Com. v. Sojourner

• Court: Pennsylvania Supreme Court
• Writing for the Court: Before NIX; NIX
• Citation: Com. v. Sojourner, 518 A.2d 1145, 513 Pa. 36 (Pa. 1986)
• Decision Date: 03 December 1986
• Parties: COMMONWEALTH of Pennsylvania v. James SOJOURNER, Appellant. COMMONWEALTH of Pennsylvania v. John BURTON, Jr., Appellant.

Page 1145

518 A.2d 1145

513 Pa. 36

COMMONWEALTH of Pennsylvania v. James SOJOURNER, Appellant.

COMMONWEALTH of Pennsylvania v. John BURTON, Jr., Appellant.

Supreme Court of Pennsylvania.

Submitted Jan. 24, 1986.

Decided Dec. 3, 1986.

John W. Packel Chief/Appeals Div., Leonard Sosnou, Philadelphia, for appellant.

Robert B. Lawler, Chief/Appeals Div., Gaele M. Barthold, Chief/Prosecution Appeals, Maxine J. Stotland, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

NIX, Chief Justice.

We consider here appeals from Orders of the Superior Court affirming the imposition of forty-eight hours' imprisonment and $300.00 in fines for violation of section 3731(a)(1) and (a)(4) of the Pennsylvania Vehicle Code, 75 Pa.C.S. § 3731 (Supp.1986). In the Sojourner appeal (No. 104 E.D. Appeal Docket 1985), we are called upon to consider whether a judge has power to suspend sentence under the penalty section of this provision. In the Burton appeal (No. 126 E.D. Appeal Docket 1985), we will consider the ancillary issue of whether the imposition of a heightened penalty pursuant to statutory requirements violates double jeopardy guarantees of the state and federal constitutions. For the reasons that follow, we conclude that the mandatory sentencing provisions of section 3731(a) preclude the sentencing court from imposing a discretionary suspension of sentence and that resentencing of appellants in accord with section 3731(e) does not eviscerate double jeopardy guarantees under the United States and Commonwealth Constitutions.

The facts in Commonwealth v. Sojourner and Commonwealth v. Burton are essentially the same in that both appellants were driving under the influence of alcohol and were charged with violations under Section 3731(a)(1) and (a)(4). ¹ Both appellants were first offenders. They were tried and convicted in the Philadelphia Municipal Court and initially sentenced to a term of one year's probation on the condition that they receive treatment for alcoholism.

Upon petition of the Commonwealth, the Municipal Court subsequently vacated its original sentence in both cases and imposed a sentence of forty-eight hours' to eleven and one-half months' imprisonment and a $300.00 fine. Appellants then filed petitions for reconsideration of sentence, which were denied without a hearing. An appeal to the Court of Common Pleas of Philadelphia County questioning the propriety of the change in sentence also proved unsuccessful. ² Appeals were taken to the Superior Court, which upheld the Municipal Court's judgments of sentence. A Petition for Allowance of Appeal was filed in this Court which we granted because of the importance of the issues raised.

The first question is whether the legislature has authority to remove from the court the right to suspend sentence and impose probation. This Court has long held that establishment of punishment for criminal acts is well within the confines of legislative authority. Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986); Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986); Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 361 (1985); Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958); Commonwealth v. Cano, 389 Pa. 639, 133 A.2d 800, cert. denied and appeal dismissed, 355 U.S. 182, 78 S.Ct. 267, 2 L.Ed.2d 186 (1957). For example, we recognized in Commonwealth v. Wright, supra, that the legislature, in promulgation of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712(c) "... restrict[ed] the judge's discretion to be lenient in imposing sentence. When the statute is applicable, the court lacks authority to place a convicted offender on probation or suspend sentence." Commonwealth v. Wright, 508 Pa. at 44 n. 2, 494 A.2d at 363 n. 2 (concurring opinion). Further, we said in Wright:

The effect of section 9712 is merely to limit the discretion of the sentencing court in the selection of a minimum sentence.... The maximum permissible term of imprisonment remains unaffected. The defendant has no cognizable right to leniency.

508 Pa. at 40, 494 A.2d at 362.

It being settled that the legislature has authority to establish mandatory minimum terms of imprisonment for a particular offense, we address the second issue of whether the statute in question does in fact intend to provide mandatory minimum sentences for driving under the influence of alcohol or other controlled substances. Section 3731(e) provides in pertinent part:

(e) Penalty.--

(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:

(i) not less than 48 consecutive hours.

(ii) not less than 30 days if the person has previously been convicted of an offense under this section or an equivalent offense in this or other jurisdictions within the previous seven years.

(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

(iv) not less than one year if the person has three times previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

(2) Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

(3) The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory penalties of this section.

(4) The Commonwealth has the right to appeal directly to the Superior Court any order of court which imposes a sentence for violation of this section which does not meet the requirements of this section. The Superior Court shall remand the case to the sentencing court for imposition of a sentence in accordance with the provisions of this section....

It is contended by appellant that the legislature did not intend to establish mandatory punishment for a violation of section 3731. In determining whether the statute in question provides for mandatory terms of imprisonment, we are guided by several well-established principles of statutory construction. We construe the words of the statute in accord with their plain meaning. Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980). "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." 1 Pa.C.S. § 1921(b). "Every statute shall be construed, if possible, to give effect to all its provisions." 1 Pa.C.S. § 1921(a). The legislature is presumed not to have intended provisions of its enactments to be mere surplusage. Masland v. Bachman, 473 Pa. 280, 374 A.2d 517 (1977).

Having closely examined the penalty provisions of section 3731, we are satisfied that the aforementioned provisions are clear and free from ambiguity. Section 3731(e)(1)(i) explicitly provides that "... the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment...." (Emphasis added.) 75 Pa.C.S. § 3731(e)(1)(i). The word "shall" as used in a statute is generally regarded as mandatory, i.e., imposing a duty upon the party to whom the statute is directed. Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965); Division 85, Amalgamated Transit Union v. Port Authority of Allegheny County, 417 Pa. 299, 208 A.2d 271 (1965); National Transit Co. v. Boardman, 328 Pa. 450, 197 A. 239 (1938). We find no basis for a contrary interpretation of the word "shall" in the context of section 3731.

Moreover, subsection (e)(3) of section 3731 provides:

(3) The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supercede the mandatory penalties of this section.

(Emphasis added.) 75 Pa.C.S. § 3731(e)(3). Thus, the statute itself explicitly states that the sentences specified are "mandatory." In addition, the legislature not only has established specific penalties for violators of section 3731, ³ but has provided also a mechanism under section 3731(e)(4) whereby "[t]he Commonwealth has the right to appeal directly to the Superior Court any order of court which imposes a sentence for violation of this section which does not meet the requirements of this section." ⁴ In view of the long-standing judicial policy of limiting review of the sentencing discretion in this Commonwealth, the express provision for a direct appeal for the sole purpose of challenging a sentence is a clear expression of this legislative intent to make these minimum provisions mandatory. See Commonwealth v. Williams, 456 Pa. 550, 317 A.2d 250 (1974); Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973); Commonwealth v. Brown, 443 Pa. 274, 278 A.2d 170 (1971); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Marks, 442 Pa. 208, 275 A.2d 81 (1971).

Finally, the argument that "shall" be construed as merely directory is inconsistent with the meticulous scheme provided for directing the sentencing decision in these cases. Such an interpretation would render this language totally unnecessary if the legislature had intended the traditional judicial exercise of discretion to prevail in these cases. Moreover, the express purpose of providing more stringent penalties for violating these provisions would be rendered virtually illusory. ⁵

The final argument to be considered is Burton's contention that judicial...