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COMMONWEALTH PENNSYLVANIA v. DOUGLAS KUPHAL (11/15/85)

SUPERIOR COURT OF PENNSYLVANIA


filed: November 15, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DOUGLAS KUPHAL, APPELLANT

Appeal from the Judgment of Sentence in the Court of Common Pleas of Bucks County, Criminal No. 1494/1982. Appeal from the Judgment of Sentence in the Court of Common Pleas of Bucks County, Criminal No. 732/1983. Appeal from the Judgment of Sentence in the Court of Common Pleas of Bucks County, Criminal No. 1514/1983

COUNSEL

Stuart M. Wilder, Assistant Public Defender, Doylestown, for appellant.

Stephen B. Harris, Assistant District Attorney, Warrington, for Com., appellee.

Spaeth, President Judge, and Cavanaugh, Wickersham, Rowley, Olszewski, Montemuro, Beck, Tamilia and Johnson, JJ. Beck, J., files a concurring opinion. Spaeth, President Judge, files a dissenting opinion joined by Olszewski, Montemuro and Tamilia, JJ.

Author: Wickersham

[ 347 Pa. Super. Page 573]

Three appeals are before the court. The principal issue is whether the legislative veto provided by 42 Pa.C.S. § 2155(b) is constitutional. On Appeal Nos. 2803 and 2804 Philadelphia 1983, Judge WICKERSHAM, joined by Judges CAVANAUGH, ROWLEY, and JOHNSON, would hold that the legislative veto is not unconstitutional and would affirm. President Judge SPAETH, joined by Judges OLSZEWSKI, MONTEMURO and TAMILIA, would hold that the legislative veto is unconstitutional and would vacate the judgments of sentence. Judge BECK would hold that the

[ 347 Pa. Super. Page 574]

    legislative veto is unconstitutional but would further hold that the provision providing for the veto is severable; she therefore joins the judges who would affirm. The judgments of sentence on Appeal No. 2803 and 2804 Philadelphia 1983 are therefore affirmed. Appeal No. 2802 Philadelphia 1983 presents only the issue of whether the trial court in imposing sentence abused its discretion. On that appeal, all of the judges agree that the judgment of sentence should be, and it therefore is, affirmed. The several opinions follow.

WICKERSHAM, Judge:

On June 20, 1983, appellant Douglas Kuphal entered guilty pleas in the Court of Common Pleas of Bucks County to three separate informations, charging him with robbery, theft, receiving stolen property, assault, terroristic threats, criminal mischief, and driving under the influence. Following a presentence investigation, appellant was sentenced to concurrent terms of state imprisonment of twelve (12) to thirty-six (36) months and six (6) to twelve (12) months. These sentences were to run consecutively from a county sentence appellant was serving at the time. Following the denial of his motion for reconsideration of sentence, appellant filed these timely appeals.

On appeal, appellant questions the validity of Pennsylvania's sentencing guidelines, 204 Pa.Code § 303.1 et seq. As in its companion cases,*fn1 the principal issue in this case is whether section 3 of the Act of November 26, 1978, P.L. 1316, No. 319, 18 Pa.C.S. § 1321(b); transferred by Act of October 5, 1980, P.L. 693, No. 142, to 42 Pa.C.S. §§ 2151-2155, 9721 is unconstitutional. Section 3 of the Act provides for the creation of the Pennsylvania Commission on Sentencing and the adoption of sentencing guidelines by the Commission. Appellant argues that section 3 is unconstitutional

[ 347 Pa. Super. Page 575]

    and that, therefore, the sentencing guidelines under which he was sentenced, are invalid. We disagree.

The above Act provides that the Sentencing Commission should adopt sentencing guidelines and then publish them in the Pennsylvania Bulletin. After the Commission adopts and publishes the guidelines, "[t]he General Assembly may by concurrent resolution reject [the guidelines] in their entirety . . . within 90 days of their publication." If not so rejected, the guidelines become effective 180 days after publication.

In January 1981, the Commission adopted and published proposed guidelines; these were rejected, however, by a concurrent resolution. In January 1982, the Commission presented a new set of guidelines to the General Assembly. The Senate expressly approved the new guidelines; the House, however, took no action on them within the 90 day period specified by the Act. In May 1982, the Sentencing Commission announced that the General Assembly had "adopted" the revised guidelines. They became effective July 22, 1982.

President Judge Spaeth's dissenting opinion notes that the Pennsylvania Constitution provides that the legislative power of the Commonwealth, which is vested in both Houses of the General Assembly, may be exercised only with the concurrence of both Houses and after presentment to the Governor. Pa. Const. art. II, § 1; art. III, §§ 1, 4, 5, and 9; art. IV, § 15. The Act under consideration provides that the General Assembly, by concurrent resolution, may reject the sentencing guidelines adopted by the Sentencing Commission. President Judge Spaeth argues that such a rejection is an exercise of legislative power and can only be made after presentment to the Governor and that since the Act does not provide for presentment to the Governor, it is unconstitutional.

We do not believe that the General Assembly's rejection of the guidelines was an "exercise of legislative power". An "exercise of legislative power" is an act that is

[ 347 Pa. Super. Page 576]

    legislative in purpose and effect. President Judge Spaeth says that the rejection was legislative in effect because it changed the procedure which sentencing judges would follow. We disagree. Since the guidelines were not in effect at the time of the rejection, the rejection did not change the procedure sentencing judges would follow, but merely maintained the status quo. Thus, we do not see how this can be considered an exercise of legislative power.

We believe that the "legislative power" with respect to the sentencing guidelines was exercised not when the General Assembly rejected the first set of guidelines, but when it passed the Act which created this procedure for adopting the guidelines. The Act itself was passed by both Houses and signed by the Governor. This was the "presentment" required by our Constitution. The rejection of the guidelines was not an "exercise of legislative power" such that it also required presentment to the Governor; hence the sentencing guidelines are not invalid on that ground. We hold that section 3 of the Act is constitutional. Finding no merit to the other constitutional challenges presented by appellant, we, therefore, affirm the judgments of sentence.*fn2

Judgments of sentence affirmed.

Disposition

Judgments of sentence affirmed.

BECK, Judge, concurring:

I agree with Judge Wickersham that the sentencing guidelines are constitutional but I reach that determination through a different analysis.

[ 347 Pa. Super. Page 577]

If the legislative veto provision, 42 Pa.C.S. § 2155(b), of the sentencing guidelines legislation were non-severable, I should support Judge Spaeth's view that the process by which the guidelines came into being is unconstitutional. See Pa. Const. art. III, § 9. But inasmuch as I find that subsections 218(c) and 218(d) of the Act of October 5, 1980 ("Act of 1980"), P.L. 693, make the legislative veto provision severable, I uphold the constitutionality of the sentencing guidelines adopted pursuant to the Act of 1980.

"The public policy of this Commonwealth favors severability" of statutory provisions. Department of Education v. First School, 471 Pa. 471, 478, 370 A.2d 702, 705 (1977). Hence, a statutory provision is presumed severable unless the provision is so interrelated with the statute as a whole that the legislature clearly would not have intended to enact the remainder of the statute without the provision in question, Heller v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984); 1 Pa.C.S. § 1925, or the wording of the statute specifically rebuts the presumption of severability. See First School.

The language of the severability clause in the Act of 1980 supports the conclusion that the legislative veto provision is severable. In analyzing the severability clause in the Act of 1980, I consider two basic principles of statutory construction: (1) the legislature is presumed to change the wording of a statute in order to signal a change in legislative intent and (2) the legislature is presumed not to intend any provision of a statute as surplusage but rather is presumed to intend that every word in a statute have effect. Masland v. Bachman, 473 Pa. 280, 374 A.2d 517 (1977); Crusco v. Insurance Company of North America, 292 Pa. Super. 293, 437 A.2d 52 (1981).

The Act of 1980 does not adopt the severability language of its predecessor act, the Act of November 26, 1978 ("Act of 1978"), P.L. 1316, which clearly proclaimed that the legislative veto was non-severable. The legislative veto provision of the Act of 1978 appears in section 3 of that act. The severability clause (section 7) in the Act of 1978 states

[ 347 Pa. Super. Page 578]

    that "[t]he provisions of section 3 [which includes the legislative veto] are not severable and if any provision thereof . . . is held invalid, the remainder of section 3 and section 6 shall be invalid."*fn1

The legislative veto provision of section 3 of the Act of 1978 is now contained in subsection 218(a) of the Act of 1980.*fn2 Subsection 218(d) of the Act of 1980 specifically repeals the severability clause (section 7) of the Act of 1978. The Act of 1980 severability clause appears in subsection 218(c) which declares that "[t]he provisions of subsection (a), 42 Pa.C.S. § 9781 (relating to appellate review of sentence), and section 6 of the act of November 26, 1978 . . . are not severable and if any provision thereof . . . is held invalid, the remainder of subsection (a), 42 Pa.C.S. § 9781 and such section 6 shall be invalid."*fn3

While the plain meaning of the words in the Act of 1978 severability clause evidences that the legislative veto provision in that act was non-severable, the question remains whether the language in the Act of 1980 precludes severability of the Act of 1980 legislative veto provision.

The severability clause in the Act of 1980 provides that subsection (a), 42 Pa.C.S. § 9781 and section 6 of the Act of 1978 are non-severable from the remainder of the Act of 1980. Guided by the tenets of statutory construction, I interpret the phrase "subsection (a), 42 Pa.C.S. § 9781" to

[ 347 Pa. Super. Page 579]

    mean subsection (a) of 42 Pa.C.S. § 9781 rather than subsection (a) of section 218 of the Act of 1980.

If the legislature had intended "subsection (a)" to refer to section 218 of the Act of 1980, the legislature could have unequivocally indicated so by inserting the words "of this section" immediately after the reference to subsection (a). This is precisely the technique utilized by the legislature in subsection 218(e) of the Act of 1980 where in a sentence referring, inter alia, to Title 42 (42 Pa.C.S.) and the Act of 1980, the legislature employed the phrase "subsection (c) of this section" to show that subsection (c) related to section 218 of the Act of 1980 and not to Title 42.

Given the repealer provision and the severability clause language in the Act of 1980, I am convinced that nothing in the Act of 1980 forecloses the severability of the legislative veto provision from the rest of the Act of 1980.

Agreeing with Judge Spaeth that the legislative veto provision is unconstitutional, I should strike that single provision of the Act of 1980. However, inasmuch as the Act of 1980 legislative veto provision was not exercised in conjunction with the sentencing guidelines adopted pursuant to the Act of 1980 and is, by my analysis, severable, I should uphold the constitutionality of the remaining provisions of the Act of *fn19804 and the sentencing guidelines adopted in conformity therewith.

SPAETH, President Judge:

The issue on this appeal and its companion cases*fn1 is the constitutionality of Section 3 of the Act of November 26,

[ 347 Pa. Super. Page 5801978]

, P.L. 1316, No. 319,*fn2 providing for the Pennsylvania Commission on Sentencing and the adoption of sentencing guidelines. I should hold that Section 3 of the Act is unconstitutional, from which it follows that the sentencing guidelines, 204 Pa.Code § 303.1 et seq., are invalid. Since in sentencing appellant, the trial court considered the guidelines, the judgments of sentence should be vacated and the case remanded for resentencing. I should further hold, however, that this decision is prospective only and therefore does not apply to cases in which the sentencing guidelines were considered by the sentencing judge but not challenged by the defendant as unconstitutional.

-1-

The Sentencing Code*fn3 provides that the sentencing judge has discretion to choose from among five sentencing alternatives. 42 Pa.C.S. § 9721 (providing for a sentence of total confinement, partial confinement, probation, fine, or

[ 347 Pa. Super. Page 581]

    determination of guilt without further penalty). The Code sets general standards by which this discretion is to be exercised, 42 Pa.C.S. § 9721(b), states the principles specific to each alternative, 42 Pa.C.S. §§ 9722-9726, and identifies the factors that weigh in favor of probation, 42 Pa.C.S. § 9722.*fn4

By Act of November 26, 1978, the General Assembly provided that the sentencing judge must also consider "sentencing guidelines," to be adopted by the Pennsylvania Commission on Sentencing.*fn5 The Act further provided that until guidelines adopted by the Commission became effective, the judge was to "consider as a guideline in imposing sentence" that certain repeat offenders should "be sentenced to a minimum term of not less than four years imprisonment."*fn6

[ 347 Pa. Super. Page 582]

This legislation was the result of widespread interest in the sentencing commission concept. In 1978, the Uniform Law Commissioners' Model Sentencing and Corrections Act proposed a sentencing commission to develop sentencing guidelines, which would be effective following notice and comment rulemaking procedures and filing in the appropriate state office. § 3-110 et seq. Senate Bill No. 1437, 95th Cong., 2d Sess. (1978), which was the subject of considerable debate, also proposed a sentencing commission to develop sentencing guidelines. And just prior to passage of the Act of 1978, Minnesota had created a sentencing commission to establish guidelines for that state.*fn7 Since 1978, the sentencing commission concept has gained acceptance in other states and in the Congress,*fn8 and in 1979, the American Bar Association recommended the use of a commission for setting minimum sentences. Standards Relating to Sentencing Alternatives and Procedures, Standard 18-4.3(c)(i) (1979).

[ 347 Pa. Super. Page 583]

Under the Act of 1978, the Pennsylvania Commission on Sentencing is specifically authorized to

(1) Establish general policies and promulgate such rules and regulations for the commission as are necessary to carry out the purposes of this subchapter and Chapter 97 (relating to sentencing).

(2) Utilize, with their consent, the services, equipment, personnel, information and facilities of Federal, State, local and private agencies and instrumentalities with or without reimbursement therefor.

(3) Enter into and perform such contracts, leases, cooperative agreements and other transactions as may be necessary in the conduct of the functions of the commission, with any public agency or with any person, firm, association, corporation, educational institution or nonprofit organization.

(4) Request such information, data and reports from any officer or agency of the Commonwealth government as the commission may from time to time require and as may be produced consistent with other law.

(5) Arrange with the head of any government unit for the performance by the government unit of any function of the commission, with or without reimbursement.

(6) Issue invitations requesting the attendance and testimony of witnesses and the production of any evidence that relates directly to a matter with respect to which the commission or any member thereof is empowered to make a determination under this subchapter.

(7) Establish a research and development program within the commission for the purpose of:

(i) Serving as a clearinghouse and information center for the collection, preparation and dissemination of information on Commonwealth sentencing practices.

(ii) Assisting and serving in a consulting capacity to State courts, departments and agencies in the development, maintenance and coordination of sound sentencing practices.

[ 347 Pa. Super. Page 584]

(8) Collect systematically the data obtained from studies, research and the empirical experience of public and private agencies concerning the sentencing processes.

(9) Publish data concerning the sentencing processes.

(10) Collect systematically and disseminate information concerning sentences actually imposed.

(11) Collect systematically and disseminate information regarding effectiveness of sentences imposed.

(12) Make recommendations to the General Assembly concerning modification or enactment of sentencing and correctional statutes which the commission finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy.

42 Pa.C.S. § 2153(a).*fn9

The Act further provides that the guidelines adopted by the Commission shall:

(1) Specify the range of sentences applicable to crimes of a given degree of gravity.

(2) Specify a range of sentences of increased severity for defendants previously convicted of a felony or felonies or convicted of a crime involving the use of a deadly weapon.

(3) Prescribe variations from the range of sentences applicable on account of aggravating or mitigating circumstances.

42 Pa.C.S. § 2154.

Finally, the Act provides the procedure by which the guidelines may become effective. Before adopting any guidelines, the Commission must publish proposed guidelines in the Pennsylvania Bulletin, and hold public hearings, at which specified persons and representatives of specified organizations may testify. 42 Pa.C.S. § 2155(a)(1). The Commission must then publish the guidelines, as adopted

[ 347 Pa. Super. Page 585]

    after such hearings, in the Pennsylvania Bulletin, 42 Pa.C.S. § 2155(a)(2). The guidelines must be adopted and published within 21 months of the Commission's first meeting. 42 Pa.C.S. § 2155(a)(3).*fn10 However, when the guidelines have been thus adopted and published, "[t]he General Assembly may by concurrent resolution reject [the guidelines] in their entirety . . . within 90 days of their publication . . . ." 42 Pa.C.S. § 2155(b).*fn11 If not so rejected, the guidelines become effective 180 days after publication.*fn12 42 Pa.C.S. § 2155(c).

-2-

The Commission on Sentencing began its work in April 1979, and published its proposed guidelines in October 1980. See 10 Pa.Admin.Bull. 4181-96 (Oct. 25, 1980). After hearings, the guidelines were revised, and in January 1981 they

[ 347 Pa. Super. Page 586]

    were adopted by the Commission and published. See 11 Pa.Admin.Bull. 463-76 (Jan. 24, 1981). However, in April 1981 the General Assembly by concurrent resolution rejected the guidelines. H.Res. 24 (adopted by House, Apr. 1, 1981; adopted by Senate, Apr. 8, 1981). The resolution "urge[d] and direct[ed]" the Commission to "revise and resubmit" the guidelines within six months. Id. In this regard, the resolution

     submit[ted] the following suggestions to the Sentencing Commission as the areas where the Commission should review the initial sentencing guidelines and examine the advisability of revisions:

(1) Increase the upper limit of sentences within each section of the grid.

(2) Provide judges more latitude in sentencing where aggravating or mitigating circumstances are found.

(3) Clarify that the list of aggravating and mitigating circumstances is not exclusive.

(4) Eliminate prior guideline proposal relating to treatment of concurrent or consecutive sentencing practices.

(5) Increase the severity of sentences for crimes involving serious bodily injury or the likelihood or threat of serious bodily injury.

Id.

In October 1981, as instructed by the concurrent resolution, the Commission proposed new guidelines, see 11 Pa.Admin.Bull. 3597-3605 (Oct. 17, 1981), and in January 1982, after hearing and publication, guidelines were again presented to the General Assembly. See 12 Pa.Admin.Bull. 431-40 (Jan. 23, 1982). The Senate expressly approved the new guidelines, S.Res. 227 (adopted by Senate, Apr. 20, 1982), but the House took no action on them within the 90-day period specified by the Act of 1978. 42 Pa.C.S. § 2155(b). In May 1982 the Commission announced that the General Assembly had "adopted" the guidelines, and, in anticipation of their effective date, scheduled training sessions for trial court judges. See 12 Pa.Admin.Bull. 1536 (May 15, 1982). The guidelines became effective July 22,

[ 347 Pa. Super. Page 5871982]

, 204 Pa.Code § 303.1 et seq., applicable to cases in which the offense was committed on or after that date, id. § 303.1(d).

-3-

Before one may consider appellant's arguments that the sentencing guidelines are unconstitutional, it is necessary to consider the issue of appellant's standing.

Appellant has no standing to argue that in adopting and promulgating the guidelines as effective, the Sentencing Commission infringed upon the authority of either the General Assembly or the Governor. Cf. United States v. City of Yonkers, 592 F.Supp. 570 (S.D.N.Y. 1984) (no standing to raise rights of Congress in case involving statute providing for one-house veto); United States v. Sutton, 585 F.Supp. 1478 (N.D.Okla. 1984) (no standing where veto not exercised, for no showing of injury). To have standing, a defendant must be "affected by the particular feature alleged to be in conflict with the constitution." Commonwealth v. Dodge, 287 Pa. Super. 148, 153, 429 A.2d 1143, 1146 (1981). See also Commonwealth v. Haldeman, 288 Pa. 81, 135 A. 651 (1927). Here, appellant has been affected by the allegedly unconstitutional guidelines. Having committed crimes after the purported effective date of the guidelines, July 22, 1982, appellant was sentenced by a judge who in arriving at the sentence, considered the guidelines,*fn13 as the Act of 1978 required the judge to do. If the judge should not have considered the guidelines, because they are invalid as adopted pursuant to an unconstitutional Act, then appellant has been injured, and he is entitled to be resentenced without reference to the guidelines. In Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), it was argued that the appellant

[ 347 Pa. Super. Page 588]

    lacked standing to challenge the constitutionality of a provision in a statute authorizing one House of Congress to veto the decision of the Executive Branch to allow him, a deportable alien, to remain in the United States. The argument was that "Chadha [the appellant] lacks standing because a consequence of his prevailing will advance the interests of the Executive Branch in a separation of powers dispute with Congress, rather than simply Chadha's private interests." Id. at 935, 103 S.Ct. at 2776. Rejecting this argument, the Court held:

Chadha has demonstrated "injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury . . . ." [citation omitted]. If the veto provision violates the Constitution, . . . the deportation order against Chadha will be cancelled. Chadha therefore has standing . . . .

Id.

This reasoning is equally persuasive here. Indeed, if appellant does not have standing to challenge his sentence as imposed on consideration of invalid guidelines, it is difficult to conceive who would have standing.

-4-

In explaining my conclusion, noted at the beginning of this opinion, that Section 3 of the Act of 1978 is unconstitutional, I shall not discuss all of the arguments that have been made to us,*fn14 for I should find one argument dispositive. This argument may be summarized as follows: The Pennsylvania Constitution provides that the legislative power of the Commonwealth is vested in both Houses of the General Assembly, and may be exercised only with the concurrence of both Houses and after presentment to the

[ 347 Pa. Super. Page 589]

Governor. Pa. Const. art. II, § 1; art. III, §§ 1, 4, 5 and 9; art. IV, § 15. The Act of 1978 provides that the General Assembly may reject sentencing guidelines adopted by the Pennsylvania Commission on Sentencing, 42 Pa.C.S. § 2155(b), and since a decision to reject sentencing guidelines is an exercise of legislative power, it must be made with the concurrence of both Houses and after presentment to the Governor. However, the Act of 1978 provides for only the concurrence of both Houses. Id. Since this provision is expressly declared to be not severable, Act of Nov. 26, 1978, P.L. 1316, No. 319, § 7,*fn15 the entire provision of the Act providing for the Pennsylvania Commission on Sentencing and the adoption of sentencing guidelines must be declared unconstitutional.

-a-

The Constitution of 1776, Pennsylvania's first constitution, provided for a unicameral legislature and plural executive.*fn16 No provision for an executive veto was included. To provide a method of checking legislative action, the Constitution required the following:

To the end that laws before they are enacted may be more maturely considered, and the inconvenience of hasty determinations as much as possible prevented, all bills of public nature shall be printed for the consideration of the people, before they are read in general assembly the last time for debate and amendment; and, except on occasions of sudden necessity, shall not be passed into laws until the next session of assembly; and for the more perfect satisfaction of the public, the reasons and motives for making such laws shall be fully and clearly expressed in the preambles.

[ 347 Pa. Super. Page 590]

Pa. Const. § 15 (1776).

This governmental structure had its critics from the beginning. See generally R.L. Brunhouse, The Counter-Revolution in Pennsylvania 1776-1790 (1942); E. Douglass, Rebels and Democrats (1955); Ryerson, Republican Theory and Partisan Reality in Revolutionary Pennsylvania, in Sovereign States in an Age of Uncertainty (R. Hoffman and P.J. Albert eds. 1981). The critics challenged the effectiveness of the checks on legislative action,*fn17 but it was not until 1789 that a convention to reconsider the 1776 Constitution was convened. See generally, Ryerson, supra.

The convention resulted in Pennsylvania's second Constitution, the Constitution of 1790. This Constitution, modeled after the Federal Constitution adopted the preceding year,*fn18 established our present form of government, creating a bicameral legislature*fn19 and an executive with veto power.*fn20

[ 347 Pa. Super. Page 591]

In Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977), the Supreme Court explained our form of government by saying:

In Pennsylvania we embraced the concept of tripartite government with three equal, separate and autonomous branches in an effort to prevent governmental power from becoming concentrated into a single body. It was believed that each branch would act as a check on the other and by this diffusion of power prevent tyranny where the rights of the individual citizen would be ignored.

Id., 474 Pa. at 269, 378 A.2d at 786 (citations omitted).

-b-

It will be recalled that the Act of 1978 provides that sentencing guidelines adopted by the Pennsylvania Commission on Sentencing may be rejected by concurrent resolution of both Houses, without presentment to the Governor, 42 Pa.C.S. § 2155(b), and that here in fact both Houses did by concurrent resolution reject the guidelines adopted by the Commission, with the result that new guidelines were adopted by the Commission. The question must therefore be decided: Was the decision by both Houses to reject the

[ 347 Pa. Super. Page 592]

    sentencing guidelines an exercise of legislative power? For if it was, the Constitution requires presentment, from which it follows that unless it can be severed, the Act's provision that there need not be presentment renders the Act unconstitutional.

Although there is a strong presumption of constitutionality, see Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (1981), appeal dismissed, 457 U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1982), nevertheless, I have no doubt that in rejecting the sentencing guidelines, the two Houses engaged in an exercise of legislative power. It is within "[the] exclusive power [of the General Assembly] to determine the penological system of the Commonwealth. It alone can prescribe the punishments to be meted out for crime." Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 587, 28 A.2d 897, 900 (1942). See also Commonwealth v. Sutley, supra; Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959). Of course, as to any given offender the determination of the precise punishment is decided by the sentencing judge, that is to say, is exclusively within the judicial power. However, the sentencing judge must exercise this judicial power within the limits prescribed by the General Assembly. Two different sorts of limits may be prescribed, the first going to the nature and duration of the sentence that may be imposed, the second, to the procedure that the judge must follow in deciding upon the nature and duration of the sentence. While the Crimes Code prescribes the duration of the possible sentence for a given offense, the Sentencing Code prescribes the nature of the sentence that within this limit may be imposed (total confinement; partial confinement; probation; fine; and determination of guilt without further penalty). The Sentencing Code also prescribes the procedure that the judge must follow in deciding upon the nature and duration of the sentence. For example, the judge must consider whether factors identified in the Code as favoring probation are present, 42 Pa.C.S. § 9722; he must order a presentence investigation report, or state of record why he has not, 42 Pa.C.S. § 9731,

[ 347 Pa. Super. Page 593]

    suspended insofar as inconsistent with Pa.R.Crim.P., Chapter 14; and he must state of record the reasons for his sentence, 42 Pa.C.S. § 9721(b). When the General Assembly by the Act of 1978 provided for sentencing guidelines, it changed the procedure that the sentencing judge had to follow. Specifically, it provided that

[t]he court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 1385 [now 2155 of Title 42] (relating to publication of guidelines for sentencing) . . . . In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 1384 [now 2154 of Title 42] (relating to adoption of guidelines for sentencing) and made effective pursuant to section 1385 [now 2155 of Title 42], the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

Act of Nov. 26, 1978, P.L. 1316, No. 319, § 1, 18 Pa.C.S. § 1321(b) [now 42 Pa.C.S. § 9721(b)].

When by concurrent resolution of both Houses the General Assembly rejected the sentencing guidelines that the Commission had adopted, it again changed the procedure that the sentencing judge had to follow. Without the concurrent resolution, the judge would have had to follow the guidelines adopted by the Commission. The concurrent resolution, however, rejected those guidelines as too lenient, thereby prescribing that the sentencing judge was not to consider them, but instead was to consider other guidelines, to be adopted later. This action was as much an exercise of legislative power as was the enactment of the Act of 1978 itself, or the enactment of the Crimes Code, or of the Sentencing Code.*fn21 The conclusion is therefore inescapable

[ 347 Pa. Super. Page 594]

    that the provision of the Act of 1978, that such legislative power could be exercised only by the concurrent resolution of both Houses, without presentment to the Governor, is unconstitutional.*fn22

-c-

This conclusion is not only confirmed as correct but is required by the decision of the United States Supreme Court in Immigration and Naturalization Service v. Chadha, supra. In Chadha, the Court held unconstitutional § 244(c)(2) of the Immigration and Nationality Act, which provided that a resolution by either House would invalidate a decision by the Attorney General to suspend deportation of an alien. The Court reviewed the constitutional prescriptions

[ 347 Pa. Super. Page 595]

    for bicameralism and presentment to the President, art. I, §§ 1, 7, and concluded that the Framers of the Federal Constitution had decided "that the legislative power . . . [would] be exercised in accord with a single, finely wrought and exhaustively considered, procedure." 462 U.S. at 951, 103 S.Ct. at 2784. It was clear to the Court that the one-House veto was "essentially legislative in purpose and effect . . . [because it] alter[ed] the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch." Id. at 952, 103 S.Ct. at 2784. In this regard, the Court pointed out that neither House had argued that in the absence of the veto provision, it could have ordered the Attorney General to deport an alien whose deportation had been suspended. The Court summarily rejected "the suggestion that the one-House veto provision . . . either removes or modifies the bicameralism and presentation requirements" that legislative action must satisfy, observing that "[t]he explicit prescription for legislative action contained in Art. I cannot be amended by legislation." Id. at 957 n. 22, 103 S.Ct. at 2787 n. 22. Since the one-House veto failed to satisfy the constitutional requirements of bicameralism and presentment, the Court held that the provision authorizing it was unconstitutional.

This reasoning is controlling. While Chadha concerned a one-House veto instead of, as here, a two-House veto, that fact is immaterial. See Consumers Union of U.S., Inc. v. Federal Trade Commission, 691 F.2d 575 (D.C.Cir. 1982) (en banc), aff'd sub nom. United States Senate v. Federal Trade Commission; United States House of Representatives v. Federal Trade Commission, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402 (1983) (two-House veto unconstitutional). It is equally immaterial that Chadha arose under the United States Constitution instead of the Pennsylvania Constitution. See discussion, subsection a, supra. See also Legislative Research Commission by Prather v. Brown, 664 S.W.2d 907 (Ky. 1984) (interpreting Kentucky Constitution); Burstein v. Morial, 438 So.2d 554 (La. 1983)

[ 347 Pa. Super. Page 596]

(interpreting home rule charter); Planned Parenthood Association v. Department of Human Resources, 297 Or. 562, 687 P.2d 785 (1984) (en banc) (interpreting Oregon Constitution). Compare State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 687 P.2d 622 (1984), which held provisions permitting the legislature to adopt, modify or revoke administrative rules by concurrent resolution without presentation to the governor unconstitutional under the Kansas Constitution. This conclusion was supported by federal and state decisions, 236 Kan. at 61, 687 P.2d at 636, including Chadha, State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980); Maloney v. Pac, 183 Conn. 313, 439 A.2d 349 (1981); Opinion of the Justices, 121 N.H. 552, 431 A.2d 783 (1981); General Assembly of State of New Jersey v. Byrne, 90 N.J. 376, 448 A.2d 438 (1982).

-d-

The remaining question is whether the unconstitutional concurrent resolution provision of Section 3 of the Act of 1978 may be severed from the other provisions of the section, so that these other provisions may remain in effect.

Under Pennsylvania rules of statutory construction, separate provisions of a statute are presumed severable.*fn23 However, this presumption is not available, for the Act of 1978 contained an express inseverability clause:

Section 7. The provisions of section 3 [relating to the Pennsylvania Commission on Sentencing] are not severable

[ 347 Pa. Super. Page 597]

    and if any provisions thereof or the application thereof to any person or circumstance is held invalid, the remainder of section 3 and section 6 [appropriating funds to the Commission] shall be invalid.

Act of Nov. 26, 1978, P.L. 1316, No. 319.*fn24

Although reworded in 1980, the legislature again provided that the Act was inseverable:

(c) The provisions of subsection (a) [relating to the Pennsylvania Commission on Sentencing], 42 Pa.C.S. § 9781 (relating to appellate review of sentence), and section 6 [relating to appropriations to the Commission] of the act of November 26, 1978 (P.L. 1316, No. 319), entitled "An act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, further providing for sentencing and providing for alteration of identification marks on personal property," are not severable and if any provision thereof or the application thereof to any person or circumstance is held invalid, the remainder of subsection (a), 42 Pa.C.S. § 9781 and such section 6 shall be invalid.

(d) Subchapter G of Chapter 13 (relating to Pennsylvania Commission on Sentencing) of Title 18, and sections 7 and 8(a) and (b) [of the 1978 Act] . . . are repealed . . . .

Act of Oct. 5, 1980, P.L. 693, No. 142, § 218.

These changes were made as part of the JARA Continuation Act of 1980, which transferred sections of Title 18, relating to the Commission, to Title 42. Id., § 218(a).

Although this explicit expression of inseverability is by itself sufficient to overcome the presumption of severability, I have also examined the legislative record for evidence

[ 347 Pa. Super. Page 598]

    of intent. It discloses that indeed the legislature would not have created the Commission and authorized it to adopt guidelines without at the same time reserving the power by concurrent resolution to reject those guidelines. Thus, Representative Scirica, sponsor of the bill, noted that "[b]efore the guidelines become effective, they have to be submitted in their entirety to both Houses of the General Assembly, and we have 90 days to look them over and to decide whether or not to veto them." Pa.House Leg. J., Sept. 21, 1978, at 3131. In 1981, during the debate on the concurrent resolution rejecting the guidelines adopted by the Commission, Representative Reber pointed out

     that when the guideline enactment went into effect allowing you the right to review this, it had to be for a purpose, and I submit it was just this particular purpose that we do want to look at these, if in fact they come back too lenient.

Pa.House Leg. J., Apr. 1, 1981, at 564.

See also Pa.House Leg. J., Apr. 1, 1981, at 566 (remarks of Rep. Hagarty). And in 1982, while debating the Senate resolution that approved the new guidelines, Senator Gekas stated:

We will always have that ability [to reject the guidelines] because the Commission on Sentencing will continue to monitor and report to us and we as a Body will be on top of these guidelines and the sentencing procedures and the whole gamut of the judicial system having to do with sentencing from top to bottom.

Pa.Senate Leg. J., Apr. 20, 1982, at 2160.

(I note in passing that one legislator correctly described the two-House veto as an "end run" around the constitutional requirements applicable to the exercise of legislative power:

I cannot sit down without being critical of the way this whole issue comes before us. It is really being done by an end run and I think the proponents of this very involved sentencing guideline device realize it would have

[ 347 Pa. Super. Page 599]

    a hard time getting through the Legislature on its own merits.

Pa.Senate Leg. J., Apr. 20, 1982, at 2164 (remarks of Sen. Snyder).)

Since the legislature thus made plain its intention that the provisions of Section 3 of the Act of 1978 should be "essentially and inseparably connected," 1 Pa.C.S. § 1925, note 23, supra, the conclusion that the concurrent veto resolution provision of the Section is unconstitutional renders the entire Section unconstitutional. The judgment of sentence should therefore be vacated and the case remanded for resentencing under the Sentencing Code.*fn25

-5-

[ 347 Pa. Super. Page 600]

I should not apply this decision retroactively,*fn26 for I have reviewed the various factors used to resolve the issue of retroactivity, and have concluded that sentences imposed since the effective date of the 1982 guidelines need not be vacated. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977) (aff'd by an equally divided court) (EAGEN, J., Opinion in Support of Affirmance, joined by JONES, C.J., and POMEROY, J.); Commonwealth v. Page 600} Godfrey, 434 Pa. 532, 254 A.2d 923 (1969); Commonwealth v. Parrott, 287 Pa. Super. 83, 429 A.2d 731 (1981).

A decision that the two-House veto resolution is unconstitutional was not foreshadowed in previous decisions. Indeed, this court has interpreted various aspects of the sentencing guidelines without intimating that fundamental constitutional problems existed in the Act of 1978. See, e.g., Commonwealth v. Rainey, 338 Pa. Super. 560, 488 A.2d 34 (1985); Commonwealth v. Rivera, 338 Pa. Super. 199, 487 A.2d 923 (1985); Commonwealth v. Smith, 333 Pa. Super. 179, 481 A.2d 1365 (1984); Commonwealth v. Royer, 328 Pa. Super. 60, 476 A.2d 453 (1984). The parties have pointed out only two other instances in Pennsylvania law that might pose the same constitutional issue raised in this case,*fn27 and in these instances, the issue apparently has not been raised. Moreover, until Chadha, there was no indication from the United States Supreme Court that Congress' incorporation of legislative review mechanisms violated the Constitution. See Exxon Corp. v. U.S. Department of Energy, 744 F.2d 98 (Em.Ct.App.), cert. denied sub nom. Energy Reserves Group, Inc. v. Department of Energy, U.S. , 105 S.Ct. 576, 83 L.Ed.2d 515 (1984) (Chadha not retroactive in part because Chadha posed issue of first impression not clearly foreshadowed by earlier cases).

In addition, retroactive application of a holding to the effective date of the 1982 guidelines, July 22, 1982, would not further the purpose of the holding, i.e., to preclude continued violation of the presentment provision by the legislature enacting review mechanisms not requiring executive consideration. See Exxon Corp. v. U.S. Department of Energy, supra. It is obvious that my conclusion that Section 3 of the Act of 1978 is unconstitutional does not affect the truth-finding process, which has been a significant

[ 347 Pa. Super. Page 601]

    fact in determining retroactivity, see Commonwealth v. Cain, supra, 471 Pa. at 162, 164, 166, 369 A.2d at 1245-47 (1977) (EAGEN, J., Opinion in Support of Affirmance, joined by JONES, C.J., and POMEROY, J.), and it does not follow that because a sentence was imposed upon consideration of the guidelines, the sentence was unfair.

Finally, to apply a decision of unconstitutionality retroactively would disrupt the already over-burdened criminal justice system. Cf. Commonwealth v. Cain, supra, 471 Pa. at 163, 369 A.2d at 1245-46 (EAGEN, J., Opinion in Support of Affirmance, joined by JONES, C.J., and POMEROY, J.). According to the Pennsylvania Commission on Sentencing, 29,908 sentences, on 20,529 separate forms, were reported during 1983, as having been imposed for offenses occurring on or after the effective date of the guidelines. Sentencing in Pennsylvania ii (June 1984). Cf. Exxon Corp. v. U.S. Department of Energy, supra at 114. These figures suggest the magnitude of the problem if a decision of unconstitutionality were applied retroactively: it would create havoc. Cf. Commonwealth v. Godfrey, supra, 434 Pa. at 536-37, 254 A.2d at 925; Commonwealth v. Oliver, 251 Pa. Super. 17, 22-23, 379 A.2d 309, 312 (1977); Commonwealth v. Lockhart, 227 Pa. Super. 503, 507-08, 322 A.2d 707, 709 (1974).

For each of these reasons, I should hold that the decision that Act of 1978 is unconstitutional should be applied prospectively only.

The judgment of sentence in No. 2802 Philadelphia 1983 should be affirmed.

The judgments of sentence in No. 2803 Philadelphia 1983 and No. 2804 Philadelphia 1983 judgment of sentence should be vacated and the case should be remanded for resentencing in accordance with this opinion.


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