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COMMONWEALTH PENNSYLVANIA v. DAVID ALLEN KUNSELMAN (05/27/87)

filed: May 27, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DAVID ALLEN KUNSELMAN



Appeal from the Order entered in the Court of Common Pleas of Erie County, Criminal Division, No. 885 of 1985.

COUNSEL

Michael R. Cauley, Assistant District Attorney, Erie, for Com., appellant.

Bruce L. Getsinger, Erie, for appellee.

Cirillo, President Judge, and Montemuro and Tamilia, JJ.

Author: Tamilia

[ 363 Pa. Super. Page 476]

On November 12, 1985, appellee pled guilty to charges of homicide by vehicle while driving under the influence, involuntary manslaughter, recklessly endangering another person, homicide by vehicle, and other related charges. On February 11, 1986, he was sentenced to serve a mandatory term of imprisonment, pursuant to 75 Pa.C.S.A. § 3735, of three (3) to six (6) years for the crime of homicide by vehicle while driving under the influence. Other sentences were imposed to run concurrently with the three (3) to six (6) year sentence.

By letter dated February 25, 1986, the lower court notified the district attorney and appellant's counsel that it was modifying the sentence to one and one-half (11/2) to three (3) years imprisonment to ensure that appellant could serve his sentence in Erie County. This change was reflected on the original sentencing Order by having the three (3) to six (6) year sentence crossed out and the one and one-half (11/2) to three (3) year sentence inserted. The Commonwealth then filed a motion to modify sentence which was denied on April 1, 1986. This Commonwealth appeal followed.

The Commonwealth's only argument on appeal is that the lower court erred in not following the mandatory sentencing provisions of 75 Pa.C.S.A. § 3735 for the charge of homicide by vehicle while driving under the influence. Section 3735 provides:

(a) Offense defined. -- Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is

[ 363 Pa. Super. Page 477]

    convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.

(b) Applicability of sentencing guidelines. -- The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory penalty of this section. (emphasis added)

We believe the import of § 3735 is quite clear; a defendant convicted of homicide by vehicle while driving under the influence of alcohol must serve a minimum of three years imprisonment. In Pennsylvania, the only way this outcome can be assured is by designating three years as a defendant's minimum sentence. In the instant action, the court below imposed a minimum sentence of less than three years and a maximum sentence of three years. The court stated that it felt such ...


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