HomeMy WebLinkAboutCP-21-SA-0000012-2018COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
: CHARGE: DRIVING UNDER SUSPENSION
ROBERT E. BARNES
OTN: T5749377-4 : CP -21 -SA -0012-2018
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, S.J., June 18, 2018.
In this driving -under -suspension summary offense case, Defendant has appealed
from a judgment of sentence entered pursuant to a plea bargain.' The basis for the
appeal has been expressed in a statement of errors complained of on appeal as follows:
A. The trial court erred in sentencing Appellant to serve a period of
imprisonment for this offense.
(1) 75 Pa.C.S.A. Section 1543(a) reads as follows: "Except as
provided in subsection (b), any person who drives a
motor vehicle on any highway or trafficway of this
Commonwealth after the commencement of a
suspension, revocation or cancellation of the operating
privilege and before the operating privilege has been
restored is guilty of a summary offense and shall, upon
conviction or adjudication of delinquency, be sentenced
to pay a fine of $200."
(2) 75 Pa.C.S.A. Section 1543(a) mandates a sentence of a
fine of $200 and does not authorize further penalty.
(3) The penalty imposed in this case exceeds the maximum
penalty authorized by the applicable statute.
B. The trial Court erred in sentencing Appellant to pay a fine of $1000.00
for this offense.
(1) 75 Pa.C.S.A. 1543(a) reads as above -set -forth.
(2) 75 Pa.C.S.A. 1543(a) mandates a sentence of a fine of
$200 and does not authorize further penalty.
(3) The penalty imposed in this case exceeds the maximum
penalty authorized by the applicable statute.
C. The trial Court erred in directing Appellant to begin to serve the
sentence of imprisonment prior to the expiration of the time for
appeal.
1 Defendant's Notice of Appeal, filed May 17, 2018.
1
(1) The sentence Order directs Appellant to appear at the
Cumberland County Prison to begin service of the
sentence of imprisonment on May 18, 2018, prior to the
expiration of his time for appeal of the sentence
imposed, which was after May 21, 2018.
(2) Appellant did file timely Notice of Appeal on May 17,
2018. Z
This opinion in support of the judgment of sentence appealed from is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of an incident occurring on October 6, 2017, in Southampton
Township, Cumberland County, Pennsylvania, on State Route 174, Defendant was cited
for driving under suspension (DUI related) in violation of Section 1543(b)(1) of the
Vehicle Code .3 He pled guilty to the charge before a magisterial district judge on
December 18, 2017,4 was sentenced to pay the costs of prosecution and a fine and to
undergo the applicable mandatory minimum period of imprisonment of 60 daYS, 5 and
was given a prison report date of January 24, 2018.6
Defendant filed a Notice of Appeal from Summary Conviction on January 17,
2018.7 At the time scheduled for the de novo summary trial in this court, Defendant
entered a counseled guilty plea to the lesser included offense of driving under
z Defendant's Statement of Matters Complained of on Appeal, Pursuant to Pa.R.A.P. 1925(b).
3 Citation No.: T5749377-4, filed October 6, 2017 (Magisterial District Judge 09-3-01 Docket),
filed January 19, 2018.
4 Guilty Plea Colloquy/Pleas of Guilty before Issuing Authority, dated December 18, 2017
(Magisterial District Judge 09-3-01 Docket), filed January 18, 2018.
5 Order Imposing Sentence, dated December 18, 2017 (Magisterial District Judge 09-3-01
Docket), filed January 19, 2018.
6 Order Imposing Sentence, dated December 18, 2017 (Magisterial District Judge 09-3-01
Docket), filed January 19, 2018.
Defendant's Notice of Appeal from Summary Conviction, filed January 17, 2018.
PA
suspension in violation of Section 1543(a) of the Vehicle Code in return for a reduced jail
sentence of 45 days, a fine of $1000.00, and a deferred prison report date of May 18,
2018.8
In the colloquy preceding acceptance of the plea, Defendant admitted to the
facts of the offense9 and to his understanding of the agreed-upon sentence.10 The
deferred prison report date of May 18, 2018, was specifically requested by Defendant
and acquiesced in by the Commonwealth,"as was authorization for work release .12
Nothing in the guilty plea/sentencing proceeding suggested that Defendant's
record did not support the legality of the agreed-upon sentence. In this regard, a review
of Defendant's Franklin County criminal record reveals two driving -under -suspension
(DUI related) convictions prior to the driving -under -suspension charge sub judice. 13
From the judgment of sentence imposed in accordance with the plea bargain, 14
Defendant—utilizing different counsel—filed an appeal to the Pennsylvania Superior
Court.15 He did not report to the prison as directed .16
"See N.T. 2-6, Proceeding, April 20, 2018. Work release was also ordered for Defendant. Id.
9 N.T. 2-3, Proceeding, April 20, 2018.
10 N.T. 3, Proceeding April 20, 2018.
11 N.T. 3-4, Proceeding, April 20, 2018.
12 N.T. 4-5, Proceeding, April 20, 2018.
13 Franklin County Court of Common Pleas, Court Summary, Robert Eugene Barnes (d.o.b.
October 25, 1962), accessed May 25, 2018, see Commonwealth v. Barnes, CP -28 -CR -954-2007;
Commonwealth v. Barnes, CP -28 -CR -1388-2016. With respect to judicial notice of Pennsylvania
county court criminal records, see Commonwealth v. Taylor, 2016 PA Super 83, 137 A.3d 611;
Egan v. U.S. Mid -Atlantic, Inc., 2014 PA Super 62, 92 A.3d 1; Doxey v. Commonwealth, 674 A.2d
1173 (Pa. Cmwlth. Ct. 1996); Posey v. Swissvale Borough, 2013 WL 2896870 (W.D. Pa.); Pa. R.E.
201(b).
14 Order of Court, dated April 20, 2018.
3
IIRWATIF[ZFiIN
Statement of law. Following a guilty plea, "an accused may challenge only the
voluntariness of the plea, the legality of the sentence imposed, and the competency of
counsel." Commonwealth v. Moore, 321 Pa. Super. 442, 454, 468 A.2d 791, 797 (1983).
Under Section 1543(a) of the Vehicle Code
[A]ny person who drives a motor vehicle on any highway or
trafficway of this Commonwealth after the commencement of a
suspension, revocation or cancellation of the operating privilege and
before the privilege has been restored is guilty of a summary
offense ....
75 Pa. C.S. §1543(a).
A second or subsequent offense carries a penalty of a fine of from $200.00 to
$1,000.00 and a period of imprisonment of up to six months. 75 Pa. C.S. §6503(a). In this
regard, it may be noted that driving under suspension under Section 1543(a) of the
Vehicle Code is a lesser included offense of driving under suspension (DUI related) under
Section 1543(b)(1) of the Vehicle Code. Commonwealth v. Ball, 637 Pa. 100, 146 A.3d
755 (2016); Commonwealth v. Cunningham, 380 Pa. Super. 177, 551 A.2d 288 (1988).
Application of law to facts. In the present case, where Defendant received an
agreed-upon sentence for driving under suspension in accordance with a counseled plea
bargain and in the absence of any indication that his driving record did not support the
sentence imposed, and where county criminal court records in fact indicate prior
driving -under -suspension convictions that would rationally implicate the recidivist
penalty noted above, it is believed that Defendant has not sufficiently impeached the
regularity of his sentence to warrant relief on appeal. In addition, while the court is
unaware of any rule requiring that service of a prison sentence imposed pursuant to a
15 Defendant's Notice of Appeal, filed May 17, 2018.
16 See Order of Court, dated May 25, 2018.
:l
plea bargain be deferred upon sentence, any impropriety in this regard would appear to
have been waived by Defendant's express request for the report date ordered.17
BY THE COURT,
J. Wesley Oler, Jr., S.J.
Courtney Hair LaRue, Esq.
Assistant District Attorney
For the Commonwealth
Deborah K. Hoff, Esq.
154 South Potomac Street
Waynesboro, PA 17268
For the Defendant
17 In the event that Defendant's sentence is determined to have been illegal, the remedy would
appear to be a vacation of the plea and sentence and restoration of the status quo prior
thereto, where Defendant was charged with the more serious form of driving under
suspension. See Commonwealth v. Melendez-Negron, 2015 PA Super 205, 123 A.3d 1087. A
contrary result "would encourage gamesmanship of a most offensive nature." See
Commonwealth v. Ward, 493 Pa. 115, 123, 425 A.2d 401, 406 (1981), quoting United States ex
rel. Williams v. McCann, 436 F.2d 103,107 (2nd Cir. 1970).
61