raise this issue in his Rule 1925(b) statement.

Similarly, the trial court did not address this issue before, during, or after

trial, and specifically in its Rule 1925(a) opinion. As noted earlier, Appellant

challenges the voluntariness of his consent for the first time on appeal in his

August 16, 2016 remand petition.

      Moreover, as noted, the United States Supreme Court decided

Birchfield after the sentencing of Appellant in this case, but during the

pendency of this appeal.      The decision in Birchfield announced a new

criminal rule.   When a United States Supreme Court decision “results in a

‘new rule,’ that rule applies to all criminal cases still pending on direct

review.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citing Griffith

v. Kentucky, 479 U.S. 314, 328 (1987)). “Case law is clear, however, that

in order for a new rule of law to apply retroactively to a case pending on

direct appeal, the issue had to be preserved at ‘all stages of adjudication up

to and including the direct appeal.’”   Commonwealth v. Tilley, 780 A.2d

649, 652 (Pa. 2001) (citation omitted); see also Commonwealth v.

Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (“To be entitled to

retroactive application of a new constitutional rule, a defendant must have

raised and preserved the issue in the court below.”), appeal denied, 121

A.3d 496 (Pa. 2015). “[A]n exception to the issue-preservation requirement




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J-A07018-17



exists where the challenge is one implicating the legality of the appellant’s

sentence.”7     Commonwealth v. Barnes, 151 A.3d 121, 124 (Pa. 2016)

(citation omitted).     Thus, consistent with Tilley and Newman, Appellant

may not rely on Birchfield to challenge his consent to the blood draw

because Appellant failed to raise and preserve in the court below the issue of

voluntariness of his consent. Accordingly, Appellant’s first issue is waived.

       Appellant next argues that the trial court abused its discretion in

considering, as an aggravating factor, his completion of the ARD program for

a previous DUI offense.8

       Because Appellant’s issue implicates only the discretionary aspects of

his sentence, we note that it is well-settled that “[t]he right to appeal a


____________________________________________


7
  If Appellant’s Birchfield claim here had implicated the legality of his
sentence, we may have been able to review it sua sponte.                 See
Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014) (noting
that it is well-settled that legality of sentence questions may be raised sua
sponte by this Court.), aff’d, 140 A.3d 651 (Pa. 2016).
8
  When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. An abuse of discretion is
       more than just an error in judgment and, on appeal, the trial
       court will not be found to have abused its discretion unless the
       record discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias, or ill-
       will.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.
2002)), appeal denied, 64 A.3d 630 (Pa. 2013).



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J-A07018-17



discretionary aspect of sentence is not absolute.”       Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011).              Rather, where an

appellant challenges the discretionary aspects of a sentence, the appeal

should   be   considered    as   a   petition   for   allowance   of    appeal.

Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we

stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:
         [W]e conduct a four-part analysis to determine: (1)
         whether appellant has filed a timely notice of appeal, see
         Pa.R.A.P. 902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see Pa.R.Crim.P. [720]; (3) whether
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
         (4) whether there is a substantial question that the
         sentence appealed from is not appropriate under the
         Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis.   See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

     Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.




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J-A07018-17



2119(f) statement in his brief.9           We, therefore, must determine only if

Appellant’s sentencing issues raise a substantial question.

       The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.             Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007).           We have found that a substantial question

exists “when the appellant advances a colorable argument that the

sentencing judge’s actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.” Commonwealth v. Phillips, 946

A.2d 103, 112 (Pa. Super. 2008) (citation omitted), appeal denied, 964

A.2d 895 (Pa. 2009). “[W]e cannot look beyond the statement of questions

presented and the prefatory [Rule] 2119(f) statement to determine whether

a substantial question exists.” Commonwealth v. Christine, 78 A.3d 1, 10

(Pa. Super. 2013), aff’d, 125 A.3d 394 (Pa. 2015).

       This Court does not accept bald assertions of sentencing errors. See

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).

When we examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists, “[o]ur inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying
____________________________________________


9
  Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).



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J-A07018-17



the appeal, which are necessary only to decide the appeal on the merits.”

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).

A Rule 2119(f) statement is inadequate when it “contains incantations of

statutory        provisions    and    pronouncements       of   conclusions     of   law[.]”

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation

omitted).

        Here, Appellant asserts in his Rule 2119(f) statement that the trial

court      “relied    on      an    impermissible     factor    when    it   imposed     an

aggravated[-]range            sentence,   namely      [Appellant’s]    participation    and

completion of the ARD program.” Appellant’s Brief at 34.               Based on his Rule

2119(f) statement, we conclude that Appellant has raised a substantial

question with respect to his sentencing claim. Indeed, an allegation that the

sentencing court relied upon impermissible factors raises a substantial

question. Commonwealth v. P.L.S., 894 A.2d 120, 127 (Pa. Super. 2006);

see Commonwealth v. McNabb, 819 A.2d 54, 56–57 (Pa. Super. 2003)

(finding     a    substantial      question   where   defendant    “alleg[ed]    that   the

sentencing court did not sufficiently state its reasons for the sentence” and

relied on “impermissible factors.”).                Accordingly, we grant Appellant’s

petition for allowance of appeal and address the merits of his second issue.

        As stated, Appellant argues that the trial court abused its discretion in

considering, as an aggravating factor, his completion of the ARD program in

connection with a previous DUI offense. Specifically, without citing any legal

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J-A07018-17



authority, Appellant argues that the trial court’s consideration of the ARD

program was impermissible. Based on our reasons below, we disagree.

      The law provides that a trial court is vested with broad discretion in

imposing a sentence, and, as noted earlier, the court’s judgment of sentence

will not be disturbed on appeal absent a manifest abuse of that discretion.

Commonwealth v. Perry, 32 A.3d 232 (Pa. 2011); Commonwealth v.

Dutter, 617 A.2d 330, 331 (Pa. Super. 1992) (citations omitted); see

Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa. Super. 2007) (“The trial

court is afforded broad discretion in sentencing criminal defendants ‘because

of the perception that the trial court is in the best position to determine the

proper penalty for a particular offense based upon an evaluation of the

individual circumstances before it.’”).   This standard of review recognizes

that the sentencing court is in the best position to weigh the various factors

involved in sentencing determinations, such as the defendant’s character,

displays of remorse or indifference, and the nature and effect of the crimes.

Commonwealth v. Canfield, 639 A.2d 46, 50 (Pa. Super. 1994).

      A trial court must follow the general principle that the sentence

imposed is consistent with the need to protect the public, the gravity of the

offenses as they relate to the impact on the life of the victims and on the

community, and the rehabilitative needs of the defendant.         42 Pa.C.S.A

§ 9721(b); see Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007).

Although a trial court is obligated to consider the ranges prescribed by the

guidelines of the Pennsylvania Commission on Sentencing, the court may

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J-A07018-17



depart from the sentencing guidelines.      Id.   If there are mitigating or

aggravating circumstances present, the trial court may select a sentence in

the mitigated or aggravated range, 204 Pa. Code § 303.13, 42 Pa.C.S.A.

§ 9721, but the trial court is not required to sentence in the mitigated or

aggravated range, even when presented with mitigating or aggravating

circumstances. Commonwealth v. Wright, 600 A.2d 1289, 1291–92 (Pa.

Super. 1991).

     It is well-settled that a trial court generally may consider, as an

aggravating circumstance, a defendant’s completion of the ARD program. In

Commonwealth v. Knepp, 453 A.2d 1016, (Pa. Super. 1982), we held that

a trial court could consider a defendant’s completion of the ARD program in

fashioning its sentence, so long as the trial court accords the defendant “a

presumption of innocence” and does not view the completion of the ARD “as

evidence of criminal conduct.”    Knepp, 453 A.2d at 1019.         The court

concluded:

     It is clear, in the instant case, that the sentencing judge did not
     improperly consider the ARD information because he states in
     his opinion. “In our opinion a judge would be remiss to be blind
     to past activities involving abuse of a firearm, even though
     criminality did not ultimately attach.” (emphasis added). In
     addition, the sentence imposed is within sentencing guidelines
     and cannot be termed excessive or too severe. Therefore, we
     find that the sentencing judge did not ignore the presumption of
     innocence nor regard the ARD information as evidence of
     criminal conduct. It is also of note that the charges, both in the
     instant case and those brought against the defendant before,
     involve a crime of violence. The sentencing judge makes it very
     clear that that was his major consideration in the imposition of
     sentence.




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J-A07018-17



Id. (emphasis in original). In addition to case law, the sentencing guidelines

also mandate consideration of unprosecuted criminal conduct when a prior

record score inadequately reflects a defendant’s criminal background.      In

204 Pa. Code § 303(5)(d), relating to adequacy of the prior record score, the

sentencing guidelines provide that the court “may consider at sentencing

prior convictions, juvenile adjudications or dispositions not counted in the

calculation of the Prior Record Score, in addition to other factors deemed

appropriate by the court.”    P.L.S., 894 A.2d at 131 (citing 204 Pa. Code

§ 303.5(d)).

      Moreover, and specifically relating to DUI offenses, Section 3806 of the

Vehicle Code, 75 Pa.C.S.A. § 3806, relating to prior offenses, provides in

part that:

      (a) General rule.--Except as set forth in subsection (b), the
      term “prior offense” as used in this chapter shall mean any
      conviction for which judgment of sentence has been imposed,
      adjudication   of   delinquency, juvenile   consent   decree,
      acceptance of [ARD] or other form of preliminary disposition
      before the sentencing on the present violation for any of the
      following:

             (1) an offense under section 3802 (relating to
             driving under influence of alcohol or controlled
             substance);

             (2) an offense under former section 3731;

             (3) an offense substantially similar to an offense
             under paragraph (1) or (2) in another jurisdiction; or

             (4) any combination of the offenses set forth in
             paragraph (1), (2) or (3).

      (b) Timing.--
             (1) For purposes of sections 1553(d.2) (relating to
             occupational limited license), 1556 (relating to
             ignition interlock limited license), 3803 (relating to

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J-A07018-17


            grading), 3804 (relating to penalties) and 3805
            (relating to ignition interlock), the prior offense must
            have occurred:

            (i) within 10 years prior to the date of the offense for
            which the defendant is being sentenced; or

            (ii) on or after the date of the offense for which the
            defendant is being sentenced.

            (2) The court shall calculate the number of prior
            offenses, if any, at the time of sentencing.

            (3) If the defendant is sentenced for two or more
            offenses in the same day, the offenses shall be
            considered prior offenses within the meaning of this
            subsection.

75 Pa.C.S.A. § 3806 (emphasis added).          Thus, under Section 3806(a),

“acceptance of ARD, or other forms of preliminary dispositions, constitutes

the equivalent of a conviction for sentencing purposes.” Commonwealth v.

Love, 957 A.2d 765, 768 (Pa. Super. 2008) (citing the former Section 3806

of the Vehicle Code) (emphasis added).

      Here, consistent with case law and the sentencing guidelines, the trial

court was permitted to consider Appellant’s completion of the ARD program

for a prior DUI offense in crafting his sentence. In addition, the trial court

also could have regarded his acceptance into the ARD program as a

conviction under Section 3806. Thus, based on the foregoing, we conclude

that the trial court did not abuse its discretion in considering, as an

aggravating factor, Appellant’s completion of the ARD program for a

previous DUI offense. At sentencing, the trial court remarked:

            I have carefully listened to the evidence that was
      presented at trial and found [Appellant] guilty on all counts. I
      have also carefully listened to the evidence, the arguments, the
      pleas that were made here today. I thoroughly reviewed the


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J-A07018-17


      presentence report that was compiled in this matter when
      considering the sentence.

              Mr. Schillinger, there’s no doubt that you did not intend to
      take the life of Miss Rikki Fleming. However, life is full of
      unintended consequences. You chose to drink then drive your
      car knowing that it was illegal to do so. Your blood alcohol was a
      .231, nearly three times the legal limit. The consequence of
      your drinking and driving has caused the collision that took the
      life of the young lady, Miss Rikki Fleming.

            You have had a previous warning about the dangers of
      drinking and driving with your prior driving under the influence
      and your successful completion of the [ARD] program. I was
      struck that you only completed that probation slightly over a
      year prior to that fateful night of February 16, 2013. I find that
      to be an aggravating factor. Prior to your incarceration back in
      May, you were a productive member of society. Having been
      consistently employed and by reading all of the sincere letters on
      your behalf, a very valuable employee to each of the companies
      that you worked for. You are a good son and brother and a
      friend to many. However, even individuals of good character
      have lapses in judgment. It is unfortunate that you had such. It
      is unfortunate that yours caused such a severe consequence.

            In each of your letters, your friends and family speak of
      your remorse. I see that you have expressed sorrow to the
      Fleming family.   Nevertheless, they have lost forever their
      beloved Rikki.

            You’re still a young man. You say that you’ve lived and
      learned and that you are going to continue to make life good not
      only for yourself but others.      You say continue, see you
      completed the Hope program at the Allegheny County Jail and
      you have been a faithful attendee of Alcoholic’s Anonymous.
      Hopefully, you will do that.


N.T. Sentencing, 8/6/15, at 64-66. As stated, Appellant previously had been

charged with DUI, and accepted into the ARD program, which he

successfully completed.    However, about a year later, he engaged in the

same crime again.      The consequences this time were more severe—an

eighteen-year-old girl, Rikki Fleming, lost her life because of Appellant’s

actions.   Although the trial court emphasized the tragic nature of the

incident, it also provided adequate rationale for the aggravated-range


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J-A07018-17



sentence.     Here, the trial court had the benefit of observing Appellant,

hearing argument regarding all of the relevant circumstances, and reviewing

his presentence investigation report.10 The trial court stated its reasons for

its determination that a sentence in the aggravated range best serves the

interests of the community and the rehabilitative needs of Appellant.

Because the record does not reveal any abuse of discretion, we have no

cause to disturb the trial court’s determination.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2017




____________________________________________


10
  “Where the sentencing [judge] had the benefit of a [PSI], we can assume
the sentencing [judge] was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.”      Moury, 992 A.2d at 171; see also
Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2005) (“Since
the sentencing court had and considered a [PSI], this fact alone was
adequate to support the sentence, and due to the court’s explicit reliance on
that report, we are required to presume that the court properly weighed the
mitigating factors present in the case.”).



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