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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
MEREDITH WILLIAMS-EARLE,                 :         No. 2216 EDA 2015
                                         :
                         Appellant       :


             Appeal from the Judgment of Sentence, June 2, 2015,
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No. CP-46-CR-0006901-2013


BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED NOVEMBER 10, 2016

        Meredith Williams-Earle appeals from the judgment of sentence

entered in the Court of Common Pleas of Montgomery County after a jury

convicted her of driving under the influence (“DUI”) and recklessly

endangering another person (“REAP”).1 In addition to her jury convictions,

appellant entered an open guilty plea to one count of involuntary

manslaughter.2 The trial court sentenced appellant to 48 hours to 6 months

of imprisonment on the DUI conviction; 2 years of probation on the REAP

conviction to run consecutive to the DUI; and 9 to 23 months of

imprisonment for involuntary manslaughter, to run concurrent with the DUI



1
    75 Pa.C.S.A. § 3802(a) and 18 Pa.C.S.A. § 2705, respectively.
2
    18 Pa.C.S.A. § 2504(a).
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sentence, followed by a consecutive 3-year probationary term for an

aggregate term of incarceration of 9 to 23 months, followed by 5 years of

probation. We affirm.

     The trial court set forth the following factual and procedural history:

                 On August 6, 2013 at approximately
           9:30 a.m., Appellant, feeling overwhelmed by her life
           circumstances, decided to drink some leftover wine
           or champagne mixed with orange juice. Shortly
           before getting into her car to take her two-year-old
           son, Ford, to daycare, Appellant mixed another
           drink. She put about 4 inches of whiskey into a Solo
           cup and mixed it with cola. She took the whiskey
           drink out to her car, got her son into the car and
           drank half of the cup’s contents before she pulled out
           of her driveway.

                 Ford was acting “wildly unmanageable” while in
           his car seat, so Appellant gave him a bag of cheese
           puffs, which she hoped would calm him down. He
           had in the previous months started pulling on the car
           door handle while Appellant would drive on the
           roadway and would make himself sick.          Shortly
           before the stop sign at the intersection of
           Morris Avenue and Spring Mill Road, Ford was
           screaming, “puffs, puffs.” Appellant looked in her
           rearview mirror and realized that he had dropped the
           cheese puffs. About 25 yards before the stop sign,
           Appellant looked back for two seconds to find the
           cheese puffs. That is all she remembered prior to
           the accident.

                  At about 10:30 a.m. one [witness], Brian
           Novitski, observed Appellant’s car, a red Prius, blow
           through a stop sign and plow into a white van. At
           trial, Mr. Novitski testified that he saw the white van
           flip over, the driver of the van fall out from the
           vehicle and the white van fall back onto the driver.
           Mr. Novitski called 911.




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                 A call was dispatched for an accident with
          injuries at the intersection of Spring Mill Road and
          Morris Avenue, to which several officers from the
          Lower Merion Township Police Department responded
          as did paramedics. The victim, [Winston] Staats[,]
          was found to be dead at the scene.

               Appellant was taken to the University of
          Pennsylvania Hospital, where Appellant consented to
          have a blood sample taken.

                After an investigation, Appellant was charged
          with homicide by vehicle while [DUI], homicide by
          vehicle, DUI, [REAP], and numerous summary
          offenses.

                On March 2, 2015, a suppression motion was
          conducted in which Appellant sought to suppress
          numerous incriminating statements she made to
          several police. In addition, Appellant filed a motion
          in limine concerning the use of her cell phone.
          Suppression was denied.

                 Immediately     following    the    denial   of
          suppression, a two-day jury trial commenced. On
          the second day of trial and pertinent to this appeal,
          defense counsel notified this Court that he would be
          stipulating to the age of Appellant’s son as below the
          relevant age of 18, and that Appellant’s son, who
          was in the car with her at the time of the accident
          was two-years-old. Defense counsel acknowledged
          that this stipulation relieves the jury from making
          that finding and that it was not necessary to include
          that on the verdict sheet.         As discussed, the
          Commonwealth read for the jury the stipulation as
          follows:

               Lastly, it is also agreed and stipulated
               between the parties that on August 6,
               2013, Timothy Ford Earle was two years
               old.

          A copy of this stipulation         was   marked    as
          Commonwealth Exhibit “C-58”.


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                At the conclusion of the trial, the jury did find
          Appellant guilty of DUI-[at least].08 [but less than]
          .10 and [REAP]. The jury found Appellant not guilty
          of DUI – general impairment, DUI-drugs and alcohol
          combination and homicide by vehicle while [DUI].
          The jury could not reach a unanimous verdict on
          homicide by vehicle.       Finally, this Court found
          Appellant guilty of numerous summary offenses,
          including, reckless driving, careless driving, duties at
          a stop sign, driving at a safe speed and restraint
          systems.

                 On June 2, 2015, the sentencing hearing was
          held.    Prior to the start of that hearing, the
          Commonwealth advised this Court that it had
          reached an agreement in regard to the open charge
          of homicide by vehicle. The Commonwealth sought
          to amend the bills of information to change the
          charge to involuntary manslaughter and Appellant
          agreed to enter an open guilty plea. Appellant pled
          guilty and this Court accepted her plea. After which
          this Court conducted the sentencing hearing. At the
          conclusion of the hearing and with the benefit of a
          presentence investigation and report, this Court
          sentenced Appellant to an aggregate term of 9 to
          23 months’ imprisonment, followed by a five-year
          probationary period.

                On June 12, 2015, appellate counsel filed a
          timely post-sentence motion, in part reserving the
          right to amend the post-sentence motion since he
          was not trial counsel and had little time to review the
          record. On June 16, 2015, the post-sentence motion
          was denied.      Subsequently, on June 24, 2015,
          appellate counsel filed a motion to reconsider [the]
          Court’s   denial   of   post-sentence      motion    for
          reconsideration    of   sentence.        Substantively,
          appellate counsel argued that because the jury was
          not instructed that they must find that there was a
          minor in the car during the DUI and since the jury
          did not in fact make that finding, this Court erred in
          imposing a sentence on her DUI as a first-degree
          misdemeanor under 75 Pa.C.S.A. § 3803(b)(5).


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                   This Court conducted a hearing on the matter
            on July 2, 2015. At the hearing, appellate counsel
            argued that because trial counsel stipulated to the
            fact that Appellant’s son was two years old at the
            time of the accident which relieved the jury from
            making that finding, that was akin to either trial
            counsel stipulating to Appellant’s guilt or allowing
            this Court to find Appellant guilty based upon
            listening to the facts.   Appellate counsel further
            argued that in that scenario where trial counsel was
            stipulating to an element of the crime, Appellant
            should have been fully advised so that she could
            make a knowing, intelligent and voluntary waiver of
            her rights.

                  The motion to reconsider was denied, and this
            timely appeal was filed on July 15, 2015.

Trial court opinion, 9/1/15 at 1-5 (record citations omitted).

      Appellant raises the following issues for our review:

            1.    Whether the conviction for § 3803(b)(5)
                  (relating to DUI while minor is passenger in
                  vehicle) must be vacated because [appellant’s]
                  right to a trial by jury was violated where the
                  jury was not instructed that they needed to
                  find a minor was present beyond a reasonable
                  doubt and thus made no such finding[?]

            2.    Whether the Court’s judgment of sentence with
                  respect to § 3803(b)(5) (relating to DUI
                  while minor is passenger in vehicle) is illegal
                  insomuch as the jury was never instructed that
                  they needed to find a minor was present
                  beyond a reasonable doubt, the jury’s verdict
                  did not reflect such a finding, and thus the
                  maximum penalty allowed by law was 6
                  months[?]

            3.    Whether there was a knowing, intelligent and
                  voluntary waiver of the right to have the jury
                  find all elements of § 3803(b)(5) beyond a


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                  reasonable    doubt,    viz.   that    a   minor   was
                  present[?]

Appellant’s brief at 6 (emphasis in original).3

      Although appellant sets forth three questions presented, she advances

two arguments in her brief.      Appellant first challenges the legality of her

sentence. In support, she cites Alleyne v. United States, 133 S. Ct. 2151,

2163, 186 L. Ed. 2d 314,         (2013), wherein the United States Supreme

Court held that a criminal defendant has a constitutional right to have a jury

decide the existence of any fact, other than a prior conviction, beyond a

reasonable doubt if that fact triggers application of a mandatory minimum

sentence.

      Here, Alleyne has no application because DUI carries no mandatory

minimum sentence.        See 75 Pa.C.S.A. § 3803(a) (“[a]n individual who

violates section 3802(a) (relating to [DUI]) and has no more than one prior

offense commits a misdemeanor for which the individual may be sentenced

to a term of imprisonment of not more than six months and to pay a fine

under section 3804 (relating to penalties)”).           Although an individual who

commits DUI where a minor under 18 years of age was an occupant in the

vehicle   commits    a    first-degree    misdemeanor        under    75   Pa.C.S.A.

§ 3803(b)(5), a first-degree misdemeanor likewise carries no mandatory


3
  To the extent that appellant is raising an issue as to jury instructions, such
challenge is waived on appeal due to trial counsel’s lack of any request or
objection at trial. See Commonwealth v. Parker, 104 A.3d 17, 29
(Pa.Super. 2014); see also Pa.R.A.P. 302(b).


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minimum sentence. See 18 Pa.C.S.A. 106(b)(6) (“a person convicted [of a

first-degree misdemeanor] may be sentenced to a term of imprisonment,

the maximum of which is not more than five years”).

      Appellant then argues:

                   It is instantly apparent that the jury was never
            charged on the issue of whether a minor was present
            and the jury could not have found this element
            beyond a reasonable doubt.              Therefore, the
            maximum permissible sentence would have been
            6 months rendering the sentence actually imposed
            (i.e., 48 hours to 23 months[)] illegal. Accordingly,
            this matter must be remanded for resentencing
            within the statutory maximum of 6 months.

Appellant’s brief at 15.

      Our supreme court has held that:

            [I]n cases where the fact which increases the
            maximum penalty is not a prior conviction and
            requires a subjective assessment, anything less than
            proof beyond a reasonable doubt before a jury
            violates due process.      Additionally, any judicial
            finding which results in punishment beyond the
            statutory maximum must be submitted to a jury and
            proven beyond a reasonable doubt.

Commonwealth v. Aponte, 855 A.2d 800, 811 (Pa. 2004) (citation

omitted).

      Here, Aponte has no application because the trial court did not

increase appellant’s punishment based on a judicial finding that a minor was

present in the vehicle when appellant committed her DUI.              The record

reflects that the trial court sentenced appellant on the DUI to 48 hours to

6 months of incarceration.     The record further reflects that the trial court


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imposed a concurrent sentence of 9 to 23 months’ incarceration on the

involuntary manslaughter charge that appellant pled guilty to.    Therefore,

appellant has already received the relief that she now requests -- a legal

sentence of 6 months’ incarceration on her DUI conviction. Accordingly, this

claim lacks merit.

      In her second issue, appellant contends that the trial court abused its

discretion by not conducting a colloquy to determine that appellant’s

decision to stipulate to the fact that her 2-year-old son was in the vehicle

when she committed her DUI was knowing, intentional, and voluntary. We

need not decide this issue because the trial court did not sentence appellant

under 75 Pa.C.S.A. § 3803(b)(5) (person who commits DUI with minor in

vehicle commits a first-degree misdemeanor may be sentenced to 5 years of

imprisonment).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/10/2016




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