Appeal from the Judgment of Sentence of the Court of Common Pleas of Crawford County, Criminal Division, No. 1987-133.
Narcy L. Hughes, Assistant District Attorney, Lancaster, for Com., appellant.
Theodore H. Watts, Meadville, for appellee.
Olszewski, Popovich and Watkins, JJ. Popovich, J., dissents.
[ 374 Pa. Super. Page 257]
This is an appeal by the Commonwealth from the judgment of sentence imposed following a guilty plea to a charge of driving under the influence. The sole question presented is whether an individual who has successfully completed a period of accelerated rehabilitation disposition (herein after A.R.D.) arising out of an arrest under section 3731 of the Motor Vehicle Code of 1976, 75 Pa.C.S.A. § 3731,*fn1 (hereinafter referred to as "old drunk driving law)", must be sentenced as a second offender under section 3731, 75 Pa.C.S. § 3731 Supp.1984,*fn2 (hereinafter referred to as "new drunk driving law") as it was amended in 1982, when the acceptance of A.R.D. came after the new drunk driving law became effective. We hold that he should not.
On August 24, 1982, David Stewart was arrested on a charge of driving under the influence in violation of section
[ 374 Pa. Super. Page 2583731]
of the old drunk driving law. On September 13, 1983, after the effective date of the new drunk driving law, he was accepted into and successfully completed the A.R.D. program on the charge. Subsequently, on January 2, 1987, Stewart again was arrested for driving under the influence. Following entry of a guilty plea on May 15, 1987, Stewart was sentenced as a first offender on June 19, 1987 to a minimum term of 48 hours. A timely motion for reconsideration of sentence was filed by the Commonwealth, which, after argument, was denied, and this timely appeal followed.
On appeal, the Commonwealth argues that Stewart should have been sentenced as a second offender as the new drunk driving law specifically provides that acceptance of A.R.D. for a D.U.I. offense is to be considered a conviction for sentencing enhancement purposes. 75 Pa.C.S. § 3731(e)(2).*fn3 See also Commonwealth v. Kornicki, 357 Pa. Super. 182, 515 A.2d 925 (1986). It is the Commonwealth's position that if a defendant voluntarily participated in an A.R.D. program on a drunk driving offense after January 14, 1983, the effective date of the new D.U.I. law, regardless of the date of that arrest, that offense should be considered a conviction for sentencing enhancement purposes.
In Kornicki, we stated that "(s)section 3731 . . . requires a sentencing court to consider a conviction which had occurred before the new law went into effect in imposing sentence on a subsequent conviction," Commonwealth v. Kopycinski, 353 Pa. Super. 387, 389, 510 A.2d 365, 366 (1986). We note that Kornicki is factually distinguishable from the case at bar and therefore does not lend support to the Commonwealth's argument. In Kornicki, as in the case cited therein, Kopycinski, the defendant had prior
[ 374 Pa. Super. Page 259]
drunk driving convictions under the old drunk driving law, and, as such, we held that the Commonwealth was entitled to pursue an enhancement of the sentence entered by the trial court. In the case at bar, we cannot accept that Stewart's acceptance and completion of A.R.D. can be considered a conviction under the new drunk driving law.
Sentencing for D.U.I. convictions is governed by § 3731(e) of the Vehicle Code. That section provides in part:
(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 the person has previously been convicted of an offense under this section or of an equivalent offense in this or other ...