J-S46038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
BRADLEY L. YECKLEY, :
:
Appellee : No. 2149 MDA 2013
Appeal from the Judgment of Sentence entered on November 1, 2013
in the Court of Common Pleas of Centre County,
Criminal Division, No. CP-14-CR-0000230-2013
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
KENNETH LEE HAWKINS, :
:
Appellee : No. 2150 MDA 2013
Appeal from the Judgment of Sentence on November 1, 2013
in the Court of Common Pleas of Centre County,
Criminal Division, No. CP-14-CR-0000961-2013
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CARL ANTHONY POLLICK, :
:
Appellee : No. 2151 MDA 2013
J-S46038-14
Appeal from the Judgment of Sentence entered on November 7, 2013
in the Court of Common Pleas of Centre County,
Criminal Division, No. CP-14-CR-0000133-2013
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 25, 2015
The Commonwealth appeals from the judgments of sentence entered
against Bradley L. Yeckley (“Yeckley”), Kenneth Lee Hawkins (“Hawkins”),
and Carl Anthony Pollick (“Pollick”) (collectively, “the Defendants”). We
affirm.
Pollick was arrested for driving under the influence—general
impairment (“DUI”)1 and several summary offenses in November 2012.
Pollick refused to submit to chemical testing. In 2013, a criminal
information charged Pollick with DUI refusal, which was graded as a
misdemeanor of the first degree, as it was his second DUI offense. Pollick
entered a guilty plea, and the trial court sentenced him to intermediate
punishment for a maximum of 5 years,2 including a period of 120 days in the
in-home detention program. Pollick subsequently filed a post-sentence
Motion challenging his maximum sentence of 5 years.
The trial court held a hearing on Pollick’s post-sentence Motion. The
1
75 Pa.C.S.A. § 3802(a)(1).
2
Generally, the maximum term for a misdemeanor of the first degree is 5
years. See 18 Pa.C.S.A. § 106(b)(6).
-2-
J-S46038-14
trial court granted Pollick’s Motion in October 2013, relying on this Court’s
interpretation of section 3803 of the Vehicle Code,3 in Commonwealth v.
Musau, 69 A.3d 754 (Pa. Super. 2013).4 The Commonwealth filed a Motion
for Reconsideration/Clarification because the trial court did not address the
interpretation of the relevant section of the Vehicle Code, section
3803(b)(4). The Commonwealth relied upon Commonwealth v. Mendez,
62 A.3d 456 (Pa. Super. 2012) (unpublished memorandum), in which this
Court held that “those cases where the defendant has one prior DUI
conviction and refuses chemical testing will be controlled by section
3
See 75 Pa.C.S.A. § 3803 (effective until October 27, 2014).
4
In Musau, this Court addressed the legality of a 5-year maximum
sentence for a defendant who was convicted of DUI under section
3802(a)(2), refused chemical testing for the offense in question, and had a
prior DUI. This Court held that a 5-year maximum sentence is illegal, and
that the maximum allowable sentence for a second DUI offense involving
refusal is six months in prison. Musau, 69 A.3d at 758. This Court’s
decision rested on the finding of a conflict between sections 3803(a)(1) and
3803(b)(4). Specifically, this Court applied the rules of statutory
construction to determine the meaning of “notwithstanding,” as used in
section 3803(a)(1). Id. This Court held that
the plain language of the statute, 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 the first or second DUI conviction is six months’
imprisonment.
Id. The Pennsylvania Supreme Court denied allowance of appeal.
Commonwealth v. Musau, 17 A.3d 296 (Pa. 2015).
-3-
J-S46038-14
3803(b)(4), the exception to the general provision.” 5 The trial court denied
the Motion for Reconsideration/Clarification without a hearing, and, in
November 2013, resentenced Pollick to a maximum sentence of six months
of intermediate punishment based upon Musau. The Commonwealth filed a
timely Notice of Appeal, as well as a court-ordered Pennsylvania Rule of
Appellate Procedure 1925(b) Concise Statement of Matters Complained of on
Appeal.
Following Yeckley’s arrest for DUI in December 2012, he refused to
submit to chemical testing at the hospital. In 2013, a criminal information
charged Yeckley with DUI refusal, which was graded as a misdemeanor of
the first degree because it was his second DUI offense. Yeckley entered a
guilty plea, after which the trial court sentenced him to intermediate
punishment for a maximum of 5 years, including a period of 120 days in the
in-home detention program. Yeckley subsequently filed a post-sentence
Motion challenging his maximum sentence.
After a hearing, the trial court granted Yeckley’s post-sentence Motion
in November 2013, relying on the Musau decision. The trial court
sentenced Yeckley to a maximum sentence of six months of intermediate
punishment. The Commonwealth subsequently filed a Notice of Appeal. The
5
The Pennsylvania Supreme Court initially granted allowance of appeal in
Mendez, but subsequently dismissed the appeal as improvidently granted.
See Commonwealth v. Mendez, 111 A.2d 1187 (Pa. 2015).
-4-
J-S46038-14
Commonwealth filed a timely court-ordered Pennsylvania Rule of Appellate
Procedure 1925(b) Concise Statement of Matters Complained of on Appeal.
Hawkins was arrested for DUI in March 2013, and he refused to submit
to chemical testing at the hospital. A criminal information charged Hawkins
with DUI refusal, which was graded as a misdemeanor of the first degree
because it was his second DUI offense. Hawkins entered a guilty plea. The
trial court sentenced Hawkins to intermediate punishment for a maximum
period of 5 years, including a period of 120 days in the in-home detention
program. Hawkins subsequently filed a post-sentence Motion challenging his
maximum sentence.
The trial court held a hearing in October 2013. After being informed of
the decision in the Pollick case, the trial court amended the judgment of
sentence to a maximum sentence of six months of intermediate punishment,
based upon the Musau decision. The Commonwealth subsequently filed a
Notice of Appeal and a court-ordered Pennsylvania Rule of Appellate
Procedure 1925(b) Concise Statement of Matters Complained of on Appeal.
In December 2013, the Commonwealth filed a Motion to Consolidate
the cases of the Defendants. As all three cases raise substantially the same
issues, this Court granted the Motion in January 2014.
On appeal, the Commonwealth raises the following questions for our
review:
I. Did the trial court err in finding that the [O]rder [entered in]
Musau[] was not final, and thus was not effective because the
-5-
J-S46038-14
appellate review of that order was not completed and the record
had not been remanded to the trial court?
II. Did the trial court err by not finding that the only
interpretation of 75 Pa.C.S.[A.] § 3803 consistent with the
canons of statutory construction, the plain meaning of the
statute, and the legislative intent becomes that [Defendants’]
maximum sentence of five years was a legal sentence for a
second offense, DUI refusal conviction?
Brief for the Commonwealth at 5 (renumbered for ease of disposition).
The Commonwealth’s claims challenge the legality of each of the
Defendants’ sentences. See Musau, 69 A.3d at 756. “Issues relating to the
legality of a sentence are questions of law, as are claims raising a court’s
interpretation of a statute. Our standard of review over such questions is de
novo and our scope of review is plenary.” Commonwealth v. Akbar, 91
A.3d 227, 238 (Pa. Super. 2014).
In its first claim, the Commonwealth asserts that Musau cannot have
precedential value in this case. Brief for the Commonwealth at 22-25. The
Commonwealth incorrectly claims that because the Musau decision was
appealed to the Pennsylvania Supreme Court, the holding is not applicable
until appellate review is completed. Id. at 23-25. This issue is moot, as the
Pennsylvania has since denied allowance of appeal.6 Musau, 17 A.3d 296
(Pa. 2015).
6
Even where our Supreme Court grants allowance of appeal, the prior
panel’s decision nevertheless remains binding. Commonwealth v. Pepe,
897 A.2d 463, 465 (Pa. Super. 2006).
-6-
J-S46038-14
In its second claim, the Commonwealth argues that Musau was
wrongly decided and that section 3803(b) of the Vehicle Code must be
construed as permitting a 5-year maximum sentence. Brief for the
Commonwealth at 17-22.
Our review of the certified records in each case discloses that the trial
court sentenced each of the Defendants pursuant to 75 Pa.C.S.A.
§ 3803(a)(1), as in effect at the time of the Defendants’ sentencing. At that
time, section 3803 provided as follows:
§ 3803. Grading
(a) Basic offenses. –
Notwithstanding the provisions of section (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
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 violates
section 3802(c) or (d) and who has one or more prior offenses
commits a misdemeanor of the first degree.
-7-
J-S46038-14
75 Pa.C.S.A. § 3803 (effective until October 27, 2014).7
On September 4, 2015, the Pennsylvania Superior Court, sitting en
banc, filed its decision in Commonwealth v. Grow, 2015 PA Super 186,
2015 Pa. Super. LEXIS 510 (en banc), to determine whether Musau, or a
conflicting decision in Commonwealth v. Barr, 79 A.3d 668 (Pa. Super.
2013),8 controls in sentencing a defendant who has refused chemical
testing, and has one prior DUI. In Grow, the en banc Court, agreeing with
this Court’s interpretation of section 3803 in Musau, held that “the plain
language of the statute, giving the words their ordinary meanings, indicates
[that] regardless of the … grading of the offense as a first-degree
misdemeanor, the maximum sentence for a first or second DUI conviction is
six months’ imprisonment.” Grow, slip opinion at 5-6 (quoting Musau, 69
A.3d at 758). Thus, the en banc panel concluded,
because the meaning of the statute in question is clear and free
from ambiguity, the Statutory Construction Act provides that
“the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” 1 Pa.C.S.[A.] § 1921(b). Moreover, we are
constrained to consider solely the plain meaning of section 3803,
since “only when the words of a statute are ambiguous should a
court seek to ascertain the intent of the General Assembly
through consideration of statutory construction factors found in
7
On October 27, 2014, the legislature amended section 3803(a) to replace
the phrase “Notwithstanding the provisions of section (b)” with “Except as
provided in subsection (b).” 75 Pa.C.S.A. § 3803(a). As the Defendants
were convicted and sentenced prior to the amendment, the amended version
is not applicable in this appeal.
8
In Barr, a panel of this Court stated in dictum that the defendant’s refusal
of chemical testing would increase the maximum penalty from six months to
five years. Barr, 79 A.3d at 674.
-8-
J-S46038-14
Section 1921(c).” Commonwealth v. Brown, 603 Pa. 31, 981
A.2d 893, 898 (Pa. 2009) (emphasis added)….
Grow, slip opinion at 6-7 (footnotes omitted).9 As this Court’s en banc
decision in Grow is binding precedent, we cannot grant the Commonwealth
relief on its challenge to the legality of the Defendants’ sentences.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2015
9
Nevertheless, the en banc Court considered and rejected the
Commonwealth’s statutory construction arguments. See id. at 8-9 (stating
that “grading and sentencing of the offense for a defendant in Grow’s
position is hardly absurd; the result merely diverges from the typical
scheme.”); 12 (stating that although section 1921(c) of the Statutory
Construction Act, 1 Pa.C.S.A. § 1921(c), permits legislative and
administrative interpretations to be considered when the wording of the
statute is ambiguous, the language of section 3803 is clear and free from
ambiguity).
-9-
Com. v. Yeckley, B.
Combined Opinion