J-S55040-16

2016 PA Super 179

*Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RYAN O. LANGLEY,

Appellant No. 2508 EDA 2015

Appeal from the Judgment of Sentence July 8, 2015

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0001783-2014

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED AUGUST 12, 2016

Appellant Ryan O. Langley appeals from the judgment of sentence 

entered by the Court of Common Pleas of Montgomery County after the trial 

court convicted him of Driving Under the Influence (DUI) and Driving at an 

Unsafe Speed. After careful review, we affirm.

On November 14, 2013, police responded to a report of a motor 

vehicle accident in Lower Merion, Pennsylvania. In investigating the scene 

and the drivers involved in the accident, officers spoke with Appellant and 

noticed an odor of alcohol on his breath. After Appellant failed field sobriety 

testing, he was placed under arrest for DUI. Appellant’s blood alcohol 

concentration level (BAC) was determined to be .092%. 

Appellant was charged with two counts of DUI under 75 Pa.C.S. § 

3802(a)(1) (incapable of safely driving) and 75 Pa.C.S. § 3802(a)(2) (BAC 
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greater than .08% and less than .10%) as well as one count of failing to 

drive at a safe speed (75 Pa.C.S. § 3361). In addition, Count 1 of the 

criminal information stated Appellant was subject to the enhanced penalty 

contained in 75 Pa.C.S. § 3804(b)(2) as his DUI violation under Section 

3802(a)(1) resulted in an accident that caused bodily injury or property 

damage. Count 1 also listed the mandatory minimum provisions in 75 

Pa.C.S. § 3804(c) (refusal of testing of blood or breath) and 75 Pa.C.S. § 

3804(c.1) (violation involving minor occupant), but clarified that neither 

provision was applicable in this case. The information noted this was 

Appellant’s second DUI offense. 

Appellant filed an omnibus pre-trial motion, asking the trial court to 

quash Count 1 and demanding a jury trial. The trial court denied Appellant’s 

pre-trial motion. After a bench trial, the trial court convicted Appellant of 

DUI (incapable of safely driving) and failing to drive a safe speed. Appellant 

was sentenced to thirty days to six months incarceration. This timely appeal 

followed. Appellant complied with the trial court’s order to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issues for our review on appeal:

A. Did the trial court err by not quashing Count 1 of the Bill of 

Information, which contained four paragraphs, where three of 

the paragraphs are not elements of the offense but rather 

sentencing provisions, which violates Pa.R.Crim. P. 560[?]

B. Did the trial court err by ruling that Article I, Section 9 of the 

Pennsylvania Constitution does not guarantee a jury trial for 

an ungraded misdemeanor DUI?
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Appellant’s Brief, at 2.

Appellant first claims the trial court erred in denying his request to 

quash Count 1 of the criminal information as he contended it contained 

superfluous language that included facts and potential penalties and beyond 

the elements of the crime charged. Appellant argues the extra information 

violates Pa.R.Crim.P. 560, which states that an information “shall be valid 

and sufficient in the law if it contains ... (5) a plain and concise statement of 

the essential elements of the offense substantially the same as or cognate to 

the offense alleged in the complaint.” Pa.R.Crim.P. 560. We disagree.

Appellant specifically takes issue with the Commonwealth’s allegation 

that Appellant’s conduct resulted in an “accident resulting in bodily injury, 

serious bodily injury, injury or death of any person or damage to a vehicle or 

other property.” Information, at 1. By including this language in the 

information, the Commonwealth put Appellant on notice that he would be 

subject to the mandatory minimum provision set forth in Section 3804(b). 

Our Supreme Court recently emphasized that:

when a factual determination is necessary for the imposition of a 

mandatory minimum sentence, the facts must be considered an 

element of a new, distinct aggravated offense. Moreover, as an 

element of the offense, the factual determination must be 

specifically alleged in the charging document, and the defendant 

has a right to have that fact determined by a jury beyond a 

reasonable doubt. 
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Commonwealth v. Hopkins, ___Pa.___, 117 A.3d 247, 256-57 (2015) 

(citing Alleyne v. United States, ___U.S.___, 133 S.Ct. 2152, 2160-63 

(2013)).

Here, the Commonwealth specifically alleged in the Count 1 of the 

criminal information that it would attempt to prove that Appellant was 

subject to the mandatory minimum of 30 days imprisonment set forth in 

Section 3804(b)(2)(i) which applies where an individual, who commits a 

second offense DUI, causes an accident resulting to injury or property 

damage. Pursuant to Alleyne and Hopkins, the Commonwealth was 

required to include such facts in the information, which if proven, would 

increase the prescribed penalty to which Appellant was exposed.1 

Moreover, we also reject Appellant’s claim that the Commonwealth 

violated Rule 560 by stating in the criminal information that it would not 

____________________________________________

1 Appellant does not argue that Section 3804 is unconstitutional pursuant to 

Alleyne. To the extent his argument could be characterized as raising such 

an issue, this claim would fail. While our courts have found several of our 

mandatory minimum statutes unconstitutional in light of Alleyne, the 

offending provisions in those cases contained language allowing the trial 

court to increase a defendant’s penalty based on facts proven by a 

preponderance of the evidence standard at sentencing. See

Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.Super. 2013) (finding 

Alleyne “renders those Pennsylvania mandatory minimum sentencing 

statutes that do not pertain to prior convictions constitutionally infirm insofar 

as they permit a judge to automatically increase a defendant's sentence 

based on a preponderance of the evidence standard”). The statute in this 

case, Section 3804, does not contain any language allowing the trial judge 

to make findings of fact triggering the mandatory minimum at sentencing 

based on a preponderance of the evidence standard.
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seek the enhanced penalties set forth in 75 Pa.C.S. § 3804(c) (refusal of 

testing of blood or breath) and 75 Pa.C.S. § 3804(c.1) (violation involving 

minor occupant). We agree with the Commonwealth that listing these facts 

provided further clarification to the trial court of which mandatory minimum 

sentence provision was implicated in these circumstances. As the 

Commonwealth fulfilled the requirement in Rule 560(B)(5) that the 

Commonwealth set forth the essential elements of the offense in a plain and 

concise statement, the trial court did not err in refusing Appellant’s request 

to quash Count 1 of the information.

Second, Appellant cites Article I, Section 9 of the Pennsylvania 

Constitution in arguing that he was deprived of his right to a jury trial on the 

DUI charges. Appellant asks this Court to interpret our Constitution as 

providing an “absolute” right to a jury trial in all criminal prosecutions. 

However, our Supreme Court has already spoken directly to this issue in 

Commonwealth v. Mayberry, 459 Pa. 91, 97, 327 A.2d 86, 89 n.9 (1974), 

and established that both U.S. Constitution and Article I, Section 9 of the 

Pennsylvania Constitution only guarantee a defendant a right to a jury trial 

for “serious offenses,” or crimes which carry more than a six month 

maximum prison sentence. In contrast, crimes that carry a maximum of six 

months’ imprisonment or less are considered “petty offenses” for which 

there is no right to a jury trial. Id. at 98, 327 A.2d at 89. 

Appellant responds by arguing that DUI offenses should not be 

deemed petty offenses as “an individual’s first DUI is a stepping stone to 
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harsher penalties for subsequent offenses.” Appellant’s Brief, at 20. In 

addition, Appellant argues that the Pennsylvania Constitution should be 

interpreted more broadly than the federal Constitution as Article I, Section 6 

refers to a citizen’s right to a trial by jury as “inviolate.” Pa.Const. art.I, § 6.

However, Appellant ignores our past precedent in Commonwealth v. 

Kerry, 906 A.2d 1237 (Pa.Super. 2006), in which we rejected the identical 

arguments as applied to DUI charges:

Appellant first submits that although the maximum incarceration 

for a first offense under 75 Pa.C.S.A. § 3802(a)(1), with a 

refusal to submit to chemical testing, is no more than six 

months, this conviction severely affects subsequent convictions 

under the statute. Therefore, he argues that the offense should 

be considered serious in the constitutional sense and entitles him 

to a jury trial. We disagree.

The test is clear. The decisions of the Supreme Court of the 

United States ‘have established a fixed dividing line between 

petty and serious offenses: those crimes carrying [a sentence of] 

more than six months [ ] are serious [crimes] and those carrying 

[a sentence of six months or] less are petty crimes.’ 

Commonwealth v. Mayberry, 459 Pa. 91, 98, 327 A.2d 86, 89 

(1974) (quoting Codispoti v. Pennsylvania, 418 U.S. 506, 

512, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974)). It is well-settled 

that a legislature's determination that an offense carries a 

maximum prison term of six months or less indicates its view 

that an offense is “petty.” Blanton v. North Las Vegas, 489 

U.S. 538, 543, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). As 

further explained in Blanton,

It has long been settled that there is a category of 

petty crimes or offenses which is not subject to the 

Sixth Amendment jury trial provision. In determining 

whether a particular offense should be categorized 

as petty, our early decisions focused on the nature of 

the offense and on whether it was triable by a jury at 

common law. In recent years, however, we have 
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sought more objective indications of the seriousness 

with which society regards the offense. [W]e have 

found the most relevant such criteria in the severity 

of the maximum authorized penalty. In fixing the 

maximum penalty for a crime, a legislature 

include[s] within the definition of the crime itself a 

judgment about the seriousness of the offense. The 

judiciary should not substitute its judgment as to 

seriousness for that of a legislature, which is far 

better equipped to perform the task, and [is] 

likewise more responsive to changes in attitude and 

more amenable to the recognition and correction of 

their misperceptions in this respect.

Id. at 541–542, 109 S.Ct. 1289 (internal quotation marks and 

citations omitted).

As set forth above, we determine whether an offense is serious 

by looking to the judgment of the legislature, primarily as 

expressed in the maximum authorized term of imprisonment. 

Here, by setting the maximum authorized prison term at six 

months, the Legislature categorized the violation of § 3802(a)(1) 

as petty for purposes of a defendant's jury trial rights. This 

categorization is not affected by the potential for a 

defendant to be subject to increased incarceration for a 

subsequent DUI offense. Much like a defendant charged with 

multiple petty offenses, the fact that the potential exists for an 

aggregate sentence exceeding six months' incarceration does not 

entitle such a defendant to a jury trial. See Lewis v. United 

States, 518 U.S. 322, 327, 116 S.Ct. 2163, 135 L.Ed.2d 590 

(1996) ... Moreover, applying these principles in Blanton, the 

United States Supreme Court found that first-time DUI 

offenders, where the maximum authorized prison sentence does 

not exceed six months, are not entitled to a jury trial. In 

reaching this decision, the Court further noted that “we ascribe 

little significance to the fact that a DUI offender faces increased 

penalties for repeat offenses. Recidivist penalties of the 

magnitude imposed for DUI are commonplace and, in any event, 

petitioners do not face such penalties here.” Blanton, 489 U.S. 

at 545, 109 S.Ct. 1289.

Appellant also argues that, unlike the United States Constitution, 

Article 1, Section 6 of the Pennsylvania Constitution contains the 

word “inviolate” when referring to the right to a jury trial and 
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therefore should be interpreted more broadly so as to afford 

defendants the right to a jury trial. We cannot agree. What 

Appellant fails to recognize is that our Supreme Court's decision 

in Mayberry, supra, at 97 n. 9, 327 A.2d at 89 n. 9, also 

considered Article 1, Sections 6 and 9 of the Pennsylvania 

Constitution in applying the fixed dividing line test articulated by 

the United States Supreme Court. Despite differences in the 

language of the United States and Pennsylvania constitutional 

provisions, both provisions have been interpreted to guarantee 

the right to a jury trial in a criminal matter only as it existed at 

common law. Thus, there is no constitutional right to trial by jury 

for “petty” offenses. Consequently, this argument is likewise 

unavailing. It was not error, therefore, to deny Appellant a jury 

trial.

Kerry, 906 A.2d at 1239-40 (emphasis added). As our precedent in Kerry 

is directly controlling, we conclude the trial court did not err in finding that 

Appellant was not entitled to a jury trial for his DUI charges.

For the foregoing reasons, we affirm Appellant’s judgment of sentence.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/12/2016
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