[J-34-2014] 

IN THE SUPREME COURT OF PENNSYLVANIA 

MIDDLE DISTRICT 

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. 

COMMONWEALTH OF PENNSYLVANIA,

 Appellee 

 v. 

TERRY LEE TAYLOR, 

 Appellant 

:

:

:

:

:

:

:

:

:

:

:

:

:

No. 65 MAP 2013 

Appeal from the Order of the Superior 

Court, entered December 17, 2012, at No. 

317 MDA 2012, which affirmed the 

Judgment of Sentence of Franklin County 

Court of Common Pleas, Criminal 

Division, entered January 11, 2012, at No. 

28-CR-0001177-2011 

ARGUED: May 6, 2014 

OPINION 

MR. JUSTICE BAER DECIDED: November 20, 2014 

 

In this discretionary appeal, Terry Lee Taylor (Appellant) was sentenced for 

driving under the influence of alcohol or a controlled substance (DUI), without a “full 

assessment for alcohol and drug addiction,” which is required “prior to sentencing” by 

Section 3814(2) of the Vehicle Code, 75 Pa.C.S. § 3814(2).1 His sentence, therefore, 

 

1

 Section 3814(2) provides, in relevant part, as follows: 

If a defendant is convicted or pleads guilty or no contest to a violation of 

section 3802 (relating to driving under influence of alcohol or controlled 

substance), the following apply prior to sentencing: 

* * * 

(Acontinued) 
[J-34-2014] - 2 

was imposed without consideration of the drug or alcohol treatment recommendations 

that an Assessment may have provided. See 75 Pa.C.S. § 3814(4) (requiring drug and 

alcohol assessment to advance treatment recommendations); id. § 3804(b)(2)(iv) 

(providing that as part of a defendant’s sentence, he must “comply with all drug and 

alcohol treatment requirements imposed under sections 3814 and 3815.”); id. § 3815(c) 

(requiring treatment to “conform to assessment recommendations made under section 

3814.”). Appellant, therefore, argues that he is entitled to have his sentence vacated, to 

be assessed in compliance with Section 3814(2), and to be resentenced after 

consideration of any treatment recommendations proffered therein. The Superior Court 

rejected this argument, and upheld his judgment of sentence. Because we agree with 

Appellant that the presentence requirement of Section 3814(2) is a mandatory 

component of the sentencing scheme for DUI offenders, and that a sentence imposed 

contrary to these requirements cannot stand, we reverse and remand for resentencing 

 

(continuedA) 

(2) The defendant shall be subject to a full assessment for alcohol and 

drug addiction if any of the following subparagraphs apply: 

(i) The defendant, within ten years prior to the offense for which 

sentence is being imposed, has been sentenced for an offense 

under: 

(A) section 3802. . . . 

75 Pa.C.S. § 3814(2)(i)(A). Section 3802 provides, in relevant part, as follows: 

An individual may not drive, operate or be in actual physical control of the 

movement of a vehicle after imbibing a sufficient amount of alcohol such 

that the alcohol concentration in the individual's blood or breath is at least 

0.10% but less than 0.16% within two hours after the individual has driven, 

operated or been in actual physical control of the movement of the vehicle. 

75 Pa.C.S. § 3802(b). 
[J-34-2014] - 3 

after compliance with Sections 3804, 3814, and 3815 of the Vehicle Code, as explained 

below. 

On October 24, 2011, Appellant pled guilty to DUI for violating Section 3802(b) of 

the Vehicle Code. 75 Pa.C.S. § 3802(b), supra, n.1. This was Appellant’s second DUI 

offense. Thus, the standard range for Appellant’s minimum sentence was thirty days to 

three months of incarceration, and the statutory maximum was six months. See 75 

Pa.C.S. § 3804(b). 

Because Appellant was convicted of a violation of Section 3802, he was subject 

to the provisions of Section 3814, entitled “[d]rug and alcohol assessments,” which 

provides that “[i]f a defendant is convicted or pleads guilty or no contest to a violation of 

section 3802 (relating to driving under influence of alcohol or controlled substance), the 

following apply prior to sentencing. . . .” Id. at § 3814, supra n.1. First, Section 3814(1) 

requires that every DUI offender “shall” be subject to an initial evaluation as follows: 

(1) The defendant shall be evaluated under section 3816(a) (relating to 

requirements for driving under influence offenders) and any other 

additional evaluation techniques deemed appropriate by the court to 

determine the extent of the defendant's involvement with alcohol or other 

drug and to assist the court in determining what type of sentence would 

benefit the defendant and the public. 

75 Pa.C.S. § 3814(1) (hereafter, initial evaluation). Section 3816(a), in turn, requires 

the evaluation to utilize: 

. . . evaluation techniques deemed appropriate by the court to determine 

the extent of the person’s involvement with alcohol or controlled 

substances and to assist the court in determining what sentencing. . . 

would benefit the person or the public. 

Id. at 3816(a). 
[J-34-2014] - 4 

In addition, Section 3814(2), which is directly implicated in this case, requires that 

certain DUI offenders, such as Appellant, who, inter alia, have had a prior DUI 

conviction within the last ten years, “shall be subject to a full assessment for alcohol and 

drug addiction . . . .” Id. § 3814(2), supra n.1. The “full assessment for alcohol and drug 

addiction” (hereafter, Assessment) is to be conducted by the Department of Health or its 

designee, the county agency with responsibility for drug and alcohol treatment 

programs, or personnel licensed by the Department of Health to conduct drug and 

alcohol treatment programs. Id. § 3814(3). Section 3814(4) directs that “[t]he 

[Assessment] shall consider issues of public safety and shall include recommendations 

for all of the following: (i) Length of stay[;] (ii) Levels of care[;] [and] (iii) Follow-up care 

and monitoring.” Id. § 3814(4). 

If the offender is “determined to be in need of additional treatment pursuant to 

section 3814(2),” then the statute directs the sentencing court to impose “a minimum 

sentence as provided by law and a maximum sentence equal to the statutorily available 

maximum.” Id. § 3804(d).2 The statute further vests the sentencing court with “parole 

authority and supervision,” id. § 3815(a), and directs that offenders identified by the 

 

2

 Section 3804(d) provides as follows: 

If a person is sentenced pursuant to this chapter and, after the initial 

assessment required by section 3814(1), the person is determined to be in 

need of additional treatment pursuant to section 3814(2), the judge shall 

impose a minimum sentence as provided by law and a maximum 

sentence equal to the statutorily available maximum. A sentence to the 

statutorily available maximum imposed pursuant to this subsection may, in 

the discretion of the sentencing court, be ordered to be served in a county 

prison, notwithstanding the provisions of 42 Pa.C.S. § 9762 (relating to 

sentencing proceeding; place of confinement). 

75 Pa.C.S. § 3804. 
[J-34-2014] - 5 

Assessment as being in need of drug and alcohol treatment are eligible for parole 

following the expiration of their minimum sentence. Id. § 3815(b)(1).3 These offenders 

 

3

 Section 3815 provides, in relevant part, as follows: 

(b) Parole.-- 

(1) An offender who is determined pursuant to section 3814 

(relating to drug and alcohol assessments) to be in need of drug 

and alcohol treatment shall be eligible for parole in accordance with 

the terms and conditions prescribed in this section following the 

expiration of the offender's mandatory minimum term of 

imprisonment. 

(2) The following shall be conditions of parole: 

(i) If the offender is not determined under the procedures set 

forth in section 3814 to be addicted to alcohol or another 

substance, the offender must refrain from: 

(A) the use of illegal controlled substances; and 

(B) the abuse of prescription drugs, over-the-counter 

drugs or any other substances. 

(ii) If the offender is determined under the procedures set 

forth in section 3814 to be addicted to alcohol or another 

substance, the offender must do all of the following: 

(A) Refrain from: 

(I) the use of alcohol or illegal controlled 

substances; and 

(II) the abuse of prescription drugs, over-thecounter drugs or any other substances. 

(B) Participate in and cooperate with drug and alcohol 

addiction treatment under subsection (c). 

(c) Treatment.-- 

(1) Treatment must conform to assessment recommendations 

made under section 3814. 

(2) Treatment must be conducted by a drug and alcohol addiction 

treatment program licensed by the Department of Health. 

(Acontinued) 
[J-34-2014] - 6 

are subject to the sentencing court’s parole conditions, which include refraining from the 

use of alcohol or drugs and participating in and cooperating with the drug and alcohol 

treatment recommended in the Assessment. Id. § 3815(b)(2)(ii), (c). An offender who 

fails to comply with the treatment ordered by the sentencing court is subject to the 

revocation of parole. Id. § 3815(d)(2)(i).4

Appellant was scheduled for sentencing on November 23, 2011. He appeared 

for sentencing on that date and indicated to the court that due to neuropathy in his legs, 

which involved being fitted for leg braces, he would be unable to serve the thirty day 

minimum sentence of incarceration associated with his conviction,5 and requested 

instead to be given an intermediate sentence of home confinement with electronic 

monitoring.6 Rather than impose a sentence at that time, the sentencing court 

 

(continuedA) 

(3) The treatment program shall report periodically to the assigned 

parole officer on the offender's progress in the treatment programA 

75 Pa.C.S. § 3815. 

4

 Section 3815 also addresses the funding of Assessments, directing that the 

sentencing court “shall impose upon an offender . . . reasonable fees to cover the cost 

of . . . [a]n assessment of the offender . . . . [and] [d]rug or alcohol treatment provided in 

accordance with the assessment.” Id. § 3815(f)(1). If the sentencing court finds that the 

offender is unable to pay the full amount of these costs, then it “shall require the 

offender to pay as much of the fee as is consistent with the offender's ability to pay and 

shall direct the assigned parole officer to establish a reasonable payment schedule for 

the offender to pay as much of the remaining fees as is consistent with the offender's 

ability to pay.” Id. § 3815(f)(2). 

5

 Appellant stated at a subsequent sentencing hearing that he was unable to serve 

the minimum term of incarceration because of the therapy involved with the neuropathy. 

Notes of Testimony, 1/11/2012, at 2. 

6

 As we explained in Commonwealth v. Kyle, 874 A.2d 12, 24 (Pa. 2005): 

(Acontinued) 
[J-34-2014] - 7 

continued the matter in order to provide Appellant the opportunity to obtain 

documentation to substantiate his asserted medical condition. Additionally, the 

sentencing court would later state that on this date it brought up the need for an 

Assessment as required by Section 3814(2). Notes of Testimony, 1/11/2012, at 4.7 

On January 11, 2012, Appellant appeared for the newly scheduled sentencing 

hearing. He provided medical information to substantiate his asserted medical 

condition, and renewed his request that the court sentence him to home confinement 

with electronic monitoring for medical reasons.8 Additionally, Appellant argued that he 

was entitled to an Assessment prior to sentencing, that the court was obligated to order 

one of the entities designated in Section 3814(3) to conduct an Assessment, and that 

his sentence should reflect any treatment recommendations made therein. The court, 

however, stated that the burden was on Appellant to contact one of the responsible 

 

(continuedA) 

42 Pa.C.S. § 9763(c) authorizes a sentencing court to impose 

intermediate punishment as part of a sentence for DUI. Pursuant to that 

intermediate punishment, the court may attach any of a number of 

conditions upon the defendant as it deems necessary. . . . The 

Pennsylvania Code also sets forth the various levels of intermediate 

punishment. 204 Pa.Code § 303.12. 

7

 Although the court indicated that the subject of the Assessment was mentioned 

at the November 23, 2011 sentencing hearing, at oral argument before this Court, the 

parties conceded that in Franklin County there is no procedural mechanism in place for 

an offender to obtain an Assessment. Appellant therefore did not, at any time, receive 

such Assessment. 

8

 Although the sentencing transcripts reflect that Appellant provided the court with 

documentation regarding his medical condition, the Commonwealth asserts that 

Appellant did not. Appellant’s medical condition, however, is not germane to the current 

appeal. 
[J-34-2014] - 8 

entities to obtain an Assessment prior to sentencing, and suggested that having failed to 

do so, Appellant had waived his entitlement to a sentence that incorporated treatment. 

In determining Appellant’s sentence, the court reviewed a “DUI Sentence 

Recommendation Sheet” prepared by the Franklin County Adult Probation Office, which 

suggested the performance of an Assessment in accord with Section 3814(2). 

Notwithstanding the lack of an Assessment, the sentencing court sentenced Appellant 

to a term of incarceration and denied his request for intermediate punishment for two 

reasons: first, to the extent Appellant’s request was motivated by his need for medical 

treatment, the sentencing court was willing to allow medical release from jail for 

treatment;9 second, to the extent Appellant’s request was premised on his desire for 

drug and alcohol treatment, the trial court stated that an Assessment was a prerequisite 

for such treatment and faulted him for failing to obtain one. The court imposed a 

sentence of forty-five days to six months in the Franklin County jail, staying imposition of 

the sentence pending this appeal upon Appellant’s request. The sentencing order 

further directed Appellant to obtain an Assessment post-sentence.10

Appellant appealed to the Superior Court, raising two issues: whether the 

sentencing court imposed an illegal sentence in contravention of Section 3814(2) by 

sentencing him without first obtaining an Assessment; and whether the burden was on 

 

9

 See 42 Pa.C.S. § 9813 (providing that the trial court may make “the offender 

eligible to leave the jail during necessary and reasonable hours for the purpose of . . . 

securing medical treatment . . .”). 

10 In particular, under a section entitled “treatment requirements” in the sentencing 

order, the court directed Appellant to complete “Drug and Alcohol Treatment 75 

Pa.C.S.A. 3814(2) Full Drug & Alcohol Assessment” (emphasis in original). 
[J-34-2014] - 9 

Appellant to obtain an Assessment prior to sentencing, such that his failure to do so 

resulted in waiver of this presentence requirement. 

In its Rule 1925(a) opinion, Pa.R.A.P. 1925(a), the sentencing court noted that it 

“arguably committed” an error of law by failing to compel a presentence Assessment, 

recognizing a recent Superior Court decision, Commonwealth v. Borovichka, 18 A.3d 

1242 (Pa.Super. 2011), in which the court accepted the argument that a Section 

3814(2) Assessment is a mandatory presentence condition. 

In Borovichka, the defendant was sentenced for a tier three, second offense DUI 

to a minimum ninety day term of incarceration with a maximum sentence of one year, 

well below the statutory maximum of five years applicable to his offense, without having 

first undergone an Assessment. The Commonwealth appealed, arguing that an 

Assessment completed following sentencing11 indicated the defendant’s need for 

treatment, triggering the sentencing court’s obligation under Section 3804(d) to 

sentence him to the statutorily available maximum sentence of five years. The 

Commonwealth argued that Borovichka’s sentence was illegal because it was imposed 

prior to the completion of the drug and alcohol Assessment, contrary to Section 3814(2). 

The Superior Court agreed, holding that by requiring the Assessment to be 

conducted prior to sentencing, the legislature sought to provide the sentencing court 

with information necessary to address the extent of the offender’s involvement with 

drugs or alcohol, and impose a sentence for the benefit the offender and the public. 18 

A.3d at 1242. The Superior Court held that because the court had imposed a sentence 

 

11 It is unclear why the sentencing court directed an Assessment to be completed 

post-sentence, contrary to the language of Section 3814(2). 
[J-34-2014] - 10 

without first obtaining an Assessment, it lacked the requisite information to craft 

individualized punishment and rehabilitation as required by Sections 3814 and 3804. 

Thus, the court vacated the judgment of sentence, and remanded for resentencing. Id. 

Notwithstanding Borovichka and the sentencing court’s observation that it 

arguably committed an error of law by imposing a sentence without the benefit of an 

Assessment, the sentencing court nevertheless explained its view that sentence 

illegality is confined to circumstances not present here, such as where the sentence 

exceeds the lawful maximum range or the court lacks jurisdiction. See e.g., 

Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005) (finding the sentence was illegal 

because the mandatory sentence exceeded what the defendant could have received for 

the crime committed); Commonwealth v. Quinlan, 639 A.2d 1235 (Pa. Super. 1994) 

(holding that a probationary sentence was illegal where the court lacked jurisdiction in 

1990 to order probation retroactive to May 1988). The implication of the sentencing 

court’s view in this regard was that it did not believe Appellant’s appeal presented an 

issue concerning sentence legality, suggesting that it instead implicated the 

discretionary aspects of the sentence. See 42 Pa.C.S. § 9781 (providing that a 

defendant may appeal as of right the legality of the sentence, but has to petition for 

allowance of appeal of the discretionary aspects of a sentence to the appellate court 

with initial jurisdiction over such appeals). 

With regard to Appellant’s second issue on appeal, the sentencing court 

explained its view that the burden of obtaining the Assessment is on the offender. The 

court suggested that the basis for this conclusion was the cost of the Assessment and 

the source of payment, stating that the agencies directed in Section 3814(3) to provide 
[J-34-2014] - 11 

the Assessment are not court agencies, and Franklin County had not provided the 

resources to pay for Assessments. The court suggested that by not obtaining an 

Assessment independently, Appellant had waived any sentencing benefit that could 

have resulted therefrom. 

On appeal to the Superior Court, Appellant relied on Borovichka and the plain 

language of Section 3814(2) to argue that an Assessment was required prior to the 

imposition of sentence, and that a sentence imposed without it was an illegal sentence. 

Appellant further argued that the sentencing court committed an error of law by 

requiring him independently to obtain an Assessment, and in suggesting that by failing 

to do so Appellant had waived any sentencing or treatment benefit that may have 

resulted from it. 

The Superior Court affirmed in an unpublished memorandum, holding that a 

sentence imposed without having first received a presentence Assessment was not an 

illegal sentence. The court reasoned that because Section 3804(d) requires imposition 

of the statutorily available maximum sentence where an individual has been found in 

need of drug or alcohol treatment pursuant to an Assessment, and the sentencing court 

sentenced Appellant to the statutory maximum of six months of incarceration, the 

results of an Assessment would have had no impact on Appellant’s maximum sentence. 

Accordingly, the Superior Court surmised that “there is no contention that [Appellant] 

received an illegal sentence, other than the complaint that [he] was sentenced prior to 

the completion of a full drug and alcohol assessment pursuant to Section 3814.” The 

Superior Court did not address Appellant’s position that it was not his burden to contact 

the responsible agencies to obtain the Assessment or that waiver concepts did not 
[J-34-2014] - 12 

apply in this sentencing context; nor did the court confront the mandatory language of 

Section 3814(2) requiring a presentence Assessment or the Assessment’s purpose in 

allowing for parole with conditions after completion of a defendant’s mandatory 

minimum sentence. 

We granted allowance of appeal to address three issues: (1) “whether a 

sentencing court has the authority to sentence an individual for a violation of 75 

[Pa.C.S.] § 3802 (DUI) prior to the completion of a full drug and alcohol assessment 

under the requirements of [75 Pa.C.S. § 3814(2)];” (2) whether “the language of 75 

[Pa.C.S.] § 3814 [is] a mandatory sentencing provision requiring a sentencing court to 

comply with its requirements prior to the imposition of a sentence for a DUI violation, or 

[whether] § 3814 [is] an optional provision that can be disregarded at the court’s 

discretion;” and (3) whether “a [d]efendant [has] the ability through conduct, or 

otherwise, to waive the requirements of 75 [Pa.C.S.] § 3814, and permit a sentencing 

court to enter a sentence even though a full drug and alcohol assessment has not been 

completed prior to sentencing.” Commonwealth v. Taylor, 74 A.3d 122 (Pa. 2013). 

When addressing questions of law such as the interpretation of a statute, our scope of 

review is plenary, C.B. ex rel. R.R.M. v. Com., Dept. of Public Welfare, 786 A.2d 176, 

180–81 (Pa. 2001), and our standard of review is de novo, South Newton Twp. Electors 

v. South Newton Twp. Sup'r, Bouch, 838 A.2d 643, 645 (Pa. 2003). 

Addressing the first two issues together, Appellant argues that the Section 

3814(2) Assessment is mandatory and must be completed prior to sentencing. As 

support, Appellant relies on a plain reading of Sections 3814, 3804, and 3815, and the 

Superior Court decision in Borovichka. 
[J-34-2014] - 13 

Appellant argues that Chapter 38 of Title 75 repeatedly indicates that the 

Assessment is a mandatory presentence requirement, relying on several specific 

provisions. First, Appellant notes that the prefatory language of Section 3814 plainly 

indicates that the requirements of that section apply “prior to sentencing.” 75 Pa.C.S. § 

3814. Next, Appellant relies on the General Assembly’s choice of the imperative “shall” 

in Section 3814(2)(i)(A), which directs that if the offender has a prior DUI offense within 

the last ten years, “the defendant shall be subject to a full assessment for alcohol and 

drug addiction. . .” Id. § 3814(2)(i)(A).12 Third, Appellant observes that Section 

3804(b)(2)(iv) directs that a DUI offender “shall be sentenced” to “comply with all drug 

and alcohol treatment requirements imposed under sections 3814 and 3815,” which he 

argues clearly indicates that the Assessment on which such treatment requirements are 

premised must occur presentence.13

 

12 As noted supra, n. 1, Section 3814(2)(i)(A) provides as follows: 

If a defendant is convicted or pleads guilty or no contest to a violation of 

section 3802 (relating to driving under influence of alcohol or controlled 

substance), the following apply prior to sentencing: 

* * * 

(2) The defendant shall be subject to a full assessment for alcohol and 

drug addiction if any of the following subparagraphs apply: 

(i) The defendant, within ten years prior to the offense for which 

sentence is being imposed, has been sentenced for an offense 

under: 

(A) section 3802. . . . 

75 Pa.C.S. § 3814(2)(i)(A). 

13 Section 3804(b)(2) and (d) provide as follows: 

(b) High rate of blood alcohol; minors; commercial vehicles and school 

buses and school vehicles; accidents.--Except as set forth in subsection 

(c), an individual who violates section 3802(a)(1) where there was an 

(Acontinued) 
[J-34-2014] - 14 

Fourth, Appellant relies on Section 3804(d), supra n. 13, which directs that if an 

offender “is determined to be in need of additional treatment pursuant to Section 

3814(2) [relating to the full drug and alcohol Assessment], the judge shall impose a 

minimum sentence as provided by law and a maximum sentence equal to the statutorily 

available maximum. . .” Id. § 3804(d). He argues that this section also clearly indicates 

the legislative intent that the Assessment occur prior to sentencing to enable the 

sentencing court to consider its results in imposing a sentence. Finally, Appellant relies 

on the parole supervision requirements of Section 3815(b), supra n.3, which provide 

 

(continuedA) 

accident resulting in bodily injury, serious bodily injury or death of any 

person or damage to a vehicle or other property or who violates section 

3802(b), (e) or (f) shall be sentenced as follows: 

* * * 

(2) For a second offense, to: 

(i) undergo imprisonment of not less than 30 days; 

(ii) pay a fine of not less than $750 nor more than $5,000; 

(iii) attend an alcohol highway safety school approved by the 

department; and 

(iv) comply with all drug and alcohol treatment requirements 

imposed under sections 3814 and 3815. 

* * * 

(d) Extended supervision of court.--If a person is sentenced pursuant to 

this chapter and, after the initial assessment required by section 3814(1), 

the person is determined to be in need of additional treatment pursuant to 

section 3814(2), the judge shall impose a minimum sentence as provided 

by law and a maximum sentence equal to the statutorily available 

maximum. A sentence to the statutorily available maximum imposed 

pursuant to this subsection may, in the discretion of the sentencing court, 

be ordered to be served in a county prison, notwithstanding the provisions 

of 42 Pa.C.S. § 9762 (relating to sentencing proceeding; place of 

confinement). 

75 Pa.C.S. § 3804(b)(2), (d). 
[J-34-2014] - 15 

that an offender who is determined by the Assessment to be in need of additional 

treatment shall be eligible for parole in accord with the terms and conditions of Section 

3815, and further lists specific parole conditions applicable to offenders who are and are 

not, according to their Assessment, in need of treatment; further indicating that the 

sentencing court is required to review the recommendations of the Assessment before 

sentencing and parole, and to impose a sentence of parole that accommodates them. 

Appellant argues that his construction of these provisions of Chapter 38 is 

consistent with the policy behind them. Specifically, according to Appellant, Section 

3814 is a remedial statute through which the legislature sought to combine punishment 

with treatment options for repeat DUI offenders and to enable the sentencing courts to 

consider an offender’s treatment when imposing a sentence. See 75 Pa.C.S. § 3814(1) 

(with regard to the initial evaluation, providing that a DUI offender “shall” be subject to 

“evaluation techniques deemed appropriate by the court to determine the extent of the 

defendant’s involvement with alcohol or other drug and to assist the court in determining 

what type of sentence would benefit the defendant and the public.”); id. § 3814(4) 

(requiring the Assessment mandated by Section 3814(2) to include recommendations 

concerning length of stay, levels of care, and follow-up care). 

Appellant argues that a sentencing court could not accomplish the remedial 

legislative purposes of rehabilitation for the benefit of offenders and the public if the 

Assessment and recommendation are not completed and considered prior to 

sentencing. According to Appellant, utilizing the Assessment to inform the sentencing 

court of an offender’s drug or alcohol treatment needs after sentencing, as the 

sentencing court in this case contemplated, would lead to an absurd result because an 
[J-34-2014] - 16 

offender would already have been sentenced without consideration of his treatment 

needs. As further support, Appellant relies on Borovichka and the Superior Court’s 

acceptance of the argument, in the context of that case, that a Section 3814(2) 

Assessment is a mandatory presentence condition. 

Turning to the final issue on appeal, Appellant argues that a defendant has no 

ability, through conduct or otherwise, to waive the requirements of Section 3814. 

Appellant characterizes the Section 3814(2) Assessment not as a right that may be 

waived by a criminal defendant, but as a mandatory component of the sentencing 

scheme. He asserts that he can no more waive the Assessment and drug and alcohol 

treatment requirements imposed under Sections 3814 and 3815 than he can waive the 

mandatory minimum fines and incarceration terms required by Section 3804. See 75 

Pa.C.S. § 3804, supra, n.13. 

Responding to the first two issues together, the Commonwealth argues that, as 

the Superior Court reasoned, “there is no contention that Appellant received an illegal 

sentence other than the fact that an [Assessment] was not completed pursuant to 75 

Pa.C.S.A. § 3814.” Commonwealth’s Brief at 4. The Commonwealth asserts that 

although Section 3804(d) requires the sentencing court to enter a maximum sentence 

equal to the statutorily available maximum when a person is assessed and found to be 

in need of additional drug and alcohol treatment pursuant to Section 3814, there is no 

requirement that a lesser sentence be imposed if a person is assessed and found not to 

be in need of additional treatment. Therefore, according to the Commonwealth, 
[J-34-2014] - 17 

Appellant is not entitled to a lesser sentence, and the results of an Assessment would 

not render his sentence illegal.14 

Turning to Borovichka, the Commonwealth distinguishes that case factually as 

follows: Borovichka received an illegal sentence because the results of a post-sentence 

Assessment indicated the defendant’s need for drug and alcohol treatment, thereby 

triggering the sentencing court’s obligation to impose the statutory maximum sentence 

of five years. The sentencing court, however, having sentenced the defendant prior to 

the completion of the Assessment, had not imposed the five-year statutory maximum, 

sentencing him instead to a maximum sentence of one year. According to the 

Commonwealth, Appellant is not in the same position as the defendant in Borovichka 

because the sentencing court here already imposed the statutory maximum. Therefore, 

according to the Commonwealth, if a hypothetical Assessment indicated that Appellant 

was not in need of drug and alcohol treatment, this would not entitle him to a lesser 

sentence; and if that Assessment indicated the need for such treatment, the six month 

statutory maximum sentence Appellant has already received would apply. 

Turning to the third issue, the Commonwealth argues that a defendant has the 

ability, through his conduct or otherwise, to waive the requirements of Section 3814, 

and to permit the trial court to impose sentence without the benefit of the Assessment. 

Under these facts, the Commonwealth argues that Appellant had nearly two months 

between the initial sentencing hearing on November 23, 2011, and the rescheduled 

 

14 In making this argument, it appears that the Commonwealth, like the sentencing 

court, takes a narrow view of sentence legality, premised on the proposition that the 

legality of a sentence is not implicated if the sentence is within the standard range. 

See, e.g., Shiffler, 879 A.2d at 189 (providing that if the appellant's sentence exceeded 

the lawful maximum, it would be deemed illegal). 
[J-34-2014] - 18 

sentencing hearing on January 11, 2012, within which to have the Assessment 

completed. Having failed to do so, according to the Commonwealth, Appellant forfeited 

his right to the Assessment and to have the sentencing court consider his treatment 

needs. 

Before analyzing the relevant statutory sections, we turn to the Commonwealth’s 

position that Appellant’s issues on appeal do not implicate the legality of his sentence 

because it was within the statutory range. It appears to be the Commonwealth’s 

position that absent the imposition of a sentence that exceeds the statutory maximum, 

Appellant cannot forward a preserved claim implicating the legality of his sentence. 

The question of whether a claim implicates the legality of a sentence, as opposed 

to the discretionary aspects of a sentence, is relevant for purposes of Section 9781 of 

the Sentencing Code, 42 Pa.C.S. § 9781.15 According to Section 9781, if the issue 

implicates the legality of the sentence, the defendant may appeal as of right to the 

 

15 Section 9781 provides, in relevant part, as follows:

a) Right to appeal.--The defendant or the Commonwealth may appeal as 

of right the legality of the sentence. 

(b) Allowance of appeal.--The defendant or the Commonwealth may file a 

petition for allowance of appeal of the discretionary aspects of a sentence 

for a felony or a misdemeanor to the appellate court that has initial 

jurisdiction for such appeals. Allowance of appeal may be granted at the 

discretion of the appellate court where it appears that there is a substantial 

question that the sentence imposed is not appropriate under this chapter. 

* * * 

(f) Limitation on additional appellate review.--No appeal of the 

discretionary aspects of the sentence shall be permitted beyond the 

appellate court that has initial jurisdiction for such appeals. 

42 Pa.C.S. § 9781. 
[J-34-2014] - 19 

Superior Court, and this Court may consider the issue on permissive appeal, see 42 

Pa.C.S. § 9781(a); if the issue concerns the discretionary aspects of the sentence, 

however, the litigant must petition the Superior Court for allowance of appeal, id. § 

9781(b); Pa.R.A.P. 2119(f), and “[n]o appeal . . . shall be permitted beyond the 

appellate court that has initial jurisdiction for such appeals.” Id. § 9781(f). Moreover, 

the legality/discretionary aspects of sentence dichotomy determines the parties’ issue 

preservation obligations. See, e.g., Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 

2007) (“if the sentence clearly implicates the legality of sentence, whether it was 

properly preserved below is of no moment, as a challenge to the legality of sentence 

cannot be waived.”). 

Whether a question implicates the legality of a sentence presents a pure 

question of law. Commonwealth v. Eisenberg, 2014 WL 4079968 at *5 (Pa. Aug. 19. 

2014); Commonwealth v. Foster, 17 A.3d 332, 340 n.13 (Pa. 2011) (Opinion 

Announcing Judgment of Court by Baer, J.) (citing Commonwealth v. Samuel, 961 A.2d 

57 (Pa. 2008)). Recent cases by this Court have resulted in numerous expressions of 

sentence illegality. See, e.g., Foster (resulting in four separate opinions explaining 

preferred approaches to sentence illegality for purposes of issue preservation); see also 

Commonwealth v. Spruill, 80 A.3d 453, 460-61 (Pa. 2013) (noting the complexities 

involved in claims implicating sentence illegality, which are most often offered to 

overcome a failure to preserve a sentencing issue before the trial court or to secure 

direct review before the Superior Court without having to petition separately for 

allowance of review in accord with Section 9781(b)). Although the classic example of 

sentence illegality is where the sentence imposed exceeds the statutory maximum, see, 
[J-34-2014] - 20 

e.g., Shiffler, 879 A.2d at 189, there are numerous other instances as well. Spruill, 80 

A.3d at 461 (citing Foster, 17 A.3d at 342-344 (collecting cases)); see also Eisenberg, 

2014 WL 4079968 *5. 

We are not confronted in this case by the divisive circumstance of sentence 

illegality often asserted to overcome a failure to preserve an issue below. Appellant’s 

claim was properly preserved and the Commonwealth does not argue otherwise. 

However, we must still determine whether Appellant’s issues implicate the legality of his 

sentence, as opposed to the discretionary aspects of his sentence, because of the 

dichotomy of Section 9781, as discussed below. See Eisenberg, 2014 WL 4079968 *5. 

In this respect, the basis of Appellant’s challenge is that the sentencing court had 

no discretion to impose a sentence without the legislatively required Assessment 

contained within Section 3814(2), thereby implicating the legality of his sentence. See 

In re M.W., 725 A.2d 729 (Pa. 1999) (holding that the challenge by a juvenile, who had 

been adjudicated delinquent pursuant to a plea agreement, to the juvenile court's 

authority to impose a restitution order presented an issue that centered “upon the 

juvenile court's statutory authority to order restitution; thus, it implicates the legality of 

the dispositional order”). 

The Commonwealth does not respond by arguing that Appellant’s claims involve 

the discretionary aspects of sentencing; rather, it maintains that because the sentence 

is within the statutory range, it is not illegal. Respectfully, this distorts the issue. 

Although Appellant’s sentence may not be an illegal sentence because it is within the 

statutory range, his issues on appeal may nevertheless implicate the legality of his 

sentence and, therefore, be reviewed by this Court pursuant to Section 9781(a), 
[J-34-2014] - 21 

because the General Assembly required a presentence Assessment that did not occur 

herein. Simply put, the concept of “legality of sentence” encompasses more than 

whether a sentence is illegal because it exceeds the statutory maximum. Here, where 

the General Assembly established a mandatory sequential sentencing scheme that was 

not followed, we conclude that Appellant’s challenge implicates the legality of his 

sentence, notwithstanding that the sentence fell within the statutory range. 

The issues for which we granted allowance of appeal involve the interpretation of 

several provisions of Chapter 38 of Title 75, specifically, Sections 3814-15 and 3804. 

As in all cases interpreting a statute, we are guided by the provisions of the Statutory 

Construction Act, 1 Pa.C.S. § 1901 et seq. Pursuant to this Act, the object of all 

statutory construction is to ascertain and effectuate legislative intent. See 1 Pa.C.S. § 

1921(a) (“The object of all interpretation and construction of statutes is to ascertain and 

effectuate the intention of the General Assembly”); Sternlicht v. Sternlicht, 876 A.2d 

904, 909 (Pa. 2005). The best indication of this intent is the plain language of the 

statute. Sternlicht, 876 A.2d at 909; Commonwealth v. Gilmour Manufacturing Co., 822 

A.2d 676, 679 (Pa. 2003). Further, in analyzing the statutory language, “[w]ords and 

phrases shall be construed according to rules of grammar and according to their 

common and approved usage. . . .” 1 Pa.C.S. § 1903. “When the words of a statute are 

clear and free from all ambiguity, the letter of it is not to be disregarded under the 

pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). 

Applying the rules of statutory construction to the several provisions of Chapter 

38, we conclude that Appellant is correct on the first two issues because the plain 

language of Section 3814(2) indicates that an Assessment is a mandatory presentence 
[J-34-2014] - 22 

requirement. Section 3814 and other provisions pertaining to drug and alcohol 

assessments and treatment were enacted in 2003 as part of significant changes to 

Pennsylvania’s drunk-driving laws, which included lowering the legal blood-alcohol level 

for DUI and focusing on drug and alcohol evaluation and treatment. See, e.g., 

Pennsylvania Governor’s Message, 9/30/2003 (available in the statutory legislative 

history, 75 Pa.C.S. § 3814). For every DUI offender who is convicted of a violation of 

Section 3802 (“Driving under the influence of alcohol or controlled substance”), the 

provisions of Section 3814 “apply prior to sentencing.” 75 Pa.C.S. § 3814.16 

Relevant to this case, Section 3814(2) directs that the offender “shall be subject 

to a full assessment for alcohol and drug addiction” if any of several subsections apply, 

including where the offender has a prior DUI conviction within the last ten years.17 By 

 

16 Consistent with the legislative scheme to focus on drug and alcohol evaluation 

and treatment, Section 3814(1) directs that every DUI offender be subject to any 

evaluation techniques the trial court deems appropriate “to determine the extent of the 

defendant's involvement with alcohol or other drug and to assist the court in determining 

what type of sentence would benefit the defendant and the public.” 75 Pa.C.S. § 

3814(1). 

17 Specifically, the full Assessment under Section 3814(2) applies under the 

following circumstances: 

(i) The defendant, within ten years prior to the offense for which sentence 

is being imposed, has been sentenced for an offense under: 

(A) section 3802; 

(B) former section 3731; or 

(C) an equivalent offense in another jurisdiction. 

(ii) Either: 

(A) the evaluation under paragraph (1) indicates there is a need for 

counseling or treatment; or 

(B) the defendant's blood alcohol content at the time of the offense 

was at least .16%. 

(Acontinued) 
[J-34-2014] - 23 

requiring the full Assessment under certain, specified circumstances “prior to 

sentencing,” Section 3814(2) plainly and unambiguously requires its completion prior to 

the court’s imposition of the sentence, and demonstrates the legislative intent that the 

sentencing court utilizes the Assessment as a sentencing tool in creating a sentence for 

the benefit of the offender and the public. 

Further, by phrasing the requirement in mandatory language, the General 

Assembly left no doubt that the Assessment is a mandatory part of the sentencing 

scheme that cannot be dispensed with at the sentencing court’s discretion. 75 Pa.C.S. 

§ 3814(2) (“The defendant shall be subject to a full assessment for alcohol and drug 

addiction. . . .”) (emphasis added). 

 This conclusion is supported by the mandatory requirement in Section 3814(4) 

that the full drug and alcohol Assessment required by Section 3814(2) “shall consider 

issues of public safety and shall include recommendations for” length of stay, levels of 

care, and follow-up care and monitoring. 75 Pa.C.S. § 3814(4). By requiring the 

presentence Assessment to include these recommendations, the General Assembly 

intended that the sentencing court consider the offender’s treatment needs in creating a 

sentence for the benefit of the offender and the public. Id.; see also § 3815(c) 

(providing that offenders whom the Assessment indicates are addicted to drugs or 

alcohol must participate in drug and alcohol treatment, which, in turn, “must conform to 

assessment recommendations made under section 3814”). 

 

(continuedA) 

75 Pa.C.S. § 3814(2). Appellant herein was subject to the Assessment by virtue of his 

prior conviction, within ten years, for an offense under Section 3802. 
[J-34-2014] - 24 

 The General Assembly’s intent in regard to the mandatory, presentence 

requirement of Section 3814(2) is reflected elsewhere in Chapter 38. In particular, by 

requiring every person convicted of DUI to be subject to the initial evaluation of Section 

3814(1) (“[t]he defendant shall be evaluated” under Section 3816(a), which in turn 

requires a determination of the offender’s involvement with drugs or alcohol), and 

providing that the purpose is to assist the sentencing court “in determining what type of 

sentence would benefit the defendant and the public,” id., the General Assembly has 

indicated that the initial evaluation is also mandatory and must be completed prior to 

sentencing. 

Turning to Section 3804, which establishes penalties for DUI, we agree with 

Appellant that this section reflects a remedial sentencing scheme that is focused on 

punishment as well as obtaining needed drug and alcohol treatment for offenders. For 

each offense, at each of three levels of impairment, Section 3804 directs that the 

offender “shall be sentenced” to a term of imprisonment or probation, a fine, and to 

comply with “all drug and alcohol treatment requirements imposed under sections 3814 

(relating to drug and alcohol assessments) and 3815 (relating to mandatory 

sentencing).” 75 Pa.C.S. § 3804(a)(1)(iv). See also id. § 3804(a)(2)(iv); § 

3804(a)(3)(iii); § 3804(b)(1)(iv); § 3804(b)(2)(iv); § 3804(b)(3)(iii); § 3804(b)(4)(iii); § 

3804(c)(1)(iv); § 3804(c)(2)(iv); § 3804(c)(3)(iii). An offender cannot be sentenced to 

comply with the treatment identified in the Assessment if the Assessment is not 

completed prior to sentencing. 

Additionally, Section 3804(d) provides that the sentencing court is to utilize the 

results of the Assessment in imposing “a minimum sentence as provided by law and a 
[J-34-2014] - 25 

maximum sentence equal to the statutorily available maximum.” 75 Pa.C.S. § 3804, 

n.3, supra. The sentencing court would be without the necessary information to impose 

such a sentence, and to require necessary treatment, without the benefit of a 

presentence Assessment. 

Finally, according to Section 3815, which vests the sentencing court with parole 

authority over DUI offenders, an offender who is determined pursuant to Section 

3814(2) “to be in need of drug and alcohol treatment shall be eligible for parole” in 

accord with the terms of Section 3815 following the expiration of the minimum sentence. 

Section 3815(2) imposes separate conditions on offenders who are not determined by 

the procedure of Section 3814 to be addicted to alcohol or another substance, and 

another set of conditions for those who are so determined. For offenders in the latter 

category, any drug and alcohol treatment that is ordered by the sentencing court must 

conform to the recommendations set forth in the full Assessment. Without the 

presentence Assessment the sentencing court will not know of the offender’s treatment 

needs, if any, and would be unable to comply with Section 3815. 

The Commonwealth takes a narrow view of the Vehicle Code and the interaction 

between the full Assessment required by Section 3814(2) and sentencing. Relying on 

Section 3804(d), the Commonwealth argues that if the sentencing court has imposed 

the statutory maximum sentence, the sentence is legal, and the lack of the mandatory, 

presentence Assessment is irrelevant. Section 3804’s requirement that the sentencing 

court impose a sentence equal to the statutory maximum, however, flows directly from 

that court’s consideration of the Assessment and the offender’s need or lack thereof for 

drug or alcohol treatment. 75 Pa.C.S. § 3804(d) (providing that where an offender is 
[J-34-2014] - 26 

determined to be in need of additional treatment pursuant to the Section 3814(2) 

Assessment, then the sentencing court is required to impose the statutory maximum). 

The purpose of imposing the statutorily available maximum sentence against such 

offenders is to extend the sentencing court’s parole authority pursuant to Section 3815 

to require the offender to complete needed treatment. Id. § 3815(b)(2)(ii)(B) (directing 

the sentencing court to require compliance with the treatment needs revealed by an 

Assessment as a parole condition for offenders addicted to drugs or alcohol); § 3815(c) 

(providing that treatment imposed as a parole condition “must conform to assessment 

recommendations made under section 3814.”). Thus, consideration of an offender’s 

need for treatment is a pre-requisite in the mandatory sentencing scheme of Section 

3804(d) to the requirement that he be subject to the statutory maximum sentence. We 

therefore disagree with the Commonwealth that the imposition of a sentence within the 

standard range but without the required Assessment complies with the sentencing 

scheme articulated in Sections 3814, 3815, and 3804. 

 Although this Court has not previously addressed drug and alcohol assessments 

in relation to sentencing, the Superior Court has. As discussed above, the Borovichka 

court agreed with the argument presented therein by the Commonwealth as appellant 

that the sentence could not stand where it was imposed prior to the presentence drug 

and alcohol Assessment, because Section 3814 “clearly mandates that drug and 

alcohol assessments occur before sentencing. . .” 18 A.3d at 1255. The Superior Court 

recognized that “by failing to order the evaluation to take place before sentencing, the 

court was without the information necessary to craft a sentence to meet Borovichka’s 
[J-34-2014] - 27 

individual needs,” and therefore vacated the judgment of sentence, remanding for 

resentencing in accord with Sections 3814 and 3804. 

Accordingly, we hold 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. This section requires, in certain circumstances including 

those presented herein (where Appellant had a prior DUI conviction within ten years), a 

full drug and alcohol assessment, to be completed prior to sentencing. For the benefit 

of the offender and the public, the legislature set forth a specific and precise sentencing 

scheme that requires, in Sections 3804 and 3815, that the treatment recommendations 

developed through the Assessment be implemented as part of the offender’s sentence. 

A sentence imposed without the requisite presentence Assessment does not comply 

with the Vehicle Code’s mandatory sentencing scheme for DUI offenders. 

Turning to the final issue before us, we address whether an offender has the 

ability to waive, by his conduct or otherwise, the full Assessment required by Section 

3814 and to be sentenced without it. In this respect, Franklin County has not previously 

applied the requirements of Section 3814. Accordingly, at the time of Appellant’s initial 

sentencing hearing and the rescheduled hearing, there was no designated agency or 

personnel pursuant to Section 3814(3) providing presentence Assessments in Franklin 

County, nor was there a mechanism in place for an offender to obtain an independent 

Assessment to present to the court before being sentenced. Additionally, the 

sentencing court suggested that the reason Appellant did not obtain the Assessment 

was because there was no funding available for it. Under these circumstances, 

therefore, as conceded by the parties, supra n.7, Appellant herein had no ability to 
[J-34-2014] - 28 

obtain an Assessment before being sentenced. Having no ability to obtain the 

Assessment, he cannot be faulted under these facts for not obtaining one.18 

Therefore, we are not faced with a question of Appellant’s non-compliance with 

presentence requirements. Rather, we are faced with a question of the county’s noncompliance; a county that apparently did not implement Section 3814(2) and sentenced 

Appellant without providing him the opportunity to obtain an Assessment. Under these 

facts, we hold that Appellant did not waive the presentence Assessment requirement of 

Section 3814(2), through his conduct or otherwise.19

Accordingly, we reverse the order of the Superior Court, vacate Appellant’s 

sentence, and remand for resentencing in accord with Sections 3814, 3815, and 3804. 

Former Justice McCaffery did not participate in the decision of this case. 

Mr. Chief Justice Castille, Mr. Justice Saylor and Madame Justice Todd join the 

opinion. 

Mr. Justice Eakin files a dissenting opinion in which Mr. Justice Stevens joins. 

 

18 As we have explained, the Assessment required by Section 3814(2) is not 

discretionary; it is a mandatory component of the DUI sentencing scheme enacted by 

the legislature. It is incumbent on each county to ensure the availability of Assessments 

and to otherwise comply with the Vehicle Code. 

19 Because Appellant’s waiver, or noncompliance, is not before us on the facts 

presented, we leave for another day the consequence of a defendant’s noncompliance 

with a court-ordered Assessment.