*1 Pennsylvania COMMONWEALTH of TOBIN, Appellant. John Superior Pennsylvania. Court
Submitted Nov. Jan. Decided Jay Stillman, Defender, Asst. Public Williamsport, appellant.
Nancy Butts, L. Asst. Dist. Atty., Williamsport, for Com. CAVANAUGH, ROWLEY, and Judge, President Before JOHNSON, CIRILLO, OLSZEWSKI, KELLY, WIEAND, ELLIOTT, FORD JJ. and HUDOCK *2 CIRILLO, Judge: in of sentence entered judgment is an from a appeal
This County. Appel- Pleas of Lycoming the Court of Common driving for July on was arrested lant John Tobin (DUI). 75 alcohol Pa.C.S. the influence of under § later, was February again on months Seven 18,1991, Tobin pled offense. On March for a DUI arrested for sentenced both charges. to Tobin was both guilty conviction, On the first the on July offenses to days of seven five sentencing imposed a sentence court the the conviction court on second imprisonment; months to months forty-five days eighteen a of imposed sentence sentence, the latter Tobin contends that imprisonment. offender, as a second upon Tobin’s status which was based error. 3731(e)(1)(h),was 75 Pa.C.S. see the issue raised in again once with presented This court 601 A.2d Beatty, (1992): sentencing proper the use the meth- Did court of a offense for determining for a conviction od provisions of 75 the enhancement purposes applying of 3731(e)? 3731(e) of the Motor Vehicle Section Pa.C.S. § provides: Code
(e) Penalty.— of provisions the this
(1) violating any of Any person degree of the second guilty section is of a misdemeanor the person pay order sentencing and the court shall term of and serve a minimum fine of not less than $300 imprisonment of:
(i) not than hours. less 48 consecutive (ii) person previously the has days less than SO not if this section or an been convicted of offense jurisdictions in or other this equivalent an offense seven previous years. within the (iii) not less if days person than 90 has twice been of an previously convicted offense under this or of in equivalent section an offense this or other previous years. within the jurisdictions seven (iv) year not less than if the has person one three times previously been convicted of an offense under this or of in equivalent section offense this or other previous jurisdictions years. within the seven 3731(e)(1) (emphasis added). 75 Pa.C.S. § The facts of this case differ those in Beatty. slightly from Nonetheless, principles espoused that case here apply equal vigor. with In court utilized 3731(e)(l)(iv) provision the enhancement section and sen- Beatty mandatory tenced to a minimum term of imprison- year ment of one an offense which on July occurred sentencing date, 5, 1990, 1989. As July Beatty had *3 9, offense, three to prior committed offenses the 1989 July guilty plea but his for one of the three offenses was not 9, entered until four his months 1989 offense. July after court, applying This the law as stated by supreme our court Kimmel, in Commonwealth v. 523 Pa.
(1989), that the sentencing held court erred when it used the date sentencing of for the current as the offense “anchor” or calculating “look-back” date for the penalty enhancement 3731(e)(1). under section determining
When
penalty enhancement
section
3731(e)(1),
date of
sentencing
the
court
the
must utilize
and determine the
the
offense
which
number
the
defendant
of prior
convictions
to
be
sentenced,
[1]
as of
date; “a present
that
and a previous
violation
conviction
period.”
constitute the look-back
Commonwealth v.
411
Beatty,
at
601
A.2d
Kimmel,
quoting Commonwealth v.
at
523 Pa. at
111,
1. guilty’ guilty The term “convicted" means “found not and “found Beasley, and sentenced.” Pa. A.2d 460 (1984). to both offenses on Here, guilty plea entered his Tobin Thus, to his first offense guilty plea March his the commission of his second not entered until after was date of his second offense had no offense. On the Tobin 3731(e). Not- conviction under this title. Pa.C.S. prior the that did on withstanding fact Tobin have offense offense, the of the language penalty the date of his second person previ- enhancement statute is clear—a must have a conviction ous of an offense under this section within the in order to to the enhanced previous years subject seven be Id. mandatory minimum sentences. when Consequently, offense, his sentencing Tobin for second the court erred it the enhancement applied penalty provi- when 3731(e)(l)(ii). Kimmel, supra; su- sion section pra. of his delay entry guilty plea
Due to the fortuitous
the
offense,
on the
application
first
law works
favor, and,
glance, appears
at first
Tobin’s
bestow
unjust
unwarranted and
benefit. Our General Assembly,
however,
qualified
legisla-
has
the recidivist
unambiguously
tion,
and
“deliberately us[ing]
‘violating’
words
‘convic-
Kimmel,
computation.”
tion’ to anchor
ends of the
both
Moreover,
does not
It
not intended that the
penalty prescribed
was
heavier
descend
for the commission of a second offense should
one,
upon anyone except
incorrigible
being
who after
his
If
reproved,
pen-
“still hardeneth
neck.”
the heavier
prescribed
upon
for the second violation ...
is visited
alty
*4
the one
has not had the
of the
of a
reproof
who
benefit
conviction,
purpose
first
then the
of the statute is lost.
Sutton,
v.
407, 413,
Commonwealth
125
189 A.
Pa.Super.
Commonwealth,
v.
556,
(1937)
Morgan
(quoting
558
170
400,
(1916)).
legislation
186
132
recidivist
Ky.
S.W.
Other
See,
Common-
in
e.g.,
interpreted
has been
this manner.
477,
(1991)
Eyster,
wealth v.
401
did not
commission of offense upon which sentence
being
was currently
imposed); Commonwealth v. Dicker-
son,
249,
404 Pa.Super.
(1991)
590 A.2d
(for
766
prior
conviction to serve as enhancer requiring
mini-
mandatory
mum sentence for
perpetrators
recidivist
of certain violent
crimes,
precede
conviction must
commission of later of-
fense);
Cozzone,
406 Pa.Super.
cf.
(1991) (motorist
prior
had
conviction for driv-
ing
alcohol,
the influence of
within meaning of man-
datory minimum sentence provision, where motorist had
previously been found guilty of the first offense but was
not sentenced on the first conviction until after commission
offense).
of second
Dickerson,
As
we observed in
this
principle is the
majority rule
the country. 404 Pa.Super.
258-60,
citing Annot.,
at
590
A.2d at
Accordingly, we hold that
the sentencing court erred
applied
when it
the enhancement provision of section
3731(e)(l)(ii) in sentencing
his second offense.
Kimmel, supra; Beatty,
supra.
prior conviction
“[F]or
enhancer,
to serve as an
conviction must
...
precede
commission
Dickerson,
later
offense.”
404
Pa.Super.
at
For the foregoing reasons, judgment we vacate of sen- tence and remand for resentencing consistent with this decision. Jurisdiction relinquished.
HUDOCK, J., files a dissenting statement.
Dickerson,
2. As this court
holding
stated in
suggest
our
is not meant to
court,
fashioning
that
appropriate
when
sentence
offense,
for the second
cannot
consider the fact of the
offense.
“
Pa.Super.
connections,
404
at 261 n.
Respectfully,
411 Pa.Super.
(Hudock, J.,
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