J-A03026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    HEATHER J. LIPPINCOTT

                             Appellant                 No. 709 MDA 2019


             Appeal from the Judgment of Sentence April 11, 2019
              In the Court of Common Pleas of Lancaster County
               Criminal Division at No: CP-36-CR-0004148-2017

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY STABILE, J.                      FILED: APRIL 13 ,2020

        Appellant, Heather J. Lippincott, appeals from her judgment of sentence

of ninety days to five years’ imprisonment for driving under the influence

(“DUI”)—highest rate of alcohol (second offense).1 Appellant argues that the

trial court erred by (1) denying her motion to dismiss under Pa.R.Crim.P. 600

and constitutional speedy trial principles, and (2) grading her DUI violation as

a second offense for sentencing purposes. We affirm.

        At 2:00 a.m. on May 20, 2017, an Ephrata Township police officer

stopped Appellant’s vehicle because it had rear end damage and appeared to

have been involved in an accident. The officer observed that Appellant, the
____________________________________________


1 See 75 Pa.C.S.A. § 3802(c) (defining DUI—highest rate of alcohol as, inter
alia, driving vehicle after imbibing a sufficient amount of alcohol such that the
alcohol concentration in an individual’s blood or breath is 0.16% or higher
within two hours after she has driven); 75 Pa.C.S.A. § 3804(c)(2) (mandatory
ninety day minimum sentence for individuals convicted of DUI—highest rate
of alcohol (second offense)).
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driver of the vehicle, had watery eyes, slurred her speech, and smelled of

alcohol. Appellant admitted that she had been drinking earlier in the evening.

The officer placed Appellant under arrest, and a blood test taken less than two

hours later indicated that her blood alcohol content was .20%.

        Appellant had a previous DUI offense on February 24, 2007 for which

she was accepted into the Accelerated Rehabilitative Disposition (“ARD”)

program on August 6, 2007.

        On June 19, 2017, Appellant was charged with DUI—Highest Rate of

Alcohol     (BAC     over     16%)      (second   offense),   and   DUI—General

Impairment/Incapable of Driving Safely (second offense).2 Her preliminary

hearing took place on August 17, 2017, and she was held for court on all

charges.

        On December 20, 2017, Appellant filed a Motion To Determine Number

Of Prior Offenses, asserting that because she committed her first DUI offense

in February 2007, more than ten years before her present DUI offense, her

first offense was not a prior offense for sentencing purposes under

75 Pa.C.S.A. § 3806(b). On February 13, 2018, the trial court ordered that

Appellant’s 2007 offense fell within Section 3806’s ten-year lookback period,

making it proper to charge her as a second-time offender.

        Following this order, the case did not return to a trial list or status

conference list until the fall of 2018. On July 11, 2018, the District Attorney’s

____________________________________________


2   75 Pa.C.S.A. § 3802(a)(1).

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Office Manager, Patti Urey, sent Jennifer Mulroney, an employee in Lancaster

County Court Administration, an e-mail indicating that Appellant’s case

(among other cases) had not been rescheduled. Urey asked Mulroney to add

Appellant’s case to the August status conference list. Mulroney did not take

any action.

      On September 21, 2018, Urey followed up with another email to

Mulroney asking for a status conference on Appellant’s case. Urey also sent

an e-mail to Laura Antonucci, the secretary of the judge assigned to the case,

requesting addition of Appellant’s case to the November status conference list.

The case was then re-assigned to another judge. On October 18, 2018, the

court scheduled a status conference for November 1, 2018.

      On November 1, 2018, the court placed Appellant’s case on the call of

the list for January 11, 2019. On January 4, 2019, Appellant filed a motion to

dismiss for an alleged violation of Appellant’s speedy trial rights. On January

22, 2019, the court denied the Rule 600 motion.

      On January 28, 2019, Appellant proceeded to trial without a jury, and

the court found her guilty on all counts. On April 11, 2019, the court imposed

the mandatory minimum sentence of ninety days to five years’ imprisonment

on the charge of DUI—highest rate of alcohol (second offense). The other DUI

charge merged for purposes of sentencing. Appellant timely appealed to this

Court, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises two issues in this appeal:




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      1. [Appellant]’s Right to Speedy Trial under Pa.R.Crim.P. 600 and
      her Federal Speedy Trial Rights were violated when the
      Commonwealth failed to bring her to trial [within] 365 [days]. The
      Commonwealth did not exercise due diligence in rescheduling the
      matter. Should the charges filed against her be dismissed with
      prejudice?

      2. [Appellant]’s first DUI occurred on February 24, 2007. It was
      resolved on August 6, 2007. [Appellant]’s current case occurred
      on May 20, 2017. The plain language of 75 Pa.C.S.A. §3806(b)
      (1)(i) states that the prior offense must have occurred within ten
      years prior to the date of the offense for which [Appellant] is being
      sentenced. As the particular provisions control over the general
      provisions, did the trial court err in holding that [Appellant]’s
      current offense is her second offense?

Appellant’s Brief at 4.

      Appellant first argues that the trial court erred by denying her motion

to dismiss all charges for violating her speedy trial rights under Rule 600 and

the Sixth Amendment of the federal Constitution. We disagree.

      Ordinarily, we review the trial court’s order denying Rule 600 relief for

abuse of discretion. Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017).

“Our scope of review is limited to the record evidence from the speedy trial

hearing and the findings of the lower court, reviewed in the light most

favorable to the prevailing party.” Commonwealth v. Selenski, 994 A.2d

1083, 1088 (Pa. 2010). The trial court denied Appellant’s Rule 600 motion

without a hearing. Nevertheless, based on the existing record, we are able to

decide Appellant’s Rule 600 argument without remanding this case for a

hearing.




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      Rule 600, Pennsylvania’s speedy trial rule, “establishes a careful matrix

protecting a defendant’s rights to be free from prolonged pretrial incarceration

and to a speedy trial, while maintaining the Commonwealth’s ability to seek

confinement of dangerous individuals and those posing a risk of flight, and to

bring its cases in an orderly fashion.” Commonwealth v. Dixon, 907 A.2d

468, 473 (Pa. 2006). Rule 600 provides: “Trial in a court case in which a

written complaint is filed against the defendant shall commence within 365

days from the date on which the complaint is filed.”               Pa.R.Crim.P.

600(A)(2)(a).

      Rule 600 does not automatically mandate discharge when trial starts

more than 365 days after the filing of the complaint.      Commonwealth v.

Moore, 214 A.3d 244, 248 (Pa. Super. 2019). Instead, Rule 600 “provides

for dismissal of charges only in cases in which the defendant has not been

brought to trial within the term of the adjusted run date, after subtracting all

excludable and excusable time.” Id. The court calculates the adjusted run

date by adding to the mechanical run date (the date 365 days from the

complaint) both excludable time and excusable delay. Id. “Excludable time”

constitutes periods of delay caused by the defendant. Pa.R.Crim.P. 600(C)(2).

“Excusable    delay”   is   delay   caused   by   circumstances   beyond    the

Commonwealth’s control and despite its due diligence. Moore, 214 A.3d at

248-49. “Due diligence is a fact-specific concept that must be determined on

a case-by-case basis. Due diligence does not require perfect vigilance and


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punctilious care, but rather a showing by the Commonwealth that a reasonable

effort has been put forth.”   Id. at 249.    Due diligence includes, inter alia,

listing a case for trial prior to the run date, preparedness for trial within the

run date, and keeping adequate records to ensure compliance with Rule 600.

Id. Periods of delay caused by the Commonwealth’s failure to exercise due

diligence must be included in the computation of time within which trial must

commence. Pa.R.Crim.P. 600(C)(1).

      Excusable delay includes periods of judicial delay. Commonwealth v.

Mills, 162 A.3d 323, 325 (Pa. 2017). “[W]here a trial-ready prosecutor must

wait several months due to a court calendar, the time should be treated as

‘delay’ for which the Commonwealth is not accountable.” Id. “The majority

of Rule 600 cases discussing the concept of judicial delay occur in the context

of scheduling delays, where the Commonwealth is ready to proceed but unable

to do so due to the scheduling limitations of the trial court.” Commonwealth

v. Carter, 204 A.3d 945, 948 (Pa. Super. 2019) (citing Commonwealth v.

Bethea, 185 A.3d 364, 372 (Pa. Super. 2018) (judicial delay excludable and

not chargeable to Commonwealth where delay “was plainly attributable to the

schedule limitations of the trial court”); Commonwealth v. Triplett, 932

A.2d 188, 198 (Pa. Super. 2007) (Commonwealth cannot control schedule of

trial court, and therefore judicial delay can support extension of Rule 600

rundate)).




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         On the other hand, “time attributable to the normal progression of a

case simply is not ‘delay’ for purposes of Rule 600.” Id. “Time during which

no one is prepared for trial—or even possibly could be ready,” is not “delay.”

Mills, 162 A.3d at 325 (in attempted murder case, 174-day delay between

filing    of   complaint   and   status   conference   was   chargeable   against

Commonwealth under Rule 600; at time of status conference, Commonwealth

was not yet in position to provide complete discovery, assigned assistant

district attorney had a planned vacation on the then-scheduled trial date two

weeks later, and Commonwealth had not yet initiated DNA testing of genetic

material from defendant).        Moreover, the Commonwealth’s duty of due

diligence includes the duty to “monitor the Rule 600 time frame” and take

affirmative steps in the event of judicial inaction. Commonwealth v. Sloan,

67 A.3d 1249, 1254 (Pa. Super. 2009). Thus, in Sloan, we ruled that the trial

court properly held the Commonwealth accountable where it permitted the

trial court’s arraignment clerk to schedule a status conference beyond the Rule

600 run date without monitoring the Rule 600 deadline and notifying the clerk

of his error. Id.; see also Commonwealth v. Thompson, 136 A.3d 178,

185 (Pa. Super. 2016) (Commonwealth’s “mere assertions of due diligence

are insufficient, rather due diligence requires affirmative action”).

         Appellant argues, and the Commonwealth does not dispute, that the

Commonwealth is responsible for 129 days of delay between June 29, 2017,

the date of filing of the criminal complaint, and February 13, 2018, the date


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the trial court decided Appellant’s Motion To Determine Number Of Prior

Offenses.3

       The parties dispute whether two time periods after the February 13,

2018 order are attributable to the Commonwealth under Rule 600: (1) the

261-day hiatus between February 13, 2018 and November 1, 2018, the date

the trial court held a status conference and placed Appellant’s case on the

January trial list, and (2) the 64-day gap between November 1, 2018 and

January 4, 2019, the date Appellant filed her Rule 600 motion. The trial court

held that none of this time is attributable to the Commonwealth. We hold that

part of the first time period—158 days between February 13, 2018 and July

11, 2018—is attributable to the Commonwealth, but the remainder of the first

time period, and the entire second time period, is not.


____________________________________________


3 The 129 days attributable to the Commonwealth come from four delays: (1)
32 days between June 29, 2017, the date of the complaint, and August 3,
2017, the scheduled date of Appellant’s preliminary hearing; (2) 22 days
between August 17, 2017, the actual date of the preliminary hearing, and
September 8, 2017, the date of Appellant’s formal arraignment; (3) 41 days
between September 8, 2017, the date of arraignment, to October 19, 2017,
the first scheduled date of a status conference with the court; and (4) 34 days
between November 16, 2017, the second scheduled date of the status
conference, to December 20, 2017, the date Appellant filed her Motion To
Determine Number Of Prior Offenses.

Appellant concedes that three delays are attributable to her instead of the
Commonwealth: (1) a continuance of her preliminary hearing from August 3,
2017 to August 17, 2017 that she requested; (2) a continuance of the status
conference from October 19, 2017 to November 16, 2017 that she requested;
and (3) the delay from December 20, 2017 to February 13, 2018 caused by
her Motion To Determine Number Of Prior Offenses.


                                           -8-
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      In between February 13, 2018 and July 11, 2018, the trial court took no

action to place this case on the trial list.           During these 158 days, the

Commonwealth did not ask the trial court to place this case on the trial list or

take any other action to bring this case to trial. Such complete inaction is

unacceptable in view of the Commonwealth’s requirement under Rule 600 to

take affirmative steps to remedy judicial inertia. Sloan, Thompson, supra.

      Between July 11, 2018 and November 1, 2018, however, the

Commonwealth repeatedly notified the court that this case was withering on

the judicial vine. On July 11, 2018, the Commonwealth e-mailed the court

administrator that Appellant’s case had not been rescheduled.                The court

administrator   still   took    no   action.     On    September     21,     2018,   the

Commonwealth emailed requests to the court administrator and the secretary

of the assigned judge to schedule Appellant’s case for a status conference.

Several weeks later, the new judge assigned to the case scheduled a status

conference for November 1, 2018. Although the Commonwealth might have

done more, such as sending weekly reminders to court administration about

Appellant’s case, the law makes clear that “due diligence does not require

perfect   vigilance     and    punctilious   care”    but   merely   proof    that   the

Commonwealth made a “reasonable effort,” Moore, 214 A.3d at 249, through

“affirmative steps.”          Sloan, 67 A.3d at 1254.            In our view, the

Commonwealth’s emails to court administration and the assigned judge’s

secretary between July 11, 2018 and November 1, 2018 constituted


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reasonable affirmative steps to bring this case to trial. This time period is not

chargeable to the Commonwealth under Rule 600.

       Appellant’s reliance on Commonwealth v. Booze, 947 A.2d 1287 (Pa.

Super. 2008), is misplaced.         In Booze, this Court upheld the dismissal of

charges against the defendant under Rule 600 where the Commonwealth

knew that she was in a Maryland prison but failed to exercise due diligence to

secure her upon the disposition of the Maryland charges. Under the Interstate

Agreement      on    Detainers     (“IAD”),4   42   Pa.C.S.A.   §§   9101-71,   the

Commonwealth had the options of filing a formal detainer with Maryland

officials or instituting extradition proceedings in Maryland.         Although the

Commonwealth faxed a copy of its criminal complaint to Maryland, there were

no assurances by Maryland authorities that the complaint would in fact serve

as a detainer. Nor did the Commonwealth institute extradition proceedings.

       The Commonwealth acted improperly in Booze by failing to take

advantage of statutory remedies available under the IAD. Here, in contrast,

there were no remedies under Rule 600 that would have been reasonable for

the Commonwealth to take. Rule 600(C) permits the Commonwealth to seek

a continuance, but the Commonwealth had no reason to request a continuance



____________________________________________


4 “The IAD is a compact among 48 states, the District of Columbia and the
United States. The IAD establishes procedures for the transfer of prisoners
incarcerated in one jurisdiction . . . to the temporary custody of another
jurisdiction . . . which has lodged a detainer against them.” Commonwealth
v. Plowden, 157 A.3d 933, 938 n.5 (Pa. Super. 2017) (en banc).

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in 2018 because it was ready for trial. Rule 600(D) makes certain remedies

available for the defendant in appropriate circumstances, such as a motion to

dismiss, but does not provide any remedy for the Commonwealth. Since there

was no rule-based remedy, the Commonwealth needed to find another

practical step to get this case back on track. It took that step by repeatedly

requesting, in writing, that court administration and/or the judge schedule a

status conference. By taking this measure, the Commonwealth satisfied its

duty of due diligence for the period between July 11, 2018 and November 1,

2018.5

       With regard to the next time period between November 1, 2018 and

January 4, 2019,6 the trial court held a status conference on November 1,

2018 and listed the case for trial on the trial list for January 11, 2018. This




____________________________________________


5  Our reasoning is analogous to this Court’s recent en banc decision in
Plowden. There, between July and October 2014, the Commonwealth took
no steps to secure the defendant’s return from New York, but on October 9,
2014, it formally requested the defendant’s return from New York under the
IAD. We held that the time between July and October was attributable to the
Commonwealth, id., 157 A.3d at 941-42, but the time after October 9, 2014
until the beginning of trial in January 2015 was not attributable because the
Commonwealth exercised due diligence through its IAD request. Id. at 942.
Similarly, in this case, the time between February 13, 2018 and July 11, 2018
is attributable to the Commonwealth due to its inaction. The time between
July 11, 2018 and November 1, 2018, during which the Commonwealth acted
affirmatively to bring this case to trial, is not chargeable to the
Commonwealth.

6Appellantdoes not argue that any time between January 4, 2019 and January
28, 2019, the date of trial, is attributable to the Commonwealth.

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time is not attributable to the Commonwealth because it resulted from judicial

delay beyond the Commonwealth’s control. Carter, Bethea, Triplett, supra.

      In total, 287 days are attributable to the Commonwealth under Rule

600, well within Rule 600’s 365-day limit.                Pa.R.Crim.P. 600(A)(2)(a).

Accordingly, Appellant’s Rule 600 argument fails.

      Appellant’s Sixth Amendment speedy trial argument fails as well. Under

the balancing test articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct.

2182, 33 L.Ed.2d 101 (1972), we first examine the threshold question of

whether    “the   delay   itself   is   sufficient   to    trigger   further   inquiry.”

Commonwealth v. Miscovitch, 64 A.3d 672, 679 (Pa. Super. 2013). If the

delay is sufficient to trigger further inquiry, we then “balance the length of the

delay with the reason for the delay, the defendant’s timely assertion of his

right to a speedy trial, and any resulting prejudice to the interests protected

by the right to a speedy trial.” Id.

      It is more difficult to establish a Sixth Amendment speedy trial violation

than a Rule 600 violation, a fact demonstrated by decisions that the Sixth

Amendment is not violated even when trial takes place a short time beyond

the Rule 600 deadline. Commonwealth v. Preston, 904 A.2d 1, 15 (Pa.

Super. 2006) (citing Commonwealth v. Crowley, 466 A.2d 1009, 1014 n.9

(Pa. 1983)). Since trial in this case took place within the Rule 600 deadline,

there was no Sixth Amendment speedy trial violation. Stated in terms of the




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Barker test, delays that do not result in a Rule 600 violation are not “sufficient

to trigger further inquiry” under Barker. Miscovitch, 64 A.3d at 679.

       In her next argument, Appellant contends that the trial court erred by

grading her as a second-time DUI offender, because the date of her first DUI

offense, February 24, 2007, was more than ten years before the date of her

present offense, May 20, 2017. Based on our Supreme Court’s recent decision

in Commonwealth v. Mock, 219 A.3d 1155 (Pa. 2019), and our analysis in

Commonwealth v. Atkins, 2020 WL 90661 (Pa. Super. 2020),7 we conclude

that the trial court properly sentenced Appellant as a second-time offender.

       In Mock, the defendant committed his first DUI offense on June 3, 2006,

was convicted of this offense on March 27, 2007, and committed another DUI

offense on July 10, 2016. Following his arrest for the 2016 DUI offense, the

Commonwealth charged him with DUI as a second offense. The defendant

moved to quash the information, arguing that the 2016 DUI was not a second

offense because he committed the first DUI more than ten years before he

committed the second DUI. The trial court denied the motion to quash, and

the Superior Court affirmed.         Our Supreme Court granted the defendant’s

petition for allowance of appeal and affirmed the Superior Court’s order,

holding: “the ten-year lookback period in [75 Pa.C.S.A. §] 3806 runs from




____________________________________________


7Although Atkins is an unpublished decision, we may cite it for its persuasive
value because it was filed after May 1, 2019. Pa.R.A.P. 126(b).

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the occurrence date of the present offense to the conviction date of the earlier

offense.” Id., 219 A.3d at 1160. The Court reasoned:

      Section 3806 includes a “[g]eneral rule” and a specific rule relating
      to “[t]iming.” 75 Pa.C.S.[A.] § 3806. The general rule in
      subsection (a), limited by the phrase “[e]xcept as set forth in
      subsection (b),” defines prior offense as “any conviction” or
      alternative disposition “before the sentencing on the present
      violation” for offenses such as DUI and applies to the entirety of
      Chapter 38. Id. The specific rule in subsection (b), relevant for
      grading and penalty purposes, states that a prior offense “must
      have occurred ... within [ten] years prior to the date of the offense
      for which the defendant is being sentenced[.]” Id. Applying the
      definition of prior offense provided in subsection (a), subsection
      (b) reads “the prior offense,” i.e., conviction or alternative
      disposition, “must have occurred ... within ten years prior to the
      date of the offense for which defendant is being sentenced.” Id.
      This interpretation also gives effect to the exclusionary phrase in
      subsection (a), which signals that subsection (b) limits the scope
      of “prior offense” in subsection (a), defined as “any conviction,”
      to only those convictions taking place within the timing confines
      of subsection (b). Id. Thus, the plain language of the statute
      requires that the ten-year lookback period runs from the
      occurrence date of the present offense to the conviction date of
      the earlier offense. [The defendant] was properly sentenced as a
      second-time offender because his earlier conviction took place less
      than ten years before he committed the present offense.

Id. at 1160-61 (emphasis added).

      In Atkins, the defendant was charged with DUI on August 1, 2007. Like

Appellant herein, the defendant was admitted into ARD on February 8, 2008.

On August 29, 2017, he committed another DUI offense.            The defendant

claimed that he could not be sentenced as a second-time DUI offender

because the dates of his offenses were more than ten years apart. Following

Mock, we held it was proper to sentence the defendant as a second-time




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offender because he entered ARD for his first DUI offense less than ten years

before committing his second DUI offense:

     Although Appellant’s first DUI resulted in his being accepted into
     ARD—and did not, as in Mock, result in a conviction—Mock still
     controls the outcome of this case. As Mock holds, Section
     3806(a) provides the “general definition” of the term “prior
     offense;” and, according to Mock, the general definition is
     “applicable throughout the remainder of the statute.” Id., [219
     A.3d at 1162].

     In keeping with Mock and the plain language of the statute, we
     note that Section 3806(a) defines the term “prior offense,” in
     relevant part, as: “any ... acceptance of Accelerated Rehabilitative
     Disposition ... for ... an offense under section 3802 (relating to
     driving under influence of alcohol or controlled substance).”
     75 Pa.C.S.A. § 3806(a). Using this definition of “prior offense,”
     Section 3806(b) must be read in the following manner: “[f]or
     purposes of sections ... 3803 (relating to grading) [and] 3804
     (relating to penalties) ..., the prior offense [(i.e. the ‘acceptance
     of Accelerated Rehabilitative Disposition’ for a Section 3802
     offense) ] must have occurred ... within 10 years prior to the date
     of the offense for which [Appellant] is being sentenced.”
     75 Pa.C.S.A. § 3806; Mock, [219 A.3d at 1161].

     In the case at bar, Appellant was accepted into ARD for his first
     DUI on February 8, 2008 and he committed his second DUI within
     ten years of this date—on August 29, 2017. As such, pursuant to
     Mock and the plain statutory language of Section 3806, Appellant
     was properly convicted of DUI as a second offense.

Id., 2020 WL 90661 at *4.

     This case resembles Atkins. While Appellant’s first DUI offense took

place more than ten years before the present offense, she entered ARD less

than ten years before the present offense. Therefore, based on our Supreme

Court’s interpretation of Section 3806 in Mock, and this Court’s persuasive




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analysis in Atkins, we hold that the trial court properly sentenced Appellant

as a second-time offender.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/13/2020




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