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Commonwealth v. Tustin11/15/2005
1 Appellant, William Tustin, appeals from the judgment of sentence entered in the Huntingdon County Court of Common Pleas, following his guilty plea to driving under the influence of alcohol ("DUI") at the "highest rate of alcohol." Appellant asks us to consider whether the trial court erred by applying the new ten-year "look-back" period of Section 3806(b) of the Vehicle Code, and not the now-repealed Section 3731(e) seven-year "look-back" period in effect at the time of Appellant's prior DUI conviction. We hold the trial court properly sentenced Appellant under the ten-year "look-back" period, and its application of Section 3806(b) did not violate Appellant's due process rights. Accordingly, we affirm the judgment of sentence.
2 The relevant facts and procedural history of this case are as follows. Appellant was arrested on May 23, 2004 for DUI. On September 24, 2004, Appellant pleaded guilty. On January 5, 2005, the trial court conducted a sentencing hearing, during which the court learned Appellant had previously been convicted of DUI on May 24, 1996. The court treated Appellant as a second-time DUI offender pursuant to the recently-enacted Section 3806(b), sentenced him to ninety days' to five years' incarceration, imposed a fine of $1,500, and imposed other costs and penalties not relevant to our consideration. Appellant did not file post-sentence motions. This appeal followed.
3 Appellant presents the following issue for our review:
DOES THE TEN (10) YEAR "LOOK-BACK" PERIOD FOR PRIOR OFFENSES AND ENHANCEMENTS PURSUANT TO 75 PA.C.S. § 3806(B) DENY [APPELLANT] OF HIS DUE PROCESS RIGHTS, WHERE UNDER THE "OLD" DUI LAW, ENACTED AT THE TIME OF [APPELLANT'S] PRIOR OFFENSE, HE HAD AN EXPECTATION THAT AFTER SEVEN (7) YEARS HIS OFFENSE COULD NOT BE USED AGAINST HIM, AND [APPELLANT] HAD, IN FACT, COMPLETED THE SEVEN (7) YEAR "LOOK-BACK" PERIOD AT THE TIME OF HIS SUBSEQUENT OFFENSE? (Appellant's Brief at 7).
4 Appellant argues his due process rights were violated because he completed all sentences for his 1996 DUI conviction. Appellant asserts it is unconstitutional to apply the ten-year "look-back" period of Section 3806(b) of the Vehicle Code when he has already completed the seven-year "look-back" period under the now-repealed Section 3731(e). Appellant avows the relevant seven-year period of Section 3731, in which he was prohibited from driving while intoxicated in order to avoid second-offender status, ended when Section 3731(e) was still in effect. Appellant avers his conviction was improperly graded as a first-degree misdemeanor. Appellant concludes he was deprived of his due process rights. We disagree.
5 Initially, we note Appellant's issue challenges the legality of his sentence. See Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa.Super. 2004) (stating allegation of improper gradation of offense implicates legality of sentence). Therefore, his failure to file post-sentence motions does not result in waiver of his issue on appeal. See Commonwealth v. Kitchen, 814 A.2d 209, 214 (Pa.Super. 2002), affirmed, 576 Pa. 229, 839 A.2d 184 (2003).
When an appellant challenges the constitutionality of a statute, the appellant presents this Court with a question of law. See Commonwealth v. Atwell, 785 A.2d 123, 125 (Pa.Super. 2001) (citation omitted). Our consideration of questions of law is plenary. See id.[ ] at 125 (citation omitted). A statute is presumed to be constitutional and will not be declared unconstitutional unless it clearly, palpably, and plainly violates the constitution. See Commonwealth v. Etheredge, 794 A.2d 391, 396 (Pa.Super. 2002) (citations omitted). Thus, the party challenging the constitutionality of a st
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