Com. v. Grow, C. , 122 A.3d 425 ( 2015 )

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2015 Pa. Super. 186
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CHRISTOPHER C. GROW
Appellee No. 2017 MDA 2013
Appeal from the Judgment of Sentence October 11, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005071-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J.,
SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.
OPINION BY LAZARUS, J.: FILED SEPTEMBER 04, 2015
The Commonwealth of Pennsylvania appeals from the judgment of
sentence imposed by the Court of Common Pleas of York County after
Appellee, Christopher C. Grow, entered a guilty plea to driving under the
influence (DUI). Specifically, Grow pled guilty to second-offense DUI with
refusal to submit to chemical testing of his blood alcohol content (BAC).1
For this offense, Grow was sentenced to serve six months of intermediate
punishment with forty-five days of incarceration, followed by ninety days on
house arrest with electronic monitoring.2 After careful review, we affirm.
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1
75 Pa.C.S. § 3803(b)(4).
2
The trial court also imposed twelve months’ probation for a habitual
offender violation under 75 Pa.C.S. § 6503.1 and six to twelve months’
incarceration for driving with suspended operating privileges pursuant to 75
Pa.C.S. § 1543(b)(1.1).
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In May 2013, Grow was involved in a motor vehicle collision in which
he rear-ended a vehicle stopped at a traffic light. A police officer arrived on
the scene of the accident and spoke with Grow. The officer observed signs
that Grow was intoxicated, including the odor of alcohol and that Grow had
slurred speech, bloodshot eyes, and poor balance. When asked, Grow
admitted to consuming alcohol. Grow unsuccessfully attempted to perform
field sobriety tests, and the officer arrested him for DUI. Grow refused to
allow his blood to be drawn to test its alcohol level.
Thereafter, on October 11, 2013, Grow entered his guilty plea and was
sentenced. Grow and the Commonwealth agreed to a minimum sentence
but did not reach an agreement regarding the maximum sentence to be
imposed. The Commonwealth timely filed a notice of appeal and court-
ordered concise statement of errors complained of on appeal.
The Commonwealth raises one issue for our review:
Whether the sentencing court erred when it held that six months
for [Grow’s] driving under the influence (refusal) (second
offense) conviction was the statutory maximum allowable
sentence it could consider[.]
Brief for Appellant, at 4.
The Commonwealth challenges this Court’s precedential decision,
Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), in which we
interpreted 75 Pa.C.S. § 3803 as providing a six-month maximum sentence
for second DUI offenses with refusal to submit to chemical testing. The
Commonwealth’s question of statutory construction implicates the legality of
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Grow’s sentence and thus is appealable as of right. Commonwealth v.
Ausberry, 891 A.2d 752, 754 (Pa. Super. 2006). Our standard of review is
de novo and our scope of review is plenary. Commonwealth v. Gutierrez,
969 A.2d 584, 592 (Pa. Super. 2009).
In considering a question of statutory construction, we are
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. 1 Pa.C.S. § 1921(a). In pursuing that end, we
are mindful that “[w]hen 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.” 1
Pa.C.S. § 1921(b). Indeed, “[a]s a general rule, the best
indication of legislative intent is the plain language of a
statute.” In reading the plain language, “[w]ords and phrases
shall be construed according to rules of grammar and according
to their common and approved usage,” while any words or
phrases that have acquired a “peculiar and appropriate meaning”
must be construed according to that meaning. 1 Pa.C.S. §
1903(a). However, when interpreting non-explicit statutory text,
legislative intent may be gleaned from a variety of factors,
including, inter alia: the occasion and necessity for the statute;
the mischief to be remedied; the object to be attained; the
consequences of a particular interpretation; and the
contemporaneous legislative history. 1 Pa.C.S. § 1921(c).
Moreover, while statutes generally should be construed liberally,
penal statutes are always to be construed strictly, 1 Pa.C.S. §
1928(b)(1), and any ambiguity in a penal statute should be
interpreted in favor of the defendant.
Commonwealth v. Wilson, 111 A.3d 747, 751 (Pa. Super. 2015) (citing
Commonwealth v. Shiffler, 879 A.2d 185, 189-90 (Pa. 2005)) (emphasis
added).
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At the time Grow was sentenced, the relevant portions of section 3803
provided:3
Grading
(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.
75 Pa.C.S. § 3803 (amended 2014) (emphasis added).
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3
On October 27, 2014, the legislature amended section 3803(a) to replace
“Notwithstanding the provisions of section (b)” with “Except as provided in
subsection (b).” 75 Pa.C.S. § 3803. As Grow pled guilty and was sentenced
prior to the effective date of the amendment to the statute, however, the
amended version does not apply to this matter. See Commonwealth v.
Bowen, 55 A.3d 1254, 1270 n.8 (Pa. Super. 2012) (interpreting prior
statute after law amended since prior version applied to time period during
which defendant was convicted and sentenced).
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Ordinarily, the statutory maximum sentence for a first-degree
misdemeanor is five years’ incarceration. See 18 Pa.C.S. § 1104(1); see
also 18 Pa.C.S. § 106(b)(6). However, the Musau Court determined six
months’ imprisonment to be the maximum sentence for second-offense DUI
with refusal to submit to chemical testing, despite the grading of the offense
as a first-degree misdemeanor. In so deciding, the Court relied upon the
initial language in section 3803 of “[n]otwithstanding the provisions of
subsection (b).” 75 Pa.C.S. § 3803(a) (amended 2014). The Court
construed this prefatory language with the other provisions of section 3803,
determining that although section 3803(b)(4) specifies the grading of the
crime as a first-degree misdemeanor, the maximum penalty is the six-month
sentence provided in section 3803(a)(1). Musau, supra, at 758.
The definition of “notwithstanding” was critical to the Court’s decision
in Musau. The Court discussed the ordinary meaning of the word as “in
spite of” or “although” and noted that our Supreme Court has defined it as
“regardless of.” Id. at 757 (citing City of Philadelphia v. Clement &
Muller, Inc., 715 A.3d 397, 399 (Pa. 1998) (holding plain meaning of
phrase “notwithstanding a contrary provision of law of the Commonwealth”
is “regardless of what any other law provides”)). These synonymous
definitions demonstrate that the word has an accepted meaning that is clear
on its face. Thus, we agree with Grow’s argument in the instant matter and
with the holding of the Musau Court that “the plain language of the statute,
giving the words their ordinary meanings, indicates [that] regardless of the
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. . . grading of the offense as a first-degree misdemeanor, the maximum
sentence for a first or second DUI conviction is six months’ imprisonment.”
Musau, supra, at 758.
Because the plain meaning of the statute in question is clear and free
from ambiguity, the Statutory Construction Act4 provides that “the letter of it
is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §
1921(b). Moreover, we are constrained to consider solely the plain meaning
of section 3803, since “only when the words of a statute are
ambiguous should a court seek to ascertain the intent of the General
Assembly through consideration of statutory construction factors found in
[s]ection 1921(c).”5 Commonwealth v. Brown, 981 A.2d 893, 898 (Pa.
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4
1 Pa.C.S. §§ 1921-1939.
5
The statutory construction factors listed in section 1921(c) include:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the
same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa.C.S. § 1921.
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2009) (emphasis added). Nevertheless, we will address the
Commonwealth’s arguments regarding this Court’s interpretation of section
3803 and the application of principles of statutory interpretation.
Initially, the Commonwealth asserts that the trial court incorrectly
relied on our holding in Musau to determine the appropriate maximum
sentence in this matter. The Commonwealth argues that Commonwealth
v. Barr, 79 A.3d 668 (Pa. Super. 2013), controls because it was decided
after Musau and indicates a five-year maximum sentence for Grow’s
offense.6 The Commonwealth’s reliance on Barr is misplaced, however,
because the issue before us in that matter involved the correct instruction
for a jury to find that the defendant “refused” blood, breath, or urine testing.
See id. at 671. The statement that Barr’s refusal would increase the
maximum penalty from six months’ to five years’ was made in passing and
was not critical to the holding of the decision. As a result, the statement
regarding the increased penalty is dictum and is not controlling regarding
the statutory interpretation of section 3803. See U.S. Steel Co. v. County
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6
The Commonwealth also cites to the unpublished decision in
Commonwealth v. Mendez, 62 A.3d 456 (Pa. Super. 2012) (unpublished
memorandum), in which a panel of this court interpreted the same
provisions at issue instantly and determined that a five-year maximum
applied. However, Musau was later in time and, as a published opinion, is
controlling. We also note that our Supreme Court initially granted allowance
of appeal in Mendez on July 17, 2013. However, on March 30, 2015, after
the Legislature amended the relevant statute, the Court dismissed the
appeal as improvidently granted.
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of Allegheny, 86 A.2d 838, 843 (Pa. 1952) (dictum involving interpretation
of statute not controlling).
Next, the Commonwealth asserts that “[t]he only interpretation of
section 3803 that gives effect to all provisions without resulting in absurdity
is that the particular provision controls over the general provision.” Brief
for Appellant, at 11. The Commonwealth premises this argument on section
1933 of the Statutory Construction Act, which indicates that:
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.
1 Pa.C.S. § 1933. In relying on this principle of statutory interpretation, the
Commonwealth argues that the provisions of section 3803(b) are particular
provisions that control over the general provisions in section 3803(a). The
Commonwealth’s argument fails for several reasons.
First, the provisions of section 3803(b) are subordinated to section
3803(a) by the statute’s plain language. The Commonwealth merely
assumes that section 3803(a)(1) and section 3803(b)(4) are in conflict and
that both provisions cannot be given effect. However, it is noteworthy that
the conflict that occurs under these facts arises because of the general
sentencing maximum for first-degree misdemeanors provided by 18 Pa.C.S.
§ 1104(1) and 18 Pa.C.S. § 106(b)(6). Given the general nature of the
Sentencing Code, we consider section 3803 to be a specific provision that
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controls over the general sentencing provisions. See Commonwealth v.
Poncala, 915 A.2d 97, 105 (Pa. Super. 2006) (holding specific DUI
sentencing provisions control over general Sentencing Code provision).
Next, to the extent a conflict exists between sections 3803(a)(1) and
(b)(4), the conflict is far from irreconcilable.7 Both provisions can be given
effect as required by section 1933 of the Statutory Construction Act, because
section 3803(b)(4) provides for grading while section 3803(a)(1) provides
for the length of the sentence. The first-degree grading provided for in
section 3803(b)(4) is not rendered a nullity merely because the sentence
prescribed in section 3803(a)(1) is shorter than is typical for a first-degree
misdemeanor. Indeed, grading the offense as a misdemeanor of the first
degree has effects beyond the length of the sentence that may be imposed.
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7
In its argument that section 3803(a) and (b) contain conflicting provisions
and that our reading of the statute in Musau creates absurdities, the
Commonwealth discusses a situation that is outside the facts of the present
dispute. The Commonwealth notes that under our interpretation that section
3803(b) is subordinated to section 3803(a), a second DUI offense with
refusal is graded as a first-degree misdemeanor, and if this interpretation
were extended, a third DUI offense with refusal would be graded as a
second-degree misdemeanor based upon the terms of section 3803(a)(2)
(individual with “more than one prior offense commits a misdemeanor of the
second degree.”). Unlike the instant matter, in which the provisions at issue
do not directly conflict, however, a third DUI offense with refusal would
present a direct conflict between provisions: section 3803(a)(2) specifies
second-degree grading for a third offense with refusal, while section
3803(b)(4) specifies first-degree grading for the same offense. If that issue
arose, the court ruling on the matter would have to engage in statutory
interpretation to resolve the conflict between the provisions. However, we
need not do so, as that particular issue is not before us.
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For instance, the first-degree grading increases the offense gravity score
from one to five and increases the mandatory period of license suspension
from 12 months to 18 months. See 204 Pa. Code § 303.15; 75 Pa.C.S. §
3804(e)(2).
Moreover, despite the Commonwealth’s claim to the contrary, the
grading and sentencing of the offense for a defendant in Grow’s position is
hardly absurd; the result merely diverges from the typical scheme. It is
well-established that sentencing and grading can follow separate schemes.
See Commonwealth v. Ruffin, 16 A.3d 537, 543 (Pa. Super. 2011)
(legislature may have different motives when grading offense and
establishing its punishment); see also Commonwealth v. Davis, 618 A.2d
426, 430 (Pa. Super. 1992) (en banc) (“[T]he express classification of
possession of marijuana as a misdemeanor in the Controlled Substance Act
is clear evidence of the General Assembly’s intent to grade the offense as a
misdemeanor rather than a summary offense, notwithstanding that the
sentence for the offense is consistent with a summary offense.”).
The Commonwealth also asserts that though the term
“notwithstanding” appears to be clear on its face, it actually serves to
introduce ambiguity. On this basis, the Commonwealth looks to the
statutory construction factors in section 1921(c) and provides an alternative
interpretation of section 3803 that would indicate the maximum sentence for
Grow’s offense is five years’ incarceration.
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The alternate interpretation the Commonwealth advances as its
“primary argument” in this matter is that “‘notwithstanding’ is intended to
only modify ‘basic offenses’ and not the specific provisions of ‘other
offenses.’” Brief for Appellant, at 23. The Commonwealth argues that “the
use of section titles ‘Basic offenses’ for 3803(a) and ‘[O]ther offenses’ for
3803(b) [creates] a clean break between the sections,” such that
“notwithstanding” applies only to 3803(a), thus “giv[ing] full effect to all of
the provisions of the statute.” Id. at 13. In support of this argument, the
Commonwealth also asserts that the correct interpretation of
“notwithstanding” is that it means “unchanged” or “not influenced by.” Id.
The Commonwealth’s construction of the statute and its proposed
meaning is flawed for several reasons. While section headings can be used
to interpret a statute, they are not controlling. See 1 Pa.C.S. § 1924. We
also find the Commonwealth’s argument regarding an alternative definition
for “notwithstanding” to be unpersuasive. First, “notwithstanding” has an
accepted meaning as indicated by our Supreme Court. Clement & Muller,
Inc., supra. Secondly, the definitions proposed by the Commonwealth
support a reading of the statute identical to that which we employed in
Musau. For instance, using the Commonwealth’s proposed definitions, the
statute indicates that: 1) the six-month maximum sentence would be
“unchanged” by the fact that the offense is a misdemeanor of the first
degree, or 2) the six-month maximum sentence would “not be influenced
by” the first-degree grading of the offense. Simply put, the
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Commonwealth’s argument regarding headings and definitions is belied by
the statutory text.
The Commonwealth next turns to legislative history and administrative
interpretations of the DUI statute in support of its claim that the maximum
sentence for Grow’s offense is five years’ incarceration. Pursuant to section
1921(c) of the Statutory Construction Act, legislative and administrative
interpretations of a statute may be considered when the wording of the
statute is ambiguous. 1 Pa.C.S. § 1921(c). Here, however, as we have
already discussed, the wording of the statute is clear and free from doubt
such that the factors that may be considered in section 1921(c) lack
relevance.
Nevertheless, the Commonwealth cites to the Pennsylvania Sentencing
Commission’s interpretation of section 3803 and a remark provided by one
legislator to support its claim that the legislature intended a maximum
sentence of five years for a second DUI offense with refusal. We note that
the Sentencing Commission’s interpretation is in no way binding on this
Court. Moreover, the remark of one legislator is insufficient to express
legislative intent, as “[o]ne must look to what the legislature did, not what a
single legislator thought the legislation did.” Commonwealth v. Wisneski,
29 A.3d 1150, 1153 (Pa. 2011). Thus, the legislative and administrative
interpretations provided by the Commonwealth do not alter our
interpretation of the plain language of section 3803.
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Finally, we turn to the argument raised by Grow that the rule of strict
construction in section 1928 of the Statutory Construction Act requires us to
limit his maximum sentence to six months as provided in section
3803(a)(1). Section 1928 provides that penal provisions shall be strictly
construed. 1 Pa.C.S. § 1928(b)(1). Strict construction in this sense means
that “where ambiguity exists in the language of a penal statute, such
language should be interpreted in the light most favorable to the accused.
More specifically, where doubt exists concerning the proper scope of a penal
statute, it is the accused who should receive the benefit of such doubt.”
Commonwealth v. Kelly, 102 A.3d 1025, 1030 (Pa. Super. 2014) (quoting
Commonwealth v. McCoy, 962 A.2d 1160, 1168-69 (Pa. 2009)). Thus,
even if the language of section 3803 results in ambiguity, Grow is entitled to
the benefit of the doubt: a maximum sentence of six months’ rather than
five years’ incarceration.
For the foregoing reasons, we find that the trial court did not err in
following our holding in Musau and sentencing Grow to a maximum
sentence of six months’ incarceration.
Judgment of sentence affirmed.
President Judge Gantman, President Judge Emeritus Bender, Judges
Panella, Donohue, Shogan, Allen and Stabile join this opinion.
Judge Mundy files a Dissenting Statement.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2015
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