Summary
holding that "a defendant should not be subject to separate sentences for multiple convictions [for DUI], where the defendant committed a single act of driving [under the influence of a controlled substance]"
Summary of this case from Commonwealth v. ChambersOpinion
No. 1886 MDA 2019
12-23-2020
COMMONWEALTH of Pennsylvania v. Shaun Karl GIVEN, Appellant
Barbara L. Wevodau, New Bloomfield, for appellant. Daniel W. Stern, Assistant District Attorney, New Bloomfield, for Commonwealth, appellee.
Barbara L. Wevodau, New Bloomfield, for appellant.
Daniel W. Stern, Assistant District Attorney, New Bloomfield, for Commonwealth, appellee.
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
OPINION BY DUBOW, J.:
Appellant, Shaun Karl Given, appeals from the March 27, 2019 Judgment of Sentence following his non-jury conviction of two counts of Driving Under the Influence ("DUI") – Controlled Substance and one count of Driving Under Suspension ("DUS"). Appellant challenges the sufficiency of the Commonwealth's evidence to convict him of DUI and requests that this Court vacate his sentence for DUS. After careful review, we affirm Appellant's convictions but vacate the Judgment of Sentence for DUI-Controlled Substance under 75 Pa.C.S. § 3802(d)(1)(iii).
75 Pa.C.S. §§ 3802(d)(1)(i), 3802(d)(1)(iii), and 1543(a), respectively.
On May 8, 2017, two Pennsylvania state troopers pulled Appellant over for littering while driving. Appellant admitted to the police that he had smoked marijuana "a few minutes" before they pulled him over. Subsequent testing of Appellant's blood confirmed the presence of Delta-9-THC, the active compound in marijuana, and Carboxy-THC, a metabolite of marijuana. Police also determined that Appellant had been driving with a suspended license.
On February 8, 2019, the court, sitting as factfinder, found Appellant guilty of two counts of DUI-Controlled Substance and one count of DUS. On March 27, 2019, the court sentenced Appellant to separate concurrent terms of 72 hours to 6 months’ incarceration for the DUI convictions, and a concurrent term of 30 days’ incarceration for DUS. Following reinstatement of Appellant's direct appeal rights, Appellant filed a Notice of Appeal on November 14, 2019. Both Appellant and the court complied with Pa.R.A.P. 1925. Appellant presents two issues for our review:
1. Whether the Commonwealth introduced sufficient evidence at trial to support Appellant's DUI convictions; and
2. Whether errors committed by Magisterial District Judge Daniel McGuire require this Court to vacate Appellant's sentence for DUS.
Appellant's Br. at 8 (unpaginated) (rephrased for clarity).
Appellant's brief is regrettably disjointed, confusing, and at times nearly incomprehensible, hampering this Court's review of Appellant's issues.
We do not reach the merits of Appellant's appeal because we find that Appellant waived our consideration of both issues. In his first issue, Appellant challenges the sufficiency of the Commonwealth's evidence to convict him of DUI. Appellant did not raise this issue in his Rule 1925(b) Statement, and presents it for the first time on appeal. It is axiomatic that issues not included in an appellant's Rule 1925(b) Statement are waived. Pa.R.A.P. 1925(b)(vii). See also Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Thus, Appellant waived our consideration of his first issue.
In his second issue, Appellant asks this Court to vacate his Judgment of Sentence for DUS. Appellant alleges that he was driving with a suspended license due to a "mess" created by Magisterial District Judge Daniel McGuire. Appellant's Br. at 18-19. Appellant does not explain what he means by a "mess" Judge McGuire allegedly created, or how Judge McGuire's alleged "mess" compels this Court to vacate Appellant's Judgment of Sentence.
The argument portion of an appellate brief must be developed with citation to the record and relevant authority. Pa.R.A.P. 2119(a). When an appellant fails to develop an argument, the issue is waived. Commonwealth v. Jezzi , 208 A.3d 1105, 1109-10 (Pa. Super. 2019). To undertake review of Appellant's second issue would require us to scour the record in an attempt to discern what alleged error Judge McGuire committed and craft an argument on Appellant's behalf about why that error would compel us to vacate his sentence. We will not do so, and, thus, we find that Appellant waived our consideration of his second issue.
Although we find that Appellant waived our consideration of his issues, we sua sponte raise an issue involving the legality of Appellant's sentence. Commonwealth v. Hill , ––– Pa. ––––, 238 A.3d 399, 408 (2020) (holding that an appellant's "challenge to his second sentence for DUI implicates the legality of his sentence" and "an appellate court may raise and address such an issue sua sponte ."). When reviewing the legality of a sentence, our standard of review is de novo and scope of review is plenary. Commonwealth v. Melvin , 172 A.3d 14, 19 (Pa. Super. 2017).
In an issue of first impression, we conclude that a defendant should not be subject to separate sentences for multiple convictions under 75 Pa.C.S. § 3802(d)(1), where the defendant committed a single act of driving while his blood contained a parent compound and a metabolite of the same controlled substance. While there is no case law directly on point on this issue, we draw support from decisions by this Court and our Supreme Court analyzing other subsections of the DUI statute. These cases, discussed infra , conclude that a defendant should not be subject to more than one sentence for a single criminal act that results in multiple convictions under the same subsection of the DUI statute.
In the instant case, the undisputed evidence shows that Appellant drove with both the active compound and a metabolite of marijuana in his blood. As a result, the court convicted Appellant of two counts of DUI-Controlled Substance, one under 75 Pa.C.S. § 3802(d)(1)(i) and the other under 75 Pa.C.S. § 3802(d)(1)(iii), and sentenced Appellant to two concurrent terms of incarceration for these convictions. Appellant's sentences, not convictions, are at issue here.
The relevant portion of the DUI statute reads:
(d) Controlled substances. – An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:
(1) There is in the individual's blood any amount of a:
(i) Schedule I controlled substance ...
[or]
(iii) metabolite of a substance under subparagraph (i)[.]
75 Pa.C.S. §§ 3802(d)(1)(i) ; (iii).
Section 3802(d)(1) makes it a crime for a person to drive after using a Schedule I controlled substance. 75 Pa.C.S. § 3802(d)(1). The Commonwealth can establish the offense in two different ways. It can prove that the defendant had, in his blood at the time of driving, either (1) the active compound of a Schedule I drug, or (2) a metabolite of a Schedule I drug. Id. at 3802(d)(1)(i); (iii). Thus, Subsections 3802(d)(1)(i) and (iii) provide the Commonwealth alternate means of establishing the offense of DUI-Controlled Substance.
A "metabolite" is a substance produced by the body while it metabolizes, or breaks down, the "parent" controlled substance. Commonwealth v. Glenn , 233 A.3d 842, 843 fn. 3 (Pa. Super. 2020) (citations omitted).
Reviewing Appellant's convictions in this context reveals that the court sentenced Appellant twice for DUI-Controlled Substance based on a single incident of criminal conduct, i.e. , driving after using marijuana. As stated above, this Court and our Supreme Court have consistently held that a defendant should not be subject to more than one sentence for a single criminal act that results in multiple convictions under the same subsection of the DUI statute.
In Commonwealth v. Burton , 1468 WDA 2017, 2019 WL 3064632 (Pa. Super. filed July 12, 2019) (non-precedential decision), the trial court imposed separate sentences for the appellant's two DUI-General Impairment convictions arising under 75 Pa.C.S. §§ 3802(a)(1) (incapable of safe driving) and (2) (BAC between 0.08% and 0.10%), respectively. Id. at *1. On appeal, this Court recognized that Section 3802(a) proscribes a single harm to the Commonwealth, i.e. , DUI-general impairment, and Subsections 3802(a)(1) and (2) simply provide alternate means by which the Commonwealth can establish the offense. Id. at *5, *7. We reasoned that a defendant should not be subject to separate sentences for a single criminal act of DUI-General Impairment, even where the Commonwealth proved that the defendant had violated two subsections of the offense, and we vacated the appellant's sentence under Subsection 3802(a)(1). Id. at *7. See also Commonwealth v. Williams , 871 A.2d 254 (Pa. Super. 2005) (applying the same rationale to an earlier version of the DUI statute); Commonwealth v. McCurdy , 558 Pa. 65, 735 A.2d 681, 685-86 (1999) ("the [DUI] statute proscribes a single harm to the Commonwealth ... The fact that the offense may be established as a matter of law if the Commonwealth can produce the necessary chemical test does not constitute proof of a different offense, but merely represents an alternative basis for finding culpability.").
Applying these principles, we conclude that, where the defendant committed a single act of driving while his blood contained a parent compound and a metabolite of the same controlled substance, the defendant should not be subject to separate sentences for multiple convictions arising under Section 3802(d)(1). Section 3802(d)(1) proscribes a single harm to the Commonwealth – DUI-Controlled Substance. Subsections 3802(d)(1)(i) and (iii) provide alternate means by which the Commonwealth can establish the offense, but do not provide proof of different offenses. We therefore conclude that the trial court should have merged Appellant's DUI-Controlled Substance convictions for purposes of sentencing.
We vacate Appellant's Judgment of Sentence for DUI-Controlled Substance under Subsection 3802(d)(1)(iii). We need not remand for resentencing because our disposition does not upset the sentencing scheme. We affirm the Judgment of Sentence with respect to the remaining convictions.
Convictions affirmed. Judgment of Sentence affirmed in part, vacated in part.
President Judge Emeritus Ford Elliott joins the opinion.
Judge Bowes files a concurring and dissenting opinion.
CONCURRING AND DISSENTING OPINION BY BOWES, J.:
While I join in the Majority's finding of waiver that affirms Appellant's convictions, I cannot concur in the sua sponte vacation of Appellant's sentences at 75 Pa.C.S. § 3802(d)(1), for driving under the influence ("DUI"). Based upon a straightforward application of 42 Pa.C.S. § 9765, I respectfully submit that these sentences should not merge.
In relevant part, § 9765 provides that "[n]o crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all statutory elements of one offense are included in the statutory elements of the other offense ." 42 Pa.C.S. § 9765 (emphasis added). Our Supreme Court has interpreted this statute as leaving little room for equivocation or exception: "The statute's mandate is clear. It prohibits merger unless two distinct facts are present: (1) the crimes arise from a single criminal act; and (2) all of the statutory elements of one of the offenses are included in the statutory elements of the other. " Commonwealth v. Baldwin , 604 Pa. 34, 985 A.2d 830, 833 (2009) (emphasis added).
I emphasize the second prong of this statutory scheme because I believe that the Majority's treatment of this issue has overlooked it. I do not dispute that Appellant's DUI convictions stemmed from a single criminal act of driving. Nonetheless, there is insufficient statutory parity between the statutory language of the separate DUI subsections to permit merger under § 9765.
In pertinent part, the at-issue criminal statute provides as follows:
(d) Controlled substances.-- An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:
(1) There is in the individual's blood any amount of a:
(i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as the Controlled Substance, Drug, Device and Cosmetic Act;
(ii) Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or
(iii) metabolite of a substance under subparagraph (i) or (ii).
75 Pa.C.S. § 3802 (emphasis added).
Stated as succinctly as possible, each of these emphasized crimes contains a statutory element that the other does not. Section 3802(d)(1)(i) criminalizes driving with any amount of a particular controlled substance in a person's blood, while § 3802(d)(1)(iii) criminalizes driving with any amount of a metabolite of a particular controlled substance in a person's blood. The elements of these two crimes are simply not co-extensive. Based upon the unchallenged evidence adduced by the Commonwealth at trial, Appellant violated both of the above-recited subsections.
The evidence establishing the presence of separate chemical compounds in Appellant's blood is also not in dispute. Kimberly Souder, a forensic scientist employed by the Pennsylvania State Police, testified to a "reasonable degree of medical certainty" that Appellant's blood contained both an "active compound" (Delta-9-THC) and a "metabolite" (Carboxy-THC) of marijuana. See N.T. Trial, 2/8/19, at 59. Appellant conceded to the presence of these distinct compounds in his blood. See N.T. Trial, 2/8/19, at 67.
Nonetheless, the Majority has discerned a blanket exception for DUI charges that allegedly compels merger under § 9765. See Majority Opinion at 511 ("[T]his Court and our Supreme Court have consistently held that a defendant should not be subject to more than one sentence for a single criminal act that results in multiple convictions under the same subsection of the DUI statute."). The lynchpin of the Majority's broad proclamation is this Court's non-precedential holding in Commonwealth v. Burton , 220 A.3d 649 (Pa.Super. 2019) (unpublished memorandum).
The Majority's citation to Commonwealth v. McCurdy , 558 Pa. 65, 735 A.2d 681, 685-86 (1999), is unavailing because that case predates the adoption of 42 Pa.C.S. § 9765 and, consequently, does not apply the statutory elements test.
Burton did not adjudicate DUI charges related to controlled substances, but concerned two DUI convictions related to alcohol impairment at 75 Pa.C.S. §§ 3802(a)(1) and 3802(a)(2) ("General impairment."). Upon reviewing the language of the statutes, this Court concluded that "these two provisions proscribe the offense of DUI-general impairment but allow for proof of the offenses by different means of evidence: observation versus BAC measurement." Id . at 510–11. Thus, we held that these DUI charges should merge for sentencing purposes.
Specifically, 75 Pa.C.S. § 3802(a)(1) focuses on officer observations, while 75 Pa.C.S. § 3802(a)(2) requires proof related to the content of alcohol in the defendant's "blood or breath." In relevant part, there is no such distinction in the subsections at 75 Pa.C.S. §§ 3802(d)(1)(i) and 3802(d)(1)(iii), which uniformly requires proof related to the amount of a particular chemical present in "the individual's blood." This is yet another important factor that distinguishes the holding in Commonwealth v. Burton , 220 A.3d 649 (Pa.Super. 2019) (unpublished memorandum), from the instant case.
However, this portion of Burton relies upon an outmoded iteration of Pennsylvania's merger doctrine. Indeed, Burton explicitly disclaims application of the statutory elements test required by § 9765. Id . at 511–12 (" ‘[W]e need not engage in the traditional merger analysis of lesser and greater included offenses. Instead we examine the rationale favoring merger where a defendant has engaged in a single criminal act and he is found guilty of violating more than one section of a statute.’ ") (quoting Commonwealth v. Dobbs , 452 Pa.Super. 488, 682 A.2d 388, 391 (1996) ); see also Commonwealth v. Williams , 871 A.2d 254, 262-64 (Pa.Super. 2005) (same) (quoting Dobbs , supra at 391 ). This Court has explicitly disapproved of Dobbs and its progeny in precedential writings. See Commonwealth v. Cianci , 130 A.3d 780, 783 n.2 (Pa.Super. 2015) ("Appellant's reliance upon [ Dobbs ] is misplaced. Merger law has evolved substantially since that case was decided. Instead, [§] 9765 and the "elements" approach to merger govern Appellant's issues. " (emphasis added)).
Undeterred, the Majority's holding announces a new and significant exception to sentencing merger under § 9765, namely that "where the defendant committed a single act of driving while his blood contained a parent compound and a metabolite of the same controlled substance, the defendant should not be subject to separate sentences for multiple convictions arising under [§] 3802(d)(1)." Majority Opinion at 512 (emphasis in original).
This conclusion ignores the actual language of the relevant statute, wherein the presence of completely different chemical compounds are required for a conviction at each of the at-issue subsections. Compare 75 Pa.C.S. § 3802(1)(i) with 75 Pa.C.S. § 3802(1)(iii). The Majority has essentially interpolated a distinction that does not exist on the face of the statute by choosing to treat "parent compounds" and "metabolites" as co-extensive as a matter of law. To the contrary, the General Assembly's drafting of 75 Pa.C.S. §§ 3802(d)(1)(i) and 3802(d)(1)(iii) manifests an intent to cast a wide net in separately criminalizing driving with either a controlled substance, or a metabolite thereof, in one's blood stream. Each subsection contains an element that the other does not and the Commonwealth can prove a violation of one subsection without proving a violation of the other.
Additionally, the Majority's analysis ignores the precedent of this Court establishing that a single course of conduct can subject a defendant to multiple sentences under subsections of the same criminal statute. See Commonwealth v. Rhoades , 8 A.3d 912, 917-18 (Pa.Super 2010) (holding multiple convictions for aggravated assault stemming from a single course of conduct but charged at separate subsections of the same statute did not merge due to lack of similarity in the respective statutory elements); see also , e.g. , Commonwealth v. Talley , 236 A.3d 42, 52-54 (Pa.Super. 2020) (holding that multiple convictions for stalking charged at different subsections of the same statute did not merge under § 9765 ).
The Majority's argument also suggests that the different subsections of Pennsylvania's DUI statute "simply provide alternate means by which the Commonwealth can establish the offense." Majority Opinion at 512. In Commonwealth v. Talley , 236 A.3d 42, 52-54 (Pa.Super. 2020), this Court explicitly rejected a very similar argument that the separate subsections of Pennsylvania's stalking statute were merely "alternate means of proving the same offense" for merger purposes under § 9765. Specifically, this Court concluded that these offenses did not merge because, inter alia , "not all of the elements of one subsection ... are included in the other." Id . at 54.
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I am greatly concerned that the Majority's holding will encourage the disparate application of § 9765 by creating one merger doctrine that applies to Pennsylvania's DUI statute, and a separate merger doctrine for all other criminal statutes. Accordingly, I respectfully dissent as to the Majority's finding of merger. In all other respects, I concur in the Majority's holding.