J-S40026-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ANTHONY TETUAN, :

:

Appellant : No. 1983 WDA 2014

Appeal from the Judgment of Sentence November 13, 2014,

Court of Common Pleas, Erie County,

Criminal Division at No. CP-25-CR-0000163-2014

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED JULY 15, 2015

Appellant, Anthony Tetuan (“Tetuan”), appeals from the judgment of 

sentence entered on November 13, 2014 in the Court of Common Pleas, Erie 

County. After our review of the record, we vacate the sentence and remand 

for resentencing.

A brief summary of the facts and relevant history is as follows. On 

November 21, 2013, Tetuan, who was nineteen years old, was driving a 

vehicle with a suspended license based on a conviction of driving under the 

influence (“DUI”). On that night, Tetuan was again under the influence of 

alcohol and wrecked the vehicle by driving it into a utility pole. Tetuan 

refused to provide police with a breath or blood sample for chemical testing. 

As a result of the accident, Tetuan was charged with DUI, 75 Pa.C.S.A. 

§ 3802(a)(1), driving while operating privilege is suspended or revoked, 
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75 Pa.C.S.A. § 1543(b)(1.1)(i), and purchase, consumption, possession or 

transportation of liquor or malt or brewed beverages, 18 Pa.C.S.A. 

§ 6308(a).

On September 30, 2014, Tetuan pled guilty to the DUI charge 

(hereinafter, “Count One”) and driving with a suspended license 

(hereinafter, “Count Two”). As part of the plea bargain, Tetuan also 

admitted that this was his second DUI conviction within the last ten years. 

The trial court nolle prossed the charge of purchase, consumption, 

possession or transportation of liquor or malt or brewed beverages. 

On November 13, 2014, Tetuan appeared for a sentencing hearing. 

The trial court began by sentencing Tetuan on Count Two to the mandatory 

minimum of sixty days incarceration, with the allowance of admission to the 

work release program if he qualified during that period of incarceration, as 

well as the costs of prosecution, a mandatory minimum $500 fine, $10 EMSA 

fine, and $50 to the CAT MCARE fund. As this was Tetuan’s second DUI 

offense, the trial court sentenced Tetuan on Count One to an intermediate 

punishment sentence of thirty months under supervision that would begin 

with three months of home electronic monitoring, followed by three months 

of intensive supervision. In addition, the trial court mandated 250 hours of 

community service, a requirement to attend at least three AA meetings a 

week, undergo outpatient alcohol counseling, and undergo a mental health 
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evaluation and any other testing, treatment, counseling or program the 

probation office deemed appropriate.

Tetuan filed a motion for reconsideration of sentence on November 21, 

2014. On December 3, 2014, the trial court denied Tetuan’s motion for 

reconsideration. Tetuan thereafter filed a timely notice of appeal on 

December 4, 2014. On appeal, Tetuan presents one issue for our review:

[Did] [t]he lower court commit reversible error in 

failing to apply the Pennsylvania Superior Court’s 

ruling in Commonwealth v. Musau, 69 A.3d 745 

(Pa. Super. 2013) which limits the maximum penalty 

for [C]ount [One] to six months when [Tetuan] 

entered a plea while Musau was in place but was 

sentenced after the legislative “fix” was enacted?

Tetuan’s Brief at 3.

In this case, Tetuan was charged with DUI under section 3802(a)(1) of 

the Motor Vehicle Code which provides:

(a) General impairment.--

(1) An individual may not drive, operate or be in 

actual physical control of the movement of a 

vehicle after imbibing a sufficient amount of 

alcohol such that the individual is rendered 

incapable of safely driving, operating or being in 

actual physical control of the movement of the 

vehicle.

75 Pa.C.S.A. § 3802(a)(1).

At the time Tetuan committed his second DUI offense on November 

21, 2013, the DUI gradation statute under section 3803 of the Motor Vehicle 

Code provided, in relevant part:
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(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.A. § 3803(a)(1), (b)(4) (rescinded October 26, 2014).

On appeal, Tetuan argues that the trial court imposed a sentence that 

“did not comport with the current status of the law.” Tetuan’s Brief at 4. 

Tetuan specifically asserts that at the time he entered his guilty plea, the 

maximum penalty he could receive was six months of incarceration. 

Tetuan’s Brief at 4. In support of his assertion, Tetuan relies upon this 

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

2013). 

Similar to the facts in the case presently before this Court, the 

appellant in Musau was found by police in the driver’s seat of a running 

vehicle, smelled of alcohol, had bloodshot eyes, and could barely stand. Id.
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at 755. The police took him to its headquarters where the appellant refused 

to submit to chemical testing. Id. The trial court convicted him of driving 

under the influence and “graded the appellant’s offense as a first degree 

misdemeanor pursuant to 75 Pa.C.S.[A]. § 3803(b)(4)” since the appellant 

refused to submit to chemical testing and had a prior DUI conviction. Id. at 

755-56. As a result, the trial court sentenced appellant to ninety days to 

five years of imprisonment, in accordance with the statutory maximum for 

first-degree misdemeanors pursuant to 18 Pa.C.S.A. § 106(b)(6). Id.

On appeal, the appellant in Musau challenged the legality of his 

sentence, contending that six months of incarceration was the maximum 

permissible sentence pursuant to 75 Pa.C.S.A. § 3803(a)(1). The Musau

Court determined that the phrase “notwithstanding the provisions of 

subsection (b)” in section 3803(a) meant “regardless of” the provisions of 

subsection (b). Thus, the Musau Court concluded that the plain language of 

the statute provides that “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.” Id. at 758. As a result, the Musau Court held 

that the appellant’s sentence of ninety days to five years’ incarceration was 

illegal and vacated the appellant’s judgment of sentence and remanded the 

case for resentencing. Id.
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On October 14, 2014, following the Musau Court’s holding, the 

Pennsylvania Legislature passed Senate Bill 1239 which amended 

75 Pa.C.S.A. § 3803(a) by deleting the phrase “Notwithstanding the 

provisions of subsection (b)” and replacing it with “Except as provided in 

subsection (b).” The amended version became effective on October 27, 

2014. The trial court now asserts in its 1925(a) opinion that Tetuan’s 

sentence is appropriate because the Legislature “removed the portion of the 

law which Musau [] declared contained a loophole making the most serious 

2

nd offense DUI punishable as a first offense in terms of penalty.” Trial Court 

Opinion, 1/6/15, at 1. The trial court further asserts that “at [Tetuan’s] 

sentencing he was aware of the change and made no effort to withdraw his 

plea based on what he had been told at the time of his plea and what he 

now knew as to the possible max sentence. This was [Tetuan’s] remedy, 

not to be given a sentence that was no longer valid under the law.” Trial 

Court Opinion, 1/6/15, at 1.

The trial court failed to take into account that Tetuan committed his 

crime on November 13, 2013, and pled guilty on September 30, 2014, 

before the amended section 3803(a) became effective. Thus, Tetuan pled 

guilty to a crime that subjected him to a maximum sentence of six months’ 

imprisonment. Indeed, prior to Tetuan entering his guilty plea, the trial 

court properly conducted a guilty plea colloquy, a part of which requires the 

trial court to advise the defendant of the sentencing range that could be 
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imposed,1and advised Tetuan that the maximum sentence he could receive 

on Count One was six months of incarceration. N.T., 9/30/14, at 4. 

Although the Legislature amended section 3803(a), Musau remains binding 

precedent, as it has not been overturned by an en banc panel of this Court 

or by our Supreme Court.2 See Commonwealth v. Beck, 78 A.3d 656, 

659 (Pa. Super. 2013) (“This panel is not empowered to overrule another 

panel of the Superior Court.”); see also Marks v. Nationwide Ins. Co., 

762 A.2d 1098, 1101 (Pa. Super. 2000) (“we have long held that as long as 

the decision has not been overturned by our Supreme Court, a decision by 

our Court remains binding precedent.”). Accordingly, as the facts of this 

case are indistinguishable from the facts of Musau, we must conclude that 

the maximum sentence the trial court could impose under the facts of this 

case is six months of incarceration. Tetuan’s intermediate punishment 

sentence of thirty months exceeds the maximum sentence and therefore is 

illegal and must be vacated. See Commonwealth v. Boyd, 73 A.3d 1269, 

 

1

 “A valid plea colloquy must delve into six areas: 1) the nature of the 

charges, 2) the factual basis for the plea, 3) the right to a jury trial, 4) the 

presumption of innocence, 5) the sentencing ranges, and 6) the plea 

court’s power to deviate from any recommended sentence.” See 

Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) 

(emphasis added); Pa.R.Crim.P. 590(A)(2), cmt.

2

 We note that our Supreme Court granted review of this precise issue in 

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

however, recently dismissed the appeal as having been improvidently 

granted. 2015 WL 1421402 (Pa. March 30, 2015). Accordingly, Musau

remains binding precedent. 
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1271 (Pa. Super. 2013) (“[t]he classic claim of an illegal sentence is where 

the sentence exceeded the statutory maximum for the offense(s). A court is 

simply unauthorized to impose such a sentence.”) (quoting Commonwealth 

v. Foster, 17 A.3d 332, 349 (Pa. 2011)). 

Judgment of sentence vacated and remanded for proceedings 

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/15/2015