J-S25023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN DOUGLAS RICHAEL :
:
Appellant : No. 1466 WDA 2017
Appeal from the Judgment of Sentence September 8, 2017
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0002013-2016
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 31, 2018
Kevin Douglas Richael appeals from the judgment of sentence entered
in the Mercer County Court of Common Pleas following his guilty plea. Richael
asserts the trial court incorrectly sentenced him as a second time DUI offender
based upon a faulty interpretation of the “look-back” provision in 75 Pa.C.S.A.
§ 3806(b). We affirm.
On March 10, 2017, Richael was charged with two counts of driving
under the influence (DUI) and related summary offenses. These charges arose
from a single-vehicle accident on September 1, 2016. On April 10, 2017,
Richael pleaded guilty to DUI–highest rate of alcohol, as a second-time
offense.1 The Commonwealth nolle prossed all remaining charges.
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1 Following a guilty plea, an appellant waives his right to “challenge on appeal
all non-waivable jurisdictional defects except the legality of his sentence and
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Richael appeared for sentencing on September 8, 2017. Prior to the
imposition of sentence, Richael argued that his prior DUI offense, which
occurred on December 4, 2006, and for which he was admitted to an
accelerated rehabilitative disposition (ARD) on February 8, 2007, did not fall
within the ten year look-back period set forth in § 3806(b) of the Motor Vehicle
Code. Therefore, Richael claimed he was improperly charged as a second-time
offender. The trial court disagreed, and sentenced Richael to three to eighteen
months’ imprisonment, followed by a six-month probationary period. This
timely appeal follows.
On appeal, Richael asserts that the trial court misinterpreted the ten-
year look back period for second offenses as set forth in 75 Pa.C.S.A. §
3806(b). Specifically, Richael contends that the trial court erred by calculating
the ten-year look-back period from the date of the current offense to the date
of ARD disposition for the prior offense, rather than from the date of
sentencing for the current offense to the date of ARD disposition for the prior
offense. As the date of sentencing for his current offense was more than ten
years after the disposition of his previous offense, Richael claims that he
should have been sentenced as a first-time offender.
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the validity of his plea.” Commonwealth v. Rush, 909 A.2d 805, 807 (Pa.
Super. 2006) (citation omitted). However, a claim that a court improperly
graded an offense for sentencing purposes implicates the legality of a
sentence. See Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super.
2004). Therefore, despite Richael’s plea to the second-offense DUI, we are
able to address his claim concerning the grading of his offense on appeal.
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This issue presents a question of statutory interpretation; therefore, our
standard of review is de novo and our scope of review is plenary. See
Commonwealth v. Haag, 981 A.2d 902, 904 (Pa. 2009) (citation omitted).
In all matters involving statutory interpretation, we apply the
Statutory Construction Act, 1 Pa.C.S. §§ 1501 et. seq, which
directs us to ascertain and effectuate the intent of the General
Assembly. To accomplish that goal, we interpret statutory
language not in isolation, but with reference to the context in
which it appears. A statute’s plain language generally provides the
best indication of legislative intent. Only where the words of a
statute are ambiguous will we resort to other considerations to
discern legislative intent.
Commonwealth v. Kingston, 143 A.3d 917, 922 (Pa. 2016) (citations and
parentheticals omitted).
Here, Richael pled guilty to DUI-highest rate of alcohol, under § 3802(c)
of the Motor Vehicle Code. See 75 Pa.C.S.A. § 3802(c). In order to determine
the appropriate grading and sentencing for Richael’s offense, the trial court
consulted the framework provided in § 3606 of the Motor Vehicle Code. This
section, which Richael claims the trial court misinterpreted, provides:
§ 3806. Prior Offenses
(a) General rule. – Except as set forth in subsection (b), the
term “prior offense” as used in this chapter shall mean any
conviction for which … acceptance of Accelerated
Rehabilitative Disposition or other form of preliminary
disposition before the sentencing on the present violation
for any of the following:
(1) an offense under section 3802 (relating to
driving under the influence of alcohol or
controlled substance);
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(b) Timing. –
(1) For purposes of sections … 3803 (relating to
grading), 3804 (relating to penalties) …, the
prior offense must have occurred:
(i) within 10 years prior to the date of
the offense for which the defendant
is being sentenced; or
(ii) on or after the date of the offense
for which the defendant is being
sentenced[.]
A panel of this Court recently applied the rules of statutory interpretation
to the look-back provision of § 3806(b) in Commonwealth v. Mock, 186
A.3d 434 (Pa. Super. 2018). There, the panel found that, “[u]nder subsection
(a), a ‘prior offense’ is defined as ‘any’ of the enumerated dispositions …
occurring ‘before the sentencing on the present violation[.]’” Id., at 437
(quoting 75 Pa.C.S.A. § 3806(a) (emphasis in original). Based upon their
interpretation of this provision, the panel held that a “prior offense” is
appropriately used to increase the grading of a defendant’s DUI if (1) the
previous offense was under § 3802; (2) the disposition of the previous offense
occurred before sentencing on the current offense; and (3) the disposition of
the previous offense occurred within ten years prior to the date the defendant
committed the current offense. See id., at 437-438.
Richael committed his current offense on September 1, 2016. Therefore,
pursuant to Mock, the appropriate ten-year look-back period runs backwards
from that date—to September 1, 2006. As the disposition for Richael’s
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previous DUI did not occur until his acceptance into ARD on February 8, 2007,
this offense clearly falls within the ten-year look-back period. Because Richael
does not dispute the fact that his previous DUI fell under § 3802 and was
disposed of prior to sentencing on his current offense, the trial court properly
considered this a “prior offense” for the purpose of grading Richael’s DUI as a
second-offense, rather than a first-offense. Richael’s assertion otherwise is
meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2018
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