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Commonwealth v. Arest5/27/1998
Appeal from the Judgment of Sentence March 17, 1997 In the Court of Common Pleas, Criminal Division Philadelphia County, No. M.R. 97-000830 M.C. 9601-2153
This is an appeal by the Commonwealth from a March 17, 1997 judgment of sentence against appellee, Kazimierz Arest, for driving under the influence of alcohol or controlled substance. The Commonwealth raises the following issue for our review:
Did the lower court err in affirming the Municipal Court order, which imposes an illegal sentence of intermediate punishment (house arrest) for [appellee's] second conviction of driving while under the influence of alcohol, where such sentence was in direct contravention of the provisions of the Sentencing Code set forth at 42 Pa. C.S. §§ 9729(a) and 9763(c)?
Commonwealth's Brief at 4.
On October 3, 1996, appellee was tried and convicted in Philadelphia Municipal Court of driving under the influence . On October 17, 1996, appellee was sentenced to thirty (30) days to one (1) year house arrest with electronic monitoring, fined $532.00, and ordered to pay any restitution to be determined by the probation department. The Commonwealth appealed to the Common Pleas court arguing that the sentence was illegal. On March 17, 1997, the Common Pleas court affirmed the judgment of sentence. This timely appeal followed.
The Commonwealth challenges the legality of appellee's sentence, first arguing that the sentence was illegal because the sentencing code only allows a sentence of house arrest to be imposed pursuant to an approved county intermediate punishment program. We disagree.
Sentencing is a matter vested in the sound discretion of the trial court. Commonwealth v. Kratzer, 660 A.2d 102, 104 (Pa. Super. 1995). However, where the court imposes an illegal sentence, the sentence must be corrected. Id.
Section 9729 allows a court to sentence eligible offenders to intermediate punishment pursuant to a county intermediate punishment plan. See 42 Pa.C.S. § 9729. If Section 9729 were alone in providing for intermediate punishment, we would be inclined to accept the Commonwealth's argument. However, section 9721 of title 42 also addresses intermediate punishment. Section 9721 deals with sentences generally and states that a court, in determining the sentence to be imposed, shall Aconsider and select one or more of the following alternativesY(6) intermediate punishment.@ 42 Pa.C.S. § 9721. Given that section 9721 makes no mention of a county intermediate punishment program, we find that a defendant may be sentenced to intermediate punishment outside of the context of a county intermediate punishment program. Thus, we dismiss this claim.
The Commonwealth also argues that the sentence was illegal in that a defendant convicted of driving under the influence of alcohol or controlled substance may not be sentenced to house arrest without drug and alcohol treatment. We agree.
Section 9763 of Title 42 outlines the parameters of sentences of intermediate punishment. Relevant here is part (c), which states:
(c) Restriction.- A defendant convicted under 75 Pa.C.S. § 3731(e) (relating to driving under influence of alcohol or controlled substance) may only be sentenced to intermediate punishment:
in a residential inpatient program or in a residential rehabilitative center; or
by house arrest or electronic surveillance combined with drug and alcohol treatment.
42 Pa.C.S. § 9763(c).
'When the language of a statute is clear and unambiguous, the judiciary must read its provisions in accordance with their plain meaning and common usage.' Commonwealth v. Bell, 5
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