Opinion
J-S49026-15 No. 368 MDA 2015
08-06-2015
COMMONWEALTH OF PENNSYLVANIA, Appellant v. CHARLES C. RIDER, III, Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered February 11, 2015, in the Court of Common Pleas of York County, Criminal Division, at No(s): CP-67-CR-0006902-2014 BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ. MEMORANDUM BY ALLEN, J.:
The Commonwealth appeals from the judgment of sentence imposed on Charles Curtis Rider, III, ("Rider"), pursuant to Commonwealth v. Musau , 69 A.3d 754 (Pa. Super. 2013). We affirm.
The trial court summarized the procedural posture as follows:
On February 11, 2015, [Rider] pled guilty before the Honorable Thomas H. Kelley, VI to Driving Under the Influence of Alcohol or a Controlled Substance [relative to a September 21, 2014 DUI offense]. [FN1: 75 Pa.C.S.A. § 3802(a)(1)]. The Court imposed a sentence of 6 months intermediate punishment with the first 45 [days] in the York County Prison, followed by 90 days on house arrest with SCRAM monitoring. The Commonwealth did not agree on a maximum sentence. The Commonwealth now appeals the Court's Sentencing Order imposing [Rider's] maximum sentence.Trial Court Opinion, 3/26/15, at 1-2. As noted above, the Commonwealth filed a timely notice of appeal. Both the Commonwealth and the trial court complied with Pa.R.A.P. 1925.
The Commonwealth presents us with a single issue:
WHETHER THE SENTENCING COURT ERRED WHEN IT HELD THAT SIX MONTHS FOR [RIDER'S] DRIVING UNDER THE INFLUENCE (REFUSAL) (2ND OFFENSE) CONVICTION WAS THE STATUTORY MAXIMUM ALLOWABLE SENTENCE IT COULD CONSIDER[?]Commonwealth Brief at 4.
In reviewing this issue, we recognize:
[] Issues relating to the legality of a sentence are questions of law, as are claims raising a court's interpretation of a statute. Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa. Super. 2006). Our standard of review over such questions is de novo and our scope of review is plenary. See Leverette, 911 A.2d at 1002.Commonwealth v. Diamond , 945 A.2d 252, 256 (Pa. Super. 2008).
Moreover, we appreciate that:
"The Rules of Appellate Procedure state unequivocally that each question an appellant raises is to be supported by discussion and analysis of pertinent authority." Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa. Super. 2002); Pa.R.A.P. 2119(b). "Appellate arguments which fail to adhere to these rules may be considered waived, and arguments which are not appropriately developed are waived. Arguments not appropriately developed include those where the party has failed to cite any authority in support of a contention." Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (citations omitted). This Court will not act as counsel and will not develop arguments on behalf of an appellant. Irwin Union National Bank and Trust Company v. Famous and Famous and ATL Ventures, 4 A.3d 1099, 1103 (Pa. Super. 2010) (citing Commonwealth v. Hardy, 918 A.2d 766,
771 (Pa. Super. 2007)). Moreover, we observe that the Commonwealth Court, our sister appellate court, has aptly noted that "[m]ere issue spotting without analysis or legal citation to support an assertion precludes our appellate review of [a] matter." Boniella v. Commonwealth, 958 A.2d 1069, 1073 n. 8 (Pa. Cmwlth. 2008) (quoting Commonwealth v. Spontarelli, 791 A.2d 1254, 1259 n. 11 (Pa. Cmwlth. 2002)).Coulter v. Ramsden , 94 A.3d 1080, 1088-1089 (Pa. Super. 2014).
Here, the Commonwealth has properly raised and developed their Musau issue. However, the Commonwealth has failed to develop its additional assertion raised in its Pa.R.A.P. 2119(f) certification that "in regards to [Rider], 75 Pa.C.S.A. § 3804(d) expressly requires the sentencing court to issue a maximum sentence equivalent to the statutory maximum when the defendant's CRN evaluation shows that the individual is in need of additional treatment and a treatment evaluation pursuant to 75 Pa.C.S.A. § 3814(2) is needed." Commonwealth Brief at 7; see also 8-24. The Commonwealth also failed to specify the Section 3804(d) issue in its Pa.R.A.P. 1925 statement. See Pa.R.A.P. 1925 Statement of Errors Complained of on Appeal, 3/11/15. Accordingly, the Commonwealth's argument regarding the trial court's failure to sentence Rider pursuant to 75 Pa.C.S.A. § 3804(d) is waived.
With regard to the Commonwealth's Musau issue, we reasoned:
[S]ection 3803 of the vehicle code... provides in relevant part as follows[:]
(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).
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(b) Other offenses.—
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(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. The statutory maximum sentence for misdemeanors of the first degree is five years' imprisonment. 18 Pa.C.S. § 106(b)(6), (e).
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[Musau] ... claims that "[i]t is equally clear from the statute that subsection (a) dictates that the maximum sentence [Musau] could receive for this particular offense is six months [of] incarceration." Id. Because the word "notwithstanding" is defined as "'nevertheless' or 'in spite of,'" [Musau] argues that "the statute clearly indicates that while subsection (b) dictates the grading of a second offense where there is a BAC refusal, subsection (a) dictates the maximum punishment for that offense" Id. at 9.
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We are constrained to agree with [Musau]. The American Heritage Dictionary defines the word notwithstanding as "in spite of" or "although." American Heritage Dictionary of the English Language 1203-04 (4th ed. 2006). Our Supreme Court has defined "notwithstanding" as "regardless of." See City of Philadelphia v. Clement & Muller, 552 Pa. 317, 715 A.2d 397, 399 (1998) (holding that the plain meaning of the phrase "notwithstanding a contrary provision of law of the Commonwealth ..." is "regardless of what any other law provides ..."). Given these definitions, the Commonwealth's interpretation might be persuasive if the legislature had instead
prefaced subsection (a) with "except as provided in subsection (b)," or began subsection (b) with "notwithstanding the provisions of subsection (a)." But it did not. Therefore, we hold that the plain language of the statute, giving the words their ordinary meanings, indicates as follows: regardless of the fact that refusal to submit to blood alcohol testing results in the grading of the offense as a first degree misdemeanor, the maximum sentence for a first or second DUI conviction is six months' imprisonment.Musau , 69 A.3d at 757-758 (footnote omitted).
We further observed in Musau that "[i]f the legislature did not in fact intend to create a lesser maximum sentence for the first-degree misdemeanor of a first or second DUI with refusal than is permissible generally for misdemeanors of the first degree, such an 'oversight is best left to the Legislature to correct.'" Id. at 758 n.2, citing Commonwealth v . Gordon , 992 A.2d 204, 207 n. 8 (Pa. Super. 2010).
On October 27, 2014, the Legislature amended section 3803 to read "[e]xcept as provided in subsection (b)," rather than "[n]otwithstanding the provisions of subsection (b)." See 75 Pa.C.S.A. § 3803(a). The amendment, however, does not support the Commonwealth's requested relief in this case because Rider's September 21, 2014 DUI offense predated the effective date of the amendment. See Commonwealth v. Williams , 871 A.2d 254, 259 n.5 (Pa. Super. 2005) (citations omitted) ("A defendant can be convicted only under statutes in effect on the date of his acts."). Therefore, pursuant to Musau , we are constrained to affirm Rider's judgment of sentence. Commonwealth v. Spease , 911 A.2d 952, 959 (Pa. Super. 2006) (citation omitted) (a prior opinion from our Court is "binding upon this Court and we are not at liberty to overrule it" in the absence of a superseding en banc Superior Court opinion or a Supreme Court opinion reversing the prior precedent).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2015