J-A06034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                   v.

MICHAEL C. DUTROW

                          Appellant                No. 1616 MDA 2015


      Appeal from the Judgment of Sentence Entered August 20, 2015
              In the Court of Common Pleas of Adams County
             Criminal Division at No: CP-01-CR-0000074-2015


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.:                          FILED JUNE 16, 2016

      Appellant, Michael C. Dutrow, appeals from the August 20, 2015

judgment of sentence imposing five years of intermediate punishment for

driving under the influence of alcohol, 75 Pa.C.S.A. § 3802(c) (highest rate

of alcohol). We affirm.

      Appellant pled guilty to the aforementioned offense on May 21, 2015.

Appellant’s offense required a drug and alcohol assessment in accord with 75

Pa.C.S.A. § 3814 (“Drug and alcohol assessments”).          The trial court

memorialized the parties’ plea agreement in its order accepting Appellant’s

guilty plea:

            If the drug and alcohol assessment indicates the
      Defendant is in need of treatment, the length of the
      Intermediate Punishment Program will be five years. Otherwise,
      the program will be a two-year program.
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Order, 5/21/2015, at 1.           The parties’ agreement appears to track the

language of 75 Pa.C.S.A. § 3804(d),1 which provides that, for offenders who

are “in need of additional treatment” after the § 3814 assessment, “the

judge shall impose a minimum sentence as required by law and a maximum

sentence equal to the statutorily available maximum.”            74 Pa.C.S.A.

§ 3804(d). The parties agree that five years is the statutory maximum in

this case.2

       The assessor recommended treatment, and the trial court therefore

imposed five years of intermediate punishment.            Prior to sentencing,

Appellant voluntarily sought and completed a course of treatment.          He

claims the course of treatment he completed satisfies the treatment

recommended by the assessor. Therefore, Appellant argues, he was not in

need of further treatment at the time of sentencing and the trial court

should have imposed two years of intermediate punishment. According to

the trial court, the fact of Appellant’s need for treatment, rather than the

date of its completion, required a five-year sentence under the terms of the

plea agreement. Trial Court Opinion, 10/6/2015, at 5. The longer sentence

imposed pursuant to the parties’ agreement in this case, as well as the
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1
  As set forth below, we have no occasion to address the parties’ statutory
construction arguments.
2
  Appellant’s second offense under § 3802(c) is a first-degree misdemeanor,
which carries a maximum sentence of five years.                75 Pa.C.S.A.
§ 3803(b)(4); 18 Pa.C.S.A. § 106(b)(6).



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longer sentence contemplated under § 3804(d), the trial court reasoned, “is

to ensure that the treatment is working and continues to work.” Id. The

court noted Appellant’s prolonged supervision after his first offense, and

concluded “extended supervision will help to ensure that Appellant gets the

necessary treatment and supervision to maintain his sobriety and to

discourage him from driving under the influence again.” Id.

      Appellant filed a timely post-sentence motion on August 27, 2015.

The trial court denied the motion the next day. This timely appeal followed.

On appeal, Appellant argues the trial court’s sentence is illegal under

§ 3804(d), and that the trial court erred in denying his post-sentence motion

without a hearing.

      “Settled Pennsylvania law makes clear that by entering a guilty plea,

the   defendant   waives   his   right    to   challenge   on   direct   appeal   all

nonjurisdictional defects except the legality of the sentence and the validity

of the plea.”   Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.

2013), appeal denied, 87 A.3d 319 (Pa. 2014). We have made an exception

to this rule, however, where the defendant pleads guilty pursuant to a plea

agreement with an open sentencing term. Commonwealth v. Tirado, 870

A.2d 362, 365 n.5 (Pa. Super. 2005).           Appellant has not challenged the

validity of his plea. He argues his sentence is illegal because the trial court

misinterpreted § 3804(d) to require a five-year term.           He argues that the

words “in need of additional treatment” in § 3804(d) do not apply where the


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J-A06034-16


defendant completes the needed treatment prior to sentencing.              Appellant

believes the trial court’s alleged misinterpretation of § 3804(d) implicates

the legality of his sentence because the trial court believed it had no

alternative under § 3804(d) but to impose a five-year sentence, given the

assessor’s     recommendation          of      treatment.     Appellant   relies   on

Commonwealth v. Foster, 17 A.3d 332, 344-45 (Pa. 2011) (plurality), to

establish that his argument implicates the legality of his sentence.

       We express no opinion on any aspect of Appellant’s sentence legality

argument, including whether or not his argument implicates sentencing

legality. As the trial court makes clear, it imposed its sentence “in accord

with the parties’ plea agreement.”             Trial Court Opinion, 10/6/2015, at 2.

Nothing prevented Appellant from agreeing to serve an otherwise lawful

sentence, in this case five years of intermediate punishment, even assuming

(without deciding) that § 3804(d) does not require a five-year term under

present circumstances.3

       Since Appellant’s sentencing legality argument is not dispositive, we

must discern whether Appellant’s argument is properly before this Court on

any other basis. As noted above, Appellant did not challenge the validity of

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3
   The trial court opined that the sentence was in accord with both the
parties’ agreement and with statutory mandates. Trial Court Opinion,
10/6/2015, at 4. That statement does not require us to address the legality
of Appellant’s sentence, as enforcement of the parties’ plea agreement is a
sufficient independent basis to uphold Appellant’s sentence.



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J-A06034-16


his plea. If Appellant believed the trial court misinterpreted the phrase “in

need of treatment,” as that phrase was used in the plea agreement,

Appellant could have moved to withdraw his plea and thereby preserved this

issue for appellate review under Lincoln.

      Thus, Appellant’s argument is properly before us only if we can treat it

as an appeal from a plea agreement with an open sentencing term in accord

with the rule cited in Tirado. We conclude we cannot. The sentencing term

of the parties’ agreement contemplates the imposition of one of two

sentences based on a contingency.          It is therefore not an open term

agreement wherein the trial court retains discretion to impose any lawful

sentence.   The proper sentence rests on interpretation of the phrase “in

need of treatment,” as that term is used in the plea agreement.

Interpretation of a plea agreement implicates contract law, not sentencing

discretion. See Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa.

Super. 2013) (en banc), appeal denied, 95 A.3d 276 (Pa. 2014). Appellant

did not present this issue to the trial court, and does not attempt to do so on

appeal.

      In summary, we have concluded that Appellant’s sentencing legality

argument is not dispositive, and that this appeal from a sentence entered




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J-A06034-16


pursuant to a guilty plea is not properly before us on any other basis. 4 We

therefore affirm the judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2016




____________________________________________


4
   Given our disposition, the trial court’s decision not to conduct a hearing is
of no moment.



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