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Commonwealth v. Sharp

Where defendant was sentenced to one to two years after court determined that this was defendant's fourth DUI conviction, judgment of sentence affirmed; even though New York court had not "counted" her first New York DUI conviction when sentencing her for two subsequent convictions, Pennsylvania court was justified in counting first New York conviction for purpose of determining how many times she had ignored safety of herself and others.

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�1 This is an appeal from the April 16, 2001, one to two-year judgment of sentence imposed after the court determined this was the fourth conviction of driving while intoxicated (DUI) for the appellant, Dawn Marie Sharp. On appeal, Sharp argues the sentencing court erred by concluding this was her fourth DUI offense, rather than her third, and imposing the one-year mandatory minimum sentence. *fn1 Appellant contends that the first of her three offenses, all committed in the state of New York, did not “count” for purposes of determining how many total offenses had been committed, the most recent “fourth” offense having been committed in Pennsylvania. We disagree, and affirm judgment of sentence.

�2 On July 24, 1999, officers were called to the scene of a motor vehicle accident between a car and a motorcycle. After speaking with the appellant, who admitted she had rear-ended her boyfriend’s motorcycle causing him to crash, officers suspected appellant was intoxicated and asked her to submit to a blood test. Appellant agreed and the results indicated she had a blood alcohol content (BAC) of 0.214%, far above the legal limit. Appellant subsequently was charged with driving while under the influence of alcohol to a degree which rendered her incapable of safe driving,*fn2 and driving while her BAC was 0.10% or greater.*fn3 On February 16, 2000, appellant entered an open plea of guilty, and the court ordered that a pre-sentence investigation report (PSI) and a “prior record check” be conducted with regard to the three previous DUI convictions in the state of New York. The court received and considered the reports which indicated appellant was convicted of drunk driving in New York on January 27, 1993, March 7, 1994, and May 7, 1996. The sentencing court then determined appellant was a four-time DUI offender, and sentenced her to a mandatory minimum term of one year imprisonment. In so concluding, the court likened appellant’s first New York conviction to one similarly penalized under Pennsylvania’s Accelerated Rehabilitative Disposition (ARD), and considered it as appellant’s first conviction, “for the purposes of computing whether a subsequent conviction of a violation of [� 3731 of the Motor Vehicle Code] shall be considered a second, third, fourth or subsequent conviction.” 75 Pa.C.S.A. � 3731(e)(2); Trial Court Opinion, Brillhart, J., 6/29/01, at 3. This appeal followed.

�3 It is appellant’s position that because New York did not consider her first offense when it sentenced her for the two subsequent New York convictions, Pennsylvania should follow suit, making the July 24, 1999 offense her third conviction, resulting in a mandatory minimum sentence of only 90 days.

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