
    COMMONWEALTH of Pennsylvania v. Michael A. MOCK, Appellant
    No. 801 MDA 2017
    Superior Court of Pennsylvania.
    Argued October 10, 2017 Filed April 19, 2018
    Gregory E. Davidson, Bellefonte, for appellant.
    Christopher R. Torquato, Assistant District Attorney, Lewistown, for Commonwealth, appellee.
    BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER , J.
    
      
      Retired Senior Judge assigned to the Superior Court.
    
   OPINION BY LAZARUS, J.:

Michael A. Mock appeals from his judgment of sentence, entered in the Court of Common Pleas of Mifflin County, after he was convicted, in a nonjury trial, of one count of driving under the influence of alcohol (DUI)-highest rate, as a second offense. Upon careful review, we affirm.

Mock was arrested on July 10, 2016, after Corporal Arthur Stanton of the Mifflin County Regional Police pulled him over for repeatedly crossing the fog line and double yellow lines of State Road 522. A criminal information was filed on October 12, 2016, charging Mock with DUI-general impairment (Count 1) and driving an unregistered vehicle (Count 3), in addition to the above charge of DUI-highest rate, as a second offense (Count 2).

On October 25, 2016, Mock filed a motion to quash the information, asserting that his prior DUI offense, which occurred on June 3, 2006, and for which he was convicted on March 27, 2007, did not fall within the ten-year look-back period set forth in section 3806(b) of the Motor Vehicle Code and, as such, he was improperly charged as a second-time offender. The trial court denied the motion and Mock proceeded to a stipulated nonjury trial, at which time the Commonwealth nolle prossed Counts 1 and 3 and the court entered a verdict of guilty as to Count 2. The court sentenced Mock to a term of 90 days' to 5 years' imprisonment, plus fines, costs and related penalties. 75 Pa.C.S.A. § 3804(c)(2).

This timely appeal follows, in which Mock asserts that both the motion court and the trial court erred as a matter of law

by applying [ section 3806(a) ] to [ section 3806(b),] thus calculating [Mock's] current DUI as a second in ten M1 for grading and sentencing purposes instead of only using section 3806(b). Specifically[,] the [c]ourt erred by calculating the grading and possible penalties under section 3806(a) even though they are specifically carved out to be calculated under section 3806(b).

Brief of Appellant, at 1-2.

Mock's appellate issue presents a question of statutory interpretation, which is a pure question of law. Accordingly, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Haag , 603 Pa. 46, 981 A.2d 902 (2009).

In matters of statutory interpretation, the General Assembly's intent is paramount. Commonwealth v. Hacker , 609 Pa. 108, 15 A.3d 333, 335 (2011), citing 1 Pa.C.S.A. § 1921(a). The best indication of the legislature's intent is the plain language of the statute. In re D.M.W. , 102 A.3d 492, 494 (Pa. Super. 2014) (citation and quotation marks omitted). Only when the words of the statute are ambiguous should a reviewing court seek to ascertain the intent of the General Assembly through considerations of the various factors found in section 1921(c) of the Statutory Construction Act. Id.

Mock was convicted under section 3802(c) of the Act, DUI-highest rate. The penalties for offenses committed under that section are set forth in section 3804(b), which provides for a mandatory minimum sentence of 90 days' imprisonment in the case of a second DUI-highest rate of impairment offense. See 75 Pa.C.S.A. § 3804(c)(2)(i). Section 3806, in turn, provides the framework for determining what qualifies as a "prior offense" for purposes of grading and sentencing 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 ... 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 ... 3803 (relating to grading), 3804 (relating to penalties) ..., 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[.]

75 Pa.C.S.A. § 3806.

The trial court interpreted section 3806 to mean that

any conviction, for which judgment of sentence has been imposed, within ten years prior to the date of the current DUI offense, shall be considered for grading and sentencing purposes of a current DUI offense. To determine whether a prior DUI offense ... is within the ten year look[-]back period of the current DUI offense, this [c]ourt looks to the current DUI offense date and the prior offense conviction date for which judgment of sentence has been imposed. The actual date of the prior DUI offense need not be within the statutorily mandated ten year look[-]back period.

Trial Court Opinion, 6/8/17, at [2-3]. Accordingly, the court concluded that Mock's March 27, 2007 conviction was a "prior offense" that resulted in Mock being subject to sentencing as a second-time offender under section 3804.

In challenging the court's finding, Mock argues that the phrase

"the prior offense must have occurred" [as set forth in subsection 3806(b) ] means the offense date of any DUIs in which [Mock] was previously convicted of [sic]; thus calculating ten years back from the date of the offense for the currently charged DUI to the date of offense of any other DUI dates of offense with in [sic] the ten years where [Mock] received a valid conviction for the DUI. The offense must have occurred within the ten year look[-]back period, and the offense occurs on the date of offense not at any other time. This calculation is simple and set in stone. It is the date of offense to the date of offense.

Brief of Appellant, at 11. Accordingly, Mock asserts, because the date on which he actually committed his previous DUI, June 3, 2006, was more than ten years prior to the date he committed his current offense, July 10, 2016, the current offense should not be deemed a second offense for purposes of grading and sentencing. We disagree.

Section 3806 contains both a "general rule," i.e., subsection (a), which applies to Chapter 38 as a whole, and a "specific rule," i.e., subsection (b), which applies to the sections enumerated therein, including section 3803 (relating to grading) and section 3804 (relating to penalties). Under subsection (a), "prior offense" is defined as "any " of the enumerated dispositions (including, as is relevant here, conviction for which judgment of sentence has been imposed) occurring "before the sentencing on the present violation[.]" 75 Pa.C.S.A. § 3806(a) (emphasis added). Thus, for example, for purposes of subsection (a) , a DUI conviction twenty years before sentencing in the current case could be considered a "prior offense."

In contrast, subsection (b), which applies only to the sections of Chapter 38 enumerated therein, narrows the scope of applicable offenses from "any ... before the sentencing on the present violation," see id. , to those occurring "within 10 years prior to the date of the offense for which the defendant is being sentenced" or "on or after the date of the offense for which the defendant is being sentenced." 75 Pa.C.S.A. § 3806(b).

Contrary to Mock's assertion, the language "[e]xcept as set forth in subsection (b)" appearing at the beginning of subsection (a) does not alter, for purposes of subsection (b), the essential definition of "prior offense" as being the disposition (i.e., conviction for which judgment of sentence has been imposed, et al.) rather than the actual commission of the offense. Rather, the phrase merely signals that, for purposes of subsection (b), a "prior offense" does not encompass "any" disposition, as it does in subsection (a). Instead, as the heading ("Timing") suggests, "prior convictions" that may be considered for purposes of grading and sentencing under subsection (b) are only those that occurred within the more limited time frames delineated therein.

The learned Dissent asserts that we "ignore the manner in which subsection (b) modifies the definition of prior offense in subsection (a)[.]" Dissenting Opinion, at 440. Indeed, as we make clear above, we find that subsection (b) does, in fact, modify subsection (a) by limiting the universe of dispositions relevant to determining the applicability of recidivist sentencing enhancements to those occurring: (1) within ten years prior to the date of the current offense, or (2) on or after the date of the current offense. Where we respectfully differ with the learned Dissent is on whether the phrase "prior offense," as used in subsection (b), refers to the date of the offense, or the date of conviction or other disposition. We believe that our reading of subsection (b) comports both with the legislature's intent and our obligation to interpret the statute as written.

The language of the statute is clear and unambiguous and the trial court did not err in its interpretation and application.

The court properly deemed Mock's prior conviction date, March 27, 2007, as the date of his "prior offense" for purposes of subsection (b) and correctly sentenced him as a second-time offender. Accordingly, Mock is entitled to no relief.

Judgment of sentence affirmed.

DUBOW, J., joins the opinion.

STRASSBURGER, J., files a dissenting opinion.

DISSENTING OPINION BY STRASSBURGER, J.:

Because the Majority erred in its interpretation of the plain language of 75 Pa.C.S. § 3806, I respectfully dissent.

As explained by the Majority, Mock was convicted of driving under the influence (DUI)-highest rate pursuant to 75 Pa.C.S. § 3802(c). The grading and sentencing for violations of subsection 3802(c) depend on whether the individual has committed prior offenses. If the individual does not have any prior offenses, a violation of subsection 3802(c) constitutes a misdemeanor with a maximum sentence of six months' imprisonment and a mandatory minimum sentence of not less than 72 consecutive hours' imprisonment and a fine between $1,000 and $5,000. 75 Pa.C.S. §§ 3803(b)(2), 3804(c)(1)(i), (ii). If the individual has "one or more prior offenses," the violation of subsection 3802(c) constitutes a misdemeanor of the first degree, which carries a maximum sentence of five years, and a mandatory minimum sentence of at least 90 days' imprisonment and a fine of $1,500. 75 Pa.C.S. §§ 3803(b)(4), 3804(c)(2)(i), (ii) ; 18 Pa.C.S. § 1104(1).

To determine what constitutes a prior offense for the purposes of grading and sentencing, courts must turn to section 3806.

§ 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 ... 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 (emphasis added).

Both the Majority and I agree that subsection 3806(a) constitutes a general rule that applies to Chapter 38 of the Vehicle Code as a whole, and subsection 3806(b) constitutes a specific rule that applies to the sections enumerated therein, including section 3803 (relating to grading) and section 3804 (relating to penalties). See Majority Memorandum at 437; see also Commonwealth v. Haag , 603 Pa. 46, 981 A.2d 902, 905 (2009) (interpreting a prior version of section 3806 in the same manner).

Nevertheless, the Majority concludes that the language of the general rule " '[e]xcept as set forth in subsection (b)' appearing at the beginning of subsection (a) does not alter, for purposes of subsection (b), the essential definition of 'prior offense' as being the disposition (i.e. conviction for which judgment of sentence has been imposed, et al. ) rather than the actual commission of the offense." Majority Memorandum at 437. According to the Majority, the only effect subsection 3806(b) has on subsection 3806(a) is to incorporate a ten-year time limitation. Id. at 437. In my view, the plain language of section 3806 dictates otherwise.

The general rule in subsection 3806(a) is limited by the exclusionary phrase, "except as set forth in subsection (b)." Our Supreme Court has interpreted this exclusionary phrase to mean that "[subs]ection 3806(a) expressly yields to [subs]ection 3806(b) when the latter is applicable...." Haag , 981 A.2d at 906. In other words, our Supreme Court has made clear that by using the phrase "[e]xcept as set forth in subsection (b)," our legislature intended to set forth limitations in subsection 3806(b) that alter the general definition of "prior offense" set forth in subsection 3806(a) for purposes of sentencing and grading. Id. at 907. The legislature has done so even though "the courts may have occasion to apply the provisions of [subs]ection 3806(b) much more frequently than the "[g]eneral [r]ule" of [subs]ection 3806(a)." Id. at 907 n.10. Therefore, the Majority, which does not discuss Haag and cites it only for the standard of review, is incorrect in concluding that subsection 3806(b) has no effect on subsection 3806(a) except for the incorporation of a ten-year time period.

I now turn to the specific rule set forth in subsection 3806(b). In contrast to subsection 3806(a), which requires courts to use "any conviction for which judgment of sentence has been imposed" without any limitations on timing so long as the conviction occurs "before the sentencing on the present violation...," subsection 3806(b) narrows the window to include only offenses occurring in certain periods. 75 Pa.C.S. § 3806(a), (b). Specifically, to constitute a "prior offense" for grading and sentencing purposes, the prior offense "must have occurred ... within 10 years prior to the date of the offense for which the defendant is being sentenced...." Id. at § 3806(b)(1)(i) (emphasis added). In other words, in general when a court is tasked with determining whether an individual has a prior offense, the court must look only to see if the individual has been convicted of a section 3802 violation at any point prior to sentencing on the current section 3802 offense. But for purposes of sentencing, grading, or any of the other three sections enumerated in subsection 3806(b), the court must look not only to see if the individual has been convicted of a section 3802 violation at any point prior to sentencing on the current section 3802 offense, but it must also use the timing subsection to determine if the individual committed the prior offense sometime within the 10 years before the individual committed the subsequent offense.

Here, Mock's DUIs occurred on June 3, 2006, and July 10, 2016. He was convicted of the June 3, 2006 DUI prior to his sentencing for the July 10, 2016 DUI. Thus, under the general rule, his June 3, 2006 DUI is a prior offense. See 75 Pa.C.S. § 3806(a) ("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 ... before the sentencing on the present violation for ... an offense under section 3802 [.]"). However, our analysis cannot stop there; we also have to consider the timing restrictions set forth in subsection 3806(b). Because his prior conviction stemmed from a DUI that occurred more than 10 years before the date of the offense for which he was being sentenced, for purposes of grading, sentencing, and the three other sections not at issue, his June 3, 2006 DUI cannot constitute a prior offense. See 75 Pa.C.S. § 3806(b) ("For purposes of sections ... 3803 (relating to grading) [and] 3804 (relating to penalties) ..., the prior offense must have occurred ... within 10 years prior to the date of the offense for which the defendant is being sentenced[.]").

By interpreting section 3806 to include Mock's June 3, 2006 DUI, the Majority ignores the plain language of the specific timing restriction set forth in subsection 3806(b)(1)(i), which requires us to consider only convictions that stem from prior offenses that "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)(1)(i) (emphasis added). Given that the legislature has changed repeatedly the parameters for the look-back period in different revisions of subsection 3806(b), I must assume its decision to use the word "occurred" in the current version was deliberate. Compare 75 Pa.C.S. § 3806(b) (enacted May 26, 2016) (referring to a prior offense that "must have occurred ... within 10 years prior to the date of the offense for which the defendant is being sentenced..."-i.e. , occurrence to occurrence) with id. (effective November 29, 2004 to December 25, 2014) (referring to "any conviction ... within the ten years before the present violation occurred"-i.e. , conviction to occurrence) and id. (effective December 26, 2014 to May 24, 2016) (referring to "any conviction, whether or not judgment of sentence has been imposed for the violation ... within the ten years before the sentencing on the present violation..."-i.e. , conviction to sentencing).

We must interpret the statute as written. Therefore, based upon the plain language of the statute, Mock does not have a prior offense for purposes of grading and sentencing, and his judgment of sentence imposing enhanced penalties should be vacated. 
      
      75 Pa.C.S.A. § 3802(c) ; 75 Pa.C.S.A. § 3806.
     
      
      "The headings prefixed to titles, parts, articles, chapters, sections and other divisions of a statute shall not be considered to control but may be used to aid in the construction thereof." 1 Pa.C.S.A. § 1924.
     
      
      The Court interpreted a prior version of the statute in Haag , but the prior version contained the same exclusionary phrase in subsection 3806(a) as the current version.
     