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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JARROD LaMONTE PENN, : No. 536 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, January 21, 2016,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0004623-2015
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 28, 2017
Jarrod LaMonte Penn appeals from the judgment of sentence of
January 21, 2016, following his conviction of driving under the influence
(“DUI”) – general impairment.1 We vacate and remand for resentencing.
The trial court summarized the facts of this matter as follows:
On May 2, 2015, at approximately 1:55 a.m.
Officers Dave Ford and Shane Laird of the Marcus
Hook Police Department were on duty in a marked
patrol vehicle. At or about that time, they were
behind a maroon Chevy Impala bearing a Delaware
State registration in the area of 10th and Church
Streets in Marcus Hook, Delaware County,
Pennsylvania. Both vehicles were traveling in the
eastbound lane of traffic. Officer Ford testified that
he observed the subject vehicle swerve to the left
crossing over the double yellow line into the
oncoming westbound lane of traffic. Shortly
thereafter it swerved back to the right and
1
75 Pa.C.S.A. § 3802(a)(1).
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subsequently on two (2) occasions swerved to the
right and crossed over the solid white line that the
officer referred to as the fog line on the right side of
the roadway onto the shoulder. (N.T. 1/21/16 p. 7.)
At that time, the officer activated his emergency
lights and conducted a traffic stop of the vehicle.
The driver and sole occupant of the vehicle was the
Appellant, Jared Penn. (N.T. 1/21/16 p. 8.)
Subsequently, the officer testified that when he
approached the Appellant, who rolled down his
window, he immediately detected an odor of
alcoholic beverages coming from the breath and
person of the Appellant, that the Appellant had
glassy, bloodshot eyes, spoke with slurred speech
and appeared lethargic. (N.T. 1/21/16 p. 9.) The
officer testified that he asked the Appellant to exit
the vehicle and conducted three (3) field sobriety
tests all of which the Appellant failed. (N.T. 1/21/16
pp. 9-12.) While the Appellant was standing outside
of the car, the officer noticed additionally that the
Appellant’s “coordination was off” and his
“comprehension wasn’t there” and he then asked the
Appellant to submit to a preliminary breath test
(PBT)[2] and he refused. (N.T. 1/21/16 p. 12.) The
2
(k) Prearrest breath test authorized.--A police
officer, having reasonable suspicion to believe
a person is driving or in actual physical control
of the movement of a motor vehicle while
under the influence of alcohol, may require
that person prior to arrest to submit to a
preliminary breath test on a device approved
by the Department of Health for this purpose.
The sole purpose of this preliminary breath test
is to assist the officer in determining whether
or not the person should be placed under
arrest. The preliminary breath test shall be in
addition to any other requirements of this title.
No person has any right to expect or demand a
preliminary breath test. Refusal to submit to
the test shall not be considered for purposes of
subsections (b) and (e) [(relating to refusal)].
75 Pa.C.S.A. § 1547(k).
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officer subsequently testified that based on his
training, experience, and observations of the
defendant that evening, he felt that the Appellant
was under the influence of alcohol at that time to
such a degree wherein he could not safely operate a
motor vehicle. The Appellant was subsequently
placed under arrest and transported to the police
station. (N.T. 1/21/16 p. 13.) At the station,
Appellant was given his implied consent warning and
he refused the chemical test. (N.T. 1/21/16 pp. 14-
16.)
The Appellant subsequently testified that he
had advised the police officers that he was not
drinking (N.T. 1/21/16 p. 51), that he could not
properly perform the field sobriety tests due to his
medical issues including lower back arthritis, retina
issues, and prior surgery wherein a rod was
implanted in his leg. (N.T. 1/21/16 pp. 53-54.) He
further testified that he refused the PBT test because
the officer took it out of his trunk, it was not
wrapped up and he felt it was not sanitary. (N.T.
1/21/16 pp. 54-55.) He further testified that he
never was shown the DL26[3] refusal form (N.T.
1/21/16 p. 59) and that he did in fact wish to have a
blood test conducted. (N.T. 1/21/16 pp. 61-62.)
Trial court opinion, 6/7/16 at 1-3.
On January 21, 2016, following a non-jury trial, appellant was found
guilty of one count of DUI – general impairment. Appellant waived a
pre-sentence investigation and received the mandatory sentence of 72 hours
to 6 months’ imprisonment and a $1,000 fine pursuant to 75 Pa.C.S.A.
3
The DL–26 form contains warnings of the potential consequences of a
person’s refusal to consent to a blood test, including that the individual’s
license could be suspended for at least one year, and that if convicted of
violating 75 Pa.C.S.A. § 3802(a), the individual will face more severe
penalties because of the refusal.
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§ 3804(c)(1).4 No post-sentence motions were filed; however, on
February 19, 2016, appellant filed a timely notice of appeal. Appellant was
ordered to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) within 21 days and timely complied on
March 10, 2016, challenging the sufficiency of the evidence to support his
conviction of DUI – general impairment under 75 Pa.C.S.A. § 3802(a)(1).
On June 7, 2016, the trial court filed a Rule 1925(a) opinion addressing the
sufficiency issue.
4
(c) 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:
(1) For a first offense, to:
(i) undergo imprisonment of
not less than 72
consecutive hours;
(ii) pay a fine of not less than
$1,000 nor more than
$5,000;
(iii) attend an alcohol highway
safety school approved by
the department; and
(iv) comply with all drug and
alcohol treatment
requirements imposed
under sections 3814 and
3815.
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On appeal, appellant raises the following issue for this court’s review:
I) Whether the sentence was illegal where the
trial court relied on [appellant]’s refusal of a
blood test to impose the tier three mandatory
minimum of 72 hours for a first offense DUI
which is in direct contravention to the ruling in
the recent United States Supreme Court case
of Birchfield v. North Dakota[, U.S. ,
136 S.Ct. 2160 (2016)] which invalidates any
criminal sanction assessed for refusing to take
a blood test[?]
Appellant’s brief at 7 (unnecessary capitalization deleted).
Initially, we note that appellant did not raise this issue in the court
below; in his Rule 1925(b) statement, he only challenged the sufficiency of
the evidence to support the conviction. However, the issue goes to the
legality of appellant’s sentence, which is non-waivable. See
Commonwealth v. Barnes, A.3d , 2016 WL 7449232 at *5 (Pa.
Dec. 28, 2016) (“[W]here the mandatory minimum sentencing authority on
which the sentencing court relied is rendered void on its face, and no
separate mandatory authority supported the sentence, any sentence entered
under such purported authority is an illegal sentence for issue preservation
purposes on direct appeal.”); Commonwealth v. Edrington, 780 A.2d 721,
723 (Pa.Super. 2001), citing Commonwealth v. Vasquez, 744 A.2d 1280
(Pa. 2000) (application of a mandatory sentencing provision implicates the
legality of the sentence, not the discretionary aspects of the sentence). In
addition, Birchfield was decided on June 23, 2016, after appellant’s
sentence but during the pendency of the instant appeal. Where a United
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States Supreme Court decision “results in a ‘new rule,’ that rule applies to all
criminal cases still pending on direct review.” Schriro v. Summerlin, 542
U.S. 348, 351 (2004).
In Birchfield, as in this case, the defendant refused a blood test after
being read his implied consent warnings.5 He was advised that his refusal to
undergo blood alcohol content (“BAC”) testing would expose him to criminal
penalties. Birchfield, 136 S.Ct. at 2170. Birchfield pled guilty to a
misdemeanor violation of the North Dakota refusal statute but argued that
the Fourth Amendment prohibited criminalizing his refusal to submit to the
test. Id. at 2170-2171. The United States Supreme Court agreed and
reversed Birchfield’s conviction, holding that a State may not criminalize a
motorist’s refusal to comply with a demand to submit to blood testing.
The Birchfield Court distinguished between breath and blood tests,
which it found to be significantly more intrusive. Id. at 2184. The Court
determined that with regard to blood tests, the police must either seek a
warrant or show exigent circumstances. Id. The Court in Birchfield also
rejected the argument that warrantless blood tests are justified based on the
driver’s legally implied consent to submit to them:
5
As recounted above, appellant testified that he was never given his implied
consent warnings and, in fact, wanted to submit to a blood test. The trial
court, sitting as finder-of-fact, found appellant’s testimony to be not
credible. The trial court determined that the officers complied with the
implied consent law and that appellant refused to submit to chemical testing.
(Notes of testimony, 1/21/16 at 71.)
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Our prior opinions have referred approvingly to the
general concept of implied-consent laws that impose
civil penalties and evidentiary consequences on
motorists who refuse to comply. Petitioners do not
question the constitutionality of those laws, and
nothing we say here should be read to cast doubt on
them.
It is another matter, however, for a State not only to
insist upon an intrusive blood test, but also to
impose criminal penalties on the refusal to submit to
such a test. There must be a limit to the
consequences to which motorists may be deemed to
have consented by virtue of a decision to drive on
public roads.
Id. at 2185 (citations omitted).
The Commonwealth concedes that appellant’s mandatory minimum
sentence under Section 3804(c)(1)(i) for refusal was illegal under
Birchfield. We agree. Appellant cannot be subject to enhanced criminal
penalties for refusal to submit to a blood test. See also Commonwealth v.
Evans, A.3d , 2016 WL 7369120 at *8 (Pa.Super. Dec. 20, 2016)
(vacating the judgment of sentence and remanding for a re-evaluation of the
appellant’s purported consent where the appellant only consented to the
warrantless blood draw after being informed, by the police, that refusal to
submit to the test could result in enhanced criminal penalties, in violation of
Birchfield).6 Therefore, it is necessary to remand for resentencing without
consideration of the mandatory minimum sentence in Section 3804(c)(1)(i).
6
The Supreme Court in Birchfield consolidated three separate cases, one of
which was petitioner Steve Michael Beylund’s case. After Beylund’s arrest
for DUI, the officer informed him of North Dakota’s implied consent advisory
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Judgment of sentence vacated. Remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2017
and that “test refusal in these circumstances is itself a crime.” Birchfield,
136 S.Ct. at 2172. Beylund then agreed to the requested blood draw, and
testing revealed a BAC of 0.250%, more than three times the legal limit.
Id. Beylund appealed, principally arguing that his consent to the blood test
was coerced by the officer’s warning that refusing to consent would itself be
a crime. The North Dakota Supreme Court found that Beylund’s consent
was valid, emphasizing that North Dakota’s implied consent advisory was not
misleading because it truthfully related the penalties for refusal. The
Birchfield Court rejected this rationale:
The North Dakota Supreme Court held that Beylund’s
consent was voluntary on the erroneous assumption
that the State could permissibly compel both blood
and breath tests. Because voluntariness of consent
to a search must be determined from the totality of
all the circumstances, we leave it to the state court
on remand to reevaluate Beylund’s consent given the
partial inaccuracy of the officer’s advisory.
Id. at 2186 (citation and quotation marks omitted).
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