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COMMONWEALTH PENNSYLVANIA v. LLOYD E. HESS (12/31/85)

filed: December 31, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LLOYD E. HESS



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Berks, County, Criminal No. 84114001.

COUNSEL

Stuart Suss, Assistant District Attorney, Reading, for Com., appellant.

Byran Yatron, Reading, for appellee.

Spaeth, President Judge, and Brosky, Rowley, Wieand, McEwen, Cirillo, Olszewski, Montemuro and Tamilia, JJ.

Author: Rowley

[ 348 Pa. Super. Page 601]

OPINION OF THE COURT

This is a direct appeal by the Commonwealth from a judgment of sentence of two days to twelve months imprisonment for driving while under the influence of alcohol. Appellee pled guilty to driving while under the influence of alcohol and driving on the right side of the roadway in violation of 75 Pa.C.S. §§ 3731 and 3301(a) respectively. At the time of sentencing on October 26, 1984, the trial court refused to consider any prior convictions of appellee because the criminal Information did not allege any prior convictions. Therefore, although the Commonwealth believed appellee to have been convicted within the last seven

[ 348 Pa. Super. Page 602]

    years for driving while under the influence of alcohol and 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 Law, appellee was sentenced to only two days to twelve months imprisonment for driving while under the influence of alcohol and to a fine of $25 for driving on the right side of the road. Appellee immediately began to serve his sentence, and the Commonwealth appealed.

The Commonwealth raises three issues on appeal: 1) whether the Commonwealth 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 712 (1980), Commonwealth v. Longo, 269 Pa. Super. 502, 410 A.2d 368 (1979), and Commonwealth v. Herstine, 264 Pa. Super. 414, 399 A.2d 1118 (1979) should be overruled; and 3) whether a defendant's due process rights can be protected by requiring the Commonwealth to establish sentence enhancing factors at the sentence proceeding. Argument before the Court en banc was granted to consider these issues as well as the issue raised by appellee that to remand his case for resentencing after he has fully served his original sentence would violate the Double Jeopardy Clause of the constitution. We reverse and remand for resentencing.

The precise issues raised by the Commonwealth in this case were also presented in Commonwealth v. Reagan, 348 Pa. Super. 589, 502 A.2d 702 (1985). In that case, we held that the Commonwealth need not aver prior convictions under the Drunk Driving Law in the criminal Information, but must do so either after conviction and before sentencing or before a plea is entered.

In the instant case, although appellee pled guilty to driving while under the influence of alcohol, he does not allege that his plea was not knowing, intelligent, and voluntary. Therefore, the timeliness of the notice of the recidivist provisions is not an issue. However, because ...


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