J-S55040-16

                              2016 PA Super 179



COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

RYAN O. LANGLEY,

                         Appellant                   No. 2508 EDA 2015


            Appeal from the Judgment of Sentence July 8, 2015
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0001783-2014

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                        FILED AUGUST 12, 2016

      Appellant Ryan O. Langley appeals from the judgment of sentence

entered by the Court of Common Pleas of Montgomery County after the trial

court convicted him of Driving Under the Influence (DUI) and Driving at an

Unsafe Speed. After careful review, we affirm.

      On November 14, 2013, police responded to a report of a motor

vehicle accident in Lower Merion, Pennsylvania. In investigating the scene

and the drivers involved in the accident, officers spoke with Appellant and

noticed an odor of alcohol on his breath. After Appellant failed field sobriety

testing, he was placed under arrest for DUI.        Appellant’s blood alcohol

concentration level (BAC) was determined to be .092%.

      Appellant was charged with two counts of DUI under 75 Pa.C.S. §

3802(a)(1) (incapable of safely driving) and 75 Pa.C.S. § 3802(a)(2) (BAC



*Former Justice specially assigned to the Superior Court.
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greater than .08% and less than .10%) as well as one count of failing to

drive at a safe speed (75 Pa.C.S. § 3361).        In addition, Count 1 of the

criminal information stated Appellant was subject to the enhanced penalty

contained in 75 Pa.C.S. § 3804(b)(2) as his DUI violation under Section

3802(a)(1) resulted in an accident that caused bodily injury or property

damage.     Count 1 also listed the mandatory minimum provisions in 75

Pa.C.S. § 3804(c) (refusal of testing of blood or breath) and 75 Pa.C.S. §

3804(c.1) (violation involving minor occupant), but clarified that neither

provision was applicable in this case. The information noted this was

Appellant’s second DUI offense.

      Appellant filed an omnibus pre-trial motion, asking the trial court to

quash Count 1 and demanding a jury trial. The trial court denied Appellant’s

pre-trial motion.   After a bench trial, the trial court convicted Appellant of

DUI (incapable of safely driving) and failing to drive a safe speed. Appellant

was sentenced to thirty days to six months incarceration. This timely appeal

followed.   Appellant complied with the trial court’s order to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review on appeal:

      A. Did the trial court err by not quashing Count 1 of the Bill of
         Information, which contained four paragraphs, where three of
         the paragraphs are not elements of the offense but rather
         sentencing provisions, which violates Pa.R.Crim. P. 560[?]

      B. Did the trial court err by ruling that Article I, Section 9 of the
         Pennsylvania Constitution does not guarantee a jury trial for
         an ungraded misdemeanor DUI?


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Appellant’s Brief, at 2.

      Appellant first claims the trial court erred in denying his request to

quash Count 1 of the criminal information as he contended it contained

superfluous language that included facts and potential penalties and beyond

the elements of the crime charged. Appellant argues the extra information

violates Pa.R.Crim.P. 560, which states that an information “shall be valid

and sufficient in the law if it contains … (5) a plain and concise statement of

the essential elements of the offense substantially the same as or cognate to

the offense alleged in the complaint.” Pa.R.Crim.P. 560. We disagree.

      Appellant specifically takes issue with the Commonwealth’s allegation

that Appellant’s conduct resulted in an “accident resulting in bodily injury,

serious bodily injury, injury or death of any person or damage to a vehicle or

other property.”    Information, at 1.     By including this language in the

information, the Commonwealth put Appellant on notice that he would be

subject to the mandatory minimum provision set forth in Section 3804(b).

Our Supreme Court recently emphasized that:

      when a factual determination is necessary for the imposition of a
      mandatory minimum sentence, the facts must be considered an
      element of a new, distinct aggravated offense. Moreover, as an
      element of the offense, the factual determination must be
      specifically alleged in the charging document, and the defendant
      has a right to have that fact determined by a jury beyond a
      reasonable doubt.




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Commonwealth v. Hopkins, ___Pa.___, 117 A.3d 247, 256-57 (2015)

(citing Alleyne v. United States, ___U.S.___, 133 S.Ct. 2152, 2160-63

(2013)).

       Here, the Commonwealth specifically alleged in the Count 1 of the

criminal information that it would attempt to prove that Appellant was

subject to the mandatory minimum of 30 days imprisonment set forth in

Section 3804(b)(2)(i) which applies where an individual, who commits a

second offense DUI, causes an accident resulting to injury or property

damage.      Pursuant to Alleyne and Hopkins, the Commonwealth was

required to include such facts in the information, which if proven, would

increase the prescribed penalty to which Appellant was exposed.1

       Moreover, we also reject Appellant’s claim that the Commonwealth

violated Rule 560 by stating in the criminal information that it would not

____________________________________________


1
  Appellant does not argue that Section 3804 is unconstitutional pursuant to
Alleyne. To the extent his argument could be characterized as raising such
an issue, this claim would fail. While our courts have found several of our
mandatory minimum statutes unconstitutional in light of Alleyne, the
offending provisions in those cases contained language allowing the trial
court to increase a defendant’s penalty based on facts proven by a
preponderance of the evidence standard at sentencing.                        See
Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.Super. 2013) (finding
Alleyne “renders those Pennsylvania mandatory minimum sentencing
statutes that do not pertain to prior convictions constitutionally infirm insofar
as they permit a judge to automatically increase a defendant's sentence
based on a preponderance of the evidence standard”). The statute in this
case, Section 3804, does not contain any language allowing the trial judge
to make findings of fact triggering the mandatory minimum at sentencing
based on a preponderance of the evidence standard.



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seek the enhanced penalties set forth in 75 Pa.C.S. § 3804(c) (refusal of

testing of blood or breath) and 75 Pa.C.S. § 3804(c.1) (violation involving

minor occupant). We agree with the Commonwealth that listing these facts

provided further clarification to the trial court of which mandatory minimum

sentence provision was implicated in these circumstances.               As the

Commonwealth fulfilled the requirement in Rule 560(B)(5) that the

Commonwealth set forth the essential elements of the offense in a plain and

concise statement, the trial court did not err in refusing Appellant’s request

to quash Count 1 of the information.

      Second, Appellant cites Article I, Section 9 of the Pennsylvania

Constitution in arguing that he was deprived of his right to a jury trial on the

DUI charges.    Appellant asks this Court to interpret our Constitution as

providing an “absolute” right to a jury trial in all criminal prosecutions.

However, our Supreme Court has already spoken directly to this issue in

Commonwealth v. Mayberry, 459 Pa. 91, 97, 327 A.2d 86, 89 n.9 (1974),

and established that both U.S. Constitution and Article I, Section 9 of the

Pennsylvania Constitution only guarantee a defendant a right to a jury trial

for “serious offenses,” or crimes which carry more than a six month

maximum prison sentence. In contrast, crimes that carry a maximum of six

months’ imprisonment or less are considered “petty offenses” for which

there is no right to a jury trial. Id. at 98, 327 A.2d at 89.

      Appellant responds by arguing that DUI offenses should not be

deemed petty offenses as “an individual’s first DUI is a stepping stone to

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harsher penalties for subsequent offenses.”         Appellant’s Brief, at 20.    In

addition, Appellant argues that the Pennsylvania Constitution should be

interpreted more broadly than the federal Constitution as Article I, Section 6

refers to a citizen’s right to a trial by jury as “inviolate.” Pa.Const. art.I, § 6.

      However, Appellant ignores our past precedent in Commonwealth v.

Kerry, 906 A.2d 1237 (Pa.Super. 2006), in which we rejected the identical

arguments as applied to DUI charges:

      Appellant first submits that although the maximum incarceration
      for a first offense under 75 Pa.C.S.A. § 3802(a)(1), with a
      refusal to submit to chemical testing, is no more than six
      months, this conviction severely affects subsequent convictions
      under the statute. Therefore, he argues that the offense should
      be considered serious in the constitutional sense and entitles him
      to a jury trial. We disagree.

      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.’
      Commonwealth v. Mayberry, 459 Pa. 91, 98, 327 A.2d 86, 89
      (1974) (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,

            It 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


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           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
     months, the Legislature categorized the violation of § 3802(a)(1)
     as petty for purposes of a defendant's jury trial rights. This
     categorization is not affected by the potential for a
     defendant to be subject to increased incarceration for a
     subsequent DUI offense. Much like a defendant charged with
     multiple petty offenses, the fact that the potential exists for an
     aggregate sentence exceeding six months' incarceration does not
     entitle such a defendant to a jury trial. See Lewis v. United
     States, 518 U.S. 322, 327, 116 S.Ct. 2163, 135 L.Ed.2d 590
     (1996) … 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. In
     reaching this decision, the Court further noted that “we ascribe
     little significance to the fact that a DUI offender faces increased
     penalties for repeat offenses. Recidivist penalties of the
     magnitude imposed for DUI are commonplace and, in any event,
     petitioners do not face such penalties here.” Blanton, 489 U.S.
     at 545, 109 S.Ct. 1289.

     Appellant also argues that, unlike the United States Constitution,
     Article 1, Section 6 of the Pennsylvania Constitution contains the
     word “inviolate” when referring to the right to a jury trial and

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      therefore should be interpreted more broadly so as to afford
      defendants the right to a jury trial. We cannot agree. What
      Appellant fails to recognize is that our Supreme Court's decision
      in Mayberry, supra, at 97 n. 9, 327 A.2d at 89 n. 9, also
      considered Article 1, Sections 6 and 9 of the Pennsylvania
      Constitution in applying the fixed dividing line test articulated by
      the United States Supreme Court. Despite differences in the
      language of the United States and Pennsylvania constitutional
      provisions, both provisions have been interpreted to guarantee
      the right to a jury trial in a criminal matter only as it existed at
      common law. Thus, there is no constitutional right to trial by jury
      for “petty” offenses. Consequently, this argument is likewise
      unavailing. It was not error, therefore, to deny Appellant a jury
      trial.

Kerry, 906 A.2d at 1239-40 (emphasis added). As our precedent in Kerry

is directly controlling, we conclude the trial court did not err in finding that

Appellant was not entitled to a jury trial for his DUI charges.

      For the foregoing reasons, we affirm Appellant’s judgment of sentence.

     Affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2016




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