Com. v. Lua, A., Jr.

2025 Pa. Super. 41

• Court: Superior Court of Pennsylvania
• Decided: February 21, 2025
• Docket: 516 MDA 2024
• Status: Published

Opinion

J-A23025-24

2025 PA Super 41

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALFONSO LUA JR. : : Appellant : No. 516 MDA 2024

Appeal from the Judgment of Sentence Entered March 14, 2024 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0001044-2023

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

OPINION BY OLSON, J.: FILED FEBRUARY 21, 2025

Appellant, Alfonso Lua, Jr., appeals from the March 14, 2024 judgment

of sentence entered in the Court of Common Pleas of Adams County that

imposed a sentence of one to seven years’ incarceration after Appellant

pleaded guilty to driving under the influence (“DUI”) – controlled substance

(Count 1) and driving while operating privilege suspended or revoked (Count

5).1 We affirm. ____________________________________________

1 75 Pa.C.S.A. §§ 3802(d)(1)(i) and 1543(b)(1.1)(i), respectively.

Appellant was also charged with DUI – controlled substance under Section 3802(d)(1)(iii), DUI – controlled substance under Section 3802(d)(2), and driving while operating privilege suspended or revoked under Section 1543(b)(1)(iii). 75 Pa.C.S.A. §§ 3802(d)(1)(iii), 3802(d)(2), and 1543(b)(1)(iii); see also Criminal Information, 10/23/23. Although the certified record indicates that these three aforementioned criminal charges were withdrawn when the trial court accepted Appellant’s guilty plea (see Trial Court Docket at 4), the Commonwealth did not present a motion for the withdrawal of the charges and the trial court did not order the withdrawal of the charges. See generally, Trial Court Docket; see also N.T., 3/14/24; Sentencing Order, 3/18/24; Guilty Plea Colloquy, 3/14/24. J-A23025-24

The record reveals that, on March 14, 2024, Appellant entered a guilty

plea to the aforementioned criminal offenses, which the trial court accepted.

N.T., 3/14/24, at 5. This was Appellant’s third DUI conviction. That same

day, the trial court sentenced Appellant to one to seven years’ incarceration

in a state correctional institution on Count 1 and ordered Appellant to pay a

mandatory fine in the amount of $1,000.00 on Count 5.2 Sentencing Order,

3/18/24; see also N.T., 3/14/24, at 8-9. As required by Section 3804(c.2)

of the Vehicle Code,3 Appellant’s sentence of incarceration was set to run

consecutively to the sentence Appellant was currently serving on his second

DUI conviction, which was a probationary sentence imposed by the Court of

____________________________________________

2 At Count 1, Appellant was also ordered to pay a mandatory fine in the amount of $2,500.00 and was eligible for the recidivism risk reduction incentive program and the state drug treatment program. At Count 1 and Count 5, Appellant was also ordered to pay the costs of prosecution and applicable fees. Sentencing Order, 3/18/24; see also N.T., 3/14/24, at 8-9.

3 Section 3804(c.2) of the Vehicle Code states as follows:

A sentence imposed upon an individual under this section [(referring to sentences imposed pursuant to Section 3804, which prescribes sentences for DUI offenses generally)] who has two or more prior [DUI] offenses shall be served consecutively to any other sentence the individual is serving and to any other sentence being then imposed by the [trial] court, except for those with which the offense must merge as a matter of law.

75 Pa.C.S.A. § 3804(c.2).

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Common Pleas of York County at trial court docket CP-674704-CR-2021.4

Sentencing Order, 3/18/24; see also N.T., 3/14/24, at 6. Appellant did not

file a post-sentence motion. This appeal followed.5

Appellant raises the following issue for our review:

Whether the trial court erred in [ordering the sentence imposed on Appellant’s third DUI conviction to run consecutively, pursuant to 75 Pa.C.S.A. § 3804(c.2), to the sentence imposed on Appellant’s second DUI conviction when the sentence for Appellant’s third DUI conviction] would not begin for an indeterminate period of time?

Appellant’s Brief at 8 (extraneous capitalization omitted).

Appellant purports to challenge certain discretionary aspects of his

March 14, 2024 sentence. See id. at 6-7 (setting forth, in a Rule 2119(f)

statement, that his instant sentence violated the fundamental norms of the

sentencing process because it was set to run consecutively to a probationary

sentence, which had an indeterminate end date). For the reasons discussed

infra, we find that Appellant, in fact, challenges the trial court’s authority to

impose Appellant’s March 14, 2024 sentence in the manner that it did and,

4 At York County trial court docket CP-674704-CR-2021, Appellant was sentenced, on February 16, 2022, to a five-year restrictive probationary sentence. N.T., 3/14/24, at 6. The restrictive portion of the probationary sentence required Appellant to serve 90 days on house arrest, which Appellant completed. Id. At the time of his third DUI conviction, Appellant was currently serving the non-restrictive probationary aspect of his sentence, which was set to expire in February 2027. Id.

5 Both Appellant and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.

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therefore, he objects to the legality of his sentence. See Commonwealth v.

Foster, 17 A.3d 332, 344-345 (Pa. 2011) (stating that, when a trial court’s

“inherent, discretionary authority to wield its statutorily prescribed sentencing

powers [has been] supplanted, abrogated, or otherwise limited,” a defendant’s

challenge to a mandated sentencing feature implicates the legality of that

sentence).

Section 9721 of the Sentencing Code provides a trial court with the

discretion to order a defendant’s sentence to run consecutively or concurrently

to other sentences that are to be imposed in the same criminal matter or to a

sentence the defendant is currently serving. 42 Pa.C.S.A. § 9721(a). As

discussed supra, Section 3804(c.2) of the Vehicle Code constrains that

statutory power and requires a trial court to impose its sentence for a third

(or greater) DUI conviction such that the sentence will run consecutively “to

any other sentence [the defendant] is serving and to any other sentence being

then imposed by the [trial] court.” 75 Pa.C.S.A. § 3804(c.2). The use of the

word “shall” in Section 3804(c.2) indicates that the sentencing structure

prescribed by Section 3804(c.2) is mandatory and removes the trial court’s

discretionary powers prescribed by Section 9721 to decide the concurrent or

consecutive nature of the sentence imposed. See Commonwealth v. Hill,

238 A.3d 399, 410 (Pa. 2020) (stating that, the Legislature’s use of the word

“shall” in Section 3804 “plainly mandates” that a trial court sentence a DUI

defendant in a specific way). Here, Appellant challenges the mandate

prescribed by Section 3804(c.2) that the sentence imposed on his third DUI

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conviction run consecutively to the sentence he was then serving on his

second DUI conviction in York County. As such, because Section 3804(c.2)

abrogates a trial court’s discretionary sentencing powers, Appellant challenges

the legality of his sentence. Foster, 17 A.3d at 344.

A challenge to the legality of a sentence presents a question of law for

which our standard of review is de novo and our scope of review is plenary.

Hill, 238 A.3d at 409-410; see also Commonwealth v. Aiken, 139 A.3d

244, 245 (Pa. Super. 2016), aff’d, 168 A.3d 137 (Pa. 2017).

At issue in the case sub judice is the portion of Appellant’s sentence that

states “as required by [Section 3804(c.2)], the sentence [on Count 1 for

Appellant’s third DUI conviction] shall run consecutively to the probationary

sentence currently being served [by Appellant] in York County[ at trial court

docket] CP-674704-CR-2021.” Sentencing Order, 3/18/24. Appellant asserts

that the statutory requirement that obligates the trial court to impose a

sentence in the case sub judice that runs consecutively to the probationary

punishment sentence imposed in the York County case does not provide

Appellant with a definitive start date for his instant sentence, as required by

Pennsylvania Rule of Criminal Procedure 705(A). Appellant’s Brief at 12-13.

Appellant contends that, under the current sentencing scheme, he would not

begin his one-to-seven-year prison term in the case sub judice for

approximately three years and only after he completed his probationary

sentence. Id. Appellant argues that, under Section 3804(c.2), the trial court

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is unable to provide a definitive start date for his sentence, and he is “entitled

to some expectation of finality.” Id. at 13.

As set forth supra, Section 3804(c.2) of the Vehicle Code requires that

[a] sentence imposed upon an individual under this section who has two or more prior [DUI] offenses shall be served consecutively to any other sentence the individual is serving and to any other sentence being then imposed by the [trial] court, except for those with which the offense must merge as a matter of law.

Bearing the compulsory mandate of Section 3804(c.2) in mind, we turn

to the provisions of Rule 705, which serves as the basis for Appellant’s current

claim. “In fashioning a sentence of incarceration, a trial court is to comply

with, inter alia, [Rule 705.]” Commonwealth v. Renninger, 269 A.3d 548,

567 (Pa. Super. 2022), appeal denied, 302 A.3d 95 (Pa. 2023). Rule 705

states, in pertinent part, as follows:

Rule 705. Imposition of Sentence

(A) When imposing a sentence to imprisonment, the [trial court] shall state the date the sentence is to commence.

(B) When more than one sentence is imposed at the same time on a defendant, or when a sentence is imposed on a defendant who is sentenced for another offense, the [trial court] shall state whether the sentences shall run concurrently or consecutively. If the sentence is to run concurrently, the sentence shall commence from the date of imposition unless otherwise ordered by the [trial court].

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Pa.R.Crim.P. 705.6

Appellant’s illegal sentence claim, which asks this Court to interpret the

applicability of the sentencing requirement set forth in Rule 705 as it relates

to Section 3804(c.2), is one of first impression. It is well-established that the

objective of rule interpretation is to ascertain and effectuate the intention of

our Supreme Court, as the rule-making judicial body, and that the plain

language of the rule is the best indicator of our Supreme Court’s intent.

Commonwealth v. Lopez, 280 A.3d 887, 896 (Pa. 2022).

A plain reading of Rule 705(A) reveals that our Supreme Court intended

for a trial court, when it imposes a sentence of incarceration on a defendant

who is not already sentenced for an unrelated offense and for whom no other

sentence will be imposed as part of the same criminal matter, to provide the

commencement date of the sentence of incarceration in the sentencing order.

See Pa.R.Crim.P. 705(A). Simply stated, Rule 705(A) applies when a single

sentence of incarceration is imposed on a defendant who is not already subject

to a sentence for an unrelated criminal offense. This reading flows from the ____________________________________________

6 We are mindful that the Pennsylvania Department of Corrections (“DOC”) is

the executive branch agency that is “charged with faithfully implementing sentences imposed by the [trial] courts” and that the DOC “lacks the power to adjudicate the legality of a sentence or to add or delete sentencing conditions.” McCray v. Pennsylvania Dept. of Corrections, 872 A.2d 1127, 1133 (Pa. 2005). As part of its faithful implementation of the sentences imposed by our trial courts, the DOC must compute a defendant’s maximum release date in accordance with the sentencing order. Id. Therefore, to aid the DOC in its computation of a defendant’s maximum term of incarceration, it is imperative that a trial court comply with, inter alia, Rule 705. Renninger, 269 A.3d at 567.

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use of the determiner “a” in front of the phrase “sentence of incarceration,”

indicating that Rule 705(A) pertains when one sentence of incarceration is

imposed. By expressly stating the commencement date for a sentence of

incarceration in its sentencing order, the trial court provides the defendant

with notice of when he or she will begin serving the sentence of incarceration

and provides the DOC with information that will be used to compute the

defendant’s maximum term of incarceration. McCray, 872 A.2d at 1133; see

also Renninger, 269 A.3d at 567.

While we agree, as Appellant suggests, that Rule 705(A) requires the

trial court to state the date on which a sentence of incarceration is to begin,

we cannot agree, as Appellant further suggests, that Rule 705(A) must be

read in isolation and governs his sentence in the case sub judice. Rather, Rule

705(A) must be read in conjunction with Rule 705(B) to ascertain a

comprehensive understanding about the application of Rule 705. Lopez, 280

A.3d at 888-898 (indicating that, pursuant to the principal of in pari materia,

one subsection of a rule of criminal procedure cannot be read in isolation but,

rather, must be read in conjunction with the other subsections of the rule of

criminal procedure); see also 1 Pa.C.S.A. § 1932. Textual differences

between Rule 705(A) and Rule 705(B) lead us to conclude that the provisions

apply in mutually exclusive circumstances and differ in the manner by which

a trial court must prescribe the commencement of its sentences. Compare

Pa.R.Crim.P. 705(A) with Pa.R.Crim.P. 705(B).

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A plain-reading of Rule 705 reveals that Rule 705(A) applies to a

sentence of incarceration, as discussed supra. Pa.R.Crim.P. 705(A). Rule

705(B), however, operates differently. First, it utilizes the term “sentence,”

which incorporates a sentence of probation, guilt without further punishment,

partial confinement (incarceration), total confinement (incarceration), or a

fine. Pa.R.Crim.P. 705(B); see also 42 Pa.C.S.A. § 9721(a) (listing

sentencing alternatives available to the trial court in fashioning a defendant’s

sentence). Second, Rule 705(B) applies when more than one sentence will

be imposed on a defendant as part of the same criminal matter or same

criminal offense. Pa.R.Crim.P. 705(B). Rule 705(B) also applies if, at the time

of sentencing, the defendant has already been sentenced for an unrelated

criminal offense. In either instance, the trial court must state whether the

sentence or sentences it is then-imposing are to run consecutively or

concurrently. Id. When a new sentence is set to run concurrently to a

sentence imposed in the same criminal matter or to a sentence the defendant

received in a separate criminal matter, the commencement date of the

concurrent sentence is the date of imposition unless the trial court states a

different date. Id.

When Rule 705 is read in toto, we find that for each sentence imposed

by a trial court, the trial court must state, as part of its sentencing order, a

commencement date for the sentence. When Rule 705(A) applies (meaning,

the defendant has not previously been sentenced in an unrelated criminal

matter and the sentence of incarceration is the only punishment to be imposed

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in the criminal matter currently pending before the trial court), the

commencement date may be stated as a date certain. In such instances, Rule

705(A) insists that the trial court provide a date certain for commencement of

the sentence of incarceration because a date certain is ascertainable at the

time the trial court imposes its sentence.

Under Rule 705(B), when more than one sentence is to be imposed upon

a defendant or when a sentence is to be imposed upon a defendant who has

already been sentenced in an unrelated criminal matter, the trial court fulfills

its obligation to designate a commencement date by stating whether its

sentence or sentences shall run “consecutively” or “concurrently.”7 If Rule

7 We are cognizant that Rule 705, in its present form, does not address how

a trial court fulfills its obligation to designate a commencement date in all sentencing scenarios. In particular, Rule 705(B) leaves unanswered how a trial court fulfills its obligation to designate the commencement date of the first sentence to be imposed upon a previously unsentenced defendant and the trial court will either impose individual sentences for more than one criminal offense or more than one type of sentence (i.e., a sentence of incarceration to be followed by a period of probation) on a single criminal offense. See Pa.R.Crim.P. 705(B).

For purpose of illustrating the “gap” created by Rule 705, our hypothetical involves a defendant who is not currently sentenced for an unrelated criminal offense when he or she is convicted of two criminal offenses, and the sentences for the new offenses do not merge for sentencing purposes. For the first criminal offense (“Count 1”), the trial court seeks to impose a sentence of two to four years’ incarceration. For the second criminal offense (“Count 2”), the trial court seeks to impose a sentence of one to two years’ incarceration. If the trial court wants the sentences to run concurrently to each other, the trial court may fulfill its commencement date obligation by stating that each sentence is to run concurrently to the other. Under Rule 705(B), unless an alternative date is provided by the trial court, the sentences

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705(B) applies and the sentences are set to run concurrently, Rule 705(B)

presumes that the newly-imposed sentence will commence at the date of

imposition unless otherwise ordered by the trial court. Pa.R.Crim.P. 705(B).

Thus, when Rule 705 is applied to the case sub judice, we discern no

error of law or abuse of discretion in the trial court’s imposition of a sentence

of incarceration that was set to run consecutively to the sentence previously

imposed upon Appellant at York County trial court docket

CP-674704-CR-2021. At the time of sentencing in the case sub judice,

are presumed to commence on the date of imposition. See Pa.R.Crim.P. 705(B).

If, however, the trial court wants the sentence imposed on Count 2 to run consecutively to the sentence imposed on Count 1, the trial court may fulfill its commencement date obligation on the Count 2 sentence by stating that the sentence shall run consecutively to the Count 1 sentence. Left undecided is how the trial court fulfills its commencement date obligation for the sentence imposed at Count 1. Rule 705(A), which requires the trial court to state a date certain for commencement, does not apply because, as discussed supra, Rule 705(A) only applies when a single sentence of incarceration is imposed and, in our example, two sentences of incarceration will be imposed in the same criminal matter. Rule 705(B) does not specifically address what a trial court must do to satisfy its commencement date obligation as to the Count 1 sentence.

We believe in this instance, that we must look to the general rule that “in the absence of a statute [(or Rule)], the sentence imposed begins to run from the date of imposition.” Commonwealth ex rel. Lerner v. Smith, 30 A.2d 347, 350 (Pa. Super. 1943), citing Commonwealth ex rel. Cox v. Ashe, 22 A.2d 606, 609 (Pa. Super. 1941); see also Commonwealth ex rel. Bleecher v. Rundle, 217 A.2d 772, 774 (Pa. Super. 1966); Commonwealth v. Meise, 312 A.2d 48, 50 (Pa. Super. 1973). Thus, if a trial court does not provide a date of commencement for the sentence imposed at Count 1, the sentence is presumed to commence on the date of imposition.

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Appellant was currently serving a sentence of probation for his second DUI

conviction. Therefore, Rule 705(B) applied (as a sentence of probation is

included in the types of sentences which trigger the application of Rule

705(B)), and the trial court was required to indicate whether the sentence

imposed for Appellant’s third DUI conviction was to run consecutively or

concurrently to the sentence Appellant was already serving. 8 See ____________________________________________

8 Act 59 of 2022, commonly referred to as “Deana’s Law,” modified Section

3804 of the Vehicle Code by including subsection (c.2), which requires that mandatory consecutive sentences be imposed on repeat DUI offenders having two or more prior DUI offenses. See Act of Jul. 11, 2022, P.L. 717, No. 59; see also 75 Pa.C.S.A. § 3804(c.2) (effective Nov. 8, 2022). The purpose of Section 3804(c.2) was to “substantially increase penalties for those who have multiple DUI convictions and target offenders who repeatedly drive drunk with high [b]lood [a]lcohol [c]ontent levels in their systems.” See Memorandum from Representative Christopher B. Quinn to all House Members relating to H.B. 773 (S.B. 773), 2/11/21; see also Legislative Journal – House, 11/17/21, at 1597-1599; Legislative Journal – Senate, 7/7/22, at 780-781. As the history behind Section 3804(c.2) reveals, Deana was killed in a head-on collision with a vehicle driven by a person who had been previously convicted of five DUI offenses. Because the driver’s sentence for his fifth DUI conviction was set to run concurrently to the sentences imposed on his third and fourth DUI convictions, the driver was not incarcerated on the date of the accident but, rather, was driving under the influence on that date such that he was subsequently convicted of a sixth DUI offense as a result of the accident. See Legislative Journal – House, 11/17/21, at 1597-1599. Section 3804(c.2) was designed to impose mandatory consecutive sentences on repeat DUI offenders “who intentionally and willfully get behind the wheel time and time again.” Id. at 1597; see also Legislative Journal – Senate, 7/7/22, at 780.

Although Appellant’s sentence in the case sub judice complies with Rule 705 for the reasons set forth herein, this case illustrates a situation in which the consecutive sentence requirement of Section 3804(c.2) does not meet the stated objective of Section 3804(c.2), which is to keep repeat DUI offenders incarcerated by imposing consecutive sentences of incarceration. Upon conviction of his third DUI offense, Section 3804(c.2) required the trial court

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Pa.R.Crim.P. 705(B). Section 3804(c.2) of the Vehicle Code required the trial

court to impose the sentence consecutively to the sentence Appellant was

serving for his second DUI conviction. Appellant’s sentence of incarceration

will begin once Appellant’s sentence of probation has ended.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 02/21/2025

to impose a sentence that was set to run consecutively to the sentence Appellant was then-serving for his second DUI conviction. The sentence imposed on Appellant for his second DUI conviction, however, involved a sentence of probation. Although Appellant’s third DUI conviction will trigger a violation of the probationary sentence imposed on his second DUI conviction, at the time of Appellant’s sentencing in the case sub judice, Appellant had not yet been found in violation of his probation and resentenced, due perhaps, in part, because the second and third DUI convictions occurred in different Pennsylvania counties. As such, Appellant remains on probation and free from incarceration (at least until his probation is revoked and he is resentenced) despite the fact that he was convicted of a third DUI. Section 3804(c.2), which was designed to keep repeat DUI offenders incarcerated, does not, under its present form, address the unique factual situation of the case sub judice, at least not in the manner contemplated by the framers of the provision.

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