634 A.2d 1147 | Pa. Super. Ct. | 1993
Lead Opinion
Appellant was convicted, following the entry of a guilty plea, on a charge of Driving Under the Influence. A passenger in the car driven by Appellant sustained serious bodily injuries as a result of the accident which led to Appellant’s arrest. Test results indicated that Appellant had a .13 percent blood alcohol level. At the sentencing colloquy Appellant claimed he was forced off the road to avoid an oncoming Nissan automobile that was in his lane of travel.
The question presented is whether Section 303.5(b) of the sentencing guidelines is to be applied absent evidence to establish that defendant’s driving under the influence caused the accident resulting in serious bodily injury to the victim. In order to determine whether the court properly applied the § 303.5(b) guidelines, we must determine whether the guidelines require that causation be proven.
We begin by noting that the sentencing issue presented in this case does not require us to determine whether a substantial question exists to permit the appeal since discretionary review is not implicated. This issue concerns the court’s imposition of a sentence based on its determination that the guidelines apply to the facts of this case. Whether the guideline section applies is a legal not discretionary matter. We found in Commonwealth v. Johnson, 421 Pa.Super. 433, 618 A.2d 415 (1992), that where the issue on appeal involves a legal question [an improper calculation of a prior record score], a direct appeal is appropriate and Appellant has no need to petition for allowance of appeal since no discretionary sentencing matter is at issue. Similarly, because the case at bar concerns a legal question, not a discretionary one, we address the merits of Appellant’s sentencing issue as a direct appeal.
The provision at issue, 204 Pa.Code 303.5(b), reads as follows:
§ 303.5. Driving under the influence of alcohol or controlled substance and homicide by vehicle while driving under the influence.
*460 (b) When one or more victims suffered serious bodily injury, the guideline sentence recommendations (in months) for convictions under 75 Pa.C.S. § 3731 (relating to driving under the influence of alcohol or controlled substance) are as follows:
Standard Aggravated Mitigated
Conviction Range Range Range
1st 4-6 6-8 2-4
This section does not state whether the guidelines apply in a situation in which there is no proof that defendant’s intoxication caused the accident. However, the comment accompanying this text states:
Prior Guidelines:
The original guidelines had specific penalties for driving under the influence (DUI). These were eliminated on January 2, 1986 because they were inconsistent with the mandatory minimum sentences for this crime, which were enacted after the 1982 guidelines were promulgated.
This section was amended to provide sentencing recommendations for the offense of DUI when there is serious bodily injury as a result of the DUI. [underlined for emphasis].
This language requires that causation be established in order to apply the guideline ranges of this section.
Such a requirement is consistent with the statutory provisions for offenses involving homicide by vehicle while driving under the influence. The DUI homicide statute, 75 Pa.S.C.A. § 3735, and the relevant case law require that the Commonwealth prove that the conduct of the defendant caused the accident resulting in the death. The language of the homicide by vehicle section reads in pertinent part as follows:
§ 3735. Homicide by vehicle while driving under influence
(a) Offense defined — Any person who unintentionally causes the death of another person as the direct result of a violation of § 3731 (relating to driving under the influence of alcohol or controlled substance) and who is guilty of a felony of the third degree when the violation is the cause of death*461 and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.
75 Pa.S.C.A. § 3735.
While the language of the homicide statute is more specific than that found in § 303.5(b), in light of the comments accompanying § 303.5(b) and the general rationale for requiring causation which has been referred to in cases interpreting the homicide statute, we find causation inherently required, absent a regulation to the contrary.
In decisions involving the homicide of a victim resulting from driving under the influence, Pennsylvania Courts have consistently required a nexus between the death of the victim and the defendant’s driving under the influence. Our Supreme Court in Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988) determined that under the homicide by vehicle statute, “a determination must be made as to whether death was a probable consequence of the defendant’s conduct.” Id. at 951. The Court continued to explain that the “causation theory properly applied in criminal cases is not the same as the civil ‘proximate cause’ standard. The defendant’s conduct must be a direct and substantial cause of the injury.” Id. In Uhrinek, the appellant struck and killed a pedestrian who was crossing the street with three friends. According to Appellant’s theory, “the decedent was wearing sunglasses at one in the morning, had just left a party, and caused the accident by suddenly jaywalking into the path of appellant’s car with disregard for his safety due to his intoxication.” Id. 544 A.2d at 952. The Supreme Court reversed Appellant’s conviction because evidence of the deceased pedestrian’s intoxication had been excluded. The Court determined that the refusal to permit appellant to introduce evidence of the decedent’s intoxication and resulting inference that it was his own disregard that caused the accident, prevented appellant from challenging the causal connection between his conduct and the accident. Id. at 952. The Court again held in Commonwealth v. Lenhart, 520 Pa. 189, 553 A.2d 909 (1989), that under § 3735, a DUI violation must be the cause of death in order to sustain a conviction. Because the trial judge stated on the record that
Therefore, we find that a DUI violation must be the cause of the resulting serious bodily injury in order to apply section 303.5 of the sentencing guidelines. In the instant case, the evidence was speculative on the cause of the victim’s injuries. Judge Harold E. Sheely stated in his sentencing order that “the Court cannot make a definite finding as to what causation was as far as this accident was concerned.” See Order of February 23, 1993. Because no causal connection was established between Appellant’s intoxication and the victim’s injuries, the court committed an error of law in applying the recommended sentencing guidelines found in § 303.5. We vacate the judgment of sentence and remand for resentencing.
Judgment of sentence vacated and case remanded to trial court for resentencing.
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Concurrence Opinion
concurring.
I agree with the ultimate result reached by the majority in the instant case. I write separately to express my concern