Commonwealth v. Pryor

500 A.2d 811, 347 Pa. Super. 239, 1985 Pa. Super. LEXIS 8740
CourtSupreme Court of Pennsylvania
DecidedSeptember 27, 1985
Docket00425
StatusPublished
Cited by12 cases

This text of 500 A.2d 811 (Commonwealth v. Pryor) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Pryor, 500 A.2d 811, 347 Pa. Super. 239, 1985 Pa. Super. LEXIS 8740 (Pa. 1985).

Opinions

SPAETH, President Judge:

This is an appeal by the Commonwealth, pursuant to 75 Pa.C.S. § 3731(e)(4), from a judgment of sentence for driving under the influence of alcohol, 75 Pa.C.S. § 3731(a). The Commonwealth argues that by ordering appellee released on parole after 48 hours in jail, the trial court violated the provision of 75 Pa.C.S. § 3731(e)(1)(ii) that a person previously convicted of driving under the influence of alcohol — as appellee had been — “shall” be sentenced to a minimum term of imprisonment of “not less than 30 days.” We agree and therefore vacate the judgment of sentence and remand for resentencing.

On March 5, 1984, appellee pleaded guilty to driving under the influence of alcohol. 75 Pa.C.S. § 3731(a)(1) and (4). The trial court knew that in 1982 appellee had been convicted of driving under the influence of alcohol, N.T. 3/5/84, 20-21, 25-26, but it refused to order appellee to serve a minimum term of imprisonment of not less than 30 days, as provided by 75 Pa.C.S. § 3731(e)(1)(ii).1 The court [241]*241informed appellee that “since your offense occurred prior to the new act [Act of Dec. 15, 1982, P.L. 1268, No. 289, § 9, effective in 30 days], we may take that into account for the sentence, but will not impose thirty days on you but impose two days on you.” N.T. 3/5/84, 25-26. The sentence in its entirety was as follows:

And now Mar 5 1984, 19 [sic ] Defendant sentenced to pay a fine of $300.00 to the Commonwealth. Pay costs of prosecution, and undergo an imprisonment of not less than 48 hours or more than 6 months in the Allegheny County Jail and stand committed.
EO: DIE:: SENTENCE EFFECTIVE
April 2, 1984 at 8:00 P.M. The court recommends alternative housing at Hummell House[.] Defendant to pay fine and costs at a rate as arranged by the Clerk of Courts. Defendant is hereby paroled at expiration of service of 48 hours minimum sentence. Defendant to report to AC [Allegheny County] Jail on Apr 2, 1984 at 8:00 P.M. Defendant to be released in the custody of a representative of Hummell House on condition he pay the costs of alternative housing forthwith.

On March 15, 1984, the Commonwealth filed a motion to modify sentence. In response, on April 3, 1984, the trial court modified appellee’s sentence:

And Now April 3, 1984, after hearing in open court, Commonwealth’s Motion to Modify Sentence is Granted. Sentence amended as follows.
And now April 3, 1984 Defendant sentenced to pay a fine of $300.00 to the Commonwealth. Pay costs of prosecution, and undergo an imprisonment of not less than 30 days or more than 6 mos. in the Allegheny County Jail [242]*242and stand committed. Defendant to receive credit for time he is presently serving at Hummell House. Defendant to be paroled on April 4, 1984 at the completion of 48 hour sentence. Defendant to undergo evaluation, to attend alcohol safe driving school, and to participate in any further evaluation and/or treatment deemed necessary by the probation office and the regional alcohol program. Defendant to pay a $150.00 fee in addition to regular court costs.2

The Commonwealth appealed the next day.3

The trial court states in its opinion that it modified the sentence “in response” to the Commonwealth’s argument regarding appellee’s prior conviction. Slip op. of tr. ct. at 1. The court supports its decision to parole appellee after 48 hours by stating that “[t]he decision and supporting rationale in this case is controlled by and consistent with the opinion entered in the case of Commonwealth of Pennsylvania v. Robert B. Crye, Superior Court of Pennsylvania Docket Numbers 759 PGH 84 and 761 PGH 84 and Court of Common Pleas of Allegheny County Docket Numbers CC 8311842A and CC 8311217A.”' Id. at 2. We have not yet listed Crye for argument; the opinion of the Court of Common Pleas in that case was apparently not published, and no copy of it was attached to the trial court’s opinion in this case.

We may dispose of two issues summarily. The first issue is whether appellee’s 1982 conviction of driving under [243]*243the influence of alcohol could properly be considered by the trial court. (The briefs divide this issue into two sub-issues: whether the provision pursuant to which appellee was sentenced was “ex post facto legislation,” and whether appel-lee’s 1982 conviction was an “equivalent offense” within the provision.) This issue need not be decided, for, with no objection from appellee, the conviction was considered, and, notwithstanding the trial court’s comments during resen-tencing, N.T. 4/3/84, 3-4, appellee’s sentence was modified to reflect the conviction, see slip op. of tr. ct. at l.4 The second issue is whether the Commonwealth was obliged to allege the 1982 conviction in the information. This issue is raised for the first time on appeal. The record shows that the information did not allege the 1982 conviction. At the resentencing proceeding the trial court nevertheless imposed the minimum sentence, as though the conviction had been alleged. The Commonwealth may therefore not complain, and neither may appellee, for he did not object to the court considering the conviction, either during the resen-tencing hearing or in a motion to modify sentence. Given appellee’s failure to raise this issue in the trial court and his repeated requests that we affirm the judgment of sentence, see, e.g,, Brief for Appellee at 7, 10, 15, 22, we find the issue of the necessity of alleging a prior conviction waived.

The issue that is properly before us is whether, by ordering appellee released on parole after 48 hours in jail, the trial court violated the sentencing provisions of 75 Pa.C.S. § 3731(e)(1)(ii).

[244]*244Appellee argues that the trial court could order appellee released on parole because a court “may grant parole ... even if there is a mandatory sentence, unless such is expressly prohibited by the legislature.” Brief for Appellee at 20. This argument begs the question, which is whether here the legislature has expressly prohibited parole:

The power to grant paroles is not inherent in courts; Pennsylvania never had such power until it was given to them by the Act of June 19, 1911, P.L. 1059, and then only with respect to prisoners in county jails and workhouses. What the legislature thus gave it can take away' again in whole or in' part and vest in some other agency of government. The legislature has exclusive power to determine the penological system of the Commonwealth. It alone can prescribe the punishments to be meted out for crime. It can provide fixed penalties or grant to the court such measure of discretion in the imposition of sentences as it may see fit. It may enact that prison confinement shall be the punishment for crime or may abolish prisons altogether and adopt some other method of enforcing the criminal law.
Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 587, 28 A.2d 897, 900 (1942).

We have already quoted the statutory language5; the critical provision is that “the sentencing court shall order the person to ... serve a minimum term of imprisonment of ... not less than 30 days____” 75 Pa.C.S.

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Cite This Page — Counsel Stack

Bluebook (online)
500 A.2d 811, 347 Pa. Super. 239, 1985 Pa. Super. LEXIS 8740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-pryor-pa-1985.