J. A29001/16

 2016 PA Super 276

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

APPELLANT : PENNSYLVANIA

:

v. :

:

ALEXIS POPIELARCHECK, :

:

Appellant :

: No. 1788 WDA 2015

Appeal from the Order October 9, 2015

In the Court of Common Pleas of Greene County 

Criminal Division at No(s): CP-30-CR-0000079-2015

BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

OPINION BY DUBOW, J.: FILED DECEMBER 06, 2016

The Commonwealth appeals from the October 9, 2015 Order denying 

the Commonwealth’s Motion for Modification of Sentence and amending the 

September 2, 2015 Judgment of Sentence.1 After careful review, we affirm 

and hold that where a sentencing court sentences a DUI defendant to 

County Intermediate Punishment (“CIP”) pursuant to 42 Pa.C.S. § 9763, the 

sentencing court is not required to impose a mandatory maximum sentence 

pursuant to 75 Pa.C.S. § 3804(d).

The relevant factual and procedural history of this case is as follows. 

On June 15, 2015, Alexis Popielarcheck (“Appellee”) pled guilty to two 

counts of Driving Under the Influence (DUI) (Second Offense - Ten Years); 

 

1 The original Judgment of Sentence was amended to include the imposition 

of electronic surveillance during Appellee’s house arrest, and to increase the 

fine imposed from $1,000 to $1,500. 
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thirteen counts of Disregard Traffic Lane; Reckless Driving; and Restraint 

Systems as the result of an August 28, 2014 incident in which she was under 

the influence of various controlled substances.2 The court ordered the 

preparation of a pre-sentence investigation and modified Appellee’s bail to 

require her to report to Greenbriar Treatment Center for inpatient drug and 

alcohol therapy and to complete all recommended treatment.

The parties do not dispute the following. The instant offense was 

Appellee’s second DUI offense in 10 years, was graded as a misdemeanor of 

the first degree, and was punishable by a maximum sentence of five years. 

Appellee was a qualified offender required to undergo “a full assessment for 

alcohol and drug addiction” pursuant to 75 Pa.C.S. § 3814. Appellee did 

undergo such an assessment, which found that she was “in need of 

additional treatment.” If the trial court had not sentenced Appellee to CIP, a 

mandatory five-year maximum sentence would apply, as discussed infra. 

Moreover, the parties do not dispute that Appellee is eligible for a sentence 

of CIP.

At the September 1, 2015 Sentencing Hearing, the court sentenced 

Appellee to a total term of two years of CIP with 120 days to be served as 

house arrest, with 21 days' credit for time at Greenbriar, and assessed a fine 

of $1000 for the offense of DUI. The district attorney inquired about the 

 

2 75 Pa.C.S. § 3802 (d)(1)(i) and (2); 75 Pa.C.S. § 3309; 75 Pa.C.S. § 

3736; and 75 Pa. C.S. § 4581 (a)(2)(ii), respectively. 
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total length of supervision due to statutory requirements, arguing 

unsuccessfully that the court was required to sentence Appellee to the 

statutory maximum range of her sentence, notwithstanding the court’s 

discretion to sentence Appellant to CIP. 

On September 11, 2015, the Commonwealth filed post-sentence 

motions asserting that the sentencing court (i) erred by not imposing the 

statutorily mandated fine; (ii) erred by not mandating electronic monitoring 

as part of Appellee’s sentence of house arrest; (iii) erred by not imposing a 

maximum term of five years; and (iv) abused its discretion in sentencing 

Appellee to less than five years of supervision in light of the various factors 

to be considered at sentencing. 

By order entered October 9, 2015, the court amended its Sentencing 

Order to reflect the correct fine and to include “[h]ouse arrest with electronic 

surveillance,” adding that “[o]therwise, the sentence is legal and a proper 

exercise of judicial discretion.” 

The Commonwealth filed a timely appeal on November 6, 2015. Both 

the trial court and the Commonwealth complied with Pa.R.A.P. 1925. 

On appeal, the Commonwealth raises the following two issues:

I. Did the lower court err in disregarding the statutory mandate 

requiring the imposition of a maximum sentence equal to the 

statutorily available maximum for an offender deemed at an 

initial assessment to be in need of further treatment?

Ii. Did the lower court abuse its discretion in failing to impose a 

sentence with a long maximum term in order to achieve the 

goals articulated by the [S]entencing [C]ode of assuring the 
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safety of the public while providing for the rehabilitative needs of 

the offender?

Commonwealth’s Brief at 9.

Legality of Appellee’s Sentence

In its first issue, the Commonwealth raises an issue of first impression. 

The Commonwealth avers that the trial court was required as a matter of 

law to sentence Appellee to the statutorily available maximum sentence 

pursuant to 75 Pa.C.S. § 3804(d) because Appellee was deemed to be “in 

need of additional treatment.” The Commonwealth acknowledges that, 

notwithstanding mandatory minimum and maximum DUI penalties 

enumerated in Section 3804, the trial court was vested with the discretion to 

sentence Appellee to CIP in lieu of the applicable mandatory minimum 

sentence. Nonetheless, the Commonwealth argues, the mandatory 

maximum provision of Section 3804(d) still applies, and the trial court was 

therefore required to impose the mandatory maximum sentence of five 

years.

In contrast, Appellee avers that the Sentencing Code permits trial 

courts to choose between two separate, “alternative” sentencing schemes. 

She asserts that once the trial court exercised its discretion to sentence her 

to CIP, neither the maximum nor the minimum provisions of Section 3804(d) 

apply.

Addressing the Commonwealth’s averment requires us to revisit “the 

interplay between the mandatory sentencing provision of the DUI statute 
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and the discretionary sentencing provisions of the Sentencing Code, which 

presents a question of law that compels plenary review to determine 

whether the court committed an error of law.” Commonwealth v. 

Williams, 941 A.2d 14, 21 (Pa. Super. 2008) (en banc) (citation and 

internal quotation marks omitted). 

Statutory interpretation is a question of law, therefore our standard of 

review is de novo, and our scope of review is plenary. Commonwealth v. 

Hall, 80 A.3d 1204, 1211 (Pa. 2013). “In all matters involving statutory 

interpretation, we apply the Statutory Construction Act, 1 Pa.C.S. § 1501 et 

seq., which provides that the object of interpretation and construction of 

statutes is to ascertain and effectuate the intention of the General 

Assembly.” Commonwealth v. McCoy, 962 A.2d 1160, 1166 (Pa. 2009) 

(citation omitted). 

Generally, a statute's plain language provides the best indication of 

legislative intent. Id. We will only look beyond the plain language of the 

statute when words are unclear or ambiguous, or the plain meaning would 

lead to “a result that is absurd, impossible of execution or unreasonable.” 1 

Pa.C.S. § 1922(1). Therefore, when ascertaining the meaning of a statute, 

if the language is clear, we give the words their plain and ordinary meaning. 

Hall, 80 A.3d at 1211. 
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The statutory sections governing sentencing in DUI offenses are as 

numerous as they are verbose. In an effort to avoid more confusion than is 

necessary, we summarize the interplay of the relevant statutes as follows.

Under Section 9721 of the Sentencing Code, trial courts are 

empowered to impose a sentence consisting of one or more alternatives 

including, inter alia, imprisonment, probation, or CIP. 42 Pa.C.S. § 9721. 

While Section 9721 generally permits a sentencing court to exercise its 

discretion in choosing an appropriate sentence, under certain circumstances, 

various other statutes mandate that sentencing courts impose mandatory 

minimum and maximum sentences instead. See, e.g., 42 Pa.C.S. § 9718.2 

(prescribing mandatory minimum sentences for second and subsequent 

offenders of various sexual offenses). 

Section 3804 of our DUI statute contains one such mandatory 

sentencing scheme, with penalties enhanced based on prior DUI offenses or 

a determination that the defendant is “in need of additional treatment.” See 

75 Pa.C.S. § 3804; see also 75 Pa.C.S. § 3814 (mandating “a full 

assessment for alcohol and drug addiction” where certain specified 

conditions are met). 

Relevant to the instant matter, Section 3804(d) provides that, “[i]f 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 
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impose a minimum sentence as provided by law and a maximum sentence 

equal to the statutorily available maximum.” 75 Pa.C.S. § 3804(d). As our 

Supreme Court has recognized, the purpose of the maximum sentence 

mandate is to ensure that offenders “complete needed treatment.” 

Commonwealth v. Taylor, 104 A.3d 479, 492 (Pa. 2014).

At first glance, the statutes permitting CIP sentences and the statutes 

mandating minimum DUI sentences may seem inconsistent. However, as 

this Court has recognized, the legislature adopted CIP “to give judges 

another sentencing option” specifically one that “would lie between probation 

and incarceration with respect to sentencing severity; to provide a more 

appropriate form of punishment/treatment for certain types of non-violent 

offenders; to make the offender more accountable to the community; and to 

help reduce the county jail overcrowding problem while maintaining public 

safety.” Williams, 941 A.2d at 24 (quotation omitted). 

Moreover, Sections 9721 and 9763 specifically permit trial courts to 

consider CIP for DUI offenders for first, second, or third offenses, in spite of 

any mandatory minimum sentence elsewhere prescribed by law.3 42 Pa.C.S. 

§§ 9721; 9763. As this Court has previously recognized, the DUI statute 

and the Sentencing Code may be read together to permit a trial court to 

 

3 Ordinarily, where a mandatory sentencing scheme applies, the trial court 

no longer has the discretion it is ordinarily afforded under Section 9721 to 

fashion a sentence of CIP. 42 Pa.C.S. § 9721(a.1). 
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avoid a mandatory minimum sentence in favor of a sentence of CIP for 

certain qualified offenders. Williams, 941 A.2d at 26. 

This Court has repeatedly reaffirmed the right of sentencing courts to 

consider CIP and rebuffed local efforts to eliminate or handicap this 

discretion. See, e.g. Commonwealth v. Jurczak, 86 A.3d 265, 271-72 

(Pa. Super. 2014) (rejecting county CIP plan that required all DUI offenders 

to serve one-third of any applicable mandatory minimum sentence prior to 

being eligible for CIP); Commonwealth v. Sarapa, 13 A.3d 961, 967-68 

(Pa. Super. 2011) (rejecting county CIP plan that precluded CIP eligibility for 

all DUI offenders).

In keeping with the intent of our legislature and the prior decisions of 

this Court, we reaffirm our position that CIP is “a statutorily authorized 

sentencing alternative . . . .” Jurczak, 86 A.3d 265, 267 (Pa. Super. 

2014) (emphasis added). 

Applying these principles to the instant case, we hold that by its plain 

language, the mandatory maximum sentence provision in Section 3804(d) 

applies only where a defendant “is sentenced pursuant to [that] chapter.” 

75 Pa.C.S. § 3804(d). However, Appellee was not sentenced pursuant to 

Chapter 38; she was sentenced under an alternative sentencing scheme to 

CIP as authorized in Chapter 97 of our Sentencing Code. Therefore, neither 

the mandatory minimum nor maximum provisions of our DUI statute apply 

and the sentence imposed is not illegal.
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Discretionary Aspects of Appellee’s Sentence

In its second issue, the Commonwealth challenges the discretionary 

aspects of Appellee’s sentence. A challenge to the discretionary aspects of 

sentencing is not automatically reviewable as a matter of right. 

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008). Prior to 

reviewing such a claim on its merits:

[W]e conduct a four part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal; (2) whether the 

issue was properly preserved at sentencing or in a motion to 

reconsider and modify sentence; (3) whether appellant’s brief 

has a fatal defect; and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate 

under the Sentencing Code. 

When appealing the discretionary aspects of a sentence, an 

appellant must invoke the appellate court’s jurisdiction by 

including in his brief a separate concise statement demonstrating 

that there is a substantial question as to the appropriateness of 

the sentence under the Sentencing Code . . . . 

Id. (citations and quotations omitted). See also Pa.R.A.P. 2119(f).

The Commonwealth complied with the first two requirements by filing 

a timely Notice of Appeal and preserving its sentencing issues by filing a 

Petition to Reconsider Sentence. The Commonwealth also included a 

separate Pa.R.A.P. 2119(f) Statement in its appellate brief. 

Commonwealth’s Brief at 20-21.

As to whether the Commonwealth has presented a substantial 

question, we note:

The determination of what constitutes a substantial 

question must be evaluated on a case-by-case basis. A 
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substantial question exists only when the appellant 

advances a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent with a specific 

provision of the Sentencing Code; or (2) contrary to the 

fundamental norms which underlie the sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations 

and quotation omitted).

Here, the Commonwealth summarizes the evidence adduced during 

Appellee’s Pre-Sentence Investigation suggesting she is in need of 

treatment, and then summarily concludes that “the sentencing court abused 

its discretion in imposing a total sentence of less than half the statutory 

maximum available to ensure adequate supervision to promote the safety of 

the public as well as the rehabilitative needs of [Appellee].” 

Commonwealth’s Brief at 31-32. 

The Commonwealth’s claim, that the sentencing court failed to 

adequately consider these aggravating factors, closely mirrors the claims of 

countless criminal defendants who aver that their sentencing courts failed to 

adequately consider mitigating evidence. An argument that the sentencing 

court failed to consider mitigating factors in favor of a lesser sentence does 

not present a substantial question appropriate for our review. 

Commonwealth v. Hanson, 856 A.2d 1254, 1257-58 (Pa. Super. 2004). 

See also Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) 

(citing Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 

1989) (en banc) (noting that an allegation that the sentencing court did not 
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adequately consider various factors is, in effect, a request that this court 

substitute its judgment for that of the lower court in fashioning a defendant’s 

sentence).

Accordingly, we conclude that the Commonwealth’s assertion that the 

trial court did not adequately consider Appellee’s need for treatment does 

not raise a substantial question. Therefore, we will not review the merits of 

this claim.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016