*1 104A.3d Pennsylvania, Appellee v. COMMONWEALTH TAYLOR, Terry Appellant. Lee Pennsylvania. Supreme Court Argued May 2014. Nov.
Decided *2 Brink, Ian Michael Franklin Esq., County Public Defender’s Office,for Lee Terry Taylor. Kerstetter,
Laura Jeanette Matthew Esq., Fogal, Drew Office, Esq., County Franklin District for Attorney’s Common- wealth of Pennsylvania.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
OPINION Justice BAER.
In this discretionary appeal, Terry Taylor Lee (Appellant) was for driving sentenced under the influence of alcohol or a “full assessment (DUI), without a substance controlled to sen- addiction,” required “prior which drug alcohol Code, 75 Pa.C.S. of Vehicle tencing” by therefore, without 3814(2).1 sentence, His recommenda- treatment or alcohol consideration See 75 provided. have may an Assessment tions that to advance assessment (requiring drug 3804(b)(2)(iv) recommendations); (providing id. treatment with “comply he must a defendant’s that as part under requirements imposed and alcohol treatment all 3815(c) treatment 3815.”); (requiring id. sections 3814 made under sec- recommendations to assessment to “conform therefore, is entitled to 3814.”). that he argues Appellant, tion vacated, compliance to be assessed his sentence have 3814(2), after consideration and to be resentenced Supe- therein. proffered recommendations treatment any his judgment rejected argument, upheld this rior Court *3 that the presen- we agree sentence. Because 3814(2) mandatory compo- is a of Section requirement tence offenders, that a for DUI scheme nent of cannot these requirements contrary compli- after resentencing remand for stand, reverse and we part, follows: provides, in relevant 1. Section guilty to a violation pleads or no contest convicted or If a defendant is driving of alcohol or (relating under influence 3802 of section sentencing: substance), following apply prior to controlled (2) for alcohol subject to a full assessment shall be The defendant following subparagraphs apply: any if addiction defendant, for which (i) years prior to the offense within ten for an offense being imposed, has been sentenced sentence is under: (A) 3802.... section 3814(2)(i)(A). part, as provides, in relevant § 3802 Section 75 Pa.C.S. follows: drive, physical control operate be in actual may not individual An imbibing amount of a sufficient a vehicle after the movement of individual’s blood in the the alcohol concentration alcohol such that after within two hours than least but less 0.16% or breath is at 0.10% driven, physical control operated or been in actual the individual has of the vehicle. the movement 3802(b). 3804, 3814, anee with Code, Sections and 3815 of the Vehicle as explained below. 24, 2011,
On October Appellant pled guilty to DUI for 3802(b) violating Section of the Vehicle Code. 75 Pa.C.S. 3802(b), supra, n. 1. This was Appellant’s second DUI Thus, offense. range standard for Appellant’s minimum thirty days incarceration, to three months of the statutory maximum was six months. See Pa.C.S. 3804(b).
Because Appellant was convicted of a violation of Section 3802, subject he was to the provisions of Section entitled assessments,” “[d]rug and alcohol which provides that “[i]f defendant is convicted or pleads guilty or no contest to a violation of section 3802 (relating driving under influence of substance), alcohol or controlled the following apply prior to sentencing----” §at First, Id. supra n. 1. 3814(1) requires every DUI offender “shall” be an initial evaluation as follows: 3816(a) The defendant shall be evaluated under section
(relating requirements for driving under influence offend- ers) and other any additional evaluation techniques deemed appropriate by the court to determine the extent of the defendant’s involvement with alcohol or other drug and to assist the court in determining what type sentence would benefit the defendant and public. (hereafter, evaluation). initial
3816(a), turn, requires the evaluation to utilize:
... 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 *4 what determining sentencing ... would benefit the person or the public. 3816(a).
Id. at addition, In 3814(2), which directly is implicated case, offenders, this requires certain DUI such as Appel- lant, who, alia, inter have had a prior DUI conviction within the last ten years, “shall be to a full assessment for 3814(2), n. 1. The supra §Id. and addiction----” drug alcohol (hereafter, and addiction” drug for alcohol assessment “full Assessment) of Health Department by to be conducted drug for responsibility with county agency designee, or its by licensed personnel programs, and alcohol treatment treatment drug to conduct of Health Department 3814(3). that “[t]he directs § Id. programs. and shall safety public issues of shall consider [Assessment] (i) Length following: for all of the include recommendations (iii) and care[;] care (ii) Follow-up Levels of [and] stay[;] 3814(4). §Id. monitoring.” in need of additional to be is “determined
If the offender 3814(2),” di- then the statute to section pursuant treatment as minimum sentence “a court to sentencing rects the to the statuto- equal and a maximum by law provided 3804(d).2 further The statute § Id. available maximum.” rily and authority supervi- “parole court with vests by identified 3815(a), that offenders sion,” and directs id. alcohol treat- drug in need of being the Assessment their following expiration parole for eligible ment are 3815(b)(1).3 are minimum These offenders Id. sentence. 3804(d) provides as follows: 2. Section and, chapter after the initial this person pursuant If a is sentenced 3814(1), person is determined to required section assessment 3814(2), the pursuant section of additional treatment be in need provided law and sentence as judge impose a minimum shall A statutorily available maximum. equal to the maximum sentence pursuant statutorily maximum available sentence to the court, be may, in the discretion of subsection this notwithstanding provi- county prison, in a ordered to be served sentencing proceeding; place (relating sions of confinement). 3804. part, as follows: provides, in relevant Section 3815 (b) Parole.— (relat- (1) pursuant to section 3814 An who is determined offender assessments) in need of to be ing alcohol parole eligible in accordance treatment shall alcohol following the prescribed in this section conditions the terms and imprison- term of minimum expiration the offender’s ment. parole: following be conditions of shall *5 conditions,
subject sentencing to the court’s which parole include from the refraining drugs partici- use of alcohol or and pating cooperating and with the and alcohol treatment drug Id. 3815(b)(2)(ii), (c). recommended in the Assessment. An offender who fails to with the treatment comply by ordered Id. the sentencing court is to the revocation of parole. 3815(d)(2)(i).4 Appellant was scheduled for on November sentencing appeared 2011. He on that sentencing date and indicated to the court that due to in his in- neuropathy legs, which being braces, volved fitted for he leg would be unable to thirty day serve the minimum sentence of incarceration asso- (i) procedures If the offender is not determined under the set forth substance, in section 3814 to be addicted to alcohol or another offender must refrain from: (A) substances; illegal the use of controlled and (B) prescription drugs, drugs the abuse of any over-the-counter or other substances. (ii) If procedures the offender is determined under set forth in substance, section 3814 to be addicted to alcohol or another following: offender must do all of the (A) Refrain from: (I) substances; illegal the use of alcohol or controlled (II) prescription drugs, drugs the abuse of any over-the-counter other substances. (B) Participate cooperate in and with and alcohol addiction (c). treatment under subsection (c) Treatment.— (1) Treatment must conform to assessment recommendations made under section 3814. Treatment must be conducted and alcohol addiction program Department treatment (3) licensed of Health. program The treatment report periodically assigned shall
parole officer progress on the offender’s program the treatment 75 Pa.C.S. 3815. Assessments, funding directing Section 3815 also addresses the sentencing impose upon court "shall an offender ... reasonable offender____[and] fees to cover the ... cost of assessment of the [a]n [d]rug provided or alcohol treatment in accordance with the assess- 3815(f)(1). ment.” Id. If the court finds that the offender costs, pay is unable to the full amount of require these then it "shall pay offender to as much of the fee as is consistent with the offender's ability pay assigned parole shall direct the officer to establish a payment pay reasonable schedule for the offender to as much of the conviction,5 given his instead requested
dated with home intermediate confinement electronic an time, at that monitoring.6 Rather than a sentence provide in order to Ap- court continued matter to obtain substanti- opportunity documentation pellant *6 Additionally, the sentenc- ate his asserted medical condition. on it brought up court would later state that this date ing 3814(2). need for an Assessment as required 1/11/2012, at 4.7 Testimony, Notes of 2012, January 11, newly for the Appellant appeared
On hearing. He medical informa- provided scheduled condition, to his asserted medical and re- tion substantiate him his that the court sentence to home request newed medical confinement with electronic for reasons.8 monitoring he was to an Additionally, argued that entitled Appellant prior sentencing, obligated Assessment to that the court to designated to order one the entities Assessment, reflect conduct an his sentence should remaining ability pay.” Id. fees consistent with the offender’s as is 3815(f)(2). hearing subsequent sentencing Appellant at a that he was 5. stated term unable to serve the minimum of incarceration because 1/11/2012, Testimony, neuropathy. therapy involved with the Notes of at 2. 12, explained Kyle, we 582 Pa. 874 A.2d 6. As Commonwealth v. (2005): 24 9763(c) authorizes a court inter- punishment part DUI. to that mediate sentence for Pursuant punishment, any may the court attach of number of intermediate upon necessary____The as it Penn- conditions the defendant deems sylvania pun- Code sets forth the various levels intermediate also ishment. Pa.Code 303.12. Although the indicated that the of the Assessment was 7. court sentencing hearing, at at oral mentioned the November Court, parties argument that in Franklin before this conceded place for an County procedural there is no mechanism in offender not, time, any Appellant did at receive obtain an Assessment therefore such Assessment. Although sentencing transcripts Appellant provided reflect that condition, regarding court with his medical documentation Appellant Appellant’s did not. medical Commonwealth asserts condition, however, germane appeal. is not the current any treatment court, recommendations made therein. The however, stated that the burden was on Appellant to contact one of the responsible entities to obtain an prior Assessment to sentencing, so, suggested having failed to do Appellant had waived his entitlement to a sentence that incorporated treatment.
In determining Appellant’s the court reviewed a “DUI Sentence Recommendation prepared by Sheet” Franklin County Office, Adult Probation which suggested the performance 3814(2). of an Assessment in accord with Section Notwithstanding Assessment, lack of an the sentencing sentenced to a term of incarceration and denied his request for intermediate punishment for two rea- first, sons: to the extent Appellant’s request was motivated by treatment, his need for medical the sentencing court was willing allow medical jail treatment;9 release from for second, to the extent Appellant’s request was premised on his desire treatment, the trial court stated *7 that an Assessment was a prerequisite for such treatment and faulted him for failing to obtain one. The court imposed a forty-five days to six in months the Franklin jail, County staying imposition of the sentence pending this appeal upon Appellant’s request. The sentencing order fur- ther directed Appellant to obtain an Assessment post-sen- tence.10
Appellant appealed Court, to the Superior raising two is- sues: whether the sentencing court imposed an illegal sen- 3814(2) tence in contravention of Section him sentencing without first obtaining Assessment; an and whether the bur- den was on Appellant to obtain an Assessment to prior sentencing, such that his failure to do so resulted in waiver of this presentence requirement.
9. 42 (providing See 9813 may that the trial court make “the eligible jail during offender necessary to leave the and reasonable hours purpose securing for the of ... medical treatment particular, In under a section requirements” entitled "treatment in 10. order, sentencing the the court complete “Drug directed to and Alcohol Treatment 75 Drug Pa.C.S.A. Full & Alcohol Assess- ” (emphasis original). ment 1925(a) 1925(a), Pa.R.A.P. the sentenc- opinion, In its Rule of law committed” an error “arguably that it court noted ing Assessment, recognizing compel presentence by failing Borovichka, decision, v. Commonwealth recent Court Superior the accepted the court which (Pa.Super.2011), A.3d 1242 is a Assessment that a Section argument condition. presentence three, Borovichka, for a tier defendant was sentenced
In incar- day term of ninety to a minimum offense DUI second one well below year, sentence of ceration with a maximum offense, to his years applicable of five statutory maximum Assessment. The Com- an having undergone first without completed that an Assessment arguing appealed, monwealth need for the defendant’s indicated following sentencing11 obligation under treatment, court’s triggering 3804(d) statutorily available sentence him to argued five The Commonwealth years. maximum sentence of because it was illegal that Borovichka’s sentence Assessment, alcohol prior completion 3814(2). contrary by requiring agreed, holding Superior Court sentencing, legisla- conducted prior
Assessment to be information court with sought provide ture offender’s involvement extent of the to address the necessary the benefit alcohol, a sentence for drugs Superior A.3d at 1242. The public. the offender and the a sentence had imposed the court held that because Court Assessment, the requisite it lacked an obtaining without first and rehabilita- punishment to craft individualized information Thus, the court 3814 and Sections required tion remanded for resen- judgment vacated Id. tencing. *8 ob- sentencing court’s and the Borovichka
Notwithstanding
error of law
an
it
committed
arguably
servation that
Assessment, of an
without the benefit
a sentence
imposing
its view that
explained
sentencing court nevertheless
to be
directed an Assessment
why the
court
It is unclear
3814(2).
language of Section
contrary to the
completed post-sentence,
here,
illegality is confined to circumstances not
such
present
as where the sentence exceeds the lawful
range
maximum
the court
jurisdiction.
e.g.,
lacks
See
Commonwealth v. Shiffler,
(2005)
83 Pa.
With to Appellant’s second issue on appeal, sentencing court explained its view that the burden of obtain- ing Assessment is on the offender. The court suggested that the basis for this conclusion was the cost of the Assess- ment and the source of payment, stating that the agencies directed provide Assessment are not court agencies, County and Franklin had not provided the resources to pay for Assessments. The suggested court obtaining not an Assessment independently, Appellant had any waived benefit that could have resulted there- from. appeal Court,
On to the Superior on Appellant relied Boro- vichka and the plain language of Section argue an Assessment required prior to the imposition of sen- tence, and that a sentence imposed without it was an illegal sentence. argued further that the sentencing committed an error of law by requiring him independently Assessment, obtain an suggesting by failing to do so Appellant had waived any sentencing or treatment benefit that may have resulted from it.
557 unpublished affirmed in an memoran- Court Superior dum, first having that a sentence without holding was sen- illegal a Assessment not an presentence received 3804(d) because re- The court reasoned that Section tence. the maximum sen- statutorily of available quires imposition or drug tence an has been found in need of where individual Assessment, to an and the sen- pursuant alcohol treatment to the maximum statutory court sentenced tencing incarceration, the results Assessment of six months of of an had no maximum sentence. impact Appellant’s would have on no the surmised “there is Accordingly, Superior Court that an other illegal that received [Appellant] contention to the than was sentenced complaint prior [he] full to completion drug pursuant of a and alcohol assessment did Superior Appel- 3814.” The Court not address lant’s it not his burden to contact position waiver the Assessment or that responsible agencies obtain context; nor did the sentencing did not in this concepts apply language court of mandatory confront pur- a or Assessment’s requiring presentence Assessment conditions of allowing parole completion after pose a minimum sentence. defendant’s three is appeal address granted
We allowance (1) has sentencing authority sues: “whether a court § 3802 individual of 75 sentence an for a violation [Pa.C.S.] (DUI) full alcohol to the of a prior completion under requirements [75 assessment (2) § 3814 ];” language [Pa.C.S.] whether “the 75 a mandatory sentencing provision requiring [is] prior imposition with its comply requirements violation, an [is] of a for a DUI or 3814 [whether] court’s disregarded at optional provision can be discretion;” ability “a [defendant [has] whether conduct, otherwise, of 75 requirements to waive through 3814, enter a permit court to [Pa.C.S.] has even a full and alcohol assessment though v. completed prior sentencing.” not been Commonwealth (2013). 123, addressing 74 122 Taylor, 621 Pa. A.3d When questions statute, of law such as the interpretation of a our Com., scope of review is plenary, C.B. ex rel. R.R.M. v. Dept. 141, 176, (2001), Public 567 Pa. Welfare, 786 A.2d 180-81 novo, and our standard of review is de South Newton Twp. Bouch, Electors v. Twp. Sup’r, South Newton 575 Pa. (2003). A.2d *10 the first two
Addressing together, issues Appellant argues that the Section Assessment is and must be completed to prior sentencing. As support, Appellant relies plain 3814, 3804, 3815, on a reading Sections and the Superior Court decision in Borovichka.
Appellant argues Chapter that 38 of Title 75 repeatedly indicates that the Assessment is a mandatory presentence requirement, on relying First, several specific provisions. *11 alcohol; minors; (b) vehicles and commercial High of blood rate vehicles; Except forth in as set buses and school school accidents.— 3802(a)(1) (c), where who violates section an individual subsection injury bodily resulting bodily injury, in serious accident there was an property or damage to a vehicle or other any person or or death of (f) 3802(b), (e) as follows: be sentenced shall who violates section offense, a second to: For (i) days; imprisonment less than 30 undergo of not $5,000; (ii) more than $750 than nor pay a fine of not less by the (iii) safety approved highway school an alcohol attend department; and requirements im- (iv) drug and alcohol treatment comply with all and 3815. posed under sections 3814 pursuant (d) person is sentenced supervision of court.—If a Extended and, required by section the initial assessment chapter after to this 3814(1), treat- in need of additional person determined to be 3814(2), impose minimum judge shall pursuant to section ment equal to the and a maximum sentence provided law sentence as statutorily avail- A statutorily maximum. available may, in pursuant this subsection maximum able court, county in a sentencing to be served be ordered of the discretion (relating § 9762 notwithstanding provisions of 42 Pa.C.S. prison, confinement). place sentencing proceeding; (d). 3804(b)(2), 75 Pa.C.S. Assessment, treatment; that the indicating in need of further court is to review the recommendations of sentencing required parole, the Assessment before and and to that accommodates them. parole sentence of argues provisions that his construction of these 38 is consistent with the behind them. Chapter policy Specifi- cally, according Appellant, Section 3814 is a remedial stat- through legislature sought punish- ute which the to combine ment with treatment DUI offenders and to options repeat enable the courts to consider an offender’s treat- 3814(1) a sentence. See imposing ment when (with evaluation, to the initial that a regard providing DUI offender “shall” be to “evaluation deemed techniques appropriate by the court to determine the extent of the defendant’s involvement alcohol or other and to assist the court in determining type what of sentence would id. benefit the public.”); defendant and the (requir- ing Assessment mandated to include care, recommendations concerning length stay, levels care). follow-up that a
Appellant argues sentencing court could not accom- the remedial plish legislative purposes of rehabilitation for the benefit of offenders and the if the Assessment public recommendation are not completed prior considered sentencing. According Appellant, utilizing the Assessment to inform the sentencing court of an offender’s or alcohol treatment needs after as the sentencing, sentencing court this case would lead to an absurd contemplated, result because an offender would already have been sentenced without con- sideration of his treatment support, Appel- needs. As further lant relies on Borovichka and the Superior acceptance Court’s case, argument, the context of that that a Section *12 mandatory presentence Assessment is a condition. to the final
Turning appeal, Appellant issue on that a argues otherwise, defendant has no ability, through conduct or to waive the requirements of Section 3814. character- Appellant izes the may Section Assessment not as a that be right defendant, waived a criminal but as a mandatory compo- He he can no sentencing scheme. asserts that nent of the and treatment drug the Assessment and alcohol more waive than he 3814 and 3815 requirements imposed under Sections minimum fines incarceration can the waive See 75 by Section 3804. required terms supra, n. 13. together, issues the Common- first two
Responding reasoned, that, “there is as the Court argues Superior wealth other illegal no received an sentence Appellant contention not pursu- that an completed [Assessment] than the fact ant Brief at 4. to 75 Pa.C.S.A. 3814.” Commonwealth’s 3804(d) although requires Commonwealth asserts that to equal the court to a maximum sentence sentencing enter is assessed statutorily person the available maximum when to be in additional found need of to there requirement treatment is no pursuant person if a is assessed and imposed that a lesser Therefore, found not to be need of additional treatment. Commonwealth, the not entitled to according Appellant to not and the results of an Assessment would lesser illegal.14 render his sentence Borovichka, distinguishes the
Turning Commonwealth illegal an factually case as follows: Borovichka received of a Assessment post-sentence sentence because results treatment, the defendant’s need for alcohol indicated court’s triggering sentencing obligation thereby years. maximum of five The sentenc- statutory court, however, ing prior sentenced defendant having Assessment, not the five- had completion him a maxi- maximum, sentencing year statutory instead Commonwealth, one year. According mum sentence of is not in as the defendant position the same im- already because here Borovichka Commonwealth, making argument, appears that the like In this it court, legality, premised takes view of sentence a narrow implicated if the proposition legality that the of a sentence is not on the See, range. e.g., Shiffler, at within the 879 A.2d sentence is standard lawful (providing appellant’s if sentence exceeded the maximum, illegal). it would be deemed *13 Therefore, the posed statutory maximum. according to the Commonwealth, if a hypothetical Assessment indicated that treatment, Appellant was not need of this sentence; would not entitle him to a lesser and if that Assess- treatment, ment indicated the need such the six month statutory maximum sentence Appellant has received already apply. would issue,
Turning to the third the argues Commonwealth that a ability, otherwise, defendant has the his through conduct or waive the requirements of permit and to the trial court to without the benefit of the Assess- facts, ment. Under these the Commonwealth argues that Appellant had two nearly months between the initial sentenc- ing 23, 2011, on hearing November and the rescheduled 11, 2012, sentencing hearing on January within which to have the Assessment completed. so, Having failed to do according Commonwealth, to the forfeited his right to the Assessment and to have court consider his treatment needs. sections,
Before analyzing relevant statutory we turn to the Commonwealth’s position that Appellant’s issues on appeal implicate do not the legality of his sentence because it was within the statutory It range. appears to be the Common- position wealth’s imposition absent the of a sentence that maximum, exceeds the statutory Appellant cannot forward a preserved claim implicating legality of his sentence.
The question of whether a implicates claim the legality of a sentence, as opposed to the discretionary aspects of a sen- tence, is relevant for purposes Section 9781 of the Sentenc- Code, ing 9781.15 According to Section if provides, part, Section 9781 in relevant as follows: (a) Right appeal. may defendant or the ap- Commonwealth —The
peal right legality as of of the sentence. (b) appeal. Allowance of defendant or the may Commonwealth —-The petition appeal file a discretionary for allowance of of the aspects of a felony sentence for a appellate or a misdemeanor court that jurisdiction has initial appeals. for such appeal may Allowance of granted appellate at the appears discretion of the it where sentence, the defendant legality implicates the issue Court, and this Court Superior right as of may appeal appeal, see permissive the issue on consider may discretionary 9781(a); aspects concerns the if the issue however, petition Superior must litigant 9781(b); Pa.R.A.P. id. appeal, for allowance Court *14 2119(f), permitted beyond ... shall be appeal “[n]o for such jurisdiction appeals.” initial court that has appellate of 9781(f). Moreover, aspects legality/discretionary Id. issue parties’ preservation dichotomy determines Dickson, 364, v. 591 Pa. See, e.g., Commonwealth obligations. (“if (2007) 95, clearly implicates the sentence 99 918 A.2d below sentence, properly preserved it was whether legality of sentence moment, legality challenge as a is of no waived.”). cannot be of a sen legality question implicates a
Whether
v.
of law. Commonwealth
a pure question
tence presents
1268,
(2014);
512,
1276
Common
98 A.3d
626 Pa.
Eisenberg,
(2011)
502,
332,
n. 13
Foster,
17 A.3d
340
609 Pa.
wealth v.
J.)
Baer,
by
(citing
of Court
Announcing Judgment
(Opinion
(2008)).
Samuel,
166,
57
Pa.
961 A.2d
v.
Commonwealth
in numerous expres
have resulted
this Court
Recent cases
See,
in four
(resulting
Foster
e.g.,
illegality.
sions of sentence
to sentence
approaches
preferred
opinions explaining
separate
see also Com
preservation);
of issue
illegality
purposes
453,
299,
460-61
Pa.
80 A.3d
v.
Spruill,
monwealth
in claims
sen
implicating
involved
(noting
complexities
a
offered to overcome
are most often
which
illegality,
tence
the trial court or
issue before
preserve
failure to
without
Superior
Court
review before
to secure direct
review in accord
for allowance of
having
petition separately
9781(b)).
sen-
example
the classic
Although
with Section
imposed is not
question that
the sentence
there is a substantial
chapter.
appropriate under this
(f)
appeal of the
appellate review.—No
Limitation on additional
permitted beyond the
discretionary aspects of the sentence shall
appeals.
jurisdiction
initial
for such
appellate court that has
illegality
tence
is where the sentence
exceeds the
maximum, see,
statutory
879 A.2d at
there
e.g., Shiffler,
are numerous other instances as well.
We are not confronted in this case
the divisive circum-
stance
illegality
of sentence
often asserted to overcome a
preserve
failure to
an issue below.
claim
Appellant’s
properly preserved and the
argue
Commonwealth does not
However,
otherwise.
we must
Appel-
still determine whether
sentence,
implicate
lant’s issues
of his
legality
opposed
to the discretionary aspects of his
because of the
dichotomy
as discussed below.
Eisenberg,
See
In this
respect,
basis of
is that the
Appellant’s challenge
had no discretion to
without the legislatively required Assessment contained within
3814(2),
thereby implicating the
legality
his sen-
*15
M.W.,
505,
tence. See In re
555 Pa.
565 Here, Assembly where the established maximum. General fol- scheme that was not sequential sentencing mandatory lowed, implicates conclude that Appellant’s challenge we fell notwithstanding his that the sentence legality of statutory range. (cid:127)within the which allowance of involve granted appeal
The issues for we of of 38 of Title Chapter several interpretation provisions 75, and 3804. As in all cases Sections 3814-15 specifically, statute, of the we are guided provisions interpreting § 1901 Pursuant Act, 1 et Statutory seq. Construction Act, object statutory is to to this of all construction intent. 1 Pa.C.S. legislative ascertain and effectuate See (“The 1921(a) of object of all and construction interpretation of the to ascertain effectuate the intention statutes is and Sternlicht, 149, 583 Pa. 876 Assembly”); General Sternlicht v. (2005). 904, indication of this intent is the A.2d 909 The best Sternlicht, 909; at 876 A.2d plain language statute. 143, Co., 573 Pa. Manufacturing v. Gilmour Commonwealth (2003). Further, statutory in analyzing A.2d “[wjords according shall construed language, phrases common and according to rules of their grammar the words of a 1903. “When approved usage____” Pa.C.S. it the letter of is ambiguity, statute are clear free from all its pursuing spirit.” not disregarded pretext to be under 1921(b). statutory the rules of construction Applying conclude that several we provisions Chapter language two the plain correct on the first issues because that an Assessment is a indicates provisions 3814 and other presentence requirement. Section and treatment and alcohol assessments pertaining Pennsyl significant changes enacted in 2003 part were *16 laws, legal drunk-driving lowering included vania’s which for on and alcohol focusing drug level and blood-alcohol DUI See, e.g., Pennsylvania and Governor’s evaluation treatment. (available histo legislative in the Message, statutory 9/30/2003 3814). § DUI offender who ry, every 75 Pa.C.S. For under the (“Driving of a violation of 3802 Section convicted substance”), influence of alcohol or controlled provisions 3814 “apply prior sentencing.” Section 75 Pa.C.S. 3814.16 3814(2) case, Relevant to this directs that the of- subject fender “shall be to a full assessment for alcohol and drug addiction” if of several subsections any apply, including where the prior offender has a DUI conviction within the last years.17 certain, ten the full By requiring Assessment under 3814(2) specified circumstances “prior sentencing,” Section plainly unambiguously requires completion its prior imposition court’s of the the legis- demonstrates lative intent that the court utilizes the Assessment as a tool in creating a sentence for the benefit of the offender the public.
Further, by phrasing requirement lan- guage, Assembly General left no doubt that the Assess- ment is a mandatory part sentencing scheme that dispensed cannot be with at the sentencing court’s discretion. 3814(2) (“The subject Pa.C.S. defendant shall be to a full ....”) assessment for alcohol and drug (emphasis addiction added). legislative
16. Consistent with the scheme to focus on treatment, evaluation and every directs that DUI of- subject any techniques fender be evaluation the trial court deems appropriate "to determine the extent of the defendant’s involvement determining with alcohol or other and to assist the court in what type of public.” sentence would benefit the defendant and the 3814(1). Specifically, the full applies Assessment under Section under following circumstances: defendant, (i) years prior within ten to the offense for which being imposed, sentence is has been sentenced for an offense under: 3802; (A) section 3731; (B) former section or (C) equivalent jurisdiction. an offense in another (ii) Either: (A) paragraph the evaluation under indicates there is a need treatment; counseling or (B) the blood defendant’s alcohol content at the time of the offense was at least. 16%. 3814(2). herein was to the Assessment conviction, prior years, virtue of his within ten for an offense under Section 3802. *17 mandatory requirement supported by This conclusion 3814(4) and alcohol Assessment drug that the full in Section of public “shall consider issues by Section required stay, length for” include recommendations and shall safety care, monitoring. care and follow-up and levels of to in- 3814(4). Assessment By requiring presentence § intended recommendations, Assembly the General these clude treatment the offender’s court consider sentencing that the offender benefit of the a sentence for the creating in needs 3815(c) offend- Id.; (providing § see also the public. drugs to or are addicted Assessment indicates ers whom the treatment, which, in and alcohol drug must participate alcohol made recommendations turn, to assessment in “must conform 3814”). under section mandatory, Assembly’s regard intent
The General else- is reflected of Section requirement presentence person by requiring every In particular, Chapter where to the initial evaluation to be convicted of DUI 3814(1) (“[t]he under shall be evaluated” defendant Section 3816(a), a determination requires which in turn Section alcohol), and providing or drugs with offender’s involvement court “in determin- is to assist purpose and the benefit the defendant of sentence would ing type what initial that the id., Assembly has indicated the General public,” to completed prior mandatory and must evaluation is also sentencing. for penalties which establishes
Turning Section reflects a this section DUI, agree we punishment that is focused on sentencing scheme remedial treatment and alcohol drug needed obtaining well as offense, impair- levels of at each of three For each offenders. “shall be sen- that the offender ment, 3804 directs fine, imprisonment probation, a term of tenced” to requirements treatment with “all comply alcohol (relating sections 3814 imposed under assessments) sentencing).” (relating and 3815 3804(a)(2)(iv); 3804(a)(l)(iv). § also id. § See 3804(b)(2)(iv); 3804(b)(l)(iv); § 3804(a)(3)(iii); § § 3804(b)(S)(iii); 3804(b)(4)(iii); 3804(c)(l)(iv); § 3804(c)(3)(iii). 3804(c)(2)(iv); An offender cannot be sen- tenced to with the treatment identified in the Assess- comply if not completed prior sentencing. ment the Assessment is 3804(d) Additionally, provides that the court is to utilize the results of the Assessment in “a imposing *18 provided by minimum sentence as law and a maximum sen- equal statutorily tence to the available maximum.” 75 Pa.C.S. 3804, n. The supra. sentencing court would be without sentence, the necessary impose information to such a and to treatment, without the benefit of a require necessary presen- tence Assessment.
Finally, according to Section which vests the sentenc- offenders, ing court with over parole authority DUI an offend- 3814(2) pursuant er who is determined to “to be in Section need of and alcohol treatment shall be eligible parole” for in accord with the terms of the following expira- Section 3815 tion of the minimum sentence. imposes sepa- Section rate conditions on offenders are not by who determined the procedure to be addicted to alcohol or another substance, and another set of for conditions those who are so determined. For offenders in the latter category, any drug and alcohol treatment sentencing is ordered court must conform to the recommendations set forth in the full Assessment. the presentence Without Assessment the sen- needs, will tencing court not know of the offender’s treatment if any, and would be unable to comply Section 3815.
The Commonwealth takes a narrow view of the Vehicle Code and the interaction between the full re- Assessment quired by Section sentencing. Relying on Section 3804(d), the Commonwealth if the argues sentencing court has maximum statutory the sen- tence is and the legal, mandatory, lack of the presentence Assessment is irrelevant. requirement Section 3804’s that the court sentencing impose equal to the statutory maximum, however, directly flows from that court’s consider- ation of the Assessment and the offender’s or need lack 3804(d) thereof for or alcohol treatment. an is to be need that where offender determined (providing 3814(2) As- to the Section pursuant of additional treatment sessment, sentencing required then the court maximum). statutorily imposing statutory purpose such is to ex- against maximum sentence offenders available authority to Sec- sentencing pursuant tend court’s parole needed treat- require complete tion offender 3815(b)(2)(ii)(B) Id (directing ment. an treatment revealed compliance with the needs require addicted parole as a condition offenders
Assessment alcohol); 3815(c) im- treatment drugs (providing condition “must conform to assessment posed parole as a 3814.”). Thus, made consider- recommendations under section treatment is a pre-requisite ation of an offender’s need for 3804(d) to the scheme statutory that he be maximum requirement therefore with the Commonwealth disagree sentence. We range of a within the standard imposition that the complies with the sen- required but Assessment without *19 3815, 3814, in and 3804. articulated Sections tencing scheme this not addressed Although previously Court has Superior in sentencing, relation to alcohol assessments above, the Borovichka agreed court Court As discussed has. as presented with therein Commonwealth argument not where it was appellant that the sentence could stand Assess- presentence drug prior ment, drug and “clearly mandates that because Section ...” 18 A.3d at occur before sentencing alcohol assessments order failing recognized “by 1255. The Court Superior to take the court place sentencing, evaluation before n withoutthe to meet necessary information to craft a sentence needs,” individual and therefore vacated Borovichka’s in accord resentencing judgment remanding with Sections no discre- hold court has
Accordingly, we violation tion a sentence for a DUI authority by completion required of the Assessment prior to includ- in certain circumstances requires, 3814. This section (where ing those herein presented Appellant had a prior DUI conviction within ten full years), and alcohol assess- ment, to be completed prior sentencing. For the benefit of the offender and the public, legislature set forth a specific and precise sentencing requires, scheme that in Sections 3804 the treatment recommendations developed through Assessment be implemented part the offend- er’s sentence. A sentence imposed without the requisite presentence Assessment does not comply with the Vehicle mandatory sentencing Code’s scheme for DUI offenders.
Turning us, to the final issue before we address wheth waive, er an ability offender has the by his conduct or otherwise, the full Assessment required by Section 3814 and to be sentenced without it. In this respect, County Franklin has not previously applied the requirements of Section 3814. Ac cordingly, at the time of Appellant’s initial sentencing hearing and the rescheduled hearing, there was no designated agency or personnel pursuant to Section providing presen tence Assessments Franklin nor County, was there a mech anism for an place offender to obtain an independent Assessment to present to the court before being sentenced. Additionally, the sentencing suggested that the reason Appellant did not obtain the Assessment was because there was no funding circumstances, available for it. Under these therefore, as conceded supra parties, n.
herein had no ability obtain an Assessment before being Having sentenced. no ability Assessment, to obtain the he cannot be faulted under these facts for not obtaining one.18
Therefore, we are not faced with a question Appellant’s non-compliance presentence Rather, requirements. we are faced with a question of the county’s noncompliance; a county that apparently did not implement Section *20 sentenced Appellant without providing him the opportunity explained, 18. As we have required by the Assessment is discretionary; mandatory component not it is a of the DUI legislature. scheme enacted It county is incumbent on each availability ensure the comply Assessments and to otherwise with the Vehicle Code. facts, Appel- we hold that these Assessment. Under obtain an requirement Assessment presentence not waive the lant did 3814(2), otherwise.19 his conduct or through Court, Superior the order of the we reverse Accordingly, resentencing and remand Appellant’s vacate and 3804. accord with Sections in the participate did not Former McCAFFERY Justice case. decision of this CASTILLE, and TODD Justices SAYLOR
Chief Justice join opinion. in which Justice dissenting opinion a EAKIN files
Justice joins. STEVENS EAKIN, dissenting.
Justice sentence without authority a court has no agree I cannot to[.]” defendant shall an assessment which “[t]he 3814(2). Furthermore, lack I that the disagree as the sentence illegal, appellant’s of assessment assess- range regardless was within the lawful I dissent. respectfully ment results. having from cry an assessment is a far “subject to”
Being “subject here was to” an assessment. The accused right to sentencing options all the things, including potential many not make the law—that does available under consequences this The clear mandatory. import consequences those assessment, an if the court ordered is language It “subject suggests is to it.” cooperate accused must —he idea, be a good an assessment would thought legislature However, an sentence. appropriate the court fashion helping demands an unequivocally it it is difficult to find where Does illegal. the sentence to be causing on pain assessment without an illegal a judge “subject to” merely is to which a defendant something waiver, noncompliance, not before us on Appellant's 19. Because day consequence of presented, for another facts we leave Assessment. noncompliance with a court-ordered defendant’s *21 572 more? I think not. It be so if the defendant
nothing might assessment, to” the or the judge “required” was “entitled it, that “mandatory,” to order or the assessment was but says. appellant is not what the statute simply Respectfully, argument has the rabbit into the hat his slipped premising § conclusory premise right on the that is a of accused, “subject not an to” an assessment obligation. Being not make the assessment to which one is something does entitled. error,
Even if failure to obtain an assessment is an we must remember that not error a every sentencing renders Foster, illegal. See Commonwealth v. 609 Pa. 17 A.3d (Eakin, J., (“There concurring) is a difference that something wrong, something between is is Here, illegal.”). appellant days was sentenced to 45 to six months a within the imprisonment, range.1 lawful assessment, Consequently, failure to obtain a full even if error, does not of sentence. impact appellant’s lawfulness
What the lack of a full assessment is the impact does discretionary Indeed, na- aspects very sentence. ture of an assessment is to assist the court’s discretion. 3814(1) says quite clearly the evaluation under is “to assist the court in determining type what of sentence id., 3814(1)— would benefit the public[,]” defendant and the is, sentence, to assist the determination of a matter of the court’s It discretion. is not to direct the court or restrict court; court, it does not compel suggest result, statutory or affect the mínimums or máximums. Like- 3816(a) wise, § repeats the same Both involve the language. sentence, definition, discretionary aspects of the their very discretionary aspects legality do not entail of sentence. I
Because find the assessment does not affect the legality sentence, I would not go further and address the issue of waiver. I also note that the transcripts support sugges- sentence, Thirty days appellant's mandatory is minimum see 75 3804(b)(2)(i); appellant's statutorily six months available id., 3803(b)(1). maximum see assessment issue to use the attempted appellant tion 1/11/12, at Sentencing, N.T. See sentencing. his delay further 4/23/12, This does at 3-4. 3-4; Opinion, Trial Court see also right the assessment treating dangers concern the I Accordingly, of the court. than a tool rather the accused dissent. *22 joins dissenting opinion. this
Justice STEVENS
104A.3d Zeigler; PENNSYLVANIA; Melanie HEALTHCARE SEIU Fredericks; Brodala; Namey; Wen- Jon Ann Joanne Katherine Timothy Solobay; Senator Hoke; J. State dy State Senator Hanna; Wozniak; Representative Michael K. N. State John Harhai; Representative Pam Representative Ted State State Snyder, Appellants
v. Thomas Pennsylvania; The Honorable of COMMONWEALTH Pennsylvania; The Corbett, of The Commonwealth Governor Secretary Wolf, Health; Michael Pennsylvania Department of Health, Appellees, State, Municipal County, and American Federation 13, AFL-CIO, by Ad its Trustee Employees, Council Fillman; Kelly Linko, Intervenors Litem, David R. Professionals, Lo- Educational Cultural and Federation of State Pennsylvania, AFL- Teachers Federation of American cal Bertrand, Litem, Intervenors. F. CIO, by Ad William its Trustee Pennsylvania. Supreme Court Argued March 20, 2014. Nov.
Decided notes Appellant that the prefatory language of Section 3814 plainly indicates that the requirements of that section apply “prior Next, to sentencing.” Appellant relies on the General Assembly’s choice of the imperative 3814(2)(i)(A), “shall” Section which if directs that the offend- er has a prior DUI offense within the last ten years, “the defendant shall subject to a full assessment for alcohol and 3814(2)(i)(A).12 drug addiction ...” Third, Id. Appellant 3804(b)(2)(iv) observes that Section directs that a DUI offend- er “shall be sentenced” to “comply drug all and alcohol treatment requirements imposed under sections 3814 and 3815,” which he argues clearly indicates that the Assessment on which such treatment requirements are premised must 1, 3814(2)(i)(A) supra, 12. As noted provides n. as follows: pleads If a defendant guilty is convicted or or no contest to a violation (relating of section driving to under influence alcohol or substance), following apply prior controlled sentencing: The defendant shall be to a full assessment for alcohol any following addiction if subparagraphs apply: (i) defendant, years prior within ten to the offense for which being imposed, sentence is has been sentenced for an offense under: 3802____ (A) section 3814(2)(i)(A). presentence.13 occur supra 13, 3804(d), n. Fourth, relies on Section to be in need “is determined if an offender which directs [relating to Section pursuant treatment of additional Assessment], shall judge the full and a maximum by law provided a minimum ...” Id. maximum available statutorily equal indicates 3804(d). clearly also He this section argues prior occur intent the Assessment legislative consider its enable the relies on Finally, Appellant a sentence. imposing results 3815(b), supra of Section requirements parole supervision by the who is determined that an offender provide n. which shall be treatment in need of additional Assessment to be conditions of the terms and in accord with parole eligible appli- conditions parole lists specific and further not, their according to are and are to offenders who cable 3804(b)(2) (d) provide as follows: 13. Section