J-S18040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY LEONARD CANTZ

                            Appellant               No. 2202 EDA 2014


                   Appeal from the PCRA Order June 30, 2014
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000895-2011


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                              FILED JUNE 11, 2015

        Appellant, Timothy Leonard Cantz, appeals from the June 30, 2014

order dismissing his amended petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.             Therein, Appellant

challenges the legality of his sentence of 15 to 30 months’ incarceration for

his conviction of driving under the influence (DUI) of “a drug or combination

of drugs to a degree which impairs the individual’s ability to safely drive,

operate or be in actual physical control of the movement of the vehicle.” 1 In

addition, Appellant’s counsel has filed before this Court a motion to

withdraw, together with a Turner/Finley no-merit letter/brief, averring the

appeal is without merit.        See Commonwealth v. Turner, 544 A.2d 927

____________________________________________
1
    75 Pa.C.S.A. § 3802(d)(2).
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(Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988) (en

banc).      After careful review, we grant counsel’s motion to withdraw and

affirm the PCRA court’s June 30, 2014 order dismissing Appellant’s PCRA

petition.

      The PCRA court summarized the facts of this case as follows.

                    The relevant factual and procedural history is
              undisputed and clear from the record.

                     On November 23, 2010, [Appellant] was twice
              arrested and charged with [DUI]. … Case No. 895
              CR 2011 resulted from a routine traffic stop.
              [Appellant] was initially stopped for traveling too
              closely behind another vehicle on the highway. In
              the ensuing encounter with the state trooper who
              stopped him, [Appellant] exhibited traditional indicia
              of intoxication. As a result, the trooper administered
              several field sobriety tests, all of which [Appellant]
              failed.   [Appellant] was taken to Pocono Medical
              Center where he refused to submit to chemical
              testing. Ultimately, [Appellant] was charged with
              DUI under 75 Pa.C.S.A. § 3802 (d)(2) (Controlled
              Substance — Impaired Ability to Drive) as a second
              offense.

                                        …

              On September 5, 2012, [Appellant] pled guilty to []
              the controlled substance DUI offense[].         On
              November 5, 2012, [Appellant] was sentenced to
              incarceration for not less than 15 months nor more
              than 30 months on [] the DUI conviction[]. …

                    On June 28, 2013, the Superior Court decided
              [] Musau, [] holding that the maximum sentence
              allowed by law for a first or second conviction under
              75    Pa.C.S.A.    Section     3802(a)(1)    (General
              Impairment — Alcohol) is six months’ imprisonment.
              [Appellant] then filed a pro se PCRA petition [on
              October 23, 2013]. [On February 3, 2014], through

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              appointed counsel, [Hillary A. Madden, Esquire,]
              [Appellant] filed the amended petition that [the
              PCRA court] denied on June 30, 2014 ….

PCRA Court Opinion, 7/8/14, at 1-3 (footnote omitted).

        Appellant filed a timely notice of appeal on July 25, 2014.2 On October

30, 2014, PCRA counsel filed with this Court a petition to withdraw together

with a Turner/Finley no-merit letter/brief.3       Therein, Counsel identifies

Appellant’s issues on appeal as an error by the PCRA court in denying him

relief based on the following allegations.

              The only issue asserted by Appellant in his pro se
              petition for [PCRA] relief is whether the trial court
              imposed an illegal sentence by ordering Appellant
              serve a total period of time of not less than 30
              months nor more than 60 months in a state
              correctional institution.

Counsel’s No-Merit Letter/Brief at 18. Appellant’s assertion that his sentence

is illegal, is premised on this Court’s decision in Commonwealth v. Musau,




____________________________________________
2
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. In its Rule 1925(a) statement, the PCRA court
references its July 8, 2014 opinion in support of its June 30, 2014 order as
containing the reasoning behind its dismissal of Appellant’s amended PCRA
petition.

      Appellant filed an untimely notice of appeal in a companion case
involving a separate DUI plea at 2321 EDA 2014 resulting from his second
November 28, 2010 DUI arrest. We quashed that appeal. However, the
issues raised therein were identical to those in the instant case.
3
    The Commonwealth did not file a brief in this matter.



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69 A.3d 754 (Pa. Super. 2013).4 Id. at 19. Alternatively, Appellant bases

his claim on the trial court’s past interpretation and application of Musau in

sentencing other defendants convicted of non-section 3802(a) DUI offenses.

Id.

       When we review an order denying an appellant’s request for PCRA

relief, we adhere to the following standards.

              “On appeal from the denial of PCRA relief, our
              standard and scope of review is limited to
              determining whether the PCRA court’s findings are
              supported by the record and without legal error.”
              Commonwealth v. Edmiston, 65 A.3d 339, 345
              (Pa. 2013) (citation omitted)[, cert. denied,
              Edminston v. Pennsylvania, 1345 S. Ct. 639
              (2013)]. “[Our] scope of review is limited to the
              findings of the PCRA court and the evidence of
              record, viewed in the light most favorable to the
              prevailing party at the PCRA court level.”
              Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d
              121, 131 (2012) (citation omitted).        “The PCRA
              court’s credibility determinations, when supported by
              the    record,     are   binding   on   this   Court.”
____________________________________________
4
  In Musau, the Commonwealth filed a petition for allowance of appeal at
510 EAL 2013. Our Supreme Court, on February 11, 2014, issued an order
holding the petition for allowance of appeal pending its disposition of the
appeal at 32 EAP 2013 for Commonwealth v. Mendez, 62 A.3d 456 (Pa.
Super. 2012) (unpublished memorandum).          The question accepted for
decision in the Mendez appeal was as follows. “In upholding a sentence
that exceeds the statutory maximum explicitly set out in 75 Pa.C.S. § 3803,
did not the majority violate the rules of statutory construction in order to
avoid what it saw as ‘problematic consequences’ resulting from a
straightforward application of the statute?” Commonwealth v. Mendez,
71 A.3d 250 (Pa. 2013) (per curiam order). Our Supreme Court dismissed
the Mendez appeal on March 30, 2015. Commonwealth v. Mendez, 111
A.3d 1187 (Pa. 2015). The hold on the petition for allowance of appeal in
Musau is still pending.



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                 Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
                 244, 259 (2011) (citation omitted). “However, this
                 Court applies a de novo standard of review to the
                 PCRA court’s legal conclusions.” Id.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc), appeal granted, 105 A.3d 658 (Pa. 2014). Further, in order to be

eligible   for    PCRA   relief,   a   petitioner   must   plead   and   prove   by   a

preponderance of the evidence that his conviction or sentence arose from

one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues

must be neither previously litigated nor waived.              Id. at § 9543(a)(3).

“Issues relating to the legality of sentence are cognizable under the PCRA.”

Commonwealth v. Voss, 838 A.2d 795, 799 (Pa. Super. 2003) (citation

omitted).

      Before we consider Appellant’s arguments, we must review PCRA

counsel’s request to withdraw.           As described by our Supreme Court, the

requirements PCRA counsel must abide by, when requesting to withdraw,

include the following.

                      1) A “no-merit” letter by PC[R]A counsel
                      detailing the nature and extent of his review;

                      2) The “no-merit” letter by PC[R]A counsel
                      listing each issue the petitioner wished to have
                      reviewed;

                      3) The PC[R]A counsel’s “explanation”, in the
                      “no-merit” letter, of why the petitioner’s issues
                      were meritless[.]




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Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,

supra at 215. “Counsel must also send to the petitioner: (1) a copy of the

“no-merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3)

a statement advising petitioner of the right to proceed pro se or by new

counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007).

                  [W]here counsel submits a petition and no-
            merit letter that do satisfy the technical demands of
            Turner/Finley, the court - trial court or this Court -
            must then conduct its own review of the merits of
            the case. If the court agrees with counsel that the
            claims are without merit, the court will permit
            counsel to withdraw and deny relief. By contrast, if
            the claims appear to have merit, the court will deny
            counsel’s request and grant relief, or at least instruct
            counsel to file an advocate’s brief.

Id. (citation omitted).

      Instantly, we conclude that Attorney Madden has complied with the

requirements    of   Turner/Finley.        Specifically,   Attorney    Madden’s

Turner/Finley letter/brief details the nature and extent of her review,

addresses the claims Appellant raised in his amended PCRA petition and Rule

1925(b) Statement, and determines that the issues lack merit.          Attorney

Madden discusses Appellant’s claims, explaining the reasons for her

conclusion that the issues are meritless.      Additionally, Attorney Madden

served Appellant with a copy of the petition to withdraw and Turner/Finley

letter/brief, advising Appellant that, if she was permitted to withdraw,

Appellant had the right to proceed pro se or with privately retained counsel.

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Appellant has not filed any response to the motion to withdraw. Therefore,

we proceed to perform an independent merits review of Appellant’s claims.

       The basis of Appellant’s primary issue is that his sentence of 15 to 30

months’ incarceration is illegal in light of this Court’s holding in Musau.

“Issues relating to the legality of a sentence are questions of law[.] ... Our

standard of review over such questions is de novo and our scope of review is

plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014)

(citation omitted).

       In Musau, we were called upon to interpret the then existing version

of Section 3803(a) of the Vehicle Code, which provided as follows.

              (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).

75 Pa.C.S.A. § 3803(a) (emphasis added).5

       Musau had been convicted of DUI under Section 3802(a), which,

because he had a prior offense and refused a blood alcohol test, was graded

as a first-degree misdemeanor under Section 3803(b)(4). Musau, supra at
____________________________________________
5
  Effective October 27, 2014, the Legislature amended Section 3803(a),
replacing the phrase, “Notwithstanding the provisions of subsection (b)”
with, “Except as provided in subsection (b).”


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755-756. Following principles of statutory construction and emphasizing the

import of the word “notwithstanding” in the section, the Musau panel held,

“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 757-758.

        Instantly,   Appellant      pleaded        guilty   to   DUI   under   Section

3802(d)(2).6 Relative to grading, Section 3803(b)(4) provides as follows.

              § 3803. Grading

____________________________________________
6
    That section provides as follows.

              § 3802. Driving under influence of alcohol or
              controlled substance

                                               …

              (d) Controlled substances.--An individual may not
              drive, operate or be in actual physical control of the
              movement of a vehicle under any of the following
              circumstances:

                                               …

                     (2) The individual is under the influence of a
                     drug or combination of drugs to a degree
                     which impairs the individual’s ability to safely
                     drive, operate or be in actual physical control
                     of the movement of the vehicle.

                                               …


75 Pa.C.S.A. § 3802(d)(2).


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                                     …

           (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(b)(4).

     Accordingly, as explained by the PCRA court, Musau does not apply to

Appellant’s sentence.

           Thus, the six[-]month sentence limiting provision of
           Section 3803(a) applies only to first and second
           general impairment DUI convictions under Section
           3802(a). Had the Legislature desired to trump the
           grading provisions of Section 3803(b)(4) with
           respect to controlled substance convictions as it did
           for general impairment violations, or to otherwise
           limit to six months the maximum sentence for
           controlled substance DUIs (or any of the other non-
           general impairment offenses listed under Section
           3802), it could easily have done so. It did not.
           Accordingly, the holding in Musau and the six[-
           ]month maximum sentence provision of 3803(a) do
           not apply to [Appellant’s] Section 3802(d) controlled
           substance conviction[].

PCRA Court Opinion, 7/8/14, at 6; see also Commonwealth v. Wilson,

111 A.3d 747, 753 (Pa. Super. 2015) (distinguishing the limiting language of

Section 3803(a) and the holding in Musau from the language in Section

3803(b)(1), which, although it provides for a maximum six-month sentence

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for violation of Section 3802(b), did not contain the “notwithstanding”

phrase, and did not trump the grading provision of Section 3803(b)(5)

concerning DUI violations while a minor is an occupant in the vehicle).

        Appellant next alternatively contends that sentences imposed by the

trial court in other post-Musau cases, employing a contrary and broader

interpretation of Musau, requires the same application of Musau to his

case.     Counsel’s No-Merit Letter/Brief at 21.     The PCRA court states

Appellant’s issue as follows.

             [Appellant’s] secondary argument is that because in
             some post-Musau non[-]general impairment DUI
             cases we imposed six[-]month maximum sentences,
             notions of fundamental fairness and the doctrine of
             stare decisis entitle him to the benefit of a six[-
             ]month sentence. There is no merit to this fall-back
             argument.

PCRA Court Opinion, 7/8/14, at 6.

        We agree with Counsel that this argument is an “appeal to the

discretionary aspect of sentence” and no relief is available under the PCRA.

Counsel’s No-Merit Letter/Brief at 22-23.    “Challenges to the discretionary

aspects of sentencing are not cognizable under the PCRA.” Commonwealth

v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007) (citations omitted), appeal

denied, 944 A.2d 756 (Pa. 2008).

        Additionally the PCRA court, acknowledging the other sentences, which

Counsel presented at the PCRA hearing, noted as follows.

             Further, we do not believe the fact that other
             defendants in subsequent cases received sentences

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           with shorter maximums than [Appellant] creates
           “precedent,” binding or otherwise, that entitles
           [Appellant] to a six[-]month maximum under any
           theory he may advance.

                                       …

           However, stare decisis is not an avenue by which a
           court is bound to follow past determinations blindly
           where adherence of the rule perpetuates error.
           Stilp. v. Com[monwealth], 905 A.2d 918, 967 (Pa.
           2006).     While the shorter sentences to which
           [Appellant] refers were neither illegal nor erroneous,
           the maximums were artificially constrained by an
           initial  confusion    regarding,    or    possibly   a
           misinterpretation of, the holding in Musau. We will
           not apply principles of stare decisis to perpetrate a
           misinterpretation of or confusion regarding binding
           appellate precedent and an unambiguous statutory
           provision.

PCRA Court Opinion, 7/8/14, at 7, 8.

     Based on the foregoing, we conclude that the sentence imposed on

Appellant was a legal sentence and the holding of the Musau Court did not

apply to Appellant’s case.      We further conclude that any previous

misinterpretation of Musau by the trial court does not provide precedent

affecting the legality of Appellant’s sentence.   Accordingly, we discern no

error or abuse of discretion by the PCRA court in dismissing Appellant’s

amended PCRA petition.

     Ascertaining no error, we affirm the PCRA court’s June 30, 2014 order

dismissing Appellant’s amended PCRA petition.         Additionally, we grant

Counsel’s motion to withdraw from further representation of Appellant in this

matter.

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     Order affirmed. Motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2015




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