Commonwealth v. Eid

• Decision Date: 29 April 2021
• Docket Number: No. 10 EAP 2020,10 EAP 2020
• Citation: 249 A.3d 1030
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Khalid EID, Appellant
• Court: Pennsylvania Supreme Court

249 A.3d 1030

COMMONWEALTH of Pennsylvania, Appellee

v.Khalid EID, Appellant

No. 10 EAP 2020

Supreme Court of Pennsylvania.

Argued: October 20, 2020

Decided: April 29, 2021

Owen W. Larrabee, Esq., Philadelphia, Aaron Joshua Marcus, Esq., Defender Association of Philadelphia, for Appellant.

Lawrence Jonathan Goode, Esq., Philadelphia, Benjamin James Halle, Esq., Jonathan Michael Levy, Esq., Philadelphia District Attorney's Office, for Appellee.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE WECHT

This case presents constitutional challenges to the Vehicle Code's¹ enhancement of sentences for those who refuse chemical testing after driving under a suspended license ("DUS"). Although we conclude that the evidence was sufficient to sustain Khalid Eid's conviction for refusing to submit to a warrantless breath test—which, unlike a warrantless blood draw, does not violate established constitutional safeguards against unreasonable searches and seizures—we vacate his sentence of imprisonment because the sentencing statute in question fails to specify a maximum term, and thus is unconstitutionally vague in contravention of state and federal due process principles.

I.

At approximately 11:30 p.m. on February 25, 2015, Philadelphia Police Officer Stephen Nagy observed a black Nissan parked on a one-way street with its engine still running. The Nissan previously had collided with two parked cars and was facing the wrong direction. Notes of Testimony ("N.T."), 3/2/2016, at 6-8. Officer Nagy approached the Nissan and asked the driver, Eid, for his driver's license, registration, and proof of insurance. Eid appeared disheveled, his eyes were red and glassy, he smelled of alcohol, and he had a difficult time retrieving the requested items from his back pocket. Officer Nagy asked Eid to step out of the vehicle. When Eid opened the door, Officer Nagy smelled "a moderate odor of an alcoholic beverage emanating from the vehicle and [Eid's] person." Id. at 7-8. Eid handed his license and registration to Officer Nagy. Eid's license was suspended. Id. at 23-24, 25.

Officer Nagy called for a wagon to transport Eid to the Accident Investigation District ("AID") for chemical testing. As they waited, Eid urinated on himself. At approximately 1:40 a.m., following Eid's transfer to AID, Officer Gary Harrison encountered Eid and read the O'Connell warnings to him.² At Eid's first trial, Officer Harrison gave the following account of his interaction with Eid:

He was polite, quiet. He had bloodshot, watery eyes. He had a wet stain on his pants that he had urinated on himself. He had low speech, whispering. He was sweating. He moved slowly. His pupils were dilated in room light. He had a moderate odor of an alcoholic beverage on his breath.

He had a lot of marijuana debris also, Your Honor, in his mouth. And he had marijuana debris on his tongue, which also indicated to me, Your Honor, that he did smoke recently.

He refused immediately, Your Honor, when he came in the room and then said "whatever you want." I told him it's his decision. Then he said "no test."

Again, I read him the O'Connell Warnings and the 75-439. He signed them and said no to the test. I read him the DL-26. Again, he said no to the test. I asked him two more times at the nurse's station. And, again, he said no. And, again, he did sign all forms.

At 2:03 a.m., Your Honor, based on him repeatedly saying no to the test, I deemed him to be a refusal. And I did offer him – initially, I offered him a breath or a blood. Then after I noticed the marijuana, it was a blood test that he refused.

Id. at 18-19.³

Eid was charged with several offenses for driving under the influence ("DUI"), one of which subjected him to elevated penalties due to his refusal to submit to chemical testing, along with a single count of DUS pursuant to 75 Pa.C.S. § 1543(a).⁴ Following a bench trial on March 3, 2016, in the Municipal Court of Philadelphia, Eid was convicted on all charges. At a sentencing hearing on April 12, defense counsel asked the court to impose "the mandatory minimum which is 90 days to six months," with immediate parole. N.T., 4/12/2016, at 4. Instead, the court imposed, inter alia , an aggregate sentence of one to two years’ imprisonment, a $2,500 fine, and an eighteen-month license suspension. Id. at 6.

Eid appealed, and proceeded to a de novo bench trial before the Honorable Paul P. Panepinto in the Court of Common Pleas on December 5, 2016. At the beginning of the trial, the Commonwealth stated that, notwithstanding the charge listed in the initial criminal information, it would be prosecuting the DUS offense under 75 Pa.C.S. § 1543(b)(1.1)(i), rather than subsection (a).⁵ The Commonwealth amended the information accordingly.

The applicable subsection of the DUS statute determines the permissible range of sentences available upon conviction. Subsection 1543(a) relates generally to driving with a suspended or revoked license, and prescribes a penalty of a $200 fine. Id. § 1543(a). Subsection 1543(b) applies when the license suspension resulted from a previous DUI offense. It prescribes an elevated penalty: a $500 fine and a term of imprisonment not less than sixty days nor more than ninety days. Id. § 1543(b). Subsection 1543(b)(1.1) sets forth a further elevated tier of punishment: a fine of $1,000 and a ninety-day minimum term of imprisonment, applicable when the motorist drove with a DUI-related suspended license and has a blood alcohol concentration of at least .02%, or any amount of a controlled substance in his blood, or "refuses testing of blood or breath." Id. § 1543(b)(1.1)(i). This latter sentencing provision presently is at issue.

Following an evidentiary presentation similar to that developed in the Municipal Court, the trial court convicted Eid on all charges.⁶ N.T., 12/5/2016, at 31. Sentencing was deferred until April 26, 2017, at which time the case was transferred to the Honorable Pamela P. Dembe. The sentencing court merged Eid's DUI convictions and imposed a term of ninety days to six months’ imprisonment (to be served on weekends), plus two years’ probation and a $2,500 fine. As to the DUS conviction, the court imposed an identical term of imprisonment and probation, to be served concurrently with the DUI sentence, and an additional $1,000 fine. N.T. 4/26/2017, at 8-11.

Eid appealed to the Superior Court. In his Pa.R.A.P. 1925(b) statement, he argued, in relevant part, that the applicable DUS statute, 75 Pa.C.S. § 1543(b)(1.1)(i), contains a provision rendered unconstitutional by the Supreme Court of the United States’ decision in Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), because it penalizes the refusal to submit to a warrantless blood test.⁷ Eid further contended that his sentence for DUS was illegal because it exceeded ninety days, which he understood to be the statutory maximum term. The sentencing court's opinion, which was authored by a judge other than the one who presided over Eid's trial, addressed only the first of these claims. The authoring judge concluded that Birchfield was inapplicable because Eid also refused a breath test. See Tr. Ct. Op., 12/28/2017, at 4-5 (unpaginated). The trial court did not address the range of permissible sentences.

In a unanimous memorandum, the Superior Court vacated Eid's judgment of sentence and remanded for resentencing. Commonwealth v. Eid , 1670 EDA 2017, 2019 WL 3046587 (Pa. Super. July 11, 2019). Eid challenged the sufficiency of the evidence with respect to both the DUI and DUS offenses, asserted that the portion of the DUS statute penalizing warrantless blood test refusals is unconstitutional under Birchfield , and argued that his sentences for both DUS and DUI were illegal because they exceeded the statutory maximum penalties.

The court concluded that the evidence was sufficient to sustain Eid's convictions for both DUI and DUS. With regard to DUI, the court deemed Officer Nagy's testimony describing Eid's apparently intoxicated state sufficient to establish that Eid was unable to safely operate a vehicle, thereby satisfying the elements of DUI-general impairment under 75 Pa.C.S. § 3802(a)(1). As for DUS, the court observed that the record included "evidence of [Eid's] refusal to take a blood test," and thus was sufficient to sustain his conviction under 75 Pa.C.S. § 1543(b)(1.1)(i). Eid , 2019 WL 3046587, at *4.

The panel rejected Eid's Birchfield argument because he had advanced it under the banner of a sufficiency challenge to his DUS conviction. Id. (" Birchfield addresses suppression issues and sentencing issues, but not challenges to the sufficiency of the evidence."). The Superior Court deemed Birchfield "not relevant in evaluating the sufficiency of the evidence in this case." Id.

However, the court agreed with Eid that, due to the length of the probationary tails imposed, his sentences for both DUI and DUS exceeded the statutory maximums. A sentencing court may impose a split sentence including both incarceration and probation, the panel noted, but "the total amount of time imposed in a split sentence cannot exceed the statutory maximum." Id. at *6 (citing Commonwealth v. Crump , 995 A.2d 1280, 1283-84 (Pa. Super. 2010) ). The court observed that the statutory maximum sentence for Eid's merged DUI offenses was six months, see 75 Pa.C.S. § 3803(b)(1), (2), whereas the sentencing court imposed a sentence of ninety days to six months’ imprisonment plus a two-year probationary term.

The court likewise determined that the statutory maximum for DUS also was six months. The panel recognized that 75 Pa.C.S. § 1543(b)(1.1)(i) contains no express statutory maximum penalty, only a minimum term of ninety days’ imprisonment. See Eid , 2019 WL 3046587, at *6 n.11. Despite the absence of a specific statutory maximum for this offense, the court nonetheless gleaned a six-month maximum from 75 Pa.C.S. § 6503(a), which sets a maximum term of imprisonment of six...