The opinion of the court was delivered by: NEALON
WILLIAM J. NEALON, CHIEF UNITED STATES DISTRICT JUDGE
Currently before the court is petitioner's petition for writ of habeas corpus, filed on October 30, 1987. For the reasons that follow, the court will deny petitioner's application for habeas relief.
This action arises out of petitioner's conviction in the Luzerne County Court of Common Pleas of two counts of driving under the influence of alcohol and one count of leaving the scene of an accident involving death or injury. Petitioner was acquitted of two counts of homicide by motor vehicle while driving under the influence and two counts of homicide by motor vehicle. Following his conviction, petitioner was sentenced to one (1) year imprisonment.
The charges stemmed from appellant's involvement in two accidents occurring on March 4, 1985.
The first of these resulted in the deaths of two children who were struck by appellant's pick-up truck as he swerved out of the right lane onto the berm of the road where the children stood. Failing to stop, appellant proceeded approximately one and one-half (1 1/2) miles farther, lost control of his vehicle, and crossed the center line, coming to a halt up an embankment on the opposite side of the road and facing in the direction from which he had come.
Appellant was arrested after police, who had been notified that a hit and run driver was at the scene of a second accident, noticed appellant's inebriated condition. He exhibited the classic physical symptoms of intoxication, bloodshot eyes, slurred speech, impaired coordination, and exuded a pronounced aroma of intoxicants.
Appellant was escorted to the local police station for booking, and then to the nearest breath-testing facility, where, after a delay of some two and one-half (2 1/2) hours, analysis revealed his blood alcohol level to be.19.
Petitioner filed the present action on October 30, 1987. Respondents filed their response to the petition on December 23, 1987, and petitioner filed a reply brief on December 29, 1987. See documents 12 and 15 of record, respectively. The court ordered the lower court record on January 15, 1988, and, following a lengthy delay, that record was received on March 24, 1988. See documents 17 and 20 of record, respectively. The court has carefully examined that record in its entirety, and petitioner's habeas corpus petition is now ripe for disposition.
Defendant first claims that his sentence violates the due process clause of the Fourteenth Amendment to the United States Constitution and the double jeopardy clause. In essence, defendant contends that the trial judge impermissibly considered the deaths of the two children at the sentencing stage in imposing sentence. See document 1 of record, at p. 4. The court finds this argument to be meritless.
Petitioner was convicted of two separate offenses, driving under the influence of alcohol and leaving the scene of an accident involving death or injury. See 75 Pa. C.S.A. §§ 3731 and 3742, respectively. The former is a misdemeanor of the second degree with a maximum term of imprisonment of two years, see 75 Pa. C.S.A. § 3731(e)(1); 18 Pa. C.S.A. § 1104(2), and the latter is a misdemeanor of the first degree, with a maximum term of imprisonment of five years, if the victim suffers serious bodily injury or death. See 75 Pa. C.S.A. § 3742(b)(2); 18 Pa. C.S.A. § 1104(1). The sentencing guidelines in effect when petitioner was tried and convicted provided for a standard minimum range of 0-12 months for each offense. See 204 Pa. Admin. Code §§ 303.8(c)(3), 303.9(b).
In Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983), a case dealing with cumulative sentences imposed in a single trial, the court held that "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Here, petitioner received two consecutive 6-12 month sentences. See document 1 of record, Exhibit A (sentencing transcript), p. 12. These sentences are clearly within the ranges prescribed by Pennsylvania's General Assembly. Thus, the sentences do not violate the double jeopardy clause.
With regard to petitioner's due process claim, it is true that a criminal defendant must be afforded some degree of due process at a sentencing proceeding. See Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948); United States v. Palma, 760 F.2d 475, 477 (3d Cir. 1985). Nevertheless, the same degree of due process protection need not be afforded during the sentencing phase of a criminal proceeding as would be required at trial. United States v. Palma, 760 F.2d at 477; United States v. Davis, 710 F.2d 104, 106 (3d Cir. 1983), cert. denied, 464 U.S. 1001, 104 S. Ct. 505, 78 L. Ed. 2d 695 (1983) (only minimal due process protection required at sentencing).
The court concludes that the trial court's actions in the present case did not violate petitioner's minimal due process rights. As stated previously, petitioner's sentence did not violate Pennsylvania's sentencing statute. Cf. Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct. 2227, 65 L. Ed. 2d 175 (1980); Hill v. Estelle, 653 F.2d 202, 204 (5th Cir. 1981), cert. denied, 454 U.S. 1036, 102 S. Ct. 577, 70 L. Ed. 2d 481 (1981) (violation of state sentencing statute can in certain circumstances invoke the due process protections of the constitution). The deaths of the children directly figure into petitioner's sentence for leaving the scene of the accident according to Pennsylvania's statute. See 75 Pa. C.S.A. § 3742(b) (penalties). In addition, the sentencing judge has traditionally been permitted to conduct "an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Grayson, 438 U.S. 41, 50, 98 S. Ct. 2610, 2615, 57 L. Ed. 2d 582 (1978) (taking into account a defendant's false testimony does not constitute punishment for the crime of perjury for which the defendant has not been tried or convicted by due process); see also Commonwealth v. Lupatsky, 341 Pa. Super. 338, 342, 491 A.2d 845, 847 (1985) (prior convictions excluded in computing prior record score may still be considered in fixing the penalty within the range of "mitigated" to "aggravated" at a particular step); Commonwealth v. Holler, 326 Pa. Super. 304, 309, 473 A.2d 1103, 1106 (1984) (court has broad discretion in sentencing that will not be disturbed absent abuse); Commonwealth v. Weldon, 320 Pa. Super. 102, 104-105, 466 A.2d 1082, 1084 (1983) (court is bound to examine a range of factors concerning the person and history of defendant, and the particular circumstances of the crime in fashioning a sentence). Finally, in addition to the deaths of the two children, the court relied on the presentence investigation report, the seriousness of the offenses, and the history, character, and condition of petitioner. This court finds no error.
Petitioner also claims that the admission into evidence of the results of the breathalyzer test given to petitioner on March 4, 1983 violates the ex post facto clause of the Constitution. See document 1 of record, at pp. 4-5. Petitioner frames his argument in the following fashion:
On January 15, 1983, rules and regulations governing the admissibility of breathalyzer tests in the Commonwealth of Pennsylvania were adopted. These regulations have been attached as Exhibit "B". Section 77.6(b)(2)(i) provided in relevant part that five accuracy tests must be performed in order to certify any machine as being accurate and specified the range which each of the five tests must fall within. The rules and regulations went on to provide that if any of the five tests fell outside of the range specified that the machine had to be removed from service and could not be used.
On March 19, 1983, fifteen days after the date of the accident and Defendant's arrest, the rules and regulations were amended so as to enlarge the range of permissible test results. A copy of these amended rules and regulations have been attached as Exhibit "C".
Each of the five accuracy tests performed on the machine used to test the Defendant's blood alcohol level fell outside of the range specified by the regulations adopted in January and in effect on the date of the defendant's arrest but were within the range specified in the regulations which were adopted after the Defendant's arrest. A Copy of the five test results is attached to this Petition as Exhibit "D". Over objection of the Defendant the court admitted the results of this breathalyzer into evidence.
It is the position of the defendant that the admission of these breath test results based on regulations which were not in existence at the time of the Defendant's arrest violates the ex post facto provision of the United States Constitution.
See id. For the reasons that follow, the court finds no violation of the ex post facto clause, and so this claim will also be rejected.
The ex post facto clause was included in the Constitution to assure that federal and state authorities were restrained from enacting arbitrary and vindictive legislation, and that legislative enactments give fair warning of their effect and permit individuals to rely on their meaning until explicity changed. Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446, 2451, 96 L. Ed. 2d 351 (1987). Thus, any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission; which aggravates a crime, or makes it greater than it was, when committed; or that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender, is prohibited as ex post facto. Id. slip op. at 2450-2451; Dobbert v. Florida, 432 U.S. 282, 292, 97 S. Ct. 2290, 2297, 53 L. Ed. 2d 344 (1977); Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S. Ct. 68, 68-69, 70 L. Ed. 216 (1925).
Thus, to fall within the ex post facto prohibition, two critical elements must be present: (1) the law must be retrospective, that is, it must apply to events occurring before its enactment and it must change the legal consequence of acts completed before its effective date, Miller v. Florida, 107 S. Ct. at 2451; Weaver v. Graham, 450 U.S. 24, 29, 31, 101 S. Ct. 960, 964, 965, 67 L. Ed. 2d 17 (1981); and (2) it must disadvantage the offender affected by it, that is, the law must be more onerous than the prior law. Miller v. Florida, 107 S. Ct. at 2451, 2452; Weaver v. Graham, 450 U.S. at 29, 101 S. Ct. at 964, 67 L. Ed. 2d 17; Dobbert v. Florida, 432 U.S. at 294, 97 S. Ct. at 2299, 53 L. Ed. 2d 344.
Here, the court finds present neither retrospectivity, as the term is defined in Miller and Weaver, nor disadvantage to the petitioner.
Petitioner challenges those portions of the breathalyzer regulations dealing with accuracy inspection testing. The January 15, 1983 regulations provided as follows:
(2) The breath testing device does not pass the accuracy inspection test and shall be removed from service if:
(i) one or more of the five tests yields a result less than.09% or greater than.10%; or
(ii) the average deviation derived by adding the absolute values of the differences between the results of the five tests and a constant value of.10% and dividing the total ...