J-S15039-15, J-S15040-15, J-S15042-15, J-S15043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                       Appellant

                 v.

BRYAN GERARD WEIPERT

                       Appellee               No. 1380 MDA 2014


              Appeal from the Order Entered July 15, 2014
             In the Court of Common Pleas of York County
          Criminal Division at No(s): CP-67-CR-0000642-2014
____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                       Appellant

                 v.

KENNETH J. STEWART, SR.

                       Appellee               No. 1585 MDA 2014


        Appeal from the Judgment of Sentence August 19, 2014
             In the Court of Common Pleas of York County
          Criminal Division at No(s): CP-67-CR-0003355-2014
____________________________________________________________
J-S15039-15, J-S15040-15, J-S15042-15, J-S15043-15




COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellant

                  v.

NATHAN MICHAEL MINNICH

                       Appellee                   No. 1740 MDA 2014


       Appeal from the Judgment of Sentence September 18, 2014
              In the Court of Common Pleas of York County
          Criminal Division at No(s): CP-67-CR-0004281-2014
____________________________________________________________



COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellant

                  v.

DUSTIN BLAKELY GROFF

                       Appellee                   No. 1742 MDA 2014


       Appeal from the Judgment of Sentence September 16, 2014
              In the Court of Common Pleas of York County
          Criminal Division at No(s): CP-67-CR-0004054-2014


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED MARCH 20, 2015

     In each of these cases, the trial court sentenced the defendants to 90

days – 6 months’ imprisonment for their second driving under the influence




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("DUI")1 offenses despite their refusal to submit to chemical testing.            The

trial court determined that each defendant’s maximum term of imprisonment

was     six   months    under    75   Pa.C.S.    §   3803(a),   notwithstanding   the

Commonwealth’s objection that a second DUI offense with a refusal to

submit to blood testing is a first degree misdemeanor that carries a

maximum of five years. In each case, the trial court wrote in its Pa.R.A.P.

1925(a)       opinion   that    Commonwealth          v.   Musau,    69   A.3d    754

(Pa.Super.2013), mandated that each defendant’s sentence could not

exceed a maximum of six months.

        The Commonwealth timely appealed each defendant’s sentence on the

ground that the maximum sentence for second DUI offenders who refuse to

submit to blood testing is five years.2 We affirm each judgment of sentence

based on this Court's decision in Musau.

        The facts in each case are straightforward:

        Commonwealth v. Weipert: On January 16, 2014, Bryan Weipert was

arrested for DUI, his second such offense, but he refused to submit to blood

testing.      On October 15, 2014, following a guilty plea, the trial court

sentenced Weipert to 90 days -- 6 months’ imprisonment.

        Commonwealth v. Stewart: On April 26, 2014, Kenneth Stewart was

arrested for DUI, his second such offense, but he refused to submit to blood

____________________________________________


1
    75 Pa.C.S. § 3802.
2
    By separate order, we have consolidated these appeals sua sponte.



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testing.   On August 19, 2014, following a guilty plea, the trial court

sentenced Stewart to 90 days -- 6 months’ imprisonment.

      Commonwealth v. Minnich: On May 26, 2014, Nathan Minnich was

arrested for DUI, his second such offense, but he refused to submit to blood

testing.   On September 18, 2014, following a guilty plea, the trial court

sentenced Minnich to 90 days -- 6 months’ imprisonment.

      Commonwealth v. Groff: On May 29, 2014, Dustin Groff was arrested

for DUI, his second such offense, but he refused to submit to blood testing.

On September 16, 2014, following a guilty plea, the trial court sentenced

Groff to 90 days -- 6 months’ imprisonment.

      Pursuant to Musau, we conclude that the trial court correctly limited

the defendant’s sentence in each case to six months.        The trial court in

Musau found the defendant guilty of DUI, and because the defendant

refused testing and had a prior DUI conviction, the trial court graded his

offense as a first-degree misdemeanor pursuant to 75 Pa.C.S. § 3803(b)(4)

and sentenced him to a minimum of 90 days and a maximum of 5 years’

imprisonment.

      This Court vacated the defendant’s sentence on the ground that his

maximum sentence under section 3803(a) was six months.             We observed

that the relevant provisions of section 3803 provide as follows:




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           (a)   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.

Id. (emphasis added). We acknowledged that section 3803(a)(4) graded his

offense as a first degree misdemeanor, which normally carries a maximum

sentence of five years’ imprisonment under 18 Pa.C.S. § 106(b)(6) and (e).

We continued, however, that the plain language of section 3803(a)(1)

(bolded above), particularly its use of “notwithstanding the provisions of

subsection (b),” restricted the defendant’s maximum sentence to six

months. We stated:

           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
           Court has defined ‘notwithstanding’ as ‘regardless
           of.’ See City of Philadelphia v. Clement & Muller,
           [] 715 A.2d 397, 399 (1998) (holding that the plain

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           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., 69 A.3d at 757-58.

      At present, our Supreme Court is reviewing the precise question at

issue in this case – whether the maximum sentence under section 3803 for a

second-time DUI offender who refuses blood testing is six months’

imprisonment or five years’ imprisonment. Commonwealth v. Mendez, 32

EAP 2013. The law may or may not change depending on the outcome of

Mendez, but as of this date, Musau is the controlling decision on this

subject.

      For these reasons, we affirm each judgment of sentence in these

consolidated appeals.

      Judgments of sentence affirmed.




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     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2015




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