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HomeMy WebLinkAboutCP-21-CR-1616-2005 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1616-2005 : CHARGES: (1) DUI – GENERAL IMPAIRMENT TH : W/ ACCIDENT, 4 MANDATORY : (3) DUS (DUI RELATED) : (4) REGISTRATION & CERTIFICATE : OF TITLE REQUIRED : (5) REQUIRED FINANCIAL RESPONS. : (8) RESTRICTION ON ALCOHOLIC : BEVERAGES : (9) DUI – GEN. IMPAIRMENT RD : W/REFUSAL, 3 MANDATORY : GORDON ANTHONY MOATZ, JR : AFFIANT: TPR. KIRK A. PERKINS IN RE: OPINION PURSUANT TO RULE 1925 In this case, the defendant was arrested for driving under the influence in June of 2005. Since then, the case has had a somewhat tortured procedural history involving, inter alia, various continuances, withdrawal of a guilty plea, the filing of pretrial motions, a subsequent nonjury trial and a hearing on post-trial motions. Mr. Moatz was sentenced on numerous charges arising out of a single motor vehicle accident. Police were dispatched to the scene shortly after 11:00 p.m. on Jun 16, 2005. They found Mr. Moatz still seat belted to the driver’s seat in his car which was upside down on its roof facing west in the northbound lane of state route 233 in Cumberland County. The officer determined that the defendant was under the influence of alcohol. After he was removed to the hospital, the defendant was read various warnings and asked if he would submit to a blood- alcohol test. He refused. Following nonjury trial, the defendant was found guilty of several charges including, most importantly, Driving Under the Influence – General Impairment with Accident, Driving CP.21-CR-1616-2005 Under Suspension (DUI-related), and Driving Under the Influence – General Impairment with Refusal. Both of the driving under the influence charges triggered one year mandatory minimum sentences. The driving under the influence charges were merged for the purpose of sentencing. The defendant was sentenced to an aggregate sentence of not less that fourteen nor more than thirty-six months. In his statement of matters complained of on appeal, the defendant raises the question of (1) whether a Jaggers issue is applicable to this case, (2) whether the defendant’s sentence should be enhanced by virtue of the occurrence of a single-vehicle accident and, (3) whether 1 counsel was ineffective in failing to raise these issues. By a “Jaggers issue” we presume that the defendant has reference to the case of Com. v. Jaggers, 903 A.2d 33 (Pa.Super. 2006). In that case, the Superior Court held that the warning card, informing drivers arrested for suspected DUI that, by refusing to take a breath test they would be subject to more severe penalties including “a minimum of seventy-two hours in jail, a minimum fine of $1,000,” did not give the motorist sufficient notice of minimum penalties for a repeat offender. We believe that the so-called Jaggers issues is moot in this case. A hearing was held in connection with the defendant’s post-sentence motion on May 15, 2007. At that hearing, the district attorney represented that the DL-26 refusal form in this particular case comported with the holding in Jaggers and was a form which had been revised in order to resolve the problem discussed by the Superior Court. The following exchange then occurred between court and counsel: THE COURT: So then what does Jaggers say? 1 Counsel for the purpose of post-trial motions is not the attorney who was trial counsel at the nonjury proceeding. 2 CP.21-CR-1616-2005 MR. ORR: So the court said in Jaggers suppression was not a remedy. However, rather than being convicted of a second offense refusal, which put you into the highest tier for sentencing purposes, you could be sentenced for a second offense, no refusal, back to the lowest tier. MR. SMITH: Although that point is moot because this is the proper form with the maximum. THE COURT: So the form in this case does not create the Jaggers problem? MR. ORR: It appears that you are correct, Your Honor. Post-Sentence Motion Transcript, pp. 4-5. We note, in addition, that the sentences for driving under the influence were merged in this case. Even without a conviction for refusing the breath test, the mandatory minimum sentence would be the same given the conviction for DUI – General Impairment with Accident. In this latter regard, the defendant contends that the “accident” enhancement should not apply to his case because there were no other motor vehicles involved other than his own. He has cited no authority for this proposition nor do we believe that his argument is legally sound. The Motor Vehicle Code provides for an enhanced penalty where a person violates 75 P.S. 3802(a)(1), Driving under the Influence of Alcohol – General Impairment, “where there was an accident resulting in bodily injury, serious bodily injury or death of any person or damage to a vehicle or other property.” Nowhere in the statute is an exception made for an accident involving only the defendant’s vehicle. Moreover, the best indication of legislative intent is the plain language of the statute. See Com. v. Shiffler, 879 A.2d 185 (Pa. 2005). The legislature itself has declared that where “the words of a statute are clear and free from all ambiguity, the 3 CP.21-CR-1616-2005 letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. 1921(b). An accident is defined as an “unforeseen and unplanned event” or “an unfortunate event resulting … from carelessness.” It strains credulity, in this case, to suppose that, in the absence of carelessness, the defendant somehow intended his vehicle to turn upside down on a public highway. November 29, 2007 ______________________________ Kevin A. Hess, J. John C. Dailey, Esquire Assistant District Attorney Paul Bradford Orr, Esquire For the Defendant :rlm 4