[J-85-2020] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 10 EAP 2020 : Appellee : Appeal from the Judgment of : Superior Court entered on : 07/11/2019 at No. 1670 EDA 2017 v. : (reargument denied 08/28/2019) : affirming vacating and remanding : the Judgment of Sentence entered KHALID EID, : 04/26/2017 in the Court of Common : Pleas, Philadelphia County, Criminal Appellant : Division at No. CP-51-CR-0003605- : 2016. : : ARGUED: October 20, 2020
OPINION
JUSTICE WECHT DECIDED: April 29, 2021 This case presents constitutional challenges to the Vehicle Code’s1 enhancement
of sentences for those who refuse chemical testing after driving under a suspended
license (“DUS”). Although we conclude that the evidence was sufficient to sustain Khalid
Eid’s conviction for refusing to submit to a warrantless breath test—which, unlike a
warrantless blood draw, does not violate established constitutional safeguards against
unreasonable searches and seizures—we vacate his sentence of imprisonment because
the sentencing statute in question fails to specify a maximum term, and thus is
unconstitutionally vague in contravention of state and federal due process principles.
1 75 Pa.C.S. § 101, et seq. I.
At approximately 11:30 p.m. on February 25, 2015, Philadelphia Police Officer
Stephen Nagy observed a black Nissan parked on a one-way street with its engine still
running. The Nissan previously had collided with two parked cars and was facing the
wrong direction. Notes of Testimony (“N.T.”), 3/2/2016, at 6-8. Officer Nagy approached
the Nissan and asked the driver, Eid, for his driver’s license, registration, and proof of
insurance. Eid appeared disheveled, his eyes were red and glassy, he smelled of alcohol,
and he had a difficult time retrieving the requested items from his back pocket. Officer
Nagy asked Eid to step out of the vehicle. When Eid opened the door, Officer Nagy
smelled “a moderate odor of an alcoholic beverage emanating from the vehicle and [Eid’s]
person.” Id. at 7-8. Eid handed his license and registration to Officer Nagy. Eid’s license
was suspended. Id. at 23-24, 25.
Officer Nagy called for a wagon to transport Eid to the Accident Investigation
District (“AID”) for chemical testing. As they waited, Eid urinated on himself. At
approximately 1:40 a.m., following Eid’s transfer to AID, Officer Gary Harrison
encountered Eid and read the O’Connell warnings to him.2 At Eid’s first trial, Officer
Harrison gave the following account of his interaction with Eid:
He was polite, quiet. He had bloodshot, watery eyes. He had a wet stain on his pants that he had urinated on himself. He had low speech, whispering. He was sweating. He moved slowly. His pupils were dilated in room light. He had a moderate odor of an alcoholic beverage on his breath.
He had a lot of marijuana debris also, Your Honor, in his mouth. And he had marijuana debris on his tongue, which also indicated to me, Your Honor, that he did smoke recently.
2 See Pa. Dep’t of Transp. v. O’Connell, 555 A.2d 873, 876 (Pa. 1989) (requiring warnings to be read to motorists so that they may make a knowing and conscious decision whether to submit to chemical testing).
[J-85-2020] - 2 He refused immediately, Your Honor, when he came in the room and then said “whatever you want.” I told him it’s his decision. Then he said “no test.”
Again, I read him the O’Connell Warnings and the 75-439. He signed them and said no to the test. I read him the DL-26. Again, he said no to the test. I asked him two more times at the nurse’s station. And, again, he said no. And, again, he did sign all forms.
At 2:03 a.m., Your Honor, based on him repeatedly saying no to the test, I deemed him to be a refusal. And I did offer him – initially, I offered him a breath or a blood. Then after I noticed the marijuana, it was a blood test that he refused. Id. at 18-19.3
Eid was charged with several offenses for driving under the influence (“DUI”), one
of which subjected him to elevated penalties due to his refusal to submit to chemical
testing, along with a single count of DUS pursuant to 75 Pa.C.S. § 1543(a).4 Following a
bench trial on March 3, 2016, in the Municipal Court of Philadelphia, Eid was convicted
on all charges. At a sentencing hearing on April 12, defense counsel asked the court to
impose “the mandatory minimum which is 90 days to six months,” with immediate parole.
N.T., 4/12/2016, at 4. Instead, the court imposed, inter alia, an aggregate sentence of
one to two years’ imprisonment, a $2,500 fine, and an eighteen-month license
suspension. Id. at 6.
Eid appealed, and proceeded to a de novo bench trial before the Honorable Paul
P. Panepinto in the Court of Common Pleas on December 5, 2016. At the beginning of
3 Included in the certified record is a copy of the DL-26 implied consent form signed by Eid, which depicts a circle drawn around the words “blood, breath” and a slash mark through “breath.” There was no testimony as to who made the slash mark or its significance. 4 Specifically, Eid was charged with three counts of DUI-general impairment under 75 Pa.C.S. § 3802(a)(1), two of which included sentencing enhancements: one due to the vehicle damage caused by the accident, see id. § 3803(b)(1), and one due to Eid’s chemical test refusal, see id. § 3803(b)(2).
[J-85-2020] - 3 the trial, the Commonwealth stated that, notwithstanding the charge listed in the initial
criminal information, it would be prosecuting the DUS offense under 75 Pa.C.S.
§ 1543(b)(1.1)(i), rather than subsection (a).5 The Commonwealth amended the
information accordingly.
The applicable subsection of the DUS statute determines the permissible range of
sentences available upon conviction. Subsection 1543(a) relates generally to driving with
a suspended or revoked license, and prescribes a penalty of a $200 fine. Id. § 1543(a).
Subsection 1543(b) applies when the license suspension resulted from a previous DUI
offense. It prescribes an elevated penalty: a $500 fine and a term of imprisonment not
less than sixty days nor more than ninety days. Id. § 1543(b). Subsection 1543(b)(1.1)
5 Subsection 1543(b)(1.1)(i) provides: A person who has an amount of alcohol by weight in his blood that is equal to or greater than .02% at the time of testing or who at the time of testing has in his blood any amount of a Schedule I or nonprescribed Schedule II or III controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or its metabolite or who refuses testing of blood or breath and who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when the person's operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3802 or former section 3731 or because of a violation of section 1547(b)(1) or 3802 or former section 3731 or is suspended under section 1581 for an offense substantially similar to a violation of section 3802 or former section 3731 shall, upon a first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days. 75 Pa.C.S. § 1543(b)(1.1)(i). Notably, the General Assembly has not yet amended this subsection in response to Birchfield, as it has for other statutes that provided for an enhanced penalty based upon the refusal of a warrantless blood test. Compare 75 Pa.C.S. § 3804(c) (“An individual who violates section 3802(a)(1) and refused testing of breath . . . or testing of blood pursuant to a valid search warrant . . .”), with former 75 Pa.C.S. § 3804(c), effective July 9, 2012, to July 19, 2017, (“An individual who violates section 3802(a)(1) and refused testing of blood or breath . . .”) (emphases added).
[J-85-2020] - 4 sets forth a further elevated tier of punishment: a fine of $1,000 and a ninety-day minimum
term of imprisonment, applicable when the motorist drove with a DUI-related suspended
license and has a blood alcohol concentration of at least .02%, or any amount of a
controlled substance in his blood, or “refuses testing of blood or breath.” Id.
§ 1543(b)(1.1)(i). This latter sentencing provision presently is at issue.
Following an evidentiary presentation similar to that developed in the Municipal
Court, the trial court convicted Eid on all charges.6 N.T., 12/5/2016, at 31. Sentencing
was deferred until April 26, 2017, at which time the case was transferred to the Honorable
Pamela P. Dembe. The sentencing court merged Eid’s DUI convictions and imposed a
term of ninety days to six months’ imprisonment (to be served on weekends), plus two
years’ probation and a $2,500 fine. As to the DUS conviction, the court imposed an
identical term of imprisonment and probation, to be served concurrently with the DUI
sentence, and an additional $1,000 fine. N.T. 4/26/2017, at 8-11.
Eid appealed to the Superior Court. In his Pa.R.A.P. 1925(b) statement, he
argued, in relevant part, that the applicable DUS statute, 75 Pa.C.S. § 1543(b)(1.1)(i),
contains a provision rendered unconstitutional by the Supreme Court of the United States’
decision in Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016), because it
penalizes the refusal to submit to a warrantless blood test.7 Eid further contended that
his sentence for DUS was illegal because it exceeded ninety days, which he understood
to be the statutory maximum term. The sentencing court’s opinion, which was authored
6 The Commonwealth moved to introduce the transcripts from Eid’s first trial, specifically as they pertained to Officer Harrison’s testimony, in light of that officer’s death following Eid’s conviction. N.T., 12/5/2016, at 4-5, 22-23. 7 Birchfield held that, although warrantless breath tests constitutionally may be compelled under the search incident to arrest doctrine, “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” 136 S.Ct. at 2186.
[J-85-2020] - 5 by a judge other than the one who presided over Eid’s trial, addressed only the first of
these claims. The authoring judge concluded that Birchfield was inapplicable because
Eid also refused a breath test. See Tr. Ct. Op., 12/28/2017, at 4-5 (unpaginated). The
trial court did not address the range of permissible sentences.
In a unanimous memorandum, the Superior Court vacated Eid’s judgment of
sentence and remanded for resentencing. Commonwealth v. Eid, 1670 EDA 2017, 2019
WL 3046587 (Pa. Super. July 11, 2019). Eid challenged the sufficiency of the evidence
with respect to both the DUI and DUS offenses, asserted that the portion of the DUS
statute penalizing warrantless blood test refusals is unconstitutional under Birchfield, and
argued that his sentences for both DUS and DUI were illegal because they exceeded the
statutory maximum penalties.
The court concluded that the evidence was sufficient to sustain Eid’s convictions
for both DUI and DUS. With regard to DUI, the court deemed Officer Nagy’s testimony
describing Eid’s apparently intoxicated state sufficient to establish that Eid was unable to
safely operate a vehicle, thereby satisfying the elements of DUI-general impairment under
75 Pa.C.S. § 3802(a)(1). As for DUS, the court observed that the record included
“evidence of [Eid’s] refusal to take a blood test,” and thus was sufficient to sustain his
conviction under 75 Pa.C.S. § 1543(b)(1.1)(i). Eid, 2019 WL 3046587, at *4.
The panel rejected Eid’s Birchfield argument because he had advanced it under
the banner of a sufficiency challenge to his DUS conviction. Id. (“Birchfield addresses
suppression issues and sentencing issues, but not challenges to the sufficiency of the
evidence.”). The Superior Court deemed Birchfield “not relevant in evaluating the
sufficiency of the evidence in this case.” Id.
However, the court agreed with Eid that, due to the length of the probationary tails
imposed, his sentences for both DUI and DUS exceeded the statutory maximums. A
[J-85-2020] - 6 sentencing court may impose a split sentence including both incarceration and probation,
the panel noted, but “the total amount of time imposed in a split sentence cannot exceed
the statutory maximum.” Id. at *6 (citing Commonwealth v. Crump, 995 A.2d 1280, 1283-
84 (Pa. Super. 2010)). The court observed that the statutory maximum sentence for Eid’s
merged DUI offenses was six months, see 75 Pa.C.S. § 3803(b)(1), (2), whereas the
sentencing court imposed a sentence of ninety days to six months’ imprisonment plus a
two-year probationary term.
The court likewise determined that the statutory maximum for DUS also was six
months. The panel recognized that 75 Pa.C.S. § 1543(b)(1.1)(i) contains no express
statutory maximum penalty, only a minimum term of ninety days’ imprisonment. See Eid,
2019 WL 3046587, at *6 n.11. Despite the absence of a specific statutory maximum for
this offense, the court nonetheless gleaned a six-month maximum from 75 Pa.C.S.
§ 6503(a), which sets a maximum term of imprisonment of six months for an individual
“convicted of a second or subsequent violation” of, inter alia, 75 Pa.C.S. § 1543(a).
Because the sentencing court imposed a sentence of ninety days to six months’
imprisonment plus a two-year probationary term, the probation tails caused both
sentences to exceed the lawful maximum. Thus, the Superior Court concluded that Eid’s
sentence was illegal. Accordingly, the court vacated the sentence and remanded for
resentencing.
II.
We granted allowance of appeal in order to assess the constitutionality of Eid’s
sentence under 75 Pa.C.S. § 1543(b)(1.1)(i).8 A constitutional challenge to a sentencing
8 Specifically, we granted review of the following questions, as framed by Eid: (1) Is Petitioner’s sentence under 75 Pa.C.S. § 1543(b)(1.1)(i) illegal because the statute is unconstitutional under Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016), Article I, Section 8, due process, and this
[J-85-2020] - 7 statute presents a question of law, which we review de novo. Commonwealth v. Bell, 211
A.3d 761, 765 (Pa. 2019).
A.
Eid first claims that his sentence is illegal because the statute at issue imposes
criminal penalties for refusing to submit to a warrantless blood draw. As a threshold
matter, he concedes that his argument presumes a “favorable resolution of the factual
dispute that his refusal was based upon the rejection of a request to submit to a blood
test.” Eid’s Brief at 13 n.11. Eid correctly claims that, in light of Birchfield, his conviction
and sentence pursuant to 75 Pa.C.S. § 1543(b)(1.1)(i) would be unlawful to the extent
that his punishment was predicated solely upon his refusal to consent to a warrantless
blood test. See Birchfield, 136 S.Ct. at 2185-86; see also Commonwealth v. Monarch,
200 A.3d 51, 57 (Pa. 2019). However, as the Commonwealth aptly observes, the record
supports Eid’s conviction for refusing a breath test, which Birchfield categorically excluded
from the Fourth Amendment’s warrant requirement as a permissible search incident to
arrest.9 Birchfield, 136 S.Ct. at 2184 (concluding “that the Fourth Amendment permits
warrantless breath tests incident to arrests for drunk driving”); id. at 2185 (“Because
breath tests are significantly less intrusive than blood tests and in most cases serve law
enforcement interests, we conclude that a breath test, but not a blood test, may be
Court’s precedents because it increases the punishment for a criminal offense based upon the refusal to submit to a warrantless blood test? (2) Is Petitioner’s sentence ordered by a three judge Panel of the Superior Court under 75 Pa.C.S. § 1543(b)(1.1)(i) illegal because the statute is unconstitutionally vague in that it fails to provide for a maximum penalty, and therefore, any sentence above a 90 [day] flat sentence violates the state and federal Due Process Clauses? Commonwealth v. Eid, 226 A.3d 566 (Pa. 2020) (per curiam). 9 To the extent that the Superior Court affirmed Eid’s conviction because he refused blood testing, that court erred in overlooking Birchfield’s prohibitions.
[J-85-2020] - 8 administered as a search incident to a lawful arrest for drunk driving. As in all cases
involving reasonable searches incident to arrest, a warrant is not needed in this
situation.”).
The notes of testimony from Eid’s first trial, which were introduced at his
subsequent prosecution, confirm that he refused both blood and breath testing roughly
half a dozen times between 1:40 a.m. and 2:03 a.m. on February 26, 2015, shortly after
being transferred to AID. As the late Officer Harrison recounted, upon entering the room
where the officer waited to process him, Eid—unprompted—initially refused all testing.
Eid refused again after Officer Harrison read him the O’Connell warnings and 75-439
Report for Chemical Testing. See N.T., 3/2/2016, at 18, 19 (“He signed them and said
no to the test.”). He refused once more after being read the DL-26 form, on which the
words “breath” and “blood” were handwritten on a blank line next to a prompt indicating
the specific tests requested by the officer. And then he refused twice at the nurses’
station.
Although Officer Harrison indicated that he offered Eid a blood test after noticing
marijuana debris in Eid’s mouth, significantly—and fatal to Eid’s presumption—the signed
DL-26 form corroborates Officer Harrison’s testimony that Eid also specifically refused
breath testing. Eid thus was “provided with an opportunity to make a ‘knowing and
conscious choice’ between providing voluntary consent to a chemical test”—pertinently,
of his breath—“or accepting the consequences that will follow from the refusal to do so.”
Commonwealth v. Myers, 164 A.3d 1162, 1180-81 (Pa. 2017). That evidence was
sufficient to sustain Eid’s conviction pursuant to subsection 1543(b)(1.1)(i) for refusing a
breath test. Neither Birchfield nor the other grounds asserted in Eid’s first question
[J-85-2020] - 9 presented for review compels us to reverse that determination under these
circumstances.10
B.
Turning to the second issue, Eid contends that the sentencing provision in
subsection 1543(b)(1.1)(i) “is illegal because the Legislature failed to provide a clear
statutory maximum penalty applicable to the crime rendering the permissible range of
sentences unconstitutionally vague in violation of due process under both the
10 We recognize that a reasonable argument could be made that our recent decision in Monarch entitles Eid to relief. However, Monarch is distinguishable. There, the trial court instructed the jury to “make a finding [whether Monarch] did not or did refuse testing of blood” following his DUI arrest. 200 A.3d at 53 (quoting N.T., 2/12/2016, at 317). When the jury found Monarch guilty and determined that he had refused a blood test, the court imposed a mandatory minimum term of imprisonment. We vacated the judgment of sentence in light of Birchfield’s rule that a warrantless blood draw, when compelled on pain of criminal punishment, violates the Fourth Amendment. We also rejected the Superior Court’s conclusion that the sentence was lawful on alternative grounds because Monarch had refused breath testing. That was so, we reasoned, notwithstanding the presumptive constitutionality of warrantless breath testing under Birchfield, because “the question of whether [Monarch] refused breath testing was not submitted to the jury,” and, thus, “any sentence based on such a refusal [would be] unconstitutional in violation of Alleyne” v. United States, 570 U.S. 99, 103 (2013) (holding that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt”). Monarch, 200 A.3d at 57-58 (emphasis added). Accordingly, because the fact-finder was not asked whether Monarch had refused breath testing, and therefore did not make such a finding beyond a reasonable doubt, we concluded that “there was no legal basis for [Monarch’s] enhanced mandatory minimum sentence.” Id. at 58. Monarch thus stands for the proposition that, when a jury is available to make factual findings in the first instance upon which a particular conviction or sentence might turn, neither the trial court nor a reviewing court may resolve, post hoc, unanswered questions of fact. While facts that trigger sentencing enhancements constitute elements of the underlying crimes and need to be found beyond a reasonable doubt at trial regardless of whether the fact-finder is a judge or jury, see, e.g., Commonwealth v. Bizzel, 107 A.3d 102, 105 (Pa. Super. 2014); Commonwealth v. Cardwell, 105 A.3d 748, 750-51 (Pa. Super. 2014); Commonwealth v. Fennell, 105 A.3d 13, 16 (Pa. Super. 2014); Commonwealth v. Munday, 78 A.3d 661, 666 (Pa. Super 2013), whether Alleyne requires more of a trial court sitting as fact-finder is an open question. As we are without developed advocacy on that issue, we ought not attempt to resolve it today.
[J-85-2020] - 10 Pennsylvania and Federal Constitutions.” Eid’s Brief at 18. He observes that both the
Supreme Court of the United States and this Court have held that vague sentencing
provisions violate due process because such provisions deprive a person of liberty
without fair notice of the consequences of their actions. Id. at 18-19 (citing Michigan v.
Long, 463 U.S. 1032 (1983); Commonwealth v. Bell, 645 A.2d 211, 215 n.9 (Pa. 1994)
(“We believe that fairness [under the independent tenets of the Commonwealth’s due
process principles] requires that a defendant be notified of the maximum sentence he
could face for committing a particular offense.”)). Eid posits that a court cannot fill in the
gaps of a vague sentencing statute where the General Assembly “has abdicated its duty
to define the maximum range of a penalty.” Id. at 20 (citing Commonwealth v.
Derhammer, 173 A.3d 723, 733 (Pa. 2017) (Wecht, J., concurring) (explaining that the
judiciary is not empowered to rewrite the law by guessing what the General Assembly
might do)).
Eid asserts that any interpretation of the DUS statute that would impose a
maximum term of more than ninety days’ imprisonment for refusing chemical testing is
constitutionally infirm. However, pointing to the statute’s mandatory $1,000 fine for a DUS
conviction under the same provision, Eid also claims that, had the Legislature intended
to direct courts to impose a mandatory ninety-day flat sentence, it would have said so
directly. An express directive would have been necessary, in his view, to overcome the
Sentencing Code’s general rule that each criminal sentence be indeterminate, with a
minimum term that is no greater than half of its maximum term. See 42 Pa.C.S.
§ 9756(b)(1). Additionally, Eid notes that the General Assembly’s express invocation of
a minimum and maximum sentencing range for the general DUS provision in
subsection 1543(b)(1)(i) (providing that a violator “shall be sentenced to pay a fine of $500
and to undergo imprisonment for a period of not less than 60 days nor more than 90
[J-85-2020] - 11 days”) demonstrates its ability to use that limiting phrase. The General Assembly’s failure
to do so in subsection 1543(b)(1.1)(i), Eid argues, is glaring. Eid’s Brief at 30-35.
The Commonwealth counters that the DUS statute can be read so as to mandate
a minimum sentence of ninety days with a maximum term not to exceed six months. In
its view, as applied to a sentencing provision, the phrase “not less than” plainly sets the
lower end of a mandatory sentencing range. Commonwealth’s Brief at 15 (citing
subsection 1543(b)(1.1)(ii)-(iii) (grading second and subsequent DUS violations as
misdemeanors punishable by terms of imprisonment “not less than six months” and “not
less than two years,” respectively)); see also id. at 16-17 (citing Commonwealth v.
O’Brien, 514 A.2d 618, 620 (Pa. Super. 1986) (“The words ‘not less than’ used in the
statute unambiguously connote a minimum term of imprisonment. It strains all notions of
common sense to suggest that ‘not less than’ can reasonably be interpreted as meaning
‘maximum.’”)).
In support of its position, the Commonwealth cites Commonwealth v. Koskey, 812
A.2d 509 (Pa. 2002), in which this Court reviewed a sentence imposed under a prior
version of subsection 1543(b)(1) (relating to DUS-DUI generally). At the time,
paragraph (b)(1) mandated a sentence of “not less than 90 days” upon conviction. In
affirming a flat ninety-day sentence under the predecessor statute to
subsection 1543(b)(1.1)(i), the Court found that “‘the plain language of the statutory
scheme required sentencing courts to adhere to the mandatory minimum sentencing
guidelines for violations of Section 1543(b)(1).’” Commonwealth’s Brief at 17-18 (quoting
Koskey, 812 A.2d at 511); see also Commonwealth v. Yale, 657 A.2d 987, 988 (Pa.
Super. 1995) (“[A] violation of 75 Pa.C.S. § 1543(b) requires a mandatory minimum
sentence of ninety days imprisonment, plus fines.”). The Commonwealth notes that the
same penalty term found in paragraph (b)(1) was later included in paragraph (b)(1.1)(i)
[J-85-2020] - 12 when Section 1543 was amended in 2002. Thus, the Commonwealth asserts that
Koskey’s holding should apply to the successor statute’s indistinguishable language. Id.
at 18 (citing Hous. Auth. of Cty. of Chester v. Pa. State Civil Serv. Comm’n, 730 A.2d 935,
946 (Pa. 1999) (“When the meaning of a word or phrase is clear when used in one section,
it will be construed to mean the same thing in another section of the same statute.”)).
The absence of an express maximum penalty for a first violation of
subsection 1543(b)(1.1)(i) does not invalidate the statute, the Commonwealth claims,
because, when read in conjunction with Section 6503 of the Vehicle Code (relating to
subsequent convictions for certain offenses), a statutory limit of six months’ imprisonment
may be inferred where a maximum sentence for a summary DUS-DUI offense is
unspecified. The Commonwealth points to the statutes’ historical development, which it
believes demonstrates that the maximum term for a summary DUS violation under
Section 1543(a) also covers summary DUS-DUI offenses under Section 1543(b).
Commonwealth’s Brief at 19. Specifically, Section 6503 mandates that a person who
commits a second or subsequent DUS violation under Section 1543(a)—a summary
offense—may be sentenced to a term of imprisonment “‘of not more than six months.’”
Id. at 20 (quoting 75 Pa.C.S. § 6503(a)-(a.1)). Positing that Subsection 1543(b)(1.1)(i),
which grades a first DUS violation as a summary offense, cannot be considered in
isolation from the penalty provision of Section 6503, the Commonwealth concludes that
Section 6503’s six-month maximum should also apply to paragraph (b)(1.1). Id.
As the Commonwealth recounts, prior to December 3, 2002, the recidivist penalties
under Section 6503 were not limited to repeat offenders of Section 1543(a). Instead, the
former version of Section 6503 called for terms of “‘imprisonment for not more than six
months’” for all second or subsequent convictions under Section 1543. Id. (quoting Act
of Dec. 21, 1998, P.L. 1126, No. 151, § 58). A 2002 amendment narrowing
[J-85-2020] - 13 Section 6503’s express terms to violations of Section 1543(a) was adopted in the same
bill that created paragraph (b)(1.1). Id. at 21 (citing P.L. 845, No. 123, §§ 3, 10.1). The
Commonwealth notes that the legislation left intact the mandatory penalty of “not less
than 90 days” for DUS-DUI violations under subsection 1543(b)(1)—identical to the
penalty mandated under the newly-enacted paragraph (b)(1.1)(i)—without stating an
explicit maximum term for subsequent violations. The Commonwealth claims that these
simultaneous amendments to Sections 1543(b) and 6503 reveal the General Assembly’s
intent that the statutory maximum penalty for a summary offense under both
subsections 1543(b)(1) and (b)(1.1)(i) be six months. The Commonwealth asserts that a
contrary interpretation would result in individuals who commit multiple DUS-DUI offenses
under subsection 1543(b)(1), as well as first-time offenders of paragraph (b)(1.1), being
sentenced to less severe penalties than those who commit multiple offenses under the
arguably less serious Section 1543(a), where the license suspension is unrelated to a
DUI. Id. at 21.
The evolution of the DUS statutes thus demonstrates that the language in
Section 6503 was limited to violations of Section 1543(a), the Commonwealth claims,
simply because the General Assembly already understood that the statutory maximum
penalty for a violation of paragraphs (b)(1) and (b)(1.1)(i) was six months’ imprisonment.
Id. at 22 (citing Bell, 645 A.2d at 217-18 (holding that statute setting forth mandatory
sentences was not unconstitutionally vague, although the statute provided no maximum
sentences, where sentences which “further[ed] the intent of the legislature” could be
reasonable inferred from other statutory provisions)). Although the penalty under
paragraph (b)(1) has since been amended, the Commonwealth again notes that the
language in paragraph (b)(1.1)(i) was left unchanged. Id. at 23.
[J-85-2020] - 14 The Commonwealth also contests Eid’s assertion that Section 1543 of the Vehicle
Code is subject to the Sentencing Code’s general requirement of minimum-maximum
sentencing. Id. at 24. Section 1543 is not subject to that rule, the Commonwealth claims,
because the implied six-month maximum sentence complies with constitutional limits for
summary traffic offenses. Id. (citing Baldwin v. New York, 399 U.S. 66, 69 (1970) (“[N]o
offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment
for more than six months is authorized.”)). In that regard, the Commonwealth rightly
observes that Section 6503 was amended in 1986 to reduce the maximum sentence from
one year to six months in order to bring it within the constitutional limit announced in
Baldwin. Id. at 24-25 (citing Commonwealth v. Sperry, 577 A.2d 603, 605 n.3 (Pa. Super.
1990) (en banc) (“Following the 1986 amendment, the statute, [Section 6503,] provided
for a maximum prison term of six months, to comply with the decision in Baldwin v. New
York.”)); see also Blanton v. Cty. of N. Las Vegas, 489 U.S. 538, 543-45 (1989) (holding
that offenses carrying a maximum prison term of six months or less are presumed to be
“petty” for purposes of the Sixth Amendment, therefore a DUI offense providing a
maximum penalty of six months’ imprisonment and a $1,000 fine was presumed to be a
petty offense and did not entitle violators to a jury trial).
Lastly, the Commonwealth suggests that Eid’s reliance upon the Sentencing
Code’s general rule of indeterminate sentences is misplaced here because the Vehicle
Code establishes a separate sentencing scheme for summary DUS-DUI offenses. See
Commonwealth’s Brief at 25 (quoting Bell, 645 A.2d at 217 (noting that although “the
minimum-maximum rule of [Section] 9756(b) is a longstanding concept in our
Commonwealth, it is a statutory and not a constitutional provision”)). The Commonwealth
concludes that Section 9756(b)’s general rule must yield to the specific provision of
[J-85-2020] - 15 Section 9756(c.1), which authorizes flat sentences for DUS-DUI offenders.
Commonwealth’s Brief at 27 n.14.
With the preceding arguments in mind, we begin by reiterating the longstanding
precept that legislative enactments are presumed to be constitutional. One who
challenges the constitutionality of a statute bears a heavy burden of persuasion.
Commonwealth v. Mikulan, 470 A.2d 1339, 1340 (Pa. 1983). “Accordingly, legislation will
not be declared unconstitutional unless it ‘clearly, palpably and plainly’ violates the
constitution.” Id. (citation omitted).
Eid asserts that the DUS statute under which he was sentenced lacks a statutory
maximum penalty, and thus is unconstitutionally vague in violation of state and federal
due process principles. Generally speaking, in criminal matters, “the void-for-vagueness
doctrine requires that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v.
Lawson, 461 U.S. 352, 357 (1983). It is well-settled that vague sentencing provisions
violate due process where they fail to provide offenders with fair notice of the
consequences for a particular crime. Johnson v. United States, 576 U.S. 591, 595-96
(2015) (“The prohibition of vagueness in criminal statutes . . . appl[ies] not only to statutes
defining elements of crimes, but also to statutes fixing sentences.”) (citing United States
v. Batchelder, 442 U.S. 114, 123 (1979)).
We begin, as we must, with the statute’s text. In pertinent part, a person who
drives with a suspended license in Pennsylvania and who refuses a chemical breath test
is guilty of a summary offense (upon a first conviction) “and shall be sentenced to pay a
fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.”
75 Pa.C.S. § 1543(b)(1.1)(i). We share the Commonwealth’s view that the phrase “not
[J-85-2020] - 16 less than 90 days,” by its plain terms, establishes a mandatory minimum term below which
a sentencing court may not fall when imposing a penalty for a first-time DUS offender.
See O’Brien, 514 A.2d at 620. We also recognize, as do the parties, that the statute is
silent as far as the available maximum sentence is concerned.
Concluding that the duty falls to this Court to fill that gap by inferring a particular
duration of punishment, the Commonwealth submits that a six-month maximum is
appropriate for several reasons. Adopting the Superior Court’s analysis, the
Commonwealth points to Section 6503 of the Vehicle Code as a potential gap-filler.11
11 Section 6503 (“Subsequent convictions of certain offenses”) provides: (a) General offenses.—Every person convicted of a second or subsequent violation of any of the following provisions shall be sentenced to pay a fine of not less than $200 nor more than $1,000 or to imprisonment for not more than six months, or both:
Section 1543(a) (relating to driving while operating privilege is suspended or revoked) except as set forth in subsection (a.1).
Section 3367 (relating to racing on highways).
Section 3734 (relating to driving without lights to avoid identification or arrest).
Section 3748 (relating to false reports).
(a.1) Certain repeat offenses.—A person convicted of a sixth or subsequent offense under section 1543(a) shall be sentenced to pay a fine of not less than $1,000 and to imprisonment for not less than 30 days but not more than six months.
(b) Driving without a license.—Every person convicted of a second or subsequent violation of section 1501(a) (relating to drivers required to be licensed) within seven years of the date of commission of the offense preceding the offense for which sentence is to be imposed shall be sentenced to pay a fine of not less than $200 nor more than $1,000 or to imprisonment for not more than six months, or both. 75 Pa.C.S. § 6503.
[J-85-2020] - 17 Section 6503 indeed sets a maximum term of six months’ imprisonment, but that
punishment is applicable only to “a second or subsequent violation” of certain enumerated
offenses—not including subsection 1543(b)(1.1)(i) of the DUS statute. Because the
instant case relates to a first DUS offense, of a class not enumerated in Section 6503, the
Commonwealth’s reliance upon that provision is misplaced.
The Commonwealth then relies heavily upon this Court’s decision in Bell, which,
at first glance, lends some credence to its view that sentencing terms can be inferred.
There we rejected a vagueness challenge to 18 Pa.C.S. § 7508(a)(1)(ii)-(iii), a mandatory
minimum sentencing statute for marijuana trafficking that similarly lacked a maximum
term. The provisions at issue mandated minimum terms of three or five years’
imprisonment for violations of clauses (12), (14), or (30) of subsection (a) of the Controlled
Substance, Drug, Device and Cosmetic Act (“Drug Act”), 35 P.S. § 780-113, dependent
upon the weight of the drugs possessed for delivery by the offender. Bell, 645 A.2d at
214-15. A separate provision of the Drug Act commanded that any person who violated
those same clauses “shall be sentenced to imprisonment not exceeding five years.”
35 P.S. § 780-113(f)(2). Consequently, the Court was forced to acknowledge the “alleged
inconsistency” arising from these conflicting sentencing provisions, which it concluded
were “incompatible with” the minimum-maximum rule contained in Section 9756(b) of the
Sentencing Code. Bell, 645 A.2d at 215.
To resolve these conflicts, the Bell Court simply sidestepped the rule. The Court
reasoned that Section 9756(b) “is a statutory and not a constitutional provision,” and
therefore would not bar a sentence of three to five years’ imprisonment or a flat sentence
of five years given the exception it deemed “carve[d]” out by the prefatory language in
Section 7508(a) (“General rule.—Notwithstanding any other provision of this or any other
act to the contrary . . .”). Id. at 217. Relying upon the legislative history of Section 7508,
[J-85-2020] - 18 the Court found “this interpretation to be the most desirable since it further[ed] the intent
of the legislature to invoke harsher minimum penalties for drug trafficking, without raising
constitutional concerns.” Id. Having divined this punitive intent from the legislative record,
the Court held that the absence of maximum sentencing terms from Section 7508 would
not require the statute to be invalidated where those terms—namely, a five-year
maximum for each of the crimes at issue—“can be reasonably implied when that section
is read together with [Section] 113(f)(2) of the Drug Act.” Id. at 218.
We have not applied Bell’s holding beyond the particular circumstances of the Drug
Act’s mandatory sentencing scheme. See Commonwealth v. Ramos, 83 A.3d 86, 92-93
(Pa. 2013) (holding that the general rule regarding minimum and maximum sentences
must yield to 42 Pa.C.S § 9712.1(a)’s offense-specific five-year mandatory minimum,
which “applies only to the subset of criminals who have been convicted of 35 P.S. § 780-
113(a)(3) while in physical possession of a firearm”). And we decline to do so today, as
attempting to infer a maximum term here “would force us to engage in sheer speculation
as to which sentence the General Assembly intended.” Bell, 645 A.2d at 217. As an
initial matter, there is no similar prefatory language in the DUS statute by which to carve
out an exception à la Bell. We must therefore assume that the Sentencing Code’s general
rule of minimum-maximum sentencing applies to the pertinent section of the Vehicle Code
at issue. If we were to infer a statutory maximum of six months as the Commonwealth
requests, however, then “not less than” necessarily would also mean “not more than”
ninety days in order to comply with the general rule, in which case the limiting phrase
would be superfluous. A similar problem would arise if we were to infer any maximum
below six months, as it immediately would run counter to the general rule. Given the
absence of a statutory hook by which to fashion a principled exception to the rule in that
manner, that result would be particularly untenable.
[J-85-2020] - 19 Moreover, contrary to the Commonwealth’s suggestion, we do not read
Section 9756(c.1) of the Sentencing Code as expressly sanctioning the imposition of flat
sentences for violations of the Vehicle Code. That provision merely permits the imposition
of a sentence of imprisonment without parole where, among other things, “the maximum
sentence of total confinement imposed on one or more indictments to run consecutively
or concurrently total 90 days or less.” 42 Pa.C.S. § 9756(c.1)(2). Notwithstanding its
applicability in certain circumstances where the Vehicle Code (and other statutes)
expressly provides for sentences of incarceration of ninety days or less—which is not the
case under subsection 1543(b)(1.1)(i)’s mandatory minimum sentencing requirement—
Section 9756(c.1) does not constitute a standalone exception to the general rule of
minimum-maximum sentencing specifically applicable here. And even though the
Commonwealth is correct that this Court affirmed a ninety-day flat sentence for DUS in
Commonwealth v. Koskey, we note that no challenge was raised to the legality of that
sentence or to the portion of the sentencing statute providing for it. As such, Koskey does
not resolve the question now before us. Nor would resolution of that question be helpful
here, where no flat sentence was imposed.12
Finally, the Commonwealth proffers that the six-month maximum should be
assumed based upon conditions that the General Assembly has imposed in roughly
12 Although we have not been asked to review the legality of flat sentencing under these circumstances, we are cognizant of the conflicting Superior Court precedents on this matter, the resolution of which must await an appropriate case or controversy. Compare Commonwealth v. Klingensmith, 650 A.2d 444, 447-48 (Pa. Super. 1994) (holding that a prior version of Section 1543(b) of the Vehicle Code “implicitly creates an exception to” the minimum-maximum sentence rule “by specifically authorizing a trial court to impose a flat minimum mandatory sentence of ninety days for driving with a suspended license when the license was suspended as a result of a prior DUI conviction”), with Commonwealth v. Postie, 110 A.3d 1034, 1044-45 (Pa. Super. 2015) (holding that a flat sentence of four months’ imprisonment for a conviction under Section 1543(a) of the Vehicle Code violated the minimum-maximum sentencing rule).
[J-85-2020] - 20 comparable contexts—i.e., six months for summary offenses where the right to a jury is
not afforded. See Sperry, 577 A.2d at 605 n.3. Once again, we disagree. Though it
appears likely that the General Assembly is constrained to cap the punishment for
summary DUS offenses at six months’ imprisonment given the constitutional restrictions
outlined by the Supreme Court in Baldwin, we decline to infer that limit inasmuch as the
Legislature is not required to set the maximum sentence that high. It is neither the
judiciary’s role, nor within our constitutional authority, to fill gaps in sentencing statutes
resulting from the General Assembly’s omissions. See Derhammer, 173 A.3d at 732
(Wecht, J., concurring) (“Filling such gaps is an inherently legislative function, which the
judiciary should leave to those who have been elected by the people to write the laws.”).
In order to afford sufficient notice for due process purposes, a sentencing statute
“must specify the range of available sentences with ‘sufficient clarity.’” Beckles v. United
States, ___ U.S. ___, 137 S.Ct. 886, 892 (2017) (quoting Batchelder, 442 U.S. at 123).
As the foregoing analysis demonstrates, that clarity is lacking here. The statutory history
relied upon by the Commonwealth unmistakably reveals the existence of a gap in the
DUS statute that has persisted since the inception of paragraph (b)(1.1)(i) nearly two
decades ago. We hold that the absence of a maximum term renders the pertinent DUS
sentencing provision unconstitutionally vague and inoperable for the time being. We
leave it to the General Assembly to remedy this impediment, if it so chooses, either by
amending the statute to provide for a maximum term of imprisonment or by expressly
permitting flat sentencing within a range not to exceed that maximum sentence.
Accordingly, while we affirm the Superior Court’s order upholding Eid’s conviction
for refusing chemical testing after driving under a suspended license, albeit on alternative
grounds, we vacate his sentence of imprisonment for that offense. Because the only
punishment that lawfully may be imposed at this time for a violation of DUS pursuant to
[J-85-2020] - 21 subsection 1543(b)(1.1)(i) is the mandatory $1,000 fine, we affirm that portion of Eid’s
sentence. The case is remanded to the Superior Court for further proceedings consistent
with this opinion.
Chief Justice Baer and Justices Todd, Donohue, Dougherty and Mundy join the
opinion.
Justice Saylor files a concurring and dissenting opinion.
[J-85-2020] - 22