J-S19007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIE ABNER VELAZQUEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1476 MDA 2022

Appeal from the Judgment of Sentence Entered October 12, 2022

In the Court of Common Pleas of Schuylkill County Criminal Division at 

No(s): CP-54-CR-0001560-2019

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 11, 2023

Appellant, Willie Abner Velazquez, appeals from the judgment of 

sentence of 2 to 4 years’ incarceration, imposed after a jury convicted him of 

driving under the influence of alcohol (DUI), 75 Pa.C.S. § 3802(a)(1) (general 

impairment), and driving while operating privileges are suspended/revoked, 

75 Pa.C.S. § 1543(b)(1.1)(iii) (third or subsequent violation). The trial court 

also convicted Appellant of careless driving, 75 Pa.C.S. § 3714(a). On appeal, 

Appellant contends that his sentence is illegal. After careful review, we affirm.

We need not summarize the facts underlying Appellant’s convictions, 

aside from noting that the evidence presented at his trial on August 30, 2022, 

established that Appellant drove his car while intoxicated on January 9, 2019. 

At that time, Appellant’s driver’s license had been revoked due to previous 

offenses. 
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On October 12, 2022, Appellant was sentenced for his section 

1543(b)(1.1)(iii) offense to the mandatory term of 2 to 4 years’ incarceration. 

No further penalty was imposed at his remaining counts. Appellant filed a 

timely notice of appeal, and he complied with the trial court’s order to file a 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The 

court thereafter filed its Rule 1925(a) opinion. Herein, Appellant states one 

issue for our review: “Did the trial court illegally sentence ... [A]ppellant under 

the recidivist section of the Vehicle Code as a third violation?” Appellant’s 

Brief at 4.

Initially, this Court has stated:

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, 768–69 (Pa. Super. 2018). 

(internal citations, quotations, and ellipses omitted).

Presently, Appellant begins his argument by claiming that section 

1543(b)(1.1)(iii), “as to the imprisonment, is unconstitutional.” Appellant’s 

Brief at 9. However, Appellant does not develop any clear argument to 

support this claim.

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1 We recognize that certain subparts of section 1543(b) have been struck down 

as unconstitutionally vague because they fail to set forth a maximum term of 

incarceration. See, e.g., Commonwealth v. Eid, 249 A.3d 1030 (Pa. 2021) 

(Footnote Continued Next Page)
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Instead, Appellant develops a cursory (and rather confusing) argument 

that his present violation of section 1543(b) was only his second, not his third, 

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(finding section 1543(b)(1.1)(i) unconstitutionally vague because it fails to 

specify a maximum term of imprisonment); Commonwealth v. Jackson, 

271 A.3d 1286, 1288 (Pa. Super. 2022) (holding that section 1543(b)(1)(ii) 

is unconstitutionally vague for the same reasons as set forth in Eid, as it 

requires a sentence of “not less than 90 days” and “does not provide for a 

maximum term of incarceration”). However, in Commonwealth v. Rollins, 

292 A.3d 873 (Pa. 2023) (Rollins II), our Supreme Court affirmed this Court’s 

decision that section 1543(b)(1)(iii) is not unconstitutionally vague because, 

while the statute at issue in Eid was graded as a summary offense, section 

1543(b)(1)(iii) is graded as a misdemeanor of the third degree. See id. at 

877 (discussing our decision in Commonwealth v. Rollins, 161 EDA 2021, 

unpublished memorandum at *2 (Pa. Super. filed Dec. 21, 2021) (Rollins I)). 

[We] found this difference in grading significant because the 

Vehicle Code explicitly states: “Title 18 (relating to crimes and 

offenses), insofar as it relates to fines and imprisonment for 

convictions of summary offenses, is not applicable to this title.”

[Rollins I, 161 EDA 2021, unpublished memorandum at *2].

Because no such provision exists for misdemeanors, [this] Court 

applied the sentencing provisions set forth in the Crimes Code to 

infer a maximum penalty of one year imprisonment. Id. (citing 

18 Pa.C.S. § 106(b)(8) (“A crime is a misdemeanor of the third 

degree if it is so designated in this title or if a person convicted 

thereof may be sentenced to a term of imprisonment, the 

maximum of which is not more than one year.”)). ... [We] 

therefore concluded [that s]ection 1543(b)(1)(iii) is not 

unconstitutionally vague. Id.

Rollins II, 292 A.3d at 877. Here, as in Rollins, section 

1543(b)(1.1)(iii) is also graded as a misdemeanor (of the first degree). 

Thus, applying the sentencing provisions set forth in the Crimes Code, 

we can infer a maximum sentence of five years. See 18 Pa.C.S. § 

106(b)(6) (“A crime is a misdemeanor of the first degree if it is so 

designated in this title or if a person convicted thereof may be sentenced 

to a term of imprisonment, the maximum of which is not more than five 

years.”). Therefore, without any developed argument by Appellant, we 

discern no reason, on the face of section 1543(b)(1.1)(iii), to deem it 

unconstitutionally vague.
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and, thus, he should have been sentenced under section 1543(b)(1.1)(ii) 

rather than subpart (iii). From what we can discern, Appellant’s argument 

hinges on the timeline of his prior section 1543(b) offenses. Specifically, 

Appellant was convicted of his first section 1543(b) offense in 2006. He 

committed a second violation of section 1543(b) on January 9, 2019 (which 

underlies the present case), and a third violation on August 19, 2019. 

What confuses the matter is that Appellant proceeded to trial and was 

convicted of the latter, August 2019 violation before he was tried and 

convicted of the earlier, January 2019 violation. Namely, for the August 2019 

violation, Appellant was tried and convicted on July 20, 2022; for the January 

2019 violation, he was tried and convicted on August 31, 2022. Thus,

although Appellant’s instant, section 1543(b) conviction was his third, the 

January 2019 violation underlying his present conviction was only his second 

in time. Consequently, Appellant avers that his present offense should have 

been graded and sentenced under section 1543(b)(1.1)(ii) instead of (iii).

We are unconvinced. Initially, section 1543(b)(1.1) states, in its 

entirety:

(1.1)(i) A person who has an amount of alcohol by weight in his 

blood that is equal to or greater than .02% at the time of testing 

or who at the time of testing has in his blood any amount of a 

Schedule I or nonprescribed Schedule II or III controlled 

substance, as defined in the act of April 14, 1972 (P.L. 233, No. 

64), known as The Controlled Substance, Drug, Device and 

Cosmetic Act, or its metabolite or who refuses testing of blood or 

breath and who drives a motor vehicle on any highway or 

trafficway of this Commonwealth at a time when the person’s 

operating privilege is suspended or revoked as a condition of 
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acceptance of Accelerated Rehabilitative Disposition for a violation 

of section 3802 or former section 3731 or because of a violation

of section 1547(b)(1) or 3802 or former section 3731 or is 

suspended under section 1581 for an offense substantially similar 

to a violation of section 3802 or former section 3731 shall, upon 

a first conviction, be guilty of a summary offense and shall be 

sentenced to pay a fine of $1,000 and to undergo imprisonment 

for a period of not less than 90 days.

(ii) A second violation of this paragraph shall constitute a 

misdemeanor of the third degree, and upon conviction thereof

the person shall be sentenced to pay a fine of $2,500 and to 

undergo imprisonment for not less than six months.

(iii) A third or subsequent violation of this paragraph shall 

constitute a misdemeanor of the first degree, and upon 

conviction thereof the person shall be sentenced to pay a fine 

of $5,000 and to undergo imprisonment for not less than two 

years.

75 Pa.C.S. § 1543(b)(1.1)(i)-(iii) (footnoted omitted; emphasis added).

Here, Appellant’s focus on the word “violation” ignores the aboveemphasized language, “upon conviction thereof,” in each subpart of section 

1543(b)(1.1). Considering all the statutory language together, it is clear that 

section 1543(b)(1.1)(i), governing initial violations, requires a “first 

conviction” for one to be sentenced to 90 days’ imprisonment. 75 Pa.C.S. § 

1543(b)(1.1)(i). Hence, one cannot have a first violation under section 

1543(b) without being convicted pursuant to that paragraph. Similarly, a 

person must be convicted of a second violation to be subject to the increased

grading of a third-degree misdemeanor under section 1543(b)(1.1)(ii). 

Likewise, a person must be convicted of a third violation to be subject to the 

grading of a first-degree misdemeanor under section 1543(b)(1.1)(iii). In 

other words, the phrase “violation of this paragraph” ultimately requires the 
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person to be convicted of section 1543(b)(1.1) twice before triggering 

section 1543(b)(1.1)(iii). Because here, Appellant had two, previous 

convictions for violating section 1543(b)(1.1) when he was convicted and 

sentenced in the present case, section 1543(b)(1.1)(iii) applied and his 

sentence is not illegal.2

Judgment of sentence affirmed.

Judge McLaughlin joins this memorandum.

Judge Sullivan concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/11/2023

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2 We recognize that Appellant’s claim could be read as suggesting due process 

issues concerning whether he received adequate notice of the conduct

prohibited by section 1543(b)(1.1), as well as the concomitant penalties. See 

Commonwealth v. Barud, 681 A.2d 162, 165 (Pa. 1996) (“As generally 

stated, the void for vagueness doctrine requires that a penal statute define 

the criminal offense with sufficient definiteness that ordinary people can 

understand what conduct is prohibited and in a manner that does not 

encourage arbitrary and discriminatory enforcement. Due process 

requirements are satisfied if the statute provides reasonable standards by 

which a person may gauge their future conduct.”) (citations omitted). 

However, Appellant does not develop any due process argument; indeed, he 

specifically limits his cursory constitutional claim “to the imprisonment” 

portion of the statute, and frames his argument as a challenge to the legality 

of his sentence. Appellant’s Brief at 9. Thus, we do not address any due 

process issues.