J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS R. STRAYER JR.

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 306 WDA 2022
Appeal from the Judgment of Sentence Entered February 11, 2022

In the Court of Common Pleas of Blair County Criminal Division at No(s): CP

- 07

- SA

- 0000295

- 2021

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS R. STRAYER

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 310 WDA 2022
Appeal from the Judgment of Sentence Entered February 11, 2022

In the Court of Common Pleas of Blair County Criminal Division at No(s): CP

- 07

- SA

- 0000294

- 2021

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J. *

MEMORANDUM BY PANELLA, P.J.: FILED: October 14, 2022

Thomas R. Strayer appeals from the judgment of sentence entered on

February 11, 2022, following the entry of his guilty plea to two counts of

driving while operating privilege is suspended or revoked (“DWS”), his second

offense. We affirm in part, vacate i n part, and remand for further proceedings.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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On August 25, 2021, Strayer pled guilty at the magisterial district court

to DWS pursuant to 75 Pa.C.S.A. § 1543(b)(1)(ii). The court sentenced

Strayer to ninety days’ incarceration, as well as a $1,000 fine, p lus costs.

Strayer filed a notice of appeal from the summary conviction. After Strayer

failed to appear for a hearing, the trial court dismissed the summary appeal

and affirmed the sentence of the magisterial district court. This timely appeal

followed.

On appeal, Strayer raises the following issue for our review:

Whether [Strayer]’s sentence of ninety (90) days incarceration imposed pursuant to the provisions of 75 Pa.C.S.A. § 1543(b)(1)(ii) is unlawful, in that the sentencing statute is unconstitutional ly vague and ambiguous based on the findings in [ Commonwealth v. Jackson .]

Appellant's Brief at 7.

Section 1543 provides various sentences for the violation of the offense

of driving while operating privilege is suspended depending on the number of

violations. In Commonwealth v. Eid , 249 A.3d 1030 (Pa. 2021), our

Supreme Court held that section 1543(b)( 1.1)(i) is unconstitutionally vague

as currently drafted because it fails to specify a maximum term of

imprisonment and, therefore, only permits a court to lawfully impose a

mandatory fine of $1,000. See Eid , 249 A.3d at 1044. 1

_________________ __________ ______ ____ _______

1 Section 1543(b)(1.1)(i) provides that a person convicted under this section “shall, upon first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000[.00] and to und ergo imprisonment for a (Footnote Continued Next Page)J

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Subsequently, our Court he ld Section 1543(b)(1)(ii), which sets forth

the sentence for a second violation of the statute, is also unconstitutional as

written, because that subsection used language identical to the language in

section 1543(b)(1.1)(i) and addressed in Eid

. See Common wealth v.

Jackson , 271 A.3d 1286 (Pa. Super. 2022).

Here, Strayer pled guilty to DWS under 75 Pa.C.S.A. § 1543(b)(1)(ii),

and the trial court sentenced him to pay a fine of $1,000 and serve ninety

days of imprisonment. 2 Based on our holding in Jackson , a nd consistent with

our Supreme Court’s reasoning in Eid , we must vacate the sentence of

imprisonment for DWS.

Accordingly, we affirm Strayer’s conviction and the imposition of the

$1,000 fine, but vacate the imprisonment portion of his sentence and remand

for any further proceedings the trial court deems necessary.

Judgment of sentence affirmed in part and vacated in part. Case

remanded for further proceedings. Jurisdiction relinquished.

_________________ __________ ______ ____ _______ period of not less than 90 days.” Similarly, section 1543(b)(1)(ii) provides for “imprisonment for not less than 90 days.”

2 The trial court acknowledges that Jackson is controlling and requests a remand for resentencing. The Comm onwealth noted its agreement with the trial court’s reasoning in a letter it filed in lieu of a brief on appeal.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/14/2022