Commonwealth v. Alston , 387 Pa. Super. 393 ( 1989 )

HOFFMAN, Judge:

This is an appeal from a judgment of sentence for driving under the influence of alcohol, which was entered following appellee’s guilty plea. Appellant, the Commonwealth, contends that the trial court erred in refusing to consider appellee’s prior acceptance of Accelerated Rehabilitative Disposition (ARD) for an unrelated driving under the influence offense, a prior conviction as prescribed by 75 Pa.C.S.A. § 3731(e)(2). Although we agree with the Commonwealth that appellee should not have been sentenced as a first offender, we also find that appellee’s guilty plea was not knowingly and voluntarily entered because he was misinformed as to the potential sentence he could receive. Accordingly, we vacate the judgment of sentence and remand with directions to allow appellee to withdraw his guilty plea.

Appellee was arrested on July 3, 1984 and charged with driving under the influence of alcohol in violation of § 3731 of the Pennsylvania Motor Vehicle Code. 75 Pa.C.S.A. § 3731. Appellee appeared in Philadelphia Municipal Court on June 11, 1986 and entered a plea of guilty. On February 18, 1987 at sentencing, the Commonwealth notified the court that appellee was a second time offender and that they would be seeking the mandatory minimum sentence of 30 days. The municipal court refused to sentence appellee as a second time offender, but instead imposed a sentence of forty eight hours imprisonment. The Commonwealth filed a petition for reconsideration of the sentence, which was denied. The Commonwealth appealed to the Court of Common Pleas which affirmed the Municipal Court’s sentence. This timely appeal followed.

The Commonwealth contends that appellee was sentenced improperly. We agree. 75 Pa.C.S.A. § 3731(e)(1) states:

Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum imprisonment of:

(i) not less than 48 consecutive hours.

(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdiction within the previous seven years.

A prior inclusion in the ARD program is considered a first conviction for purposes of this section. Id. § 3731(e)(2). Here, appellee had a prior arrest for drunk driving on July 22, 1983, and he was placed in the ARD program. Therefore, his 1984 offense constituted a second conviction for purposes of § 3731(e)(1)(ii). Commonwealth v. Becker, 366 Pa.Super. 54, 63-64, 530 A.2d 888, 893 (1987) (en banc), allocatur denied 520 Pa. 586, 551 A.2d 213 (1988); see also Commonwealth v. Gretz, 368 Pa.Super. 94, 97, 533 A.2d 732, 734 (1987). Appellee thus should have been sentenced to the thirty day term of imprisonment specified for second offenders. Accordingly, the sentence of the trial court must be vacated.

Appellee argues that, if this Court holds that he should have been sentenced as a second offender, he should be allowed to withdraw his guilty plea. Specifically, he argues that his plea was not knowingly and voluntarily entered because the court misinformed him regarding the potential sentence he would have received. We agree.¹ A person may attack a guilty plea after sentencing on three grounds: (1) the legality of the sentence; (2) the jurisdiction of the court; and (3) the voluntary, knowing, and intelligent nature of the guilty plea itself. See Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975); see also Pa.R.Crim.P. 319(a). The comment to Rule 319 notes that, at a minimum, a judge should inquire into the following six areas before accepting a plea:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he has the right to trial by jury?

(4) Does the defendant understand that he is presumed innocent until he is found guilty?

(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Id. (emphasis supplied). With regard to the fifth question, this Court has noted:

A knowing and voluntary guilty plea must provide the opportunity to a defendant to assess his chances of obtaining a reduced sentence as opposed to going to trial. A defendant may well take his chances at trial rather than entering a guilty plea if he is made aware that entering a guilty plea will require an imposition of a five-year mandatory minimum sentence by the court.

Commonwealth v. Crum, 380 Pa.Super. 280, 288, 551 A.2d 584, 589 (1988). During the trial colloquy in the instant case, appellee was informed of all the essential elements of a guilty plea. However, when explaining the possible sentence to appellee, the trial court misinformed appellee regarding the sentence it could impose. The trial court informed appellee that it would impose the mandatory minimum sentence of 48 hours and that it would give appellee credit for 24 hours. N.T. June 11, 1986 at 12-13. Because appellee was misinformed as to the potential sentence he could receive, we must conclude that his guilty plea was not knowingly and voluntarily entered. Accordingly, we remand with directions that appellee be permitted to withdraw his plea.

For the foregoing reasons, we vacate the judgment of sentence and remand with directions to allow appellee to withdraw his guilty plea.

Vacated and remanded. Jurisdiction relinquished.

TAMILIA, J., files a concurring statement. JOHNSON, J., files a dissenting opinion.

1 . Appellee also contends that his trial counsel was ineffective for not appealing the denial of his motion to withdraw his guilty plea. Because of our disposition of appellee’s first claim, we need not address this issue.