Opinion
J-S75035-16 No. 101 EDA 2016
02-14-2017
COMMONWEALTH OF PENNSYLVANIA v. HEMANT KOHLI, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered on October 21, 2013 in the Court of Common Pleas of Chester County, Criminal Division, No(s): CP-15-CR-0000569-2013 BEFORE: BOWES, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Hemant Kohli ("Kohli") appeals, nunc pro tunc, from the judgment of sentence imposed following his conviction of driving under the influence ("DUI"). See 75 Pa.C.S.A. § 3802(a)(1). We vacate the judgment of sentence and remand for resentencing.
The trial court has set forth an extensive recitation of the underlying facts in its Opinion, which we adopt for the purpose of this appeal. See Trial Court Opinion, 3/10/16, at 4-19.
On August 6, 2013, following a jury trial, Kohli was found guilty of one count of DUI. The jury also found that Kohli had refused to submit to a blood test. On October 21, 2013, the trial court sentenced Kohli to 18 to 36 months in prison, followed by two years' probation. Kohli did not file a direct appeal.
At sentencing, the trial court noted that the conviction at issue in this case was Kohli's third DUI conviction in a ten-year period. N.T., 10/21/13, at 5, 9.
On September 8, 2014, Kohli filed a counseled Post Conviction Relief Act ("PCRA") Petition. On December 3, 2015, with agreement of the Commonwealth, the PCRA court entered an Order granting Kohli the right to file a nunc pro tunc direct appeal. Thereafter, Kohli filed a nunc pro tunc appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.
On appeal, Kohli raises the following questions for our review:
1. Whether the evidence was insufficient as a matter of law to sustain [Kohli's] conviction for [DUI]?Brief for Appellant at 2.
2. Did the Common Pleas Court [err] in imposing a minimum mandatory sentence?
In his first claim, Kohli contends that the evidence was insufficient to support his conviction. Id. at 7. Kohli argues that he only had one drink approximately seven hours prior to the vehicle stop; when he stopped his vehicle at the stop sign, the vehicle only slightly went past the sign; he was able to pull over when the officer engaged his emergency lights; and there was no other evidence of erratic driving. Id. at 8-9. Kohli asserts that he passed the first field sobriety test and only exhibited signs of impairment on the "walk and turn test and [the] one[-]leg test." Id. at 9. Kohli further denies that he slurred his speech, had bloodshot eyes, admitted to drinking alcohol, or engaged in any extreme behavior. Id. Rather, Kohli claims that he was coherent at the time of the stop. Id. Kohli also contends that there was no blood alcohol or drug testing conducted to demonstrate that he was under the influence. Id. Kohli argues that he refused to submit to a blood test because he was battling a skin disorder and was prone to infection from a needle. Id. Kohli asserts that he should have been provided an alternative chemical test, and that such a test could have rebutted the Commonwealth's allegations. Id. at 9-10.
The trial court set forth the relevant law, addressed Kohli's sufficiency claim, and determined that it is without merit. See Trial Court Opinion, 3/10/16, at 2-21. We adopt the trial court's sound reasoning for the purpose of this appeal. See id.
We note that Kohli's claim regarding the failure to conduct blood alcohol testing does not render the evidence insufficient to support his DUI conviction under section 3802(a)(1). See Commonwealth v. Teems , 74 A.3d 142, 145 (Pa. Super. 2013)
In his second claim, Kohli contends that his mandatory minimum sentence was illegal based upon Alleyne v. United States , 133 S. Ct. 2151 (2013). Brief for Appellant at 11. Kohli argues that his sentence is illegal because the jury did not find beyond a reasonable doubt all facts necessary to require imposition of a mandatory minimum sentence. Id.
Kohli's failure to include this legality claim in his Rule 1925(b) Concise Statement does not result in waiver. See Commonwealth v. Henderson , 938 A.2d 1063, 1065 n.1 (Pa. Super. 2007) (stating that appellant's failure to include a legality of sentence challenge in his Rule 1925(b) concise statement did not result in waiver, as such a claim cannot be waived where jurisdictional requirements are met).
We note that Kohli does not identify the "fact" that the trial court utilized in imposing the mandatory minimum sentence. See Pa.R.A.P. 2119(a) (stating that the argument must contain "such discussion and citation of authorities as are deemed pertinent."). Here, Kohli was subject to the mandatory minimum sentence under 75 Pa.C.S.A. § 3804(c)(3). See N.T., 10/21/13, at 21.
Section 3804(c)(3) states the following:
(c) Incapacity; highest blood alcohol; controlled substances.--An individual who violates section 3802(a)(1) and refused testing of blood or breath or an individual who violates section 3802(c) or (d) shall be sentenced as follows:75 Pa.C.S.A. § 3804(c)(3).
***
(3) For a third or subsequent offense, to:
(i) undergo imprisonment of not less than one year;
(ii) pay a fine of not less than $2,500; and
(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.
Here, the mandatory minimum sentence was imposed based upon Kohli's prior convictions, his violation of section 3802(a)(1), and his failure to consent to a blood test. See N.T., 8/6/13, at 63-64. Prior to addressing Kohli's claim on appeal, we will first determine whether the imposition of the mandatory minimum sentence violated the recent United States Supreme Court holding in Birchfield v. North Dakota , 136 S. Ct. 2160 (2016).
We note that sentencing issues relating to a court's statutory authority to impose a sentence implicate the legality of sentence. Commonwealth v. Foster , 17 A.3d 332, 342 (Pa. 2011). While this issue was not raised by the trial court, the Commonwealth, or Kohli, it is well-settled that legality of sentence questions may be raised sua sponte by this Court. See Commonwealth v. Wolfe , 106 A.3d 800, 801 (Pa. Super. 2014).
In Birchfield , the Supreme Court concluded that "a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving." Birchfield , 136 S. Ct. at 2185. Additionally, the Supreme Court held that blood tests taken pursuant to implied consent laws are an unconstitutional invasion of privacy. Id. at 2186. The Supreme Court stated that "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Id.; see also id. (concluding that the petitioner could not be convicted of refusing a warrantless blood draw following an arrest for driving under the influence).
As the Birchfield Court held that the practice of criminalizing the failure to consent to blood testing following a driving under the influence arrest was unconstitutional, the trial court improperly relied upon section 3804(c)(3) in imposing a mandatory minimum sentence upon Kohli. See Commonwealth v. Giron , 2017 PA Super 23, *4 (Pa. Super. 2017) (holding that "pursuant to Birchfield , in the absence of a warrant or exigent circumstances justifying a search, a defendant who refuses to provide a blood sample when requested by police is not subject to the enhanced penalties provided in 75 Pa.C.S.A. §§ 3803-3804."). Because there was no statutory authority to impose the sentence, we must vacate the judgment of sentence and remand for resentencing. See id.
Based upon our disposition, we need not further address Kohli's bald Alleyne challenge.
Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/14/2017
Image materials not available for display.