Com. v. Weipert, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-S15039-15, J-S15040-15, J-S15042-15, J-S15043-15
("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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