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COMMONWEALTH PENNSYLVANIA v. RIGOBERTO C. HERNANDEZ (02/01/85)

filed: February 1, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
RIGOBERTO C. HERNANDEZ, APPELLANT



No. 302 Harrisburg 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Perry County at No. 20 of 1983.

COUNSEL

William C. Costopoulos, Lemoyne, for appellant.

R. Scott Cramer, District Attorney, New Bloomfield, for Commonwealth, appellee.

Wickersham, Johnson and Hoffman, JJ.

Author: Wickersham

[ 339 Pa. Super. Page 36]

On February 5, 1983 at approximately 7:15 p.m., a car driven by appellant Rigoberto Hernandez was involved in a head-on collision with another car on Route 850 in Perry County. The driver of the second car, Kathy Kenee, age 20, died as a result of the collision. Evidence produced at trial showed that appellant was traveling in excess of the speed limit and had crossed the center line into the victim's lane of traffic. Appellant's blood alcohol content tested at .26%. Appellant was charged with involuntary manslaughter, 18 Pa.C.S. § 2504(a); homicide by vehicle, 75 Pa.C.S. § 3732; homicide by vehicle while driving under the influence, 75 Pa.C.S. § 3735(a); driving under the influence while impaired, 75 Pa.C.S. § 3731(a)(1); driving under the influence -- .10%, 75 Pa.C.S. § 3731(a)(4); and operation of a vehicle with suspended or revoked license, 75 Pa.C.S. § 1543(a).

On March 18, 1983, the Honorable Keith B. Quigley denied appellant's pre trial motion to dismiss the charges brought under the New Drunk Driving Law on constitutional grounds. In June of 1983, a jury found appellant guilty of all counts. Post trial motions were filed and denied, and

[ 339 Pa. Super. Page 37]

    on July 15, 1983, appellant was sentenced to the following terms of imprisonment: three (3) to seven (7) years on the homicide by vehicle while driving under the influence conviction; two and one-half (2 1/2) to five (5) years on the involuntary manslaughter conviction; two and one-half (2 1/2) to five (5) years on the homicide by vehicle conviction; and one (1) to two (2) years on the driving under the influence while impaired conviction.*fn1 A motion to modify sentence based on constitutional issues was filed and denied. This appeal timely followed.

Appellant raises a number of issues*fn2 addressing the constitutionality of the New Drunk Driving Law.*fn3

Our analysis begins with the strong presumption of constitutionality and the heavy burden of pursuasion [sic] upon one who challenges the constitutionality of an Act

[ 339 Pa. Super. Page 38]

    of the General Assembly. Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981); Commonwealth v. Barnes and Tucker Co., 472 Pa. 115, 123, 371 A.2d 461 (1977), appeal dismissed 434 U.S. 807, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977). Accordingly, legislation will not be declared unconstitutional unless it "clearly, palpably and plainly" violates the constitution. Snider v. Thornburgh, supra; Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 16, 331 A.2d 198 (1975).

Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340 (1983).

Appellant's first attack on the New Drunk Driving Law [hereinafter referred to as the "New Law"] concerns its mandatory sentencing provisions. The New Law establishes several mandatory sentences. In the instant case, appellant received a mandatory minimum sentence of three years imprisonment for his conviction on the charge of homicide by vehicle while driving under the influence. See 75 Pa.C.S. § 3735(a). There are also a number of mandatory minimum sentences, one of which applied to appellant, for driving under the influence convictions. See 75 Pa.C.S. § 3731(e)(1). Appellant urges us to declare these mandatory sentencing provisions unconstitutional for five different but closely related reasons.

First, appellant argues that by setting the penalties to be imposed under the New Law, the legislature has violated the separation of powers doctrine; sentencing of convicted criminals is for the judiciary and not the legislature. We agree with appellant that while some overlap of functions between the branches of government is inevitable, certain aspects of each branch must remain wholly apart from the control of the others. See In re 42 Pa.C.S. § 1703, 482 Pa. 522, 394 A.2d 444 (1978) (power to make rules is that of judiciary alone). Nevertheless, there is a basic distinction between criminal rights which are "procedural," over which the judiciary has exclusive and express constitutional authority, and rights which are "substantive," over which the legislature has the power to declare

[ 339 Pa. Super. Page 39]

    what acts are crimes and to prescribe the punishment for their commission. See Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Wharton, 495 Pa. 581, 435 A.2d 158 (1981). Although it is the judiciary's function to impose sentences upon conviction, it is for the legislature to establish criminal sanctions, and, as one of its options, it may prescribe a mandatory minimum term of imprisonment.

Bearing this distinction in mind, we find no significant difference in the language or rationale of the mandatory sentencing provisions in sections 3731(e)(1) and 3735 and the mandatory sentencing provisions in 18 Pa.C.S. § 1102 and 42 Pa.C.S. § 9711 (sentences for murder), or 18 Pa.C.S. § 2704 (sentence for assault by life prisoner). The constitutionality of the latter statutes have been upheld on numerous occasions. See Commonwealth v. Waters, 334 Pa. Super. 513, 483 A.2d 855 (1984); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980); Commonwealth v. Middleton, 320 Pa. Super. 533, 467 A.2d 841 (1983); Commonwealth v. Dessus, 262 Pa. Super. 443, 396 A.2d 1254 (1978); Commonwealth v. Bryant, 239 Pa. Super. 43, 361 A.2d 350 (1976). It is neither new nor unique that the legislature has prescribed mandatory sentences.*fn4 We find no unconstitutional violation ...


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