J-S16035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

DONALD L. ZIMMERMAN, JR.

                         Appellee                 No. 1584 MDA 2014


          Appeal from the Judgment of Sentence August 28, 2014
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0001813-2014


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                      FILED SEPTEMBER 30, 2015

      The Commonwealth appeals from the judgment of sentence imposed

on August 28, 2014, in the Court of Common Pleas of York County, following

Zimmerman’s guilty plea to driving under the influence of alcohol (DUI), 75

Pa.C.S. § 3802(a)(1). This was Zimmerman’s second offense and, because

he had refused to submit to chemical testing, pursuant to 75 Pa.C.S. §

3803(b)(4), the violation was graded as an ungraded misdemeanor with a

maximum sentence of six months’ incarceration. Accordingly, Zimmerman

was sentenced to six months’ intermediate punishment.       In this timely

appeal, the Commonwealth claims the trial court misinterpreted the law by

failing to recognize the legislature amended the relevant statute.   After a

thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.
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       The Commonwealth’s appeal is a challenge to the legality of the

sentence.

       The scope and standard of review in determining the legality of a
       sentence are well established. If no statutory authorization exists
       for a particular sentence, that sentence is illegal and subject to
       correction. An illegal sentence must be vacated. In evaluating a
       trial court's application of a statute, our standard of review is
       plenary and is limited to determining whether the trial court
       committed an error of law.

Commonwealth v. Jurczak, 86 A.3d 265, 267 (Pa. Super. 2014) (citation

omitted).

       This matter involves 75 Pa.C.S § 3803, and this Court’s decision in

Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013).1                       In
____________________________________________


1
 The relevant portions of Section 3803, at the time of Zimmerman’s
sentencing were:

       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.

(Footnote Continued Next Page)


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Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), a three judge

panel of our Court             interpreted Section 3803, specifically, the use of the

word “notwithstanding” and concluded that a second offense DUI with a

refusal to submit to chemical testing is an ungraded misdemeanor, not a

misdemeanor of the first degree.                      The Commonwealth has consistently

argued       this   interpretation            improperly         negates    Section    3803(b)(4).

Nevertheless,       at        the    time     of   Zimmerman’s        sentencing,     the     Musau

interpretation of Section 3803 was binding upon the trial court.

        An en banc panel of our Court addressed this identical issue in

Commonwealth v. Grow, ___ A.3d ___ (Pa. Super. 2015) (en banc)

(9/4/2015), 2015 PA Super 186, 2015 WL 5174245.                               Grow affirmed the

Musau        interpretation           of    Section      3803.       Accordingly,     the     Musau

interpretation has been confirmed.

        In    attempting            to     distinguish    this     matter   from      Musau,    the

Commonwealth argues that the legislature has amended Section 3803 to

remove the contested phrase, “Notwithstanding the provisions of section

(b),”   replacing        it    with      “Except    as    provided     in   section   (b).”     The

Commonwealth claims this amendment, which was specifically in response

to the Musau decision, indicates the legislature never meant for the six-

month maximum sentence to apply in a second offense refusal case.


                          _______________________
(Footnote Continued)

75 Pa.C.S. § 3803(a), (b)(4).



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     However, this argument is unavailing.      Zimmerman pled guilty and

was sentenced on August 28, 2014. Section 3803 was not amended until

October 27, 2014. The timing of the amendment relative to the guilty plea

was also addressed in Grow. The en banc panel noted:

     As Grow pled guilty and was sentenced prior to the effective date
     of the amendment to the statute, however, the amended version
     does not apply to this matter. See Commonwealth v. Bowen,
     55 A.3d 1254, 1270 n.8 (Pa. Super. 2012) (interpreting prior
     statute after law amended since prior version applied to time
     period during which defendant was convicted and sentenced).

Commonwealth v. Grow, supra, at n.3. Accordingly, the trial court could

not apply an amendment that did not exist, and we are required to apply the

law that was applicable at the time of sentencing.

     In light of the above, the trial court properly interpreted and applied

the law as written at the time of Zimmerman’s sentencing and based on our

Court’s en banc decision in Grow, supra, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




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