Commonwealth v. HernandezCommonwealth v. Hernandez
- Reporters:
- , ,
- Before:
- Wickersham
On February 5, 1983 at approximately 7:15 p.m., a car driven by appellant Rigoberto Hernandez was involved in a head-on collision with another car on Route 850 in Perry County. The driver of the second car, Kathy Kenee, age 20, died as a result of the collision. Evidence produced at trial showed that appellant was traveling in excess of the speed limit and had crossed the center line into the victim’s lane of traffic. Appellant’s blood alcohol content tested at .26%. Appellant was charged with involuntary manslaughter,
On March 18, 1983, the Honorable Keith B. Quigley denied appellant’s pre trial motion to dismiss the charges brought under the New Drunk Driving Law on constitutional grounds. In June of 1983, a jury found appellant guilty of all counts. Post trial motions were filed and denied, and *37 on July 15, 1983, appellant was sentenced to the following terms of imprisonment: three (3) to seven (7) years on the homicide by vehicle while driving under the influence conviction; two and one-half ffli) to five (5) years on the involuntary manslaughter conviction; two and one-half (2V2) to five (5) years on the homicide by vehicle conviction; and one (1) to two (2) years on the driving under the influence while impaired conviction. 1 A motion to modify sentence based on constitutional issues was filed and denied. This appeal timely followed.
Appellant raises a number of issues 2 addressing the constitutionality of the New Drunk Driving Law. 3
Our analysis begins with the strong presumption of constitutionality and the heavy burden of pursuasion [sic] upon one who challenges the constitutionality of an Act *38 of the General Assembly. Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981); Commonwealth v. Barnes and Tucker Co., 472 Pa. 115, 123, 371 A.2d 461 (1977), appeal dismissed 434 U.S. 807, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977). Accordingly, legislation will not be declared unconstitutional unless it “clearly, palpably and plainly” violates the constitution. Snider v. Thornburgh, supra; Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 16, 331 A.2d 198 (1975).
Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340 (1983).
Appellant’s first attack on the New Drunk Driving Law [hereinafter referred to as the “New Law”] concerns its mandatory sentencing provisions. The New Law establishes several mandatory sentences. In the instant case, appellant received a mandatory minimum sentence of three years imprisonment for his conviction on the charge of homicide by vehicle while driving under the influence.
See
First, appellant argues that by setting the penalties to be imposed under the New Law, the legislature has violated the separation of powers doctrine; sentencing of convicted criminals is for the judiciary and not the legislature. We agree with appellant that while some overlap of functions between the branches of government is inevitable, certain aspects of each branch must remain wholly apart from the control of the others.
See In re
Bearing this distinction in mind, we find no significant difference in the language or rationale of the mandatory sentencing provisions in sections 3731(e)(1) and 3735 and the mandatory sentencing provisions in
Second, appellant argues that the mandatory sentencing provisions of the New Law impose cruel and un *40 usual punishment in that convicted persons are automatically sentenced to prison terms for “unintentional” crimes. Our supreme court has concluded that the ultimate punishment for a crime — death—does not constitute cruel and unusual punishment. Commonwealth v. Zettlemoyer, supra. Nor is mandatory life imprisonment for first degree murder or assault by a life prisoner cruel and unusual punishment. Commonwealth v. Waters, supra; Commonwealth v. Sourbeer, supra; Commonwealth v. Dessus, supra.
[T]he Pennsylvania prohibition against “cruel punishment”, like its federal counterpart against “cruel and unusual punishment”, is not a “static concept. As Mr. Chief Justice Warren said, in an oft-quoted phrase, ‘[t]he [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ ” Gregg v. Georgia, [428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859, 874 (1976)], quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion). We believe that the most accurate indicators of those “evolving standards of decency” are the enactments of the elected representatives of the people in the legislature.
“[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.” Gregg v. Georgia, supra 428 U.S. at 175-76, 96 S.Ct. at 2926-2927, quoting Furman v. Georgia, supra, 408 U.S. at 383, 92 S.Ct. at 2800.
Commonwealth v. Zettlemoyer, supra
500 Pa. at 74-75, 454 A.2d at 967-68. Our legislature has determined that the current “standards” of decency are met by mandatory sentencing for convictions under the New Law.
See
Lower ct. op. at 2-4;
Congini v. Portersville Valve Co.,
504 Pa. 157, 166-68, 470 A.2d 515, 520-21 (1983) (dissenting opinion by Zappala, J.). Also, the mandatory sentences are not disproportionate to the gravity of the problems caused, even
*41
if unintentionally, by drunk drivers on our highways.
Compare Commonwealth v. Field,
490 Pa. 519, 417 A.2d 160 (1980) (upholding the constitutionality of
Third, appellant argues that imposition of the mandatory sentences also violates due process since the individual is denied an opportunity to set forth any mitigating circumstances and is thus deprived of an opportunity to be heard. This same argument was offered and rejected in discussing the constitutionality of the mandatory life sentence imposed in
Commonwealth v. Cornish,
471 Pa. 256, 370 A.2d 291 (1977) and
Commonwealth v. Waters, supra.
We reject it also. The foundation of due process is the protection of the individual against arbitrary action of the government.
Wolff v. McDonnell,
418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Although the provisions of the New Law state mandatory minimum sentences, there is room for consideration of ameliorative factors in determining the precise sentence between that minimum and the maximum allowed under the Sentencing Code,
The problems caused by drunk drivers in our Commonwealth is well documented.
See,
Governor’s DUI Task Force Report (October 14, 1982, Harrisburg). We cannot say that an obligatory prison term under
Appellant’s fourth argument is closely related. He contends that the mandatory sentences deny equal protection since the provisions treat similarly situated persons unequally, with no rational basis for the different treatment. Specifically, appellant points to the inequality of treatment of a drunken driver who kills another person and is thus subject to a mandatory jail sentence, and a drunken non driver who kills someone but is not subject to a mandatory jail sentence. ■
A classification distinguishing between those persons subject to the provisions of the Vehicle Code and those not subject to the Code is not a suspect classification. Under the equal protection clause of the fourteenth amendment, the test of the validity of a statutory classification which does not affect with particularity a “suspect class” is whether the classification bears a rational relationship to a legitimate state interest. Commonwealth v. Hicks, 502 Pa. 344, 466 A.2d 613 (1983), appeal dismissed, — U.S. —, 104 S.Ct. 1260, 79 L.Ed.2d 668 (1984). The classification herein is rationally related to a legitimate state interest, i.e., safety on the highways of our state. The creation of a class of persons who drive on public highways with a certain level of alcohol in their blood is neither irrational nor arbitrary. The New Law’s purpose is to decrease automobile accidents and injuries by imposing a penalty upon those who have shown that they are most likely to cause these *43 accidents. By singling out a convicted drunk driver for mandatory sentencing, our legislature has merely addressed itself to a problem urgently requiring remedial action. The deterrence of the misuse of alcohol by drivers is a legitimate governmental interest and the imposition of a mandatory minimum sentence bears a rational relationship to that goal.
In his final attack on the mandatory sentencing provisions, appellant claims that the New Law is unconstitutional because it places excessive and unreviewable discretion in the hands of the prosecuting authority. Appellant argues that if a prosecutor does not wish to see a certain defendant subjected to the mandatory penalties of the New Law, he or she may elect to proceed against that defendant under a different section of the Vehicle Code. This is a slightly different argument than that made in Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977), in which our court held that the discretion of the prosecutor to move or not to move for A.R.D. in a particular drunk driving case does not constitute an improper delegation of the sentencing power. 5 Nevertheless, we find the language in Kindness concerning the discretion of the prosecutor to be applicable herein. Prosecutorial discretion, in and of itself, is not unconstitutional. A prosecutor, especially since the abolition of the grand jury, is vested with considerable discretion in deciding who will or will not be charged. We agree with the lower court that
[a] person charged is either guilty or not guilty. The risk that someone will be charged who should not be charged is not of serious concern because of the safeguard of a trial. The risk that someone will not be charged who should be charged is not greater or lesser now than it was before this [New Law].
*44 Lower ct. op. at 4. The fact that a prosecutor fails to prosecute others similarly situated does not constitute a violation of due process or equal protection and does not render a law or the prosecutor’s conduct unconstitutional. Commonwealth v. Phillips, 248 Pa.Super. 400, 375 A.2d 158 (1977).
Appellant’s second attack on the New Law concerns the constitutionality of the mandatory minimum sentence of 48 hours in jail for convicted first offenders under
Appellant’s third attack on the constitutionality of the New Law involves the per se drunk at .10% rule of 75
*
Appellant argues that the New Law establishes a new offense — that of driving with a .10% or greater B.A.C. — and effectively erects a conclusive presumption of driving under the influence, shifting the burden to the defendant. We note that there is no .longer a “presumption” of driving under the influence when a defendant registers a B.A.C. or .10% or more. Even under the two previous drunk driving laws in effect before January 14, 1983, however, what the statutes referred to as a “presumption” was, strictly speaking, only a standardized permissible inference. 8 See Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974).
[W]here the presumed fact comprises an element of the crime charged, the inference authorized by a presumption can never be compelled by the court. See generally Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974).
Of course a permissible inference may affect the burden of production in the practical sense that it increases *47 the risk that a defendant who fails to produce countervailing evidence may suffer an adverse verdict. In this sense, the evidence forming the basis of a statutory inference functions no differently from the other evidence in the prosecution’s case: the stronger the evidence against a defendant the greater will be the pressure on him to come forward with evidence in his own defense. It is in this loose, practical sense that courts and legislatures occasionally speak of shifting a burden to the defendant in a criminal case.
Id., 458 Pa. at 193-194 n. 3, 329 A.2d at 208 n. 3.
DiFrancesco went on to hold that the constitutionality of a standardized permissible inference invoked to establish an essential element of the crime charged must be judged by the reasonable doubt standard. The DiFrancesco court found that the permissible inference created by the old driving under the influence laws did satisfy the reasonable doubt standard. We have no doubt that the studies supporting the inference of driving under the influence at .10% or greater under the old laws also support an inference of driving under the influence at .10% or greater under the New Law. The legislature in both cases considered evidence demonstrating that, in virtually all drivers, driving ability is significantly affected by a B.A.C. of .10% or more. See Commonwealth v. Mikulan, supra, and Commonwealth v. DiFrancesco, supra. “It ‘is now virtually universally accepted that a person with a [blood alcohol percent] of 0.10 should not be driving.’ ” Commonwealth v. Mikulan, supra 504 Pa. at 249, 470 A.2d at 1341, citing Burg v. People, 144 Cal.App.3d 169, 192 Cal.Rptr. 531, 534 (1st Dist.1983). We find that the .10% rule does nothing more than specify a quantum of evidence which is legally sufficient to sustain proof of this element of the crime. So long as the connection between the test results and the “presumed” fact of being under the influence meets the required standard of rationality under the due process clause, the statute passes constitutional muster. Common *48 wealth v. DiFrancesco, supra, 458 Pa. at 194, 329 A.2d at 208.
Appellant’s fourth attack on the constitutionality of the New Law involves the prohibition against reduction or modification by district justices of the charges brought against a defendant under
Preliminary arraignments and hearings are governed by Rules 140-149 of the Pennsylvania Rules of Criminal Procedure. The district justice is directed either to discharge the defendant if a prima facie case against him or her is not established at the preliminary hearing (Rule 141(d)), or to hold the defendant for court if a prima facie case against him or her is established (Rule 143(a)). Under the Rules of Criminal Procedure, there is no right in the district justice to change any of the charges. At the preliminary hearing, the district justice’s job is merely to determine the existence or non-existence of a prima facie case.
9
We see no conflict between these two alternatives available to the district justice and the provision of
We agree with the lower court’s reasoning that:
*49 [a] possible effect of (f) is to make it clear that the legislature considers its peace and dignity to be adversely affected by a violation of these amendments. The Commonwealth is clearly an affected or aggrieved party. It has directed by this legislation that it does not want cases of this nature settled except by full and complete judicial proceedings. Since the Commonwealth, an affected party, is not willing to agree to a settlement, just as an aggrieved individual may well not be willing to agree to such a settlement, the authority of the district justice to do anything but simply look for the existence of a prima facie case is non-existent.
Lower ct. op. at 7. We do not find any conflict between
Appellant’s final challenge to the New Law involves the enhancement provisions of
This court has already considered the argument that it is improper for the trial court to consider pre January 14, 1983 D.U.I. offenses in applying the mandatory provisions of the New Law and we have found it to be unpersuasive. In
Commonwealth v. Grady,
337 Pa.Super. 174, 486 A.2d 962
*50
(1984), we held that the use of such prior convictions is not unconstitutional. Referring to the same provision of the law that appellant .questions,
From the foregoing, it is clear that appellant’s constitutional objections to the New Law, and therefore to his sentence, must fail. “The legislature, pursuant to its broad police powers to regulate the use of the highways and alcoholic beverages, has infringed upon no constitutionally guaranteed rights or privileges and has clearly and precisely enumerated ascertainable standards of conduct.” Commonwealth v. Mikulan, supra 504 Pa. at 261, 470 A.2d at 1347.
We cannot affirm the judgment of sentence as it now stands, however. Among appellant’s various sentences were the following two: a two and one half to five year sentence for involuntary manslaughter and a two and one half to five year sentence for homicide by vehicle. Based upon our review of the relevant case law, we are constrained to hold that these two sentences cannot stand. 11 Our supreme court has clearly held that under the constitutional prohibitions against double jeopardy, “punishment for homicide by vehicle cannot coexist with punishment for involuntary manslaughter.” Commonwealth v. Houtz, 496 Pa. 345, 349, 437 A.2d 385, 387 (1981). See Commonwealth v. Bostic, 500 Pa. 345, 456 A.2d 1320 (1983); Commonwealth v. Zaengle, 332 Pa.Super. 137, 480 A.2d 1224 (1984).
Once we have determined that a sentence is illegal, this court may either remand for resentencing or vacate and *51 amend the invalid sentence directly. Commonwealth v. Padden, 335 Pa.Super. 51, 483 A.2d 950 (1984); Commonwealth v. Zaengle, supra. Instantly, we are satisfied that vacating the sentence imposed for homicide by vehicle would not affect the sentence imposed for involuntary manslaughter. Both crimes are misdemeanors of the first degree and the maximum sentence of five years was given by the trial court for both crimes. Therefore, it is clear that the trial court could not have increased appellant’s sentence for involuntary manslaughter had it known that the homicide by vehicle sentence would be found to be illegal.
We find the New Law constitutional in all areas raised by appellant. However, the judgment of sentence for homicide by vehicle must be vacated. Judgment of sentence imposed on all other convictions is affirmed.
Notes
. The lower court did not sentence appellant on the driving under the influence — .10% conviction, because it felt that the two driving under the influence convictions merged.
. Appellant frames the questions involved as follows:
A. Whether the mandatory three year sentence imposed on persons convicted of “homicide by vehicle while driving under the influence” and the mandatory minimum sentence of 48 consecutive hours in jail imposed on those convicted of a first offense of “driving under the influence of alcohol” are unconstitutional.
B. Whether the mandatory minimum sentence of 48 consecutive hours in jail for persons convicted of a first offense of “driving under the influence of alcohol” impinges upon, provides coercion against, and penalizes the free exercise of the constitutional right to trial by jury by denying the alternative disposition of charges by Accelerated Rehabilitation [sic] Disposition to defendants who elect a trial by jury and are subsequently convicted.
C. Whether the “Per Se Drunk Rule at .10%,” which established as a violation of law any act of driving a vehicle while having a .10% or higher BAC, is unconstitutional.
D. Whether the prohibition against reduction or modification by district magistrates of charges brought under the New Drunk Driving Law is facially unconstitutional as a violation of separation of powers and a denial of due process.
E. Whether the enhancement of punishment that accompanies a prior conviction for drunk driving applies to convictions under laws in force prior to the effective date of the New Drunk Driving Law and [is] therefore unconstitutional.
Brief for Appellant at 4.
. Act of December 15, 1982, P.L. 1268, No. 289, §§ 9-11;
. We are aware of numerous other provisions in which the legislature has determined mandatory sentences to be appropriate and that have not been challenged on constitutional grounds. For example, see
. We note that a number of cases from Bucks, Chester, Allegheny, and Lycoming Counties are currently pending in our court which question the discretion of the various prosecutors to refuse to recommend a DUI defendant for A.R.D. under the New Law. We offer no opinion herein as to that issue.
. Other jurisdictions that have addressed the constitutionality of similar drunk driving laws have upheld such laws. See e.g. Burg v. Municipal Court, 144 Cal.App.3d 169, 192 Cal.Rptr. 531 (1983), cert. denied, appeal dismissed, ■ — - U.S. —, 104 S.Ct. 2337, 80 L.Ed.2d 812 (1984); Coxe v. State, 281 A.2d 606 (Del.Sup.1971); Roberts v. State, 329 So.2d 296 (Fla.1976); State v. Basinger, 30 N.C.App. 45, 226 S.E.2d 216 (1976); State v. Gerdes, 252 N.W.2d 335 (S.D.1977); Greaves v. State, 528 P.2d 805 (Utah 1974); State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982); State v. Ball, 264 S.E.2d 844 (W.Va.1980). For a comprehensive list of the per se drunk provisions of other states, see Comment, The New Pennsylvania Drunk Driving Law: Last Call for One-for-the-Road Era, 87 Dick.L.Rev. 805, 834 n. 258-59 (1983).
. Appellant appears to raise a fourth theory — that the rule violates equal protection because the classification it creates does not have a fair relationship to the object of the legislation. However, based upon our review of the record, this particular theory was neither advanced in pre-trial nor post-trial motions; nor was it addressed by the lower court in its opinion. We cannot review a case upon a theory different from that upon which it was presented to the court below, or raised for the first time on appeal. Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983); Commonwealth v. Cohen, 270 Pa.Super. 90, 410 A.2d 1264 (1979); Commonwealth v. Waters, 248 Pa.Super. 123, 374 A.2d 1348 (1977).
.
.
. If he had been considered a first offender, he would have been subject to the 48 hour imprisonment provision of
. It is well settled that the illegality of sentence is not waivable and may be raised sua sponte by the reviewing court. Commonwealth v. Fulton, 315 Pa.Super. 420, 462 A.2d 265 (1983); Commonwealth v. Roach, 307 Pa.Super. 506, 453 A.2d 1001 (1982); Commonwealth v. Gilliam, 302 Pa.Super. 50, 448 A.2d 89 (1982); Commonwealth v. Thomas, 291 Pa.Super. 263, 435 A.2d 901 (1981).