J-S03002-17


                             2017 PA Super 249

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RIKEA DSHON FARROW

                        Appellant                  No. 1576 WDA 2015


        Appeal from the Judgment of Sentence September 10, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0014532-2014


BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

OPINION BY OLSON, J.:                                FILED JULY 27, 2017

     Appellant, Rikea Dshon Farrow, appeals from the judgment of

sentence entered on September 10, 2015 in the Criminal Division of the

Court of Common Pleas of Allegheny County, following her convictions for

three counts of driving under the influence (DUI)-general impairment and

the summary offense of accidents involving an unattended vehicle.        We

affirm, in part, vacate, in part, and remand for resentencing consistent with

the views expressed below.

     The trial court prepared the following factual summary, which is

undisputed on appeal.

     Shortly before 6:00 a.m. on June 22, 2014, Appellant was
     driving a red vehicle. While driving, she struck two parked
     vehicles in the 200 block of Marshall Avenue in the City of
     Pittsburgh, and drove away from the scene. Officers Peter
     Bechtold [and] Michael Douglas, and [Sergeant] Neal
     Marrabello[,] were dispatched to the 200 block of Marshall

* Retired Senior Judge assigned to the Superior Court.
J-S03002-17


      Avenue for “a hit and run by a red vehicle.” At the accident site,
      the officers encountered two damaged vehicles: one vehicle had
      been struck from behind, causing it to hit the vehicle parked
      directly in front of it.

      Approximately one quarter mile from the accident scene, officers
      observed a red vehicle with heavy front end damage. Appellant
      was sitting near this vehicle with the keys in her hand. Officer
      Bechtold approached Appellant and asked her what happened.
      Appellant told Officer Bechtold that she hit a speed bump, and it
      caused damage to her vehicle. Shortly after this, Appellant told
      Sergeant Marrabello that she struck a guardrail, causing the
      damage to her vehicle.

      During these conversations, Appellant appeared visibly
      intoxicated. Specifically, she had glassy, bloodshot eyes, a
      strong odor of alcohol emanating from her mouth, her clothes
      were soiled and stained, her speech was slurred, and she was
      unbalanced on her feet. The officers determined that she was
      intoxicated to the point where it was unsafe for her to operate a
      motor vehicle. Officer Bechtold attempted to conduct a field
      sobriety test, but Appellant became combative and began yelling
      at Officers Bechtold and Douglas.           Due to Appellant’s
      belligerence and uncooperativeness, Officer Bechtold did not
      attempt any further field sobriety tests. Appellant was arrested
      and transported to the police station, where she refused to
      submit to an intoxilyzer test[.]

Trial Court Opinion, 6/23/16, at 4-5 (record citations and footnote omitted).

      Based   upon   the   foregoing   events,   the   Commonwealth   filed   a

four-count criminal information against Appellant on December 15, 2014.

Count one charged Appellant with DUI-general impairment and refusing

breath/blood alcohol testing in violation of 75 Pa.C.S.A. § 3802(a)(1) and 75

Pa.C.S.A. § 3804(c) of the Motor Vehicle Code. Count two charged Appellant

with DUI-general impairment where an accident resulting in damage to a

vehicle occurred in violation of 75 Pa.C.S.A. § 3802(a)(1) and 75 Pa.C.S.A.


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§ 3804(b). Count three charged Appellant with DUI-general impairment in

violation of 75 Pa.C.S.A. § 3802(a)(1). Count four charged Appellant with

accident involving damage to attended vehicle in violation of 75 Pa.C.S.A.

§ 3743. Relevant to counts one through three, the information states in full:

     COUNT 1: DRIVING UNDER INFLUENCE OF ALCOHOL [OR]
     CONTROLLED SUBSTANCE

     The actor drove, operated or was in actual physical control of the
     movement of a vehicle, upon a highway or trafficway of the
     Commonwealth, after imbibing a sufficient amount of alcohol
     such that the actor was rendered incapable of safely driving,
     operating or being in actual physical control of the movement of
     the vehicle, and the actor refused testing of blood or breath, in
     violation of Section 3802(a)(1) and Section 3804(c) of the
     Pennsylvania Vehicle Code, Act of June 17, 1976, 75 Pa.C.S.[A.]
     §[§] 3802(a)(1) and 3804(c), as amended.

     COUNT 2: DRIVING UNDER INFLUENCE OF ALCOHOL [OR]
     CONTROLLED SUBSTANCE

     The actor drove, operated or was in actual physical control of the
     movement of a vehicle, upon a highway or trafficway of the
     Commonwealth, after imbibing a sufficient amount of alcohol
     such that the actor was rendered incapable of safely driving,
     operating or being in actual physical control of the movement of
     the vehicle, where there was an accident resulting in bodily
     injury, serious bodily injury or death of another person or in
     damage to a vehicle or other property, in violation of Section
     3802(a)(1) and Section 3804(b) of the Pennsylvania Vehicle
     Code, Act of June 17, 1976, 75 Pa.C.S.[A.] §[§] 3802(a)(1) and
     3804(b), as amended.

     COUNT 3: DRIVING UNDER INFLUENCE OF ALCOHOL [OR]
     CONTROLLED SUBSTANCE

     The actor drove, operated or was in actual physical control of the
     movement of a vehicle, upon a highway or trafficway of the
     Commonwealth, after imbibing a sufficient amount of alcohol
     such that the actor was rendered incapable of safely driving,
     operating or being in actual physical control of the movement of

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       the vehicle, in violation of Section 3802(a)(1) of the
       Pennsylvania Vehicle Code, Act of June 17, 1976, 75 Pa.C.S.[A.]
       § 3802(a)(1), as amended.

Criminal Information, 12/15/14.

       Appellant proceeded to a nonjury trial that took place over the course

of June 9, 2015 and July 23, 2015. At trial, the Commonwealth amended

count four of the information to charge the summary offense of accidents

involving unattended vehicle under 75 Pa.C.S.A. § 3745. At the conclusion

of trial on July 23, 2015, the court found Appellant guilty at all four counts of

the information, as amended.            On September 10, 2015, the trial court

sentenced Appellant to three to six days’ incarceration, together with a

concurrent term of six months’ probation, at count one.1 At the remainder

of the counts set forth in the information (counts two through four), the trial

court entered a determination of “guilty without further penalty.” Order of

Sentence, 9/10/15. Appellant did not file a post-sentence motion.

       Appellant filed a timely notice of appeal on October 13, 2015.2        By

order of October 27, 2015, the trial court directed Appellant to file a concise

____________________________________________


1
  Recall that count one of the information accused Appellant of DUI-general
impairment and refusal to submit to testing of her blood or breath, in
violation of 75 Pa.C.S.A. §§ 3802(a)(1) and 3804(c).
2
  Thirty days from September 10, 2015 was October 10, 2015. October 10,
2015, however, was a Saturday and Monday, October 12, 2015, was the
Columbus Day holiday. Hence, Appellant’s October 13, 2015 filing was
timely. See 1 Pa.C.S.A. § 1908 (omitting Saturday, Sunday, and legal
holidays from time computations).



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statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

After receiving an extension of time in which to obtain relevant transcripts of

the trial court proceedings, Appellant filed her concise statement on April 13,

2016. Thereafter, the trial court issued its Rule 1925(a) opinion on June 23,

2016.

        Appellant raises a single issue for our consideration:

        Did the trial court violate the prohibition on double jeopardy by
        convicting [Appellant] of three separate DUI offenses based
        upon a single instance of conduct, where two of those offenses
        were not separate crimes but, rather, merely sentencing factors?

Appellant’s Brief at 5 (block capitalization omitted).

        Appellant contends that the trial court violated the protection against

double jeopardy under the United States and Pennsylvania Constitutions3 in

convicting and sentencing her for three DUI offenses stemming from a single




____________________________________________


3
  The double jeopardy clause of the United States Constitution provides:
“nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V. Pennsylvania's double
jeopardy clause declares: “No person shall, for the same offense, be twice
put in jeopardy of life or limb.” Pa. Const. art. 1, § 10. The Pennsylvania
Supreme Court has held that Pennsylvania's double jeopardy clause
“involves the same meaning, purpose, and end [as the double jeopardy
clause in the United States Constitution], thus, [Pennsylvania's clause] has
generally been construed as coextensive with its federal counterpart.”
Commonwealth v. McGee, 744 A.2d 754, 756 n.2 (Pa. 2000) (internal
quotations and citations omitted); Commonwealth v. Hallman, 67 A.3d
1256, 1260 (Pa. Super. 2013), appeal denied, 84 A.3d 1062 (Pa. 2014).




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episode of criminal conduct.4        Before we examine the merits of this claim,

we first determine whether Appellant properly preserved it for appellate

review.    See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”).

       The Commonwealth argues that Appellant waived appellate review of

her sole issue because she failed to object to the criminal information, or

otherwise     raise   her   appellate    claim,   before   the   trial   court.   See

Commonwealth Brief at 8.           In support of its position, the Commonwealth

submits that Appellant’s initial inclusion of her claim in her concise

statement is insufficient to preserve the issue for purposes of appeal. See

id. at 8-9, quoting Commonwealth v. Melendez-Rodriguez, 856 A.2d

1278, 1288-1289 (Pa. Super. 2004) (“[a] party cannot rectify the failure to

preserve an issue by proffering it in response to a Rule 1925(b) order”). The

Commonwealth also asserts that “the fact that [A]ppellant raised her claims

in constitutional terms does not [alter the conclusion that her claims are

subject to waiver].” Commonwealth Brief at 9, quoting Commonwealth v.

Strunk, 953 A.2d 577, 579 (Pa. Super. 2008) (“Even issues of constitutional

dimension cannot be raised for the first time on appeal.”).                  For these

reasons, the Commonwealth concludes that Appellant waived her double

____________________________________________


4
  Appellant raises no challenge relating to the charge leveled at count four of
the information. Hence we shall affirm her conviction and sentence for
accidents involving unattended vehicle without further discussion.



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jeopardy challenge based upon the form of the criminal information and the

verdict/sentencing disposition rendered thereon.       Commonwealth Brief at

9-10.

        Appellant does not dispute the Commonwealth’s contention that she

lodged no objection to the form of the information before the trial court or

that she first raised her appellate claim in her concise statement. Instead,

Appellant analogizes her claim to a challenge to the sufficiency of the

evidence and, alternatively, to a challenge to the legality of her sentence.

With respect to the first component of her preservation argument (i.e.,

likening the present claim to a sufficiency challenge), Appellant accepts that

the evidence was sufficient to support a finding that she committed a single

DUI offense, but argues nonetheless that the record is insufficient to sustain

convictions for two additional DUI offenses. See Appellant’s Reply Brief at 1.

As to the second part of her argument (i.e., analogizing the instant issue to

a legality of sentencing claim), Appellant asserts that her double jeopardy

claim represents a constitutional challenge to the legality of her sentence,

which is not subject to waiver even if it is raised for the first time on appeal.5

Id. at 3.     Appellant maintains that since her claim represents either a
____________________________________________


5
  Here, Appellant points out that, under Pennsylvania law, a “sentence” is
not limited to a term of incarceration or probation but also includes a
determination of guilt without further penalty. See Appellant’s Reply Brief at
3, n.1, citing 42 Pa.C.S.A. § 9721(a)(2) (in fixing sentence trial court may
consider and impose, inter alia, “a determination of guilt without further
penalty”).



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sufficiency challenge or a challenge to the legality of her sentence, her

failure to raise the claim before the trial court does not impede appellate

review.   See Appellant’s Reply Brief at 1-3, citing Pa.R.Crim.P. 606(A)(7)

(allowing defendant to challenge sufficiency of evidence to sustain conviction

by raising issue for first time on appeal); see also Commonwealth v.

Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (en banc) (“A challenge

to the legality of the sentence may be raised [on appeal] as a matter of

right, is non-waivable, and may be entertained [as] long as the reviewing

court has jurisdiction.”).

      Within the context of this appeal, we are unwilling to characterize

Appellant’s present claim as a challenge to the sufficiency of the evidence.

Appellant nowhere claims that the undisputed record in this appeal is

insufficient to establish that she committed a DUI offense.     She does not

seek wholesale discharge, but instead asks us to direct the trial court to

invalidate two of her DUI convictions at resentencing. See Appellant’s Brief

at 27 (under “conclusion”). In fact, the sufficiency of the Commonwealth’s

proof that she committed a DUI offense comprises part and parcel of

Appellant’s claim that the record fails to demonstrate that she committed the

two other DUI offenses for which she was convicted.      Setting aside, then,

the undisputed sufficiency of the Commonwealth’s evidence that Appellant

committed a DUI offense, it is the remainder of Appellant’s “sufficiency”

challenge, i.e. that the trial court erred in finding Appellant guilty without


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further penalty at two additional DUI counts, which forms the core of

Appellant’s claim for relief. As we explain below, this aspect of Appellant’s

“sufficiency” challenge is practically indistinguishable from her double

jeopardy challenge to the validity of her sentence.    Thus, for the reasons

that follow, we shall undertake appellate review on grounds that Appellant’s

claim is not subject to waiver because she has come forward with a colorable

double jeopardy objection to the legality of her sentence.

      In Robinson, supra, this Court identified the types of claims exempt

from waiver because they involve challenges to the legality of a sentence.

We announced that the term “illegal sentence” referred to a class of cases

that includes:   “(1) claims that the sentence fell outside of the legal

parameters prescribed by the applicable statute; (2) claims involving

merger/double jeopardy; and (3) claims implicating the rule in Apprendi v.

New Jersey, 530 U.S. 466 (2000).” Robinson, 931 A.2d at 21 (citations

omitted). We explained in Robinson that illegal sentencing claims challenge

“the fundamental legal authority of the court to impose the sentence that it

did.” Id.

      We read Appellant as advancing two separate, but closely related,

double jeopardy challenges to her judgment of sentence.       Citing Ball v.




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United States, 470 U.S. 856 (1985),6 Appellant argues that the protection

against double jeopardy precluded the trial court from convicting and

sentencing her for three DUI offenses stemming from a single episode of

driving under the influence in violation of 75 Pa.C.S.A. § 3802(a)(1). See

Appellant’s Reply Brief at 1-3. Under Ball, Appellant reasons that two of her

convictions are unlawful, even though the trial court imposed no additional

penalty for those guilty verdicts.        In the alternative, Appellant appears to

argue that, because a sentence under 42 Pa.C.S.A. § 9721(a)(2) may

include a determination of guilt without further penalty, the trial court

impermissibly imposed multiple sentences for a single criminal act.         Since

these contentions plainly challenge the validity of Appellant’s judgment of

____________________________________________


6
  In Ball, the United States government charged the defendant, a convicted
felon, of receiving a firearm in violation of 18 U.S.C. § 922(h)(1) and
possessing that same firearm in violation of 18 U.S.C. § 1202(a)(1).
Following conviction, the district court sentenced the defendant to
consecutive punishments. The court of appeals remanded the case with
instructions to impose concurrent sentences. The United States Supreme
Court reversed. Applying the test announced in Blockburger v. United
States, 284 U.S. 299 (1932), the Court determined that, “proof of illegal
receipt of a firearm necessarily includes proof of illegal possession of that
weapon.” Ball, 470 U.S. at 862 (emphasis in original). Based on this
assessment, the Court, while recognizing the government’s broad discretion
to simultaneously prosecute violations of §§ 922((h) and 1202(a), concluded
that Congress did not intend to subject individuals in the defendant’s
position to two convictions for the same criminal act. In the absence of
legislative history that supported multiple convictions and punishments for a
single act that constituted both receipt and possession of a firearm in
violation of §§ 922(h)(1) and 1202(a)(1), the Court held that proper remedy
was for the district court to vacate one of the defendant’s convictions.




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sentence under double jeopardy principles, we conclude that the present

claim is not subject to waiver and may be raised for the first time on appeal.

See Commonwealth v. Foster, 960 A.2d 160, 164 (Pa. Super. 2008)

(“argument premised upon double jeopardy-merger principles is considered

to relate to the legality of sentence”), affirmed, 17 A.3d 332 (Pa. 2011).

Accordingly, we turn to the merits of Appellant’s claims.

      As we stated, the thrust of Appellant’s argument on appeal is that the

trial court violated the protection against double jeopardy by convicting and

sentencing her for three counts of DUI-general impairment stemming from a

single episode of criminal conduct.     In developing this claim, Appellant

argues that the first three counts set forth in the information are virtually

identical in that they all allege a DUI-general impairment offense that

violated 75 Pa.C.S.A. § 3802(a)(1).    Count one, however, adds a penalty

enhancement for refusing blood or breath tests in violation of 75 Pa.C.S.A.

§ 3804(c) and count two adds an enhancement for accidents resulting in

bodily injury, serious bodily injury or death, or damage to vehicle of other

property in violation of 75 Pa.C.S.A. § 3804(b).      Appellant explains that

§ 3804 (entitled penalties) is a sentencing scheme setting forth mandatory

punishments for violating § 3802(a) under certain, identified conditions and,

as such, § 3804 does not create substantive offenses for purposes of

charging and convicting alleged offenders. Because § 3804 is not a criminal

statute, Appellant concludes that the trial court’s disposition at counts one,


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two, and three of the information constitutes multiple convictions and

sentences arising from a single instance of DUI-general impairment.

        Appellant, anticipating the Commonwealth’s reliance on our opinion in

Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011), cites Ball and

argues that the protection against double jeopardy precludes multiple

convictions based upon the same criminal act.        Appellant also argues that

the trial court subjected her to multiple sentences for the same criminal act

since    a   sentence   under   42   Pa.C.S.A.   § 9721(a)(2)   may   include   a

determination of guilt without further penalty. Lastly, Appellant asks us to

revisit Mobley’s observation that we may refrain from finding a double

jeopardy violation where the trial court does not sentence the defendant on

both counts of an information that twice charges identical DUI offenses to

indicate a refusal of breath or blood alcohol testing. See Appellant’s Brief at

24-25.

        The Commonwealth defends its charging practices and Appellant’s

multiple DUI convictions by citing prior decisions issued by this Court and

the United States Supreme Court. In particular, the Commonwealth points

to Alleyne v. United States, 133 S.Ct. 2151 (2013), wherein the Court

held that prosecutors must give notice to an accused of factors necessary for

the imposition of a mandatory minimum sentence and that an accused has

the right to have those factors determined by the factfinder beyond a

reasonable doubt. The Commonwealth argues that the information filed in


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this case reflects its effort to comply with constitutional requirements

mandated in Alleyne.          The Commonwealth also directs our attention to

Commonwealth v. Langley, 145 A.3d 757 (Pa. Super. 2016), in which this

Court rejected a challenge to a charging document that alleged, in a single

count, that the defendant committed a DUI-general impairment offense and

thereafter included subparts stating that the defendant would be subject to

the enhanced penalties found in 75 Pa.C.S.A. §§ 3804(b)(2), 3804(c), and

3804(c.1). Although the Commonwealth acknowledges that the information

here, unlike the charging document in Langley, included the two § 3804

enhancements at separate counts, it argues that this distinction is

insignificant.     Moreover, the Commonwealth insists that the charging

practice followed in this case is consistent with the prosecution’s duty to give

notice of enhanced penalties.

       The Commonwealth also argues that if sentencing enhancements are

viewed as “elements” of a crime,7 then enhancements for accidents/property


____________________________________________


7
   The Commonwealth cites the following authorities in support of this
contention. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(“facts that increase the prescribed range of penalties to which a criminal
defendant is exposed” are elements of the crime) (internal quotation marks
omitted); id. at 483 n.10 (“facts that expose a defendant to a punishment
greater than that otherwise legally prescribed were by definition ‘elements'
of a separate legal offense”); id. at 478 (“Any possible distinction between
an ‘element’ of a felony offense and a ‘sentencing factor’ was unknown to
the practice of criminal indictment, trial by jury, and judgment by court as it
existed during the years surrounding our Nation's founding.”) (footnote
(Footnote Continued Next Page)


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damage or refusal to allow blood or breath testing constitute new,

aggravated offenses that can be charged as separate counts that do not

merge since each enhancement contains an element that the other does not.

See Commonwealth Brief at 14, citing 42 Pa.C.S.A. § 9765.                The

Commonwealth concludes that since no Pennsylvania appellate court has

adopted or applied Ball, the only way to effectuate Alleyne’s notice and

adjudicatory requirements is to hold that while separate sentences may

violate double jeopardy protections, separate convictions do not.

      We employ the following principles in reviewing Appellant’s claims in

this appeal.

      An appeal grounded in double jeopardy raises a question of
      constitutional law. This Court's scope of review in making a
      determination on a question of law is, as always, plenary.
      Commonwealth v. Mattis, 686 A.2d 408, 410 (Pa. Super.
      1996).

         “The Double Jeopardy Clause, applicable to the States
         through the Fourteenth Amendment, provides that no
         person shall ‘be subject for the same offense to be twice put
         in jeopardy of life or limb.’” Commonwealth v. Decker,
         664 A.2d 1028, 1029 (Pa. Super. 1995) (citing [U.S. Const.
         amend. V.). “Furthermore, the Double Jeopardy Clause []
         protects against a second prosecution for the same offense
         after acquittal. It protects against a second prosecution for
         the same offense after conviction. And it protects against
         multiple punishments for the same offense.” Id.

      Commonwealth v. Jackson, 10 A.3d 341, 344-345 (Pa. Super.
      2010). Typically, to determine whether a defendant's protection
                       _______________________
(Footnote Continued)

omitted); Alleyne, 133 S.Ct. at 2159 (“If a fact was by law essential to the
penalty, it was an element of the offense.”).



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     from multiple punishments for the same offense has been
     violated, we apply the test set forth in [Blockburger;] [s]ee
     Commonwealth v. Beckwith, 674 A.2d 276, 279 (Pa. Super.
     1996). The [United States] Supreme Court explained this test
     as follows:

        In both the multiple punishment and multiple prosecution
        contexts, th[e United States Supreme] Court has concluded
        that where the two offenses for which the defendant is
        punished or tried cannot survive the “same-elements” test,
        the double jeopardy bar applies. The same-elements test,
        sometimes referred to as the Blockburger test, inquires
        whether each offense contains an element not contained in
        the other; if not, they are the ‘same offense’ and double
        jeopardy bars additional punishment and successive
        prosecution.

     United States v. Dixon, 509 U.S. 688, 696 (1993). We have
     long followed the “same-elements” test of Blockburger in this
     Commonwealth. See [Jackson, 10 A.3d at 344–345].

Hill v. Randolph, 24 A.3d 866, 871 (Pa. Super. 2011) (parallel citations

omitted).

     Appellant's challenge is an unusual one.    She does not rely on an

application of the Blockburger test since there is no doubt that her three

DUI-general impairment convictions under § 3802(a)(1) all involve the same

elements.   Instead, the challenge that confronts Appellant is whether her

claim falls within the scope of the double jeopardy protection against

multiple punishments for the same offense.    While it is clear that double

jeopardy shields defendants from multiple punishments for the same

offense, there is no Pennsylvania authority for the proposition that double

jeopardy precludes multiple convictions for the same offense. To overcome

this hurdle, Appellant cites Ball, in which the United States Supreme Court

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vacated separate convictions entered against a convicted felon for receiving

and possessing a firearm.    In the alternative, Appellant argues that her

sentence of “guilty without further penalty,” which she received at counts

two and three, constitutes a “sentence” or “punishment” for purposes of the

protection against double jeopardy.

     Under the circumstances of this case, we are inclined to agree with

Appellant’s latter position. In Ball, the United States Supreme Court framed

its analysis in terms of Congressional intent.        In fact, the term “double

jeopardy”   appears   nowhere   in     the     majority’s   opinion.   Given   that

Pennsylvania’s   double     jeopardy      jurisprudence       prohibits   multiple

punishments, but not convictions, for the same offense, we are reluctant to

incorporate and apply the holding in Ball as a component of Pennsylvania

law. Nonetheless, since a court may impose “guilt without further penalty”

as a sentence under 42 Pa.C.S.A. § 9721(a)(2), we shall treat the

dispositions at counts two and three as sentences for purposes of our double

jeopardy analysis.

     Our discussion starts with the prior decision of this Court in Mobley,

which both parties cite and which discusses many issues relevant to this

appeal. In Mobley, the trial court convicted the defendant of two separate

counts of DUI-general impairment arising out of the same incident, where

one count alleged that the accused refused breath/blood testing. The only

issue raised by the defendant on appeal was whether there was sufficient


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evidence to convict him of DUI-general impairment.      After rejecting the

defendant’s sufficiency challenge, the panel sua sponte turned to double

jeopardy issues raised by the defendant’s two convictions for DUI-general

impairment.   After reviewing §§ 3802 and 3804, the panel concluded that

the provisions found in § 3804 were not elements of DUI offenses and

“delineate[ only] the applicable penalties to which a defendant is subject

when convicted of DUI.”     Mobley, 14 A.3d at 894.    With respect to the

refusal of blood/breath testing, the panel stated:

      The refusal of a blood alcohol content (“BAC”) test is not a
      separate element under 75 Pa.C.S. § 3802; rather, those who
      refuse a BAC test must be charged pursuant to 75 Pa.C.S.
      § 3802(a)(1), general impairment.           Since refusal of a
      breath/blood test is not an element of the criminal offense that
      pertains to guilt, the court should not have [twice] convicted
      [Mobley] of the same criminal offense, DUI-general impairment,
      arising out of the identical criminal episode. Instead, [Mobley]
      should have been convicted of one count of DUI-general
      impairment and been subject to the sentencing enhancement
      provided by statute relative to a blood or breath test refusal.
      See 75 Pa.C.S. § 3803(b)(2)(4); 75 Pa.C.S. § 3804(c).

Mobley, 14 A.3d at 891.

      Although the decision in Mobley pre-dated Alleyne, the panel

astutely noted the emerging line of authority under Apprendi, supra and its

progeny which held that any fact that increased a maximum penalty, except

a prior conviction, required proof beyond a reasonable doubt, regardless of

whether the fact is labeled as an element of the offense or a sentencing

factor.   See Mobley, 14 A.3d at 893.           In view of these emerging

requirements, the panel acknowledged the Commonwealth’s practice of filing

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criminal informations with two general impairment counts to facilitate

adjudication by trial judges and avoid running afoul of Apprendi.             Such

cases, the panel noted, confronted defendants with two charges of

§ 3802(a)(1).     Mobley, therefore, cautioned that:        “Charging the identical

criminal offense twice in the criminal information to indicate that one count

is alleging that a breath test/blood test refusal transpired constitutes

duplication of counts and creates possible double jeopardy implications if the

individual is sentenced on each count.”            Mobley, 14 A.3d at 894.     The

Mobley panel declined to order relief, however, since the trial court did not

sentence the defendant on both counts.             Id.   To avoid potential double

jeopardy concerns, Mobley suggested that the Commonwealth file its

charging documents with a single count of § 3802(a)(1) and simply add any

applicable enhancements to that single count.

       After careful review, we are persuaded that, pursuant to the guidance

supplied in Mobley, the trial court violated Appellant’s protection against

double jeopardy. Here, the trial court imposed three separate sentences at

three counts that each alleged, at bottom, a single criminal act in violation of

the same criminal statute.8 As Appellant points out, such a disposition poses

____________________________________________


8
  In its opinion, the trial court acknowledges that Appellant was charged with
and convicted of three counts of violating § 3802(a)(1). Trial Court Opinion,
6/23/16 at 6. However, the trial court concludes that Appellant’s double
jeopardy protections were not violated since she was only sentenced at
count one, and the remaining DUI convictions merged for sentencing
(Footnote Continued Next Page)


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significant collateral consequences, including unwarranted enhancement of

her prior record score (or prior DUI offense history) in subsequent criminal

proceedings and unjustified impediments to restoration of her driving

                       _______________________
(Footnote Continued)

purposes. Id. This conclusion, however, is flawed. The trial court did not
merge Appellant’s sentences but instead imposed “guilt without further
penalty” at counts two and three. Order of Sentence, 9/10/15. As we have
noted above, “guilt without further penalty” constitutes a sentence. See 42
Pa.C.S.A. § 9721(a)(2). Moreover, the court’s conclusion conflicts with
important concepts explained in Ball. There, the defendant was convicted of
two separate crimes - possession and receiving a firearm - and ultimately
sentenced to three years’ imprisonment on the receipt count and two years’
imprisonment on the possession count, to run concurrently. The Supreme
Court disagreed, however, and remanded the case to the trial court to
vacate one of the judgments. In reaching this conclusion, the Court noted
that “’punishment’ may be the equivalent of a criminal conviction and not
simply the imposition of sentence.” Ball, 470 U.S. at 861. The High Court
went on to state:

      The second conviction, whose concomitant sentence is served
      concurrently, does not evaporate simply because of the
      concurrence of the sentence. The separate conviction, apart
      from the concurrent sentence, has potential adverse collateral
      consequences that may not be ignored.          For example, the
      presence of two convictions on the record may delay the
      defendant’s eligibility for parole or result in an increased
      sentence under a recidivist statute for a future offense.
      Moreover, the second conviction may be used to impeach the
      defendant’s credibility and certainly carries the societal stigma
      accompanying any criminal convictions.         Thus, the second
      conviction, even if it results in no greater sentence, is an
      impermissible punishment.

Id. at 864-865 (emphasis omitted; internal quotations omitted). Similarly,
Appellant’s convictions for all three counts of DUI simply do not evaporate
merely because the trial court deemed the counts to have merged for
sentencing purposes resulting in no further penalty for the convictions at
counts two and three. In this case, mere convictions that carry a sentence
of “no further penalty” are an impermissible punishment.



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J-S03002-17


privileges.     See Appellant’s Brief at 22, citing Bell v. Commonwealth

Dep’t of Transportation, 96 A.3d 1005, 1019-1020 (Pa. 2014) (Penn DOT

may issue multiple driver’s license suspensions for multiple convictions

regardless of whether convictions merge for sentencing purposes and

regardless of whether they arose from a single criminal episode).

      We further conclude that we are not bound by Mobley’s refusal to

grant relief.    As a preliminary matter, Mobley did not raise and litigate a

double jeopardy claim in the context of his appeal. It appears that the panel

offered its analysis as gratuitous guidance for use in future litigation. See

In re L.J., 79 A.3d 1073, 1081 (Pa. 2013) (observing that stare decisis

applies only to issues actually raised, argued and adjudicated, and only

where the decision was necessary to the determination of the case).                In

addition, Mobley’s determination to withhold relief rested on two cases,

Commonwealth          v.   McCoy,     895   A.2d    18   (Pa.   Super.    2006)   and

Commonwealth v. Williams, 871 A.2d 254 (Pa. super. 2005), which

involved issues of merger that are not present in this case. In McCoy, the

defendant       was   charged   with    violating    § 3802(a)(1)        (DUI-general

impairment) and § 3802(c) (DUI-highest rate). Similarly, in Williams, the

defendant       was   charged   with    violating    § 3731(a)(1)        (DUI-general

impairment)       (repealed)    and     § 3731(a)(4)(i)         (DUI-blood    alcohol

concentration 0.10% or greater) (repealed).               The sentences imposed

respectively in McCoy and Williams merged because all of the elements of


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J-S03002-17


the general impairment offenses were included within the elements of the

more serious offenses.    Here, however, the double jeopardy issue did not

emerge because one act resulted in multiple convictions under distinct DUI

statutes. Instead, the issue here is whether a single criminal act can result

in multiple sentences for violations of the same DUI provision. We conclude

that it cannot.

      This assessment is relevant to our rejection of a separate argument

advanced by the Commonwealth.           In support of Appellant’s multiple

convictions and sentences, the Commonwealth suggests that because the

enhancements found in § 3804 are analogous to distinct elements of a

criminal offense, different enhancements may be alleged separately and are

not subject to merger.     See Commonwealth’s Brief at 13-14.          We are

unpersuaded by this analogy. The passage in Commonwealth v. Hopkins,

117 A.3d 247, 256-257 (Pa. 2015) upon which the Commonwealth relies,

when read in context, was intended to stress the new notice and

adjudicatory standards ushered in by Alleyne.          It did not purport to

overturn Mobley’s prior determination that the enhancements found in

§ 3804 are not elements of a DUI offense. The doctrine of merger applies

were multiple “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.” 42 Pa.C.S.A. § 9765. Where these conditions are met, “the court

may sentence the defendant only on the higher graded offense.” Id. Here,


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J-S03002-17


in contrast, a single criminal act violated a single criminal statute and the

resulting sentence was subject to two distinct § 3804 enhancements, so long

as proper notice and adjudicatory standards were followed. The concept of

merger is inapplicable in these circumstances.

       While we acknowledge the Commonwealth’s newly emerged duties

under Alleyne and progeny, we are not convinced that the charging

instrument employed in this case, with its attendant consequences, was the

only method by which the Commonwealth could discharge its obligations. In

Mobley, a previous panel of this Court cautioned the Commonwealth about

potential problems with its charging procedures and suggested a means to

avoid those pitfalls.        Moreover, the variance between the information

approved in Langley and the charging document filed in this case is the

very feature that led to the imposition of multiple sentences for the same

offense.9 We cannot conclude, as the Commonwealth suggests, that these

differences were insignificant.


____________________________________________


9
  Specifically, count one of the criminal information at issue in Langley
charged the defendant with DUI-general impairment under § 3802(a)(1) and
DUI-high rate of alcohol under § 3802(a)(2). Langley, 145 A.3d at 758.
The count went on to state that the defendant was subject to the enhanced
penalty contained in § 3804(b)(2) as his DUI violation under § 3802(a)(1)
resulted in an accident that caused bodily injury or property damage. Count
one also listed the mandatory minimum provisions in § 3804(c) for refusal of
testing blood or breath and § 3804(c.1) for violations involving a minor
occupant. Id. at 758-759. Thus, Mr. Langley was charged with only one
count of DUI (with notice provided in that count of the applicable sentence
(Footnote Continued Next Page)


                                          - 22 -
J-S03002-17


      In the future, where a single DUI offense is subject to enhancements,

the Commonwealth should file a criminal information that sets forth a single

count under § 3802.10           Enhancements under § 3804 may be added as

subparts or subparagraphs, as appropriate.                  This will eliminate identical

criminal conduct leading to multiple convictions and sentences under the

same criminal statute and, simultaneously, supply the accused with the

requisite notice required under Alleyne.            This method will also allow the

factfinder   to   make      the   necessary      findings    with   respect   to   § 3804

enhancements, as Alleyne also commands.

      While our decision vindicates important protections against double

jeopardy, it is not our intent to elevate form over substance. In this case,

the Commonwealth gave Appellant notice of the § 3804 enhancements that

it intended to pursue and proved their application beyond a reasonable

doubt.    The Commonwealth, therefore, should not be hindered by our

decision herein.       For these reasons, we vacate Appellant’s convictions and

sentences at counts one and two, affirm Appellant’s conviction but vacate
                       _______________________
(Footnote Continued)

enhancements) as opposed to the case sub judice where Appellant was
charged with and convicted of three separate counts of DUI.
10
    To be clear, the Commonwealth may charge separate counts, as
appropriate, where the conduct at issue exposes the defendant to criminal
liability under multiple and distinct criminal provisions found in § 3802, such
as DUI-general impairment under § 3802(a)(1) and DUI-highest rate under
§ 3802(c). In such cases, if the Commonwealth seeks to add sentencing
enhancements under § 3804, such enhancements may be added as subparts
or subparagraphs under each count.



                                           - 23 -
J-S03002-17


her sentence at count three, and remand for resentencing at count three.

We also affirm Appellant’s conviction and sentence at count four. In fixing

Appellant’s sentence at count three, the trial court shall take into account its

prior findings as to the application of the § 3804 enhancements made in

connection with its deliberations on counts one and two.      In so doing, the

court should also consider the recent opinions in Birchfield v. North

Dakota, 136 S.Ct. 2160 (2016) and Commonwealth v. Giron, 2017 WL

410267 (Pa. Super. 2017), which hold that a defendant who refuses to

provide a blood sample when requested by police is not subject to the

enhanced penalties provided in 75 Pa.C.S.A. §§ 3803–3804.

      Convictions and judgments of sentence vacated as to counts one and

two. Conviction affirmed but judgment of sentence vacated at count three.

Conviction and judgment of sentence affirmed at count four.                Case

remanded for resentencing at count three. Jurisdiction relinquished.

      Solano, J. joins this opinion.

      Strassburger, J. concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




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J-S03002-17


Date: 7/27/2017




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