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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES TYLER WAINWRIGHT,
Appellee No. 373 MDA 2015
Appeal from the Judgment of Sentence January 26, 2015
in the Court of Common Pleas of York County
Criminal Division at No.: CP-67-CR-0001502-2013
BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 10, 2015
The Commonwealth of Pennsylvania appeals from the judgment of
sentence imposed following Appellee, James Tyler Wainwright’s, entry of a
nolo contendere plea to driving under the influence of alcohol or a controlled
substance (DUI) and accidents involving damage to unattended vehicle or
property.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On January 28, 2013, Appellee was arrested after he was involved in a hit
and run motor vehicle accident, exhibited signs of intoxication, and refused
to submit to chemical testing of his blood alcohol content (BAC). On January
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*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(a)(1) and 3745(a), respectively.
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26, 2015, he entered a negotiated nolo contendere plea and was sentenced.
The trial court graded the DUI offense as a first-degree misdemeanor
because Appellee refused chemical testing and had a prior DUI conviction.
See 75 Pa.C.S.A. § 3803(b)(4). The Commonwealth agreed to a minimum
sentence of incarceration of 180 days’ time served on the DUI, but did not
agree on the maximum sentence. However, it acknowledged “[t]his is a
[Commonwealth v.] Musau[, 69 A.3d 754 (Pa. Super. 2013), appeal
denied, 117 A.3d 296 (Pa. 2015)]2 case so . . . we understand the [c]ourt
needs to impose a 6-month tail according to the current case law.” (N.T.
Plea Hearing, 1/26/15, at 2).3 The trial court imposed a sentence of
incarceration of not less than time served nor more than six months. The
Commonwealth timely appealed.
On February 27, 2015, the trial court ordered the Commonwealth to
file a concise statement of errors complained of on appeal. See Pa.R.A.P.
1925(b). On March 11, 2015, the Commonwealth filed a timely Rule
1925(b) statement, in which it challenged the court’s determination that six
months’ incarceration for the DUI conviction was the maximum allowable
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2
The Musau Court held that the maximum sentence allowable for a second
DUI conviction is six months’ imprisonment, even where defendant refuses
chemical testing and the offense is graded as a first-degree misdemeanor.
See Musau, supra at 755-56, 758.
3
“Ordinarily, the statutory maximum sentence for a first-degree
misdemeanor is five years’ incarceration.” Grow, infra, at *2 (citations
omitted).
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sentence. (See Rule 1925(b) Statement, 3/11/15, at unnumbered page 1).
The trial court entered an opinion on March 30, 2015, in which it stated that
this Court ruled directly on this issue in Musau, supra, and that it followed
binding precedent in imposing the maximum sentence. See Pa.R.A.P.
1925(a); (see also Trial Court Opinion, 3/30/15, at 2).
The Commonwealth presents one question for our review:
I. Whether the sentencing court erred when it held that six
months for [Appellee’s] driving under the influence (refusal)
(2nd offense) conviction was the statutory maximum allowable
sentence it could consider[?]
(Commonwealth’s Brief, at 4) (unnecessary capitalization omitted).
At the outset we note a defendant or the Commonwealth
may appeal as of right the legality of the sentence. In addition:
. . . 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. McKibben, 977 A.2d 1188, 1191 (Pa. Super. 2009)
(quotation marks and citations omitted).
On appeal, the Commonwealth challenges the Musau Court’s
interpretation of section 3803 of the Vehicle Code as providing a six-month
maximum sentence for a second DUI offense with refusal to submit to
chemical testing. (See Commonwealth’s Brief at 8-25); see also Musau,
supra at 758. It maintains that Musau was incorrectly decided and creates
absurd results, and that the trial court erred in relying on its holding. (See
Commonwealth’s Brief, at 8, 13, 20). This issue does not merit relief.
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At the time of Appellee’s offense, section 3803 of the Vehicle Code
provided in relevant part as follows:4
(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 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(a)(1), (b)(4) (amended 2014).
In Commonwealth v. Grow, --- A.3d ----, 2015 WL 5174245 (Pa.
Super. Sept. 4, 2015), an en banc panel of this Court recently considered
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4
On October 27, 2014, the legislature amended section 3803(a) to replace
“Notwithstanding the provisions of section (b)” with “Except as provided in
subsection (b).” 75 Pa.C.S.A. § 3803(a).
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and rejected a Commonwealth challenge to the three-judge panel5 decision
in Musau. See Grow, supra at *1.6 The Grow Court held:
Ordinarily, the statutory maximum sentence for a first-
degree misdemeanor is five years’ incarceration. See 18 Pa.C.S.
§ 1104(1); see also 18 Pa.C.S. § 106(b)(6). However, the
Musau Court determined six months’ imprisonment to be the
maximum sentence for second-offense DUI with refusal to
submit to chemical testing, despite the grading of the offense as
a first-degree misdemeanor. In so deciding, the Court relied
upon the initial language in section 3803 of “[n]otwithstanding
the provisions of subsection (b).” 75 Pa.C.S. § 3803(a)
(amended 2014). The Court construed this prefatory language
with the other provisions of section 3803, determining that
although section 3803(b)(4) specifies the grading of the crime as
a first-degree misdemeanor, the maximum penalty is the six-
month sentence provided in section 3803(a)(1). Musau, supra,
at 758.
The definition of “notwithstanding” was critical to the
Court’s decision in Musau. The Court discussed the ordinary
meaning of the word as “in spite of” or “although” and noted that
our Supreme Court has defined it as “regardless of.” Id. at 757
(citing City of Philadelphia v. Clement & Muller, Inc., . . .
715 A.3d 397, 399 ([Pa.] 1998) . . . . These synonymous
definitions demonstrate that the word has an accepted meaning
that is clear on its face. Thus, we agree with Grow’s argument
in the instant matter and with the holding of the Musau Court
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.” Musau, supra, at 758.
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5
“It is well-settled that this Court, sitting en banc, may overrule the decision
of a three-judge panel of this Court.” Commonwealth v. Morris, 958 A.2d
569, 580 n.2 (Pa. Super. 2008) (en banc), appeal denied, 991 A.2d 311 (Pa.
2010) (citation omitted).
6
Grow also involved a York County appeal.
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* * *
For the foregoing reasons, we find that the trial court did
not err in following our holding in Musau and sentencing Grow
to a maximum sentence of six months’ incarceration.
Id. at *2, *5 (emphasis omitted).
Thus, in the instant case, based on the foregoing binding authority, we
conclude that the trial court did not err in determining that six months’
incarceration for Appellee’s DUI conviction was the maximum allowable
sentence. See id.; see also McKibben, supra at 1191. Accordingly, the
Commonwealth’s sole issue on appeal does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2015
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