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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWARD R KLINGENSMITH : : Appellant : No. 808 WDA 2024 Appeal from the Judgment of Sentence Entered January 30, 2024 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-CR-0000013-2022

BEFORE: OLSON, J., SULLIVAN, J., and FORD ELLIOTT, P.J.E.* MEMORANDUM BY OLSON, J.: FILED: June 10, 2025 Appellant, Edward R. Klingensmith, appeals from the judgment of sentence entered January 30, 2024, as made final by the denial of his post-sentence motion on June 27, 2024. We affirm.

The trial court summarized the relevant facts and procedural history of this matter as follows.

On November 16, 2023, after a one-day trial, a jury convicted [Appellant] of [two counts of driving under the influence (“DUI”), DUI-general impairment and DUI-highest rate,] . . . driving with license suspended/revoked[,] driving while operating privilege suspended/revoked[, and impersonating a

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* Retired Senior Judge assigned to the Superior Court.

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public servant.1,2] On January 30, 2024, [the trial court] sentenced [Appellant] to 40-84 months[’ incarceration] on the DUI[-highest rate] charge, and to 24-48 months[’ incarceration] on the first-degree misdemeanor suspended/revoked license charge [with] both sentences to run consecutively. [The trial court] imposed no further penalty on the remaining charges. … [Appellant’s] counsel withdrew immediately following sentencing.

On February 1, 2024, [Appellant] filed a pro se post-sentence motion raising various issues, and on February 5, 2024, [Appellant] “re-filed” a pro se petition for writ of habeas corpus.

On March 4, 2024, [the trial court] appointed Lea Bickerton, [Esquire,] to represent [Appellant] and [] granted [Attorney Bickerton’s] request to extend the 120-day deadline for deciding post-sentence motions [pursuant to Pa.R.Crim.P. 720(B)(1)(b). Attorney Bickerton] filed a memorandum of law raising four issues relating to ineffective assistance of trial counsel [although she also asserted that such claims] should be raised in post-conviction collateral relief proceedings[. … Attorney Bickerton] also claimed that [Appellant’s] right to a public voir dire was violated.

[The trial court] conducted a hearing on [Appellant’s] post-trial motions on June 24, 2024. In addition to arguing the issues set forth in [Appellant’s] memorandum of law, [Attorney Bickerton] also discussed a recent United States Supreme Court decision[, Erlinger v. United States, 602 U.S. 821 (2024), issued on June 21, 2024, that addressed] which facts from past offenses must be heard by a jury. On June 26, 2024[, after receiving permission from the trial court, Appellant] filed a supplemental post-sentence motion limited to [the applicability of Erlinger, supra]. The [trial] court denied [Appellant’s] post-sentence motions on June 27, 2024. [This timely appeal followed].

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Trial Court Opinion, 8/20/24, at 1-3 (footnotes omitted) (emphasis and footnote added).

Appellant raises the following issue for our consideration.

After Erlinger[, supra,] is the Almendarez-Tor[r]es v. United States[, 523 U.S. 224 (1998)] exception that permits a court to use the fact of a prior conviction to increase the minimum or maximum range of [one’s] sentence unconstitutional?

Appellant’s Brief at 7.

In his sole issue on appeal, Appellant challenges the legality of his sentence for his conviction under 75 Pa.C.S.A. § 3802(c). A challenge to the legality of sentence raises a question of law for which our standard of review is de novo and our scope of review is plenary. See Commonwealth v. Renninger, 269 A.3d 548, 567 (Pa. Super. 2022) (en banc) (citation omitted), appeal denied 302 A.3d 95 (Pa. 2023).

Herein, Appellant argues that his sentence, which the trial court issued pursuant to 75 Pa.C.S.A. § 3804(c)(3),3 cannot pass constitutional muster because a “jury was not given the opportunity to pass on the question of whether [he] was previously convicted of a DUI offense.” Appellant’s Brief at 16. In support of Appellant’s claim, he relies on the United States’ Supreme Court’s decision in Erlinger, supra, which in Appellant’s view, called into ____________________________________________

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question the constitutionality of the narrow exception set forth in Almendarez-Torres, supra (recognizing a narrow exception to the Sixth’s Amendment’s general rule and permitting a judge to find the fact of a prior conviction for sentencing purposes).

It is well-settled that, in Alleyne v. United States, 570 U.S. 99 (2013), the Supreme Court of the United States established that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” Id. at 103. It is equally well-settled, however, that in Almendarez-Torres, supra, the High Court recognized a narrow exception to this rule for prior convictions. In particular, the Court held that a criminal statute which enhances a sentence based upon a prior conviction does not create a separate crime that the government must charge as a fact in the indictment but, rather, is a penalty provision authorizing an enhanced sentence for recidivists.

Commonwealth v. Verbeck, 290 A.3d 260, 277 (Pa. 2023) (J. Todd, OISA).

While the decision in Almendarez-Torres has “c[o]me under scrutiny,” it remains the law of the land. Erlinger, 602 U.S. at 837. This was explicitly recognized by the United States’ Supreme Court in Erlinger, the case upon which Appellant relies. See id. at 838 (stating that “no one . . . asked [the Court] to revisit Almendarez-Torres” and there was no “need to do so” because, inter alia, “Almendarez-Torres [did] nothing to save the [appellant’s] sentence.”). In Erlinger, the Court analyzed an enhanced

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sentencing scheme found in the Armed Career Criminal Act which increased the maximum penalty faced by a defendant if he or she had “three prior convictions for ‘violent felonies’ or ‘serious drug offense[s]’ that were ‘committed on occasions different from one another.’” Id. at 825 (citation omitted). In particular, the High Court addressed whether “a judge may decide that a defendant’s past offenses were committed on separate occasions under a preponderance of the evidence standard or whether the Fifth and Sixth Amendment require a unanimous jury to make that determination beyond a reasonable doubt.” Id. at 825. Ultimately, the Court determined that the different-occasions inquiry, as a “‘fact’ that ‘increase[s] the prescribed range of penalties to which a criminal defendant is exposed,’” must be resolved by a “unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).” Id. at 835, citing Apprendi v. New Jersey, 530 U.S. 566, (2000). Importantly, in making this determination, the Court also recognized that, because the district court in Erlinger “had to do more than identify [the appellant’s] previous convictions and the legal elements required to sustain them,” i.e., it “had to find that those offenses occurred on at least three separate occasions,” it “did more than Almendarez-Torres allow[ed].”

Erlinger, 602 U.S. at 838-839. For this reason, the High Court explicitly stated that it did not need to “revisit” its decision in Almendarez-Torres. Id. at 838.

Upon review, we conclude that Appellant’s claim lacks merit. As stated above, Appellant’s challenge is rooted in his belief that, because Erlinger -5- J-S15009-25

questioned the viability of Almendarez-Torres and because the trial court, not a jury, determined Appellant’s prior conviction for DUI, his sentence for his conviction under 75 Pa.C.S.A. § 3802(c) does not pass constitutional muster. Appellant, however, recognizes that the statements made in Erlinger regarding Almendarez-Torres “are likely obiter dicta” and, as such, cannot serve as a basis for invalidating his sentence. Appellant’s Brief at 18. Indeed, “[t]his Court is bound by existing precedent under the doctrine of stare decisis and continues to follow controlling precedent as long as the decision has not been overturned by our Supreme Court.” Commonwealth v. Reed, 107 A.3d 137, 144 (Pa. Super. 2014). Pursuant to Almendarez-Torres as well as 75 Pa.C.S.A. § 3804(c)(3), the trial court was permitted (indeed, compelled) to utilize Appellant’s past DUI convictions in formulating his sentence under 75 Pa.C.S.A. § 3802(c). Thus, Appellant is not entitled to relief.

Judgment of sentence affirmed.

DATE: 06/10/2025

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