Appeal from the Judgment in the court of Common Pleas of Allegheny County, Criminal No. CC8309612 (No. 00425 Pittsburgh 1984).
Joel M. Kaufman, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Mitchell A. Kaufman, Assistant Public Defender, Pittsburgh, for appellee.
Spaeth, President Judge, and Rowley and Wieand, JJ. Wieand, J., files a concurring opinion.
[ 347 Pa. Super. Page 240]
This is an appeal by the Commonwealth, pursuant to 75 Pa.C.S. § 3731(e)(4), from a judgment of sentence for driving under the influence of alcohol, 75 Pa.C.S. § 3731(a). The Commonwealth argues that by ordering appellee released on parole after 48 hours in jail, the trial court violated the provision of 75 Pa.C.S. § 3731(e)(1)(ii) that a person previously convicted of driving under the influence of alcohol -- as appellee had been -- "shall" be sentenced to a minimum term of imprisonment of "not less than 30 days." We agree and therefore vacate the judgment of sentence and remand for resentencing.
On March 5, 1984, appellee pleaded guilty to driving under the influence of alcohol. 75 Pa.C.S. § 3731(a)(1) and (4). The trial court knew that in 1982 appellee had been convicted of driving under the influence of alcohol, N.T. 3/5/84, 20-21, 25-26, but it refused to order appellee to serve a minimum term of imprisonment of not less than 30 days, as provided by 75 Pa.C.S. § 3731(e)(1)(ii).*fn1 The court
[ 347 Pa. Super. Page 241]
informed appellee that "since your offense occurred prior to the new act [Act of Dec. 15, 1982, P.L. 1268, No. 289, § 9, effective in 30 days], we may take that into account for the sentence, but will not impose thirty days on you but impose two days on you." N.T. 3/5/84, 25-26. The sentence in its entirety was as follows:
And now Mar 5 1984, 19 [ sic ] Defendant sentenced to pay a fine of $300.00 to the Commonwealth. Pay costs of prosecution, and undergo an imprisonment of not less than 48 hours or more than 6 months in the Allegheny County Jail and stand committed.
EO: DIE: SENTENCE EFFECTIVE
April 2, 1984 at 8:00 P.M. The court recommends alternative housing at Hummell House[.] Defendant to pay fine and costs at a rate as arranged by the Clerk of Courts. Defendant is hereby paroled at expiration of service of 48 hours minimum sentence. Defendant to report to AC [Allegheny County] Jail on Apr 2, 1984 at 8:00 P.M. Defendant to be released in the custody of a representative of Hummell House on condition he pay the costs of alternative housing forthwith.
On March 15, 1984, the Commonwealth filed a motion to modify sentence. In response, on April 3, 1984, the trial court modified appellee's sentence:
And Now April 3, 1984, after hearing in open court, Commonwealth's Motion to Modify Sentence is Granted. Sentence amended as follows.
And now April 3, 1984 Defendant sentenced to pay a fine of $300.00 to the Commonwealth. Pay costs of prosecution, and undergo an imprisonment of not less than 30 days or ...