J-S46024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

TIMOTHY ANDREW HORAN

                            Appellee                   No. 152 MDA 2014


                  Appeal from the Order December 20, 2013
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0003522-2013


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                               FILED MAY 11, 2015

        The Commonwealth of Pennsylvania appeals from the judgment of

sentence imposed by the Court of Common Pleas of York County after

Appellee, Timothy Horan, was found guilty of driving under the influence of

alcohol (“DUI”),1 following a bench trial. After careful review, we affirm.

        On March 4, 2013, a police officer observed Horan fail to yield the

right-of-way at a two-way stop sign.           The officer stopped Horan, who

exhibited signs of intoxication. Horan admitted to having consumed alcohol

and continued to show signs of intoxication during field sobriety tests. The

officer arrested Horan and advised him of the required implied consent



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1
    75 Pa.C.S. § 3802(a)(1).
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warnings. However, Horan refused to have his blood drawn in order to test

its alcohol level.

      Following a bench trial, the court sentenced Horan to six months’

Intermediate Punishment, considering this be the statutory maximum

sentence according to the Vehicle Code.       See 75 Pa.C.S. § 3803(a)(1).

Thereafter, the Commonwealth filed this timely appeal, asserting that

Horan’s sentence is inappropriately short because the statutory maximum

for a second offense involving a refusal to submit to chemical testing is five

years’ incarceration.   See 18 Pa.C.S. § 1104(1); see also 19 Pa.C.S. §

106(b)(6).

      The Commonwealth presents a challenge to Horan’s sentence, asking

this Court to determine which statutory provision controls the maximum

sentence for Horan’s DUI offense.      A question of statutory construction

creates an appealable issue implicating the legality of the sentence.

Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa. Super. 2006).

When the legality of a sentence is implicated, “our task is to determine

whether the trial court erred as a matter of law and, in doing so, our scope

of review is plenary.” Commonwealth v. Martz, 42 A.3d 1142, 1145 (Pa.

Super. 2012).

      The Vehicle Code defines DUI – general impairment as follows:        “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

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in actual physical control of the movement of the vehicle.”         75 Pa.C.S. §

3802(a)(1). The grading of this offense is dependent on other factors such

as prior DUI-related offenses and whether the defendant refuses to submit

to chemical testing. See 75 Pa.C.S. § 3803.

       Ordinarily, the statutory maximum for a first-degree misdemeanor is

five years’ incarceration. 18 Pa.C.S. § 1104(1). However, the Vehicle Code

provides:

       (a)    Basic offenses. – Notwithstanding the provisions of
              subsection (b) [that specify the offense is to be graded
              as a first-degree misdemeanor]:

              (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 to pay a fine under
                    section 3804 (relating to penalties).

75 Pa.C.S. § 3803(a)(1) (emphasis added).

       This Court was asked to analyze the same statutory provision in

Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013). Relying on the

fact   that   section   3802(a)   begins   “notwithstanding   the   provisions   of

subsection (b),” we held:

       [T]he plain language of [section 3803], 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 a first or second DUI conviction is
       six months’ imprisonment.

Musau 69 A.3d at 758 (emphasis added).


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       Here, Horan had committed one prior DUI offense and refused to

submit to chemical testing.         Thus, the instant DUI offense is graded as a

misdemeanor of the first degree. 75 Pa.C.S. § 3803(b)(4).          Nevertheless,

pursuant to Section 3803(a)(1) of the Vehicle Code, the maximum term of

imprisonment is six months.

       The Commonwealth relies on Commonwealth v. Barr, 79 A.3d 668

(Pa. Super. 2013) in support of its position that five years’ incarceration is

the correct maximum sentence.2            However, Musau is the current state of

the law and, therefore, dispositive. Accordingly, the trial court did not err as

a matter of law when it sentenced Horan to a maximum sentence of six

months’ incarceration.

       Judgment of sentence affirmed.




____________________________________________


2
  In Barr, this Court addressed the proper instruction for a jury to find that
the defendant “refused” blood, breath or urine testing when properly
requested to do so.       Our statement that Barr’s refusal increased the
maximum penalty from six months’ to five years’ imprisonment was made in
passing and was not essential to the decision in that matter. In other words,
it is dictum.     Dictum involving the interpretation of a statute is not
controlling and is entitled to consideration only in a close or doubtful case.
See U.S. Steel Co. v. County of Allegheny, 86 A.2d 838, 843 (Pa. 1952).
This is not a close case because Musau unequivocally held that the current
wording of Section 3803 requires a second DUI offense with refusal to be
graded as a first-degree misdemeanor with a maximum prison sentence of
six months.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2015




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