Commonwealth v. Becker

530 A.2d 888, 366 Pa. Super. 54, 1987 Pa. Super. LEXIS 8897

• Court: Supreme Court of Pennsylvania
• Decided: August 10, 1987
• Docket: 00386
• Status: Published

Opinions

BECK, Judge:

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.

I.

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. The sentencing judge denied this motion. The Commonwealth appealed.¹

II.

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:

(1) 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 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 conclude that § 3731(e)(2) was designed to reach defendants who have failed to “graduate” from the ARD program.²

III.

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, , 462 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 “(acceptance 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, 465 A.2d 68 (1983); In re Elias, 70 Pa.Commw. 404, 453 A.2d 372 (1982). We now follow this lead.³

IV.

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).

(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 which resulted in a charge of violating this section.

(iv) Court supervision for any defendant required to make restitution or submit to counseling or treatment.

(v) Court supervision for a period of not less than six months when the Court Reporting Network indicates that counseling or treatment is not necessary and not less than 12 months when the Court Reporting Network indicates that counseling or treatment is in order.

75 Pa.Cons.Stat.Ann. § 1548(b) (Purdon Supp.1987) states:

In addition to any other requirements of the court, every person convicted of a violation of section 3731 and every person placed on Accelerated Rehabilitative Disposition or other preliminary disposition as a result of a charge of a violation of section 3731 shall, as a part of sentencing or as a condition of parole, probation or Accelerated Rehabilitative Disposition, be required to attend and successfully complete an approved alcohol highway safety school established pursuant to section 1549 (relating to establishment of schools).

Section 3731(e)(2) must be understood in the context of § 3731(e)(6) and § 1548(b). Those individuals who are sentenced as second offenders after entering ARD are usually men and women who have chosen to drive drunk after having been placed under court supervision, after having been enrolled in alcohol highway safety school, and after having had their operating privileges suspended. It is rational to conclude that such individuals are less easily deterred from continuing to drink and drive than first time offenders who have had no prior contact with the criminal justice system. In the view of the legislature, an additional criminal sanction is therefore in order.

In reviewing the policy behind § 3731(e)(2), it is also important to remember that a criminal suspect’s election of ARD is a voluntary decision. A candidate for ARD will be rejected unless the court is satisfied that he understands the nature of the program, and unless he promises the court that he will abide by its conditions. See Pa.R.Crim.P. 179(a) and (d). Moreover, “[defendants who accept ARD for drunk driving are now told that ARD will be considered a conviction for sentencing purposes in the event of an arrest for drunk driving within the next seven years.” Commonwealth v. Frost, 342 Pa.Super. 173, 178, 492 A.2d 448, 450 (1985).⁴

When appellee entered ARD, he struck a deal with the state in order to avoid prosecution on the initial drunk driving charge. He stood ready to accept the benefits of participating in ARD. He then violated the terms of ARD. He now seeks to avoid the predictable consequences of his actions. Under these circumstances, it does not appear that counting ARD as a prior conviction will work a manifest injustice. Cf. McDevitt, supra (similar reasoning).

Finally, we must bear in mind that in Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986), Commonwealth v. Potts, 352 Pa.Super. 299, 507 A.2d 1239 (1986), and Commonwealth v. Scheinert, 359 Pa.Super. 423, 519-A.2d 422 (1986), this court has already held that a defendant who completes ARD and is later convicted of driving drunk must be sentenced as a repeat offender. In so deciding, we implicitly recognized that § 3731(e)(2) may cause a defendant who has been convicted of only one crime to be sentenced as if he were guilty of two offenses.

In Wagner, we found that the trial court erred when it sentenced appellee Roxanne Wagner as a first offender. The sequence of events in Wagner was as follows: she was arrested for driving drunk in March, 1983; she accepted ARD and finished the program; she was arrested for driving drunk in August, 1984; she was convicted and sentenced to forty-eight hours imprisonment. One must presume that Wagner is innocent of the charge of driving drunk in 1983; since she completed ARD she will never be tried or found guilty of that alleged crime. Notwithstanding this presumption of innocence, we vacated judgment and remanded for resentencing for a minimum term of thirty days.

Unlike Roxanne Wagner, appellee Robert Becker may have an opportunity to be found not guilty by a trial court. If Becker has this opportunity it will be because he violated ARD and was expelled from the program. It would therefore be curious and ironic if we were to treat Robert Becker more leniently than we treated Roxanne Wagner. Wagner had completed ARD and had not been cited for driving while under the influence for over a year. On the other hand, Becker entered ARD and was arrested for drunk driving just six days later.

We hold that under the terms of 75 Pa.Cons.Stat.Ann. § 3731(e)(2), a defendant who is convicted of drunk driving after having accepted ARD to avoid prosecution for an earlier drunk driving charge must be sentenced as a repeat offender — whether or not he has ever completed the ARD program.⁵

V.

In order to avoid confusion, we emphasize that this finding is not in conflict with our recent decisions in Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197, allowance of appeal granted, 511 Pa. 619, 515 A.2d 898 (1986) and Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d (1986). Mourar and Wolfe did not examine the Drunk Driving Act; those cases concerned the proper interpretation of the guidelines promulgated by the Pennsylvania Commission on Sentencing. See 204 Pa.Code 303.6 reprinted at 42 Cons.Stat.Ann. § 9721 (Purdon 1982). These guidelines do not supercede the Drunk Driving Act’s mandatory minimum penalties. 75 Cons.Stat.Ann. § 3731(e)(3).

Moreover, Mourar and Wolfe .involve a factual pattern which is significantly different from the facts of the case sub judice. In Mourar and Wolfe, each defendant was convicted of four offenses. Although all four offenses were committed prior to the first conviction, the trial courts had sentenced each defendant as a first offender for his first conviction, as a second offender for his second conviction, as a third offender for his third conviction, and as a fourth offender for his fourth conviction. We found this “geometric escalation of punishment ... to be an improper application of the sentencing guidelines.” Wolfe, 349 Pa.Super. at 418, 503 A.2d at 436. We interpreted the guidelines as conforming to a general principle which underlies most recidivist statutes which impose criminal penalties: “prior convictions must antedate commission of the principal offense to be eligible for application as sentence enhancers.” Mourar, 349 Pa.Super. at 592, 504 A.2d at 202.

Our decision today does no violence to this basic doctrine. We merely recognize that 75 Pa.Const.Stat.Ann. § 3731(e)(2) equates “acceptance of ARD” with a “conviction.” Thus, it may well be that prior acceptance of ARD must antedate commission of the principle offense to be eligible for application as a sentence enhancer.

For present purposes, appellee’s second charge of DUI— which occurred on September 5, 1984 — is his “principal offense.” As a consequence of appellee’s first DUI charge, he accepted ARD on August 30, 1984 — prior to the commission of this principal offense. If appellee had accepted ARD after September 5, 1984, we would be faced with a very different situation.

Similarly, nothing in this opinion indicates that if appellee is eventually convicted of the charge which led to his acceptance of ARD he must be sentenced as a recidivist at that time. Upon sentencing for that charge, his “principal offense” would be driving drunk on January 2, 1984 — before he accepted ARD on August 30, 1984, and before he was convicted of a subsequent offense on January 25, 1985. We do not decide if the principle behind Mourar and Wolfe applies to the Drunk Driving Act. However, if it should apply, then any crime committed on January 2, 1984 would be counted as a first offense.

We vacate judgment of sentence and remand for resentencing in accordance with this opinion. Jurisdiction is relinquished.

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.

1 . Section 3731(e)(4) provides:

The Commonwealth has the right to appeal directly to the Superi- or Court any order of court which imposes a sentence for violation of this section which does not meet the requirements of this section. The Superior Court shall remand the case to the sentencing court for imposition of a sentence in accordance with the provisions of this section.

2 . This finding is in accord with the recent holding of the Kansas Supreme Court in State v. Booze, 238 Kan. 551, 712 P.2d 1253 (1986). Booze considered the effect on sentencing for DUI of prior acceptance into the Kansas diversion program — a program similar in several respects to ARD. The Kansas drunk driving statute states:

For the purpose of determining whether a conviction is a first, second or third or subsequent conviction for the purpose of sentencing under this section, the term "conviction” includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section.

Kan.Stat.Ann. 8 — 1567(J)(1) (Supp.1985). The Kansas Supreme Court held:

"[E]ntering” into a diversion agreement is a conviction for purposes of enhancing sentence. If the drafters had intended that diversion would operate as a conviction only upon its completion, they could easily have said so.

238 Kan. at 555, 712 P.2d at 1256.

3 . Commonwealth v. Knepp, 307 Pa.Super. 535, 541, 453 A.2d 1016, 1019 (1982) states as dictum that "... admission to an ARD program is not equivalent to conviction under any circumstances ...” This statement, however, is followed by a footnote which acknowledges that ARD is equivalent to a conviction under § 1542 of the Vehicle Code. 307 Pa.Super. at 541 n. 7, 453 A.2d at 1019 n. 7. See McDevitt, supra. Thus, the Knepp court recognized that a statute will sometimes create an exception to the general policy of distinguishing between conviction and acceptance of ARD. Cf. Commonwealth v. Scheinert, 359 Pa.Super. at 430, 519 A.2d at 426-427 (Kelly, J., concurring) (interpreting Knepp ).

4 . The record in the case before us does not contain a transcript of the hearing which preceeded appellee’s formal acceptance of ARD. We do not decide whether a defendant who was not informed of § 3731(e)(2) at the time he agreed to enter ARD may be sentenced as a recidivist.

5 . We refrain from engaging in a constitutional analysis of the sentencing provision because we have not had the benefit of briefing or argument on the constitutionality of § 3731(e)(2) as applied to appellee. However, we note that Commonwealth v. Scheinert, 359 Pa.Super. at 429, 519 A.2d at 425-426, held that § 3731(e)(2) is not a bill of attainder under U.S. Const. Art. I, § 9, and is not so fundamentally unfair as to violate due process of law under U.S. Const. Amend. XIV or Pa. Const. Art. I, § 9.