J-S29025-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

TODD HAMILTON BROOKS 

 Appellant No. 1503 WDA 2014 

Appeal from the Judgment of Sentence August 6, 2014

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0011854-2013 

BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.

*

 

MEMORANDUM BY MUNDY, J.: FILED JULY 08, 2015 

 Appellant, Todd Hamilton Brooks, appeals from the August 6, 2014 

aggregate judgment of sentence of four to eight years’ imprisonment 

followed by five years’ probation, imposed after Appellant pled guilty to 

aggravated assault by vehicle while driving under the influence (DUI), DUI - 

highest rate, and two counts of DUI – general impairment.1 After careful 

review, we vacate and remand for resentencing. 

 The trial court set forth the relevant procedural history as follows. 

 On August 15, 2013, Appellant was charged by 

criminal information [] with one count of aggravated 

assault by vehicle while driving under the influence,1

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 75 Pa.C.S.A. §§ 3735.1, 3802(c), and 3802(a), respectively. 
J-S29025-15 

- 2 - 

one count of accidents involving death or personal 

injury,2 one count of accident involving damage to 

attended vehicle,3 one count of driving under the 

influence .16% or above,4 two counts of driving 

under the influence,5 and two summary counts. 

 On April 2, 2014, Appellant entered a guilty 

plea to aggravated assault by vehicle while driving

under the influence, driving under the influence 

.16% or above, and two counts of driving under the 

influence. As part of the negotiated guilty plea the 

remaining counts were withdrawn. 

 On August 6, 2014, Appellant was sentenced 

by the [t]rial [c]ourt as follows: 

 Count one: aggravated assault by vehicle 

while driving under the influence – four to eight 

years[’] incarceration followed by one year 

probation; 

 Count four: driving under the influence .16% 

or above – ninety to one hundred eighty days 

incarceration to be served concurrent with the period 

of incarceration imposed at count one, followed by 

four years[’] probation to be served consecutive to

the period of probation imposed at count one, and a

fine of $1[,]500; 

 The aggregate sentence imposed was four to 

eight years[’] incarceration followed by five years[’] 

probation and a fine of $1[,]500. 

 On August 8, 2014, Appellant filed a motion for 

reconsideration of sentence, which the [t]rial [c]ourt 

denied on August 13, 2014. 

1 75 Pa.C.S. § 3735.1(a). 

2 75 Pa.C.S. § 3742(a) and (b)(2). 

3

 75 Pa.C.S. § 3743. 
J-S29025-15 

- 3 - 

4

 75 Pa.C.S. §3802(c). This was amended at the 

time of Appellant’s guilty plea to a driving under the 

influence .16% or above second offense. 

5

 75 Pa.C.S. § 3802(a). 

Trial Court Opinion, 2/6/15, 2-3 (footnotes in original). 

 On September 12, 2014, Appellant filed a timely notice of appeal.2 On 

appeal, Appellant raises the following issues for our review. 

I. Did the sentencing court give an illegal sentence 

where it sentenced [Appellant] on both the DUI: 

[h]ighest [r]ate of [a]lcohol as well as [a]ggravated 

[a]ssault by vehicle while DUI when the DUI is a 

lesser included offense of [a]ggravated [a]ssault by 

DUI and the sentences should have merged? 

II. Did the sentencing court abuse its discretion by 

imposing a sentence inconsistent with the norms 

underlying the sentencing code, failing to con[s]ider 

all releveant [sic] factors and focused almost 

exclusively on the seriousness of the offense and the 

injuries to the victim to the exlcusion [sic] of other 

pertient [sic] factors? 

Appellant’s Brief at 6. 

In his first issue, Appellant argues that aggravated assault by vehicle 

while DUI should have merged with DUI – highest rate of alcohol. Id. at 15. 

A claim that crimes should have merged for sentencing purposes raises a 

challenge to the legality of the sentence. Commonwealth v. Williams,

980 A.2d 667, 672 (Pa. Super. 2009), appeal denied, 990 A.2d 730 (Pa. 

____________________________________________ 

2

 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925. 
J-S29025-15 

- 4 - 

2010). “Issues relating to the legality of a sentence are questions of law[.] 

... Our standard of review over such questions is de novo and our scope of 

review is plenary.” Commonwealth v. Hawkins, 45 A.3d 1123, 1130 Pa. 

Super. 2012), appeal denied, 53 A.3d 756 (Pa. 2012( (citation omitted). 

In examining whether Appellant’s offenses should have merged, we 

consider the following. 

The preliminary consideration [in determining 

merger for sentencing purposes] is whether the facts 

on which both offenses are charged constitute one 

solitary criminal act. If the offenses stem from two 

different criminal acts, merger analysis is not 

required. If, however, the event constitutes a single 

criminal act, a court must then determine whether or 

not the two convictions should merge. 

Commonwealth v. Walls, 950 A.2d 1028, 1031 (Pa. Super. 2008) 

(brackets in original), appeal denied, 991 A.2d 313 (Pa. 2010). 

Furthermore, in order for two convictions to merge, the elements of the 

lesser-included offense must be subsumed by the elements of the greater 

offense. 42 Pa.C.S.A. § 9765. Specifically, Section 9765 of the Sentencing 

Code provides as follows. 

No crimes shall merge for sentencing purposes 

unless the crimes arise from a single criminal act and 

all of the statutory elements of one offense are 

included in the statutory elements of the other 

offense. Where crimes merge for sentencing 

purposes, the court may sentence the [Appellant] 

only on the higher graded offense. 

 Instantly, as noted above, Appellant received a sentence of four to 

eight years’ imprisonment, followed by one year of probation for aggravated 
J-S29025-15 

- 5 - 

assault by vehicle while DUI, and 90 to 180 days’ imprisonment, followed by 

four years’ probation for DUI – highest rate of alcohol, all stemming from the 

one incident in this case. This Court has held that these crimes merge for 

sentencing purposes. 

Indeed, the crime[] of ... aggravated assault by 

vehicle while DUI require[s], as [an] essential 

element[], that an individual cause the proscribed 

harm “as a result of” violating the DUI statute and

that the individual be convicted of DUI. ... 

Therefore, the statutory elements of DUI are 

completely subsumed within the crime[] of ... 

aggravated assault by vehicle while DUI. As such, 

for sentencing purposes, Appellant’s DUI conviction

merged with ... her ... aggravated assault by vehicle 

while DUI conviction[]. 

Commonwealth v. Tanner, 61 A.3d 1043, 1047 (Pa. Super. 2013). 

 In this case, the trial court and the Commonwealth acknowledge the 

trial court imposed an illegal sentence. Trial Court Opinion, 2/6/15, at 5; 

Commonwealth’s Brief at 2. We agree with the parties and the trial court 

that aggravated assault by vehicle while DUI and DUI – highest rate of 

alcohol, should have merged for sentencing purposes. See Tanner, supra. 

 Based on the foregoing, we conclude Appellant’s sentence is illegal.3 

See id.; Walls, supra. Accordingly, we vacate the trial court’s August 6, 

2014 judgment of sentence and remand for resentencing. 

____________________________________________ 

3

 In light of our conclusion that Appellant’s sentence is illegal, his claim 

concerning the discretionary aspects of his sentence is moot. Tanner, 

supra at 1046 n.3. 
J-S29025-15 

- 6 - 

 Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/8/2015