J-A11044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES ANDREW HICKS, III :
:
Appellant : No. 1656 MDA 2019
Appeal from the Judgment of Sentence Entered October 11, 2018
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001598-2015
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 03, 2020
Appellant Charles Andrew Hicks, III, appeals from the Judgment of
Sentence entered in the Court of Common Pleas of Franklin County on October
11, 2018, imposed following revocation of his intermediate punishment.
Following our review, we affirm.
The trial court set forth the relevant facts and procedural history herein
as follows:
[Appellant] entered into an agreement whereby he pled
guilty to DUI Refusal - 2nd Offense Tier 3. On September 16,
2015, [Appellant] was sentenced to intermediate punishment for
a period of 60 months with 30 days to be served in the Franklin
County Jail Weekender Program, 120 days of electronic
monitoring and alcohol monitoring followed by two months of
alcohol monitoring. A petition was filed alleging that he had
violated his agreement in the following ways:
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* Former Justice specially assigned to the Superior Court.
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1) Testing positive for marijuana and providing an
adulterated urine sample;
2) Testing positive for cocaine and being untruthful
about using cocaine;
3) Violating home arrest schedule;
4) Failing to complete his community service hours;
5) Failing to enroll in Drug and Alcohol Treatment; and
6) Failing to pay his $19,290.32 in restitution, fines and
costs.
On August 1, 2018, [Appellant] was resentenced after being
found in violation of intermediate punishment. The sentence
imposed was 30 to 60 months of imprisonment in a State
Correctional Institution with credit for time previously served. On
August 13, 2018, the Defendant filed a Post-Sentence Motion
Pursuant to Pa.R.Crim.P 720(B) ("Post Sentence Motion") and was
represented by Attorney Cayla E. Amsley-Mummert. A hearing
was held on September 25, 2018. This Court denied the Post
Sentence Motion on October 16, 2018. A notice of appeal to the
Superior Court was not filed by counsel. [Appellant] filed a pro se
Post Conviction Relief Act (PCRA) Petition on April 18, 2019. This
Court appointed Erich E. Hawbaker as counsel for [Appellant] for
the purposes of the PCRA Petition. An Amended PCRA Petition was
filed on June 24, 2019. The Commonwealth filed an Answer to the
Amended PCRA. Petition on July 18, 2019. A hearing was held on
August 22, 2019.
This Court found [Appellant’s] claim of ineffectiveness of
counsel had merit, that there was no justifiable rationale for
counsel's failure to file a notice of appeal to the Superior Court,
and that the failure to file a direct appeal was prejudice per se. By
Order of Court on September 5, 2019, this [c]ourt granted
[Appellant’s] PCRA ineffectiveness of counsel claim and reinstated
[Appellant’s] right to appeal to the Superior Court nunc pro tunc.
[Appellant] filed a Notice of Appeal on October 4, 2019 and filed
a Concise Statement of Matters Complained of on Appeal
(“Concise Statement”) on October 24, 2019.
Trial Court’s “Opinion sur PA.R.A.P. 1925(a) and Order of Court,” filed
10/29/19, at 1-3.
When addressing the claims Appellant presented on appeal in its
October 29, 2019, Opinion, the trial court referenced the analysis it had
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previously set forth in its October 16, 2018, Opinion, written in support of its
denial of Appellant’s post-sentence motion. Id. at 4. In his appellate brief,
Appellant presents two questions for our review:
A. Did the Sentencing Court err by imposing an illegal sentence
of greater than six (6) months of incarceration on August 1, 2018?
B. Did the Sentencing Court err by sentencing [Appellant] to
enhanced criminal penalties for refusal to submit to an
unconstitutional warrantless blood test incident to arrest for drunk
driving?
Brief of Appellant at 6.1
Initially, we note that an intermediate punishment sentence is
analogous to a sentence of probation. This Court reviews a sentence imposed
following a revocation of probation for an error of law or an abuse of discretion.
Accordingly, we apply that same standard in reviewing revocation of
Appellant's intermediate punishment sentence. Commonwealth v. Flowers,
149 A.3d 867, 872–73 (Pa.Super. 2016). “[I]n an appeal from a sentence
imposed after a trial court’s revocation of probation, this Court can review the
validity of the revocation proceedings, the legality of the sentence imposed
following revocation, and any challenge to the discretionary aspects of the
____________________________________________
1 On March 24, 2020, the Commonwealth filed a letter dated March 19, 2020,
with this Court wherein it indicated an appellate brief would not be
forthcoming, as it was “in agreement with the trial Court’s Opinion that the
issues raised by Appellant are without merit.”
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sentence imposed.” Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.
Super. 2015) (citation omitted).
Herein, Appellant does not challenge the trial court’s finding on August
1, 2018, that he committed multiple violations of the intermediate punishment
sentence he had received following his guilty plea in 2015. Rather, Appellant
first argues that “an individual who violates 75 Pa.C.S. § 3802(a) and has no
more than one prior offense may only be sentenced to a term of imprisonment
of no more than six months, even if the offense is graded as a first degree
misdemeanor.” Brief of Appellant at 14. In reaching this conclusion, Appellant
relies upon this Court’s holdings in Commonwealth v. Musau 69 A.3d 754
(Pa.Super. 2013), superseded by statute, and Commonwealth v. Grow 122
A.3d 425 (Pa.Super. 2015), superseded by statute, which he admits were
decided using the now-obsolete phrase “’Notwithstanding the provisions of
subsection (b) in 75 Pa.C.S.A. § 3803(a)’ and replaced [] with the phrase,
‘Except as provided in subsection (b).’” Brief of Appellant at 12. Nevertheless,
Appellant reasons that “grading the offense as a misdemeanor of the first
degree has effects beyond the length of sentence that may be imposed. . .
Thus, an individual who violates 75 Pa.C.S.A. § 3802(a) and has no more than
one prior offense may only be sentenced to a term of imprisonment of no
more than six months, even if the offense is graded as a first degree
misdemeanor.” Id. at 13.
In rejecting this argument, the trial court reasoned as follows:
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[Appellant] avers the language of Section 3803(a) takes
precedence over Section 3803(b)(4). According to [Appellant], the
language in Section 3803(a) stating that an individual that
violates Section 3802(a) and has no more than one prior offense
"may be sentenced to a term of imprisonment of not more than
six months," 75 Pa.C.S.A. § 3803(a)(1), supersedes the more
specific language in Section 3803 (b)(4). Section 3803 (b)(4)
contains language indicating that an individual who violates
Section 3802 where the individual refused blood or breath testing
and who also has one or more prior offenses commits a
misdemeanor of the first degree. 75 Pa.C.S.A. § 3803 (b)(4).
[Appellant’s] reading of the statute is mirrored by the Musau
decision of 2013. Musau, 69 A3d at 758. The central problem with
this reasoning is that the statutory language relied upon in the
Musau decision has since been amended. The General Assembly
amended 75 Pa.C.S.A. Section 3803(a) to eliminate the phrase
"Notwithstanding the provisions of subsection (b)" and substituted
the phrase "Except as provided in subsection (b)," which gave
subsection (b) precedence over the provisions of subsection (a) of
Section 3803.1 The language relied upon by the Musau Court for
its holding has been significantly altered, so its holding regarding
the maximum permissible sentence and can only he applied to
cases prior to the General Assembly's alteration of the language
in 2014. See Commonwealth v. Grow, 122 A.3d 425, 427-28
(Pa.Super, 2015). In the instant case, this [c]ourt finds that since
[Appellant] committed the crime and was sentenced after the
General Assembly's modification of the language in 2014, it is
Section 3802(b)(4) that controls. The language in paragraph
(b)(4) more specifically aligns with the facts of the instant case:
"he who violates Section 3802(a)(1) where the individual refused
testing of blood or breath...and who has one or more prior
offenses commits a misdemeanor of the first degree." 75
Pa.C.S.A. § 3803 (b)(4).
II. Whether Musau Controls With Reaard to the Six –Month
Incarceration Limitation
[Appellant] argues that even if Section 3802(b)(4) controls
and the crime to which [Appellant] pled guilty is accurately graded
as a first degree misdemeanor, the Musau holding continues to
mandate a sentence of no more than six months[’] incarceration
for a second DUI offense. [Appellant] cites no case law in support
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of this argument decided since the amendment of the applicable
grading statute in 2014. This [c]ourt finds this argument without
merit since the General Assembly amended Section 3803 to give
precedence to paragraph (b) over paragraph (a) when one of five
(5) scenarios is more specifically applicable.2
This [c]ourt finds that the legislature removed the ambiguity
in precedence between paragraphs (a) and (b) in order to more
specifically indicate instances where certain conduct is deemed
more serious, and therefore warrants more serious punishment.
Commonwealth v. Wilson, 111 A.3d 747, 753 (Pa. Super. 2015)
(articulating why paragraph (b)(5) takes precedence over
paragraph (b)(1) “the legislature made a policy decision to impose
more severe sanctions on those who endanger children by
operating a vehicle while impaired. Accordingly, the trial court did
not err in sentencing Appellant to 12 months of probation plus 4
days at a DUI alternative program. The sentence did not exceed
the statutory maximum of 5 years for a first degree misdemeanor
pursuant to Section 3803(b)(5).”).3 The Superior Court did not
find that Musau's limitation of six months imprisonment controlled
in a scenario covered by Section 3803(b)(5), so the logical
conclusion is that Musau does not control in the instant case where
the language of Section 3803(b)(4) is applicable. Additionally, the
specific issue on appeal in Wilson was whether a sentence is illegal
“when a person receives a sentence exceeding the statutory
maximum of six months on a first time DUI conviction under 75
Pa.C.S.A. § 3803(b), even though the offense is graded as a first
degree misdemeanor.” The logical conclusion is that the Superior
Court in Wilson did not find an exception to the normal length of
sentence permissible for a first degree misdemeanor, even after
contemplating the Muscau decision, the subsequent amendment
to Section 3803, and the shorter sentences mandated by a first or
second DUI offense in the statute itself where less specific and
less grievous offenses are articulated.
__
1Act of October 27, 2014, P.L 2905, No 189.
2 The General Assembly amended 75 Pa.C.S.A. Section 3803(a)
to eliminate the phrase “Notwithstanding the provisions of
subsection (b)” and substituted the phrase “Except as provided in
subsection (b),” which gave subsection (b) precedence over the
provisions of subsection (a) of Section 3803.
3 In Commomveallh v. Wilson, the Pennsylvania Superior Court
found the language in 75 Pa.C.S.A. § 3803(b)(5) where an
individual “violates Section 3802 where a minor under 18 years of
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age was an occupant in the vehicle when the violation occurred
commits a misdemeanor of the first degree” sufficient to justify
the ordinary maximum punishment for misdemeanor of the first
degree, which is five (5) years imprisonment. The Superior Court's
Wilson decision was filed on February 18, 2015, which is after the
2014 amendments to Section 3803 which clarified the precedence
between paragraphs (a) and (b). Wilson. 111 A.3d at 750. §
3803(b)(4) language is identical to § 3803(b)(5) with regard to
the grading designation: “commits a misdemeanor of the first
degree.” 75 Pa.C.S.A. § 3803.
Trial Court Opinion, filed 10/17/18, at 4-7.
We find no error in the trial court’s reasoning. Thus, for the reasons
the trial court set forth, we do not find that Appellant’s re-sentence of more
than six months was illegal.
Appellant next posits the resentencing that occurred on August 1,
2018, was unconstitutional in light of the United States Supreme Court’s
decision entered on June 23, 2016, in Birchfield v. North Dakota, 136 S.Ct.
2160 (2016) which held that states could not criminally punish a defendant's
refusal to submit to warrantless blood test for blood alcohol content. Appellant
avers “his judgment of sentence was not final in 2015,” and that his “judgment
of sentence is still not yet final, and he is entitled to relief as the sentence
imposed on August 1, 2018, has been rendered illegal by Birchfield.” Brief of
Appellant at 11, 15. Appellant reasons this is so because on September 5,
2019, his appeal rights had been reinstated nunc pro tunc, following the trial
court’s finding merit to Appellant’s ineffective assistance of counsel claims
raised in his timely-filed PCRA petition Id. at 15.
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The trial court disagreed with Appellant’s analysis and found Birchfield
inapplicable in light of the fact that Appellant had reached a plea agreement
and was originally sentenced on September 16, 2015. The trial court
explained:
In the instant case, the original length of the sentence in
September 2015 was 60 months. This [c]ourt was within its
discretion to administer this sentence based upon the
misdemeanor of the first degree charge for which [Appellant] pled
guilty. 101 Pa. Code § 15.66(b)(6). This [c]ourt permitted
[Appellant] to enter the Restrictive Intermediate Punishment
program and to spend minimal time incarcerated while he
participated in alcohol monitoring. [Appellant] violated this
agreement and was resentenced to 30 to 60 months[’]
incarceration just as this [c]ourt was authorized to do at the time
of the original sentencing according to 42 Pa.C.S. Section 9773.
The [c]ourt finds that this resentencing was the imposition of the
old sentence given on September 16, 2015 and that it was not
subject to the holding of Birchfeld because the holding is not
retroactive in Pennsylvania for cases on collateral review and this
[c]ourt is within its discretion to resentence a violator of
intermediate punishment to any sentence that would have been
available at the time of the original sentence.
***
The [c]ourt finds that Birchfield is not retroactive for cases
on collateral appeal, so the holding in the case is not applicable to
[Appellant’s] sentence in the instant case. A resentence is not a
new sentence. At [Appellant’s] resentencing on August 1, 2018,
this [c]ourt had the discretion to sentence [Appellant] to any
sentence authorized by statute for a misdemeanor of the first
degree because this [c]ourt had the discretion to do the same on
September 16, 2015 when [Appellant] was sentenced for the first
time in the instant case.
Trial Court Opinion, filed 10/17/18, at 9, 10. We agree.
Following his September 16, 2015, plea, Appellant did not file a direct
appeal. Therefore, his judgment of sentence became final on or about October
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16, 2015. Pa. R.A.P. 903(a) (stating a notice of appeal shall be filed within
thirty days after the entry of the order from which the appeal is taken). Nearly
three years later, Appellant was re-sentenced on August 1, 2018, after the
trial court found him to be in violation of his intermediate punishment
sentence, a finding which he does not challenge herein, and revoked his
probation. As a result, the trial court clearly had the authority to resentence
Appellant.
“Upon revocation the sentencing alternatives available to the court
shall be the same as were available at the time of initial sentencing, due
consideration being given to time spent serving the order of probation.” 42
Pa.C.S.A. 9771(b) (emphasis added). In addition, as previously stated, in an
appeal from a sentence imposed after a trial court’s revocation of probation,
this Court can review legality of the sentence imposed following
revocation. Wright, supra at 136 (emphasis added).
Appellant’s assertion to the contrary, the issue herein is not whether
the trial court imposed enhanced criminal penalties upon him for his refusal
to submit to chemical testing, but rather whether the trial court legally
sentenced Appellant following its finding he had committed multiple violations
while he was involved in the restrictive intermediate punishment program.
The latter sentence was not a continuation of the first, for had Appellant not
violated the terms of his September 16, 2015, sentence from which he did not
file an appeal, that sentence would still stand. The judgment of sentence
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entered on August 1, 2018, constituted a new sentence in light of new
charges, and at that time the trial court had available to it the sentencing
alternatives that had been available at the time of the initial sentence. See
42 Pa.C.S.A. 9771(b). Appellant’s ability to file an appeal nunc pro tunc
pertained to his right to appeal the re-sentence entered on August 1, 2018.
Moreover, even were we to accept Appellant’s view that his timely PCRA
petition entitles him to a review of his illegality claim based on Birchfield, as
a matter of first impression, the Pennsylvania Supreme Court recently held
that Birchfield did not constitute a new rule of law that applied retroactively
on post-conviction review. Commonwealth v. Olson, 218 A.3d 863 (Pa.
2019). In doing so, the Court reasoned that “[b]ecause Birchfield did not
set forth a ‘categorical constitutional guarantee’ that places criminal
punishment for blood test refusal ‘altogether beyond the State's power to
impose,’ id. at 729, but, rather, established a procedural requirement that,
once satisfied, authorizes that punishment, the Birchfield rule is not
substantive. Accordingly, Birchfield does not apply retroactively on post-
conviction collateral review.” Id. at 875. Therefore, in light of all of the
foregoing, Appellant is not entitled to relief.
Judgment of Sentence Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/03/2020
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