Appeal from the Judgment of Sentence of October 1, 1985, in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC 8505672A.
Sean K. Code, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Larry P. Gaitens, Pittsburgh, for appellee.
Brosky, Beck and Popovich, JJ.
[ 363 Pa. Super. Page 402]
The Commonwealth appeals the judgment of sentence for driving under the influence (DUI), 75 Pa.Cons.Stat.Ann. § 3731 (Purdon Supp.1985), entered after a guilty plea. We are asked to consider whether the sentence was illegal because the sentencing court did not impose the mandatory minimum penalty for DUI recidivists, under 75 Pa.Cons.Stat.Ann. § 3731(e)(1)(iii).*fn1 We reverse and remand for resentencing.
Appellee Terrence Lee was charged with one count of DUI and various summary offenses not relevant to this appeal. Lee entered a plea of guilty. No formal guilty plea colloquy was held. As a substitute for the colloquy, appellee Lee read and signed a document consisting of forty-three questions addressing whether he understood the charges against him and the consequences of pleading guilty. Question twenty-three, which deals with notice, is pertinent to the instant case. It states: "Have you discussed with your attorney or are you aware of the permissible range of sentences and/or fines that can be imposed for the offense charged." Appellee Lee wrote "yes" in the space provided. Before the guilty plea was entered formally, but after Lee had read and signed the above document, the Commonwealth attempted to make an oral motion to amend the information to include the statement that appellee had been convicted of two prior DUI charges. The motion was denied without discussion.
As a result, on October 1, 1985, appellee Lee was sentenced, not as a recidivist under the Drunk Driving Act,
[ 363 Pa. Super. Page 403]
§ 3731(e)(1)(iii), but as a first offender, to a 48-hour commitment, a $300 fine and costs, alcohol evaluation, and safe driver program. Lee was also fined $275 on summary charges. This appeal followed.*fn2
The Commonwealth presents one issue for our consideration: whether the sentence was illegal because the sentencing court failed to apply the recidivist provision of the Drunk Driving Act, 75 Pa.Cons.Stat.Ann. § 3731(e) (Purdon Supp.1986).
Section 3731(e) provides, in ...