J-S56041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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