COMMONWEALTH OF PENNSYLVANIA, Appellee v. KHALID EID, Appellant
No. 10 EAP 2020
IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
DECIDED: April 29, 2021
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. [J-85-2020]. ARGUED: October 20, 2020. Appeal from the Judgment of Superior Court entered on 07/11/2019 at No. 1670 EDA 2017 (reargument denied 08/28/2019) affirming vacating and remanding the Judgment of Sentence entered 04/26/2017 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0003605-2016.
JUSTICE WECHT
This case presents constitutional challenges to the
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
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 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.
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
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
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
The court likewise determined that the statutory maximum for DUS also was six months. The panel recognized that
II.
We granted allowance of appeal in order to assess the constitutionality of Eid’s sentence under
statute presents a question of law, which we review de novo. Commonwealth v. Bell, 211 A.3d 761, 765 (Pa. 2019).
A.
Eid first claims that his sentence is illegal because the statute at issue imposes criminal penalties for refusing to submit to a warrantless blood draw. As a threshold matter, he concedes that his argument presumes a “favorable resolution of the factual dispute that his refusal was based upon the rejection of a request to submit to a blood test.” Eid’s Brief at 13 n.11. Eid correctly claims that, in light of Birchfield, his conviction and sentence pursuant to
The notes of testimony from Eid’s first trial, which were introduced at his subsequent prosecution, confirm that he refused both blood and breath testing roughly half a dozen times between 1:40 a.m. and 2:03 a.m. on February 26, 2015, shortly after being transferred to AID. As the late Officer Harrison recounted, upon entering the room where the officer waited to process him, Eid—unprompted—initially refused all testing. Eid refused again after Officer Harrison read him the O’Connell warnings and 75-439 Report for Chemical Testing. See N.T., 3/2/2016, at 18, 19 (“He signed them and said no to the test.”). He refused once more after being read the DL-26 form, on which the words “breath” and “blood” were handwritten on a blank line next to a prompt indicating the specific tests requested by the officer. And then he refused twice at the nurses’ station.
Although Officer Harrison indicated that he offered Eid a blood test after noticing marijuana debris in Eid’s mouth, significantly—and fatal to Eid’s presumption—the signed DL-26 form corroborates Officer Harrison’s testimony that Eid also specifically refused breath testing. Eid thus was “provided with an opportunity to make a ‘knowing and conscious choice’ between providing voluntary consent to a chemical test”—pertinently, of his breath—“or accepting the consequences that will follow from the refusal to do so.” Commonwealth v. Myers, 164 A.3d 1162, 1180-81 (Pa. 2017). That evidence was sufficient to sustain Eid’s conviction pursuant to subsection 1543(b)(1.1)(i) for refusing a breath test. Neither Birchfield nor the other grounds asserted in Eid’s first question
B.
Turning to the second issue, Eid contends that the sentencing provision in subsection 1543(b)(1.1)(i) “is illegal because the Legislature failed to provide a clear statutory maximum penalty applicable to the crime rendering the permissible range of sentences unconstitutionally vague in violation of due process under both the
Eid asserts that any interpretation of the DUS statute that would impose a maximum term of more than ninety days’ imprisonment for refusing chemical testing is constitutionally infirm. However, pointing to the statute’s mandatory $1,000 fine for a DUS conviction under the same provision, Eid also claims that, had the Legislature intended to direct courts to impose a mandatory ninety-day flat sentence, it would have said so directly. An express directive would have been necessary, in his view, to overcome the Sentencing Code’s general rule that each criminal sentence be indeterminate, with a minimum term that is no greater than half of its maximum term. See
The Commonwealth counters that the DUS statute can be read so as to mandate a minimum sentence of ninety days with a maximum term not to exceed six months. In its view, as applied to a sentencing provision, the phrase “not less than” plainly sets the lower end of a mandatory sentencing range. Commonwealth’s Brief at 15 (citing subsection 1543(b)(1.1)(ii)-(iii) (grading second and subsequent DUS violations as misdemeanors punishable by terms of imprisonment “not less than six months” and “not less than two years,” respectively)); see also id. at 16-17 (citing Commonwealth v. O’Brien, 514 A.2d 618, 620 (Pa. Super. 1986) (“The words ‘not less than’ used in the statute unambiguously connote a minimum term of imprisonment. It strains all notions of common sense to suggest that ‘not less than’ can reasonably be interpreted as meaning ‘maximum.’”)).
In support of its position, the Commonwealth cites Commonwealth v. Koskey, 812 A.2d 509 (Pa. 2002), in which this Court reviewed a sentence imposed under a prior version of subsection 1543(b)(1) (relating to DUS-DUI generally). At the time, paragraph (b)(1) mandated a sentence of “not less than 90 days” upon conviction. In affirming a flat ninety-day sentence under the predecessor statute to subsection 1543(b)(1.1)(i), the Court found that “‘the plain language of the statutory scheme required sentencing courts to adhere to the mandatory minimum sentencing guidelines for violations of Section 1543(b)(1).’” Commonwealth’s Brief at 17-18 (quoting Koskey, 812 A.2d at 511); see also Commonwealth v. Yale, 657 A.2d 987, 988 (Pa. Super. 1995) (“[A] violation of
The absence of an express maximum penalty for a first violation of subsection 1543(b)(1.1)(i) does not invalidate the statute, the Commonwealth claims, because, when read in conjunction with Section 6503 of the Vehicle Code (relating to subsequent convictions for certain offenses), a statutory limit of six months’ imprisonment may be inferred where a maximum sentence for a summary DUS-DUI offense is unspecified. The Commonwealth points to the statutes’ historical development, which it believes demonstrates that the maximum term for a summary DUS violation under Section 1543(a) also covers summary DUS-DUI offenses under Section 1543(b). Commonwealth’s Brief at 19. Specifically, Section 6503 mandates that a person who commits a second or subsequent DUS violation under Section 1543(a)—a summary offense—may be sentenced to a term of imprisonment “‘of not more than six months.’” Id. at 20 (quoting
As the Commonwealth recounts, prior to December 3, 2002, the recidivist penalties under Section 6503 were not limited to repeat offenders of Section 1543(a). Instead, the former version of Section 6503 called for terms of “‘imprisonment for not more than six months’” for all second or subsequent convictions under Section 1543. Id. (quoting Act of Dec. 21, 1998, P.L. 1126, No. 151, § 58). A 2002 amendment narrowing
The evolution of the DUS statutes thus demonstrates that the language in Section 6503 was limited to violations of Section 1543(a), the Commonwealth claims, simply because the General Assembly already understood that the statutory maximum penalty for a violation of paragraphs (b)(1) and (b)(1.1)(i) was six months’ imprisonment. Id. at 22 (citing Bell, 645 A.2d at 217-18 (holding that statute setting forth mandatory sentences was not unconstitutionally vague, although the statute provided no maximum sentences, where sentences which “further[ed] the intent of the legislature” could be reasonable inferred from other statutory provisions)). Although the penalty under paragraph (b)(1) has since been amended, the Commonwealth again notes that the language in paragraph (b)(1.1)(i) was left unchanged. Id. at 23.
Lastly, the Commonwealth suggests that Eid’s reliance upon the Sentencing Code’s general rule of indeterminate sentences is misplaced here because the Vehicle Code establishes a separate sentencing scheme for summary DUS-DUI offenses. See Commonwealth’s Brief at 25 (quoting Bell, 645 A.2d at 217 (noting that although “the minimum-maximum rule of [Section] 9756(b) is a longstanding concept in our Commonwealth, it is a statutory and not a constitutional provision”)). The Commonwealth concludes that Section 9756(b)’s general rule must yield to the specific provision of
With the preceding arguments in mind, we begin by reiterating the longstanding precept that legislative enactments are presumed to be constitutional. One who challenges the constitutionality of a statute bears a heavy burden of persuasion. Commonwealth v. Mikulan, 470 A.2d 1339, 1340 (Pa. 1983). “Accordingly, legislation will not be declared unconstitutional unless it ‘clearly, palpably and plainly’ violates the constitution.” Id. (citation omitted).
Eid asserts that the DUS statute under which he was sentenced lacks a statutory maximum penalty, and thus is unconstitutionally vague in violation of state and federal due process principles. Generally speaking, in criminal matters, “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). It is well-settled that vague sentencing provisions violate due process where they fail to provide offenders with fair notice of the consequences for a particular crime. Johnson v. United States, 576 U.S. 591, 595-96 (2015) (“The prohibition of vagueness in criminal statutes . . . appl[ies] not only to statutes defining elements of crimes, but also to statutes fixing sentences.”) (citing United States v. Batchelder, 442 U.S. 114, 123 (1979)).
We begin, as we must, with the statute’s text. In pertinent part, a person who drives with a suspended license in Pennsylvania and who refuses a chemical breath test is guilty of a summary offense (upon a first conviction) “and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.”
Concluding that the duty falls to this Court to fill that gap by inferring a particular duration of punishment, the Commonwealth submits that a six-month maximum is appropriate for several reasons. Adopting the Superior Court’s analysis, the Commonwealth points to Section 6503 of the Vehicle Code as a potential gap-filler.11
The Commonwealth then relies heavily upon this Court’s decision in Bell, which, at first glance, lends some credence to its view that sentencing terms can be inferred. There we rejected a vagueness challenge to
To resolve these conflicts, the Bell Court simply sidestepped the rule. The Court reasoned that Section 9756(b) “is a statutory and not a constitutional provision,” and therefore would not bar a sentence of three to five years’ imprisonment or a flat sentence of five years given the exception it deemed “carve[d]” out by the prefatory language in Section 7508(a) (“General rule.—Notwithstanding any other provision of this or any other act to the contrary . . .”). Id. at 217. Relying upon the legislative history of Section 7508,
We have not applied Bell’s holding beyond the particular circumstances of the Drug Act’s mandatory sentencing scheme. See Commonwealth v. Ramos, 83 A.3d 86, 92-93 (Pa. 2013) (holding that the general rule regarding minimum and maximum sentences must yield to
Finally, the Commonwealth proffers that the six-month maximum should be assumed based upon conditions that the General Assembly has imposed in roughly
In order to afford sufficient notice for due process purposes, a sentencing statute “must specify the range of available sentences with ‘sufficient clarity.’” Beckles v. United States, 137 S.Ct. 886, 892 (2017) (quoting Batchelder, 442 U.S. at 123). As the foregoing analysis demonstrates, that clarity is lacking here. The statutory history relied upon by the Commonwealth unmistakably reveals the existence of a gap in the DUS statute that has persisted since the inception of paragraph (b)(1.1)(i) nearly two decades ago. We hold that the absence of a maximum term renders the pertinent DUS sentencing provision unconstitutionally vague and inoperable for the time being. We leave it to the General Assembly to remedy this impediment, if it so chooses, either by amending the statute to provide for a maximum term of imprisonment or by expressly permitting flat sentencing within a range not to exceed that maximum sentence.
Accordingly, while we affirm the Superior Court’s order upholding Eid’s conviction for refusing chemical testing after driving under a suspended license, albeit on alternative grounds, we vacate his sentence of imprisonment for that offense. Because the only punishment that lawfully may be imposed at this time for a violation of DUS pursuant to
Chief Justice Baer and Justices Todd, Donohue, Dougherty and Mundy join the opinion.
Justice Saylor files a concurring and dissenting opinion.
Notes
A person who has an amount of alcohol by weight in his blood that is equal to or greater than .02% at the time of testing or who at the time of testing has in his blood any amount of a Schedule I or nonprescribed Schedule II or III controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or its metabolite or who refuses testing of blood or breath and who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when the person‘s operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3802 or former section 3731 or because of a violation of section 1547(b)(1) or 3802 or former section 3731 or is suspended under section 1581 for an offense substantially similar to a violation of section 3802 or former section 3731 shall, upon a first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.
Commonwealth v. Eid, 226 A.3d 566 (Pa. 2020) (per curiam).(1) Is Petitioner’s sentence under 75 Pa.C.S. § 1543(b)(1.1)(i) illegal because the statute is unconstitutional under Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016), Article I, Section 8, due process, and this
Court’s precedents because it increases the punishment for a criminal offense based upon the refusal to submit to a warrantless blood test? (2) Is Petitioner’s sentence ordered by a three judge Panel of the Superior Court under 75 Pa.C.S. § 1543(b)(1.1)(i) illegal because the statute is unconstitutionally vague in that it fails to provide for a maximum penalty, and therefore, any sentence above a 90 [day] flat sentence violates the state and federal Due Process Clauses?
Monarch thus stands for the proposition that, when a jury is available to make factual findings in the first instance upon which a particular conviction or sentence might turn, neither the trial court nor a reviewing court may resolve, post hoc, unanswered questions of fact. While facts that trigger sentencing enhancements constitute elements of the underlying crimes and need to be found beyond a reasonable doubt at trial regardless of whether the fact-finder is a judge or jury, see, e.g., Commonwealth v. Bizzel, 107 A.3d 102, 105 (Pa. Super. 2014); Commonwealth v. Cardwell, 105 A.3d 748, 750-51 (Pa. Super. 2014); Commonwealth v. Fennell, 105 A.3d 13, 16 (Pa. Super. 2014); Commonwealth v. Munday, 78 A.3d 661, 666 (Pa. Super 2013), whether Alleyne requires more of a trial court sitting as fact-finder is an open question. As we are without developed advocacy on that issue, we ought not attempt to resolve it today.
(a) General offenses.—Every person convicted of a second or subsequent violation of any of the following provisions shall be sentenced to pay a fine of not less than $200 nor more than $1,000 or to imprisonment for not more than six months, or both:
Section 1543(a) (relating to driving while operating privilege is suspended or revoked) except as set forth in subsection (a.1).
Section 3367 (relating to racing on highways).
Section 3734 (relating to driving without lights to avoid identification or arrest).
Section 3748 (relating to false reports).
(a.1) Certain repeat offenses.—A person convicted of a sixth or subsequent offense under section 1543(a) shall be sentenced to pay a fine of not less than $1,000 and to imprisonment for not less than 30 days but not more than six months.
(b) Driving without a license.—Every person convicted of a second or subsequent violation of section 1501(a) (relating to drivers required to be licensed) within seven years of the date of commission of the offense preceding the offense for which sentence is to be imposed shall be sentenced to pay a fine of not less than $200 nor more than $1,000 or to imprisonment for not more than six months, or both.