Com. v. Baker, W. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 838 MDA 2014
:
WILLIAM E. BAKER :
Appeal from the Judgment of Sentence, April 17, 2014,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0000771-2014
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 16, 2015
The Commonwealth appeals from the judgment of sentence of
April 17, 2014. We affirm.
On April 17, 2014, appellee pled guilty to one count each of fleeing
and eluding, driving under the influence (“DUI”) -- refusal, and driving with
a suspended license -- DUI related. Appellee’s DUI -- refusal was a second
offense. The trial court imposed an aggregate sentence of 18 to 30 months’
incarceration, including a 3 to 6-month sentence on count 2, DUI -- refusal.
The Commonwealth filed a notice of appeal on May 14, 2014. The
Commonwealth complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and
the trial court has filed an opinion.
The Commonwealth argues that the statutory maximum for a second
offense refusal DUI is 5 years, not 6 months as the trial court stated. (See
* Former Justice specially assigned to the Superior Court.
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notes of testimony, 4/17/14 at 2 (“We are bound to follow the law as set
forth by the Appellate Courts to our best ability to do so. It is a 6-month
maximum, not a 5-year maximum.”).)
This issue was directly addressed by this court in Commonwealth v.
Musau, 69 A.3d 754 (Pa.Super. 2013), wherein we concluded that a
defendant convicted of a second-time DUI under 75 Pa.C.S.A. § 3802(a)(1),
and who refused the breath test could only be sentenced to a maximum of
6 months’ imprisonment. Although the Commonwealth contends that
Musau was wrongly decided, we are bound by its holding. See
Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa.Super. 2006), appeal
denied, 946 A.2d 686 (Pa. 2008), cert. denied, 555 U.S. 881 (2008) (“It is
beyond the power of a Superior Court panel to overrule a prior decision of
the Superior Court”) (citation omitted). See also Commonwealth v.
Concordia, 97 A.3d 366, 370 n.2 (Pa.Super. 2014) (criticizing Musau but
acknowledging its binding effect).
The Commonwealth cites Commonwealth v. Barr, 79 A.3d 668(Pa.Super. 2013), which is wholly inapposite. Barr had nothing to do with
the maximum legal sentence for a second offense refusal DUI. Rather, Barr
held that because the implied consent warnings are a necessary component
of a valid “refusal,” and since the defendant’s alleged refusal to submit to a
chemical test increased the penalty for the defendant’s DUI conviction
beyond the prescribed statutory maximum, the issue concerning the
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defendant’s alleged refusal needed to be submitted to a jury and proved
beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466(2000), demands that the trial court submit to the jury -- and the
Commonwealth prove beyond a reasonable doubt -- the issue of whether the
officer informed the defendant of the requisite warnings. Barr can in no
way be construed as invalidating Musau, nor could it have, as Barr was
likewise a panel decision.
The Commonwealth also notes that our supreme court recently
granted allowance of appeal in Commonwealth v. Mendez, 71 A.3d 250(Pa. 2013), to address the issue. However, the grant of allowance of appeal
in Mendez cannot be viewed as an intention by our supreme court to
overrule Musau. Even when our supreme court has granted an appeal for
purposes of determining the question before the panel deciding a case, the
prior panel’s decision nevertheless remains binding. Pepe, 897 A.2d at 465(we cannot disregard a previous decision of this court simply because the
question is currently “on appeal” to our supreme court).
As the trial court did not err in imposing sentence pursuant to Musau,
we will affirm the judgment of sentence.
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Judgment of sentence affirmed.1
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
1
We note that on October 29, 2014, the Governor signed Act 189 of 2014
into law, which amends various provisions of the Motor Vehicle Code,
including Section 3803(a). The purpose of Act 189 was clearly to remedy or
correct the language that this court interpreted in Musau. The amended
statute, which was to take effect immediately, meaning October 29, 2014,
allows for a greater statutory maximum of up to 5 years’ imprisonment for a
repeat DUI conviction with refusal.
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