J-S17003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FELIX FRIAS-PEREZ

                            Appellant                 No. 1549 MDA 2013


             Appeal from the Judgment of Sentence July 29, 2013
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0001206-2013


BEFORE: GANTMAN, P.J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                           FILED AUGUST 05, 2014

        Felix Frias-Perez appeals from the judgment of sentence imposed by

the Court of Common Pleas of Berks County after he pled guilty to driving

under the influence of alcohol.1 After careful review, we affirm.

        The underlying facts of this case are not in dispute. On January 20,

2013, Corporal Thomas Link of the Laureldale Police Department saw Frias-

Perez driving a minivan the wrong way down a one-way street.           An adult

male and a seven-year-old child were also in the vehicle. The officer pulled

over the minivan and noticed that Frias-Perez had alcohol on his breath and

bloodshot eyes.      The officer administered three field sobriety tests, two of

which Frias-Perez failed.        After Frias-Perez was informed of the implied

____________________________________________


1
    75 Pa.C.S. § 3802(b).
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consent law, he signed a form agreeing to have his blood drawn and tested

for the presence of alcohol. Testing revealed a blood alcohol concentration

of 0.16%.

      On July 29, 2013, Frias-Perez entered an open plea to violation of

section 3802(b) of the Vehicle Code, which provides:

      (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 concentration i
      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.

75 Pa.C.S. § 3802(b).

      Immediately following entry of the guilty plea, the trial court

sentenced Frias-Perez to forty-

incarceration.   On July 30, 2013, Frias-Perez filed a post-sentence motion

arguing that the sentence was excessive.     Following argument on July 31,

2013, the trial court denied the motion.

      Frias-Perez filed a timely notice of appeal on August 28, 2013.      On

September 23, 2013, he filed a statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), in which he asserted that his sentence was

illegal. On October 15, 2013, the trial court issued its Rule 1925(a) opinion,

agreeing with Frias-

the sentence.



sentence of eighteen months of incarceration was illegal, where six months

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of incarceration was the maximum possible sentence pursuant to 75 Pa.C.S.

§ 3803(b)(1) and (5), for a first conviction for driving under the influence

under 75 Pa.C.S. § 3802(b), notwithstanding the grading of the offense as a

misdemeanor of the first degree.

       As an initial matter, the Commonwealth argues that Frias-Perez

waived his right to challenge the legality of his sentence on appeal because

he did not raise the issue in his post-sentence motion. However, it is well



                                                               Commonwealth

v. Musau, 69 A.3d 754 (Pa. Super. 2013) (citation omitted). Accordingly,

we reach the merits of the issue.2

       Grading of the offense of driving under the influence is governed by

section 3803 of the Vehicle Code, which provides, in relevant part:

       § 3803.       Grading

       (b)    Other offenses.

              (1)    An individual . . . who violates section 3802(b) . . .
                     and who 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.

____________________________________________


2
 Because issues relating to the legality of sentencing are questions of law,
our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2012).




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                                          ***

              (5)    An individual who violates section 3802 where a
                     minor under 18 years of age was an occupant in
                     the vehicle when the violation occurred commits a
                     misdemeanor of the first degree.

75 Pa.C.S. § 3803.

       Frias-Perez argues that our decision in Musau, supra controls the

outcome of the instant matter. We disagree. Musau was convicted of DUI

(general impairment), 75 Pa.C.S. § 3802(a)(1), graded as a first-degree

misdemeanor because he refused to submit to chemical testing and had a

prior DUI conviction.      See 75 Pa.C.S. § 3803(b)(4).             The court sentenced
                                                                3
                                                                     On appeal, Musau

challenged the legality of his sentence, and this Court agreed.

       In Musau, we looked to section 3803 of the Vehicle Code, which

provides:

       (a)    Basic offenses.           Notwithstanding   the       provisions   of
              subsection (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 to pay a fine under
                     section 3804 (relating to penalties).

                                               ***
____________________________________________


3
  Five years is the maximum period of incarceration for a first-degree
misdemeanor pursuant to section 106(b)(6) of the Crimes Code, 18 Pa.C.S.
§ 106(b)(6).



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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. § 3803 (emphasis added).



provisions of subsection (b

      [T]he plain meaning 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


Musau, supra at 757.

      Although Musau discusses several rules of statutory construction, the

                                                                    ued . . .



initial matter, we note that the plain meaning of section 3803(b)(1) is that a

person who is found guilty of DUI - high rate of alcohol, and who has a

maximum of one prior conviction, commits a misdemeanor but is subject

                                                           See 75 Pa.C.S. §

3803(b)(1).     In contrast, a similarly-situated individual who commits the

same offense while a minor is in the vehicle commits a first-degree

misdemeanor, with no provision made for a six-month maximum term of

imprisonment.     See 75 Pa.C.S. § 3803(b)(5).     Frias-Perez asserts that a

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conflict exists between these two subsections. Assuming that a conflict does

exist, our Court held in Musau:

      [I]f two statutes appear to conflict, they are to be construed by
      giving effect to both when possible. When the conflict between
      the provisions cannot be reconciled, the special provisions shall
      prevail and shall be construed as an exception to the general
      provision, unless the general provision shall be enacted later and
      it shall be the manifest intention of the General Assembly that
      such general provision shall prevail.

Musau, supra at 756 (citations and quotations omitted).

      Here,   the    general   provision,   section   3803(b)(1),   was   enacted

September 30, 2003, and became effective February 1, 2004.            The more

specific provision, section 3803(b)(5), which eliminates the lenient six-

month maximum sentence for an individual convicted of DUI where a minor

was an occupant of the vehicle, was enacted May 8, 2012, and became

effective July 9, 2012. Accordingly, unlike the provisions in Musau, section

3803(b)(5) was enacted more recently than section 3803(b)(1), indicating

                                                         eral terms of section

3803(b)(1), which had been in effect for more than eight years. Clearly, the

legislature made a policy decision to impose more severe sanctions on those

who endanger children by operating a vehicle while impaired. Section 3803

carries out that legitimate objective.

      Accordingly, the trial court did not err in sentencing Frias-Perez to a

sentence of forty-

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2014




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