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filed: August 10, 1987.


Appeal from the judgment of sentence of February 26, 1985 in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC 8411320A.


Robert J. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.

Cirillo, President Judge, and Rowley, Olszewski, Del Sole, Montemuro, Beck, Tamilia, Kelly and Popovich, JJ. Kelly, J., filed a concurring opinion and joined majority. Popovich, J., concurred in the result. Cirillo, President Judge, filed a dissenting opinion in which Del Sole and Tamilia, JJ., joined. Del Sole, J., filed a dissenting opinion in which Cirillo, President Judge, joined.

Author: Beck

[ 366 Pa. Super. Page 56]

The issue is whether appellee's acceptance into the Accelerated Rehabilitative Disposition (ARD) program after being charged with driving under the influence (DUI) exposes appellee to sentence as a second offender after a guilt determination on a second DUI charge. We find that the lower court erred in sentencing appellee as a first offender. Accordingly, we vacate judgment and remand for resentencing.


Appellee Robert E. Becker was first arrested on January 2, 1984 and charged with DUI. See Drunk Driving Act, 1982, Dec. 15 Pa.Laws 1268 No. 289, § 9, 75 Pa.Cons.Stat.Ann. § 3731 (Purdon Supp.1987). Becker was offered the opportunity to avoid prosecution on this charge by entering the ARD program. He accepted placement in ARD on August 30, 1984.

Less than a week later, on September 5, 1984, Becker was again arrested and charged with driving under the influence of alcohol. He pleaded guilty to the September offense on January 25, 1985. As a consequence, Becker may be expelled from ARD and forced to stand trial in connection with the January, 1984 incident.

On February 26, 1985, Becker was sentenced for the September offense, the second charge, by the Court of Common Pleas of Allegheny County. He was ordered to spend forty-eight hours in jail, the mandatory minimum penalty for a first offender. The Commonwealth filed a Motion to Modify Sentence on the ground that Becker should have been sentenced to at least thirty days in jail, the mandatory minimum penalty for a second offender.

[ 366 Pa. Super. Page 57]

The sentencing judge denied this motion. The Commonwealth appealed.*fn1


All agree that appellee must be sentenced for the September offense in accordance with § 3731 of the Vehicle Code. This statute was extensively revised in 1982 in order to address the growing public concern with the crime of drunk driving. See Pa. House Leg. J. 1699-1754 and 1885-91 (Sept. 9, 1982, Sept. 15, 1982, Nov. 16, 1982). Section 3731(e) provides:

(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 a 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 . . . .

(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 subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction . . . .

The sentencing court interpreted these provisions as meaning that only acceptance and completion of ARD shall be considered a first conviction. We cannot accede to

[ 366 Pa. Super. Page 58]

    this view since it is inconsistent with the plain text of the Vehicle Code.

A fundamental principle of statutory construction is set forth at 1 Pa.Cons.Stat.Ann. § 1921(b) (Purdon Supp. 1986) (Statutory Construction Act): "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Thus, "[w]hen the language of a statute is clear and unambiguous, the judiciary must read its provisions in accordance with their plain meaning and common usage." Commonwealth v. Bell, 512 Pa. 334, 339, 516 A.2d 1172, 1175 (1986) (construing 42 Pa.Cons.Stat.Ann. § 9712 (Purdon 1982) (Mandatory Minimum Sentencing Act)). This is true even where a penal statute is at issue and a straightforward application of the statute would subject a defendant to criminal liability. See Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974); Commonwealth v. Pope, 455 Pa. 384, 317 A.2d 887 (1974). As the Pennsylvania Supreme Court recently noted in Commonwealth v. Sojourner, 513 Pa. 36, 41, 518 A.2d 1145, 1148 (1986), "Having closely examined the penalty provisions of section 3731, we are satisfied that the aforementioned provisions are clear and free from ambiguity." For this reason we read § 3731(e)(2) as meaning exactly what it says -- that acceptance of ARD is sufficient to trigger an enhanced penalty upon sentencing for a subsequent offense.

The sentencing court emphasized that § 3731(e)(2) contemplates the "disposition of any charge brought under this section." It held that acceptance of ARD is not a final disposition of a charge since ARD may be revoked and the charge revived before the program is completed. See Commonwealth v. Lutz, 508 Pa. 297, 303, 495 A.2d 928, 931 (1985). Section 3731(e)(2), however, requires only a preliminary disposition of the charge and defines acceptance of ARD as a preliminary disposition. We must therefore

[ 366 Pa. Super. Page 59]

    conclude that § 3731(e)(2) was designed to reach defendants who have failed to "graduate" from the ARD program.*fn2


We emphasize that our decision in the instant case is narrow in scope. We deal here only with the proper interpretation of § 3731(e)(2). With this in mind, it is readily apparent that the straightforward application of § 3731(e)(2) is consistent with Pennsylvania case law and with the Rules of Criminal Procedure.

It is true that when the word "conviction" appears in a statute, it is usually taken to mean "the ascertainment of the guilt of the accused and judgment thereon by the court . . ." Commonwealth v. Minnich, 250 Pa. 363, 367, 95 A. 565, 567 (1915). However, this technical definition of conviction should not be applied "where the intention of the legislature is obviously to the contrary . . ." Commonwealth ex rel. McClenachan v. Reading, 336 Pa. 165, 169, 6 A.2d 776, 778 (1939). Where a statute clearly defines its terms, the fact that other legal enactments may provide alternate definitions of the same term is irrelevant. The court must construe each statute according to its internal definition. See Commonwealth v. Lobiondo, 501 Pa. 599, 603,

[ 366 Pa. Super. Page 60462]

A.2d 662, 664 (1983); Commonwealth v. Massini, 200 Pa. Super. 257, 259, 188 A.2d 816, 817 (1963).

It is also true that under the Rules of Criminal Procedure, an individual who enters ARD is treated more leniently than one who is tried and found guilty of a crime. See Pa.R.Crim.P. 175-185. ARD offers the accused a unique opportunity to earn dismissal of charges. Pa.R.Crim.P. 178(1). Yet, this does not mean that § 3731(e)(2) is in conflict with the Rules. See Commonwealth v. Scheinert, 359 Pa. Super. 423, 424, 519 A.2d 422, 423 (1986). The text of the Rules is silent with respect to the collateral consequences of involvement in ARD upon sentencing for a subsequent offense. It is fair to assume that this silence did not preempt passage of § 3731(e)(2), since "it is the province of the legislature to determine the punishment imposable for criminal conduct." Id., 359 Pa. Superior Ct. at 427, 519 A.2d at 424 (citing Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 361 (1985), aff'd sub nom. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)).

Furthermore, we note that our interpretation of § 3731(e)(2) is in accord with the Commonwealth Court's interpretation of 75 Pa.Cons.Stat.Ann. § 1542 (Purdon 1977), another provision of the Vehicle Code. Section § 1542(a) directs the Department of Transportation to revoke the drivers licenses of individuals who repeatedly commit certain enumerated offenses. Section 1542(c) states that for this purpose "(a)cceptance of Accelerative [sic] Rehabilitative Disposition . . . shall be considered an offense . . ." In Department of Transportation, Bureau of Traffic Safety v. McDevitt, 57 Pa. Commw. 589, 427 A.2d 280 (1981) aff'd per curiam 500 Pa. 532, 458 A.2d 939 (1983), the court construed these words as meaning that in this particular instance, acceptance of ARD has the same effect as conviction. See also Brophy v. Dep't of Trans., 94 Pa. Commw. 310, 503 A.2d 1010 (1986); Brewster v. Dep't. of Trans., 94 Pa. Commw. 277, 503 A.2d 497 (1986); Dep't. of Trans., Bureau of Traffic Safety v. Rice, 77 Pa. Commw. 34,

[ 366 Pa. Super. Page 61465]

A.2d 68 (1983); In re Elias, 70 Pa. Commw. 404, 453 A.2d 372 (1982). We now follow this lead.*fn3


One significant consequence of § 3731(e)(2) is that a defendant who is guilty of only one crime will be sentenced as though he had twice broken the law. In the instant case, Becker has not yet been tried for allegedly driving while intoxicated in January, the first charge. If ARD is revoked, he will stand trial on this charge, and he may well be found not guilty. Nevertheless, for purposes of § 3731(e)(2), whether a defendant was guilty or innocent at the time he accepted ARD is irrelevant. All that matters is that he be duly convicted on a subsequent occasion.

This may be a harsh result, but it is a result which is mandated by the language and policy of the Vehicle Code. The General Assembly demonstrated a special concern with the ARD program, and sought to ensure that both guilty and innocent participants in that program would have cause to reflect on the serious nature of the crime of drunk driving. 75 Pa.Cons.Stat.Ann. § 3731(e)(6) states:

Any person who accepts Accelerated Rehabilitative Disposition of any charge brought under this section shall accept as conditions the imposition of and the judge shall impose in addition to any other conditions all of the following:

(i) A fee to cover costs referred to in section 1548(e) (relating to costs).

[ 366 Pa. Super. Page 62]

(ii) A mandatory suspension of operating privilege for a period of not less than one month but not more than 12 months.

(iii) A condition that the defendant, as a condition to entering the program, make restitution to any person who incurred determinable financial loss as a result of the defendant's actions ...

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