from the Judgment of Sentence November 10, 2015 In the Court
of Common Pleas of Allegheny County Criminal Division at
BEFORE: BOWES, OLSON AND STRASSBURGER, [*] JJ.
appeals from the judgment of sentence of ninety days house
arrest and eighteen months probation following his guilty
plea for driving under the influence ("DUI") and
driving without a license. He raises statutory and
constitutional challenges to the trial court's
pre-sentencing revocation of bond for purposes of completing
an alcohol assessment. We condemn the imprisonment of
Appellant for his inability to pay for that assessment
upfront. We are, however, constrained to affirm judgment of
sentence, as Appellant received time credit for this period
April 30, 2015, Appellant was arrested for operating a motor
vehicle while under the influence of alcohol. His breath test
revealed a blood alcohol content of .268%. Appellant, who had
a prior DUI conviction, was charged with two counts of DUI
and the summary offense of driving without a license.
September 23, 2015, Appellant pleaded guilty to one count of
DUI, graded as a misdemeanor of the first degree, and the
summary offense. Sentencing was scheduled for October 27,
2015. In the interim, Appellant was ordered to undergo a
Court Reporting Network ("CRN") assessment plus a
separate drug and alcohol assessment.
appeared for sentencing in compliance with the CRN
requirement. However, he informed the court that he was
unable to complete the second assessment since he could not
afford a $100 payment required upfront by the assessor.
Appellant repeated his willingness to complete the
requirement and suggested that the court either waive the
assessment or order the provider to complete the assessment
without payment of the fee, with repayment to follow as part
of court costs.
trial court refused to waive the requirement and stated that
the assessment could not be added to court costs. The judge
then informed Appellant that the fee must be collected
upfront, due to "a pretty strict policy, I think uniform
throughout the criminal division." N.T. 10/27/15, at 4.
The judge then stated, "Why doesn't [Appellant] come
up with a hundred bucks in a week or so, give him a break
instead of sending him to jail. I mean that's the
alternative." Id. at 4-5. Appellant stated,
"I don't have [the money], sir, I just rather do my
time and get it over with, sir." Id. at 5. The
trial court thereafter revoked Appellant's bond and
remanded him to the Allegheny County Jail, with sentencing to
follow "[a]s soon as that assessment is
completed[.]". Id. at 6. The assessment was
completed on November 9, 2015. Appellant remained
incarcerated from October 27, 2015, through November 10,
November 9, 2015, Appellant filed a motion asking the trial
court to certify the order for interlocutory appeal. On
November 10, 2015, the trial court denied the motion and
imposed the aforementioned sentence, with time credit for the
fifteen-day period of incarceration.
filed a timely notice of appeal, and complied with the order
to file a concise statement of matters complained of on
appeal. The trial court filed an opinion in response and the
matter is ready for our review. Appellant raises the
When [Appellant] entered a guilty plea to DUI but was
financially unable to pay the preliminary fee for taking the
mandatory, pre-sentence drug and alcohol assessment pursuant
to 75 Pa.C.S. § 3814, whether the trial court's
decision to incarcerate him so that the assessment could be
performed in the Allegheny County Jail violated 75 Pa.C.S.
§ 3815(f)(2), as well as [Appellant]'s federal and
state constitutional rights to equal protection and due
process of law?
Appellant's brief at 5.
we must address whether this appeal should be dismissed as
moot, as urged by the Commonwealth, since Appellant's
sole claim on appeal challenges the fifteen days he remained
incarcerated for purposes of completing the assessment. Since
Appellant was released long ago and received credit for that
time as applied to his house arrest sentence, the
Commonwealth maintains that there is no relief to give.
a general rule, an actual case or controversy must exist at
all stages of the judicial process, or a case will be
dismissed as moot." In re D.A., 801 A.2d 614,
616 (Pa.Super. 2002) (quoting In re Duran, 769 A.2d
497 (Pa.Super. 2001)). However, this Court will decide
questions that have otherwise been rendered moot when,
inter alia, "the question presented is capable
of repetition and apt to elude appellate review."
Commonwealth v. Nava, 966 A.2d 630, 633 (Pa.Super.
2009) (citation omitted). Since Appellant maintains that
Allegheny County requires the $100 fee in all cases, an
assertion that is corroborated by the trial court, we find
that this issue is likely to reoccur and apt to elude our
review. Thus, we decline to dismiss the appeal as moot.
turn to Appellant's claim, that his fifteen-day
incarceration violated the statutory scheme and the United
States Constitution. At issue is the propriety of the trial
court's application of statutory provisions governing the
administration of drug and alcohol assessments prior to
imposing a DUI sentence. Matters of statutory interpretation
present questions of law, and our standard of review is
de novo. Commonwealth v. Johnson, 125 A.3d
822 (Pa.Super. 2015). We conclude that the trial court lacked
statutory authority to commit Appellant to jail for
nonpayment and therefore do not reach Appellant's
constitutional claims. See Commonwealth v. Ludwig,
874 A.2d 623, 628 (Pa. 2005) ("[C]ourts have the duty to
avoid constitutional difficulties, if possible, by construing
statutes in a constitutional manner.").
this claim concerns the interplay of several statutes, we
briefly review the role of an alcohol and/or drug assessment
as a component of a DUI sentence. Sections 3814 and 3816 of
the Vehicle Code mandate assessments in the following
circumstances. First, § 3816, the aforementioned CRN
provision, requires an assessment for every individual
convicted of a DUI:
(a) Evaluation using Court Reporting
Network.--In addition to any other requirements of
the court, every person convicted of a violation of section
3802 (relating to driving under influence of alcohol or
controlled substance) . . . shall, prior to sentencing . . .
be evaluated using Court Reporting Network instruments issued
by the department and any other additional 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 sentenc[e] . . . would benefit the person or the public.
75 Pa.C.S. § 3816. Wholly apart from this CRN
evaluation, § 3814 mandates a full assessment in the
(2) The defendant shall be subject to a full assessment for
alcohol and drug addiction if any of the following
(i) The defendant, within ten years prior to the offense for
which sentence is being imposed, has been sentenced for an
(B)former section 3731; or
(C) an equivalent offense in another jurisdiction.
(A) the evaluation under [CRN] indicates there is a need for
counseling or treatment; or
(B)the defendant's blood alcohol content at the time of
the offense was at least .16%.
. . . .
75 Pa.C.S. § 3814. Appellant was subject to a full
assessment due to his blood alcohol content exceeding .16% as
well as his prior conviction. In Commonwealth v.
Taylor, 104 A.3d 479 (Pa. 2014), our Supreme Court held
that these assessments are not discretionary and the county
is obligated to ensure the availability of such assessments.
trial court is required to utilize these assessments in
fashioning a sentence. First, the penalties provisions set
forth at 75 Pa.C.S. § 3804 specify that any individual
convicted of a DUI offense must "comply with all drug
and alcohol treatment requirements imposed under sections
3814 and 3815." See 75 Pa.C.S. §
3804(a)-(c). Additionally, a separate provision, entitled
"Mandatory Sentencing" specifically states that,
where a term of imprisonment is imposed, the offender must
conform to the assessment recommendations. 75 Pa.C.S. §
3815. Sentencing cannot occur until the assessments are
completed. See Commonwealth v. Taylor, 104 A.3d 479,
491 (Pa. 2014) (describing the assessment procedure as