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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ALEXIS CACERES
Appellee No. 1919 MDA 2014
Appeal from the Judgment of Sentence October 30, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000138-2014
BEFORE: BOWES, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED JUNE 23, 2015
The Commonwealth appeals the judgment of sentence imposed
October 30, 2014, on Alexis Caceres by the York County Court of Common
Pleas. Caceres was sentenced to an aggregate term of six months’
intermediate punishment, followed by one year of probation, after two
separate juries found Caceres guilty of driving under the influence of alcohol
(“DUI”) and possession of drug paraphernalia.1 On appeal, the
Commonwealth argues the trial court erred when, relying on
Commonwealth v. Musau, 69 A.3d 754 (Pa. 2013), appeal denied, ___
A.3d ___, 510 EAL 2013 (Pa. June 10, 2015), it determined the statutory
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1
75 Pa.C.S. § 3802(a)(1) and 35 P.S. § 780-113(a)(32), respectively. The
trial court also found Caceres guilty of possession of a small amount of
marijuana. 35 P.S. § 780-113(a)(31).
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maximum sentence it could impose on Caceres’s conviction was only six
months. Because we find this issue is controlled by Musau, supra, we
affirm.
On October 30, 2013, at approximately 2:10 a.m., Caceres was
speeding and driving his vehicle in an erratic manner on Route 30 in Helam
Township, when he was stopped by police. Because the officers noticed a
smell of alcohol emanating from his vehicle and some green leafy matter on
his shirt, they directed Caceres to perform two field sobriety tests, which
indicated he was under the influence of alcohol. Caceres subsequently
refused chemical testing, and was arrested for DUI. The officers later
obtained a search warrant for Caceres’s vehicle, and recovered a half-
smoked marijuana cigarette and two glass smoking devices.
Caceres was arrested and charged with DUI, possession of drug
paraphernalia, possession of a small amount of marijuana, and exceeding
the speed limit.2 His case proceeded to a jury trial. On July 10, 2014, the
jury returned a verdict of guilty on the charge of possession of drug
paraphernalia, but was unable a reach a verdict on the charge of DUI. The
court declared a mistrial. Thereafter, the Commonwealth proceeded to retry
Caceres on the DUI charge.3 On July 30, 2014, a second jury returned a
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2
75 Pa.C.S. § 3362(a)(2).
3
Prior to the second trial, the court granted the Commonwealth’s motion to
amend the information to include charges of DUI under Section 3802(d)(2)
(Footnote Continued Next Page)
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verdict of guilty on the charge of DUI (incapable of safe driving), and
specifically found Caceres refused to submit to chemical testing.
On October 30, 2014, Caceres was sentenced, on the DUI offense, to a
term of six months’ intermediate punishment, with 90 days of house arrest
followed by 45 days of work release, and a $1,500 fine. 4 The trial court also
imposed a consecutive term of one-year probation for the charge of
possession of paraphernalia, and a concurrent term of 30 days’ probation for
the charge of possession of a small amount of marijuana. This timely
Commonwealth appeal followed.5
The Commonwealth frames its sole issue on appeal as follows:
Whether the sentencing court erred when it held that six months
for [Caceres’s] driving under the influence (refusal) (2nd offense)
conviction was the statutory maximum allowable sentence it
could consider[?]
Commonwealth’s Brief at 4.
_______________________
(Footnote Continued)
(under the influence of controlled substance) and 3802(d)(3) (under the
influence of combination of drugs and alcohol). At the second trial, however,
the jury returned a verdict of not guilty on both subsections (d)(2) and
(d)(3).
4
The DUI conviction was Caceres’s second DUI conviction in the last 10
years.
5
On November 18, 2014, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P
1925(b). The Commonwealth complied with the court’s directive and filed a
concise statement on November 20, 2014.
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The issue raised, herein, has been the subject of numerous appeals
filed by the Office of the District Attorney in York County.6 It involves the
interplay between Subsections 3803(a) and (b) of the Vehicle Code. See 75
Pa.C.S. § 3803.
At the time Caceres committed the DUI offense, 75 Pa.C.S. § 3803
provided, in relevant part:
(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).
****
(b) Other offenses.—
****
(4) An individual who violates section 3802(a)(1) where
the individual refused testing of blood or breath, or who
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6
See, e.g., Commonwealth v. Landes, 319 MDA 2014 (Pa. Super. May
20, 2015) (unpublished memorandum); Commonwealth v. Horan, 152
MDA 2014 (Pa. Super. May 11, 2015) (unpublished memorandum);
Commonwealth v. Brown, 841 MDA 2014 (Pa. Super. May 7, 2015)
(unpublished memorandum); Commonwealth v. Ettinger, 1165 MDA 2014
(Pa. Super. April 13, 2015) (unpublished memorandum); Commonwealth
v. Stewart, 840 MDA 2014 (Pa. Super. April 7, 2015) (unpublished
memorandum); Commonwealth v. Weipert, 1380 MDA 2014 (Pa. Super.
March 20, 2015) (unpublished memorandum).
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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(a)(1), (b)(4) (emphasis supplied). Although Caceres’s
prior DUI conviction, coupled with his refusal to submit to blood alcohol
testing, resulted in the grading of his offense as a first degree misdemeanor,
subject to a five year statutory maximum sentence7 under subsection (b),
the trial court, relying on Musau, found that “[t]he maximum sentence for a
Tier III refusal, second offense, is six months and not five years.” Trial
Court Opinion, 11/25/2014, at 3. See Musau, supra, 69 A.3d at 757-758
(holding the Legislature’s use of the word “notwithstanding” indicates that
subsection (a) controls for sentencing purposes; “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.”).
The Commonwealth contends, as it did in numerous other appeals,
that Musau was wrongly decided. However, it is well-established that “[i]t
is beyond the power of a Superior Court panel to overrule a prior decision of
the Superior Court,” and “we are obligated to follow the law as articulated by
the previous panel.” Commonwealth v. Pepe, 897 A.2d 463, 465, 466
(Pa. Super. 2006), appeal denied, 946 A.2d 686 (Pa. 2008), cert. denied,
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7
See 18 Pa.C.S. § 1104(1).
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555 U.S. 881 (2008). Although we are cognizant of the fact that this issue
is pending before this Court en banc,8 currently, the state of the law is
controlled by Musau.9
Furthermore, we reject the Commonwealth’s contention that the
Legislature’s subsequent amendment of 75 Pa.C.S. § 3803(a) has any
bearing on our decision. In October of 2014, the Legislature amended
Subsection 3803(a) to read “[e]xcept as provided in subsection (b)[,]”
rather than “[n]otwithstanding the provisions of subsection (b)[.]” Act
No. 2014-189 (effective immediately, 10/27/2014) (emphasis supplied).
The Commonwealth argues the purpose of the amendment was “to correct
the Musau Court’s error.” Commonwealth’s Brief at 11.
However, even if this is true, the Commonwealth fails to acknowledge
the application of the amended statute would result in a potentially more
severe punishment for Caceres, and would, therefore, violate the ex post
facto provision of the Pennsylvania Constitution. See Com. v. Rose, 81
A.3d 123, 129 (Pa. Super. 2013) (“[W]hen performing an ex post facto
analysis a court ‘is concerned solely with whether a statute assigns more
disadvantageous criminal or penal consequences to an act than did the law
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8
See Commonwealth v. Grow, 2017 MDA 2013, Order, 9/15/2014.
9
We note that although the Pennsylvania Supreme Court initially granted
allowance of appeal on this issue in Commonwealth v. Mendez, 71 A.3d
250 (Pa. 2013), it recently dismissed that appeal as improvidently granted.
See Commonwealth v. Mendez, 111 A.3d 1187 (Pa. March 30, 2015).
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in place when the act occurred.’”) (emphasis in original), appeal granted, 95
A.3d 274 (Pa. 2014). Accordingly, we must apply the statute as it was
written at the time Caceres committed the offense.
Accordingly, because we agree with the determination of the trial court
that the issue on appeal is controlled by this Court’s decision in Musau,10 we
conclude the Commonwealth is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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10
See Trial Court Opinion, 11/25/2014, at 3.
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Com. v. Caceres, A.
Combined Opinion