Concurring and Dissenting:
¶ 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 Codé, 75 Pa.C.SA., 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 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, 437 Pa.Super. 453, 650 A.2d 444 (1994), appeal denied, 540 Pa. 647, 659 A.2d 986 (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 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 *578Operating 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).
¶ 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 “[therefore, 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 Klingen-smith 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.
. 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.