Commonwealth v. Kriston

568 A.2d 1306, 390 Pa. Super. 543, 1990 Pa. Super. LEXIS 81

• Court: Supreme Court of Pennsylvania
• Decided: January 24, 1990
• Docket: 02343
• Status: Published

Opinions

CAVANAUGH, Judge:

The issue in this case is whether the appellant, William J. Kriston, Jr., was undergoing “imprisonment” within the meaning of 75 Pa.C.S. § 3731(e) when he participated in Chester County’s electronic home monitoring program.¹

In February, 1987, the appellant was charged with his second offense of driving under the influence of alcohol in violation of 75 Pa.C.S. § 3731, to which he entered a guilty plea. He was sentenced to a minimum mandatory term of imprisonment of thirty days to twenty-three months. On June 15, 1987, the appellant commenced serving his sentence at the Chester County Prison Farm. On June 24, 1987, without the knowledge or approval of the sentencing court, the appellant was admitted into the electronic home monitoring program and was allowed by the warden to serve the remainder of his sentence in that program. The appellant left prison and returned to his home.

In July, 1987, the appellant applied for parole and the Commonwealth opposed the motion as he had served only ten days confined in prison. Following a hearing, the court below by Gawthrop, J. denied the petition for parole and directed that the appellant serve the remaining twenty days of his sentence in prison. The appellant's petition for reconsideration was denied and he has appealed to this court.

75 Pa.C.S. § 3731(e) provides for a “minimum term of imprisonment” where the defendant has previously been convicted of driving under the influence, as in this case. The statute refers to mandatory “imprisonment”. We must construe the language of the statute according to common and ordinary usage. Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). The ordinary meaning of “imprisonment” is the lawful confinement of an individual to a correctional or similar institution. Even where partial confinement is involved the statute provides: “In imposing a sentence involving partial confinement, the court shall specify at the time of sentencing the length of the term during which the defendant is to be partially confined, which term may not exceed the maximum term for which he could be totally confined, and whether the confinement shall commence in a correctional or other appropriate institution.” The statute goes on to note that the “court may in its order grant the defendant the privilege of leaving the institution during necessary and reasonable hours for any of the following purposes: (1) To work at his employment____” 42 Pa.C.S. § 9755(a), (c). (Emphasis added).

Participation in the electronic home monitoring program does not constitute “imprisonment” in an institution. The court below clearly did not abuse its discretion in refusing to grant the defendant credit towards parole for the time he spent at home in the program, as he was not imprisoned during that time. It does not matter whether the warden exceeded his authority in placing the defendant in the program, or acted under a mistaken belief that the electronic home monitoring system constituted “imprison-m©nt”. The fact remains that the defendant was not in prison while he was at home with an electronic device attached to his person, and the statute mandates a minimum term of imprisonment for the offense of which he was convicted. Neither a court nor a warden of the prison has authority to rewrite the statute.

Our Supreme Court, in Commonwealth v. Sojourner, 513 Pa. 36, 43 at N. 5, 518 A.2d 1145, 1148 at N. 5 (1986), held that a mandatory minimum sentence for driving under the influence meant that “some term of incarceration is to be imposed even for first offenses.” (Emphasis added). The court held that the trial court erred in not imposing a mandatory minimum sentence of imprisonment for a first-time offender. A fortiori, a second-time offender, as in this case, must necessarily serve the minimum sentence in prison. In Commonwealth v. Waters, 361 Pa.Super. 154, 522 A.2d 60 (1987), we held that § 3731(e) provided for a minimum term of imprisonment, and “the statute itself explicitly states the sentences specified are ‘mandatory’ 361 Pa.Super. at 158, 522 A.2d at 62.

In Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987), the defendant was convicted of driving under the influence of alcohol or a controlled substance and had a previous conviction. He was sentenced to not less than forty-eight hours to six months in prison with alternate housing at Arc House. The court below denied the Commonwealth’s petition to modify the sentence to conform with the statute and we reversed, stating at 365 Pa.Super. 15, 528 A.2d 992:

The prosecution contends that on appeal that appellee should have been sentenced to a mandatory minimum sentence of thirty (30) days in prison because appellee had been convicted previously of driving under the influence. We agree. (Emphasis added.)²

The appellant’s reliance on Jacobs v. Robinson, 49 Pa. Cmwwlth. 194, 410 A.2d 959 (1980) is misplaced. In that case, Wayne Jacobs was sentenced to imprisonment for a term of two to five years. He was inadvertently released from prison because of a clerical error in recording his sentence. When the error was discovered, a warrant for his arrest was issued based on a charge of escape. Jacobs was ultimately taken into custody and the charge of escape was dismissed. He was, however, denied credit for the time that he was at large in the community and under the supervision of the Probation Department. On appeal, the Commonwealth Court réversed and directed that he be given credit towards his sentence for the time that he was away from prison. The facts of that case are readily distinguishable. In the case before us, the appellant was sentenced to imprisonment for at least thirty days. The appellant applied for release in the electronic home monitoring program, which was granted by the warden, without the approval or knowledge of the sentencing judge. Placement in the program was not due to a clerical error, but was accomplished by the warden who had no authority to change the sentence imposed by the court. In addition, Jacobs, supra, did not deal with a statute which mandated imprisonment, and we may not modify a legislative enactment.³

The court below properly concluded that the time in the electronic home monitoring program did not constitute imprisonment, and accordingly acted within its discretion in refusing to grant parole to the appellant.

Order affirmed.

POPOVICH and BECK, JJ., file dissenting opinions. CIRILLO, President Judge, joins dissenting opinion by POPOVICH, J.

1 . 75 Pa.C.S. § 3731(e) provides in pertinent part:

75 Pa.C.S.A. § 3731(e) Penalty.—

(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:

(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 jurisdictions within the previous seven years.

Under the electronic home monitoring program, the defendant must wear an electronic device on his person which sounds an alarm if he ventures more than one hundred feet from his telephone which is integrated into the system.

2 . We also note that in our recent decision in Commonwealth v. Conahan, 388 Pa.Super. 369, 565 A.2d 798 (1989) we held that time served in an in-patient alcohol treatment program did not constitute service of a statutorily mandated minimum sentence of imprisonment.

3 . We do not necessarily agree with the decision of the Commonwealth Court in Jacobs, supra, and would limit its application to the narrow factual situation set forth in that case.