J. A20034/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
TODD A. HUGABOOM,                        :         No. 1569 MDA 2016
                                         :
                         Appellant       :


             Appeal from the Judgment of Sentence, June 29, 2016,
               in the Court of Common Pleas of Bradford County
               Criminal Division at No. CP-08-CR-0000129-2016


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED DECEMBER 08, 2017

        Todd A. Hugaboom appeals from the June 29, 2016 judgment of

sentence of 12 to 60 months’ imprisonment imposed after he pled guilty to

one count of driving under the influence (“DUI”) -- highest rate of alcohol.1

After careful review, we affirm the judgment of sentence.

        The relevant facts and procedural history of this case are as follows.

On May 2, 2016, appellant pled guilty to DUI -- highest rate of alcohol, his

fourth lifetime DUI conviction and third offense in ten years. On June 27,

2016, the trial court conducted a sentencing hearing, wherein it determined

that appellant was ineligible for county intermediate punishment (“CIP”)

under 42 Pa.C.S.A. § 9804(b)(5). (See notes of testimony, 9/27/16 at 6.)




1   75 Pa.C.S.A. § 3802(c).
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As noted, appellant was sentenced to 12 to 60 months’ imprisonment on

June 29, 2016.      Appellant filed a timely post-sentence to modify his

sentence and a hearing was conducted on August 8, 2016.         Following the

hearing, the trial court denied appellant’s motion on September 2, 2016.

This timely appeal followed on September 22, 2016. Although he was not

ordered to do so, appellant filed a concise statement of errors complained of

on appeal, in accordance with Pa.R.A.P. 1925(b), on September 26, 2016.

The trial court filed its Rule 1925(a) opinion on January 18, 2017.

      Appellant raises the following issue for our review:

                  Did the [trial] court err in interpreting
                  42 Pa.C.S.A. § 9804(b)(5) to bar consideration
                  of a [CIP] sentence for an otherwise qualified
                  offender because the underlying conviction is a
                  fourth lifetime DUI conviction?

Appellant’s brief at 7. Appellant further averred at the sentencing hearing

that a CIP sentence was necessary because he needed treatment for alcohol.

(See notes of testimony, 9/27/16 at 2-3.)

      Generally, our standard of review in assessing whether a trial court

has erred in fashioning a sentence is well settled.

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge, and a sentence will not be
            disturbed on appeal absent a manifest abuse of
            discretion. In this context, an abuse of discretion is
            not shown merely by an error in judgment. Rather,
            [a]ppellant must establish, by reference to the
            record, that the sentencing court ignored or
            misapplied the law, exercised its judgment for
            reasons of partiality, prejudice, bias or ill will, or
            arrived at a manifestly unreasonable decision.


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Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation

omitted), appeal denied, 117 A.3d 297 (Pa. 2015).

        When an appellant’s claim implicates the discretionary aspects of his

sentence, as is the case here, the right to appellate review is not absolute.

See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).

Rather, an appellant challenging the discretionary aspects of his sentence

must invoke this court’s jurisdiction by satisfying the following four-part

test:

             (1) whether the appeal is timely; (2) whether
             appellant preserved his issue; (3) whether
             appellant’s brief includes a concise statement of the
             reasons relied upon for allowance of appeal with
             respect to the discretionary aspects of sentence; and
             (4) whether the concise statement raises a
             substantial question that the sentence is appropriate
             under the sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

        Here, the record reveals that appellant filed a timely notice of appeal

on September 22, 2016. The record further reflects that appellant preserved

his sentencing claim in a timely post-sentence motion and included a

statement     in   his    brief   that   comports   with   the   requirements   of

Pa.R.A.P. 2119(f).       (See appellant’s brief at 8-9.)   Accordingly, we must

determine whether appellant has raised a substantial question.




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      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”     Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)

(citation omitted).     “At a minimum, the Rule 2119(f) statement must

articulate what particular provision of the code is violated, what fundamental

norms the sentence violates, and the manner in which it violates that norm.”

Zirkle, 107 A.3d at 132 (citation omitted).

      Instantly, the crux of appellant’s claim concerns the trial court’s

application of the CIP eligibility statute in fashioning his sentence.     This

statute provides, in relevant part, as follows:

            (b)   Eligibility.--

                  (5)    A defendant subject to 75 Pa.C.S. § 3804
                         (relating to penalties) or 30 Pa.C.S.
                         § 5502(c.1) may only be sentenced to
                         county intermediate punishment for a
                         first, second or third offense under
                         75 Pa.C.S. Ch. 38 (relating to driving
                         after imbibing alcohol or utilizing drugs)
                         or 30 Pa.C.S. § 5502.

42 Pa.C.S.A. § 9804(b)(5).

      Appellant contends that “[t]he [trial] court’s interpretation of the

sentencing code regarding eligibility for CIP was inconsistent with the actual

[Section 9804(b)(5)],” and as a result, he was “denied a fair opportunity to

be eligible for a CIP sentence which he was otherwise qualified for.”

(Appellant’s brief at 8-9.) Appellant’s assertion that the trial court’s actions

were inconsistent with the sentencing code raises a substantial question for


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our review. See Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super.

2012) (stating, “[a] substantial question exists only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process[]”), appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).

Accordingly, we proceed to consider the merits of appellant’s claim.

        Appellant maintains that Section 9804(b)(5) applies to defendants that

are subject to the penalties set forth in 75 Pa.C.S.A. § 3804, and that under

Section 3804, DUI offenses are calculated pursuant to the ten-year

look-back provision set forth in 75 Pa.C.S.A. § 3806(b).2 (Appellant’s brief


2   Section 3806(b) provides as follows:

              (b)   Timing.--

                    (1)   For purposes of sections 1553(d.2)
                          (relating to occupational limited license),
                          1556 (relating to ignition interlock
                          limited license), 3803 (relating to
                          grading), 3804 (relating to penalties)
                          and 3805 (relating to ignition interlock),
                          the prior offense must have occurred:

                          (i)    within 10 years prior to the
                                 date of the offense for which
                                 the   defendant    is   being
                                 sentenced; or

                          (ii)   on or after the date of the
                                 offense    for  which   the
                                 defendant      is     being
                                 sentenced.


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at 13-14.)     Thus, appellant contends that because the first of his four

lifetime DUI convictions occurred more than ten years prior to the date of his

most recent DUI offense, the instant conviction should be classified as his

third offense under Section 9804(b)(5), thereby making him eligible for CIP.

(Id. at 14.) We disagree.

      This court has long recognized that,

             [i]n all matters involving statutory interpretation, we
             apply the Statutory Construction Act, 1 Pa.C.S.
             § 1501 et seq., which provides that the object of
             interpretation and construction of statutes is to
             ascertain and effectuate the intention of the General
             Assembly.

                   Generally, a statute’s plain language provides
             the best indication of legislative intent. We will only
             look beyond the plain language of the statute when
             words are unclear or ambiguous, or the plain
             meaning would lead to a result that is absurd,
             impossible of execution or unreasonable. Therefore,
             when ascertaining the meaning of a statute, if the
             language is clear, we give the words their plain and
             ordinary meaning.




                   (2)   The court shall calculate the number of
                         prior offenses, if any, at the time of
                         sentencing.

                   (3)   If the defendant is sentenced for two or
                         more offenses in the same day, the
                         offenses shall be considered prior
                         offenses within the meaning of this
                         subsection.

75 Pa.C.S.A. § 3806(b).


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Commonwealth v. Popielarcheck, 151 A.3d 1088, 1091-1092 (Pa.Super.

2016) (internal quotation marks and some citations omitted), appeal

granted, 2017 WL 3712283 (Pa. 2017).

      Upon review, we discern no abuse of discretion on the part of the trial

court in concluding that appellant was not eligible to receive a CIP sentence.

As discussed, appellant’s instant DUI offense was his fourth lifetime DUI

conviction. The unambiguous language of Section 9804(b)(5) clearly reveals

that a criminal defendant “may only be sentenced to [CIP] for a first,

second or third offense” under [the DUI statute.]”               42 Pa.C.S.A.

§ 9804(b)(5) (emphasis added).       Contrary to appellant’s contention, it is

irrelevant under the plain language of Section 9804(b)(5) that not all of

appellant’s prior DUI convictions occurred within the past ten years.      The

plain language of the statute does not contain any restrictive clause limiting

CIP eligibility to a ten-year look-back period.

      Here, the trial court sentenced appellant to 12 to 60 months’

imprisonment, which was well within the standard-range of the Sentencing

Guidelines. In sentencing appellant, the trial court indicated that it reviewed

the pre-sentence investigation (“PSI”) report. (Notes of testimony, 9/27/16

at 1.) Where the trial court has the benefit of a PSI report, “we shall . . .

presume that the sentencing judge was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.” Commonwealth v. Antidormi, 84 A.3d



                                      -7-
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736, 761 (Pa.Super. 2014) (citation omitted), appeal denied, 95 A.3d 275

(Pa. 2014). Based on the foregoing, we conclude that appellant’s challenge

to the discretionary aspects of his sentence must fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2017




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