J-S68004-17

                                2018 PA Super 90

 COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                           Appellee        :
                                           :
                   v.                      :
                                           :
 MICHAEL A. MOCK                           :
                                           :
                           Appellant       :     No. 801 MDA 2017

              Appeal from the Judgment of Sentence May 1, 2017
        In the Court of Common Pleas of Mifflin County Criminal Division
                       at No(s): CP-44-CR-0000506-2016

BEFORE:       LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

DISSENTING OPINION BY STRASSBURGER, J.:

                                               FILED APRIL 19, 2018

        Because the Majority erred in its interpretation of the plain language of

75 Pa.C.S. § 3806, I respectfully dissent.

        As explained by the Majority, Mock was convicted of driving under the

influence (DUI) – highest rate pursuant to 75 Pa.C.S. § 3802(c). The grading

and sentencing for violations of subsection 3802(c) depend on whether the

individual has committed prior offenses. If the individual does not have any

prior offenses, a violation of subsection 3802(c) constitutes a misdemeanor

with a maximum sentence of six months’ imprisonment and a mandatory

minimum sentence of not less than 72 consecutive hours’ imprisonment and

a fine between $1,000 and $5,000. 75 Pa.C.S. §§ 3803(b)(2), 3804(c)(1)(i),

(ii).   If the individual has “one or more prior offenses,” the violation of



*Retired Senior Judge assigned to the Superior Court.
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subsection 3802(c) constitutes a misdemeanor of the first degree, which

carries a maximum sentence of five years, and a mandatory minimum

sentence of at least 90 days’ imprisonment and a fine of $1,500. 75 Pa.C.S.

§§ 3803(b)(4), 3804(c)(2)(i), (ii); 18 Pa.C.S. § 1104(1).

     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 … 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) 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; or

           (ii) on or after the date of the offense for which the
           defendant is being sentenced.

        (2) The court shall calculate the number of prior offenses, if
        any, at the time of sentencing.




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         (3) If the defendant is sentenced for two or more offenses
         in the same day, the offenses shall be considered prior
         offenses within the meaning of this subsection.

75 Pa.C.S. § 3806 (emphasis added).

      Both the Majority and I agree that subsection 3806(a) constitutes a

general rule that applies to Chapter 38 of the Vehicle Code as a whole, and

subsection 3806(b) constitutes a specific rule that applies to the sections

enumerated therein, including section 3803 (relating to grading) and section

3804 (relating to penalties).    See Majority Memorandum at 5; see also

Commonwealth v. Haag, 981 A.2d 902, 905 (Pa. 2009) (interpreting a prior

version of section 3806 in the same manner).

      Nevertheless, the Majority concludes that the language of the general

rule “‘[e]xcept as set forth in subsection (b)’ appearing at the beginning of

subsection (a) does not alter, for purposes of subsection (b), the essential

definition of ‘prior offense’ as being the disposition (i.e. conviction for which

judgment of sentence has been imposed, et al.) rather than the actual

commission of the offense.” Majority Memorandum at 5. According to the

Majority, the only effect subsection 3806(b) has on subsection 3806(a) is to

incorporate a ten-year time limitation.     Id. at 6.    In my view, the plain

language of section 3806 dictates otherwise.

      The general rule in subsection 3806(a) is limited by the exclusionary

phrase, “except as set forth in subsection (b).”        Our Supreme Court has

interpreted this exclusionary phrase to mean that “[subs]ection 3806(a)



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expressly yields to [subs]ection 3806(b) when the latter is applicable….” 1

Haag, 981.A.2d at 906. In other words, our Supreme Court has made clear

that by using the phrase “[e]xcept as set forth in subsection (b),” our

legislature intended to set forth limitations in subsection 3806(b) that alter

the general definition of “prior offense” set forth in subsection 3806(a) for

purposes of sentencing and grading. Id. at 907. The legislature has done so

even though “the courts may have occasion to apply the provisions of

[subs]ection 3806(b) much more frequently than the “[g]eneral [r]ule” of

[subs]ection 3806(a).” Id. at 907 n.10. Therefore, the Majority, which does

not discuss Haag and cites it only for the standard of review, is incorrect in

concluding that subsection 3806(b) has no effect on subsection 3806(a)

except for the incorporation of a ten-year time period.

      I now turn to the specific rule set forth in subsection 3806(b).     In

contrast to subsection 3806(a), which requires courts to use “any conviction

for which judgment of sentence has been imposed” without any limitations on

timing so long as the conviction occurs “before the sentencing on the present

violation…,” subsection 3806(b) narrows the window to include only offenses

occurring in certain periods.   75 Pa.C.S. § 3806(a), (b).    Specifically, to

constitute a “prior offense” for grading and sentencing purposes, the prior

offense “must have occurred … within 10 years prior to the date of the


1 The Court interpreted a prior version of the statute in Haag, but the prior
version contained the same exclusionary phrase in subsection 3806(a) as the
current version.

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offense for which the defendant is being sentenced….” Id. at § 3806(b)(1)(i)

(emphasis added). In other words, in general when a court is tasked with

determining whether an individual has a prior offense, the court must look

only to see if the individual has been convicted of a section 3802 violation at

any point prior to sentencing on the current section 3802 offense. But for

purposes of sentencing, grading, or any of the other three sections

enumerated in subsection 3806(b), the court must look not only to see if the

individual has been convicted of a section 3802 violation at any point prior to

sentencing on the current section 3802 offense, but it must also use the timing

subsection to determine if the individual committed the prior offense

sometime within the 10 years before the individual committed the subsequent

offense.

      Here, Mock’s DUIs occurred on June 3, 2006, and July 10, 2016. He

was convicted of the June 3, 2006 DUI prior to his sentencing for the July 10,

2016 DUI.    Thus, under the general rule, his June 3, 2006 DUI is a prior

offense. See 75 Pa.C.S. § 3806(a) (“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 … before the sentencing on the

present violation for … an offense under section 3802[.]”).      However, our

analysis cannot stop there; we also have to consider the timing restrictions

set forth in subsection 3806(b). Because his prior conviction stemmed from

a DUI that occurred more than 10 years before the date of the offense for



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which he was being sentenced, for purposes of grading, sentencing, and the

three other sections not at issue, his June 3, 2006 DUI cannot constitute a

prior offense. See 75 Pa.C.S. § 3806(b) (“For purposes of sections … 3803

(relating to grading) [and] 3804 (relating to penalties) …, the prior offense

must have occurred … within 10 years prior to the date of the offense for which

the defendant is being sentenced[.]”).

      By interpreting section 3806 to include Mock’s June 3, 2006 DUI, the

Majority ignores the plain language of the specific timing restriction set forth

in subsection 3806(b)(1)(i), which requires us to consider only convictions

that stem from prior offenses that “have occurred … within 10 years prior to

the date of the offense for which the defendant is being sentenced.”         75

Pa.C.S. § 3806(b)(1)(i) (emphasis added).       Given that the legislature has

changed repeatedly the parameters for the look-back period in different

revisions of subsection 3806(b), I must assume its decision to use the word

“occurred” in the current version was deliberate.     Compare 75 Pa.C.S. §

3806(b) (enacted May 26, 2016) (referring to a prior offense that “must have

occurred … within 10 years prior to the date of the offense for which the

defendant is being sentenced…” – i.e., occurrence to occurrence) with id.

(effective November 29, 2004 to December 25, 2014) (referring to “any

conviction … within the ten years before the present violation occurred” – i.e.,

conviction to occurrence) and id. (effective December 26, 2014 to May 24,

2016) (referring to “any conviction, whether or not judgment of sentence has



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been imposed for the violation … within the ten years before the sentencing

on the present violation…” – i.e., conviction to sentencing).

      We must interpret the statute as written. Therefore, based upon the

plain language of the statute, Mock does not have a prior offense for purposes

of grading and sentencing, and his judgment of sentence imposing enhanced

penalties should be vacated.




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