J-S33042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KRISTINE DIMAGGIO

                            Appellant                  No. 31 EDA 2014


      Appeal from the Judgment of Sentence entered December 6, 2013
           In the Court of Common Pleas of Montgomery County
              Criminal Division at No: CP-46-CR-0006896-2013


BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 25, 2014

       Kristine DiMaggio appeals from the judgment of sentence entered

December 6, 2013, for her conviction of driving under the influence of a drug

or combination of drugs.        Appellant      -appointed counsel has filed an

Anders/Santiago1 brief and petitioned for leave to withdraw as counsel.

We affirm and grant the petition to withdraw.

       Appellant was arrested on suspicion of DUI after her vehicle was

involved in an accident near the King of Prussia Mall in Upper Merion

Township, Montgomery County. After a stipulated bench trial, the trial court

found Appellant guilty of DUI under 75 Pa.C.S.A. § 3802(d)(2) (drug or

____________________________________________


1
  Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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combination of drugs).         Appellant conceded that she operated a motor

vehicle while under the influence of drugs containing benzodiazepine and

amphetamine, and that the drugs rendered her incapable of safely driving.

She also stipulated that the current DUI was her second in the past ten

years. See id. § 3806. The trial court sentenced Appellant to 90 days to 5

years to be served in the county prison,2 and later denied her post-sentence

motion.    Appellant appealed to this Court, after which her counsel sought

leave to withdraw and filed an Anders/Santiago brief.

       Counsel raises one issue for our review:

       Is the five (5) year maximum sentence imposed with respect to

       Pa.C.S. §
       [Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013)]?

Anders/Santiago Brief at 4.



under Anders/Santiago, counsel must (1) petition this Court for leave to

withdraw after certifying that a thorough review of the record indicates the

appeal is frivolous; (2) file a brief referring to anything in the record that

might arguably support the appeal; and (3) give the appellant a copy of the

brief and advise the appellant of the right to obtain new counsel or file a pro

se brief to raise any additional points for review.      Commonwealth v.
____________________________________________


2
  Although it was entered on the docket, the written order imposing the
judgment of sentence is not in the certified record. Counsel has provided a
photocopy of the order. See Anders/Santiago Brief at 2.



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Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).                Additionally, the

Anders/Santiago brief must:

        (1) provide a summary of the procedural history and facts, with
        citations to the record;

        (2) refer to anything in the record that counsel believes arguably
        supports the appeal;

                                                                         ;
        and


        frivolous. Counsel should articulate the relevant facts of record,
        controlling case law, and/or statutes on point that have led to
        the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

        We find that counsel has met the procedural and substantive

requirements of Anders and Santiago. Counsel has petitioned for leave to

withdraw, filed a brief that refers us to anything that might support the

appeal, and informed Appellant of her right to hire a new lawyer or file a pro

se response.3

of Santiago listed above.

        We now conduct an independent review of the sole issue raised: a

                                               sentence.4 See Commonwealth v.

____________________________________________


3
    Appellant has not filed a response.
4
  The legality of a sentence is a question of law. Accordingly, our standard
of review is de novo, and our scope of review is plenary. Commonwealth
v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013).




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Washington, 63 A.3d 797, 800 (Pa. Super. 2013) (citing Santiago, 978

                                                             review of the

proceedings and make an independent judgment to decide whether the

appeal is, in fact, who

      Appellant argues that her sentence is illegal based on our decision in

Musau. In Musau, the defendant was convicted of a second-offense DUI

where he refused to submit to blood alcohol testing.    Musau, 69 A.3d at

755-56. He appealed, claiming that his sentence of 90 days to 5 years in

prison was illegal. Id.

      Construing the relevant statute, we agreed. Regarding the grading of

the various DUI offenses, the Vehicle Code provides:

      (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.

Id. at 757 (quoting 75 Pa.C.S.A. § 3803) (emphasis added).           We held,




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refusal to submit to blood alcohol testing results in the grading of the

offense as a first degree misdemeanor, the maximum sentence for a first or

                                                              Id. at 757-58.5

       Musau is distinguishable.               Section 3803(a)(1), which limits the

maximum sentence for DUI to six months notwithstanding § 3803(b) applies

only to individuals convicted of DUI under § 3802(a). That section prohibits:

       (a) General impairment.--

          (1) An individual may not drive, operate or be in actual
          physical control of the movement of a vehicle after
          imbibing a sufficient amount of alcohol such that the
          individual is rendered incapable of safely driving, operating
          or being in actual physical control of the movement of the
          vehicle.

          (2) An individual may not drive, operate or be in actual
          physical control of the movement of a vehicle after
          imbibing a sufficient amount of alcohol such that the

          at least 0.08% but less than 0.10% within two hours after
          the individual has driven, operated or been in actual
          physical control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(a) (emphasis added).                  Here, Appellant was not

convicted of DUI of a sufficient amount of alcohol (1) that rendered her

incapable of safely driving or (2) such that her blood alcohol content was

____________________________________________


5
 The Commonwealth filed a petition for allowance of appeal, at No. 510 EAL
2013, which the Supreme Court had held pending a decision in
Commonwealth v. Mendez, No. 32 EAP 2013. We also note that a bill is
pending before the General Assembly which would abrogate Musau by
changing the language in §




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between .08% and .10% within two hours of driving.             Rather, she was

convicted of DUI of a drug or combination of drugs:

     (d) Controlled substances.--An individual may not drive,
     operate or be in actual physical control of the movement of a
     vehicle under any of the following circumstances:

                                     ***

        (2) The individual is under the influence of a drug or
        combination of drugs to a degree which impairs the
                                                         actual
        physical control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(d). DUI under § 3802(d) is a first-degree misdemeanor

if, like here, it is a second offense.     Id. § 3083(b)(4).     The maximum

sentence for a first-degree misdemeanor is five years, the sentence that

Appellant received. 18 Pa.C.S.A. § 1104(1).

     Because Musau is inapplicable, the maximum sentence that Appellant

could have received is five years   not six months. Her sentence is therefore

legal, and we agree with counsel that Appellant

her sentence has no basis in law.

     Having conducted an independent review, we determine that this

appeal is wholly frivolous.   In addition, counsel has met the procedural

requirements to withdraw as counsel.       Hence, we affirm the judgment of



     Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2014




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