inline">J-A02002-22 2022 PA Super 42


  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  DANA ROMER JACKSON                           :
                                               :
                       Appellant               :   No. 725 WDA 2021

        Appeal from the Judgment of Sentence Entered May 24, 2021
   In the Court of Common Pleas of Armstrong County Criminal Division at
                      No(s): CP-03-SA-0000016-2020


BEFORE:      OLSON, J., MURRAY, J., and PELLEGRINI, J.*

OPINION BY OLSON, J.:                                   FILED: MARCH 8, 2022

       Appellant, Dana Romer Jackson, appeals from the judgment of sentence

entered on May 24, 2021, following his guilty plea to driving while operating

privilege is suspended or revoked (second offense).1 We affirm in part, vacate

in part, and remand for further proceedings.

       We briefly summarize the facts and procedural history of this case as

follows. On May 24, 2021, Appellant pled guilty to driving while operating

privilege is suspended or revoked, his second violation.     Pursuant to statute,

“[a] second violation of this [crime] shall constitute a summary offense and,

upon conviction [], a person shall be sentenced to pay a fine of $1,000[.00]

and to undergo imprisonment for not less than 90 days.”            75 Pa.C.S.A.



____________________________________________


* Retired Senior Judge assigned to the Superior Court.


1 75 Pa.C.S.A. 1543(b)(1)(ii).
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§ 1543(b)(1)(ii). Accordingly, the trial court sentenced Appellant to 90 days

of house arrest and imposed a fine of $1,000.00. This timely appeal resulted.2

       On appeal, Appellant raises the following issue for our review:

       [Whether Appellant’s] sentence, imposed pursuant to the
       provisions of 75 Pa.C.S.[A.] § 1543(b)(1)(ii), is unlawful, in that
       the sentencing statute is unconstitutionally vague pursuant to the
       analogous findings of Commonwealth v. Eid,

249 A.3d 1030

 (Pa.
       2021)[?]

Appellant’s Brief at 2.

       In this case, the trial court agrees with Appellant’s contention that his

sentence is illegal:

       [Appellant] raises a single issue in his appeal, namely, whether
       the [trial c]ourt erred in sentencing him to 90 days of house arrest
       pursuant to [S]ection 1543(b)(1)(ii) of the [Motor] Vehicle Code,
       which [Appellant] argues is unconstitutionally vague and
       ambiguous pursuant to the recent Pennsylvania Supreme Court
       decision in Commonwealth v. Eid, 249 A.[3]d 1030 (Pa. 2021).
       [Because the issue] involves illegality of his sentence[, it] cannot
       be waived. Further, because the pertinent language of [Section]
       1543(b)(1)(ii) is identical to that held unconstitutional in Eid, the
       [trial court found] Eid to be controlling on the issue. Accordingly,
       [the trial c]ourt recommends that [this C]ourt vacate the house
       arrest portion of [Appellant’s] sentence, affirm the remainder of
       the sentence, and remand for any necessary further proceedings.

Trial Court Opinion, 7/22/2021, at 1-2.

       This Court has stated:



____________________________________________


2   Appellant filed a notice of appeal on June 23, 2021. On June 28, 2021, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 22, 2021.

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      Issues relating to the legality of a sentence are questions of law.
      When the legality of a sentence is at issue, our standard of review
      over such questions is de novo and our scope of review is plenary.
      If no statutory authorization exists for a particular sentence, that
      sentence is illegal and subject to correction. An illegal sentence
      must be vacated.

Commonwealth v. Ramos,

197 A.3d 766

, 768–769 (Pa. Super. 2018).

(internal citations, quotations, and ellipses omitted).

      A prior panel of this Court recently explained our Supreme Court’s

holding in Commonwealth v. Eid,

249 A.3d 1030

 (Pa. 2021) as follows:

      Eid involved a defendant who was found guilty of the summary
      offense of [driving while operating privilege is suspended or
      revoked] by a person who refused a breath test and [who, as a
      result, was later] sentenced to 90 days to six months’
      imprisonment, pursuant to 75 Pa.C.S.A. § 1543(b)(1.1)(i). Eid,
      249 A.3d at 1034. Section 1543(b)(1.1)(i) provided that a person
      convicted under this section “shall, upon first conviction, be
      guilty of a summary offense and shall be sentenced to pay
      a fine of $1,000[.00] and to undergo imprisonment for a
      period of not less than 90 days.” Id. § 543(b)(1.1)(i)
      (emphasis added).

      On appeal, our Supreme Court struck down Section
      1543(b)(1.1)(i) as “unconstitutionally vague and inoperable,”
      holding that the language “not less than 90 days” did not provide
      for a maximum term of incarceration. Eid, 249 A.3d at 1044. The
      Court upheld the defendant's [] conviction and the imposition of a
      $1,000.00 fine but vacated the incarceration portion of his
      sentence for that offense. See id. The Eid Court reasoned that it
      refused to infer a maximum sentence because doing so would
      have forced it to “engage in sheer speculation as to which
      sentence the General Assembly intended.” Id. at 1043 (citation
      omitted).

Commonwealth v. White,

2022 WL 128777

 (Pa. Super. January 14, 2022).

      Here, the trial court imposed Appellant’s sentence pursuant to 75

Pa.C.S.A. § 1543(b)(1)(ii), which provides “a person shall be sentenced to pay


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a fine of $1,000[.00] and to undergo imprisonment for not less than 90

days.”   75 Pa.C.S.A. § 1543(b)(1)(ii) (emphasis added).           While Eid was

sentenced   pursuant    to   Section   1543(b)(1.1)(i),   rather   than   Section

1543(b)(1)(ii), the language of the two subsections of the statute, to-wit, “not

less than 90 days,” is identical. As such, because Section 1543(b)(1)(ii) does

not provide for a maximum term of incarceration, it is unconstitutionally vague

and inoperable for the same reasons expressed in Eid. Hence, we agree with

the trial court’s assessment that Appellant’s sentence is illegal. Accordingly,

consistent with the Supreme Court’s resolution in Eid, we affirm Appellant’s

conviction and the imposition of the $1,000.00 fine but vacate the house

arrest portion of his sentence and remand for additional proceedings.

      Judgment of sentence affirmed in part and vacated in part.            Case

remanded for further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2022




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