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COMMONWEALTH PENNSYLVANIA v. THOMAS KORNICKI (08/27/86)

filed: August 27, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
THOMAS KORNICKI



Appeal from the Judgment of Sentence of the Court of common Pleas, Criminal Division, of Bucks County at No. 2094, 3582 of 1983.

COUNSEL

Andrew E. Demarest, Assistant District Attorney, Philadelphia, for Com., appellant.

Andrew F. Schneider, Bensalem, for appellee.

Cavanaugh, Wickersham and Roberts, JJ.

Author: Wickersham

[ 357 Pa. Super. Page 183]

This is a Commonwealth appeal from the judgment of sentence entered by the Honorable Leonard B. Sokolove of the Court of Common Pleas of Bucks County. A review of

[ 357 Pa. Super. Page 184]

    the record indicates that the defendant was improperly sentenced. We, therefore, reverse and remand.

On March 18, 1983, the defendant was arrested and charged with one count of driving under the influence in violation of 75 Pa.C.S. § 3731(a)(1). Defendant was arrested after an officer observed him drive through a stop sign, swerve his vehicle from one lane of traffic to another and nearly collide with a bridge abutment. In addition, the defendant failed numerous "field sobriety tests" and tested a .21% blood-alcohol content by breathalyzer examination. The defendant entered a plea of guilty to this charge on November 23, 1983.

On the same day, November 23, 1983, the defendant appeared before Judge Sokolove in a bench trial on an unrelated charge of driving under the influence. That charge arose on July 23, 1983 when defendant was arrested for speeding, driving under a suspended license, and driving under the influence in violation of 75 Pa.C.S. §§ 3731(a)(1), (a)(4). Defendant was clocked by a NASCAR unit at 64.2 miles per hour as he traveled down the highway. While in pursuit, the arresting officer observed the defendant lose control of his vehicle several times before apprehending him. The defendant refused to submit to a breathalyzer examination. Based upon the above evidence, the lower court found defendant guilty under that charge.

A sentencing colloquy proceeded thereafter, at which time the Commonwealth offered to the sentencing judge a total of four (4) DUI convictions for consideration. Those offered were two prior convictions of March 15, 1978 and March 21, 1981; the guilty plea entered November 23, 1983; and the court's finding of guilt on the same day. See Sentencing N.T. of 11/23/83 at 11. The judge, however, refused to consider the two prior convictions as they occurred before the effective date of the new recidivist provisions of 75 Pa.C.S. § 3731(e). The defendant, therefore, was sentenced to concurrent terms of incarceration of forty-eight (48) hours to twenty-three (23) months on the guilty

[ 357 Pa. Super. Page 185]

    plea, and thirty (30) days to twenty-three (23) months ...


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