J-S41005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARTIN DARTOE : : Appellant : No. 622 MDA 2022
Appeal from the Judgment of Sentence Entered March 18, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001917-2020
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED: JANUARY 27, 2023
Martin Dartoe appeals from the judgment of sentence, entered in the
Court of Common Pleas of Luzerne County, following his convictions of driving
under the influence (DUI),1 driving with a suspended license,2 and driving
without required light.3 After careful review, we vacate the judgment of
sentence and remand for further proceedings.
On January 9, 2020, shortly after 10:00 p.m., Officer Stephan Wengen,
a police officer for the City of Wilkes-Barre, was on patrol with Officer Shawn
Yelland. While patrolling Grove Street, they observed a Saturn idling on the
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(a)(1).
2 Id. at § 1543(b)(1)(i).
3 Id. at § 4302. J-S41005-22
side of the roadway, with its headlights on. As the officers drove past the
vehicle, they were able to identify Dartoe as the driver. Both officers were
familiar with Dartoe and knew that Dartoe’s license was suspended. The
officers verified with PennDOT that Dartoe’s license was suspended.
Dartoe turned off the Saturn’s headlights and began to enter the
roadway on Grove Street heading towards Stanton Street. The officers
initiated a traffic stop due to Dartoe’s suspended license and his failure to use
headlights at night. As Officer Wengen approached the vehicle, he smelled a
strong odor of alcohol and observed that Dartoe had bloodshot and glassy
eyes. It took Dartoe several minutes to procure his identification and
information. During this time, Officer Wenger observed that Dartoe was
fumbling with his wallet, dropped it at least once, and appeared to have a
difficult time retrieving his identification from his wallet.
The officers asked Dartoe to exit the vehicle and conducted field sobriety
tests, which Dartoe failed. Dartoe was taken to the DUI center to perform a
breathalyzer. At the center, Sergeant Joseph Ziegler read Dartoe the DL-26A
form and, per the form, advised Dartoe that silence was considered a refusal
to consent to the breathalyzer test. After reading the form, Dartoe indicated
that he would take the test, but did not breathe into the machine. The
machine registered this as a “failure.” Sergeant Ziegler read Dartoe the form
again and asked Dartoe if he would like to try again. Dartoe did not breathe
into the machine and did not acknowledge Sergeant Ziegler.
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On June 21, 2021, Dartoe proceeded to a jury trial, after which he was
convicted of the above-mentioned offenses. The trial court deferred
sentencing and ordered the preparation of a pre-sentence investigation report.
On March 18, 2022, for his DUI conviction, the trial court sentenced Dartoe,
to a period of twelve months of house arrest, sixty months of IPP, and a
$2,500.00 fine. At his conviction for subsection 1543(b)(1)(i), driving with a
suspended license, the trial court sentenced Dartoe to a period of 90 days
house arrest, consecutive to his DUI sentence, and a $1,000.00 fine. For his
conviction of driving without required light, the trial court sentenced Dartoe
to pay a $25.00 fine. Dartoe was also ordered to undergo a drug and alcohol
evaluation and follow any recommendations, and to complete alcohol highway
safety school.
On March 23, 2022, Dartoe filed a post-sentence motion challenging the
constitutionality of subsection 1543(b)(1)(i). On March 29, 2022, the trial
court denied Dartoe’s post-sentence motion. Dartoe filed a timely notice of
appeal to this Court and a court-ordered Pa.R.A.P. 1925(b) concise statement
of errors complained of on appeal.
Dartoe now raises the following claim for our review: “Did the trial court
impose an illegal sentence of 90 days of house arrest no matter whether the
sentence was imposed under 75 Pa.C.S.A. § 1543(b)(1)(ii) or [§]
1543(b)(1.1)(i) because the sentencing statute is unconstitutionally vague?”
Brief for Appellant, at 2.
-3- J-S41005-22
Dartoe raises two sub-claims, which we address together. First, Dartoe
argues that he “appears to have been sentenced under § 1543(b)(1.1)(i).”
Id. at 9. Dartoe further asserts that he “may also have been sentenced under
subsection (b)(1)(ii).” Id. Dartoe argues that a sentence of 90 days’ house
arrest and a mandatory minimum fine of $1,000.00 is an illegal sentence
under either of those subsections. Id. In essence, Dartoe’s first argument is
based upon the premise that the trial court mistakenly sentenced him under
a subsection for which he was not convicted. Id. at 6-12. Additionally, Dartoe
argues that, even if the trial court did not sentence him under either
subsection 1543(b)(1.1)(1) or (b)(1)(ii), his sentence is nevertheless illegal
because it does not match the sentencing scheme under any subsection. Id.
at 11-12. In his second sub-claim, Dartoe claims that his sentence is
unconstitutional because subsections 1543(b)(1.1)(1) and (b)(1)(ii) have
both been deemed unconstitutional. See id. (citing Commonwealth v. Eid,
249 A.3d 1030, 1044 (Pa. 2021); Commonwealth v. Jackson, 271 A.3d
1286 (Pa. Super. 2022)).
We note that Dartoe’s claims were not preserved in his Rule 1925(b)
concise statement. However, Dartoe’s claims challenge the legality of his
sentence, and, thus, cannot be waived. See Commonwealth v. Jones, 932
A.2d 179, 182 (Pa. Super. 2007).
We adhere to the following standard of review:
Issues relating to the legality of a sentence are questions of law. When the legality of a sentence is at issue, our standard of review over such questions is de novo and our scope of review is plenary.
-4- J-S41005-22
If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated.
Commonwealth v. Ramos, 197 A.3d 766, 768-69 (Pa. Super. 2018)
(internal citations, quotations, and ellipses omitted).
The Motor Vehicle Code provides, in relevant part:
(a) Offense defined.--Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction or adjudication of delinquency, be sentenced to pay a fine of $200.
(b) Certain offenses.--
(1) The following shall apply:
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J-S41005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARTIN DARTOE : : Appellant : No. 622 MDA 2022
Appeal from the Judgment of Sentence Entered March 18, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001917-2020
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED: JANUARY 27, 2023
Martin Dartoe appeals from the judgment of sentence, entered in the
Court of Common Pleas of Luzerne County, following his convictions of driving
under the influence (DUI),1 driving with a suspended license,2 and driving
without required light.3 After careful review, we vacate the judgment of
sentence and remand for further proceedings.
On January 9, 2020, shortly after 10:00 p.m., Officer Stephan Wengen,
a police officer for the City of Wilkes-Barre, was on patrol with Officer Shawn
Yelland. While patrolling Grove Street, they observed a Saturn idling on the
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(a)(1).
2 Id. at § 1543(b)(1)(i).
3 Id. at § 4302. J-S41005-22
side of the roadway, with its headlights on. As the officers drove past the
vehicle, they were able to identify Dartoe as the driver. Both officers were
familiar with Dartoe and knew that Dartoe’s license was suspended. The
officers verified with PennDOT that Dartoe’s license was suspended.
Dartoe turned off the Saturn’s headlights and began to enter the
roadway on Grove Street heading towards Stanton Street. The officers
initiated a traffic stop due to Dartoe’s suspended license and his failure to use
headlights at night. As Officer Wengen approached the vehicle, he smelled a
strong odor of alcohol and observed that Dartoe had bloodshot and glassy
eyes. It took Dartoe several minutes to procure his identification and
information. During this time, Officer Wenger observed that Dartoe was
fumbling with his wallet, dropped it at least once, and appeared to have a
difficult time retrieving his identification from his wallet.
The officers asked Dartoe to exit the vehicle and conducted field sobriety
tests, which Dartoe failed. Dartoe was taken to the DUI center to perform a
breathalyzer. At the center, Sergeant Joseph Ziegler read Dartoe the DL-26A
form and, per the form, advised Dartoe that silence was considered a refusal
to consent to the breathalyzer test. After reading the form, Dartoe indicated
that he would take the test, but did not breathe into the machine. The
machine registered this as a “failure.” Sergeant Ziegler read Dartoe the form
again and asked Dartoe if he would like to try again. Dartoe did not breathe
into the machine and did not acknowledge Sergeant Ziegler.
-2- J-S41005-22
On June 21, 2021, Dartoe proceeded to a jury trial, after which he was
convicted of the above-mentioned offenses. The trial court deferred
sentencing and ordered the preparation of a pre-sentence investigation report.
On March 18, 2022, for his DUI conviction, the trial court sentenced Dartoe,
to a period of twelve months of house arrest, sixty months of IPP, and a
$2,500.00 fine. At his conviction for subsection 1543(b)(1)(i), driving with a
suspended license, the trial court sentenced Dartoe to a period of 90 days
house arrest, consecutive to his DUI sentence, and a $1,000.00 fine. For his
conviction of driving without required light, the trial court sentenced Dartoe
to pay a $25.00 fine. Dartoe was also ordered to undergo a drug and alcohol
evaluation and follow any recommendations, and to complete alcohol highway
safety school.
On March 23, 2022, Dartoe filed a post-sentence motion challenging the
constitutionality of subsection 1543(b)(1)(i). On March 29, 2022, the trial
court denied Dartoe’s post-sentence motion. Dartoe filed a timely notice of
appeal to this Court and a court-ordered Pa.R.A.P. 1925(b) concise statement
of errors complained of on appeal.
Dartoe now raises the following claim for our review: “Did the trial court
impose an illegal sentence of 90 days of house arrest no matter whether the
sentence was imposed under 75 Pa.C.S.A. § 1543(b)(1)(ii) or [§]
1543(b)(1.1)(i) because the sentencing statute is unconstitutionally vague?”
Brief for Appellant, at 2.
-3- J-S41005-22
Dartoe raises two sub-claims, which we address together. First, Dartoe
argues that he “appears to have been sentenced under § 1543(b)(1.1)(i).”
Id. at 9. Dartoe further asserts that he “may also have been sentenced under
subsection (b)(1)(ii).” Id. Dartoe argues that a sentence of 90 days’ house
arrest and a mandatory minimum fine of $1,000.00 is an illegal sentence
under either of those subsections. Id. In essence, Dartoe’s first argument is
based upon the premise that the trial court mistakenly sentenced him under
a subsection for which he was not convicted. Id. at 6-12. Additionally, Dartoe
argues that, even if the trial court did not sentence him under either
subsection 1543(b)(1.1)(1) or (b)(1)(ii), his sentence is nevertheless illegal
because it does not match the sentencing scheme under any subsection. Id.
at 11-12. In his second sub-claim, Dartoe claims that his sentence is
unconstitutional because subsections 1543(b)(1.1)(1) and (b)(1)(ii) have
both been deemed unconstitutional. See id. (citing Commonwealth v. Eid,
249 A.3d 1030, 1044 (Pa. 2021); Commonwealth v. Jackson, 271 A.3d
1286 (Pa. Super. 2022)).
We note that Dartoe’s claims were not preserved in his Rule 1925(b)
concise statement. However, Dartoe’s claims challenge the legality of his
sentence, and, thus, cannot be waived. See Commonwealth v. Jones, 932
A.2d 179, 182 (Pa. Super. 2007).
We adhere to the following standard of review:
Issues relating to the legality of a sentence are questions of law. When the legality of a sentence is at issue, our standard of review over such questions is de novo and our scope of review is plenary.
-4- J-S41005-22
If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated.
Commonwealth v. Ramos, 197 A.3d 766, 768-69 (Pa. Super. 2018)
(internal citations, quotations, and ellipses omitted).
The Motor Vehicle Code provides, in relevant part:
(a) Offense defined.--Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction or adjudication of delinquency, be sentenced to pay a fine of $200.
(b) Certain offenses.--
(1) The following shall apply:
(i) A person who drives a motor vehicle on a highway or trafficway of this Commonwealth at a time when the person’s operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3802 (relating to [DUI]) or the former section 3731, because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3802 or former section 3731 or is suspended under section 1581 (relating to Driver’s License Compact) for an offense substantially similar to a violation of section 3802 or former section 3731 shall, upon a first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $500 and to undergo imprisonment for a period of not less than 60 days nor more than 90 days.
75 Pa.C.S.A. §§ 1543(a)-(b)(1)(i).
First, we conclude that the trial court did not “mistakenly” sentence
Dartoe under either subsection 1543(b)(1.1)(i) or (b)(1)(ii). Rather, the
record clearly reflects that Dartoe was convicted and sentenced under
-5- J-S41005-22
subsection 1543(b)(1)(i). See Criminal Information, 10/5/20, at 1;
Sentencing Order, 3/18/22, at 1. However, it is equally clear that the trial
court imposed an illegal sentence under subsection 1543(b)(1)(i) where that
statutory subsection prescribes a $500.00 fine, not a $1,000.00 fine. See 75
Pa.C.S.A. § 1543(b)(1)(i). Moreover, the Commonwealth has conceded that
the trial court imposed an illegal sentence at Dartoe’s conviction under
subsection 1543(b)(1)(i). See Brief for Appellee, at 8-13.
Regarding Dartoe’s second sub-claim, we observe that Eid, supra, and
Jackson, supra, have no impact on the instant case, because Dartoe was
charged and convicted under subsection 1543(b)(1)(i). As the
Commonwealth notes in its brief, this Court has previously declined to extend
Eid and Jackson to subsection 1543(b)(1)(i).4 See Commonwealth v.
White, 268 A.3d 499, 502 (Pa. Super. 2022).
We conclude that Dartoe’s sentence is not unconstitutional based upon
the rationale in Eid and Jackson. Rather, Dartoe’s sentence is illegal because
his sentence violates the mandatory maximum sentence outlined in subsection
1543(b)(1)(i).
4 Our Supreme Court in Eid held that subsection 1543(b)(1.1)(i) was unconstitutional as unconstitutionally vague and inoperable. See Eid, 249 A.3d 1030, 1044. Under similar rationale, this Court, in Jackson held that subsection 1543(b)(1)(ii) was unconstitutionally vague and inoperable. See Jackson, 271 A.3d 1286, 1288.
-6- J-S41005-22
Accordingly, we vacate Dartoe’s judgment of sentence, and remand for
the trial court to sentence Dartoe under the parameters set forth under
subsection 1543(b)(1)(i).
Judgment of sentence vacated. Case remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 01/27/2023
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