J-S18040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY LEONARD CANTZ
Appellant No. 2202 EDA 2014
Appeal from the PCRA Order June 30, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000895-2011
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED JUNE 11, 2015
Appellant, Timothy Leonard Cantz, appeals from the June 30, 2014
order dismissing his amended petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Therein, Appellant
challenges the legality of his sentence of 15 to 30 months’ incarceration for
his conviction of driving under the influence (DUI) of “a drug or combination
of drugs to a degree which impairs the individual’s ability to safely drive,
operate or be in actual physical control of the movement of the vehicle.” 1 In
addition, Appellant’s counsel has filed before this Court a motion to
withdraw, together with a Turner/Finley no-merit letter/brief, averring the
appeal is without merit. See Commonwealth v. Turner, 544 A.2d 927
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1
75 Pa.C.S.A. § 3802(d)(2).
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(Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988) (en
banc). After careful review, we grant counsel’s motion to withdraw and
affirm the PCRA court’s June 30, 2014 order dismissing Appellant’s PCRA
petition.
The PCRA court summarized the facts of this case as follows.
The relevant factual and procedural history is
undisputed and clear from the record.
On November 23, 2010, [Appellant] was twice
arrested and charged with [DUI]. … Case No. 895
CR 2011 resulted from a routine traffic stop.
[Appellant] was initially stopped for traveling too
closely behind another vehicle on the highway. In
the ensuing encounter with the state trooper who
stopped him, [Appellant] exhibited traditional indicia
of intoxication. As a result, the trooper administered
several field sobriety tests, all of which [Appellant]
failed. [Appellant] was taken to Pocono Medical
Center where he refused to submit to chemical
testing. Ultimately, [Appellant] was charged with
DUI under 75 Pa.C.S.A. § 3802 (d)(2) (Controlled
Substance — Impaired Ability to Drive) as a second
offense.
…
On September 5, 2012, [Appellant] pled guilty to []
the controlled substance DUI offense[]. On
November 5, 2012, [Appellant] was sentenced to
incarceration for not less than 15 months nor more
than 30 months on [] the DUI conviction[]. …
On June 28, 2013, the Superior Court decided
[] Musau, [] holding that the maximum sentence
allowed by law for a first or second conviction under
75 Pa.C.S.A. Section 3802(a)(1) (General
Impairment — Alcohol) is six months’ imprisonment.
[Appellant] then filed a pro se PCRA petition [on
October 23, 2013]. [On February 3, 2014], through
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appointed counsel, [Hillary A. Madden, Esquire,]
[Appellant] filed the amended petition that [the
PCRA court] denied on June 30, 2014 ….
PCRA Court Opinion, 7/8/14, at 1-3 (footnote omitted).
Appellant filed a timely notice of appeal on July 25, 2014.2 On October
30, 2014, PCRA counsel filed with this Court a petition to withdraw together
with a Turner/Finley no-merit letter/brief.3 Therein, Counsel identifies
Appellant’s issues on appeal as an error by the PCRA court in denying him
relief based on the following allegations.
The only issue asserted by Appellant in his pro se
petition for [PCRA] relief is whether the trial court
imposed an illegal sentence by ordering Appellant
serve a total period of time of not less than 30
months nor more than 60 months in a state
correctional institution.
Counsel’s No-Merit Letter/Brief at 18. Appellant’s assertion that his sentence
is illegal, is premised on this Court’s decision in Commonwealth v. Musau,
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2
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. In its Rule 1925(a) statement, the PCRA court
references its July 8, 2014 opinion in support of its June 30, 2014 order as
containing the reasoning behind its dismissal of Appellant’s amended PCRA
petition.
Appellant filed an untimely notice of appeal in a companion case
involving a separate DUI plea at 2321 EDA 2014 resulting from his second
November 28, 2010 DUI arrest. We quashed that appeal. However, the
issues raised therein were identical to those in the instant case.
3
The Commonwealth did not file a brief in this matter.
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69 A.3d 754 (Pa. Super. 2013).4 Id. at 19. Alternatively, Appellant bases
his claim on the trial court’s past interpretation and application of Musau in
sentencing other defendants convicted of non-section 3802(a) DUI offenses.
Id.
When we review an order denying an appellant’s request for PCRA
relief, we adhere to the following standards.
“On appeal from the denial of PCRA relief, our
standard and scope of review is limited to
determining whether the PCRA court’s findings are
supported by the record and without legal error.”
Commonwealth v. Edmiston, 65 A.3d 339, 345
(Pa. 2013) (citation omitted)[, cert. denied,
Edminston v. Pennsylvania, 1345 S. Ct. 639
(2013)]. “[Our] scope of review is limited to the
findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the
prevailing party at the PCRA court level.”
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d
121, 131 (2012) (citation omitted). “The PCRA
court’s credibility determinations, when supported by
the record, are binding on this Court.”
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4
In Musau, the Commonwealth filed a petition for allowance of appeal at
510 EAL 2013. Our Supreme Court, on February 11, 2014, issued an order
holding the petition for allowance of appeal pending its disposition of the
appeal at 32 EAP 2013 for Commonwealth v. Mendez, 62 A.3d 456 (Pa.
Super. 2012) (unpublished memorandum). The question accepted for
decision in the Mendez appeal was as follows. “In upholding a sentence
that exceeds the statutory maximum explicitly set out in 75 Pa.C.S. § 3803,
did not the majority violate the rules of statutory construction in order to
avoid what it saw as ‘problematic consequences’ resulting from a
straightforward application of the statute?” Commonwealth v. Mendez,
71 A.3d 250 (Pa. 2013) (per curiam order). Our Supreme Court dismissed
the Mendez appeal on March 30, 2015. Commonwealth v. Mendez, 111
A.3d 1187 (Pa. 2015). The hold on the petition for allowance of appeal in
Musau is still pending.
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Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
244, 259 (2011) (citation omitted). “However, this
Court applies a de novo standard of review to the
PCRA court’s legal conclusions.” Id.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc), appeal granted, 105 A.3d 658 (Pa. 2014). Further, in order to be
eligible for PCRA relief, a petitioner must plead and prove by a
preponderance of the evidence that his conviction or sentence arose from
one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues
must be neither previously litigated nor waived. Id. at § 9543(a)(3).
“Issues relating to the legality of sentence are cognizable under the PCRA.”
Commonwealth v. Voss, 838 A.2d 795, 799 (Pa. Super. 2003) (citation
omitted).
Before we consider Appellant’s arguments, we must review PCRA
counsel’s request to withdraw. As described by our Supreme Court, the
requirements PCRA counsel must abide by, when requesting to withdraw,
include the following.
1) A “no-merit” letter by PC[R]A counsel
detailing the nature and extent of his review;
2) The “no-merit” letter by PC[R]A counsel
listing each issue the petitioner wished to have
reviewed;
3) The PC[R]A counsel’s “explanation”, in the
“no-merit” letter, of why the petitioner’s issues
were meritless[.]
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Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,
supra at 215. “Counsel must also send to the petitioner: (1) a copy of the
“no-merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3)
a statement advising petitioner of the right to proceed pro se or by new
counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007).
[W]here counsel submits a petition and no-
merit letter that do satisfy the technical demands of
Turner/Finley, the court - trial court or this Court -
must then conduct its own review of the merits of
the case. If the court agrees with counsel that the
claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if
the claims appear to have merit, the court will deny
counsel’s request and grant relief, or at least instruct
counsel to file an advocate’s brief.
Id. (citation omitted).
Instantly, we conclude that Attorney Madden has complied with the
requirements of Turner/Finley. Specifically, Attorney Madden’s
Turner/Finley letter/brief details the nature and extent of her review,
addresses the claims Appellant raised in his amended PCRA petition and Rule
1925(b) Statement, and determines that the issues lack merit. Attorney
Madden discusses Appellant’s claims, explaining the reasons for her
conclusion that the issues are meritless. Additionally, Attorney Madden
served Appellant with a copy of the petition to withdraw and Turner/Finley
letter/brief, advising Appellant that, if she was permitted to withdraw,
Appellant had the right to proceed pro se or with privately retained counsel.
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Appellant has not filed any response to the motion to withdraw. Therefore,
we proceed to perform an independent merits review of Appellant’s claims.
The basis of Appellant’s primary issue is that his sentence of 15 to 30
months’ incarceration is illegal in light of this Court’s holding in Musau.
“Issues relating to the legality of a sentence are questions of law[.] ... Our
standard of review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014)
(citation omitted).
In Musau, we were called upon to interpret the then existing version
of Section 3803(a) of the Vehicle Code, which provided as follows.
(a) Basic offenses.— Notwithstanding the
provisions of subsection (b):
(1) An individual who violates section
3802(a) (relating to driving under 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).
75 Pa.C.S.A. § 3803(a) (emphasis added).5
Musau had been convicted of DUI under Section 3802(a), which,
because he had a prior offense and refused a blood alcohol test, was graded
as a first-degree misdemeanor under Section 3803(b)(4). Musau, supra at
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5
Effective October 27, 2014, the Legislature amended Section 3803(a),
replacing the phrase, “Notwithstanding the provisions of subsection (b)”
with, “Except as provided in subsection (b).”
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755-756. Following principles of statutory construction and emphasizing the
import of the word “notwithstanding” in the section, the Musau panel held,
“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 months’ imprisonment.”
Id. at 757-758.
Instantly, Appellant pleaded guilty to DUI under Section
3802(d)(2).6 Relative to grading, Section 3803(b)(4) provides as follows.
§ 3803. Grading
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6
That section provides as follows.
§ 3802. Driving under influence of alcohol or
controlled substance
…
(d) Controlled substances.--An individual may not
drive, operate or be in actual physical control of the
movement of a vehicle under any of the following
circumstances:
…
(2) The individual is under the influence of a
drug or combination of drugs to a degree
which impairs the individual’s ability to safely
drive, operate or be in actual physical control
of the movement of the vehicle.
…
75 Pa.C.S.A. § 3802(d)(2).
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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.A. § 3803(b)(4).
Accordingly, as explained by the PCRA court, Musau does not apply to
Appellant’s sentence.
Thus, the six[-]month sentence limiting provision of
Section 3803(a) applies only to first and second
general impairment DUI convictions under Section
3802(a). Had the Legislature desired to trump the
grading provisions of Section 3803(b)(4) with
respect to controlled substance convictions as it did
for general impairment violations, or to otherwise
limit to six months the maximum sentence for
controlled substance DUIs (or any of the other non-
general impairment offenses listed under Section
3802), it could easily have done so. It did not.
Accordingly, the holding in Musau and the six[-
]month maximum sentence provision of 3803(a) do
not apply to [Appellant’s] Section 3802(d) controlled
substance conviction[].
PCRA Court Opinion, 7/8/14, at 6; see also Commonwealth v. Wilson,
111 A.3d 747, 753 (Pa. Super. 2015) (distinguishing the limiting language of
Section 3803(a) and the holding in Musau from the language in Section
3803(b)(1), which, although it provides for a maximum six-month sentence
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for violation of Section 3802(b), did not contain the “notwithstanding”
phrase, and did not trump the grading provision of Section 3803(b)(5)
concerning DUI violations while a minor is an occupant in the vehicle).
Appellant next alternatively contends that sentences imposed by the
trial court in other post-Musau cases, employing a contrary and broader
interpretation of Musau, requires the same application of Musau to his
case. Counsel’s No-Merit Letter/Brief at 21. The PCRA court states
Appellant’s issue as follows.
[Appellant’s] secondary argument is that because in
some post-Musau non[-]general impairment DUI
cases we imposed six[-]month maximum sentences,
notions of fundamental fairness and the doctrine of
stare decisis entitle him to the benefit of a six[-
]month sentence. There is no merit to this fall-back
argument.
PCRA Court Opinion, 7/8/14, at 6.
We agree with Counsel that this argument is an “appeal to the
discretionary aspect of sentence” and no relief is available under the PCRA.
Counsel’s No-Merit Letter/Brief at 22-23. “Challenges to the discretionary
aspects of sentencing are not cognizable under the PCRA.” Commonwealth
v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007) (citations omitted), appeal
denied, 944 A.2d 756 (Pa. 2008).
Additionally the PCRA court, acknowledging the other sentences, which
Counsel presented at the PCRA hearing, noted as follows.
Further, we do not believe the fact that other
defendants in subsequent cases received sentences
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with shorter maximums than [Appellant] creates
“precedent,” binding or otherwise, that entitles
[Appellant] to a six[-]month maximum under any
theory he may advance.
…
However, stare decisis is not an avenue by which a
court is bound to follow past determinations blindly
where adherence of the rule perpetuates error.
Stilp. v. Com[monwealth], 905 A.2d 918, 967 (Pa.
2006). While the shorter sentences to which
[Appellant] refers were neither illegal nor erroneous,
the maximums were artificially constrained by an
initial confusion regarding, or possibly a
misinterpretation of, the holding in Musau. We will
not apply principles of stare decisis to perpetrate a
misinterpretation of or confusion regarding binding
appellate precedent and an unambiguous statutory
provision.
PCRA Court Opinion, 7/8/14, at 7, 8.
Based on the foregoing, we conclude that the sentence imposed on
Appellant was a legal sentence and the holding of the Musau Court did not
apply to Appellant’s case. We further conclude that any previous
misinterpretation of Musau by the trial court does not provide precedent
affecting the legality of Appellant’s sentence. Accordingly, we discern no
error or abuse of discretion by the PCRA court in dismissing Appellant’s
amended PCRA petition.
Ascertaining no error, we affirm the PCRA court’s June 30, 2014 order
dismissing Appellant’s amended PCRA petition. Additionally, we grant
Counsel’s motion to withdraw from further representation of Appellant in this
matter.
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Order affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2015
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