Com. v. Godsey

• Decision Date: 26 April 1985
• Parties: COMMONWEALTH of Pennsylvania v. Bart Randolph GODSEY, Appellant.
• Court: Pennsylvania Superior Court

Page 44

492 A.2d 44

342 Pa.Super. 24

COMMONWEALTH of Pennsylvania v. Bart Randolph GODSEY, Appellant.

Superior Court of Pennsylvania.

Argued March 11, 1985.

Filed April 26, 1985.

Gary Lysaght, Lemoyne, for appellant.

Merle L. Ebert, Asst. Dist. Atty., Harrisburg, for Com., appellee.

Before TAMILIA, LIPEZ and BUCHER, JJ. ^*

TAMILIA, Judge:

This appeal involves the mandatory sentencing provisions of the current Pennsylvania law, driving under the influence of alcohol or controlled substance, penalty 75 Pa.C.S.A. § 3731(e).

On October 4, 1981, appellant was arrested for driving under the influence of alcohol and was thereafter placed in the Accelerated Rehabilitation Disposition Program (A.R.D.). Subsequently, on February 24, 1984, appellant was again arrested for driving under the influence. Following the entry of a guilty plea on June 22, 1984, appellant received the mandatory sentence for a second conviction of not less than thirty days nor more than six months imprisonment and a fine of $300. A timely motion for modification of sentence was filed and denied without a hearing, and this appeal followed.

The appellant's arguments are all variations of the same theme, that a prior A.R.D. should not be considered a first offense under the current law (75 Pa.C.S.A. § 3731(e)) ¹ when it was not so considered prior to its effective date. This appears to be a matter of first impression in Pennsylvania. Appellant's argument is threefold:

1.) Application of the mandatory sentencing treating appellant as a repeat offender violates the constitutional proscription against ex post facto laws.

2.) His acceptance of A.R.D. was not knowing, intelligent and voluntary.

3.) The legislature did not intend section 3731(e) to apply retroactively.

Appellant's arguments 1 and 2 must fail. By imposing a more severe penalty on subsequent offenses, the legislature did not increase the penalty for the prior offense. The new section could properly include consideration of a conviction under a prior or comparable law in enhancing the sentence for the present offense. This was an appropriate consideration for sentencing on a subsequent offense. See Commonwealth v. Grady, --- Pa.Super. ---, 486 A.2d 962 (1984) (Grady had entered a plea of guilty to drunk driving under an earlier charge), followed in Commonwealth v. Hernandez, --- Pa.Super. ---, 488 A.2d 293 (1985). Likewise, in volunteering to accept A.R.D., the appellant could not reasonably have concluded that it forever bound the legislature against further legislation it deemed necessary to deal with repeat offenses of the class which was subject of the A.R.D. The benefits of A.R.D. were substantial and he obtained what he bargained for--an opportunity to obtain a clean record and to avoid the possibility of incarceration, upon successful completion of the program.

We believe the appellant must prevail on his third argument as it appears from a close review of 75 Pa.C.S.A. § 3731(e) the intent was prospective only as it must be read in pari materia with the rules on Accelerated Disposition, Rule 175 et seq. ²

Section 3731(e)(1)(ii) 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

(ii) not less than 30 days if the person has previously been convicted of an offense under this section or an equivalent offense in this or other jurisdictions within the previous seven years. (emphasis added)

Reading this section in conjunction with the rules on A.R.D., which provide, by Rule 181, Deferring Adjudication of the Charges Upon Admission of Program After Information or Indictment, that,

When a defendant is accepted into the program of accelerated rehabilitative disposition after information or indictment, the judge shall order that further proceedings on the charge shall be postponed during the term of the program.

Rule 185, Procedure for Obtaining Order Upon Successful Completion of the Program, provides:

When the defendant shall have completed satisfactorily the program prescribed for him and complied with its conditions, he may make an application to the court for an order dismissing the charges against him.... If there are no objections filed [by the Commonwealth] within the thirty-day period, [allowed to the Commonwealth] the judge shall thereafter dismiss the charges against the defendant.

Thus in this case, appellant entered and successfully completed the A.R.D. program. Pursuant to the requirements of the rules, charges were filed, never prosecuted, and subsequently dismissed. The appellant was never convicted. The complication arises with an additional subsection of the present act. It is further provided under 75 Pa.C.S.A. § 3731(e)(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 a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction. (emphasis added)

The language above clearly applies to that section as presently written. Any doubt in construing a penal statute must be resolved in favor of the accused. ³ Commonwealth v. Ashford, 263 Pa.Super. 100, 397 A.2d 420 (1979); Commonwealth v. Darush, 256 Pa.Super. 344, 389 A.2d 1156 (1978). If the legislature intended to include A.R.D. disposition under prior enactments, it could easily have incorporated language eliminating any ambiguity. The defendant who accepts A.R.D. under the 1982 amendment does so with full notice that an A.R.D. acceptance is equivalent to a conviction for future computation of penalty under the present enactment. A person who...