J-S68004-17
2018 PA Super 90
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MICHAEL A. MOCK : : Appellant : No. 801 MDA 2017
Appeal from the Judgment of Sentence May 1, 2017 In the Court of Common Pleas of Mifflin County Criminal Division at No(s): CP-44-CR-0000506-2016
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*
DISSENTING OPINION BY STRASSBURGER, J.:
FILED APRIL 19, 2018
Because the Majority erred in its interpretation of the plain language of
75 Pa.C.S. § 3806, I respectfully dissent.
As explained by the Majority, Mock was convicted of driving under the
influence (DUI) – highest rate pursuant to 75 Pa.C.S. § 3802(c). The grading
and sentencing for violations of subsection 3802(c) depend on whether the
individual has committed prior offenses. If the individual does not have any
prior offenses, a violation of subsection 3802(c) constitutes a misdemeanor
with a maximum sentence of six months’ imprisonment and a mandatory
minimum sentence of not less than 72 consecutive hours’ imprisonment and
a fine between $1,000 and $5,000. 75 Pa.C.S. §§ 3803(b)(2), 3804(c)(1)(i),
(ii). If the individual has “one or more prior offenses,” the violation of
*Retired Senior Judge assigned to the Superior Court. J-S68004-17
subsection 3802(c) constitutes a misdemeanor of the first degree, which
carries a maximum sentence of five years, and a mandatory minimum
sentence of at least 90 days’ imprisonment and a fine of $1,500. 75 Pa.C.S.
§§ 3803(b)(4), 3804(c)(2)(i), (ii); 18 Pa.C.S. § 1104(1).
To determine what constitutes a prior offense for the purposes of
grading and sentencing, courts must turn to section 3806.
§ 3806. Prior offenses
(a) General rule.--Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean any conviction for which judgment of sentence has been imposed … before the sentencing on the present violation for any of the following:
(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance)[.]
***
(b) Timing.—
(1) For purposes of sections 1553(d.2) (relating to occupational limited license), 1556 (relating to ignition interlock limited license), 3803 (relating to grading), 3804 (relating to penalties) and 3805 (relating to ignition interlock), the prior offense must have occurred:
(i) within 10 years prior to the date of the offense for which the defendant is being sentenced; or
(ii) on or after the date of the offense for which the defendant is being sentenced.
(2) The court shall calculate the number of prior offenses, if any, at the time of sentencing.
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(3) If the defendant is sentenced for two or more offenses in the same day, the offenses shall be considered prior offenses within the meaning of this subsection.
75 Pa.C.S. § 3806 (emphasis added).
Both the Majority and I agree that subsection 3806(a) constitutes a
general rule that applies to Chapter 38 of the Vehicle Code as a whole, and
subsection 3806(b) constitutes a specific rule that applies to the sections
enumerated therein, including section 3803 (relating to grading) and section
3804 (relating to penalties). See Majority Memorandum at 5; see also
Commonwealth v. Haag, 981 A.2d 902, 905 (Pa. 2009) (interpreting a prior
version of section 3806 in the same manner).
Nevertheless, the Majority concludes that the language of the general
rule “‘[e]xcept as set forth in subsection (b)’ appearing at the beginning of
subsection (a) does not alter, for purposes of subsection (b), the essential
definition of ‘prior offense’ as being the disposition (i.e. conviction for which
judgment of sentence has been imposed, et al.) rather than the actual
commission of the offense.” Majority Memorandum at 5. According to the
Majority, the only effect subsection 3806(b) has on subsection 3806(a) is to
incorporate a ten-year time limitation. Id. at 6. In my view, the plain
language of section 3806 dictates otherwise.
The general rule in subsection 3806(a) is limited by the exclusionary
phrase, “except as set forth in subsection (b).” Our Supreme Court has
interpreted this exclusionary phrase to mean that “[subs]ection 3806(a)
-3- J-S68004-17
expressly yields to [subs]ection 3806(b) when the latter is applicable….” 1
Haag, 981.A.2d at 906. In other words, our Supreme Court has made clear
that by using the phrase “[e]xcept as set forth in subsection (b),” our
legislature intended to set forth limitations in subsection 3806(b) that alter
the general definition of “prior offense” set forth in subsection 3806(a) for
purposes of sentencing and grading. Id. at 907. The legislature has done so
even though “the courts may have occasion to apply the provisions of
[subs]ection 3806(b) much more frequently than the “[g]eneral [r]ule” of
[subs]ection 3806(a).” Id. at 907 n.10. Therefore, the Majority, which does
not discuss Haag and cites it only for the standard of review, is incorrect in
concluding that subsection 3806(b) has no effect on subsection 3806(a)
except for the incorporation of a ten-year time period.
I now turn to the specific rule set forth in subsection 3806(b). In
contrast to subsection 3806(a), which requires courts to use “any conviction
for which judgment of sentence has been imposed” without any limitations on
timing so long as the conviction occurs “before the sentencing on the present
violation…,” subsection 3806(b) narrows the window to include only offenses
occurring in certain periods. 75 Pa.C.S. § 3806(a), (b). Specifically, to
constitute a “prior offense” for grading and sentencing purposes, the prior
offense “must have occurred … within 10 years prior to the date of the
1 The Court interpreted a prior version of the statute in Haag, but the prior version contained the same exclusionary phrase in subsection 3806(a) as the current version.
-4- J-S68004-17
offense for which the defendant is being sentenced….” Id. at § 3806(b)(1)(i)
(emphasis added). In other words, in general when a court is tasked with
determining whether an individual has a prior offense, the court must look
only to see if the individual has been convicted of a section 3802 violation at
any point prior to sentencing on the current section 3802 offense. But for
purposes of sentencing, grading, or any of the other three sections
enumerated in subsection 3806(b), the court must look not only to see if the
individual has been convicted of a section 3802 violation at any point prior to
sentencing on the current section 3802 offense, but it must also use the timing
subsection to determine if the individual committed the prior offense
sometime within the 10 years before the individual committed the subsequent
offense.
Here, Mock’s DUIs occurred on June 3, 2006, and July 10, 2016. He
was convicted of the June 3, 2006 DUI prior to his sentencing for the July 10,
2016 DUI. Thus, under the general rule, his June 3, 2006 DUI is a prior
offense. See 75 Pa.C.S. § 3806(a) (“Except as set forth in subsection (b), the
term ‘prior offense’ as used in this chapter shall mean any conviction for which
judgment of sentence has been imposed … before the sentencing on the
present violation for … an offense under section 3802[.]”).
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J-S68004-17
2018 PA Super 90
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MICHAEL A. MOCK : : Appellant : No. 801 MDA 2017
Appeal from the Judgment of Sentence May 1, 2017 In the Court of Common Pleas of Mifflin County Criminal Division at No(s): CP-44-CR-0000506-2016
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*
DISSENTING OPINION BY STRASSBURGER, J.:
FILED APRIL 19, 2018
Because the Majority erred in its interpretation of the plain language of
75 Pa.C.S. § 3806, I respectfully dissent.
As explained by the Majority, Mock was convicted of driving under the
influence (DUI) – highest rate pursuant to 75 Pa.C.S. § 3802(c). The grading
and sentencing for violations of subsection 3802(c) depend on whether the
individual has committed prior offenses. If the individual does not have any
prior offenses, a violation of subsection 3802(c) constitutes a misdemeanor
with a maximum sentence of six months’ imprisonment and a mandatory
minimum sentence of not less than 72 consecutive hours’ imprisonment and
a fine between $1,000 and $5,000. 75 Pa.C.S. §§ 3803(b)(2), 3804(c)(1)(i),
(ii). If the individual has “one or more prior offenses,” the violation of
*Retired Senior Judge assigned to the Superior Court. J-S68004-17
subsection 3802(c) constitutes a misdemeanor of the first degree, which
carries a maximum sentence of five years, and a mandatory minimum
sentence of at least 90 days’ imprisonment and a fine of $1,500. 75 Pa.C.S.
§§ 3803(b)(4), 3804(c)(2)(i), (ii); 18 Pa.C.S. § 1104(1).
To determine what constitutes a prior offense for the purposes of
grading and sentencing, courts must turn to section 3806.
§ 3806. Prior offenses
(a) General rule.--Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean any conviction for which judgment of sentence has been imposed … before the sentencing on the present violation for any of the following:
(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance)[.]
***
(b) Timing.—
(1) For purposes of sections 1553(d.2) (relating to occupational limited license), 1556 (relating to ignition interlock limited license), 3803 (relating to grading), 3804 (relating to penalties) and 3805 (relating to ignition interlock), the prior offense must have occurred:
(i) within 10 years prior to the date of the offense for which the defendant is being sentenced; or
(ii) on or after the date of the offense for which the defendant is being sentenced.
(2) The court shall calculate the number of prior offenses, if any, at the time of sentencing.
-2- J-S68004-17
(3) If the defendant is sentenced for two or more offenses in the same day, the offenses shall be considered prior offenses within the meaning of this subsection.
75 Pa.C.S. § 3806 (emphasis added).
Both the Majority and I agree that subsection 3806(a) constitutes a
general rule that applies to Chapter 38 of the Vehicle Code as a whole, and
subsection 3806(b) constitutes a specific rule that applies to the sections
enumerated therein, including section 3803 (relating to grading) and section
3804 (relating to penalties). See Majority Memorandum at 5; see also
Commonwealth v. Haag, 981 A.2d 902, 905 (Pa. 2009) (interpreting a prior
version of section 3806 in the same manner).
Nevertheless, the Majority concludes that the language of the general
rule “‘[e]xcept as set forth in subsection (b)’ appearing at the beginning of
subsection (a) does not alter, for purposes of subsection (b), the essential
definition of ‘prior offense’ as being the disposition (i.e. conviction for which
judgment of sentence has been imposed, et al.) rather than the actual
commission of the offense.” Majority Memorandum at 5. According to the
Majority, the only effect subsection 3806(b) has on subsection 3806(a) is to
incorporate a ten-year time limitation. Id. at 6. In my view, the plain
language of section 3806 dictates otherwise.
The general rule in subsection 3806(a) is limited by the exclusionary
phrase, “except as set forth in subsection (b).” Our Supreme Court has
interpreted this exclusionary phrase to mean that “[subs]ection 3806(a)
-3- J-S68004-17
expressly yields to [subs]ection 3806(b) when the latter is applicable….” 1
Haag, 981.A.2d at 906. In other words, our Supreme Court has made clear
that by using the phrase “[e]xcept as set forth in subsection (b),” our
legislature intended to set forth limitations in subsection 3806(b) that alter
the general definition of “prior offense” set forth in subsection 3806(a) for
purposes of sentencing and grading. Id. at 907. The legislature has done so
even though “the courts may have occasion to apply the provisions of
[subs]ection 3806(b) much more frequently than the “[g]eneral [r]ule” of
[subs]ection 3806(a).” Id. at 907 n.10. Therefore, the Majority, which does
not discuss Haag and cites it only for the standard of review, is incorrect in
concluding that subsection 3806(b) has no effect on subsection 3806(a)
except for the incorporation of a ten-year time period.
I now turn to the specific rule set forth in subsection 3806(b). In
contrast to subsection 3806(a), which requires courts to use “any conviction
for which judgment of sentence has been imposed” without any limitations on
timing so long as the conviction occurs “before the sentencing on the present
violation…,” subsection 3806(b) narrows the window to include only offenses
occurring in certain periods. 75 Pa.C.S. § 3806(a), (b). Specifically, to
constitute a “prior offense” for grading and sentencing purposes, the prior
offense “must have occurred … within 10 years prior to the date of the
1 The Court interpreted a prior version of the statute in Haag, but the prior version contained the same exclusionary phrase in subsection 3806(a) as the current version.
-4- J-S68004-17
offense for which the defendant is being sentenced….” Id. at § 3806(b)(1)(i)
(emphasis added). In other words, in general when a court is tasked with
determining whether an individual has a prior offense, the court must look
only to see if the individual has been convicted of a section 3802 violation at
any point prior to sentencing on the current section 3802 offense. But for
purposes of sentencing, grading, or any of the other three sections
enumerated in subsection 3806(b), the court must look not only to see if the
individual has been convicted of a section 3802 violation at any point prior to
sentencing on the current section 3802 offense, but it must also use the timing
subsection to determine if the individual committed the prior offense
sometime within the 10 years before the individual committed the subsequent
offense.
Here, Mock’s DUIs occurred on June 3, 2006, and July 10, 2016. He
was convicted of the June 3, 2006 DUI prior to his sentencing for the July 10,
2016 DUI. Thus, under the general rule, his June 3, 2006 DUI is a prior
offense. See 75 Pa.C.S. § 3806(a) (“Except as set forth in subsection (b), the
term ‘prior offense’ as used in this chapter shall mean any conviction for which
judgment of sentence has been imposed … before the sentencing on the
present violation for … an offense under section 3802[.]”). However, our
analysis cannot stop there; we also have to consider the timing restrictions
set forth in subsection 3806(b). Because his prior conviction stemmed from
a DUI that occurred more than 10 years before the date of the offense for
-5- J-S68004-17
which he was being sentenced, for purposes of grading, sentencing, and the
three other sections not at issue, his June 3, 2006 DUI cannot constitute a
prior offense. See 75 Pa.C.S. § 3806(b) (“For purposes of sections … 3803
(relating to grading) [and] 3804 (relating to penalties) …, the prior offense
must have occurred … within 10 years prior to the date of the offense for which
the defendant is being sentenced[.]”).
By interpreting section 3806 to include Mock’s June 3, 2006 DUI, the
Majority ignores the plain language of the specific timing restriction set forth
in subsection 3806(b)(1)(i), which requires us to consider only convictions
that stem from prior offenses that “have occurred … within 10 years prior to
the date of the offense for which the defendant is being sentenced.” 75
Pa.C.S. § 3806(b)(1)(i) (emphasis added). Given that the legislature has
changed repeatedly the parameters for the look-back period in different
revisions of subsection 3806(b), I must assume its decision to use the word
“occurred” in the current version was deliberate. Compare 75 Pa.C.S. §
3806(b) (enacted May 26, 2016) (referring to a prior offense that “must have
occurred … within 10 years prior to the date of the offense for which the
defendant is being sentenced…” – i.e., occurrence to occurrence) with id.
(effective November 29, 2004 to December 25, 2014) (referring to “any
conviction … within the ten years before the present violation occurred” – i.e.,
conviction to occurrence) and id. (effective December 26, 2014 to May 24,
2016) (referring to “any conviction, whether or not judgment of sentence has
-6- J-S68004-17
been imposed for the violation … within the ten years before the sentencing
on the present violation…” – i.e., conviction to sentencing).
We must interpret the statute as written. Therefore, based upon the
plain language of the statute, Mock does not have a prior offense for purposes
of grading and sentencing, and his judgment of sentence imposing enhanced
penalties should be vacated.
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