J-S40026-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                    Appellee             :
                                         :
           v.                            :
                                         :
ANTHONY TETUAN,                          :
                                         :
                    Appellant            : No. 1983 WDA 2014

        Appeal from the Judgment of Sentence November 13, 2014,
                   Court of Common Pleas, Erie County,
            Criminal Division at No. CP-25-CR-0000163-2014

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED JULY 15, 2015

     Appellant, Anthony Tetuan (“Tetuan”), appeals from the judgment of

sentence entered on November 13, 2014 in the Court of Common Pleas, Erie

County. After our review of the record, we vacate the sentence and remand

for resentencing.

     A brief summary of the facts and relevant history is as follows.     On

November 21, 2013, Tetuan, who was nineteen years old, was driving a

vehicle with a suspended license based on a conviction of driving under the

influence (“DUI”). On that night, Tetuan was again under the influence of

alcohol and wrecked the vehicle by driving it into a utility pole.    Tetuan

refused to provide police with a breath or blood sample for chemical testing.

As a result of the accident, Tetuan was charged with DUI, 75 Pa.C.S.A.

§ 3802(a)(1), driving while operating privilege is suspended or revoked,




*Retired Senior Judge assigned to the Superior Court.
J-S40026-15


75 Pa.C.S.A. § 1543(b)(1.1)(i), and purchase, consumption, possession or

transportation of liquor or malt or brewed beverages, 18 Pa.C.S.A.

§ 6308(a).

      On September 30, 2014, Tetuan pled guilty to the DUI charge

(hereinafter,   “Count   One”)   and    driving   with   a   suspended   license

(hereinafter, “Count Two”).      As part of the plea bargain, Tetuan also

admitted that this was his second DUI conviction within the last ten years.

The trial court nolle prossed the charge of purchase, consumption,

possession or transportation of liquor or malt or brewed beverages.

      On November 13, 2014, Tetuan appeared for a sentencing hearing.

The trial court began by sentencing Tetuan on Count Two to the mandatory

minimum of sixty days incarceration, with the allowance of admission to the

work release program if he qualified during that period of incarceration, as

well as the costs of prosecution, a mandatory minimum $500 fine, $10 EMSA

fine, and $50 to the CAT MCARE fund.         As this was Tetuan’s second DUI

offense, the trial court sentenced Tetuan on Count One to an intermediate

punishment sentence of thirty months under supervision that would begin

with three months of home electronic monitoring, followed by three months

of intensive supervision. In addition, the trial court mandated 250 hours of

community service, a requirement to attend at least three AA meetings a

week, undergo outpatient alcohol counseling, and undergo a mental health




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evaluation and any other testing, treatment, counseling or program the

probation office deemed appropriate.

        Tetuan filed a motion for reconsideration of sentence on November 21,

2014.     On December 3, 2014, the trial court denied Tetuan’s motion for

reconsideration.       Tetuan thereafter filed a timely notice of appeal on

December 4, 2014. On appeal, Tetuan presents one issue for our review:

             [Did] [t]he lower court commit reversible error in
             failing to apply the Pennsylvania Superior Court’s
             ruling in Commonwealth v. Musau, 69 A.3d 745
             (Pa. Super. 2013) which limits the maximum penalty
             for [C]ount [One] to six months when [Tetuan]
             entered a plea while Musau was in place but was
             sentenced after the legislative “fix” was enacted?

Tetuan’s Brief at 3.

        In this case, Tetuan was charged with DUI under section 3802(a)(1) of

the Motor Vehicle Code which provides:

             (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.

75 Pa.C.S.A. § 3802(a)(1).

        At the time Tetuan committed his second DUI offense on November

21, 2013, the DUI gradation statute under section 3803 of the Motor Vehicle

Code provided, in relevant part:



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           (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.

75 Pa.C.S.A. § 3803(a)(1), (b)(4) (rescinded October 26, 2014).

     On appeal, Tetuan argues that the trial court imposed a sentence that

“did not comport with the current status of the law.”   Tetuan’s Brief at 4.

Tetuan specifically asserts that at the time he entered his guilty plea, the

maximum penalty he could receive was six months of incarceration.

Tetuan’s Brief at 4.   In support of his assertion, Tetuan relies upon this

Court’s decision in Commonwealth v. Musau, 69 A.3d 754 (Pa. Super.

2013).

     Similar to the facts in the case presently before this Court, the

appellant in Musau was found by police in the driver’s seat of a running

vehicle, smelled of alcohol, had bloodshot eyes, and could barely stand. Id.




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at 755. The police took him to its headquarters where the appellant refused

to submit to chemical testing. Id. The trial court convicted him of driving

under the influence and “graded the appellant’s offense as a first degree

misdemeanor pursuant to 75 Pa.C.S.[A]. § 3803(b)(4)” since the appellant

refused to submit to chemical testing and had a prior DUI conviction. Id. at

755-56.   As a result, the trial court sentenced appellant to ninety days to

five years of imprisonment, in accordance with the statutory maximum for

first-degree misdemeanors pursuant to 18 Pa.C.S.A. § 106(b)(6). Id.

     On appeal, the appellant in Musau challenged the legality of his

sentence, contending that six months of incarceration was the maximum

permissible sentence pursuant to 75 Pa.C.S.A. § 3803(a)(1).      The Musau

Court determined that the phrase “notwithstanding the provisions of

subsection (b)” in section 3803(a) meant “regardless of” the provisions of

subsection (b). Thus, the Musau Court concluded that the plain language of

the statute provides that “regardless of the fact that 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 second DUI conviction is

six months’ imprisonment.” Id. at 758. As a result, the Musau Court held

that the appellant’s sentence of ninety days to five years’ incarceration was

illegal and vacated the appellant’s judgment of sentence and remanded the

case for resentencing. Id.




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        On October 14, 2014, following the Musau Court’s holding, the

Pennsylvania     Legislature   passed   Senate   Bill   1239    which   amended

75 Pa.C.S.A. § 3803(a) by deleting the phrase “Notwithstanding the

provisions of subsection (b)” and replacing it with “Except as provided in

subsection (b).”     The amended version became effective on October 27,

2014.     The trial court now asserts in its 1925(a) opinion that Tetuan’s

sentence is appropriate because the Legislature “removed the portion of the

law which Musau [] declared contained a loophole making the most serious

2nd offense DUI punishable as a first offense in terms of penalty.” Trial Court

Opinion, 1/6/15, at 1.     The trial court further asserts that “at [Tetuan’s]

sentencing he was aware of the change and made no effort to withdraw his

plea based on what he had been told at the time of his plea and what he

now knew as to the possible max sentence.        This was [Tetuan’s] remedy,

not to be given a sentence that was no longer valid under the law.” Trial

Court Opinion, 1/6/15, at 1.

        The trial court failed to take into account that Tetuan committed his

crime on November 13, 2013, and pled guilty on September 30, 2014,

before the amended section 3803(a) became effective.           Thus, Tetuan pled

guilty to a crime that subjected him to a maximum sentence of six months’

imprisonment.      Indeed, prior to Tetuan entering his guilty plea, the trial

court properly conducted a guilty plea colloquy, a part of which requires the

trial court to advise the defendant of the sentencing range that could be



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imposed,1 and advised Tetuan that the maximum sentence he could receive

on Count One was six months of incarceration.            N.T., 9/30/14, at 4.

Although the Legislature amended section 3803(a), Musau remains binding

precedent, as it has not been overturned by an en banc panel of this Court

or by our Supreme Court.2      See Commonwealth v. Beck, 78 A.3d 656,

659 (Pa. Super. 2013) (“This panel is not empowered to overrule another

panel of the Superior Court.”); see also Marks v. Nationwide Ins. Co.,

762 A.2d 1098, 1101 (Pa. Super. 2000) (“we have long held that as long as

the decision has not been overturned by our Supreme Court, a decision by

our Court remains binding precedent.”).      Accordingly, as the facts of this

case are indistinguishable from the facts of Musau, we must conclude that

the maximum sentence the trial court could impose under the facts of this

case is six months of incarceration.       Tetuan’s intermediate punishment

sentence of thirty months exceeds the maximum sentence and therefore is

illegal and must be vacated. See Commonwealth v. Boyd, 73 A.3d 1269,



1
   “A valid plea colloquy must delve into six areas: 1) the nature of the
charges, 2) the factual basis for the plea, 3) the right to a jury trial, 4) the
presumption of innocence, 5) the sentencing ranges, and 6) the plea
court’s power to deviate from any recommended sentence.”                    See
Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005)
(emphasis added); Pa.R.Crim.P. 590(A)(2), cmt.

2
  We note that our Supreme Court granted review of        this precise issue in
Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013).           The Supreme Court,
however, recently dismissed the appeal as having          been improvidently
granted. 2015 WL 1421402 (Pa. March 30, 2015).            Accordingly, Musau
remains binding precedent.


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1271 (Pa. Super. 2013) (“[t]he classic claim of an illegal sentence is where

the sentence exceeded the statutory maximum for the offense(s). A court is

simply unauthorized to impose such a sentence.”) (quoting Commonwealth

v. Foster, 17 A.3d 332, 349 (Pa. 2011)).

     Judgment     of   sentence   vacated   and   remanded   for   proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/15/2015




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