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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANA ROMER JACKSON :
:
Appellant : No. 725 WDA 2021
Appeal from the Judgment of Sentence Entered May 24, 2021
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-SA-0000016-2020
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: FEBRUARY 8, 2022
Appellant, Dana Romer Jackson, appeals from the judgment of sentence
entered on May 24, 2021, following his guilty plea to driving while operating
privilege is suspended or revoked (second offense).1 We affirm in part, vacate
in part, and remand for further proceedings.
We briefly summarize the facts and procedural history of this case as
follows. On May 24, 2021, Appellant pled guilty to driving while operating
privilege is suspended or revoked, his second violation. Pursuant to statute,
“[a] second violation of this [crime] shall constitute a summary offense and,
upon conviction [], a person shall be sentenced to pay a fine of $1,000[.00]
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. 1543(b)(1)(ii).
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and to undergo imprisonment for not less than 90 days.” 75 Pa.C.S.A.
§ 1543(b)(1)(ii). Accordingly, the trial court sentenced Appellant to 90 days
of house arrest and imposed a fine of $1,000.00. This timely appeal resulted.2
On appeal, Appellant raises the following issue for our review:
[Whether Appellant’s] sentence, imposed pursuant to the
provisions of 75 Pa.C.S.[A.] § 1543(b)(1)(ii), is unlawful, in that
the sentencing statute is unconstitutionally vague pursuant to the
analogous findings of Commonwealth v. Eid, 249 A.3d 1030 (Pa.
2021)[?]
Appellant’s Brief at 2.
In this case, the trial court agrees with Appellant’s contention that his
sentence is illegal:
[Appellant] raises a single issue in his appeal, namely, whether
the [trial c]ourt erred in sentencing him to 90 days of house arrest
pursuant to [S]ection 1543(b)(1)(ii) of the [Motor] Vehicle Code,
which [Appellant] argues is unconstitutionally vague and
ambiguous pursuant to the recent Pennsylvania Supreme Court
decision in Commonwealth v. Eid, 249 A.[3]d 1030 (Pa. 2021).
[Because the issue] involves illegality of his sentence[, it] cannot
be waived. Further, because the pertinent language of [Section]
1543(b)(1)(ii) is identical to that held unconstitutional in Eid, the
[trial court found] Eid to be controlling on the issue. Accordingly,
[the trial c]ourt recommends that [this C]ourt vacate the house
arrest portion of [Appellant’s] sentence, affirm the remainder of
the sentence, and remand for any necessary further proceedings.
Trial Court Opinion, 7/22/2021, at 1-2.
____________________________________________
2 Appellant filed a notice of appeal on June 23, 2021. On June 28, 2021, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 22, 2021.
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This Court has stated:
Issues relating to the legality of a sentence are questions of law.
When the legality of a sentence is at issue, our standard of review
over such questions is de novo and our scope of review is plenary.
If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence
must be vacated.
Commonwealth v. Ramos, 197 A.3d 766, 768–769 (Pa. Super. 2018).
(internal citations, quotations, and ellipses omitted).
A prior panel of this Court recently explained our Supreme Court’s
holding in Commonwealth v. Eid, 249 A.3d 1030 (Pa. 2021) as follows:
Eid involved a defendant who was found guilty of the summary
offense of [driving while operating privilege is suspended or
revoked] by a person who refused a breath test and [who, as a
result, was later] sentenced to 90 days to six months’
imprisonment, pursuant to 75 Pa.C.S.A. § 1543(b)(1.1)(i). Eid,
249 A.3d at 1034. Section 1543(b)(1.1)(i) provided that a person
convicted under this section “shall, upon first conviction, be
guilty of a summary offense and shall be sentenced to pay
a fine of $1,000[.00] and to undergo imprisonment for a
period of not less than 90 days.” Id. § 543(b)(1.1)(i)
(emphasis added).
On appeal, our Supreme Court struck down Section
1543(b)(1.1)(i) as “unconstitutionally vague and inoperable,”
holding that the language “not less than 90 days” did not provide
for a maximum term of incarceration. Eid, 249 A.3d at 1044. The
Court upheld the defendant's [] conviction and the imposition of a
$1,000.00 fine but vacated the incarceration portion of his
sentence for that offense. See id. The Eid Court reasoned that it
refused to infer a maximum sentence because doing so would
have forced it to “engage in sheer speculation as to which
sentence the General Assembly intended.” Id. at 1043 (citation
omitted).
Commonwealth v. White, 2022 WL 128777 (Pa. Super. January 14, 2022).
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Here, the trial court imposed Appellant’s sentence pursuant to 75
Pa.C.S.A. § 1543(b)(1)(ii), which provides “a person shall be sentenced to pay
a fine of $1,000[.00] and to undergo imprisonment for not less than 90
days.” 75 Pa.C.S.A. § 1543(b)(1)(ii) (emphasis added). While Eid was
sentenced pursuant to Section 1543(b)(1.1)(i), rather than Section
1543(b)(1)(ii), the language of the two subsections of the statute, to-wit, “not
less than 90 days,” is identical. As such, because Section 1543(b)(1)(ii) does
not provide for a maximum term of incarceration, it is unconstitutionally vague
and inoperable for the same reasons expressed in Eid. Hence, we agree with
the trial court’s assessment that Appellant’s sentence is illegal. Accordingly,
consistent with the Supreme Court’s resolution in Eid, we affirm Appellant’s
conviction and the imposition of the $1,000.00 fine but vacate the house
arrest portion of his sentence and remand for additional proceedings.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/08/2022
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