Commonwealth v. ReebCommonwealth v. Reeb
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This аppeal is from the judgment of sentence of the Court of Common Pleas of Delaware County. Appellant was
On appeal, appellant argues that the lower court erred in sentencing him as a second offender under
(e) Penalty.—
(1) Any person violating any of the provisions of this section is guilty of a misdemeаnor of the second degree and the sentencing court shall order the person to pay afine of not less than $300 and serve a minimum term of imprisonment of:
(1) not less than 48 consecutive hours.
(ii) not less than 30 days if the person has previously been convicted of an offеnse 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 a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.
Rulеs 175 through 186 of the Pennsylvania Rules of Criminal Procedure relate to Accelerated Rehabilitative Disposition in court cases. Pa.R.Crim.P., Rules 175-86, 42 Pa.C.S.A. Rule 178, entitled “Hearing, Explanation of Program,” provides specifically as follows in regard tо the ARD hearing.
Hearing on a motion for accelerated rehabilitative disposition shall be in open court in the presence of the defendant, the defendant’s attorney, the attorney for the Commonwealth, and any victims who аttend. At such hearing, it shall be ascertained on the record whether the defendant understands that:
(1) acceptance into and satisfactory completion of the accelerated rehabilitative disposition program offers the defendant an opportunity to earn a dismissal of the pending charges;
(2) should the defendant fail to complete the program satisfactorily, the defendant may be prosecuted as provided by law; and
(3) the defendant must agree that, if accepted into the program, the defendant waives the appropriate statute oflimitations and the defendant’s right to a speedy trial under any applicable Federal or State constitutional prоvisions, statutes or rules of court during the period of enrollment in the program.
Comment: Although acceptance into an ARD program is not intended to constitute a conviction under these rules, it may be statutorily construed as a conviction for purposes of computing sentences on subsequent convictions. See, e.g., Vehicle Code§ 3731(e)(2) ____
Pa.R.Crim.P., Rule 178, 42 Pa.C.S.A.
In interpreting these enactments, we look to the following rules. The words of a statute must be construed according to their plain meaning.
Commonwealth v. Sojourner,
513 Pa. 36, 518 A.2d 1145 (1986);
Commonwealth v. Stanley,
498 Pa. 326, 446 A.2d 583 (1982). “Where the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”
Viewing the statute under the above standards, we find section 3732(e)(2) to be clear and unambiguous in its terms. The statute straightforwardly indicates that аcceptance of ARD in a DUI prosecution “shall” be considered a first conviction for purposes of sentencing when a defendant has been convicted of a subsequent DUI offense. The statute does not by its terms require that a defendant be specifically notified of this fact.
Rule 178 is also clear. That rule sets forth the explanation of the ARD program which must be given at the ARD hearing. Under the rule, three concepts must be explained to the defendant “on the record” for the purpose of the
The question arises as to the effect of the comment to Rule 178. It could be argued that the placement of this comment within Rule 178, which sets forth the notification requirements for the ARD hearing, indicates that notiсe must be provided at that hearing of the effect of ARD acceptance on future DUI convictions. We do not find the comment to possess this far-reaching meaning. Comments by the Supreme Court’s criminal rules committee are not binding оn the Superior Court, although those comments may be considered as effective aids in interpreting the meaning of the rule. Commonwealth v. Boyce, 304 Pa.Super. 27, 450 A.2d 83 (1982).
The comment to Rule 178 does not specifically require that the notice which appellant desires be given. To imply a requirement of such notice, it would be necessary to add this requirement to the already existing provisions of the rule. Our duty to interpret statutes does not include a right to add provisions which the legislature has omitted.
See Commonwealth v. Rieck Investment Corporation,
419 Pa. 52, 213 A.2d 277 (1965) (it is not for courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include);
Altieri v. Allentown Officers’ and Employees’ Retirement Board,
368 Pa. 176, 81 A.2d 884 (1951) (same);
Kusza v. Maximonis,
363 Pa. 479, 70 A.2d 329 (1950) (court cannot, under its powers of construction, supply omissions in a statute, espеcially where it appears the matter may have been intentionally omitted).
Appellant claims that the language of this court in previous decisions rеquires that notice be given to defendants as to the effect of ARD acceptance on the penalties for subsequent offenses. See Commonwealth v. Stewart, 374 Pa.Super. 256, 261, 542 A.2d 1010, 1013 (1988) (“[u]nder the new DUI law, 3 defendants are given notice of the sentence enhancement effect of ARD”); Commonwealth v. Becker, 366 Pa.Super. 54, 63, 530 A.2d 888, 892 (1987), appeal denied 520 Pa. 586, 551 A.2d 213 (1988) (quoting Frost, infra)) Commonwealth v. Frost, 342 Pa.Super. 173, 178, 492 A.2d 448, 450 (1985) (“Defendants who accept ARD for drunk driving are now told that an ARD will be considered a conviction for sentencing purposes in the event of an arrest for drunk driving within the next seven years.”).
We find these cases unpersuasive to a conclusion that nоtice of the effect of ARD acceptance is required. In none of these cases did the court undertake an analysis of the specific provisions of the relevant statute and rules to ascertain whether they require the notice which appellant desires. The conclusion that such notice must be given comes from a statement of the court in
Frost,
to the effect that the practice under the present drunk driving law is that defendants are given notice of the future effect of ARD acceptance at the ARD hearing.
Id.,
342 Pa.Superior Ct. at 178, 492 A.2d at 450. This statement was not based on any legal authority, but was rather a conclusion drawn by the court apparently upon its taking of judicial notice of purported prаctice under the new act. In the absence of a basis in statute or rule requiring such notice, we cannot legislate such a requirement, despite the reasoning of the court in
Frost
and other cases which have relied upon it.
4
Appellant also contends that Rules 185 and 186 of the rules of criminal procedure mandate a finding that notice be provided of the future consequences of an ARD accеptance. Those rules provide in pertinent part:
Rule 185. Procedure for Obtaining Order for Dismissal Upon Successful Completion of the Program
When the defendant shall have completed satisfactorily the program prescribed and complied with its conditions, the defendant may move the court for an order dismissing the charges____
Pa.R.Crim.P., Rule 185, 42 Pa.C.S.A.
Rule 186. Expungement Upon Successful Completion of ARD Program
(a) When the judge orders the dismissal of the charges against the defendant, the judge shall аlso order the expungement of the defendant’s arrest record----
Id., Rule 186.
We do not agree that these rules require a finding that the court conducting the ARD hearing must specifically inform the defendant of the future sentencing effect of his ARD acсeptance. A statute must be construed so as to give effect to all its provisions if possible.
Commonwealth v. Lobiondo,
501 Pa. 599, 462 A.2d 662 (1983);
In the instant case, Rules 178, 185, and 186, and section 3732(e)(2),
supra,
are
in pari materia
as they all relate to a
Judgment of sentence affirmed.
Notes
.
. Id. § (a)(4).
. Act of December 15, 1982, P.L. 1268, No. 289, effective January 14, 1983, referring to the present
. Although the Pennsylvania Supreme Court denied allocatur in
Commonwealth v. Becker, supra,
this denial does not amount to a holding by the supreme court that notice to the defendant of the enhancement effect of