J-S46038-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,        :      IN THE SUPERIOR COURT OF
                                     :            PENNSYLVANIA
               Appellant             :
                                     :
          v.                         :
                                     :
BRADLEY L. YECKLEY,                  :
                                     :
               Appellee              :          No. 2149 MDA 2013

   Appeal from the Judgment of Sentence entered on November 1, 2013
             in the Court of Common Pleas of Centre County,
              Criminal Division, No. CP-14-CR-0000230-2013


COMMONWEALTH OF PENNSYLVANIA,        :      IN THE SUPERIOR COURT OF
                                     :            PENNSYLVANIA
               Appellant             :
                                     :
          v.                         :
                                     :
KENNETH LEE HAWKINS,                 :
                                     :
               Appellee              :          No. 2150 MDA 2013

      Appeal from the Judgment of Sentence on November 1, 2013
            in the Court of Common Pleas of Centre County,
             Criminal Division, No. CP-14-CR-0000961-2013


COMMONWEALTH OF PENNSYLVANIA,        :      IN THE SUPERIOR COURT OF
                                     :            PENNSYLVANIA
               Appellant             :
                                     :
          v.                         :
                                     :
CARL ANTHONY POLLICK,                :
                                     :
               Appellee              :          No. 2151 MDA 2013
J-S46038-14


      Appeal from the Judgment of Sentence entered on November 7, 2013
                in the Court of Common Pleas of Centre County,
                 Criminal Division, No. CP-14-CR-0000133-2013

BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED SEPTEMBER 25, 2015

        The Commonwealth appeals from the judgments of sentence entered

against Bradley L. Yeckley (“Yeckley”), Kenneth Lee Hawkins (“Hawkins”),

and Carl Anthony Pollick (“Pollick”) (collectively, “the Defendants”).         We

affirm.

        Pollick   was   arrested   for   driving   under   the   influence—general

impairment (“DUI”)1 and several summary offenses in November 2012.

Pollick refused to submit to chemical testing.              In 2013, a criminal

information charged Pollick with DUI refusal, which was graded as a

misdemeanor of the first degree, as it was his second DUI offense. Pollick

entered a guilty plea, and the trial court sentenced him to intermediate

punishment for a maximum of 5 years,2 including a period of 120 days in the

in-home detention program.          Pollick subsequently filed a post-sentence

Motion challenging his maximum sentence of 5 years.

        The trial court held a hearing on Pollick’s post-sentence Motion. The




1
    75 Pa.C.S.A. § 3802(a)(1).
2
  Generally, the maximum term for a misdemeanor of the first degree is 5
years. See 18 Pa.C.S.A. § 106(b)(6).



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trial court granted Pollick’s Motion in October 2013, relying on this Court’s

interpretation of section 3803 of the Vehicle Code,3 in Commonwealth v.

Musau, 69 A.3d 754 (Pa. Super. 2013).4 The Commonwealth filed a Motion

for Reconsideration/Clarification because the trial court did not address the

interpretation   of   the   relevant    section   of   the   Vehicle   Code,   section

3803(b)(4). The Commonwealth relied upon Commonwealth v. Mendez,

62 A.3d 456 (Pa. Super. 2012) (unpublished memorandum), in which this

Court held that “those cases where the defendant has one prior DUI

conviction and refuses chemical testing will be controlled by section




3
    See 75 Pa.C.S.A. § 3803 (effective until October 27, 2014).
4
   In Musau, this Court addressed the legality of a 5-year maximum
sentence for a defendant who was convicted of DUI under section
3802(a)(2), refused chemical testing for the offense in question, and had a
prior DUI. This Court held that a 5-year maximum sentence is illegal, and
that the maximum allowable sentence for a second DUI offense involving
refusal is six months in prison. Musau, 69 A.3d at 758. This Court’s
decision rested on the finding of a conflict between sections 3803(a)(1) and
3803(b)(4).     Specifically, this Court applied the rules of statutory
construction to determine the meaning of “notwithstanding,” as used in
section 3803(a)(1). Id. This Court held that

        the plain language of the statute, giving the words their ordinary
        meanings, indicates as follows: 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 the first or second DUI conviction is six months’
        imprisonment.

Id. The Pennsylvania Supreme Court denied allowance of appeal.
Commonwealth v. Musau, 17 A.3d 296 (Pa. 2015).



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3803(b)(4), the exception to the general provision.” 5 The trial court denied

the Motion for Reconsideration/Clarification without a hearing, and, in

November 2013, resentenced Pollick to a maximum sentence of six months

of intermediate punishment based upon Musau. The Commonwealth filed a

timely Notice of Appeal, as well as a court-ordered Pennsylvania Rule of

Appellate Procedure 1925(b) Concise Statement of Matters Complained of on

Appeal.

     Following Yeckley’s arrest for DUI in December 2012, he refused to

submit to chemical testing at the hospital. In 2013, a criminal information

charged Yeckley with DUI refusal, which was graded as a misdemeanor of

the first degree because it was his second DUI offense. Yeckley entered a

guilty plea, after which the trial court sentenced him to intermediate

punishment for a maximum of 5 years, including a period of 120 days in the

in-home detention program.     Yeckley subsequently filed a post-sentence

Motion challenging his maximum sentence.

     After a hearing, the trial court granted Yeckley’s post-sentence Motion

in November 2013, relying on the Musau decision.             The trial court

sentenced Yeckley to a maximum sentence of six months of intermediate

punishment. The Commonwealth subsequently filed a Notice of Appeal. The




5
 The Pennsylvania Supreme Court initially granted allowance of appeal in
Mendez, but subsequently dismissed the appeal as improvidently granted.
See Commonwealth v. Mendez, 111 A.2d 1187 (Pa. 2015).


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Commonwealth filed a timely court-ordered Pennsylvania Rule of Appellate

Procedure 1925(b) Concise Statement of Matters Complained of on Appeal.

     Hawkins was arrested for DUI in March 2013, and he refused to submit

to chemical testing at the hospital. A criminal information charged Hawkins

with DUI refusal, which was graded as a misdemeanor of the first degree

because it was his second DUI offense. Hawkins entered a guilty plea. The

trial court sentenced Hawkins to intermediate punishment for a maximum

period of 5 years, including a period of 120 days in the in-home detention

program. Hawkins subsequently filed a post-sentence Motion challenging his

maximum sentence.

     The trial court held a hearing in October 2013. After being informed of

the decision in the Pollick case, the trial court amended the judgment of

sentence to a maximum sentence of six months of intermediate punishment,

based upon the Musau decision. The Commonwealth subsequently filed a

Notice of Appeal and a court-ordered Pennsylvania Rule of Appellate

Procedure 1925(b) Concise Statement of Matters Complained of on Appeal.

     In December 2013, the Commonwealth filed a Motion to Consolidate

the cases of the Defendants. As all three cases raise substantially the same

issues, this Court granted the Motion in January 2014.

     On appeal, the Commonwealth raises the following questions for our

review:

     I. Did the trial court err in finding that the [O]rder [entered in]
     Musau[] was not final, and thus was not effective because the


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J-S46038-14


     appellate review of that order was not completed and the record
     had not been remanded to the trial court?

     II. Did the trial court err by not finding that the only
     interpretation of 75 Pa.C.S.[A.] § 3803 consistent with the
     canons of statutory construction, the plain meaning of the
     statute, and the legislative intent becomes that [Defendants’]
     maximum sentence of five years was a legal sentence for a
     second offense, DUI refusal conviction?

Brief for the Commonwealth at 5 (renumbered for ease of disposition).

     The Commonwealth’s claims challenge the legality of each of the

Defendants’ sentences. See Musau, 69 A.3d at 756. “Issues relating to the

legality of a sentence are questions of law, as are claims raising a court’s

interpretation of a statute. Our standard of review over such questions is de

novo and our scope of review is plenary.” Commonwealth v. Akbar, 91

A.3d 227, 238 (Pa. Super. 2014).

     In its first claim, the Commonwealth asserts that Musau cannot have

precedential value in this case. Brief for the Commonwealth at 22-25. The

Commonwealth incorrectly claims that because the Musau decision was

appealed to the Pennsylvania Supreme Court, the holding is not applicable

until appellate review is completed. Id. at 23-25. This issue is moot, as the

Pennsylvania has since denied allowance of appeal.6 Musau, 17 A.3d 296

(Pa. 2015).




6
  Even where our Supreme Court grants allowance of appeal, the prior
panel’s decision nevertheless remains binding. Commonwealth v. Pepe,
897 A.2d 463, 465 (Pa. Super. 2006).


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J-S46038-14


        In its second claim, the Commonwealth argues that Musau was

wrongly decided and that section 3803(b) of the Vehicle Code must be

construed as permitting a 5-year maximum sentence.                     Brief for the

Commonwealth at 17-22.

        Our review of the certified records in each case discloses that the trial

court    sentenced   each     of   the    Defendants   pursuant   to   75   Pa.C.S.A.

§ 3803(a)(1), as in effect at the time of the Defendants’ sentencing. At that

time, section 3803 provided as follows:

        § 3803. Grading

        (a) Basic offenses. –

        Notwithstanding the provisions of section (b):

          (1) An individual who violates section 3802(a) (relating to
          driving under the 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
          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 (effective until October 27, 2014).7

     On September 4, 2015, the Pennsylvania Superior Court, sitting en

banc, filed its decision in Commonwealth v. Grow, 2015 PA Super 186,

2015 Pa. Super. LEXIS 510 (en banc), to determine whether Musau, or a

conflicting decision in Commonwealth v. Barr, 79 A.3d 668 (Pa. Super.

2013),8 controls in sentencing a defendant who has refused chemical

testing, and has one prior DUI. In Grow, the en banc Court, agreeing with

this Court’s interpretation of section 3803 in Musau, held that “the plain

language of the statute, giving the words their ordinary meanings, indicates

[that] regardless of the … grading of the offense as a first-degree

misdemeanor, the maximum sentence for a first or second DUI conviction is

six months’ imprisonment.” Grow, slip opinion at 5-6 (quoting Musau, 69

A.3d at 758). Thus, the en banc panel concluded,

     because the meaning of the statute in question is clear and free
     from ambiguity, the Statutory Construction Act provides that
     “the letter of it is not to be disregarded under the pretext of
     pursuing its spirit.” 1 Pa.C.S.[A.] § 1921(b). Moreover, we are
     constrained to consider solely the plain meaning of section 3803,
     since “only when the words of a statute are ambiguous should a
     court seek to ascertain the intent of the General Assembly
     through consideration of statutory construction factors found in

7
  On October 27, 2014, the legislature amended section 3803(a) to replace
the phrase “Notwithstanding the provisions of section (b)” with “Except as
provided in subsection (b).” 75 Pa.C.S.A. § 3803(a). As the Defendants
were convicted and sentenced prior to the amendment, the amended version
is not applicable in this appeal.
8
  In Barr, a panel of this Court stated in dictum that the defendant’s refusal
of chemical testing would increase the maximum penalty from six months to
five years. Barr, 79 A.3d at 674.


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      Section 1921(c).” Commonwealth v. Brown, 603 Pa. 31, 981
      A.2d 893, 898 (Pa. 2009) (emphasis added)….

Grow, slip opinion at 6-7 (footnotes omitted).9       As this Court’s en banc

decision in Grow is binding precedent, we cannot grant the Commonwealth

relief on its challenge to the legality of the Defendants’ sentences.

      Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/25/2015




9
   Nevertheless, the en banc Court considered and rejected the
Commonwealth’s statutory construction arguments. See id. at 8-9 (stating
that “grading and sentencing of the offense for a defendant in Grow’s
position is hardly absurd; the result merely diverges from the typical
scheme.”); 12 (stating that although section 1921(c) of the Statutory
Construction Act, 1 Pa.C.S.A. § 1921(c), permits legislative and
administrative interpretations to be considered when the wording of the
statute is ambiguous, the language of section 3803 is clear and free from
ambiguity).


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