Summary
In Mock, we determined that it was the intent of the General Assembly that the definition of "prior offense" contained in Subsection 3806(a) is incorporated into the use of that term in Subsection 3806(b), especially where such interpretation gives effect to both subsections.
Summary of this case from Vellon v. Commonwealth, Dep't of Transp.Opinion
No. 68 MAP 2018
11-20-2019
COMMONWEALTH of Pennsylvania, Appellee v. Michael A. MOCK, Appellant
OPINION
The Vehicle Code mandates enhanced grading and sentencing penalties for repeat driving under the influence ("DUI") offenses committed within ten years of a "prior offense." 75 Pa.C.S. § 3806. We granted allocatur in this matter to address the relevant date for determining whether an earlier offense constitutes a prior offense. We agree with the Superior Court that the ten-year lookback period runs from the occurrence date of the present offense to the conviction date of the earlier offense, rather than the occurrence date of the earlier offense. We therefore affirm the Superior Court's order.
The underlying facts of this case follow. Appellant, Michael Mock, committed DUI on June 3, 2006, which resulted in a conviction on March 27, 2007. More than ten years after committing this offense, but roughly nine years following his conviction, Appellant committed another DUI. On July 10, 2016, at approximately 1:00 a.m., Corporal Arthur Stanton of the Mifflin County Police Department stopped Appellant after observing him cross the fog and center lines several times while driving on the highway. He was arrested on suspicion of DUI and transported to the hospital. Appellant consented to a blood test, which revealed a blood alcohol content of 0.21%. He was later charged with DUI – highest rate of alcohol under 75 Pa.C.S. § 3802(c). The Commonwealth deemed Appellant's DUI a second offense and graded it as a misdemeanor of the first degree subject to increased penalties. See 75 Pa.C.S. § 3803(b)(4) (providing grading for violation of Section 3802(c) where an individual has one prior offense); 75 Pa.C.S. § 3804(c)(2) (listing punishment for violation of Section 3802(c) as a second offense).
"An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle." 75 Pa.C.S. § 3802(c).
Before proceeding to trial, Appellant filed a motion to quash the information, asserting that the Commonwealth improperly characterized the instant DUI as a second offense because his earlier offense did not constitute a prior offense under Section 3806, which provides as follows:
§ 3806. Prior offenses
(a) General rule. – Except as set forth in subsection (b), the term "prior offense" as used in this chapter shall mean any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:
(1) an offense under section 3802 (relating to driving under the influence of alcohol or controlled substance);
....
(b) Timing. –
(1) For purposes of sections 1553(d.2) (relating to occupational limited license), 1556 (relating to ignition interlock limited license), 3803 (relating to grading), 3804 (relating to penalties) and 3805 (relating to ignition interlock), the prior offense must have occurred:
(i) within 10 years prior to the date of the offense for which the defendant is being sentenced; or
(ii) on or after the date of the offense for which the defendant is being sentenced[.]
(2) The court shall calculate the number of prior offenses, if any, at the time of sentencing.
(3) If the defendant is sentenced for two or more offenses in the same day, the offenses shall be considered prior within the meaning of this subsection.
75 Pa.C.S. § 3806. In support of this contention, Appellant primarily relied on this Court's decision in Commonwealth v. Haag , 603 Pa. 46, 981 A.2d 902 (2009) (interpreting earlier version of Section 3806 and finding the definition of "prior offense" in subsection (b) overrode the definition of "prior offense" in subsection (a).
Accordingly, Appellant asserted that per Haag , "subsection (b) overrides the application of subsection (a)" and the language used in subsection (b) signals that the ten-year lookback period runs from the commission date of the present offense to the occurrence date of the earlier offense. Motion to Quash, 10/25/16, at 3. He therefore claimed that because his earlier DUI occurred more than ten years before the present offense occurred, it was not a prior offense under Section 3806. Id.
The trial court rejected Appellant's argument, explaining that the present offense was properly characterized as a second offense because the previous conviction took place less than ten years prior to the commission of the present offense. Trial Court Order, 12/8/2016, at 1. Appellant proceeded to a stipulated bench trial and was convicted of DUI – highest rate of alcohol, as a second offense. The trial court sentenced Appellant in accordance with the mandatory minimum to 90 days to five years of imprisonment, as well as fines, costs, and related penalties. 75 Pa.C.S. § 3804(c)(2).
Appellant was also charged with driving an unregistered vehicle, 75 Pa.C.S. § 1301, and DUI – general impairment, 75 Pa.C.S. § 3802(a)(1). The Commonwealth later nolle prossed these charges.
Appellant filed an appeal to the Superior Court. He continued to argue that the Commonwealth improperly characterized the instant DUI as a second offense, subject to enhanced grading and sentencing penalties, because the earlier offense was committed outside of the ten-year lookback period. The Superior Court affirmed in a divided, published opinion. See Commonwealth v. Mock , 186 A.3d 434 (Pa. Super. 2018).
The majority resolved Appellant's claim by examining the plain language of Section 3806, explaining that subsection (a) contains a "general rule" applicable to all of Chapter 38, while subsection (b) contains a "specific rule" relevant only to the subsections enumerated therein. Id. at 437. The majority recognized that the general rule defines prior offense as "any" conviction, or other alternative disposition referenced in the statute, "before the sentencing on the present violation." Id. Accordingly, any conviction – regardless of timing – counts as a "prior offense" under subsection (a).
The majority explained, however, that subsection (b) places timing limitations, as the heading suggests, on which prior offenses trigger enhanced grading and sentencing penalties to those that "occurred ... within [ten] years prior to the date of the offense for which the defendant is being sentenced" or, alternatively, "on or after the date of the offense for which the defendant is being sentenced." Id. The majority therefore agreed with the trial court's conclusion that Appellant's DUI was properly graded as a second offense because his earlier conviction took place within ten years of his commission of the present offense. Id. at 437-38. Accordingly, the majority rejected Appellant's argument that the phrase "[e]xcept as set forth in subsection (b)" contained in subsection (a) altered the essential definition of prior offense. Id . at 437.
Senior Judge Eugene B. Strassburger authored a dissenting opinion. He agreed with the majority's conclusion that Section 3806 contains both a general and specific rule. Id. at 438. However, in his view, the majority's conclusion that subsection (b) only relates to timing and does not alter the essential definition of the term "prior offense" set forth in subsection (a) contravenes this Court's decision in Haag . Id. at 439,. He explained that in Haag , this Court interpreted the phrase in subsection (a) "[e]xcept as set forth in subsection (b)," to imply that "[subsection (a) ] expressly yields to [subsection (b) ] when the latter is applicable" and that subsection (b) alters the general definition of prior offense delineated in subsection (a). Id. (citing Haag , 981 A.2d at 906-07 ).
Senior Judge Strassburger next explained that although a court must apply subsection (a) to determine whether an individual has "any conviction for which judgment of sentence has been imposed," it must then determine whether the offense meets the criteria set forth in subsection (b). He reasoned that subsection (b)(1), which states that the prior offense "must have occurred ... within [ten] years prior to the date of the offense for which the defendant is being sentenced," limits offenses that qualify as a prior offense to those that "the individual committed ... sometime within the [ten] years before the individual committed the subsequent offense." Id. (emphasis supplied).
Senior Judge Strassburger further relied on the legislative history of Section 3806 to support his position. He noted that the legislature's use of the word "occurrence" in subsection (b) was "deliberate" considering it "has changed repeatedly the parameters for the look[ ]back period in different revisions of [subsection (b) ][.]" Id. at 440. Accordingly, he found that although Appellant's previous offense qualified as a prior offense in subsection (a), the offense did not meet the more narrow criteria in subsection (b) because it was not committed within ten years of the present offense. Id.
Appellant filed a petition for allowance of appeal. We granted allocatur to address the following issue:
Did the Superior Court erroneously interpret 75 Pa.C.S. § 3806 as providing that an offender who commits a prior driving under the influence ("DUI") offense more than ten years before his commission of a present DUI offense, but is convicted of the prior DUI offense within ten years of his commission of his present DUI offenses, has a "prior offense" for purposes of the grading of, and/or sentencing on, the present DUI offense?
Commonwealth v. Mock , 198 A.3d 1049 (Pa. 2018) (per curiam ).
Both parties contend that the plain language of the statute dictates the outcome in this matter. Their readings, however, differ substantially. Appellant continues to maintain that the ten-year lookback period referenced in Section 3806 runs from the occurrence date of the present offense to the occurrence date of the earlier offense. Appellant's Brief at 17-18. His argument largely echoes the dissent's reasoning by concentrating primarily on Haag and, in part, the legislative history of Section 3806. Id. at 11-14.
Appellant asserts that based on Haag , the general rule in subsection (a), which defines a prior offense as any conviction, yields to the entirely separate definition of prior offense in subsection (b), which focuses on the occurrence date of the earlier offense. Id. at 15-17. Appellant reasons that although the legislature twice amended Section 3806 since this Court decided Haag , the case nonetheless applies. Id. at 14-15. He specifically maintains that the legislature's decision to keep the exclusionary language in subsection (a) post- Haag indicates that it intended subsection (a) to yield to subsection (b). Id.
Finally, Appellant posits that this interpretation is the easiest to apply and the least susceptible to manipulation by the Commonwealth, in that the Commonwealth may not prolong the ten-year lookback period by delaying convictions. Id. at 18. Accordingly, Appellant asserts that because the present offense occurred more than ten years after the commission of his earlier offense, it does not constitute a prior offense subject to enhanced grading and sentencing penalties under subsection (b). Id. at 18-19.
The Commonwealth counters that Appellant's reliance on Haag is misplaced. Commonwealth's Brief at 8. In Haag , this Court addressed an earlier version of Section 3806, which has since been twice amended. Id. Nonetheless, the Commonwealth argues that Haag does not stand for the proposition that subsection (a) becomes irrelevant when subsection (b) is applicable. Id. at 8-9. Rather, the Superior Court properly concluded that the general definition provided in subsection (a) applies to subsection (b) to limit which prior offenses subject an offender to the sentencing enhancement from "any conviction" to only those that occurred "within ten years prior to the current offense date." Id. 9-10. As for Appellant's reliance on the legislative history, the Commonwealth responds that despite various changes to the lookback period, the definition of prior offense has always been guided by the conviction date. Id. at 12.
Finally, the Commonwealth disagrees with Appellant's contention that a lookback period that runs from the occurrence date of the present offense to the conviction date of the earlier offense is subject to manipulation. Id. at 13. To the contrary, it asserts that Appellant's preferred interpretation would allow offenders to control the lookback period by delaying sentencing. Id. at 14. However, as currently written, the statute removes any manipulation of timing. Id. at 13-14. Thus, the Commonwealth urges this Court to affirm the Superior Court's order.
The Pennsylvania District Attorney's Association ("PDAA") and the Pennsylvania Department of Transportation, Bureau of Driver Licensing ("PennDOT") submitted amicus briefs in support of the Commonwealth. Both agree with the Commonwealth's plain meaning interpretation, but advance an additional argument focusing on the fact that Section 3806 is a recidivist statute. PDAA's Amicus Brief at 9-10; PennDOT's Amicus Brief at 12-13. In light of this, they argue that a prior offense is not established by a violation, but rather requires a conviction. Id. For this reason, the conviction date must control whether an earlier offense constitutes a prior offense. Id.
The Pennsylvania Association for Drunk Driving Defense Attorneys ("PADDDA") also submitted an amicus brief in support of Appellant. Similar to Appellant, it contends that the plain language controls. PADDDA's Amicus Brief at 5-6. However, in the event this Court finds the statutory language ambiguous, it argues that the statute must be construed in favor of the accused in accordance with the rule of lenity. Id. at 7-8.
Issues involving statutory interpretation present questions of law for which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Giulian , 636 Pa. 207, 141 A.3d 1262, 1266 (2016). When interpreting statutes, we are guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501 - 1991, which directs us to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a). The best indication of legislative intent is most often the plain language of the statute. See Commonwealth v. Kingston , 636 Pa. 438, 143 A.3d 917, 922 (2016) (citing McGrory v. Dep't of Transp. , 591 Pa. 56, 915 A.2d 1155, 1158 (2007) ; Commonwealth v. Gilmour Mfg. Co. , 573 Pa. 143, 822 A.2d 676, 679 (2003) ; Penna. Fin. Responsibility Assigned Claims Plan v. English , 541 Pa. 424, 664 A.2d 84, 87 (1995) ("Where the words of a statute are clear and free from ambiguity the legislative intent is to be gleaned from those very words.")). "It is only when statutory text is determined to be ambiguous that we may go beyond the text and look to other considerations to discern legislative intent." A.S. v. Pennsylvania State Police , 636 Pa. 403, 143 A.3d 896, 903 (2016) ).
Preliminarily, Appellant and the Commonwealth agree that Section 3806 applies in order to determine whether Appellant's earlier DUI constitutes a "prior offense," making the present DUI a second offense. Both parties also agree that the starting point for the ten-year lookback is the occurrence date of the present offense. They disagree with how subsections (a) and (b) interact and, consequently, whether the end point for the ten-year lookback period is the occurrence date or the conviction date of the earlier offense.
We agree with the Superior Court's determination that the ten-year lookback period in Section 3806 runs from the occurrence date of the present offense to the conviction date of the earlier offense. We reach this conclusion based on the unambiguous language of the statute. Section 3806 includes a "[g]eneral rule" and a specific rule relating to "[t]iming." 75 Pa.C.S. § 3806. The general rule in subsection (a), limited by the phrase "[e]xcept as set forth in subsection (b)," defines prior offense as "any conviction" or alternative disposition "before the sentencing on the present violation" for offenses such as DUI and applies to the entirety of Chapter 38. Id. The specific rule in subsection (b), relevant for grading and penalty purposes, states that a prior offense "must have occurred ... within [ten] years prior to the date of the offense for which the defendant is being sentenced[.]" Id. Applying the definition of prior offense provided in subsection (a), subsection (b) reads "the prior offense," i.e., conviction or alternative disposition, "must have occurred ... within ten years prior to the date of the offense for which defendant is being sentenced." Id. This interpretation also gives effect to the exclusionary phrase in subsection (a), which signals that subsection (b) limits the scope of "prior offense" in subsection (a), defined as "any conviction," to only those convictions taking place within the timing confines of subsection (b). Id. Thus, the plain language of the statute requires that the ten-year lookback period runs from the occurrence date of the present offense to the conviction date of the earlier offense. Appellant was properly sentenced as a second-time offender because his earlier conviction took place less than ten years before he committed the present offense.
We disagree with Appellant's assertion that Haag requires us to find that the exclusionary phrase in subsection (a) signals that the definition of prior offense used in that subsection does not apply to subsection (b). In Haag , this Court addressed whether two DUIs occurring within one and one-half hours of each other and sentenced at the same time should be considered first and second offenses subjecting the offender to increased penalties under an earlier version of Section 3806. Haag , 981 A.2d at 903. Similar to the current statute, that version contained a general rule in subsection (a) and a specific rule in subsection (b). Id. at 905 (citing 75 Pa.C.S. § 3806 (eff. November 29, 2004 to December 25, 2014)). Subsection (a), which began with the phrase, "[e]xcept as set forth in subsection (b)," defined prior offense as "a conviction ... before the sentencing on the present violation[.]" Id. at 904-05. Unlike the instant version, however, subsection (b), which specifically addressed "[r]epeat offenses within ten years," redefined prior offense to mean "any conviction ... within the ten years before the present violation occurred[.]" Id.
Accordingly, although Haag's earlier offense qualified as a prior offense under subsection (a) because it resulted in a conviction prior to sentencing on the second offense, it did not qualify as a prior offense under subsection (b) because the conviction did not take place within ten years before the second violation occurred. Id. at 906. In other words, although a conviction before sentencing of the present offense constituted a prior offense in subsection (a), subsection (b) required that an offender be convicted of the earlier offense at the time the subsequent offense was committed in order to trigger increased grading and sentencing penalties. Due to the exclusionary phrase in subsection (a) and the legislature's inclusion of separate definitions of prior offense in subsections (a) and (b), we found the legislature's "deliberate use of a common exception phrase" meant that subsection (b) overrode the application of subsection (a). Id. at 907.
Haag is not particularly instructive in interpreting the current version of the statute in light of significant revisions to Section 3806 since that case was decided. In the present version of Section 3806, the legislature eliminates this conflict between subsections (a) and (b) and any need for one definition to completely override the other. The legislature removed the extraneous language in subsection (b) redefining prior offense, and instead provides a general definition of prior offense in subsection (a) applicable throughout the remainder of the statute. Accordingly, subsection (b) must be interpreted as providing time limits on the broad category of "any conviction" as referenced in subsection (a) to those convictions occurring within ten years of the present offense. This prevents the imposition of increased penalties for an offender whose earlier conviction took place, for example, fifteen years before committing a subsequent offense. Even if applicable, Haag makes clear that "subsection (a) is not the end of the inquiry as to how previous violations are to be defined and utilized in making grading and sentencing determinations." Id. at 907.
Moreover, Appellant's interpretation of the term "prior offense" in subsection (b) would produce an absurd result. Were we to interpret "prior offense" in subsection (b)(1) to mean the occurrence date of the earlier offense, that same definition must apply not only to subsection (b)(1)(i), the ten-year lookback period, but also to subsection (b)(1)(ii). Subsection (b)(1)(ii) provides: "[T]he prior offense must have occurred ... on or after the date of the offense for which the defendant is being sentenced." Appellant's construction of Subsection (b)(1)(ii) would create an untenable result considering that a "prior offense" cannot occur after a subsequent offense. However, if we apply the definition of prior offense in subsection (a), then subsection (b)(1)(ii) remains sound, providing as follows: "[T]he prior offense [i.e., the conviction of the earlier offense] must have occurred on or after the date of the offense for which the defendant is being sentenced." This interpretation addresses the situation where an earlier offense may not have resulted in a conviction at the time a subsequent offense occurs but yet allows for the imposition of increased penalties for the subsequent offense.
Appellant's convoluted reading of the statute, focusing on the term "occurrence" in subsection (b), is merely a means to a preferred end. We reject his contention that use of the word "occurrence" in subsection (b) alters the essential definition of prior offense set forth in subsection (a). Indeed, when analyzing the language of a statute "we should not interpret statutory words in isolation, but must read them with reference to the context in which they appear." Giulian , 141 A.3d at 1267 (citing Roethlein v. Portnoff Law Assocs., Ltd. , 623 Pa. 1, 81 A.3d 816, 822 (2013) (citations omitted)).
Although both parties reference previous versions of Section 3806 to support their preferred readings of the current version of the statute, we need not look beyond the unambiguous language of the text in order to discern the legislature's intent. A.S. , 143 A.3d at 903. Nonetheless, an examination of the legislative history leads to an interpretation consistent with our own. When Haag was decided, Section 3806 provided, in relevant part, as follows:
(a) General Rule. – Except as set forth in subsection (b) the term "prior offense" as used in this chapter shall mean a conviction , adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following :
(1) an offense under section 3802 (relating to driving under the influence of alcohol or controlled substance);
....
(b) Repeat offenses within ten years. – The calculation of prior offenses for purposes of sections 1553(d.2) (relating to occupational limited license), 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within ten years before the present violation occurred for any of the following:
(1) an offense under section 3802 ...
75 Pa.C.S. § 3806(b) (amended, Oct. 27, 2014, P.L. 2905, No. 189, § 1) (emphasis added). In this version of the statute, subsection (b) revised the definition of prior offense by recounting nearly verbatim the language used in subsection (a) with the caveat that the prior offense must have occurred "within the ten years before the present violation occurred[,]" creating unintended consequences apparent in Haag . In particular, it did not account for whether DUI offenses committed on the same day and sentenced simultaneously qualified as prior offenses. Based on the plain language of this version, Haag correctly interpreted the plain language of the statute.
In an apparent attempt to account for DUI offenses committed on the same date and sentenced simultaneously, the legislature amended the statute. It left subsection (a) unchanged and revised subsection (b) as follows:
(b) Repeated offenses within ten years. – The calculation of prior offenses for purposes of sections 1553(d.2) (relating to occupational limited license), 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction whether or not judgment of sentence has been imposed for the violation , adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the sentencing on the present violation for any of the following:
(1) an offense under section 3802 ...
75 Pa.C.S. § 3806(b) (amended, May 25, 2016, P.L. 236, No. 33, § 5) (emphasis added). Similar to the preceding version of subsection (b), this version also recounted the language of prior offense used in subsection (a) with added caveats to account for circumstances such as those in Haag . Notably, an offender was not required to have a conviction at the time a subsequent offense occurred in order for the earlier offense to be a "prior offense." The statute merely required that a conviction take place before sentencing on the present violation.
In 2016, the legislature amended Section 3806 yet again to its present form, which provides as follows:
(a) General Rule. – Except as set forth in subsection (b), the term "prior offense" as used in this subchapter shall mean any conviction for which judgment of sentence has been imposed , adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:
(1) an offense under section 3802 (relating to driving under the influence of alcohol or controlled substance);
....
(b) Timing. –
(1) For purposes of sections 1553(d.2) (relating to occupational limited license), 1556 (relating to ignition interlock limited license), 3803 (relating to grading), 3804 (relating to penalties) and 3805 (relating
to ignition interlock), the prior offense must have occurred :
(i) within [ten] years prior to the date of the offense for which the defendant is being sentenced [.]
(ii) on or after the date of the offense for which the defendant is being sentenced.
(2) The court shall calculate the number of prior offenses, if any, at the time of sentencing.
(3) If the defendant is sentenced for two or more offenses in the same day, the offenses shall be considered prior offenses within the meaning of this subsection.
75 Pa.C.S. § 3806 (emphasis added). The current version of subsection (b) reveals significant textual differences from its earlier versions. First, subsection (b) is now explicitly limited to effects on timing, made apparent by its title. The legislature also removed the excess language in subsection (b) present in earlier versions which essentially redefined the term "prior offense." In addition to removing this extraneous language in subsection (b), the legislature clarified the general definition of prior offense in subsection (a) by adding the language "for which judgment of sentence has been imposed[.]" Based on these revisions, it is illogical to conclude that subsection (a) has no bearing of the application of subsection (b). These revisions clearly signal that the definition provided in subsection (a) is incorporated into the use of the term in subsection (b), especially where such an interpretation gives effect to both subsections. See 1 Pa.C.S. § 1921(a) ("Every statute shall be construed, if possible, to give effect to all its provisions."). We find it unlikely that the legislature would use a previously defined term in a different manner without explicitly providing a comprehensive definition as it did in the previous versions of subsection (b).
Finally, we do not find persuasive Appellant's unsupported assertion that this interpretation of the ten-year lookback period is vulnerable to manipulation by the Commonwealth. Even if this were the case, the plain language of a statute "cannot be ignored in pursuit of the statute's alleged contrary spirit or purpose." Koken v. Reliance Ins. Co. , 586 Pa. 269, 893 A.2d 70, 82 (2006).
In sum, the plain language of Section 3806 mandates that the ten-year lookback period for DUI offenses, relevant for grading and penalty purposes, runs from the occurrence date of the present offense to the conviction date of the earlier offense. Appellant's previous conviction occurred less than ten years prior to the commission of the present offense. He was therefore properly convicted of DUI – highest rate of alcohol, as a second offense. Accordingly, we affirm the order of the Superior Court affirming Appellant's judgment of sentence.
Chief Justice Saylor and Justices Baer, Todd and Dougherty join the opinion.
Justices Donohue and Wecht file dissenting opinions.
JUSTICE DONOHUE, Dissenting
To reach its desired result in the interpretation of a statute, here the Majority ignores the clear statutory language of 75 Pa.C.S. § 3806, ignores this Court's prior interpretation of this statutory language, and ignores the legislative history of the statute. Thus, I respectfully dissent.
The current version of section 3806 provides as follows:
§ 3806. Prior Offenses
(a) General rule.-- Except as set forth in subsection (b), the term "prior offense" as used in this chapter shall mean any conviction for which judgment of
sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:
(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance);
(2) an offense under former section 3731;
(3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or
(4) any combination of the offenses set forth in paragraph (1), (2) or (3).
(b) Timing.--
(1) For purposes of sections 1553(d.2) (relating to occupational limited license), 1556 (relating to ignition interlock limited license), 3803 (relating to grading), 3804 (relating to penalties) and 3805 (relating to ignition interlock), the prior offense must have occurred:
(i) within 10 years prior to the date of the offense for which the defendant is being sentenced; or
(ii) on or after the date of the offense for which the defendant is being sentenced.
(2) The court shall calculate the number of prior offenses, if any, at the time of sentencing.
(3) If the defendant is sentenced for two or more offenses in the same day, the offenses shall be considered prior offenses within the meaning of this subsection.
75 Pa.C.S. § 3806.
The Majority and I agree that section 3806 contains a general rule in subsection 3806(a) that applies to Chapter 38 as a whole and a specific rule in subsection 3806(b) that applies only to certain statutory provisions. Pursuant to the general rule in subsection 3806(a), a "prior offense" is defined as any offense that occurs before sentencing on the current violation. Subsection 3806(b), in contrast, by its express terms pertains to five specific sections, including two at issue in this case: section 3803 (relating to grading) and section 3804 (relating to penalties).
Section 3817, for example, requires the Department of Transportation to compile an annual report regarding its administration of Chapter 38. 75 Pa.C.S. § 3817. The report must include, among other things, information sorted by county identifying the "number of persons refusing a chemical test sorted by the number of prior offenses." 75 Pa.C.S. § 3817(b)(5) (emphasis added). The general definition of "prior offenses" in subsection 3806(a) would apply in this circumstance.
See Maj. Op. at 1160–61; Diss. Op. at 1164–65 (Donohue, J.).
In the present case, Mock's first DUI occurred on June 3, 2006 and he was convicted and sentenced for that violation on March 27, 2007, while his second violation occurred on July 10, 2016 and he was sentenced on May 1, 2017. Applying the plain language of section 3806, the June 6, 2006 DUI is a "prior offense" for purposes of subsection 3806(a) because the sentencing took place on March 27, 2007, well before the sentencing on the second violation (May 1, 2017). Because the issue in this case involves grading and sentencing pursuant to sections 3803 and 3804, including in particular the proper calculation of the ten-year "look back" period included in those provisions, subsection 3806(b) governs. The language of subsection 3806(b) provides that "the prior offense must have occurred ... within 10 years prior to the date of the offense for which the defendant is being sentenced...." 75 Pa.C.S. § 3806(b) (emphasis added). Tracking this language, calculation of the ten-year "look back" period for purposes of subsections 3803 (grading) and 3804 (penalties) requires an "occurrence-to-occurrence" comparison – looking to see whether the first offense "occurred " within ten years prior to the date of the occurrence of the current DUI (i.e., "the date of the offense for which the defendant is being sentenced"). Mock's first DUI occurred on June 3, 2006 and his second DUI occurred on July 16, 2016. Because the first DUI occurred more than ten years prior to the occurrence of the second DUI, the first DUI is not a "prior offense" for purposes of grading and sentencing under subsections 3803 and 3804.
The Majority, however, interprets the language of section 3806 very differently, insisting that the two relevant dates for purposes of grading and sentencing are to be found, one each , in subsections 3806(a) and 3806(b). According to the Majority, the date of the prior offense is in subsection 3806(a), namely the date of conviction for which a judgment of sentence has been imposed, whereas the applicable date of the current offense is described in subsection 3806(b) – the "date of the offense for which defendant is being sentenced." Majority Op. at 1161. This interpretation ignores the language of subsection 3806(b) in at least two respects. First, subsection 3806(a) begins with the phrase "[e]xcept as set forth in subsection (b)," which clearly reflects that the specific definition of "prior offense" for purposes of, inter alia, grading and sentencing, is to be found in subsection 3806(b), not in subsection 3806(a). Second, as explained hereinabove, subsection 3806(b) identifies both relevant dates for purposes of the "look back" period, as it plainly states that "the prior offense must have occurred ... within 10 years prior to the date of the offense for which the defendant is being sentenced...."
Among the various principles of statutory construction that the Majority's interpretation violates, it fails to treat subsection 3806(a) as a general rule that must give way to a more specific rule when the two conflict with each other. 1 Pa.C.S. § 1933 (entitled "Particular controls general"). The Majority treats subsection 3806(a), the general rule, as playing a coequal role in calculating the "look back" period for grading and sentencing, when the introductory clause to the subsection expressly provides that subsection 3806(b), the specific rule, controls this determination.
As amended in 2016, this statute is now in its fourth iteration. For ease of discussion, I will refer to the prior versions by the year of their enactment or amendment. The "2003 Version" of the statute was enacted on September 30, 2003, P.L. 120, No. 4, § 16, and was effective between February 1, 2004 and November 28, 2004. The "2004 Version" followed an amendment on November 29, 2004, P.L. 1369, No. 177, § 4, and was effective between November 29, 2004 and December 25, 2014. The "2014 Version" followed an amendment on October 27, 2014, P.L. 2905, No. 189, § 1, and was effective between December 26, 2014 and May 24, 2016. Finally, the "2016 Version" followed an amendment on May 25, 2016, P.L. 236, No. 33, § 5, and has been effective since May 25, 2016.
In Commonwealth v. Haag , 603 Pa. 46, 981 A.2d 902 (2009), this Court interpreted section 3806 in a manner that clearly contradicts the Majority's interpretation. In Haag , in which we interpreted a prior version of section 3806, we rejected any notion that subsection 3806(a) plays a role in calculating the ten-year "look back" period:
At the time that Haag was decided, subsection 3806(b) read as follows:
(b) Repeat offenses within ten years.— The calculation of prior offenses for purposes of sections 1553(d.2) (relating to occupational limited license), 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the present violation occurred for any of the following:
(1) an offense under section 3802 ; ...
75 Pa.C.S. § 3806(b) (amended, Oct. 27, 2014, P.L. 2905, No. 189, § 1). Subsection 3806(a) is unchanged from its current formulation.
Section 3806(a) expressly yields to Section 3806(b) when the latter is applicable: "Except as set forth in subsection (b).... " 75 Pa.C.S. § 3806(a) (emphasis supplied). Thus, as in the present case, for purposes of imposing sentence under Section 3804, when a sentencing court is required to determine whether there has
been a "prior Section 3802 offense" within ten years of another Section 3802 offense, the court must apply Section 3806(b).
Id. at 906 (emphasis in original). We expressly disfavored prior Superior Court cases that had interpreted section 3806 as the Majority does here, namely cases where "the Superior Court simply disregarded a plain reading of Section 3806(b), relying instead on Section 3806(a) as ‘the benchmark for determining when a prior violation is to be a ‘prior offense.’ " Id. at 907 (citing, e.g., Commonwealth v. Nieves , 935 A.2d 887 (Pa. Super. 2007) ). We rejected this interpretation, stating as follows:
We hold that Section 3806(b) is, indeed, applicable to the present case and in all similar situations that may arise. In enacting the current DUI statute, the legislature provided, through the deliberate use of a common exception phrase, that subsection (a) is not the end of the inquiry as to how previous violations are to be defined and utilized in making grading and sentencing determinations. By opening subsection (a) with the phrase "[e]xcept as otherwise set forth in subsection (b)," the legislature expressly directed that subsection (b) overrides the application of subsection (a) in circumstances such as those present here.
Id. at 906-07 (emphasis added).
The Majority's attempt to distinguish our prior decision in Haag is unconvincing. The Majority insists that Haag was decided differently because at that time there was a conflict between subsections 3806(a) and 3806(b). Majority Op. at 1161–62. Any such conflict, however, does not explain our prior decision, as in Haag we neither identified nor relied upon any conflict when rendering our decision. Instead, we repeatedly stated in Haag that our interpretation of the interaction between subsections 3806(a) and 3806(b) was based solely upon the language of the statute itself, including in particular the prefatory language ("[e]xcept as otherwise set forth in subsection (b)") in subsection 3806(a). Id. at 906-07.
[I]n order to determine the proper statutorily-prescribed penalties to impose pursuant to Section 3804, the sentencing court was required, by clear statutory language, to make a necessary antecedent determination of what constituted a "prior offense," by applying the definition of "prior offense" as set forth in Section 3806(b). For purposes of properly sentencing under Section 3804, in order for there to be a "prior offense" under Section 3806(b), there would have had to have been a conviction that occurred within ten years prior to the occurrence of the present Section 3802 offense in question.... "The plain meaning of the statute affords no other interpretation." Commonwealth v. Kimmel , 523 Pa. 107, 565 A.2d 426, 428 (1989).
* * *
We hold that Section 3806(b) is, indeed, applicable to the present case and in all similar situations that may arise. In enacting the current DUI statute, the legislature provided, through the deliberate use of a common exception phrase, that subsection (a) is not the end of the inquiry as to how previous violations are to be defined and utilized in making grading and sentencing determinations. By opening subsection (a) with the phrase "[e]xcept as otherwise set forth in subsection (b)," the legislature expressly directed that subsection (b) overrides the application of subsection (a) in circumstances such as those present here.
Id. at 906-07 (emphasis added). We further indicated that "the legislature does not explain why the Vehicle Code contains different definitions of ‘prior offense,’ " but noted that "the legislature, for whatever reason, intended that different definitions of ‘prior offense’ be applied to different circumstances addressed in the Vehicle Code." Id. at 906 n.8.
Finally, the Majority unsurprisingly fails to consider the legislative history of section 3806, which weighs strongly in favor of Mock's' interpretation of the statute. Since 2004, the General Assembly has amended section 3806 on three occasions. Subsection 3806(a) has remained relatively unchanged over this period, with the vast majority of the modifications coming to subsection 3806(b) in repeated efforts to identify the dates for measuring the "look back" period for, inter alia, grading and sentencing purposes. In 2004, subsection 3806(b) was amended as follows:
In 2016, the General Assembly modified the general rule in subsection 3806(a) slightly to indicate that the subsection refers to convictions for which a judgment of sentence has been imposed. As explained herein, however, this is a distinction without a difference in the present case. The General Assembly did not remove the introductory language in subsection 3806(a), which expressly directs that the subsection has no applicability to the definition of "prior offense" for sentencing and grading purposes, which are instead determined solely from the language of subsection 3806((b). Haag , 981 A.2d at 906-07.
(b) Repeat offenses within ten years.— The calculation of prior offenses for purposes of sections 1553(d.2) (relating to occupational limited license), 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction , adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the present violation occurred for any of the following:
(1) an offense under section 3802 ...
75 Pa.C.S. § 3806(b) (amended, Oct. 27, 2014, P.L. 2905, No. 189, § 1) (emphasis added). In 2014, the General Assembly amended subsection 3806(b) to provide:
(b) Repeat offenses within ten years.— The calculation of prior offenses for purposes of sections 1553(d.2)(relating to occupational limited license), 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction , whether or not judgment of sentence has been imposed for the violation, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the sentencing on the present violation for any of the following:
(1) an offense under section 3802 ...
75 Pa.C.S. § 3806(b) (amended, May 25, 2016, P.L. 236, No. 33, § 5) (emphasis added). Finally, in 2016, the General Assembly amended the statute again, to its present form.
(b) Timing.--
(1) For purposes of sections 1553(d.2) (relating to occupational limited license), 1556 (relating to ignition interlock limited license), 3803 (relating to grading), 3804 (relating to penalties) and 3805 (relating to ignition interlock), the prior offense must have occurred :
(i) within 10 years prior to the date of the offense for which the defendant is being sentenced ...
75 Pa.C.S. § 3806(b) (emphasis added).
Careful review of these various versions of this provision makes clear that the General Assembly has always understood that both of the relevant dates for calculating the "look back" period for purposes of grading and sentencing are located in subsection 3806(b), and to revise these dates requires manipulation of the statutory language in subsection 3806(b). The 2004 version set a "conviction to occurrence" measurement, defining the "look back" period as a measurement of the date of any prior "conviction ... within the ten years before the present violation occurred." The 2014 version modified the measurement of the "look back" period to require a "conviction to sentencing" comparison, keeping the word "conviction" but replacing "occurred" with "sentencing" (requiring that the prior conviction be "within the ten years before the sentencing on the present violation"). Finally, the 2016 version sets an "occurrence to occurrence" measurement, amending the statutory text by removing the word "conviction" and adding two references to the dates on which the two DUIs occurred ("the prior offense must have occurred ... within 10 years prior to the date of the [current] offense"). In each instance, the General Assembly modified the measurement of the "look back" period for grading and sentencing purposes by amending subsection 3806(b).
Despite the Majority's attempts to distinguish our 2009 opinion in Haag , our decision in that case was clear: to determine grading and sentencing in the DUI context, the "clear statutory language" required the trial court to make a "necessary antecedent determination of what constituted a ‘prior offense,’ by applying the definition of ‘prior offense’ as set forth in Section 3806(b) because "[b]y opening subsection (a) with the phrase ‘[e]xcept as otherwise set forth in subsection (b),’ the legislature expressly directed that subsection (b) overrides the application of subsection (a) in circumstances such as those present here." Haag , 981 A.2d at 906-07. The General Assembly is presumed to be aware of the construction of statutes by this Court. City of Philadelphia v. Clement & Muller, Inc. , 552 Pa. 317, 715 A.2d 397, 399 (1998) ; see also Commonwealth v. Ramos , 623 Pa. 420, 83 A.3d 86, 91 (2013) ("[W]e also presume that when enacting legislation, the General Assembly is familiar with extant law."). As such, in light of our decision in Haag , if the General Assembly intended for subsection 3806(a) to play any role in the measurement of the "look back" period for the grading and sentencing of DUI offenses, it would have removed the introductory phrase "[e]xcept as otherwise set forth in subsection (b)," from subsection 3806(a) as part of the 2014 and/or 2016 amendments. Of course, it did not do so, and thus we must assume that the legislature agreed with our interpretation in Haag regarding the interplay between subsections 3806(a) and 3806(b).
For these reasons, I dissent.
JUSTICE WECHT, Dissenting
Both Opinions issued by my learned colleagues here invoke the plain language of 75 Pa.C.S. § 3806.1 Yet, the two reach contrary conclusions. Notwithstanding their putative reliance upon the assertedly unambiguous language of this section, both opinions resort ultimately to tools of statutory construction in order to bolster their competing interpretations. These interpretive efforts alone lend substantial support to my conclusion that Section 3806 of the Vehicle Code is materially ambiguous.
Unlike my colleagues, I am at a loss to discern the intended meaning of "prior offense" as used in 75 Pa.C.S. § 3806(b)(1). Accordingly, I feel bound to apply the rule of lenity, affording Michael Mock the benefit of a favorable construction of the ambiguous statute. On this basis, I would reverse the order of the Superior Court. Hence, this respectful dissent. Section 3806 provides, in relevant part, as follows:
(a) General rule. --Except as set forth in subsection (b), the term "prior offense" as used in this chapter shall mean any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:
(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance);
* * *
(b) Timing. --
(1) For purposes of sections 1553(d.2) (relating to occupational limited license), 1556 (relating to ignition interlock limited license), 3803 (relating to grading), 3804 (relating to penalties) and 3805 (relating to ignition interlock), the prior offense must have occurred:
(i) within 10 years prior to the date of the offense for which the defendant is being sentenced; or
(ii) on or after the date of the offense for which the defendant is being sentenced.
(2) The court shall calculate the number of prior offenses, if any, at the time of sentencing.
(3) If the defendant is sentenced for two or more offenses in the same day, the offenses shall be considered prior offenses within the meaning of this subsection.
75 Pa.C.S. § 3806.2
With regard to any driving under the influence ("DUI") case to which Section 3806 applies, there are three dates of potential significance. First is the date of commission of the crime: when the motorist drives while intoxicated. Second is the date of conviction : when the motorist pleads or is found guilty by the fact-finder. Third is the date of sentencing : when the judgment of sentence is imposed. The challenge we confront in this case is determining which of these dates the General Assembly intended when it used the term "prior offense" in subsection 3806(b)(1). That subsection provides a method for determining, inter alia , whether two offenses fall within a ten-year period, thus triggering a sentence enhancement for repeat DUI offenders.
See, e.g. , 75 Pa.C.S. § 3806(b)(1)(i)-(ii) (2016 Version) (referring to "the date of the offense for which the defendant is being sentenced").
See, e.g. , 75 Pa.C.S. § 3806(b) (2014 Version) (referring to "any conviction, whether or not judgment of sentence has been imposed").
See, e.g. , 75 Pa.C.S. § 3806(a) (2016 Version) (referring to "any conviction for which judgment of sentence has been imposed").
Because "prior offense" is given an express statutory definition in subsection (a), this is a natural place to begin. The Majority takes for granted that the definition of "prior offense" under subsection (a) refers to the second potential date—the date of conviction. See Maj. Op. at 1160–61. However, subsection (a) provides that a "prior offense" is "any conviction for which judgment of sentence has been imposed ." 75 Pa.C.S. § 3806(a) (emphasis added). This definition, as revised in the 2016 Version, refers to the third date of potential significance—the date of sentencing. Until the defendant is sentenced, his conviction cannot be one "for which judgment of sentence has been imposed," so as to constitute a "prior offense" under subsection (a).
For present purposes, however, the most significant portion of subsection (a) is its prefatory clause, which tells us that its definition of a "prior offense" applies everywhere in Chapter 38 of the Vehicle Code, "[e]xcept as set forth in subsection (b)." 75 Pa.C.S. § 3806(a). Although I believe that this statute is ambiguous, this much of it is clear. Subsection (a) plainly states that its definition of "prior offense" does not apply in subsection (b). Yet, despite this clear directive, the Majority holds directly to the contrary, reasoning that "the definition provided in subsection (a) is incorporated into the use of the term in subsection (b)." Maj. Op. at 1164.
Respectfully, the Majority's conclusion conflicts not only with the language of the statute, but also with this Court's decision in Commonwealth v. Haag , 603 Pa. 46, 981 A.2d 902, 907 (2009) (reasoning that, "[b]y opening subsection (a) with the phrase ‘[e]xcept as otherwise set forth in subsection (b),’ the legislature expressly directed that subsection (b) overrides the application of subsection (a) in circumstances" where subsection (b) applies). Although the Majority acknowledges Haag 's rationale, it suggests that Haag "is not particularly instructive" in the instant case because the 2016 Version of the statute "eliminates this conflict between subsections (a) and (b) and any need for one definition to completely override the other." Maj. Op. at 1162. This is error. Indeed, to the contrary, the "except as set forth in subsection (b)" language upon which Haag relied remains extant, and still "expressly direct[s] that subsection (b) overrides the application of subsection (a)" in this context. Haag , 981 A.2d at 907. By disregarding this "deliberate use of a common exception phrase," id. , the Majority places the subsections directly in conflict. The only resolution of this conflict is to give no effect to the prefatory language of subsection (a), which renders it mere surplusage, in violation of our principles of statutory interpretation. For this reason, the Majority's reading of "prior offense" in subsection (b) is untenable.
This passage from our opinion in Haag erroneously included the word "otherwise" in its quotation of the operative language in subsection (a). The minor misquotation was immaterial to the Haag Court's rationale, and does not bear upon Haag 's applicability to this case.
See 1 Pa.C.S. § 1921(a) ("Every statute shall be construed, if possible, to give effect to all its provisions.").
The Majority's interpretation is not without its virtues. It certainly would be sensible for the legislature to provide a uniform definition of "prior offense" throughout the statutory scheme, in order to avoid precisely the type of confusion that the instant case has revealed. Perhaps the General Assembly intended to do so, and merely neglected to remove the "common exception phrase" from subsection (a) in its latest revision. Haag , 981 A.2d at 907. Nonetheless, because such an assumption requires us to disregard a clear statutory directive, it cannot drive our interpretation.
Justice Donohue's interpretation—that "prior offense" in subsection (b) refers to the date of commission of the DUI—avoids the conflict with subsection (a) that the Majority leaves unresolved. Justice Donohue's reading allows for a sensible method of calculation, measuring commission-to-commission rather than an "apples and oranges" comparison between other significant dates in the criminal process. A commission-to-commission calculation is particularly appealing because it sets dates certain, which not only reflect the defendant's actual engagement in the conduct subject to punishment, but also remain fixed and not subject to manipulation through, for example, either party's use of continuances to delay conviction or sentencing, and thus to stretch or compress the ten-year "lookback" period.
Nonetheless, Justice Donohue's interpretation, like the Majority's, is not apparent from the face of the statute. As discussed above, subsection (a) gives the phrase "prior offense" a specific definition applicable everywhere in Chapter 38 of the Vehicle Code, "[e]xcept as set forth in subsection (b)." 75 Pa.C.S. § 3806(a). Subsection (b) does not provide a new definition. In order to discern the meaning of the conspicuously undefined phrase, Justice Donohue places significant emphasis upon the use of the word "occurred" in conjunction with "prior offense." See Diss. Op. at 1165 (Donohue, J.). In Justice Donohue's view, subsection (b) directs a court "to see whether the first offense ‘occurred’ within ten years prior to the date of the occurrence of the current DUI." Id. (emphasis omitted).
I question whether the word "occurred" can carry the weight asked of it. All three potentially significant dates "occur" at some point. One might say that a defendant's violation of the DUI laws occurred on one date, a finding of guilt occurred on another date, and sentencing occurred on a third date. If "prior offense" means, as the Majority concludes, the date of conviction, then there is nothing inherently incongruous about saying that the prior offense "occurred" on the date that the defendant was found guilty by the judge or the jury. The use of the word "occurred," thus, sheds little light upon the meaning of the term "prior offense" as it appears in subsection (b).
It is perplexing that the General Assembly provided a particular definition of widespread applicability in subsection (a), yet intended that defined phrase to carry a distinct meaning in the very next subsection—and in that subsection only—without providing a new definition therein. Nonetheless, that is precisely what the legislature has done. Absent an applicable definition, we cannot be certain what the legislature intended a "prior offense" to be for purposes of subsection (b), whether it be commission, conviction, or sentencing. A clear and unambiguous statute, as both the Majority and Justice Donohue claim that this is, should not require such Herculean labors of interpretation. At the very least, gleaning the meaning of ostensibly plain language should not require resort to the former versions of the statute—a tool of statutory construction to be employed only where statutory language is ambiguous. See 1 Pa.C.S. § 1921(c)(5) (providing that, where "the words of the statute are not explicit," a court construing the ambiguous language may consider "[t]he former law, if any, including other statutes upon the same or similar subjects"); Gustine Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc., L.P. , 577 Pa. 14, 842 A.2d 334, 346-47 (2004) ("Under Section 1921(c), it is only when the words of a statute "are not explicit" that a court may resort to other considerations in order to ascertain legislative intent. Consistently with the Act, this Court has repeatedly recognized that rules of construction are to be invoked only when there is an ambiguity."). Unlike my learned colleagues, I do not find the prior versions of Section 3806 to be particularly illuminating. As Justice Donohue concisely summarizes, Section 3806's "lookback" period has been subject to substantial legislative tinkering. See Diss. Op. at 1167–69 (Donohue, J.). The 2003 Version measured from the "conviction" to the date that the "present violation occurred," i.e. , conviction-to-commission . The 2004 Version was the same in that regard. The 2014 Version measured from the "conviction, whether or not judgment of sentence has been imposed for the violation," to "the sentencing on the present violation," i.e. , conviction-to-sentencing . That additional language in the 2014 Version made abundantly clear that the earlier date was the date of conviction, and not the date of sentencing. Now, in the 2016 Version, the beginning date for the calculation is the "prior offense," left undefined by virtue of subsection (a)'s express exclusionary language, but even if interpreted according to subsection (a)'s definition would refer to sentencing and not to conviction, unlike all of the statute's earlier versions. Because each potentially significant date—commission, conviction, and sentencing—previously has been utilized in the ten-year calculation, the statute's history, in my view, merely signals that the General Assembly has struggled to select a calculation methodology, or at least has found it difficult to express its intent clearly.
Compare 75 Pa.C.S. § 3806(b) (2014 Version) ("The calculation of prior offenses ... shall include any conviction, whether or not judgment of sentence has been imposed for the violation") (emphasis added), with 75 Pa.C.S. § 3806(a) (2016 Version) ("Except as set forth in subsection (b), the term ‘prior offense’ as used in this chapter shall mean any conviction for which judgment of sentence has been imposed ....") (emphasis added).
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The present version of Section 3806 is ambiguous. Accordingly, and because Section 3806 is a penal statute, I would feel bound to apply the rule of lenity, and would afford Mock the benefit of a favorable construction for purposes of the instant case. See Commonwealth v. Booth , 564 Pa. 228, 766 A.2d 843, 846 (2001) ("[W]here ambiguity exists in the language of a penal statute, such language should be interpreted in the light most favorable to the accused. More specifically, where doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of such doubt.") (citation omitted). Accordingly, I would reverse the order herein. I encourage the General Assembly to revisit Section 3806 again, because its repeated attempts to clarify its intention have resulted in a statute that lacks the clarity necessary for consistent and just application.
I respectfully dissent.