J-A11044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES ANDREW HICKS, III                  :
                                               :
                       Appellant               :   No. 1656 MDA 2019

        Appeal from the Judgment of Sentence Entered October 11, 2018
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0001598-2015


BEFORE:       PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JUNE 03, 2020

        Appellant Charles Andrew Hicks, III, appeals from the Judgment of

Sentence entered in the Court of Common Pleas of Franklin County on October

11, 2018, imposed following revocation of his intermediate punishment.

Following our review, we affirm.

        The trial court set forth the relevant facts and procedural history herein

as follows:

              [Appellant] entered into an agreement whereby he pled
        guilty to DUI Refusal - 2nd Offense Tier 3. On September 16,
        2015, [Appellant] was sentenced to intermediate punishment for
        a period of 60 months with 30 days to be served in the Franklin
        County Jail Weekender Program, 120 days of electronic
        monitoring and alcohol monitoring followed by two months of
        alcohol monitoring. A petition was filed alleging that he had
        violated his agreement in the following ways:


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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          1) Testing positive for marijuana and providing an
          adulterated urine sample;
          2) Testing positive for cocaine and being untruthful
          about using cocaine;
          3) Violating home arrest schedule;
          4) Failing to complete his community service hours;
          5) Failing to enroll in Drug and Alcohol Treatment; and
          6) Failing to pay his $19,290.32 in restitution, fines and
          costs.

           On August 1, 2018, [Appellant] was resentenced after being
     found in violation of intermediate punishment. The sentence
     imposed was 30 to 60 months of imprisonment in a State
     Correctional Institution with credit for time previously served. On
     August 13, 2018, the Defendant filed a Post-Sentence Motion
     Pursuant to Pa.R.Crim.P 720(B) ("Post Sentence Motion") and was
     represented by Attorney Cayla E. Amsley-Mummert. A hearing
     was held on September 25, 2018. This Court denied the Post
     Sentence Motion on October 16, 2018. A notice of appeal to the
     Superior Court was not filed by counsel. [Appellant] filed a pro se
     Post Conviction Relief Act (PCRA) Petition on April 18, 2019. This
     Court appointed Erich E. Hawbaker as counsel for [Appellant] for
     the purposes of the PCRA Petition. An Amended PCRA Petition was
     filed on June 24, 2019. The Commonwealth filed an Answer to the
     Amended PCRA. Petition on July 18, 2019. A hearing was held on
     August 22, 2019.
            This Court found [Appellant’s] claim of ineffectiveness of
     counsel had merit, that there was no justifiable rationale for
     counsel's failure to file a notice of appeal to the Superior Court,
     and that the failure to file a direct appeal was prejudice per se. By
     Order of Court on September 5, 2019, this [c]ourt granted
     [Appellant’s] PCRA ineffectiveness of counsel claim and reinstated
     [Appellant’s] right to appeal to the Superior Court nunc pro tunc.
     [Appellant] filed a Notice of Appeal on October 4, 2019 and filed
     a Concise Statement of Matters Complained of on Appeal
     (“Concise Statement”) on October 24, 2019.

Trial Court’s “Opinion sur PA.R.A.P. 1925(a) and Order of Court,” filed

10/29/19, at 1-3.

     When addressing the claims Appellant presented on appeal in its

October 29, 2019, Opinion, the trial court referenced the analysis it had

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previously set forth in its October 16, 2018, Opinion, written in support of its

denial of Appellant’s post-sentence motion. Id. at 4. In his appellate brief,

Appellant presents two questions for our review:

       A.    Did the Sentencing Court err by imposing an illegal sentence
       of greater than six (6) months of incarceration on August 1, 2018?

       B.    Did the Sentencing Court err by sentencing [Appellant] to
       enhanced criminal penalties for refusal to submit to an
       unconstitutional warrantless blood test incident to arrest for drunk
       driving?


Brief of Appellant at 6.1

       Initially, we note that an intermediate punishment sentence is

analogous to a sentence of probation. This Court reviews a sentence imposed

following a revocation of probation for an error of law or an abuse of discretion.

Accordingly, we apply that same standard in reviewing revocation of

Appellant's intermediate punishment sentence. Commonwealth v. Flowers,

149 A.3d 867, 872–73 (Pa.Super. 2016). “[I]n an appeal from a sentence

imposed after a trial court’s revocation of probation, this Court can review the

validity of the revocation proceedings, the legality of the sentence imposed

following revocation, and any challenge to the discretionary aspects of the




____________________________________________


1 On March 24, 2020, the Commonwealth filed a letter dated March 19, 2020,
with this Court wherein it indicated an appellate brief would not be
forthcoming, as it was “in agreement with the trial Court’s Opinion that the
issues raised by Appellant are without merit.”

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sentence imposed.” Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.

Super. 2015) (citation omitted).

      Herein, Appellant does not challenge the trial court’s finding on August

1, 2018, that he committed multiple violations of the intermediate punishment

sentence he had received following his guilty plea in 2015. Rather, Appellant

first argues that “an individual who violates 75 Pa.C.S. § 3802(a) and has no

more than one prior offense may only be sentenced to a term of imprisonment

of no more than six months, even if the offense is graded as a first degree

misdemeanor.” Brief of Appellant at 14. In reaching this conclusion, Appellant

relies upon this Court’s holdings in Commonwealth v. Musau 69 A.3d 754

(Pa.Super. 2013), superseded by statute, and Commonwealth v. Grow 122

A.3d 425 (Pa.Super. 2015), superseded by statute, which he admits were

decided using the now-obsolete phrase “’Notwithstanding the provisions of

subsection (b) in 75 Pa.C.S.A. § 3803(a)’ and replaced [] with the phrase,

‘Except as provided in subsection (b).’” Brief of Appellant at 12. Nevertheless,

Appellant reasons that “grading the offense as a misdemeanor of the first

degree has effects beyond the length of sentence that may be imposed. . .

Thus, an individual who violates 75 Pa.C.S.A. § 3802(a) and has no more than

one prior offense may only be sentenced to a term of imprisonment of no

more than six months, even if the offense is graded as a first degree

misdemeanor.” Id. at 13.

       In rejecting this argument, the trial court reasoned as follows:


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            [Appellant] avers the language of Section 3803(a) takes
     precedence over Section 3803(b)(4). According to [Appellant], the
     language in Section 3803(a) stating that an individual that
     violates Section 3802(a) and has no more than one prior offense
     "may be sentenced to a term of imprisonment of not more than
     six months," 75 Pa.C.S.A. § 3803(a)(1), supersedes the more
     specific language in Section 3803 (b)(4). Section 3803 (b)(4)
     contains language indicating that an individual who violates
     Section 3802 where the individual refused blood or breath testing
     and who also has one or more prior offenses commits a
     misdemeanor of the first degree. 75 Pa.C.S.A. § 3803 (b)(4).
            [Appellant’s] reading of the statute is mirrored by the Musau
     decision of 2013. Musau, 69 A3d at 758. The central problem with
     this reasoning is that the statutory language relied upon in the
     Musau decision has since been amended. The General Assembly
     amended 75 Pa.C.S.A. Section 3803(a) to eliminate the phrase
     "Notwithstanding the provisions of subsection (b)" and substituted
     the phrase "Except as provided in subsection (b)," which gave
     subsection (b) precedence over the provisions of subsection (a) of
     Section 3803.1 The language relied upon by the Musau Court for
     its holding has been significantly altered, so its holding regarding
     the maximum permissible sentence and can only he applied to
     cases prior to the General Assembly's alteration of the language
     in 2014. See Commonwealth v. Grow, 122 A.3d 425, 427-28
     (Pa.Super, 2015). In the instant case, this [c]ourt finds that since
     [Appellant] committed the crime and was sentenced after the
     General Assembly's modification of the language in 2014, it is
     Section 3802(b)(4) that controls. The language in paragraph
     (b)(4) more specifically aligns with the facts of the instant case:
     "he who violates Section 3802(a)(1) where the individual refused
     testing of blood or breath...and who has one or more prior
     offenses commits a misdemeanor of the first degree." 75
     Pa.C.S.A. § 3803 (b)(4).

     II. Whether Musau Controls With Reaard to the Six –Month
     Incarceration Limitation

            [Appellant] argues that even if Section 3802(b)(4) controls
     and the crime to which [Appellant] pled guilty is accurately graded
     as a first degree misdemeanor, the Musau holding continues to
     mandate a sentence of no more than six months[’] incarceration
     for a second DUI offense. [Appellant] cites no case law in support

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     of this argument decided since the amendment of the applicable
     grading statute in 2014. This [c]ourt finds this argument without
     merit since the General Assembly amended Section 3803 to give
     precedence to paragraph (b) over paragraph (a) when one of five
     (5) scenarios is more specifically applicable.2
            This [c]ourt finds that the legislature removed the ambiguity
     in precedence between paragraphs (a) and (b) in order to more
     specifically indicate instances where certain conduct is deemed
     more serious, and therefore warrants more serious punishment.
     Commonwealth v. Wilson, 111 A.3d 747, 753 (Pa. Super. 2015)
     (articulating why paragraph (b)(5) takes precedence over
     paragraph (b)(1) “the legislature made a policy decision to impose
     more severe sanctions on those who endanger children by
     operating a vehicle while impaired. Accordingly, the trial court did
     not err in sentencing Appellant to 12 months of probation plus 4
     days at a DUI alternative program. The sentence did not exceed
     the statutory maximum of 5 years for a first degree misdemeanor
     pursuant to Section 3803(b)(5).”).3 The Superior Court did not
     find that Musau's limitation of six months imprisonment controlled
     in a scenario covered by Section 3803(b)(5), so the logical
     conclusion is that Musau does not control in the instant case where
     the language of Section 3803(b)(4) is applicable. Additionally, the
     specific issue on appeal in Wilson was whether a sentence is illegal
     “when a person receives a sentence exceeding the statutory
     maximum of six months on a first time DUI conviction under 75
     Pa.C.S.A. § 3803(b), even though the offense is graded as a first
     degree misdemeanor.” The logical conclusion is that the Superior
     Court in Wilson did not find an exception to the normal length of
     sentence permissible for a first degree misdemeanor, even after
     contemplating the Muscau decision, the subsequent amendment
     to Section 3803, and the shorter sentences mandated by a first or
     second DUI offense in the statute itself where less specific and
     less grievous offenses are articulated.

     __
     1Act of October 27, 2014, P.L 2905, No 189.
     2 The General Assembly amended 75 Pa.C.S.A. Section 3803(a)

     to eliminate the phrase “Notwithstanding the provisions of
     subsection (b)” and substituted the phrase “Except as provided in
     subsection (b),” which gave subsection (b) precedence over the
     provisions of subsection (a) of Section 3803.
     3 In Commomveallh v. Wilson, the Pennsylvania Superior Court

     found the language in 75 Pa.C.S.A. § 3803(b)(5) where an
     individual “violates Section 3802 where a minor under 18 years of

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      age was an occupant in the vehicle when the violation occurred
      commits a misdemeanor of the first degree” sufficient to justify
      the ordinary maximum punishment for misdemeanor of the first
      degree, which is five (5) years imprisonment. The Superior Court's
      Wilson decision was filed on February 18, 2015, which is after the
      2014 amendments to Section 3803 which clarified the precedence
      between paragraphs (a) and (b). Wilson. 111 A.3d at 750. §
      3803(b)(4) language is identical to § 3803(b)(5) with regard to
      the grading designation: “commits a misdemeanor of the first
      degree.” 75 Pa.C.S.A. § 3803.

Trial Court Opinion, filed 10/17/18, at 4-7.

       We find no error in the trial court’s reasoning. Thus, for the reasons

the trial court set forth, we do not find that Appellant’s re-sentence of more

than six months was illegal.

       Appellant next posits the resentencing that occurred on August 1,

2018, was unconstitutional in light of the United States Supreme Court’s

decision entered on June 23, 2016, in Birchfield v. North Dakota, 136 S.Ct.

2160 (2016) which held that states could not criminally punish a defendant's

refusal to submit to warrantless blood test for blood alcohol content. Appellant

avers “his judgment of sentence was not final in 2015,” and that his “judgment

of sentence is still not yet final, and he is entitled to relief as the sentence

imposed on August 1, 2018, has been rendered illegal by Birchfield.” Brief of

Appellant at 11, 15. Appellant reasons this is so because on September 5,

2019, his appeal rights had been reinstated nunc pro tunc, following the trial

court’s finding merit to Appellant’s ineffective assistance of counsel claims

raised in his timely-filed PCRA petition   Id. at 15.




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     The trial court disagreed with Appellant’s analysis and found Birchfield

inapplicable in light of the fact that Appellant had reached a plea agreement

and was originally sentenced on September 16, 2015.            The trial court

explained:

            In the instant case, the original length of the sentence in
     September 2015 was 60 months. This [c]ourt was within its
     discretion to administer this sentence based upon the
     misdemeanor of the first degree charge for which [Appellant] pled
     guilty. 101 Pa. Code § 15.66(b)(6). This [c]ourt permitted
     [Appellant] to enter the Restrictive Intermediate Punishment
     program and to spend minimal time incarcerated while he
     participated in alcohol monitoring.       [Appellant] violated this
     agreement and was resentenced to 30 to 60 months[’]
     incarceration just as this [c]ourt was authorized to do at the time
     of the original sentencing according to 42 Pa.C.S. Section 9773.
     The [c]ourt finds that this resentencing was the imposition of the
     old sentence given on September 16, 2015 and that it was not
     subject to the holding of Birchfeld because the holding is not
     retroactive in Pennsylvania for cases on collateral review and this
     [c]ourt is within its discretion to resentence a violator of
     intermediate punishment to any sentence that would have been
     available at the time of the original sentence.

                                     ***

           The [c]ourt finds that Birchfield is not retroactive for cases
     on collateral appeal, so the holding in the case is not applicable to
     [Appellant’s] sentence in the instant case. A resentence is not a
     new sentence. At [Appellant’s] resentencing on August 1, 2018,
     this [c]ourt had the discretion to sentence [Appellant] to any
     sentence authorized by statute for a misdemeanor of the first
     degree because this [c]ourt had the discretion to do the same on
     September 16, 2015 when [Appellant] was sentenced for the first
     time in the instant case.

Trial Court Opinion, filed 10/17/18, at 9, 10. We agree.

      Following his September 16, 2015, plea, Appellant did not file a direct

appeal. Therefore, his judgment of sentence became final on or about October

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16, 2015. Pa. R.A.P. 903(a) (stating a notice of appeal shall be filed within

thirty days after the entry of the order from which the appeal is taken). Nearly

three years later, Appellant was re-sentenced on August 1, 2018, after the

trial court found him to be in violation of his intermediate punishment

sentence, a finding which he does not challenge herein, and revoked his

probation. As a result, the trial court clearly had the authority to resentence

Appellant.

       “Upon revocation the sentencing alternatives available to the court

shall be the same as were available at the time of initial sentencing, due

consideration being given to time spent serving the order of probation.” 42

Pa.C.S.A. 9771(b) (emphasis added). In addition, as previously stated, in an

appeal from a sentence imposed after a trial court’s revocation of probation,

this Court can review legality of the sentence imposed following

revocation. Wright, supra at 136 (emphasis added).

       Appellant’s assertion to the contrary, the issue herein is not whether

the trial court imposed enhanced criminal penalties upon him for his refusal

to submit to chemical testing, but rather whether the trial court legally

sentenced Appellant following its finding he had committed multiple violations

while he was involved in the restrictive intermediate punishment program.

The latter sentence was not a continuation of the first, for had Appellant not

violated the terms of his September 16, 2015, sentence from which he did not

file an appeal, that sentence would still stand.   The judgment of sentence


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entered on August 1, 2018, constituted a new sentence in light of new

charges, and at that time the trial court had available to it the sentencing

alternatives that had been available at the time of the initial sentence. See

42 Pa.C.S.A. 9771(b).      Appellant’s ability to file an appeal nunc pro tunc

pertained to his right to appeal the re-sentence entered on August 1, 2018.

      Moreover, even were we to accept Appellant’s view that his timely PCRA

petition entitles him to a review of his illegality claim based on Birchfield, as

a matter of first impression, the Pennsylvania Supreme Court recently held

that Birchfield did not constitute a new rule of law that applied retroactively

on post-conviction review. Commonwealth v. Olson, 218 A.3d 863 (Pa.

2019). In doing so, the Court reasoned that “[b]ecause Birchfield did not

set forth a ‘categorical constitutional guarantee’ that places criminal

punishment for blood test refusal ‘altogether beyond the State's power to

impose,’ id. at 729, but, rather, established a procedural requirement that,

once satisfied, authorizes that punishment, the Birchfield rule is not

substantive. Accordingly, Birchfield does not apply retroactively on post-

conviction collateral review.” Id. at 875.        Therefore, in light of all of the

foregoing, Appellant is not entitled to relief.

      Judgment of Sentence Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/03/2020




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