from the Judgment of Sentence November 4, 2015 In the Court
of Common Pleas of Greene County Criminal Division at No(s):
BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.
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.
11, 2015, Watson entered an open plea of no contest to
Driving Under the Influence (DUI) (Second Offense- [Within]
Ten Years), Driving on Right Side of Roadway,
Disregard Traffic Lane. 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,
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). 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.
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).
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
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).
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'
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.
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
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.
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).
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
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." Id. at 26, citing
Commonwealth v. Syno, 791 A.2d 363 (Pa. Super. 2002)
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),  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. 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.
court sentenced Popielarcheck to a term of two years of CIP,
with 120 days to be served on house arrest. 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. 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.
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 ...