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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                          :
                                          :
JOHN ROBERT HILTZ,                        :
                                          :
                    Appellee              :           No. 584 MDA 2014

      Appeal from the Judgment of Sentence entered on February 28, 2014
                 in the Court of Common Pleas of York County,
                Criminal Division, No. CP-67-CR-0006856-2013

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED SEPTEMBER 24, 2015

        The Commonwealth of Pennsylvania appeals from the judgment of

sentence entered following the open guilty plea of John Robert Hiltz (“Hiltz”)

to driving under the influence of alcohol (second offense) (“DUI”), with

refusal to submit to chemical testing.1 The Commonwealth disputes the trial

court’s reliance upon this Court’s decision in Commonwealth v. Musau, 69

A.3d 754 (Pa. Super. 2013), in which we interpreted 75 Pa.C.S.A. § 3803 as

providing a six-month maximum sentence for a second DUI offense with

refusal to submit to chemical testing. See Musau, 69 A.3d at 758.

        The Commonwealth claims that the trial court improperly relied upon

Musau, arguing that this Court’s most recent interpretation of section 3803

provides for a five-year statutory maximum sentence.           Brief for the



1
    75 Pa.C.S.A. § 3802(a)(1), (b)(4).
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Commonwealth at 9 (citing Commonwealth v. Barr, 79 A.3d 668, 674 (Pa.

Super. 2013)). The Commonwealth asserts that the grading of the offense

is governed by 75 Pa.C.S.A. § 3803, “and constitutes a Misdemeanor 1

graded offense with a sentencing mandatory minimum of 90 days, and a

statutory maximum sentence of five years.” Brief for the Commonwealth at

9.   Further, the Commonwealth contends that this Court’s subsequent

decision in Commonwealth v. Barr, 79 A.3d 668 (Pa. Super. 2013),

controls.2 Brief for the Commonwealth at 9-10.

      The Commonwealth’s argument implicates the legality of Hiltz’s

sentence and thus is appealable as of right.     Commonwealth v. Grow,

2015 PA Super 186, 2015 Pa. Super. LEXIS 510, at *3 (en banc). As such,

our standard of review is de novo, and our scope of review is plenary. Id.




2
  In Barr, a panel of this Court held that an appellant’s refusal to submit to
chemical testing

      increased the grade of Appellant’s second DUI conviction from an
      ungraded misdemeanor to a misdemeanor of the first degree.
      75 Pa.C.S.A. § 3803(b)(4). The jury’s “refusal” determination
      also increased Appellant’s statutory maximum penalty from six
      months’ imprisonment to five years’ imprisonment and increased
      Appellant’s mandatory minimum penalty from 30 days in jail to
      90 days in jail. 75 Pa.C.S.A. §§ 3803(b)(1) and 3804(c)(2); 18
      Pa.C.S.A. § 1104(1) (prescribing the statutory maximum for
      misdemeanors).

Barr, 79 A.3d at 674.



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      Our review of the record discloses that the trial court sentenced Hiltz

pursuant to 75 Pa.C.S.A. § 3803(a)(1), as in effect at the time of Hiltz’s

sentencing. At that time, section 3803 provided, in relevant part, 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.




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75 Pa.C.S.A. § 3803 (effective until October 27, 2014) (emphasis added).3

     On September 4, 2015, the Pennsylvania Superior Court, sitting en

banc, filed its decision in Grow to determine whether Barr or Musau

controls in sentencing a defendant who has one prior DUI and who has

refused chemical testing upon the second 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
     Section 1921(c).” Commonwealth v. Brown, 603 Pa. 31, 981
     A.2d 893, 898 (Pa. 2009) []….




3
  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 Hiltz was convicted
and sentenced prior to the amendment, the amended version is not
applicable in this appeal.



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Grow, slip opinion at 6-7 (footnotes omitted).4         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 Hiltz’s sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2015




4
  Nevertheless, the en banc Court in Grow considered and rejected the
Commonwealth’s arguments that this Court’s decision in Barr controls, see
Grow, slip opinion at 7-10 (concluding that the language in Barr, relied
upon by the Commonwealth, is dictum and not controlling); 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).


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