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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JONATHAN QUARM, : No. 1555 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, April 21, 2015,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0001713-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 17, 2016
Jonathan Quarm appeals the judgment of sentence in which the Court
of Common Pleas of Delaware County sentenced him to serve a term of
12 to 60 months’ imprisonment for a third offense driving under the
influence (“DUI”), 75 Pa.C.S.A. § 3804(c)(3). The trial court also ordered
appellant to pay a $2,500 fine, a $300 special cost assessment, undergo a
drug and alcohol evaluation, and attend safe driving school.
The facts as recounted by the trial court are as follows:
On August 22, 2011 at approximately 1:53 a.m.
Trooper Martin Wiley of the Pennsylvania State Police
was on duty and in full uniform in a marked patrol
unit traveling South on State Road Rt. 1 just north of
Brandywine Drive, Chadds Ford Township, Delaware
County, Pennsylvania. Trooper Wiley observed a
Lincoln Sedan bearing PA reg#HFD9821 traveling in
front of his patrol unit change lanes without signaling
and then abruptly, and unsafely, swerve outside of
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its lane of travel after changing lanes. Trooper Wiley
queried the registration in NCIC/CLEAN and it
returned as a suspended registration. At that time
Trooper Wiley initiated a traffic stop.
Trooper Wiley approached the driver side of
the vehicle and made contact with the operator,
[appellant] in this case. While interviewing
[appellant], Trooper Wiley detected a strong odor of
an alcoholic beverage emanating from his breath and
person. Trooper Wiley then asked the [appellant] to
exit his vehicle to perform Standardized Field
Sobriety Tests. Trooper Wiley explained and
demonstrated Standardized Field Sobriety Tests to
[appellant] and requested that he perform the tests.
[Appellant] performed the Standardized Field
Sobriety Tests and showed positive indicators of
intoxication on all the tests. [Appellant] was placed
under arrest and transported to PSP Media for a
chemical test of breath. [Appellant] was
administered a chemical test of breath on the
Datamaster DMT by Trooper Patrick Wade who is a
certified operator of this machine. [Appellant’s] test
yielded a Breath [sic] Alcohol Content of .247%.
Trial court opinion, 9/15/15 at 1-2.
A jury convicted appellant of DUI, general impairment, incapable of
driving safely, 75 Pa.C.S.A. § 3802(a)(1) and DUI, highest rate of alcohol
(BAC .16+), 75 Pa.C.S.A. § 3802(c).1 Thereafter, the trial court acquitted
1
Section 3802(c) of the Vehicle Code, 75 Pa.C.S.A. § 3802(c), provides:
Highest rate of alcohol.--An individual may not
drive, operate or be 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 the vehicle.
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appellant of a violation of Operating a Vehicle without Ignition Interlock
(BAC .025+) 4th or subsequent offense, 75 Pa.C.S.A. § 3808(a)(2).
At the sentencing hearing, the Commonwealth introduced into
evidence a certified driver history for appellant which indicated that
appellant had two prior DUI convictions: he previously accepted Accelerated
Rehabilitative Disposition on a DUI offense committed on December 25,
2005, and was convicted of DUI in New Jersey on July 13, 2007.
The trial court took these prior convictions into account when it
sentenced appellant.2 The trial court explained its decision to impose the
sentence of 12 to 60 months’ imprisonment on appellant based on his prior
convictions:
2
Section 3804(c)(3) of the Vehicle Code, 75 Pa.C.S.A. § 3804(c), provides:
Incapacity; highest blood alcohol; controlled
substances.--An individual who violates section
3802(a)(1) and refused testing of blood or breath or
an individual who violates section 3802(c) or (d)
shall be sentenced as follows:
....
(3) For a third or subsequent offense, to:
(i) undergo imprisonment of not less
than one year;
(ii) pay a fine of not less than $2,500;
and
(iii) comply with all drug and alcohol
treatment requirements imposed
under sections 3814 and 3815.
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In the instant case, the mandatory minimum
sentence imposed upon [appellant] was triggered by
his prior convictions. In every case which has
addressed the issue, the courts have agreed that
mandatory minimum sentences based upon prior
convictions do not require a judge or jury to find the
existence of the prior conviction beyond a reasonable
doubt and such mandatory minimum sentences
based upon prior convictions are not rendered
unconstitutional or illegal based upon Alleyne [v.
United States, U.S. , 133 S.Ct 2151
(2013)]. Therefore, as the law currently stands, the
imposition of a mandatory minimum sentence based
on a prior conviction is not unconstitutional. See
Commonwealth v. Hale[, 85 A.3d 570 (Pa.Super.
2014)].
Trial court opinion, 9/15/15 at 4.
Appellant contends that the trial court erred when it sentenced him
based on the record of prior convictions when the jury did not have the
opportunity as fact-finder to determine whether he in fact did receive the
prior convictions. Essentially, appellant argues that his judgment of
sentence should be vacated and the case should be remanded to the trial
court in order for a jury to determine whether he had prior convictions for
DUI as the proof of prior convictions helped to determine the severity of his
sentence. He also argues that permitting the trial court to determine the
sentence based on prior convictions when a jury did not have the
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opportunity to determine if the prior convictions in fact occurred violates
Article I, Section 9 of the Pennsylvania Constitution.3
At the outset, we note that issues pertaining to
Alleyne go directly to the legality of the sentence.
Commonwealth v. Lawrence, 99 A.3d 116, 123
(Pa.Super. 2014). With this in mind, we begin by
noting our well-settled standard of review. “A
challenge to the legality of a sentence . . . may be
entertained as long as the reviewing court has
jurisdiction.” Commonwealth v. Borovichka,
18 A.3d 1242, 1254 n. 8 (Pa.Super. 2011). (citation
omitted). It is also well-established that “[i]f no
statutory authorization exists for a particular
sentence, that sentence is illegal and subject to
correction.” Commonwealth v. Rivera, 95 A.3d
913, 915 (Pa.Super. 2014) (citation omitted). “An
illegal sentence must be vacated.” Id. “Issues
relating to the legality of a sentence are questions of
law[.] . . . Our standard of review over such
questions is de novo and our scope of review is
3
Article I, Section 9 of the Pennsylvania Constitution provides:
In all criminal prosecutions the accused hath a right
to be heard by himself and his counsel to demand
the nature and cause of the accusation against him,
to be confronted with the witnesses against him, to
have compulsory process for obtaining witnesses in
his favor, and, in prosecutions by indictment or
information, a speedy public trial by an impartial jury
of the vicinage; he cannot be compelled to give
evidence against himself, nor can he be deprived of
his life, liberty or property, unless by the judgment
of his peers or the law of the land. The use of a
suppressed voluntary admission or voluntary
confession to impeach the credibility of a person may
be permitted and shall not be construed as
compelling a person to give evidence against
himself.
Pa. Const. Art. I, § 9.
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plenary.” Commonwealth v. Akbar, 91 A.3d 227,
238 (Pa.Super. 2014) (citations omitted).
Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014).
In Alleyne, the United States Supreme Court held that “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne, 433
S.Ct. at 2155. However, the United States Supreme Court noted that it did
not address the narrow exception to this general rule for the fact of a prior
conviction. Id. at 2160 n.1.
Pennsylvania courts have long held that a trial court may determine
the existence of prior convictions at the time of sentencing. In
Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004), our supreme court
addressed the applicability of Article I, Section 9 of the Pennsylvania
Constitution and the due process provisions of the United States Constitution
when it determined that proof of a prior conviction did not have to be
submitted to a jury in order to be used to invoke an enhanced sentencing
provision based on a prior conviction.
Since Alleyne, the Pennsylvania Supreme Court has struck down
some minimum sentencing statutes as unconstitutional. See
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (our supreme court
declared unconstitutional a mandatory minimum sentencing statute if certain
controlled substance crimes occurred within 1,000 feet of a school).
However, the prior conviction exception continues. In Commonwealth v.
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Reid, 117 A.3d 777 (Pa.Super. 2015), this court held that Section 9714 of
the Sentencing Code, 42 Pa.C.S.A. § 9714, which increased the mandatory
minimum sentence for a crime of violence based on a prior conviction for a
crime of violence was not unconstitutional under Alleyne and that the proof
of a prior conviction was not a fact that had to be found by a jury. More
recently, in Commonwealth v. Bragg, 2016 WL 490006 (Pa.Super.
February 5, 2016), Gregory Bragg contended that the Court of Common
Pleas of Philadelphia County erred when it imposed a mandatory minimum
sentence for an arson conviction based on a prior conviction for burglary of
an occupied residence, a crime of violence. Because Alleyne recognized the
exception for prior convictions, this court determined that a jury did not
have to find that the prior conviction occurred and affirmed.
While appellant asks this court to ignore established precedent and
eliminate the rule that the fact of a prior conviction does not have to be
presented to a jury and may be submitted to the sentencing court, this court
declines to do so.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
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