Argued May 6, 2014
Appeal from the Order of the Superior Court, entered December 17, 2012, at No. 317 MDA 2012, which affirmed the Judgment of Sentence of Franklin County Court of Common Pleas, Criminal Division, entered January 11, 2012, at No. 28-CR-0001177-2011. Appeal allowed September 5, 2013 at 186 MAL 2013. Trial Court Judge: Douglas W. Herman, President Judge. Intermediate Court Judges: Judith F. Olson, Paula Francisco Ott, JJ. James J. Fitzgerald, III, Justice.
For Terry Lee Taylor, APPELLANT: Ian Michael Brink, Esq., Franklin County Public Defender's Office
For Commonwealth of Pennsylvania, APPELLEE: Matthew Drew Fogal, Esq., Franklin County District Attorney's Office; Laura Jeanette Kerstetter, Esq.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE BAER. Former Justice McCaffery did not participate in the decision of this case. Mr. Chief Justice Castille, Mr. Justice Saylor and Madame Justice Todd join the opinion. Mr. Justice Eakin files a dissenting opinion in which Mr. Justice Stevens joins.
MR. BAER, JUSTICE
In this discretionary appeal, Terry Lee Taylor (Appellant) was sentenced for driving under the influence of alcohol or a controlled substance (DUI), without a " full assessment for alcohol and drug addiction," which is required " prior to sentencing" by Section 3814(2) of the Vehicle Code, 75 Pa.C.S. § 3814(2). His sentence, therefore, was imposed without consideration of the drug or alcohol treatment recommendations that an Assessment may have provided. See 75 Pa.C.S. § 3814(4) (requiring drug and alcohol assessment to advance treatment recommendations);
id. § 3804(b)(2)(iv) (providing that as part of a defendant's sentence, he must " comply
with all drug and alcohol treatment requirements imposed under sections 3814 and 3815." );
id. § 3815(c) (requiring treatment to " conform to assessment recommendations made under section 3814." ). Appellant, therefore, argues that he is entitled to have his sentence vacated, to be assessed in compliance with Section 3814(2), and to be resentenced after consideration of any treatment recommendations proffered therein. The Superior Court rejected this argument, and upheld his judgment of sentence. Because we agree with Appellant that the presentence requirement of Section 3814(2) is a mandatory component of the sentencing scheme for DUI offenders, and that a sentence imposed contrary to these requirements cannot stand, we reverse and remand for resentencing after compliance with Sections 3804, 3814, and 3815 of the Vehicle Code, as explained below.
On October 24, 2011, Appellant pled guilty to DUI for violating Section 3802(b) of the Vehicle Code. 75 Pa.C.S. § 3802(b), supra, n.1. This was Appellant's second DUI offense. Thus, the standard range for Appellant's minimum sentence was thirty days to three months of incarceration, and the statutory maximum was six months. See 75 Pa.C.S. § 3804(b).
Because Appellant was convicted of a violation of Section 3802, he was subject to the provisions of Section 3814, entitled " [d]rug and alcohol assessments," which provides that " [i]f a defendant is convicted or pleads guilty or no contest to a violation of section 3802 (relating to driving under influence of alcohol or controlled substance), the following apply prior to sentencing. . . ." Id. at § 3814, supra n.1. First, Section 3814(1) requires that every DUI offender " shall" be subject to an initial evaluation as follows:
(1) The defendant shall be evaluated under section 3816(a) (relating to requirements for driving under influence offenders) and any other additional evaluation techniques deemed appropriate by the court to determine the extent of the defendant's involvement with alcohol or other drug and to assist the court in determining what type of sentence would benefit the defendant and the public.
75 Pa.C.S. § 3814(1) (hereafter, initial evaluation). Section 3816(a), in turn, requires the evaluation to utilize:
. . . 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.
Id. at 3816(a).
In addition, Section 3814(2), which is directly implicated in this case, requires that certain DUI offenders, such as Appellant, who, inter alia, have had a prior DUI conviction within the last ten years, " shall be subject to a full assessment for alcohol and drug addiction . . . ." Id. § 3814(2), supra n.1. The " full assessment for alcohol and drug addiction" (hereafter, Assessment) is to be conducted by the Department of Health or its designee, the county agency with responsibility for drug and alcohol treatment programs, or personnel licensed by the Department of Health to conduct drug and alcohol treatment programs. Id. § 3814(3). Section 3814(4) directs that " [t]he [Assessment] shall consider issues of public safety and shall include recommendations for all of the following: (i) Length of stay[; ] (ii) Levels of care[; ] [and] (iii) Follow-up care and monitoring." Id. § 3814(4).
If the offender is " determined to be in need of additional treatment pursuant to section 3814(2)," then the statute directs the sentencing court to impose " a minimum sentence as provided by law and a
maximum sentence equal to the statutorily available maximum." Id. § 3804(d). The statute further vests the sentencing court with " parole authority and supervision," id. § 3815(a), and directs that offenders identified by the Assessment as being in need of drug and alcohol treatment are eligible for parole following the expiration of their minimum sentence. Id. § 3815(b)(1). These offenders are subject to the sentencing court's parole conditions, which include refraining from the use of alcohol or drugs and participating in and cooperating with the drug and alcohol treatment recommended in the Assessment. Id. § 3815(b)(2)(ii), (c). An offender who fails to comply with the treatment ordered by the sentencing court is subject to the revocation of parole. Id. § 3815(d)(2)(i).
Appellant was scheduled for sentencing on November 23, 2011. He appeared for
sentencing on that date and indicated to the court that due to neuropathy in his legs, which involved being fitted for leg braces, he would be unable to serve the thirty day minimum sentence of incarceration associated with his conviction, and requested instead to be given an intermediate sentence of home confinement with electronic monitoring. Rather than impose a sentence at that time, the sentencing court continued the matter in order to provide Appellant the opportunity to obtain documentation to substantiate his asserted medical condition. Additionally, the sentencing court would later state that on this date it brought up the need for an Assessment as required by Section 3814(2). Notes of Testimony, 1/11/2012, at 4.
On January 11, 2012, Appellant appeared for the newly scheduled sentencing hearing. He provided medical information to substantiate his asserted medical condition, and renewed his request that the court sentence him to home confinement with electronic monitoring for medical reasons. Additionally, Appellant argued that he was entitled to an Assessment prior to sentencing, that the court was obligated to order one of the entities designated in Section 3814(3) to conduct an Assessment, and that his sentence should reflect any treatment recommendations made therein. The court, however, stated that the burden was on Appellant to contact one of the responsible entities to obtain an Assessment prior to sentencing, and suggested that having failed to do so, Appellant had waived his entitlement to a sentence that incorporated treatment.
In determining Appellant's sentence, the court reviewed a " DUI Sentence Recommendation Sheet" prepared by the Franklin County Adult Probation Office, which suggested the performance of an Assessment in accord with Section 3814(2). Notwithstanding the lack of an Assessment, the sentencing court sentenced Appellant to a term of incarceration and denied his request for intermediate punishment for two reasons: first, to the extent Appellant's request was motivated by his need for medical treatment, the sentencing court was willing to allow medical release from jail for treatment;  second, to the extent Appellant's request was premised on his desire for drug and alcohol treatment, the trial court stated that an Assessment
was a prerequisite for such treatment and faulted him for failing to obtain one. The court imposed a sentence of forty-five days to six months in the Franklin County jail, staying imposition of the sentence pending this appeal upon Appellant's request. The sentencing order further directed Appellant to obtain an Assessment post-sentence.
Appellant appealed to the Superior Court, raising two issues: whether the sentencing court imposed an illegal sentence in contravention of Section 3814(2) by sentencing him without first obtaining an Assessment; and whether the burden was on Appellant to obtain an Assessment prior to sentencing, such that his failure to do so resulted in waiver of this presentence requirement.
In its Rule 1925(a) opinion, Pa.R.A.P. 1925(a), the sentencing court noted that it " arguably committed" an error of law by failing to compel a presentence Assessment, recognizing a recent Superior Court decision, Commonwealth v. Borovichka,2011 PA Super 88, 18 A.3d 1242 (Pa.Super. 2011), in which the court accepted the ...