J-S68004-17

                                   2018 PA Super 90


COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      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.

OPINION BY LAZARUS, J.:                                  FILED APRIL 19, 2018

        Michael A. Mock appeals from his judgment of sentence, entered in the

Court of Common Pleas of Mifflin County, after he was convicted, in a nonjury

trial, of one count of driving under the influence of alcohol (DUI) – highest

rate, as a second offense.1 Upon careful review, we affirm.

        Mock was arrested on July 10, 2016, after Corporal Arthur Stanton of

the Mifflin County Regional Police pulled him over for repeatedly crossing the

fog line and double yellow lines of State Road 522. A criminal information was

filed on October 12, 2016, charging Mock with DUI – general impairment

(Count 1) and driving an unregistered vehicle (Count 3), in addition to the

above charge of DUI – highest rate, as a second offense (Count 2).

        On October 25, 2016, Mock filed a motion to quash the information,

asserting that his prior DUI offense, which occurred on June 3, 2006, and for
____________________________________________


1   75 Pa.C.S.A. § 3802(c); 75 Pa.C.S.A. § 3806.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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which he was convicted on March 27, 2007, did not fall within the ten-year

look-back period set forth in section 3806(b) of the Motor Vehicle Code and,

as such, he was improperly charged as a second-time offender. The trial court

denied the motion and Mock proceeded to a stipulated nonjury trial, at which

time the Commonwealth nolle prossed Counts 1 and 3 and the court entered

a verdict of guilty as to Count 2. The court sentenced Mock to a term of 90

days’ to 5 years’ imprisonment, plus fines, costs and related penalties. 75

Pa.C.S.A. § 3804(c)(2).

      This timely appeal follows, in which Mock asserts that both the motion

court and the trial court erred as a matter of law

      by applying [section 3806(a)] to [section 3806(b),] thus
      calculating [Mock’s] current DUI as a second in ten M1 for grading
      and sentencing purposes instead of only using section 3806(b).
      Specifically[,] the [c]ourt erred by calculating the grading and
      possible penalties under section 3806(a) even though they are
      specifically carved out to be calculated under section 3806(b).

Brief of Appellant, at 1-2.

      Mock’s appellate 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 (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.A. § 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.


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2014) (citation and quotation marks omitted). 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 section 1921(c) of the Statutory Construction Act. Id.

      Mock was convicted under section 3802(c) of the Act, DUI – highest

rate. The penalties for offenses committed under that section are set forth in

section 3804(b), which provides for a mandatory minimum sentence of 90

days’ imprisonment in the case of a second DUI – highest rate of impairment

offense. See 75 Pa.C.S.A. § 3804(c)(2)(i). Section 3806, in turn, provides

the framework for determining what qualifies as a “prior offense” for purposes

of grading and sentencing as follows:

      § 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 . . . 3803 (relating to grading),
         3804 (relating to penalties) . . . , 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[.]



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75 Pa.C.S.A. § 3806.

     The trial court interpreted section 3806 to mean that

     any conviction, for which judgment of sentence has been imposed,
     within ten years prior to the date of the current DUI offense, shall
     be considered for grading and sentencing purposes of a current
     DUI offense. To determine whether a prior DUI offense . . . is
     within the ten year look[-]back period of the current DUI offense,
     this [c]ourt looks to the current DUI offense date and the prior
     offense conviction date for which judgment of sentence has been
     imposed. The actual date of the prior DUI offense need not be
     within the statutorily mandated ten year look[-]back period.

Trial Court Opinion, 6/8/17, at [2-3]. Accordingly, the court concluded that

Mock’s March 27, 2007 conviction was a “prior offense” that resulted in Mock

being subject to sentencing as a second-time offender under section 3804.

     In challenging the court’s finding, Mock argues that the phrase

     “the prior offense must have occurred” [as set forth in subsection
     3806(b)] means the offense date of any DUIs in which [Mock] was
     previously convicted of [sic]; thus calculating ten years back from
     the date of the offense for the currently charged DUI to the date
     of offense of any other DUI dates of offense with in [sic] the ten
     years where [Mock] received a valid conviction for the DUI. The
     offense must have occurred within the ten year look[-]back
     period, and the offense occurs on the date of offense not at any
     other time. This calculation is simple and set in stone. It is the
     date of offense to the date of offense.

Brief of Appellant, at 11.   Accordingly, Mock asserts, because the date on

which he actually committed his previous DUI, June 3, 2006, was more than

ten years prior to the date he committed his current offense, July 10, 2016,

the current offense should not be deemed a second offense for purposes of

grading and sentencing. We disagree.




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      Section 3806 contains both a “general rule,” i.e., subsection (a), which

applies to Chapter 38 as a whole, and a “specific rule,” i.e., subsection (b),

which applies to the sections enumerated therein, including section 3803

(relating to grading) and section 3804 (relating to penalties).          Under

subsection (a), “prior offense” is defined as “any” of the enumerated

dispositions (including, as is relevant here, conviction for which judgment of

sentence has been imposed) occurring “before the sentencing on the present

violation[.]” 75 Pa.C.S.A. § 3806(a) (emphasis added). Thus, for example,

for purposes of subsection (a), a DUI conviction twenty years before

sentencing in the current case could be considered a “prior offense.”

      In contrast, subsection (b), which applies only to the sections of Chapter

38 enumerated therein, narrows the scope of applicable offenses from “any .

. . before the sentencing on the present violation,” see id., to those occurring

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

being sentenced” or “on or after the date of the offense for which the

defendant is being sentenced.” 75 Pa.C.S.A. § 3806(b).

      Contrary to Mock’s assertion, the language “[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. Rather, the

phrase merely signals that, for purposes of subsection (b), a “prior offense”

does not encompass “any” disposition, as it does in subsection (a). Instead,

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as the heading (“Timing”) suggests,2 “prior convictions” that may be

considered for purposes of grading and sentencing under subsection (b) are

only those that occurred within the more limited time frames delineated

therein.

       The learned Dissent asserts that we “ignore the manner in which

subsection (b) modifies the definition of prior offense in subsection (a)[.]”

Dissenting Opinion, at 6.        Indeed, as we make clear above, we find that

subsection (b) does, in fact, modify subsection (a) by limiting the universe of

dispositions relevant to determining the applicability of recidivist sentencing

enhancements to those occurring: (1) within ten years prior to the date of

the current offense, or (2) on or after the date of the current offense. Where

we respectfully differ with the learned Dissent is on whether the phrase “prior

offense,” as used in subsection (b), refers to the date of the offense, or the

date of conviction or other disposition.         We believe that our reading of

subsection (b) comports both with the legislature’s intent and our obligation

to interpret the statute as written.

       The language of the statute is clear and unambiguous and the trial court

did not err in its interpretation and application. The court properly deemed

Mock’s prior conviction date, March 27, 2007, as the date of his “prior offense”

____________________________________________


2 “The headings prefixed to titles, parts, articles, chapters, sections and other
divisions of a statute shall not be considered to control but may be used to aid
in the construction thereof.” 1 Pa.C.S.A. § 1924.



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for purposes of subsection (b) and correctly sentenced him as a second-time

offender. Accordingly, Mock is entitled to no relief.

      Judgment of sentence affirmed.

      DUBOW, J., joins the opinion.

     STRASSBURGER, J., files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/19/18




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