Appeal from the Judgment of Sentence March 31, 1986, in the Court of Common Pleas of Chester County, Criminal No. 1152/84.
Richard S. Wasserbly, Doylestown, for appellant.
Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
Wieand, Olszewski and Cercone, JJ.
[ 368 Pa. Super. Page 95]
This is an appeal from the judgment of sentence imposed following a guilty plea to a charge of driving under the influence of alcohol. The sole issue is whether the trial
[ 368 Pa. Super. Page 96]
court erred in concluding that the Drunk Driving Act*fn1 required that it impose a minimum sentence of thirty days imprisonment under the circumstances of this case. For the reasons which follow, we vacate judgment and remand for resentencing.
This matter involves two separate arrests for driving under the influence of alcohol (DUI). Appellant, Dawn Gretz, was first arrested and charged with DUI in Chester County, Pennsylvania, on May 2, 1984. She thereafter applied for and was accepted into the Accelerated Rehabilitative Disposition (ARD) program. While under the supervision of that program, appellant was arrested and charged with DUI in Bucks County, Pennsylvania, on January 18, 1985. Following appellant's guilty plea to this second offense, the Honorable Kenneth G. Biehn of the Court of Common Pleas of Bucks County sentenced appellant to a term of forty-eight hours to one year imprisonment pursuant to the first offender provision of the Drunk Driving Act, 75 Pa.C.S.A. § 3731(e)(1)(i). Upon learning of this conviction, the district attorney of Chester County requested and obtained appellant's removal from the ARD program. Thereafter, on March 31, 1986, appellant appeared before the Honorable Thomas G. Gavin of the Court of Common Pleas of Chester County and pled guilty to the DUI charge that was first in time of arrest, but second in time for sentencing purposes. On the same date, Judge Gavin sentenced appellant to thirty days to twenty-three months imprisonment pursuant to the second offender provision of the Drunk Driving Act, 75 Pa.C.S.A. § 3731(e)(1)(ii). Appellant filed a motion to modify sentence which Judge Gavin denied. It is the latter sentence which appellant challenges in this appeal.
In sentencing appellant for the May 2, 1984 offense (1984 offense) at issue here, the trial court concluded that appellant had properly been sentenced as a first offender for the January 18, 1985 offense (1985 offense). Next, believing that appellant had "previously been convicted" in view of
[ 368 Pa. Super. Page 97]
the guilty plea and sentencing for the 1985 offense, the court concluded that it was required to sentence appellant as a second offender for the 1984 offense. Upon review, we find that both conclusions were in error. We find specifically that appellant should have been sentenced as a ...