J-S29025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TODD HAMILTON BROOKS

                            Appellant                  No. 1503 WDA 2014


             Appeal from the Judgment of Sentence August 6, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011854-2013


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                                  FILED JULY 08, 2015

        Appellant, Todd Hamilton Brooks, appeals from the August 6, 2014

aggregate judgment of sentence of four to eight years’ imprisonment

followed by five years’ probation, imposed after Appellant pled guilty to

aggravated assault by vehicle while driving under the influence (DUI), DUI -

highest rate, and two counts of DUI – general impairment.1           After careful

review, we vacate and remand for resentencing.

        The trial court set forth the relevant procedural history as follows.

                    On August 15, 2013, Appellant was charged by
              criminal information [] with one count of aggravated
              assault by vehicle while driving under the influence,1
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3735.1, 3802(c), and 3802(a), respectively.
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          one count of accidents involving death or personal
          injury,2 one count of accident involving damage to
          attended vehicle,3 one count of driving under the
          influence .16% or above,4 two counts of driving
          under the influence,5 and two summary counts.

                On April 2, 2014, Appellant entered a guilty
          plea to aggravated assault by vehicle while driving
          under the influence, driving under the influence
          .16% or above, and two counts of driving under the
          influence. As part of the negotiated guilty plea the
          remaining counts were withdrawn.

                On August 6, 2014, Appellant was sentenced
          by the [t]rial [c]ourt as follows:

                Count one:    aggravated assault by vehicle
          while driving under the influence – four to eight
          years[’] incarceration followed by one year
          probation;

                 Count four: driving under the influence .16%
          or above – ninety to one hundred eighty days
          incarceration to be served concurrent with the period
          of incarceration imposed at count one, followed by
          four years[’] probation to be served consecutive to
          the period of probation imposed at count one, and a
          fine of $1[,]500;

                The aggregate sentence imposed was four to
          eight years[’] incarceration followed by five years[’]
          probation and a fine of $1[,]500.

               On August 8, 2014, Appellant filed a motion for
          reconsideration of sentence, which the [t]rial [c]ourt
          denied on August 13, 2014.

          1
              75 Pa.C.S. § 3735.1(a).
          2
              75 Pa.C.S. § 3742(a) and (b)(2).
          3
              75 Pa.C.S. § 3743.



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              4
                75 Pa.C.S. §3802(c). This was amended at the
              time of Appellant’s guilty plea to a driving under the
              influence .16% or above second offense.
              5
                  75 Pa.C.S. § 3802(a).

Trial Court Opinion, 2/6/15, 2-3 (footnotes in original).

       On September 12, 2014, Appellant filed a timely notice of appeal.2 On

appeal, Appellant raises the following issues for our review.

              I. Did the sentencing court give an illegal sentence
              where it sentenced [Appellant] on both the DUI:
              [h]ighest [r]ate of [a]lcohol as well as [a]ggravated
              [a]ssault by vehicle while DUI when the DUI is a
              lesser included offense of [a]ggravated [a]ssault by
              DUI and the sentences should have merged?

              II. Did the sentencing court abuse its discretion by
              imposing a sentence inconsistent with the norms
              underlying the sentencing code, failing to con[s]ider
              all releveant [sic] factors and focused almost
              exclusively on the seriousness of the offense and the
              injuries to the victim to the exlcusion [sic] of other
              pertient [sic] factors?

Appellant’s Brief at 6.

       In his first issue, Appellant argues that aggravated assault by vehicle

while DUI should have merged with DUI – highest rate of alcohol. Id. at 15.

A claim that crimes should have merged for sentencing purposes raises a

challenge to the legality of the sentence.       Commonwealth v. Williams,

980 A.2d 667, 672 (Pa. Super. 2009), appeal denied, 990 A.2d 730 (Pa.

____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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2010). “Issues relating to the legality of a sentence are questions of law[.]

… Our standard of review over such questions is de novo and our scope of

review is plenary.” Commonwealth v. Hawkins, 45 A.3d 1123, 1130 Pa.

Super. 2012), appeal denied, 53 A.3d 756 (Pa. 2012( (citation omitted).

      In examining whether Appellant’s offenses should have merged, we

consider the following.

            The preliminary consideration [in determining
            merger for sentencing purposes] is whether the facts
            on which both offenses are charged constitute one
            solitary criminal act. If the offenses stem from two
            different criminal acts, merger analysis is not
            required. If, however, the event constitutes a single
            criminal act, a court must then determine whether or
            not the two convictions should merge.

Commonwealth v. Walls, 950 A.2d 1028, 1031 (Pa. Super. 2008)

(brackets   in   original),   appeal   denied,   991   A.2d   313   (Pa.   2010).

Furthermore, in order for two convictions to merge, the elements of the

lesser-included offense must be subsumed by the elements of the greater

offense. 42 Pa.C.S.A. § 9765.      Specifically, Section 9765 of the Sentencing

Code provides as follows.

            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 [Appellant]
            only on the higher graded offense.

      Instantly, as noted above, Appellant received a sentence of four to

eight years’ imprisonment, followed by one year of probation for aggravated

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J-S29025-15


assault by vehicle while DUI, and 90 to 180 days’ imprisonment, followed by

four years’ probation for DUI – highest rate of alcohol, all stemming from the

one incident in this case. This Court has held that these crimes merge for

sentencing purposes.

              Indeed, the crime[] of … aggravated assault by
              vehicle while DUI require[s], as [an] essential
              element[], that an individual cause the proscribed
              harm “as a result of” violating the DUI statute and
              that the individual be convicted of DUI.          …
              Therefore, the statutory elements of DUI are
              completely subsumed within the crime[] of …
              aggravated assault by vehicle while DUI. As such,
              for sentencing purposes, Appellant’s DUI conviction
              merged with … her … aggravated assault by vehicle
              while DUI conviction[].

Commonwealth v. Tanner, 61 A.3d 1043, 1047 (Pa. Super. 2013).

       In this case, the trial court and the Commonwealth acknowledge the

trial court imposed an illegal sentence.         Trial Court Opinion, 2/6/15, at 5;

Commonwealth’s Brief at 2. We agree with the parties and the trial court

that aggravated assault by vehicle while DUI and DUI – highest rate of

alcohol, should have merged for sentencing purposes. See Tanner, supra.

       Based on the foregoing, we conclude Appellant’s sentence is illegal.3

See id.; Walls, supra. Accordingly, we vacate the trial court’s August 6,

2014 judgment of sentence and remand for resentencing.

____________________________________________


3
  In light of our conclusion that Appellant’s sentence is illegal, his claim
concerning the discretionary aspects of his sentence is moot. Tanner,
supra at 1046 n.3.



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J-S29025-15


      Judgment of sentence vacated.   Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2015




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