Com. v. Joray, R.

• Court: Superior Court of Pennsylvania
• Decided: September 7, 2021
• Docket: 5 MDA 2021
• Status: Unpublished

Opinion

J-A16028-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : RICHARD EDWARD JORAY : No. 5 MDA 2021

Appeal from the Judgment of Sentence Entered December 15, 2020 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001601-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : RICHARD EDWARD JORAY : No. 6 MDA 2021

Appeal from the Judgment of Sentence Entered December 15, 2020 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000438-2020

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 07, 2021

The Commonwealth appeals from the judgments of sentence entered

December 15, 2020, at two separate dockets, in the Dauphin County Court of

Common Pleas against Richard Edward Joray (Appellee) after he pled guilty to

two counts each of driving under the influence (DUI) and driving with a blood ____________________________________________

* Former Justice specially assigned to the Superior Court. J-A16028-21

alcohol content (BAC) of .02% or greater while license suspended, and one

count each of accident involving damage to an unattended vehicle, turning

movements and required signals, and having an open container of alcohol1

(local Harrisburg ordinance). The Commonwealth challenges the legality of

sentence imposed against Appellee for both DUI convictions. The trial court

has requested remand. Trial Ct. Op., 2/3/21, at 2. We vacate Appellee’s

sentence and remand this matter to the trial court for further proceedings

consistent with this memorandum.

We glean the following facts from Appellee’s guilty plea proceedings on

both dockets:

On July 14th of 2019 [Appellee] attempted to back into a parking space. He missed and hit two vehicles. [Appellee] got out of the vehicle, told the one owner he was drunk and walked away from the scene. When officers detained [Appellee], they smelled alcohol; his eyes were glossy, [and he had] slurred speech. In the vehicle[, officers] found fresh vomit and [an] empty Miller Lite can. [Appellee] refused to provide [a blood draw to officers.]

* * *

[O]n August 9, 2019, [Appellee] was driving his vehicle while his license was [ ] suspended. He entered the lane of traffic without [signaling] and he was pulled over. [Appellee] smelled of alcohol, he had glossy eyes[,] and slurred speech again. Miller Lite was in his car. He showed signs of impairment during the field sobriety test. He did refuse [a] blood draw[.]

N.T. Guilty Plea & Sentencing, 12/15/20, at 5-6.

____________________________________________

1 75 Pa.C.S. §§ 3802(a)(1), 1543(b)(1.1)(i), 3745(a), 3334(a); Harrisburg Local Ordinance 26-1980 § 3-347.2(A).

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Appellee was charged at separate dockets for these incidents, and on

December 15, 2020, appeared for a combined guilty plea and sentencing

hearing on both. With respect to the July 14, 2019, incident (CP-22-CR-

0001601-2020) involving damage to an unattended vehicle, Appellee pled

guilty to DUI/general impairment and driving with a BAC of .02% or greater

while license was suspended. Appellee’s DUI conviction on this docket was

graded as a third offense and first-degree misdemeanor. Appellee was

sentenced to five years’ probation.

Regarding the August 9, 2019, incident (CP-22-CR-0000438-2020),

Appellee pled guilty to DUI/general impairment, driving with a BAC of .02%

or greater while license was suspended, turning movements and required

signals, and the local ordinance of having an open container. Appellee’s DUI

conviction on this docket was graded as a fifth offense and a third-degree

felony. Appellee was sentenced to five years’ probation. Both terms of

probation were to run consecutive to each other and to prior DUI convictions

Appellee had in York County, Pennsylvania. At the hearing, the trial court

noted, “I did not give you the mandatory sentences, so the Commonwealth

has every opportunity to appeal me [and] if they do, then [ ] we will have to

resentence you.” N.T., 12/15/20, at 12.

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The Commonwealth filed a timely notice of appeal at each docket2 on

December 24, 2020. The Commonwealth timely complied with the trial court’s

order to file a concise statement of matters complained of on appeal pursuant

to Pa.R.A.P. 1925(b). The trial court issued an opinion, agreeing that

Appellee’s sentence was illegal because his convictions carried mandatory

sentences, prior to the Commonwealth filing its Rule 1925(b) statement. See

Trial Ct. Op. at 1-3. On January 25, 2021, this Court consolidated both

dockets.

The Commonwealth raises one issue on appeal:

Whether the trial court imposed an illegal sentence where it: (1) amended the [DUI] charge at 1601 CR 2020 from a third degree felony to a first degree misdemeanor, which does not exist for a fourth of subsequent offense; and (2) failed to sentence Appellee to mandatory minimum sentences for his fourth and fifth offense [DUI] offenses?

Commonwealth Brief at 4 (footnote omitted).

The Commonwealth argues the trial court erred in failing to designate

Appellee’s present DUI convictions as his fourth and fifth offenses, and in not

grading them both as third degree felonies. Commonwealth’s Brief at 9. The

Commonwealth also avers the trial court failed to impose the 10 day minimum

mandatory sentences on each of Appellee’s DUI convictions. Id. at 10. The

Commonwealth insists the trial court “agreed that [its] failure to impose the ____________________________________________

2 The Commonwealth filed two separate notices of appeal pursuant to Pa.R.A.P. 341, thus complying with Commonwealth v. Walker, 189 A.3d 969, 977 (Pa. 2018) (“separate notices of appeal must be filed when a single order resolves issues arising on more than one lower court docket”).

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statutorily required mandatory minimum sentence resulted in an illegal

sentence[, and has] to be vacated.” Id. at 11.

Appellee responds that his “guilty plea/sentencing hearing was marked

by a great deal of confusion regarding the grading of the offenses[ and] the

applicable mandatory minimum sentencing provision.” Appellee’s Brief at 7.

He then “concedes” his present Dauphin County offenses should have been

“graded as third degree felonies” and “classified as fourth and fifth offenses”

under the DUI statute. Id. Nevertheless, Appellee avers the trial court never

“stated the precise mandatory sentence” on the record. Id. at 8. He relies

on the doctrine of judicial estoppel and insists the Commonwealth’s failure to

object to the imposed sentence and lack of post-sentence motion should bar

its appeal contesting the sentence. Id. at 8-9.

As the grading and classification of these offenses is dependent upon

relevant prior convictions, we also examine Appellee’s York County

convictions. On December 8, 2020, Appellee pled guilty to, inter alia, one

count each of DUI/highest rate of alcohol, under Subsection 3802(c),3 and

DUI/general impairment, under Subsection 3802(a)(1). Appellee was charged

with an additional count of DUI/general impairment, but this charge was nolle

prossed. The York County Court of Common Pleas classified his conviction

under Subsection 3802(c) as a second offense and his conviction under

Subsection 3802(a)(1) as a fourth offense. See York County Criminal Dockets ____________________________________________

3 75 Pa.C.S. § 3802(c).

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CP-67-CR-0003045-2019, CP-67-CR-0007364-2019. Appellee’s York County

record is not presently before us, and that trial court’s reasoning for these

classifications is not apparent from the present Dauphin County record.

We note the relevant standard of review:

“A claim that the court improperly graded an offense for sentencing purposes implicates the legality of a sentence.” When examining a challenge to the legality of a sentence, our scope and standard of review is as follows:

A claim that implicates the fundamental legal authority of the court to impose a particular sentence constitutes a challenge to the legality of the sentence. “If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated.” When the legality of a sentence is at issue on appeal, our “standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Mendoza, 71 A.3d 1023, 1027 (Pa. Super. 2013)

(citations omitted). A legality of sentence claim is not subject to waiver.

Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa. Super. 2001) (illegal

sentencing claim was not waived despite Commonwealth’s failure to file a Rule

1925(b) statement).

Our Sentencing Code provides:

The Commonwealth has the right to appeal directly to the Superior Court any order of court which imposes a sentence for violation of this section which does not meet the requirements of this section. The Superior Court shall remand the case to the sentencing court for imposition of a sentence in accordance with the provisions of this section.

75 Pa.C.S. § 3804(h).

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Section 3804 of the Vehicle Code sets forth the mandatory minimum

sentences for DUI offenses. 75 Pa.C.S. § 3804. We note the minimum

sentence for a third or subsequent conviction under Section 3802(a)(1)

(general impairment) includes imprisonment of not less than ten days, a fine

of $500 to $5,000, and compliance with any drug and alcohol treatment

requirements. 75 Pa.C.S. § 3804(a)(3)(i)-(iii).

First, we conclude the Commonwealth has not waived its illegal

sentencing claim, as Appellee suggests. See Edrington, 780 A.2d at 723.

Here, the trial court found Appellant’s present DUI convictions were his third

and fifth, yet imposed 5 years’ probation on each, acknowledging it did not

impose the mandatory minimum sentences. See N.T., 12/15/20, at 12. Thus,

we vacate Appellee’s convictions and remand for the trial court to determine

the proper grading and number of offenses before imposing the appropriate

minimum sentence pursuant to Section 3804. See 75 Pa.C.S. § 3804(h);

Mendoza, 71 A.3d at 1027. The trial court shall address any factors that

impact the propriety of the sentence imposed, including prior convictions.

Because we remand to the trial court for factual findings in addition to

resentencing, we need not address the Commonwealth’s claim regarding how

Appellee’s convictions should be classified and graded.

We acknowledge the “great deal of confusion” surrounding Appellee’s

guilty plea and sentencing, see Appellee’s Brief at 7; N.T., 12/15/20, at 5-10,

and note that under 75 Pa.C.S. § 3804, penalties for DUI are imposed relevant

to the subsection under which the Commonwealth has charged a defendant.

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See 75 Pa.C.S. § 3804.4 Further, we note Appellee’s argument of judicial

estoppel. However, an illegal sentence is simply illegal and we cannot choose

to ignore its implications. See Mendoza, 71 A.3d at 1027 (“If no statutory

authorization exists for a particular sentence, that sentence is illegal and

subject to correction. An illegal sentence must be vacated.”).

We vacate Appellee’s sentence and remand this case to the trial court

for resentencing consistent with 75 Pa.C.S. § 3804.

Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/07/2021

4 We also point out that “prior offenses” of DUI are defined at 75 Pa.C.S. §

3806.

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