Com. v. Beatty

• Court: Pennsylvania Superior Court
• Writing for the Court: Before ROWLEY; CIRILLO; HUDOCK; HUDOCK
• Citation: Com. v. Beatty, 601 A.2d 1253, 411 Pa.Super. 450 (Pa. Super. Ct. 1992)
• Decision Date: 21 January 1992
• Parties: COMMONWEALTH of Pennsylvania v. Kevin BEATTY, Appellant.

Page 1253

601 A.2d 1253

411 Pa.Super. 450

COMMONWEALTH of Pennsylvania v. Kevin BEATTY, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 31, 1991.

Filed Jan. 21, 1992.

Joseph K. Cottrell, Philadelphia, for appellant.

Nancy L. Butts, Asst. Dist. Atty., Williamsport, for Com., appellee.

Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, CIRILLO, OLSZEWSKI, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

CIRILLO, Judge:

Appellant Kevin Beatty appeals from a judgment of sentence entered in the Court of Common Pleas of Lycoming County following conviction for violation of 75 Pa.C.S. § 3731 (Driving under influence of alcohol or controlled substance) (DUI). This case presents the following issue on appeal: Whether the enhancement provision of the statutory penalty for section 3731 of the Motor Vehicle Code, 75 Pa.C.S. § 3731(e), was illegally applied by the sentencing court where the court utilized as prior convictions those convictions occurring subsequent to the date of the DUI offense for which the defendant was sentenced?

Section 3731(e) of the Motor Vehicle Code provides:

(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:

(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.

(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

(iv) not less than one year if the person has three times previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

75 Pa.C.S. § 3731(e).

Kevin Beatty pled guilty to a Centre County DUI charge on November 6, 1989 and was sentenced on December 5, 1989. He was sentenced to ninety days imprisonment based upon the court's finding that he had two prior convictions, one in 1983, and another in 1985. See 75 Pa.C.S. § 3731(e)(1)(iii). Beatty was again charged with DUI as a result of an offense occurring on July 9, 1989. On July 5, 1990, Beatty was sentenced for the July 9, 1989 offense. He was sentenced to the mandatory minimum of one year imprisonment, see 75 Pa.C.S. § 3731(e)(1)(iv), as a result of the sentencing court's determination that at the time of sentencing Beatty had three prior convictions within the previous seven years. Beatty argues that at the time of his July 9, 1989 offense he had not yet been convicted of the Centre County charge; his guilty plea on the Centre County charge was not entered until four months after the July 9, 1989 offense. Therefore, Beatty contends, the court improperly applied subsection (iv) of section 3731(e) (providing penalty enhancement for three prior convictions), instead of subsection (iii) (providing penalty enhancement for two prior convictions).

The sentencing court must focus on a defendant's status as a recidivist in order to properly apply the penalty enhancement provisions of section 3731(e). We are presented with the question of what point in time a sentencing court must utilize in establishing the defendant's status--the date of sentencing, or the date of the commission of the offense for which the defendant will be sentenced. This determination is vital to ensure a uniform application of the penalty enhancement provisions.

Here, the sentencing court determined Beatty's recidivist status as of the date of sentencing. The court relied upon the language in the Pennsylvania Supreme Court's decision in Commonwealth v. Gretz, 520 Pa. 324, 554 A.2d 19 (1989). In Gretz, our supreme court affirmed by per curiam order this court's holding that the defendant, who had been convicted of a second DUI offense, could be sentenced as a second offender on the first DUI offense. The supreme court noted that "if, at the time of sentencing, the defendant has previously been convicted, it matters not in what sequence the arrests or other events occurred." Id., 520 Pa. at 325, 554 A.2d at 20 (emphasis added).

More recently, however, in Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426 (1989), our supreme court held otherwise. The decision in Kimmel, in our estimation, implicitly overrules Gretz.

In Kimmel, our supreme court concluded that the trial court was correct in applying the measurement employed by this court in Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987). In Kearns, the seven-year recidivist period was measured from the date of the first conviction to the date of the second offense. The Kimmel court, interpreting the statutory language of section 3731(e)(1), stated:

In this case, the legislature deliberately used the words "violating" and "conviction" to anchor both ends of the computation. When the term "conviction" is used in a statute, it means "the ascertainment of the guilt of the accused and judgment thereon by the court," stating our ancient rule in Commonwealth v. Minnich, 250 Pa. 363, 367, 95 A. 565, 567 (1915). "Violating" in the common usage of the term refers to the time when the offensive conduct takes place, and it should not be confused with the point where the judicial process judges a violator to be accountable and then administers its punishment in accordance with due process. We read Section 3731(e)(1)(ii) as meaning exactly what it says: a present violation and a previous conviction constitute the look-back period. The plain meaning of the statute affords no other interpretation.

Kimmel, 523 Pa. at 111, 565 A.2d at 428 (emphasis added). See Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986); Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986); see also Commonwealth v. Carter, 353 Pa.Super. 203, 509 A.2d 407 (1986) (imposition of mandatory minimum sentence was precluded because previous conviction occurred more than seven years before date of instant offense); cf. Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991) (conviction for enhancing offense pursuant to 42 Pa.C.S. § 9714(b) must precede the commission of the later offense); Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435, appeal granted, 514 Pa. 617, 521 A.2d 932, (1986), appeal dismissed, 517 Pa. 406, 537 A.2d 1370 (1988) (conviction for enhancing offense pursuant to 42 Pa.C.S. § 9714(b) requires that conviction for enhancing offense antedate commission of principal offense).

We conclude, therefore, that the trial court erred in utilizing the date of sentencing as the "anchor" or "look-back" date for calculating the penalty enhancement under section 3731(e)(1). The import of Kimmel is clear. When determining penalty enhancement under section 3731(e)(1), the sentencing court must utilize the date of the offense for which the defendant is to be sentenced, and determine the number of prior convictions as of that date; "a present violation and a previous conviction constitute the look-back period." Kimmel, 523 Pa. at 111, 565 A.2d at 428. Only those convictions prior to the offense date and within the seven year look-back period shall be utilized to determine the applicable penalty enhancement. 75 Pa.C.S. § 3731(e)(1). ¹

Judgment of sentence is vacated, and the case is remanded for resentencing in accordance with this decision. Jurisdiction is relinquished.

HUDOCK, J., files a dissenting opinion.

HUDOCK, Judge, dissenting.

Respectfully, I dissent. I believe the majority has mistakenly applied our Supreme Court's specific holding on the particular facts presented in Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426 (1989), to a substantially different factual pattern presented by the instant appeal. In doing so, the majority has also found that our Supreme Court overruled precedent it had established only eight months earlier.

In Kimmel, supra, the defendant was arrested on December 28, 1986, and charged with Driving Under the Influence, (DUI). ¹ Kimmel pled guilty to this charge on May 4, 1987. Kimmel's record also contained a prior arrest for DUI on November 7, 1979, to which he pled guilty on January 4, 1980. Subsequent to Kimmel's guilty plea in 1987, the trial court determined that Kimmel was a second offender under 75 Pa.C.S.A. § 3731(e)(1)(ii). This Court affirmed in an unpublished memorandum. Commonwealth v. Kimmel, 377 Pa.Super. 653, 541 A.2d 1152 (1988).

Allocatur was granted and our Supreme Court was presented with a factual situation where Kimmel's first offense occurred on November 7, 1979 and the second offense occurred on December 28, 1986--approximately seven years and one month later. Thus, the Supreme Court was faced with the issue of "whether [Kimmel's] record fits 'within the previous seven years.' " Commonwealth v. Kimmel, supra, 523 Pa. at 109, 565 A.2d at 427. In arriving at its conclusion, the Supreme Court noted that this Court had already addressed this problem in Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987). ² In Kearns, the conviction date for the first DUI offense was August 6, 1979, and the second offense occurred on April 23, 1986--approximately six years and eight months later. ³ This Court rejected Kearn's argument that the seven year period should be measured from the date of the first offense to the date of the second offense, or from the date of the prior conviction to the date of the present conviction, finding instead that the seven year period was to be measured from the date of the prior conviction to the date of the second offense.

In Kimmel, supra, our Supreme Court, in expressly evaluating the phrase "within the previous seven years," § 3731(e)(1)(ii), found that the seven year "look-back" period for recidivism...