J-E02002-25
2026 PA Super 85
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DWAYNE ERIC LEE : No. 1471 MDA 2023
Appeal from the Judgment of Sentence Entered June 29, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0003175-2022
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., OLSON, J., STABILE, J., KUNSELMAN, J., MURRAY, J., KING, J., SULLIVAN, J., and LANE, J.
OPINION BY OLSON, J.: FILED: APRIL 23, 2026
The Commonwealth of Pennsylvania appeals from the judgment of
sentence entered against Dwayne Eric Lee (“the Defendant”) on June 29,
2023, as made final by the denial of the Defendant’s post-sentence motion on
October 6, 2023. We vacate the Defendant’s sentence as illegal and remand
for resentencing.
On May 19, 2022, Pennsylvania State Police Trooper Shane Sager filed
a criminal complaint against the Defendant. As the complaint alleged, on May
17, 2022, Trooper Sager observed the Defendant driving a motorcycle on a
highway. Upon learning that the Defendant’s operating privilege was
suspended as a result of a driving under the influence of alcohol (“DUI”)
conviction, Trooper Sager activated his emergency lights and siren in an J-E02002-25
attempt to initiate a traffic stop of the Defendant. Affidavit of Probable Cause,
5/19/22, at 1. The complaint alleged:
At that time, the operator conducted a U turn maneuver at [an] intersection . . . and accelerated at a high rate of speed now traveling [eastbound] on Allentown [Boulevard]. While the operator was conducting the U turn, I observed the [operator’s] face through his clear [windscreen] on his helmet and observed the operator to be [the Defendant]. I then observed the motorcycle fail to stop at [a red traffic light] and nearly strike multiple cars as he traveled onto [North Mountain Road. The Defendant] then utilized the ramp to [Interstate 81 South] and accelerated at a high rate of speed while on [the road, traveling] in excess of 126 mph in a [] 55 mph zone.
Id.
“Trooper Sager terminated his pursuit of [the Defendant] due to safety
and was unable to detain him.” Trial Court Opinion, 12/20/23, at 1-2.
The Defendant was later arrested and the Commonwealth charged him
with numerous crimes, including driving while operating privilege is suspended
or revoked because of a DUI (hereinafter “DUS”), under 75 Pa.C.S.A.
§ 1543(b)(1)(i), fleeing or attempting to elude a police officer, under 75
Pa.C.S.A. § 3733(a), and recklessly endangering another person (“REAP”),
under 18 Pa.C.S.A. § 2705. Amended Information, 6/29/23, at 1-3.
Prior to trial, the Defendant filed a motion in limine, where he sought to
exclude proffered evidence that, if believed, would show that the Defendant
“was riding his motorcycle in West Hanover Township on May 21, 2022, was
involved in a single-vehicle crash, and then walked away from the scene
before police arrived.” The Defendant’s Motion in Limine, 6/26/23, at 2. The
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trial court denied the Defendant’s motion and, during the ensuing jury trial,
the Commonwealth introduced evidence of the Defendant’s May 21, 2022
motorcycle accident. See N.T. Trial, 6/29/23, at 17-51.
At the conclusion of the Defendant’s trial, the jury found the Defendant
not guilty of fleeing or attempting to elude an officer and REAP. Id. at 119.
The trial court, however, found the Defendant guilty of numerous summary
offenses, including DUS under 75 Pa.C.S.A. § 1543(b)(1)(i). On June 29,
2023, the trial court sentenced the Defendant to pay fines and the costs of
prosecution; the trial court did not order that the Defendant serve any time in
jail for his summary convictions. See N.T. Trial, 6/29/23, at 126.
Following the denial of the Defendant’s post-sentence motion, the
Defendant and the Commonwealth filed timely notices of appeal. On appeal,
the Defendant claimed that the trial court erred when it denied his motion in
limine; the Commonwealth claimed that the Defendant’s sentence was illegal,
as the trial court “failed to impose a mandatory term of not less than 60 days’
nor more than 90 days’ incarceration” for the Defendant’s
Section 1543(b)(1)(i) DUS conviction. See The Defendant’s Brief at 14;
Commonwealth’s Brief at 4.
A three-judge panel of this Court originally affirmed the Defendant’s
convictions, but vacated his sentence as illegal under Section 1543(b)(1)(i).
Regarding the illegal sentencing claim, the panel relied upon the plain
language of Section 1543(b)(1)(i) and the non-precedential decision in
Commonwealth v. Isadore, 307 A.3d 677 (Pa. Super. 2023)
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(non-precedential decision)1 to conclude that the Defendant’s sentence was
illegal. In particular, the panel concluded that, under Section 1543(b)(1)(i),
the trial court was required to sentence the Defendant to serve a mandatory
term of “imprisonment for a period of not less than 60 days nor more than 90
days” for the Section 1543(b)(1)(i) DUS conviction. Since the trial court
ordered that the Defendant serve no time in jail for this conviction, the panel
concluded that the Defendant’s sentence was illegal; thus his judgment of
sentence was vacated and the case was remanded for resentencing.
The Defendant filed a timely motion for reargument and claimed that
the conclusion of the three-judge panel in his case was incorrect, as the panel
failed to take into account our precedential opinion in Commonwealth v.
White, 268 A.3d 499 (Pa. Super. 2022). In White, a three-judge panel of
this Court held that “the phrase ‘not less than 60 days nor more than 90 days’
[in Section 1543(b)(1)(i)] described the potential maximum sentence” for
a Section 1543(b)(1)(i) violation – and that the statute did not mandate any
specific minimum sentence. See White, 268 A.3d at 501 (emphasis added).
Thus, the Defendant claimed, his sentence of zero days’ imprisonment was
not illegal under White’s interpretation of Section 1543(b)(1)(i).
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1 Non-precedential decisions of this Court filed after May 1, 2019 may be cited
for their persuasive value. See Pa.R.A.P. 126(b).
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On March 3, 2025, this Court granted en banc reargument of this case
and withdrew the panel’s prior decision.2 Order, 3/3/25, at 1. The Defendant
then voluntarily discontinued his cross-appeal, which challenged the trial
court’s ruling on his motion in limine. See Order, 4/30/25, at 1. We are thus
presented with one issue on appeal:
Whether the trial court erred in imposing an illegal sentence and/or abused its discretion in misapplying the law and imposing an unreasonable sentence where it failed to impose a mandatory term of not less than 60 days’ nor more than 90 days’ incarceration pursuant to 75 Pa.C.S.A. § 1543(b)(1)(i)?
The Commonwealth claims that the Defendant’s 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”).
2 We also consolidated this case with Commonwealth v. Blount, 2729 EDA
2023.
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“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
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).
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“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:
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
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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 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).3
The disagreement in the case at bar centers around the sentencing
language in the statute and, specifically, upon 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 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,
3 As discussed in greater detail, infra, Section 1543(b)(1)(i) was amended on
December 22, 2025.
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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.
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
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White, the trial court sentenced the Defendant to serve no time in jail 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). We, thus, overrule White.
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
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
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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
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:
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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
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.
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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’”).
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
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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;
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,
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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.4 Id. at 1044.
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
4 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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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
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
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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.
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.5 Rather, the language of
Section 1543(b)(1)(i) clearly and unambiguously requires an indeterminate ____________________________________________
5 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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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
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
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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
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
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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
. . . 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, 2004.6
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 ____________________________________________
6 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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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. The
Defendant’s sentence of zero days in jail thus violates Section 1543(b)(1)(i)
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and is illegal.7 We are, therefore, required to vacate the Defendant’s
judgment of sentence and remand for resentencing.8
7 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.
8 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 (Footnote Continued Next Page)
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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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Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
President Judge Lazarus, Judge Kunselman, Judge Murray, Judge King,
Judge Sullivan, and Judge Lane join this Opinion.
Judge Stabile files a Dissenting Opinion which President Judge Emeritus
Panella joins.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 4/23/2026
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