No. 98 March Term 1977, Appeal from Judgment of Sentence, Common Pleas Court of March 11, 1976, Adams County, at No. CC-53-76.
Gary E. Hartman, Assistant Public Defender, Gettysburg, for appellant.
Oscar F. Spicer, District Attorney, Gettysburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 299]
On January 29, 1976, a jury found appellant guilty on one count of driving while under the influence of intoxicating beverages, and on a second count of driving while his operating privileges were suspended. Appellant was sentenced on each count to 11 1/2 to 23 months in prison, a fine of $100, and costs, the prison terms to be concurrent. On appeal he argues that since alcoholism is a disease, any prison sentence that does not include clinical or in-patient
[ 253 Pa. Super. Page 300]
medical care and therapy for the disease is cruel and unusual punishment.
A sentencing court has an obligation to consider the character of the defendant and the circumstances of the crime. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1975). Appellant acknowledges, indeed points out, that both the probation officer who prepared the pre-sentence report and the sentencing judge were familiar with him and his problem of alcoholism. The judge, in his memorandum opinion, stated that the sentence was severe because of appellant's previous driving record -- nine convictions for driving while his operating privileges were suspended and two convictions for driving while under the influence of intoxicating beverages. Given these circumstances, we cannot say that the sentence, which was well within the maximum (three years' imprisonment and a fine of $500 on each count), represented an abuse of discretion.
Appellant argues that "substantially all of the violations for which he has been convicted involve, directly or peripherally, the use and abuse of alcohol." Brief for Appellant at 4. It is not evident, however, how the nine convictions for operating while under suspension "involve[d] . . . the use and abuse of alcohol." Perhaps appellant means that he was under suspension because he had earlier been convicted of driving while under the influence of intoxicating beverages. This, however, does not lessen the seriousness of appellant's record. Granted that it may be very difficult for an alcoholic to stop drinking; it does not follow that it is equally difficult for him to stop driving. In other words, his compulsion to drink arises from causes that do not compel him to drive. He is addicted to alcohol. He is not addicted to driving; he drives because he cannot, will not, use some other method of transportation, or get someone else to drive him.
Thus, on the basis of appellant's record the sentencing judge could conclude that appellant had no regard for his legal responsibility not to drive, and that the only way to
[ 253 Pa. Super. Page 301]
impress him with that responsibility was to imprison him. It therefore cannot be maintained that the judge was sentencing appellant for doing something that was the result of a "disease" (accepting, for the sake of ...