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Commonwealth v. Tustin11/15/2005
75 Pa.C.S.A. § 3731(e) (1996).
8 Instantly, Section 3806(b), which altered the "look-back" period from seven to ten years, became effective on February 1, 2004, more than three months before Appellant was arrested for the instant DUI conviction. The trial court's application of Section 3806(b) did not further punish Appellant for his 1995 offense, but created a penalty for his 2004 offense. See Witte, supra; Grady, supra. Therefore, Appellant had notice of this statute and its effects at the time of his 2004 arrest. See Mayfield, supra. The statute is clearly written and not vague, and since Appellant had notice of this amendment altering the "look-back" period, he could properly gauge his future conduct. See id. Contrary to Appellant's argument, due process does not require an appellant to receive notice of when he may once again commit the same violation in the future. Cf. Witte, supra.
9 Furthermore, Appellant mistakenly relies on Commonwealth v. Godsey, 492 A.2d 44 (Pa.Super. 1985), for the proposition that his situation warrants the dismissal of his 1996 offense. In Godsey, the appellant completed the Accelerated Rehabilitation Disposition ("ARD") Program, and as a result, his charges were dismissed. Id. at 47. Subsequently, new legislation was enacted stating that offenses resolved through ARD would be considered convictions for purposes of grading future offenses. Id. This Court held the new legislation did not apply retroactively. Id. Since the appellant agreed to enter ARD before the statute treated a criminal charge disposed by completion of ARD as a conviction, the Court determined his post-ARD offense was his first offense. Id. The Court reasoned the appellant's due process rights would otherwise be violated by construing his previously dismissed charge into a conviction. Id. Furthermore, the Godsey Court determined "look-back provisions" do not increase penalties for prior convictions. See id. at 46; see also Commonwealth v. Frost, 492 A.2d 448, 450-51 (Pa.Super. 1985) (emphasizing Grady still applied and limiting holding specifically to ARD cases).
10 Here, Appellant's situation would be distinguishable from Godsey. Appellant does not claim his previous DUI conviction from 1996 is a previously dismissed charge that is now being treated as a conviction. As the Godsey Court clearly stated, new "look-back provisions" may properly include previous convictions. See id. Therefore, we conclude Appellant's due process claim would be without merit.
11 Based on the foregoing, we hold an appellant who was convicted while the "look-back" provision of former Section 3731(e) was in effect, remains subjects to the ten-year "look-back" period required by Section 3806(b) even if the Section 3731(e) period has expired. Appellant was not denied his due process rights, because he was put on notice of the increased "look-back" period when Section 3806(b) was enacted. Accordingly, we would affirm the judgment of the trial court.
12 Judgment of sentence affirmed.
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