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COMMONWEALTH PENNSYLVANIA v. GERSHOM SESSOMS (10/07/87)

decided: October 7, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
GERSHOM SESSOMS, APPELLANT



Appeal from the Judgment of the Superior Court of Pennsylvania, dated November 15, 1985, as of No. 1999 Philadelphia 1983, affirming the Judgment of sentence of the Honorable Charles F. Greevy, Senior Judge, specially assigned to the Court of Common Pleas of Montgomery County, dated July 6, 1983, as of No. 3340-82. 352 Pa. Super. 619, 505 A.2d 1036 (1985)

COUNSEL

Roger B. Reynolds, Norristown, Leonard Sosnov, Philadelphia, for amicus curiae -- Defender Assoc. of Phila. & Public Defender Assoc. of Pa.

Mary M. Killinger, Chief, Appeals Div., Norristown, Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Philadelphia, for amicus curiae -- Pa. Dist. Atty.'s Assoc.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., joined in the majority opinion and filed a concurring opinion. Hutchinson, J., filed a concurring and dissenting opinion. Larsen, J., filed a dissenting opinion.

Author: Zappala

[ 516 Pa. Page 367]

OPINION

This appeal presents a challenge to the validity of a sentence imposed according to the Sentencing Guidelines, 204 Pa.Code Ch. 303. The appellant Gershom Sessoms was found guilty of aggravated assault and possession of an instrument of crime. He was sentenced to 2 1/2 to 8 years imprisonment on the assault charge and a consecutive term of 5 years probation on the weapons charge. Sessoms unsuccessfully argued to the courts below that the method by which the Sentencing Guidelines were established violated either or both of our Constitution's requirements of bicameral consideration and presentment for gubernatorial approval. We allowed this appeal to address these important questions on which Superior Court was unable to develop a consensus rationale. See Commonwealth v. Kuphal, 347 Pa. Super. 572, 500 A.2d 1205 (1985) (companion case).

The Pennsylvania Commission on Sentencing was created in 1978 and given the task, broadly stated, of collecting data regarding sentencing practices throughout the Commonwealth and assimilating a wide range of information and

[ 516 Pa. Page 368]

    opinions from individuals and groups interested in the sentencing process either personally, professionally or otherwise. The purpose of this endeavor was to enable the Commission to promulgate guidelines to be considered by courts in imposing sentences and, if appropriate, to propose to the legislature changes in the sentencing statutes.

The Act of November 26, 1978, P.L. 1316, No. 319, originally found at 18 Pa.C.S. § 1381 et seq., (Act 1978-319) created the Commission, set out its powers and duties, and provided the procedure by which guidelines formulated by the Commission were to become effective. It also set out a time frame for the Commission to complete its work, and an "interim guideline" that courts consider sentencing certain repeat offenders to a minimum of four years imprisonment. Along with minor changes to the time elements made by the Act of July 10, 1980, P.L. 518, No. 107, the provisions of Act 1978-319 were transferred to 42 Pa.C.S. § 2151 et seq. by the Act of October 5, 1980, P.L. 693, No. 142, § 218(a) (Act 1980-142).

This enabling legislation contemplates that the Commission will adopt sentencing guidelines after publication in the Pennsylvania Bulletin and opportunity for public comment. It also provides as follows:

(b) Rejection by the General Assembly -- The General Assembly may by concurrent resolution reject in their entirety any initial or subsequent guidelines adopted by the commission within 90 days of their publication in the Pennsylvania Bulletin pursuant to subsection (a)(2).

(c) Effective date -- Initial and any subsequent guidelines adopted by the commission shall become effective 180 days after publication in the Pennsylvania Bulletin pursuant to subsection (a)(2) unless rejected in their entirety by the General Assembly by a concurrent resolution within 90 days of their publication. If not rejected by the General Assembly the commissioners shall conduct training and orientation for trial judges prior to the effective date of the guidelines.

[ 516 Pa. Page 36942]

Pa.C.S. § 2155(b), (c). The appellant challenges the General Assembly's ability to thus retain the power of rejection of the Commission's work-product by concurrent resolution.

In accordance with the enabling legislation, the Commission published proposed guidelines, see 10 Pa.Admin.Bull. 4181-96 (Oct. 25, 1980), held public hearings after which revisions were made, adopted the guidelines as revised, and published the adopted guidelines, see 11 Pa.Admin.Bull. 463-76 (Jan. 24, 1981). On April 1, 1981, the House passed resolution No. 24, rejecting the guidelines in their entirety and "urg[ing] and direct[ing]" the Commission to "revise and resubmit" them within six months. This resolution, passed by the Senate on April 8, 1981, suggested as areas for review that the Commission increase the upper limits of guideline sentences generally, that judges' authority to account for aggravating or mitigating circumstances be broadened, that the discussion as to concurrent and consecutive sentencing practices be removed, and that crimes involving serious bodily injury be treated more severely. This resolution was not presented to the governor for his review. Thereafter the Commission did adopt a second set of guidelines, "rewritten . . . in accordance with the legislative resolution," and published these in the Pennsylvania Bulletin on January 23, 1982, 12 Pa.Admin.Bull. 431-40. The Senate passed a resolution, No. 227, explicitly stating that it "does not reject" these guidelines. These guidelines became effective July 22, 1982, 180 days after their publication.

The appellant's argument is derived from recent decisions of the United States Supreme Court invalidating the "legislative veto" as violative of sections of the federal Constitution instituting the separation of the powers of the several branches of government. In Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) the Court held unconstitutional a provision of the Immigration and Nationality Act under which either House of Congress could, by resolution, disapprove a

[ 516 Pa. Page 370]

    decision of the Attorney General to suspend deportation proceedings. The discretionary power to suspend deportation was granted to the Attorney General by other provisions of the Act. The effect of such disapproval, or veto, was to require deportation of the alien; absence of such a disapproval resolution required cancellation of deportation proceedings.

The court based its holding of unconstitutionality on the federal Constitution's prescription for legislative action by way of bicameral approval, Art. I, § 1, and presentation to the President, Art. I, § 7. Characterizing the Congressional disapproval of the Attorney General's decision as "legislative action", the Court found that it could not be exercised by either House acting alone and without opportunity for Presidential review.

The Court later entered a summary affirmance in United States Senate v. Federal Trade Commission, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402, 77 L.Ed.2d 1403, 77 L.Ed.2d 1413 (1983). There the Court of Appeals for the District of Columbia Circuit had invalidated a provision of an Act allowing Congress a two-house veto by concurrent resolution of regulations adopted by the F.T.C. Consumers Union of U.S., Inc. v. Federal Trade Commission, 691 F.2d 575 (D.C.Cir.1982). The Circuit Court sitting en banc adopted the rationale of a panel of the same court in Consumers Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (D.C.Cir.1982), also summarily affirmed by the Supreme Court at 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402, 77 L.Ed.2d 1403, 77 L.Ed.2d 1413 (1983). Consumers Energy v. F.E.R.C. to a great degree presaged the rationale of Chadha.

Recognizing that Chadha involved only an interpretation of the federal Constitution, the appellant urges this Court to accept the reasoning articulated there as a sound construction of virtually identical language contained in the Constitution of Pennsylvania.

By Article II, Section 1, our Constitution vests "[t]he legislative power of this Commonwealth . . . in a General

[ 516 Pa. Page 371]

Assembly, which shall consist of a Senate and a House of Representatives." Article III, A, sets out the procedure by which laws are to be passed in the exercise of this legislative power. Unlike its federal counterpart, which leaves such matters to the rules of the respective Houses, our Constitution contains explicit strictures among other things preventing substantive changes of purpose in bills on their passage through the Houses, Art. III, § 1; requiring committee consideration of all bills, Art. III, § 2; limiting bills to only one subject clearly identified in the bill's title, Art. III, § 3; and requiring consideration on three different days in each House, Art. III, § 4.

The requirement that bills passed by both Houses be presented to the Governor for approval is contained in Article IV of our Constitution, which sets out the powers of the Executive. (The comparable provision of the federal Constitution is contained in Article I. Although untitled, that Article, with some minor exceptions, deals with the structure and powers of the Congress).

Every bill which shall have passed both Houses shall be presented to the Governor; if he approves he shall sign it, but if he shall not approve he shall return it with his objections to the House in which it shall have originated, which House shall enter the objections at large upon their journal, and proceed to reconsider it. If after such reconsideration, two-thirds of all the members elected to that House shall agree to pass the bill, it shall be sent with the objections to the other House by which likewise it shall be re-considered, and if approved by two-thirds of all the members elected to that House it shall be a law; but in such cases the votes of both Houses shall be determined by yeas and nays, and the names of the members voting for and against the bill shall be entered on the journals of each House, respectively. If any bill shall not be returned by the Governor within ten days after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which

[ 516 Pa. Page 372]

    case it shall be a law, unless he shall file the same, with his objections, in the office of the Secretary of the Commonwealth, and give notice thereof by public proclamation within thirty days after such adjournment.

Pa. Const., Article IV, § 15. Compare, U.S. Const., Art. I, § 7, cl. 2. A similar presentation requirement, however, regarding orders, resolutions and votes is found in Article III.

Section 9.

Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the question of adjournment, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.

Compare, U.S. Const., Art. I, § 7, cl. 3.

We shall not replicate the scholarship of the Supreme Court in Chadha or the Court of Appeals in Consumer Energy v. F.E.R.C.. As were those courts, we are persuaded that the foregoing provisions "are integral parts of the constitutional design for the separation of powers." Chadha, 462 U.S. at 946, 103 S.Ct. at 2781. The Supreme Court's summary of the purpose of these sections may equally be applied to the design of our Commonwealth government.

[T]he bicameral requirement and the Presentment Clauses . . . serve essential constitutional functions. The [Executive's] participation in the legislative process was to protect the Executive Branch from [the legislature] and to protect the whole people from improvident laws. The division of [the legislature] into two distinctive bodies assures that the legislative power would be exercised only after opportunity for full study and debate in separate settings. The [Executive's] unilateral veto power, in turn, was limited by the power of two-thirds of both Houses . . . to overrule a veto thereby precluding final arbitrary action of one person. . . . . It emerges clearly

[ 516 Pa. Page 373]

    that the prescription for legislative action . . . represents the Framers' decision that the legislative power . . . be exercised in accord with a single, finely wrought and exhaustively considered, procedure.

Id. at 951, 103 S.Ct. at 2784.

The Commonwealth argues that various considerations peculiar to the concept of federalism underlay the structure adopted in that Constitution but were lacking in the Pennsylvania experience. It is obvious that the Great Compromise, by which the numerical disadvantage of the smaller states in the House of Representatives was counteracted with equal representation in the Senate, is not precisely duplicated in the General Assembly. It seems equally obvious, however, that the overriding purpose of the bicameral structure -- due consideration by separate bodies composed of members representing constituencies of narrower and broader territories -- is the same in each. Likewise, although Chadha described the President's powers under the Presentment Clauses as "serv[ing] the important purpose of assuring that a ' national ' perspective is grafted on the legislative process," 426 U.S. at 948, 103 S.Ct. at 2782 (emphasis added), we might easily describe the Governor's role under our presentment clauses as adding a statewide perspective to the local and regional perspectives supplied by the House and the Senate respectively. In short, the distinctions argued by the Commonwealth appear insignificant in relation to the similarities of purpose and do not convince us that our Constitutionally ordained separation of powers should be understood to be less exacting than that prescribed in the federal Constitution.

For the most part, the parties have presented the case as a question of whether the foregoing reasoning does or does not apply to Section 2155(c), giving predictably opposite answers to the relevant questions -- "Does the Chadha rationale apply under the Pennsylvania Constitution?" "If so, does § 2155 run afoul of this rationale?" "If so, is it severable?" We find ...


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