Commonwealth v. Sutley

378A.2d780 Pennsylvania COMMONWEALTH of James Parker, William SUTLEY Appellants. and James D.

Supreme Pennsylvania. Court of

Argued March 1975. DecidedOct. Russo, Public Defend- Rundorff, J. Asst. Henry J.

William Mercer, for ers, appellants. Banks, Dist. Robert F. Asst. Nelson, Dist. Atty., J.

Joseph Mercer, for appellee. Atty., ROBERTS, POMEROY, NIX EAGEN, O’BRIEN,

Before MANDERINO, JJ. and OF THE COURT

OPINION NIX, Justice. William and Sutley James James D. Parker

Appellants were convicted in the Court of Common Pleas of Mercer County possession marijua- unrelated prosecutions na, a under the Device and Cosmetic Act of felony Drug, P.L. Act September P.S. § (1964) (now repealed). 780-4 entered a Appellant Sutley plea guilty charge sentenced on July 1971, to term of for not than one imprisonment less nor more three in a than state correctional institution. years Parker, Appellant who also to the pleaded guilty charge, was on March 3,1972, sentenced to a term of one one half to four in a years state correctional No institution. direct appeal was taken from the judgment sentence either appellant.

Thereafter, 14,1972, on the General April Assembly enact- ed the Substance, Drug, Device and Controlled Cosmetic Act, of 14, 1972, 233, Act April 1, P.L. No. 64, 35 P.S. § et 780-101 seq. § (Supp.1976-77) repealed and exten- revised the sively law prior governing this field.1 Among significant more changes, the new Act classified posses- sion of marijuana misdemeanor, and the for penalties violation were The accordingly reduced. maximum sentence provided upon conviction for of possession more than thirty grams up was to one of year imprisonment and/or a five fine,2 thousand dollar while possession of or less thirty grams in resulted no more than a thirty day prison term and/or a fine of one hundred dollars.3 Drug, 1961,

1. See The and September Device Cosmetic Act of Act of 26, 1961, 1664, 1, seq. (1964) P.L. (now repealed). P.S. et § § 780-1 14, 1972, April 233, 64, 2. of 13(a)(16), (b), See Act P.L. No. § P.S. 780-113(a)(16), (b) (Supp.1976-77). § 13(a)(31), law, (g). prior Id. Under the a first § offense conviction possession any subject penalties including of amount was exceeding fine not two thousand and dollars a term of incarceration in a state institution for less than correctional two nor more than by legisla- Act amended subsequently revised in 25, 1973, resentencing for the on provide ture July mari- of possession of individuals convicted cases certain in provides Act. The amended section prior under the juana full as follows: done, act any of this act shall not affect

The provisions vested, or affect incurred, any or accrued or right liability or to enforce any right penalty or pending suit prosecution Act authority any under or offense punish any Provided, this act: thereof, repealed or Assembly, part 12,1972 June final on or before however, That in case any for the commission sentenced in which a defendant was (16) (31), subsection proscribed by to those acts similar act, such defendant of this 13(a) but not section (30), if the petition this act his be resentenced under shall law prior are less than those under hereunder penalties record the defendant in case the criminal prior such no to the extent that such record shall shall be expunged prior grade reference any contain longer the offense which if than the higher grade offense Act of P.L. April defendant is resentenced. 64, 38, as Act of No. July No. amended § 1, 35 (Supp.1976-77). P.S. 780-138 § Parker, filed separate petitions Appellants Sutley County, sought Mercer Pleas of with Court Common It conceded that the amendment. under resentencing have which, if would proven facts both petitions alleged resentenced accordance appellants required the Common- upon rule was issued the amendment. A should not be the appellants wealth cause why to show filed an Attorney District County The Mercer resentenced. upon that the statute to petitions alleging only answer The lower was unconstitutional. relied appellants resentencing. petitions and agreed court dismissed dismissing petitions A from the order timely appeal 1664, 20(c), 26, 1961, years. September P.L. 35 P.S. § five Act See -20(c) (1964) (now repealed). § Court, that Superior taken court certified the matter here for disposition.4 We now affirm.

The court below determined that the 1973amendment was constitutionally repugnant violating the constitutional doctrine of separation powers, because the enactment intruded upon governor’s power commute sentences IV, under Article 9 of Section the Pennsylvania Constitu- tion, IV, Pa.Const. art. 9 (1968) and as a operated legisla- § tive impairment final existing legal judgments. We agree the amendment undermines thus fatally and. interferes with final judgments and there- judiciary fore we need consider the alternative basis-of constitu- tional invalidity relied the court below.

We note at outset it is fundamental in principle our conception judicial authority that courts are not to wisdom, into reason or inquire behind a expediency Moir, enactment. Commonwealth v. 199 Pa. A. 351 (1901). Nor are the motives of the in legislators act passing open consideration. Common wealth v. Keary, (1901). 48 A. 472 Our inquiry such in can be cases directed to the manner in which will, effectuates its to insure that the enact ment does not some transgress specific constitutional prohi bition. standards applied this making determination

are well settled. It is equally axiomatic that a legislative presumed enactment is to be constitutional. is,

“There course, strong presumption favor of the constitutionality statutes —a which re presumption flects on the part of judiciary due to the respect legislature as a branch of co-equal government.” (foot omitted)

261 the Tosto v. Pennsylvania constitution. violates plainly” 1, 331 198 (1975); Daly 460 Pa. A.2d Home Nursing Agency, v. A.2d Rubin (1963); Pa. 191 835 411 Hemphill, v. Meade, v. 377 271, 157 (1960); 822 Clark A.2d Bailey, Township, 150, 104 Abington 465 (1954); Lighton A.2d Pa. of Mayor (1939); Sharpless Pa. 9 A.2d Pa. 147 (1853). Philadelphia, instant case that the appellee in the

We are satisfied the unconstitu- demonstrating burden of has sustained its the A of plain reading of the 1973 amendment. tionality in mandatory language; that is couched enactment reveals a “shall be directs that defendant it unquestionably resenT his if the petition penalties act tenced under this law . .” than those . prior hereunder are less under effect, a is, in legislative The amendment operation made judgment courts to open previously command of disposition final, judgment and to substitute for the subsequently expressed matter in accordance with in the of the power will. The vesting to our repugnant concept would to alter final judgments government. of branches of the three separation of The of separation governmental pow doctrine departments judicial ers executive and legislative, into of this inherent in structure Commonwealth’s has been its since inception. government as separation appeared Pennsylvania early

This for the in the Plan or Form of Government Common- the conven- Pennsylvania, prepared wealth State was continued in our separation tion year. and of 1873. Accordingly, constitutions of 1873 was adopted, people when Constitution of with the experience acted in light generations separation powers, of the doctrine of the operation review to resolve resulting necessity executive legislative, between the opinion differences concerning and extent scope or judicial departments In- delegated Dauphin County Jury Grand powers. vestigation (No. 342, 352-53, Proceedings 2), 804, A.2d (1938) (footnote omitted). 807 generally, Tate, See Commonwealth ex rel. v. Carroll 442 Pa. 45, 274 (1971); A.2d 193 Pennsylvania Scott, v. 346 Company 13, Pa. 29 (1943); A.2d 328 Wilson v. School Philadelphia District, 225, 328 Pa. 195 A. 90 v. (1937); Commonwealth Mathues, 372, 210 Pa. 59 A. 961 De (1904); Chastellux v. Fairchild, (1850); 15 Pa. 18 v. 11 Greenough Greenough, Pa. (1849). 489 we Similarly, have recognized that long branch not judicial is subordinate to the other branches government but is distinct co-equal, and independent.

The a is constituent judiciary or coordinate part government; not it is subordinate other nor powers, does it for existence depend on the will. Its powers directly come from the without people, intervening From the agency. very nature of its time-honored pow ers, it should be a kept separate, distinct and independent entity government . . . domain of the judici is in ary the field of justice under administration law; it interprets, construes and applies law. Widovich, al., 311, 322, 145 Commonwealth v. et 295 A. 295, 299 (1929). Thus, also

See Bedford v. 4 & R. Shilling, (1818). S. that follows encroachment necessarily any judi- cial is to the by offensive fundamental Waters, scheme of our v. 308 Pa. government. Bailey 162 A. 819 (1932); (1851); Ervine’s Pa. 256 Appeal, v. Greenough Greenough, supra.

We recognize that doctrine of separation pow- ers was not intended to seal off the three hermetically branches from one another. It was government obviously intended that would be a there degree interdependence between the various branches. Cf. reciprocity Buckley Valeo, (1976). 46 L.Ed.2d 659 U.S. S.Ct. is also It true as noted dissenters there be may some areas where the lines between the dividing respective three responsibilities branches be difficult 406, 422, 250 A.2d Kelley, define.5 Stander judgments that final However, recognition with by legisla- not be interfered are branch the established long has been fiat in this Commonwealth tive early As question. to serious open no longer and is this Court observed: enacted after a law things,

In the nature very a law of the case. Such part can no case has arisen case, to the unnatural relation a forced and can have only decision; decision, an untrue produce and must be, but as it ought the parties, case between arising the legislature. of a case created partly is the declares that it When, therefore, the constitution cases of private to try exclusive function of the courts justice “by shall administer and that disputed right, they law;” it land,” course of the law the due “by in to the transaction relating means to law say, it shall be an complete, at the time when controversy, decision; case, and guide inherent element of the shall substance, altered, in its by and that the case shall not be law. any subsequent Dentler, 495, (1859). 33 Pa. 498-9

Menges v. in in our decision We this explicated concept further 328, A.2d 329 Scott, 13, 16-17, Pa. 29 Co. v. 346 Pennsylvania (1942): not, under legislature may

“It is that the elementary remedies, or destroy impair an affecting act guise act, of the passage final judgments obtained before re-opening and this not only statutory principle prohibits the court but also legisla- of cases decided previously . judgments inherent attributes affecting tion may be obscure does 5. The fact in some areas the distinctions vigilant any responsibility to be ever not lessen the of this Court upon authority judicial of the branch. encroachment temporize duty longer, to no but “It become of the court has province, resist, though firmly, any temperately, of its invasion Fairchild, v. 21 great or Pa. whether small.” De Chastellux There are two reasons for this limitation of legislative . . . that under our power; system division governmental powers legislature cannot invade the province judiciary by interfering with or judgments decrees rendered.” previously Farrell, Again v. 362 Pa. Leahey (1949), A.2d 577 we reaffirmed the that a proposition legislative attempt judicial alter the effect of final action under imposed prior direct law is a assault judicial branch: cannot, by an act assembly, overrule 489; judicial decision: it Greenough Greenough, Pa. not direct a statute to be construed in may a certain way: Street, East 366; In re Grant 121 Pa. 16 A. Titusville 917; Iron Works v. Co., Oil 122 Pa. A. it Keystone cannot a new trial: grant Fairchild, De Chastellux v. 18; or order an child illegitimate to be regarded under legitimate terms deed: prior Appeal Edwards, 283; 108 Pa. not the effect may change judgments decrees rendered: Pennsylvania previously etc., Company, Scott, 29 A.2d 328. Id. 362 Pa. A.2d at 579 (emphasis at added).

Thus, it is clearly established this jurisdiction that even though legislature possesses promul law,6 gate substantive judgments and decrees affected, those pursuant entered laws those subsequent changes after judgments have final. decrees become the Conceding of inviolability final of judgments the even judiciary, though legislature the the possesses law, broad to enact the power substantive it is to difficult the appreciate thrust of appellants’ argument result that the should be different in this instance because the has the legislature right to the prescribe permissible of punishment to be out range meted for crimes. The legislature’s to the for right promulgate penal sanctions the various a offenses is small of its power broader segment II, provides: legislative power 6. Art. Sec. 1 “The of Common- this Assembly, wealth shall be in a vested General consist shall of Representatives.” a and a Senate House of for this jurisdiction. all of the substantive law to promulgate for to reason an suggest carving have failed any Appellants involved. to sentences is regulate where the exception power that the princi- caselaw indicates same contrary, To the our obtain.7 ples the the of long recognized applicability Court has

This of of final inviolability judgments “the principles civil cases as as in cases. As in criminal well judiciary” for a held that a statute providing this Court early imprisonment from the term of deduction graduated sentenced, good as a reward for which a was prisoner interference conduct, constitutionally was impermissible a of Commonwealth ex the final our courts. with judgment Halloway, Johnson v. rel. no observed, have questions

It is to that these be of a prescribe power reference with a rule law that be inconsistent of shall general rule, when it on operates decree. Such a judicial previous quite cases is retrospectively, legitimate. future and manner is not to be legislate Their good the act conduct doubted. But under in question individual, sentence, is to under particular out for an abatement of a his sentence. part work him and In of the relators who convicted respect to one law was it is considered very sentenced before the passed, an that it legislative impairing existing legal clear judgment. sentencing important critical The is one of the most and basis, judiciary. case-by-case It is on a duties vested in the exercised given myriad including has been to a facts after careful attention offense, gravity needs of the rehabilitative the defendant protect public. necessity adequately Pennsylvania’s sentencing procedure of indeterminate carries implicit adoption philosophy it an of individual sentenc- ing. granting to the trial This necessitates of broad discretion determine, sentencing judge, among who must alternatives range penalties, proper permissible be sentence to overempha- imposed. importance of cannot this discretion sized; many argue impor- it is one of commentators the most today. powers tant . . . vested in court the trial Martin, 118, 130-31, A.2d 656-57 Commonwealth omitted). (1976) (footnotes at

Id. This was cited with language in Commonwealth v. approval Scoleri, 227-28, 399 Pa. 134-5, 160 A.2d de cert. nied, also, 81 S.Ct. 5 L.Ed.2d 72 see (1960); U.S. Commonwealth ex rel. v. Cavell, Haun 190 Pa.Super. 154 A.2d 257 (1959).

Appellants’ argument legislature’s power to de- termine the state penological system for this prevents in these usurpation cases was addressed by answered this Court Commonwealth ex rel. Banks Cain, There, A.2d 897 (1942). in a learned opinion Mr. Justice by (later Justice) Stern, Chief it was noted that although General had Assembly the courts such provide measure of discretion in the imposi- tion of sentences as deemed once that discretion proper, had been exercised in accordance with law a final existing judgment of sentence could not be disturbed a subse- by quent legislative change.

“While the court determines the guilt innocence the accused and pronounces upon guilty penalty law, the manner of provided by executing the sentence prescribed by legislature, to be in force put and effect administrative by officers.

“The exercise of the power. parole being but an administrative function which does not impinge upon the judicial power sentencing accused conformity law, it follows that the act present constitu- tionally applied cases where sentences were imposed its before effective date. The sentence is in no wise with, interfered since the act especially provides that a cannot be parole granted until the expiration of the mini- mum term prescribed court. The parolee is not but discharged, merely serves the remainder of his sen- tence his by having restrained in a liberty manner analo- gous in the employed ‘trusty’ or ‘honor’ system ‘The prison discipline. parole authorized statute not suspend does sentence or operate to shorten the term.’ is affected the of the sentence is if duration “It not infringe upon judicial power; does parole that a 21 portion that the section opinion are of therefore we extend to the board the to to attempts give which imposed term maximum parole beyond period 24, give to sentence, attempts and section by the parolee before discharge the power the board are unconstitutional. period, of the expiration parole is exclusively judicial term the sentence of the fixing function.” 588-89, (footnote A.2d at 901 omitted) Pa. at 28

Id. 345 added). (emphasis applica- in permitting that the Cain Court argued

It is parole providing applicable a statute tion of the time of its enactment was were final at sentences of final “inviolability judgments” an implicit rejection to the respect right at least concept This argu- sentences. existing judicially-imposed to modify decision and the clear thrust Cain ignores ment sentencing power. of the court’s the nature misperceives did parole power stressed the fact that opinion The Cain judicial function involved the traditional upon not impinge sentencing process. in the interference with au-

“It is not ... an for the judicial power, nor an assumption thority, to administer the penal very institutions supervisors law or which the clemency pre- conditions of punishment Where itself wrote into the sentence. judge’s scribed and are beforehand prescribed, conditions of punishment conviction, the sentence of it is form constituent parts for an administrative judicial power not an assumption the sen- officer, within the law and terms of acting the task of tence, ascertaining to take himself While conditions have been with. complied whether the accused innocence guilt court determines provided by guilty penalty pronounces upon prescribed by the sentence is law, executing the manner of adminis- to be in force and effect put the legislature, trative officers.”

268 901, 588,

Id. 345 Pa. at 28 A.2d at quoting part from 668, 664, 514, (footnote 60 Kan. 57 P. Page, State omitted).

Although indeterminate Pennsylvania, sentences are 19,1911, 1055, Act of commonplace, June P.L. 6 as amend § ed, 19 we (1964), P.S. 1057 have frequently stated that the sentence legal maximum sentence. Commonwealth ex Smith, 495, rel. Carmelo v. 32 A.2d (1943); Commonwealth v. Campbell, Pa.Super. 175 A.2d 324 (1961), denied, cert. U.S. S.Ct. L.Ed.2d den., reh. 507; U.S. S.Ct. 9 L.Ed.2d Com monwealth ex rel. v. Burke, 169 Pa. Monaghan 256, 82 Super. cert, denied, A.2d 337 (1951), 898, 72 233, U.S. S.Ct. 673; L.Ed. Commonwealth ex rel. v. Byers Burke, 164 Pa. 438, 65 A.2d 424 Super. (1949); Commonwealth ex rel. Webb Cain, v. Pa.Super. A.2d 606 (1945). The reason that while the being minimum sentence determines parole eligibility, Butler, Commonwealth v. 458 Pa. 328 A.2d 851 (1974). generally, See Act P.L. Aug. 1-34, amended, as 61 P.S. 331.1-331.34 (Supp.1974), §§ §§ the maximum sets forth the of time period that the state intends exercise its control over the offender his (cid:127)errant behavior. The judicial discretion is the determination of the of control over the period person the offender in crime, view of the nature of the background of the defendant and the pertinent other considerations for such decision. See Commonwealth v. Martin, A.2d 650 It is this exercise of discretion that the rule of final “inviolability judgment” seeks protect. in institution which the served, sentence is to be objects to be sought accomplished during this period of control and all the other penological considerations are not functions. primarily judicial Thus the Cain Court prop erly portions concluded that those which statute did not alter decision as to the judicial length of time of state control over offender did not impinge upon traditional judicial sentencing power and thus not did alter which become final.8 On sentence had modify those found unconstitutional hand, that Court the other permit would have question the Act which provisions of the sentence. of the duration ted an alteration of a concept tripartite we embraced Pennsylvania In and autonomous separate three equal, government from prevent governmental power an effort branches See Common- single body. into concentrated becoming v. Tate, Commonwealth supra; ex rel. v. wealth Carroll Fairchild, supra. v. It Mathues, De Chastellux supra; act a check on the other that branch would believed each where power prevent tyranny this diffusion gener- See would ignored. the individual citizen rights Tate, ex Wilson v. supra; rel. Carroll v. ally, Commonwealth Ma- District, supra; School Commonwealth Philadelphia Fairchild, thues, supra. De Chastellux While this supra; adoption govern- motivated the of this form of consideration ment, now this format entrenched there are firmly require perpetuation other considerations of final such One principle “inviolability judgment.”9 suggested the Cain Court even a While interference might an usur- minimum sentence constitute unwarranted with the opinion pation judicial authority, reach that we need in this Cain, supra, question. Commonwealth ex rel. Banks v. at 588, 28 A.2d at 901. argue that herein falls within the 9. The dissenters the issue raised violating gray legislation we should condemn the area and that not as goes “separation very powers” to of doctrine in such a case unless it the doctrine, e., type creating tyrannical heart of that i. that of indicated, rights. have that threatens individual As we the situation abundantly precedent jurisdiction in has made clear that we this it alter, long recognized legislative attempt modify nullify or a to have judicial judgment usurpation a as a of authori- final decree ty. argument unpersuasive. For this reason alone the myopic adopt we a Moreover do not believe that we should such “separation powers” of where there is a claimed violation of view tripar- observing a doctrine. While the dissenters are correct in that government avoid was selected because of the desire to tite tyranny government frequently which from a where the total flows single is centralized in a source than from a considera- rather efficiency might from of tion governmental be obtained a diffusion of power, display it does not follow that we should a disregard to the of such action callous effect was example alluded to in Commonwealth ex rel. Johnson v. In that Halloway, supra. decision this Court out pointed that the statute well subsequent might have frustrated the decision it sentencing because introduced factors not con- sidered at the time the sentence was An imposed. even more how graphic example of a retroactive can application frustrate the completely judicial discretion and about bring a justice of can be miscarriage found in of Mr. appeal Sutley. court a Although accepted plea possession marijuana, the officer testimony arresting established clear Trooper a case sale. Oliver’s statement indicated September 12, 1970, P.M., that on at approximately 5:20 he from W. a purchased Sutley James substance which was later At marijuana. identified to the time of the sentenc- ing hearing, conducted other than the judge one who had accepted plea, the statement following occurred: Well,

THE COURT: the problem concerning we’ve had Mr. Sutley along all is where he is to going live and what he is to do. We’ve had him at going living various places. We had him the on work release for four program days busted, when it turned out he was arrested for this charge I selling marihuana. don’t know why District reduced it down to It Attorney possession. as if appeared the offense was clear. I take the reasonably didn’t plea. It appears although sentencing judge was convinced that the offense amounted to a sale of a controlled substance merely rather than he was possession, nevertheless content to proceed sentencing view of the flexibility afford- operation component part government efficient of our when a dispute respective responsibility. arises as their areas of We do rights believe that the the citizens are unaffected where the proposed legislation emasculating results one of the branches

government incapable performing effectively so render its assigned responsibilities. Nor we do believe that harm is ameliorated because provision general application being has rather than aimed at individ- permits provision comport ual instances. While this factor provisión prohibiting special legislation, the constitutional see Const, evil, (1968), prime e., art. it does not i. avoid the that it legislative usurpation judicial authority. is a of the former sentencing provisions the ed to Mm under which is with a situation faced Act.10 We are therefore lesser offense is to a plea where quite commonplace for offense affords range because the sentence accepted the offender for to punish an adequate opportunity the court If, however, the new Section committed. actual conduct the resentencing and a in this instance is held to apply a new sentence impose is powerless court required, nature of the true be commensurate which would distort Thus, completely not does such a result offense. plea discretion permitted exercise of judicial offense, frustrates the legislative lesser but also to the a new Act since new to be achieved sought purpose for who commit- was those designed only specially provision not those who were crime of for possession ted the sale distribution controlled in the unlawful engaged substances.11 Mr. Justice ROBERTS dissenting opinion by

Finally, the Amendment of whether question raises of the pardoning power on the basis of the exercise justified noted that this it should be legislature. Initially, themselves. Ordi- litigants was not raised question therefore be considered sua such issues should narily Furnishings, an Home Phillips court. sponte by appellate Bank, (1976); A.2d 542 Inc. v. Continental (1975). 461 Pa. 337 A.2d See Wiegand Wiegand, Co., Trust Valley also Dilliplaine Lehigh However, since we are the trial sustaining A.2d 114 the mat- and because findings unconstitutionality court’s 3, supra. 10. See n. sentencing hearing Similarly, evidence adduced at the plea appellant although he had entered a established that too Parker guilty possession marijuana, in fact Parker was in- mere juveniles. The in the of the substance to trial volved distribution accepted plea punishment judge he however because believed argue crime too While the that the severe. dissenters circumstances, promotes uniformity, under it would statute these permit very purpose distort the amendment this appellant reap resentencing provision. the benefit of concern,

ter is one of we public will discuss the merits of this contention. upon federal

Relying constitution and various deci- sions courts, of the federal the dissent attempts develop that our theory legislature an possesses inherent power pardon. legislature has the to enact power legisla- “[T]he tion which reduces the punishment of individuals whose convictions have become final or which such pardons individ- uals, them from exempting further punishment and reliev- them from ing any legal disabilities resulting from convic- tion.” ROBERTS, Dissenting opinion, J. (infra p. 792) itWhile is appealing at first blush to that analogize such a well, has been in this concept adopted jurisdiction as it must be that we are emphasized here concerned with those powers enumerated our under state constitution.

Article IV 9 of Section the State Constitution expressly provides: In

(a) all criminal cases except impeachment, Gov- ernor shall have power forfeitures, to remit fines and grant commutation reprieves, of sentences pardons; but no pardon shall be granted, commuted, nor sentence on except recommendation in of a writing majority Pardons, the Board of after full hearing session, in open due notice. public The recommendation, with the reasons therefor at shall be length, delivered to the Gover- nor and a thereof copy shall on file in kept the office of the Lieutenant Governor in a docket for that kept pur- pose.

Further, the of the composition Board of set Pardons is forth by paragraph (b) the same section of the Constitution: “It shall consist of the lieutenant governor shall be .who chairman, general and three attorney members appointed by the with the governor consent of two-thirds ” members elect . Senate . . specificity defining the limitations of the express grant power pardon negate would an inference that the Constitution an implied intended confer power pardon free of any restrictions in another branch of govern- distortion an unwarranted require It would ment. an im- to infer of our Constitution language

express in the was conferred of pardon plied document. principle have adopted courts federal While the an inherent recognized law common the English that body’s under branch in the of pardon v. Hughes, United States see lawmaking power, supreme Hall, 53 F. 352 v. and United States (W.D.Pa.1892) F. 238 of this jurisprudence in the nothing there (W.D.Pa.1892), that con accepted have that we to suggest Commonwealth , contrary, To the system. governmental of our cept part as vested power of the exclusivity has shown caselaw our v. ex rel. Banks Commonwealth branch. in the executive also See 585, A.2d at 899-900. Pa. at Cain, supra, 67, 194 A.2d 412 Pa. Myers, rel. Cater v. ex Commonwealth a liberal construction permits the law While (1963). 456, 72 A. 858 Petition, 223 Pa. Constitution, Likens’ our if it has legislature inhere to the does not (1906), power co-equal to another or entrusted withheld been specifically rel. Kelley ex See Commonwealth of government. branch 16 A.2d 307 Keiser, is no power that there do we find

Not only the power legislature in the or commutation pardon to the executive singularly granted is specifically of the the very language clear from branch, equally but it is was not at amendment resentencing As defined pardon.12 power to exercise tempting Court, is: this pardon of mercy. of the sovereign’s prerogative

“the exercise control of the from the frees the offender It completely from further punishment him exempts state. It not only resulting all the disabilities legal him from but relieves pardoning power, adjunct of the power commutation is an pardoning authority only by in which the granted and can 1914). (Rawle Bouvier, Dictionary, resides, I Rev. Vol. Law possess the finding legislative branch does not that the our Therefore necessarily also does not have pardon means that power of commutation. from his It conviction. blots out the very existence of his that, law, so in the he guilt, eye is thereafter as innocent as if he had never committed the offense: Diehl 425; 316, 319, 169 Pa. 32 A. Rodgers, Common- 93; Quaranta, wealth v. 145 A. House, 259, 264, Commonwealth v. 10 Pa.Super. 265.” Cain, Commonwealth ex rel. Banks v. supra, Pa. at 584-5 A.2d at 899.

The amendment in in no relieves the offend- question way er from all disabilities from his legal resulting conviction. Instead, it his if the requires resentencing penalty under the new law is than further, less that under law and prior for an of his record provides expungement for the prior offense extent where the grade prior offense is than the greater offense to which he was resen- Thus, tenced. the legislature specifically intended that individual would still be required serve a sentence and the to the stigma attached conviction would remain. Accordingly, Order Court of Common Pleas of Mercer is affirmed. County

JONES, former Justice did Chief not in the participate decision of case. this

POMEROY, J., files a concurring opinion.

ROBERTS, J., files a dissenting opinion.

MANDERINO, J., files a dissenting opinion.

POMEROY, Justice, concurring.

I join Court, in the of the opinion and add these few lines supplemental only sharpen focus of decision as I see it.

Obviously, the had second legislature thoughts about the of the it severity punishment had decreed for violation of Device and Cosmetic Act of Act Drug, of Septem- 26, 1961, 1664, 4, ber P.L. 780-4 (1964), P.S. where § that violation of possession (not consisted the sale or deliv- of the the Act ery) drug marijuana. By it reduced corre- misdemeanor, a with from felony the offense to make It the attempt sentences. is lessening sponding offenders the offense applicable amelioration of this in that is here issue. law under prior convicted cases, in like their and others for appellants Unfortunately before enactment had become final sentence judgments new law. to rectify Assembly of the General the attempt While punish inequitable to be an have considered what it must I laudable, agree is offenders upon prior ment visited other than fashion relief must come some the Court criminal from the resentencing expunging mandatory felony. concept fact of conviction records the judicial integrity and the finality judgments were the would, fear, seriously I be jeopardized process situation to this legislature effort of understandable acts made sentence may only validated. Courts so within limits may do legislature criminal however, are When, steps those the legislature. set by not be acts, and in view taken, my are they believe that because has come to undone was mistaken.* its treatment of the offense prior ROBERTS, Justice, dissenting. Substance,

In enacted the Controlled Legislature Act],1 Device and Cosmetic Act Substance Drug, [Controlled Act.2 The Device and Cosmetic replaced Drug, Act reduced the substantially penalties Controlled Substance section marijuana. Compare 13(g) for possession Act3 not to exceed (imprisonment Controlled Substance * implicate pardoning power. meant This statement seq., April 1 et P.L. 35 P.S. 780-101 et §§ §§ Act (Supp.1977). seq. 1961, 1664, amended, 26, seq., September 1 et as 2. Act of P.L. §§ formerly seq. (1964), repealed, P.S. P.S. 780-1 et 35 §§ codified 35 780-143(a) (Supp.1977). § (Supp.1977). 780-113(g) 3. P.S. § marijuana for of a small amount of

thirty days possession use) 20(c) for with section personal Drug, Device and Cosmetic Act4 or con- ("imprisonment separate solitary finement at labor two (2) of not less than or more than five for (5) years” possession marijuana, including possession use). small amount for personal When enacted the Act, Controlled the Legislature Substance made the reduced of the Act penalties applicable to crimes committed date, after its but effective to crimes committed if earlier the convictions were not final on the Act’s yet enactment 780-139 (Supp.1977);6 Commonwealth v. date.5 35 P.S. § Thomas, 548, 1973, A.2d In (1973). Legislature enacted an amendment to the Controlled Sub- stance Act [Resentencing made Amendment]7 reduced of the Controlled Act penalties Substance applicable whose persons convictions became final before adoption of the Controlled Substance Act. 26, 1961, 1664, September 20(c), amended, formerly

4. Act P.L. § 780-20(c) (1964), repealed, 780-143(a) codified in 35 P.S. P.S. § § (Supp.1977). Thus, 5. appellant gone if pleading Parker had to trial instead of guilty, 14, April and as a result been had sentenced after 1972instead 3, 1972, penalties on March the reduced of the Controlled Sub- applied. Similarly, appellant Sutley, stance Act would have if who 2, 1971, July following plea, guilty was on gone sentenced his had Court, appealed Superior likely trial and to the it is that his convic- 14, 1972, April tion would not have become final after until penalties applied. reduced have would See Commonwealth Thom- as, 548, 301 A.2d 359 6. While other sections Controlled Substance Act became immediately effective on June this section became effective - April on the Act’s 1972 enactment date. July 219, 1, Act (Supp.1977). § 780-138 P.L. P.S. § provides, pertinent This part: section any “That in case final on or before June 1972 in which a defendant sentenced for the commission acts similar to proscribed by (16) [possession those subsection of a controlled (31) [possession or marijuana small substance] amount of personal (30) [manufacture, delivery, possession but not use] deliver, substance], with intent to manufacture or a controlled 13(a) 780-113(a)], section of this act P.S. such [18 defendant petition, shall penalties be resentenced under this act his if the prior hereunder are less than those under law . . .”

277 reflects a deci- legislative Amendment Resentencing The all should possible, persons extent the fullest that, sion The same substantive conduct. the treated equally Amendment an Resentencing that holds majority judici- on the powers infringement unconstitutional Amendment is a Resentencing I dissent because ary. no power, way of inter- exercise proper powers judiciary. or infringes feres with I legislative, executive, of among The powers separation our is central to consti- government branches of and lines the three dividing among Yet tutional scheme. are proba- sometimes indistinct and branches “are co-equal v. definition.” Stander any Kelley, of precise bly incapable (1969) 250 A.2d 406, 421-22, (plurality comprehend The Constitution does not total opinion). Buckley branches of v. government. of the three separation 612, 683, Valeo, 121, 96 S.Ct. 46 L.Ed.2d 659 424 U.S. Justice Holmes wrote: (1976). As “The ordinances of Constitution do not establish great and fields of black and white. Even the more divide them found to terminate in a penumbra are specific from one extreme the other. shading gradually need argument It does not seem to show how- words it we do and by veiling ever we may disguise powers out the distinction between carry cannot [the with mathematical precision the separate branches] into water tight compartments.” divide the branches 189, 209-11, Islands, 277 U.S. S.Ct. Springer Philippine opinion). L.Ed. (1927) (dissenting a neat making separation among impossibility executive, accommo- judicial powers requires legislative, branches: dation three among governmental powers of division of system “Under function one branch frequently happens the successful and efficient adminis- another. But overlap tration government assumes that each branch will with the others.” cooperate Farrell, 52, 57, Leahey A.2d 579 (1949) deleted). need for (emphasis accommodation, This while the essential preserving features separation pow- ers, a close on a requires basis, case case inquiry, into alleged actions to violate principle of separation The powers. problem does lend itself to easily rigid, rules. simplistic Unlike the I do not majority, believe this case can be decided without careful consideration of the which underlie the of separation powers principles doctrine. To decide whether legislative action offends the principle separation powers, we must look to the purposes the doctrine.

“This ‘separation powers’ obviously not instituted with the idea that it promote would effi- governmental was, It on the to as a ciency. contrary, looked bulwark against tyranny.” Brown, 443,

United v. States 381 U.S. 85 S.Ct. 1712, 14 484 In L.Ed.2d legislative actions reviewing to on alleged infringe the of the we province judiciary, must mindful of the need to especially preserve separation of order powers in to the the protect rights of individual: “ ‘ the “Were judging joined with the legislative, the life and liberty subject be exposed would to control, for the judge would then be the arbitrary legisla- ’ ” tor.” Valeo, at v. at Buckley U.S. S.Ct. quoting The Federalist No. 47 (J. Madison), quoting Montesquieu (emphasis original). on

Legislative infringement of the province judiciary, and the to liberties, concomitant threat individual take may one First, of two forms. Legislature take action impairs either independence judiciary, requiring performance functions, non-judicial see United v. Ferreira, (13 States 54 U.S. How.) L.Ed. 42 (1852), or by interfering power of judiciary perform functions, its essential see Commonwealth ex rel. 193 (1971) (plurality A.2d Tate, Carroll 250 A.2d at 427-28, 433 Pa. at Kelley, Stander opinion); J., Roberts, joined by Opinion (Concurring (1969) Second, Legislature may JJ.). Pomeroy, Jones itself to it taking of the judiciary usurp on the infringement This latter cases. individual judge the bill prohibited by is specifically judiciary province 10; I, I, Pa.Const. art. art. U.S.Const. § clause. of attainder 9, cl. 3. I, art. § also U.S.Const. See Amendment Resentencing effort in the The Legislature’s for mari- convicted individuals among sentences to equalize The Re- these principles. does not offend juana possession attempt by not involve an does Amendment sentencing impair cases. Nor does individual judge Legislature required courts are not judiciary: independence functions, capacity and the courts’ non-judicial perform is not affected. functions their essential perform of general application, Act is a statute Resentencing being that the sentences determination a policy representing to be reduced offenders should class of a certain served found guilty offenders to those of other comparable En- under a later statute. but sentenced same conduct is a proper application a rule of general actment of such function: “ to legislature prescribe province ‘It is the peculiar applica- society; for the government rules general seem to would society to individuals tion of those rules ” the other departments.’ be the duty 446, 85 at Brown, at S.Ct. 381 U.S. United States 87, 136,3 L.Ed. Peck, (6 Cranch.) 10 U.S. Fletcher quoting leaves to the judiciary rule which general As (1810). to whom it the individuals sentences on impose to power not violate the Amendment does Resentencing applies, or usurping than impairing Rather separation powers. such as of legislation enactment judiciary, power the prov within peculiarly Amendment Resentencing of the Legislature. ince

II The distribution of the three power among branches of government to the assigns Legislature to define power criminal offenses and determine what punishments would be imposed. As this Court stated in Commonwealth v. Glover, 543, 545, 397 Pa. 156 A.2d 116 (1959): “There is no that it is question within the province of the pronounce what acts . . . are crimes n and to fix the of all punishments crimes . . The legislature has the fix right to the maximum and can, fit, likewise if it sees name the minimum. If it does so it does not violate thereby V, Article Section 1 of the Constitution, vesting judicial power the courts.” Subject constitutional specific protections, such as the prohibition cruel against and unusual punishment, U.S. Const, Pa.Const, XIV; VIII, amend. I, art. 10, and the § prohibition ex against laws, facto post I, U.S.Const. art. 10; I, Pa.Const. art. the Legislature § may, through the enactment of standards of general applicability, exercise control over complete sentencing. See United States v. Lewis, 300 F.Supp. (E.D.Pa.1969).

The Legislature’s to define power offenses, criminal determine the range which punishments be imposed, encompasses the decide that the punishment for certain conduct should reduced or eliminated. It also be, encompasses reduce or eliminate the punish- ment of classes of offenders who have been convicted and sentenced, but whose convictions have not become yet final. See Commonwealth v. Thomas, 301 A.2d 359 I believe Finally, that the Legislature has the power to enact legislation reduces the punishment classes of offenders whose final, convictions have become or which pardons offenders, such them exempting from further pun- ishment and them from relieving any legal disabilities re- sulting from conviction. See United States ex rel. Malesevic Perkins, 17 (W.D.Pa.1936); 851 F.Supp. United States v. Hughes, 175 F. 238 (W.D.Pa.1892); United v. Hall, States 53

281 Hughes ).8 (W.D.Pa.1892) (verbatim repetition F. 352 See Comment, Law and Yesterday’s Crime: generally Today’s Legisla- Retroactive of Ameliorative Criminal Application tion, 120, (1972). 121 147 U.Pa.L.Rev. commonly have more been

Historically, general pardons Weihofen, by than executive. legislatures granted by As a Pardons, 371, (1939). 375 Calif.L.Rev. Legislative general of a involves the pardon adoption a grant general offenders, a it is appropriate to class of applicable rule Legislature: be exercised by this power case, in a clemency particular to exercise power “[T]he individuals, or in favor of an individual and of a an act quasi with the offense executive charged [is] . an act establishes kind, amnesty . . while persons to all applicable rule . . . general class, more an act especially of a persons given is] [which in nature.” legislative Bowman, 452, 454, 74, (1907); 145 N.C.

State 59 S.E. Walker, see Brown v. 644, 40 L.Ed. 819 161 U.S. S.Ct. (1896). does prohibit legisla-

The Constitution not Pennsylvania to a law pardon tive at least where is pardons, pursuant than enact- special legislation rather general applicability, Lusky, benefit offenders.9 Con- only particular ed to See pursuant pardons granted legislative These deal federal cases with 31, 1860, (1964); P.S. § to the Act of March P.L. § 24, 1939, repealed part, P.L. P.S. § § Act June pardons effect the individuals did not take until after sentences, pardoned pardons and therefore had served their resulting removing from conviction. had the the disabilities effect Nevertheless, legisla- Pennsylvania statute these cases treated the power Pennsylvania granting pardons, recognized the tion Legislature legislative pardons. grant resentencing provision applicable general 9. A infringe class of on the executive’s offenders does not pardon provision grant- The constitutional commute sentences. Const, IV, ing pardon, art. executive terms, is no to construe it as exclusive its and there reason requirement power, pardon its of a exclusive. The executive’s hearing, id., a full see recommendation the Board of Pardons after particular is best individuals should be suited to decide whether gressional Amnesty War Resisters: Policy Considera- Problems, tions and Constitutional 25 Vand.L.Rev. 525 (1972). Weihofen, Compare Pardons, 27 Legislative Calif.L. (1939) Rev. 371 have (legislatures to power pardon) with Radin, Legislative View, Pardons: Another 27 Calif.L.Rev. (distinction 387 (1939) must be made between general par- dons—or amnesties—and individual pardons,10and the power does not latter). extend to the

It is the Legislature is constitutionally empowered to set for criminal punishment conduct. Since control over Legislature’s the determination of what conduct criminal, should be made what and punishments should apply, includes to power grant it must general pardon, also include the to authority for reduced sentences provide for a class of offenders convicted aof crime. particular

Unquestionably, Legislature has the to power provide for reduced sentences for marijuana as it did in possession, the Controlled Act. The Substance subsidiary judgment as to whether individuals whose convictions have become final should benefit such a change legislation is appropriate- a matter ly of legislative Comment, choice. See Today’s Law and Crime: Yesterday’s Retroactive Application Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. pardoned Legislature or have their sentences commuted. equipped pertaining general pardons. better to decide the issues

Thus, power pardon impliedly prohibit the executive’s does Legislature enacting general pardons: from statutes the nature of “Although ‘power grant the Constitution vests in the President reprieves pardons States, against and for offenses' the United except impeachment,’ in cases of this has never been held to Congress take pass general amnesty from acts of Walker, Brown v. 161 U.S. at at S.Ct. 648. “Amnesty, general pardon, pardon or proper, result in the thing. amnesty same . pardon . The difference between —‘general’ ‘special pardon,’ if one likes —lies ... in the [pardon] character of the punishment act. The one remits to a person. [amnesty] named punishment The other remits of an offense, particular without reference to those who committed it.”' Radin, Legislative View, Pardons: Another 27 Calif.L.Rev. 387 (1939). I, 17.11 The Resentencing art. also Pa.Const. See those whose sentences enacted to permit

Amendment Act was the Controlled Substance before imposed were so that their sentences would resentenced to be adopted with sentences on imposed as conform, nearly possible, of Controlled Sub- adoption convicted after the those Constitution does not Pennsylvania Act. While the stance before the of amelio- adoption that those sentenced require of that it legislation, receive the benefits rative legislation from prohibit Legislature not be interpreted should offenders when it considers the treatment of such equalizing interest. The power to serve the public such treatment of should benefit determine what classes offenders in the for Controlled Substance penalties provided reduced Legislature’s power is a incident to the necessary Act Act, such as the enact Controlled Substance legislation, for certain crimes. changes penalties which

III The concludes that Amend- majority Resentencing an ment is unconstitutional violation of the of separation because it has the powers effect final altering judgments. I agree. cannot relies on a rule majority general “the recognizing of final

inviolability judgments There is judiciary.” Rather, no such rule. general the Pennsylvania Constitution has several which restrict the specific prohibitions the Legislature to alter final E. judgments. g., Pa.Const. I, art. 10 (no without taking just compensation); I, art. § (no law impair the obligation contracts); § art. Ill, 32 (the not local Legislature may pass any or special § clause, post I, 17, prohibits 11. The ex facto Pa.Const. art. imposition penalties imposed. of increased once sentence has been Indeed, prohibits imposition any penalties it increase in criminal which is enacted after the crime is committed. Yet this clause was only way; prohibit imposition intended to work one it does not reduced sentences for crimes committed after an statute ameliorative protect becomes effective. The framers found a need to the individu- penalties warning, al from increased of which there was no but saw protect people legislative mercy. no need to from acts of Thus, when law remitting fines, forfeitures). penalties vested in the have become parties the private rights cannot be court, judgment ordinarily judgment without violation of legislation by subsequent taken away constitutional Where specific provision.11 private some however, and none of infringed, of individuals are not rights Constitution Pennsylvania the specific prohibitions violated, the has the to enact Legislature has been of a final consequences judg legislation mitigates ment. a public suit enforcement of brought right

“[A] established by judgment . even after has been points dissenting opinion, 11a. As Mr. Justice Manderino out his explains many opinions majority. this relied on For Scott, Pennsylvania (1942), example, in Co. v. 29 A.2d 328 the Court stated: not, elementary legislature may guise of “It is that the under the remedies, affecting destroy impair judgments an act obtained act, passage principle prohibits and this before the by statutory re-opening previously cases decided the court but a also of judgments legislation affecting the inherent of attributes substantially interfering right annulling or with the to issue execu- tion and to for this limitation on the amount due thereon. There are two reasons collect one, judgment legislative power; that a which, property prohibi- of under state and federal constitutional tions, judgment deprived proc- the creditor cannot be without due law; system ess of the other that under our of the division of governmental powers province the cannot invade the of judiciary by previously interfering judgments the rendered.” or decrees (citations 16-17,29 omitted, Id. 346Pa. at emphasis added). at 329-30 footnotes A.2d clear, quoted passage the As the makes Court very altering judgments much with the final concerned effect private property rights. private rights Because would have on implicated, were..- fashioning sweeping prohibi- justification is no for a there language excerpted by majority. tion based on the broad tutional which in fact are at stake. the Consti- adjudication careful attention to the interests demands more Scott, Pennsylvania noteworthy the in It is also Court Co. id., Deficiency Judgment upheld application retroactive of the Act, 16, 1941, July (1941) seq., 1 et 12 P.S. Act of P.L. P.L. §§ (1967), judgments upon seq. executed 2621.1 et entered and §§ Thus, majority agree I cannot with the before the Act was enacted. proposition legislative attempt supports “the that a that the case alter the effect of necessarily judicial imposed prior final under law” action “is a direct assault branch.” court, subsequent legislation annulled by may .” and should be enforced not thereafter 435, 436, 600, 603, 261 U.S. S.Ct. Hodges Snyder, 819 (1923). L.Ed. convicted persons

The enforcement of the sentences upon Act consti- before the Controlled adoption Substance Judgments tutes “the enforcement of a public right.” are interest in sentence enforced vindicate the public’s law, obedience to the and to protect public against future violations. It is also Resentencing clear that Amendment does not offend any specific prohibitions in the Constitution which restrict the Pennsylvania to alter final Legislature Because judgments. involved, public rights are and the has Legislature decided that the harsh no penalties formerly applicable longer serve interest, public Legislature’s provide decision for should be resentencing respected.

I see no reason to adopt sweeping prohibition, applicable even none though specific prohibitions Pennsyl- vania Constitution is statutes which implicated, against alter final does judgments. Constitution Pennsylvania rule, for such an indiscriminate and I expressly provide do not believe that this Court should fashion one on the basis I separation powers explained doctrine. As Part of this opinion, the is in separation powers principle no offended when the way Legislature provides, pursuant to a statute of general application, that persons convicted under laws should be prior resentenced the courts in accordance with the lesser penalties provided the statute current- in force.12 In ly enacting Amendment the Resentencing is not Legislature reviewing finding guilt. Nor is the Legislature that the trial deciding court’s choice of sentence Legislature 12. This is not a case where the has undertaken to review judgments Bator, Mishkin, generally on an individual basis. See Wechsler, Shapiro & Hart and Wechsler’s The Federal Courts and System (2d 1973). dangers the Federal 85-102 ed. The asserted legislation may Legislature be such addressed if the ever enacts such Here, legislation. enough recognize capable it is to that this Court is separating private legislation, of individuals, specific such for the benefit of legislation question from the in here. case, in a within the particular although limits still recog- nized an by abuse Legislature proper, of discre- Rather, tion. Legislature has its revised own determina- tion of the sentence for the offense in appropriate question. The decision a to reduce class of is punishment offenders a matter within the province Legislature. It evinces no decisions disrespect for the judiciary, does not impair to reach its ability judiciary decisions. be Simply because final judgments may affected does not mean that the Legislature has on the infringed province the judiciary. relies on ex majority Commonwealth rel. Banks

Cain, 345 28 A.2d 897 (1942),for that proposition legislation not alter the which may sentence has been im- posed after has become final. This is judgment reliance for Banks misplaced, upheld Legislature provide that convicted criminals sentenced to imprisonment Thus, instead be released on may parole. Banks demon- strates that the has the Legislature for the provide application of ameliorative convictions which legislation have become final. in Banks,

There is dictum relied on that majority, legislation not affect duration a sentence. I do sound, not a believe that such rule would be or that it could be in reconciled with Banks. The holding parole legisla- Banks, tion that upheld provided convicted crimi- nals imprisonment, sentenced to in some cases at solitary confinement, could released into the community, clearly had the effect of final altering judiciary. judgments While the granted freedom a be less parolee may than that given a sentence, reduction the difference a is only matter of and is not degree of constitutional significance. In either case, the effect is to alter final judgment.

In of its dictum support legislation may affect sentences, duration of Banks on the relied proposition of the term of the fixing sentence exclusively “[t]he judicial function.” 345 Pa. at 28 A.2d at 901. This statetnent is correct insofar as it refers the sentence to be when the Legislature offender particular imposed sentences. It is the for a range permissible provides however, range to determine Legislature, of the province for an offense. Commonwealth v. sentences of permissible see United States Glover, 397 Pa. (1959); 146 A.2d 114 Indeed, with the Lewis, (E.D.Pa.1969). F.Supp. crimes, 107(b) (1973), law Pa.C.S.A. abolition of common criminal fix for penalties has no judiciary Legisla- have been they provided offenses unless Cunningham, ex rel. Varronne Commonwealth ture. See (1950).12a 73 A.2d in Banks stated that did parole legislation The Court on relying which had been imposed, not alter the sentence being imprisoned was in fact parolee the fiction heavily judicial in majority discretion involved relies on the 12a. The Resentencing support imposing in that the sentence of its conclusion Resentencing The Amendment does Amendment is unconstitutional. discretion, however. The court has the same not eliminate that Resentencing imposing under the Amendment discretion sentence violating persons imposing sentence on convicted as it does Controlled discretion, if the had no Substance Act. Even court however, Resentencing Act was uncon- this would not mean that the Lewis, (E.D.Pa. F.Supp. 1171 United States v. stitutional. See 1969) (mandatory sentencing provisions narcotics statute do not separation powers). violate that, although appellant majority possibility The also relies on the marijuana, guilty charge possession Sutley pleaded to a guilty sentencing judge Sutley of sale of was in fact concluded accept plea marijuana. majority The asserts that it is common offense, impose as would be then the same sentence to a lesser greater guilty imposed of the offense. if the defendant had been found practice prepared such a to take notice that I am not widely Sutley judge not the who sentenced was followed. As the practice accepted plea, followed judge that the who a claim Assuming practice pure speculation. is a common would be here one, certainly arguable that it It is it raises some troublesome issues. though person improper he had been would be to sentence a offense, greater has been convicted of of the when he convicted a lesser offense. In some cases, might practice raise doubt as to practice validity plea. propriety is not before us, possible enough existence of that the however. It is to conclude Resentencing practice to hold that the is not a sufficient basis Any argument that the Resentenc- is unconstitutional. Amendment ing punishment who of some individuals Amendment will reduce the severely goes ought Resentencing punished to the wisdom to be more Amendment, validity. not to its “ while on parole: ‘The parole authorized statute does not service or suspend to shorten the operate term. . ” inis effect legal imprisonment.’ Commonwealth ex [I]t Cain, rel. Banks v. 588-89, 345 Pa. at 28 A.2d at quoting Corall, Anderson v. 193, 196, 263 43, 46, U.S. 44 S.Ct. 68 L.Ed. 247 (1923) (emphasis supplied in Banks). This theory, however, cannot be reconciled with subsequent cases, e. g., Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 314 A.2d 842 (1973), that, which held after parole revocation, a prisoner is not entitled to have credited against the time he must serve in the time prison spent while at on liberty parole.13 Banks,

The dictum in that legislation may not affect sentences, duration of was an apparently effort to avoid overruling Commonwealth ex rel. Johnson v. 42 Halloway, Johnson, Pa. 446 In (1862). of the majority Court ex- pressed its belief that could legislation not interfere with a judicially sentence imposed by providing discharge prisoners before the expiration of their terms on the basis of “good time” credits.14 I believe the time has come for this Court to that Johnson is unsound. recognize reasoning Johnson reasoned that criminal sentences be fixed may “only the exercise by of that judicial discretion which the constitu- 13. “It has custody theory become a routine exercise to discredit the on the basis of its concept. conflict with the forfeited release-time parolee supposedly serving The is still his sentence. If he violates however, parole, parole his been in prisoner all of his time is if forfeited as he had not custody during Beyond conflict, that time. this direct if the custody, practice is roughly considered to be in this is analogous possibility allowing to the bizarre a warden to extend prison beyond prescribed terms maximum.” Comment, System, (1971) Parole 120 U.Pa.L.Rev. 291-92 (footnote omitted). dissenting opinion, 14. In his Mr. Justice Manderino concludes that constitutionality the discussion of legislation in Johnson holding agree not a of the Court. I with this conclusion. Although the thought Court in Johnson stated that it the act was unconstitutional, “independently it decided the case of the constitu- objection, tional which is not decisive to all of us.” 42 Pa. at 449. However, despite this clear indication that the constitutional discus- dictum, sion in Johnson was sion as a this Court Banks treated this discus- holding Court felt constrained to reconcile its holding with Johnson. Id. 449. Even assum- in the at judiciary.” has vested tion been valid as to once have that this proposition ing to offenses offenses, it has no application law common rel. ex Commonwealth generally statute. See created A.2d 705 Cunningham, v. Varronne has such discre- sentence, the judiciary it imposes When Common- to it Legislature, as has granted tion been (1959), and there Glover, A.2d wealth discre- granted be requirement judiciary any no Lewis, United States imposed, over the sentence tion (E.D.Pa.1969). F.Supp. Johnson, the cases distinguish tried to Although Banks in Banks does The fiction employed be reconciled. cannot in Banks upheld the legislation the fact change judgments final imposed by punishment reduced result, sound should follow Banks' This Court judiciary. to enact a has the Legislature the recognize the mitigation applicability providing of general statute existing to judgments. the punishment imposed pursuant IV Amendment as a valid Resentencing I would the uphold The to power. preserve need the exercise legislative the and to the people independence judiciary protect neither nor Legislature requires the overreaching by against Act unconstitu- holding Resentencing decision justifies down such Indeed, legisla- for the strike majority tional. tion, which the has enact Legislature power powers, to the danger no real presents separation which invasion province an unwarranted Legislature.

MANDERINO, Justice, dissenting. nature of sepa-

Because misconceives the majority I Article powers, 2, dissent. governmental ration Section states, 1 of the Constitution Pennsylvania of this Commonwealth shall be power “[t]he shall consist of a vested in a General Assembly, a House of Representatives.” Senate and 290

The has “legislative power” been interpreted to be the make, alter, power laws. In repeal Marshall, re: 363 Pa. 69 also, A.2d 619 See Petition of City Pittsburgh, 103 A.2d 721 (1954). Traditionally, legislative enactments are general See, character. Pren- tis v. Co., Atlantic Coast Line U.S. 29 S.Ct. L.Ed. 150(1908). make, This alter, and laws repeal is derived from the people. where Except limitations have been imposed by state or federal constitutions, or by valid treaties and statutes, legislature is unlimited. See 16 Am.Jur.2d, generally Constitutional Law 227-234; and McGinley Scott, §§ 164 A.2d 424 (1960). Among powers granted to the legislature by at the people time of the creation of our constitutional form of government, was the power to pardon those convict- ed of crimes. U. S. Hughes, 175 F. (D.C.1892). In fact, the legislative pardoning power was recognized in United Wilson, States v. 150, 163, Pet. L.Ed. (1833), as being to the superior pardoning power of the because, executive “ . . . legislative pardon] is considered as a public [a law; having the same effect on the case as if the general law punishing the offense had been repealed annulled.” The executive power is more limited, being power only to execute the laws as have they been enacted legislature and interpreted by the courts. Except where n limited constitution, the legislature may stipulate what actions the executive branch shall or shall not perform. branch, executive although to, co-equal and independent from, the legislature, exercises this limited power because of the nature of the Constitution itself. The of the authority legislature is unlimited so as the long exercise of that authority does not violate any constitutional limitations. Wormser, Commonwealth v. 44, 103 A. 500 (1917); Sharpless Mayor Philadelphia, Pa. 147 (1853). The executive, of the authority on the other hand, extends only so far as is expressly in the provided Constitution. One of the powers expressly granted to the executive is the pardon- ing power. 4, Pa.Const. Art. Section 9. interpreting, applying, is one of judicial power

The transactions past relate they laws as existing enforcing of the exercise the time the at existing to conditions derives created, power its court is Once the judicial power. it. creating the statute not from Constitution, the from is derived Courts Pennsylvania the power judicial The Pennsylvania 5 of the Constitution Article from Like the court system. a unified in judicial power the vests branch is limited branch, the power executive Art. law. Const. expressly provided by to that in extent lawby so provided the Among judicial powers 2-8. §§ of crime. guilty judged to sentence those the power at 242: supra, v. Hughes, in United States was stated As no it required very government, nature “[f]rom self-evident proposition reasoning prove in the was vested pardon Pennsylvania power supreme inherent power branch legislative by in the executive constitutional by making power law executive was of this to the grant The provision. it to granting the power on the right no limitation exercise it also.” “pre- has been said to be legislative pardoning if afforded to criminal that which would have been

cisely free issued and unconditional the Governor of State Malesevic,99 F.2d Perkins v. States ex rel. pardon.” United (3d 1938), citing Cir. Diehl Rodgers, also, Act 32 A. See former of March (19 893) 18 P.S. (repealed part P.L. P.S. by 5201).

Having pardon follows authority absolutely, could devise a system partially pardon sub- those convicted of of certain controlled possession by resentencing provision stances. This done Substance, Device and Act. Drug, Controlled Cosmetic to pardon the exercise of the those Clearly, authority courts, whether done convicted and sentenced branch, judg- affects a “final executive or by ment” of the A “final judiciary. judgment” a criminal case, however, has never been held to be free from the None of the cases relied on pardon. by for the majority proposition

interfere with of sentence stands judicial judgment for that proposition. The cases cited fall majority into two either, classes: cited (1) upheld legislative cases at- decisions, to affect thus tempts judicial and the passages quoted dicta, from them are majority merely or (2) the cases cited with legislative deal attempts interfere cases, and, civil judgments becomes clear when these cases are either analyzed, are they inapposite or involved legislative attempts to deprive litigants property in violation of the constitutional prohibition against taking without due property process law, or they violated the constitutional prohibition against a amending statute by reference to its title only. case before us involves neither of these constitutional provisions.

Into the first of cases fall ex group Comm. rel. Banks v. Cain, 345 Pa. 28 A.2d 897 (1942), (upholding legisla tive creation of board of a parole, allowing Act’s provisions cases where sentence applied was imposed be. before date); its effective ex Comm. rel. Johnson v. Hallo (where 42 Pa. 446 way, (1862), the court decided on non-con stitutional that the grounds statute challenged granted the “inspectors of the Penitentiary” measure of discretion as to whether a prisoner entitled to discharge under the Act, and that the inspectors had not abused .that discretion, thereby statute); and upholding Leahey Farrell, 362 Pa. (1949), 66 A.2d 577 (holding that statute regulating the method determining the number and fixing salaries of employees court is not unconstitutional because of legislative encroachment on the judiciary so long as the legislature does not fail arbitrarily capriciously to pro vide a number of sufficient court employees for the payment salaries). adequate Into the fall second group Greenough Greenough, 11 Pa. In (1849); Street, re East Grant 16 A. 366 Co., Works v. Titusville Iron Oil (1888); Keystone Fairchild, 18 A. De v. 627, (1888); 15 917 Chastellux Edwards, Pa. (1885); Pennsyl- (1850); Appeal Scott, v. A.2d 328 vania etc. Company, a claim Greenough, supra, disputed v. involved Greenough challenged held that the legislative under a will. court because to do retroactively could not be applied enactment Pennsylvania a Constitu- provision so would violate life, be deprived that no shall person tion providing of his or the peers or except by judgment liberty property thus stands for Greenough proposition of the land. law a to overrule decision attempt judicial the legislative that a constitutional specific pro- it violated was invalid because encroachment on hibition, any legislative not because power. Fairchild, held that supra, legislature De Chastellux new in a action trespass could not direct the of a trial grant “ so . . of a plaintiff do . deprived because . . . .” property which is his judgment, essentially Chastellux, De like Greenough, prohibits legislative Thus of law process without due because it taking property prohibition. violates a constitutional specific Scott, held also that the supra, Pennsylvania Company affect rendered legislature previously judgments could not the judgment a is of which “property” because judgment due of law process be without deprived creditor cannot federal constitutions. under the state and Street, court stated that the supra In re East Grant In “ . . to declare the Act of . professes June the act of and if this of the said section of meaning 6 of all, the act of 1881 would conflict Section were that the Constitution which declares ‘no law Article revived, amended, provisions or the thereof extend- shall be conferred, title but ed reference its so much only, amended, extended, revived, or conferred shall thereof ” re-enacted, at The court contin- published length.’ however, and that the Act of 1881 went ued, out pointed the Act of 1874. East Grant further and amended validly that a legisla- thus stands for the simply proposition Street reference to its tive law change pre-existing attempt 3, 6, Article of the Pennsylvania title is violative of only, statute, the Constitution, and that to amend a pre-existing “at length.” must re-enact and publish Co., held only Titusville Iron Works v. Oil Keystone supra, 6 of the Act of June violated Article Section that two other in providing Constitution Pennsylvania construed date) title and should be (mentioned only by acts Street, Titusville Like, East Grant Oil in a certain way. violates a constitution specific held to amend pre-existing al when it prohibition attempts its title. statute reference Edwards, held that the could legislature Appeal supra, to entitle such a not alter the fact of birth so as illegitimate a limitation in a deed prior child to take under by purchase of trust to children.” The court said “lawfully begotten have the to confer legitimacy upon did an child so as to render him of inherit- illegitimate capable as if he had been from an ancester to the same extent ing conferred legitimacy, born wedlock. That legislatively however, did not make him so as to “lawfully begotten” in way come within the condition -in the trust. Edwards no stands for the proposition urged by majority. on therefore, none of the cases relied

Clearly the resentenc- majority opinion support proposition Substance, Drug, of the revised Controlled ing provision the exclusive Device and Cosmetic Act encroaches does resentencing province judiciary. provision and should be not encroach on exclusively judicial powers upheld. notes School Districts of Deer Lakes and Alle Kane, gheny Valley 554, 562, 345 A.2d 658, 662 the burden rests on those Accordingly, alleging unconstitu- tionality to show that an enactment “clearly, palpably Appellate Act, 31, 1970, See July Court Jurisdiction Act of P.L. II, 202(9), 211.202(9) 1976-77). No. (Supp. art. P.S. §

Case Details

Case Name: Commonwealth v. Sutley

Court Name: Supreme Court of Pennsylvania

Date Published: Oct 7, 1977

Citation: 378 A.2d 780

Docket Number: 74 and 75

Court Abbreviation: Pa.