Com. v. Treece, K.

• Court: Superior Court of Pennsylvania
• Decided: February 10, 2021
• Docket: 11 MDA 2020
• Status: Unpublished

Opinion

J-S47014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

KRYSTLE LYNN TREECE

Appellee No. 11 MDA 2020

Appeal from the Order Entered December 2, 2019 In the Court of Common Pleas of York County Criminal Division at No: CP-67-CR-0001856-2019

BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 10, 2021

Appellee, Krystie Lynn Treece, pleaded guilty to her fourth offense for

driving under the influence of marijuana (“DUI”),1 for which the mandatory

minimum was one year’s imprisonment. The court sentenced Appellee to one

to five years’ imprisonment. Several months after beginning her sentence,

Appellee moved for early parole. The court granted her motion and permitted

her to serve the duration of her mandatory minimum at home instead of in

prison.

The Commonwealth appeals the order granting early parole to this

Court. We reverse. Early parole is not permissible because she must serve

her entire one-year mandatory minimum sentence for DUI in prison.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. § 3802. J-S47014-20

On August 26, 2019, Appellee pleaded guilty to driving under the

influence of marijuana in violation of 75 Pa.C.S.A. § 3802(d), her fourth such

violation. She was not eligible for intermediate punishment because it was

her fourth offense within ten years. N.T., 8/26/19, at 2 (guilty plea hearing).

Under 75 Pa.C.S.A. § 3804, her crime was a Tier 3 offense2 that required a

one-year mandatory minimum sentence of imprisonment. The trial court

sentenced Appellee to one to five years’ imprisonment in county prison. Id.

at 7. The trial court denied Appellee’s request for release from custody to

safeguard her employment during the work release application process.

Appellee lives in a rental property and has full custody over her children.

Prior to her imprisonment in this case, Appellee was gainfully employed. While

in prison, she attended relapse prevention classes, AA meetings, and church.

Appellee’s mother assisted by caring for Appellee’s children and taking over

rental payments.

On October 28, 2019, Appellee moved for early parole on the ground

that her children were suffering physically and emotionally due to her

imprisonment. During a hearing on December 2, 2019, noting the great

difficulty, beyond mere hardship, suffered by Appellee’s family, the trial court

granted her early parole and ordered her confined at home for the remainder

of her mandatory minimum period. On December 31, 2019, the

2As discussed in greater depth below, Pennsylvania has three tiers of sentence schemes for DUI offenses.

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Commonwealth appealed to this Court. Both the Commonwealth and the trial

court have complied with Pa.R.A.P. 1925.

The Commonwealth raises two issues in this appeal:

I. Whether the sentencing court erred as a matter of law in granting parole where [Appellant] had been sentenced [to] 1-5 years’ incarceration for a 4th offense DUI, but only served 115 days of her mandatory 1-year sentence?

II. Whether the sentencing court erred in releasing [Appellant] to house arrest as the sentencing court lacked jurisdiction to sentence [Appellant] to house arrest to satisfy the mandatory minimum sentence on a 4th offense DUI?

Commonwealth’s Brief at 4. We address these questions together because

they raise the same issue—whether the trial court properly granted early

parole to Appellee. In our view, early parole from mandatory minimum DUI

sentences is unavailable under two DUI statutes, 75 Pa.C.S.A. §§ 3804 and

3815.

We have jurisdiction to decide an appeal by the Commonwealth from an

order granting early parole to the defendant. 42 Pa.C.S.A. § 9781

(Commonwealth may appeal as of right the legality of a sentence);

Commonwealth v. Finley, 135 A.3d 196, 200 n.8 (Pa. Super. 2016) (citing

Commonwealth v. Hall, 652 A.2d 858 (1995), and Commonwealth v.

Jamison, 652 A.2d 862 (1995)) (concluding that Superior Court had

jurisdiction to address Commonwealth’s appeal from trial court’s grant of early

parole).

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When we construe a statute, we must give effect to the legislature’s

intent and to all of the statute’s provisions. 1 Pa.C.S.A. § 1921(a). The best

indication of legislative intent is the plain language of the statute. Matter of

Private Sale of Prop. by Millcreek Twp. Sch. Dist., 185 A.3d 282, 290-91

(Pa. 2018). In ascertaining the plain meaning, we consider the statutory

language in context and give words and phrases their “common and approved

usage.” Commonwealth by Shapiro v. Golden Gate Nat’l Senior Care

LLC, 194 A.3d 1010, 1027 (Pa. 2018). When statutory language is clear and

unambiguous, courts must give effect to the words of the statute and must

not disregard the text to implement its objective. Id.; 1 Pa.C.S.A. § 1921(b).

Pennsylvania’s DUI laws are embodied in Chapter 38 of the Vehicle

Code, 75 Pa.C.S.A. § 3801-3817 (“Driving After Imbibing Alcohol Or Utilizing

Drugs”). Section 3802, 75 Pa.C.S.A. § 3802, provides a three-tier scheme for

DUI offenses that punishes drivers with higher levels of alcohol in their blood

more severely than drivers with relatively lower blood alcohol levels. Tier 1

includes individuals who (1) imbibe a sufficient amount of alcohol such that

the individual is rendered incapable of safely driving, operating or being in

actual physical control of the movement of a vehicle or (2) drive “after

imbibing a sufficient amount of alcohol such that the individual is rendered

incapable of safely driving ... the vehicle” and who drive with a blood alcohol

concentration (“BAC”) of at least 0.08% but less than 0.10%. Id., § 3802(a).

Tier 2 includes individuals who drive with a BAC of at least 0.10% but less

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than 0.16%. Id., § 3802(b). Tier 3 includes individuals who drive with a BAC

of 0.16% or higher. Id., § 3802(c). In addition, Section 3802(d) prohibits

an individual from driving a vehicle while various controlled substances are in

her blood, or while she is under the influence of a drug (or a combination of

drugs and alcohol) that impairs her ability to drive safely. Id., § 3802(d).

Violation of Section 3802(d) is a Tier 3 offense. Id.

With this backdrop, we turn to Section 3804, the first of two statutes

central to our analysis. Section 3804 provides that certain first-time DUI

offenders “shall undergo a mandatory minimum term of six months’

probation.”3 75 Pa.C.S.A. § 3804(a)(1)(i). For second and subsequent DUI

offenses, a DUI offender “shall be sentenced” to “undergo imprisonment” of

“not less than” a prescribed length of time. 75 Pa.C.S.A. § 3804(a) (Tier 1

offenses), 3804(b) (Tier 2 offenses), 3804(c) (Tier 3 offenses). Four-time

offenders such as Appellee “shall . . . undergo imprisonment . . . of not less

than” one year. 75 Pa.C.S.A. § 3804(c)(3)(i).

3 There are multiple exceptions to this rule. Many first-time DUI offenses require imprisonment, such as offenses that involve (1) high or highest rates of alcohol, (2) controlled substances, (3) operation of commercial or school vehicles, (4) operation by a minor, (5) operation of a vehicle with a minor occupant, or (6) an accident resulting in bodily injury, serious bodily injury or death of any person or damage to a vehicle or other property. See 75 Pa.C.S.A. §§ 3802, 3804.

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Pennsylvania courts have held, in the course of construing a predecessor

DUI statute, 75 Pa.C.S.A. § 3731,4 and other statutes, that the plain meaning

of “imprisonment” is involuntary detention in a correctional institution.

Commonwealth v. Kyle, 874 A.2d 12, 17 (Pa. 2005) (construing meaning

of “imprisonment” within Section 3731); Commonwealth v. Kriston, 588

A.2d 898, 899-900 (Pa. 1991) (construing Section 3731; noting that many

statutes in Judiciary Code, Title 42, “demonstrate a legislative intent that

sentences of imprisonment are to be served in institutional settings”);

Commonwealth v. Nobles, 198 A.3d 1101, 1106-07 (Pa. Super. 2018)

(construing 42 Pa.C.S.A. § 9760(1), which governs credit for time served in

custody). Imprisonment does not include electronic home monitoring.

Kriston, 588 A.2d at 900-01 (“[i]f the legislature had intended that it would

be sufficient for an offender to stay at home, it would not have used the term

‘imprisonment,’ which, by its plain and ordinary meaning and by legislative

references to confinement found in the Sentencing Code, must be taken to

mean confinement in an institution”).

Given the plain meaning of “imprisonment” and the decisions cited

above, we conclude that Section 3804’s text, “shall . . . undergo imprisonment

. . . of not less than” a minimum prescribed period, requires involuntary

475 Pa.C.S.A. § 3731 was repealed effective February 1, 2004 and replaced by the DUI statutory regime presently in effect, Chapter 38 of the Vehicle Code.

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detention in a correctional institution for the entire minimum period. Had the

legislature intended a different penalty, it would have expressly said so, as it

did by prescribing probation for certain first-time offenders. It elected not to

do so for repeat offenders such as Appellee, a choice that speaks volumes.

The grant of early parole to Appellee is invalid under Section 3804, because it

flies in the face of Section 3804’s requirement that Appellee undergo

imprisonment in a correctional institution for her entire mandatory minimum

term of one year.

Nor does the second key statute, 75 Pa.C.S.A. § 3815, permit early

parole from a mandatory minimum sentence. Section 3815, the lone DUI

statute that expressly refers to the court’s parole powers, provides in relevant

part:

(a) County supervision.--Notwithstanding the length of any maximum term of imprisonment imposed pursuant to sections 3803 (relating to grading) and 3804 (relating to penalties), and notwithstanding the provisions of section 17 of the act of August 6, 1941 (P.L. 861, No. 323), referred to as the Pennsylvania Board of Probation and Parole Law, the sentencing judge may grant parole under the supervision of the county parole system to any offender serving a sentence for a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) and, if applicable, serving any concurrent sentence of imprisonment for any misdemeanor offense arising from the same criminal episode as the violation of section 3802. The power of the sentencing judge to grant parole shall apply only to those offenders whose sentences are being served in a county prison pursuant to 42 Pa.C.S. § 9762 (relating to sentencing proceeding; place of confinement) or section 3804(d). The sentencing judge shall declare his intention to retain parole authority and supervision at the time of sentencing in cases in which he would not otherwise have parole authority and supervision.

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(b) Parole.—

(1) An offender who is determined pursuant to section 3814 (relating to drug and alcohol assessments) to be in need of drug and alcohol treatment shall be eligible for parole in accordance with the terms and conditions prescribed in this section following the expiration of the offender’s mandatory minimum term of imprisonment.

Id. Section 3815(a) creates an exception to the Parole Board’s authority by

authorizing the sentencing court to retain parole authority over a DUI offender

sentenced to serve a state sentence in county prison. Section 3815(b)

provides that when the court directs a DUI offender to undergo drug and

alcohol treatment, the offender is eligible for parole after the expiration of his

mandatory minimum term of imprisonment. Neither Section 3815(a) nor

Section 3815(b) states, or even hints, that early parole is available in a DUI

case. Indeed, Section 3815(b)’s express reference to the availability of parole

after completion of the mandatory minimum indicates that it is not available

before completion. See Commonwealth v. Ostrosky, 866 A.2d 423, 430

(Pa. Super. 2005) (“[t]he maxim, expressio unius est exclusio alterius,

establishes the inference that, where certain things are designated in a

statute, all omissions should be understood as exclusions”) (internal

quotations omitted).

The trial court urges us to leave its early parole order intact based on a

concurring opinion in Commonwealth v. Pryor, 500 A.2d 811 (Pa. Super.

1985), which contended that early parole was available under the DUI statute

then in effect, 75 Pa.C.S.A. § 3731. Id. at 815-16. The concurring opinion

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in Pryor is unpersuasive, because as we have held above, the plain language

of Sections 3804 and 3815 precludes early parole.5 We share the trial court’s

sympathy for Appellee’s family, but that cannot override the letter of the law.

Order reversed. Case remanded for further proceedings in accordance

with this memorandum. Jurisdiction relinquished.

Judge Strassburger joins the memorandum.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/10/2021

5 Indeed, early parole was unavailable while Section 3731 was in effect. Our Supreme Court held several years after Pryor that Section 3731’s requirement of mandatory minimum terms of “imprisonment” precluded early parole. Kriston, 588 A.2d at 900 (“parole cannot be granted for one who has been found guilty of driving under the influence of alcohol until the mandatory minimum sentence has been served”).

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