J-S38043-20
2020 PA Super 241
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAYNARD LEE BROWN :
:
Appellant : No. 2046 MDA 2019
Appeal from the Judgment of Sentence Entered November 18, 2019
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000216-2019
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 28, 2020
Appellant, Maynard Lee Brown, appeals from the judgment of sentence
entered in the Court of Common Pleas of Bradford County after he pleaded
guilty to the offense of Driving Under the Influence (“DUI”), 75 Pa.C.S.A. §
3802(a)(2), an ungraded misdemeanor and his first such offense in ten years.
Sentenced to a term of three months’ to six months’ imprisonment, Appellant
contends his minimum sentence of incarceration was illegal because 75
Pa.C.S.A. § 3804(a)(1)(i) provides that a first time offender under Section
3802(a)(2) shall undergo a mandatory minimum term of six months’
probation. We affirm.
On the evening of August 20, 2018, Pennsylvania State Trooper Robert
Borkowski was traveling in a marked patrol vehicle along the Berwick Turnpike
near Dubert Road in Springfield Township, Bradford County, when he noticed
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* Former Justice specially assigned to the Superior Court.
J-S38043-20
a vehicle driving on a dirt path just off the Turnpike. N.T. (Preliminary
Hearing) 3/27/19, at 7. As he was observing the vehicle he could see the
operator, Appellant, return his gaze, immediately turn off the headlights to his
vehicle, and continue driving along the path. N.T. at 7. Trooper Borkowski
encountered Appellant about one minute later and determined he was
intoxicated after detecting the odor of alcohol on his breath and conducting a
field sobriety test, which Appellant failed. N.T. at 9. Appellant was arrested
for DUI, and a subsequent blood draw performed within two hours later
resulted in a blood alcohol content of .095 percent. N.T. at 14.
As noted, Appellant eventually pleaded guilty to Section 3802(a)(2),
first offense, and the court indicated it intended to impose a guideline range
sentence of three to six months’ incarceration. Appellant immediately
objected to the prospective sentence, arguing that a guideline sentence would
unlawfully exceed the mandatory minimum sentence expressed in Section
3804(a)(1),1 which provides that a first-time offender shall be sentenced to
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1 75 Pa.C.S.A. § 3804, Penalties, provides in pertinent part:
(a) General impairment.--Except as set forth in subsection (b) or (c), an
individual who violates section 3802(a) (relating to driving under influence of
alcohol or controlled substance) shall be sentenced as follows:
(1) For a first offense, to:
(i) undergo a mandatory minimum term of six months' probation;
....
75 Pa.C.S.A. § 3804(a)(1)(i).
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undergo a mandatory minimum term of six months’ probation. The
Commonwealth, citing what it perceived as the customary sentencing
practices of the court with respect to first offenders for purposes of Section
3802, also recommended the court impose the mandatory minimum of six
months’ probation.
The court declined to do so, opining that the mandatory minimum
sentence in question merely sets a floor beneath which a minimum sentence
may not fall and does not represent the sole option for a minimum sentence.
The court reviewed Appellant’s presentence investigation report, which
noted the applicable standard range guideline minimum sentence of 3 months’
incarceration and further documented Appellant’s long history of driving
offenses including three previous DUIs, a conviction for Reckless Driving, and
five other traffic offenses. As a result, the court determined the mandatory
minimum sentence was inadequate under the given record.
Accordingly, the court imposed a guideline range sentence of
incarceration, and this timely appeal followed.
Appellant raises the following question for our review:
[Should] Maynard Brown’s sentence imposed under 75 Pa.C.S.A.
§ 3804(a)(1) . . . have been a mandatory minimum term of six
months’ probation with no period of confinement included in that
sentence[?]
Appellant’s brief, at 4.2
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2 We note the Commonwealth has filed no Appellee’s brief in the instant
appeal.
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It is well settled that a plea of guilty amounts to a waiver of all non-
jurisdictional defects and defenses. Commonwealth v. Morrison, 173 A.3d
286, 290 (Pa. Super. 2017). A defendant may generally only appeal matters
concerning the jurisdiction of the court, the validity of the guilty plea, and the
legality of the sentence.
Id. Additionally, when a defendant pleads guilty
without an agreement as to the sentence, he may challenge the discretionary
aspects of the sentence imposed. Commonwealth v. Tirado,
870 A.2d 362,
365 n.5 (Pa. Super. 2005).
Here, Appellant contends the trial court had no authority to impose a
minimum sentence greater than the six months’ probation that Section
3804(a)(1)(i) sets forth as a mandatory minimum sentence. Specifically, he
maintains that the court was not permitted to rely as it did upon the record or
sentencing guidelines where the plain and unequivocal statutory language
setting forth the mandatory minimum term of sentencing required imposition
of a six month probationary sentence. This argument is directed to the legality
of Appellant’s sentence. See Commonwealth v. Taylor, 104 A.3d 479, 488–
89 (Pa. 2014) (holding claim that court failed to impose a sentence required
by statute implicates the legality of sentence).
While Appellant fails to cite to a decision supporting his statutory
interpretation, our review discloses a line of Commonwealth Court decisions
rejecting the position that Section 3804(a)(1) precludes the possibility of jail
time for a first time offender. In Sivak v. Com., Dep't of Transp., Bureau
of Driver Licensing, 9 A.3d 247, 253 (Pa. Commw. 2010), the
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Commonwealth Court rejected the Pennsylvania Department of
Transportation’s appeal from the lower court’s order reversing DOT’s issuance
of one-year license suspension, as the Court found the driver’s sentence of
incarceration for his first offense under Section 3804(a)(1) offense did not
support DOT’s inference that a sentencing enhancement for refusal of blood
testing must have been applied. In so holding, the Court observed, “This
Court finds no support in the Code or case law for DOT's assertion that jail
time takes an offender out of Section 3804(a)(1).”). Accord Dyson v. Com.
Dep't of Transp. Bureau of Driver Licensing, 18 A.3d 414, 419 (Pa.
Commw. Ct. 2011) (holding, consistent with Sivak, that Section 3804(a)(1)(i)
does not preclude a first time offender from receiving a sentence of
incarceration).3
Appellant offers no compelling reason for this Court to depart not only
from the Commonwealth Court’s jurisprudence declining to construe Section
3804(a)(1) as requiring in all cases a minimum sentence of probation for all
first-time offenders, but also from our own jurisprudence obligating courts to
consider guideline sentences when they exceed mandatory minimum
sentences.
In Commonwealth v. Lewis, 45 A.3d 405, 411–13 (Pa. Super. 2012)
(en banc) this Court reviewed whether a trial court had abused its discretion
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3 Although the decisions of the Commonwealth Court are not binding on this
Court, we may look to them for their persuasive value. Commonwealth v.
Heredia,
97 A.3d 392, 395 n.7.
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when it imposed a sentence exceeding the applicable mandatory minimum
sentence of 84 months for PWID after considering both the standard guideline
range of 72 to 90 months and the statutory maximum sentence of 120
months, which the Commonwealth recommended. At the outset, our Court,
sitting en banc, acknowledged that it was the trial court’s obligation to
consider the imposition of a guideline range sentence when the guidelines
exceeded the statutory mandatory minimum sentence:
A sentencing court “has no power to sentence below the
mandatory minimum notwithstanding any guidelines provision.”
Commonwealth v. Morgan, 425 Pa.Super. 344,
625 A.2d 80,
84–85 (1993). However, the sentencing court must consider the
sentencing guidelines “whenever the guidelines suggest a longer
sentence than the mandatory minimum required.” Id. (emphasis
omitted). See also 204 Pa.Code § 303.9 (stating that “[w]hen
the [guidelines] sentence recommendation is higher than that
required by a mandatory sentencing statute, the court shall
consider the guideline[s] sentence recommendation”).
In the present case, the guidelines sentence recommendation was
72 to 90 months for the standard range, plus or minus twelve
months for the aggravated and mitigated ranges. Thus, the
aggravated range recommended sentence for Lewis was up to 102
months. In contrast, the mandatory minimum sentence of seven
years was equivalent to a sentence of 84 months. Accordingly,
the sentencing court should have considered the sentencing
guidelines recommendation, as it was greater than the mandatory
minimum sentence. See Morgan, supra.
The record shows that the sentencing court was aware of the
guidelines recommendation. See N.T., 4/16/09, at 4–5, 6. The
Commonwealth, however, recommended that the court sentence
Lewis to the statutory maximum of ten to twenty years. Id. at 7;
see also 35 P.S. § 780–115 (providing that a person convicted of
a second or subsequent offense of PWID “may be imprisoned for
a term up to twice the term otherwise authorized”); 35 P.S. §
780–113(f)(1.1) (stating that a sentence for PWID cocaine is up
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to ten years in prison). The sentencing court accepted that
recommendation. N.T., 4/16/09, at 25.
Lewis, 45 A.3d at 411–13.
Therefore, we reject Appellant’s bare assertion that the mandatory
minimum sentencing provision within Section 3804(a)(1) represents the only
sentence available to a court in imposing sentence in such cases, and we find
that the trial court’s sentence herein was consistent with controlling authority
requiring courts to consider imposition of applicable guideline range sentences
when they exceed statutory minimums.
As the trial court properly imposed sentence in accordance with such
precedent, we reject Appellant’s present challenge.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/28/2020
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