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HomeMy WebLinkAboutCP-21-CR-0001096-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : CP-21-CR-1096-2008 : : CHARGES: RD : (1) DUI, GENERAL IMPAIRMENT (3 OR : SUBSEQUENT OFFENSE) RD : (2) DUI, HIGHEST RATE (3 OR : SUBSEQUENT OFFENSE) ADAM AVILES : OTN: L392481-5 : AFFIANT: PTL. MATTHEW WALTERS IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., August 3, 2009 — Following a non-jury trial in this criminal case, this Court found the Defendant Adam Aviles guilty beyond a reasonable doubt at Count 1 of Driving Under the Influence – General Impairment, and guilty beyond a reasonable doubt at Count 2 of Driving Under the Influence – 1 Highest Rate of Alcohol. Count 1 merged with Count 2 for the purposes of sentencing. Count 2 is considered a third or subsequent offense. The Defendant was sentenced on April 28, 2009, to 2 a term of no less than 15 months and no more than 5 years. This sentence was the exact midpoint of the standard range under the Pennsylvania Sentencing Guidelines computed for this case. The Defendant now appeals to the Pennsylvania Superior Court from this judgment of 3 sentence. The Defendant asserts that this Court erred in its imposition of sentence, averring rather 4 that the maximum sentence which could be imposed is six months. Defendant claims that this is his first offense and that the sentence imposed was illegal because the Commonwealth 1 Order of Court, March 17, 2009. 2 Order of Court, April 28, 2009. 3 Id. 4 See Defendant’s Statement of Errors Complained of on Appeal, filed June 24, 2009 at 2. erroneously asserts that this is the Defendant’s third offense for Driving Under the Influence (DUI), mandating a one-year minimum prison sentence and a maximum penalty up to five 5 years. Furthermore, Defendant claims that the sentencing guidelines calculated in the presentence report are erroneous because the guidelines count charges in which there are dispositions and convictions for offenses which occurred after the date of the instant DUI 6 offense. This opinion in support of the judgment of sentence is written pursuant to Pa. R.A.P. 1925(a). STATEMENT OF FACTS On January 4, 2008, at 8:07 p.m., Officer Matthew Walters of Silver Spring Township witnessed a 1995 Toyota pickup truck swerving across the road near the intersection of Commerce Drive and the Carlisle Pike in Cumberland County. The vehicle nearly struck the curb at a car dealership at that location. Upon observing the erratic driving behavior, Officer Walters initiated a stop of the Toyota pickup truck. Approaching the stopped vehicle, Officer Walters found the Defendant Aviles at the wheel. The officer detected an odor of alcohol on the Defendant, and upon exiting the vehicle the Defendant had difficulty standing. Mr. Aviles almost fell getting out of the car. As such, the Defendant was taken into custody and transported to the Cumberland County Booking Center. At the booking center, Mr. Aviles submitted to a breath test, which was administered at 9:15 p.m. The breath test revealed that Mr. Aviles’ BAC was 0.374 within two hours of driving. Accordingly, Officer Walters then filed the DUI charges against the Defendant. Subsequent to the arrest for the instant DUI at issue in this appeal, the Defendant was convicted and sentenced for two other DUIs in Dauphin County. The arrest for the DUI 5 See id at 1. 6 Id at 1-2. 2 docketed at case number CP-22-CR-0002182-2007 in Dauphin County had occurred on April 3, 2007, and the Defendant entered a Guilty Plea on this charge on February 6, 2008. The arrest for the DUI docketed at case number CP-22-CR-0004896-2007, also in Dauphin County, had occurred on October 3, 2007. Mr. Aviles entered a Guilty Plea for this second Dauphin County DUI also on February 6, 2008, simultaneously with his plea for the April 2007 DUI. DISCUSSION At issue in this appeal is the legality of this Court’s application of the mandatory sentencing guidelines for a third offense DUI. This Court imposed a standard range sentence of no less than 15 months and no more than 5 years pursuant to the sentencing guidelines for third or subsequent DUI offense. The Defendant claims that the instant DUI is not a third offense for the purpose of sentencing and the sentence imposed is therefore illegal. The prohibition of driving under the influence is governed by 75 Pa. Cons. Stat. § 3802. Specifically, subsection (c) governs violations committed while under the influence of the highest rate of alcohol. Subsection (c) proscribes an individual from driving, operating, or being in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is 0.16% or higher within two hours after the individual has driven, operated, or been in actual physical control of the movement of a vehicle. See 75 Pa. Cons. Stat. § 3802(c) (2007). Pursuant to 75 Pa. Cons. Stat. § 3804, an individual who violates section 3802(c) shall undergo imprisonment of not less than one year when sentenced for a third or subsequent offense. See 75 Pa. Cons. Stat. § 3804(c)(3)(i) (2007). This Court must therefore determine the number of prior offenses committed by Mr. Aviles. 3 For the purposes of chapter 38, a prior offense is defined as a conviction for an offense under section 3802 which occurred before sentencing on the present violation. See 75 Pa. Cons. Stat. § 3806(a)(1) (2007). The Superior Court has considered this issue and has held “the point when a prior conviction becomes a ‘prior offense’ for sentencing purposes is when there was a disposition prior to sentencing on the current violation.” Commonwealth v. Nieves, 935 A.2d 887, 889 (Pa. Super. 2007). See also Commonwealth v. Stafford, 932 A.2d 214, 217 (Pa. Super. 2007). In order to verify the legality of the sentence imposed on Mr. Aviles by this Court, one must only examine the timeline of judicial events surrounding the Defendant’s reckless tendency to drive under the influence of alcohol. The relevant dates pertaining to each of the Defendant’s three DUI convictions are those marking the disposition and sentencing in each case. That is, pursuant to the plain language of section 3802(a)—and in accordance with the Superior Court’s holdings in both Nieves and Stafford—the sentencing for the instant violation must have occurred after dispositions had been rendered in each of his two previous violations in order for this Court to have legally considered the instant violation as a third or subsequent offense for the purpose of sentencing. A disposition was reached for each of the two Dauphin County DUI charges on the same date, February 6, 2008, when Mr. Aviles pled guilty to the charges docketed at both CP-22-CR- 0002182-2007 and CP-22-CR-0004896-2007. Mr. Aviles was also sentenced for both Dauphin County DUIs on that date with the court enrolling the Defendant into the Intermediate Punishment Program. Like the appellants in both Nieves and Stafford, Mr. Aviles pled guilty to two distinct DUI charges simultaneously and received two distinct sentences for the two DUI charges. In Nieves, the defendant pled guilty to charges for two distinct DUI offenses on the 4 same day. On a later date, the sentencing court treated one offense as a second offense and the other as a third offense. See Nieves, 935 A.2d at 889. Here, Mr. Aviles received sentences from the Dauphin County court for what would amount to his first and second offenses on the same sentencing date, as opposed to the appellant’s second and third offenses arrived at on the same sentencing date in Nieves. While the factual situation here is not identical, it would nevertheless seem that the logic of separation employed by the Nieves sentencing court easily applies to the instant case. Where an appellant is sentenced for two DUIs on the same day and at the same hearing, the two DUI offenses nevertheless are legally separate and distinct. See id. See also Stafford, 932 A.2d at 217. The consolidation of sentencing proceedings for different charges is not improper; rather, consolidation is not uncommon and is indeed in the interest of judicial economy. Nieves, 935 A.2d at 889. The consolidation of sentencing does not render separate charges as indistinct. As such, a disposition had been reached for each of Mr. Aviles’ two prior and distinct violations of section 3802 before he came before this Court for sentencing in this case. A disposition was reached in the instant case on March 17, 2009, after the date of disposition and sentencing for both Dauphin County DUI charges. However, the date relevant to Mr. Aviles’ appeal is the date of instant sentencing, which occurred on April 28, 2009. It is abundantly clear that the sentencing date for the instant violation, April 28, 2009, occurred subsequent to February 6, 2008, when dispositions were reached in the Defendant’s prior violations. Therefore, both of Mr. Aviles’ Dauphin County DUIs satisfy section 3806’s requirements and do constitute prior offenses for the purposes of sentencing in this DUI case. 5 Defendant claims that the sentencing guidelines calculated in the presentence report are erroneous because the guidelines count convictions for offenses which occurred after the instant DUI. In doing so, Defendant seems to rely on the same failed interpretation of section 3806 displayed by the appellant in Nieves. Specifically, Defendant’s statement reads: “There were no convictions for DUI prior to the date of the instant offense, thereby making this a first offense for 7 sentencing purposes. . . .” Here, Mr. Aviles is focusing on the existence of convictions prior to the date of the instant offense, rather than the date of the instant sentencing. As such, it appears that Defendant is relying on the language of subsection 3806(b), rather than subsection (a). The Superior Court has found this interpretation of the statute improper. In Nieves, the Superior Court rejected the appellant’s contention that the language of subsection (b) was controlling and denied the appellant’s assertion that subsection (b) essentially nullified the plain language of subsection (a) by replacing the phrase “sentencing on the present violation” with the term “present violation.” Id. The Superior Court further held, “Contrary to appellant’s interpretation, section 3806(a) is the benchmark for determining when a prior violation is to be considered a ‘prior offense.’ . . . If Subsection (b) is read as defendant suggests, what is indicated to be the general rule essentially has no application whatsoever.” Id. Just as the Superior Court acknowledged that it was improper for the appellant to read subsection 3806(b) as controlling in Nieves, it is likewise an equally misguided interpretation of the very same statute here. It simply does not matter whether the instant offense occurred before or after the convictions for the prior offenses. The only relevant date is the date of sentencing in this case, and that date is only relevant as it relates to the date of any prior convictions. It is clear that Mr. Aviles had prior convictions for the two separate and legally distinct 7 See Defendant’s Statement of Errors Complained of on Appeal, filed June 24, 2009, at 1. 6 Dauphin County DUIs at the time of instant sentencing. As such, this Court did properly treat the instant offense as a third offense DUI for the purpose of sentencing. CONCLUSION For the foregoing reasons, this Court did not err in considering the instant DUI as a third or subsequent offense, and, accordingly, it did not err in the imposition of a standard range guideline sentence. Mr. Aviles was properly sentenced as a third offense DUI offender. By the Court, M.L. Ebert, Jr., J. Michelle H. Sibert, Esquire Chief Deputy District Attorney Linda S. Hollinger, Esquire Senior Assistant Public Defender 7