J-S54009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ANASTASIA PROVIANO                      :
                                         :
                   Appellant             :   No. 1451 WDA 2017

            Appeal from the Judgment of Sentence July 18, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0007702-2016


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

JUDGMENT ORDER BY PANELLA, J.                  FILED NOVEMBER 06, 2018

      Anastasia Proviano appeals from the judgment of sentence entered in

the Allegheny County Court of Common Pleas following her three convictions

for driving under the influence. Appellant contends these convictions violate

her right of protection under the Double Jeopardy Clauses of both the United

States and Pennsylvania Constitutions. We affirm in part, reverse in part, and

remand for resentencing.

      A detailed summary of the facts and procedural history of this case is

unnecessary to our disposition. Briefly, following a single criminal incident,

Appellant was charged with three separate counts of driving under the

influence. Count one charged Appellant with driving under the influence

(“DUI”), 75 Pa.C.S.A. § 3802(a)(1), and a sentencing enhancement for

refusing criminal testing, 75 Pa.C.S.A. § 3804(c). Count two charged Appellant
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with DUI, § 3802(a)(1), and a sentencing enhancement for damage to a

vehicle § 3804(b). And count 3 charged Appellant with DUI, § 3802(a)(1).

        After a bench trial on April 20, 2017, the court convicted Appellant of all

three DUI counts, as well as a single count of reckless driving.1 The trial court

sentenced Appellant to 30 days intermediate punishment with a concurrent

term of 6 months’ probation at count one. At counts two and three, the trial

court indicated “[a] determination of guilty without further penalty.”

Sentencing Order, 7/18/17. This timely appeal follows the denial of Appellant’s

post-sentence motion.

        On appeal, Appellant’s sole claim is that, because her DUI convictions

stemmed from a single criminal incident, her convictions and sentences for

these offenses violate her rights under the Double Jeopardy Clauses of the

United States and Pennsylvania Constitutions.2 Appellant relies upon

Commonwealth v. Farrow, 168 A.3d 207 (Pa. Super. 2017).

        In Farrow, a panel of this Court, presented with a similar factual

scenario and issue on appeal, determined that the imposition of “three

separate sentences at three counts that each alleged, at bottom, a single

criminal act in violation of the same criminal statute” violates an appellant’s

protection against double jeopardy. See id., at 216 (footnote omitted).


____________________________________________


1   75 Pa.C.S.A. § 3736(a). This conviction is not at issue here.

2 The Commonwealth agrees with Appellant and requests that we remand for
resentencing. See Commonwealth’s Brief, at 4-8.

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      The trial court argues that double jeopardy is not implicated here

because it did not impose further penalties at counts two and three. See Trial

Court Opinion, 1/23/18 at 4 (unpaginated). Farrow, however, explicitly

rejects this reasoning. See 168 A.3d at 217 n.8 (“[M]ere convictions that carry

a sentence of ‘no further penalty’ are an impermissible punishment.”) Instead,

the panel concluded a disposition of “guilty with no further penalty”

constituted a sentence because “such a disposition poses significant collateral

consequences, including unwarranted enhancement of prior record score (or

prior DUI offense history) in subsequent criminal proceedings and unjustified

impediments to restoration of [] driving privileges.” Id., at 216-217.

      Because the facts underlying this case are almost indistinguishable from

those found in Farrow, we arrive at the same result. Therefore, we conclude

that Appellant’s convictions and sentences, arising from the same criminal act,

violate her protections against double jeopardy. So, we reverse Appellant’s

convictions and sentences at counts one and two, affirm Appellant’s conviction

but vacate her sentence at count three, and remand for resentencing on that

count. See id., at 218-219. And, because Farrow held that sentencing

enhancements are still viable in resentencing under this fact pattern, we direct

the trial court to consider its prior factual findings concerning the application




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of the sentencing enhancements found at § 3804(b) and (c)3 in fashioning

Appellant’s sentence at count three. See id., at 219.

       Convictions and judgments of sentence reversed as to counts one and

two. Conviction affirmed, but judgment of sentence vacated at count three.

Case remanded for resentencing at count three. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2018




____________________________________________


3 In considering the sentencing enhancement found at § 3804(c), the court
should also take into account the ramifications of the holdings of Birchfield
v. North Dakota, 136 S.Ct. 2160 (2016), and Commonwealth v. Giron,
155 A.3d 635 (Pa. Super. 2017).

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