Judge John A. Boccabella, in the case of Commonwealth v. Henderson, 103 Berks Co. L. Journal 122 (January 13, 2011), sentenced a DUI defendant to 90 days to 5 years with a special condition that, in lieu of incarceration, the defendant be placed on electronic monitoring for 90 days.
The Commonwealth appealed the sentence, raising the issue of the sentence being an illegal sentence. According to law, the mandatory sentence for a second offender in the highest bracket of blood alcohol is 90 days to five years.
However, the court pointed out that there was no indication that Intermediate Punishment or alternative sentencing was not available; in fact, the court stated that the decision as to whether to sentence to alternative sentencing is “within the sound discretion of the trial court.” The intention of making alternative sentencing available was “to provide a more appropriate form of punishment for certain types of non-violent offenders.” Henderson, at 124 (quoting Commonwealth v. Williams, 941 A.2d 14, 24 (Pa.Super.2008).
Stating that sentencing the defendant to a term of County IP was simply a semantic difference from offering electronic monitoring as a special condition, the court exercised its discretion under Commonwealth v. Syno (791 A.2d 363, 366 (PA Super. 2002) to sentence to County IP. Further, since this decision was issued on January 13, 2011, the Superior Court, in Commonwealth v. Sarapa (
—A.3d.—, 2011 WL 198461, 2011 PA Super 18 (Pa.Super.,Jan.24, 2011), on January 24, 2011, has offered the further rationale that County IP programs, APOs, or DA’s offices may not adjust eligibility standards established by the Legislature to deny DUI offenders intermediate punishment or alternative sentencing.