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Commonwealth v. Eisenberg

Supreme Court of Pennsylvania

August 19, 2014


Argued April 9, 2013

Page 1269

Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County entered July 19, 2011 at No. CP-02-CR-0001850-2011. Trial Court Judge: Joseph K. Williams, III, Judge. Intermediate Court Judges: Christine Donohue, Anne E. Lazarus, Judges; Stephen J. McEwen Jr., President Judge Emeritus.

For Matthew Steven Eisenberg, APPELLANT: Michael F. Santicola, Esq. Sainovich & Santicola, P.C.

For Commonwealth of Pennsylvania, APPELLEE: Amy Elizabeth Constantine, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office.

BEFORE: MR. CHIEF JUSTICE CASTILLE. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. Former Justice Orie Melvin did not participate in the consideration or decision ofthis case. Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd and Mr. Justice McCaffery join the opinion.


Page 1270


The controlling issue in this unusual direct appeal from a conviction arising under the Gaming Act[1] is whether imposition of a mandatory minimum fine of $75,000 for a conviction of a first-degree misdemeanor theft of $200 violates the prohibition of Article I, Section 13 of the Pennsylvania Constitution against excessive fines.[2] For the reasons set forth below, we conclude that, under the circumstances, the fine imposed indeed is unconstitutionally excessive. Accordingly, we vacate that portion of the judgment of sentence involving the mandatory fine and we remand to the trial court to determine, in its discretion, the appropriate fine to be imposed commensurate with appellant's offense.

Page 1271

I. Background and Jurisdiction

Appellant's conviction arose from a guilty plea, and thus the facts are undisputed. Between November 26 and November 30, 2010, appellant, a poker dealer at the Rivers Casino in Pittsburgh, took $200 in poker chips from his gaming table by sliding chips from the pot into his personal tips box. After casino security personnel and state police reviewed video tapes of the theft, appellant was arrested and charged with one count of Unlawful to Take/Claim with Intent to Defraud under Section 1518(a)(17) of the Gaming Act. See Notes of Testimony, Plea and Sentencing Hearing, 07/19/11, at 11 (hereinafter " N.T." ).[3]

On July 19, 2011, appellant entered a plea of guilty to the single theft charge, which the Gaming Act grades as a first-degree misdemeanor. See 4 Pa.C.S. § 1518(b)(1)(ii). During the plea and sentencing hearing, the trial prosecutor adverted to a negotiated plea agreement and addressed the trial court:

In exchange for [appellant's] plea to the sole count of the Information, we would ask that [appellant] be placed on a period of probation to be set by the Court; and there, also, is a matter of a fine, Your Honor. I don't know if you want to address that at this point.

N.T., at 2-3. The prosecutor then recited the language of Section 1518(b)(2)(i) of the Gaming Act, which mandates a fine of " not less than $75,000 nor more than $150,000 if the person is an individual" who commits a first violation of subsection (a)(17), 4 Pa.C.S. § 1518(b)(2)(i)(A). Appellant's counsel agreed to this reading of the statute, but noted that he was prepared to make an argument challenging the constitutionality of the provision. N.T., at 3-4. The trial court then asked counsel if there was " anything you want to tell [the court] about your client" prior to sentencing. Counsel relayed to the court that at the time of sentencing appellant was 26 years old, he had no prior convictions, and he had been unemployed since the incident as he was enrolled full-time as a student in a medical assistant program at a vocational school in Pittsburgh. Counsel also noted that appellant was living with his fiancé e, the couple were expecting their first child, and they did not own a house. N.T., at 4.

Following the plea colloquy, counsel stated the grounds for objection to the mandatory fine as follows:

For the record, we object to that fine being imposed for various reasons.
The first and foremost, we believe it to be unconstitutional under the Pennsylvania Constitution and the United States Constitution as cruel and unusual punishment. The unusual is really the word. As well, if you look at any other theft crime that the Commonwealth has ever brought against a defendant, there's nothing that comes close to imposing a fine that we have here. For example, we could steal, you know, $10,000 from a church. We could steal $20,000 from a mom and pop store down the street. We could steal $10,000 from this courtroom or from anybody in this courtroom. The fine is not $75,000. It's a draconian law. . . .

Page 1272

We understand how it's written, Your Honor. I know the Court does as well; and we just do not believe that is proper in this particular case. . . . [W]e couldn't even find a felony theft charge that would carry even close to this kind of a fine. I mean, this is more than you impose in any particular case.
What we're doing here, we're protecting the rights of the casino. We have -- the Legislature has placed the casino above everybody else in Pennsylvania. Not only the church, but any establishment whatsoever is below the casino in what we're trying to protect. We believe that to be incorrect and unconstitutional. We understand the Court's requirements, but we would like to be heard on that, that the fine does not match the act. That's where we are.

Id. at 12-14.

After the prosecutor declined to respond, the trial judge noted that he believed the case " will not end today," he was " sensitive" to the defense argument, and he " agree[d] in large part." The judge added that he knew of no other entity given the sort of protection afforded the casino in this scenario, noting that, in theory, he could impose a fine of $150,000 for a $200 theft and had no discretion but to impose $75,000 as a minimum fine. Without specifically responding to appellant's claim of unconstitutionality, the judge simply stated that he was obligated to " interpret the law as it reads," and imposed the mandatory minimum fine. Id. at 14-15.

Appellant filed a post-sentence motion objecting, inter alia, that the mandatory fine was excessive; that it was within the court's power to require that the fine relate to the crime; and that the fine was " blatantly unconstitutional on its face," as it violated the excessive fines proscription of Article I, Section 13 and the prohibition against cruel and unusual punishment under the Eighth Amendment. The Commonwealth filed a responsive brief arguing that, under the Gaming Act, only the Pennsylvania Supreme Court could resolve the constitutionality of the mandatory fine provision and, in any event, the provision was constitutional.

On November 15, 2011, the trial court filed an opinion that began by noting that appellant's post-sentence motion was deficient because his various objections were not supported by developed arguments or case references, and thus, " many, if not all of the claims, have been waived for failure to develop the argument." Trial Ct. Op. at 2-3. Nevertheless, the court addressed each claim. As relevant here, the court rejected the excessive fines claim by noting that this Court then had pending before it a discretionary appeal in Commonwealth v. Carela-Tolentino, 610 Pa. 10, 17 A.3d 922 (Pa. 2011), posing the question of whether the imposition of a mandatory minimum fine of $25,000 for drug trafficking offenses violated the Eighth Amendment or Article I, Section 13.[4] In the trial court's view, the eventual decision in Carela-Tolentino " will shed valuable light," but absent such guidance, it saw no merit in the claim. Trial Ct. Op. at 5-6.[5]

Appellant appealed to the Superior Court, claiming that the mandatory minimum

Page 1273

fine was excessive as a statutory matter and as a constitutional matter. In its responsive brief, the Commonwealth argued that appellant's constitutional claim was within the exclusive appellate jurisdiction of this Court pursuant to Section 1904 of the Gaming Act, which provides, in relevant part, that this Court " shall have exclusive jurisdiction to hear any challenge to or to render a declaratory judgment concerning the constitutionality of this part." 4 Pa.C.S. § 1904. The Commonwealth added that: " The 'part' referred to in Section 1904 is the entirety of the Gaming Act." Commonwealth's Brief at 13 (quoting DePaul v. Commonwealth, 600 Pa. 573, 969 A.2d 536, 538 n.1 (Pa. 2009) (Court entertained constitutional challenge to Section 1513 of Gaming Act prohibiting political contributions by certain individuals involved in gaming industry)). On October 9, 2012, the Superior Court transferred the appeal to this Court, finding that the constitutional challenge was within our exclusive appellate jurisdiction under Section 1904.[6]

We did not direct additional briefing: the matter proceeded to oral argument upon the briefs filed in the Superior Court. Neither party has challenged the propriety of the transfer order, or the notion that the matter is properly before this Court on direct appeal under Section 1904. It is not difficult to imagine a counter-argument on the jurisdictional question, given the narrowness of the constitutional challenge to the Gaming Act's fines provision. On the other hand, it is neither settled nor certain that a constitutional challenge to a specific application of a provision of the Gaming Act is not encompassed within the appellate jurisdiction contemplated by Section 1904. No challenge to jurisdiction having been raised, and the absence of jurisdiction not being apparent, we will accept the appeal and proceed to the parties' arguments. Contrast Pennsylvania State Troopers Ass'n v. Commonwealth Gaming ...

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