Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, at No. CC8401934A.
Joel M. Kaufman, Assistant District Attorney, Pittsburgh, for Com.
M. Alberts, Pittsburgh, for appellee.
Brosky, Olszewski and Popovich, JJ.
[ 352 Pa. Super. Page 300]
This is an appeal by the Commonwealth, pursuant to 75 Pa.C.S. § 3731 (e)(4), from the judgment of sentence imposed after appellee pleaded guilty to driving under the influence of alcohol, 75 Pa.C.S. § 3731 (a). The Commonwealth contends that by sentencing appellee to 48 hours imprisonment and imposing a $300.00 fine, the trial court violated the mandatory sentencing requirements of 75 Pa.C.S.
[ 352 Pa. Super. Page 301]
§ 3731 (e)(1)(ii), which calls for a minimum term of imprisonment of not less than 30 days for violators with a previous conviction under the section. We agree and remand for resentencing.
Appellee was arrested for drunk driving on February 13, 1984 and submitted to a breathalyzer test which registered a blood alcohol content level of .26%, more than twice the legal limit. At trial, appellee pleaded guilty to a charge of driving under the influence and the trial court sentenced him at the same proceeding. When asked by the trial court whether this offense was appellee's first, the Commonwealth answered that appellee had completed ARD under the new act and that, for sentencing purposes, the instant offense would be appellee's second. However, the trial court immediately responded:
THE COURT: No. ARD is not a conviction as far as this Court is concerned. CC8401934A wherein this actor pled guilty to one count of violation of the Motor Vehicle Code, now towit, the 7th day of June, 1984, the defendant in open Court with counsel is sentenced to undergo not less than 48 hours in the Allegheny County Jail; pay costs of prosecution, and pay $300 to the use of Allegheny County, and undergo alcoholic evaluation.
This was clearly a misapplication of the law by the trial court. 75 Pa.C.S. § 3731 (e)(2) defines the term conviction for sentencing purposes under the act:
Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth, or subsequent conviction.
(Emphasis added). Thus, it is clear that appellee's ARD in 1983 rendered him a second offender ...