Commonwealth vs. Daniel Campbell Nos. CP-38-CR-000020-2015 and CP-38-CR-000416-2015

Criminal Action-Law-Driving Under the Influence-Prior Offense-Subsequent Charge-Repeat Offenses within Ten Years-Effect of Delay by Defendant

Defendant, who had a prior conviction of Driving Under the Influence (“DUI”) that occurred on July 14, 2005, was charged with DUI offenses on November 17, 2014 and on February 26, 2015, each of which stemmed from different incidents. Defendant asserts that the both the pending DUI charges of November 17, 2014 and February 26, 2015 must be considered first offenses pursuant to 75 Pa.C.S. § 3806, while the Commonwealth asserts that the charges of November 17, 2014 and February 26, 2015 constitute second and third offenses for purposes of the grading and sentencing provisions of § 3806.

1. The language of the former § 3806 provided that a “prior offense” for purposes of the DUI statute was a conviction within ten (10) years before the present violation occurred.

2. Pursuant to an amendment of § 3806 that was made effective on December 26, 2014, § 3806 was amended to define a “prior offense” as any conviction, adjudication of delinquency, juvenile consent decree, acceptance of accelerated rehabilitative disposition or other form of preliminary disposition before the sentencing on the present violation, whether or not judgment of sentence has been imposed for the violation, within ten years before the sentencing on the present violation.

3. In interpreting a statutory scheme created by the General Assembly, the goal of the court is to effectuate the intent of the General Assembly.

4. By amending the language of § 3806 to indicate that a “prior offense” includes any offense that predates sentencing on the present violation, the General Assembly clearly intended to expand the classification of repeat offenders to include those who commit one DUI offense while another still is pending.

5. Ordinarily, substantive changes in the law will not be applied retroactively. However, procedural changes often are applied retroactively. The amendment to § 3806 that became effective after the set of charges of November 17, 2014 merely addresses how prior offenses are to be characterized. As such, the amendment is procedural, not substantive.

6. The General Assembly explicitly declared its intent that the amendments be applied “…to persons sentenced on or after the effective date of this section…,” thereby expressing its intent that the new amendment apply to both of Defendant’s pending DUI changes upon which sentences have not been imposed.

7. However, since § 3806 as amended defines repeat offenses as those that occur within ten (10) years before the sentencing on the present violation, the claimant’s two (2) pending DUI charges upon which sentencing has not yet occurred cannot be considered subsequent offenses of the conviction that occurred on July 14, 2005.

8. As such, Defendant’s charges of November 17, 2014 must be considered a first offense for purposes of § 3806, and the charges of February 26, 2015 must be considered a second conviction for purposes of § 3806.

9. Defendant’s postponement of trial of his charges of November 17, 2014 and February 26, 2015 beyond July 14, 2015 through continuances for purposes of the ten (10) year look back period has no bearing upon the express language of the General Assembly such that the charges may be considered second and third offenses out of fundamental fairness to the Commonwealth.

L.C.C.C.P. Nos. CP-38-CR-000020-2015 and CP-38-CR-000416-2015, Opinion by Bradford H. Charles, Judge, December 3, 2015

Jonathan C. Faust, Esquire, for the Commonwealth

Matthew Kopecki, Esquire, for Defendant

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION NO. CP-38-CR-20-2015 and CP-38-CR-416-2015

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL CAMPBELL

ORDER OF COURT

AND NOW, this 3^rd day of December, 2015, upon consideration of the arguments submitted by the parties, the Order of this Court is as follows:

1. The charges filed to Docket CR-20-2015 will be considered as a “first DUI” for purposes of 75 Pa.C.S.A. § 3806.

2. The charges filed against the Defendant to Docket CR-416-2015 will be considered a “second offense” for purposes of 75 Pa.C.S.A. § 3806.

3. Both of the above-referenced matters are to be listed for trial as promptly as possible. Trials in both of the above-referenced matters are to be conducted before this Jurist. The Defendant is directed to appear at the Criminal Call of the List scheduled for December 22, 2015 at 8:30 a.m. in the designated courtroom. He is also directed to appear for the first day of Criminal Trials scheduled to commence on January 4, 2016 at 8:30 a.m. in the designated courtroom.

BY THE COURT:

BRADFORD H. CHARLES, J.

APPEARANCES

Jonathan C. Faust, Esquire For Commonwealth of Pennsylvania

DISTRICT ATTORNEY’S OFFICE

Matthew Kopecki, Esquire For Daniel Campbell

BENTLEY GIBSON KOPECKI SMITH, P.C.

OPINION BY CHARLES, J., December 3, 2015

This case highlights the danger of excessive continuances. Here, Daniel Campbell (hereafter “DEFENDANT”) had a prior conviction for Driving Under the Influence (DUI) that occurred on July 14, 2005. He was charged with a “second” DUI on November 17, 2014 and with yet another DUI on February 26, 2015. Using a plethora of legal tactics, DEFENDANT was successful in postponing his two latest DUIs beyond July 14, 2015.

Today, DEFENDANT argues that both of his pending DUIs should be considered as “first offenses” under 75 Pa.C.S.A. § 3806. In response, the Commonwealth argues that we should not reward DEFENDANT’s “exploitation” of an “unforeseen loophole in the law.” The Commonwealth asks us to declare DEFENDANT’s two latest DUIs as his “second” and “third.”

While we are loathe to reward legal gamesmanship – and we have little doubt that the tactics employed by DEFENDANT equate to “gamesmanship” – we must follow Pennsylvania law. As we interpret Pennsylvania’s DUI statute, we conclude that the charges filed to Docket CP-38-CR-20-2015 should be considered DEFENDANT’s “first” DUI and the charges filed to CP-38-CR-416-2015 must be considered his “second.” The reasons for our decision will be set forth herein.

I. PROCEDURAL HISTORY

On July 14, 2005, DEFENDANT was adjudicated delinquent for a violation of DUI. On November 17, 2014, DEFENDANT was charged with Driving Under the Influence of a Controlled Substance as a result of a traffic stop that occurred on October 19, 2014. These charges eventually were docketed at CP-38-CR-20-2015. On February 26, 2015, DEFENDANT was charged with yet another DUI. These charges eventually became docketed to No. CP-38-CR-416-2015. We will separately chronicle the history of both dockets leading to today’s date.

A. DOCKET CR-20-2015

November 17, 2014 – Charges filed against DEFENDANT.

January 22, 2015 – DEFENDANT waived his Preliminary Hearing.

February 25, 2015 – DEFENDANT waived his formal arraignment.

March 24, 2015 – DEFENDANT continued his case for two months.

March 31, 2015 – DEFENDANT filed a Motion for Habeas Corpus.

May 14, 2015 – DEFENDANT requested a continuance of his Habeas Corpus hearing. This request was denied.

May 19, 2015 – DEFENDANT continued his trial for a second time.

May 20, 2015 – DEFENDANT again submitted a request to continue his Pre-Trial Hearing. This request was denied. DEFENDANT’s Habeas Corpus Petition was then denied in part and granted in part.

June 23, 2015 – DEFENDANT’s case was again called for trial. DEFENDANT’s Request for Continuance and Waiver of Rule 600 Rights was granted – no reason given.

August 18, 2015 – DEFENDANT’s case was again called for trial. Once again, DEFENDANT’s Request for Continuance and Waiver of Rule 600 Rights was granted – no reason given.

B. DOCKET CR-416-2015

February 26, 2015 – DEFENDANT was charged with DUI and related charges.

February 26, 2015 – DEFENDANT waived his Preliminary Hearing.

March 31, 2015 – DEFENDANT filed a Motion for Writ of Habeas Corpus

April 1, 2015 – DEFENDANT waived his formal arraignment.

May 14, 2015 – DEFENDANT requested a continuance of his Habeas Corpus Hearing. This continuance request was denied.

May 19, 2015 – DEFENDANT’s case was called for trial. DEFENDANT continued the case.

May 20, 2015 – A Writ of Habeas Corpus Hearing was scheduled. DEFENDANT again requested a continuance. The request for continuance was denied. Thereafter, DEFENDANT withdrew his Motion for Writ of Habeas Corpus.

June 23, 2015 – DEFENDANT’s case was continued at the request of DEFENDANT. (Motion for Continuance and Waiver of Rule 600 Rights was filed by DEFENDANT – no reason listed)

August 15, 2015 – DEFENDANT again filed a Motion for Continuance and Waiver of Rule 600 Rights (no reason listed). DEFENDANT’s request was granted.

September 8, 2015 – The Commonwealth filed a Motion to Amend the Information.

September 30, 2015 – Argument was conducted regarding the Commonwealth’s Motion. At the conclusion of the argument, we solicited briefs from both parties.

II. ANALYSIS

Pennsylvania’s DUI statute has been oft amended. Prior to December 26, 2014, the scheme for classifying prior DUI offenses read as follows:

A. General Rule –

(i) Except as set forth in sub-section (b), the term “prior offense” as used in this chapter shall mean a conviction . . . the sentencing on the present violation for any of the following:

(1) An offense under § 3802 (relating to Driving Under the Influence of Alcohol or Controlled Substance);

. . .

(c) Repeat offenses within ten years – the calculation of prior offense for purposes of Sections . . . 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction . . . within the ten years before the present violation occurred . . .

Former 75 Pa.C.S.A. § 3806. (This will hereafter be referred to as “OLD § 3806.”) Pursuant to an amendment which took effect on December 26, 2014, the law was modified to read as follows:

A. General Rule –

(i) Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of accelerated rehabilitative disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:

(1) An offense under Section 3802 (relating to Driving Under the Influence of Alcohol or a Controlled Substance: . . .

(b) Repeat offenses within ten years – The calculation of prior offense for purposes of Sections . . . 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction, whether or not judgment of sentence has been imposed for the violation . . . within ten years before the sentencing on the present violation . . .

75 Pa.C.S.A. § 3806. (This will hereafter be referred to as “NEW § 3806.”)

Unfortunately, the so-called “look-back” provisions of NEW § 3806 are not completely clear. Although the case of Commonwealth v. Haag, 981 A.2d 902 (Pa. 2009) interpreted OLD § 3806 no appellate cases have yet been decided regarding the amended version or its impact on pending cases. Therefore, we will be required to undertake an interpretation of the statutory scheme created by the General Assembly. As we do so, we remember clearly that our goal is to effectuate the intent of the General Assembly. See, e.g. 1 Pa.C.S.A. § 1921; Commonwealth v. Campbell, 758 A.2d 1231 (Pa.Super. 2000). To do this, we will divide our analysis into the following questions:

(1) What did the legislature intend by its amendment of § 3806?

(2) Which version of § 3806 applies in this case?

(3) Can the July 2005 conviction be considered a “prior offense” under either version of § 3806?

(4) What is the legal effect of DEFENDANT’s repeated continuances?

Each of the above questions will be addressed separately seriatim:

1. INTENT BEHIND THE AMENDMENT OF SECTION 3806

The primary difference between “OLD § 3806” and “NEW § 3806” is the modification of the suffix to the word “conviction” found in the “look back” provision. Under OLD § 3806, repeat offenses were defined as convictions that occurred “within the ten years before the present violation occurred.” Under NEW § 3806, offenses were counted “whether or not judgment has been imposed for the violation” if the conviction occurred “within ten years before the sentencing on the present violation . . .” Our first task requires us to discern what the General Assembly intended by the modification outlined above.

Under the OLD § 3806, it was possible for a defendant to commit multiple DUI violations relatively close in time and have each classified as a “first offense.” In fact, we frequently encountered defendants who committed one and sometimes even two offenses while the initial DUI was pending. Because the OLD § 3806 effectively failed to “count” concurrent offenses under its serial conviction scheme, defendants were often able to obtain relatively minimal sanctions for habitually problematic behavior.

By amending § 3806 to include any offense that predated “sentencing on the present violation,” the General Assembly clearly intended to expand the classification of repeat offenders to include those who commit one DUI while another was still pending. While we agree with the parties that the General Assembly could have amended § 3806 more clearly and comprehensively, we nevertheless conclude that the General Assembly intended to expand the classification of serial offenders to include those who commit so-called “concurrent DUI’s.”

2. WHICH VERSION OF § 3806 APPPLIES IN THIS CASE?

The effective date of the amendment to § 3806 was December 26, 2014. The first charge lodged against DEFENDANT occurred before the amendment to Rule 3806 took effect. Therefore, a question arises with respect to whether the old law or the new law should be applied to the charges filed against DEFENDANT on November 17, 2014.

Ordinarily, substantive changes in the law will not be applied retroactively. See, e.g. Giant Eagle, Inc. v. WCAB, 764 A.2d 663 (Pa.Cmwlth. 2000). However, so-called “procedural” changes can and often are applied retroactively. See McDonald v. Redevelopment Authority of Allegheny County, 952 A.2d 713 (Pa.Cmwlth. 2008). In this case, the change to § 3806(b) did not effect the elements of the charge against DEFENDANT, nor did it affect any potential defenses that could be raised by DEFENDANT at trial. The change merely addressed how prior offenses are to be characterized. As such, we considered the amendments to § 3806 to be more “procedural” than “substantive.”

More important, the General Assembly explicitly declared its intent to apply the amendments “to persons sentenced on or after the effective date of this section.” See Section 2 of public law 2905, No. 189, quoted in the Historical and Statutory Notes to 75 Pa.C.S.A. § 3806. As DEFENDANT points out repeatedly, sentencing with respect to both of DEFENDANT’s pending DUIs has not yet occurred. Giving effect to the instructions of the General Assembly requires us to apply the new amendment to both of DEFENDANT’s pending charges. We will do just that.

3. CAN THE JULY 2005 CONVICTION BE CONSIDERED A

“PRIOR OFFENSE” OF THE CURRENT CHARGES?

Unfortunately – we use that word intentionally – Pennsylvania’s General Assembly has deigned to exclude offenses more than ten years old from classification as a “prior offense.” By creating this legal fiction, the General Assembly clearly intended to decrease sanctions to be imposed upon long-term serial repeat DUI offenders. With this being recognized, it is clear to this Court that under either OLD § 3806 or NEW § 3806, the three offenses committed by DEFENDANT cannot all be classified as “first offenses.” On the other hand, we have found nothing that would justify the Commonwealth’s proposed conclusion that the two pending DUIs should be considered as “second” and “third” DUIs for purposes of § 3806.

The irony of this case is that the recent amendment of § 3806 – which was clearly intended to expand how serial DUIs are characterized – actually makes the Commonwealth’s argument less tenable. Under the former § 3806(c), a prior offense was defined as one that occurred “within the ten years before the present violation occurred . . .” In this case, both the November 17, 2014 offense and the February 26, 2015 offense occurred within ten years of DEFENDANT’s prior conviction on July 14, 2005. In contrast, the amendment to § 3806 redefines repeat offenses as those that occur “within the ten years before the sentencing on the present violation.” In this case, no sentencing has yet occurred with respect to either pending DUI, so neither can be considered subsequent offenses of the one that occurred in July of 2005.

4. EFFECT OF DEFENDANT’S CONTINUANCES

The Commonwealth vigorously asserts that DEFENDANT should not be permitted to gain benefit from his procedural gamesmanship. The Commonwealth argues:

The Defendant’s course of action also frustrates the Court’s orderly and efficient administration of criminal cases. Based on the Defendant’s clear frustration of the legislature’s intent in declaring these cases a second and third offense, and out of fundamental fairness to the Commonwealth, this Court should find these are properly styled as a second and third DUI.

Although we sympathize with the Commonwealth’s argument, we cannot adopt it.

Had the General Assembly intended to classify a second or third offense by comparing only offense dates, it could have done so. It would have been easy for the General Assembly to define the ten year “look back” period as the time between offense dates. For some reason, it chose not to do so. Because the ten year “look back” scheme is a purely legislative concept, we cannot rewrite the clear language of the statute under the guise of interpreting it.

Nowhere in the legislative scheme is there any exception triggered by a defendant’s repeated continuance requests. We certainly agree that DEFENDANT in this case was awarded too many continuances. Under the General Assembly’s “look back” statutory scheme, that simply has no bearing.

In addition to the above, we confess that our sympathy for the Commonwealth’s position is lessened somewhat by virtue of the fact that it acquiesced to DEFENDANT’s repeated postponement requests. In fact, the Commonwealth affirmatively consented to DEFENDANT’s continuance request submitted on June 18, 2015. Had the Commonwealth opposed any of the continuance requests submitted during the spring of 2015, this Court would have scheduled a hearing and would have considered the Commonwealth’s argument that the postponements were designed to circumvent the ten year “look back” provision of the law. At least with respect to this Jurist, such an argument by the Commonwealth would have found a sympathetic ear. However, no such argument was submitted.

Time and time again, this Jurist has editorialized almost to the point of sermonizing about the perils of indefinitely postponing criminal proceedings. There are a multitude of reasons why criminal cases should be tried sooner rather than later. The facts of this case illustrate one of those reasons. While we are not thrilled by the legal gamesmanship undertaken by DEFENDANT, there is nothing we can do at this point to turn back the hands of time. As much as we agree with the Commonwealth that DEFENDANT’s two current offenses should be treated as “second” and “third” DUIs, we simply have found no legal or statutory justification for such classification. Therefore, the Commonwealth’s argument must be rejected.

III. CONCLUSION

Based upon the foregoing analysis, we will be classifying Docket 20-2015 under Pennsylvania’s statutory DUI scheme as a “first” DUI. We will characterize Docket 416-2015 as DEFENDANT’s “second” DUI. The appropriate penalties attendant to each will be applied if DEFENDANT is found guilty.

Having rendered the above decision, we will direct that both of DEFENDANT’s pending dockets be placed on the next trial list at which this Jurist is presiding. We warn both DEFENDANT and the Commonwealth that we will not entertain any further continuance requests absent emergency circumstances. The two dockets pending against DEFENDANT have been delayed long enough. It is time to move forward expeditiously on each. An Order to accomplish this will be entered today’s date.

1) For example, the “general rule” defines “prior offense” as including a “conviction.” Historically in Pennsylvania, a “conviction” is not triggered until sentencing actually occurs. See, e.g. Commonwealth v. Kearns, 528 A.2d 992 (Pa.Super. 1987); Commonwealth v. McDermott, 73 A. 427 (Pa. 1909). However, for purposes of DUI, subsection (b) of § 3806 requires us to calculate prior offense as including any conviction “whether or not a judgment of sentence has been imposed for the violation . . .”

2) Considering only offenses that occurred within ten years to be “prior offenses” is a legal fiction. Under the statutory scheme created by our General Assembly, an individual could commit one DUI every eleven years for his entire life and each would be classified as a “first offense.” While we must respect and follow the General Assembly’s edict, we cannot help but think that some other method could be found to accomplish the obvious goal of reducing punishment for DUI offenders.