J-S10007-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
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NICOLE NOELLE ELINSKY :
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Appellant : No. 1912 EDA 2017
Appeal from the Judgment of Sentence February 15, 2017 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002383-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
:
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NICOLE NOELLE ELINSKY :
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Appellant : No. 1913 EDA 2017
Appeal from the Judgment of Sentence February 15, 2017 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002853-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
v. :
:
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NICOLE NOELLE ELINSKY :
:
Appellant : No. 1914 EDA 2017
Appeal from the Judgment of Sentence February 15, 2017 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001053-2016
J-S10007-18
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
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v. :
:
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NICOLE NOELLE ELINSKY :
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Appellant : No. 1915 EDA 2017
Appeal from the Judgment of Sentence February 15, 2017 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001143-2016
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J. MEMORANDUM BY BOWES, J.: FILED JULY 17, 2018 Nicole Noelle Elinsky appeals from the aggregate judgment of sentence of three to six years incarceration, imposed following her convictions at four separate dockets for DUI-related offenses. At No. 2016-1053, Appellant challenges the denial of her suppression motion seeking application of North Dakota v. Birchfield, 136 S.Ct. 2160 (2016) (holding warrantless blood tests cannot be justified as a search incident to arrest). Appellant also challenges the discretionary aspects of her aggregate sentence. We affirm.1 We briefly state the underlying facts. Appellant committed the first DUI on May 2, 2015 (No. 2015-2383). The officer asked for her consent to draw blood, which she declined. Appellant was informed of the consequences of
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1 Appellant lodged a total of four notices of appeal, one at each criminal docket, which we have consolidated.
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refusal, and continued to refuse. She was later charged with, inter alia, refusing blood testing. Regarding her next DUI, on May 10, 2015 (No. 2015- 2853), Appellant initially refused, but ultimately relented and consented to a blood draw, which resulted in DUI charges.
As these cases proceeded on their course, Appellant was arrested for a third DUI, which occurred on December 26, 2015 (case 2016-1053). Appellant initially pleaded guilty to the two May DUIs on January 5, 2016, and sentencing was deferred pending a pre-sentence report. While awaiting sentencing, Appellant committed her fourth DUI, occurring March 14, 2016.2 On June 23, 2016, the United States Supreme Court issued Birchfield.
Due to that case, and other defects in the initial guilty pleas, Appellant’s guilty pleas to the May DUI charges were withdrawn and amended. Appellant pleaded guilty to amended charges on August 5, 2016. On that same date, Appellant also pleaded guilty to the March 14, 2016 DUI. Sentencing was deferred.
At the remaining case, relating to the December 26, 2015 DUI, Appellant filed a motion to suppress based on Birchfield, which the trial court denied following a hearing. On January 12, 2017, the parties proceeded to a
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2 Appellant was informed of the consequences of refusal and consented to the blood draw. The Commonwealth agreed that the blood evidence was inadmissible.
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stipulated non-jury trial, and the trial court found Appellant guilty of, inter alia, DUI with a BAC exceeding .16.
On February 15, 2017, the trial court sentenced Appellant at all four cases, and imposed an aggregate term of three to six years incarceration. Following the denial of post-sentence motions, Appellant filed timely notices of appeal in all four cases, which we have consolidated. Appellant complied with the order to file a concise statement, and the trial court issued a thorough opinion. The matter is ready for review of Appellant’s claims:
I. Did the trial court err in denying Appellant’s motion to suppress regarding the results of the blood test performed pursuant to a warrantless search of Appellant’s blood? Specifically, did the trial court err in finding that consent was given voluntarily for the warrantless blood draw and the use of the results obtained from the search?
II. Did the trial court abuse its discretion when it imposed an aggregate sentence of three (3) years to six (6) years on Criminal Docket Numbers CP-15-CR-1053-2016, CP-15-CR-1143-2016, CP-15-CR-2383-2015, and CP-15-CR-2853-2015?
Appellant’s brief at 5.
The Birchfield issue applies only to Appellant’s charges at No. 2015-
1053. We apply the following standard of review.
Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as
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remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
Commonwealth v. Raglin, 178 A.3d 868, 871 (Pa.Super. 2018).
Additionally, where the voluntariness of consent to search is at issue, the following principles guide our review.
A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies. One such exception is consent, voluntarily given. The central Fourth Amendment inquiries in consent cases entail assessment of the constitutional validity of the citizen/police encounter giving rise to the consent;
and, ultimately, the voluntariness of consent. Where the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus.
Commonwealth v. Strickler, 757 A.2d 884, 888–89 (Pa. 2000) (citations and footnotes omitted). The voluntariness standard for consent is less stringent than the tests governing waiver of other constitutional rights. Id. at 889 n.3 (“[W]hile the waiver analysis appropriately applies to safeguard constitutional guarantees involving the preservation of a fair trial of criminal defendants, it does not pertain to the wholly different protections of the Fourth Amendment[.]”) (citations omitted). The test is objective in nature, with
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some subjective considerations. Strickler, supra at 901 (“Additionally, although the inquiry is an objective one, the maturity, sophistication and mental or emotional state of the defendant (including age, intelligence and capacity to exercise free will), are to be taken into account.”) (citations omitted).
The facts relevant to the Birchfield issue were set forth at the suppression hearing as follows. On December 26, 2015, Officer Matthew Grandizio responded to a reported accident in a parking lot. Officer Grandizio spoke to Appellant, who was driving one of the vehicles. The officer observed indicia of intoxication, and, following Appellant’s unsatisfactory performance on field sobriety tests, arrested her for DUI. Appellant was transported to the hospital in handcuffs, her blood was drawn, and testing revealed that her BAC level was .194. Officer Grandizio testified that upon arrest he advised Appellant of the process going forward, which included his request for a blood draw. Once they arrived at the hospital, the officer again informed her that he “need[ed] a sample of your blood.” N.T. Suppression, 12/20/16, at 16. Appellant did not balk, complain, or otherwise question the procedures, and consented to the blood draw. Critically, the officer did not read Appellant the then-standard implied consent form, which set forth the pre-Birchfield understanding of the consequences attached to refusal, nor did he otherwise discuss with her the consequences of refusal.
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Appellant also testified. She stated that she did not think she had a choice in the matter, due to her prior DUI arrests. As a result of those incidents, she was familiar with the implied consent form and the penalties for refusing. Furthermore, Appellant noted that she had, in fact, refused to provide a blood sample during a prior DUI arrest and was charged with refusal. Therefore, while Appellant consented to the blood draw, she maintained that her “consent . . . was not voluntarily tendered as it was tainted by her knowledge of the enhanced penalties related to refusal to submit to chemical testing.” Motion to Suppress, 12/7/16, at 2. This argument is continued on appeal.
The trial court opinion provides an extensive analysis, which the Commonwealth adopts. Commonwealth’s brief at 14. That analysis rests on two points. First, the court concluded that Appellant’s prior experience with the implied consent form, and the fact that she was previously charged with refusal, “tainted” her later interaction with Officer Grandizio, but that the passage of time served to purge the taint. Thus, “the police officer who initiated the blood draw request on December 26, 2015 did not exploit the prior illegality in order to obtain [Appellant]’s consent[.]” Trial Court Opinion, 8/16/17, at 21.
Next, the trial court concluded that the remaining question was whether Appellant validly consented to the search, and, examining the totality of the
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circumstances, determined that her consent was not tainted by her knowledge of the implied consent warnings. We quote the trial court’s opinion:
We note that there is no Pennsylvania case law directly on point supporting or opposing [Appellant]’s theory. However, analogizing [Appellant]’s case to others in which subsequent searches are preceded by unconstitutional law enforcement conduct we note that there is authority for the proposition that taint from the prior unlawful conduct may dissipate and become so attenuated that a subsequent valid search, or, in a different context, a subsequent valid confession after a first un-Mirandized interrogation, is not necessarily precluded simply because the [Appellant] was subjected previously to some improper government conduct.
We find that the passage of seven (7) months’ time, the fact of a different jurisdiction, a different officer, the absence of the offensive [implied consent] warnings, the fact that the “misconduct” at issue, the former provision of the [implied consent] warnings, was at the time a requirement of Pennsylvania law and not an error that arose by virtue of imprudent or improper actions of the police and that the police officer who initiated the blood draw request on December 26, 2015 did not exploit the prior illegality in order to obtain [Appellant]’s consent, and that the [Appellant], as we will discuss below, gave her unqualified and volitional consent to the search are sufficient to demonstrate that the connection between the prior illegality (the provision of [implied consent] warnings seven (7) months earlier) and the challenged evidence has become so attenuated as to dissipate any taint that might, arguably, have otherwise existed and that, as we will discuss below, the BAC evidence at issue sub judice resulted from an intervening independent act of free will.
Trial Court Opinion, 8/16/17, at 19-21.
The trial court then proceeded to examine whether Appellant’s consent was voluntary in light of the totality of the circumstances, summarizing its findings as follows:
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The factors that weigh in favor of concluding that [Appellant]’s consent was not voluntary include that she was in police custody when she was asked to consent to the blood test, that she was not advised of her right to refuse, and her prior experience with the [implied consent] warnings. The factors that weigh in favor of concluding that [Appellant]’s consent was voluntary include the fact that seven (7) months had passed since her last DUI experience; she was in a different jurisdiction from her earlier DUI experiences; she was interacting with different officers than she had during her previous DUI experiences; the officers on December 26, 2015 did not read to [Appellant] the [implied consent] warnings or connect her refusal to any type of criminal or civil penalty; [Appellant] did not inquire about possible penalties linked to refusal or express to the officers in any way that she did not wish to consent or was hesitant about the process; the entire interaction between [Appellant] and the officers was cordial and polite with [Appellant] described by the officers as very cooperative and pleasant . . . .
....
The factors demonstrating that [Appellant]’s consent to the DUI blood test on December 26, 2015 was voluntary far outweigh the limited factors relied upon by the [Appellant] to suggest that her consent was involuntary. Consequently, we conclude, as we did at the close of the Suppression Hearing held on December 20, 2016, that the Commonwealth had met its burden to prove by clear and convincing evidence that [Appellant]’s consent to the chemical test of her blood for DUI purposes on December 26 2015 was voluntarily given under the totality of the circumstances.
Accordingly, we denied [Appellant]’s suppression motion.
Trial Court Opinion, 8/16/17, at 33-34 (paragraph break added).
Our standard of review requires that we accept the trial court’s credibility determinations. The trial court accepted her testimony that her consent in this instance was motivated by knowledge of the consequences for refusing, and balanced that knowledge against other factors.
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Preliminarily, we disagree with the trial court’s analysis regarding “taint”
and whether that taint was purged by, inter alia, the passage of time and the fact that a different officer was involved. A taint analysis necessarily involves an act that was unlawful. Here, the trial court refers to the prior warnings as the relevant unlawful act that tainted the later interactions, but the fact is that the warnings were not unlawful when issued. Thus, Appellant’s knowledge of the legal consequences if she were to refuse on the day of her arrest was not “tainted” by her prior experience; her knowledge was objectively correct. Therefore, the court erred when it stated that “the police officer who initiated the blood draw request on December 26, 2015 did not exploit the prior illegality[.]” Trial Court Opinion, 8/16/17, at 21. Since there was no prior illegality to exploit, this type of taint analysis is inappropriate.3 Simultaneously, the fact that Officer Grandizio did not inform Appellant of the consequences of refusal on the day in question is highly relevant, as there is a temporal element involved. In Commonwealth v. Haines, 168 A.3d 231 (Pa.Super. 2017), we remanded for an evidentiary hearing where the record was unclear as to whether the appellant consented before or after being told the penalties for refusing:
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3 We note that Appellant’s suppression motion uses the word “taint,” but in the context of arguing that her consent was coerced because she knew what would happen if she refused the request. Appellant did not refer to taint in the legal sense discussed by the trial court.
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We agree that if Haines validly consented before being informed that he faced enhanced criminal penalties for failure to do so, then his consent would not be tainted by the warning and the blood test results would be admissible. See Birchfield, 136 S.Ct. at 2185–86. If, however, he did not consent until after Sergeant Dehoff informed him that he would face enhanced criminal penalties if he refused to consent, then the trial court did not necessarily err in granting his motion to suppress the test results.
Id.
Id. at 236 (emphasis in original).
The trial court herein effectively applied Haines by finding that Appellant validly consented before any mention of the enhanced penalties that would apply if she refused. However, the critical distinction is that, in this case, Appellant already knew the consequences of refusal.4 The trial court largely dispensed with the need to address that wrinkle by applying a purge analysis, which we have rejected supra. Thus, we are required to answer a question not addressed by Haines: Does Birchfield apply if the arrestee has explicit knowledge5 of the consequences for refusal and consented as a result of that knowledge, despite the fact the officer did not directly threaten those same penalties?
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4 There is no indication in Haines that the driver was previously read an implied consent form or, like Appellant herein, had been charged with more severe offenses due to a prior refusal.
5 It is more accurate to state that Appellant was aware of the probable consequences, not the definitive. It is possible, for example, that the officer would have requested a breath test instead of a blood test.
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We find that Appellant’s consent was voluntary within the meaning of the Fourth Amendment. Birchfield did not foreclose a finding that a consensual blood draw was constitutionally valid even when the warnings were issued. The case referred to a partially inaccurate warning form which advised the driver that his license could be suspended if he refused. The High Court remanded for a hearing to determine if his consent was voluntarily given. While that remand did not involve a criminal sanction, that instruction implicitly rejects the notion that even actually invalid warnings are automatically coercive.
Additionally, we have addressed subjective beliefs as it bears upon consent in related circumstances involving post-Birchfield DUIs. In Commonwealth v. Miller, --- A.3d ----, 2018 WL 2057002 (Pa.Super. 2018), we examined a claim wherein the defendant asserted that he had been previously been arrested for DUI, and therefore believed that he would face increased criminal penalties for refusal. The officer informed Miller of the correct post-Birchfield consequences. The trial court granted suppression, and we reversed, determining that the consent was voluntarily given:
Second, Appellee avers that he subjectively believed he would face increased criminal penalties if he refused a blood draw.
Appellee avers that the last time he was arrested for DUI, prior to the Supreme Court of the United States' decision in Birchfield, he was read the DL–26 form. [T]he DL–26 form included a warning that failure to submit to a blood draw would subject a defendant to enhanced criminal penalties. Appellee, therefore,
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argues that the trial court properly considered his subjective belief that enhanced criminal consequences attached to the refusal to consent to a blood draw.
Appellee's argument fails in light of our Supreme Court's decision in Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000). In Strickler, our Supreme Court explained that, while a defendant's subjective belief regarding his or her ability to refuse to consent to a search may be considered as part of the totality of the circumstances, it is the police officer's express warnings which are most important when evaluating subjective belief. See id. at 901. In other words, incorrect subjective beliefs that are contradicted by a police officer's actual statements to a defendant diminishes the weight a trial court may place on the defendant's errant subjective belief.
Id. at *2.
This case differs from Miller in two material respects. First, the blood draw in this case occurred pre-Birchfield. Second, it involves Appellant’s subjective knowledge of the consequences, owing to Appellant’s own history, which involved prosecution for refusal. However, we believe those are distinctions without a difference. In Miller, we stated that the police officer’s conduct is the primary focus, and we find that the same is true here. Officer Grandizio asked Appellant to provide a blood sample, and she agreed. He did not threaten or coerce her by informing her of enhanced criminal penalties in the event she declined consent. While it is true that the machinery of the State stood poised to impose additional penalties, the officer did not threaten or coerce Appellant. See Commonwealth v. Ennels, 167 A.3d 716, 724 (Pa.Super. 2017) (“Birchfield makes plain that the police may
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not threaten enhanced punishment for refusing a blood test in order to obtain consent; whether that enhanced punishment is (or can be) ultimately imposed is irrelevant to the question whether the consent was valid.”) (second emphasis in original, citation omitted). We find that the primary focus must be on what the officer said and did.
Relatedly, we note that Appellant’s outcome would effectively reward persons such as herself, who have previously run afoul of the law. See Miller, supra at *3 (“Repeat DUI offenders, owing to past legal transgressions, are not entitled to a benefit that would be unavailable to first-time DUI offenders.”). A first-time offender who consents before being told the consequences has no valid Birchfield claim. Haines. Prior violations of the law do not, of course, diminish Appellant’s Fourth Amendment protections, but injecting subjective considerations into the voluntariness inquiry necessarily provides little guidance for a police officer requesting consent. Officer Grandizio had no duty to challenge Appellant’s consent, yet, according to Appellant’s argument, he was required to tell her the consequences of refusal, despite her consent, to ensure that some subjective belief on her part did not motivate her consent. In this respect, the United States Supreme Court has rejected the notion that the prosecution must establish that the subject of a search knew he had a right to refuse. The Court noted the problems with this approach:
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[It] would, in practice, create serious doubt whether consent searches could continue to be conducted. There might be rare cases where it could be proved from the record that a person in fact affirmatively knew of his right to refuse—such as a case where he announced to the police that if he didn't sign the consent form, ‘you (police) are going to get a search warrant; or a case where by prior experience and training a person had clearly and convincingly demonstrated such knowledge. But more commonly where there was no evidence of any coercion, explicit or implicit, the prosecution would nevertheless be unable to demonstrate that the subject of the search in fact had known of his right to refuse consent.
Schneckloth v. Bustamonte, 412 U.S. 218, 229–30 (1973) (footnote omitted). The same point applies herein: the prosecution would never be able to demonstrate that Appellant validly consented to a blood draw. It may well be that her prior knowledge is why she consented, but there are other possibilities. Perhaps she sought to curry favor with the officer, or perhaps she felt remorse at having committed so many DUIs in such a short timespan and was willing to accept the consequences. The officer did not know why she agreed, and the Fourth Amendment did not require him to elicit an explanation. We find that her prior knowledge is not dispositive, and is merely one factor to consider.6 We agree with the trial court’s analysis with respect
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6Unlike the reasonable person test for purposes of the seizure inquiry, which presupposes an innocent person and is an objective inquiry, the consent test asks whether Appellant herself felt compelled to consent. Thus, the test permits subjective considerations, as noted supra. See Commonwealth v. Strickler, 757 A.2d 884, 901 (Pa. 2000) (maturity, sophistication, mental or
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to the balance of the totality of the circumstances, and adopt its analysis as our own, which is summarized. See Trial Court Opinion, 8/16/17, at 29-36. We thus agree with the balance of the trial court’s analysis, set forth supra, regarding the totality of the circumstances inquiry. We therefore agree that her consent was voluntary.
We now address Appellant’s challenge to the discretionary aspects of her sentence. Such appeals are not of right, and an appellant must invoke our jurisdiction by satisfying a four-part test. We examine:
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emotional state, age, intelligence, among other considerations). Those subjective factors, however, are at least objective in nature in the sense their existence can be measured and considered. We quote the following observation from the United States Court of Appeals for the Tenth Circuit:
But even assuming some subjective characteristics are relevant to the validity of Mr. Zapata's consent, we reject the notion that his attitude toward police, from whatever source, can constitute such a relevant subjective characteristic. While such attributes as the age, gender, education, and intelligence of the accused have been recognized as relevant, see Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973), an intangible characteristic such as attitude toward authority is inherently unverifiable and unquantifiable.
United States v. Zapata, 997 F.2d 751, 759 (10th Cir. 1993) (some citations omitted).
That Appellant had prior experience with the enhanced penalties form is objectively provable, but the effect it had on her thinking is inherently unverifiable. We therefore find that her knowledge is but one factor in the totality of the circumstances analysis.
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(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, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Radecki, 180 A.3d 441, 467 (Pa.Super. 2018) (citation omitted, alterations in original).
Appellant filed a timely notice of appeal, preserved her claim in a motion to reconsider, and her brief included a separate statement. We find, however, that Appellant has failed to present a substantial question. Her statement reads:
The sentence fashioned by the court does not address Appellant's rehabilitative needs as required by 42 Pa.C.S.A. §9721(b).
Although the court certainly considered the protection of the public, the court did not address Appellant's rehabilitative needs as required by 42 Pa.C.S.A. §9721(b). Other than incarceration, the court's sentence does not confront the alcoholism at the core of the criminal offenses. The court's sentence does not meet Appellant's treatment and rehabilitative needs.
Appellant’s brief at 16.
This cursory statement does not meet the applicable standard. We determine whether a substantial question exists on a case-by-basis. The appellant must advance “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
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process.” Radecki, supra at 468 (citation omitted). The invocation of talismanic phrases cannot satisfy the substantial question requirement. Appellant herein claims that the trial court failed to consider her rehabilitative needs, but such a claim does not present a substantial question. See Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013). Additionally, Appellant alleges that a litany of mitigating factors warranted a lesser sentence. However, “This Court has held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review.” Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa.Super. 2007) (quoting Commonwealth v. Bullock, 868 A.2d 516, 529 (Pa.Super. 2005)). We therefore find that Appellant has failed to present a substantial question.
Even if we were to find a substantial question, it is clear that Appellant is not entitled to relief. She asserts that the trial court did not consider her rehabilitation needs and did not “confront the alcoholism at the core of the criminal offenses.” Appellant’s brief at 37. She notes the traumatic circumstances of her childhood, sexual abuse inflicted upon her at age fourteen, and physical ailments requiring multiple surgeries. These facts were presented to the trial court, which clearly weighed them in fashioning its sentence:
I have to consider her rehabilitative needs. I have to consider the
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guidelines. I obviously have to consider the mandatory provisions that all these cases have. And then I have to consider the factors in the sentencing code and balance the background, character and circumstances of this defendant with the circumstances of the crime, whether there is a need to incarcerate her to prevent future offenses by her, as well as the possibility of her rehabilitation. I considered and read the PSI. I read everything that defense counsel provided me.
It's a very unusual case to have this many DUIs coming from one person at one time. It's a rarity in my time on the bench. In doing the balancing, I'm going to stay within the standard range of the guidelines. I imagine I could easily find aggravation due to the circumstances here. I also I imagine, if I did the balancing, considering her difficult life, as I did read, and how that has impacted her, it’s obvious it had a negative impact on her. But what’s been exhibited here is she’s dangerous to the community and herself, repetitive drinking and driving pattern established here. Whether she’s successful in rehabilitation, time will tell. She obviously made efforts as evidenced by what was provided to the Court by defense counsel. She’s severely in need of treatment.
She committed some of these offenses while on bail, while awaiting sentencing. I think it indicates the degree of her problems. Her life at the time here seemed to be out of control.
She was spinning wildly. The pattern here is dangerous to the community.
N.T., Sentencing, 2/15/17, at 34-36.
The trial court did not doubt that Appellant’s history was partially to blame for her repeated drinking. However, there was a clear need to balance her rehabilitative needs against the safety of the community. As the Commonwealth noted, Appellant had been convicted of a total of seven DUI offenses at the time of sentencing. Appellant repeatedly endangered her life and the lives of others by continuing to drink and drive, and she committed
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two DUIs while awaiting sentencing on other DUIs. It is clear that the trial court considered Appellant’s arguments as warranting a lesser sentence, and we have no license to reweigh its balancing. We would find no abuse of discretion.
Judgment of sentence affirmed.
Judge Nichols joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/17/18
Circulated 06/29/2018 03:22 PM