J-A29031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :         IN THE SUPERIOR COURT OF
                                          :               PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
GREGORY RICHARD SPENCE,                   :
                                          :
                   Appellant              :            No. 1899 WDA 2014

     Appeal from the Judgment of Sentence entered on November 10, 2014
               in the Court of Common Pleas of Venango County,
                 Criminal Division, No. CP-61-CR-0000166-2011

BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED DECEMBER 14, 2015

        Gregory Richard Spence (“Spence”) appeals from the judgment of

sentence imposed following his conviction of driving under the influence of

alcohol – highest rate of alcohol (“DUI – highest rate”), DUI – general

impairment, and careless driving.1 We affirm.

        The facts underlying Spence’s arrest are not relevant to this appeal.

Following his arrest in October 2010, the Commonwealth charged Spence

with the above-mentioned offenses.     In June 2011, Spence filed a pretrial

Motion, arguing, inter alia, that because he was charged with the “serious

offense” of DUI – highest rate, he should be entitled to a jury trial.




1
    75 Pa.C.S.A. §§ 3802(c), 3802(a)(1), 3714(a).
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The trial court denied Spence’s Motion.2

      In October 2014, the matter proceeded to a non-jury trial, at the close

of which the trial court convicted Spence of all counts.   On November 10,

2014, the trial court imposed a sentence, on the conviction of DUI – highest

rate, of 72 hours to 6 months in county jail.3 Spence’s conviction of DUI –

general impairment merged for sentencing purposes with the conviction of

DUI – highest rate. On the careless driving conviction, the court imposed a

$25 fine.

      Spence filed a timely Notice of Appeal. The trial court ordered Spence

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal, and Spence timely complied. The trial court then issued a Pa.R.A.P.



2
  Following the denial of his pretrial Motion, Spence instituted a habeas
corpus action in federal court, raising a claim similar to the one he presents
in the instant appeal. See Spence v. Venango County Court of Common
Pleas, 2014 U.S. Dist. LEXIS 90480 (W.D. Pa. 2014); see also id. at **4-5
(stating that “Spence seeks an order from this Court declaring that he is
being held in custody in violation of the Sixth and Fourteenth Amendments;
that he is charged at Count One[, i.e., DUI – highest rate,] with a serious
criminal offense to which the right to a jury trial attaches; and, that the
Court of Common Pleas must either grant him a trial by jury on Count One
or release him from custody on that count.”). The federal court dismissed
Spence’s action, determining that (1) it was premature, since Spence had
not yet been convicted of any charges; and (2) Spence did not exhaust his
remedies with respect to his claim in state court. See id. at **8-10, 13.
3
  Importantly, the trial court sentenced Spence pursuant to 75 Pa.C.S.A.
§ 3803 (governing the grading of DUI offenses), which provides, in relevant
part, as follows: “An individual who violates section … 3802(c) [DUI –
highest rate,] and who has no prior offenses[,] commits a misdemeanor for
which the individual may be sentenced to a term of imprisonment of not
more than six months and to pay a fine under section 3804.” Id.
§ 3803(b)(2) (emphasis added).

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1925(a) Opinion, which relied upon the court’s prior Opinion concerning

Spence’s pretrial Motion.

      On appeal, Spence presents the following issue for our review:       “Do

the United States and Pennsylvania Constitutions guarantee a defendant the

right to trial by jury when accused of the ‘serious offense’ of violating 75

Pa.C.S.A. § 3802(c) – driving under the influence of alcohol – highest rate of

alcohol?” Brief for Appellant at 2 (capitalization omitted).

      Because Spence’s issue raises a pure question of law, our standard of

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

Raban, 85 A.3d 467, 468 (Pa. 2014).

      Spence argues that the trial court violated his constitutional rights by

denying his request for a jury trial on the charge of DUI – highest rate, in

spite of “plain, clear and unambiguous” language in the United States and

Pennsylvania Constitutions, providing that, “[i]n all criminal prosecutions[,]”

an accused is entitled to a trial by jury.     See Brief for Appellant at 5-6

(quoting U.S. CONST. AMEND. 6 (providing that “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall have been committed

….”) (emphasis added), and Pa. Const., Art. I § 9 (providing that “[i]n all

criminal prosecutions the accused hath a right to be heard by himself and his

counsel, … and, in prosecutions by indictment or information, a speedy

public trial by an impartial jury       ….”) (emphasis added)).        Spence

acknowledges that there is prior, well-settled case law holding that the right

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to a jury trial applies only when a criminal defendant faces a sentence of

imprisonment greater than six months. Brief for Appellant at 6 (citing, inter

alia, Commonwealth v. Mayberry, 327 A.2d 86, 89 (Pa. 1974) (stating

that the United States and Pennsylvania Constitutions “require[] that one

accused of a ‘serious offense’ be given a jury trial[,]” and “[t]he decisions of

the Supreme Court of the United States have established a fixed dividing line

between petty and serious offenses: those crimes carrying more than six

months sentence are serious and those carrying less are petty crimes.”)

(citations and internal quotation marks omitted)).      According to Spence,

however, all of these prior decisions ignored the plain Constitutional

language (i.e., concerning “in all criminal prosecutions”), and improperly

“invented an artificial distinction between a ‘petty offense’ and a ‘serious

offense.’” Brief for Appellant at 6; see also id. at 11 (asserting that “[t]he

history of the right to trial by jury is complex and not easily decided with

arbitrary bright line rules.”). Spence avers that, nevertheless, DUI – highest

rate is a serious offense, rather than a petty offense, in light of several

criminal and administrative sanctions that accompany a conviction of this

offense.   See Brief for Appellant at 8, see also id. at 9-10 (citing to 75

Pa.C.S.A. § 3802(c)(1), and listing the sanctions, which include, inter alia, a

mandatory minimum sentence of 72 hours in jail, fines, license suspension,

and terms of supervision).

      This Court, in Commonwealth v. Kerry, 906 A.2d 1237 (Pa. Super.

2006), addressed the matter of the right to a jury trial, in the context of a

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charge of DUI – general impairment, clarifying as follows regarding the

classification of a crime as “petty” or “serious”:

      “The test is clear. The decisions of the Supreme Court of the
      United States ‘have established a fixed dividing line between
      petty and serious offenses: those crimes carrying a sentence of
      more than six months are serious crimes and those carrying a
      sentence of six months or less are petty crimes.’” [] Mayberry,
      … 327 A.2d [at] 89 [] (quoting Codispoti v. Pennsylvania, 418
      U.S. 506, 512, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974)). It is
      well-settled that a legislature’s determination that an offense
      carries a maximum prison term of six months or less indicates
      its view that an offense is “petty.” Blanton v. North Las
      Vegas, 489 U.S. 538, 543, 109 S.Ct. 1289, 103 L.Ed.2d 550
      (1989). As further explained in Blanton,

           [i]t has long been settled that there is a category of
           petty crimes or offenses which is not subject to the
           Sixth Amendment jury trial provision. In determining
           whether a particular offense should be categorized as
           petty, our early decisions focused on the nature of the
           offense and on whether it was triable by a jury at
           common law.      In recent years, however, we have
           sought more objective indications of the seriousness
           with which society regards the offense. [W]e have
           found the most relevant such criteria in the severity of
           the maximum authorized penalty.          In fixing the
           maximum penalty for a crime, a legislature include[s]
           within the definition of the crime itself a judgment
           about the seriousness of the offense. The judiciary
           should not substitute its judgment as to seriousness for
           that of a legislature, which is far better equipped to
           perform the task, and [is] likewise more responsive to
           changes in attitude and more amenable to the
           recognition and correction of their misperceptions in
           this respect.

      Id. at 541-542, 109 S. Ct. 1289 (internal quotation marks and
      citations omitted).

            As set forth above, we determine whether an offense is
      serious by looking to the judgment of the legislature, primarily
      as expressed in the maximum authorized term of imprisonment.
      Here, by setting the maximum authorized prison term at six

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      months, the Legislature categorized the violation of [section]
      3802(a)(1) as petty for purposes of a defendant’s jury trial
      rights. … Moreover, applying these principles in Blanton, the
      United States Supreme Court found that first-time DUI
      offenders, where the maximum authorized prison sentence does
      not exceed six months, are not entitled to a jury trial.

Commonwealth v. Kerry, 906 A.2d 1237, 1239-40 (Pa. Super. 2006)

(footnotes and brackets omitted); see also Commonwealth v. Harriott,

919 A.2d 234, 237 (Pa. Super. 2007) (applying Kerry).4

      In the instant case, the trial court determined that Kerry is

controlling, opining as follows:

      [Spence was convicted] under [section] 3802(c) [DUI – highest
      rate] at Court I; however, similar to [section] 3802(a)(1)[,
      addressed in Kerry], the maximum penalty for a violation of this
      provision is set forth at 75 Pa.C.S.A. § 3803(b)(2), which
      provides:

          An individual who violates section 3802(a)(1)[,] where
          the individual refused testing of blood or breath, or who
          violates section 3802(c) or (d) and who has no prior
          offenses[,] commits a misdemeanor for which the
          individual may be sentenced to a term of imprisonment
          of not more than six months[,] and to pay a fine under
          section 3804.

      [Id. (emphasis added by trial court)].

            Thus, having set the maximum term of imprisonment at
      six months, the legislature has clearly made the determination
      that a violation of [section] 3802([c]) falls into the category of
      “petty” offenses, for which no right to a jury trial exists.
      Moreover, the existence of fines and administrative penalties
      beyond the jail term itself does not change our analysis. The

4
  Spence concedes in a footnote that “[he] is aware that [] a change in
decisional law[, i.e., to provide an accused charged with DUI – highest rate
with the right to a jury trial,] will have to come from either the United States
Supreme Court or the Pennsylvania Supreme Court.” Brief for Appellant at 7
n.3.

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      Superior [C]ourt has made clear in Kerry that the six[-]month
      maximum jail term is a bright line beneath which no right to a
      jury trial exists. [Spence] offers not a single Pennsylvania
      authority which suggests a different conclusion, and [Spence’s]
      counsel’s personal conclusions as to the merit of the Superior
      Court’s reasoning are no substitute for binding precedent.

Trial Court Opinion, 8/9/11, at 5 (emphasis added).            The trial court’s

analysis is sound and supported by the law, and we must conclude that it

properly denied Spence’s request for a jury trial.       See Kerry, supra; see

also Blanton, 489 U.S. at 543-45 (holding that first-time DUI offenders,

where the maximum authorized prison sentence does not exceed six

months, are not entitled to a jury trial, and stating that “[v]iewed together,

the statutory penalties are not so severe that DUI must be deemed a

‘serious’ offense for purposes of the Sixth Amendment.”). In light of Kerry,

supra, we are constrained to affirm the trial court. See Commonwealth v.

Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (noting that a panel of this

Court cannot overrule a prior decision of this Court).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2015




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