Commonwealth v. Kenney

210 A.3d 1077
CourtSuperior Court of Pennsylvania
DecidedMay 21, 2019
DocketNo. 1603 WDA 2018
StatusPublished
Cited by6 cases

This text of 210 A.3d 1077 (Commonwealth v. Kenney) 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.

Bluebook
Commonwealth v. Kenney, 210 A.3d 1077 (Pa. Ct. App. 2019).

Opinion

OPINION BY COLINS, J.:

The Commonwealth appeals from the judgment of sentence imposed on Ethan Stewart Kenney by the Court of Common Pleas of Fayette County following Kenney's guilty pleas to charges of leaving the scene of an accident involving death and homicide by vehicle,1 and to five summary offenses under the Vehicle Code. Because the county intermediate punishment (CIP) sentence imposed by the sentencing court violates the requirement in Section 3742 of the Vehicle Code that no sentence less than the mandatory minimum sentence of imprisonment shall be imposed for the offense of leaving the scene of an accident involving death, we vacate the judgment of sentence and remand this case for re-sentencing.

This case arises out of a single-vehicle accident in the early morning hours of June 9, 2013, in which Kenney drove a truck into a guardrail, a bridge abutment, a second guardrail, and a tree, killing the passenger who was riding in his vehicle. See Commonwealth v. Kenney , No. 1542 WDA 2015, 2017 WL 65882, unpublished memorandum at 1-3 (Pa. Super. filed January 6, 2017). Kenney was charged with homicide by vehicle while driving under the influence and driving under the influence (DUI),2 leaving the scene of an accident involving death, homicide by vehicle, and 10 summary offenses, including disregarding traffic lane, driving at unsafe speed, careless driving, failure to notify police of an accident, and failure to use safety belt.3 On March 19, 2018, the trial court ordered that the results of a blood alcohol test be suppressed under Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), and Commonwealth v. Ennels , 167 A.3d 716 (Pa. Super. 2017). On May 21, 2018, Kenney pled guilty to leaving the scene of an accident involving death, homicide by vehicle, and the summary offenses of disregarding traffic lane, driving at unsafe speed, careless driving, failure to notify police of an accident, and failure to use *1079safety belt. In conjunction with Kenney's guilty pleas, the Commonwealth nol prossed the homicide by vehicle while driving under the influence, DUI, and remaining summary offense charges.

In 2013, when this crime occurred, Section 3742(b)(3) of the Vehicle Code required a minimum sentence of one year of imprisonment for leaving the scene of an accident involving death, provided that the Commonwealth gave notice of intent to seek the imposition of that mandatory minimum. 75 Pa.C.S. §§ 3742(b)(3)(i), (ii).4 Prior to sentencing, the Commonwealth filed a notice of intent to seek the mandatory minimum sentence under Section 3742(b)(3) of the Vehicle Code, and Kenney and the Commonwealth submitted sentencing memoranda. Kenney argued that the sentencing court should impose a CIP sentence. The Commonwealth opposed this request and contended that Section 3742 of the Vehicle Code does not permit a CIP sentence for leaving the scene of an accident involving death.

On October 30, 2018, the sentencing court imposed a CIP sentence for the leaving the scene of an accident involving death conviction, consisting of five years intermediate punishment, of which one year was to be served on house arrest with electronic monitoring. Count 2 Sentencing Order ¶4. The court imposed a concurrent CIP sentence of five years intermediate punishment, of which 540 days were to be served on house arrest with electronic monitoring, for homicide by vehicle and no further penalty for the summary offenses. Count 3 Sentencing Order ¶¶4, 6; Counts 6, 7, 8, 11, 13 Sentencing Order. The CIP sentences did not include any term of imprisonment and also provided that the sentencing court could reduce the length of supervision after two years. Count 2 and 3 Sentencing Orders ¶¶4-5; N.T. Sentencing at 25-30. The Commonwealth timely appealed from this judgment of sentence on November 8, 2018.

The Commonwealth presents one question for our review:

Whether the trial court erred in sentencing Defendant, at Count 2-Accidents Involving Death or Personal Injury, to a term of intermediate punishment for a period of sixty (60) months, with three hundred sixty-five (365) days to be served on house arrest with electronic monitoring, as this constitutes an illegal sentence, based on the statutory language within Title 75 Pa.C.S. § 3742 (b) (3), which required the Defendant to serve a minimum term of imprisonment of not less than one year?

Commonwealth's Brief at vi.

This issue requires the Court to interpret Section 3742 of the Vehicle Code, the County Intermediate Punishment Act, and the Sentencing Code, and analyze the interplay between those statutes. Because statutory construction is a question of law, our review of the sentencing court's decision is plenary and de novo . Commonwealth v. Popielarcheck , 190 A.3d 1137, 1140 (Pa. 2018) ; Commonwealth v. Stotelmyer , 631 Pa. 213, 110 A.3d 146, 149 (2015).

In interpreting these statutes, we must ascertain and give effect to the intent of the General Assembly. 1 Pa.C.S. § 1921(a) ; Popielarcheck , 190 A.3d at 1140 ; Stotelmyer , 110 A.3d at 149. Absent ambiguity, we look to the plain language of the statutes to ascertain the General Assembly's intent. 1 Pa.C.S. § 1921(b) ; Popielarcheck , 190 A.3d at 1140 ;

*1080Stotelmyer , 110 A.3d at 149-50. It is also a fundamental principle of statutory construction that each word in a statute is to be given meaning and not be treated as mere surplusage. In re Employees of Student Services , 495 Pa.

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Cite This Page — Counsel Stack

Bluebook (online)
210 A.3d 1077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kenney-pasuperct-2019.