Commonwealth v. Sessoms

HUTCHINSON, Justice, concurring and dissenting.

I concur in the majority’s analysis distinguishing the provision in Section 244(c)(2) of the federal Immigration and Nationality Act, 66 Stat. 216 , as amended, 8 U.S.C. § 1254 (c)(2), which the United States Supreme Court found unconstitutional in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 , 103 S.Ct. 2764 , 77 L.Ed.2d 317 (1983), from the statutory scheme by which the Pennsylvania General Assembly created a Sentencing Commission. In the Act of November 26, 1978, P.L. 1316, No. 319, establishing the Pennsylvania Commission on Sentencing, 1 the Pennsylvania General Assembly did not attempt to control the operations of the executive or the judicial branches of government. It simply delegated a portion of its own authority to a legislative agency and required that agency to assist the General Assembly in carrying out its constitutional responsibilities.

Beginning with the creation of a Legislative Reference Bureau in 1909, Act of April 27, 1909, P.L. 208, 2 the legislature has created about ten “legislative agencies,” most of which provide technical or informational services to that *386 body in order to enable it to carry out its obligations in enacting legislation and establishing public policy. 3 The Pennsylvania Commission on Sentencing was created in 1978 in order to:

(a) ....

(7) Establish a research and development program within the commission for the purpose of:

(i) Serving as a clearinghouse and information center for the collection, preparation and dissemination of information on Commonwealth sentencing practices.

(ii) Assisting and serving in a consulting capacity to State courts, departments and agencies in the development, maintenance and coordination of sound sentencing practices.

(8) Collect systematically the data obtained from studies, research and the empirical experience of public and private agencies concerning the sentencing processes.

(9) Publish data concerning the sentencing processes.

(10) Collect systematically and disseminate information concerning sentences actually imposed.

*387 (11) Collect systematically and disseminate information regarding effectiveness of sentences imposed.

(12) Make recommendations to the General Assembly concerning modification or enactment of sentencing and correctional statutes which the commission finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy.

(b) Annual reports.- — The commission shall report annually to the General Assembly, the Administrative Office of Pennsylvania Courts and the Governor on the activities of the commission.

13 Pa.C.S. § 1382, now found at 42 Pa.C.S. § 2153. 4

Clearly, these functions could not be fulfilled by the members of the General Assembly in the course of the normal legislative process. The fruits of this broad research were to be recommendations, “Guidelines,” as to the appropriate sentences for felonies and misdemeanors, 42 Pa.C.S. § 2154, in keeping with the legislature’s historic responsibility for defining criminal offenses and their punishment. The goal of these guidelines was to minimize widely perceived geographical and other disparities in the imposition of sentences under existing statutes. The courts were directed to “consider” these recommendations in determining individual sentences, 42 Pa.C.S. § 2154, but as guidelines they were to serve as a frame of reference, not as controlling directives.

I also concur in the majority’s observation that the Constitution of Pennsylvania mandates that:

Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the question of adjournment, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.

*388 Pa. Const., art. Ill, § 9. I do not, however, agree with those members of the lower court who would require that the procedure for adopting concurrent resolutions must of necessity be reiterated in the legislation itself in order for that requirement to be understood. The language of our Constitution sets forth the underlying assumptions on which all legislative action is posited. Thus the provision in Section 2155 of the Judicial Code:

The General Assembly may by concurrent resolution reject in their entirety any initial or subsequent guidelines adopted by the commission within 90 days of their publication in the Pennsylvania Bulletin pursuant to subsection (a)(2).

42 Pa.C.S. § 2155(b), by requiring a concurrent resolution, obviously requires the fulfillment of the constitutional procedure for the adoption of concurrent resolutions if such a resolution is to have any legal effect.

I must, however, respectfully dissent from the majority’s inferences and conclusions derived from the foregoing premise. A concurrent resolution, other than an adjournment resolution, which has passed both Houses but has not been presented to the Governor, is simply precatory language which lacks the force of law. Such a resolution does not invalidate the first guidelines; a fortiori, it does not invalidate the subsequent guidelines which were properly adopted by the Commission and never rejected by either house.

Senate Concurrent Resolution, Serial No. 227, purporting to adopt the 1982 Sentencing Guidelines, was, like its 1981 predecessor on the subject, of no legal consequence. As a concurrent resolution, it would have required House action and gubernatorial approval to take effect. The majority’s assumption that the resolution’s adoption by the Senate somehow forestalled any rejection of the sentencing guidelines by the House misperceives the independence of two legislative chambers, in which identical or contradictory bills are regularly introduced according to the views of the *389 individual members and frequently to the chagrin of the legislative leadership.

As a legislative agency, the Commission on Sentencing may have wisely chosen to accept its creator’s views and, therefore, developed a new set of guidelines in 1982. There was no enforceable legal requirement that it do so. An ineffective rejection, whether by one or both Houses of the General Assembly, activates the language of Section 2155(c):

Initial and any subsequent guidelines adopted by the commission shall become effective 180 days after publication in the Pennsylvania Bulletin pursuant to subsection (a)(2) unless rejected in their entirety by the General Assembly by a concurrent resolution.

42 Pa.C.S. § 2155(c) (emphasis added).

From this legislative history, the majority somehow concludes that a defendant found guilty of aggravated assault and possession of an instrument of crime on March 16, 1983, and sentenced in June of that year, should have been sentenced under guidelines which were effectively superseded on July 22, 1982. The majority and this writer have already concluded that the Sentencing Code is constitutionally sound. Supra at 1-2. Thus, whether or not the first set of guidelines would have been enforceable had they been challenged, 5 the second set of guidelines, properly adopted by the Commission in accordance with provisions of the Code, were effective 180 days after their adoption. 42 Pa.C.S. § 2155(c), supra at 6.

These latter guidelines have been properly considered by the Montgomery County Court of Common Pleas in imposing a judgment of sentence on June 20, 1983. I would affirm its judgment and that of Superior Court.

. This Act initially placed the enabling legislation for the Pennsylvania Commission on Sentencing in Subchapter G of Chapter 13 of Title 18 Pa.C.S., known as the Crimes Code. All of the provisions of Chapter 13 were transferred to Title 42 Pa.C.S., the Judicial Code, by the Act of October 5, 1980, P.L. 693, No. 142. See 42 Pa.C.S. §§ 2151-2155 and §§ 9701-9781 (1982 and Supp.1986).

. This Act and subsequent acts on the same subject were repealed by the Act of March 31, 1921, P.L. 81. The latter was, in turn, repealed and replaced by the Act of May 7, 1923, P.L. 158, as amended, 46 P.S. §§ 451-465 (Supp.1987).

. In addition to the Legislative Reference Bureau, the General Assembly has, among other legislative agencies, created: a Local Government Commission, Act of May 29, 1935, P.L. 244, as amended, 46 P.S. §§ 431.1-431.7 (Supp.1987); a Joint State Government Commission, Act of July 1, 1937, P.L. 2460, as amended, 46 P.S. §§ 65-69 (Supp. 1987); a Legislative Budget and Finance Committee, Act of August 4, 1959, P.L. 587, as amended, 46 P.S. §§ 70.1-70.7; a Legislative Data Processing Committee, Act of December 10, 1968, P.L. 1158, 46 P.S. §§ 71.1-71.6; a Joint Legislative Air and Water Pollution Control and Conservation Committee, Act of January 19, 1968, P.L. (1967) 1022, 71 P.S. §§ 1187.1-1187.4 (Supp.1987) and a Legislative Audit Advisory Commission, Act of June 30, 1970, P.L. 442, as amended, 71 P.S. §§ 1189.1-1189.2 (Supp.1987). Most of the foregoing are agencies which provide ongoing technical or informational service to the General Assembly. The General Assembly has also created commissions or committees to study particular problems and report their recommendations, e.g., a commission to study public school finances, Act of May 26, 1943, P.L. 635 (since expired); an Anthracite Mine Drainage Study Commission, Act of July 29, 1953, P.L. 996, and April 4, P.L. (1955) 1389, (repealed May 9, 1961, P.L. 186); the Pennsylvania Higher Education Assistance Agency, Act of August 7, 1963, P.L. 549, as amended, 24 P.S. §§ 5101-5112 (Supp.1987); the Pennsylvania Crime Commission, Act of October 4, 1978, P.L. 876, as amended, 71 P.S. §§ 1190.1-1190.11 (Supp.1987).

. Subsequently amended by the Act of April 30, 1986, P.L. 135, effective May 1, 1986. See 42 Pa.C.S. § 2153 (Supp.1986).

. My research has not revealed any cases before this Court which raised an issue concerning the application of the sentencing guidelines approved by the Commission and published in the Pennsylvania Bulletin on January 24, 1981, 11 Pa.B. 463-76, prior to the effective date, i.e., July 22, 1982, of the second set of guidelines published on January 23, 1982.