Com. v. Blount, D.

• Court: Superior Court of Pennsylvania
• Decided: April 23, 2026
• Docket: 2729 EDA 2023
• Status: Unpublished
• Author: Olson

Opinions

J-E02003-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DYSHAWN LEE BLOUNT : No. 2729 EDA 2023

Appeal from the Judgment of Sentence Entered October 4, 2023 in the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-SA-0000273-2022

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., OLSON, J., STABILE, J., KUNSELMAN, J., MURRAY, J., KING, J., SULLIVAN, J., and LANE, J.

MEMORANDUM BY OLSON, J.:

Dyshawn Lee Blount (“the Defendant”) appeals from the judgment of

sentence entered on October 4, 2023. We vacate the Defendant’s sentence

as illegal and remand for resentencing.

The Defendant was found guilty of committing the summary offense of

driving while operating privilege is suspended or revoked because of a prior

driving under the influence of alcohol conviction (hereinafter “DUS”), under

75 Pa.C.S.A. § 1543(b)(1)(i). On October 4, 2023, the trial court sentenced

the Defendant to serve a term of one to 60 days in jail for the Section

1543(b)(1)(i) conviction. N.T. Trial, 10/4/23, at 14.

The Defendant filed a timely notice of appeal and, while the appeal was

pending, this Court sua sponte ordered the appeal to proceed en banc and J-E02003-25

consolidated the case with Commonwealth v. Lee, 1471 MDA 2023. The

Defendant raises one claim on appeal:

Did the trial court err in imposing an illegal sentence for the conviction of [DUS under Section 1543(b)(1)(i),] because the sentencing provision is unconstitutionally vague in violation of state and federal due process?

Appellant’s Brief at 4.

The Defendant claims that his sentence is illegal. “If no statutory

authorization exists for a particular sentence, that sentence is illegal and

subject to correction. An illegal sentence must be vacated.” Commonwealth

v. Whalley, 326 A.3d 948, 950 (Pa. Super. 2024) (quotation marks and

citations omitted); see also Commonwealth v. Prinkey, 277 A.3d 554, 563

(Pa. 2022) (“the appellant's challenge implicates the legality of his sentence”

where, “assuming the appellant's claim prevails, the result would be that the

trial court lacked authority to impose the sentence at issue”);

Commonwealth v. Foster, 960 A.2d 160, 168 (Pa. Super. 2008) (the

“Commonwealth's assertion of error by a trial court in failing to apply a

mandatory minimum sentence relates to its legality”).

“A claim that the trial court erroneously imposed an illegal sentence is

a question of law and, as such, our scope of review is plenary and our standard

of review is de novo.” Whalley, 326 A.3d at 950 (quotation marks and

citations omitted). “Moreover, challenges to an illegal sentence can never be

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waived and may be reviewed sua sponte by this Court.” Id. (quotation marks

and citations omitted).

Resolving the issue on appeal requires that we interpret various

statutes. “Our task is guided by the sound and settled principles set forth in

the Statutory Construction Act, including the primary maxim that the object

of statutory construction is to ascertain and effectuate legislative intent.”

Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005); see also 1

Pa.C.S.A. § 1921(a). “In pursuing that end, we are mindful that when the

words of a statute are clear and free from all ambiguity, the letter of it is not

to be disregarded under the pretext of pursuing its spirit.” Shiffler, 879 A.2d

at 189 (quotation marks, citations, and corrections omitted); see also 1

Pa.C.S.A. § 1921(b).

When ascertaining the intent of the General Assembly, we presume,

among other things, that the General Assembly does not intend “a result that

is absurd, impossible of execution or unreasonable” or one which “violate[s]

the Constitution.” 1 Pa.C.S.A. § 1922(1) and (3). Moreover, we “presume

that when enacting legislation, the General Assembly is familiar with extant

law.” Commonwealth v. Edwards, 256 A.3d 1130, 1137 (Pa. 2021).

“Statutes in pari materia shall be construed together, if possible, as one

statute.” 1 Pa.C.S.A. § 1932. Nevertheless, relevant to the case at bar is the

following principle:

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Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, 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.

1 Pa.C.S.A. § 1933.

Finally, we observe that, in this case, we are interpreting penal statutes.

Penal statutes must be strictly construed. See 1 Pa.C.S.A. § 1928(b)(1). As

our Supreme Court has explained, the principle of strict construction “does

not require that [we] give the words of a statute their ‘narrowest possible

meaning,’ nor does it override the general principle that the words of a statute

must be construed according to their common and approved usage.”

Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011) (some quotation

marks and citations omitted). “Rather, where doubt exists concerning the

proper scope of a penal statute, it is the accused who should receive the

benefit of such doubt.” Id. (quotation marks and citations omitted).

The Defendant was convicted of DUS under 75 Pa.C.S.A.

§ 1543(b)(1)(i). Section 1543(b)(1)(i) declares:

A person who drives a motor vehicle on a highway or trafficway of this Commonwealth at a time when the person's operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) or the former section 3731, because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3802 or former section 3731 or is suspended under section 1581 (relating to Driver's License

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Compact) for an offense substantially similar to a violation of section 3802 or former section 3731 shall, upon a first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $500 and to undergo imprisonment for a period of not less than 60 days nor more than 90 days.

75 Pa.C.S.A. § 1543(b)(1)(i) (effective December 24, 2018 to January 2,

2024).1

On appeal, the Defendant claims that Section 1543(b)(1)(i) is

unconstitutionally vague in violation of state and federal due process, as the

statute fails to specify a maximum term of imprisonment. See The

Defendant’s Brief at 16; see also Commonwealth v. Bell, 645 A.2d 211,

215 n.9 (Pa. 1994) (“We believe that fairness requires that a defendant be

notified of the maximum sentence he could face for committing a particular

offense. Otherwise, the trial judge is free to impose an arbitrary or

discriminatory sentence”). Although we reject the Defendant’s precise

argument on appeal, we conclude that his sentence is indeed illegal.

Therefore, we vacate the Defendant’s judgment of sentence and remand for

resentencing.

To resolve the illegal sentencing claim on appeal, we must interpret the

sentencing language contained in Section 1543(b)(1)(i) and, specifically, the

language declaring that a person convicted of violating Section 1543(b)(1)(i)

“shall, upon a first conviction, be guilty of a summary offense and shall be

sentenced . . . to undergo imprisonment for a period of not less than 60 days

____________________________________________

1 As discussed in greater detail, infra, Section 1543(b)(1)(i) was amended

on December 22, 2025.

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nor more than 90 days.” See id. Read in isolation, this language is

susceptible to a variety of divergent interpretations. Possible interpretations

of the phrase include: 1) the language delineates the range within which the

maximum sentencing term must fall (thus permitting, for example, a possible

sentence of 45 to 90 days in jail or, as occurred in this case, a sentence of

zero days in jail); 2) the language creates the range within which the minimum

sentencing term must fall (thus requiring a minimum sentence of between 60

and 90 days in jail, but not requiring any particular maximum sentence); 3)

the language mandates a flat sentence, where the sentence must fall within

the 60- to 90-day range (thus permitting, for example, a flat sentence of 70

days in jail); and, 4) the language defines a sentencing range that mandates

a 60-day minimum sentence and a 90-day statutory maximum sentence and

that demands the trial court impose a minimum and a maximum sentence,

rather than a flat sentence (thus permitting, for example, a possible sentence

of 70 to 80 days in jail). We find that our Supreme Court precedent, the

relevant statutes, and our rules of statutory construction permit only the final

interpretation listed above. Thus, we conclude that the phrase “shall be

sentenced . . . to undergo imprisonment for a period of not less than 60 days

nor more than 90 days” in Section 1543(b)(1)(i) defines a sentencing range

that mandates a 60-day minimum sentence and a 90-day statutory maximum

sentence, and forbids a flat sentence. In explaining this conclusion, we

consider the possible interpretations of the relevant statutory language as

follows.

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A) Maximum Sentencing Range.

The trial court in the case at bar concluded that the phrase “shall be

sentenced . . . to undergo imprisonment for a period of not less than 60 days

nor more than 90 days” merely delineates the range within which the

maximum sentencing term must fall for a Section 1543(b)(1)(i) DUS violation.

This conclusion was mandated by our opinion in White and, consistent with

White, the trial court sentenced the Defendant to serve a term of one to 60

days for violating Section 1543(b)(1)(i). We, however, conclude that White’s

holding is contrary to our Supreme Court’s precedent in Commonwealth v.

Eid, 249 A.3d 1030 (Pa. 2021).

In White, the defendant was convicted of DUS under Section

1543(b)(1)(i) and sentenced to serve a term of 30 to 60 days in jail. White,

268 A.3d at 500. On appeal, White claimed that Section 1543(b)(1)(i) was

“unconstitutionally vague because it fails to specify the range of available

sentences with sufficient clarity.” Id. (quotation marks omitted); see also

Commonwealth v. Bell, 645 A.2d 211, 215 n.9 (Pa. 1994) (“We believe that

fairness requires that a defendant be notified of the maximum sentence he

could face for committing a particular offense. Otherwise, the trial judge is

free to impose an arbitrary or discriminatory sentence”). The three-judge

panel in White rejected the constitutional claim and concluded that “the

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phrase ‘not less than 60 days nor more than 90 days’ described the potential

maximum sentenc[ing]” range for a Section 1543(b)(1)(i) DUS violation.

White, 268 A.3d at 501. Thus, White concluded that, since “Section

1543(b)(1)(i) specifies the range of a defendant’s potential maximum

sentence with sufficient clarity,” the statute was not unconstitutional. Id.

White’s analysis appeared solely concerned with the constitutional

question presented on appeal. Nevertheless, White specifically declared that

Section 1543(b)(1)(i)’s phrase “not less than 60 days nor more than 90 days”

“described the potential maximum sentenc[ing]” range for a Section

1543(b)(1)(i) DUS violation. See White, 268 A.3d at 501. Further, the panel

affirmed White’s sentence of 30 to 60 days in jail, presumably because White’s

60-day maximum sentence fell within Section 1543(b)(1)(i)’s “60 to 90 day”

“maximum sentencing range” and White’s 30-day minimum sentence did not

“exceed one-half of the maximum sentence imposed.” See 42 Pa.C.S.A.

§ 9756(b)(1); see also Whalley, 326 A.3d at 950 (authorizing sua sponte

appellate review of illegal sentences). Thus, White’s conclusion that the

phrase “not less than 60 days nor more than 90 days . . . described the

potential maximum sentenc[ing]” range for a Section 1543(b)(1)(i) DUS

violation appears essential to its holding and bound the trial court in the case

at bar.

White’s holding in this regard derives from 42 Pa.C.S.A. § 9756(b)(1)’s

general requirement, which mandates that a sentencing court “impose a

minimum sentence of confinement which shall not exceed one-half of the

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maximum sentence imposed,” as well as our Supreme Court’s 1959 opinion

in Commonwealth v. Glover, 156 A.2d 114 (Pa. 1959).

In Glover, the defendant was “convicted of giving away drugs in

violation of the Drug Act of 1957” and sentenced to serve a term of five to ten

years in prison. Id. at 115. The Glover Court noted that, “[a]t the time of

sentencing the trial judge said that he believed the sentence to be ‘quite

excessive’ and was imposing it only because he believed it was mandatory

under § 12 of the Act.” Id. at 115-116. This statute declared:

Any person who sells, dispenses or gives away any drugs in violation of the provisions of this act shall be guilty of a felony, and, upon conviction thereof, shall be sentenced as follows: for a first offense, to pay a fine not exceeding five thousand dollars ($5000) and to undergo imprisonment by separate or solitary confinement at labor of not less than five (5) years and not exceeding ten (10) years.

See id. at 116 (quotation marks and citations omitted).

The Supreme Court accepted review to consider the meaning of the

phrase “shall be sentenced . . . to undergo imprisonment . . . of not less than

[five] years and not exceeding [ten] years.” See id.

The Glover Court held that the statutory language established a

maximum sentencing range of between five and ten years in prison, where

“the precise maximum between those limitations [was] in the discretion of the

[sentencing] court.” Id. Further, the Court declared: “[t]he precise minimum

sentence is also in the discretion of the sentencing judge subject only to the

requirement that it shall not exceed more than one-half the maximum

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sentence . . . and in no event more than five years.” Id. at 116-117. The

Glover Court reasoned:

This interpretation is [] borne out by the use of the phrase “and not exceeding [ten] years.” If we were to interpret this act so that the trial judge must impose a [minimum] sentence of five years and a maximum sentence of ten years, of what effect would be the words “not exceeding” ten years as applied to the maximum term? The word “sentence” when unmodified by the words “maximum” or “minimum” necessarily refers only to the maximum sentence for that is the legal sentence. The minimum sentence is merely an administrative notice by the court to the parole board that the question of parole might, at its expiration, properly be considered.

Id. at 117. Thus, the Glover Court vacated the defendant’s judgment of

sentence and remanded for resentencing, as the trial court was not required

to sentence the defendant to a term of five to ten years in prison. See id.

In its 2021 opinion in Commonwealth v. Eid, 249 A.3d 1030 (Pa.

2021), however, the Pennsylvania Supreme Court reinterpreted the language

“not less than” in a sentencing statute and – contrary to Glover – held that

the phrase, “by its plain terms, establishes a mandatory minimum term

below which a sentencing court may not fall when imposing a penalty.” Eid,

249 A.3d at 1042 (emphasis in original), citing Commonwealth v. O’Brien,

514 A.2d 618, 620 (Pa. Super. 1986) (“The words ‘not less than’ used in the

statute unambiguously connote a minimum term of imprisonment. It strains

all notions of common sense to suggest that ‘not less than’ can reasonably be

interpreted as meaning ‘maximum’”).

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In Eid, Eid was convicted of violating 75 Pa.C.S.A. § 1543(b)(1.1)(i),

which criminalizes DUS, where the individual also has a certain amount of

alcohol or controlled substance in his or her blood (hereinafter “DUS Plus”).

The relevant statute declared:

A person who has an amount of alcohol by weight in his blood that is equal to or greater than .02% at the time of testing or who at the time of testing has in his blood any amount of a Schedule I or nonprescribed Schedule II or III controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or its metabolite or who refuses testing of blood or breath and who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when the person's operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3802 or former section 3731 or because of a violation of section 1547(b)(1) or 3802 or former section 3731 or is suspended under section 1581 for an offense substantially similar to a violation of section 3802 or former section 3731 shall, upon a first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

See Eid, 249 A.3d at 1034 n.5; see also 75 Pa.C.S.A. § 1543(b)(1.1)(i)

(effective September 4, 2012 to October 19, 2018).

Eid was convicted of DUS Plus under Section 1543(b)(1.1)(i) and

sentenced to serve a term of 90 days to six months in jail for this conviction.

See Eid, 249 A.3d at 1035.

On appeal to the Supreme Court, Eid argued that the DUS Plus statute

was unconstitutionally vague, and his sentence was thus illegal, as the statute

did not define a maximum penalty for the offense. Eid, 249 A.3d at 1038;

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see also Bell, 654 A.2d at 215 n.9 (“[w]e believe that fairness requires that

a defendant be notified of the maximum sentence he could face for committing

a particular offense. Otherwise, the trial judge is free to impose an arbitrary

or discriminatory sentence”).

In analyzing Eid’s claim, the Supreme Court observed that the DUS Plus

statute declares that a person in violation of the statute “shall be sentenced

to . . . undergo imprisonment for a period of not less than 90 days” and

defines the crime as a summary offense. See Eid, 249 A.3d at 1034

(emphasis added); see also 75 Pa.C.S.A. § 1543(b)(1.1)(i). The Eid Court

initially held that the “phrase ‘not less than 90 days,’ by its plain terms,

establishes a mandatory minimum term below which a sentencing court may

not fall when imposing a penalty.” Eid, 249 A.3d at 1042 (emphasis in

original). The Eid Court observed that “the statute is silent as far as the

available maximum sentence is concerned.” Id.

In the end, the Eid Court refused the Commonwealth’s request to

“infer[] a particular [maximum] duration of punishment” in the statute and

concluded that 75 Pa.C.S.A. § 1543(b)(1.1)(i) was unconstitutionally vague,

as it failed to affix a maximum penalty for its violation. 2 Id. at 1044.

2 General sentencing terms prescribed for summary offenses under the Crimes

Code are not applicable to the Motor Vehicle Code. See 75 Pa.C.S.A. § 6502(c) (“Title 18 (relating to crimes and offenses), insofar as it relates to fines and imprisonment for convictions of summary offenses, is not applicable to [the Vehicle Code]”); 18 Pa.C.S.A. § 106(c) (defining a summary offense under the Crimes Code).

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Eid’s interpretation of the phrase “not less than” in Section

1543(b)(1.1)(i) controls this Court’s interpretation of the substantively

identical language in Section 1543(b)(1)(i). Thus, we conclude that Eid’s

holding that the “phrase ‘not less than 90 days,’ by its plain terms, establishes

a mandatory minimum term below which a sentencing court may not fall

when imposing a penalty” is in conflict with our conclusion in White, where

we held that the phase “not less than” established the floor of the maximum

sentencing range. See Eid, 249 A.3d at 1042 (emphasis in original); see

also v. O’Brien, 514 A.2d at 620 (“The words ‘not less than’ used in the

statute unambiguously connote a minimum term of imprisonment. It strains

all notions of common sense to suggest that ‘not less than’ can reasonably be

interpreted as meaning ‘maximum’”). Therefore, we conclude White is

inconsistent with Eid, to the extent White held that Section 1543(b)(1)(i)’s

phrase “not less than 60 days nor more than 90 days” “described the potential

maximum sentenc[ing]” range for a Section 1543(b)(1)(i) DUS violation. We

thus overrule this aspect of White. See Commonwealth v. Morris, 958

A.2d 569, 580 n.2 (Pa. Super. 2008) (en banc) (“[i]t is well-settled that this

Court, sitting en banc, may overrule the decision of a three-judge panel of this

Court”).

Consistent with Eid, we conclude that the phrase “not less than 60 days”

in Section 1543(b)(1)(i) “establishes a mandatory minimum term below

which a sentencing court may not fall when imposing a penalty.” See Eid,

249 A.3d at 1042 (emphasis in original). Hence, the phrase “shall be

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sentenced . . . to undergo imprisonment for a period of not less than 60 days

nor more than 90 days” does not establish a maximum sentencing range for

a Section 1543(b)(1)(i) DUS violation.

B) Minimum Sentencing Range.

As noted above, a second possible reading of the phrase “shall be

sentenced . . . to undergo imprisonment for a period of not less than 60 days

nor more than 90 days” in Section 1543(b)(1)(i) is that the language creates

a range within which a minimum sentencing term for a Section 1541(b)(1)(i)

DUS violation must fall. This interpretation of Section 1543(b)(1)(i) would

create a floor, but not a ceiling, for a Section 1543(b)(1)(i) DUS violation, thus

requiring a 60- to 90-day minimum sentence, but not requiring any particular

maximum sentence.

This interpretation of Section 1543(b)(1)(i) is untenable under Eid, as

the absence of a maximum term of imprisonment would render the statute

unconstitutionally vague. See Eid, 249 A.3d at 1044 (“the absence of a

maximum term renders the pertinent [DUS Plus] sentencing provision

unconstitutionally vague and inoperable”). As we presume “[t]hat the General

Assembly does not intend to violate the Constitution,” we conclude that this

interpretation of Section 1543(b)(1)(i) immediately fails. 1 Pa.C.S.A.

§ 1922(3).

C) Flat Sentence/Mandated Sentencing Range.

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At the outset, we hold that the relevant language in Section

1543(b)(1)(i) does not authorize a flat sentence, as the statutory language

does not expressly provide for a flat sentence. 3 Rather, the language of

Section 1543(b)(1)(i) clearly and unambiguously requires an indeterminate

sentence, with a statutorily authorized minimum and a statutorily approved

maximum sentence for a DUS violation. See Shiffler, 879 A.2d at 189 (“when

the words of a statute are clear and free from all ambiguity, the letter of it is

not to be disregarded under the pretext of pursuing its spirit”) (quotation

marks, citations, and corrections omitted); see also 1 Pa.C.S.A. § 1921(b).

Specifically, in accordance with Eid, the phrase “not less than 60 days”

in Section 1543(b)(1)(i), “by its plain terms, establishes a mandatory

minimum term below which a sentencing court may not fall when imposing

a penalty.” See Eid, 249 A.3d at 1042 (emphasis in original). Section

1543(b)(1)(i)’s phrase “nor more than 90 days” plainly creates the statutory

maximum penalty for violating Section 1543(b)(1)(i). Finally, Section

1543(b)(1)(i)’s declaration that a defendant “shall be sentenced . . . to

3 Absent an expressly stated flat sentence, we note that our Sentencing Code

generally favors an indeterminate sentence. See 42 Pa.C.S.A. § 9756. We further assume that the General Assembly knows how to adopt a flat sentence if it so chooses. To be sure, although our focus in this appeal has been upon Section 1543(b)(1)(i)’s requirement that a defendant “shall be sentenced . . . to undergo imprisonment for a period of not less than 60 days nor more than 90 days,” we note that Section 1543(b)(1)(i) also requires that the court sentence the defendant “to pay a fine of $500.” See 75 Pa.C.S.A. § 1543(b)(1)(i). Thus, in the same sentence under consideration, the General Assembly mandated a flat fine of $500.

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undergo imprisonment for a period of not less than 60 days nor more than 90

days,” unambiguously requires an indeterminate sentence, with a mandatory

minimum sentence of 60 days and a statutory maximum sentence of 90 days

for a DUS violation.

We recognize that our interpretation of Section 1543(b)(1)(i) is in

conflict with 42 Pa.C.S.A. § 9756(b)(1)’s general requirement that a criminal

sentence must have a minimum term that is no greater than half of its

maximum term. See 42 Pa.C.S.A. § 9756(b)(1) (“The court shall impose a

minimum sentence of confinement which shall not exceed one-half of the

maximum sentence imposed”). Nevertheless, the statutory language in

Section 1543(b)(1)(i) is explicit and clear. Further, under our rules of

statutory construction:

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, 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.

In applying 1 Pa.C.S.A. § 1933 to the case at bar, we note that “the

minimum-maximum provision of Section 9756(b)(1) is the general provision

because it applies to all criminal sentences.” Commonwealth v. Ramos, 83

A.3d 86, 92 (Pa. 2013). Section 1543(b)(1)(i)’s sentencing language

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constitutes the “special provision,” as this language only applies to DUS

offenders. See id. Moreover, Section 1543(b)(1)(i) demands the imposition

of an indeterminate sentence, with a statutorily approved minimum sentence

of “not less than 60 days” and a statutorily authorized maximum sentence of

90 days. This sentencing range is, by its express terms, in irreconcilable

conflict with Section 9756(b)(1)’s general requirement that a criminal

sentence have a minimum term that is no greater than one-half of its

maximum term. See 42 Pa.C.S.A. § 9756(b)(1). As 1 Pa.C.S.A. § 1933

instructs: “[i]f the conflict between [a general and a special] provision[] is

irreconcilable, 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.” 1 Pa.C.S.A. § 1933.

“[T]he minimum-maximum provision of [42 Pa.C.S.A. § 9756(b)(1)]

was enacted in 1974.” See Ramos, 83 A.3d at 93; see also Ramos, 83 A.3d

at 92 (“in 1974, the Legislature provided for the indeterminate sentence

scheme applicable to all criminal sentences. 42 Pa.C.S.A. § 9756(b)(1)

(originally enacted as 18 Pa.C.S.A. § 1356(b))”). The relevant language of 75

Pa.C.S.A. § 1543(b)(1)(i) – providing that a DUS offender “shall be sentenced

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. . . to undergo imprisonment for a period of not less than 60 days nor more

than 90 days” – originally appeared in Section 1543 on February 1, 2004. 4

Since the special provision of Section 1543(b)(1)(i) was enacted after

the general minimum-maximum provision of 42 Pa.C.S.A. § 9756(b)(1) – and

since the two provisions are in irreconcilable conflict – we conclude that “the

special provision[ of Section 1543(b)(1)(i)] shall prevail and shall be

construed as an exception to the general provision” of Section 9756(b)(1). 1

Pa.C.S.A. § 1933; see also Edwards, 256 A.3d at 1137 (“we . . . presume

that when enacting legislation, the General Assembly is familiar with extant

law”). As such, we conclude that Section 1543(b)(1)(i) creates an

unambiguous sentencing range for a Section 1543(b)(1)(i) DUS violation,

where the minimum sentence must be “not less than 60 days,” the statutory

maximum sentence is 90 days, and the sentence must be indeterminate.

Since we conclude that Section 1543(1)(1) provides a statutory

maximum penalty for its violation, we hold that the statute “specif[ies] the

range of available sentences with sufficient clarity” and “afford[s] sufficient

notice for due process purposes.” See Eid, 249 A.3d at 1044 (quotation

4 Prior to February 1, 2004, Section 1543 declared that a DUS violation was

“a summary offense and [the violator] shall be sentenced . . . to undergo imprisonment for a period of not less than 90 days.” See 75 Pa.C.S.A. § 1543(b)(1) (effective December 3, 2002 to January 31, 2004). Effective February 1, 2004, the DUS statute was amended to declare that, upon conviction, a DUS violator “shall be sentenced . . . to undergo imprisonment for a period of not less than 60 days nor more than 90 days.” See 75 Pa.C.S.A. § 1543(b)(1) (effective February 1, 2004 to September 3, 2012).

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marks and citations omitted). Thus, the statute is constitutional and the

Defendant’s claim to the contrary fails. Nevertheless, we sua sponte conclude

that the Defendant’s sentence of one to 60 days in jail violates Section

1543(b)(1)(i) and is illegal.5 See Whalley, 326 A.3d at 950 (“challenges to

an illegal sentence can never be waived and may be reviewed sua sponte by

this Court”) (quotation marks and citations omitted). We are, therefore,

5 We note that, effective December 22, 2025, Section 1543(b)(1)(i) was amended to provide for a flat sentence of 60 days in jail. See 75 Pa.C.S.A. § 1543(b)(1)(i) (effective December 22, 2025) (providing that a person convicted of DUS under Section 1543(b)(1)(i) “shall, upon a first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $500 and to undergo imprisonment for a period of 60 days”). Effective December 22, 2025, 42 Pa.C.S.A. § 9756 was also amended. Specifically, 42 Pa.C.S.A. § 9756(c.2) was added and provides, in relevant part: “[n]otwithstanding any other provision of law, a court may impose a determinate sentence under 75 Pa.C.S. (relating to vehicles) where the violation is graded as a summary offense and the maximum sentence of total confinement is 90 days or less.” 42 Pa.C.S.A. § 9756(c.2) (effective December 22, 2025). Although this “notwithstanding” language is newly added and was not present in the statutes we interpreted today, “there is no indication that the Legislature, in failing to include the same prefatory language in [the earlier version of Section 9756 or in 75 Pa.C.S.A. § 1543], demonstrated a manifest intent for courts to ignore other rules of statutory construction, like Section 1933.” See Ramos, 83 A.3d at 432. “Accordingly, under 1 Pa.C.S.A. § 1933, the general provision of 42 Pa.C.S.A. § 9756(b)(1), regarding minimum and maximum sentences, must yield to the specific sentencing provision[] of” Section 1543(b)(1)(i). Therefore, as explained above, at the time the Defendant was sentenced, the trial court was required to sentence the Defendant to serve an indeterminate term of “not less than 60 days nor more than 90 days” in jail, thus rendering the Defendant’s current sentence illegal. See Ramos, 83 A.3d at 433.

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required to vacate the Defendant’s judgment of sentence and remand for

resentencing.6

Judgment of sentence vacated. Case remanded. Jurisdiction

relinquished.

6 As noted above, effective December 22, 2025, Section 1543(b)(1)(i) was amended to provide for a flat sentence of 60 days in jail. See 75 Pa.C.S.A. § 1543(b)(1)(i) (effective December 22, 2025). Our rules of statutory construction contain general presumptions against granting statutes retroactive effect. See 1 Pa.C.S.A. § 1926 (“[n]o statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly”); 1 Pa.C.S.A. § 1953 (“[w]henever a section or part of a statute is amended, the amendment shall be construed as merging into the original statute, become a part thereof, and replace the part amended, and the remainder of the original statute and the amendment shall be read together and viewed as one statute passed at one time; but the portions of the statute which were not altered by the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective”). Nevertheless, with respect to ameliorative amendments to sentencing statutes – which reduce the criminal penalty after the defendant commits the crime but before he is sentenced – we have held that the defendant is entitled to receive the benefit of the reduced penalty. See Commonwealth v. Swavely, 322 A.2d 710 (Pa. Super. 1974) (the defendant was arrested for DUS and, at the time of his arrest, the statute provided for a possible sentence of “not more than [three] years” in prison; prior to sentencing, the legislature amended the DUS statute to provide a maximum term of “not more than [two] months” in jail; we held that the trial court “erred in sentencing [the defendant] under the [more punitive and] repealed penalty provision of” the DUS statute, as the amendment to the sentencing provision was ameliorative and the relevant statute “did not contain any ‘saving clause’ to continue the effect of the prior repealed penalty provision”); see also Commonwealth ex rel. Milk v. Maroney, 181 A.2d 702 (Pa. Super. 1962) (holding: the defendant is entitled to benefit from an ameliorative amendment to a sentencing provision, where the amendment occurred after the defendant committed the crime, but before sentencing).

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President Judge Lazarus, Judge Kunselman, Judge Murray, Judge King,

Judge Sullivan, and Judge Lane join this Memorandum.

Judge Stabile files a Dissenting Memorandum which President Judge

Emeritus Panella joins.

Date: 4/23/2026

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