Commonwealth v. StewartCommonwealth v. Stewart
- Reporters:
- , ,
- Before:
- Olszewski
Lead Opinion
This is an appeal by the Commonwealth from the judgment of sentence imposed following a guilty plea to a charge of driving under the influence. The sole question presented is whether an individual who has successfully completed a period of accelerated rehabilitation disposition (herein after A.R.D.) arising out of an arrest under section 3731 of the Motor Vehicle Code of 1976,
On August 24, 1982, David Stewart was arrested on a charge of driving under the influence in violation of
On appeal, the Commonwealth argues that Stewart should have been sentenced as a second offender as the new drunk driving law specifically provides that acceptance of A.R.D. for a D.U.I. offense is to be considered a conviction for sentencing enhancement purposes.
In Kornicki, we stated that “(s)ection 3731 . . . requires a sentencing court to consider a conviction which had occurred before the new law went into effect in imposing sentence on a subsequent conviction,” Commonwealth v. Kopycinski, 353 Pa.Super. 387, 389, 510 A.2d 365, 366 (1986). We note that Kornicki is factually distinguishable from the case at bar and therefore does not lend support to the Commonwealth’s argument. In Kornicki, as in the case cited therein, Kopycinski, the defendant had prior *259drunk driving convictions under the old drunk driving law, and, as such, we held that the Commonwealth was entitled to pursue an enhancement of the sentence entered by the trial court. In the case at bar, we cannot accept that Stewart’s acceptance and completion of A.R.D. can be considered a conviction under the new drunk driving law.
Sentencing for D.U.I. convictions is governed by
(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 the 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 a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.
It is clear that the statute contains provisions for separate treatment of a person previously convicted of an offense under this section or, an equivalent offense and for those who had accepted A.R.D. of the charge brought under this section.
In construing statutes, we are to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S.A. 1921(a). When the language of a statute is clear and unambiguous, we are to construe its provisions in accordance with their *260plain meaning and common usage. Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986). When the words are not explicit, however, the intention of the General Assembly may be ascertained by considering other matters.
The Commonwealth asserts that the definitive word in
The construction of the statute urged upon us by appellant would require that we ignore a substantial portion of the statute requiring that the prior charge given A.R.D. treatment must be brought under that section to be considered as a first conviction. Yet, in construing the language of a statute, the court must assume that the legislature intended that every word of the statute would have effect. See Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979).
We find that the language of
Both parties cite Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985) and Commonwealth v. Frost, 342 Pa.Super. 173, 492 A.2d 448 (1985). In Frost, supra, the defendant had, in 1979, successfully completed a period of A.R.D. arising out of an arrest under the old D.U.I. law and the charge was dismissed. In November 1983 defendant pled guilty to a charge of D.U.I. under the new law. At sentencing, the judge determined that
This court determined that the legislature did not intend an A.R.D. under the old law to be considered a prior conviction for mandatory sentencing provisions of
In Godsey, supra, the defendant had a prior arrest for D.U.I. under the old D.U.I. law in 1981 and was placed in A.R.D. Following his arrest in 1984 under the new D.U.I. law, defendant entered a guilty plea and received the mandatory sentence for a second conviction of thirty days to six months imprisonment. On appeal, a panel of this court held that Godsey could not be convicted as a second offender because the legislature did not intend that
We note that there is dicta in Frost to support the Commonwealth’s interpretation of the statute:
“Based upon all of the foregoing we hold thatSection 3731(e)(2) applies only to acceptances of A.R.D. since January 14, 1983, and therefore an acceptance of A.R.D. which occurred before that date cannot be considered a conviction for purposes of applying the sentencing provisions ofSection 3731(e)(1) .”
Frost at 178, 492 A.2d at 450.
Likewise, we find that the following language in Godsey, supra supports the appellee’s position:
It is further provided under 75 Pa.C.S.A. 3731(e)(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.’
The language above clearly applies to that section as presently written. Any doubt in construing a penal statute must be resolved in favor of the accused. (Citations omitted) If the legislature intended to include A.R.D. disposition under prior enactments, it could easi*263ly have incorporated language eliminating any ambiguity.” (Emphasis in original)
Godsey at 29, 492 A.2d at 47 (1985).
The reasoning employed in Frost is based upon a theory similar to estoppel, i.e., the defendant did not and could not know when he accepted A.R.D. that it could even be counted as a first offense if the A.R.D. was accepted prior to the effective date of the new Act. Godsey, on the other hand, bases its reasoning on the fact that the new D.U.I. Act refers to A.R.D. cases which were “brought under this section” and construes those words as meaning the section as now written. Following the Godsey reasoning, the A.R.D. disposition is this case would not count because it was not “brought under this section”.
In Godsey and Frost, we held that
When a criminal statute is susceptible of two constructions, both reasonable, it is not the construction that is supported by the greater reason that is to prevail but the one that operates in favor of the defendant’s liberty. Commonwealth v. Mourar, 349 Pa.Super. 583, 595, 504 A.2d 197, 204, allowance of appeal granted, 511 Pa. 619, 515 A.2d 898 (1986); Commonwealth v. Wolfe, 349 Pa.Super, 415, 418-19, 503 A.2d 435, 437, allowance of appeal granted, 514 Pa. 617, 521 A.2d 932 (1986). A penal statute must be strictly construed in favor of the defendant. Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978).
If the legislature intended to include A.R.D. disposition under prior enactments, it could easily have incorporated language eliminating any ambiguity (citations omitted). The rationale behind strict construction of a penal statute is the injustice of convicting a person without clear notice to him that his contemplated conduct is unlawful, as well as notice of the penalties, Broughton, supra, 257 Pa.Superior Ct. at 377, 390 A.2d at 1286. For the foregoing reasons we affirm the judgment of sentence.
Judgment of sentence affirmed.
POPOVICH, J., dissents.Notes
. Act of June 17, 1976, P.L. 162, No. 81, § 1, effective July 1, 1977.
. Act of December 15, 1982, P.L. 1268, No. 289, § 9, effective January 14, 1983.
. 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.
Dissenting Opinion
dissenting:
I dissent to the Majority’s holding that an individual arrested under the 1976 Motor Vehicle Code, and his acceptance into an Accelerated Rehabilitative Disposition program (ARD) in effect at the time of the 1982 Motor Vehicle Code, is not to be treated as a repeat offender so as to be liable to *265a mandatory 30-day minimum sentence under
Recently, an en banc panel of this Court concluded that the mere “acceptance” into ARD is the equivalent of a “conviction” under
Accordingly, read in a common sense fashion (
The statute in question is subject to such an interpretation without engaging in any legerdemain. Therefore, the Majority construing the statute in question to the contrary prompts my dissent.