Com. v. Plass

• Decision Date: 18 May 1994
• Citation: 636 A.2d 637,431 Pa.Super. 251
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Kenneth PLASS, Appellee.
• Court: Pennsylvania Superior Court

Page 637

636 A.2d 637

431 Pa.Super. 251

COMMONWEALTH of Pennsylvania, Appellant, v.Kenneth PLASS, Appellee.

Superior Court of Pennsylvania.

Argued Sept. 8, 1993.

Filed Jan. 4, 1994.

Petitions for Allowance of Appeal Granted May 18, 1994.

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James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellant.

James R. Wilson, Asst. Public Defender, Pittsburgh, for appellee.

Before ROWLEY, President Judge, and McEWEN, CIRILLO, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.

OLSZEWSKI, Judge.

The question before this Court en banc is a narrow one: When a defendant is sentenced for a drug offense involving more than 2.0 but less than 10.0 grams of cocaine, should the enhanced mandatory minimum apply if he was convicted of a prior drug trafficking offense before being sentenced, but after the commission of the principal offense?After carefully reviewing the parties' briefs and arguments, we are convinced that the sentence enhancement applies in this case.

On May 28, 1992, a jury convicted Kenneth Plass of possession and possession with intent to deliver cocaine, an offense he committed on June 13, 1991["the second offense"].Sentencing occurred on the same day as the trial.At sentencing, Plass stipulated that he was convicted of a drug trafficking offense, possession with intent to deliver marijuana ["the first offense"], on December 12, 1991["the first conviction"].The first offense occurred on April 4, 1991.As a result, it is evident that Plass committed the first offense before, but was convicted and sentenced after, he perpetrated the second offense.Furthermore, it is clear that the first conviction was final on the date that Plass was sentenced for the second offense.¹

The trial court refused the Commonwealth's request to apply the mandatory minimum sentence of two years incarceration and a $10,000 fine under 18 Pa.C.S.A. § 7508(a)(3)(i), reasoning that since the first conviction did not occur before the second offense, an enhancement was improper.The Commonwealth appeals this refusal and asks us to determine whether the trial court erred in failing to consider the marijuana offense a prior conviction for purposes of this recidivist provision.

I.

Our Crimes Code provides:

(3) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is [cocaine], shall be sentenced to a mandatory term of imprisonment and fine as set forth in this subsection:

(i) when the aggregate weight of the ... substance involved is at least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: three years in prison and a fine of $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and proceeds from the illegal activity[.]

18 Pa.C.S.A. § 7508(a)(3)(i)(emphasis added).The Commonwealth argues that since "at the time of sentencing" Plass had been "convicted of another drug trafficking offense," the marijuana offense, the trial court was required to impose the enhanced sentence.We agree.

Up to this point, no court has discussed the particular interpretation of this statute which concerns us here.We are therefore guided by the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq., and must construe the statute in light of its plain language.Id., § 1903.Moreover, "[w]hen determining the meaning of any particular recidivist statute or section, it is the language of that statute or section, and no other, which must be interpreted or applied."Commonwealth v. Gonzales, 415 Pa.Super. 564, 574, 609 A.2d 1368, 1373(1992).Here, the language of § 7508(a)(3)(i) is unambiguous."If at the time of sentencing, the defendant has been convicted of another drug trafficking offense," the enhancement provisions apply.The legislature has defined "conviction" as it is used in this section:

Previous conviction.--For purposes of this section, it shall be deemed that a defendant has been convicted of another drug trafficking offense when the defendant has been convicted of another offense under section 13(a)(14), (30), or (37) of The Controlled Substance, Drug, Device and Cosmetic Act, or of a similar offense under any statute of any state of the United States, whether or not judgment of sentence has been imposed concerning that offense.

18 Pa.C.S.A. § 7508(a.1).Since the parties do not dispute that the marijuana first offense is "another offense" under the Controlled Substance, Drug, and Device, and Cosmetic Act which would trigger the recidivist provision in § 7508(a)(3)(i), and that "at the time of sentencing" for the current offense he was convicted of the first offense, we simply fail to see, under a plain reading of the statute, how the enhancement was inapplicable.

Plass argues that since the definitional section of "conviction" does not include a temporal element, the statute is ambiguous regarding when the conviction must have occurred for the enhancement to apply.In the absence of such a provision, Plass maintains that we must interpret the statute consistent with other recidivist statutes which embody the traditional notion that a conviction for a previous offense must have occurred prior to the commission of the second offense before a sentence enhancement may be imposed.See generally, Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990(1993);Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253(1992)(en banc ), alloc. granted, 531 Pa. 644, 612 A.2d 983(1992);Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197(1986)vacated on other grounds, 517 Pa. 83, 534 A.2d 1050(1987).We have no quarrel with this philosophy.Our sedulous review of the relevant caselaw and this particular statute, however, convinces us that the legislature did not adopt the traditional rule when drafting the recidivist provision under scrutiny here.

If one thread can be said to tie the many controversies surrounding this Commonwealth's recidivist statutes, it is from which point a sentencing judge must "look back" to determine whether a previous conviction can be used to enhance an offender's sentence.In Commonwealth v. Dickerson, supra, the dispute involved an interpretation of our Commonwealth's general recidivist statute, 42 Pa.C.S.A. § 9714, which covers persons who commit murder, involuntary manslaughter, rape, and other serious felonies.That statute provides for an enhanced sentence when the person has "previously been convicted of a crime of violence" as delineated in subsection (b).42 Pa.C.S.A. § 9714(a).Subsection (b) defines the temporal element, or "look back" provision, of a "previous conviction" as follows:

(2) The previous conviction occurred within seven years of the date of the commission of the instant offense, except that any time during which the offender was incarcerated in any penitentiary, prison, or other place of detention shall not be considered in computing the relevant seven-year period.

Id., § 9714(b)(2)(emphasis added).Dickerson committed two rapes on the same day and was subsequently convicted of both.The question was then whether the enhancement provision should apply, since the Commonwealth contended that the "previous" rape conviction occurred within seven years of the second offense, albeit within seven years after the commission of the offense.

Our Supreme Court rejected this interpretation:

The dispute arises because the legislature apparently did not consider the anomaly posed by appellee's criminal behavior.In cases of recidivism, we expect the following sequence of events: first offense, first conviction, first sentencing, second offense, second conviction, second sentencing.In such a situation, the legislature provided that the mandatory minimum sentence would be imposed at the second sentencing if the first conviction occurred within seven years prior to the commission of the second offense.If the first conviction occurred more than seven years before the second offense, the legislature did not consider the criminal sufficiently blameworthy to merit an enhanced minimum sentence.The sequence of events in this case, however, was: first offense, second offense, first conviction, first sentencing, second conviction, second sentencing.We hold that in this sequence, the mandatory minimum sentencing statute does not apply because the first conviction did not occur within seven years prior to the commission of the second offense.

Id., 533 Pa. at 298-299, 621 A.2d at 992.The Supreme Court, in reaching this result, concluded that the legislature adopted the traditional recidivist policy by express language; the Court thus considered the starting point provided by the statute, "the date of the second offense," and "looked back" to determine whether defendant had previously been conviction for the first offense.

In Commonwealth v. Beatty, supra, we interpreted the Motor Vehicle Code's recidivist provision.Beatty, as did Plass here and Dickerson above, committed an offense which was not reduced to conviction before he repeated his criminal conduct.When he was sentenced on the repeat offense, however, the conviction was final.The statute under the Motor Vehicle Code provides for enhancements if a person has "violated" the DUI statute and has "previously been convicted" of another DUI offense.75 Pa.C.S.A. § 3731(e).The trial court determined that since Beatty had been convicted of the previous offense at the time of sentencing, the enhancement provisions applied.

We held that the "look back" period in the Code's recidivist statute contemplates a "present violation [the date of the second offense] and a prior conviction [the first conviction]."Beatty, supra, 411 Pa.Super. at 454, ...