J. A29001/16
                              2016 PA Super 276

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
            APPELLANT                     :          PENNSYLVANIA
                                          :
                 v.                       :
                                          :
ALEXIS POPIELARCHECK,                     :
                                          :
                        Appellant         :
                                          :     No. 1788 WDA 2015

                   Appeal from the Order October 9, 2015
              In the Court of Common Pleas of Greene County
            Criminal Division at No(s): CP-30-CR-0000079-2015

BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

OPINION BY DUBOW, J.:                          FILED DECEMBER 06, 2016

     The Commonwealth appeals from the October 9, 2015 Order denying

the Commonwealth’s Motion for Modification of Sentence and amending the

September 2, 2015 Judgment of Sentence.1 After careful review, we affirm

and hold that where a sentencing court sentences a DUI defendant to

County Intermediate Punishment (“CIP”) 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).

     The relevant factual and procedural history of this case is as follows.

On June 15, 2015, Alexis Popielarcheck (“Appellee”) pled guilty to two

counts of Driving Under the Influence (DUI) (Second Offense - Ten Years);


1
  The original Judgment of Sentence was amended to include the imposition
of electronic surveillance during Appellee’s house arrest, and to increase the
fine imposed from $1,000 to $1,500.
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thirteen counts of Disregard Traffic Lane; Reckless Driving; and Restraint

Systems as the result of an August 28, 2014 incident in which she was under

the influence of various controlled substances.2     The court ordered the

preparation of a pre-sentence investigation and modified Appellee’s bail to

require her to report to Greenbriar Treatment Center for inpatient drug and

alcohol therapy and to complete all recommended treatment.

      The parties do not dispute the following.     The instant offense was

Appellee’s second DUI offense in 10 years, was graded as a misdemeanor of

the first degree, and was punishable by a maximum sentence of five years.

Appellee was a qualified offender required to undergo “a full assessment for

alcohol and drug addiction” pursuant to 75 Pa.C.S. § 3814.       Appellee did

undergo such an assessment, which found that she was “in need of

additional treatment.” If the trial court had not sentenced Appellee to CIP, a

mandatory five-year maximum sentence would apply, as discussed infra.

Moreover, the parties do not dispute that Appellee is eligible for a sentence

of CIP.

      At the September 1, 2015 Sentencing Hearing, the court sentenced

Appellee to a total term of two years of CIP with 120 days to be served as

house arrest, with 21 days' credit for time at Greenbriar, and assessed a fine

of $1000 for the offense of DUI.    The district attorney inquired about the


2
  75 Pa.C.S. § 3802 (d)(1)(i) and (2); 75 Pa.C.S. § 3309; 75 Pa.C.S. §
3736; and 75 Pa. C.S. § 4581 (a)(2)(ii), respectively.



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total   length   of   supervision   due    to   statutory   requirements,   arguing

unsuccessfully that the court was required to sentence Appellee to the

statutory maximum range of her sentence, notwithstanding the court’s

discretion to sentence Appellant to CIP.

        On September 11, 2015, the Commonwealth filed post-sentence

motions asserting that the sentencing court (i) erred by not imposing the

statutorily mandated fine; (ii) erred by not mandating electronic monitoring

as part of Appellee’s sentence of house arrest; (iii) erred by not imposing a

maximum term of five years; and (iv) abused its discretion in sentencing

Appellee to less than five years of supervision in light of the various factors

to be considered at sentencing.

        By order entered October 9, 2015, the court amended its Sentencing

Order to reflect the correct fine and to include “[h]ouse arrest with electronic

surveillance,” adding that “[o]therwise, the sentence is legal and a proper

exercise of judicial discretion.”

        The Commonwealth filed a timely appeal on November 6, 2015. Both

the trial court and the Commonwealth complied with Pa.R.A.P. 1925.

        On appeal, the Commonwealth raises the following two issues:

        I. Did the lower court err in disregarding the statutory mandate
        requiring the imposition of a maximum sentence equal to the
        statutorily available maximum for an offender deemed at an
        initial assessment to be in need of further treatment?

        Ii. Did the lower court abuse its discretion in failing to impose a
        sentence with a long maximum term in order to achieve the
        goals articulated by the [S]entencing [C]ode of assuring the


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      safety of the public while providing for the rehabilitative needs of
      the offender?

Commonwealth’s Brief at 9.

                     Legality of Appellee’s Sentence

      In its first issue, the Commonwealth raises an issue of first impression.

The Commonwealth avers that the trial court was required as a matter of

law to sentence Appellee to the statutorily available maximum sentence

pursuant to 75 Pa.C.S. § 3804(d) because Appellee was deemed to be “in

need of additional treatment.”      The Commonwealth acknowledges that,

notwithstanding    mandatory    minimum      and   maximum      DUI    penalties

enumerated in Section 3804, the trial court was vested with the discretion to

sentence Appellee to CIP in lieu of the applicable mandatory minimum

sentence.      Nonetheless,   the   Commonwealth     argues,   the    mandatory

maximum provision of Section 3804(d) still applies, and the trial court was

therefore required to impose the mandatory maximum sentence of five

years.

      In contrast, Appellee avers that the Sentencing Code permits trial

courts to choose between two separate, “alternative” sentencing schemes.

She asserts that once the trial court exercised its discretion to sentence her

to CIP, neither the maximum nor the minimum provisions of Section 3804(d)

apply.

      Addressing the Commonwealth’s averment requires us to revisit “the

interplay between the mandatory sentencing provision of the DUI statute


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and the discretionary sentencing provisions of the Sentencing Code, which

presents a question of law that compels plenary review to determine

whether the court committed an error of law.”            Commonwealth v.

Williams, 941 A.2d 14, 21 (Pa. Super. 2008) (en banc) (citation and

internal quotation marks omitted).

      Statutory interpretation is a question of law, therefore our standard of

review is de novo, and our scope of review is plenary. Commonwealth v.

Hall, 80 A.3d 1204, 1211 (Pa. 2013).       “In 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.”   Commonwealth v. McCoy, 962 A.2d 1160, 1166 (Pa. 2009)

(citation omitted).

      Generally, a statute's plain language provides the best indication of

legislative intent. Id. 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.” 1

Pa.C.S. § 1922(1). Therefore, when ascertaining the meaning of a statute,

if the language is clear, we give the words their plain and ordinary meaning.

Hall, 80 A.3d at 1211.




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      The statutory sections governing sentencing in DUI offenses are as

numerous as they are verbose. In an effort to avoid more confusion than is

necessary, we summarize the interplay of the relevant statutes as follows.

      Under    Section 9721      of the     Sentencing Code, trial     courts are

empowered to impose a sentence consisting of one or more alternatives

including, inter alia, imprisonment, probation, or CIP.      42 Pa.C.S. § 9721.

While Section 9721 generally permits a sentencing court to exercise its

discretion in choosing an appropriate sentence, under certain circumstances,

various other statutes mandate that sentencing courts impose mandatory

minimum and maximum sentences instead. See, e.g., 42 Pa.C.S. § 9718.2

(prescribing mandatory minimum sentences for second and subsequent

offenders of various sexual offenses).

      Section 3804 of our DUI statute contains one such mandatory

sentencing scheme, with penalties enhanced based on prior DUI offenses or

a determination that the defendant is “in need of additional treatment.” See

75 Pa.C.S. § 3804; see also 75 Pa.C.S. § 3814 (mandating “a full

assessment     for   alcohol   and   drug   addiction”   where   certain   specified

conditions are met).

      Relevant to the instant matter, Section 3804(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 judge shall



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impose a minimum sentence as provided by law and a 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, 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 accountable to the community; and to

help reduce the county jail overcrowding problem while maintaining public

safety.” Williams, 941 A.2d at 24 (quotation omitted).

      Moreover, Sections 9721 and 9763 specifically permit trial courts to

consider CIP for DUI offenders for first, second, or third offenses, in spite of

any mandatory minimum sentence elsewhere prescribed by law.3 42 Pa.C.S.

§§ 9721; 9763.       As this Court has previously recognized, the DUI statute

and the Sentencing Code may be read together to permit a trial court to



3
  Ordinarily, where a mandatory sentencing scheme applies, the trial court
no longer has the discretion it is ordinarily afforded under Section 9721 to
fashion a sentence of CIP. 42 Pa.C.S. § 9721(a.1).



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avoid a mandatory minimum sentence in favor of a sentence of CIP for

certain qualified offenders. Williams, 941 A.2d at 26.

      This Court has repeatedly reaffirmed the right of sentencing courts to

consider CIP and rebuffed local efforts to eliminate or handicap this

discretion.   See, e.g. Commonwealth v. Jurczak, 86 A.3d 265, 271-72

(Pa. Super. 2014) (rejecting county CIP plan that required all DUI offenders

to serve one-third of any applicable mandatory minimum sentence prior to

being eligible for CIP); Commonwealth v. Sarapa, 13 A.3d 961, 967-68

(Pa. Super. 2011) (rejecting county CIP plan that precluded CIP eligibility for

all DUI offenders).

      In keeping with the intent of our legislature and the prior decisions of

this Court, we reaffirm our position that CIP is “a statutorily authorized

sentencing alternative . . . .”    Jurczak, 86 A.3d 265, 267 (Pa. Super.

2014) (emphasis added).

      Applying these principles to the instant case, we hold that by its plain

language, the mandatory maximum sentence provision in Section 3804(d)

applies only where a defendant “is sentenced pursuant to [that] chapter.”

75 Pa.C.S. § 3804(d).    However, Appellee was not sentenced pursuant to

Chapter 38; she was sentenced under an alternative sentencing scheme to

CIP as authorized in Chapter 97 of our Sentencing Code. Therefore, neither

the mandatory minimum nor maximum provisions of our DUI statute apply

and the sentence imposed is not illegal.



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               Discretionary Aspects of Appellee’s Sentence

     In its second issue, the Commonwealth challenges the discretionary

aspects of Appellee’s sentence. A challenge to the discretionary aspects of

sentencing    is   not   automatically   reviewable        as    a    matter   of   right.

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008). Prior to

reviewing such a claim on its merits:

      [W]e conduct a four part analysis to determine: (1) whether
     appellant has filed a timely notice of appeal; (2) whether the
     issue was properly preserved at sentencing or in a motion to
     reconsider and modify sentence; (3) whether appellant’s brief
     has a fatal defect; and (4) whether there is a substantial
     question that the sentence appealed from is not appropriate
     under the Sentencing Code.

     When appealing the discretionary aspects of a sentence, an
     appellant must invoke the appellate court’s jurisdiction by
     including in his brief a separate concise statement demonstrating
     that there is a substantial question as to the appropriateness of
     the sentence under the Sentencing Code . . . .

Id. (citations and quotations omitted). See also Pa.R.A.P. 2119(f).

     The Commonwealth complied with the first two requirements by filing

a timely Notice of Appeal and preserving its sentencing issues by filing a

Petition to Reconsider Sentence.          The Commonwealth also included a

separate     Pa.R.A.P.     2119(f)   Statement        in        its   appellate     brief.

Commonwealth’s Brief at 20-21.

     As to whether the Commonwealth has presented a substantial

question, we note:

           The determination of what constitutes a substantial
           question must be evaluated on a case-by-case basis. A


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         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.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and quotation omitted).

      Here, the Commonwealth summarizes the evidence adduced during

Appellee’s     Pre-Sentence    Investigation       suggesting   she   is   in    need   of

treatment, and then summarily concludes that “the sentencing court abused

its discretion in imposing a total sentence of less than half the statutory

maximum available to ensure adequate supervision to promote the safety of

the   public     as   well    as    the   rehabilitative    needs     of    [Appellee].”

Commonwealth’s Brief at 31-32.

      The Commonwealth’s claim, that the sentencing court failed to

adequately consider these aggravating factors, closely mirrors the claims of

countless criminal defendants who aver that their sentencing courts failed to

adequately consider mitigating evidence. An argument that the sentencing

court failed to consider mitigating factors in favor of a lesser sentence does

not   present     a   substantial     question      appropriate     for    our    review.

Commonwealth v. Hanson, 856 A.2d 1254, 1257-58 (Pa. Super. 2004).

See also Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002)

(citing Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super.

1989) (en banc) (noting that an allegation that the sentencing court did not



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adequately consider various factors is, in effect, a request that this court

substitute its judgment for that of the lower court in fashioning a defendant’s

sentence).

      Accordingly, we conclude that the Commonwealth’s assertion that the

trial court did not adequately consider Appellee’s need for treatment does

not raise a substantial question. Therefore, we will not review the merits of

this claim.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/6/2016




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