J-S07021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
ALLEN RAY ETTINGER,
Appellee No. 1165 MDA 2014
Appeal from the Judgment of Sentence of June 16, 2014 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0001996-2014
BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 13, 2015
The Commonwealth of Pennsylvania appeals from the judgment of
sentence entered on June 16, 2014. We affirm.
On February 4, 2014, Mr. Ettinger was arrested for driving under the
influence of alcohol (hereinafter “DUI”). The Commonwealth later charged
Mr. Ettinger with DUI,1 which was enhanced based upon the averment that
Mr. Ettinger refused to submit to chemical testing of his breath or blood.
Commonwealth’s Information, 4/25/14, at 1; see also 75 Pa.C.S.A. § 1547.
On June 16, 2014, Mr. Ettinger pleaded guilty to DUI, pursuant to 75
Pa.C.S.A. § 3802(a)(1). The conviction constituted Mr. Ettinger’s second
DUI offense within the prior ten years. N.T. Sentencing, 6/16/14, at 1.
____________________________________________
1 75 Pa.C.S.A. § 3802(a)(1). J-S07021-15
Moreover, within Mr. Ettinger’s guilty plea, Mr. Ettinger admitted that he
refused to submit to chemical testing on the night in question. Id. at 5; 75
Pa.C.S.A. § 1547.
That same day, the trial court sentenced Mr. Ettinger to six months’
intermediate punishment, consistent with this Court’s holding in
Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013) (construing 75
Pa.C.S.A. § 3803(a)(1) and § 3803(b)(4) and holding that a defendant who
was convicted of a second-offense DUI under 75 Pa.C.S.A. § 3802(a)(1) and
who refused chemical testing could only be sentenced to the statutory
maximum term of six months’ imprisonment, as set forth in 75 Pa.C.S.A.
§ 3803(a)(1) – even though the crime is graded as a first-degree
misdemeanor and even though a first-degree misdemeanor is generally
subject to a five-year mandatory minimum sentencing term). Further,
during Mr. Ettinger’s sentencing hearing, the Commonwealth acknowledged
that Musau bound the trial court and that, under Musau, the trial court was
“obligated to impose a six-month maximum” sentence upon Mr. Ettinger.
N.T. Sentencing, 6/16/14, at 2. However, the Commonwealth objected to
the trial court’s sentence for purposes of issue preservation. Id.
The Commonwealth filed a timely notice of appeal from Mr. Ettinger’s
judgment of sentence. The Commonwealth now raises one claim on appeal:
Whether the sentencing court erred when it held that six months for [Mr. Ettinger’s DUI] (refusal) ([second] offense) conviction was the statutory maximum allowable sentence it could consider[?]
-2- J-S07021-15
Commonwealth’s Brief at 4 (some internal capitalization omitted).
The Commonwealth’s claim fails because we, like the trial court, are
bound by our holding in Musau.
At the time Mr. Ettinger committed his DUI offense, the relevant
portions of the DUI gradation statute read:
(a) Basic offenses.—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.
-3- J-S07021-15
75 Pa.C.S.A. § 3803.2 The statutory maximum sentence for a misdemeanor
of the first degree is generally five years in prison. 18 Pa.C.S.A.
§ 106(b)(6).
In Commonwealth v. Musau, this Court was provided with an
opportunity to interpret the above-quoted version of 75 Pa.C.S.A. § 3803(a)
and (b)(4). In Musau, Mr. Musau was convicted of a second-offense DUI,
where he refused to submit to chemical testing. Musau, 69 A.3d at 755-
756. At Mr. Musau’s sentencing hearing, the trial court looked to 75
Pa.C.S.A. § 3803(b)(4) and concluded that Mr. Musau’s DUI conviction was
to be graded as a first-degree misdemeanor. Id.; see also 75 Pa.C.S.A.
§ 3803(b)(4). Further, the trial court held that the general, five-year
statutory maximum sentencing term for first-degree misdemeanors – as
found in 18 Pa.C.S.A. § 106(b)(6) – applied to Mr. Musau’s conviction.
Musau, 69 A.3d at 755-756. In accordance with this construction, the trial
court sentenced Mr. Musau to serve a term of 90 days to 5 years in jail. Id.
at 756.
2 In response to Musau, the Pennsylvania Legislature amended 75 Pa.C.S.A. § 3803(a) by deleting the phrase “[n]otwithstanding the provisions of” and replacing that phrase with the words “[e]xcept as provided in.” See 75 Pa.C.S.A. § 3803 (effective October 27, 2014). However, since the amendment to Section 3803(a) was effective on October 27, 2014, and since Mr. Ettinger committed his crime before the effective date of the amendment, Mr. Ettinger was subject to the prior version of the statute.
-4- J-S07021-15
On appeal to this Court, Mr. Musau claimed that his sentence was
illegal because it exceeded the six-month statutory maximum penalty, as
provided in 75 Pa.C.S.A. § 3803(a)(1). Musau, 69 A.3d at 756. This Court
agreed with Mr. Musau. Specifically, the Musau Court read 75 Pa.C.S.A.
§ 3803(a) and (b)(4) in accordance with principles of statutory construction
and held that a defendant convicted of a second-offense DUI under 75
Pa.C.S.A. § 3802(a)(1), who refused chemical testing, could only be
sentenced to the statutory maximum term of six months’ imprisonment, as
provided in Section 3803(a)(1). Musau, 69 A.3d at 758.
Important to the Musau Court’s holding was the fact that, in drafting
75 Pa.C.S.A. § 3803(a), the Pennsylvania Legislature employed the phrase
“[n]otwithstanding the provisions of subsection (b);” and, as the Musau
Court noted, the term “notwithstanding” is defined, variously, as “in spite
of,” “although,” or “regardless of.” Id. at 757. The Musau Court held that,
by employing the phrase “notwithstanding the provisions of subsection (b)”
in Section 3803(a), the Legislature intended for Section 3803(a) to apply
“regardless of” what was contained in Section 3803(b). Id. at 757-758.
Thus, even though Section 3803(b)(4) graded Mr. Musau’s crime as a first-
degree misdemeanor, the Musau Court concluded that the statutory
maximum term of six months’ imprisonment – contained in Section 3803(a)
– applied “regardless of” the crime’s grade. Id. Hence, the Court held,
since Mr. Musau’s sentence exceeded the six-month statutory maximum, the
sentence was illegal. Id. at 758.
-5- J-S07021-15
Musau undoubtedly applies to the case at bar because Mr. Ettinger
(like Mr. Musau) was convicted of a second-offense DUI under 75 Pa.C.S.A.
§ 3802(a)(1), where he refused chemical testing and, at the time Mr.
Ettinger committed his offense, Mr. Ettinger was subject to the same version
of 75 Pa.C.S.A. § 3803 that was interpreted in Musau.
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J-S07021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
ALLEN RAY ETTINGER,
Appellee No. 1165 MDA 2014
Appeal from the Judgment of Sentence of June 16, 2014 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0001996-2014
BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 13, 2015
The Commonwealth of Pennsylvania appeals from the judgment of
sentence entered on June 16, 2014. We affirm.
On February 4, 2014, Mr. Ettinger was arrested for driving under the
influence of alcohol (hereinafter “DUI”). The Commonwealth later charged
Mr. Ettinger with DUI,1 which was enhanced based upon the averment that
Mr. Ettinger refused to submit to chemical testing of his breath or blood.
Commonwealth’s Information, 4/25/14, at 1; see also 75 Pa.C.S.A. § 1547.
On June 16, 2014, Mr. Ettinger pleaded guilty to DUI, pursuant to 75
Pa.C.S.A. § 3802(a)(1). The conviction constituted Mr. Ettinger’s second
DUI offense within the prior ten years. N.T. Sentencing, 6/16/14, at 1.
____________________________________________
1 75 Pa.C.S.A. § 3802(a)(1). J-S07021-15
Moreover, within Mr. Ettinger’s guilty plea, Mr. Ettinger admitted that he
refused to submit to chemical testing on the night in question. Id. at 5; 75
Pa.C.S.A. § 1547.
That same day, the trial court sentenced Mr. Ettinger to six months’
intermediate punishment, consistent with this Court’s holding in
Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013) (construing 75
Pa.C.S.A. § 3803(a)(1) and § 3803(b)(4) and holding that a defendant who
was convicted of a second-offense DUI under 75 Pa.C.S.A. § 3802(a)(1) and
who refused chemical testing could only be sentenced to the statutory
maximum term of six months’ imprisonment, as set forth in 75 Pa.C.S.A.
§ 3803(a)(1) – even though the crime is graded as a first-degree
misdemeanor and even though a first-degree misdemeanor is generally
subject to a five-year mandatory minimum sentencing term). Further,
during Mr. Ettinger’s sentencing hearing, the Commonwealth acknowledged
that Musau bound the trial court and that, under Musau, the trial court was
“obligated to impose a six-month maximum” sentence upon Mr. Ettinger.
N.T. Sentencing, 6/16/14, at 2. However, the Commonwealth objected to
the trial court’s sentence for purposes of issue preservation. Id.
The Commonwealth filed a timely notice of appeal from Mr. Ettinger’s
judgment of sentence. The Commonwealth now raises one claim on appeal:
Whether the sentencing court erred when it held that six months for [Mr. Ettinger’s DUI] (refusal) ([second] offense) conviction was the statutory maximum allowable sentence it could consider[?]
-2- J-S07021-15
Commonwealth’s Brief at 4 (some internal capitalization omitted).
The Commonwealth’s claim fails because we, like the trial court, are
bound by our holding in Musau.
At the time Mr. Ettinger committed his DUI offense, the relevant
portions of the DUI gradation statute read:
(a) Basic offenses.—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.
-3- J-S07021-15
75 Pa.C.S.A. § 3803.2 The statutory maximum sentence for a misdemeanor
of the first degree is generally five years in prison. 18 Pa.C.S.A.
§ 106(b)(6).
In Commonwealth v. Musau, this Court was provided with an
opportunity to interpret the above-quoted version of 75 Pa.C.S.A. § 3803(a)
and (b)(4). In Musau, Mr. Musau was convicted of a second-offense DUI,
where he refused to submit to chemical testing. Musau, 69 A.3d at 755-
756. At Mr. Musau’s sentencing hearing, the trial court looked to 75
Pa.C.S.A. § 3803(b)(4) and concluded that Mr. Musau’s DUI conviction was
to be graded as a first-degree misdemeanor. Id.; see also 75 Pa.C.S.A.
§ 3803(b)(4). Further, the trial court held that the general, five-year
statutory maximum sentencing term for first-degree misdemeanors – as
found in 18 Pa.C.S.A. § 106(b)(6) – applied to Mr. Musau’s conviction.
Musau, 69 A.3d at 755-756. In accordance with this construction, the trial
court sentenced Mr. Musau to serve a term of 90 days to 5 years in jail. Id.
at 756.
2 In response to Musau, the Pennsylvania Legislature amended 75 Pa.C.S.A. § 3803(a) by deleting the phrase “[n]otwithstanding the provisions of” and replacing that phrase with the words “[e]xcept as provided in.” See 75 Pa.C.S.A. § 3803 (effective October 27, 2014). However, since the amendment to Section 3803(a) was effective on October 27, 2014, and since Mr. Ettinger committed his crime before the effective date of the amendment, Mr. Ettinger was subject to the prior version of the statute.
-4- J-S07021-15
On appeal to this Court, Mr. Musau claimed that his sentence was
illegal because it exceeded the six-month statutory maximum penalty, as
provided in 75 Pa.C.S.A. § 3803(a)(1). Musau, 69 A.3d at 756. This Court
agreed with Mr. Musau. Specifically, the Musau Court read 75 Pa.C.S.A.
§ 3803(a) and (b)(4) in accordance with principles of statutory construction
and held that a defendant convicted of a second-offense DUI under 75
Pa.C.S.A. § 3802(a)(1), who refused chemical testing, could only be
sentenced to the statutory maximum term of six months’ imprisonment, as
provided in Section 3803(a)(1). Musau, 69 A.3d at 758.
Important to the Musau Court’s holding was the fact that, in drafting
75 Pa.C.S.A. § 3803(a), the Pennsylvania Legislature employed the phrase
“[n]otwithstanding the provisions of subsection (b);” and, as the Musau
Court noted, the term “notwithstanding” is defined, variously, as “in spite
of,” “although,” or “regardless of.” Id. at 757. The Musau Court held that,
by employing the phrase “notwithstanding the provisions of subsection (b)”
in Section 3803(a), the Legislature intended for Section 3803(a) to apply
“regardless of” what was contained in Section 3803(b). Id. at 757-758.
Thus, even though Section 3803(b)(4) graded Mr. Musau’s crime as a first-
degree misdemeanor, the Musau Court concluded that the statutory
maximum term of six months’ imprisonment – contained in Section 3803(a)
– applied “regardless of” the crime’s grade. Id. Hence, the Court held,
since Mr. Musau’s sentence exceeded the six-month statutory maximum, the
sentence was illegal. Id. at 758.
-5- J-S07021-15
Musau undoubtedly applies to the case at bar because Mr. Ettinger
(like Mr. Musau) was convicted of a second-offense DUI under 75 Pa.C.S.A.
§ 3802(a)(1), where he refused chemical testing and, at the time Mr.
Ettinger committed his offense, Mr. Ettinger was subject to the same version
of 75 Pa.C.S.A. § 3803 that was interpreted in Musau. Indeed, within the
Commonwealth’s brief to this Court, the Commonwealth simply requests this
Court to either overrule Musau or ignore Musau and, instead, follow
contrary, non-binding dicta from other cases. See Commonwealth’s Brief at
9-22. However, this Court has no power to overrule Musau or to ignore
Musau’s clear, binding holding in favor of non-binding dicta. See
Commonwealth v. Taggert, 997 A.2d 1189, 1201 n.16 (Pa. Super. 2010)
(recognizing that “one three-judge panel of [the Superior] Court cannot
overrule another” three-judge panel); Gardner v. Erie Ins. Co., 722 A.2d
1041, 1046 (Pa. 1999) (“the Court is not bound by statements made in
dicta”). The Commonwealth’s claim on appeal thus fails.3
3 We note that the Commonwealth filed a petition for allowance of appeal in Musau and, on February 11, 2014, the Pennsylvania Supreme Court entered an order, holding the Musau petition for allowance of appeal pending its disposition in Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013). Pennsylvania Supreme Court Order, 2/11/14, at 1. Nevertheless, on March 30, 2015, the Pennsylvania Supreme Court dismissed the appeal in Mendez as improvidently granted. Commonwealth v. Mendez, ___ A.3d ___ (Pa. 2015). Moreover, and regardless, Musau remains binding precedent unless and until it has been overturned by our Supreme Court or it has been overruled by an en banc panel of this Court. See Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000) (“we have long held that (Footnote Continued Next Page)
-6- J-S07021-15
Therefore, in accordance with Musau and 75 Pa.C.S.A. § 3803(a)(1),
we must hold that the trial court correctly concluded that Mr. Ettinger was
subject to the six-month statutory maximum sentence for his DUI
conviction.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/13/2015
_______________________ (Footnote Continued)
as long as the decision has not been overturned by our Supreme Court, a decision by our Court remains binding precedent”).
-7-