Com. v. Rollins, J.

• Court: Superior Court of Pennsylvania
• Decided: December 21, 2021
• Docket: 161 EDA 2021
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH MELVIN ROLLINS : : Appellant : No. 161 EDA 2021

Appeal from the Order Entered December 3, 2020 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003756-2019

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 21, 2021

Joseph Melvin Rollins appeals from the judgment of sentence entered

following his conviction for Driving While Operating Privilege Is Suspended

(DUS), DUI-Related, Third or Subsequent Offense. See 75 Pa.C.S.A.

§ 1543(b)(1)(iii). He argues that Section 1543(b)(1)(iii) is unconstitutionally

vague. We affirm.

Following a bench trial, the trial court found Rollins guilty of the above

offense and sentenced him to six to 12 months’ incarceration, and Rollins

appealed. The trial court ordered counsel to file a Pa.R.A.P. 1925(b) Statement

of Matters Complained of on Appeal, and counsel notified the trial court that

she intended to file an Anders1 brief. See Pa.R.A.P. 1925(c)(4).

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* Retired Senior Judge assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967). J-S25024-21

Subsequently, our Supreme Court decided Commonwealth v. Eid, 249

A.3d 1030 (Pa. 2021). There, the defendant was found guilty of the summary

offense of DUS by a person who refused a breath test. See 75 Pa.C.S.A.

§ 1543(b)(1.1)(i). The Court held that due to the “absence of a maximum

term,” Section 1543(b)(1.1)(i) was “unconstitutionally vague and

inoperable[.]” Eid, 249 A.3d at 1044. The Court stated that it refused to infer

a maximum sentence because by doing so it would have been forced to

“engage in sheer speculation as to which sentence the General Assembly

intended.” Id. at 1043 (quoting Commonwealth v. Bell, 645 A.2d 211, 217

(Pa. 1994)).

Following Eid, Rollins’ counsel filed a brief with this Court challenging

the constitutionality of Section 1543(b)(1)(iii). See Rollins’ Br. at 8-9. He

phrases the question as, “Does the absence of a maximum term render the

pertinent DUS sentencing provision under 75 Pa.C.S.A. § 1543(b)(1)(iii)

unconstitutionally vague violating state and federal due process provisions?”

Rollins’ Br. at 1.

Before we address the merits of Rollins’ issue, we first address whether

he has waived the issue. As the foregoing makes clear, the instant question

on appeal was not presented to the trial court or presented in a Rule 1925(b)

Statement. Such failings ordinarily result in waiver. See Pa.R.A.P.

1925(b)(3)(iv); Pa.R.A.P. 302(a). However, our Supreme Court recently held

that a claim challenging whether a sentencing statute is unconstitutionally

vague is an illegal sentence claim. See Commonwealth v. Moore, 247 A.3d

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990, 991 (Pa. 2021). Because such a claim cannot be waived, we consider

Rollins’ argument. See Commonwealth v. Hudson, 231 A.3d 974, 977-978

(Pa.Super. 2020).

Citing Eid, Rollins argues that “[t]he absence of a maximum term in 75

Pa.C.S.A. § 1543 (b)(1)(iii) renders the provision unconstitutionally vague and

denies defendants due process under the law.” Rollins’ Br. at 9. As a challenge

to the constitutionality of a statute is a question of law, our standard of review

is de novo and our scope of review is plenary. Commonwealth v. Proctor,

156 A.3d 261, 268 (Pa.Super. 2017).

Section 1543(b)(1)(iii) provides:

A third or subsequent violation of this paragraph shall constitute a misdemeanor of the third degree and, upon conviction of this paragraph, a person shall be sentenced to pay a fine of $2,500 and to undergo imprisonment for not less than six months.

75 Pa.C.S.A. § 1543(b)(1)(iii) (emphasis added).

Though the “not less than” language is identical in both Section

1543(b)(1.1)(i), which was at issue in Eid, and Section 1543(b)(1)(iii), they

are distinguishable by way of grading. Section 1543(b)(1.1)(i) is graded as a

summary offense while Section 1543(b)(1)(iii) is graded as a misdemeanor of

the third degree. The grading is significant because 75 Pa.C.S.A. § 6502(c)

provides that the Crimes Code’s provisions regarding fines and imprisonment

do not apply to summary convictions under the Vehicle Code. See 75

Pa.C.S.A. § 6502(c) (“Title 18 (relating to crimes and offenses), insofar as it

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relates to fines and imprisonment for convictions of summary offenses, is not

applicable to this title”).

No such provision exists for misdemeanors under the Vehicle Code. As

a result, the sentencing provisions of the Crimes Code apply. Rollins was found

guilty of a misdemeanor of the third degree, and relevant provisions of the

Crimes Code provide a maximum sentence of one year. See 75 Pa.C.S.A. §

1543(b)(1)(iii); 18 Pa.C.S.A. § 106(b)(8) (“A crime is a misdemeanor of the

third degree if it is so designated in this title or if a person convicted thereof

may be sentenced to a term of imprisonment, the maximum of which is not

more than one year.”). Therefore, Section 1543(b)(1)(iii) is not

unconstitutionally vague, pursuant to Eid.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/21/2021

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