Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

COMMONWEALTH PENNSYLVANIA v. JOHN J. WATERS (01/13/87)

SUPERIOR COURT OF PENNSYLVANIA


submitted: January 13, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOHN J. WATERS, A/K/A JOHN WATERS

Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 84-09-2430.

COUNSEL

Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.

Cavanaugh, Wickersham and McEwen, JJ.

Author: Wickersham

[ 361 Pa. Super. Page 155]

On April 21, 1984, John J. Waters was arrested and charged with driving under the influence of alcohol in violation of 75 Pa.C.S.A. § 3731. On May 15, 1985 he entered a plea of nolo contendere and was adjudicated guilty. This was his third conviction within seven years,

[ 361 Pa. Super. Page 156]

    and the Commonwealth argued that subsection 3731(e)(1)(iii) required the imposition of a minimum term of ninety (90) days imprisonment.*fn1

Section 3731(e) provides in pertinent part:

(e) Penalty. --

(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:

(i) not less than 48 consecutive hours.

(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section

[ 361 Pa. Super. Page 157]

    or of an equivalent offense in this or other jurisdictions within the previous seven years.

(iv) not less than one year if the person has three times previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

(2) 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.

75 Pa.C.S.A. § 3731(e)(1), (2).

The trial court, however, sentenced appellee to six months probation under the provisions of 35 Pa.S.A. § 780-118(f) which provides:

(f) If, after conviction, the defendant requests probation with treatment or civil commitment for treatment in lieu of criminal punishment the court may appoint a qualified physician to advise the court in writing whether it would be preferable for the purposes of treatment and rehabilitation for him to receive a suspended sentence and probation on the condition that he undergo education and treatment for drug abuse and drug dependency, or to be committed pursuant to the Mental Health and Mental Retardation Act of 1966 for treatment in lieu of criminal punishment, or to receive criminal incarceration. A copy of the physician's report shall be furnished the court, the defendant and the government attorney. The court shall exercise its discretion whether to accept the physician's advice.

The Commonwealth has appealed and states the issue before us as:

Where defendant is convicted of driving under the influence of alcohol, may the lower court circumvent the mandatory minimum sentencing provisions of the Drunk

[ 361 Pa. Super. Page 158]

Driving Law by sentencing defendant to probation under Section 18 of the Drug Act?

Brief for Appellant at 3.

In Commonwealth v. Sojourner, 513 Pa. 36, 39, 518 A.2d 1145, 1146-1148 (1986), Chief Justice Nix held:

The first question is whether the legislature has authority to remove from the court the right to suspend sentence and impose probation. This Court has long held that establishment of punishment for criminal acts is well within the confines of legislative authority . . . . For example, we recognized in Commonwealth v. Wright, [508 Pa. 25, 494 A.2d 354 (1985)], that the legislature, in promulgation of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712(c) ". . . restrict[ed] the judge's discretion to be lenient in imposing sentence. When the statute is applicable, the court lacks authority to place a convicted offender on probation or suspend sentence."

Having closely examined the penalty provisions of section 3731, we are satisfied that the aforementioned provisions are clear and free from ambiguity. Section 3731(e)(1)(i) explicitly provides that ". . . the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment . . . ." (Emphasis added.) 75 Pa.C.S. § 3731(e)(1)(i). The word "shall" as used in a statute is generally regarded as mandatory, i.e., imposing a duty upon the party to whom the statute is directed. We find no basis for a contrary interpretation of the word "shall" in the context of section 3731.

Thus, the statute itself explicitly states that the sentences specified are "mandatory." In addition, the legislature not only has established specific penalties for violators of section 3731, but has provided also a mechanism under section 3731(e)(4) whereby "[t]he Commonwealth has the right to appeal directly to the Superior Court any order of court which imposes a sentence for violation of

[ 361 Pa. Super. Page 159]

    this section which does not meet the requirements of this section." In view of the long-standing judicial policy of limiting review of the sentencing discretion in this Commonwealth, the express provision for a direct appeal for the sole purpose of challenging a sentence is a clear expression of this legislative intent to make these minimum provisions mandatory. (Citations and footnotes omitted).

We find untenable appellee's contention that Section 18 is a statute directed to a specific class of offenders, while Section 3731 is a purportedly general sentencing statute. Section 18 applies to all "non-violent," drug or alcohol dependent offenders. On the other hand, section 3731 applies specifically to "drunk drivers" -- it defines the crime defendant committed and the penalty, a mandatory minimum sentence of imprisonment. The drunk driving Law is hardly a general sentencing provision as appellee contends. A specific, newly enacted statute such as section 3731, applying only to drunk drivers and providing for a mandatory minimum sentence for the specific offense of drunk driving, must be construed to take precedence over Section 18, a more general statute enacted over ten years before section 3731, permitting suspension of sentence and imposition of probation for drug or alcohol dependent offenders, convicted of any non-violent crime. See 1 Pa.C.S.A. §§ 1933, 1936.

Finally, construing Section 18 to be wholly inapplicable to persons convicted of drunk driving pursuant to section 3731 does not result in the repeal of Section 18 by implication, as appellee contends. On the contrary, under such a construction of the two statutes, Section 18 continues to apply in full force and effect to all drug or alcohol dependent, non-violent offenders. It simply does not, and should not, apply to drunk drivers.

Reversed and remanded for resentencing in accordance with this opinion. Jurisdiction is relinquished.

Disposition

Reversed and remanded for resentencing in accordance with this opinion. Jurisdiction is relinquished.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.