Com. v. Wilson, S.

J-A35024-14
2015 PA Super 36COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVE EDWARD WILSON,
Appellant No. 1976 WDA 2013
Appeal from the Judgment of Sentence entered November 14, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009856-2013
BEFORE: BENDER, P.J.E., BOWES, J., and ALLEN, J.
DISSENTING OPINION BY BENDER, P.J.E.: FILED FEBRUARY 18, 2015
I must respectfully dissent from the Majority’s conclusion that the trial
court did not impose an illegal sentence when it sentenced Appellant to a
term of twelve months’ probation. Having analyzed the applicable statute, I
believe the provisions dictate that the maximum sentence the court could
have imposed was six months’ supervision. Accordingly, I would vacate
Appellant’s judgment of sentence, and remand for resentencing.
In Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), our
Court analyzed a statute that, as here, simultaneously graded a DUI offense
as a first-degree misdemeanor, and set a six-month maximum sentence for
that offense. Relying on the rules of statutory construction, this Court held
that the maximum sentence for that offense was six months,
notwithstanding the fact that the maximum sentence for a first-degree
misdemeanor is five years.
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Musau involved the interpretation of 75 Pa.C.S. §§ 3803 (a)(1), and
(b)(4). The first-degree misdemeanor grading was specified by subsection
(b)(4) of the statute. Subsection (a)(1), which specified the six-month
maximum sentence, began, “Notwithstanding the provisions of subsection
(b)….” 75 Pa.C.S. §§ 3803(a)(1). As “notwithstanding” means “regardless
of,” this Court interpreted the statute to read the six-month mandatory
sentence in (a) applied regardless of the enhanced grading in (b).
Consequently, the plain language of that statute explicitly dictates both
enhanced grading and a six-month maximum sentence.
I acknowledge that the provisions before us, 75 Pa.C.S. §§ 3803
(b)(1) and (b)(5), are not identical to the provisions in Musau. As in
Musau, the provisions before us also specify a six-month maximum
sentence, and the direct grading of the offense in question as a first-degree
misdemeanor. However, the provisions in the instant case do not contain
signaling language such as “notwithstanding,” or its opposite, “except as
provided in,” to guide us in determining how the subsections relate to one
another.
Nevertheless, I believe that by applying the analysis supporting the
Musau Court’s holding, the statute in the instant case also dictates the
application of a six-month maximum sentence. Therefore, I am constrained
to dissent from the Majority’s decision.
The provisions at issue are as follows. 75 Pa.C.S. § 3803 (b)(1) states
in applicable part: “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
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months.” 75 Pa.C.S. § 3803 (b)(5) states: “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.”
I do not believe that the language of the provisions in the instant case
is unclear, even though it does not contain the word “notwithstanding.” In
fact, the Musau Court noted that the plain language of the words of the
statute in the allegedly conflicting provisions actually dealt with two discrete
matters that should not be conflated, i.e., grading and sentencing. This
Court acknowledged that it is “entirely possible for the legislature to have
different motives” in dealing with these matters separately (and
acknowledged several occasions on which the legislature had chosen to
elevate the grading of an offense without enhancing the punishment).
Musau, 69 A.3d at 758. As such, it cannot be said that an interpretation
giving effect to both of the provisions in question violates the rules of
statutory interpretation by dictating “a result that is absurd, impossible of
execution or unreasonable.” 1 Pa.C.S. § 1922. Our Court has held the
precise result dictated by the instant statute – a DUI graded as a first-
degree misdemeanor with a maximum sentence of six months – is not
absurd.1 Musau, 69 A.3d at 758. Moreover, even if we conclude that the
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1
In its Opinion, the Majority states that “Musau has been called into doubt”
by a subsequent decision of this Court. Majority Opinion at 8 n.3. The
Majority refers to dicta in a footnote regarding the applicability of section
3803’s provisions to defendants who refuse BAC testing, which is not an
issue in the instant case. Commonwealth v. Concordia, 97 A.3d 366,
369 n. 2 (Pa Super. 2014). Moreover, that footnote concludes,
(Footnote Continued Next Page)
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provisions in question could not be reconciled, the reasoning supporting the
Musau Court’s holding establishes that the six-month maximum sentence
applies in the instant case. The Musau Court stated “our interpretation is
consistent with the rule that the specific trumps the general.” Id. In so
concluding, the Court stated that 18 Pa.C.S. § 106(b)(6), the provision that
makes five years the maximum sentence for first-degree misdemeanors,
was a general provision. The Musau Court further concluded that 75
Pa.C.S. § 3803(a)(1), which dictated a six-month maximum sentence for the
crime the appellant was convicted of, was a specific provision.
The Musau Court could have analyzed the ostensibly conflicting
provisions of subsections 3803 (a)(1) and (b)(4), when determining which of
the provisions in question was general and which was specific. They did not
interpret the statute in this manner. Consequently, I believe the Majority
incorrectly compares subsections (b)(1) and (b)(5) of 18 Pa.C.S. § 3803 to
determine which provision is specific and, therefore, controlling. In light of
Musau, we are required to compare 75 Pa.C.S. § 3803(b)(1) and 18 Pa.C.S.
§ 106 to make this determination.
This means that our comparison is identical to the Musau Court’s. I
believe that the outcome of our comparison must be the same as the Musau
Court’s as well. In other words, the provision amended in 2004, section
3803, is a specific provision, and the provision amended in 1972, section
106, is a general provision. Therefore, I would conclude that the trial court
_______________________
(Footnote Continued)
“Notwithstanding this interpretation, Musau is the current law and binding
on this panel.” Id.
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could have imposed a sentence of no longer than six months when it
sentenced Appellant. As Appellant’s sentence of twelve months’ probation
exceeds the statutory six-month maximum, I believe his sentence is illegal,
and I would vacate Appellant’s judgment of sentence.
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