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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
JONATHAN QUARM,                         :         No. 1555 EDA 2015
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, April 21, 2015,
            in the Court of Common Pleas of Delaware County
             Criminal Division at No. CP-23-CR-0001713-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 17, 2016

     Jonathan Quarm appeals the judgment of sentence in which the Court

of Common Pleas of Delaware County sentenced him to serve a term of

12 to 60 months’ imprisonment for a third offense driving under the

influence (“DUI”), 75 Pa.C.S.A. § 3804(c)(3).    The trial court also ordered

appellant to pay a $2,500 fine, a $300 special cost assessment, undergo a

drug and alcohol evaluation, and attend safe driving school.

     The facts as recounted by the trial court are as follows:

           On August 22, 2011 at approximately 1:53 a.m.
           Trooper Martin Wiley of the Pennsylvania State Police
           was on duty and in full uniform in a marked patrol
           unit traveling South on State Road Rt. 1 just north of
           Brandywine Drive, Chadds Ford Township, Delaware
           County, Pennsylvania. Trooper Wiley observed a
           Lincoln Sedan bearing PA reg#HFD9821 traveling in
           front of his patrol unit change lanes without signaling
           and then abruptly, and unsafely, swerve outside of
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              its lane of travel after changing lanes. Trooper Wiley
              queried the registration in NCIC/CLEAN and it
              returned as a suspended registration. At that time
              Trooper Wiley initiated a traffic stop.

                     Trooper Wiley approached the driver side of
              the vehicle and made contact with the operator,
              [appellant] in this case.         While interviewing
              [appellant], Trooper Wiley detected a strong odor of
              an alcoholic beverage emanating from his breath and
              person. Trooper Wiley then asked the [appellant] to
              exit his vehicle to perform Standardized Field
              Sobriety Tests.       Trooper Wiley explained and
              demonstrated Standardized Field Sobriety Tests to
              [appellant] and requested that he perform the tests.
              [Appellant] performed the Standardized Field
              Sobriety Tests and showed positive indicators of
              intoxication on all the tests. [Appellant] was placed
              under arrest and transported to PSP Media for a
              chemical test of breath.            [Appellant] was
              administered a chemical test of breath on the
              Datamaster DMT by Trooper Patrick Wade who is a
              certified operator of this machine. [Appellant’s] test
              yielded a Breath [sic] Alcohol Content of .247%.

Trial court opinion, 9/15/15 at 1-2.

         A jury convicted appellant of DUI, general impairment, incapable of

driving safely, 75 Pa.C.S.A. § 3802(a)(1) and DUI, highest rate of alcohol

(BAC .16+), 75 Pa.C.S.A. § 3802(c).1       Thereafter, the trial court acquitted


1
    Section 3802(c) of the Vehicle Code, 75 Pa.C.S.A. § 3802(c), provides:

              Highest rate of alcohol.--An individual may not
              drive, operate or be in actual physical control of the
              movement of a vehicle after imbibing a sufficient
              amount      of  alcohol  such    that    the   alcohol
              concentration in the individual’s blood or breath is
              0.16% or higher within two hours after the individual
              has driven, operated or been in actual physical
              control of the movement of the vehicle.


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appellant of a violation of Operating a Vehicle without Ignition Interlock

(BAC .025+) 4th or subsequent offense, 75 Pa.C.S.A. § 3808(a)(2).

        At   the    sentencing    hearing,    the   Commonwealth    introduced   into

evidence a certified driver history for appellant which indicated that

appellant had two prior DUI convictions: he previously accepted Accelerated

Rehabilitative Disposition on a DUI offense committed on December 25,

2005, and was convicted of DUI in New Jersey on July 13, 2007.

        The trial court took these prior convictions into account when it

sentenced appellant.2         The trial court explained its decision to impose the

sentence of 12 to 60 months’ imprisonment on appellant based on his prior

convictions:


2
    Section 3804(c)(3) of the Vehicle Code, 75 Pa.C.S.A. § 3804(c), provides:

              Incapacity; highest blood alcohol; controlled
              substances.--An individual who violates section
              3802(a)(1) and refused testing of blood or breath or
              an individual who violates section 3802(c) or (d)
              shall be sentenced as follows:

              ....

              (3)     For a third or subsequent offense, to:

                      (i)     undergo imprisonment of not less
                              than one year;

                      (ii)    pay a fine of not less than $2,500;
                              and

                      (iii)   comply with all drug and alcohol
                              treatment requirements imposed
                              under sections 3814 and 3815.


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            In the instant case, the mandatory minimum
            sentence imposed upon [appellant] was triggered by
            his prior convictions.    In every case which has
            addressed the issue, the courts have agreed that
            mandatory minimum sentences based upon prior
            convictions do not require a judge or jury to find the
            existence of the prior conviction beyond a reasonable
            doubt and such mandatory minimum sentences
            based upon prior convictions are not rendered
            unconstitutional or illegal based upon Alleyne [v.
            United States,           U.S.      , 133 S.Ct 2151
            (2013)]. Therefore, as the law currently stands, the
            imposition of a mandatory minimum sentence based
            on a prior conviction is not unconstitutional. See
            Commonwealth v. Hale[, 85 A.3d 570 (Pa.Super.
            2014)].

Trial court opinion, 9/15/15 at 4.

      Appellant contends that the trial court erred when it sentenced him

based on the record of prior convictions when the jury did not have the

opportunity as fact-finder to determine whether he in fact did receive the

prior convictions.    Essentially, appellant argues that his judgment of

sentence should be vacated and the case should be remanded to the trial

court in order for a jury to determine whether he had prior convictions for

DUI as the proof of prior convictions helped to determine the severity of his

sentence.   He also argues that permitting the trial court to determine the

sentence based on prior convictions when a jury did not have the




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opportunity to determine if the prior convictions in fact occurred violates

Article I, Section 9 of the Pennsylvania Constitution.3

                     At the outset, we note that issues pertaining to
              Alleyne go directly to the legality of the sentence.
              Commonwealth v. Lawrence, 99 A.3d 116, 123
              (Pa.Super. 2014). With this in mind, we begin by
              noting our well-settled standard of review.          “A
              challenge to the legality of a sentence . . . may be
              entertained as long as the reviewing court has
              jurisdiction.” Commonwealth v. Borovichka,
              18 A.3d 1242, 1254 n. 8 (Pa.Super. 2011). (citation
              omitted). It is also well-established that “[i]f no
              statutory authorization exists for a particular
              sentence, that sentence is illegal and subject to
              correction.” Commonwealth v. Rivera, 95 A.3d
              913, 915 (Pa.Super. 2014) (citation omitted). “An
              illegal sentence must be vacated.” Id. “Issues
              relating to the legality of a sentence are questions of
              law[.] . . . Our standard of review over such
              questions is de novo and our scope of review is

3
    Article I, Section 9 of the Pennsylvania Constitution provides:

              In all criminal prosecutions the accused hath a right
              to be heard by himself and his counsel to demand
              the nature and cause of the accusation against him,
              to be confronted with the witnesses against him, to
              have compulsory process for obtaining witnesses in
              his favor, and, in prosecutions by indictment or
              information, a speedy public trial by an impartial jury
              of the vicinage; he cannot be compelled to give
              evidence against himself, nor can he be deprived of
              his life, liberty or property, unless by the judgment
              of his peers or the law of the land. The use of a
              suppressed voluntary admission or voluntary
              confession to impeach the credibility of a person may
              be permitted and shall not be construed as
              compelling a person to give evidence against
              himself.

Pa. Const. Art. I, § 9.



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            plenary.” Commonwealth v. Akbar, 91 A.3d 227,
            238 (Pa.Super. 2014) (citations omitted).

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014).

       In Alleyne, the United States Supreme Court held that “[a]ny fact

that, by law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.” Alleyne, 433

S.Ct. at 2155. However, the United States Supreme Court noted that it did

not address the narrow exception to this general rule for the fact of a prior

conviction. Id. at 2160 n.1.

       Pennsylvania courts have long held that a trial court may determine

the   existence   of   prior   convictions   at   the   time   of   sentencing.    In

Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004), our supreme court

addressed the applicability of Article I, Section 9 of the Pennsylvania

Constitution and the due process provisions of the United States Constitution

when it determined that proof of a prior conviction did not have to be

submitted to a jury in order to be used to invoke an enhanced sentencing

provision based on a prior conviction.

       Since Alleyne, the Pennsylvania Supreme Court has struck down

some     minimum       sentencing     statutes     as    unconstitutional.        See

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (our supreme court

declared unconstitutional a mandatory minimum sentencing statute if certain

controlled substance crimes occurred within 1,000 feet of a school).

However, the prior conviction exception continues. In Commonwealth v.


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Reid, 117 A.3d 777 (Pa.Super. 2015), this court held that Section 9714 of

the Sentencing Code, 42 Pa.C.S.A. § 9714, which increased the mandatory

minimum sentence for a crime of violence based on a prior conviction for a

crime of violence was not unconstitutional under Alleyne and that the proof

of a prior conviction was not a fact that had to be found by a jury. More

recently, in Commonwealth v. Bragg, 2016 WL 490006 (Pa.Super.

February 5, 2016), Gregory Bragg contended that the Court of Common

Pleas of Philadelphia County erred when it imposed a mandatory minimum

sentence for an arson conviction based on a prior conviction for burglary of

an occupied residence, a crime of violence. Because Alleyne recognized the

exception for prior convictions, this court determined that a jury did not

have to find that the prior conviction occurred and affirmed.

      While appellant asks this court to ignore established precedent and

eliminate the rule that the fact of a prior conviction does not have to be

presented to a jury and may be submitted to the sentencing court, this court

declines to do so.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/17/2016



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