J-S16035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DONALD L. ZIMMERMAN, JR.
Appellee No. 1584 MDA 2014
Appeal from the Judgment of Sentence August 28, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001813-2014
BEFORE: PANELLA, J., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 30, 2015
The Commonwealth appeals from the judgment of sentence imposed
on August 28, 2014, in the Court of Common Pleas of York County, following
Zimmerman’s guilty plea to driving under the influence of alcohol (DUI), 75
Pa.C.S. § 3802(a)(1). This was Zimmerman’s second offense and, because
he had refused to submit to chemical testing, pursuant to 75 Pa.C.S. §
3803(b)(4), the violation was graded as an ungraded misdemeanor with a
maximum sentence of six months’ incarceration. Accordingly, Zimmerman
was sentenced to six months’ intermediate punishment. In this timely
appeal, the Commonwealth claims the trial court misinterpreted the law by
failing to recognize the legislature amended the relevant statute. After a
thorough review of the submissions by the parties, relevant law, and the
certified record, we affirm.
J-S16035-15
The Commonwealth’s appeal is a challenge to the legality of the
sentence.
The scope and standard of review in determining the legality of a
sentence are well established. If no statutory authorization exists
for a particular sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated. In evaluating a
trial court's application of a statute, our standard of review is
plenary and is limited to determining whether the trial court
committed an error of law.
Commonwealth v. Jurczak, 86 A.3d 265, 267 (Pa. Super. 2014) (citation
omitted).
This matter involves 75 Pa.C.S § 3803, and this Court’s decision in
Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013).1 In
____________________________________________
1
The relevant portions of Section 3803, at the time of Zimmerman’s
sentencing were:
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
violates section 3802(c) or (d) and who has one or more
prior offenses commits a misdemeanor of the first degree.
(Footnote Continued Next Page)
-2-
J-S16035-15
Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), a three judge
panel of our Court interpreted Section 3803, specifically, the use of the
word “notwithstanding” and concluded that a second offense DUI with a
refusal to submit to chemical testing is an ungraded misdemeanor, not a
misdemeanor of the first degree. The Commonwealth has consistently
argued this interpretation improperly negates Section 3803(b)(4).
Nevertheless, at the time of Zimmerman’s sentencing, the Musau
interpretation of Section 3803 was binding upon the trial court.
An en banc panel of our Court addressed this identical issue in
Commonwealth v. Grow, ___ A.3d ___ (Pa. Super. 2015) (en banc)
(9/4/2015), 2015 PA Super 186, 2015 WL 5174245. Grow affirmed the
Musau interpretation of Section 3803. Accordingly, the Musau
interpretation has been confirmed.
In attempting to distinguish this matter from Musau, the
Commonwealth argues that the legislature has amended Section 3803 to
remove the contested phrase, “Notwithstanding the provisions of section
(b),” replacing it with “Except as provided in section (b).” The
Commonwealth claims this amendment, which was specifically in response
to the Musau decision, indicates the legislature never meant for the six-
month maximum sentence to apply in a second offense refusal case.
_______________________
(Footnote Continued)
75 Pa.C.S. § 3803(a), (b)(4).
-3-
J-S16035-15
However, this argument is unavailing. Zimmerman pled guilty and
was sentenced on August 28, 2014. Section 3803 was not amended until
October 27, 2014. The timing of the amendment relative to the guilty plea
was also addressed in Grow. The en banc panel noted:
As Grow pled guilty and was sentenced prior to the effective date
of the amendment to the statute, however, the amended version
does not apply to this matter. See Commonwealth v. Bowen,
55 A.3d 1254, 1270 n.8 (Pa. Super. 2012) (interpreting prior
statute after law amended since prior version applied to time
period during which defendant was convicted and sentenced).
Commonwealth v. Grow, supra, at n.3. Accordingly, the trial court could
not apply an amendment that did not exist, and we are required to apply the
law that was applicable at the time of sentencing.
In light of the above, the trial court properly interpreted and applied
the law as written at the time of Zimmerman’s sentencing and based on our
Court’s en banc decision in Grow, supra, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2015
-4-