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COMMONWEALTH PENNSYLVANIA v. ORICK ALSTON (07/17/89)

submitted: July 17, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ORICK ALSTON



Appeal from the Order entered April 8, 1989 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 88-004115 M.C. No. 8407-0221.

COUNSEL

David J. Novak, Asst. Dist. Atty., Philadelphia, for Com.

William D. Schroeder, Jr., Philadelphia, for appellee.

Tamilia, Johnson and Hoffman, JJ. Tamilia, J., files a concurring statement. Johnson, J., files a dissenting opinion.

Author: Hoffman

[ 387 Pa. Super. Page 395]

This is an appeal from a judgment of sentence for driving under the influence of alcohol, which was entered following appellee's guilty plea. Appellant, the Commonwealth, contends that the trial court erred in refusing to consider appellee's prior acceptance of Accelerated Rehabilitative Disposition (ARD) for an unrelated driving under the influence offense, a prior conviction as prescribed by 75 Pa.C.S.A. § 3731(e)(2). Although we agree with the Commonwealth that appellee should not have been sentenced as a first offender, we also find that appellee's guilty plea was not knowingly and voluntarily entered because he was misinformed as to the potential sentence he could receive. Accordingly, we vacate the judgment of sentence and remand with directions to allow appellee to withdraw his guilty plea.

Appellee was arrested on July 3, 1984 and charged with driving under the influence of alcohol in violation of § 3731 of the Pennsylvania Motor Vehicle Code. 75 Pa.C.S.A. § 3731. Appellee appeared in Philadelphia Municipal Court on June 11, 1986 and entered a plea of guilty. On February 18, 1987 at sentencing, the Commonwealth notified the court that appellee was a second time offender and that they would be seeking the mandatory minimum sentence of 30 days. The municipal court refused to sentence appellee as a second time offender, but instead imposed a sentence of forty eight hours imprisonment. The Commonwealth filed a petition for reconsideration of the sentence, which was denied. The Commonwealth appealed to the Court of Common Pleas which affirmed the Municipal Court's sentence. This timely appeal followed.

[ 387 Pa. Super. Page 396]

The Commonwealth contends that appellee was sentenced improperly. We agree. 75 Pa.C.S.A. § 3731(e)(1) states:

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 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 jurisdiction within the previous seven years.

A prior inclusion in the ARD program is considered a first conviction for purposes of this section. Id. § 3731(e)(2). Here, appellee had a prior arrest for drunk driving on July 22, 1983, and he was placed in the ARD program. Therefore, his 1984 offense constituted a second conviction for purposes of § 3731(e)(1)(ii). Commonwealth v. Becker, 366 Pa. Super. 54, 63-64, 530 A.2d 888, 893 (1987) (en banc), allocatur denied 520 Pa. 586, 551 A.2d 213 (1988); see also Commonwealth v. Gretz, 368 Pa. Super. 94, 97, 533 A.2d 732, 734 (1987). Appellee thus should have ...


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