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J. A18020/01
2001 PA Super 188
COMMONWEALTH OF PENNSYLVANIA,
:
IN THE SUPERIOR COURT OF
Appellant
:
PENNSYLVANIA
::
v.
::
:
RICHARD BENN,
:
Appellee
:
No. 1957 MDA 2000
Appeal from the Judgment of Sentence in the Court of
Common Pleas of Lancaster County,
Criminal Division, No. 1608 of 2000
BEFORE: CAVANAUGH, STEVENS and TAMILIA, JJ.
OPINION BY TAMILIA, J.:
Filed: June 25, 2001
¶ 1
The Commonwealth appeals from the September 18, 2000 judgment
of sentence of one (1) to two (2) years', less one day, imprisonment plus
three (3) years' probation imposed after appellee, Richard Benn, entered an
open plea of guilty to one count each of the summary offenses of driving
while under suspension1 and failure to give information and render aid in an
accident involving death or personal injury,2 and two counts of accidents
involving death or personal injury, a misdemeanor of the first degree and a
felony of the third degree, respectively.3 In exchange for Benn's guilty plea,
the Commonwealth agreed to nol pros two counts of accidents involving

1 75 Pa.C.S.A. § 1543(a).
2 Id., § 3744(a).
3 Id., §§ 3742(a), (b)(1) & (b)(3).

J. A18020/01
death or personal injury while not properly licensed.4 The charges arose
after appellee struck the victims' vehicle, causing the death of one
passenger, and left the scene of the accident.
¶ 2
The Commonwealth argues the court erred by denying its motion to
modify sentence on the basis the sentence the court imposed was illegal.
The Commonwealth contends that by imposing a sentence of "not less than
one nor more than two years' less one day in the Lancaster County
prison[,]" the sentencing court ignored the mandate of section 3742(c) of
the Vehicle Code requiring a mandatory sentence of one to two years'
imprisonment (N.T., 9/18/00, at 23). It is the Commonwealth's position the
court's action resulted in the imposition of an illegal sentence.
¶ 3
At the September 18, 2000, sentencing hearing, the parties agreed
that for the purpose of sentencing, the summary convictions merged with
the conviction for the third degree felony of accidents involving personal
injury or death. Sections 3742(b) and (c) of the Vehicle Code address the
sentences to be imposed for violating this statute, as well as the authority of
the sentencing court. The pertinent sections are set forth below.
(b) Penalties.-

(1) Except as otherwise provided in this
section, any person violating this section
commits a misdemeanor of the first degree.
.
.
.

4 Id., §§ 3742.1(a), (b)(1) & (b)(2).
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J. A18020/01
(3) If the victim dies, any person violating
subsection (a) commits a felony of the third
degree, and the sentencing court shall order the
person to serve a minimum term of
imprisonment of not less than one year and a
mandatory minimum fine of $2,500,
notwithstanding any other provision of law.
(c) Authority of sentencing court.-There shall be no
authority in any court to impose on an offender to
which this section is applicable any lesser sentence
than provided for in subsection (b)(2) or (3) or to
place such offender on probation or to suspend
sentence. Sentencing guidelines promulgated by the
Pennsylvania Commission on Sentencing shall not
supersede the mandatory sentences provided in this
section.
75 Pa.C.S.A. §§ 3742(b)(1) & (3), & (c) (emphasis added).
¶ 4
While the court has not filed a memorandum in support of its
purposeful decision to impose a lesser sentence than required by law, a
reading of the record before us explains the reasoning behind the sentencing
court's effort to express leniency toward the appellee.5 On the day of the
accident, it was snowing heavily. The victims exited a major highway, only
to discover they had done so by mistake. The fatal accident occurred when
the driver/victim attempted to make a U-turn, and the appellee struck the
passenger side of the vehicle broadside. Appellee, who was driving while
under suspension, panicked and left the scene, after he purportedly inquired
as to the victims' injuries and attempted to call 911. At sentencing, the court
noted the tragic consequences suffered by both the victims and the appellee,

5 Appellee waived his right to a pre-sentence investigation report.
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J. A18020/01
and voiced his concern over placing appellee in a state facility where, "you
don't wind up with other people that have been convicted of this same
crime. You wind up with other people that have been convicted of serious
felonies and violent crimes, and I'm going to try to provide for that in my
sentence." (N.T. at 22.) The court acknowledged the mandatory sentence
required by law, and stated, "[w]e're here to try to exact some kind of fair-
to-all concerned consequences, and the legislature sometimes takes that job
out of the hands of the sentencing court." (Id. at 21-22.) The court also
noted appellee had no criminal history, felt extreme remorse over his actions
and served four days in jail when he turned himself in to authorities (id. at
7, 13-14).
¶ 5
In an effort "to be fair," the sentencing court violated its obligation to
impose a term of imprisonment mandated by state law.6 We find the
sentencing court's concern that appellee be placed in a county facility cannot
override the mandate of our state legislature. See Commonwealth v.
Kunselman, 526 A.2d 443 (Pa.Super. 1987), appeal denied, 517 Pa. 598,
526 A.2d 443 (1987) (holding a sentence is illegal when the sentencing
court deviates from the mandatory sentence and imposes a lesser sentence
to accommodate defendant in a county facility). Likewise, we are unswayed
by appellee's argument that because he waived credit for time served (four

6 We also note that the court violated 42 Pa.C.S.A. § 9756(b), Minimum
sentence, by imposing a sentence with a minimum term greater than one-
half of the maximum sentence imposed.
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J. A18020/01
days), it was within the court's discretion to fashion a sentence keeping him
within the county prison system. Cf. Commonwealth v. Basinger, 592
A.2d 1363 (Pa.Super. 1991), appeal denied, 529 Pa. 644, 602 A.2d 855
(1992).
¶ 6
For these reasons, we are obliged to vacate the judgment of sentence
and remand for re-sentencing in accordance with section 3742 of the Vehicle
Code.
¶ 7
Judgment of sentence vacated. Case remanded for proceedings
consistent with this Opinion.
¶ 8
Jurisdiction relinquished.
¶ 9
Concurring and Dissenting Statement by Cavanaugh, J.
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J.A18020/01
COMMONWEALTH OF PENNSYLVANIA, :
IN THE SUPERIOR COURT OF
Appellant
:
PENNSYLVANIA
:
v.
:
:
RICHARD BENN,
:
:
Appellee
:
No. 1957 MDA 2000
Appeal from the Judgment of Sentence Entered September 18, 2000
In the Court of Common Pleas of Lancaster County
Criminal Division, No. 1608 of 2000
BEFORE:
CAVANAUGH, STEVENS AND TAMILIA, JJ.
CONCURRING AND DISSENTING STATEMENT BY CAVANAUGH, J.:
¶ 1
I concur in the disposition of the proposed memorandum which
vacates the judgment of sentence and remands the case for re-sentencing.
However, I respectfully dissent from the rationale adopted by the majority.
Because I find that the sentencing court may, upon remand, fashion a
sentence that both keeps appellee within the county prison system and also
complies with the mandatory minimum sentence of section 3742 of the
Vehicle Code, 75 Pa.C.S.A., through the imposition of a flat one-year
sentence, I would remand the case for further proceedings without the
express and narrow directive of the majority.
¶ 2
The dilemma faced by the trial judge in this case is a common one
the duty to follow the law including provisions mandating minimum
sentences on the one hand, and the desire to craft a sentence which will be
carried out in the local county prison on the other. The latter goal grows out
of a recognition that "state" sentences inevitably subject the defendant to

J.A18020/01
the uncertain choices of the State Board of Probation and Parole and also
result in imprisonment in a remote facility without easy access to family,
friends and those who might offer counsel both legal and personal. Also
involved is the accessibility of programs such as work release.
¶ 3
Instantly, the Commonwealth argued and the majority agrees that the
most lenient sentence appellee may receive is a sentence of one year to two
years' imprisonment. It is beyond cavil that appellee faces a mandatory
term of imprisonment of not less than one year pursuant to 75 Pa.C.S.A. §§
3742(b)(3) & (c). However, a minimum term of two years as the maximum
sentence is derived solely from the application of section 9756(b) of the
Sentencing Code which provides:
[t]he court shall impose a minimum sentence of
confinement which shall not exceed one-half of the
maximum sentence imposed.
42 Pa.C.S.A. § 9756(b). Accordingly, a mandatory one year minimum does
mandate at least a two year maximum if 42 Pa.C.S.A. § 9756(b) is
applicable. Assuming the applicability of section 9756(b), however, is
premature.
¶
4
The Commonwealth cites and relies upon Commonwealth v.
Klingensmith, 650 A.2d 444 (Pa. Super. 1994), appeal denied, 659 A.2d
986 (Pa. 1995), as "supporting" authority. See Appellant's Brief at 13.
Meaningful review shows otherwise. In Klingensmith, the appellant had
received consecutive sentences of one to two years' imprisonment for
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J.A18020/01
driving under the influence of alcohol and ninety days imprisonment for
driving with a suspended license. Klingensmith, 650 A.2d at 447 (ninety
days imposed pursuant to 75 Pa.C.S.A. § 1543, entitled "Driving while
Operating Privilege is Suspended or Revoked"). On appeal, Klingensmith
argued that his aggregate sentence of one year and ninety days to two years
and ninety days was an illegal sentence violating 42 Pa.C.S.A. § 9756(b)
because his minimum sentence was in excess of 50% of his maximum
sentence. Id. The Commonwealth, however, argued that "[s]ection
1543(b)7 of the Motor Vehicle Code implicitly creates an exception to 42
Pa.C.S.A. § 9756(b) by permitting a sentencing court to impose a ninety day
mandatory sentence for the charge of driving with a suspended license". Id.
(Underline added).

7 At the time of Klingensmith, this section stated as follows:
(b) Certain offenses.-Any person who drives a motor
vehicle on any highway or trafficway of this Commonwealth at
a time when their operating privileges is suspended or
revoked as a condition of acceptance of Accelerated
Rehabilitative Disposition for a violation of section 3731
(relating to driving under influence of alcohol or controlled
substance) or because of a violation of section 1547(b)(1)
(relating to suspension for refusal) or 3731 shall, upon
conviction, be guilty of a summary offense and shall be
sentenced to pay a fine of $1,000 and to undergo
imprisonment for a period of not less than 90 days.
75 Pa.C.S.A. § 1543(b). This section has been modified in ways not relevant
to the instant matter. The current version now includes driving with a
license suspension pursuant to section 1581 of the Driver License Compact
as a punishable offense.
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J.A18020/01
¶ 5
This court agreed with the Commonwealth that the sentence was not
illegal and found that "75 Pa.C.S. § 1543(b) implicitly creates an exception
to 42 Pa.C.S. § 9756(b) by specifically authorizing a trial court to impose a
flat minimum mandatory sentence of ninety days for driving with a
suspended license when the license was suspended as a result of a prior DUI
conviction." Id. at 461. This court further stated "[t]herefore, as appellant
was convicted of this offense, the trial court was entitled to impose a flat
ninety day sentence." Id.
¶ 6
As the statutory section relevant here, 75 Pa.C.S.A. § 3742(b), is also
contained in the Vehicle Code and contains almost identical language
expressing a sentencing mandate, a flat sentence of one year is seemingly
authorized as an explicit exception to the maximum-minimum rule of section
9756(b). In light of the Klingensmith cannon produced by the
Commonwealth, I would remand for re-sentencing but not impede the trial
court's ability to fashion an appropriate sentence utilizing all controlling
authority.
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