J-A09017-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
              v.                           :
                                           :
VERNON K. ROTHWELL, JR.,                   :
                                           :
                   Appellant               : No. 1557 EDA 2014

           Appeal from the Judgment of Sentence December 16, 2013,
                    Court of Common Pleas, Delaware County,
               Criminal Division at No. CP-23-CR-0006111-2013

BEFORE: BOWES, DONOHUE and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED APRIL 14, 2015

        In this appeal, Vernon K. Rothwell, Jr. (“Rothwell”) appeals from the

judgment of sentence entered following his conviction of driving under the

influence of alcohol – highest rate of alcohol, 75 Pa.C.S.A. § 3802(c). We

affirm.1

        Rothwell’s conviction is the result of events that occurred on June 25,

2013.      The trial court summarized these events, as well as the relevant

procedural history, as follows:

              On June 25, 2013[,] Officer William Righter of the
              Tinicum Township Police Department was on duty
              and working patrol when he discovered a blue
              Pontiac Bonneville in a ditch behind the Wyndam
              Gardens Hotel in Essington, Pennsylvania.        The
              vehicle was emitting a large amount of smoke and
              Office Righter heard the engine being revved. Officer


1
  Throughout this memorandum, we refer to the offense of driving under the
influence as “DUI”.
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           Righter approached the driver, who was later
           identified as [Rothwell] … . [Rothwell] was asked to
           step out of the vehicle and Officer Righter detected a
           strong odor of alcoholic beverages emanating from
           his person. [Rothwell’s] eyes were blood shot and
           his speech was slurred. After [Rothwell] was unable
           to adequately perform several field sobriety tests, he
           was placed under arrest for [DUI].

                  On December 16, 2013, [Rothwell] pled guilty
           to [DUI] [pursuant to 75 Pa.C.S.A. § 3802(c)], a tier
           III second offense, graded as a misdemeanor of the
           first degree. Pursuant to the terms of the plea
           agreement, which [the trial court] accepted,
           [Rothwell] was sentenced to serve [twenty-four]
           months of intermediate punishment consisting of ten
           [] [forty-eight]-hour periods of incarceration,
           followed by seventy [] days on electronic monitoring,
           as well as 120 hours of community service.
           [Rothwell] was additionally sentenced to [three]
           years of consecutive probation and ordered to pay
           costs, fines, and all required evaluation.

                  On March 26, 2014, defense counsel filed a
           [m]otion for [r]econsideration and to [v]acate an
           [i]llegal [s]entence.   Following argument on the
           motion, the [trial court] entered an order granting
           the motion on April 28, 2014. The Commonwealth
           filed a [m]otion for [r]econsideration the following
           day. A hearing was held on May 1, 2014, and on
           May 8, 2014, the [trial] court entered an order
           granted [sic] the Commonwealth’s [m]otion for
           [r]econsideration and vacated the order entered on
           April 28, 2014 and reinstated the sentence originally
           imposed on December 16, 201[3].

Trial Court Opinion, 10/15/14, at 1-2 (footnote omitted). This timely appeal

follows.

      Rothwell presents one issue for our review: “Whether the sentence

imposed by the [trial] [c]ourt on December 16, 2013[] and reinstated by



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[o]rder dated May 8, 2014[] is in conformity with the penalty provisions of

75 Pa.C.S.[A.] § 3803(a) and as such legal?”      Rothwell’s Brief at 4.   This

Court’s scope and standard of review for 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).

      Section 3802 of the Motor Vehicle Code defines the offense of DUI.

Relevant to the present appeal, it states:

            (a) General impairment.--

                  (1) 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 in actual physical
            control of the movement of the vehicle.

                  (2) 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 alcohol concentration in the individual's
            blood or breath is at least 0.08% but less than
            0.10% within two hours after the individual has
            driven, operated or been in actual physical control of
            the movement of the vehicle.

            (b) High rate of alcohol.--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   alcohol


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            concentration in the individual's blood or breath is at
            least 0.10% but less than 0.16% within two hours
            after the individual has driven, operated or been in
            actual physical control of the movement of the
            vehicle

            (c) Highest rate of alcohol.--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   alcohol
            concentration in the individual's blood or breath is
            0.16% or higher within two hours after the individual
            has driven, operated or been in actual physical
            control of the movement of the vehicle.

75 Pa.C.S.A. § 3802 (a)-(c).

      Section 3803 of the Motor Vehicle Code governs the grading of DUI

offenses for sentencing purposes.     At the time of Rothwell’s sentencing, it

read, in relevant part, 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).

                                      ***

            (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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J-A09017-15


75 Pa.C.S.A. § 3803(a)(1), (b)(1),(4) (rescinded October 26, 2014).2

      Rothwell recognizes that pursuant to § 3803(b)(4), his offense is a

first-degree misdemeanor because he was convicted under § 3802(c) and

had a prior DUI conviction.      Generally, first-degree misdemeanors are

punishable by up to five years of imprisonment.         See 18 Pa.C.S.A. §

106(b)(6). Yet, Rothwell argues that pursuant to § 3803(a), the trial court

could not impose as sentence greater than six months. Rothwell’s Brief at 8.

Rothwell bases his argument on this Court’s decision in Commonwealth v.

Musau, 69 A.3d 754 (Pa. Super. 2013).         The defendant in Musau was

convicted of DUI under § 3802(a)(1). Because he had a prior DUI offense

and refused blood or breath testing, the trial court graded the defendant’s

offense as a first-degree misdemeanor pursuant to § 3803(b)(4) and

sentenced the defendant to ninety days to five years of incarceration.

Musau, 69 A.3d at 755-56. On appeal, the defendant argued that pursuant

to § 3803(a)(1), the maximum sentence he could receive was six months of

incarceration. This Court examined the language of § 3803(a)(1) and (b),

and applying principles of statutory construction, concluded as follows:

            The American Heritage Dictionary defines the word
            notwithstanding as “in spite of” or “although.”
            American Heritage Dictionary of the English
            Language 1203–04 (4th ed. 2006). Our Supreme


2
  Effective October 27, 2104, the first line of subsection (a) was amended to
read, “Except as provided in subsection (b)[,]” seemingly as a result of this
Court’s decision in Commonwealth v. Musau, 69 A.3d 754 (Pa. Super.
2013), which we discuss infra.


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J-A09017-15


            Court has defined “notwithstanding” as “regardless
            of.” See City of Philadelphia v. Clement &
            Muller, [] 715 A.2d 397, 399 ([Pa.] 1998) (holding
            that     the    plain   meaning     of   the    phrase
            “notwithstanding a contrary provision of law of the
            Commonwealth ...” is “regardless of what any other
            law provides ...”). Given these definitions, the
            Commonwealth's interpretation might be persuasive
            if the legislature had instead prefaced subsection (a)
            with “except as provided in subsection (b),” or began
            subsection (b) with “notwithstanding the provisions
            of subsection (a).” But it did not. Therefore, we hold
            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 a first or second DUI conviction is six
            months' imprisonment.

Id. at 757-58.

      This holding has no effect on Rothwell, as it addresses only the

language in § 3803(a) and (b) with regard to certain convictions of §

3802(a) (DUI – general impairment). Rothwell was convicted of § 3802(c)

(DUI – highest rate of alcohol).    By the plain language of the statute, §

3803(a) applies only to convictions of DUI – general impairment and does

not apply to convictions of DUI – highest rate of alcohol.           Further, the

language of § 3803 is clear that where a defendant is convicted of DUI –

highest rate of alcohol and has one prior DUI conviction, the offense is to be

graded as a first-degree misdemeanor. As noted above, the statutory limit

for a first-degree misdemeanor is five years of incarceration.         Rothwell’s

sentence does not exceed this limit, and so his sentence is legal.



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J-A09017-15


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/14/2015




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