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Commonwealth v. Jurczak

Superior Court of Pennsylvania

February 21, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
JAMES JURCZAK, Appellee

Submitted: January 6, 2014.

Appeal from the Judgment of Sentence of the Court of Common Pleas, Greene County, Criminal Division, No(s): CP-30-CR-0000387-2011. Before TOOTHMAN, J.

John P. Friedmann, Assistant District Attorney, Waynesburg, for Commonwealth, appellant.

David F. Pollock, Waynesburg, for appellee.

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

OPINION

Page 266

ALLEN, J.

The Commonwealth appeals from the judgment of sentence imposed after a jury found Appellee, James Jurczak (" Jurczak" ), guilty of driving under the influence of alcohol and a drug or combination of drugs to a degree that impaired his ability to safely drive, 75 Pa.C.S.A. § 3802(d)(3); one count of possession of a small amount of marijuana, 35 P.S. § 780-113(a)(31)(i); and one count of possession of drug paraphernalia 35 P.S. § 780-113(a)(32). Additionally, the trial court found Appellant guilty of violating 75 Pa.C.S.A. § 3323(b), relating to stop signs and yield signs. We affirm.

The pertinent facts are as follows: On March 6, 2011, Trooper John Pash of the Pennsylvania State Police observed Jurczak, who was driving east on Clarksville Road, fail to stop at a stop sign. Affidavit of Probable Cause, 5/17/11, at 1. Trooper Pash followed Jurczak's vehicle and observed it cross the fog line three times and the double yellow line three times. Id. Jurczak activated a left turn signal on his vehicle at a traffic light, but failed to turn. Id. Trooper Pash stopped Jurczak's vehicle and upon approaching Jurczak, detected the odor of alcohol and observed that Jurczak's eyes were bloodshot and his speech was slurred. Id. Trooper Pash asked Jurczak to exit his vehicle, and conducted a pat down of Jurczak's outer clothing, during which he felt an object that he suspected was a marijuana pipe in Jurczak's pocket. Trooper Pash removed the object, which was a marijuana pipe with burnt marijuana inside it. Trooper Pash asked Jurczak to perform a breathalyzer test but Jurczak refused. Trooper Pash conducted a field sobriety test which Jurczak failed. Id. Jurczak was arrested and charged with the aforementioned crimes. Id.

A jury trial commenced on February 19, 2013, at the conclusion of which Jurczak was convicted. On June 5, 2013, the trial court sentenced Jurczak to 100 hours of community service, fines totaling $1725, and one year of County Intermediate Punishment (" CIP" ) to be served as ninety days of house arrest with GPS and alcohol monitoring, followed by nine months of probation. Trial Court Order, 6/5/13, at 6. In addition, the trial court found Jurczak eligible for work release while on house arrest, and granted Jurczak furloughs as reasonably necessary to transport his disabled child to medical and/or mental health appointments and services. Id.

The Commonwealth filed a post-sentence motion on June 10, 2013, asserting that the sentence did not comply with the requirements of the Greene County Intermediate Punishment statutes or the Sentencing Code. The trial court denied the Commonwealth's motion on June 17, 2013. This appeal followed. The trial court directed the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and the Commonwealth complied. On August 19, 2013, the trial court entered an opinion pursuant to Pa.R.A.P. 1925(a).

The Commonwealth presents one issue for our review:

Page 267

I. DID THE SENTENCING COURT ERR IN FINDING THAT THE GREENE COUNTY INTERMEDIATE PUNISHMENT PLAN, WHICH AUTHORIZED ELECTRONIC HOME MONITORING (AS ONE OF THREE QUALIFIED RESTRICTIVE INTERMEDIATE PUNISHMENT PROGRAMS) FOR DUI SENTENCES ONLY AFTER ONE-THIRD (1/3) OF THE MANDATORY MINIMUM SENTENCE IS SERVED AS INCARCERATION, VIOLATED STATUTE AND, THUS, ERRED IN SENTENCING [JURCZAK] TO A TERM OF 90 DAYS ELECTRONIC HOME MONITORING AS A COUNTY IP SENTENCE WHICH WAS NOT AUTHORIZED BY THE IP PLAN?

Commonwealth Brief at 10.

The Commonwealth asserts that the sentences imposed by the trial court were illegal. Commonwealth Brief at 12-25. " The scope and standard of review in determining the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court's application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law." Commonwealth v. Leverette, 2006 PA Super 331, 911 A.2d 998, 1001-1002 (Pa. Super. 2006) (citations omitted).

Here, the Commonwealth argues that the trial court's sentence did not conform to the requirements of the Greene County Intermediate Punishment Plan, which was implemented pursuant to the County Intermediate Punishment Act, 42 Pa.C.S.A. § 9801 et. seq.

Section 9721 of the Pennsylvania Sentencing Code sets forth general sentencing alternatives, and ...


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