Opinion
489 WDA 2023 J-A09038-24
09-05-2024
COMMONWEALTH OF PENNSYLVANIA v. WILLIAM RUSSELL EBERLE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered March 8, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0009500-2021
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM
NICHOLS, J.
Appellant William Russell Eberle appeals from the judgment of sentence imposed following his open guilty plea to burglary and related offenses. Appellant challenges the discretionary aspects of his sentence. We affirm in part, vacate in part, and remand for resentencing.
We adopt the trial court's summary of the facts underlying this matter. See Trial Ct. Op., 6/26/23, at 2. Briefly, on November 25, 2021, Appellant broke into the residence of his ex-girlfriend (the victim). Id. After entering the residence, Appellant assaulted the victim and damaged her property. Id. Appellant fled from the scene in his vehicle and was subsequently apprehended by police. Id. At that time, Appellant's blood alcohol level was .193. Id.
On December 13, 2022, Appellant entered an open plea to burglary, DUI-highest rate of alcohol, simple assault, and criminal mischief. See N.T. Plea Hr'g, 12/13/22, at 8-9; see also Guilty Plea Colloquy, 12/13/22, at 1-13. The trial court deferred sentencing for the preparation of a pre-sentence investigation (PSI) report. See N.T. Plea Hr'g, 12/13/22, at 9.
18 Pa.C.S. § 3502(a)(3), 75 Pa.C.S. § 3802(c), 18 Pa.C.S. §§ 2701(a)(1), and 3304(a)(5), respectively.
Both concepts share one aspect: an appellate court reviews an issue without the trial court having explained its reasoning. However, when an appellate court raises an issue sua sponte, it usually also reviews it without the parties advocating for competing applications of the law, a principle that is essential to our "adversarial process and, by extension, public confidence in the law." Quigley v. Unemployment Comp. Bd. of Review, 263 A.3d 574, 600-02 (Pa. 2021) (Wecht, J., concurring). Sua sponte review of an issue is a significant departure from the typical role of an appellate court because it bypasses the parties' strategic selection and presentation of the relevant facts and law. Merely because an appellant can raise (and argue) a non-waivable issue for the first time on appeal does not imply that a reviewing court can or should do so on its own.
We note that two plea hearings were held for Appellant on December 13, 2022. Here, we reference the second plea hearing on December 13, 2022, where the trial court accepted Appellant's plea.
See Furman v. Georgia, 408 U.S. 238 (1972) (holding that death-penalty statutes that leave the question of life versus death in the sole and unguided discretion of the jury violate the Eighth and Fourteenth Amendments to the Constitution of the United States); see also Commonwealth v. Bradley, 295 A.2d 842 (Pa. 1972) (applying Furman to declare Pennsylvania's death-penalty statute facially unconstitutional).
On March 8, 2023, the trial court sentenced Appellant to an aggregate term of thirty-three to eighty-four months of incarceration followed by one year of probation. Specifically, the trial court imposed consecutive terms of imprisonment as follows: twenty-one to sixty months for burglary and twelve to twenty-four months for simple assault. Sentencing Order, 3/8/23, at 1-2 (unpaginated). The trial court also imposed concurrent terms of seventy-two hours of incarceration, followed by five months of probation for DUI, and one year of probation for criminal mischief. Id.
At the time of sentencing, Appellant's prior record score (PRS) was a four. See N.T. Sentencing Hr'g. at 3. The standard minimum guideline range for each charge was as follows: burglary-fifteen to twenty-one months' incarceration, plus or minus six months for aggravating or mitigating factors; simple assault-three to twelve months, plus or minus three months for aggravating or mitigating factors; criminal mischief-restorative sanctions to twelve months, plus or minus three months for aggravating or mitigating factors. See 204 Pa.Code § 303.16(a). Additionally, for DUI-highest rate of alcohol, the mandatory minimum sentence was seventy-two hours and the statutory maximum sentence was six months' imprisonment. See 75 Pa.C.S. §§ 3803(b)(2), 3804(c)(1).
According to my research, it appears the first time the Supreme Court of Pennsylvania mentioned the concept of sua sponte review of an illegal sentence in a majority opinion was in 2017. The court said, "A challenge to the legality of a particular sentence may be reviewed by any court on direct appeal; it need not be preserved in the lower courts to be reviewable and may even be raised by an appellate court sua sponte." Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017), abrogated by Jones v. Mississippi, 593 U.S. 98 (2021). The High Court's statement contained no analysis of McKeena, Clair, or Dilliplaine, supra. Instead, Batts cited Commonwealth v. Barnes, 151 A.3d 121, 124 (Pa. 2016), a case which did not say appellate courts could raise issues of sentence legality sua sponte. Barnes said, "an exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant's sentence. A challenge to the legality of sentence cannot be waived." Barnes, 151 A.3d at 124. As stated above, there is a substantial difference between an issue being non-waivable and an appellate court being free to raise that issue sua sponte.
Appellant filed a timely post-sentence motion to reconsider his sentence, which the trial court denied. Appellant then filed a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue:
Whether the trial court abused its discretion in fashioning an excessive and unreasonable aggregate sentence of 33-84 months' state incarceration where it focused on the gravity of the offense at the expense of the other required sentencing factors under 42 Pa.C.S. § 9721(b)?Appellant's Brief at 6 (formatting altered).
In his sole issue, Appellant challenges the discretionary aspects of his sentence. Appellant argues that the trial court imposed an unduly harsh and manifestly excessive sentence and failed to consider the sentencing factors required by 42 Pa.C.S. § 9721(b). Id. Specifically, Appellant claims that the trial court failed to consider his rehabilitative needs or mitigating factors, such as his guilty plea, and impermissibly placed too much emphasis on the severity of the offenses. Id. at 27-28 (citing Commonwealth v. Vega, 850 A.2d 1277, 1282 (Pa. Super. 2004) (explaining that when deviating from the standard sentencing guidelines, "[t]he focus should not be on the seriousness or egregiousness of the offense generally, but, rather, on how the [] case deviates from what might be regarded as a 'typical' case")). "[C]hallenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right." Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such claims, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved his issues; (3) whether Appellant's brief includes a [Pa.R.A.P. 2119(f)] concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is inappropriate under the sentencing code.Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations omitted).
"To preserve an attack on the discretionary aspects of sentence, an appellant must raise his issues at sentencing or in a post-sentence motion. Issues not presented to the sentencing court are waived and cannot be raised for the first time on appeal." Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a).
"The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa. Super. 2017) (citation omitted). "A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Grays, 167 A.3d 793, 816 (Pa. Super. 2017) (citation omitted).
Here, the record reflects that Appellant preserved his sentencing claim in a post-sentence motion, filed a timely notice of appeal, and included the issue in his Rule 1925(b) statement. Appellant also included a Rule 2119(f) statement in his brief. Additionally, we conclude that Appellant has raised a substantial question for review. See Commonwealth v. Kurtz, 294 A.3d 509, 535-36 (Pa. Super. 2023) (finding a substantial question for review where the defendant "pair[ed] an excessive sentence claim with an assertion that the [trial] court failed to consider mitigating evidence" (citation omitted)), appeal granted on other grounds, 306 A.3d 1287 (Pa. 2023). Accordingly, we will review the merits of Appellant's claim.
Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
Additionally, our review of the discretionary aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and (d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any [PSI].
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super. 2014) (some citations omitted and some formatting altered).
The balancing of sentencing factors is the sole province of the sentencing court, which had the opportunity to observe the defendant and all witnesses firsthand. See Kurtz, 294 A.3d at 536. In conducting appellate review, this Court "cannot reweigh sentencing factors and impose judgment in place of sentencing court where lower court was fully aware of all mitigating factors[.]" Id. (citation omitted).
When provided with discretion to fashion a sentence, the trial court must ensure that the term of confinement is consistent with "the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant[,]" and provide "a statement of the reason or reasons for the sentence imposed." 42 Pa.C.S. § 9721(b). "Our Supreme Court has determined that where the trial court is informed by a [PSI], it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed." Commonwealth v. Edwards, 194 A.3d 625, 637-38 (Pa. Super. 2018) (citation omitted and formatting altered).
"[I]t is well-established that the imposition of consecutive rather than concurrent sentences lies within the sound discretion of the sentencing court." Kurtz, 294 A.3d at 535 (citation omitted and formatting altered). "Defendants convicted of multiple offenses are not entitled to a 'volume discount' on their aggregate sentence. Further, we will not disturb consecutive sentences unless the aggregate sentence is grossly disparate to the defendant's conduct, or viscerally appears as patently unreasonable." Commonwealth v. Bankes, 286 A.3d 1302, 1310 (Pa. Super. 2022) (citations omitted and formatting altered).
Here, at sentencing, the trial court noted that it had reviewed the PSI, which included Appellant's personal history, mental health diagnoses and treatment history, and the victim's impact statement. See N.T. Sentencing Hr'g, 3/8/23, at 2-4. During the hearing, the trial court also heard testimony from Appellant's mother and Appellant. See id. at 7-16.
In its Rule 1925(a) opinion, the trial court explained:
The record indicates that the court . . . reviewed the [PSI] report. The court imposed the sentence it did because the record indicated that [Appellant] has had a lengthy involvement in the court system because he has repeatedly committed violence on women. [Appellant] shot and killed his wife in 1999. He was convicted of third-degree murder and served a lengthy state prison sentence and parole term for that crime. Prior to the instant offenses of conviction, [Appellant] was subject to three separate Protection From Abuse orders as a result of abuse he committed against three different women. Despite his prior domestic homicide conviction, [Appellant] continued to refuse to conform his conduct to the dictates of the law. The court considered [Appellant's] failure to learn from the previous conviction and the PFA orders and that he continued to engage in criminal conduct.
The court also considered the serious nature of [Appellant's] conduct in this case. . . . The court believes that [Appellant's] conduct demonstrated that he is an ongoing serious physical threat to the victim in this case and to women in general. In this court's view, [Appellant's] conduct requires his incapacitation to protect the public safety and to serve as a general deterrent to society and a specific deterrent to [Appellant].
The court also considered [Appellant's] personal history and the words of [Appellant's] mother who testified in support of [Appellant]. While this court sympathized with [Appellant's] mother, [Appellant's] conduct in this case and his prior record warranted the sentence imposed in this case."Trial Ct. Op. at 6-7 (some formatting altered).
The Majority "disagree[s] that such an outcome would be 'fundamentally unjust,'" because, in its view, Commonwealth v. Prinkey, 277 A.3d 554, 567-68 (Pa. 2022), "held that correcting an illegal sentence was not limited to instances that benefited a criminal defendant." Majority at 12-13 n.7. That was not the holding of Prinkey. Rather than risk increasing an appellant's sentence by raising, sua sponte, an issue of sentence legality and remanding for resentencing, the Supreme Court ruled in Prinkey's favor. He claimed that the issue of whether a sentencing was presumptively vindictive implicated the legality of the sentence, as opposed to the discretionary aspects thereof. In overruling Commonwealth v. Robinson, 931 A.2d 15, 18 (Pa. Super. 2007) (en banc), the Prinkey Court said:
Robinson's approach [i.e., dismissing the defendant's claim of presumptively vindictive sentencing as a waivable, discretionary aspect] suggests that only claims involving a sentence that exceeds the lawful maximum can be characterized as involving the legality of sentence. See Robinson, 931 A.2d at 21. But the holding in Robinson relied upon a bygone understanding of legality challenges. Under this Court's modern approach, "a sentence is illegal where the sentencing court lacked authority to avoid entering the particular sentence that is later found to be unconstitutional." Barnes, 151 A.3d at 126. It is beyond cavil that Prinkey's presumptive vindictiveness claim satisfies that definition. His contention is that the resentencing court lacked authority to extend his term of incarceration beyond the length of his original sentence, because . . . no event occurred between the two sentencing hearings that could (or would) have justified the imposition of a lengthier sentence; his appeal thus squarely falls within Barnes' definition of an illegal sentencing claim. To the extent that the Superior Court's opinion in Robinson is inconsistent, it is overruled.Prinkey, 277 A.3d at 567-68 (some punctuation omitted). Thus, the Prinkey Court overruled Robinson's holding that claims of presumptively vindictive sentences implicate the discretionary aspects of the sentence and are therefore waivable. Neither Prinkey nor Robinson considered, much less held, whether "correcting an illegal sentence [sua sponte is] not limited to instances that benefited a criminal defendant." Majority at 13 n.7.
We discern no abuse of discretion or legal error by the trial court in sentencing Appellant for burglary, simple assault, and criminal mischief. The record reflects that the trial court considered the PSI report, the appropriate sentencing factors, and the mitigating evidence presented at the sentencing hearing. See Edwards, 194 A.3d at 637-38; see also Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (reiterating that where a PSI report exists, this Court will "presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors" (citation omitted)). We will not reweigh those factors on appeal. See Kurtz, 294 A.3d at 536; see also Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (explaining that the appellate court cannot reweigh sentencing factors and impose its judgment in place of sentencing court where lower court was fully aware of all mitigating factors).
Further, the trial court acted within its discretion by imposing some of Appellant's sentences consecutively, as Appellant is not entitled to a "volume discount" on his aggregate sentence. See Kurtz, 294 A.3d at 535; see also Bankes, 286 A.3d at 1310.
Additionally, as noted previously, Appellant relies on Vega to conclude that the trial court improperly emphasized the seriousness of the offenses. However, because Appellant's individual sentences were within the standard guideline range, Vega is distinguishable. Cf. Vega, 850 A.2d at 1282 (explaining that it is improper for a trial court to focus solely on the seriousness of an offense in order to justify a sentence above the standard range). Therefore, Appellant's claim is meritless.
Legality of Sentence
Finally, we must address the legality of the sentence imposed for Appellant's DUI offense at 75 Pa.C.S. § 3802(c). This Court may raise the legality of a sentence sua sponte, and an illegal sentence must be vacated. Commonwealth v. Hill, 238 A.3d 399, 407-408, 411 (Pa. 2020) (noting that an appellate court may raise and address legality of sentence sua sponte, and must vacate an illegal sentence); Commonwealth v. Westlake, 295 A.3d 1281, 1289 (Pa. Super. 2023) ("the legality of a sentence is an issue this Court can raise sua sponte"). Legality of sentence is a question of law for which our standard of review is de novo and our scope of review is plenary. Hill, 238 A.3d at 409-410; Westlake, 295 A.3d at 1289. As stated previously, Appellant was convicted of DUI-highest rate of alcohol, and the trial court imposed a sentence of seventy-two hours' incarceration followed by five months' probation for this offense.
The Dissent argues that it would be "an anomaly" to review the legality of the DUI sentence, as Appellant did not raise this issue. See Concurring and Dissenting Mem. at 3-4 (citing, inter alia, Commonwealth v. Schilling, 431 A.2d 1088, 1098 n.15 (Pa. Super. 1981)). Despite this Court's holding in Schilling that "the imposition of such [illegal] sentences are beyond the power and jurisdiction of the sentencing court and, therefore, can be considered despite our normal rules concerning waiver and sua sponte review[,]" somehow, the Dissent interprets the authorities cited in Schilling to urge us to turn away from the illegal sentence issue, which strains credulity. Concurring and Dissenting Mem. at 4-12; see Schilling, 431 A.2d at 1093 n.15. More recently, unambiguously, our Supreme Court in Commonwealth v. Hill, 238 A.3d 399 (Pa. 2020), has held that issues and claims concerning the legality of sentence are non-waivable, and we are bound and persuaded by this decision. See Hill, 238 A.3d at 408-409; see also Commonwealth v. Branthafer, 315 A.3d 113, 121-22 (Pa. Super. 2024) (explaining that the Superior Court is bound by the decisions of our Supreme Court).
Prior to sentencing, a defendant convicted of DUI-highest rate of alcohol is required to undergo a Court Reporting Network evaluation for alcohol abuse and drug use, as well as a full assessment for drug and alcohol addiction. See 75 Pa.C.S. §§ 3814(2)(ii)(B), 3816(a), (b). If the assessment recommended additional treatment, Appellant would be subject to the statutory maximum sentence of six months' imprisonment. See 75 Pa.C.S. §§ 3803(b)(2), 3804(d), 3814(2)(ii)(B). A sentence imposed without these evaluations constitutes an illegal sentence. Commonwealth v. Taylor, 104 A.3d 479, 493 (Pa. 2014); see also Westlake, 295 A.3d at 1289-90.
In the instant case, there is no indication that Appellant underwent the CRN evaluation or the full drug and alcohol assessment prior to sentencing, or that the trial court took the results of this evaluation and assessment into account in crafting its sentence. On this record, we are unable to determine whether Appellant's DUI sentence is illegal. See Taylor, 104 A.3d at 493 (holding "that a sentencing court has no discretion or authority to impose a sentence for a DUI violation prior to the completion of the Assessment required by Section 3814") (emphasis added); see also Westlake, 295 A.3d at 1289-90.
The Dissent notes that "[o]ur precedents afford appellate courts discretion to refrain from raising the issue of a sentence[']s legality, sua sponte." Concurring and Dissenting Memo. at 3. (citing Commonwealth v. Armolt, 294 A.3d 364, 377 (Pa. 2023). In Armolt, a plurality of our Supreme Court declined to address the legality of the appellant's sentence sua sponte because the appellant raised constitutional claims but did not articulate how these claims implicated the legality of his sentence. Armolt, 294 A.3d at 377-378. The Armolt plurality deemed it "prudent to wait until we are presented with more developed advocacy before determining whether the types of constitutional claims raised herein are nonwaivable." Id. at 378. Unlike Armolt, which confronted a novel or developing theory that may eventually be recognized as an illegal sentence, here we are guided by settled precedent that directs that, as the Dissent concedes, "failure to conduct such [drug and alcohol] assessments before sentencing renders a sentence illegal." Concurring and Dissenting Mem. at 1 (quoting Taylor, 104 A.3d at 492). In the case before us, it appears that Appellant's sentence for DUI was "imposed without the fulfillment of statutory preconditions to the court's sentencing authority," which is an established category of illegal sentences. See Commonwealth v. Prinkey, 277 A.3d 554, 562 (Pa. 2022).
Accordingly, although we affirm the conviction, we vacate the judgment of sentence for DUI-highest rate of alcohol at 75 Pa.C.S. § 3802(c), and remand for resentencing on that count only. On remand, the trial court shall determine whether Appellant was evaluated pursuant to Sections 3814 and 3816 of the Motor Vehicle Code and make the results part of the record. If Appellant is not in need of further treatment, the trial court shall reimpose the judgment of sentence. However, if Appellant is in need of further treatment, the trial court shall resentence Appellant consistent with the minimum and maximum terms as mandated by Sections 3803 and 3804 of the Motor Vehicle Code.
The Dissent notes that a remand on the issue of legality of the DUI sentence may increase Appellant's sentence and declares it "fundamentally unjust that [Appellant] could appeal to this Court and end up worse off for the effort." See Concurring and Dissenting Mem. at 13. We disagree that such an outcome, if it occurs, would be "fundamentally unjust," and note that Prinkey held that correcting an illegal sentence was not limited to instances that benefited a criminal defendant. See Prinkey, 277 A.3d at 567-568 (expressly overruling Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007) (en banc), to the extent that Robinson held that "only claims involving a sentence that exceeds the lawful maximum can be characterized as involving the legality of sentence"), and Hill, 238 A.3d at 408 (noting that "any sentence" entered pursuant to an unconstitutional authority is an illegal sentence). Our remand provides the trial court with the opportunity to determine whether the original sentence complies with 75 Pa.C.S. §§ 3803(b)(2), 3804(d), 3814(2)(ii)(B), and § 3816(a) and, if need be, to impose a new sentence that is compliant with the requisite mandates to ensure the legality of Appellant's sentence, which would uphold the constitutional authority of fundamental justice.
In sum, we affirm the conviction and vacate Appellant's sentence for DUI-highest rate of alcohol, and affirm Appellant's judgment of sentence in all other respects.
Convictions affirmed. Judgment of sentence vacated in part as to the sentence for DUI-highest rate of alcohol, and judgment of sentence affirmed in all other respects. Case remanded for resentencing consistent with this memorandum. Jurisdiction relinquished.
Judge Dubow joins the memorandum.
Judge Kunselman files a concurring and dissenting memorandum.
Judgment Entered.
CONCURRING/DISSENTING MEMORANDUM BY KUNSELMAN, J.:
I join the Majority's disposition of William Eberle's sole appellate issue. I part ways with the Majority's decision to find, sua sponte, Eberle's sentence illegal based on its perception that Eberle did not undergo a Court Reporting Network ("CRN") evaluation. Moreover, in researching the origins of reviewing the legality of sentences sua sponte, I realized that no substantive law or the Rules of Appellate Procedure support the practice. Thus, I respectfully dissent from the decision to vacate Eberle's sentence and to remand this case for further proceedings.
While I agree with the Majority that, prior to sentencing a defendant for driving under the influence ("DUI"), a CRN evaluation and, in many cases, a drug-and-alcohol assessment are required. See 75 Pa.C.S.A. §§ 3814, 3816. Furthermore, failure to conduct such assessments before sentencing renders a sentence illegal. Commonwealth v. Taylor, 104 A.3d 479, 493 (Pa. 2014).
Here, the Majority is correct that the certified record does not clearly indicate that Eberle completed a CRN evaluation or a drug-and-alcohol assessment prior to his sentencing. However, neither does the record clearly indicate that the sentencing court bypassed those requirements. Notably, the court assessed Eberle a $100.00 fee for a CRN evaluation report. Taxing Bill, 3/21/23. If also reflects that the sentencing court reviewed the 13-page pre-sentence report prepared for Eberle's case. N.T., Sentencing, 3/8/23, at 2; see Sentencing Court Opinion, 6/26/23, at 6. As a result, unlike the Majority, I am uncertain whether the trial court failed to conduct a CRN evaluation or a drug-and-alcohol assessment prior to sentencing Eberle.
Importantly, neither Eberle nor the Commonwealth has complained on appeal that the court's sentencing procedure violated the Vehicle Code. Thus, this Court is unaware of their position on the issue. And, as a practical matter, the only possible amendment to Eberle's sentence order on remand would result in a substantially similar aggregate sentence.
For DUI, Eberle was sentenced to three days of imprisonment followed by five months of probation. This term of probation was concurrent to Eberle's sentence of 12 months of probation for criminal mischief. If, on remand, Eberle is determined to need additional treatment, his maximum term will be six months of imprisonment for the DUI. See 75 Pa.C.S.A. §§ 3803(b)(2), 3804(d). But nothing guarantees that, when the sentencing court formulates Eberle's new sentence, it will impose his sentences concurrently. As such, the possibility for a longer, aggregate sentence exists, however remote.
Our precedents afford appellate courts discretion to refrain from raising the issue of a sentences legality, sua sponte. See, e.g., Commonwealth v. Armolt, 294 A.3d 364, 377 (Pa. 2023) (stating that, while an appellate court may raise the issue of an illegal sentence, sua sponte, it "may also decline to do so where appropriate."); cf. Commonwealth v. Westlake, 295 A.3d 1281, 1289 (Pa. Super. 2023) (addressing this issue sua sponte where the appellant was convicted only of two counts of DUI). I would exercise that discretion here and refrain addressing whether Eberle's sentence is illegal due to the lack of a CRN evaluation, because neither party seeks a new sentence and the only potential change in the aggregate sentence is an increase in Eberle's punishment.
Additionally, when researching whether vacating Eberle's sentence as illegal comported with the original purpose for reviewing the legality of sentences, sua sponte, I discovered that this practice is an anomaly in our precedents. Typically, any issues that are not raised and argued by the appellant in the appellate brief are dismissed as waived. "The statement of the questions involved must state concisely the issues to be resolved . . . No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby." Pa.R.A.P. 2116(a).
Moreover, 50 years ago, the Supreme Court of Pennsylvania abolished the appellate doctrine of basic and fundamental error, whereby "an appellate court [reviews] trial errors claimed to be basic and fundamental, despite the absence of any objection or specific exception at trial." Dilliplaine v. Lehigh Valley Tr. Co., 322 A.2d 114, 116 (Pa. 1974). Dilliplaine abolished the doctrine, because (1) it undermines trial court proceedings and (2) the doctrine is "essentially a vehicle for reversal when the predilections of a majority of an appellate court are offended." Id. The Supreme Court similarly abolished the doctrine in the criminal context. See Commonwealth v. Clair, 326 A.2d 272 (Pa. 1974).
Nevertheless, seven years later, a panel of this Court effectively revived the doctrine in the context of illegal sentences. With no analysis, the panel said in a footnote, "the imposition of [illegal] sentences are beyond the power and jurisdiction of the sentencing court and, therefore, can be considered despite our normal rules concerning waiver and sua sponte review." Commonwealth v. Schilling, 431 A.2d 1088, 1093 n.15 (Pa. Super. 1981). The Schilling footnote included four citations with its declaration. Even so, none of the cited cases support the proposition that a court of common pleas lacks jurisdiction to impose an illegal sentence, such that this Court may sua sponte raise the issue of whether a particular sentence is illegal. I address each case in turn.
First, Schilling cited Commonwealth v. Walker, 362 A.2d 227 (Pa. 1976), overruled by Commonwealth v. Frisbie, 485 A.2d 1098 (Pa. 1984). There, a jury convicted Walker of rape and statutory rape for a single act of sexually assaulting a minor. The trial court imposed sentences of five to ten years' incarceration at both counts. Walker appealed and asked whether "the imposition of sentences on the statutory-rape conviction and the rape conviction violates [his] right against double jeopardy," because both convictions arose from the same act. Id. at 229. This Court viewed Walker's issue as "actually an attack on the validity of the underlying convictions which would require a review of the record. Accordingly, [we] held that the issue had been waived." Id. at 230 n.3.
The Supreme Court granted allowance of appeal, and reversed our finding of waiver. In doing so, the High Court held that "Walker's challenge is directed exclusively at the lawfulness of the sentences imposed upon these convictions. As such the claim has not been waived . . . ." Id. at 230 (emphasis added). However, there is a great difference between an issue being non-waivable and an appellate court raising that issue sua sponte.1 In addition, Walker did not say an illegal sentence is outside the trial court's jurisdiction, nor did it grant authority to this Court to review such issues sua sponte. Thus, any reliance by the Schilling footnote upon Walker was misplaced.
Second, the Schilling footnote cited Commonwealth v. Usher, 371 A.2d 995 (Pa. Super. 1977) (en banc), which had a factual background similar to Walker. A jury convicted Usher of rape and statutory rape for a single assault. Unlike the appellant in Walker, however, Usher raised one issue on appeal challenging the sufficiency of the evidence. After dismissing that issue as meritless, the Usher Court then went on to say:
the lower court imposed concurrent sentences of 7 ½ to 15 years imprisonment on each conviction. This sentence was unlawful, because both convictions were based upon the same act. [Walker, supra]. Furthermore, [Usher's] failure to raise this issue does not preclude our consideration of it. [Id.] Therefore, the judgment of sentence of the lower court on the conviction for statutory rape must be reversed. In all other respects, the judgment of sentence of the lower court is affirmed.Id. at 998.
As the above discussion of Walker, supra, makes clear, Walker raised the issue of his duplicative sentences for the same act of sexual assault on appeal. Because the legality of Walker's sentence was raised by a party, the Walker court did not raise the issue sua sponte. As such, Walker did not set precedent for the Usher court to raise the issue sua sponte. Moreover, the Usher court's basis for raising the legality of sentence issue was not jurisdictional, as Schilling implied.
As its third citation, the Schilling footnote relied upon Commonwealth v. McKenna, 383 A.2d 174, 179 (Pa. 1978), a direct appeal to the Supreme Court of Pennsylvania after a jury sentenced McKenna to death. Between the jury's imposition of the death sentence and the resolution of McKenna's appeal, the High Court declared the death-penalty statute under which the jury sentenced McKenna facially unconstitutional.2 Nonetheless, McKenna refused to raise a constitutional challenge to the inoperable death-penalty statute. Therefore, after the Supreme Court dismissed his appellate issues as meritless, the unusual question arose of whether the High Court should sua sponte reduce his sentence to life imprisonment, given that his sentence of death was facially and indisputably unconstitutional.
The Supreme Court offered a detailed explanation regarding why it disregarded principles of waiver, in light of "the procedural peculiarity of the present case, namely . . . McKenna has expressly refused to challenge the validity of that statute, or to allow his lawyer to do so." Id. at 179. The Supreme Court carved out a limited exception for unconstitutional, death-penalty sentences and opined as follows:
It is of course elementary that issues not preserved for appellate review or, even if preserved at the trial level, not raised by a party to an appeal, will not be considered by an appellate court. See Commonwealth v. Williams, 248 A.2d 301 (Pa. 1968) . . . For many years we recognized an exception to that rule, and allowed an appellant to raise an issue on appeal even though not preserved if the overlooked issue was "basic and fundamental." See, e. g., Commonwealth v. Jennings, 274 A.2d 767 (Pa. 1971) . . . White v. Moore, 136 A. 218 (Pa. 1927).
In the case of Commonwealth v. Clair, 326 A.2d 272 (Pa. 1974) however, that exception to the normal rule as it had been applied in criminal cases was abrogated. And in Commonwealth v. Piper, 328 A.2d 845 (Pa. 1974), the Court held that a failure to object to the validity of a sentence at the time of sentencing foreclosed appellate review of that issue, even though the issue sought to be raised was the constitutionality of the sentencing statute. Thus, where an issue of sentencing is not raised by the defendant until the appeal stage, the appellate court should not consider the issue. Implicit in this concept is another cardinal rule of appellate jurisprudence in this state, viz., an appellate court is not to raise sua sponte issues which it perceives in the record where, as here, those issues are not presented at the appeal level. See Wiegand v. Wiegand, 337 A.2d 256 (Pa. 1975). For the reasons hereafter discussed, however, we decline to apply the rationale of these several cases in a situation where a finding of waiver will result in the imposition of a sentence of death by the Commonwealth of Pennsylvania in a manner clearly contrary to the express law of the land.
We recognize, of course, that the doctrine of waiver is, in our adversary system of litigation, indispensable to the orderly functioning of the judicial process. There are, however, occasional rare situations where an appellate court must consider the interests of society as a whole in seeing to it that justice is done, regardless of what might otherwise be the normal procedure. One such situation is surely the imposition of capital punishment. That this is a unique penalty requiring special jurisprudential treatment is a concept now embodied in the statutory law of this Commonwealth. Thus, section 1311(g) of the Crimes Code expressly provides that "[a] sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania[.]" See also Rule 1941 of the Pennsylvania Rule of Appellate Procedure. This is illustrative of a general proposition that while a defendant may normally make an informed and voluntary waiver of rights personal to himself, his freedom to do so must give way where a substantial public policy is involved; in such a case an appeals court may feel fully warranted in seeking to reach an issue. We have no doubt that this is such a case. Because imposition of the death penalty is irrevocable in its finality, it is imperative that the standards by which that sentence is fixed be constitutionally beyond reproach. See Woodson v. North Carolina, 428 U.S. 280, 304-05, (1976) . . . .
We conceive then, that in the circumstances of this case we have a duty to uphold the mandates of the constitution over the countervailing considerations of normal appellate procedure. The doctrine of waiver developed not only out of a sense of fairness to an opposing party but also as a means of promoting jurisprudential efficiency by avoiding appellate court determinations of issues which the appealing party had failed to preserve. It was not, however, designed to block giving effect to a strong public interest, which itself is a jurisprudential concern. It is evident from the record that . . . McKenna personally prefers death to spending the remainder of his life in prison. While this may be a genuine conviction on his part, the waiver concept was never intended as a means of allowing a criminal defendant to choose his own sentence. Especially is this so where, as here, to do so would result in state aided suicide. The waiver rule cannot be exalted to a position so lofty as to require this Court to blind itself to the real issue-the propriety of allowing the state to conduct an illegal execution of a citizen.Id. at 179-80 (1978) (some punctuation and footnotes omitted) (emphasis added).
The McKenna Court never said the sentencing court lacked jurisdiction to impose the death sentence. In fact, at the time the sentence was imposed, the statute had not yet been declared unconstitutional. Thus, the trial court and the jury had authority (and, indeed, a duty) to impose the sentence. Instead, the Supreme Court elevated adherence to the constitution over the rules of appellate procedure. Most importantly, nothing in McKenna suggested, much less explicitly stated, that this Court was at liberty to review all illegal sentences sua sponte.
Finally, the Schilling footnote cited to Commonwealth v. Jellots, 396 A.2d 461, 462 (Pa. Super. 1978) (en banc). Again, that case did not hold that sentencing courts lack jurisdiction to impose illegal sentences, nor did it hold that this Court could raise the issue sua sponte. Instead, that case involved an appeal where defense counsel moved to withdraw representation and filed a no-merit brief. Upon review, this Court denied the motion to withdraw, in part, because there was "a likely ground for appeal: that [the] sentence was illegal, because the theft charge should have merged with the robbery charge." Id. at 462.
However, we refrained from addressing the issue on its merits. Instead, we directed appellate counsel "to file within 30 days an advocate's brief discussing all of the issues that have been preserved, so that this court may rule on them in one decision." Id. at 463. Moreover, the identification of potentially meritorious issues by this Court is necessary to protect the rights of criminal defendants when their attorneys seek to withdraw representation. And such identification extends to any issue, not simply the illegality of a sentence. Thus, there was nothing unusual about this Court identifying that potentially meritorious issue for appellate counsel.
Accordingly, none of the four cases that the Schilling footnote cited supports the proposition that "the imposition of [illegal] sentences [is] beyond the power and jurisdiction of the sentencing court and, therefore, can be considered despite our normal rules concerning waiver and sua sponte review." Schilling, 431 A.2d at 1093 n.15. As such, I can only conclude that the Schilling footnote essentially overruled Dilliplaine and Clair, supra, in the context of sentence-legality issues by substituting the doctrine of basic and fundamental error for a theory of sentencing-court jurisdiction. Such a substitution is seemingly unsupportable, because "whether a court has subject-matter jurisdiction inquires into the competency of the court to determine controversies of the general class to which the case presented for consideration belongs." Domus, Inc. v. Signature Bldg. Sys. of PA, LLC, 252 A.3d 628, 636 (Pa. 2021). "The pertinent consideration is whether the court could enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case." Id.
A trial court, which had subject-matter jurisdiction to try and convict a defendant, did not lose its jurisdiction by imposing a sentence that this Court eventually deemed illegal. Every sentencing court whose sentence we have subjected to review, sua sponte, had subject-matter jurisdiction over the case, because "all courts of common pleas have statewide subject-matter jurisdiction in cases arising under the Crimes Code." Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003). Thus, the fact that a trial court may have lacked statutory or constitutional authority to impose a particular sentence (i.e., the relief that the Commonwealth sought) did not implicate its jurisdiction.
Even so, the Schilling footnote soon made its way into the body of an opinion: "The illegality of sentence is not a waivable matter and may be considered by the appellate courts of the Commonwealth sua sponte." Commonwealth v. Thomas, 435 A.2d 901, 903 (Pa. Super. 1981). Thereafter, this Court began regularly addressing issues of sentence legality sua sponte. We now say as a matter of course, "The legality of a criminal sentence is non-waivable, and this Court may raise and review an illegal sentence sua sponte." Commonwealth v. Strouse, 308 A.3d 879, 884 (Pa Super. 2024), appeal denied, 107 MAL 2024, 2024 WL 2887918 (Pa. 2024).
But, as explained, such a statement finds no support in the law or rules of procedure, and it ignores the public-policy and constitutional concerns that unpinned the highly unique, sua sponte, review of the death-penalty sentence in McKenna, supra. As a result, for over four decades, we have effectively applied the doctrine of basic and fundamental error to illegal sentences, a doctrine that Dilliplaine and Clair, supra, supposedly ended.3 I believe this practice and the disparate justice it creates is untenable for all the reasons expressed in those cases.
Indeed, the "major weakness of the basic-and-fundamental-error theory is its ad hoc nature. The theory has been formulated in terms of what a particular majority of an appellate court considers basic or fundamental." Dilliplaine, 322 A.2d at 117. Sua sponte review of illegal sentences suffers the same weakness. It is ad hoc appellate relief, based on what a particular majority of a panel of this Court considers to be an illegal sentence, without the benefit of briefing and argument from the parties. In undertaking sua sponte review, we become both appellate advocates and adjudicators, in disregard of the norms and safeguards of the adversarial system.
This appeal is illustrative of the potential risks of sua sponte review for illegal sentences. Here, the Majority perceives an illegality from the assumed failure of the sentencing court to perform a CRN evaluation. But, in my view, such a misstep (if it even occurred) is de minimis and may not substantially impact Eberle's sentence. Or worse, remand could increase his sentence. I think it is fundamentally unjust that Eberle could appeal to this Court and end up worse off for the effort.4
Further, another panel may not have even identified the supposed lack of a CRN evaluation in the record, and the judgment of sentence would have remained undisturbed. Neither party would have sought further review, based upon an illegal sentence, because they did not raise that claim of error in this Court. But now, due to the preferences of the Majority of this panel, Eberle must face a resentencing that he did not seek and a potentially worse outcome than if he had not appealed at all. That is a bizarre prospect for an appellant.
In sum, the Commonwealth is not an appellant; it is not entitled to the possible relief that the Majority grants it. The Commonwealth abandoned and thereby waived any claim of error based on the possible absence of a CRN evaluation when it elected not to file a cross-appeal. See Pa.R.A.P. 2116(a). Thus, I concur in the disposition of Eberle's claim of error but must respectfully dissent from the decision to vacate and remand for resentencing. I would affirm the judgment of sentence.