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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

ALLEN RAY ETTINGER,

                            Appellee                  No. 1165 MDA 2014


            Appeal from the Judgment of Sentence of June 16, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001996-2014


BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                               FILED APRIL 13, 2015

        The Commonwealth of Pennsylvania appeals from the judgment of

sentence entered on June 16, 2014. We affirm.

        On February 4, 2014, Mr. Ettinger was arrested for driving under the

influence of alcohol (hereinafter “DUI”). The Commonwealth later charged

Mr. Ettinger with DUI,1 which was enhanced based upon the averment that

Mr. Ettinger refused to submit to chemical testing of his breath or blood.

Commonwealth’s Information, 4/25/14, at 1; see also 75 Pa.C.S.A. § 1547.

        On June 16, 2014, Mr. Ettinger pleaded guilty to DUI, pursuant to 75

Pa.C.S.A. § 3802(a)(1).        The conviction constituted Mr. Ettinger’s second

DUI offense within the prior ten years.        N.T. Sentencing, 6/16/14, at 1.

____________________________________________


1
    75 Pa.C.S.A. § 3802(a)(1).
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Moreover, within Mr. Ettinger’s guilty plea, Mr. Ettinger admitted that he

refused to submit to chemical testing on the night in question. Id. at 5; 75

Pa.C.S.A. § 1547.

      That same day, the trial court sentenced Mr. Ettinger to six months’

intermediate   punishment,    consistent   with   this   Court’s     holding   in

Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013) (construing 75

Pa.C.S.A. § 3803(a)(1) and § 3803(b)(4) and holding that a defendant who

was convicted of a second-offense DUI under 75 Pa.C.S.A. § 3802(a)(1) and

who refused chemical testing could only be sentenced to the statutory

maximum term of six months’ imprisonment, as set forth in 75 Pa.C.S.A.

§ 3803(a)(1) – even though the crime is graded as a first-degree

misdemeanor and even though a first-degree misdemeanor is generally

subject to a five-year mandatory minimum sentencing term).              Further,

during Mr. Ettinger’s sentencing hearing, the Commonwealth acknowledged

that Musau bound the trial court and that, under Musau, the trial court was

“obligated to impose a six-month maximum” sentence upon Mr. Ettinger.

N.T. Sentencing, 6/16/14, at 2. However, the Commonwealth objected to

the trial court’s sentence for purposes of issue preservation. Id.

      The Commonwealth filed a timely notice of appeal from Mr. Ettinger’s

judgment of sentence. The Commonwealth now raises one claim on appeal:

        Whether the sentencing court erred when it held that six
        months for [Mr. Ettinger’s DUI] (refusal) ([second] offense)
        conviction was the statutory maximum allowable sentence it
        could consider[?]


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Commonwealth’s Brief at 4 (some internal capitalization omitted).

     The Commonwealth’s claim fails because we, like the trial court, are

bound by our holding in Musau.

     At the time Mr. Ettinger committed his DUI offense, the relevant

portions of the DUI gradation statute read:

        (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.




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75 Pa.C.S.A. § 3803.2 The statutory maximum sentence for a misdemeanor

of the first degree is generally five years in prison.         18 Pa.C.S.A.

§ 106(b)(6).

       In Commonwealth v. Musau, this Court was provided with an

opportunity to interpret the above-quoted version of 75 Pa.C.S.A. § 3803(a)

and (b)(4). In Musau, Mr. Musau was convicted of a second-offense DUI,

where he refused to submit to chemical testing. Musau, 69 A.3d at 755-

756.      At Mr. Musau’s sentencing hearing, the trial court looked to 75

Pa.C.S.A. § 3803(b)(4) and concluded that Mr. Musau’s DUI conviction was

to be graded as a first-degree misdemeanor.      Id.; see also 75 Pa.C.S.A.

§ 3803(b)(4).      Further, the trial court held that the general, five-year

statutory maximum sentencing term for first-degree misdemeanors – as

found in 18 Pa.C.S.A. § 106(b)(6) – applied to Mr. Musau’s conviction.

Musau, 69 A.3d at 755-756. In accordance with this construction, the trial

court sentenced Mr. Musau to serve a term of 90 days to 5 years in jail. Id.

at 756.




____________________________________________


2
  In response to Musau, the Pennsylvania Legislature amended 75 Pa.C.S.A.
§ 3803(a) by deleting the phrase “[n]otwithstanding the provisions of” and
replacing that phrase with the words “[e]xcept as provided in.” See 75
Pa.C.S.A. § 3803 (effective October 27, 2014).         However, since the
amendment to Section 3803(a) was effective on October 27, 2014, and since
Mr. Ettinger committed his crime before the effective date of the
amendment, Mr. Ettinger was subject to the prior version of the statute.



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     On appeal to this Court, Mr. Musau claimed that his sentence was

illegal because it exceeded the six-month statutory maximum penalty, as

provided in 75 Pa.C.S.A. § 3803(a)(1). Musau, 69 A.3d at 756. This Court

agreed with Mr. Musau.    Specifically, the Musau Court read 75 Pa.C.S.A.

§ 3803(a) and (b)(4) in accordance with principles of statutory construction

and held that a defendant convicted of a second-offense DUI under 75

Pa.C.S.A. § 3802(a)(1), who refused chemical testing, could only be

sentenced to the statutory maximum term of six months’ imprisonment, as

provided in Section 3803(a)(1). Musau, 69 A.3d at 758.

     Important to the Musau Court’s holding was the fact that, in drafting

75 Pa.C.S.A. § 3803(a), the Pennsylvania Legislature employed the phrase

“[n]otwithstanding the provisions of subsection (b);” and, as the Musau

Court noted, the term “notwithstanding” is defined, variously, as “in spite

of,” “although,” or “regardless of.” Id. at 757. The Musau Court held that,

by employing the phrase “notwithstanding the provisions of subsection (b)”

in Section 3803(a), the Legislature intended for Section 3803(a) to apply

“regardless of” what was contained in Section 3803(b).     Id. at 757-758.

Thus, even though Section 3803(b)(4) graded Mr. Musau’s crime as a first-

degree misdemeanor, the Musau Court concluded that the statutory

maximum term of six months’ imprisonment – contained in Section 3803(a)

– applied “regardless of” the crime’s grade.   Id.   Hence, the Court held,

since Mr. Musau’s sentence exceeded the six-month statutory maximum, the

sentence was illegal. Id. at 758.

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        Musau undoubtedly applies to the case at bar because Mr. Ettinger

(like Mr. Musau) was convicted of a second-offense DUI under 75 Pa.C.S.A.

§ 3802(a)(1), where he refused chemical testing and, at the time Mr.

Ettinger committed his offense, Mr. Ettinger was subject to the same version

of 75 Pa.C.S.A. § 3803 that was interpreted in Musau. Indeed, within the

Commonwealth’s brief to this Court, the Commonwealth simply requests this

Court to either overrule Musau or ignore Musau and, instead, follow

contrary, non-binding dicta from other cases. See Commonwealth’s Brief at

9-22.    However, this Court has no power to overrule Musau or to ignore

Musau’s clear, binding holding in favor of non-binding dicta.           See

Commonwealth v. Taggert, 997 A.2d 1189, 1201 n.16 (Pa. Super. 2010)

(recognizing that “one three-judge panel of [the Superior] Court cannot

overrule another” three-judge panel); Gardner v. Erie Ins. Co., 722 A.2d

1041, 1046 (Pa. 1999) (“the Court is not bound by statements made in

dicta”). The Commonwealth’s claim on appeal thus fails.3

____________________________________________


3
  We note that the Commonwealth filed a petition for allowance of appeal in
Musau and, on February 11, 2014, the Pennsylvania Supreme Court entered
an order, holding the Musau petition for allowance of appeal pending its
disposition in Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013).
Pennsylvania Supreme Court Order, 2/11/14, at 1. Nevertheless, on March
30, 2015, the Pennsylvania Supreme Court dismissed the appeal in Mendez
as improvidently granted. Commonwealth v. Mendez, ___ A.3d ___ (Pa.
2015). Moreover, and regardless, Musau remains binding precedent unless
and until it has been overturned by our Supreme Court or it has been
overruled by an en banc panel of this Court. See Marks v. Nationwide
Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000) (“we have long held that
(Footnote Continued Next Page)


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      Therefore, in accordance with Musau and 75 Pa.C.S.A. § 3803(a)(1),

we must hold that the trial court correctly concluded that Mr. Ettinger was

subject to the six-month statutory maximum sentence for his DUI

conviction.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




                       _______________________
(Footnote Continued)

as long as the decision has not been overturned by our Supreme Court, a
decision by our Court remains binding precedent”).



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