Commonwealth v. Sutley

378 A.2d 780, 474 Pa. 256, 1977 Pa. LEXIS 791

• Court: Supreme Court of Pennsylvania
• Decided: October 7, 1977
• Docket: 74 and 75
• Status: Published

Opinions

OPINION OF THE COURT

NIX, Justice.

Appellants James William Sutley and James D. Parker were convicted in the Court of Common Pleas of Mercer County in unrelated prosecutions for possession of marijuana, a felony under the Drug, Device and Cosmetic Act of 1961, Act of September 26, 1961, P.L. 1664, § 4, 35 P.S. § 780-4 (1964) (now repealed). Appellant Sutley entered a plea of guilty to the charge and was sentenced on July 2, 1971, to a term of imprisonment for not less than one nor more than three years in a state correctional institution. Appellant Parker, who also pleaded guilty to the charge, was sentenced on March 3,1972, to a term of one and one half to four years in a state correctional institution. No direct appeal was taken from the judgment of sentence by either appellant.

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 (Supp.1976-77) which repealed and extensively revised the prior law governing this field.¹ Among the more significant changes, the new Act classified possession of marijuana as a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

The revised Act was subsequently amended by the legislature on July 25, 1973, to provide for the resentencing in certain cases of individuals convicted of possession of marijuana under the prior Act. The amended section provides in full as follows:

The provisions of this act shall not affect any act done, liability incurred, or right accrued or vested, or affect any suit or prosecution pending to enforce any right or penalty or punish any offense under the authority of any Act of Assembly, or part thereof, repealed by this act: Provided, however, That in any case final on or before June 12,1972 in which a defendant was sentenced for the commission of acts similar to those proscribed by subsection (16) or (31), but not (30), of section 13(a) of this act, such defendant shall be resentenced under this act upon his petition if the penalties hereunder are less than those under prior law and in such case the prior criminal record of the defendant shall be expunged to the extent that such record shall no longer contain any reference to the prior grade of the offense if higher than the grade of the offense to which defendant is resentenced. Act of April 14, 1972, P.L. 233, No. 64, § 38, as amended by Act of July 25, 1973, No. 54, § 1, 35 P.S. § 780-138 (Supp.1976-77).

Appellants Sutley and Parker, in separate petitions filed with the Court of Common Pleas of Mercer County, sought resentencing under the amendment. It is conceded that both petitions alleged facts which, if proven would have required that appellants be resentenced in accordance with the amendment. A rule was issued upon the Commonwealth to show cause why the appellants should not be resentenced. The Mercer County District Attorney filed an answer to the petitions alleging only that the statute upon which appellants relied was unconstitutional. The lower court agreed and dismissed the petitions for resentencing. A timely appeal from the order dismissing the petitions was taken to the Superior Court, and that court certified the matter here for disposition.⁴ We now affirm.

The court below determined that the 1973 amendment was constitutionally repugnant as violating the constitutional doctrine of separation of powers, because the enactment intruded upon the governor’s power to commute sentences under Article IV, Section 9 of the Pennsylvania Constitution, Pa.Const. art. IV, § 9 (1968) and operated as a legislative impairment of existing final legal judgments. We agree that the amendment undermines and. thus fatally interferes with final judgments of the judiciary and therefore we need not consider the alternative basis- of constitutional invalidity relied upon by the court below.

We note at the outset that it is a fundamental principle in our conception of judicial authority that courts are not to inquire into the wisdom, reason or expediency behind a legislative enactment. Commonwealth v. Moir, 199 Pa. 534, 49 A. 351 (1901). Nor are the motives of the legislators in passing the act open to judicial consideration. Commonwealth v. Keary, 198 Pa. 500, 48 A. 472 (1901). Our inquiry in such cases can only be directed to the manner in which the legislature effectuates its will, to insure that the enactment does not transgress some specific constitutional prohibition.

The standards to be applied in making this determination are equally well settled. It is axiomatic that a legislative enactment is presumed to be constitutional.

“There is, of course, a strong presumption in favor of the constitutionality of statutes — a presumption which reflects on the part of the judiciary the respect due to the legislature as a co-equal branch of government.” (footnotes omitted) School Districts of Deer Lakes and Allegheny Valley v. Kane, 463 Pa. 554, 562, 345 A.2d 658, 662 (1975).

Accordingly, the burden rests on those alleging unconstitutionality to show that an enactment “clearly, palpably and plainly” violates the constitution. Tosto v. Pennsylvania Nursing Home Agency, 460 Pa. 1, 331 A.2d 198 (1975); Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1963); Rubin v. Bailey, 398 Pa. 271, 157 A.2d 822 (1960); Clark v. Meade, 377 Pa. 150, 104 A.2d 465 (1954); Lighton v. Abington Township, 336 Pa. 345, 9 A.2d 609 (1939); Sharpless v. Mayor of Philadelphia, 21 Pa. 147 (1853).

We are satisfied in the instant case that the appellee has sustained its burden of demonstrating the unconstitutionality of the 1973 amendment. A plain reading of the enactment reveals that it is couched in mandatory language; it unquestionably directs that a defendant “shall be resenT tenced under this act upon his petition if the penalties hereunder are less than those under prior law . . .” The amendment is, in operation and effect, a legislative command to the courts to open a judgment previously made final, and to substitute for that judgment a disposition of the matter in accordance with the subsequently expressed legislative will. The vesting in the legislature of the power to alter final judgments would be repugnant to our concept of the separation of the three branches of government.

The doctrine of the separation of governmental powers into the legislative, executive and judicial departments has been inherent in the structure of this Commonwealth’s government since its inception.

This separation appeared in Pennsylvania as early as 1776 in the Plan or Form of Government for the Commonwealth or State of Pennsylvania, prepared by the convention in that year. The separation was continued in our constitutions of 1790, of 1838, and of 1873. Accordingly, when the Constitution of 1873 was adopted, the people acted in the light of generations of experience with the operation of the doctrine of the separation of powers, and with the resulting necessity for judicial review to resolve differences of opinion between the legislative, executive or judicial departments concerning the scope and extent of the delegated powers. Dauphin County Grand Jury Investigation Proceedings (No. 2), 332 Pa. 342, 352-53, 2 A.2d 804, 807 (1938) (footnote omitted).

See generally, Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193 (1971); Pennsylvania Company v. Scott, 346 Pa. 13, 29 A.2d 328 (1943); Wilson v. Philadelphia School District, 328 Pa. 225, 195 A. 90 (1937); Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961 (1904); De Chastellux v. Fairchild, 15 Pa. 18 (1850); Greenough v. Greenough, 11 Pa. 489 (1849). Similarly, we have long recognized that the judicial branch is not subordinate to the other branches of government but is co-equal, distinct and independent.

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

See also Bedford v. Shilling, 4 S. & R. 401, 410 (1818). Thus, it necessarily follows that any encroachment upon the judicial power by the legislature is offensive to the fundamental scheme of our government. Bailey v. Waters, 308 Pa. 309, 162 A. 819 (1932); Ervine’s Appeal, 16 Pa. 256 (1851); Greenough v. Greenough, supra.

We recognize that the doctrine of the separation of powers was not intended to hermetically seal off the three branches of government from one another. It was obviously intended that there would be a degree of interdependence and reciprocity between the various branches. Cf. Buckley v. Valeo, 424 U.S. 1, 122, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). It is also true as noted by the dissenters that there may be some areas where the dividing lines between the respective responsibilities of the three branches may be difficult to define.⁵ Stander v. Kelley, 433 Pa. 406, 422, 250 A.2d 474, 482 (1969). However, a recognition that final judgments of the judicial branch are not to be interfered with by legislative fiat in this Commonwealth has long been established and is no longer open to serious question. As early as 1859 this Court observed:

In the very nature of things, a law that is enacted after the case has arisen can be no part of the case. Such a law can have only a forced and unnatural relation to the case, and must produce an untrue decision; a decision, not of the case arising between the parties, as it ought to be, but of a case partly created by the legislature.

When, therefore, the constitution declares that it is the exclusive function of the courts to try private cases of disputed right, and that they shall administer justice “by the law of the land,” and “by due course of law;” it means to say, that the law relating to the transaction in controversy, at the time when it is complete, shall be an inherent element of the case, and shall guide the decision; and that the case shall not be altered, in its substance, by any subsequent law.

Menges v. Dentler, 33 Pa. 495, 498-9 (1859).

We further explicated this concept in our decision in Pennsylvania Co. v. Scott, 346 Pa. 13, 16-17, 29 A.2d 328, 329 (1942):

“It is elementary that the legislature may not, under the guise of an act affecting remedies, destroy or impair final judgments obtained before the passage of the act, and this principle prohibits not only a statutory re-opening of cases previously decided by the court but also legislation affecting the inherent attributes of judgments .

There are two reasons for this limitation of legislative power; . . . that under our system of the division of governmental powers the legislature cannot invade the province of the judiciary by interfering with judgments or decrees previously rendered.”

Again in Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577 (1949), we reaffirmed the proposition that a legislative attempt to alter the effect of final judicial action imposed under prior law is a direct assault upon the power of the judicial branch:

The legislature cannot, by an act of assembly, overrule a judicial decision: Greenough v. Greenough, 11 Pa. 489; it may not direct a statute to be construed in a certain way: In re East Grant Street, 121 Pa. 596, 16 A. 366; Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627, 15 A. 917; it cannot grant a new trial: De Chastellux v. Fairchild, 15 Pa. 18; or order an illegitimate child to be regarded as legitimate under terms of prior deed: Appeal of Edwards, 108 Pa. 283; it may not change the effect of judgments or decrees previously rendered: Pennsylvania Company, etc., v. Scott, 346 Pa. 13, 29 A.2d 328.

Id. 362 Pa. at 56, 66 A.2d at 579 (emphasis added).

Thus, it is clearly established in this jurisdiction that even though the legislature possesses the power to promulgate the substantive law,⁶ judicial judgments and decrees entered pursuant to those laws may not be affected, by subsequent legislative changes after those judgments and decrees have become final. Conceding the inviolability of final judgments of the judiciary, even though the legislature possesses the broad power to enact the substantive law, it is difficult to appreciate the thrust of appellants’ argument that the result should be different in this instance because the legislature has the right to prescribe the permissible range of punishment to be meted out for crimes. The legislature’s right to promulgate the penal sanctions for the various offenses is only a small segment of its broader power to promulgate all of the substantive law for this jurisdiction. Appellants have failed to suggest any reason for carving an exception where the power to regulate sentences is involved. To the contrary, our caselaw indicates that the same principles obtain.⁷

This Court has long recognized the applicability of the principles of “the inviolability of final judgments of the judiciary” in criminal cases as well as in civil cases. As early as 1862, this Court held that a statute providing for a graduated deduction from the term of imprisonment for which a prisoner was sentenced, as a reward for good conduct, was a constitutionally impermissible interference with the final judgment of our courts. Commonwealth ex rel. Johnson v. Halloway, 42 Pa. 446 (1862).

It is to be observed, that these questions have no reference to the power of the legislature to prescribe a general rule of law that shall be inconsistent with a previous judicial decree. Such a rule, when it operates on future cases and not retrospectively, is quite legitimate. Their power to legislate in that manner is not to be doubted. But under the act in question the good conduct of a particular individual, under judicial sentence, is to work out for him an abatement of a part of his sentence. In respect to one of the relators who was convicted and sentenced before the law was passed, it is considered very clear that it is a legislative impairing of an existing legal judgment.

Id. at 448.

This language was cited with approval in Commonwealth v. Scoleri, 399 Pa. 110, 134-5, 160 A.2d 215, 227-28, cert. denied, 364 U.S. 849, 81 S.Ct. 93, 5 L.Ed.2d 72 (1960); see also, Commonwealth ex rel. Haun v. Cavell, 190 Pa.Super. 346, 154 A.2d 257 (1959).

Appellants’ argument that the legislature’s power to determine the penological system for this state prevents a usurpation of judicial power in these cases was addressed and answered by this Court in Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942). There, in a learned opinion by Mr. Justice (later Chief Justice) Stern, it was noted that although the General Assembly had the power to provide the courts such measure of discretion in the imposition of sentences as it deemed proper, once that discretion had been exercised in accordance with existing law a final judgment of sentence could not be disturbed by a subsequent legislative change.

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

“The exercise of the power. of parole being but an administrative function which does not impinge upon the judicial power of sentencing the accused in conformity with the law, it follows that the present act may constitutionally be applied to cases where sentences were imposed before its effective date. The sentence is in no wise interfered with, especially since the act provides that a parole cannot be granted until the expiration of the minimum term prescribed by the court. The parolee is not discharged, but merely serves the remainder of his sentence by having his liberty restrained in a manner analogous to that employed in the ‘trusty’ or ‘honor’ system of prison discipline. ‘The parole authorized by the statute does not suspend sentence or operate to shorten the term.’

“It is only if the duration of the sentence is not affected that a parole does not infringe upon judicial power; therefore we are of opinion that the portion of section 21 which attempts to give to the board the power to extend the period of parole beyond the maximum term imposed by the sentence, and section 24, which attempts to give to the board the power to discharge a parolee before the expiration of the parole period, are unconstitutional. The fixing of the term of the sentence is exclusively a judicial function.”

Id. 345 Pa. at 588-89, 28 A.2d at 901 (footnote omitted) (emphasis added).

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

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

Id. 345 Pa. at 588, 28 A.2d at 901, quoting in part from State v. Page, 60 Kan. 664, 668, 57 P. 514, 516. (footnote omitted).

Although in Pennsylvania, indeterminate sentences are commonplace, Act of June 19,1911, P.L. 1055, § 6 as amended, 19 P.S. § 1057 (1964), we have frequently stated that the legal sentence is the maximum sentence. Commonwealth ex rel. Carmelo v. Smith, 347 Pa. 495, 32 A.2d 913 (1943); Commonwealth v. Campbell, 196 Pa.Super. 380, 175 A.2d 324 (1961), cert. denied, 371 U.S. 901, 83 S.Ct. 203, 9 L.Ed.2d 164, reh. den., 371 U.S. 959, 83 S.Ct. 498, 9 L.Ed.2d 507; Commonwealth ex rel. Monaghan v. Burke, 169 Pa. Super. 256, 82 A.2d 337 (1951), cert, denied, 342 U.S. 898, 72 S.Ct. 233, 96 L.Ed. 673; Commonwealth ex rel. Byers v. Burke, 164 Pa. Super. 438, 65 A.2d 424 (1949); Commonwealth ex rel. Webb v. Cain, 158 Pa.Super. 222, 44 A.2d 606 (1945). The reason being that while the minimum sentence determines parole eligibility, Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974). See generally, Act of Aug. 6, 1941, P.L. 861, §§ 1-34, as amended, 61 P.S. §§ 331.1-331.34 (Supp.1974), the maximum sets forth the period of time that the state intends to exercise its control over the offender for his •errant behavior. The judicial discretion is the determination of the period of control over the person of the offender in view of the nature of the crime, the background of the defendant and the other pertinent considerations for such a decision. See Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). It is this exercise of discretion that the rule of the “inviolability of final judgment” seeks to protect. The institution in which the sentence is to be served, the objects sought to be accomplished during this period of control and all of the other penological considerations are not primarily judicial functions. Thus the Cain Court properly concluded that those portions of the statute which did not alter the judicial decision as to the length of time of state control over the offender did not impinge upon the traditional judicial sentencing power and thus did not alter or modify the judicial sentence which had become final.⁸ On the other hand, that Court found unconstitutional those provisions of the Act in question which would have permitted an alteration of the duration of the sentence.

In Pennsylvania we embraced the concept of a tripartite government with three equal, separate and autonomous branches in an effort to prevent governmental power from becoming concentrated into a single body. See Commonwealth ex rel. Carroll v. Tate, supra; Commonwealth v. Mathues, supra; De Chastellux v. Fairchild, supra. It was believed that each branch would act as a check on the other and by this diffusion of power prevent tyranny where the rights of the individual citizen would be ignored. See generally, Commonwealth ex rel. Carroll v. Tate, supra; Wilson v. Philadelphia School District, supra; Commonwealth v. Mathues, supra; De Chastellux v. Fairchild, supra. While this consideration motivated the adoption of this form of government, now that this format is firmly entrenched there are other considerations which require the perpetuation of the principle of the “inviolability of final judgment.”⁹ One such example was alluded to in Commonwealth ex rel. Johnson v. Halloway, supra. In that decision this Court pointed out that the subsequent statute might well have frustrated the sentencing decision because it introduced factors not considered at the time the sentence was imposed. An even more graphic example of how a retroactive application can completely frustrate the judicial discretion and bring about a miscarriage of justice can be found in the appeal of Mr. Sutley. Although the court accepted a plea of possession of marijuana, the testimony of the arresting officer established a clear case of sale. Trooper Oliver’s statement indicated that on September 12, 1970, at approximately 5:20 P.M., he purchased from James W. Sutley a substance which was later identified to be marijuana. At the time of the sentencing hearing, which was conducted by a judge other than the one who had accepted the plea, the following statement occurred:

THE COURT: Well, the problem we’ve had concerning Mr. Sutley all along is where he is going to live and what he is going to do. We’ve had him living at various places. We had him on the work release program for four days when it turned out he was busted, arrested for this charge of selling marihuana. I don’t know why the District Attorney reduced it down to possession. It appeared as if the offense was reasonably clear. I didn’t take the plea.

It appears that although the sentencing judge was convinced that the offense amounted to a sale of a controlled substance rather than merely possession, he was nevertheless content to proceed with sentencing in view of the flexibility afforded to Mm under the sentencing provisions of the former Act.¹⁰ We are therefore faced with a situation which is quite commonplace where a plea to a lesser offense is accepted because the sentence range for that offense affords the court an adequate opportunity to punish the offender for the actual conduct committed. If, however, the new Section is held to apply in this instance and a resentencing is required, the court is powerless to impose a new sentence which would be commensurate with the true nature of the offense. Thus, not only does such a result completely distort the exercise of judicial discretion which permitted the plea to the lesser offense, but it also frustrates the legislative purpose sought to be achieved by a new Act since the new provision was specially designed only for those who committed the crime of possession and not for those who were engaged in the unlawful sale or distribution of controlled substances.¹¹

Finally, the dissenting opinion by Mr. Justice ROBERTS raises the question of whether the Amendment may be justified on the basis of the exercise of the pardoning power of the legislature. Initially, it should be noted that this question was not raised by the litigants themselves. Ordinarily such issues should therefore not be considered sua sponte by an appellate court. Phillips Home Furnishings, Inc. v. Continental Bank, 467 Pa. 43, 354 A.2d 542 (1976); Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975). See also Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). However, since we are sustaining the trial court’s findings of unconstitutionality and because the matter is one of public concern, we will discuss the merits of this contention.

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

Article IV Section 9 of the State Constitution expressly provides:

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

Further, the composition of the Board of Pardons is set forth by paragraph (b) of the same section of the Constitution:

“It shall consist of the lieutenant governor .who shall be the chairman, the attorney general and three members appointed by the governor with the consent of two-thirds of the members elect of the Senate . . . ”

The specificity in defining the limitations of the express grant of the power of pardon would negate an inference that the Constitution intended to confer an implied power of pardon free of any restrictions in another branch of government. It would require an unwarranted distortion of the express language of our Constitution to infer that an implied power of pardon was conferred in the legislature by that document.

While the federal courts have adopted the principle of the English common law which recognized an inherent power of pardon in the legislative branch under that body’s supreme lawmaking power, see United States v. Hughes, 175 F. 238 (W.D.Pa.1892) and United States v. Hall, 53 F. 352 (W.D.Pa.1892), there is nothing in the jurisprudence of this Commonwealth to suggest that we have accepted that concept as part of our governmental system. , To the contrary, our caselaw has shown the exclusivity of the power as vested in the executive branch. Commonwealth ex rel. Banks v. Cain, supra, 345 Pa. at 585, 28 A.2d at 899-900. See also Commonwealth ex rel. Cater v. Myers, 412 Pa. 67, 194 A.2d 185 (1963). While the law permits a liberal construction of our Constitution, Likens’ Petition, 223 Pa. 456, 72 A. 858 (1906), a power does not inhere to the legislature if it has specifically been withheld or entrusted to another co-equal branch of government. See Commonwealth ex rel. Kelley v. Keiser, 340 Pa. 59, 16 A.2d 307 (1940).

Not only do we find that there is no power of pardon or commutation in the legislature and that the power is specifically and singularly granted to the executive branch, but it is equally clear from the very language of the resentencing amendment that the legislature was not attempting to exercise the power of pardon.¹² As defined by this Court, pardon is:

“the exercise of the sovereign’s prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense: Diehl v. Rodgers, 169 Pa. 316, 319, 32 A. 424, 425; Commonwealth v. Quaranta, 295 Pa. 264, 273, 145 A. 89, 93; Commonwealth v. House, 10 Pa.Super. 259, 264, 265.” Commonwealth ex rel. Banks v. Cain, supra, 345 Pa. at

584-5 28 A.2d at 899.

The amendment in question in no way relieves the offender from all legal disabilities resulting from his conviction. Instead, it requires his resentencing if the penalty under the new law is less than that under the prior law and further, provides for an expungement of his record for the prior offense only to the extent where the grade of the prior offense is greater than the offense to which he was resentenced. Thus, the legislature specifically intended that the individual would still be required to serve a sentence and the stigma attached to the conviction would remain.

Accordingly, the Order of the Court of Common Pleas of Mercer County is affirmed.

JONES, former Chief Justice did not participate in the decision of this case. POMEROY, J., files a concurring opinion. ROBERTS, J., files a dissenting opinion. MANDERINO, J., files a dissenting opinion.

1 . See The Drug, Device and Cosmetic Act of 1961, Act of September 26, 1961, P.L. 1664, § 1, 35 P.S. § 780-1 et seq. (1964) (now repealed).

2 . See Act of April 14, 1972, P.L. 233, No. 64, § 13(a)(16), (b), 35 P.S. § 780-113(a)(16), (b) (Supp.1976-77).

3 . Id. § 13(a)(31), (g). Under the prior law, a first offense conviction for possession of any amount was subject to penalties including a fine not exceeding two thousand dollars and a term of incarceration in a state correctional institution for not less than two nor more than five years. See Act of September 26, 1961, P.L. 1664, § 20(c), 35 P.S. § 780 -20(c) (1964) (now repealed).

4 . See Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202(9), 17 P.S. § 211.202(9) (Supp. 1976-77).

5 . The fact that the distinctions in some areas may be obscure does not lessen the responsibility of this Court to be ever vigilant for any encroachment upon the authority of the judicial branch.

“It has become the duty of the court to temporize no longer, but to resist, temperately, though firmly, any invasion of its province, whether great or small.” De Chastellux v. Fairchild, 15 Pa. 18, 21 (1850).

6 . Art. II, Sec. 1 provides: “The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.”

7 . The power of sentencing is one of the most critical and important duties vested in the judiciary. It is exercised on a case-by-case basis, after careful attention has been given to a myriad of facts including the gravity of the offense, the rehabilitative needs of the defendant and the necessity to adequately protect the public.

Pennsylvania’s procedure of indeterminate sentencing carries with it an implicit adoption of the philosophy of individual sentencing. This necessitates the granting of broad discretion to the trial judge, who must determine, among the sentencing alternatives and the range of permissible penalties, the proper sentence to be imposed. The importance of this discretion cannot be overemphasized; many commentators argue that it is one of the most important . . . powers vested in the trial court today.

Commonwealth v. Martin, 466 Pa. 118, 130-31, 351 A.2d 650, 656-57 (1976) (footnotes omitted).

8 . While the Cain Court suggested that even a legislative interference with the minimum sentence might constitute an unwarranted usurpation of judicial authority, we need not in this opinion reach that question. Commonwealth ex rel. Banks v. Cain, supra, 345 Pa. at 588, 28 A.2d at 901.

9 . The dissenters argue that the issue raised herein falls within the gray area and that we should not condemn legislation as violating the “separation of powers” doctrine in such a case unless it goes to the very heart of that doctrine, i. e., creating that type of tyrannical situation that threatens individual rights. As we have indicated, the precedent in this jurisdiction has made it abundantly clear that we have long recognized a legislative attempt to alter, modify or nullify a final judicial judgment or decree as a usurpation of judicial authority. For this reason alone the argument is unpersuasive.

Moreover we do not believe that we should adopt such a myopic view where there is a claimed violation of the “separation of powers” doctrine. While the dissenters are correct in observing that a tripartite government was selected because of the desire to avoid the tyranny which frequently flows from a government where the total power is centralized in a single source rather than from a consideration of the efficiency that might be obtained from a diffusion of governmental power, it does not follow that we should display a callous disregard to the effect of such legislative action upon the efficient operation of a component part of our government when a dispute arises as to their respective areas of responsibility. We do not believe that the rights of the citizens are unaffected where the proposed legislation results in emasculating one of the branches of government so as to render it incapable of performing effectively its assigned responsibilities.

Nor do we believe that the harm is ameliorated because the provision has general application rather than being aimed at individual instances. While this factor permits the provision to comport to the constitutional provisión prohibiting special legislation, see Pa. Const, art. 3, § 32 (1968), it does not avoid the prime evil, i. e., that it is a legislative usurpation of judicial authority.

10 . See n. 3, supra.

11 . Similarly, the evidence adduced at the sentencing hearing of appellant Parker established that although he too had entered a plea of guilty to mere possession of marijuana, Parker was in fact involved in the distribution of the substance to juveniles. The trial judge however accepted the plea because he believed the punishment for that crime was too severe. While the dissenters argue that the statute promotes uniformity, under these circumstances, it would distort the very purpose of the legislative amendment to permit this appellant to reap the benefit of the resentencing provision.

12 . The power of commutation is an adjunct of the pardoning power, and can be granted only by the authority in which the pardoning power resides, Bouvier, Law Dictionary, Vol. I (Rawle Rev. 1914). Therefore our finding that the legislative branch does not possess the power of pardon necessarily means that it also does not have the power of commutation.