J-S44024-19

                                   2020 PA Super 8


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CURTIS MATTHEWS                            :
                                               :
                       Appellant               :   No. 161 WDA 2019

          Appeal from the Judgment of Sentence Entered May 20, 2015
     In the Court of Common Pleas of Crawford County Criminal Division at
                        No(s): CP-20-CR-0001114-2013


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

OPINION BY McLAUGHLIN, J.:                            FILED JANUARY 17, 2020

       Curtis Matthews appeals from the judgment of sentence imposed

following his convictions for fleeing or attempting to elude police officer,

driving under the influence of alcohol (“DUI”) – general impairment, and DUI

- refusal of blood testing.1 We vacate Matthews’ conviction for DUI - refusal

of blood testing and remand for resentencing. We affirm on all other issues.

       Matthews represented himself at his 2015 jury trial, at which the

Commonwealth presented evidence that an on-duty police officer saw

Matthews, while driving an SUV, fail to stop at a stop sign. The officer pulled

over Matthews’ vehicle, but as the officer was calling in the numbers on

Matthews’ registration plate, Matthews drove away. Thus commenced a five-

mile, high-speed chase during which Matthews failed to stop at several stop

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1 See 75 Pa.C.S.A. §§ 3733(a.2)(2), 3802(a)(1), and 3803(b)(2) (previous
version, eff. Oct. 27, 2014).
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signs and a red light, drove in the lane of oncoming traffic, failed to signal,

and nearly struck other vehicles. When Matthews finally stopped, the arresting

officers noted alcohol on Matthews’ breath, and observed him having difficulty

in walking and standing. Matthews admitted to having drunk one beer and to

having an open container of beer in his vehicle. He refused to have his blood

tested for alcohol content.

       At the conclusion of trial, the jury convicted Matthews of Count 1,

fleeing and eluding. Matthews had waived his right to a jury trial on the other

charges, and the court, sitting as fact-finder, convicted Matthews of DUI –

general impairment and DUI – refusal of blood testing, at Counts 2 and 3. The

court also convicted Matthews of 15 summary traffic offenses.

       Matthews was represented by counsel at his sentencing hearing. The

court sentenced Matthews to serve 42 to 84 months’ incarceration and to pay

a $1,000 fine for fleeing or eluding. The court determined that the two DUI

convictions—Counts 2 and 3—merged for sentencing purposes, and imposed

a single sentence, at Count 2, of three to six months’ incarceration and a

$1,500 fine.2 The court ordered that the DUI sentence be served consecutively




____________________________________________


2 The court initially imposed sentence on May 15, 2015, and entered its
sentencing order on the docket on May 18, 2015. The court entered an
amended sentencing order on May 20, 2015.



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to the fleeing and eluding sentence. Matthews filed post-sentence motions,

which the court denied, and Matthews appealed.3

       Matthews raises the following issues:

       1. Was it error for the Trial Court to require the physically disabled,
       59 year old, Pro Se Appellant to appear before the jury in jail garb,
       shackles and handcuffs?

       2. Does the use of two forms that violate the future holdings in
       Birchfield v. North Dakota, 136 S. Ct. 2160 (2016)[,] mandate
       that [Matthews’] conviction be reversed and his enhanced
       sentence be determined illegal?

       3. When Defense counsel, without the consent and outside the
       presence of the Defendant, discloses to the Court and the
       Commonwealth confidential communications between the
       defendant and his attorney intimating that the defendant is guilty,
       should the court recuse itself su[a] sponte?

       4. If standby counsel fails to take action necessary for a fair
       adjudication to take place, is the defendant entitled to a new trial?



____________________________________________


3  Matthews was represented by counsel on his direct appeal. This Court
dismissed the appeal due to Matthews’ failure to file a brief. See
Commonwealth v. Matthews, No. 1245 WDA 2015 (filed February 1, 2016)
(per curiam). Matthews filed a timely petition under the Post Conviction Relief
Act (“PCRA”). The PCRA court found Matthews’ appellate counsel ineffective
and reinstated his direct appeal rights nunc pro tunc. Matthews accordingly
filed a second direct appeal, but the pattern repeated a second time—this
Court again dismissed the appeal for failure to file a brief, see
Commonwealth v. Matthews, No. 687 WDA 2017 (filed December 5, 2017)
(per curiam), and the PCRA court again reinstated Matthews’ appeal rights
following a timely PCRA petition. After his appeal rights were reinstated the
second time, Matthews’ counsel failed to file a timely notice of appeal. The
PCRA court, having received pro se correspondence from Matthews, but no
correspondence from counsel, deemed counsel ineffective. The court
appointed new counsel, and once again reinstated Matthews’ direct appeal
rights. Matthews thereafter filed a timely notice of appeal, and, finally, an
appellant brief.

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      5. When Counsel is denied a continuance to fully investigate the
      prior record of the defendant, is the sentence illegal and an abuse
      of discretion?

      6. Was the sentence illegal because the reason for [sic] given for
      departing from the guidelines is part the crime[?]

Matthews’ Br. at 2 (answers of PCRA court omitted).

                      I. Matthews’ Courtroom Attire

      In his first issue, Matthews claims the court ruled he must appear in

court in a prison uniform and wearing either handcuffs and shackles, or a

shock belt. Matthews’ Br. at 8. Matthews argues he objected to these alleged

requirements prior to trial. Id. Although he does not quote or cite the trial

transcript, Matthews also contends that the court informed the jury, during its

opening comments, that Matthews had decided to be restrained, and was

wearing a shocking device in order to prevent him from engaging in unsafe

conduct. Id. at 8-9. Matthews argues that the court’s alleged requirements

and statements to the jury prejudiced him, as they led the jury to believe he

was dangerous. Id. at 9. Matthews also asserts the restraints prevented him

from reading or taking notes during trial, where he was representing himself,

and that the court only ordered that a podium be positioned between him and

the jury, which prevented him from seeing the jury. Id.

      Matthews has waived these issues. Contrary to his current argument,

Matthews insisted on wearing his prison uniform during trial, and rejected the

court’s offer of street clothing. See Order, filed 11/7/14, at 1; Order Denying

Post Sentence Motions, filed 7/17/15, at 2; N.T. (pretrial conference),



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11/7/14, at 43-46, 49.4 The court ordered that if Matthews changed his mind,

he would have access to street clothes. Order, filed 11/7/14, at 1. Matthews

does not allege that he changed his mind and requested other clothing, or

specify where in the record he may have done so. See Pa.R.A.P. 2117(c)

(requiring appellant to include in brief manner in which issues were

preserved).

       While the court required Matthews to comply with the directive of the

sheriff’s department by wearing either handcuffs and shackles or a shock belt,

Matthews does not argue that the court erred in deferring to the safety

decisions of the sheriff’s department when requiring some form of restraint,

or provide any legal argument on this point. See Commonwealth v. Miller,

212 A.3d 1114, 1131 (Pa.Super. 2019). According to the trial court, the

sheriff’s department required these precautions in response to Matthews’

multiple prosecutions for assaults upon law enforcement officers, and his

“prior disregard of courtroom decorum.” See Order Denying Post Sentence

Motions, filed 7/17/15, at 2. Matthews chose to wear handcuffs and shackles

rather than a shock belt, which would have been invisible to the jury. Id. at

2-3; see also N.T. (pretrial conference), 11/7/14, at 50-52; N.T. (pretrial

conference), 3/5/15, at 15-17.

____________________________________________


4 In rejecting the offer of street clothing, Matthews said, “No. No. No. No. I
want the jury to see the real deal. I’m wearing what I got on. I want them to
know I have been in jail seven months about some bullshit, because the police
want to play peekaboo at the stop sign.” N.T. (pretrial conference), 11/7/14,
at 43.

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      Matthews complains the court caused prejudice when it remarked on his

appearance to the jury; however, the transcript of voir dire is not included in

the certified record. Regardless, in its order denying post-sentence motions,

the court quoted the relevant portion of its statements to the jury on this

issue, and explained that it raised the issue of Matthews’ appearance in order

to voir dire the potential jurors to ensure no juror would be prejudiced against

Matthews by the sight of the prison uniform and restraints. See Order Denying

Post Sentence Motions, 7/17/15, at 3-4.

      Furthermore, by electing to wear handcuffs rather than a shock belt,

Matthews waived his argument that the handcuffs prevented him from

effective self-representation. It was not until the third day of trial that

Matthews requested the handcuffs be removed to allow him “to represent

[him]self, shuffle [his] papers better,” and “to demonstrate to the jury when

[the arresting officer] told [him] to get down on [his] hands and knees[.]”

N.T. (Trial), 3/11/15 (Morning), at 19-20. The judge denied the request,

stating, “I promised this jury we’re going to start at 9:00 . . . . [Y]ou waived

that[, and] I can’t drop everything now and put a shock belt on you.” Id. at

20-21. Moreover, the court observed, “I have been watching you throughout

this trial, you have been well able to use both of your hands. . . . You have

been well able to write.” Id. at 19-20.

      Finally, Matthews does not indicate where in the record he preserved

the issue that the location of the podium prevented him from seeing the jury.

See Pa.R.A.P. 302(a) (issues cannot be raised for the first time on appeal). At

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any rate, the record reflects the court instructed both Matthews and the

Commonwealth to stand behind the podium when making argument,

examining witnesses, and addressing the jury. See N.T. (pretrial conference),

3/9/15, at 2. We therefore fail to see how any relief is due.

                                 II. Birchfield

      Matthews next argues that the Commonwealth impermissibly argued,

and the court erroneously instructed the jury, that his refusal to submit to

blood testing was evidence of his consciousness of guilt. Matthews’ Br. at 10.

Matthews also argues that he should not have been subjected to enhanced

penalties for refusing to provide a blood sample. Id.

      The first argument warrants no relief. Evidence that a defendant refused

to submit to a warrantless blood test is admissible at trial. See 75 Pa.C.S.A.

§ 1547(e); Commonwealth v. Bell, 211 A.3d 761, 763-64 (Pa. 2019).

      However, we conclude Matthews’ conviction for DUI - refusal of blood

testing cannot stand. First, a refusal to submit to blood testing, at the time of

Matthews’ arrest, was not a separate criminal offense, but a fact which

enhanced the penalties applicable for violations of the DUI statute, 75

Pa.C.S.A. § 3802. See 75 Pa.C.S.A. § 3803(b), amended Dec. 24, 2018; 75

Pa.C.S.A. § 3804(c), amended Dec. 24, 2018. Even today, evidence of refusal

of blood testing still does not constitute a substantive criminal offense, but

acts to elevate the grading and enhance the penalties for a DUI conviction.

See 75 Pa.C.S.A. §§ 3803(b), 3804(c).




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       Here, the court convicted Matthews at Count 2 of violating Section

3802(a)(1), general impairment. See Information, filed 1/9/14. The court also

convicted Matthews at Count 3, wherein he was charged with violating the

exact same subsection of the DUI statute, but included the allegation that

Matthews had refused of blood testing. See id. However, Matthews did not

commit two distinct DUI offenses, or violate two separate subsections of the

DUI statute, and the court therefore erred in convicting Matthews of two

counts of DUI. As the error implicates the legality of Matthews’ sentence, we

hold one of the DUI convictions must be vacated. See Commonwealth v.

Farrow, 168 A.3d 207, 213, 215-18 (Pa.Super. 2017) (stating issue

implicates legality of sentence; vacating duplicative DUI convictions where

Commonwealth charged DUI-general impairment as well as two separate

counts reflecting sentencing enhancements).5

       In addition, in the wake of Birchfield, we have held that the previous

versions of Sections 3803 and 3804 are unconstitutional, insofar as they

impose enhanced criminal penalties upon defendants who refused to consent

to a warrantless blood test. See Commonwealth v. Giron, 155 A.3d 635,



____________________________________________


5That the court only imposed one sentence on the two counts does not remedy
that Matthews’ criminal record now reflects an extra conviction. See Farrow,
168 A.3d at 215-18 (vacating duplicate DUI convictions and remanding for
resentencing despite that trial court found DUI convictions merged and
imposed only one sentence with “no further penalty” on remaining
convictions).



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640 (Pa.Super. 2017).6 Any application of the unconstitutional enhancements

renders a sentence illegal. Id. As the issue is one implicating the legality of

the sentence, it is nonwaiveable. Commonwealth v. Monarch, 200 A.3d 51,

56 (Pa. 2019); see, e.g., Giron, 155 A.3d at 638 (raising sua sponte issue of

application of Sections 3803 and 3804 to sentence which was imposed prior

to Birchfield).7 We therefore conclude Matthews’ conviction at Count 3 for

DUI – refusal should be vacated, and the conviction at Count 2 for DUI –

general impairment should remain.

       As the court imposed a “merged” sentence for Counts 2 and 3, we must

next determine whether the court imposed an enhanced sentence based on

Matthews’ refusal of blood testing. As a first DUI offender, at the time of

Matthews’ sentencing, his exposure at Count 2, for DUI - general impairment,

without considering his refusal, was a mandatory minimum sentence of six
____________________________________________


6 Accordingly, the current versions of these statutes only impose enhanced
penalties on defendants who refuse to consent either to breath testing, or to
blood testing pursuant to a valid search warrant.

7 In its Rule 1925(a) opinion, the trial court found that Matthews had waived
any relief under Birchfield by failing to raise the issue before the court prior
to Rule 1925(b) statement of errors complained of on appeal. Trial Court
Opinion, 3/4/19, at 4. In so finding, the court relied on Commonwealth v.
Moyer, 171 A.3d 849 (Pa.Super. 2017). However, Moyer held that a
defendant is not entitled to raise the protections of Birchfield for the first
time on appeal when the defendant had failed to challenge during trial the
admissibility of the results of the blood test. Moyer, 171 A.3d at 855. Moyer
therefore dealt with the implications of Birchfield on the admissibility of blood
test results at trial, not the legality of a sentence enhanced by the defendant’s
refusal of blood testing, and Moyer’s holding regarding waiver does not apply
here.



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months’ probation and a $300 fine, see 75 Pa.C.S.A. 3804(a)(1), and a

maximum sentence of six months’ incarceration, see 75 Pa.C.S.A. §

3803(a)(1).8 The offense was to be graded as a misdemeanor. Id. His

exposure at Count 3, for DUI - refusal, was a mandatory minimum of 72 hours

incarceration and a $1,000 to $5,000 fine, see § 3804(c)(1), amended Dec.

24, 2018, and a maximum sentence of six months’ incarceration, see §

3803(b)(2), amended Dec. 24, 2018. With the enhancement, the offense was

still graded as a misdemeanor. Id. The grading and maximum sentence,

therefore, were not increased by Matthews’ refusal; both applicable

subsections provided his DUI was graded as a misdemeanor, and allowed for

a maximum sentence of six months’ incarceration. However, under the

enhancement, the minimum sentence increased from a mandatory six

month’s probation to a mandatory 72 hours’ imprisonment, and from a $300

fine to a $1,000 to $5,000 fine. The Sentencing Guidelines, both with and

without the enhancement, reflected a standard range sentence of a minimum

of three months’ imprisonment.9

        The court imposed the “merged” sentence at Count 2. It imposed the

standard guidelines sentence of three to six months’ incarceration, and a

$1,500 fine. On the face of the sentence, therefore, it is impossible to tell

whether the term of three to six months’ incarceration was influenced by the
____________________________________________


8   The penalties are the same under the current versions of the statutes.

9 The court found the Sentencing Guidelines categorized Matthews’ as a
Repeat Felony 1/Felony 2 Offender (“RFEL”). See 204 Pa. Code § 303.4(a)(2).

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enhanced mandatory minimum. However, the court did impose an enhanced

fine. We conclude that the appropriate course of action in this case is to vacate

Matthews’ judgment of sentence on Count 2 and remand for resentencing, to

ensure Matthews is not subject to an enhanced sentence based on his refusal

to consent to a warrantless blood test.

      As the sentence at Count 2 was consecutive to that at Count 1, we

remand for resentencing on both counts, to ensure the court’s overall

sentencing scheme is not disturbed. See Commonwealth v. Thur, 906 A.2d

552, 569-70 (Pa.Super. 2006). In sum, we vacate Matthews’ conviction on

Count 3 and remand for resentencing on Counts 1 and 2.

                                 III. Recusal

      Matthews claims that prior to trial, his previous counsel moved to

withdraw, and when doing so, had a discussion with the court in which counsel

disclosed the contents of a confidential conversation he had had with

Matthews. Matthews’ Br. at 11. Specifically, according to Matthews, his

counsel informed the court he had told Matthews he did not have a defense

to the charges, and Matthews had agreed that he had no defense. Id.

Matthews argues this disclosure constituted a violation of the rules of

professional conduct, and the trial judge had a duty to recuse himself. Id. at

11-12. Matthews asserts that he did not raise the issue earlier because he was

not present during the discussion between the court and counsel, and only

became aware of it when reading the transcript of trial. Id. at 12.




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       This claim is waived. A recusal motion must be made clearly and on the

record. Otherwise, “the trial judge may fail to engage in the independent

analysis and self-reflection necessary to make a cognizable ruling on the

motion.” Commonwealth v. Luketic, 162 A.3d 1149, 1158 (Pa.Super.

2017). Matthews did not preserve this issue in the trial court, and has not

offered any legal authority to support the proposition that the court was

responsible to recuse sua sponte.

       Moreover, according to the trial court opinion, Matthews was advised of

the hearing on counsel’s request to withdraw, but failed to appear. At the

hearing, Matthews’ counsel requested to withdraw due to lack of payment. He

stated his strategy had been to secure a nolle prosequi on drug charges that

Matthews had initially been facing, he had been successful in that regard, and

Matthews had thereafter agreed to accept a plea deal, as, according to

counsel, he “wouldn’t have a defense to the other charges.” Tr. Ct. Op. at 5

(quoting N.T. (Withdrawal Hearing), 5/23/14, at 7).10 Counsel related

Matthews had since changed his mind, and desired to present a defense

through new counsel rather than plead guilty. Id. Matthews’ counsel therefore

did not disclose any confidential admission of guilt by Matthews. And, in

reviewing this issue, the court explained that the foregoing statements did not

influence its decision when finding Matthews guilty on the DUI and traffic
____________________________________________


10Counsel also stated, “[T]hat was always my instructions to him that he
would have a very difficult time defending the two other charges and then the
multiple summaries in this case and that’s where one of the conflicts arise.”
N.T. (Withdrawal Hearing), 5/23/2014, at 7.

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charges. Id. We therefore conclude that even if Matthews had preserved the

issue by making a timely motion for recusal, it would merit no relief.

                                IV. Standby Counsel

       Matthews next argues that although he cannot raise a claim of

ineffectiveness of standby counsel, the court erred in failing to ensure that

Matthews’ standby counsel adequately assisted him in serving subpoenas on

witnesses. Matthews’ Br. at 13. Although he does not quote or cite to the

record, Matthews claims he repeatedly raised during trial that standby counsel

had not been serving the subpoenas Matthews had requested, and the court

erred in failing to determine whether or not it was standby counsel’s obligation

to serve subpoenas on Matthews’ behalf. Id.11

       As Matthews acknowledges, there is no cognizable claim for ineffective

assistance of standby counsel. See Commonwealth v. Blakeney, 108 A.3d

739, 749 (Pa. 2014). To the extent Matthews argues that the court somehow

thwarted his ability to serve subpoenas by misleading him as to the

responsibilities of standby counsel, Matthews has not established that he

preserved this issue as a claim of trial court error, rather than as a prohibited

claim of standby counsel ineffectiveness.




____________________________________________


11  Matthews also argues that standby counsel participated in a sidebar
conference without Matthews, which led the jury to believe Matthews was not
competently representing himself. Matthews’ Br. at 13. Matthews has waived
this argument by his failure to raise the issue in his Rule 1925(b) statement
of errors. See Pa.R.A.P. 1925(b)(4)(vii).

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      Furthermore, Matthews has failed to establish that the claim warrants

relief, as Matthews has not asserted that the court interfered with his ability

to serve a subpoena upon any specific witness, such that the witness failed to

appear for trial. Nor does he argue that any missing witness’s testimony would

have affected the outcome of the proceedings. Regardless, such an argument

would likely fail, as, according to the court, “Matthews was questioned about

who he wished to have testify, and [standby counsel] informed the court that,

except for one or two of the treating physicians, he had arranged for them all

to appear[.]” Tr. Ct. Op. at 7 (footnote and citations to trial transcripts

omitted). The court also noted that it had indicated that the testimony of

multiple physicians would be cumulative. Id. at 7 n.12. We therefore refute

Matthews’ attempt to reframe a claim of ineffectiveness of standby counsel as

a vague claim of trial court error, and deny relief on this issue.

                          V. Continuance Request

      Matthews argues the court abused its discretion in denying his request

to continue his sentencing hearing. Matthews’ Br. at 14. Matthews states his

counsel requested the continuance in order to investigate Matthews’ criminal

record, for the purposes of recalculating Matthews’ prior record score (“PRS”).

Id. Matthews argues that because his criminal history is old and includes

convictions from other states, Matthews had informed his counsel, on the day

of sentencing, that the PRS calculated by the court was incorrect. Id.

      The trial court has discretion to grant or deny a continuance request,

and its decision will not be reversed absent a showing an abuse of that

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discretion. Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa.Super.

2014). An appellant must establish he was prejudiced by the denial of the

motion, by showing “specifically in what manner he was unable to prepare . .

. or how he would have prepared differently had he been given more time.”

Id. at 745 (quoting Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super.

2012)).

       According to the trial court opinion, the court denied the request for a

continuance because (1) Matthews’ initial sentencing hearing had already

been continued once because Matthews had contested his PRS and requested

counsel; (2) some time prior to sentencing, the court provided counsel with

the explanation of the Adult Probation/Parole Department’s PRS calculation;

(3) the court also advised the parties, via a letter, that the court concluded

Matthews fell into the category of an RFEL; and (4) on the day before

sentencing, Matthew’s counsel provided the court with a three-page

memorandum regarding the PRS calculation. Tr. Ct. Op. at 9. Furthermore,

the sentencing transcript reflects that the court undertook a thorough review

of Matthews’ PRS prior to the hearing, and considered additional arguments

Matthews raised against his classification as an RFEL at the hearing. See N.T.

(Sentencing), 5/15/15, at 12-13, 16-17, 26-31.12 Therefore, Matthews’ PRS

____________________________________________


12The court also stated, “[T]here’s nothing so complex about this presentence
report that would require us to postpone sentencing as a consequence of such
complexity that we have to have a special hearing just to address whether or
not the presentence investigation report is accurate or not. I’m prepared to



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had been duly at issue for some time, and the court was not obligated to

comply with the last-minute request for another continuance.

       Moreover, Matthews has failed to allege prejudice, by way of asserting

that the court erred in determining he was in the RFEL category. 13 The court

also noted that even if the court had considered his PRS as 5, as Matthews

argued at the hearing, it would not have affected Matthews’ sentence, as (1)

the court had discretion to consider criminal history not included in the PRS

calculation, and (2) the court chose to impose a sentence that exceeded the

guidelines when computed using either a PRS as 5 or the RFEL category. Tr.

Ct. Op. at 8. We therefore find the court did not abuse its discretion in denying

the request for a continuance.

                                     VI. Sentence

       In his final issue, Matthews argues the court imposed an illegal

sentence. Matthews’ Br. at 14. Matthews claims the court imposed a sentence

for fleeing and eluding that was in excess of the aggravated range, on the

basis that Matthews engaged in a high-speed chase that endangered law

enforcement or the public. Id. at 15. Matthews states that because these

factors statutorily enhance the grading of the crime for which he was

convicted, they were already contemplated by the offense gravity score, and
____________________________________________


address the prior record score today. If we happen to make an error, you can
raise that in your post-sentence motion[.]” N.T. (Sentencing) at 17.

13Although Matthews has not directly challenged the court’s calculation of his
PRS, which is a discretionary sentencing claim, here it is relevant insofar as
whether the court’s denial of the continuance request prejudiced Matthews.

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the court’s considering these factors as a basis for imposing an aggravated

sentence     constituted   impermissible   “double   counting.”   Id.   (quoting

Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa.Super. 2000) (en

banc)).

      We reject Matthews’ attempt to frame this issue as a challenge to the

legality of his sentence, as the assertion that the trial court considered

impermissible factors at sentencing is properly categorized as a challenge to

the discretionary aspects of a sentence. See, e.g., Goggins, 748 A.2d at 731;

Commonwealth v. Impellizzeri, 661 A.2d 422, 433 (Pa.Super. 1995);

Commonwealth v. Dotter, 589 A.2d 726, 730-31 (Pa.Super. 1991).

Although Matthews has included a Rule 2119(f) statement in his brief, arguing

that we should exercise our discretion to review the sentence because it raises

a substantial question, Matthews did not preserve this issue by raising it

before the trial court at sentencing, or in his post-sentence motion or amended

post-sentence motion. He also failed to include this issue in his Rule 1925(b)

statement of errors. Accordingly, the trial court did not address this claim in

its Rule 1925(a) opinion. The issue is therefore waived, and we decline to

review it.

      Judgment of sentence vacated. Conviction on DUI - refusal of blood

testing vacated. Remanded for resentencing. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/2020




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