J-S25023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN DOUGLAS RICHAEL                      :
                                               :
                       Appellant               :   No. 1466 WDA 2017

          Appeal from the Judgment of Sentence September 8, 2017
               In the Court of Common Pleas of Mercer County
            Criminal Division at No(s): CP-43-CR-0002013-2016


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                              FILED AUGUST 31, 2018

       Kevin Douglas Richael appeals from the judgment of sentence entered

in the Mercer County Court of Common Pleas following his guilty plea. Richael

asserts the trial court incorrectly sentenced him as a second time DUI offender

based upon a faulty interpretation of the “look-back” provision in 75 Pa.C.S.A.

§ 3806(b). We affirm.

       On March 10, 2017, Richael was charged with two counts of driving

under the influence (DUI) and related summary offenses. These charges arose

from a single-vehicle accident on September 1, 2016. On April 10, 2017,

Richael pleaded guilty to DUI–highest rate of alcohol, as a second-time

offense.1 The Commonwealth nolle prossed all remaining charges.

____________________________________________


1 Following a guilty plea, an appellant waives his right to “challenge on appeal
all non-waivable jurisdictional defects except the legality of his sentence and
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       Richael appeared for sentencing on September 8, 2017. Prior to the

imposition of sentence, Richael argued that his prior DUI offense, which

occurred on December 4, 2006, and for which he was admitted to an

accelerated rehabilitative disposition (ARD) on February 8, 2007, did not fall

within the ten year look-back period set forth in § 3806(b) of the Motor Vehicle

Code. Therefore, Richael claimed he was improperly charged as a second-time

offender. The trial court disagreed, and sentenced Richael to three to eighteen

months’ imprisonment, followed by a six-month probationary period. This

timely appeal follows.

       On appeal, Richael asserts that the trial court misinterpreted the ten-

year look back period for second offenses as set forth in 75 Pa.C.S.A. §

3806(b). Specifically, Richael contends that the trial court erred by calculating

the ten-year look-back period from the date of the current offense to the date

of ARD disposition for the prior offense, rather than from the date of

sentencing for the current offense to the date of ARD disposition for the prior

offense. As the date of sentencing for his current offense was more than ten

years after the disposition of his previous offense, Richael claims that he

should have been sentenced as a first-time offender.
____________________________________________


the validity of his plea.” Commonwealth v. Rush, 909 A.2d 805, 807 (Pa.
Super. 2006) (citation omitted). However, a claim that a court improperly
graded an offense for sentencing purposes implicates the legality of a
sentence. See Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super.
2004). Therefore, despite Richael’s plea to the second-offense DUI, we are
able to address his claim concerning the grading of his offense on appeal.



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      This issue presents a question of statutory interpretation; therefore, our

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

Commonwealth v. Haag, 981 A.2d 902, 904 (Pa. 2009) (citation omitted).

      In all matters involving statutory interpretation, we apply the
      Statutory Construction Act, 1 Pa.C.S. §§ 1501 et. seq, which
      directs us to ascertain and effectuate the intent of the General
      Assembly. To accomplish that goal, we interpret statutory
      language not in isolation, but with reference to the context in
      which it appears. A statute’s plain language generally provides the
      best indication of legislative intent. Only where the words of a
      statute are ambiguous will we resort to other considerations to
      discern legislative intent.

Commonwealth v. Kingston, 143 A.3d 917, 922 (Pa. 2016) (citations and

parentheticals omitted).

      Here, Richael pled guilty to DUI-highest rate of alcohol, under § 3802(c)

of the Motor Vehicle Code. See 75 Pa.C.S.A. § 3802(c). In order to determine

the appropriate grading and sentencing for Richael’s offense, the trial court

consulted the framework provided in § 3606 of the Motor Vehicle Code. This

section, which Richael claims the trial court misinterpreted, provides:

      § 3806. Prior Offenses

      (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 … acceptance of Accelerated
            Rehabilitative Disposition 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 the influence of alcohol or
                        controlled substance);

                                     ***

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      (b)   Timing. –

                  (1)    For purposes of sections … 3803 (relating to
                         grading), 3804 (relating to penalties) …, 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[.]

      A panel of this Court recently applied the rules of statutory interpretation

to the look-back provision of § 3806(b) in Commonwealth v. Mock, 186

A.3d 434 (Pa. Super. 2018). There, the panel found that, “[u]nder subsection

(a), a ‘prior offense’ is defined as ‘any’ of the enumerated dispositions …

occurring ‘before the sentencing on the present violation[.]’” Id., at 437

(quoting 75 Pa.C.S.A. § 3806(a) (emphasis in original). Based upon their

interpretation of this provision, the panel held that a “prior offense” is

appropriately used to increase the grading of a defendant’s DUI if (1) the

previous offense was under § 3802; (2) the disposition of the previous offense

occurred before sentencing on the current offense; and (3) the disposition of

the previous offense occurred within ten years prior to the date the defendant

committed the current offense. See id., at 437-438.

      Richael committed his current offense on September 1, 2016. Therefore,

pursuant to Mock, the appropriate ten-year look-back period runs backwards

from that date—to September 1, 2006. As the disposition for Richael’s


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previous DUI did not occur until his acceptance into ARD on February 8, 2007,

this offense clearly falls within the ten-year look-back period. Because Richael

does not dispute the fact that his previous DUI fell under § 3802 and was

disposed of prior to sentencing on his current offense, the trial court properly

considered this a “prior offense” for the purpose of grading Richael’s DUI as a

second-offense, rather than a first-offense. Richael’s assertion otherwise is

meritless.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2018




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