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Commonwealth v. Watson

Superior Court of Pennsylvania

March 8, 2017


         Appeal from the Judgment of Sentence November 4, 2015 In the Court of Common Pleas of Greene County Criminal Division at No(s): CP-30-CR-0000028-2015



          LAZARUS, J.

         Russell Robin Watson appeals from the judgment of sentence entered in the Court of Common Pleas of Greene County. After our review, we vacate and remand with instructions.

         On June 11, 2015, Watson entered an open plea of no contest to Driving Under the Influence (DUI) (Second Offense- [Within] Ten Years), [1]Driving on Right Side of Roadway, [2] and Disregard Traffic Lane.[3] The court ordered a presentencing investigation report (PSI), which was filed on July 7, 2015. The PSI included a DUI Drug and Alcohol Assessment (Assessment), dated January 13, 2015. The Assessment included a recommendation for treatment: "If he is found guilty he would be required to complete the DUI Outpatient Treatment Program at the SPHS [Southwestern Pennsylvania Human Services] CARE Center. He would also need to complete the AAHS [Alcohol Highway Safety School], through Greene County Probation Office." DUI Drug and Alcohol Assessment, 1/13/15.

         Nine months later, on September 1, 2015, President Judge Farley Toothman held a sentencing hearing. There, the Commonwealth argued that the mandatory sentence of five years' imprisonment was appropriate. See 75 Pa.C.S.A. § 3804(d).[4] The court accepted into evidence the PSI, which included Watson's statement that he had "completed outpatient counseling at SPHS CARE, having attended from February 24, 2015 to April 15, 2015." Presentence Investigation, 7/7/15, at 4. The trial court stated that it "recognized the record indicated that [Watson] had completed all provisions and recommendations of his Drug and Alcohol Assessment, prior to sentencing[.]" Trial Court Opinion, 4/25/16, at 2.[5]

         The court sentenced Watson to five years of County Intermediate Punishment (CIP) supervision. N.T. Sentencing Hearing, 9/1/15, at 33. Notably, the court stated:

The Court recognizes that the record indicates you have complied with all provisions and recommendations of your drug and alcohol assessment, and yet the Court encourages the Defendant to seek treatment as is in his best interest. . . . And further, we find you eligible to serve a sentence of County Intermediate Punishment, and we direct that you become familiar with the County Intermediate Punishment rules and regulations and abide by them. . . . [H]aving found you eligible to serve a sentence of County Intermediate Punishment supervision, more specifically defined as the first 180 days on house arrest with GPS and alcohol monitoring device attached, with privileges of work release and furlough as reasonably necessary to care for your family and child's medical and mental health matters, and thereafter, being four year[s] and 6 months, we order you to be supervis[ed] according to the regular rules and regulations. . . . This is a total sentence then of five years of County Intermediate Punishment, with 180 days of house arrest with privileges of furlough as ordered, fine of $1, 550 and 225 hours of community service.

Id. at 32-33 (emphasis added).

         On September 3, 2015, the court entered an order vacating its September 1, 2015 sentencing order, noting it had failed to give Watson his right of allocution. At resentencing on November 4, 2015, the court confirmed the terms of the September 1, 2015 sentencing order. See N.T. Resentencing Hearing, 11/4/15, at 15. In between the January 13, 2015 assessment and the resentencing hearing on November 4, 2015, Watson had completed his Repeat Offenders Program and all other recommended treatment. No further treatment was recommended.

         At the resentencing hearing, the court noted, in particular, that

with regard to the Court being on the record with regard to having sentenced the Defendant to a maximum term of 60 months, the Court does wish to confirm to the record it is because this Court is bound by the statute and considers the January 13, 2015 drug and alcohol assessment to mandate the Court's sentence to a maximum term, and recognizing that in doing so, the Court has given more weight to the January 13, 2015 assessment than the April 15, 2015 assessment.

Id. at 15-16 (emphasis added).

         Watson filed a motion for reconsideration, which the trial court denied. Watson filed this timely appeal. He argues that, because he completed counseling and assessment pursuant to 75 Pa.C.S.A. § 3814, and no further treatment was recommended, the court was not bound by statute to impose a mandatory sentence of five years' CIP[6] supervision. Watson claims that the mandatory five years is applicable only if further treatment is necessary, and that, otherwise, the court has discretion with respect to the term of CIP supervision. It was the court's understanding that it had no discretion to sentence less than 60 months. See N.T. Sentencing Hearing, 11/4/15, at 19-20.

         Watson raises the following issues for our review:

1. Was there a Drug and Alcohol Assessment performed pursuant to 75 Pa.C.S.A. § 3814(2) indicating [Watson] was in need of further treatment?
2. Did the lower court err in relying upon a Drug and Alcohol Assessment which was not performed pursuant to 75 Pa.C.S.A. § 3814 in finding that the [Watson] was in need of further treatment despite the fact he had done all treatment mentioned in the only assessment that existed at the time of sentencing?
3. Was there an abuse of discretion in failing to equitably apply the statutory requirements of 75 Pa.C.S.A. §§ 3804(d) and 3814?

Appellant's Brief, at 8-9.

         This case involves the relationship between the mandatory sentencing provisions of the DUI statute and the discretionary sentencing provisions of the Sentencing Code. This presents a question of law. "As with all questions of law, the appellate standard of review is de novo[.]" In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en banc).

         In Commonwealth v. Williams, 941 A.2d 14');">941 A.2d 14 (Pa. Super. 2008) (en banc), this Court addressed the issue of whether, notwithstanding mandatory DUI penalties, the sentencing court retains the discretion to impose CIP in qualified programs for qualified offenders. Williams was convicted of DUI under 75 Pa.C.S. § 3802(a)(1), a second offense, an ungraded misdemeanor, not involving a BAC refusal, but involving an accident. The court sentenced Williams to incarceration for a period of thirty days, followed by five months' probation. The court directed that "all periods of incarceration shall be served under qualified restrictive intermediate punishment on house arrest with electronic monitoring with drug and alcohol testing monitored by the Mercer County Intermediate Punishment Program [CIP] if [Williams] qualifies[.]" Williams, 941 A.2d at 20.

         On appeal, we were asked to decide whether the sentencing court had the statutory authority to impose a sentence under the CIP program, "in light of the mandatory sentencing provisions of the DUI statute, which call for a fixed term of imprisonment." Id. at 18. We held the court acted within its statutory authority and discretion when it imposed CIP for Williams' second DUI offense, so long as the program is a qualified county intermediate punishment program and Williams is a qualified "eligible offender."[7] Id. at 26, citing Commonwealth v. Syno, 791 A.2d 363 (Pa. Super. 2002) (emphasis added).

         Recently, in Commonwealth v. Popielarcheck, 2016 PA Super. 276, ___ A.3d ___ (filed December 6, 2016), this Court held, as a matter of first impression, that "where a sentencing court sentences a DUI defendant to County Intermediate Punishment pursuant to 42 Pa.C.S. § 9763, the sentencing court is not required to impose a mandatory maximum sentence pursuant to 75 Pa.C.S. § 3804(d)." Id. at *1. There, Popielarcheck pled guilty to two counts of DUI, (Second Offense - [Within] Ten Years), [8] and related offenses. The court ordered a presentence investigation and modified bail to require Popielarcheck to report for inpatient drug and alcohol therapy and to complete all recommended treatment. The parties did not dispute that Popielarcheck was a qualified offender and thus she was required to undergo "a full assessment for alcohol and drug addiction, " pursuant to section 3814.[9] The parties also did not dispute that, following the assessment, it was determined that Popielarcheck was in need of further treatment, and that she was eligible for a sentence of CIP.

         The court sentenced Popielarcheck to a term of two years of CIP, with 120 days to be served on house arrest.[10] The district attorney argued, unsuccessfully, that the court was required to sentence to the statutory maximum, notwithstanding the court's discretion to impose a sentence of CIP. See 42 Pa.C.S. § 9763.[11] The Commonwealth challenged the sentence in post-sentence motions, claiming the court erred by: (1) not imposing the statutorily mandated fine; (2) not mandating electronic monitoring as part of the sentence of house arrest; and (3) not imposing a maximum term of five years. The Commonwealth also claimed that in light of the circumstances, a sentence of less than five years of supervision was an abuse of discretion. Popielarcheck, supra at *1. Thereafter, the court amended its sentencing order to correct the fine and to include house arrest with electronic surveillance, adding that "[o]therwise, the sentence is legal and a proper exercise of judicial discretion." Id. at *2.

         The Commonwealth appealed, and this Court discussed the interplay of the relevant sentencing statutes, in particular section 3804 of the DUI statute, 75 Pa.C.S. § 3804, and sections 9721 and 9763 of the Sentencing Code. 42 Pa.C.S. §§ 9721, 9763. Despite the fact that the assessment indicated Popielarcheck was in need of further treatment, and noting that the purpose of the maximum sentence mandate is to ensure that offenders "complete needed treatment, " Commonwealth v. Taylor, 104 A.3d 479, 492 (Pa. 2014), we clarified that the court sentenced Popielarcheck under the alternative sentencing provisions ...

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