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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FELIX FRIAS-PEREZ
Appellant No. 1549 MDA 2013
Appeal from the Judgment of Sentence July 29, 2013
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001206-2013
BEFORE: GANTMAN, P.J., ALLEN, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 05, 2014
Felix Frias-Perez appeals from the judgment of sentence imposed by
the Court of Common Pleas of Berks County after he pled guilty to driving
under the influence of alcohol.1 After careful review, we affirm.
The underlying facts of this case are not in dispute. On January 20,
2013, Corporal Thomas Link of the Laureldale Police Department saw Frias-
Perez driving a minivan the wrong way down a one-way street. An adult
male and a seven-year-old child were also in the vehicle. The officer pulled
over the minivan and noticed that Frias-Perez had alcohol on his breath and
bloodshot eyes. The officer administered three field sobriety tests, two of
which Frias-Perez failed. After Frias-Perez was informed of the implied
____________________________________________
1
75 Pa.C.S. § 3802(b).
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consent law, he signed a form agreeing to have his blood drawn and tested
for the presence of alcohol. Testing revealed a blood alcohol concentration
of 0.16%.
On July 29, 2013, Frias-Perez entered an open plea to violation of
section 3802(b) of the Vehicle Code, which provides:
(b) High rate of alcohol. An individual may not drive, operate
or be in actual physical control of the movement of a vehicle
after imbibing a sufficient amount of alcohol such that the
alcohol concentration i
least 0.10% but less than 0.16% within two hours after the
individual has driven, operated or been in actual physical control
of the movement of the vehicle.
75 Pa.C.S. § 3802(b).
Immediately following entry of the guilty plea, the trial court
sentenced Frias-Perez to forty-
incarceration. On July 30, 2013, Frias-Perez filed a post-sentence motion
arguing that the sentence was excessive. Following argument on July 31,
2013, the trial court denied the motion.
Frias-Perez filed a timely notice of appeal on August 28, 2013. On
September 23, 2013, he filed a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), in which he asserted that his sentence was
illegal. On October 15, 2013, the trial court issued its Rule 1925(a) opinion,
agreeing with Frias-
the sentence.
sentence of eighteen months of incarceration was illegal, where six months
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of incarceration was the maximum possible sentence pursuant to 75 Pa.C.S.
§ 3803(b)(1) and (5), for a first conviction for driving under the influence
under 75 Pa.C.S. § 3802(b), notwithstanding the grading of the offense as a
misdemeanor of the first degree.
As an initial matter, the Commonwealth argues that Frias-Perez
waived his right to challenge the legality of his sentence on appeal because
he did not raise the issue in his post-sentence motion. However, it is well
Commonwealth
v. Musau, 69 A.3d 754 (Pa. Super. 2013) (citation omitted). Accordingly,
we reach the merits of the issue.2
Grading of the offense of driving under the influence is governed by
section 3803 of the Vehicle Code, which provides, in relevant part:
§ 3803. Grading
(b) Other offenses.
(1) An individual . . . who violates section 3802(b) . . .
and who has no more than one prior offense
commits a misdemeanor for which the individual
may be sentenced to a term of imprisonment of not
more than six months and to pay a fine under
section 3804.
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2
Because issues relating to the legality of sentencing are questions of law,
our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2012).
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***
(5) An individual who violates section 3802 where a
minor under 18 years of age was an occupant in
the vehicle when the violation occurred commits a
misdemeanor of the first degree.
75 Pa.C.S. § 3803.
Frias-Perez argues that our decision in Musau, supra controls the
outcome of the instant matter. We disagree. Musau was convicted of DUI
(general impairment), 75 Pa.C.S. § 3802(a)(1), graded as a first-degree
misdemeanor because he refused to submit to chemical testing and had a
prior DUI conviction. See 75 Pa.C.S. § 3803(b)(4). The court sentenced
3
On appeal, Musau
challenged the legality of his sentence, and this Court agreed.
In Musau, we looked to section 3803 of the Vehicle Code, which
provides:
(a) Basic offenses. Notwithstanding the provisions of
subsection (b):
(1) An individual who violates section 3802(a) (relating
to driving under the influence of alcohol or controlled
substance) and has no more than one prior offense
commits a misdemeanor for which the individual
may be sentenced to a term of imprisonment of not
more than six months and to pay a fine under
section 3804 (relating to penalties).
***
____________________________________________
3
Five years is the maximum period of incarceration for a first-degree
misdemeanor pursuant to section 106(b)(6) of the Crimes Code, 18 Pa.C.S.
§ 106(b)(6).
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(b) Other offenses.
***
(4) An individual who violates section 3802(a)(1)
where the individual refused testing of blood or
breath, or who violates section 3802(c) or (d) and
who has one or more prior offenses commits a
misdemeanor of the first degree.
75 Pa.C.S. § 3803 (emphasis added).
provisions of subsection (b
[T]he plain meaning of [section 3803], giving the words their
ordinary meanings, indicates as follows: regardless of the fact
that refusal to submit to blood alcohol testing results in the
grading of the offense as a first degree misdemeanor, the
maximum sentence for a first or second DUI conviction is six
Musau, supra at 757.
Although Musau discusses several rules of statutory construction, the
ued . . .
initial matter, we note that the plain meaning of section 3803(b)(1) is that a
person who is found guilty of DUI - high rate of alcohol, and who has a
maximum of one prior conviction, commits a misdemeanor but is subject
See 75 Pa.C.S. §
3803(b)(1). In contrast, a similarly-situated individual who commits the
same offense while a minor is in the vehicle commits a first-degree
misdemeanor, with no provision made for a six-month maximum term of
imprisonment. See 75 Pa.C.S. § 3803(b)(5). Frias-Perez asserts that a
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conflict exists between these two subsections. Assuming that a conflict does
exist, our Court held in Musau:
[I]f two statutes appear to conflict, they are to be construed by
giving effect to both when possible. When the conflict between
the provisions cannot be reconciled, the special provisions shall
prevail and shall be construed as an exception to the general
provision, unless the general provision shall be enacted later and
it shall be the manifest intention of the General Assembly that
such general provision shall prevail.
Musau, supra at 756 (citations and quotations omitted).
Here, the general provision, section 3803(b)(1), was enacted
September 30, 2003, and became effective February 1, 2004. The more
specific provision, section 3803(b)(5), which eliminates the lenient six-
month maximum sentence for an individual convicted of DUI where a minor
was an occupant of the vehicle, was enacted May 8, 2012, and became
effective July 9, 2012. Accordingly, unlike the provisions in Musau, section
3803(b)(5) was enacted more recently than section 3803(b)(1), indicating
eral terms of section
3803(b)(1), which had been in effect for more than eight years. Clearly, the
legislature made a policy decision to impose more severe sanctions on those
who endanger children by operating a vehicle while impaired. Section 3803
carries out that legitimate objective.
Accordingly, the trial court did not err in sentencing Frias-Perez to a
sentence of forty-
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2014
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