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Commonwealth v. Messmer12/1/2004
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Allegheny County, which sentenced Appellant to two and one-half to five and one-quarter years' imprisonment after Appellant pleaded guilty to first-degree misdemeanor driving under the influence of alcohol ("DUI"), 75 Pa.C.S.A. § 3731, and driving while his operator's privileges had been suspended--DUI related, 75 Pa.C.S.A § 1543(b). Appellant first argues that his sentence is illegal because it exceeds the statutory maximum of five years' imprisonment for a first degree misdemeanor, an argument with which the Commonwealth says it is constrained to agree. The trial court disagrees, explaining that Appellant's sentence aggregates the five year DUI sentence and the 90 day driving with suspended license sentence. Appellant also challenges the discretionary aspects of his sentence. We vacate and remand for correction of a defective written sentencing order.
2 On April 24, 2002, fifty-seven year old Appellant pleaded guilty to two counts of DUI, one count of careless driving, and one count of driving with a suspended license. Represented by retained counsel at his guilty plea colloquy, Appellant stated that he understood the maximum penalties he faced under his plea were two and one-half to five years' imprisonment for DUI, and ninety days' imprisonment for driving with a suspended license sentence. N.T. 4/24/02 at 2-3. Appellant's subsequent health problems and counsel's apparent disbarrment caused repeated postponement of sentencing until June 16, 2003, at which time Appellant was represented by newly retained counsel.
3 At the sentencing hearing, the court expressed concern with Appellant's pre-sentence report, which showed five prior DUIs and a simple assault in the twenty-four years prior to the present offenses. It was the court's opinion that the report proved both Appellant's unwillingness to address a serious drinking problem and his callous disregard for public safety:
THE COURT: Mr. Messmer, I'm appalled by your presentence report, because even the offense that's not a DUI I'll be willing to bet a hundred bucks was fueled by alcohol, the simple assault. You've got six DUIs starting in 1986*fn2, so you've had five other occasions to address the problem, and either you are unwilling or unable to do so, and I bet you if I go back into those files, that what I'm going to find is that your blood alcohol content is consistent with each and every one of those DUIs. This is two and a half times the legal limit.
I have two sons. One just graduated from high school last week. The other one, second year in college, is going to be in his third year. They both drive. My wife drives. My secretary drives. The tipstaff drives. My deputy sheriff drives. My minute clerk drives. They're all at risk when you're out there because you have made a conscious decision that you don't give a damn about anybody. You are going to drink until you're falling-down drunk, and you're going to get behind the wheel of a car where you place my wife, my children, my family, my friends, and the people who I come in contact with [sic], those being any human being on the face of this earth, in grave danger of death or serious bodily injury because you believe it is your unfettered right to drink and drive and don't stop, and I would be remiss to impose any other sentence than I'm about to impose when you have had five prior opportunities to see the light. You haven't seen it.
I've read the presentence report and will note for the purpose of the record this is your sixth conviction for that particular offense. In light of the fact that you have been obviously unwilling to address this problem, I am going to do that f
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