Commonwealth v. Becker

KELLY, Judge,

concurring:

I join the majority opinion for the reasons set forth in Commonwealth v. Scheinert, 359 Pa.Super. 423 , 519 A.2d 422 (1986) (Kelly, J., concurring; Cavanaugh, J., joining):

In Pennsylvania, prior unadjudicated arrests may properly be considered at sentencing provided the arrests are not regarded as establishing criminal conduct. Commonwealth v. Shoemaker, 226 Pa.Super. 203 , 313 A.2d 342 (1973). Even arrests which resulted in acquittals may be considered at sentencing so long as the judge is aware of the acquittal. Commonwealth v. Tisdale, 233 Pa.Super. 77 , 334 A.2d 722 (1975). Likewise, ARD participation may be considered by the sentencing judge as an appro *67 priate sentencing factor. Commonwealth v. Knepp, [ 307 Pa.Super. 535 , 453 A.2d 1016 (1982)].

... [i]n Commonwealth v. Potts, 352 Pa.Super. 299, 301 , 507 A.2d 1239, 1240 (1986), this Court explained that ’75 Pa.C.S.A. § 3731(e)(2) defines the term conviction for sentencing purposes under the act____’ In other words, the term ‘conviction’ has a special meaning under the act which is separate and distinct from the ordinary meaning of the word in other contexts. See also Commonwealth, Dept. of Trans. v. McDevitt, 57 Pa.Cmwlth. 589 , 427 A.2d 280 (1981), aff'd 500 Pa. 532 , 458 A.2d 939 (1983) (‘participation in ARD program shall be considered a conviction for purposes of determining whether a person is a habitual offender under Section 1542 of the Vehicle Code’). The legislature has not turned the nonadjudicatory ARD into a conviction. Rather, it has designated two separate sentencing factors (A.R.D. participation or a prior conviction) as being equally adequate to trigger the imposition of a mandatory minimum sentence. 4

359 Pa.Superior Ct. at 432, 519 A.2d at 427 . (Emphasis added).

I agree with Judge Beck that the plain meaning of 75 Pa.C.S.A. § 3731(e)(2) is that acceptance into an ARD program and not the successful completion of the ARD program triggers the mandatory minimum sentence provisions. Majority Opinion, supra at 57-61. I also agree with Judge Beck’s analysis of the legislature’s rational basis for using an ARD acceptance as basis to trigger a mandatory minimum sentence. Majority Opinion, supra, at 63-64.

Drunk driving is a serious crime. The Commonwealth’s interest in ending the carnage wreaked upon our highways *68 by drunk drivers is paramount. Commonwealth v. Leninsky, 360 Pa.Super. 49, 57 , 519 A.2d 984, 988-89 (1986) (citing cases and statistics). Allowance of ARD in drunk driving cases is not an indication that drunk driving is a “relatively minor” crime; rather, it is an acknowledgement that drunk driving cases may involve “social and behavioral problems which can best be solved by programs and treatments rather than punishment.” See Comment, reprinted following Pa.R.Crim.P. 185.

However, when the rehabilitative approach fails (as is the case when a individual who has been accepted into an ARD program is subsequently convicted of a drunk driving offense arising after admission into an ARD program), the legislature may reasonably conclude that reliance upon the punitive sanction of incarceration, rather than continued reliance on the rehabilitative approach, is warranted.

Judge Wieand stated in Scheinert, supra:

The law is well-settled that ‘[i]t is the province of the legislature to determine the punishment imposable for criminal conduct.’ Commonwealth v. Wright, 508 Pa. 25, 40 , 494 A.2d 354, 361 (1985), affirmed sub nom, Pennsylvania v. McMillan, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986). ‘The legislature has the right to fix the maximum penalty and likewise can, if it sees fit, name the minimum.’ Commonwealth v. Glover, 397 Pa. 543 , 156 A.2d 114, 11 (1959).

359 Pa.Superior Ct. at 427, 519 A.2d at 424. In the instant case, I would find that prior acceptance into an ARD program is a valid sentencing factor to be considered in sentencing a defendant upon a subsequent unrelated drunk driving conviction, and that it was within the power of the legislature to designate this sentencing factor as one of two factors sufficient to trigger mandatory minimum sentence provisions.

Therefore, I join the majority opinion.

It is important to note that outside of the special context of the mandatory minimum sentence triggering language contained in 75 Pa.C.S.A. § 3731(e)(2) and similar legislative enactments, sentencing courts are not required to give equal weight to ARD participation and prior convictions. See Knepp, supra. Thus, even in a drunk driving case, the sentencing judge may accord ARD participation less weight than a prior conviction in determining whether to sentence the offender to a period of incarceration in excess of the statutory minimum.