Submitted June 9, 2014
Appeal from the Order of the Court of Common Pleas, Berks County, Criminal Division, No(s): CP-06-CR-0000244-2009. Before BOCCABELLA, J.
Alisa R. Hobart, Assistant District Attorney, Reading, for Commonwealth, appellant.
Amy J. Shaffer, Public Defender, Reading, for appellee.
BEFORE: BENDER, P.J.E., BOWES, and PANELLA,
The Commonwealth appeals the order terminating the probationary aspect of Mario Dustin Concordia's county intermediate punishment sentence of ninety days incarceration and five years probation. We vacate the order and remand for additional
proceedings consistent with this decision.
On March 4, 2010, Appellee pled guilty to driving under the influence of alcohol, his second offense. In addition, Appellee refused blood testing. Accordingly, Appellee's offense was a misdemeanor of the first degree. At the time of Appellee's plea, such a plea could result in a five-year sentence. See 75 Pa.C.S. § 3803(b)(4); 18 Pa.C.S. § 106(b)(6). The court sentenced Appellee that same date to a county intermediate punishment sentence, which included ninety days in the Berks County Correctional Facility, with credit for eighty-seven days in an inpatient treatment facility. The court also imposed five years probation as part of the intermediate punishment sentence.
Subsequently, on June 28, 2013, this Court decided Commonwealth v. Musau, 2013 PA Super. 159, 69 A.3d 754 (Pa.Super. 2013). Although Musau was decided after Appellant's plea and sentence, because it involved a first-time question of statutory interpretation, it is not a new rule of law, and generally would apply retroactively. Fiore v. White, 562 Pa. 634, 757 A.2d 842, 848 (Pa. 2000) ( " when we have not yet answered a specific question about the meaning of a statute, our initial interpretation does not announce a new rule of law." );  Commonwealth v. Infante, 2013 PA Super. 46, 63 A.3d 358 (Pa.Super. 2013).
In Musau, a panel of this Court concluded that a defendant convicted of a second-time DUI under 75 Pa.C.S. § 3802(a)(1), and who refused the breath test could only be sentenced to a maximum of six months imprisonment. Here, Appellee refused breath/blood testing and was convicted of a second-time DUI pursuant to § 3802(a)(1), and the court sentenced him to the aforementioned county intermediate punishment sentence. The five-year probationary portion of the sentence plainly exceeds the statutory maximum of six months that the Musau Court held applied to convictions like ...