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Commonwealth v. Fogel11/15/1999
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Northumberland County, Pennsylvania. We affirm.
Appellant entered a plea of guilty to Driving Under the Influence of Alcohol or Controlled Substance ("DUI"), and Driving While Operating Privilege is Suspended or Revoked ("DUS"). The Trial Court explained the procedure underlying Appellant's appeal as follows:
The initial plea agreement listed the DUI as a misdemeanor of the second degree ("M2") and also listed the terms for sentence as a maximum of two (2) years and the "standard range for DUI." The plea was accepted and the case was scheduled for sentencing. After a continuance, Defendant was re-scheduled to be sentenced on October 28, 1998.
At the sentencing hearing, Discussions occurred between the Court, counsel and the Adult Probation office concerning the number and date of Defendant's prior DUI's and the affect they would have on his sentence under the penalty enhancement provisions of the DUI statute.
The Court, having determined that Defendant's prior record included five (5) prior DUI convictions during Defendant's lifetime, rejected the plea agreement based upon the sentence recommendations, and modified the DUI charge to a misdemeanor of the first degree ("M1)". The Court followed the DUI statute which provided that convictions for a third or subsequent DUI raised the grading of the offense from an M2 to an M1.
Counsel for Defendant reserved the right to appeal this issue at the sentencing hearing. Thereafter, Defendant agreed to plead guilty to the same charges as before but with the enhancement of the offense grade. The Court, on the DUI charge, sentenced Defendant to (18) months to thirty-six (36) months at a State Correctional Institution, and to three (3) months to six (6) months on the DUS charge.
Trial Court Opinion, 1/13/99, at 1-3 (footnotes in original). Appellant, however reserved his challenge to the legality of the sentence based upon the discrepancy between the grading of the offense in the Motor Vehicle Code and the Sentencing Guidelines.
In this appeal, Appellant raises the following issue for our review:
Whether the lower court erred in sentencing Appellant for a DUI as a misdemeanor of the first degree instead of a misdemeanor of the second degree.
Appellant's Brief at 2. After a defendant has entered a plea of guilty, the only matters that may be raised on appeal are the jurisdiction of the court, the validity of the guilty plea and the legality of the sentence. Commonwealth v. Hines, 496 Pa. 555, 569, 437 A.2d 1180, 1187 (1981); Commonwealth v. Vealy, 581 A.2d 217, 219 (Pa.Super. 1990). Appellant in this case challenges the legality of his sentence. Specifically, Appellant challenges the authority of the Trial Court to impose the statutory mandatory minimum sentence when that statute conflicts with the sentencing guidelines. See Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997) (challenge to authority of court to impose sentence implicates legality of sentence).
Appellant correctly notes that according to the Sentencing Guidelines, a second conviction of DUI within a seven-year period is classified as a second degree misdemeanor, or "M2." 204 Pa.Code § 303.15. A third conviction in a seven-year period is classified as a first degree misdemeanor, or "M1." Id. Thus, the Court may only review the prior seven years in determining the appropriate classification of the DUI offense.
Under the Motor Vehicle Code, a person's third or subsequent DUI offense is classified as a first degree misdemeanor, or "M1." However, unlike th
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