submitted: January 15, 1986.
COMMONWEALTH OF PENNSYLVANIA
ALLEN G. WASHINGTON, APPELLANT
Appeal from the Judgment of Sentence April 23, 1985, Court of Common Pleas, Criminal Division, Allegheny County, No. 8408392A.
Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
Cavanaugh, Olszewski and Kelly, JJ. Kelly, J., files dissenting opinion.
[ 357 Pa. Super. Page 549]
Appellant, Allen G. Washington, pled nolo contendere to a charge of retail theft and upon conviction was sentenced to imprisonment for a period of not less than seven nor more than fourteen months. The theft involved meat valued at $27.00 which Washington attempted to take from a market without payment. His appeal attacks the sentence as excessive and also asserts that the court improperly used misdemeanors not involving weapons in determining the prior record score for sentencing purposes. The trial court, in fact, used prior misdemeanor convictions in adding two points to the prior record score for sentencing guideline purposes. In Commonwealth v. Samuels, 354 Pa. Super. 128, 511 A.2d 221 (1986), a panel of this court held that
[ 357 Pa. Super. Page 550]
". . . in computing a defendant's prior record score for sentencing purposes, a sentencing court cannot count that defendant's prior misdemeanor convictions not involving use of a deadly weapon." Since under the authority of Samuels the court improperly used misdemeanors in calculating the prior record score, we are constrained to vacate the sentence and remand for resentencing.*fn1 Since appellant must be resentenced, we do not reach the excessive sentence issue.
Sentence vacated. Remanded for resentencing. Jurisdiction relinquished.
Sentence vacated. Remanded for resentencing. Jurisdiction relinquished.
KELLY, Judge, dissenting:
I dissent. The majority relies upon the recent panel decision in Commonwealth v. Samuels, 354 Pa. Super. 128, 511 A.2d 221 (1986), in deciding that this case must be remanded for re-sentencing without resort to 204 Pa.Code § 303.7(a), which the panel in Samuels found unconstitutional. In Samuels, Judge Hoffman opined for the court that the Sentencing Commission had exceeded the scope of its legislative authorization in adopting 204 Pa.Code § 303.7(a) which provides for enhancement of the guideline sentencing ranges based upon prior misdemeanor convictions not involving the use of a deadly weapon. However, I cannot agree.
Upon review, I find that the Samuels decision is flawed in that: 1) it treats the enabling act as a penal law subject to the doctrine of strict construction, when in fact the enabling act creates and empowers a legislative commission
[ 357 Pa. Super. Page 551]
and is not in any sense a penal law; 2) it construes 42 Pa.C.S.A. § 2154(2) separately, and not in the context of 42 Pa.C.S.A. 2154 as a whole; and 3) it finds that the language of the enabling act is plate glass clear, when in fact the language is ambiguous. Furthermore, I would find that when the enabling act is construed in accordance with the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq., the statute necessarily implies the authority to adopt the provision of the Sentencing Guidelines, 204 Pa.Code § 303.7(a), found unconstitutional in Samuels. Consequently, I dissent and would affirm the judgment of sentence.
On August 6, 1984, the appellant entered a Giant Eagle Supermarket in Pittsburgh, Pennsylvania. Security guards watched him stuff four packages of steaks into his pants. They then followed the appellant through the store and waited for him at the exit as he passed the check-out stand without paying for the steaks. The appellant was confronted by a security guard at the door, whereupon he turned and ran through the store towards the meat counter. The pursuing security guards subdued the appellant and retrieved the four packs of steaks he had attempted to steal. He was then detained by security personnel until city police arrived and placed the appellant under arrest.
On September 7, 1984, the appellant was charged by information with one count of Retail Theft. On January 24, 1985, the appellant appeared before the Honorable Loran L. Lewis and entered a plea of nolo contendere. Judge Lewis accepted the plea and proceeded to find the appellant guilty based upon the evidence presented. Appellant was sentenced on April 23, 1985, to a period of imprisonment of not less than seven (7), nor more than fourteen (14) months. Appellant was sentenced within the mitigated minimum sentencing range for the offense gravity and prior record score assigned. In calculating the appellant's prior record score under 204 Pa.Code § 303.7, the trial court included two points, pursuant to 204 Pa.Code § 303.7(a), to reflect the appellant's prior misdemeanor convictions. A timely motion to reconsider the sentence was filed on May 2, 1985.
[ 357 Pa. Super. Page 552]
This motion was denied on May 6, 1985. A notice of appeal was filed on May 22, 1985. This appeal followed.
The appellant raises two grounds for relief on appeal. First, the appellant argues that the sentence imposed was manifestly excessive under the facts and circumstances of this case. Secondly, the appellant contends that the sentence imposed pursuant to the sentencing guidelines was invalid [unconstitutional] in that the legislature did not grant the Sentencing Commission authority to establish the use of prior misdemeanor convictions not involving the use of deadly weapons as a method of enhancing sentences. I find no merit in these contentions.
The appellant's first contention,*fn1 regarding the alleged excessiveness of the sentence, was not properly preserved for review. In his brief to this Court the appellant argues that it was an abuse of the trial judge's discretion to fail to consider the evidence presented to establish the appellant's character and potential for rehabilitation. The appellant also contends that the trial judge failed to consider alternatives to a sentence of total confinement as required by 42 Pa.C.S.A. § 9721.
However, these issues were neither raised nor argued in the trial court. The appellant's only argument with respect to the alleged excessiveness of the sentence was that, after the two prior record score points which were attributable to prior misdemeanor convictions not involving the use of deadly weapons were deducted, the sentence was then manifestly excessive. (Motion to Reconsider Sentence at 2). The appellant's motion was insufficient to preserve the issues regarding mitigation evidence and sentencing alternatives. These issues are only preserved by specific and timely objections in a motion to reconsider sentence argued in the trial court. See Commonwealth v. Duffy, 341 Pa. Super. 217, 491 A.2d 230 (1985); Commonwealth v. Martin,
[ 357 Pa. Super. Page 553328]
Pa. Super. 498, 477 A.2d 555 (1984). Thus, the appellant's first contention on appeal is without merit.*fn2
The appellant next contends that the trial court erred in applying 204 Pa.Code § 303.7(a) to determine the proper sentencing range under the sentencing guidelines. The appellant argues that the express inclusion of felonies and crimes involving the use of deadly weapons in 42 Pa.C.S.A. § 2154(2) implies the exclusion of the consideration of prior misdemeanor convictions not involving the use of deadly weapons from calculation of the appellant's prior record score under the guidelines. The Court in Samuels agreed with this contention; I do not. My reasoning follows.
This case presents, primarily, a question of statutory construction. Although the appellant challenges the validity of 204 Pa.Code § 303.7(a), it is the legislative authorization in 42 Pa.C.S.A. § 2154 which controls, and which must be construed by this Court. If 204 Pa.Code § 303.7(a) was promulgated within the scope of authority delegated to the Sentencing Commission, it is constitutional; if not, it is unconstitutional.
In construing the enactments of the legislature, appellate courts must refer to the provisions of the Statutory Construction Act.*fn3 The legislature has directed that, "In the construction of the statutes of the Commonwealth, the rules set forth in this chapter shall be observed, unless the application of such rules would result in construction inconsistent with the manifest intent of the General Assembly." 1 Pa.C.S.A. § 1901. In 1 Pa.C.S.A. § 1921(a), (b) the legislature further explained that:
[ 357 Pa. Super. Page 554]
(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
Thus, we must first determine whether the issue may be resolved by reference to the express language of the statute.
The statute at issue provides:
The commission shall adopt guidelines for sentencing within the limits established by law which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors committed by a defendant. The guidelines 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.A. § 2154.
In finding that 204 Pa.Code § 303.7(a) was unconstitutional, Judge Hoffman opined:
The language of the enabling act at issue here, § 2154(2), is plate glass clear: it does not state that the sentencing guidelines shall specify a range of sentences of increased severity for defendants previously convicted of misdemeanors not involving the use of a deadly weapon. If the Legislature wants to provide for such sentences, it must explicitly so state in the authorization provisions. Moreover, because § 2154(2) authorized the creation of guidelines "which shall be considered by the sentencing
[ 357 Pa. Super. Page 555]
court in determining the appropriate sentence for felonies and misdemeanors committed by a defendant," (emphasis added), see also 42 Pa.C.S.A. 9721(b); 204 Pa.Code § 303.1(a), it is, in a sense, a penal provision. As such, it "shall be strictly construed." 1 Pa.C.S.A. § 1928(b). We are constrained, therefore, to find that, in computing a defendant's prior record score for sentencing purposes, a sentencing court cannot count that defendant's prior misdemeanor convictions not involving the use of a deadly weapon.
Samuels, 511 A.2d at 238. (Footnote omitted) (emphasis supplied). I find fault with this reasoning in several respects and therefore, I reject its conclusions.
First, the Court in Samuels incorrectly states that "because § 2154(2) authorized the creation of guidelines 'which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors,' (emphasis added), . . ., it is, in a sense, a penal provision. As such, it 'shall be strictly construed.' 1 Pa.C.S.A. § 1928(b)." Samuels, 511 A.2d at 238. To the contrary, 42 Pa.C.S.A. § 2154 is in no sense a penal law, and consequently, need not be strictly construed. 1 Pa.C.S.A. § 1928(c).
"Penal laws" are defined as "all statutes and embodiments of the common law which establish, create or define crimes or offenses including any ordinances which may provide for imprisonment upon conviction or upon failure to pay a fine or penalty." See Pa.R.Crim.P. 3(n); see also In re Investigating Grand Jury, 496 Pa. 452, 437 A.2d 1128 (1981); Commonwealth v. Cluck, 252 Pa. Super. 228, 381 A.2d 472 (1977). The enabling act, which this Court is called upon to construe, does not establish, create, or define any crime, offense, or ordinance. To the contrary, the enabling act creates and empowers a legislative commission to adopt sentencing guidelines. Clearly the enabling act is administrative, and not penal.
[ 357 Pa. Super. Page 556]
It may be that the sentencing guidelines must be strictly construed;*fn4 but even accepting that proposition, it does not follow that the enabling act itself must be strictly construed because it authorizes the commission to adopt the sentencing guidelines. See Commonwealth by Creamer v. Monumental Properties, Inc., 459 Pa. 450, 460-461, 329 A.2d 812, 817 (1974), on remand 26 Pa. Commw. 399, 365 A.2d 442 (1976) (merely because a statute contains a penal provision does not require that the entire statute be strictly construed); Commonwealth v. Broughton, 257 Pa. Super. 369, 378, 390 A.2d 1282, 1286 (1978) (rule of strict construction applies only to penal provisions of statute, and not to provisions regarding requirement of proof).
Secondly, the statute at issue is 42 Pa.C.S.A. § 2154 in its entirety, and not merely § 2154(2) as the Court in Samuels suggests.*fn5 Sections of a statute must be read together and construed with reference to the entire statute. See Wilson v. Central Penn Industries, 306 Pa. Super. 146, 452 A.2d 257 (1982). Moreover, only by construing each section of a statute in light of, with reference to, or in connection with the other sections of the statute, can a section's real meaning
[ 357 Pa. Super. Page 557]
and the legislative intent be ascertained. See Turner v. May Corp., 285 Pa. Super. 241, 427 A.2d 203 (1981).
By considering only the language of 42 Pa.C.S.A. § 2154(2), the Samuels panel ignored the broad grant of authority contained in the language of 42 Pa.C.S.A. § 2154 preceeding that particular sub-provision.*fn6 Moreover, by failing to construe the enabling act in the context of the legislative package in which it was passed, the Samuels panel ignored the significance of the compromise nature of the enabling act.
Thirdly, I reject the characterization of the enabling act as "plate glass clear." Assuredly, "we have no authority to befog the plate glass clarity of [a legislative enactment.]" Port Authority v. Amalgamated Transit Union, Local Division 85, 430 Pa. 514, 520, 243 A.2d 433, 436 (1968) (Concurrence by Musmanno, J.). On the other hand, "nothing ambiguous can be said to be clear." Sterling v. Philadelphia, 378 Pa. 538, 559, 106 A.2d 793, 803 (Dissent by Musmanno, J.). The clarity which this Court found in Samuels is illusory. It is founded upon the unspoken and unsupported assumption that because the numbered subprovisions of § 2154 are mandatory they must necessarily be exclusive. Thus, the Court presumed that because the Commission was required to "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," 42 Pa.C.S.A. § 2154(2), that the Commission was precluded from considering misdemeanors not involving the use of a deadly weapon in constructing the prior record enhancement provisions of the sentencing guidelines. I find no support for this construction in the express language of the statute.*fn7
[ 357 Pa. Super. Page 558]
The appellant contends that the ancient maxim " expressio unius est exclusio alterius " (the expression of one thing implies the exclusion of others), makes the plain meaning of the statute clear. This contention is plainly without merit. "The maxim [ expressio unius est exclusio alterius ] is not of universal application, but is to be applied only as an aid in arriving at intention and not to defeat the apparent intention." Fazio v. Pittsburgh Rys. Co., 321 Pa. 7, 11-12, 182 A. 696, 698 (1936), quoting 25 R.C.S., page 981, § 229; See also Commonwealth v. Kramer, 146 Pa. Super. 91, 22 A.2d 46 (1941). The maxim defines by implication, and is of no assistance in determining the plain meaning of the express language. Compare § 1921(b) and § 1921(c).
Thus, the enabling act contains an apparent ambiguity with respect to whether the numbered subprovisions were intended to be mandatory and exclusive or merely mandatory. The apparent ambiguity in the statute, however, does not negate the authority of the Commission to promulgate the rule. "While it is true that statutory language conferring power to administrative agencies must be clear and unmistakable, Green v. Milk Control Commission, 340 Pa. 1, 16 A.2d 9 (1940), it is also true that language capable of more than one meaning can be 'clear and unmistakable' in the context of its usage by the selection of the meaning which is neither forced, strained, nor contrary to the purpose for which the authority is conferred." Commonwealth v. Butler County Mushroom Farm, 499 Pa. 509, 516, 454 A.2d 1, 5 (1982). (Emphasis added).
[ 357 Pa. Super. Page 559]
It is well settled that powers delegated to administrative bodies may be expressly stated or necessarily implied in the legislative grant, see Pennsylvania Human Relations Commission v. St. Joe Minerals Corp., 476 Pa. 302, 310, 382 A.2d 731, 736 (1978). It has also been held that "[I]n determining the outermost limits of [a] Board's delegated authority . . . we must primarily consider the express language of its enabling statute, and, where the statute neither Page 559} affirms nor negates the authority exercised by the agency, the manifest purpose of the legislation . . . ." McKinley v. State Bd. of Funeral Dir., 11 Pa. Commw. 241, 246, 313 A.2d 180, 183 (1973). (Emphasis added). See also Upper St. Clair Twp. v. Comwlth., Dept. of Community Affairs, 478 Pa. 546, 561, 387 A.2d 456, 464 (1978) (One litmus of . . . authority is the purpose for which authority was conferred).
Therefore, we must look to the legislative intent. Section 1921(c) provides:
When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa.C.S.A. § 1921(c). Discussion of the above factors and analysis follows.
First, it is necessary to examine the occasion and necessity for the statute, the circumstances under which it was enacted, the mischief to be remedied, the object to be attained, and the former law. Essentially, we must consider the historical context in which the statute was adopted. The distinguished jurist Oliver Wendell Holmes, Jr. explained:
The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only axioms in a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternatively
[ 357 Pa. Super. Page 560]
consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage.*fn8
Federal and state governments have struggled to establish fair and reasonable means for sanctioning the offender since the prison system was first introduced shortly after the American Revolution. However, the widespread sentencing reform of the past decade is unprecedented. Sentencing reform was proposed by virtually all state legislatures during the 1970s, and only the wave of prison reform in the late 1800s is comparable.*fn9 During the early and middle 1970's the former system of indeterminate sentencing came under criticism from a wide spectrum of political interests. While commentators were uniform in their criticism of the indeterminate sentencing system, they were divided as to the proper focus for reforms.
A number of commentators focused on reforms involving mandatory sentences for violent crimes and sentences of increased severity for repeat offenders.*fn10 Popular sentiment favored mandatory prison sentences for offenders using deadly weapons. This sentiment was translated into legislative action in many states.*fn11 Several studies indicated, however, that enforcement of mandatory sentences would be expensive and not cost-effective.*fn12 Other studies indicated that repeat violent offenders committed a disproportionately
[ 357 Pa. Super. Page 561]
high portion of the total crimes committed.*fn13 One of the products of this research was the passage of minimum mandatory sentence laws for repeat offenders in 27 states between 1977 and 1980, with similar laws being considered in 14 other states.*fn14
Other commentators were concerned with the disparity in the severity of sentences imposed under the indeterminate sentencing system.*fn15 A study of sentences imposed in federal district courts revealed wide disparity in decisions to incarcerate, length of sentence imposed, and application of statutory provisions regarding parole and probation eligibility. A Pennsylvania study using 1977 statistics revealed significant regional disparity with regard to incarceration rates. While 38.9% of all offenders statewide were incarcerated, rural areas had nearly double the incarceration rate of Allegheny or Philadelphia counties.*fn16 This disparity led to a movement in favor of general sentencing reform.*fn17
It was in this context of national sentencing reform that the Pennsylvania General Assembly began the legislative
[ 357 Pa. Super. Page 562]
process which would eventually lead to the passage of a legislative package which included the provisions of 42 Pa.C.S.A. § 2154. It is in this context that we must determine the legislative intent.
In 1976, the Senate adopted an amendment to Senate Bill 995 which would mandate minimum prison sentences for certain violent felonies. After a long legislative battle the bill was defeated in the House.*fn18 For the next two years the House and Senate proposed and debated, but failed to pass numerous sentencing reform bills proposed in both chambers.*fn19 The General Assembly was divided as to the proper focus for reform. The Senate leadership supported mandatory minimum sentences for repeat violent offenders; while the House leadership pressed for general sentencing reform through the adoption of uniform guidelines.*fn20
On September 21, 1978, the deadlock was broken when the House approved Senate Bill 195 which the House amended by adding to it the provisions of House Bill 953 (which had languished in the Senate Appropriations Committee since June 13, 1978). The Senate rejected the amendments initially and appointed three Senators to a joint House-Senate conference committee. The House reciprocated. The conferees reached an accord on a compromise proposal. On November 15, 1978 both chambers signed the bill; it was approved by the Governor on November 26, 1978.*fn21
[ 357 Pa. Super. Page 563]
The resulting legislation was a product of compromise; its structure reflects compromise. The Sentencing Commission was formed, empowered, and directed to adopt guidelines.*fn22 At the same time the Senate conferees were successful in having interim guidelines passed which would require sentencing judges to consider a four year minimum prison sentence for defendants convicted of certain violent felonies who had previously been convicted of one of the same designated violent felonies.*fn23 Additionally, a specific provision requiring increased sentences for prior felony or weapons offense convictions was included in the guideline authorization provisions.*fn24 Thus, the Senate conferees were able to superimpose the specific interests of the Senate upon the outline for broad reform proposed by the House.
The legislative authorization was conferred upon the Sentencing Commission in the first part of 42 Pa.C.S.A. § 2154 with sweeping language:
The commission shall adopt guidelines for sentencing within the limits established by law which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors committed by a defendant.
The only express reservation included in the authorization was that the guidelines be established "within the limits established by law." It is within this broad grant of authority that I would find the authority to adopt 204 Pa.Code § 303.7(a) necessarily implied.
It is important to note that when the enabling act was passed, there was no reason for the legislature to restrict the Commission's discretion in formulating the guidelines. The legislature had already ensured that it would have a strong voice in the formulation of the guidelines, and final approval of the guidelines after they were proposed. First,
[ 357 Pa. Super. Page 564]
the Commission was to be comprised of eleven members, four of which were required to be members of the legislature. 42 Pa.C.S.A. § 2152. Secondly, the legislature reserved the power to reject the guidelines by concurrent resolution. 42 Pa.C.S.A. § 2155(b).
Senator Gekas stated during the Senate debate over the January 1981 draft of the proposed guidelines that:
1 Senate Leg.J. 401 (1981). (Emphasis added). The legislature had vested the Commission with virtually unlimited discretion in the formulation of sentencing guidelines within the statutory limits.*fn25
It is apparent from the legislative history that § 2154(2) was adopted as part of the compromise between the Senate and the House, and was intended to assure the Senators that the guidelines would address their specific concerns with respect to repeat violent offenders. See 1 Senate Leg.J. 403 (1981) (Remarks of Sen. O'Pake: ". . . we settled for the only compromise we could get in 1978 . . . ."); see also 1 House Leg.J. 561 (1981) (Remarks of Rep. McVerry:
[ 357 Pa. Super. Page 565]
"The Sentencing Commission was established . . . for two reasons . . . . One of those reasons was to avoid mandatory sentencing that was being proposed."). In this compromise process, there is no indication of an intent by the legislature to limit or otherwise alter the use of prior misdemeanor convictions in the fashioning of an appropriate sentence for an offender. See generally 1 House Leg.J. at 559-567 (1981); 1 Senate Leg.J. at 401-408 (1981).
It is also apparent from a review of legislative actions regarding the enabling act and the guidelines that the legislature did not perceive 204 Pa.Code § 303.7 to have been adopted outside the authority conferred by 42 Pa.C.S.A. § 2154. The sentencing reform process began in the legislature, in 1976. After two years of debate, a compromise was reached, and the legislation under review was passed and became law.
The initial proposed guidelines were published in October 1980. However, these guidelines were severely criticized as too lenient and too restrictive of judicial discretion.*fn26 The proposed guidelines were revised and republished in January, 1981.*fn27 The legislature responded in April, 1981 with the passage of the Hagarty Resolution. While stopping short of rejecting the guidelines outright, the resolution urged and directed the commission to increase the upper limits of guideline sentences, give judges greater lattitude in sentencing where aggravating and mitigating circumstances were found, eliminate the exclusive list of such circumstances, and increase the severity of sentences for offenses against persons.*fn28 Significantly, the legislature made no mention, negative or otherwise, of the prior record
[ 357 Pa. Super. Page 566]
provisions concerning prior misdemeanor convictions not involving the use of a deadly weapon, which were part of the legislation being criticized, and which the Samuels panel found to have violated the "plate glass clarity" of the legislative authorization.
In January 1982, when the Commission presented a new set of guidelines, the provision found unconstitutional by the Samuels panel, remained in the guidelines. The Senate expressly approved the guidelines in Senate Res. 227 and the House took no action on them within the 90 day period specified by the Act. They became effective on July 22, 1981. See Kuphal, 500 A.2d at 1212.
The guidelines as finally adopted were an expression of the legislature's intent. The guidelines were subjected to the closest scrutiny at every stage in the adoption process. The Senate expressly approved the guidelines by resolution and the House implicitly approved them by silence.*fn29 In Commonwealth v. Frazier, 347 Pa. Super. 64, 69, 500 A.2d 158, 161 (1985), this Court recognized that the guidelines expressed the intent of the legislature when we stated, "[t]here was virtually no opposition to the Guidelines as finally adopted by the legislature." It defies common sense and logic to suggest that throughout the four year adoption process, and the four years the guidelines have been law, that the General Assembly has sat idle and mute while guidelines which it neither authorized nor intended became and remained law.*fn30
[ 357 Pa. Super. Page 567]
The legislature has directed that in the interpretation of legislative enactments the courts are to consider "the consequences of a particular interpretation." 1 Pa.C.S.A. § 1921(c)(6). The legislature has also created a statutory presumption that, "the General Assembly does not intend a result which is absurd, impossible of execution or unreasonable." 1 Pa.C.S.A. § 1922(1). The Samuels construction leads to just such results.
Significantly, I find that the construction imposed upon the enabling act by the Samuels panel, leads to results which could decimate enforcement of sentencing uniformity, thereby frustrating the primary purpose of the legislation. In Commonwealth v. Stevens, 349 Pa. Super. 310, 313, 503 A.2d 14, 16 (1986), and Commonwealth v. Royer, 328 Pa. Super. 60, 66, 476 A.2d 453, 456 (1984), this Court stated that, "The purpose of the sentencing guidelines is to insure that more uniform sentences are imposed in this Commonwealth." In Samuels, however, this Court opened the flood gates for evasion and variance.
Under the guidelines as adopted, all prior misdemeanor and felony convictions are used in calculating the offender's prior record score. Consequently, prior record is, ordinarily, not a factor in determining whether aggravated circumstances are present or in considering whether the offender should be sentenced outside of the guidelines. (See Stevens, supra; Commonwealth v. Drumgoole, 341 Pa. Super. 468, 473, 491 A.2d 1352, 1354 (1985));*fn31 see also, Implementation Manual of the Pennsylvania Commission on Sentencing, Part V., at 15 (1982).
Under Samuels, however, prior misdemeanors not involving the use of a deadly weapon may not be used in calculating
[ 357 Pa. Super. Page 568]
the offender's prior record score. Consequently, our rulings in Stevens and Drumgoole, that factors considered within the guidelines provide no basis to sentence in the aggravated range or outside the guideline ranges, no longer apply with respect to prior misdemeanors not involving the use of a deadly weapon. The result is that a sentencing judge may sentence in the aggravated range or outside the guideline sentencing ranges, where the offender's prior record includes such misdemeanors. Samuels, 511 A.2d at 239 n. 22. Because prior misdemeanor convictions not involving the use of deadly weapons are frequently present, the potential for evasion and variance is great.
Finally, administrative and legislative interpretations of the statute must be considered. 1 Pa.C.S.A. § 1921(c)(8). The construction of 42 Pa.C.S.A. § 2154 by the Sentencing Commission is entitled to deference by this Court. A construction of a statute by those charged with its execution is entitled to great weight, and should not be disregarded or overturned except for cogent reasons and unless it is clear that such a construction is erroneous. Dear v. Holly Jon Equipment Co., 283 Pa. Super. 74, 423 A.2d 721 (1980); Spicer v. Department of Public Welfare, 58 Pa. Commw. 558, 428 A.2d 1008 (1981). Furthermore, "administrative interpretations, not disturbed by the legislature, are appropriate guides to legislative intent." MacLeod, supra.
The Sentencing Commission was comprised of four eminent jurists, four members of the General Assembly, a District Attorney, a Defense Attorney, and a Law Professor. Each member was selected for his legal acumen. Assuredly, their construction of the statute is entitled to some deference. Moreover, the misdemeanor provisions were a focus of continuous debate and revision by the Commission. The Commission altered the prior misdemeanor provisions of the Offender Score no less than six times during the adoption process. Importantly, the Commission considered the precise issue raised in the instant appeal.
At the June 29, 1981 meeting of the Commission, Judge Scirica expressed his concern that the legislature did not
[ 357 Pa. Super. Page 569]
authorize enhancement for prior convictions of misdemeanors not involving the use of a deadly weapon. A motion to delete the prior misdemeanor provisions from the Offender Score passed over the opposition of both of the members from the General Assembly who were present. However, at the September 25, 1981 meeting, the Commission reversed its previous decision. Senator Gekas moved that prior misdemeanor convictions be included in the Offender Score provisions. The motion carried without opposition, with Judge Scirica and all three members of the General Assembly who were present voting in favor of the motion.*fn32
The Commission considered the issue and found that provisions providing for the enhancement of sentence based upon prior misdemeanor convictions not involving the use of a deadly weapon could be adopted within the scope of the legislative authorization. This deliberate decision by the Commission was entitled to deference by this Court. This is especially true, in light of the legislature's actions in approving the guidelines and allowing them to remain law for the past four years.
Having duly considered the factors enumerated in 1 Pa.C.S.A. § 1921(c), I would find that the numbered subprovisions of 42 Pa.C.S.A. § 2154 were intended to be mandatory, but not exclusive. Because interests in sentencing uniformity required that a factor as significant and as common as prior misdemeanor convictions not involving the use of deadly weapons be specifically dealt with in the guidelines, and because uniformity in sentencing was the primary purpose of the legislation, I would find that the authority to adopt 204 Pa.Code § 303.7(a) was necessarily implied in the authority confered by 42 Pa.C.S.A. § 2154. See McKinley v. State Bd. of Funeral Directors, supra, 313 A.2d at 183. Because the construction imposed upon
[ 357 Pa. Super. Page 570]
the enabling act by the Samuels panel would frustrate this purpose, I find that the Samuels construction must be rejected. See Commonwealth v. Butler County Mushroom Farm, supra, 454 A.2d at 5.
Finally, I would add that I believe that the exercise of the power of judicial nullification in Samuels was unwarranted. I take consolation, though, in the fact that the legislature is free to alter the effect of the judicial construction of the statute with remedial legislation. The legislature has already begun this process. See House Bill 1498, 169th Session (Pa.1985) (Bill reported to Joint Conference Committee with identical language amending 42 Pa.C.S.A. § 2154(2) to expressly authorize use of juvenile adjudications and prior misdemeanor convictions not involving the use of a deadly weapon to enhance sentences). This, of course, is further evidence of the legislature's intent in this regard.
Based upon the foregoing reasons, I would uphold the validity of 204 Pa.Code § 303.7(a) and affirm the judgment of sentence.