J-S47029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

DENNIS JARED HYNES

                         Appellant                   No. 1587 MDA 2015


          Appeal from the Judgment of Sentence August 14, 2015
             In the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0004484-2014


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED JULY 06, 2016

      Dennis Hynes appeals from his judgment of sentence for driving under

the influence (“DUI”) in violation of 75 Pa.C.S. §§ 3802(d)(1)(i) and

3802(d)(2). The trial court and the Commonwealth agree with Hynes that

his sentence as a second time DUI offender violates his rights under the Ex

Post Facto clauses of the United States and Pennsylvania Constitutions.

Accordingly, we reverse Hynes’ judgment of sentence and direct the trial

court to sentence him as a first time offender.

      Hynes also argues that his sentences under subsections 3802(d)(1)(i)

and 3802(d)(2) should merge for sentencing purposes because they took

place during a single criminal act. For the reasons provided below, we hold

that these offenses do not merge.

      The following chronology is relevant:

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     On January 28, 2014, Hynes was arrested in Columbia County for DUI.

     On October 7, 2014, Hynes was arrested in Luzerne County, once

again for DUI. On November 10, 2014, Hynes was charged in the Luzerne

County case with one count of DUI under 75 Pa.C.S. § 3802(d)(1)(i) and one

count of DUI under 75 Pa.C.S. § 3802(d)(2). Both counts arose from the

incident on October 7, 2014.      Hynes also was charged with one count of

possession of a small amount of marijuana for personal use under 35 P.S. §

780-113(a)(31)(i).

     On January 12, 2015, Hynes was sentenced in the Columbia County

case as a first time DUI offender. Hynes did not appeal from his Columbia

County sentence.

     On May 29, 2015, Hynes pled guilty in the Luzerne County case to one

count of DUI under section 3802(d)(1)(i), one count under section

3802(d)(2) and one count of possession of a small amount of marijuana for

personal use.

     The Luzerne County Probation Department prepared a Pre-Sentence

Investigation report recommending that as a result of his Columbia County

sentence, the Luzerne County court should sentence Hynes as a second time

DUI offender under the December 26, 2014 amendment to 75 Pa.C.S. §

3806(b). Hynes filed a detailed memorandum contending that application of

amended section 3806 violated his rights under the Ex Post Facto Clause of

the United States Constitution.




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     On August 14, 2015, the Luzerne County court applied amended

section 3806 and sentenced Hynes as a second time DUI offender.          The

court refused to merge the DUI counts for purposes of sentencing and

sentenced Hynes to two concurrent terms of 18 months’ intermediate

punishment with the first 90 days under house arrest.        The court also

sentenced Hynes to six months’ consecutive probation for possession of a

small amount of marijuana for personal use. Hynes filed a timely notice of

appeal, and both Hynes and the Luzerne County court complied with

Pa.R.A.P. 1925.

     Hynes raises two issues in this appeal: (1) his sentence as a second

time DUI offender violates the Ex Post Facto clauses of the United States and

Pennsylvania Constitutions; and (2) his two DUI counts should merge for

purposes of sentencing.

     With regard to Hynes’ first argument, the Commonwealth concedes in

its appellate brief that Hynes’ sentence as a second time offender violates

his rights under the Ex Post Facto clauses.      The Luzerne County court

concedes the same point in its Pa.R.A.P. 1925 opinion. See id. at 2 (“given

the Commonwealth’s position, and a review of the current law, this Court

agrees that [section 3806(b)] cannot be retroactively applied”). Based on

these stipulations, we will reverse Hynes’ judgment of sentence and remand




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with directions that the trial court resentence Hynes as a first-time DUI

offender.1
____________________________________________


1
  For the sake of completeness, we will summarize Hynes’ Ex Post Facto
objection to application of the December 26, 2014 amendment to 75 Pa.C.S.
§ 3806.

The December 26, 2014 amendment added the following italicized text to
original section 3806:

       § 3806. Prior offenses

       (a) General rule.-- Except as set forth in subsection (b), the term
       “prior offense” as used in this chapter shall mean a conviction,
       adjudication of delinquency, juvenile consent decree, acceptance of
       Accelerated Rehabilitative Disposition or other form of preliminary
       disposition before the sentencing on the present violation for any of
       the following:

       (1)    an offense under section 3802 (relating to driving under
              influence of alcohol or controlled substance);

       (2) an offense under former section 3731;

       (3) an offense substantially similar to an offense under paragraph (1)
       or (2) in another jurisdiction; or

       (4) any combination of the offenses set forth in paragraph (1), (2) or
       (3).

       (b) Repeat offenses within ten years.--The calculation of prior
       offenses for purposes of sections 1553(d.2) (relating to occupational
       limited license), 3803 (relating to grading) and 3804 (relating to
       penalties) shall include any conviction, whether or not judgment of
       sentence has been imposed for the violation, adjudication of
       delinquency, juvenile consent decree, acceptance of Accelerated
       Rehabilitative Disposition or other form of preliminary disposition
       within the ten years before the sentencing on the present violation for
       any of the following:

(Footnote Continued Next Page)


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      Hynes’ second issue -- whether his DUI counts under subsections

3802(d)(1)(i) and d)(2) merge for purposes of sentencing -- implicates the

legality of his sentence.       Thus, our standard of review is de novo and the



                       _______________________
(Footnote Continued)

      (1) an offense under section 3802;

      (2) an offense under former section 3731;

      (3) an offense substantially similar to an offense under paragraph (1)
      or (2) in another jurisdiction; or

      (4) any combination of the offenses set forth in paragraph (1), (2) or
      (3).

Id. (emphasis added).

Hynes argued that at the time of his Columbia and Luzerne County incidents,
the pre-December 26, 2014 version of section 3806 was in effect. Under
this version, a prior DUI incident would not constitute a “prior offense”
unless the defendant was sentenced for the prior incident at the time of the
new offense. Since Hynes had not been sentenced for his Columbia County
offense at the time of his Luzerne County offense, he could only be
sentenced as a first time offender in Luzerne County. Under amended
section 3806, a prior DUI incident would constitute a “prior offense” if the
defendant was sentenced for the prior incident at the time of sentencing for
the new offense. Under this amendment, Hynes could be sentenced as a
second time DUI offender in Luzerne County, because he had already been
sentenced for DUI in Columbia County at the time of sentencing in Luzerne
County.

Hynes argued that application of amended section 3806 violated the Ex Post
Facto Clause, because the prior version of section 3806 had been in effect at
the time of his Columbia and Luzerne County offenses, and amended section
3806 did not take effect until after both offenses. The trial court and the
Commonwealth now concede that Hynes’ position on this issue is correct.
Thus, the Luzerne County court must resentence Hynes as a first-time DUI
offender.



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scope of our review is plenary. See Commonwealth v. Collins, 764 A.2d

1056, 1057 n. 1 (Pa.2001).

      Section 9765 of the Sentencing Code provides:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the
      other offense. Where crimes merge for sentencing purposes, the
      court may sentence the defendant only on the higher[-]graded
      offense.

42 Pa.C.S. § 9765. Accordingly, merger is appropriate only when two distinct

criteria are satisfied: (1) the crimes arise from a single criminal act; and (2)

all of the statutory elements of one of the offenses are included within the

statutory elements of the other. Id. “[T]he plain language of Section 9765

precludes courts from merging sentences when each offense contains a

statutory element that the other does not.” Commonwealth v. Raven, 97

A.3d 1244, 1250 (Pa.Super.2014).          This precept applies whether the

offenses are codified in different statutes or in different subsections of the

same statute.     See Raven, 97 A.3d at 1251-52 (different statutes);

Commonwealth v. Rhoades, 8 A.3d 912, 918 (Pa.Super.2010) (different

subsections of same statute).

      75 Pa.C.S. § 3802(d)(1)(i) reads:

      Controlled substances - An individual may not drive, operate, or
      be in actual physical control of the movement of a vehicle under
      any of the following circumstances: (1) there is in the
      individual's blood any amount of a: (i) Schedule I Controlled
      Substance, as defined in the Act of April 14, 1972 (P.L. 233, No.


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      64), known as the Controlled Substance, Drug Device and
      Cosmetic Act.

Id.

      75 Pa.C.S. § 3802(d)(2) reads:

      Controlled substances - An individual may not drive, operate, or
      be in actual physical control of the movement of a vehicle under
      any of the following circumstances: [...] (2) The individual is
      under the influence of a drug or a combination of drugs to a
      degree which impairs the individual's ability to safely drive,
      operate, or be in actual, physical control of the movement of the
      vehicle.

Id.

      Each of these subsections contains an element that the other does not.

Section 3802(d)(1)(i) requires proof that the defendant has any amount of a

Schedule I controlled substance in his blood; section 3802(d)(2) requires

proof that the defendant is under the influence of a drug or combination of

drugs to a degree which impairs his ability to safely drive, operate or be in

actual physical control of the movement of his vehicle. As a result of these

different elements, the Commonwealth can prove a violation of one

subsection without proving a violation of the other. If the Commonwealth

proves that the defendant has any amount of a Schedule I controlled

substance in his blood but fails to prove that he was under the influence, this

will make out a section 3802(d)(1)(i) violation but not a section 3802(d)(2)

violation.   Conversely, if the Commonwealth proves that the defendant is

under the influence of a non-Schedule I drug to a degree that impairs his

ability to safely drive his vehicle, this will make out a section 3802(d)(2)

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violation but not a section 3802(d)(1)(i) violation. Therefore, the trial court

correctly held that Hynes’ section 3802(d)(1)(i) violation does not merge

with his section 3802(d)(2) violation.     See Raven, 97 A.3d at 1251-52

(count for accidents involving death or personal injury (AIDPI) while not

properly licensed, and count for driving while operating privileges suspended

or revoked-DUI related (DWS–DUI related) were not subject to merger for

sentencing purposes, where DWS–DUI related count imposed requirement

that license suspension be related to DUI or ARD, an element not

contemplated by AIDPI statute; count for AIDPI and count for habitual

offenders were not subject to merger for sentencing purposes where

conviction for habitual offenders required Commonwealth to demonstrate

that defendant had accumulated three separate convictions for serious traffic

offenses within five-year period, while AIDPI had no such element and

additionally required that defendant cause accident resulting in injury or

death); Rhoades, 8 A.3d at 918 (two counts of aggravated assault were not

subject to merger for sentencing purposes; charges were based on different

subsections of statute, with one requiring assault to be caused or attempted

“with a deadly weapon,” which element was not contained in other

subsection prohibiting any attempt to cause or the causing of serious bodily

injury without limiting itself to any particular mode of causing such injury).




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       Therefore, the trial court has the authority to impose separate

sentences on each DUI count at the time of resentencing.2

       Judgment      of   sentence      reversed;   case   remanded   for   further

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




____________________________________________


2
  Because we are remanding for resentencing on both DUI counts, we also
vacate Hynes’ sentence for possession of a small amount of marijuana for
personal use and remand for sentencing on this count. We take this step to
give the trial court the opportunity to restructure its entire sentencing
scheme. See Commonwealth v. Goldhammer, 517 A.2d 1280, 1283–84
(Pa.1986); Commonwealth v. Vanderlin, 580 A.2d 820, 831
(Pa.Super.1990) (if court errs in its sentence on one count in multi-count
case, then all sentences for all counts will be vacated so court can
restructure its entire sentencing scheme).

We also take this opportunity to mention another issue that may arise at
resentencing. In his appellate brief, Hynes claims that the Commonwealth
stipulated during his guilty plea hearing that his two DUI counts must merge
for sentencing purposes. We are unable to confirm Hynes’ claim because
the guilty plea hearing transcript is not in the certified record. Nevertheless,
Hynes remains free to raise this issue at the time of resentencing.



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