J-A11023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK DAVID SMITH                           :
                                               :
                       Appellant               :   No. 1789 MDA 2017

            Appeal from the Judgment of Sentence October 23, 2017
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                       No(s): CP-35-CR-0001048-2017,
                           CP-35-CR-0001049-2017


BEFORE:      STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 29, 2018

        Appellant Mark David Smith appeals from the judgment of sentence

imposed after he entered an open guilty plea to two counts of driving under

the influence (DUI)—highest rate1 and related offenses. Appellant contends

that the trial court’s sentence is illegal because he pled guilty to DUI as a first

and second offenses, but was sentenced for DUI as second and third offenses.

Appellant also challenges the discretionary aspects of his sentence. We affirm.

        The relevant procedural history is as follows.      On March 10, 2017,

Appellant was charged with DUI and accident involving damage to attended

vehicle and property2 at CP-35-CR-0001049-2017 (CR-1049) arising from a
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*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. § 3802(c).

2   75 Pa.C.S. § 3743(a).
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February 8, 2017 incident. On March 29, 2017, Appellant was involved in

another incident and was charged at CP-35-CR-0001048-2017 (CR-1048) with

DUI on that same day.

        On October 5, 2017, Appellant proceeded to a guilty plea hearing. At

the hearing, the parties proceeded as if the DUI count in CR-1049 was a first

offense and the DUI count in CR-1048 was a second offense.             See N.T.,

10/5/17, at 2-3. During its colloquy, the trial court informed Appellant of the

ninety-day mandatory minimum for DUI as a second offense, as well as the

maximum sentences for all offenses.              Id. at 5; see also 75 Pa.C.S. §

3804(c).3
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3   Section 3804(c) provides, in relevant part:

        (c)    Incapacity;    highest    blood    alcohol;     controlled
        substances.--An . . . individual who violates section 3802(c) . . .
        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;

                                          ***

              (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;

                                          ***




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       After the trial court accepted Appellant’s plea, Appellant’s counsel

requested immediate sentencing.            N.T., 10/5/17, at 8.     The court asked

whether Appellant had any other prior charges.           Id.      Appellant’s counsel

responded that approximately one week earlier, Appellant pled guilty to a DUI

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              (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[.]

75 Pa.C.S. § 3804(c).

Section 3806, in relevant part, defines a “prior offense” as follows:

       (a) General rule.--Except as set forth in subsection (b), the term
       “prior offense” as used in this chapter shall mean any conviction
       for which judgment of sentence has been imposed, adjudication
       of delinquency, juvenile consent decree, acceptance of
       Accelerated Rehabilitative Disposition or other form of preliminary
       disposition before the sentencing on the present violation for any
       of the following:

          (1) an offense under section 3802 (relating to driving under
          influence of alcohol or controlled substance)[.]

                                          ***

       (b) Timing.--

                                          ***

          (2) The court shall calculate the number of prior offenses, if
          any, at the time of sentencing.

          (3) If the defendant is sentenced for two or more offenses in
          the same day, the offenses shall be considered prior offenses
          within the meaning of this subsection.

75 Pa.C.S. § 3806(a)(1), (b)(2)-(3).


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offense in Dauphin County (Dauphin County DUI). Id. at 8-9. According to

Appellant’s counsel, Appellant committed the Dauphin County DUI before

committing the two DUIs before the court. Id. at 9. The Commonwealth

interjected and asserted that the instant DUIs should be regarded as a second

and third offense based on the Dauphin County DUI. Id. The court responded

that the Dauphin County DUI would not constitute a prior conviction unless

Appellant was sentenced for the Dauphin County DUI before the instant

proceeding. Id. The Commonwealth agreed with the court. Id.

      The trial court thereafter sentenced Appellant to an intermediate

punishment program (IP) for fifty-seven months, with time-served on a

ninety-day mandatory minimum sentence, for DUI in CR-1048, with a

mandatory fine of $1,500. The court also imposed a concurrent sentence of

seventy-two hours to six months’ imprisonment for DUI in CR-1049, with a

mandatory fine of $1,000. Id. at 10-11.

      Five days later, on October 10, 2017, the Commonwealth filed a motion

to modify Appellant’s sentence. The Commonwealth averred that Appellant

was sentenced for the Dauphin County DUI on September 27, 2017, five days

before the sentencing hearing in CR-1048 and CR-1049.          See Mot. for

Modification of Sentence, 10/10/17, at 1.    The Commonwealth requested

resentencing to “correct” the sentence to account for the proper number of

prior DUI convictions. Id. at 2.

      The trial court convened a hearing on October 23, 2017. Appellant’s

counsel averred that she conferred with Appellant and “explained everything

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to him.”4 N.T., 10/23/17, at 4. Specifically, Appellant’s counsel stated that

she informed Appellant that a DUI conviction as a third offense carried a one-

year mandatory minimum sentence. Id. Appellant’s counsel noted that as of

the date of the hearing, Appellant would have to serve an additional five

months and one week to complete the one-year minimum sentence. Id. The

trial court heard from Appellant, after which it vacated its prior sentence for

DUI in CR-1049 and resentenced Appellant to four years’ IP, to be preceded

by one year of incarceration.5 Appellant signed a post-sentence rights form,

but did not file post-sentence motions.

       Appellant filed a timely notice of appeal.      The trial court ordered a

Pa.R.A.P. 1925(b) statement on November 15, 2017. On December 15, 2017,

Appellant filed a Pa.R.A.P. 1925(b) statement nunc pro tunc asserting that the

trial court’s sentence was harsh and excessive and that the court failed to

state the reasons for a four year intermediate punishment sentence.          See

Pa.R.A.P. 1925(b) Statement, 12/15/17.           The trial court filed an opinion

responding to those claims. Trial Ct. Op., 1/9/18.
____________________________________________


4 The record contains a written plea colloquy from the original October 5, 2017
plea hearing. That form contains several handwritten alterations that changed
the date to October 23, 2017, and indicated, in some places, that the DUI
charges constituted second and third offenses.          The form only bears
Appellant’s signature dated October 5, 2017.

5 The trial court ordered that its new sentence in CR-1049 run concurrent to
its prior sentence in CR-1048. The court also changed some of its electronic
monitoring requirements in CR-1048 at Appellant’s request and permitted
Appellant the opportunity to serve his mandatory minimum with work release
or home confinement. The written sentencing orders suggest that the trial
court imposed $2,500 in fines in CR-1048 and $1,500 in CR-1049.

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      Appellant presents the following issues on appeal:

      1. Whether the sentencing court imposed an illegal sentence when
      it resentenced [Appellant] on October 23, 2017 to a tier three-
      third offense DUI when he had not pled to this offense[.]

      2. Whether the sentencing court failed to state on the record the
      reason necessitating a four-year intermediate punishment
      sentence on the [CR-1048] DUI charge[.]

      3. Whether the sentencing court imposed a harsh and excessive
      sentence in [CR-1049] when it imposed the maximum sentence
      permitted, that is, the mandatory one year incarceration plus four
      year intermediate punishment[.]

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

      It is well settled that a plea of guilty amounts to a waiver of all non-

jurisdictional defects and defenses. Commonwealth v. Morrison, 173 A.3d

286, 290 (Pa. Super. 2017). A defendant may generally only appeal matters

concerning the jurisdiction of the court, the validity of the guilty plea, and the

legality of the sentence. Id. Additionally, when a defendant pleads guilty

without an agreement as to the sentence, he may challenge the discretionary

aspects of the sentence imposed. Commonwealth v. Tirado, 870 A.2d 362,

365 n.5 (Pa. Super. 2005).

      Appellant first claims that the trial court imposed an illegal sentence for

DUI as a third offense because he pled guilty to DUI as first and second

offenses. Appellant does not dispute that the instant two DUI offenses “were,

in fact, his second and third DUI.” Appellant’s Brief at 11.




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       Pennsylvania courts have recognized that the legality of a sentence is

implicated in claims that a sentence (1) is not authorized by a statute;6 (2)

violated double jeopardy or should have merged; (3) violates the principles of

Apprendi v. New Jersey, 530 U.S. 466 (2000), or United States v.

Alleyne, 570 U.S. 99 (2013); or (4) constitutes a cruel and unusual

punishment under the Eighth Amendment to the United States Constitution.

Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014). A claim

that a sentence is illegal “can never be waived and may be reviewed sua

sponte by this Court.” Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa.

Super. 2013) (citation omitted).

       In Apprendi, the United States Supreme Court concluded:

       Other than the fact of a prior conviction, any fact that
       increases the penalty for a crime beyond the prescribed statutory
       maximum must be submitted to a jury, and proved beyond a
       reasonable doubt. . . . “[I]t is unconstitutional for a legislature to
       remove from the jury the assessment of facts that increase the
       prescribed range of penalties to which a criminal defendant is
       exposed. It is equally clear that such facts must be established
       beyond a reasonable doubt.”




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6 For example, the failure to impose an applicable mandatory minimum
sentence constitutes a challenge to the legality of a sentence.        See
Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa. Super. 2011);
Commonwealth v. Lee, 526 A.2d 405, 408 (Pa. Super. 1987); see also 75
Pa.C.S. § 3804(g) (providing for Commonwealth’s right to appeal the trial
court’s failure to impose a mandatory minimum sentence for DUI).
Additionally, the proper calculation of prior offenses under Section 3806
implicates the legality of sentence claim. See Commonwealth v. Haag, 981
A.2d 902, 904 (Pa. 2009) (discussing a prior version of Section 3806).

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Apprendi, 530 U.S. at 490 (citation omitted) (emphasis added).             While

Apprendi addressed facts increasing the maximum sentence, the United

States Supreme Court extended Apprendi principles to mandatory minimum

provisions in Alleyne. Alleyne 570 U.S. at 111-13. However, the Alleyne

Court did not disturb the distinction between a fact increasing the permissible

range of a sentence and a prior conviction.        See id. at 111 n.1 (“In

Almendarez–Torres v. United States, 523 U.S. 224 . . . (1998), we

recognized a narrow exception to this general rule for the fact of a prior

conviction. Because the parties do not contest that decision’s vitality, we do

not revisit it for purposes of our decision today.”). Thus, neither Apprendi

nor Alleyne disturbs Pennsylvania’s traditional view that prior convictions are

sentencing factors and not substantive elements of the offense.             See

Commonwealth v. Aponte, 855 A.2d 800, 809-10 (Pa. 2004).

      In the context of a plea, it is well-settled that the Commonwealth must

advise the defendant of its intent to seek a mandatory minimum.

      There is no dispute that a plea entered without knowledge of not
      only the maximum penalty which could be imposed, but also the
      minimum penalty which must be imposed, would not be a valid
      plea. Knowledge of the higher mandatory minimum sentence for
      repeat offenders may affect the defendant’s decision to plead
      guilty even though knowledge of the recidivist penalty would not
      affect a defendant’s defense for the crime charged. Therefore,
      although notice of the recidivist penalty is not required prior to
      trial, it is required prior to a guilty plea.

Commonwealth v. Broaden, 980 A.2d 124, 129-30 (Pa. Super. 2009)

(citation omitted); accord Pa.R.Crim.P. 590 cmt. (providing, inter alia, that a


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defendant must be aware of the permissible range of sentences and/or fines

for the offense charged).

        In Broaden, the defendant pled guilty to several counts of aggravated

assault, among other offenses. Broaden, 980 A.2d at 126-127. Nearly two

months after the defendant entered his plea, the Commonwealth filed a notice

of its intent to seek a “second strike” mandatory minimum sentence under 42

Pa.C.S. § 9714 based on the defendant’s prior conviction for robbery. Id. at

127 & n.2.     One month later, the trial court sentenced the defendant and

applied the ten-year mandatory minimum sentence called for by Section 9714.

Id. at 127. The defendant filed a timely post sentence seeking to withdraw

his plea, which the trial court denied. Id.

        In the defendant’s appeal, the Broaden Court concluded that the

defendant’s plea “was deficient” because the Commonwealth failed to fully

inform him of its intent to seek a mandatory minimum sentence before his

plea.    Id. at 130 & n.4. Nevertheless, we declined to grant relief, reasoning

that the Commonwealth’s pre-sentence notice provided the defendant with

“ample time to prepare a motion to withdraw his guilty plea” but the defendant

“declined this opportunity and chose to proceed with the sentencing.” Id. at

131. Therefore, we affirmed the judgment of sentence, holding that “[b]y

opting to proceed with sentencing, [the defendant] waived his contention that




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his guilty plea was not knowing because he had not been notified of the

mandatory minimum sentence.”7 Id.

       Following our review, we are not persuaded by Appellant’s claim that

the trial court’s sentence was illegal.            Appellant advances none of the

traditional bases for challenging an illegal sentence. See Lawrence, 99 A.3d

at 122. Indeed, Appellant does not dispute the accuracy of the trial court’s

calculation of his prior offenses, but rather relies on the procedural missteps

that preceded his plea. However, even if there was a violation of the notice

requirements for the entry of a valid plea,8 Appellant did not seek to withdraw

his plea even after being advised of the ramifications of the mandatory

minimum sentences. See Broaden, 980 A.2d at 131.

       Thus, we conclude that Appellant’s admission to the two DUI counts

authorized the trial court to account for all of Appellant’s prior offenses. See

id. at 127; Aponte, 855 A.2d at 809-10; accord 75 Pa.C.S. § 3806(a)(2)

(permitting the trial court to calculate the number of prior offenses at the time

of sentencing). Because prior offenses constitute sentencing enhancements

rather than substantive elements of an offense, the defect in the notice of the

Commonwealth’s intent to seek mandatory minimum sentence did not affect


____________________________________________


7 The Broaden Court did not address, sua sponte, whether the defendant’s
sentence was illegal based on the procedural defect in the guilty plea process.

8Indeed, the change in the prior offenses not only increased the grade of one
of the DUI offenses, but also increased the applicable mandatory minimum
sentence. See 75 Pa.C.S. §§ 3803(b)(4), 3804(c).

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the legality of the sentence. See Aponte, 855 A.2d at 809-10.               Thus,

Appellant’s claim that his sentence was illegal merits no relief.

      Appellant’s second and third questions raise challenges to the

discretionary aspects of the trial court’s sentence. See Appellant’s Brief at 5,

12-16. However, it is well settled that:

      The right to appellate review of the discretionary aspects of a
      sentence is not absolute, and must be considered a petition for
      permission to appeal. An appellant must satisfy a four-part test to
      invoke this Court’s jurisdiction when challenging the discretionary
      aspects of a sentence.

         [W]e conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal; (2) whether
         the issue was properly preserved at sentencing or in a
         motion to reconsider and modify sentence; (3) whether
         appellant’s brief has a fatal defect; and (4) whether there is
         a substantial question that the sentence appealed from is
         not appropriate under the Sentencing Code.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citations

omitted). “Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to modify

the sentence imposed.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010) (citation omitted).

      Instantly, Appellant did not preserve his issues at the sentencing

hearing or in a post-sentence motion. Therefore, we are constrained to find

his final two claims waived. See id.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/29/2018




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