No. 455 Harrisburg, 1984, Appeal from the Judgment of Sentence in the Court of Common Pleas of Cumberland County, Criminal Division, No. 319 Criminal 1984
Gary Lysaght, Lemoyne, for appellant.
Merle L. Ebert, Assistant District Attorney, Harrisburg, for Com., appellee.
Tamilia, Lipez and Bucher, JJ.*fn*
[ 342 Pa. Super. Page 26]
This appeal involves the mandatory sentencing provisions of the current Pennsylvania law, driving under the influence of alcohol or controlled substance, penalty 75 Pa.C.S.A. § 3731(e).
On October 4, 1981, appellant was arrested for driving under the influence of alcohol and was thereafter placed in the Accelerated Rehabilitation Disposition Program (A.R.D.). Subsequently, on February 24, 1984, appellant was again arrested for driving under the influence. Following the entry of a guilty plea on June 22, 1984, appellant received the mandatory sentence for a second conviction of not less than thirty days nor more than six months imprisonment and a fine of $300. A timely motion for modification
[ 342 Pa. Super. Page 27]
of sentence was filed and denied without a hearing, and this appeal followed.
The appellant's arguments are all variations of the same theme, that a prior A.R.D. should not be considered a first offense under the current law (75 Pa.C.S.A. § 3731(e))*fn1 when it was not so considered prior to its effective date. This appears to be a matter of first impression in Pennsylvania. Appellant's argument is threefold:
1.) Application of the mandatory sentencing treating appellant as a repeat offender violates the constitutional proscription against ex post facto laws.
2.) His acceptance of A.R.D. was not knowing, intelligent and voluntary.
3.) The legislature did not intend section 3731(e) to ...