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Commonwealth v. Shaw1/20/2000
The issue presented in the instant appeal is whether the Superior Court properly determined that the sentencing court erred by finding that the New York State offense of Driving While Ability Impaired ("DWAI"), N.Y. Veh. & Traf. Law § 1192(1), is an "equivalent offense" to the Pennsylvania offense of Driving While Under the Influence of Alcohol ("DUI"), 75 Pa.C.S. § 3731(a)(1), for purposes of sentencing Appellee as a repeat offender pursuant to 75 Pa.C.S. § 3731(e)(1)(iii). For the reasons that follow, we affirm the order of the Superior Court vacating Appellee's judgment of sentence and remanding the matter for resentencing.
The facts and procedural history underlying the instant appeal are as follows. On April 14, 1995, various residents of the Kerryview Trailer Park observed Appellee backing his car into a parked truck and driving around the park in an apparently intoxicated state. Police were called to the scene, and Appellee was arrested for DUI. On September 28, 1995, a jury convicted Appellee of DUI. After finding that Appellee's latest conviction was his third DUI conviction for purposes of determining his appropriate mandatory minimum sentence pursuant to 75 Pa.C.S. § 3731(e)(1), the sentencing court imposed a term of imprisonment of six to twenty-three months and twenty-nine days, plus a $1,000 fine, a $200 statutory surcharge, and costs of prosecution. Appellee filed post-sentencing motions, which were denied. Appellee then filed a timely appeal to the Superior Court.
On appeal, Appellee challenged, inter alia, the sentencing court's determination that his New York state conviction of DWAI should count as a prior DUI conviction for purposes of determining his mandatory minimum sentence pursuant to 75 Pa.C.S. § 3731(e)(1). The Superior Court agreed, finding that Pennsylvania's DUI offense enumerated at 75 Pa.C.S. § 3731(a)(1) and New York State's DWAI offense enumerated at N.Y. Veh. & Traf. Law § 1192(1) are not equivalents, because Pennsylvania's DUI offense requires a greater showing of impairment than does New York State's DWAI offense. Accordingly, the Superior Court concluded that the sentencing court should not have considered Appellee's New York State DWAI conviction to be a prior offense for purposes of calculating Appellee's mandatory minimum DUI sentence, vacated Appellee's judgment of sentence and remanded the matter for resentencing in accordance with its memorandum opinion. The Commonwealth's instant appeal followed.
The Commonwealth first argues that the Superior Court erred in reaching the issue of whether Appellee's New York State DWAI conviction may constitute a prior conviction for purposes of determining his mandatory minimum sentence pursuant to 75 Pa.C.S. § 3731(e)(1), because Appellee failed to set forth in his brief to the Superior Court a statement of reasons relied upon for allowance of appeal of the discretionary aspects of his sentence. We disagree.
Pursuant to section 9781(b) of the Judicial Code, review of the discretionary aspects of a sentence is at the discretion of the Superior Court. See 42 Pa.C.S. § 9781(b). To facilitate the Superior Court's exercise of this discretion, Rule 2119(f) of the Pennsylvania Rules of Appellate Procedure requires appellants seeking appellate review of the discretionary aspects of a sentence to include in their brief a separate statement of the reasons they rely upon for allowance of appeal. See Pa.R.A.P. 2119(f). From such a statement, "the Superior Court decides whether to review the discretionary portions of a sentence based upon a determination that a substantial question concerning the sentence exists." In the Interest of M.W., 725 A.2d 729, 731 (Pa. 1999) (citing Commonwealt
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