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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

STEPHEN CRAIG FESSLER

Appellee No. 2249 MDA 2013

Appeal from the Judgment of Sentence October 31, 2013

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0001141-2013

BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 26, 2014

The Commonwealth appeals from the judgment of sentence imposed 

on Stephen Craig Fessler by the Berks County Court of Common Pleas. On 

October 31, 2013, Fessler entered a guilty plea to one count of driving under 

the influence of alcohol (DUI),1and was sentenced to six months’ 

intermediate punishment (IP), and 60 days’ incarceration, with credit for 60 

days Fessler spent in a Berks County residential treatment facility. On 

appeal, the Commonwealth argues the court erred in failing to sentence 

Fessler to a mandatory 90 days’ incarceration pursuant to 75 Pa.C.S. § 

3804(c)(2)(i), and in failing to impose a five year maximum sentence 

____________________________________________

1 75 Pa.C.S. § 3802(a)(1). 
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pursuant to 75 Pa.C.S. § 3804(d). For the reasons set forth below, we 

affirm the judgment of sentence, but remand for correction of the record.

The facts underlying Fessler’s arrest are undisputed. Officer Ronald 

Tobias conducted a legal traffic stop of Fessler. During the stop, Officer 

Tobias suspected Fessler was intoxicated. The officer proceeded to conduct 

field sobriety tests, which Fessler failed. After he was taken into custody, 

Fessler refused blood testing. He was subsequently charged with DUI, and 

two summary traffic offenses.2 On October 31, 2013, Fessler entered a 

guilty plea to one count of DUI. Because this was Fessler’s second DUI 

conviction, and Fessler had refused chemical testing, the Commonwealth 

requested the court impose a five-year term of IP, with 90 days’ 

incarceration. N.T., 10/31/2013, at 5. However, the trial court made the 

following findings at sentencing:

[I]n reliance on the Superior Court case involving the refusal 

enhancement,[3]this Court deems Count 1 to be an ungraded 

misdemeanor and that the maximum sentence in regard to the 

charge is six months and not five years.

____________________________________________

2

Fessler’s DUI charge was graded as a first degree misdemeanor pursuant 

to 75 Pa.C.S. § 3803(b)(4) (“An individual who violates section 3802(a)(1)

where the individual refused testing of blood or breath, ... and who has one 

or more prior offenses commits a misdemeanor of the first degree.”).

3 Although the Superior Court decision was never specifically identified by 

the trial court at sentencing, we presume the court was referring to this 

Court’s recent decision in Commonwealth v. Musau, 69 A.3d 754 (Pa. 

Super. 2013).
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The Court also indicates of record that the Superior Court’s 

decision allows for no discretion on the part of the Trial Court.

Id. at 8. The court then proceeded to sentence Fessler to term of six 

months’ county IP, in addition to 60 days’ imprisonment, with credit for 60 

days Fessler served in a residential treatment facility. The Commonwealth 

filed a timely motion to modify the sentence, which the court denied on 

November 19, 2013. This appeal followed.4

On appeal, the Commonwealth challenges the trial court’s refusal to 

impose a mandatory minimum sentence, as well as the court’s failure to 

comply with the statutory requirements regarding the maximum sentence 

applicable to Fessler’s IP term. We note there appears to be no clear 

consensus as to whether such claims challenge the legality or discretionary 

aspects of sentencing. See Commonwealth v. Foster, 17 A.3d 332, 345 

(Pa. 2011) (plurality) (challenge to imposition of mandatory minimum raises 

legality of sentencing issue) (Per Baer, J., with two justices joining, two 

justices concurring only in the judgment, and two justices concurring 

separately). Nevertheless, even if we determine the Commonwealth’s issues 

raise discretionary claims, the Commonwealth preserved its challenges in a 

____________________________________________

4 On January 15, 2014, the trial court ordered the Commonwealth to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). The Commonwealth complied with the court’s directive and filed a 

concise statement on January 22, 2014.
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post-sentence motion, and we may address them on appeal.5 See

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). 

In its first issue, the Commonwealth argues the trial court erred in 

failing to impose the 90-day mandatory minimum prison term, as required 

by Section 3804(c)(2)(i),6for individuals who refuse chemical testing and 

have at least one prior DUI conviction.

“This case involves the interplay between the mandatory sentencing 

provisions of the DUI statute and the discretionary sentencing provisions of 

the Sentencing Code[.]” Commonwealth v. Williams, 941 A.2d 14, 21 

(Pa. Super. 2008). “The objective of all statutory interpretation and 

construction is to effectuate the General Assembly's intent.” Id. at 25 

(citation omitted).

Pursuant to 75 Pa.C.S. § 3804(c)(2)(i), a defendant, like Fessler, who 

violates Section 3802(a)(1), has a prior DUI conviction, and refuses chemical 

testing, must “undergo imprisonment of not less than 90 days[.]” However, 

notwithstanding this mandatory sentencing provision in the Vehicle Code, a 

____________________________________________

5 Although the Commonwealth neglected to include in its appellate brief the 

requisite statement pursuant to Pa.R.A.P. 2119(f), setting forth the reasons 

relied upon for allowance of appeal, Fessler did not object to this omission. 

Therefore, we may overlook the defect. Commonwealth v. Titus, 816 

A.2d 251, 255 (Pa. Super. 2003). 

6 This claim raises a substantial question “that the sentence imposed is ... 

inconsistent with a specific provision of the Sentencing Code,” that is, 

Section 3804(c)(2)(i). Commonwealth v. Ventura, 975 A.2d 1128, 1133 

(Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009) (citation omitted
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trial court has the discretion, pursuant to the Sentencing Code, to forgo a 

sentence of imprisonment, and impose a sentence of county intermediate 

punishment.

Section 9721 of the Sentencing Code provides trial courts with the 

following sentencing alternatives:

(a) General rule. -- In determining the sentence to be imposed 

the court shall, except as provided in subsection (a.1), 

consider and select one or more of the following alternatives, 

and may impose them consecutively or concurrently:

(1) An order of probation.

(2) A determination of guilt without further penalty.

(3) Partial confinement.

(4) Total confinement.

(5) A fine.

(6) County intermediate punishment.

(7) State intermediate punishment.

(a.1) Exception.—

(1) Unless specifically authorized under section 9763

(relating to a sentence of county intermediate punishment) 

or 61 Pa.C.S. Ch. 41 (relating to State intermediate 

punishment), subsection (a) shall not apply where a 

mandatory minimum sentence is otherwise provided 

by law.

42 Pa.C.S. § 9721(a)-(a.1) (emphasis supplied). 

Section 9763 authorizes a trial court to sentence a defendant, subject 

to the penalties for a first, second, or third DUI conviction set forth in 

Section 3804, to a term of county IP “after undergoing an assessment under 

75 Pa.C.S. § 3814 (relating to drug and alcohol assessments).” 42 Pa.C.S. § 
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9763(c)(1). Once the assessment is completed, the statute provides as 

follows:

(2) If the defendant is determined to be in need of 

drug and alcohol treatment, the defendant may only be 

sentenced to county intermediate punishment which 

includes participation in drug and alcohol treatment under 

75 Pa.C.S. § 3815(c) (relating to mandatory sentencing). 

The defendant may only be sentenced to county 

intermediate punishment in:

(i) a residential inpatient program or a residential 

rehabilitative center;

(ii) house arrest with electronic surveillance;

(iii) a partial confinement program such as work 

release, work camp and halfway facility; or

(iv) any combination of the programs set forth in 

this paragraph.

42 Pa.C.S. § 9763(c) (2) (emphasis supplied).7 Section 9763 also restricts 

the maximum term a trial court may impose for an IP sentence to “the 

maximum term for which the defendant could be confined.” 42 Pa.C.S. § 

9763(a). 

Based upon the statutory scheme outlined above, we conclude that the 

trial court was acting within its discretion when it chose to impose a county 

IP sentence, rather than the 90-day minimum term of incarceration set forth 

____________________________________________

7 See also 42 Pa.C.S. § 9804(b)(5) (“A defendant subject to 75 Pa.C.S. § 

3804 (relating to penalties) ... may only be sentenced to county intermediate 

punishment for a first, second or third offense under 75 Pa.C.S. Ch. 38 

(relating to driving after imbibing alcohol or utilizing drugs) ....). 
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in Section 3804(c)(2)(i). Although Fessler, as a second time offender who 

refused chemical testing, was subject to the mandatory provisions of Section 

3804(c)(2), Section 9721(a.1) authorizes a trial court to impose a county IP 

sentence, notwithstanding the mandatory minimum provisions, if the 

sentence is sanctioned under Section 9763. Section 9763 expressly permits 

a trial court to impose a county IP sentence on a defendant subject to the 

penalties for a second DUI offense set forth in Section 3804, so long as 

the defendant has undergone a drug and alcohol assessment

pursuant to 75 Pa.C.S. § 3814. 

Here, Fessler submitted to a drug and alcohol assessment, and was 

determined to be in need of further treatment. See Commonwealth’s Motion

to Modify Sentence, 11/8/2013, Exhibit A, Treatment Access and Services 

Center, Inc. (TASC) Recommendation. Therefore, at the time of sentencing, 

the trial court was acting within its discretion when it imposed a six-month 

county IP sentence. See Williams, supra, at 26 (finding trial court acted 

within its “statutory authority and discretion” when it sentenced defendant, a 

second-time DUI offender, to county IP, rather than mandatory 30 days’ 

imprisonment pursuant to Section 3804(b)(2), when it determined he was a 

“eligible offender” pursuant to Section 9804(b)(1)). Accordingly, the 

Commonwealth’s first issue fails.

Next, the Commonwealth argues the trial court erred in failing to 

impose a maximum term of five years on Fessler’s IP sentence. The 

Commonwealth contends that since Fessler’s conviction was graded as a 
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first-degree misdemeanor pursuant to 75 Pa.C.S. § 3803(b)(4),8the 

statutory maximum sentence that the court could have imposed was five 

years’ incarceration. See 18 Pa.C.S. § 1104(1). Moreover, it asserts that 

because Fessler was “determined to be in need of additional treatment,” 

pursuant to Section 3804(d), the trial court was required to impose “a 

maximum sentence equal to the statutorily available maximum[,]” which, in 

this case, was five years. 75 Pa.C.S. § 3804(d). 

However, as the Commonwealth acknowledges in its brief, this issue is 

controlled by the decision in Commonwealth v. Musau, 69 A.3d 754 (Pa. 

Super. 2013). In that case, a panel of this Court considered the interplay 

between Section 3803(a)(1) and Section 3803(b)(4). As noted supra, 

Section 3803(b)(4) provides that a violation of Section 3802(a)(1) by a 

defendant who refuses chemical testing and has a prior DUI conviction, is 

graded as a first-degree misdemeanor. 75 Pa.C.S. § 3803(b)(4). However, 

subsection (a) of the statute reads as follows:

(a) ... Notwithstanding the provisions of subsection (b):

____________________________________________

8 Section 3803(b)(4) provides, in relevant part:

An individual who violates section 3802(a)(1) where the 

individual refused testing of blood or breath, ... and who has one 

or more prior offenses commits a misdemeanor of the first 

degree.

75 Pa.C.S. § 3803(b)(4).
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(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).

75 Pa.C.S. § 3803(a) (emphasis supplied). In reconciling these two 

ostensibly contradictory provisions, the Musau Court held that the term 

“notwithstanding” preceding the language in subsection (a) indicated that 

the Legislature intended subsection (a) to control for sentencing purposes. 

The Court opined:

[W]e 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, supra, 69 A.3d at 758 (emphasis supplied). Furthermore, in 

addressing the Commonwealth’s argument that such an interpretation would 

render subsection (b) a nullity, the Musau Court observed that the 

Commonwealth “conflate[d] grading and sentencing.” Id. The Court 

explained that the Legislature may have intended to increase the grading of 

the offense to a first-degree misdemeanor for purposes of the defendant’s 

criminal record, without increasing the actual penalty for the offense. Id. 

Therefore, the Musau Court concluded “the maximum sentence allowable 

for [Musau’s] conviction is six months’ imprisonment.” Id.
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In the present case, the Commonwealth argues that Musau was 

wrongly decided, and emphasizes that the issue is pending before the 

Pennsylvania Supreme Court.9 Nevertheless, because the Supreme Court 

has not yet ruled upon the issue, our Court’s prior decision in Musau is 

binding precedent. Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. 

Super. 2006). Accordingly, we conclude the trial court did not err in 

imposing a maximum sentence of six months’ county IP.

Although not raised by either party, we are compelled to address the 

trial court’s refusal to grade Fessler’s offense as a first-degree misdemeanor. 

In sentencing Fessler, the trial court made the following comments: 

[I]n reliance on the Superior Court case involving the refusal 

enhancement, this Court deems Count 1 to be an ungraded 

misdemeanor and that the maximum sentence in regard to the 

charge is six months and not five years.

____________________________________________

9 The Supreme Court granted a petition for allowance of appeal in an 

unpublished decision of this Court, Commonwealth v Mendez, 3274 EDA 

2011 (Pa. Super. 2012), on the following issue:

In upholding a sentence that exceeds the statutory maximum 

explicitly set out in 75 Pa.C.S. § 3803, did not the majority 

violate the rules of statutory construction in order to avoid what 

it saw as “problematic consequences” resulting from a 

straightforward application of the statute?

Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013). The Commonwealth 

filed a petition for allowance of appeal in Musau, and, on February 11, 

2014, the Supreme Court placed the petition on hold pending its resolution 

of Mendez. See Order, 2/11/2014, Commonwealth v. Musau, 501 EAL 

2013 (Pa. 2013). 
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N.T., 10/31/2013, at 8. Presumably relying on Musau, the court correctly 

stated that Fessler’s maximum sentence could be no longer than six months. 

However, the trial court misinterpreted the Musau Court’s holding regarding 

the grading of the offense. Indeed, the Musau Court concluded that while 

the Legislature may have intended a second-time DUI offender who refuses 

chemical testing to be subject to a maximum six-month jail term, it also 

specified the offense would be graded as a first-degree misdemeanor. See 

Musau, supra, 69 A.3d at 758. 

Here, Fessler’s offense was properly graded as a first-degree 

misdemeanor on the Criminal Information. However, it is listed as an 

ungraded misdemeanor on his sentencing order. See DUI Intermediate 

Punishment Order, 10/31/2013. Accordingly, we remand the case with 

directions to the trial court to correct Fessler’s conviction and sentencing 

record to reflect that his conviction of 75 Pa.C.S. § 3802(a)(1) is graded as a 

first-degree misdemeanor. In all other respects, we affirm the judgment of 

sentence.
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Judgment of sentence affirmed. Case remanded for correction of the 

record consistent with this Memorandum. Jurisdiction relinquished.

Judge Musmanno joins the memorandum.

Judge Bowes concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/26/2014