J-S57036-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
RICHARD LINTON CRAWFORD, III,             :
                                          :
                 Appellant                :     No. 108 WDA 2016

          Appeal from the Judgment of Sentence January 13, 2016
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0001906-2015

BEFORE:     FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED SEPTEMBER 12, 2016

      Richard Linton Crawford, III (Appellant) appeals pro se from the

January 13, 2016 judgment of sentence imposed after he was convicted of

two counts of driving under the influence of alcohol or controlled substance

(DUI).    Upon review, we vacate Appellant’s judgment of sentence and

remand for re-sentencing consistent with this memorandum.

      On November 14, 2014, Appellant was found slumped over the wheel

of his vehicle at an intersection in the South Side neighborhood of

Pittsburgh, Pennsylvania.    Police were able to get Appellant out of the

vehicle, and they then observed Appellant exhibiting signs of intoxication.

Appellant failed field sobriety testing and refused to submit to chemical

testing. Because Appellant could not identify someone to pick him up from

the police station, he was transferred to the Allegheny County Jail.



*Retired Senior Judge assigned to the Superior Court.
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        Appellant was charged with two counts of DUI as a result of this

incident. Appellant then filed pro se a document which purported to object

to the jurisdiction of Pennsylvania courts and demand dismissal of the

charges (Special Appearance Filing).1 On June 23, 2015, the Office of the

Public Defender was appointed to represent Appellant. On July 14, 2015,

Appellant filed a similar, if not identical, Special Appearance Filing, objecting

to the court’s jurisdiction and demanding the charges be dismissed.           On

August 11, 2015, the trial court denied Appellant’s Special Appearance

Filing.

        A non-jury trial was held on November 17, 2015. Appellant elected to

proceed pro se, and the trial court permitted counsel to withdraw.           The

Commonwealth presented its case, and Appellant chose not to present any

witnesses or testify on his behalf. The trial court found Appellant guilty of

two counts of DUI.

        On January 13, 2016, Appellant was sentenced on one count of DUI to

a three-day term of incarceration, a concurrent six months of probation, and

a $1,000 fine.2 Appellant did not file post-sentence motions, but timely filed



1
  This filing, entitled “Special Appearance of Richard Linton Crawford, III By
Affidavit Objecting to Subject Matter/Venue and In Personam Jurisdiction
and Demand for Dismissal,” sets forth incoherent statements and appears to
be broken down into eleven sections, each entitled “Fatal Defect Issue In
Law.” See Special Appearance Filing, 1/29/2015.
2
    Appellant was not further penalized for the second count of DUI.


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a notice of appeal.     The trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925. In

response, Appellant filed the same Special Appearance Filing that he had

filed previously.

      On appeal, Appellant has set forth several issues in a rambling and

incoherent way. In attempting to examine these issues, we are cognizant of

the trial court’s analysis of Appellant’s case.

             [Appellant’s] Rule 1925(b) concise statement of errors
      complained of on appeal raises 8 issues on appeal and he refers
      to each as Fatal Defect Issue in Law. These allegations of fatal
      defect are difficult to summarize as [Appellant] fails to state with
      specificity what the allegations of error are, or how they apply to
      this case. In fact, it is impossible for this court to determine
      exactly how to respond to these alleged defects as they appear
      to be excerpts from various cases and statutes. Throughout this
      case [Appellant] has raised issues of jurisdiction in various
      filings. In his non-jury trial [Appellant] did not ask a single
      question or present any evidence. The evidence established that
      [Appellant] was guilty of [DUI] on November 14, 2014 in
      Allegheny County.

            Because [Appellant] has failed to raise any specific
      allegations of error, and has not challenged the sufficiency or
      weight of the evidence his judgment of sentence should be
      affirmed. The various allegations raising issues of jurisdiction
      should be rejected.

Trial Court Opinion, 2/19/2016, at 2-3 (unnecessary capitalization omitted).

      Based on this rationale, we are not persuaded that he is entitled to

relief. At trial, Appellant was given several opportunities to present evidence

and ask questions. He elected not to do so, instead stating that “everything

I wanted to say is in that motion.” N.T., 11/17/2015, at 34.          Thus, his


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argument before the trial court, as it is here, is limited to the incoherent

allegations he set forth in the Special Appearance Filing and reiterated

several times since.

      To the extent we are able to address Appellant’s issues, Appellant’s

primary complaint is that the trial court lacked jurisdiction over him because

the Department of Transportation, rather than the judiciary, is authorized to

enforce the motor vehicle code violations. Appellant’s Brief at 13-20. This

precise argument has been considered and rejected by this Court. See

Commonwealth v. Soder, 905 A.2d 502, 503 (Pa. Super. 2006) (holding

that “the proper forum for violations of the motor vehicle code is [not] an

administrative body,” but “jurisdiction is properly before the judiciary”).

      Finally, we are compelled to address the sentence imposed upon

Appellant because his flat sentence of three days of incarceration is illegal. 3

The trial court applied properly section 3804(c)(1)4 in sentencing Appellant



3
  We recognize that this issue was not raised by the trial court, the
Commonwealth, or Appellant. However, “[l]egality of sentence questions …
may be raised sua sponte by this Court.” Commonwealth v. Watley, 81
A.3d 108, 118 (Pa. Super. 2013). Moreover, “a claim that a flat sentence
should have instead had minimum and maximum terms goes to the legality
of the sentence, and such issues are non-waivable.” Commonwealth v.
Postie, 110 A.3d 1034, 1043 (Pa. Super. 2015).
4
  That section provides that “[a]n individual who violates section 3802(a)(1)
and refused testing of blood or breath … [, f]or a first offense, to … undergo
imprisonment of not less than 72 consecutive hours[.]” 75 Pa.C.S.
§ 3804(c)(1). This section increases the penalty for a driver convicted of
DUI who also refused either blood or breath testing. We are mindful that on
June 23, 2016, the United States Supreme Court held unconstitutional the

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for his conviction under 75 Pa.C.S. § 3802(a)(1). However, with respect to

section 3804(c)(1), the trial court neglected to specify maximum and

minimum terms of incarceration pursuant to 42 Pa.C.S. § 9756.

      Where the sentence is one of total confinement …, the court is
      compelled to state a maximum sentence, which is, in effect, the
      full sentence to be served, and a minimum sentence, which
      specifies the date on which the defendant, once jailed, is eligible
      for    parole.      The    Sentencing        Code    mandates     this
      maximum/minimum configuration, and specifies that the
      minimum sentence imposed “shall not exceed one-half of the
      maximum sentence imposed.” See 42 Pa.C.S. § 9756(a), (b)(1).
      A “flat” sentence, which fails to specify the required minimum
      term for purposes of parole eligibility, violates these
      requirements of the Sentencing Code and is therefore illegal.
      See Commonwealth v. Cain, [] 637 A.2d 656, 658–59 ([Pa.
      Super.] 1994) (“Cain’s sentence is technically illegal because the
      court imposed a flat one year of imprisonment without specifying
      any minimum sentence.”). Consequently, the form in which the
      court imposed sentence here constitutes reversible error. Id. at
      659. (“Where a court neglects to mention a minimum sentence,
      appellate courts ordinarily will not fill in the missing element, but
      will vacate the sentence and remand for resentencing.”).

Commonwealth v. Basinger, 982 A.2d 121, 127 (Pa. Super. 2009). See

also Commonwealth v. Postie, 110 A.3d 1034 (Pa. Super. 2015) (holding


practice of criminalizing the failure to consent to blood testing upon being
suspected of DUI. See Birchfield v. North Dakota, 136 S.Ct. 2160, 2186
(2016) (holding “motorists cannot be deemed to have consented to submit
to a blood test on pain of committing a criminal offense”). However,
Birchfield held specifically that it is permissible to criminalize the refusal to
submit to breath testing. “Because breath tests are significantly less
intrusive than blood tests and in most cases amply serve law enforcement
interests, we conclude that a breath test, but not a blood test, may be
administered as a search incident to a lawful arrest for drunk driving. As in
all cases involving reasonable searches incident to arrest, a warrant is not
needed in this situation.” Id. at 2185. Instantly, Appellant refused to submit
to breath testing; accordingly, the Birchfield holding related to blood
testing is inapplicable in this case.

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flat sentence of four months was illegal for conviction of driving while

operating privileges are suspended or revoked).

      Based on the foregoing, Appellant’s sentence is illegal because the trial

court did not utilize the maximum/minimum configuration required by

statute.   Accordingly, we vacate Appellant’s judgment of sentence in this

regard only.

      In conclusion, we agree with the trial court that the evidence was

sufficient to convict Appellant of DUI, and Appellant has presented no issue

on appeal which would convince us to reverse the judgment of sentence on

that basis.    However, we vacate Appellant’s judgment of sentence and

remand for re-sentencing consistent with this memorandum.

      Judgment of sentence vacated.        Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2016




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