J-S51027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

STEPHEN CRAIG FESSLER

                            Appellee               No. 2249 MDA 2013


           Appeal from the Judgment of Sentence October 31, 2013
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0001141-2013


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                         FILED NOVEMBER 26, 2014

        The Commonwealth appeals from the judgment of sentence imposed

on Stephen Craig Fessler by the Berks County Court of Common Pleas. On

October 31, 2013, Fessler entered a guilty plea to one count of driving under

the influence of alcohol (DUI),1 and was sentenced to six months’

intermediate punishment (IP), and 60 days’ incarceration, with credit for 60

days Fessler spent in a Berks County residential treatment facility.      On

appeal, the Commonwealth argues the court erred in failing to sentence

Fessler to a mandatory 90 days’ incarceration pursuant to 75 Pa.C.S. §

3804(c)(2)(i), and in failing to impose a five year maximum sentence



____________________________________________


1
    75 Pa.C.S. § 3802(a)(1).
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pursuant to 75 Pa.C.S. § 3804(d).              For the reasons set forth below, we

affirm the judgment of sentence, but remand for correction of the record.

       The facts underlying Fessler’s arrest are undisputed.         Officer Ronald

Tobias conducted a legal traffic stop of Fessler.          During the stop, Officer

Tobias suspected Fessler was intoxicated. The officer proceeded to conduct

field sobriety tests, which Fessler failed. After he was taken into custody,

Fessler refused blood testing. He was subsequently charged with DUI, and

two summary traffic offenses.2           On October 31, 2013, Fessler entered a

guilty plea to one count of DUI.           Because this was Fessler’s second DUI

conviction, and Fessler had refused chemical testing, the Commonwealth

requested the court impose a five-year term of IP, with 90 days’

incarceration. N.T., 10/31/2013, at 5. However, the trial court made the

following findings at sentencing:

       [I]n reliance on the Superior Court case involving the refusal
       enhancement,[3] this Court deems Count 1 to be an ungraded
       misdemeanor and that the maximum sentence in regard to the
       charge is six months and not five years.


____________________________________________


2
  Fessler’s DUI charge was graded as a first degree misdemeanor pursuant
to 75 Pa.C.S. § 3803(b)(4) (“An individual who violates section 3802(a)(1)
where the individual refused testing of blood or breath, … and who has one
or more prior offenses commits a misdemeanor of the first degree.”).
3
  Although the Superior Court decision was never specifically identified by
the trial court at sentencing, we presume the court was referring to this
Court’s recent decision in Commonwealth v. Musau, 69 A.3d 754 (Pa.
Super. 2013).



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             The Court also indicates of record that the Superior Court’s
       decision allows for no discretion on the part of the Trial Court.

Id. at 8.     The court then proceeded to sentence Fessler to term of six

months’ county IP, in addition to 60 days’ imprisonment, with credit for 60

days Fessler served in a residential treatment facility. The Commonwealth

filed a timely motion to modify the sentence, which the court denied on

November 19, 2013. This appeal followed.4

       On appeal, the Commonwealth challenges the trial court’s refusal to

impose a mandatory minimum sentence, as well as the court’s failure to

comply with the statutory requirements regarding the maximum sentence

applicable to Fessler’s IP term.          We note there appears to be no clear

consensus as to whether such claims challenge the legality or discretionary

aspects of sentencing. See Commonwealth v. Foster, 17 A.3d 332, 345

(Pa. 2011) (plurality) (challenge to imposition of mandatory minimum raises

legality of sentencing issue) (Per Baer, J., with two justices joining, two

justices concurring only in the judgment, and two justices concurring

separately). Nevertheless, even if we determine the Commonwealth’s issues

raise discretionary claims, the Commonwealth preserved its challenges in a



____________________________________________


4
  On January 15, 2014, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Commonwealth complied with the court’s directive and filed a
concise statement on January 22, 2014.




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post-sentence motion, and we may address them on appeal. 5                See

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011).

       In its first issue, the Commonwealth argues the trial court erred in

failing to impose the 90-day mandatory minimum prison term, as required

by Section 3804(c)(2)(i),6 for individuals who refuse chemical testing and

have at least one prior DUI conviction.

       “This case involves the interplay between the mandatory sentencing

provisions of the DUI statute and the discretionary sentencing provisions of

the Sentencing Code[.]”         Commonwealth v. Williams, 941 A.2d 14, 21

(Pa. Super. 2008).          “The objective of all statutory interpretation and

construction is to effectuate the General Assembly's intent.”       Id. at 25

(citation omitted).

       Pursuant to 75 Pa.C.S. § 3804(c)(2)(i), a defendant, like Fessler, who

violates Section 3802(a)(1), has a prior DUI conviction, and refuses chemical

testing, must “undergo imprisonment of not less than 90 days[.]” However,

notwithstanding this mandatory sentencing provision in the Vehicle Code, a
____________________________________________


5
  Although the Commonwealth neglected to include in its appellate brief the
requisite statement pursuant to Pa.R.A.P. 2119(f), setting forth the reasons
relied upon for allowance of appeal, Fessler did not object to this omission.
Therefore, we may overlook the defect. Commonwealth v. Titus, 816
A.2d 251, 255 (Pa. Super. 2003).
6
  This claim raises a substantial question “that the sentence imposed is …
inconsistent with a specific provision of the Sentencing Code,” that is,
Section 3804(c)(2)(i). Commonwealth v. Ventura, 975 A.2d 1128, 1133
(Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009) (citation omitted



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trial court has the discretion, pursuant to the Sentencing Code, to forgo a

sentence of imprisonment, and impose a sentence of county intermediate

punishment.

      Section 9721 of the Sentencing Code provides trial courts with the

following sentencing alternatives:

      (a) General rule. -- In determining the sentence to be imposed
      the court shall, except as provided in subsection (a.1),
      consider and select one or more of the following alternatives,
      and may impose them consecutively or concurrently:

         (1) An order of probation.

         (2) A determination of guilt without further penalty.

         (3) Partial confinement.

         (4) Total confinement.

         (5) A fine.

         (6) County intermediate punishment.

         (7) State intermediate punishment.

      (a.1) Exception.—

         (1) Unless specifically authorized under section 9763
         (relating to a sentence of county intermediate punishment)
         or 61 Pa.C.S. Ch. 41 (relating to State intermediate
         punishment), subsection (a) shall not apply where a
         mandatory minimum sentence is otherwise provided
         by law.

42 Pa.C.S. § 9721(a)-(a.1) (emphasis supplied).

      Section 9763 authorizes a trial court to sentence a defendant, subject

to the penalties for a first, second, or third DUI conviction set forth in

Section 3804, to a term of county IP “after undergoing an assessment under

75 Pa.C.S. § 3814 (relating to drug and alcohol assessments).” 42 Pa.C.S. §

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9763(c)(1).     Once the assessment is completed, the statute provides as

follows:

           (2) If the defendant is determined to be in need of
           drug and alcohol treatment, the defendant may only be
           sentenced to county intermediate punishment which
           includes participation in drug and alcohol treatment under
           75 Pa.C.S. § 3815(c) (relating to mandatory sentencing).
           The defendant may only be sentenced to county
           intermediate punishment in:

               (i) a residential inpatient program or a residential
               rehabilitative center;

               (ii) house arrest with electronic surveillance;

               (iii) a partial confinement program such as work
               release, work camp and halfway facility; or

               (iv) any combination of the programs set forth in
               this paragraph.

42 Pa.C.S. § 9763(c) (2) (emphasis supplied).7 Section 9763 also restricts

the maximum term a trial court may impose for an IP sentence to “the

maximum term for which the defendant could be confined.”              42 Pa.C.S. §

9763(a).

       Based upon the statutory scheme outlined above, we conclude that the

trial court was acting within its discretion when it chose to impose a county

IP sentence, rather than the 90-day minimum term of incarceration set forth


____________________________________________


7
  See also 42 Pa.C.S. § 9804(b)(5) (“A defendant subject to 75 Pa.C.S. §
3804 (relating to penalties) … may only be sentenced to county intermediate
punishment for a first, second or third offense under 75 Pa.C.S. Ch. 38
(relating to driving after imbibing alcohol or utilizing drugs) ….).



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in Section 3804(c)(2)(i). Although Fessler, as a second time offender who

refused chemical testing, was subject to the mandatory provisions of Section

3804(c)(2), Section 9721(a.1) authorizes a trial court to impose a county IP

sentence, notwithstanding the mandatory minimum provisions, if the

sentence is sanctioned under Section 9763. Section 9763 expressly permits

a trial court to impose a county IP sentence on a defendant subject to the

penalties for a second DUI offense set forth in Section 3804, so long as

the defendant has undergone a drug and alcohol assessment

pursuant to 75 Pa.C.S. § 3814.

      Here, Fessler submitted to a drug and alcohol assessment, and was

determined to be in need of further treatment. See Commonwealth’s Motion

to Modify Sentence, 11/8/2013, Exhibit A, Treatment Access and Services

Center, Inc. (TASC) Recommendation. Therefore, at the time of sentencing,

the trial court was acting within its discretion when it imposed a six-month

county IP sentence. See Williams, supra, at 26 (finding trial court acted

within its “statutory authority and discretion” when it sentenced defendant, a

second-time DUI offender, to county IP, rather than mandatory 30 days’

imprisonment pursuant to Section 3804(b)(2), when it determined he was a

“eligible   offender”   pursuant   to   Section 9804(b)(1)).   Accordingly, the

Commonwealth’s first issue fails.

      Next, the Commonwealth argues the trial court erred in failing to

impose a maximum term of five years on Fessler’s IP sentence.              The

Commonwealth contends that since Fessler’s conviction was graded as a

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first-degree misdemeanor pursuant to 75 Pa.C.S. § 3803(b)(4), 8 the

statutory maximum sentence that the court could have imposed was five

years’ incarceration. See 18 Pa.C.S. § 1104(1). Moreover, it asserts that

because Fessler was “determined to be in need of additional treatment,”

pursuant to Section 3804(d), the trial court was required to impose “a

maximum sentence equal to the statutorily available maximum[,]” which, in

this case, was five years. 75 Pa.C.S. § 3804(d).

        However, as the Commonwealth acknowledges in its brief, this issue is

controlled by the decision in Commonwealth v. Musau, 69 A.3d 754 (Pa.

Super. 2013). In that case, a panel of this Court considered the interplay

between Section 3803(a)(1) and Section 3803(b)(4).          As noted supra,

Section 3803(b)(4) provides that a violation of Section 3802(a)(1) by a

defendant who refuses chemical testing and has a prior DUI conviction, is

graded as a first-degree misdemeanor. 75 Pa.C.S. § 3803(b)(4). However,

subsection (a) of the statute reads as follows:

        (a) … Notwithstanding the provisions of subsection (b):


____________________________________________


8
    Section 3803(b)(4) provides, in relevant part:

        An individual who violates section 3802(a)(1) where the
        individual refused testing of blood or breath, … and who has one
        or more prior offenses commits a misdemeanor of the first
        degree.

75 Pa.C.S. § 3803(b)(4).



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        (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. § 3803(a) (emphasis supplied).        In reconciling these two

ostensibly contradictory provisions, the Musau Court held that the term

“notwithstanding” preceding the language in subsection (a) indicated that

the Legislature intended subsection (a) to control for sentencing purposes.

The Court opined:

     [W]e 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.

Musau, supra, 69 A.3d at 758 (emphasis supplied).            Furthermore, in

addressing the Commonwealth’s argument that such an interpretation would

render subsection (b) a nullity, the Musau Court observed that the

Commonwealth “conflate[d] grading and sentencing.”           Id.   The Court

explained that the Legislature may have intended to increase the grading of

the offense to a first-degree misdemeanor for purposes of the defendant’s

criminal record, without increasing the actual penalty for the offense. Id.

Therefore, the Musau Court concluded “the maximum sentence allowable

for [Musau’s] conviction is six months’ imprisonment.” Id.




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       In the present case, the Commonwealth argues that Musau was

wrongly decided, and emphasizes that the issue is pending before the

Pennsylvania Supreme Court.9           Nevertheless, because the Supreme Court

has not yet ruled upon the issue, our Court’s prior decision in Musau is

binding precedent.        Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa.

Super. 2006).       Accordingly, we conclude the trial court did not err in

imposing a maximum sentence of six months’ county IP.

       Although not raised by either party, we are compelled to address the

trial court’s refusal to grade Fessler’s offense as a first-degree misdemeanor.

In sentencing Fessler, the trial court made the following comments:

       [I]n reliance on the Superior Court case involving the refusal
       enhancement, this Court deems Count 1 to be an ungraded
       misdemeanor and that the maximum sentence in regard to the
       charge is six months and not five years.


____________________________________________


9
  The Supreme Court granted a petition for allowance of appeal in an
unpublished decision of this Court, Commonwealth v Mendez, 3274 EDA
2011 (Pa. Super. 2012), on the following issue:

       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). The Commonwealth
filed a petition for allowance of appeal in Musau, and, on February 11,
2014, the Supreme Court placed the petition on hold pending its resolution
of Mendez. See Order, 2/11/2014, Commonwealth v. Musau, 501 EAL
2013 (Pa. 2013).



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N.T., 10/31/2013, at 8. Presumably relying on Musau, the court correctly

stated that Fessler’s maximum sentence could be no longer than six months.

However, the trial court misinterpreted the Musau Court’s holding regarding

the grading of the offense. Indeed, the Musau Court concluded that while

the Legislature may have intended a second-time DUI offender who refuses

chemical testing to be subject to a maximum six-month jail term, it also

specified the offense would be graded as a first-degree misdemeanor. See

Musau, supra, 69 A.3d at 758.

      Here,   Fessler’s   offense   was   properly    graded   as   a   first-degree

misdemeanor on the Criminal Information.             However, it is listed as an

ungraded misdemeanor on his sentencing order.             See DUI Intermediate

Punishment Order, 10/31/2013.         Accordingly, we remand the case with

directions to the trial court to correct Fessler’s conviction and sentencing

record to reflect that his conviction of 75 Pa.C.S. § 3802(a)(1) is graded as a

first-degree misdemeanor.     In all other respects, we affirm the judgment of

sentence.




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     Judgment of sentence affirmed. Case remanded for correction of the

record consistent with this Memorandum. Jurisdiction relinquished.

     Judge Musmanno joins the memorandum.

     Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2014




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