J-A32029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MARC SUTHERLAND GOOD                       :
                                               :
                      Appellant                :   No. 357 MDA 2017

           Appeal from the Judgment of Sentence February 17, 2017
                In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0001279-2016


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J. *

MEMORANDUM BY DUBOW, J.:                             FILED FEBRUARY 12, 2018

       Appellant, Marc Sutherland Good, appeals from the Judgment of

Sentence entered after a stipulated non-jury trial. The trial court convicted

Appellant of DUI—General Impairment (2nd Offense), DUI—High Rate of

Alcohol (2nd Offense), Failure to Keep Right, Disregard Traffic Lane, and

Failure to Use Safety Belt.1 After careful review, we affirm.

       On June 7, 2016, the Commonwealth filed a Criminal Complaint,

charging Appellant with seven DUI-related offenses arising from an incident

alleged to have occurred on May 6, 2016.            The charges included the two

second-degree misdemeanor DUI offenses at issue herein.



____________________________________________


175 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § 3802(b); 75 Pa.C.S. § 3301(a); 75
Pa.C.S. § 3309(1); and 75 Pa.C.S. § 4581(a)(2)(ii), respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A32029-17



       On October 13, 2016, Appellant filed a Motion to Dismiss/Motion to

Quash for Improper Grading.             Appellant alleged in his Motion that the

Commonwealth improperly graded his DUI charges as second-degree

misdemeanors based on an alleged prior DUI conviction in Virginia.          See

Mot. to Dismiss, 10/13/16, at ¶¶ 6, 7. In particular, Appellant argued that

his “alleged convictions in Virginia do not qualify as ‘substantially similar’

offenses under Pennsylvania’s Driving Under the Influence statute.” Id. at ¶

7.   On November 1, 2016, the court held a hearing, after which it denied

Appellant’s Motion.2,   3


       On January 12, 2017, the court held a stipulated non-jury trial.       At

trial, Appellant renewed his Motion to Dismiss based upon improper grading,

arguing that the “pretrial motion court made an error in determining that

Virginia’s statute was substantially similar to Pennsylvania’s statute.” N.T.,

____________________________________________


2 At the hearing, the Commonwealth represented to the court that it had
provided to Appellant’s counsel “a printout of the transcript of [Appellant’s]
driver history from Virginia,” which indicated that a court convicted him on
August 15, 2014 of driving while intoxicated in violation of Virginia “Section
18.2-266.” N.T., 11/1/16, at 3, 9. The Commonwealth offered to remit a
copy of this record to the court for its review. Id. at 9. During this
colloquy, Appellant’s counsel claimed that he did not receive this record from
the Commonwealth during discovery, but proceeded to argue the merits of
his claim that the Virginia statute pursuant to which Appellant had been
convicted is not substantially similar to the Pennsylvania DUI statute. Id.
The Commonwealth did not move for the admission of Appellant’s Virginia
driving record into evidence.

3 The trial court issued an Order and Opinion explaining its rationale for
denying Appellant’s Motion on November 22, 2016.



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1/12/17, at 3.      At the conclusion of trial, the court convicted Appellant of

DUI—General Impairment (2nd Offense), DUI—High Rate of Alcohol (2nd

Offense), Failure to Keep Right, Disregard Traffic Lane, and Failure to Use

Safety Belt.

       On February 17, 2017, the court sentenced Appellant on the DUI—

General Impairment (2nd Offense) conviction to, inter alia, five days’ to six

months’ imprisonment, the mandatory minimum sentence for a second DUI

conviction, and suspension of his driver’s license.4

       This timely appeal followed.            Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

       Appellant raises the following two issues on appeal:

       1. Did the [t]rial [c]ourt commit an error of law when it
          sentenced Appellant to the mandatory sentence for a second
          offense DUI where the Commonwealth failed to present any
          evidence of a prior Virginia DUI conviction?

       2. Did the [t]rial [c]ourt err in finding the Virginia DUI statute
          substantially similar to the Pennsylvania DUI statute in the
          absence of any evidence presented by the Commonwealth?

Appellant’s Brief at 10.

       In both issues raised, Appellant claims his DUI sentence is illegal

because the Commonwealth improperly graded his DUI offenses as second-


____________________________________________


4 Appellant’s conviction of DUI—High Rate of Alcohol (2nd Offense) merged
with his General Impairment conviction for purposes of sentencing. His
convictions of Failure to Keep Right, Disregard Traffic Lane, and Failure to
Use Safety Belt carried no further penalties.



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degree misdemeanors, and sentenced him accordingly.          Appellant alleges

two alternate theories in support of his claim for relief: (1) that the

Commonwealth failed to meet its burden of proving that Appellant had a

prior DUI conviction because it did not provide documentary proof of his

prior conviction, and (2) that even if the Commonwealth proved that

Appellant had a prior conviction, the statute under which the Virginia court

convicted Appellant is not “substantially similar” to Pennsylvania’s statute for

purposes of grading the instant offenses.

      Appellant presents his first issue as a challenge to the sufficiency of

the Commonwealth’s evidence of his guilt of the crimes charged. However,

because a prior DUI conviction is not an element of the charged crimes, but

rather, as discussed infra, a factor to consider for enhancement and

sentencing purposes, evidentiary sufficiency is not implicated in this issue.

Instead, Appellant is actually challenging the trial court’s reliance on his

prior DUI conviction for the purposes of enhancement and sentencing when

the Commonwealth allegedly did not provide him with a copy of his Virginia

driving record in discovery. Thus, Appellant, in fact, challenges the legality

of his sentence. See Commonwealth v. Pombo, 26 A.3d 1155, 1157 (Pa.

Super. 2011) (holding that a challenge to the grading of an offense and the

imposition of a mandatory minimum sentence implicates the legality of an

appellant’s sentence); see also Commonwealth v Foster, 17 A.3d 332,

345 (Pa. 2011) (stating that a challenge to the imposition of a mandatory


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minimum sentence constitutes a challenge to the legality of a sentence).

“When we address the legality of a sentence, our standard of review is

plenary and is limited to determining whether the trial court erred as a

matter of law.” Pombo, 23 A.3d at 1157 (citation omitted).

      Prior to imposing a mandatory minimum sentence, the Commonwealth

must provide the sentencing court and the defendant a complete record of

the defendant’s previous convictions. 42 Pa.C.S. § 9714(d).

      Appellant first argues, citing Commonwealth v. Perkins, 538 A.2d

930 (Pa. Super. 1988), that his mandatory minimum sentence is illegal

because the Commonwealth failed to produce to Appellant in discovery a

copy of his Virginia driver’s license history evidencing a prior DUI conviction,

and the court did not admit such a document as evidence at Appellant’s

sentencing hearing. Appellant’s Brief at 22.

      We are unpersuaded by Appellant’s reliance on Perkins. In that case,

the Commonwealth’s only evidence of the defendant’s prior conviction was

the defendant’s probation officer’s statement that the defendant had

admitted to having been convicted of DUI in New York. Perkins, 538 A.2d

at 932-33. Importantly, in Perkins, “the Commonwealth did not introduce a

record of the prior conviction[.]” Id. at 932. Noting that, “[o]ur Supreme

Court has declared that the trial court is to be furnished with a complete

record of a defendant’s prior convictions,” the Perkins court remanded for a

hearing on this issue. Id. at 932-33 (emphasis added).


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J-A32029-17


       In the instant case, in response to Appellant’s allegation of error, the

trial court observed in its Rule 1925(a) Opinion that, “the Commonwealth did

not enter the record into evidence.” Trial Ct. Op., 3/24/17, at 2. However,

the Notes of Testimony reflect that, unlike in Perkins, the Commonwealth

presented Appellant’s Virginia driving record to the court at the hearing on

Appellant’s Motion to Dismiss, and the court noted that it had “reviewed the

[driving] record, found it credible and sufficient to support grading the DUI

as a second offense.”5 Id.

       Our review of the record indicates that the Commonwealth adequately

complied with the mandate that it provide the trial court with a “complete

record of [Appellant’s] prior convictions.”      See Perkins, 538 A.2d at 932.

Moreover, we note that, to the extent that Appellant complains that the

Commonwealth did not produce his driving record to him in discovery, the

record reflects that Appellant failed to file a Motion to Compel its production

or a Motion for Sanctions to penalize the Commonwealth for its oversight.

Appellant has not claimed that he was ever unaware of the Commonwealth’s

intent to treat the instant DUI as Appellant’s second for sentencing
____________________________________________


5 The court did not address the significance, if any, of Appellant’s counsel’s
claim that the Commonwealth did not produce this record to him in
discovery. Our review of the transcript reveals that, after learning of the
oversight in allegedly failing to produce the report, the Commonwealth
offered to “certainly make sure that we get a copy of that to him.” N.T.,
11/1/16, at 9. There is no evidence in the record, and Appellant does not
argue, that the Commonwealth did not provide him with a copy of the record
after the hearing on his Motion.



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J-A32029-17


purposes.      Moreover, his counsel’s strenuous argument at Appellant’s

Presentence Hearing, and again at his trial, against the “substantial

similarity” between the Virginia and Pennsylvania DUI statutes belies

Appellant’s claim that he was unaware of the contents of his Virginia driving

record.   Accordingly, we conclude Appellant is not entitled to relief on his

first issue.

       In his second issue, Appellant claims that the trial court erred by

supporting the second offense grading of his charges with its conclusion that

the VA Code 18.2-266 is substantially similar to 75 Pa.C.S. § 3802.

Appellant’s Brief at 23.       In support of this claim, Appellant baldly asserts

that, because the Commonwealth failed to specify under which subsection of

the Virginia statute the Virginia court convicted Appellant, “it was impossible

for the [instant] sentencing court to engage in a comparison between the

two statutes to determine if they are substantially similar.”      Id. at 23-24.

Notably, Appellant does not argue that the court erred in its analysis of

whether the statutes are “substantially similar,” only that the court erred in

engaging in the comparison of the statutes in the first instance.6



____________________________________________


6 In the context of 75 Pa.C.S. § 3806, when presented with statutes from
different jurisdictions, the court must conduct an analysis to determine
whether the statutes are “substantially similar.” See Pombo, 23 A.3d at
1158-59 (discussing and applying the “substantial similarity” analysis to the
DUI statutes of Pennsylvania and New York).



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       Appellant’s argument is significantly underdeveloped.      Appellant has

advanced one legal theory in support of his claim, but has failed to support

this theory with citation to any applicable case law.         Furthermore, the

citation to legal authority Appellant has included in his Brief is not binding on

this Court and is factually and procedurally distinguishable from the instant

matter.7 Appellant’s failure to develop his argument precludes this Court’s

meaningful review. See Commonwealth v. Rush, 959 A.2d 945, 950-51

(Pa. Super. 2008) (finding certain of the appellant’s legality of sentence

claims waived where the appellant failed to develop his arguments, thus

precluding meaningful appellate review); see also Commonwealth v.

Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009) (same). Accordingly, we find

this argument waived.

       Judgment of Sentence affirmed. Jurisdiction relinquished.




____________________________________________


7 Appellant cites Hunt v. Comm. Dep’t of Trans., Bureau of Driver
Licensing, 750 A.2d 922 (Pa. Cmwlth. 2000). Appellant’s Brief at 23.
Appellant appears to cite Hunt only for the general proposition that, when
comparing two statutes, the duty of the trial court is to determine whether
the effect of the statutory language is substantially similar.



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J-A32029-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/12/2018




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