J-S56021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID PAUL KRAUSE

                            Appellant                No. 2053 MDA 2014


          Appeal from the Judgment of Sentence November 24, 2014
              In the Court of Common Pleas of Bradford County
             Criminal Division at No(s): CP-08-CR-0000551-2014


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                      FILED NOVEMBER 04, 2015

        Appellant David Paul Krause appeals from the judgment of sentence

entered in the Bradford County Court of Common Pleas following his guilty

plea to driving under the influence of alcohol (“DUI”), highest rate.1   We

affirm.

        On October 14, 2014, Appellant pled guilty to DUI, highest rate. On

November 24, 2014, after reviewing a pre-sentence investigation (“PSI”)

report and determining Appellant had a prior record score (“PRS”) of two (2)

based on his DUI convictions from 1986, 1994, 1996, and 2000, the trial

court sentenced Appellant to thirty (30) days to six (6) months of

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*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(c).
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incarceration and ordered him to pay restitution, a fine, and the statutory

surcharge. The trial court also directed Appellant to participate in a victim

impact panel and to undergo a mandatory full drug and alcohol assessment

and comply with all recommendations made therein.

       On December 4, 2014, Appellant timely filed a notice of appeal. The

next day, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely

complied on December 22, 2014.

       Appellant raises the following issue for our review:

          [WHETHER] THE COURT ERRED IN SENTENCING
          [APPELLANT] TO THIRTY (30) DAYS IN PRISON BECAUSE
          IT CONSIDERED THE PREVIOUS DUI’S THAT [APPELLANT]
          HAD IN HIS LIFETIME WHICH WERE ALL OUTSIDE THE
          TEN (10) YEAR LOOK BACK PERIOD AND ALREADY
          CONSIDERED UNDER THE PRIOR RECORD SCORE OF TWO
          (2)[?]

Appellant’s Brief at 2.2

       Appellant challenges the discretionary aspects of his sentence.    He

claims the court “did not consider the minimum sentence by simply

sentencing the Appellant to thirty (30) days on the basis that three of the
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2
  We note that Appellant failed to provide a statement of questions involved
as required under Pa.R.A.P. 2116. However, because he has identified the
specific issue he asks us to review in his “Summary of Argument Presented”
section, his failure to comply with Pa.R.A.P. does not impede our ability to
review the issue. Accordingly, we will address the merits of Appellant’s
claim.      See Commonwealth v. Long, 786 A.2d 237, 239 n.3
(Pa.Super.2001) aff'd, 819 A.2d 544 (Pa.2003).



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prior four DUI’s of [Appellant] were in New York and that state according to

the judge went light on DUI’s.” Appellant’s Brief at 4. Appellant argues the

court should have sentenced him to seventy-two (72) hours’ incarceration

because that was the minimum sentence for his DUI conviction with a prior

record score of two (2), and that it erred by failing to do so.       Id.   We

disagree.

      Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must invoke this Court’s jurisdiction by satisfying the

following four-part test:

      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
      has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Id.

      Presently, Appellant filed a timely notice of appeal and preserved his

issues at sentencing. Further, Appellant’s brief includes a concise statement

of reasons relied upon for allowance of appeal with respect to the

discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).        See

Appellant’s Brief at IV. We now must determine whether Appellant presents




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a substantial question that the sentence appealed from is not appropriate

under the Sentencing Code.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”    Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

         A substantial question exists only when the appellant
         advances a colorable argument that the sentencing judge’s
         actions were either: (1) inconsistent with a specific
         provision of the Sentencing Code; or (2) contrary to the
         fundamental norms which underlie the sentencing process.

Id. (internal citations omitted).

      Here, Appellant claims the court considered his prior DUI’s that were

already factored into his prior record score when fashioning his sentence.

He argues this resulted in a minimum sentence of thirty (30) days’

incarceration when it should have only been seventy-two (72) hours if the

court had properly applied the guidelines. “A claim that the sentencing court

misapplied the Sentencing Guidelines presents a substantial question.”

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa.Super.2007). Thus, we grant

Appellant’s petition for allowance of appeal and address the merits of his

claim.

      We review Appellant’s sentencing claim under the following standard:

         Sentencing is a matter vested in the sound discretion of
         the sentencing judge, and a sentence will not be disturbed
         on appeal absent a manifest abuse of discretion. In this
         context, an abuse of discretion is not shown merely by an
         error in judgment. Rather, the appellant must establish, by
         reference to the record, that the sentencing court ignored

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        or misapplied the law, exercised its judgment for reasons
        of partiality, prejudice, bias or ill will, or arrived at a
        manifestly unreasonable decision.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.Super.2014) (en

banc), appeal denied, 104 A.3d 1 (Pa.2014).

     Appellant was convicted under the following statute:

        (c) Highest rate of alcohol.--An individual may not
        drive, operate or be in actual physical control of the
        movement of a vehicle after imbibing a sufficient amount
        of alcohol such that the alcohol concentration in the
        individual’s blood or breath is 0.16% or higher within two
        hours after the individual has driven, operated or been in
        actual physical control of the movement of the vehicle.

75 Pa.C.S. § 3802.

     The DUI statute provides, in pertinent part:

        (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:

        (1) For a first offense, to:

           (i) undergo imprisonment          of   not   less   than   72
           consecutive hours;

           (ii) pay a fine of not less than $1,000 nor more than
           $5,000;

           (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.

        (2) For a second offense, to:



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           (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.

        (3) For a third or subsequent offense, to:

           (i) undergo imprisonment of not less than one year;

           (ii) pay a fine of not less than $2,500; and

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

75 Pa.C.S. § 3804.

     The calculation of prior offenses for sentencing under the DUI statute

is governed by the following statute:

        (b) Repeat offenses within ten years.--The calculation
        of prior offenses for purposes of sections 1553(d.2)
        (relating to occupational limited license), 3803 (relating to
        grading) and 3804 (relating to penalties) shall include any
        conviction, whether or not judgment of sentence has been
        imposed for the violation, adjudication of delinquency,
        juvenile consent decree, acceptance of Accelerated
        Rehabilitative Disposition or other form of preliminary
        disposition within the ten years before the sentencing on
        the present violation for any of the following:


           (1) an offense under section 3802;

75 Pa.C.S. § 3806.

     Regarding PRS for DUI’s, we observe:




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          The Sentencing Guidelines provide for calculation of a
          defendant’s PRS based on prior convictions. See 204
          Pa.Code §§ 303.4–303.8. For purposes of calculating a
          PRS, the guidelines define prior convictions as follows: “A
          prior conviction means ‘previously convicted’ as defined in
          42 Pa.C.S. § 2154(a)(2).... In order for an offense to be
          considered in the Prior Record Score, both the commission
          of and conviction for the previous offense must occur
          before the commission of the current offense.” 204
          Pa.Code 303.5. Pursuant to section 303.7 of the
          guidelines, one point “is added for each prior conviction ...
          Driving Under the Influence of Alcohol or Controlled
          Substance, except for a first offense.” 204 Pa.Code
          303.7(a)(4) (emphasis supplied).

Commonwealth v. Cook, 941 A.2d 7, 12 (Pa.Super.2007).

       Here, the court considered that Appellant’s DUI, highest rate,

conviction, with his prior record score of two, based on his prior DUI

convictions, yielded a standard range sentence of seventy-two hours to two

months, with an aggravated range of three months. N.T., 11/24/14, at 1.

After reviewing the PSI report3 and the victim impact statement and

listening to Appellant and the Commonwealth present argument, the court

sentenced Appellant to thirty (30) days to six (6) months of incarceration,

which is within the standard range. The court did not err by noting

Appellant’s prior convictions that were included in the PRS and it did not

abuse its discretion in sentencing Appellant.        See Commonwealth v.

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3
  “[W]here the trial court is informed by a pre-sentence report, it is
presumed that the court is aware of all appropriate sentencing factors and
considerations.” Commonwealth v. Ventura, 975 A.2d 1128, 1134
(Pa.Super.2009)



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Moury, 992 A.2d 162, 171 (Pa.Super.2010) (“where a sentence is within the

standard range of the guidelines, Pennsylvania law views the sentence as

appropriate under the Sentencing Code.”).

     Judgment of sentence affirmed.

     Judge Shogan joins in the memorandum.

     Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/2015




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