J-A33002-16

                                   2017 PA Super 59



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RUSSELL ROBIN WATSON

                            Appellant                 No. 1875 WDA 2015


           Appeal from the Judgment of Sentence November 4, 2015
               In the Court of Common Pleas of Greene County
             Criminal Division at No(s): CP-30-CR-0000028-2015


BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

OPINION BY LAZARUS, J.:                               FILED MARCH 08, 2017

        Russell Robin Watson appeals from the judgment of sentence entered

in the Court of Common Pleas of Greene County.             After our review, we

vacate and remand with instructions.

        On June 11, 2015, Watson entered an open plea of no contest to

Driving Under the Influence (DUI) (Second Offense- [Within] Ten Years),1

Driving on Right Side of Roadway,2 and Disregard Traffic Lane.3 The court
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1), (c).
2
    75 Pa.C.S. § 3301(a)(1).
3
    75 Pa.C.S. § 3309.

           Whenever any roadway has been divided into two or more
           clearly marked lanes for traffic the following rules in
(Footnote Continued Next Page)
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ordered a presentencing investigation report (PSI), which was filed on July

7, 2015.        The PSI included a               DUI Drug and Alcohol Assessment

(Assessment), dated January 13, 2015.                   The Assessment included a

recommendation for treatment: “If he is found guilty he would be required

to   complete    the     DUI    Outpatient        Treatment   Program   at   the   SPHS

[Southwestern Pennsylvania Human Services] CARE Center. He would also

need to complete the AAHS [Alcohol Highway Safety School], through

Greene County Probation Office.”                 DUI Drug and Alcohol Assessment,

1/13/15.

      Nine months later, on September 1, 2015, President Judge Farley

Toothman held a sentencing hearing.                There, the Commonwealth argued

that the mandatory sentence of five years’ imprisonment was appropriate.

See 75 Pa.C.S.A. § 3804(d).4            The court accepted into evidence the PSI,

which included Watson’s statement that he had “completed outpatient


                       _______________________
(Footnote Continued)

           addition to all others not inconsistent therewith shall
           apply:    . . . A vehicle shall be driven as nearly as
           practicable entirely within a single lane and shall not be
           moved from the lane until the driver has first ascertained
           that the movement can be made with safety.

75 Pa.C.S.A. § 3804(d).
4
  Section 3803(b)(4) of the Vehicle Code provides that an individual who
violates section 3802(c) and has one or more prior offenses commits a
misdemeanor of the first degree. 75 Pa.C.S.A. § 3803(b)(4). A person
convicted of a misdemeanor of the first degree may be sentenced to a term
of imprisonment, the maximum of which is not more than five years.
18 Pa.C.S.A. § 106(b)(6).


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counseling at SPHS CARE, having attended from February 24, 2015 to April

15, 2015.” Presentence Investigation, 7/7/15, at 4.      The trial court stated

that it “recognized the record indicated that [Watson] had completed all

provisions and recommendations of his Drug and Alcohol Assessment, prior

to sentencing[.]” Trial Court Opinion, 4/25/16, at 2.5

       The court sentenced Watson to five years of County Intermediate

Punishment (CIP) supervision. N.T. Sentencing Hearing, 9/1/15, at 33.

Notably, the court stated:

       The Court recognizes that the record indicates you have
       complied with all provisions and recommendations of your
       drug and alcohol assessment, and yet the Court encourages
       the Defendant to seek treatment as is in his best interest. . . .
       And further, we find you eligible to serve a sentence of County
       Intermediate Punishment, and we direct that you become
       familiar with the County Intermediate Punishment rules and
       regulations and abide by them. . . . [H]aving found you eligible
       to serve a sentence of County Intermediate Punishment
       supervision, more specifically defined as the first 180 days on
       house arrest with GPS and alcohol monitoring device attached,
       with privileges of work release and furlough as reasonably
       necessary to care for your family and child’s medical and mental
       health matters, and thereafter, being four year[s] and 6 months,
       we order you to be supervis[ed] according to the regular rules
       and regulations. . . . This is a total sentence then of five years
       of County Intermediate Punishment, with 180 days of house

____________________________________________


5
  Watson was subject to the Assessment by virtue of his prior conviction,
within ten years, for an offense under section 3802, in particular, section
3802(c) (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.”). 75 Pa.C.S.A. § 3802(c).


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     arrest with privileges of furlough as ordered, fine of $1,550 and
     225 hours of community service.

Id. at 32-33 (emphasis added).

     On September 3, 2015, the court entered an order vacating its

September 1, 2015 sentencing order, noting it had failed to give Watson his

right of allocution.   At resentencing on November 4, 2015, the court

confirmed the terms of the September 1, 2015 sentencing order. See N.T.

Resentencing Hearing, 11/4/15, at 15.     In between the January 13, 2015

assessment and the resentencing hearing on November 4, 2015, Watson

had completed his Repeat Offenders Program and all other recommended

treatment. No further treatment was recommended.

     At the resentencing hearing, the court noted, in particular, that

     with regard to the Court being on the record with regard to
     having sentenced the Defendant to a maximum term of 60
     months, the Court does wish to confirm to the record it is
     because this Court is bound by the statute and considers
     the January 13, 2015 drug and alcohol assessment to
     mandate the Court’s sentence to a maximum term, and
     recognizing that in doing so, the Court has given more weight to
     the January 13, 2015 assessment than the April 15, 2015
     assessment.

Id. at 15-16 (emphasis added).

     Watson filed a motion for reconsideration, which the trial court denied.

Watson filed this timely appeal.   He argues that, because he completed

counseling and assessment pursuant to 75 Pa.C.S.A. § 3814, and no further

treatment was recommended, the court was not bound by statute to impose




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a mandatory sentence of five years’ CIP6 supervision.        Watson claims that

the mandatory five years is applicable only if further treatment is necessary,

and that, otherwise, the court has discretion with respect to the term of CIP

supervision.    It was the court’s understanding that it had no discretion to

sentence less than 60 months.           See N.T. Sentencing Hearing, 11/4/15, at

19-20.

       Watson raises the following issues for our review:

          1. Was there a Drug and Alcohol Assessment performed
             pursuant to 75 Pa.C.S.A. § 3814(2) indicating [Watson]
             was in need of further treatment?

          2. Did the lower court err in relying upon a Drug and Alcohol
             Assessment which was not performed pursuant to 75
             Pa.C.S.A. § 3814 in finding that the [Watson] was in need
             of further treatment despite the fact he had done all
             treatment mentioned in the only assessment that existed
             at the time of sentencing?

          3. Was there an abuse of discretion in failing to equitably
             apply the statutory requirements of 75 Pa.C.S.A. §§
             3804(d) and 3814?

Appellant’s Brief, at 8-9.

       This case involves the relationship between the mandatory sentencing

provisions of the DUI statute and the discretionary sentencing provisions of

the Sentencing Code.          This presents a question of law.      “As with all



____________________________________________


6
   County intermediate punishment is a statutorily authorized sentencing
alternative pursuant to 42 Pa.C.S.A. § 9721(a)(6). Commonwealth v.
Williams, 941 A.2d 14, 21 (Pa. Super. 2008) (en banc ).


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questions of law, the appellate standard of review is de novo[.]”                   In re

Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en banc).

      In Commonwealth v. Williams, 941 A.2d 14 (Pa. Super. 2008) (en

banc),    this   Court   addressed       the   issue   of    whether,   notwithstanding

mandatory DUI penalties, the sentencing court retains the discretion to

impose CIP in qualified programs for qualified offenders.                  Williams was

convicted of DUI under 75 Pa.C.S. § 3802(a)(1), a second offense, an

ungraded misdemeanor, not involving a BAC refusal, but involving an

accident. The court sentenced Williams to incarceration for a period of thirty

days, followed by five       months’ probation.          The court directed that “all

periods    of    incarceration   shall    be    served      under   qualified   restrictive

intermediate punishment on house arrest with electronic monitoring with

drug and alcohol testing monitored by the Mercer County Intermediate

Punishment Program [CIP] if [Williams] qualifies[.]” Williams, 941 A.2d at

20.

      On appeal, we were asked to decide whether the sentencing court had

the statutory authority to impose a sentence under the CIP program, “in

light of the mandatory sentencing provisions of the DUI statute, which call

for a fixed term of imprisonment.”             Id. at 18.     We held the court acted

within its statutory authority and discretion when it imposed CIP for

Williams’ second DUI offense, so long as the program is a qualified

county intermediate punishment program and Williams is a qualified




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“eligible offender.”7 Id. at 26, citing Commonwealth v. Syno, 791 A.2d

363 (Pa. Super. 2002) (emphasis added).

       Recently, in Commonwealth v. Popielarcheck, 2016 PA Super. 276,

--- A.3d --- (filed December 6, 2016), this Court held, as a matter of first

impression, that “where a sentencing court sentences a DUI defendant to

County Intermediate Punishment pursuant to 42 Pa.C.S. § 9763, the

sentencing court is not required to impose a mandatory maximum

sentence pursuant to 75 Pa.C.S. § 3804(d).”                   Id. at *1.   There,

Popielarcheck pled guilty to two counts of DUI, (Second Offense – [Within]

Ten Years),8 and related offenses.               The court ordered a presentence

investigation and modified bail to require Popielarcheck to report for

inpatient drug and alcohol therapy and to complete all recommended

treatment.      The parties did not dispute that Popielarcheck was a qualified

offender and thus she was required to undergo “a full assessment for alcohol

and drug addiction,” pursuant to section 3814.9           The parties also did not
____________________________________________


7
  See Commonwealth v. Arest, 734 A.2d 910 (Pa. Super. 1999) (en banc)
(holding sentence of intermediate punishment must be pursuant to approved
county intermediate punishment program). See also 204 Pa.Code § 303.12
(setting forth regulations and statutes that govern operation of and eligibility
for county intermediate punishment programs).
8
  The parties did not dispute that this was Popielarcheck’s second DUI in ten
years, that it was graded as a misdemeanor of the first degree, and that she
faced a maximum sentence of five years.
9
  Specifically, the full Assessment under section 3814(2) applies under the
following circumstances:

(Footnote Continued Next Page)

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dispute that, following the assessment, it was determined that Popielarcheck

was in need of further treatment, and that she was eligible for a

sentence of CIP.




                       _______________________
(Footnote Continued)

If a defendant is convicted or pleads guilty or no contest to a violation of
section 3802 (relating to driving under influence of alcohol or controlled
substance), the following apply prior to sentencing:

(1) The defendant shall be evaluated under section 3816(a) (relating to
requirements for driving under influence offenders) and any other additional
evaluation techniques deemed appropriate by the court to determine the
extent of the defendant's involvement with alcohol or other drug and to
assist the court in determining what type of sentence would benefit the
defendant and the public.

(2) The defendant shall be subject to a full assessment for alcohol and drug
addiction if any of the following subparagraphs apply:


      (i) The defendant, within ten years prior to the offense for which
      sentence is being imposed, has been sentenced for an offense
      under:

          (A) section 3802;

          (B) former section 3731; or

          (C) an equivalent offense in another jurisdiction.

      (ii) Either:

          (A) the evaluation under paragraph (1) indicates there is a
          need for counseling or treatment; or

          (B) the defendant's blood alcohol content at the time of
          the offense was at least .16%.


75 Pa.C.S. § 3814(2).


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       The court sentenced Popielarcheck to a term of two years of CIP, with

120 days to be served on house arrest.10             The district attorney argued,

unsuccessfully, that the court was required to sentence to the statutory

maximum, notwithstanding the court’s discretion to impose a sentence of

CIP.    See 42 Pa.C.S. § 9763.11               The Commonwealth challenged the
____________________________________________


10
  We note that Popielarcheck was sentenced by President Judge Farley
Toothman, who also sentenced Watson in the instant case.
11
    Section 9763 of the Sentencing Code addresses CIP sentencing, in
relevant part, as follows:

       § 9763. Sentence of county intermediate punishment

       (a)    General rule.— In imposing a sentence of county
              intermediate punishment, the court shall specify at the
              time of sentencing the length of the term for which the
              defendant is to be in a county intermediate punishment
              program established under Chapter 98 (relating to county
              intermediate punishment) or a combination of county
              intermediate punishment programs. The term may not
              exceed the maximum term for which the defendant could
              be confined and the program to which the defendant is
              sentenced. The court may order a defendant to serve a
              portion of the sentence under section 9755 (relating to
              sentence of partial confinement) or 9756 (relating to
              sentence of total confinement) and to serve a portion in a
              county intermediate punishment program or a combination
              of county intermediate punishment programs.

                                           ***

       (c) Restriction.—

          (1) Any person receiving a penalty imposed pursuant to 75
          Pa.C.S. § 1543(b) (relating to driving while operating
          privilege is suspended or revoked), former 75 Pa.C.S. §
          3731 (relating to driving under influence of alcohol or
(Footnote Continued Next Page)

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sentence in post-sentence motions, claiming the court erred by: (1) not

imposing the statutorily mandated fine; (2) not mandating electronic

monitoring as part of the sentence of house arrest; and (3) not imposing a

maximum term of five years. The Commonwealth also claimed that in light

of the circumstances, a sentence of less than five years of supervision was

an abuse of discretion. Popielarcheck, supra at *1. Thereafter, the court

amended its sentencing order to correct the fine and to include house arrest
                       _______________________
(Footnote Continued)

          controlled substance) or 75 Pa.C.S. § 3804 (relating to
          penalties) for a first, second or third offense under 75
          Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or
          utilizing drugs) may only be sentenced to county
          intermediate punishment after undergoing an
          assessment under 75 Pa.C.S. § 3814 (relating to
          drug and alcohol assessments).

          (2) If the defendant is determined to be in need of drug
          and alcohol treatment, the defendant may only be
          sentenced to county intermediate punishment which
          includes participation in drug and alcohol treatment under
          75 Pa.C.S. § 3815(c) (relating to mandatory sentencing).
          The defendant may only be sentenced to county
          intermediate punishment in:

             (i) a residential inpatient program or a residential
             rehabilitative center;

             (ii) house arrest with electronic surveillance;

             (iii) a partial confinement program such as work
             release, work camp and halfway facility; or

             (iv) any combination of the programs set forth in this
             paragraph.

                                           ***

42 Pa.C.S.A. § 9763(a), (c)(1)-(2) (emphasis added).



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with electronic surveillance, adding that “[o]therwise, the sentence is legal

and a proper exercise of judicial discretion.” Id. at *2.

        The Commonwealth appealed, and this Court discussed the interplay of

the relevant sentencing statutes, in particular section 3804 of the DUI

statute, 75 Pa.C.S. § 3804, and sections 9721 and 9763 of the Sentencing

Code.    42 Pa.C.S. §§ 9721, 9763.     Despite the fact that the assessment

indicated Popielarcheck was in need of further treatment, and noting that

the purpose of the maximum sentence mandate is to ensure that offenders

“complete needed treatment,” Commonwealth v. Taylor, 104 A.3d 479,

492 (Pa. 2014), we clarified that the court sentenced Popielarcheck under

the alternative sentencing provisions under Chapter 97 of the Sentencing

Code, not under the mandatory maximum provision in Chapter 38 of the

Vehicle Code. Popielarcheck, supra at *4. We stated:

        Relevant to the instant matter, Section 3814(d) provides that,
        “[i]f a person is sentenced pursuant to this chapter and,
        after the initial assessment required by Section 3814(1),
        the person is determined to be in need of additional
        treatment pursuant to Section 3814(2), the judgment
        shall impose a minimum sentence as provided by law and
        maximum sentence equal to the statutorily available
        maximum.” 75 Pa.C.S. § 3804(d). As our Supreme Court has
        recognized, the purpose of the maximum sentence mandate is to
        ensure     that   offenders   “complete    needed    treatment.”
        Commonwealth v. Taylor, 628 Pa. 547, 104 A.3d 479, 492
        (Pa. 2014).      At first glance, the statutes permitting CIP
        sentences and the statutes mandating minimum DUI sentences
        may seem inconsistent. However, as this Court has recognized,
        the legislature adopted CIP “to give judges another sentencing
        option” specifically one that “would lie between probation and
        incarceration with respect to sentencing severity; to provide a
        more appropriate form of punishment/treatment for certain
        types of non-violent offenders; to make the offender more

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       accountable to the community; and to help reduce the county
       jail overcrowding problem while maintaining public safety.”
       [Commonwealth v.] Williams, 941 A.2d [14,] 21 [(Pa. Super.
       2008) (en banc)] (quotation omitted).

Popielarcheck, supra at *3 (emphasis added).              Relying on Williams,

supra, we explained that sections 9721 and 9763 explicitly permit a

sentencing court to consider intermediate punishment for DUI offenders “for

first, second, or third offenses, in spite of any mandatory minimum sentence

elsewhere prescribed by law.”             Id., citing Williams, 941 A.2d at 21

(emphasis added).

       Thus, as the Williams Court and, more recently, the Popielarcheck

Court, have recognized, the DUI statute and the Sentencing Code can be

read together to permit a sentencing court to avoid a mandatory minimum

sentence in favor of a sentence of CIP for certain eligible offenders. In other

words, even if found in need of further treatment, the court may sentence

under the Sentencing Code and avoid the mandatory maximum under the

Vehicle Code, Popielarcheck, supra, provided, of course, the defendant is

eligible.12   See note 6, supra.        Cf. Commonwealth v. Sarapa, 13 A.3d
____________________________________________


12
  In Commonwealth v. Hoffman, 123 A.3d 1065 (Pa. Super. 2015), this
Court stated:

       The legislative intent in adopting [CIP] as a sentencing
       alternative was to give judges another sentencing option which
       would lie between probation and incarceration with respect to
       sentencing severity; to provide a more appropriate form of
       punishment/treatment for certain types of non-violent offenders;
       maintaining public safety. . . . The grant or denial of a
       defendant's request for [CIP] largely within the sound discretion
(Footnote Continued Next Page)

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961 (Pa. Super. 2011) (holding, as a matter of first impression, that court

lacked authority to restrict eligibility to intermediate punishment program by

excluding DUI offenders, who were eligible based on statutory criteria).

      Here, the court acknowledged that Watson had completed the

treatment recommended by the Drug and Alcohol Assessment.               Although

the court found Watson eligible for CIP,13 and sentenced him pursuant to the

                       _______________________
(Footnote Continued)

      of the trial court. The same discretion applies to [CIP] in
      the context of a qualified first, second or third DUI
      offender, regardless of the mandatory sentence set forth
      in the DUI statute, because the specific provisions in 42
      Pa.C.S. §§ 9763 and 9804 permit the court to sentence
      such offenders to [CIP] after they have undergone
      assessment—notwithstanding the mandatory sentencing
      provisions of Section 3804 of the DUI statute.

Hoffman, 123 A.3d at 1070 (citations and quotations omitted) (emphasis
added).
13
   Section 9804 of the Sentencing Code describes CIP and eligibility in
pertinent part as follows:

      § 9804. County intermediate punishment programs

      (a) Description.—County intermediate punishment program
      options shall include the following:

          (1) Restrictive intermediate punishments providing for the
          strict supervision of the offender including programs that:

          (i) house the offender full or part time;

          (ii) significantly restrict the offender’s movement and
          monitor the offender's compliance with the program; or

          (iii) involve a combination of programs that meet the
          standards set forth under subparagraphs (i) and (ii).
(Footnote Continued Next Page)

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J-A33002-16

                       _______________________
(Footnote Continued)

          (2) When utilized in combination with restrictive
          intermediate punishments, restorative sanctions providing
          for nonconfinement sentencing options that:

          (i) Are the least restrictive in terms of the constraint of the
          offender's liberties.

          (ii) Do not involve the housing of the offender, either full
          or part time.

          (iii) Focus on restoring the victim to pre-offense status.

      (b)    Eligibility.—

          (1) No person other than the eligible offender shall be
          sentenced to a county intermediate punishment program.

          (2) The Pennsylvania Commission on Sentencing shall
          employ the term “eligible offender” to further identify
          offenders who would be appropriate for participation in
          county intermediate punishment programs. In developing
          the guidelines, the commission shall give primary
          consideration to protection of the public safety.

                                           ***

          (4)(i) Any person receiving a penalty imposed pursuant to
          75 Pa.C.S. § 1543(b) (relating to driving while operating
          privilege is suspended or revoked), 3804 (relating to
          penalties) or 3808(a)(2) (relating to illegally operating a
          motor vehicle not equipped with ignition interlock) shall
          undergo an assessment under 75 Pa.C.S. § 3814 (relating
          to drug and alcohol assessments).

          (ii) If the defendant is determined to be in need of drug
          and alcohol treatment, a sentence to county intermediate
          punishment shall include participation in drug and alcohol
          treatment under 75 Pa.C.S. § 3815(c) (relating to
          mandatory sentencing). The defendant may only be
          sentenced to county intermediate punishment in:

             (A) a residential inpatient program or a residential
             rehabilitative center;

             (B) house arrest with electronic surveillance;
(Footnote Continued Next Page)

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alternative sentencing provisions in the Sentencing Code, see 42 Pa.C.S. §

9804, the court believed it was bound to impose the CIP sentence for the

mandatory       maximum         term     provided     for   in   the   Vehicle   Code.

Popielarcheck has clarified this issue.             Therefore, because the court was

under the misapprehension that it was bound to impose a five-year

maximum, we vacate the sentence and remand for resentencing in

accordance with this opinion.

      Judgment of sentence vacated.                   Case remanded.       Jurisdiction

relinquished.




                       _______________________
(Footnote Continued)

             (C) a partial confinement program such as work
             release, work camp and halfway facility; or

             (D) any combination of the programs set forth in this
             subparagraph.

                                           ***

          (5) A defendant subject to 75 Pa.C.S.A. § 3804 (relating to
          penalties) may only be sentenced to county intermediate
          punishment for a first, second, or third offense.

42 Pa.C.S.A. § 9804(b)(1)-(2), (4)-(5) (emphasis added).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2017




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