Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at No. CC 8604953.
Sean K. Code, Assistant District Attorney, Pittsburgh, for Com.
Raymond J. Seals, Pittsburgh, for appellee.
Kelly, Popovich and Watkins, JJ.
[ 365 Pa. Super. Page 14]
This is an appeal from the judgment of sentence which was imposed upon appellee, Thomas Kearns, after he entered
[ 365 Pa. Super. Page 15]
a plea of guilty to two (2) counts of driving under the influence of alcohol or a controlled substance (75 Pa.C.S.A. § 3731(a)(1) and (4)). The prosecution filed a motion to modify appellant's sentence of not less than forty-eight (48) hours to six (6) months in prison with alternate housing approved at Arc House. This motion was denied, and this appeal followed. We must remand the matter for reasons herein stated.
The prosecution contends on appeal that appellee should have been sentenced to a mandatory minimum sentence of thirty (30) days in prison because appellee had been convicted previously of driving under the influence.*fn1 We agree.
The pertinent sections of the statute, 75 Pa.C.S.A. § 3731, reads as follows:
§ 3731. Driving under influence of alcohol or controlled substance
(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 renders 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.
[ 365 Pa. Super. Page 16]
(3) The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the ...