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[U] Commonwealth v. Houser

Superior Court of Pennsylvania

February 27, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DANIEL JAMES HOUSER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order July 2, 2013 in the Court of Common Pleas of Northampton County Criminal Division at No.: CP-48-CR-0004118-2011

BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Daniel James Houser, appeals from the order of July 2, 2013, [1] revoking parole and remanding him to serve the balance of a sentence previously imposed for conviction of, inter alia, driving under the influence (DUI), 75 Pa.C.S.A. § 3802(c). We affirm.

On December 8, 2011, Appellant pleaded guilty to DUI-highest rate, possession of drug paraphernalia, and driving under suspension (DUS)-DUI related. The court sentenced him to a term of not less than 180 days nor more than sixty months' imprisonment for DUI, three months' probation for possession, and ninety days' incarceration for DUS, to be served concurrently. (See Sentencing Sheet, 12/08/11). On April 27, 2012, Northampton County DUI Probation approved Appellant's petition for parole, effective April 30, 2012. (See Order, 4/27/12).

On April 4, 2013, the court held a Gagnon I hearing, [2] where it determined that there was probable cause to believe that, in violation of the conditions of his parole, Appellant had failed to remain drug and alcohol free and had incurred new charges arising from a July 15, 2012 arrest for possession of a controlled substance.[3] (See Praceipe for Gagnon I Hearing, 4/02/13; Gagnon I Order, 4/04/13). On July 2, 2013, the court held a Gagnon II hearing, [4] where it found that Appellant had violated the conditions of his parole and ordered him to serve the balance of his sentence. (See Sentencing Sheet, 7/02/13). On July 9, 2013, Appellant filed a motion for reconsideration of sentence, which the trial court denied on July 10, 2013. Appellant timely appealed on July 24, 2013.[5] See Pa.R.Crim.P. 708(E).

Appellant raises five questions for our review:

1. Whether the sentence of [the trial court] for a second DUI conviction to serve the balance of five (5) years incarceration subject to parole to be determined by the Pennsylvania Board of Probation and Parole is unlawful where the maximum sentence for DUI conviction is six (6) months incarceration pursuant to Title 75 Pa.C.S. §3803(A)(1)?
2. Whether the trial court stated on the record the reasons for violating Appellant's parole, forfeiting street time, and resentencing Appellant to serve the balance of his term without eligibility for re-parole pursuant to Pa.R.Crim.P. Rule 708?
3. Whether Appellant was denied due process rights because he was not provided with written notice of the alleged parole violations prior to his Gagnon II hearing?
4. Whether the trial court failed to advise . . . Appellant of his right to file a motion to modify sentence and to appeal, of a time within which Appellant must exercise these rights, and of the right to assistance of counsel in preparation of the motion and appeal pursuant to Pa.R.Crim.P. Rule 708(D)(3)?
5. Whether the sentence of the trial court to serve the balance of five (5) years incarceration subject to parole to be determined by the Pennsylvania Board of Probation and Parole is unlawful?

(Appellant's Brief, at 3).

In his first issue, Appellant argues that "the sentence of [the trial court] for a second DUI conviction to serve the balance of five (5) years incarceration subject to parole to be determined by the Pennsylvania Board of Probation and Parole is unlawful where the maximum sentence for DUI conviction is six (6) months pursuant to Title 75 Pa.C.S. §3803(a)(1)." (Id. at 8). Specifically, he asserts that, under Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013), the maximum punishment for his offense is six months. (See id. at 9). We disagree.

"Following parole revocation and recommitment, the proper issue on appeal is whether the revocation court erred, as a matter of law, in confinement." Commonwealth v. Snavely, 982 A.2d 1244, 1246 (Pa.Super. 2009).

In Commonwealth v. Mitchell, 632 A.2d 934 (Pa.Super. 1993), this Court set forth the following, which guides our analysis in the present case:
Clearly, the order revoking parole does not impose a new sentence; it requires appellant, rather, to serve the balance of a valid sentence previously imposed. Moreover, such a recommittal is just that-a recommittal and not a sentence. Further, at a "Violation of Parole" hearing, the court is not free to give a new sentence. The power of the court after a finding of violation of parole in cases not under the control of the State Board of Parole is to recommit to jail . . . . There is no authority for giving a new sentence with a minimum and maximum. Therefore, an appellant contesting a revocation of parole need not comply with the provisions of Pa.R.A.P. 2119(f) by first articulating a substantial question regarding the discretionary aspects of sentencing. . . . The sole issue on appeal is whether the trial court erred, as a matter of law, in revoking appellant's parole and committing him to a term of total confinement.
Id. at 936. See also Commonwealth v. Ware, 737 A.2d 251, 253 (Pa.Super. 1999) (relying on Mitchell and reaffirming that "upon revocation of parole, the only sentencing option available is recommitment to serve the balance of the term initially imposed").

Commonwealth v. Galletta, 864 A.2d 532, 538-39 (Pa.Super. 2004) (some case citations omitted); see also Commonwealth v. Parsons, 969 A.2d 1259, 1270 n.6 (Pa.Super. 2009) (en banc), appeal denied, 982 A.2d 1228 (Pa. 2009).

Here, Appellant initially pleaded guilty to DUI-highest rate as a second offense, 75 Pa.C.S.A. § 3802(c), which was graded as a misdemeanor of the first degree.[6] (See Criminal Docket, at 3). The court then imposed a sentence of not less than 180 days nor more than sixty months' incarceration. (Sentencing Sheet, 12/08/11).

Section 3803 provides, in relevant part: "An individual who violates . . . section 3802(c) or (d) and who has one or more prior offenses commits a misdemeanor of the first degree." 75 Pa.C.S.A. § 3803(b)(4). Section 1104 of the Criminal Code provides:

§ 1104. Sentence of imprisonment for misdemeanors.
A person who has been convicted of a misdemeanor may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall be not more than:
(1) Five years in the case of a misdemeanor of the first degree.

18 Pa.C.S.A. § 1104(1). Therefore, Appellant's highest-rate DUI as a second offense was properly graded as a misdemeanor of the first degree, and the trial court was entitled to impose a sentence of not more than five years. Thus, the previously-imposed sentence was valid, and the trial court did not err as a matter of law by sentencing Appellant to serve the balance of his five-year sentence upon revocation. (See Sentencing Sheet, 7/02/13); see also Galletta, supra at 538-39.

Appellant claims that, pursuant to our holding in Musau, supra, "[t]he maximum incarceration for a second offense DUI is six (6) months[.]" (Appellant's Brief, at 7). Musau, however, specifically applies to a "first or second DUI with refusal" under 75 Pa.C.S.A. § 3802(a)(1). Musau, supra at 755, 758 n.2. Appellant was, as he concedes, convicted for a second DUI-highest rate under 75 Pa.C.S.A. § 3802(c). (See Appellant's Brief, at 9). Therefore, Musau is inapposite, and Appellant's reliance on it does not merit relief. Appellant's first issue lacks merit.

In his remaining issues, Appellant has "take[n] the liberty of combining issues 2 - 5 as one argument" in the argument section of his brief. (See Appellant's Brief, at 10; see id. at 10-11). However, because Appellant's one-page review of all four issues cites only to general authorities, fails to provide citations to the record, and utterly fails to develop any meaningful analysis of the issues he has raised, we find them waived for lack of development. See Pa.R.A.P. 2119(a) ("The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part-in distinctive type or in type distinctively displayed-the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent."); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied, 131 S.Ct. 250 (2010) (finding "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived") (citations omitted).[7]

Order affirmed.

Judgment Entered.


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