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Commonwealth v. Arest7/8/1999
1 In this appeal, the Commonwealth asks us to determine whether Appellee Kazimierz Arest's sentence for a second conviction for driving under the influence of alcohol ("DUI") is illegal. Specifically, we must decide whether the sentence is illegal where Appellee was sentenced to house arrest, without drug and alcohol treatment. We hold that the sentence as imposed is illegal because it did not include a drug and alcohol treatment component as mandated by statute. Accordingly, we vacate the judgment of sentence and remand for re-sentencing consistent with 75 Pa.C.S.A. § 3731(e)(1)(ii) and this opinion.
2 The relevant facts and procedural history of this appeal are as follows. On October 3, 1996, Appellee was tried and convicted in Philadelphia County Municipal Court of DUI. This was Appellee's second DUI conviction. The Philadelphia Municipal Court sentenced Appellee to thirty days to one-year house arrest with electronic monitoring, a fine, and ordered Appellee to pay restitution. The Commonwealth appealed to the Philadelphia County Court of Common Pleas, arguing that the sentence was illegal because it violated specific sentencing provisions of both the Pennsylvania Sentencing Code and was not in compliance with Philadelphia County's Intermediate Punishment Plan. On March 17, 1997, the Court of Common Pleas affirmed the judgment of sentence. The Commonwealth filed a timely notice of appeal on April 16, 1997.
3 Following appellate argument, a three-Judge panel of this Court filed an opinion on May 27, 1998. Thereafter, the Commonwealth filed a motion for re-argument. On August 4, 1998, we granted the Commonwealth's motion for re-argument en banc and the original panel opinion was withdrawn.
4 The Commonwealth raises the following issue on appeal:
"DID THE [TRIAL] COURT ERR IN AFFIRMING THE MUNICIPAL COURT ORDER, WHICH IMPOSED 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).
5 The Commonwealth contends that under 42 Pa.C.S.A. § 9763(c), a sentence of intermediate punishment in the form of house arrest must include a drug and alcohol treatment component. The Commonwealth argues that Appellee's sentence to intermediate punishment in the form of house arrest without drug and alcohol treatment is illegal. The Commonwealth also maintains that the sentence was improper because it was not pursuant to an approved county intermediate punishment program as required by 42 Pa.C.S.A. § 9729(a). We agree.
6 Generally, sentencing is a matter vested in the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Commonwealth v. Campion, 672 A.2d 1328, 1333-1334 (Pa.Super. 1996), appeal denied, 545 Pa. 668, 681 A.2d 1340 (1996) (citing Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Meo, 524 A.2d 902 (Pa.Super. 1987), appeal denied, 516 Pa. 632, 533 A.2d 91 (1987)). Although vested with great discretion, the sentencing court's options are not unlimited. Thier, supra. The court must exercise its sentencing discretion in accordance with the applicable provisions of the Sentencing Code. Commonwealth v. Childs, 664 A.2d 994, 996 (Pa.Super. 1995), appeal denied, 544 Pa. 601, 674 A.2d 1066 (1996).
7 If no statutory authorization exists for a particular sentence, then that sentence is illegal and subject to correction. Thier, supra. An illegal sentence must be vacated. Commonwealth v. Kratzer, 660 A.2d 102, 104 (Pa.Su
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