J-S30038-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
               Appellee                        :
                                               :
                     v.                        :
                                               :
MATHEW JAMES LYNCH                             :
                                               :
               Appellant                       :   No. 1861 WDA 2017

          Appeal from the Judgment of Sentence November 2, 2017
      in the Court of Common Pleas of Mercer County Criminal Division
                     at No(s): CP-43-CR-0000480-2017

BEFORE:      BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                          FILED AUGUST 7, 2018

       Mathew James Lynch (Appellant) appeals from his judgment of

sentence, wherein, inter alia, he was sentenced as a third-time offender

pursuant to 75 Pa.C.S. § 3806 for driving under the influence (DUI). Upon

review, we affirm, albeit upon a different basis than the one used by the trial

court.1

       On February 26, 2017, police stopped Appellant’s car for a traffic

violation.   A breathalyzer test revealed .207 percent alcohol in Appellant’s

system. Appellant was arrested, and later charged with one count of DUI –

highest rate of alcohol, in violation of 75 Pa.C.S. § 3802(c), along with

miscellaneous summary offenses. On September 11, 2017, via an open plea
____________________________________________


1“[A]n appellate court is not bound by the rationale of the trial court and
may affirm on any basis if the record supports it.” Commonwealth v.
Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S30038-18



agreement, Appellant pled guilty to DUI – highest rate of alcohol and a

summary offense of driving while his operating privilege was suspended.

The Commonwealth nol prossed the remaining summary offenses.

      Appellant and the Commonwealth disagreed as to whether Appellant

had one or two “prior offense[s]” pursuant to 75 Pa.C.S. § 3806 (subjecting

individuals to harsher grading and sentencing on the current offense if they

committed an applicable prior offense and such offense fell into a ten-year-

look-back period). At Appellant’s sentencing hearing, the trial court heard

argument as to whether Appellant should be sentenced as a second- or

third-time offender.   The parties stipulated that Appellant had one prior

offense for a DUI he committed in 2008 (2008 DUI), but disagreed whether

a DUI Appellant committed on March 25, 2006 (2006 DUI) constituted a

prior offense.   On November 9, 2006, Appellant had accepted accelerated

rehabilitative disposition (ARD) for the 2006 DUI, but the ARD was revoked

approximately three months later. Appellant pled guilty to DUI on April 3,

2007, and was sentenced on May 29, 2007. It is Appellant’s contention that

the 2006 DUI fell outside the ten-year-look-back period because he accepted

ARD more than ten years prior to committing the DUI on February 26, 2017

(2017 DUI).

      On November 2, 2017, following the argument on this issue, the trial

court determined that Appellant had two applicable prior offenses within ten

years and sentenced Appellant as a third-time offender.     Specifically, the

trial court determined that the 2006 DUI should be included in the ten-year-

                                   -2-
J-S30038-18



look-back period because ARD had been revoked, resulting in Appellant’s

being sentenced for the 2006 DUI within ten years of his commission of the

2017 DUI.     Accordingly, the trial court sentenced Appellant to costs, a

mandatory fine of $2,500, and incarceration in county jail for 21 months to 4

years. Appellant timely filed a post-sentence motion, which the trial court

denied on November 14, 2017.          Appellant timely filed a notice of appeal.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises one issue: whether the trial court erred by

determining that Appellant had two prior offenses pursuant to 75 Pa.C.S.

§ 3806 for sentencing purposes under 75 Pa.C.S. § 3804(c).           Appellant’s

Brief at 8. This issue presents a question of statutory interpretation, which

is a pure question of law.    Accordingly, our standard of review is de novo

and our scope of review is plenary.       Commonwealth v. Haag, 981 A.2d

902, 904 (Pa. 2009).

      In matters of statutory interpretation, the General Assembly’s intent is

paramount.    Commonwealth v. Hacker, 15 A.3d 333, 335 (Pa. 2011),

citing 1 Pa.C.S. § 1921(a). The best indication of the legislature’s intent is

the plain language of the statute. In re D.M.W., 102 A.3d 492, 494 (Pa.

Super. 2014). Only when the words of the statute are ambiguous should a

reviewing court seek to ascertain the intent of the General Assembly through

considerations of the various factors found in subsection 1921(c) of the

Statutory Construction Act.     Id.    While normally a reviewing court may

construe provisions of statutes liberally, we are required to construe penal

                                       -3-
J-S30038-18



provisions strictly. 1 Pa.C.S. § 1928(b)(1). “When the words of a statute

are clear and free from all ambiguity, the letter of it is not to be disregarded

under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b).

      In the instant case, regarding the 2017 DUI, Appellant was convicted

of DUI – highest rate, pursuant to 75 Pa.C.S. § 3802(c). If an individual has

committed a “prior offense,” determined according to 75 Pa.C.S. § 3806, the

Vehicle Code subjects the individual to harsher grading and sentencing. If

the individual has “one or more prior offenses,” the current violation of

subsection 3802(c) constitutes a misdemeanor of the first degree.            75

Pa.C.S. § 3803(b)(4).    If the individual has one prior offense, the current

violation of subsection 3802(c) carries a mandatory minimum sentence of 90

days’ imprisonment and a fine of $1,500. 75 Pa.C.S. § 3804(c)(2)(i), (ii). If

the individual has two or more prior offenses, the current violation of

subsection 3802(c) carries a mandatory minimum sentence of one year of

imprisonment and a fine of $2,500. 75 Pa.C.S. § 3804(c)(3)(i), (ii).

      To determine what constitutes a prior offense for the purposes of

grading and sentencing, courts must turn to section 3806.

      § 3806. Prior offenses

      (a) General rule.--Except as set forth in subsection (b), the term
      “prior offense” as used in this chapter shall mean any
      conviction for which judgment of sentence has been
      imposed, adjudication of delinquency, juvenile consent decree,
      acceptance of [ARD] or other form of preliminary disposition
      before the sentencing on the present violation for any of the
      following:


                                     -4-
J-S30038-18



          (1) an offense under section 3802 (relating to driving
          under influence of alcohol or controlled substance)[.]

                                       ***

        (b) Timing.—

          (1) For purposes of sections 1553(d.2) (relating to
          occupational limited license), 1556 (relating to ignition
          interlock limited license), 3803 (relating to grading), 3804
          (relating to penalties) and 3805 (relating to ignition
          interlock), the prior offense must have occurred:

             (i) within 10 years prior to the date of the offense for
             which the defendant is being sentenced[.]

                                       ***

75 Pa.C.S. § 3806 (emphasis added).

        There is no dispute that Appellant committed his current offense on

February 26, 2017, and that the ten-year-look-back period runs backward

from that date. Thus, the applicable period is between February 26, 2007,

and February 26, 2017.       As described infra, Appellant has at least one

applicable prior offense during the ten-year-look-back period (i.e., the 2008

DUI).     The issue in dispute relates to the 2006 DUI.          The trial court

determined that because Appellant was sentenced for the 2006 DUI on May

29, 2007, which is during the ten-year-look-back period, the 2006 DUI

counted as a prior offense. Appellant maintains that the 2006 DUI is outside

the ten-year-look-back period because he accepted ARD on November 9,

2006, and subsection 3806(a) refers to “acceptance of ARD” as the operable

date. In other words, the trial court used Appellant’s prior sentencing date



                                      -5-
J-S30038-18



to determine whether he had a prior offense, whereas Appellant argues the

trial court should have used the date he accepted ARD.

       Neither is correct.     This Court recently held that “[u]nder subsection

[3806](a), a ‘prior offense’ is defined as ‘any’ of the enumerated

dispositions … occurring ‘before the sentencing on the present violation.”

Commonwealth v. Mock, __ A.3d __, 2018 WL 1868626, at *2 (Pa. Super.

2018) (emphasis in original; citing 75 Pa.C.S. § 3806(a)).           Subsection

3806(b) narrows the scope of applicable offenses to those occurring “within

10 years prior to the date of the offense for which the defendant is being

sentenced.” Id. at *3 (citing 75 Pa.C.S. § 3806(b)). Thus, the Court held

that courts must determine (1) whether the individual previously had

committed an offense under section 3802; (2) whether the disposition of the

previous section 3802 offense occurred prior to sentencing on the current

offense; and (3) whether the disposition of the previous section 3802

offense occurred within ten years prior to the date the defendant committed

the current offense.2 See id. Accordingly, the trial court erred by using the

date Appellant was sentenced instead of the date of disposition.
____________________________________________


2  The author of this memorandum dissented in Mock based upon the
author’s view that notwithstanding the definition of prior offense set forth in
subsection 3806(a), because the legislature also used the term “[e]xcept as
set forth in subsection (b)”, the phrase “the prior offense must have
occurred” in subsection 3806(b) meant that for purposes of sentencing and
grading, the pertinent date is the date that the offense occurred, not the
offense’s disposition date. See Mock, __A.3d at __, 2018 WL 1868626, at
*3-5 (Strassburger, J., dissenting). Nevertheless, this author recognizes
(Footnote Continued Next Page)


                                           -6-
J-S30038-18



      Thus, the question becomes what is the proper date of disposition for

the 2006 DUI.        Because Appellant initially accepted ARD but later was

convicted of DUI after his ARD was revoked, he had two disposition dates

relating to the 2006 DUI – the ARD acceptance date and the conviction date

following the ARD revocation. This was also the case in Commonwealth v.

Zampier, 952 A.2d 1179 (Pa. Super. 2008). Like Appellant, for purposes of

determining whether he had a prior offense, Zampier sought to have the

sentencing court use the date he accepted ARD, which was outside of the

ten-year-look-back period, instead of the date he was convicted of DUI after

his ARD was revoked, which was in the ten-year-look-back period.           This

Court rejected Zampier’s attempt to use the ARD acceptance date, stating

that because Zampier had been expelled from the ARD program and later

pled guilty to DUI, “it is as if [Zampier] had not participated in the ARD

program.”     Id. at 1182.     This Court determined that the sentencing court

needed only to “look to his prior conviction rather than his ARD participation

to trigger the imposition of a mandatory minimum sentence.”          Id.   The

Court rationalized that although Zampier initially avoided prosecution for DUI




(Footnote Continued) _______________________

that the Court is bound by the majority’s decision in Mock. See State
Farm Fire & Cas. Co. v. Craley, 844 A.2d 573, 575 (Pa. Super. 2004)
(noting that a three-judge panel of this Court is bound by prior decisions of
this Court “until an en banc panel of this Court, the legislature, or the
Supreme Court decides otherwise”).



                                          -7-
J-S30038-18



by accepting ARD, he did not uphold the bargain; thus, he could not reap

the benefit of the bargain he did not uphold. Id.

       Thus, pursuant to Mock and Zampier,3 it is clear that because

Appellant did not uphold his end of the bargain by completing ARD
____________________________________________


3 We note that the language of section 3806 was different at the time
Zampier was sentenced from the language of section 3806 at the time
Appellant was sentenced:

       (a) General rule.—Except as set forth in subsection (b), the term
       “prior offense” as used in this chapter shall mean a conviction,
       adjudication of delinquency, juvenile consent decree, acceptance
       of Accelerated Rehabilitative Disposition or other form of
       preliminary disposition before the sentencing on the present
       violation for any of the following:

              (1) an offense under section 3802 (relating to driving
              under influence of alcohol or controlled substance)[.]

                                           ***

       (b) Repeat offenses within ten years.—The calculation of prior
       offenses for purposes of sections 1553(d.2) (relating to
       occupational limited license), 3803 (relating to grading) and
       3804 (relating to penalties) shall include any conviction,
       adjudication of delinquency, juvenile consent decree, acceptance
       of Accelerated Rehabilitative Disposition or other form of
       preliminary disposition within the ten years before the present
       violation occurred for any of the following:

              (1) an offense under section 3802[.]

75 Pa.C.S. § 3806, quoted by Zampier, 952 A.2d at 1181.

 In comparing the two versions, there are minor changes to subsection
3806(a) and more substantial changes to subsection 3806(b). However, as
explained infra, when interpreting the current version of subsection 3806 in
Mock, this Court held that notwithstanding the phrase “[e]xcept as set forth
(Footnote Continued Next Page)


                                           -8-
J-S30038-18



successfully, and one of the enumerated dispositions in section 3806 (i.e.,

his conviction on April 3, 2007) occurred within the ten-year-look-back

period, the trial court properly sentenced Appellant as a third-time offender.

      Appellant’s reliance on Commonwealth v. Bowers, 25 A.3d 349 (Pa.

Super. 2011) is unavailing. In Bowers, this Court held that Bowers could

be sentenced as a second-time DUI offender because he had accepted ARD

within the ten-year-look-back period, even though he ultimately was

acquitted of DUI after the ARD was revoked. Appellant argues this means

that once a defendant enters ARD, the ultimate disposition is no longer

relevant and courts cannot use the ultimate disposition for repeat offender

sentencing purposes. This argument is unpersuasive. Appellant is correct

that this Court held that “the fact that Bowers was ultimately innocent of the

charges leading to his ARD acceptance does not dictate whether he was a

first-time   DUI offender      for   sentencing   purposes, since   the   eventual

disposition of those charges is irrelevant.” Id. at 354. Nevertheless, in so

holding, this Court specifically distinguished Zampier.        Unlike Zampier’s

situation (and unlike Appellant’s situation), Bowers’s ARD withdrawal came


(Footnote Continued) _______________________

in subsection (b),” other than timing restrictions, subsection 3806(b) does
not alter the definition of the phrase “prior offense” set forth in subsection
3806(a) as the enumerated dispositions. Mock, __A.3d at __, 2018 WL
1868626, at *3. Thus, given that holding, none of the changes to section
3806 affects the interpretation espoused in Zampier or its application to this
case, as both versions of subsection 3806 list a conviction and acceptance of
ARD as an enumerated disposition.



                                          -9-
J-S30038-18



after and because of his second DUI offense, and both the ARD withdrawal

and the acquittal disposition occurred within the ten-year-look-back period.

Id. at 357-58. Thus, Bowers did not overrule Zampier, and Zampier still

controls the instant case.

      Moreover, we note that subsection 3806(a) uses the disjunctive in

listing the enumerated dispositions.    See 75 Pa.C.S. § 3806(a) (directing

courts to consider, inter alia, any conviction for which judgment of sentence

has been imposed or ARD acceptance). Appellant points to nothing in the

statute that requires courts to ignore an applicable disposition that occurs

within the ten-year-look-back-period.       Thus, the trial court properly

sentenced Appellant as a third-time offender.

      Judgement of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2018




                                   - 10 -
