J. A15002/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MEREDITH WILLIAMS-EARLE, : No. 2216 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, June 2, 2015,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0006901-2013
BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 10, 2016
Meredith Williams-Earle appeals from the judgment of sentence
entered in the Court of Common Pleas of Montgomery County after a jury
convicted her of driving under the influence (“DUI”) and recklessly
endangering another person (“REAP”).1 In addition to her jury convictions,
appellant entered an open guilty plea to one count of involuntary
manslaughter.2 The trial court sentenced appellant to 48 hours to 6 months
of imprisonment on the DUI conviction; 2 years of probation on the REAP
conviction to run consecutive to the DUI; and 9 to 23 months of
imprisonment for involuntary manslaughter, to run concurrent with the DUI
1
75 Pa.C.S.A. § 3802(a) and 18 Pa.C.S.A. § 2705, respectively.
2
18 Pa.C.S.A. § 2504(a).
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sentence, followed by a consecutive 3-year probationary term for an
aggregate term of incarceration of 9 to 23 months, followed by 5 years of
probation. We affirm.
The trial court set forth the following factual and procedural history:
On August 6, 2013 at approximately
9:30 a.m., Appellant, feeling overwhelmed by her life
circumstances, decided to drink some leftover wine
or champagne mixed with orange juice. Shortly
before getting into her car to take her two-year-old
son, Ford, to daycare, Appellant mixed another
drink. She put about 4 inches of whiskey into a Solo
cup and mixed it with cola. She took the whiskey
drink out to her car, got her son into the car and
drank half of the cup’s contents before she pulled out
of her driveway.
Ford was acting “wildly unmanageable” while in
his car seat, so Appellant gave him a bag of cheese
puffs, which she hoped would calm him down. He
had in the previous months started pulling on the car
door handle while Appellant would drive on the
roadway and would make himself sick. Shortly
before the stop sign at the intersection of
Morris Avenue and Spring Mill Road, Ford was
screaming, “puffs, puffs.” Appellant looked in her
rearview mirror and realized that he had dropped the
cheese puffs. About 25 yards before the stop sign,
Appellant looked back for two seconds to find the
cheese puffs. That is all she remembered prior to
the accident.
At about 10:30 a.m. one [witness], Brian
Novitski, observed Appellant’s car, a red Prius, blow
through a stop sign and plow into a white van. At
trial, Mr. Novitski testified that he saw the white van
flip over, the driver of the van fall out from the
vehicle and the white van fall back onto the driver.
Mr. Novitski called 911.
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A call was dispatched for an accident with
injuries at the intersection of Spring Mill Road and
Morris Avenue, to which several officers from the
Lower Merion Township Police Department responded
as did paramedics. The victim, [Winston] Staats[,]
was found to be dead at the scene.
Appellant was taken to the University of
Pennsylvania Hospital, where Appellant consented to
have a blood sample taken.
After an investigation, Appellant was charged
with homicide by vehicle while [DUI], homicide by
vehicle, DUI, [REAP], and numerous summary
offenses.
On March 2, 2015, a suppression motion was
conducted in which Appellant sought to suppress
numerous incriminating statements she made to
several police. In addition, Appellant filed a motion
in limine concerning the use of her cell phone.
Suppression was denied.
Immediately following the denial of
suppression, a two-day jury trial commenced. On
the second day of trial and pertinent to this appeal,
defense counsel notified this Court that he would be
stipulating to the age of Appellant’s son as below the
relevant age of 18, and that Appellant’s son, who
was in the car with her at the time of the accident
was two-years-old. Defense counsel acknowledged
that this stipulation relieves the jury from making
that finding and that it was not necessary to include
that on the verdict sheet. As discussed, the
Commonwealth read for the jury the stipulation as
follows:
Lastly, it is also agreed and stipulated
between the parties that on August 6,
2013, Timothy Ford Earle was two years
old.
A copy of this stipulation was marked as
Commonwealth Exhibit “C-58”.
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At the conclusion of the trial, the jury did find
Appellant guilty of DUI-[at least].08 [but less than]
.10 and [REAP]. The jury found Appellant not guilty
of DUI – general impairment, DUI-drugs and alcohol
combination and homicide by vehicle while [DUI].
The jury could not reach a unanimous verdict on
homicide by vehicle. Finally, this Court found
Appellant guilty of numerous summary offenses,
including, reckless driving, careless driving, duties at
a stop sign, driving at a safe speed and restraint
systems.
On June 2, 2015, the sentencing hearing was
held. Prior to the start of that hearing, the
Commonwealth advised this Court that it had
reached an agreement in regard to the open charge
of homicide by vehicle. The Commonwealth sought
to amend the bills of information to change the
charge to involuntary manslaughter and Appellant
agreed to enter an open guilty plea. Appellant pled
guilty and this Court accepted her plea. After which
this Court conducted the sentencing hearing. At the
conclusion of the hearing and with the benefit of a
presentence investigation and report, this Court
sentenced Appellant to an aggregate term of 9 to
23 months’ imprisonment, followed by a five-year
probationary period.
On June 12, 2015, appellate counsel filed a
timely post-sentence motion, in part reserving the
right to amend the post-sentence motion since he
was not trial counsel and had little time to review the
record. On June 16, 2015, the post-sentence motion
was denied. Subsequently, on June 24, 2015,
appellate counsel filed a motion to reconsider [the]
Court’s denial of post-sentence motion for
reconsideration of sentence. Substantively,
appellate counsel argued that because the jury was
not instructed that they must find that there was a
minor in the car during the DUI and since the jury
did not in fact make that finding, this Court erred in
imposing a sentence on her DUI as a first-degree
misdemeanor under 75 Pa.C.S.A. § 3803(b)(5).
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This Court conducted a hearing on the matter
on July 2, 2015. At the hearing, appellate counsel
argued that because trial counsel stipulated to the
fact that Appellant’s son was two years old at the
time of the accident which relieved the jury from
making that finding, that was akin to either trial
counsel stipulating to Appellant’s guilt or allowing
this Court to find Appellant guilty based upon
listening to the facts. Appellate counsel further
argued that in that scenario where trial counsel was
stipulating to an element of the crime, Appellant
should have been fully advised so that she could
make a knowing, intelligent and voluntary waiver of
her rights.
The motion to reconsider was denied, and this
timely appeal was filed on July 15, 2015.
Trial court opinion, 9/1/15 at 1-5 (record citations omitted).
Appellant raises the following issues for our review:
1. Whether the conviction for § 3803(b)(5)
(relating to DUI while minor is passenger in
vehicle) must be vacated because [appellant’s]
right to a trial by jury was violated where the
jury was not instructed that they needed to
find a minor was present beyond a reasonable
doubt and thus made no such finding[?]
2. Whether the Court’s judgment of sentence with
respect to § 3803(b)(5) (relating to DUI
while minor is passenger in vehicle) is illegal
insomuch as the jury was never instructed that
they needed to find a minor was present
beyond a reasonable doubt, the jury’s verdict
did not reflect such a finding, and thus the
maximum penalty allowed by law was 6
months[?]
3. Whether there was a knowing, intelligent and
voluntary waiver of the right to have the jury
find all elements of § 3803(b)(5) beyond a
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reasonable doubt, viz. that a minor was
present[?]
Appellant’s brief at 6 (emphasis in original).3
Although appellant sets forth three questions presented, she advances
two arguments in her brief. Appellant first challenges the legality of her
sentence. In support, she cites Alleyne v. United States, 133 S. Ct. 2151,
2163, 186 L. Ed. 2d 314, (2013), wherein the United States Supreme
Court held that a criminal defendant has a constitutional right to have a jury
decide the existence of any fact, other than a prior conviction, beyond a
reasonable doubt if that fact triggers application of a mandatory minimum
sentence.
Here, Alleyne has no application because DUI carries no mandatory
minimum sentence. See 75 Pa.C.S.A. § 3803(a) (“[a]n individual who
violates section 3802(a) (relating to [DUI]) and has no more than one prior
offense commits a misdemeanor for which the individual may be sentenced
to a term of imprisonment of not more than six months and to pay a fine
under section 3804 (relating to penalties)”). Although an individual who
commits DUI where a minor under 18 years of age was an occupant in the
vehicle commits a first-degree misdemeanor under 75 Pa.C.S.A.
§ 3803(b)(5), a first-degree misdemeanor likewise carries no mandatory
3
To the extent that appellant is raising an issue as to jury instructions, such
challenge is waived on appeal due to trial counsel’s lack of any request or
objection at trial. See Commonwealth v. Parker, 104 A.3d 17, 29
(Pa.Super. 2014); see also Pa.R.A.P. 302(b).
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minimum sentence. See 18 Pa.C.S.A. 106(b)(6) (“a person convicted [of a
first-degree misdemeanor] may be sentenced to a term of imprisonment,
the maximum of which is not more than five years”).
Appellant then argues:
It is instantly apparent that the jury was never
charged on the issue of whether a minor was present
and the jury could not have found this element
beyond a reasonable doubt. Therefore, the
maximum permissible sentence would have been
6 months rendering the sentence actually imposed
(i.e., 48 hours to 23 months[)] illegal. Accordingly,
this matter must be remanded for resentencing
within the statutory maximum of 6 months.
Appellant’s brief at 15.
Our supreme court has held that:
[I]n cases where the fact which increases the
maximum penalty is not a prior conviction and
requires a subjective assessment, anything less than
proof beyond a reasonable doubt before a jury
violates due process. Additionally, any judicial
finding which results in punishment beyond the
statutory maximum must be submitted to a jury and
proven beyond a reasonable doubt.
Commonwealth v. Aponte, 855 A.2d 800, 811 (Pa. 2004) (citation
omitted).
Here, Aponte has no application because the trial court did not
increase appellant’s punishment based on a judicial finding that a minor was
present in the vehicle when appellant committed her DUI. The record
reflects that the trial court sentenced appellant on the DUI to 48 hours to
6 months of incarceration. The record further reflects that the trial court
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imposed a concurrent sentence of 9 to 23 months’ incarceration on the
involuntary manslaughter charge that appellant pled guilty to. Therefore,
appellant has already received the relief that she now requests -- a legal
sentence of 6 months’ incarceration on her DUI conviction. Accordingly, this
claim lacks merit.
In her second issue, appellant contends that the trial court abused its
discretion by not conducting a colloquy to determine that appellant’s
decision to stipulate to the fact that her 2-year-old son was in the vehicle
when she committed her DUI was knowing, intentional, and voluntary. We
need not decide this issue because the trial court did not sentence appellant
under 75 Pa.C.S.A. § 3803(b)(5) (person who commits DUI with minor in
vehicle commits a first-degree misdemeanor may be sentenced to 5 years of
imprisonment).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2016
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