Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellant.
Lawrence J. Hracho, Reading, for appellee.
Before Spaeth, President Judge, and Brosky, Rowley, Wieand, McEWEN, Cirillo, Olszewski, Montemuro and Tamilia, JJ.
This is a direct appeal by the Commonwealth from a judgment of sentence of imprisonment for 48 hours to 12 months. Appellee pled guilty to driving under the influence of alcohol*fn1 and disorderly conduct.*fn2 At the time of the sentencing on March 26, 1984, the Commonwealth requested the court to sentence appellee to a minimum of 30 days in jail pursuant to 75 Pa.C.S. § 3731(e)(1)(ii), the recidivist provision of the Drunk Driving Act, because it alleged that appellee had previously been convicted of driving while under the influence of alcohol within the last seven years. But because the criminal Information did not allege any prior convictions, the trial court refused to consider appellee as anything other than a first offender. The trial court sentenced him to 48 hours to 12 months imprisonment for driving while under the influence of alcohol and to a fine of $100 for disorderly conduct. Pursuant to 75 Pa.C.S. § 3731(e)(4) which grants the Commonwealth the right to appeal directly an order of court which imposes a sentence that does not meet the requirements of the Drunk Driving Act, the Commonwealth has appealed.
The Commonwealth raises three issues on appeal: 1) whether it must allege prior convictions in the criminal Information in order to seek sentencing for a defendant under 75 Pa.C.S. § 3731(e)(1)(ii)-(iv); 2) whether Commonwealth v. Campbell, 273 Pa. Super. 407, 417 A.2d 368 (1979), and Commonwealth v. Herstine, 264 Pa. Super. 414, 399 A.2d 1118 (1979) should be overruled; and 30 whether a defendant's due process rights can be protected by requiring the Commonwealth to establish sentence enhancing factors at the sentence proceedings. Argument before the court en banc was granted to consider these issues. We reverse.
The Drunk Driving Law, 75 Pa.C.S. § 3731, provides:
(a) Offense defined.--A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
(2) under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, NO. 64) known as 'The Controlled Substance, Drug, Device and Cosmetic Act,' to a degree which rendes the person incapable of safe driving;
(3) under the combined influence of alcohol and any controlled substance to a degree which renders the person incapable of safe driving; or
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
Subsection (e)(1) of this statute sets forth the penalty to be imposed for ...