COMMONWEALTH of Pennsylvania, Appellant, v. Robert E. BECKER, Appellee.
No. unknown
Superior Court of Pennsylvania.
Filed Aug. 10, 1987.
530 A.2d 888
Argued Dec. 9, 1986.
BECK, Judge:
The issue is whether appellee‘s acceptance into the Accelerated Rehabilitative Disposition (ARD) program after being charged with driving under the influence (DUI) exposes appellee to sentence as a second offender after a guilt determination on a second DUI charge. We find that the lower court erred in sentencing appellee as a first offender. Accordingly, we vacate judgment and remand for resentencing.
I.
Appellee Robert E. Becker was first arrested on January 2, 1984 and charged with DUI. See Drunk Driving Act, 1982, Dec. 15 Pa. Laws 1268 No. 289, § 9,
Less than a week later, on September 5, 1984, Becker was again arrested and charged with driving under the influence of alcohol. He pleaded guilty to the September offense on January 25, 1985. As a consequence, Beckеr may be expelled from ARD and forced to stand trial in connection with the January, 1984 incident.
On February 26, 1985, Becker was sentenced for the September offense, the second charge, by the Court of Common Pleas of Allegheny County. He was ordered to spend forty-eight hours in jail, the mandatory minimum penalty for a first offender. The Commonwealth filed a Motion to Modify Sentence on the ground that Becker should have been sentenced to at least thirty days in jail, the mandatory minimum penalty for a second offender.
II.
All agree that appellee must be sentenced for the September offense in accordance with
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours.
(ii) not less than 30 days if a person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years....
(2) Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction....
The sentencing court interpreted these provisions as meaning that only acceptance and completion of ARD shall be considered a first conviction. We cannot accede to
A fundamental principle of statutory construction is set forth at
The sentencing court emphasized that
III.
We emphasize that our decision in thе instant case is narrow in scope. We deal here only with the proper interpretation of
It is true that when the word “conviction” appears in a statute, it is usually taken to mean “the ascertainment of the guilt of the accused and judgment thereon by the court ...” Commonwealth v. Minnich, 250 Pa. 363, 367, 95 A. 565, 567 (1915). However, this technical definition of conviction should not be applied “where the intention of the legislature is obviously to the contrary ...” Commonwealth ex rel. McClenachan v. Reading, 336 Pa. 165, 169, 6 A.2d 776, 778 (1939). Where a statute clearly defines its terms, the fact that other legal enactments may provide alternate definitions of the same term is irrelevant. The court must construe each statute according to its internal definition. See Commonwealth v. Lobiondo, 501 Pa. 599, 603, 462 A.2d 662, 664 (1983); Commonwealth v. Massini, 200 Pa.Super. 257, 259, 188 A.2d 816, 817 (1963).
Furthermore, we note that our interpretation of
One significant consequence of
This may be a harsh result, but it is a result which is mandated by the language and policy of the Vehicle Code. The General Assembly demonstrated a special concern with the ARD program, and sought to ensure that both guilty and innocent participants in that program would have cause to reflect on the serious nature of the crime of drunk driving.
Any person who accepts Accelerated Rehabilitative Disposition of any charge brought under this section shall accept as conditions the imposition of and the judge shall impose in addition to any other conditions all of the following:
(i) A fee to cover costs referred to in section 1548(e) (relating to costs).
(ii) A mandatory suspension of operating privilege for a period of not less than one month but not more than 12 months.
(iii) A conditiоn that the defendant, as a condition to entering the program, make restitution to any person who incurred determinable financial loss as a result of the defendant‘s actions which resulted in a charge of violating this section.
(iv) Court supervision for any defendant required to make restitution or submit to counseling or treatment.
(v) Court supervision for a period of not less than six months when the Court Reporting Network indicates that counseling or treatment is not necessary and not less than 12 months when the Court Reporting Network indicates that counseling or treatment is in order.
In addition to any other requirements of the court, every person convicted of a violation of section 3731 and every person placed on Accelerated Rehabilitative Disposition or other preliminary disposition as a result of a сharge of a violation of section 3731 shall, as a part of sentencing or as a condition of parole, probation or Accelerated Rehabilitative Disposition, be required to attend and successfully complete an approved alcohol highway safety school established pursuant to section 1549 (relating to establishment of schools).
When appellee entered ARD, he struck a deal with the state in order to avoid prosecution on the initial drunk driving charge. He stood ready to accept the benefits of participating in ARD. He then violated the terms of ARD. He now seeks to avoid the predictable consequences of his actions. Under these circumstances, it does not appear that counting ARD as a prior conviction will work a manifest injustice. Cf. McDevitt, supra (similar reasoning).
Finally, we must bear in mind that in Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986), Commonwealth v. Potts, 352 Pa.Super. 299, 507 A.2d 1239 (1986), and Commonwealth v. Scheinert, 359 Pa.Super. 423, 519. A.2d 422 (1986), this court has already held that a defendant who completes ARD and is later convicted of driving drunk must be sentenced as a repeat offender. In so deciding, we implicitly recognized that
In Wagner, we found that the trial court erred when it sentenced appellee Roxanne Wagner as a first offender. The sequence of events in Wagner was as follows: she was arrested for driving drunk in March, 1983; she accepted
Unlike Roxanne Wagner, appellee Robert Becker may have an opportunity to be found not guilty by a trial court. If Becker has this opportunity it will be because he violated ARD and was expelled from the program. It would therefore be curious and ironic if we were to treat Robert Becker more leniently than we treated Roxanne Wagner. Wagner had completed ARD and had not been cited for driving while under the influence for over a year. On the other hand, Becker entered ARD and was arrested for drunk driving just six days later.
We hold that under the terms of
V.
In order to avoid confusion, we emphasize that this finding is not in conflict with our recent decisions in Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986), allowance of appeal granted, 511 Pa. 619, 515 A.2d 898 (1986) and Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d
Moreover, Mourar and Wolfe involve a factual pattern which is significantly different from the facts of the case sub judice. In Mourar and Wolfe, each defendant was convicted of four offenses. Although all four offenses were committed prior to the first conviсtion, the trial courts had sentenced each defendant as a first offender for his first conviction, as a second offender for his second conviction, as a third offender for his third conviction, and as a fourth offender for his fourth conviction. We found this “geometric escalation of punishment ... to be an improper application of the sentencing guidelines.” Wolfe, 349 Pa.Super. at 418, 503 A.2d at 436. We interpreted the guidelines as conforming to a general principle which underlies most recidivist statutes which impose criminal penalties: “prior convictions must antedate commission of the principal offense to be eligible for application as sentence enhancers.” Mourar, 349 Pa.Super. at 592, 504 A.2d at 202.
Our decision today does no violence to this basic doctrine. We merely recognize that
For present purposes, appellee‘s second charge of DUI—which occurred on September 5, 1984—is his “principal offense.” As a consequence of appellee‘s first DUI charge, he accepted ARD on August 30, 1984—prior to the commission of this principal offense. If appellee had accepted ARD after September 5, 1984, we would be faced with a very different situation.
We vacate judgment of sentence and remand for resentencing in accordance with this opinion. Jurisdiction is relinquished.
KELLY, J., filed a concurring opinion and joined majority.
POPOVICH, J., concurred in the result.
CIRILLO, President Judge, filed a dissenting opinion in which DEL SOLE and TAMILIA, JJ., joined.
DEL SOLE, J., filed a dissenting opinion in which CIRILLO, President Judge, joined.
KELLY, Judge, concurring:
I join the majority opinion for the reasons set forth in Commonwealth v. Scheinert, 359 Pa.Super. 423, 519 A.2d 422 (1986) (Kelly, J., concurring; Cavanaugh, J., joining):
In Pennsylvania, prior unadjudicated arrests may properly be considered at sentencing provided the arrests are not regarded as establishing criminal conduct. Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973). Even arrests which resulted in acquittals may be considered at sentencing so long as the judge is aware of the acquittal. Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975). Likewise, ARD participation may be considered by the sentencing judge as an appro-
... [i]n Commonwealth v. Potts, 352 Pa.Super. 299, 301, 507 A.2d 1239, 1240 (1986), this Court explained that ’
359 Pa.Superior Ct. at 432, 519 A.2d at 427. (Emphasis added).
I agree with Judge Beck that the plain meaning of
Drunk driving is a serious crime. The Commonwealth‘s interest in ending the carnage wreaked upon our highways
However, when the rehabilitative approach fails (as is the case when a individual who has been acсepted into an ARD program is subsequently convicted of a drunk driving offense arising after admission into an ARD program), the legislature may reasonably conclude that reliance upon the punitive sanction of incarceration, rather than continued reliance on the rehabilitative approach, is warranted.
Judge Wieand stated in Scheinert, supra:
The law is well-settled that ‘[i]t is the province of the legislature to determine the punishment imposable for criminal conduct.’ Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 361 (1985), affirmed sub nom, Pennsylvania v. McMillan, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). ‘The legislature has the right to fix the maximum penalty and likewise can, if it sees fit, name the minimum.’ Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114, 11 (1959).
359 Pa.Superior Ct. at 427, 519 A.2d at 424. In the instant case, I would find that prior acceptance into an ARD program is a valid sentencing factor to be considered in sentencing a defendant upon a subsequent unrelated drunk driving conviction, and that it was within the power of the legislature to designate this sentencing factor as one of two factors sufficient to trigger mandatory minimum sentence provisions.
Therefore, I join the majority opinion.
CIRILLO, President Judge:
I join the well-reasoned dissent of Judge Del Sole and would further emphasize the necessity for distinguishing
The rules which establish and govern the Accelerated Rehabilitative Disposition program, Pa.R.Crim.P. 175-185, make clear that “acceptance” of ARD must be conditional upon successful completion of the program. Specifically, under Rule 181, when a defendant is accepted into ARD, charges are postponed during the term of the program. Further, Rule 184 provides that if the defendant does commit a violation, the program is terminated, and the attorney for the Commonwealth shall proceed on the charges. Finally, upon satisfactory сompletion and compliance with the terms of the program, a defendant may apply to the court for an order dismissing the charges pursuant to Rule 185. Therefore, the term “acceptance,” as it is used in
(7) Accelerated Rehabilitative Disposition or other preliminary disposition of any charge of violating this section may be revoked and the court shall direct the attorney for the Commonwealth to proceed on the charges as prescribed in general rules if the defendant:
(i) is charged with or commits any crime enumеrated in Title 18 (relating to crimes and offenses) or in section 1542 within the probationary period;
(ii) fails to make restitution as provided for in this section;
(iii) fails to successfully complete the alcohol highway safety school required by section 1548(b);
(iv) fails to successfully complete any program of counseling or treatment, or both, required as a condition of Accelerated Rehabilitative Disposition; or
(v) violates the terms and conditions of Accelerated Rehabilitative Disposition in any other way.
The language of
Rule 178. Hearing, Explanation of Program
Hearing on a motion for accelerated rehabilitative disposition shall be in open court in the presence of the defendant, his attorney, the attorney for the Commonwealth, and any victims who attend. At such hearing, the defendant shall be asked on the record whеther he understands that:
(1) acceptance into and satisfactory completion of the accelerated rehabilitative disposition program offers him an opportunity to earn a dismissal of the charges pending against him;
(2) should he fail to complete the program satisfactorily, he may be prosecuted as provided by law;
(3) he must agree that if he is accepted into the program he waives the appropriate statute of limitations and his right to a speedy trial under any applicable Federal or State constitutional provisions, statutes or rules of court during the period of enrollment in the program.
(Emphasis added).
This strengthens or emphasizes the position that ARD admittance is conditioned upon satisfactory completion of the program, as distinguished from simple acceрtance into the ARD program.
Moreover, the disposition of the DUI charges is determined by the ARD participant, who by his actions chooses to either successfully complete the program, or be removed from ARD due to a violation. Therefore, the statute cannot logically be interpreted to mean that immediately upon acceptance into the program, he is аutomatically presumed to be a second offender for subsequent sentencing purposes. Since the intent behind successful completion of ARD was rehabilitative, not punitive, see Pa.R.Crim.P. 175-185 completion, the sentencing provisions of
Furthermore, the majority justifies treating appellee Becker as a second offender based upon our treatment of a defendant who had completed ARD in Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986). However, the majority assumes that defendant Wagner was innocent of the charges giving rise to ARD, since completion of the program precludes adjudication of those charges. I disagree. The majority‘s characterization of a defendant as innocent upon ARD completion conflicts with the penalty prescribed in
Finally, the Commonwealth should be estopped from treating appellee as a second offender on the present offense, because it chose to proceed on these charges first, despite the fact that it had already revoked appellee‘s ARD and can now try him on the January offense which gave rise to ARD. Had the Commonwealth tried appellee first for the January offense upon ARD revocation, then for the present offense committed in September, appellee could now properly be sentenced as a second offender, provided he was cоnvicted of the January offense. The Commonwealth‘s approach, as supported by the majority, would not only create confusion as to subsequent sentencing, but further would create an unreasonable result which the legislature is presumed not to have intended. See Fireman‘s Fund Insurance v. Nationwide Mutual Insurance, 317 Pa.Super. 497, 464 A.2d 431 (1983).
First, if appellee is sentenced on these charges, then acquitted of the offense giving rise to ARD, he will have been sentenced as a second offender even though he was convicted only once. As discussed, this situation would not be problematic had appellee completed ARD, because there he would have escaped the possibility of prosecution but would be presumed convicted under the statute for sentencing purposes on the present conviction. However, if ARD is revoked, presumptions do not apply, because an actual adjudication of guilt or innocence will occur. But if the majority‘s interpretation is applied, the appellee may be punished as a second offender even if convicted only once.
Moreover, if appellee were to be sentenced on the present charges, then later convicted on the former ones, a problem arises as to sentencing on those original charges. The charges on which appellee now appeals occurred on September 5, 1984. The original charges arose on January 2, 1984, for which he was accepted into ARD on August 30, 1984. The majority, by equating ARD “acceptance” with “convic-
I believe the result of the majority‘s interpretation, equating ARD acceptance with conviction, would create confusion and ambiguity for sentencing in ARD revocation cases. If appellee is specifically convicted for the January incident, the result would be two convictions for the same offense; the first time by accepting ARD, the second, by actual adjudication. The majority reconciles this ambiguity by suggesting that appellee, if later convicted for the January offense, would be treated as a first offender for the September offense so as not to violate the Mourar/Wolfe doctrine. However, this suggestion simply ignores the conviction for the September offense and treats appellee as though ARD never occurred. This is contrary to the thrust of the opinion, which emphasizes the necessity of considering ARD as a sentence enhancer.
I believe second offender status should apply only where ARD is completed, because the sole reason for allowing ARD to be used as a sentence enhancer is the fact that appellee will never be tried on those charges. Moreover, although Mourar and Wolfe are not clear about whether a conviction must be on the record at the time the second offense is committed, or whether there must be a conviction at the time of sentencing, this is irrelevant due to the unique nature of ARD.
Both Mourar and Wolfe involved sentencing for clear episodes of criminal behavior, delivery of cocaine and burglary, respectively. ARD, however, is а unique situation where criminal conduct is not implied unless there has been a revocation. Charges may not be brought unless the participant has violated ARD, and often that violation will consist of another DUI arrest. Therefore, it is the second
The better rule, applicable solely to ARD revocation cases, would clearly be to stay the proceedings on the later charge until the final disposition of the ARD revocation charges. Under this view, appellee, if convicted, would properly be treated as a first offender for the January offense, then as a second offender for the present conviction. Alternately, if appellee is acquitted of the January charges, then is convicted for the September offense, he would not be treated unfairly as a second offender, as the majority requires, but rather as a first offender.
For the foregoing reasons, I would affirm the judgment of sentence.
DEL SOLE, Judge, dissenting:
I respectfully disagree with the conclusion reached by the Majority in this case. I would hold that where one is found guilty of Driving Under the Influence in violation of
Appellee was placed in an Accelerated Rehabilitative Disposition program (ARD) as a result of charges having been filed against him alleging a violation of
The Majority adopts the Commonwealth‘s position and holds that Appellee should be sentenced for the September offense as a second offender under
Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a secоnd, third, fourth or subsequent conviction.
The Majority reads this language as requiring Appellee to be sentenced as a second offender based upon his prior acceptance into a program of ARD. Although words and phrases used in any legislation are to be construed according to their common meaning and accepted usage, Fireman‘s Fund Insurance v. Nationwide Mut. Ins., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983), the General Assembly is presumed not to have intended a result which is absurd or unreasonable. Id. I believe this is the result which flows from the Majority‘s interpretation of the statute. In spite of the fact that Appellee has not had an accelerated rehabilitative disposition, was actually removed from the program by the Commonwealth and is awaiting action to be taken involving the first incident, the Majority
I believe
ARD, accelerated rehabilitative disposition, is a pretrial disposition of certain cases, in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant‘s successful participation in a rehabilitative program ... Pa.R.Crim.P. 175-185, also provides that the defendant must agree to the terms of the ARD, and that after he has completed the program successfully, the charges against him will be dismissed, upon order of court. If he does not complete and ARD successfully, he may be prosecuted for the offense with which he was charged. Commonwealth v. Lutz, 508 Pa. 297, 303, 495 A.2d 928, 931 (1985).
(7) Accelerated Rehabilitative Disposition or other preliminary disposition of any charge of violating this section may be revoked and the court shall direct the attorney for the Commonwealth to proceed on the charges as prescibed in general rules if the defendant:
(i) is charged with or commits any crime enumerated in Title 18....
There has been no pretrial accelerated rehabilitative disposition of Appellee‘s first case. Appellee was terminated from the ARD program after he pled guilty to violating the drunk driving statute in September. Appellee must now face trial on the charges stemming from the earlier incident. I believe that if Appellee is found guilty on the charges for which he had sought ARD, he could be sentenced as a second time offender. Appellee would then properly be receiving the harsh penalty which the Legislature intended for those who repeatedly violated the statutе. If, however, Appellee were to be found not guilty, he would not be in the unenviable position suggested by the Majority
In my view, if Appellee is convicted on those charges for which he had sought ARD, he could be sentenced as a second time offender. If, however, he is not convicted, he will not have received undue punishment. Accordingly, I would affirm the trial court‘s decision to sentence Appellee as a first offender for the conviction which arose from the September incident.
Notes
For the purpose of determining whether a conviction is a first, second or third or subsequent conviction for the purpose of sentencing under this section, the term “conviction” includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal procеedings on a complaint alleging a violation of this section.
“[E]ntering” into a diversion agreement is a conviction for purposes of enhancing sentence. If the drafters had intended that diversion would operate as a conviction only upon its completion, they could easily have said so.
238 Kan. at 555, 712 P.2d at 1256.