Com. v. McMullen

961 A.2d 842

COMMONWEALTH of Pennsylvania, Appellant v. Richard McMULLEN, Appellee.

Commonwealth of Pennsylvania, Appellant v. Richard McMullen, Appellee.

No. 43 EAP 2006.

No. 44 EAP 2006.

Supreme Court of Pennsylvania.

Argued March 7, 2007.

Resubmitted October 23, 2008.

Decided December 18, 2008.

Joan Weiner, Esq., Hugh J. Burns, Jr., Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania (43 EAP 2006, 44 EAP 2006).

Karl Baker, Esq., for Richard McMullen (43 EAP 2006, 44 EAP 2006).

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.

OPINION

Justice EAKIN.

Appellee pled guilty to stalking, terroristic threats, harassment by communication, and harassment. Although sentenced to 11 and one-half to 23 months incarceration, appellee was granted immediate parole to passive house arrest, followed by two years reporting probation. The trial court also ordered appellee not to contact the victim and to stay away from her.

Appellee left the jurisdiction without permission, did not follow through on his treatment programs, and began calling the victim from Florida — in one such call he threatened to kill her "by the end of the year." Appellee was arrested in Florida and extradited to Pennsylvania. After a probation violation hearing at which the charges were not disputed, the trial court revoked his probation and re-sentenced him to two and one-half to five years imprisonment for stalking, a concurrent two and one-half to five years for terroristic threats, a consecutive six to 12 months for harassment by communication, and no penalty for harassment. The trial court also found appellee guilty of six counts of criminal contempt. For each contempt conviction, appellee was sentenced to a consecutive prison term of two months and 28 days to five months and 29 days. Appellee appealed, claiming the six consecutive terms for contempt exceeded the statutory maximum for indirect criminal contempt and he was denied his right to a jury trial.

The Superior Court vacated the trial court's contempt order and remanded for further proceedings. Commonwealth v. McMullen, 881 A.2d 841, 853 (Pa.Super.2005). The court determined the trial court was authorized to impose a fine, imprisonment, or both for appellee's contemptuous conduct, but observed the court order that appellee disobeyed did not specify the term of imprisonment for violating the order. Id., at 849. The court found the applicable term of imprisonment was set forth in 42 Pa.C.S. § 4136(b), which provides "punishment for a[n] [indirect criminal contempt] specified in subsection (a) may be by fine not exceeding $100 or by imprisonment not exceeding 15 days. . . ."¹ Consequently, that 15-day limitation rendered illegal each two-month 28-day to five-month, 29-day sentence. McMullen, at 849 (citation omitted).

Further, the court determined under § 4136(a) appellee was entitled to an explanation of the nature of the proceedings, as well as to demand a jury trial. Id., at 850. Based on its review of the hearing transcript, the court found no indication appellee "was advised in advance of or during the hearing that the five unlawful phone communications with the victim and [his] fleeing the jurisdiction were being treated as potential indirect criminal contempt violations," or notified of the concomitant right to a jury trial. Id. Thus, the court instructed on remand appellee be given the option to elect a jury trial for the contempt violations. Id., at 851.

We granted allowance of appeal to resolve the issue, as the Commonwealth framed it:

Did the [l]egislature unconstitutionally usurp this Court's authority when it enacted a statute that grants a jury trial in all indirect criminal contempt cases involving the violation of a restraining order or injunction, and limits any sentence of imprisonment to [15] days?

Petition for Allowance of Appeal, at 2.

As this is a purely legal question, our standard of review is de novo, and our scope of review is plenary. In re Milton Hershey School, 590 Pa. 35, 911 A.2d 1258, 1261 (2006) (citation omitted). A statute will only be found unconstitutional if it "clearly, palpably and plainly" violates the Constitution. Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 388 (2000) (citations omitted). There is a strong presumption legislative enactments are constitutional. Id.; see also 1 Pa.C.S. § 1922(3) (presumption legislature did not intend to violate federal and state constitutions when enacting legislation). The party seeking to have a statute held unconstitutional carries a heavy burden, of persuasion. MacPherson, at 388.

The Commonwealth contends the legislature unconstitutionally impinged upon this Court's authority when it enacted § 4136 to provide the right to a jury trial in all indirect criminal contempt proceedings involving a restraining order or injunction, while limiting the sentence for such conviction to 15 days.² The Commonwealth argues the right to a jury trial is a procedural right and any enlargement or restriction of it lies within this Court's exclusive power. Further, the Commonwealth argues a jury trial is warranted only in "serious" cases — those where the authorized sentence of imprisonment exceeds six months. Therefore, by creating a right to a jury trial for indirect criminal contempt, while limiting the penalty to 15 days, the Commonwealth argues the legislature eviscerated this Court's determination of when a jury trial is warranted and has violated the doctrine of separation of powers.

Appellee argues the Pennsylvania Constitution only prevents the enactment of a statute inconsistent with this Court's rules, and such is not the case here because this Court has not issued any rule depriving a person charged with criminal contempt of the right to a jury trial. Further, appellee argues this Court promulgated several Rules of Criminal Procedure, including Pa. R.Crim.P. 140-42, intended to implement a "series of statutes," and § 4136 is among that series. Appellee's Brief, at 7. Appellee next argues the legislature can expand the constitutional right to a jury trial above its constitutional floor. Appellee also argues the punishment in § 4136(b) is a substantive enactment; thus, it does not implicate this Court's rule-making powers. Appellee ultimately argues § 4136 is part of a statutory scheme that provides a reasonable means for imposing punishments and providing due process protections.

The right to a jury trial under the Sixth Amendment to the United States Constitution and Article I, §§ 6, 9 of the Pennsylvania Constitution applies when a criminal defendant faces a sentence of imprisonment exceeding six months. Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86, 89 (1974); see also Lewis v. United States, 518 U.S. 322, 327-28, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996). Charging a defendant with two counts of a petty offense, where each count has a maximum term of imprisonment of six months or less, and therefore carries an aggregate potential prison term greater than six months, does not transform the multiple petty offenses into one serious offense where the jury trial right would apply. Id., at 327-28, 116 S.Ct. 2163. Appellee does not have a constitutional right to a jury trial, because the maximum sentence under § 4136(b) is 15 days imprisonment; aggregation of penalty, potential or real, does not change this basic principle.

This Court retains exclusive rule-making authority to establish rules of procedure. Pa. Const. art. V, § 10(c);³ see also Payne v. Commonwealth Department of Corrections, 582 Pa. 375, 871 A.2d 795, 801 (2005). "Because this Court's rulemaking authority extends only to procedural law, the threshold inquiry in whether a ... statute violates Article V, [§] 10(c) is whether the statute is procedural or substantive...." Id. (citation omitted). While the legislature cannot enact procedural law, it can enact substantive law. Id. As a general rule, substantive law creates, defines, and regulates rights; procedural law addresses the method by which those rights are enforced. Id.

This Court has concluded, "[T]he right to trial by jury is not a `substantive right,' but a right of procedure through which rights conferred by substantive law are enforced." Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326, 1329 (1982) (citations omitted). Appellee concedes this point, stating, "The Commonwealth correctly suggests that the right to a jury trial is a procedural matter." Appellee's Brief, at 14. Sorrell struck down 42 Pa. C.S. § 5104(c) as unconstitutional and suspended it; Section 5104(c) provided, "In criminal cases the Commonwealth shall have the same right to trial by jury as does the accused." Sorrell, at 1328.⁴

This Court has issued a few decisions since Sorrell indicating the right to a jury trial may be a substantive right. See Mishoe v. Erie Ins. Co., 573 Pa. 267, 824 A.2d 1153, 1156 (2003); Wertz v. Chapman Twp., 559 Pa. 630, 741 A.2d 1272, 1279 n. 6 (1999) ("As to a statutory right to a trial by jury under the [Pennsylvania Human Relations Act], we merely note that it is not this court's role to sit as a super legislature. While ... this court may believe that it would be in the best interest ... to permit a trial by jury, the fact ... remains that the right to a jury trial was not made a part of the PHRA."). Those cases, however, do not overrule or even mention Sorrell, nor do they specifically state or hold a jury trial is a substantive right. Sorrell has not been overruled. Though Sorrell dealt with § 5104(c) and not § 4136, its pronouncement a jury trial is a procedural right was not restricted to § 5104(c), and § 5104(c) was struck down because it gave the legislature the power to enlarge the jury trial right. Sorrell unequivocally concluded a jury trial is a procedural right.

Regarding appellee's claim this Court has not promulgated a rule inconsistent with § 4136, we find it is unnecessary for a procedural s...