J-A10010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

TIMOTHY TODD MARKLE

                            Appellee                No. 1583 MDA 2014


            Appeal from the Judgment of Sentence August 22, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007904-2013


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED SEPTEMBER 30, 2015

       Appellant, the Commonwealth of Pennsylvania, timely appeals from

the judgment of sentence entered in the York County Court of Common

Pleas, following the guilty plea of Appellee, Timothy Todd Markle, on July 17,

2014, to driving under the influence (DUI), second offense, with refusal to

submit to chemical testing of blood alcohol content. 1 The court sentenced

Appellee on August 22, 2014, to six (6) months’ intermediate punishment. 2

____________________________________________


1
  75 Pa.C.S.A. §§ 3802(a)(1), 3803(b)(4). Under Section 3803(b)(4), the
offense is graded as a first-degree misdemeanor, effective July 9, 2012. The
statute was subsequently amended and made effective on October 27, 2014,
after Appellee’s sentencing.
2
  Appellant’s sentence also included a consecutive twelve (12) month term of
probation for his nolo contendere plea to terroristic threats, which is not
relevant to this appeal.
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The Commonwealth argues the maximum sentence available under the

former statute is five years’ incarceration, citing Commonwealth v. Barr,

79 A.3d 668 (Pa.Super. 2013). The Commonwealth contends the trial court

erred when it concluded the maximum allowable sentence for Appellee’s

second   DUI   offense   was   six   months’   incarceration,   pursuant   to

Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013), appeal denied,

___ Pa. ___, 117 A.3d 296 (2015).

     To resolve this exact question, our Court en banc recently decided

Commonwealth v. Grow, ___ A.3d ___, 2015 PA Super 186 (filed

September 4, 2015), holding that: (1) our Supreme Court has defined the

legislative use of the word “notwithstanding” as “regardless of,” which is

synonymous with the ordinary meaning of the word as “in spite of” or

“although”; (2) the plain language of the statute makes the provisions of

former Section 3803(b)(4) subordinate to the provisions of former Section

3803(a)(1); (3) the use of the section titles “Basic offenses” and “Other

offenses” for former Sections 3803(a) and (b), respectively, does not create

a clean break between the sections such that “notwithstanding” applies to

“basic offenses” only; (4) former Section 3803 in its entirety is a specific

provision that trumps the general sentencing provisions governing first-

degree misdemeanors; (5) the sentencing and grading of an offense can

follow separate schemes without leading to an absurd result because the

grading of the offense affects more than just the length of sentence; (6) any


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conflict between former Sections 3803(b)(4) and (a)(2) (relating to

defendants with two or more prior DUI convictions) is immaterial to the

issue before the Court; (7) the Barr case involved a jury instruction, and the

statement about increased penalties was made in passing, was not critical to

the holding of the decision, and was deemed dictum; (8) the legislative and

administrative interpretations of former Section 3803 are irrelevant because

the wording of the statute is unambiguous; (9) even if the language of

former Section 3803 resulted in ambiguity, the defendant would be entitled

to the benefit of the doubt under the maxim that penal provisions should be

strictly construed in favor of the accused; (10) regardless of the grading of

the offense as a first-degree misdemeanor, the maximum sentence under

former Section 3803 for a second DUI conviction, with refusal to submit to

chemical testing, is six months’ imprisonment.     After rejecting all of the

Commonwealth’s arguments, this Court held that the trial court properly

followed Musau and sentenced Grow to a maximum sentence of six months’

incarceration. See id.

      Instantly, Grow controls the Commonwealth’s current challenge.

Grow explicitly states that Section 3803(b)(4) is subordinate to Section

3803(a)(1) under the plain language of the former version of the statute,

which disposes of the Commonwealth’s arguments premised on “legislative

intent.” Moreover, the legislature’s recent amendment of Section 3803 does

not govern the pre-amendment interpretation of the statute. Appellee was


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sentenced before the amendment took effect, so the prior version of the

statute applies to the instant case. See id. Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




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