J-S22037-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TURRELL MARTELL BOMAR-SWEET :
:
Appellant : No. 1584 MDA 2019
Appeal from the Judgment of Sentence Entered August 6, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000309-2019
BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED MAY 28, 2020
Appellant, Turrell Martell Bomar-Sweet, appeals from the judgment of
sentence of one to three years of confinement, which was imposed after he
pleaded guilty to: driving under the influence (“DUI”) – general impairment -
- incapable of safely driving – third offense; DUI – high rate of alcohol (“alcohol
concentration in the individual’s blood or breath is at least 0.10% but less than
0.16%”) – third offense; DUI – controlled substance -- combined influence of
alcohol and a drug – third offense; failure to drive within single lane; careless
driving; and failure to use restraint systems -- driver and front seat occupant.1
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
175 Pa.C.S. §§ 3802(a)(1), (b), (d)(3), 3309(1), 3714(a), and 4581(a)(2)(ii),
respectively.
J-S22037-20
We vacate the judgment of sentence and remand for further proceedings
consistent with this decision.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. See Trial Court Opinion, dated
November 12, 2019, at 1-2. Therefore, we have no reason to restate them
at length here. For the convenience of the reader, we briefly note that,
following his plea and sentencing, “[o]n August 12, 2019, Appellant filed a
Motion for Modification of Sentence requesting that he be made Recidivism
Risk Reduction Incentive (‘RRRI’) eligible[,]” which the trial court granted on
August 29, 2019. Id. at 2. On September 27, 2019, Appellant filed this timely
direct appeal.2
Appellant presents the following issue for our review:
Whether the trial court enacted an illegal sentence on Appellant
by imposing an aggregate sentence of one (1) to three (3) years
of incarceration for failure to obtain a court reporting network
[(“CRN”)] evaluation?
Appellant’s Brief at 4.
“When reviewing the legality of a sentence, our standard of review is de
novo and our scope of review is plenary.” Commonwealth v. Lekka, 210
A.3d 343, 355 (Pa. Super. 2019) (citation omitted).
____________________________________________
2 Appellant filed his statement of errors complained of on appeal on
October 28, 2019. The trial court entered its opinion on November 12, 2019.
-2-
J-S22037-20
Appellant’s sole contention is that he should not have been sentenced
prior to receiving a CRN evaluation. Appellant’s Brief at 11.
Section 3816(a) of the Vehicle Code states, in pertinent part:
In addition to any other requirements of the court, every person
convicted of a violation of section 3802 (relating to driving under
influence of alcohol or controlled substance) . . . shall, prior to
sentencing . . . , be evaluated using [CRN] instruments issued by
the department and any other additional evaluation techniques
deemed appropriate by the court to determine the extent of the
person’s involvement with alcohol or controlled substances and to
assist the court in determining what sentencing . . . would benefit
the person or the public.
75 Pa.C.S. § 3816(a). A CRN evaluation is “[a] uniform prescreening
evaluation procedure for all DUI offenders to aid and support clinical treatment
recommendations offered to the judiciary, prior to sentencing.” 67 Pa. Code
§ 94.2.
Appellant is correct that a CRN evaluation is mandatory following a DUI
conviction, and the trial court should have deferred sentencing until it was
completed:
The plain language of section 3816(a) requires that an individual
undergo a CRN evaluation after being convicted of DUI[.] . . . As
section 3816 makes clear, a CRN evaluation contemplates a
thorough and professional assessment to assist our trial courts in
identifying the sentencing options that would best benefit the
defendant and the public. See 75 Pa.C.S.A. § 3816.
Commonwealth v. Parsons, 166 A.3d 1242, 1247-48 (Pa. Super. 2017)
(emphasis added). Accordingly, we are constrained to vacate Appellant’s
judgment of sentence and to remand for resentencing following Appellant’s
CRN evaluation.
-3-
J-S22037-20
We recognized the copious notice of the need for a CRN evaluation that
Appellant received prior to sentencing, as the trial court explained:
All DUI offenders [in Dauphin County] receive a one (1) page
notice regarding the requirement for a CRN evaluation at the time
of their preliminary hearing. The notice explains the purpose and
procedure for obtaining a CRN evaluation as well as informs DUI
offenders of the information that is required to complete the CRN
evaluation. . . . Appellant would have received the one (1) page
notice to DUI offenders of the requirement for a CRN evaluation
at his preliminary hearings on January 31, 2017 and January 23,
2018.
Trial Court Opinion, dated November 12, 2019, at 4. Appellant does not allege
that he did not receive this notice. See Appellant’s Brief at 10-13.
Nevertheless, although we recognize that vacating Appellant’s judgment
of sentence and remanding for a CRN evaluation and resentencing allows
Appellant to have a proverbial second bite of the apple, even though he failed
to avail himself of the opportunity to have a CRN evaluation despite all of this
notice of the need for said evaluation, we cannot ignore the plan language of
75 Pa.C.S. § 3816(a) mandating a CRN evaluation prior to sentencing for DUI.
See Commonwealth v. Gosselin, 861 A.2d 996, 1000 (Pa. Super. 2004)
(“[t]he basic tenet of statutory construction requires a court to construe the
words of the statute according to their plain meaning”).
In conclusion, we remand to allow Appellant to obtain a CRN evaluation,
which he must do within 30 days of the date that the certified record is
returned to the trial court. The trial court may, by written order, extend the
date by which Appellant must have his CRN evaluation completed if, and only
if, the delay in obtaining the evaluation is directly related to the coronavirus
-4-
J-S22037-20
disease 2019 (“COVID-19”) pandemic. While we would normally include a
date by which the new sentencing hearing must occur after the CRN
evaluation, we are reluctant to issue a specific timeline, again due to the ways
in which the COVID-19 pandemic has affected court scheduling. Instead, we
relinquish jurisdiction at this time, and we direct the court and the parties to
comply with the standard timing requirements as much as possible.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2020
-5-