COMMONWEALTH OF PENNSYLVANIA v. SHAUN KARL GIVEN
No. 1886 MDA 2019
In the Superior Court of Pennsylvania
December 23, 2020
2020 PA Super 296
DUBOW, J.
J-S31029-20; Appeal from the Judgment of Sentence Entered March 27, 2019 In the Court of Common Pleas of Perry County Criminal Division at No(s): CP-50-CR-0000129-2018
OPINION BY DUBOW, J.:
FILED DECEMBER 23, 2020
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“).1 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
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
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
- Whether the Commonwealth introduced sufficient evidence at trial to support Appellant‘s DUI convictions; and
- 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).2
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.
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.
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, --- A.3d ---, 2020 WL 5816028 at *6 (Pa. filed September 30, 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
In an issue of first impression, we conclude that a defendant should not be subject to separate sentences for multiple convictions under
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
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)[.]
Section 3802(d)(1) makes it a crime for a person to drive after using a Schedule I controlled substance.
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 (Pa. Super. filed July 12, 2019) (non-precedential decision), the trial court imposed separate
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
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.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2020