Com. v. Warke, J.

• Court: Superior Court of Pennsylvania
• Decided: August 7, 2020
• Docket: 1506 MDA 2019
• Status: Unpublished

Opinion

J-S28042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEFFREY SCOTT WARKE : : Appellant : No. 1506 MDA 2019

Appeal from the Judgment of Sentence Entered August 26, 2019 in the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001116-2019

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

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 07, 2020

Jeffrey Scott Warke (“Warke”) appeals from the judgment of sentence

entered following his conviction of illegally operating a motor vehicle not

equipped with an ignition interlock device, and the summary offenses of

registration of snowmobile or all-terrain vehicle (“ATV”), liability insurance,

and operation on streets and highways.1 We affirm.

On April 27, 2019, Pennsylvania State Police Trooper Joseph J. Aponick

(“Trooper Aponick”) was on patrol in a marked police cruiser. As he drove on

State Route 339 toward Brandonville, Trooper Aponick observed Warke riding

toward him on an ATV. Warke operated the ATV with two wheels on the

highway, and two wheels on the berm of the highway. Trooper Aponick

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1 See 75 Pa.C.S.A. §§ 3808(a)(1), 1711.1(a)(1), 7730(a), 7721(a). J-S28042-20

activated his lights and stopped Warke’s vehicle. Upon investigation, Aponick

discovered that Warke’s ATV was not registered; a required ignition interlock

device was not installed on the ATV; and Warke did not have liability insurance

covering the ATV. Officer Aponick was thereafter dispatched on another call.

On July 29, 2019, the Commonwealth filed a Criminal Information

charging Warke with the above-described offenses. Following a bench trial,

the trial court convicted Warke of all charges. On August 26, 2019, the trial

court sentenced Warke to 30-60 days in jail for his conviction of operating a

motor vehicle without an ignition interlock device, plus fines, fees, and costs

for his remaining convictions. Warke filed a post-sentence Motion to modify

his sentence, which the trial court denied.2 Thereafter, Warke filed the instant

timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

Warke presents the following claim for our review: “Is the Ignition

Interlock Law, 75 Pa.C.S.A. § 3805, unconstitutional?” Brief for Appellant at

4.

As this Court has explained,

[w]hen an appellant challenges the constitutionality of a statute, [he] presents this Court with a question of law. Our consideration of questions of law is plenary. A statute is presumed to be constitutional and will not be declared unconstitutional unless it ____________________________________________

2 Warke also filed a post-sentence Motion requesting that the trial court amend its sentence to allow for intermediate punishment. The trial court denied Warke’s Motion. However, on October 7, 2019, the trial court amended its sentence to delay incarceration until after Warke’s direct appeal is resolved.

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clearly, palpably, and plainly violates the constitution. Thus, the party challenging the constitutionality of a statute has a heavy burden of persuasion.

Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004).

Warke claims Section 3805 of the Motor Vehicle Code3 arbitrarily

establishes a classification of individuals based upon how many vehicles they

owned. Brief for Appellant at 12. Warke argues that “[t]reating offenders

differently[,] based upon the number of vehicles owned by each[,] creates an

arbitrary classification which does not bear a fair and substantial relationship

to the object of the legislation.” Id. According to Warke, “to require the

offender to actually own a vehicle that is equipped with the device in order to

secure a restricted license bears no reasonable relationship to the object of

the legislation.” Id. at 13.

Warke additionally argues that the classification is arbitrary and

overbroad. Id. Warke posits that an offender in a household where all

vehicles are leased, or owned by another family member, is prohibited from

obtaining a restricted license, “even if the owner of the vehicle is willing to

allow it to be equipped with an ignition interlock device.” Id. According to

Warke, “[l]imiting multiple DUI offenders following a one-year license

suspension to a restricted license during a second year that prohibits them

3Warke generally refers to Act 63 of 2000 (“Act 63”), 42 Pa.C.S.A. §§ 7001- 7003. However, Warke specifically takes issue with section 3805 of the Motor Vehicle Code, which required him to have an ignition interlock device installed on any motor vehicle owned by him.

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from operating a motor vehicle unless it is equipped with an ignition interlock

device would be sufficient to accomplish the goal of the legislation.” Id. at

14. Warke asserts that, by adding the requirement that the offender actually

own a vehicle, “and that every vehicle owned by the offender be equipped

with the device, is arbitrary, unreasonable, and therefore unconstitutional.”

Id. In short, Warke argues that the following classes of people are treated

differently by the statute: (a) leaseholders versus owners of vehicles; (b)

drivers subject to supervision, whereby a certification of compliance could be

made, versus unsupervised drivers; and (c) owners versus operators of

vehicles (i.e., requiring an ignition interlock device to be installed on all

vehicles owned by the offenders as opposed to the vehicles actually driven by

the offender). Id. at 15-17.

Warke also asserts that multiple DUI offenders, following a one-year-

license suspension, are limited to a restricted license that prohibits them from

operating a motor vehicle, unless it is equipped with an ignition interlock

device. Id. at 17. However, the legislation unnecessarily requires that the

offender actually own a vehicle, and that every vehicle owned by the offender

be equipped with the device. Id. Warke contends that this requirement is

arbitrary, unreasonable, and unconstitutional. Id.

As our Supreme Court has explained, “the constitutionality of a statute

is a pure question of law, our standard of review is de novo and our scope of

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review is plenary.” Commonwealth v. Omar, 981 A.2d 179, 185 (Pa.

2009) (citation omitted).

Before addressing the constitutional issues raised by Warke, we first

must ascertain whether they were preserved for appellate review. Our review

of the record discloses that Warke preserved the following claims for appellate

review:

An ATV cannot be equipped with an ignition interlock system. A motorcycle cannot be equipped with an ignition interlock system. Therefore, a defendant cannot own a motorcycle or ATV and have his operating privileges allowed for any motor vehicle, including those equipped with an ignition interlock system.

Therefore, these statutes unconstitutionally deprive a defendant of property without due process of law.

Statute is overbroad and unenforceable.

Concise Statement, 10/21/19 (emphasis added).

Warke’s Pa.R.A.P. 1925(b) Concise Statement does not preserve a

constitutional challenge based upon the Equal Protection Clause of the United

States or Pennsylvania Constitutions. See id. Our review further discloses

that the trial court did not address this claim in its Opinion. Accordingly,

Warke’s equal protection claim is waived. See Pa.R.A.P. 302(a) (stating that

an issued cannot be raised for the first time on appeal); Pa.R.A.P.

1925(b)(4)(vii) (stating that issues not included in the concise statement are

waived); Commonwealth v. Rolan, 964 A.2d 398, 409 (Pa. Super.

2008) (citations omitted) (stating “[w]here the trial court orders an

[a]ppellant to file a concise statement of matters complained of on appeal

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under Pa.R.A.P. 1925, any issue not contained in that statement is waived on

appeal.”).

In its Opinion, the trial court addressed Warke’s challenge to the statute

as overbroad, and concluded that it lacks merit. See Trial Court Opinion,

12/19/19, at 5-6. We agree with and affirm on the basis of the trial court’s

Opinion with regard to this claim.4 See id.

Judgment of sentence affirmed.

Judge Olson joins the memorandum.

Judge Bowes concurs in the result.

4 We additionally observe the following. Every Pennsylvania statute is presumed valid and will not be declared unconstitutional unless the party challenging it carries a heavy burden of persuasion to demonstrate that the statute clearly, palpably, and plainly violates the Constitution. Commonwealth v. Morrison, 934 A.2d 709, 713 (Pa. Super. 2007). Our Supreme Court has explained that “[a] statute is ‘overbroad’ if by its reach it punishes constitutionally protected activity[,] as well as illegal activity.” Commonwealth v. Barud, 681 A.2d 162, 165 (Pa. 1996). If it does not reach both categories of activity, “then the overbreadth challenge must fail.” Commonwealth v. Costa, 861 A.2d 358, 362 (Pa. Super. 2004). The Pennsylvania Supreme Court has clearly held that driving is not a right, but instead is a privilege which may be enjoyed only by those who comply with the requirements of the laws related thereto. Alexander v. DOT, Bureau of Driver Licensing, 880 A.2d 552, 561 (Pa. 2005). Here, Warke does not clearly, palpably, and plainly demonstrate that the statute punishes a constitutionally-protected activity.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/07/2020

-7- -"circulated 07/09/2020 04:33 PM

COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY CRIMINAL DIVISION

COMMONWEALTH OF No. 1116-2019 PENNSYLVANIA

v.

JEFFREYS. WARKE, Defendant

A. McCall Young, Esquire- for the Commonwealth Kent D. Watkins, Esquire - for the Defendant

OPINION OF COURT

MILLER, J.

Defendant, Jeffrey S. Warke, hereinafter "Appellant" has appealed our

August 26, 2019 sentencing order imposed after non-jury bench trial. The

appeal concerns Count 1: Illegally Operating a Motor Vehicle Not Equipped

with an Ignition Interlock Device pursuant to 75 Pa. C.S.A. §3808(a)(l), a

I Misdemeanor. Counts 2, 3 and 4 are Summary Offenses which have not been

complained of on appeal. This Court conducted the non-jury bench trial on

August 26, 2019. We found the Defendant guilty of all four (4) Counts. The

latter three (3) Counts are summary violations of the Motor Vehicle Code as

follows: Count 2: Registration of Snowmobile or ATV 75 Pa. C.S.A.

§1711. l(a)(l); Count 3: Liability Insurance 75 Pa. C.S.A. §7730(a); and Count

4: Operation on Streets and Highways 75 Pa. C.S.A. §7721(a). We submit this

Opinion in support of the Court's verdict of guilty on all four (4) Counts and

sentencing to thirty (30) to sixty (60) days incarceration in Schuylkill County.

2 Appellant filed a timely Concise Statement of Matters for which he

complains on appeal citing Title 75 Pa. C.S.A. §7702 definition of all-terrain

vehicles; Title 75 C.S.A. §102 defining motor vehicles; and Title 75 C.S.A.

§3805(a)(l) concerning the ignition interlock requirements and Title 75 C.S.A.

§3805(d) requiring the operator to secure an unrestricted license involving "the

movement of any vehicle within this Commonwealth unless the motor vehicle is

equipped with an ignition interlock system." (Emphasis added). Title 75 PA

C.S.A §101 et seq "Vehicle Code."

Essentially Appellant asserts that the all-terrain vehicle (ATV) is not

included as a motor vehicle subject to the restriction of acquiring an ignition

interlock system before operating the motor vehicle. Appellant admits he was

operating an ATV in Mahanoy Township, Schuylkill County northbound on

State Route 339 in Mahanoy Township, Schuylkill County on April 27, 2019 at

approximately 4:57 p.m., although he claimed he was on the berm contrary to

the Affiant's credible testimony. The ATV was a red/black Yamaha Banshee

that did not have a registration displayed nor could the Appellant produce any

liability insurance for the ATV. Furthermore, Appellant's Pennsylvania license

revealed that an ignition interlock is required on all vehicles that Appellant

operates. This was proven by the Officer's review of the certified driver's record

which was admitted as Commonwealth's Exhibit 1. Appellant after testifying

admitted he is required to have an ignition interlock system on his vehicles.

Appellant contends that 75 Pa. C.S.A. §7702 proves the ATV is not a

motor vehicle subject to the Ignition Interlock Statute and cites the definitions

3 section of Chapter 77 which defines ATV as "a motorized off-highway vehicle

which travels on three or more off-highway tires ... " This term does not include

snowmobile; trail bikes; motorboats; golf carts; aircraft; dune buggies;

automobiles; construction machines; trucks or home utility machines; military,

fire, emergency and law enforcement vehicles; implements of husbandry;

multipurpose agricultural vehicles; vehicles used by the department; or any

vehicle that is or is required to be registered under Chapter 13 (relating to

registration of vehicles). In addition, this term does not include off-road motor

vehicles used exclusively as utility vehicles for agricultural or business

operations and incidentally operated or moved upon the highway.

Title 75 C.S.A. §102 defines motor vehicles as "a vehicle which is self-

propelled except an electric personal assistive mobility device or a vehicle

which is propelled solely by human power." Appellant's argument fails for a

plain reading of that definition with the general rule applicable to 75 Pa. C.S.A.

§3805 requiring ignition interlock states "Any motor vehicle to be operated by

the individual has been equipped with an ignition interlock system and

remains so for the duration of the restricted license period." This provision

applies to "any motor vehicle" which is equally applicable to an ATV as defined

by 75 Pa. C.S.A. §7702: "A motorized off-highway vehicle which travels on

three or more off-highway tires ... " As such, an ATV is a motorized vehicle

although defined as off-highway as set forth in Chapter 77 of the Code as

applicable to Chapter 38 concerning ignition interlock of the Code. Appellant

argues that ATVs are by definition excluded from the ignition interlock

4 mandates even though the ignition interlock requirement applies to "any motor

vehicle." In this Court's opinion under the plain meaning of the code that ATV1s

are covered by the sections cited by Appellant's definition of "a

motorized ... vehicle."

Appellant further submits "an ATV cannot be equipped with an ignition

interlock system. A motorcycle cannot be equipped with an ignition interlock

system. Therefore, a Defendant cannot operate a motorcycle or an ATV

because he cannot operate them without an ignition interlock system installed

on them as well as Defendant's other motor vehicle that is equipped with an

ignition interlock system." Thereby making these provisions of the Code

"unconstitutionally overbroad and unenforceable." Our Supreme Court in

Whalen v. Commonwealth of Pennsylvania, Department of Transportati.on,

Bureau of Driver Licensing, 613 Pa. 64, 32 A.3d 677 (2011) has held: The

purpose of the ignition interlock statute is not to impose further punishment

on repeat DUI offenders for past conduct, but rather to protect society from

those whose history suggests that they may continue to drive while intoxicated.

Alexander v. Commonwealth of Pennsylvania, Department of

Transportation, 583 Pa. 592 880 A.2d 552, 560-61 (2003). This implication

is exactly what Appellant fails to understand. Appellant must not operate any

motor vehicle whether it be a motorcycle or ATV on the highways of the

Commonwealth with a record of multiple DUI offenses unless the motor vehicle

Appellant is operating is equipped with an ignition interlock device as

mandated by 75 Pa. C.S.A. §3805 and includes an ATV for it is a motorized

5 vehicle. Defendant may operate his car because it has an ignition interlock

system but not any other motorized vehicle including an ATV or motorcycle not

modified with an ignition interlock system.

Commonwealth submitted the testimony of Pennsylvania State Trooper

Joseph Aponick with Commonwealth's Exhibit No. l being admitted into the

record as Appellant's certified driver history confirming the mandate of an

ignition interlock system. Appellant also testified.

As such, we imposed the sentence as set forth in the Sentencing Order

after finding Appellant guilty on all four (4) Counts. Appellant has not yet

served the incarceration sentence of thirty (30) to sixty (60) days pending the

Superior Court's Order.

Accordingly, we enter the foregoing Order.

BY THE COURT: