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.
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75 Pa.C.S.A. § 3803.2 The statutory maximum sentence for a misdemeanor
of the first degree is generally five years in prison. 18 Pa.C.S.A.
§ 106(b)(6).
In Commonwealth v. Musau, this Court was provided with an
opportunity to interpret the above-quoted version of 75 Pa.C.S.A. § 3803(a)
and (b)(4). In Musau, Mr. Musau was convicted of a second-offense DUI,
where he refused to submit to chemical testing. Musau, 69 A.3d at 755-
756. At Mr. Musau's sentencing hearing, the trial court looked to 75
Pa.C.S.A. § 3803(b)(4) and concluded that Mr. Musau's DUI conviction was
to be graded as a first-degree misdemeanor. Id.; see also 75 Pa.C.S.A.
§ 3803(b)(4). Further, the trial court held that the general, five-year
statutory maximum sentencing term for first-degree misdemeanors - as
found in 18 Pa.C.S.A. § 106(b)(6) - applied to Mr. Musau's conviction.
Musau, 69 A.3d at 755-756. In accordance with this construction, the trial
court sentenced Mr. Musau to serve a term of 90 days to 5 years in jail. Id.
at 756.
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In response to Musau, the Pennsylvania Legislature amended 75 Pa.C.S.A. § 3803(a) by deleting the phrase "[n]otwithstanding the provisions of" and replacing that phrase with the words "[e]xcept as provided in." See 75 Pa.C.S.A. § 3803 (effective October 27, 2014). However, since the amendment to Section 3803(a) was effective on October 27, 2014, and since Mr. Ettinger committed his crime before the effective date of the amendment, Mr. Ettinger was subject to the prior version of the statute.
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On appeal to this Court, Mr. Musau claimed that his sentence was
illegal because it exceeded the six-month statutory maximum penalty, as
provided in 75 Pa.C.S.A. § 3803(a)(1). Musau, 69 A.3d at 756. This Court
agreed with Mr. Musau. Specifically, the Musau Court read 75 Pa.C.S.A.
§ 3803(a) and (b)(4) in accordance with principles of statutory construction
and held that a defendant convicted of a second-offense DUI under 75
Pa.C.S.A. § 3802(a)(1), who refused chemical testing, could only be
sentenced to the statutory maximum term of six months' imprisonment, as
provided in Section 3803(a)(1). Musau, 69 A.3d at 758.
Important to the Musau Court's holding was the fact that, in drafting
75 Pa.C.S.A. § 3803(a), the Pennsylvania Legislature employed the phrase
"[n]otwithstanding the provisions of subsection (b);" and, as the Musau
Court noted, the term "notwithstanding" is defined, variously, as "in spite
of," "although," or "regardless of." Id. at 757. The Musau Court held that,
by employing the phrase "notwithstanding the provisions of subsection (b)"
in Section 3803(a), the Legislature intended for Section 3803(a) to apply
"regardless of"