J-S51003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL HOFFMAN

                            Appellant                 No. 2647 EDA 2013


            Appeal from the Judgment of Sentence August 16, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011924-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                        FILED AUGUST 14, 2015

        Appellant, Michael Hoffman, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

open guilty plea to driving under the influence of alcohol (“DUI”).1        We

vacate and remand for IPP evaluation and resentencing.

        The relevant facts and procedural history of this appeal are as follows.

On January 1, 2011, Appellant crashed his car into another vehicle in a

Philadelphia parking garage. Police found Appellant very intoxicated at the

scene of the accident, and Appellant refused a breathalyzer test. Appellant

had a prior DUI offense. On June 24, 2011, the municipal court convicted

____________________________________________


1
    75 Pa.C.S.A. § 3802(a)(1).


_________________________

*Retired Senior Judge assigned to the Superior Court.
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Appellant of DUI as a second offense with refusal of testing and sentenced

Appellant on August 8, 2011, to ninety (90) days to twelve (12) months’

imprisonment.

      Appellant filed a motion for reconsideration on August 18, 2011, which

was denied by operation of law on December 19, 2011.           On August 13,

2012, Appellant filed a petition to reinstate his appeal rights to the Court of

Common Pleas (“CCP”), nunc pro tunc, which the municipal court reinstated

on September 17, 2012. Appellant timely filed an appeal for a trial de novo

with the CCP on October 5, 2012.

      On April 8, 2013, Appellant entered an open guilty plea to DUI as a

second offense with refusal of testing.    The CCP sentenced Appellant on

August 16, 2013, to a mandatory minimum of ninety (90) days to six (6)

months’ imprisonment, with immediate parole after ninety (90) days, and

credit for time served.   Appellant requested a sentence of house arrest or

another alternative sentence under the intermediate punishment program

(“IPP”). The Commonwealth did not object at that time. On September 16,

2013, Appellant filed a motion for post-sentence bail (R.O.R.), which the CCP

granted, pending appeal; Appellant also timely filed a notice of appeal. On

May 8, 2014, the CCP ordered a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).       Appellant timely filed a Rule

1925(b) statement on May 23, 2014.

      Appellant raises one issue for our review:


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         CAN A PHILADELPHIA COMMON PLEAS JUDGE ORDER
         “HOUSE ARREST” AND/OR “INTERMEDIATE PUNISHMENT”
         FOR A 2ND OFFENSE, TIER III DUI (MANDATORY MINIMUM
         90   DAYS),   OVER     THE    OBJECTION   OF    THE
         COMMONWEALTH?

(Appellant’s Brief at 4).

      Appellant argues he is eligible for IPP in Philadelphia, despite the

ninety (90) day mandatory minimum for a second offense DUI with refusal

of testing.   Appellant relies on Commonwealth v. Sarapa, 13 A.3d 961

(Pa.Super. 2011), as controlling to the present case, and allows the court

discretion to impose intermediate punishment for qualified DUI offenders.

Appellant maintains the Commonwealth and the CCP erred in refusing to

offer IPP, due to the mandatory sentencing found in the DUI statute.

Appellant concludes this Court should remand the matter for evaluation to

determine if Appellant qualifies for IPP. We agree.

      Initially, we observe:

         The interplay between the mandatory minimum sentence
         provisions of [75 Pa.C.S.A. § 3804], the exception
         regarding sentencing options in 42 Pa.C.S. § 9721(a.1),
         and the definition of “eligible offender” in 42 Pa.C.S. §
         9802 requires a measure of statutory interpretation, and
         [b]ecause statutory interpretation is a question of law, our
         standard of review is de novo, and our scope of review is
         plenary.     In matters of statutory interpretation, the
         General Assembly’s intent is paramount. Generally, such
         intent is best expressed through the plain language of the
         statute. Thus, [w]hen the words of a statute are clear and
         free from all ambiguity, the letter of it is not to be
         disregarded under the pretext of pursuing its spirit. Every
         statute shall be construed, if possible, to give effect to all
         its provisions. We presume the legislature did not intend a
         result that is absurd, impossible, or unreasonable, and that

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          it intends the entire statute to be effective and certain.
          When evaluating the interplay of several statutory
          provisions, we recognize that statutes that relate to the
          same class of persons are in pari materia and should be
          construed together, if possible, as one statute. If two
          statutes conflict, they are to be construed so effect may be
          given to both, if possible; if this is not possible, the special
          provision prevails over the general one as an exception to
          it, unless the general one was enacted later and there is
          manifest legislative intent that it prevail.

Commonwealth v. Stotelmyer, ___ Pa. ___, ___, 110 A.3d 146, 149-50

(2015).

     Section 9721 of the Sentencing Code states:

          § 9721. Sentencing Generally

          (a)     General Rule.—In determining the sentence to be
          imposed the court shall, except as provided in subsection
          (a.1), consider and select one or more of the following
          alternatives, and may impose them consecutively or
          concurrently:

             (1) An order of probation.

             (2) A determination of guilt without further penalty.

             (3) Partial confinement.

             (4) Total confinement.

             (5) A fine.

             (6) County intermediate punishment.

             (7) State intermediate punishment.

          (a.1) Exception.—

             (1) Unless specifically authorized under section
             9763 (relating to a sentence of county
             intermediate punishment) or Chapter 99

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            (relating to State intermediate punishment),
            subsection (a) shall not apply where a
            mandatory minimum sentence is otherwise
            provided by law.

42 Pa.C.S.A. § 9721 (emphasis of exception added).

      Section 3804 of the DUI statute provides specific penalties for DUI

offenders as follows:

         § 3804. Penalties

                                   *    *    *

         (c) Incapacity; highest blood alcohol; controlled
         substances.—An       individual who    violates  section
         3802(a)(1) and refused testing of blood or breath or an
         individual who violates section 3802(c) or (d) shall be
         sentenced as follows:

                                   *    *    *

            (2) For a second offense, to:

              (i)    undergo imprisonment of not less than 90 days;

              (ii)   pay a fine of not less than $1,500;

              (iii) attend an alcohol highway          safety   school
              approved by the department; and

              (iv) comply with all drug and alcohol treatment
              requirements imposed under sections 3814 and
              3815.

75 Pa.C.S.A. § 3804. Section 9763 of the Sentencing Code addresses IPP

sentencing, in relevant part, as follows:

         § 9763. Sentence of county intermediate punishment

         (a) General rule.—In imposing a sentence of county
         intermediate punishment, the court shall specify at the

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       time of sentencing the length of the term for which the
       defendant is to be in a county intermediate punishment
       program established under Chapter 98 (relating to county
       intermediate punishment) or a combination of county
       intermediate punishment programs. The term may not
       exceed the maximum term for which the defendant could
       be confined and the program to which the defendant is
       sentenced. The court may order a defendant to serve a
       portion of the sentence under section 9755 (relating to
       sentence of partial confinement) or 9756 (relating to
       sentence of total confinement) and to serve a portion in a
       county intermediate punishment program or a combination
       of county intermediate punishment programs.

                                   *    *    *

       (c)    Restriction.—

          (1) Any person receiving a penalty imposed pursuant
          to 75 Pa.C.S. § 1543(b) (relating to driving while
          operating privilege is suspended or revoked), former 75
          Pa.C.S. § 3731 (relating to driving under influence of
          alcohol or controlled substance) or 75 Pa.C.S. § 3804
          (relating to penalties) for a first, second or third offense
          under 75 Pa.C.S. Ch. 38 (relating to driving after
          imbibing alcohol or utilizing drugs) may only be
          sentenced to county intermediate punishment
          after undergoing an assessment under 75 Pa.C.S. §
          3814 (relating to drug and alcohol assessments).

          (2) If the defendant is determined to be in need of
          drug and alcohol treatment, the defendant may only be
          sentenced to county intermediate punishment which
          includes participation in drug and alcohol treatment
          under 75 Pa.C.S. § 3815(c) (relating to mandatory
          sentencing). The defendant may only be sentenced to
          county intermediate punishment in:

              (i) a residential inpatient program or a residential
              rehabilitative center;

              (ii)   house arrest with electronic surveillance;

              (iii) a partial confinement program such as work

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              release, work camp and halfway facility; or

              (iv) any combination of the programs set forth in
              this paragraph.

                                 *    *    *

42 Pa.C.S.A. § 9763(a), (c)(1)-(2) (emphasis added to text of statute).

      Section 9804 of the Sentencing Code describes IPP and eligibility in

pertinent part as:

         § 9804. County intermediate punishment programs

                                 *    *    *

         (b) Eligibility.—

            (1)(i) No person other than the eligible offender shall
            be sentenced to a county intermediate punishment
            program.

            (ii)   The prosecuting attorney, in the prosecuting
            attorney’s sole discretion, may advise the court that the
            Commonwealth has elected to waive the eligibility
            requirements of this chapter if the victim has been
            given notice of the prosecuting attorney’s intent to
            waive the eligibility requirements and an opportunity to
            be heard on the issue.

            (iii)  The court, after considering victim input, may
            refuse to accept the prosecuting attorney’s waiver of
            the eligibility requirements.

            (2)    The Pennsylvania Commission on Sentencing
            shall employ the term “eligible offender” to further
            identify offenders who would be appropriate for
            participation in county intermediate punishment
            programs.       In developing the guidelines, the
            commission shall give primary consideration to
            protection of the public safety.

                                 *    *    *

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          (4)(i) Any person receiving a penalty imposed pursuant
          to 75 Pa.C.S. § 1543(b) (relating to driving while
          operating privilege is suspended or revoked), 3804
          (relating to penalties) or 3808(a)(2) (relating to
          illegally operating a motor vehicle not equipped with
          ignition interlock) shall undergo an assessment
          under 75 Pa.C.S. § 3814 (relating to drug and alcohol
          assessments).

          (ii)   If the defendant is determined to be in need of
          drug and alcohol treatment, a sentence to county
          intermediate punishment shall include participation in
          drug and alcohol treatment under 75 Pa.C.S. § 3815(c)
          (relating to mandatory sentencing). The defendant may
          only be sentenced to county intermediate punishment
          in:

              (A) a residential inpatient program or a residential
              rehabilitative center;

              (B) house arrest with electronic surveillance;

              (C) a partial confinement program such as work
              release, work camp and halfway facility; or

              (D) any combination of the programs set forth in this
              subparagraph.

          (iii) If the defendant is determined not to be in need
          of drug and alcohol treatment or if the defendant
          receives a penalty imposed under 30 Pa.C.S. §
          5502(c.1) (relating to operating watercraft under
          influence of alcohol or controlled substance), the
          defendant may only be sentenced to a county
          intermediate punishment program in:

              (A) house arrest with electronic surveillance;

              (B) partial confinement programs such as         work
              release, work camps and halfway facilities; or

              (C) any combination of the programs set forth in this
              paragraph.

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           (5)    A defendant subject to 75 Pa.C.S.A. § 3804
           (relating to penalties) may only be sentenced to
           county intermediate punishment for a first,
           second, or third offense.

42 Pa.C.S.A. § 9804(b)(1)-(2), (4)-(5) (internal emphasis added).          The

county intermediate punishment (“CIP”) act defines an eligible offender:

        § 9802. Definitions

                                 *    *    *

        “Eligible Offender.”         Subject to section 9721(a.1)
        (relating to sentencing generally), a person convicted of an
        offense who would otherwise be sentenced to a county
        correctional facility, who does not demonstrate a present
        or past pattern of violent behavior and who would
        otherwise be sentenced to partial confinement pursuant to
        section 9724 (relating to partial confinement) or total
        confinement pursuant to section 9725 (relating to total
        confinement). The term does not include an offender who
        has been convicted or adjudicated delinquent of a crime
        requiring registration under Subchapter H of Chapter 97
        (relating to registration of sexual offenders) or an offender
        with a current conviction or a prior conviction within the
        past ten years for any of the following offenses:

          18 Pa.C.S. § 2502 (relating to murder).

          18 Pa.C.S. § 2503 (relating to voluntary manslaughter).

          18 Pa.C.S. § 2702 (relating to aggravated assault).

          18 Pa.C.S. § 2703 (relating to assault by prisoner).

          18 Pa.C.S. § 2704 (relating to assault by life prisoner).

          18 Pa.C.S. § 2901(a) (relating to kidnapping).

          18 Pa.C.S. § 3122.1(a)(1) (relating to statutory sexual
          assault).


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          18 Pa.C.S. § 3301 (relating to arson and related
          offenses).

          18 Pa.C.S. § 3502 (relating to burglary) when graded as
          a felony of the first degree.

          18 Pa.C.S. § 3701 (relating to robbery).

          18 Pa.C.S. § 3923 (relating to theft by extortion).

          18 Pa.C.S. § 4302(a) (relating to incest).

          18 Pa.C.S. § 5121 (relating to escape).

42 Pa.C.S.A. § 9802 (footnote omitted).

     The legislative intent in adopting IPP as a sentencing alternative was

“to give judges another sentencing option which 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.” Commonwealth v. Williams, 941 A.2d 14, 24 (Pa.Super. 2008)

(en banc) (quoting Commonwealth v. Arthur Williams, 868 A.2d 529,

534 (Pa.Super. 2005), appeal denied, 586 Pa. 726, 890 A.2d 1059 (2005)).

“[T]he grant or denial of a defendant’s request for IPP is largely within the

sound discretion of the trial court.” Id. The same discretion applies in the

context of a qualified first, second or third DUI offender to IPP, regardless

of the mandatory sentence set forth in the DUI statute, because the specific

provisions in 42 Pa.C.S. §§ 9763 and 9804 permit the court to sentence


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such    offenders   to   IPP   after   they     have   undergone   assessment—

notwithstanding the mandatory sentencing provisions of Section 3804 of the

DUI statute. Stotelmyer, supra at ___, 110 A.3d at 152.

       Instantly, in response to Appellant’s issue, the trial court reasoned:

          Appellant claims that at the time of sentencing [he]
          requested     “house     arrest”     and/or     “intermediate
                                                       nd
          punishment” with respect to a second (2 ) offense, Tier
          III DUI (90 day mandatory). The [c]ourt opined that she
          “did not have the authority” to [o]rder the mandatory
          minimum to be served on house arrest; she further
          indicated a desire to grant it in her discretion, but felt she
          lacked said discretion.

                                   *     *      *

          While on its face, the mandatory minimums of the DUI
          sentencing provisions in Pennsylvania require a mandatory
          minimum 90 days incarceration with respect to a Tier III
          DUI, 2nd offense within ten (10) years[,] [t]he legislation
          enacted sets forth additional guidance.

                                   *     *      *

          [T]he [c]ourt believed it did lack the discretion to impose
          an alternative sentence such as [IPP] or [h]ouse [a]rrest.
          However, a fair reading of Sarapa...sets forth the ability of
          a [c]ourt to impose alternative sentences for DUI offenders
          if it is determined that, inter alia, the county restricts
          access to one type of intermediate punishment.

          Our General Assembly, in passing legislation enabling the
          creation of county intermediate punishment programs,
          intended to create a means of protecting society while at
          the same time promoting efficiency and economy in
          providing corrections services. Further, the legislature
          aimed “[t]o promote accountability of offenders to their
          local community.” 42 Pa.C.S. § 9803(2). The General
          Assembly also stated that the purpose behind the Act was
          to both “fill gaps in local correctional services available to
          the court[,]” and “provide opportunities for offenders who

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           demonstrate special needs to receive services which
           enhance their ability to become contributing members of
           the community.” 42 Pa.C.S. § 9803(3), (4). Accordingly,
           this is a question of law to be resolved.

           The holding in Sarapa...does not require, on remand, that
           the trial court sentence Appellant to an IPP sentence;
           rather, the sentencing court should carefully consider the
           relevant criteria for IPP, the circumstances of Appellant’s
           case, and whether Appellant would benefit from an IPP
           sentence.

           Accordingly, if applicable, this Court would accept a
           remand and carefully review the local Philadelphia
           Programs available in order to determine whether a
           discretionary alternative sentence is proper application in
           this specific instance.

(Trial Court Opinion, filed January 16, 2015, at 2-3).        We accept the trial

court’s analysis. This case involves Appellant’s second DUI offense, which is

subject    to    the   mandatory   minimum    sentence   in    75   Pa.C.S.A.   §

3804(c)(2)(i).     Neither the Commonwealth nor the trial court objects to

Appellant’s request for an IPP evaluation. Thus, the best resolution of this

appeal is to remand for Appellant to undergo IPP evaluation and appropriate

resentencing.      See Commonwealth v. Jurczak, 86 A.3d 265 (Pa.Super.

2014) (explaining DUI offenders are required to undergo drug and alcohol

assessment to qualify for IPP); 42 Pa.C.S.A. § 9802; 42 Pa.C.S.A. §

9804(b).        Accordingly, we vacate and remand for IPP evaluation and

resentencing.

      Judgment of sentence vacated; case remanded with instructions.

Jurisdiction is relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2015




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