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

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 ...


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