Com. v. Krause, D.

Superior Court of Pennsylvania

Com. v. Krause, D.

DecidedNovember 4, 2015

Docket2053 MDA 2014

StatusUnpublished

This text of Com. v. Krause, D. (Com. v. Krause, D.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Com. v. Krause, D., (Pa. Ct. App. 2015).

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Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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). J-S56021-15

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 ____________________________________________

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;

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