Commonwealth v. Eisenberg, M., Aplt

[J-21-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 34 WAP 2012
:
Appellee : Appeal from the Judgment of Sentence of
: the Court of Common Pleas of Allegheny
:
County entered July 19, 2011 at No. CP-
v. 02-CR-0001850-2011.
:
:
MATTHEW STEVEN EISENBERG, :
:
Appellant : ARGUED: April 9, 2013

OPINION

MR. CHIEF JUSTICE CASTILLE DECIDED: AUGUST 19, 2014

The controlling issue in this unusual direct appeal from a conviction arising under

the Gaming Act1 is whether imposition of a mandatory minimum fine of $75,000 for a

conviction of a first-degree misdemeanor theft of $200 violates the prohibition of Article

I, Section 13 of the Pennsylvania Constitution against excessive fines.2 For the reasons

set forth below, we conclude that, under the circumstances, the fine imposed indeed is

unconstitutionally excessive. Accordingly, we vacate that portion of the judgment of

sentence involving the mandatory fine and we remand to the trial court to determine, in

1
Pennsylvania Race Horse Development and Gaming Act, 4 Pa.C.S. §§ 1101-1904.
2
The Pennsylvania Constitution provides: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel punishments inflicted.” PA. CONST. art. I, § 13.
its discretion, the appropriate fine to be imposed commensurate with appellant’s

offense.

I. Background and Jurisdiction

Appellant’s conviction arose from a guilty plea, and thus the facts are undisputed.

Between November 26 and November 30, 2010, appellant, a poker dealer at the Rivers

Casino in Pittsburgh, took $200 in poker chips from his gaming table by sliding chips

from the pot into his personal tips box. After casino security personnel and state police

reviewed video tapes of the theft, appellant was arrested and charged with one count of

Unlawful to Take/Claim with Intent to Defraud under Section 1518(a)(17) of the Gaming

Act. See Notes of Testimony, Plea and Sentencing Hearing, 07/19/11, at 11

(hereinafter “N.T.”).3

On July 19, 2011, appellant entered a plea of guilty to the single theft charge,

which the Gaming Act grades as a first-degree misdemeanor. See 4 Pa.C.S. §

1518(b)(1)(ii). During the plea and sentencing hearing, the trial prosecutor adverted to

a negotiated plea agreement and addressed the trial court:
In exchange for [appellant’s] plea to the sole count of the
Information, we would ask that [appellant] be placed on a period of

3
Section 1518(a)(17) provides:
It shall be unlawful for an individual to claim, collect or take, or attempt to
claim, collect or take, money or anything of value in or from a slot
machine, gaming table or other table game device, with the intent to
defraud, or to claim, collect or take an amount greater than the amount
won, or to manipulate with the intent to cheat, any component of any slot
machine, table game or table game device in a manner contrary to the
designed and normal operational purpose.
4 Pa.C.S. § 1518(a)(17).

[J-21-2013] - 2
 probation to be set by the Court; and there, also, is a matter of a fine, Your
Honor. I don’t know if you want to address that at this point.

N.T., at 2-3. The prosecutor then recited the language of Section 1518(b)(2)(i) of the

Gaming Act, which mandates a fine of “not less than $75,000 nor more than $150,000 if

the person is an individual” who commits a first violation of subsection (a)(17), 4 Pa.C.S.

§ 1518(b)(2)(i)(A). Appellant’s counsel agreed to this reading of the statute, but noted

that he was prepared to make an argument challenging the constitutionality of the

provision. N.T., at 3-4. The trial court then asked counsel if there was “anything you

want to tell [the court] about your client” prior to sentencing. Counsel relayed to the

court that at the time of sentencing appellant was 26 years old, he had no prior

convictions, and he had been unemployed since the incident as he was enrolled full-

time as a student in a medical assistant program at a vocational school in Pittsburgh.

Counsel also noted that appellant was living with his fiancée, the couple were expecting

their first child, and they did not own a house. N.T., at 4.

Following the plea colloquy, counsel stated the grounds for objection to the mandatory

fine as follows:
For the record, we object to that fine being imposed for various
reasons.
The first and foremost, we believe it to be unconstitutional under
the Pennsylvania Constitution and the United States Constitution as cruel
and unusual punishment. The unusual is really the word. As well, if you
look at any other theft crime that the Commonwealth has ever brought
against a defendant, there’s nothing that comes close to imposing a fine
that we have here. For example, we could steal, you know, $10,000 from
a church. We could steal $20,000 from a mom and pop store down the
street. We could steal $10,000 from this courtroom or from anybody in
this courtroom. The fine is not $75,000. It’s a draconian law. . . .
We understand how it’s written, Your Honor. I know the Court does
as well; and we just do not believe that is proper in this particular case. . .
. [W]e couldn’t even find a felony theft charge that would carry even close
to this kind of a fine. I mean, this is more than you impose in any
particular case.

[J-21-2013] - 3
 What we’re doing here, we’re protecting the rights of the casino.
We have -- the Legislature has placed the casino above everybody else in
Pennsylvania. Not only the church, but any establishment whatsoever is
below the casino in what we’re trying to protect. We believe that to be
incorrect and unconstitutional. We understand the Court’s requirements,
but we would like to be heard on that, that the fine does not match the act.
That’s where we are.

Id. at 12-14.

After the prosecutor declined to respond, the trial judge noted that he believed

the case “will not end today,” he was “sensitive” to the defense argument, and he

“agree[d] in large part.” The judge added that he knew of no other entity given the sort

of protection afforded the casino in this scenario, noting that, in theory, he could impose

a fine of $150,000 for a $200 theft and had no discretion but to impose $75,000 as a

minimum fine. Without specifically responding to appellant’s claim of unconstitutionality,

the judge simply stated that he was obligated to “interpret the law as it reads,” and

imposed the mandatory minimum fine. Id. at 14-15.

Appellant filed a post-sentence motion objecting, inter alia, that the mandatory

fine was excessive; that it was within the court’s power to require that the fine relate to

the crime; and that the fine was “blatantly unconstitutional on its face,” as it violated the

excessive fines proscription of Article I, Section 13 and the prohibition against cruel and

unusual punishment under the Eighth Amendment. The Commonwealth filed a

responsive brief arguing that, under the Gaming Act, only the Pennsylvania Supreme

Court could resolve the constitutionality of the mandatory fine provision and, in any

event, the provision was constitutional.

On November 15, 2011, the trial court filed an opinion that began by noting that

appellant’s post-sentence motion was deficient because his various objections were not

supported by developed arguments or case references, and thus, “many, if not all of the

claims, have been waived for failure to develop the argument.” Trial Ct. Op. at 2-3.

[J-21-2013] - 4
Nevertheless, the court addressed each claim. As relevant here, the court rejected the

excessive fines claim by noting that this Court then had pending before it a discretionary

appeal in Commonwealth v. Carela-Tolentino, 17 A.3d 922 (Pa. 2011), posing the

question of whether the imposition of a mandatory minimum fine of $25,000 for drug

trafficking offenses violated the Eighth Amendment or Article I, Section 13.4 In the trial

court’s view, the eventual decision in Carela-Tolentino “will shed valuable light,” but

absent such guidance, it saw no merit in the claim. Trial Ct. Op. at 5-6.5

Appellant appealed to the Superior Court, claiming that the mandatory minimum

fine was excessive as a statutory matter and as a constitutional matter. In its

responsive brief, the Commonwealth argued that appellant’s constitutional claim was

within the exclusive appellate jurisdiction of this Court pursuant to Section 1904 of the

Gaming Act, which provides, in relevant part, that this Court “shall have exclusive

jurisdiction to hear any challenge to or to render a declaratory judgment concerning the

constitutionality of this part.” 4 Pa.C.S. § 1904. The Commonwealth added that: “The

‘part’ referred to in Section 1904 is the entirety of the Gaming Act.” Commonwealth’s

Brief at 13 (quoting DePaul v. Commonwealth, 969 A.2d 536, 538 n.1 (Pa. 2009) (Court

entertained constitutional challenge to Section 1513 of Gaming Act prohibiting political

contributions by certain individuals involved in gaming industry)). On October 9, 2012,

4
The Supreme Court later summarily affirmed, without an opinion, the order of the
Superior Court, upholding the fine imposed on Carela-Tolentino. See 48 A.3d 1221,
1222 (Pa. 2012) (per curiam). This author filed a Dissenting Statement, which was
joined by Madame Justice Todd.
5
The court rejected appellant’s Eighth Amendment argument by noting the settled
review paradigm for such claims, then adding that appellant did not support his
statement of unconstitutionality, and the court would not do “counsel’s heavy lifting for
him.” Trial Ct. Op. at 6-7.

[J-21-2013] - 5
the Superior Court transferred the appeal to this Court, finding that the constitutional

challenge was within our exclusive appellate jurisdiction under Section 1904.6

We did not direct additional briefing: the matter proceeded to oral argument upon

the briefs filed in the Superior Court. Neither party has challenged the propriety of the

transfer order, or the notion that the matter is properly before this Court on direct appeal

under Section 1904. It is not difficult to imagine a counter-argument on the jurisdictional

question, given the narrowness of the constitutional challenge to the Gaming Act’s fines

provision. On the other hand, it is neither settled nor certain that a constitutional

challenge to a specific application of a provision of the Gaming Act is not encompassed

within the appellate jurisdiction contemplated by Section 1904. No challenge to

jurisdiction having been raised, and the absence of jurisdiction not being apparent, we

will accept the appeal and proceed to the parties’ arguments. Contrast Pennsylvania

State Troopers Ass’n v. Commonwealth Gaming Control Bd., 920 A.2d 173, 179-80 (Pa.

2007) (finding no jurisdiction under Act where jurisdiction was disputed and where

essence of challenge implicated Board’s implementation of Act rather than

constitutionality of Act).7

6
The Superior Court transferred the appeal pursuant to 42 Pa.C.S. § 5103(a) (transfer
of erroneously filed matters) and Pa.R.A.P. 751(a) (“If an appeal or other matter is taken
to or brought in a court . . . which does not have jurisdiction of the appeal or other
matter, the court . . . shall not quash such appeal or dismiss the matter, but shall
transfer the record thereof to the proper court of this Commonwealth . . . .”).

7
As noted supra, appellant also raises a non-constitutional challenge, claiming that the
mandatory minimum fine is inconsistent with the fines scheme outlined in the Crimes
Code. We are mindful of the canon of constitutional avoidance, see generally 1 Pa.C.S.
§ 1922 and Commonwealth v. Bavusa, 832 A.2d 1042, 1050-51 (Pa. 2003), and we
emphasize that our proceeding to the constitutional issue here should not be read as
approval of the Superior Court’s manner of proceeding in this case. Before transferring
an appeal to this Court on the grounds that a constitutional challenge to the Gaming Act
is present and vests exclusive jurisdiction with us, the Superior Court should be mindful
(continuedM)
[J-21-2013] - 6
 II. Reviewability: Waiver

The Commonwealth contends that appellant waived his claim that the $75,000

mandatory minimum fine for his $200 theft is excessive under Article I, Section 13 of the

Pennsylvania Constitution.8 The Commonwealth argues that appellant’s plea of guilty

operated to waive all defenses and defects except claims sounding in a lack of

jurisdiction, invalid guilty plea, or illegal sentence.9 The Commonwealth, citing

(Mcontinued)
of whether other, non-constitutional bases for decision are raised which may resolve the
appeal. Here, if appellant’s parallel statutory claim were meritorious, the transfer could
have been avoided. Ordinarily, then, our jurisprudence would dictate remanding the
case to the Superior Court to address the statutory claim if its resolution could
potentially obviate the need to reach the constitutional question.

Here, however, it appears that the statutory claim is facially meritless.
Appellant’s theory is that, because Section 1101(4) of the Crimes Code caps fines for
first-degree misdemeanors at $10,000, the Gaming Act’s $75,000 mandatory-minimum
fine constitutes an illegal sentence. See Appellant’s Brief at 6-7. However, subsection
(4) is subject to the proviso that a first-degree misdemeanant may be required to pay
“any higher or lower amount specifically authorized by statute.” 18 Pa.C.S. §
1101(9). Because the Gaming Act is a statute authorizing a higher amount, imposition
of the $75,000 fine is not contrary to the plain language of Section 1101 when read as a
whole. Accord Commonwealth’s Brief at 11.

Ultimately, then, returning the case to the Superior Court would be wasteful of
judicial resources, and the constitutional challenge to the Gaming Act continues to
anchor our direct appeal jurisdiction. Thus, we proceed to address appellant’s
constitutional claim.
8
Appellant also raises additional constitutional claims and sub-claims regarding: (1)
whether the fine is cruel punishment under the U.S. or Pennsylvania Constitution; (2)
whether the fine is excessive under the U.S. Constitution; (3) whether the fine is
unconstitutional on its face; and (4) whether the fine violates due process. In light of our
disposition, we need not pass upon the additional theories. See, e.g., Commonwealth
v. Easley, 396 A.2d 1198 (Pa. 1979) (trial court’s obvious constitutional error obviated
need to address appellant’s additional allegations of trial court error).
9
Although the Commonwealth forwards multiple waiver arguments on appeal, it does
not argue that acceptance of the mandatory fine was a part of appellant’s negotiated
(continuedM)
[J-21-2013] - 7
Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super. 2009), concedes that

“[g]enerally, a challenge to the application of a mandatory minimum sentence is a non-

waivable challenge to the legality of the sentence[,]” but argues that an excessiveness

challenge does not necessarily implicate “legality” if the appellant fails to characterize

the claim as such. The Commonwealth then explains that appellant failed to challenge

the fine in his post-sentence motion or in his Concise Statement of Matters Complained

of on Appeal “on the basis that it is illegal.” On the other hand, the Commonwealth

contends, if appellant’s claim is deemed to implicate discretionary aspects of his

sentence, he failed to properly preserve that claim because he has not included in his

brief a concise statement of reasons relied upon for allowance of appeal, as required by

Pa.R.A.P. 2119(f), where a discretionary sentencing claim is at issue. Commonwealth’s

Brief at 15 (citing Brougher, 978 A.2d at 375 (discretionary sentencing challenge waived

upon Commonwealth’s objection to absence of Rule 2119(f) statement)). Lastly, the

Commonwealth argues that appellant waived any constitutional objection by failing to

state in express terms the specific constitutional grounds for the claim during his plea

hearing. Commonwealth’s Brief at 15-17 (citing, inter alia, In re F.C. III, 2 A.3d 1201,

1212 (Pa. 2010)).

We begin with the question of whether appellant preserved the constitutional

excessive fine claim during his guilty plea hearing. “[I]ssues not raised in the lower

court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).

The issue preservation requirement “ensure[s] that the trial court that initially hears a

(Mcontinued)
plea agreement. There is no suggestion in the written plea agreement or the in-court
discussion and colloquy (summarized above) that appellant’s plea included an
agreement not to challenge the fine; and indeed, appellant’s argument and objection at
the plea hearing exclusively addressed the lawfulness of the fine.

[J-21-2013] - 8
dispute has had an opportunity to consider the issue[,]” which in turn “advances the

orderly and efficient use of our judicial resources[,]” and provides fairness to the parties.

In re F.C. III, 2 A.3d at 1212. Further, “it is incumbent upon one raising the specter that

a statute is unconstitutional to state, at least in somewhat express terms, the specific

constitutional grounds upon which the challenger is basing its attack on the legislation.”

Id.

Appellant adequately preserved his excessive fine claim for Rule 302 purposes

at the plea hearing. Counsel specifically referenced the Cruel Punishments Clause of

Article I, Section 13 of the Pennsylvania Constitution, (as well as the Cruel and Unusual

Punishment Clause of the U.S. Constitution, found in the Eighth Amendment). In

addition, although the argument was somewhat scattered and not particularly

sophisticated, counsel articulated an objection sounding in terms of disproportionality

and excessiveness, focusing on the disproportional relationship of the fine compared to

the amount stolen, and in comparison to the far lesser fines imposable for related, or far

more serious, crimes. Counsel labeled the fine “draconian”; argued that no other theft

offense, and indeed no other felony offense, exposed the defendant to such a fine; and

claimed that “the fine does not match the act” and “is more than you can impose in any

[other] particular case.” Also relevant, for issue preservation purposes, is that the trial

court plainly understood the gravamen of the claim, noting the disconnection between a

theft of $200 and its power under the Gaming Act to impose a fine of $150,000, and its

lack of discretion to impose a fine of less than $75,000. In addition, the court conveyed

at the outset of its remarks, albeit in oblique terms, that the constitutional issue would

ultimately not be resolved in that trial courtroom.10

10
The Commonwealth does not argue that appellant’s claim is waived because it was
insufficiently developed in the optional post-sentence motion he later filed under
Criminal Rule 720.

[J-21-2013] - 9
 We turn to the Commonwealth’s separate argument that appellant’s

constitutional claim does not implicate the legality of the sentence because he did not

so characterize the claim; for that reason, the claim may be construed as implicating the

discretionary aspects of sentence, which required appellant to comply with Rule 2119(f)

to secure review; and appellant failed to so comply. The question of whether a claim

implicates the legality of a sentence can be relevant for a variety of purposes, especially

when a guilty plea is involved.

First, upon entry of a guilty plea, a defendant waives all claims and defenses

other than those sounding in the jurisdiction of the court, the validity of the plea, and

what has been termed the “legality” of the sentence imposed, e.g., Commonwealth v.

Jones, 929 A.2d 205, 212 (Pa. 2007); the Commonwealth’s argument depends upon

this common formulation. Second, the “sentencing legality/sentencing discretion”

dichotomy argued by the Commonwealth (including the role of Rule 2119(f) when a

discretionary sentencing claim is involved) invokes the distinction in Section 9781 of the

Sentencing Code, 42 Pa.C.S. § 9781. Under Section 9781(a), claims implicating the

“legality” of a sentence are reviewable as of right on direct appeal, a fact which operates

to spare the appellant the petition for review process contemplated by Section 9781 and

Rule 2119(f). Third and finally, a determination that a claim implicates the legality of a

sentence also operates to revive a claim otherwise insufficiently preserved below. See,

e.g., Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007) (“[I]f the sentence clearly

implicates the legality of sentence, whether it was properly preserved below is of no

moment, as a challenge to the legality of sentence cannot be waived.”).

As we understand the Commonwealth’s argument, given appellant’s plea, merits

review is available on direct appeal only if his excessive fine claim is deemed to

implicate the “legality” of the sentence for purposes of both guilty plea survival and

[J-21-2013] - 10
Section 9781. This Court has noted, in the issue preservation realm, that the question

whether a claim implicates the legality of a sentence “presents a pure question of law.”

Commonwealth v. Foster, 17 A.3d 332, 340 n.13 (Pa. 2011) (Opinion Announcing

Judgment of Court by Baer, J.). It is no less a pure question of law whether a claim

implicates sentencing legality for other purposes.

In a number of recent cases where the Court has had occasion to discuss “illegal

sentences,” there have been a plethora of expressions, but no abiding consensus. See,

e.g., Foster (Court issued four separate, nuanced opinions explaining preferred

approach to “illegal sentence” question for issue preservation purposes). As we have

most recently explained:
This Court's experience with claims allegedly implicating sentencing
legality has not always been smooth. Complexities can arise from the fact
that a sentencing legality claim can be offered for a variety of reasons,
most commonly to overcome a failure to preserve a sentencing issue by
contemporaneous objection at trial, see Pa.R.A.P. 302, or to secure
review as of right on direct appeal without having to separately petition for
allowance of review. See 42 Pa.C.S. § 9781. Complexities also arise
from disagreement among the members of the Court concerning whether
a particular claim implicates the legality of a sentence. Over the years,
there has been consensus, or solid majority holdings, with respect to
certain discrete claims. The classic instance of an illegal sentence is
where the term imposed exceeds the statutory maximum, see
Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185, 189 (2005), but
there are numerous other instances as well. See, e.g., Commonwealth v.
Vasquez, 560 Pa. 381, 744 A.2d 1280 (2000). The Superior Court, which
addresses sentencing claims on a daily basis in its direct review capacity,
has a developed line of decisional law on the question. See
Commonwealth v. Foster, 609 Pa. 502, 17 A.3d 332, 342-44 (2011)
(Opinion Announcing Judgment of Court by Baer, J.) (collecting cases).

Commonwealth v. Spruill, 80 A.3d 453, 460-61 (Pa. 2013). The constitutional claim

raised here arises in a guilty plea context, and involves a fine rather than a sentence of

imprisonment, two factors distinguishing it from much of the Court’s “illegal sentence”

jurisprudence. But, we have no difficulty in finding the claim reviewable.

[J-21-2013] - 11
 As a matter of plea survival, we note first that the terms of the negotiated plea

agreement, and the record dispute concerning the constitutionality of the mandatory

fine, make clear that the agreement did not require appellant to waive any legal

challenge he might otherwise be permitted to mount concerning the constitutionality of

the fine. And, in this regard, the Commonwealth does not argue that allowing appellant

to pursue his purely legal challenge deprives it of the benefit of its guilty plea bargain.

Guilty pleas are momentous occasions, of course, and the proper entry of such a plea

acts to extinguish virtually all legal challenges that could have been brought upon the

trial, or appeal, of the case. When a negotiated plea includes sentencing terms (or,

more properly, the Commonwealth’s commitment to recommend a certain sentence),

the defendant’s knowing and voluntary acceptance of those terms rightly extinguishes

the ability to challenge a sentence the defendant knew was a proper consequence of

his plea.

But, different considerations logically arise if there has been no actual agreement

as to sentence (or here, as to the “fine” aspect of the punishment to be imposed). In

that circumstance, the defendant’s appeal does not deprive the Commonwealth of the

benefit of its bargain. Moreover, it would be illogical and wasteful to force defendants,

otherwise willing to accept responsibility, waive significant rights, and conserve judicial

resources, to proceed to trial merely to preserve a sentencing claim unrelated to guilt or

innocence. See generally 5 W AYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 21.6(a), at

921 & nn. 79-80 (3d ed. 2007 & Supp. 2013-14) (suggesting general rule that at least

when sentence objected to on appeal was not itself part of plea agreement, objections

to sentence imposed may be entertained notwithstanding plea) (collecting cases);

Commonwealth v. Reed, 374 S.W.3d 298, 300-01 (Ky. 2012) (noting that plea

agreements are contracts between government and accused; holding that where plea

[J-21-2013] - 12
agreement permitted defendant to dispute government’s request for imposition of

$1,000 fine before trial judge, issue was reviewable notwithstanding plea; and ultimately

holding that fine imposed was contrary to law) (applying Kentucky law respecting pleas).

Notably, the Superior Court has a line of decisions recognizing that,

notwithstanding the rote language that a guilty plea extinguishes all sentencing claims

but those implicating legality, in point of fact the calculus is different if the negotiated

plea did not encompass a commitment respecting sentencing. Our intermediate court

has suggested that even appellate claims implicating purely discretionary aspects of

sentencing are available in that instance, subject, of course, to the restrictions in

Section 9781 and Rule 2119(f). See, e.g., Commonwealth v. Tirado, 870 A.2d 362, 365

n.5 (Pa. Super. 2005) (collecting cases). For all of these reasons, we hold that

appellant’s otherwise-preserved challenge to the mandatory fine, whether deemed to

implicate sentencing “legality” or not, was not extinguished for appeal purposes, as a

matter of law, merely because he entered a guilty plea.

But, we must still contend with sentencing “legality” because of the dichotomy in

Section 9781. Appellant’s fines challenge obviously does not implicate the lower court’s

discretionary act: the trial court’s only discretion was to choose a dollar figure between

$75,000 and $150,000, and appellant’s complaint is that the statute is unconstitutional

to the extent it afforded no discretion to impose a lesser fine than $75,000. Moreover,

appellant’s claim is not that there was some error by the trial court raising a substantial

question that the sentence imposed was inappropriate under the Sentencing Code.

See 42 Pa.C.S. § 9781(b) (allowance of appeal) (“Allowance of appeal may be granted

at the discretion of the appellate court where it appears that there is a substantial

question that the sentence imposed is not appropriate under this chapter.”). The claim

is that the fine required by the Gaming Act was unconstitutional. In this case,

[J-21-2013] - 13
particularly since we are not presented with the more common and divisive

circumstance of “illegality-claimed-to-overcome-waiver-below,” we have no difficulty in

concluding that appellant’s challenge implicates illegality as conceived in Section 9781.

This conclusion aligns with our holding in somewhat analogous circumstances.

In Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005), the appellant pleaded guilty to

burglary and several other offenses, and was sentenced to a twenty-five year

mandatory minimum term of imprisonment as a third-time offender under the “three

strikes law,” 42 Pa.C.S. § 9714. On appeal, he claimed that the lower courts erred in

interpreting Section 9714, arguing that he was instead a two-strike offender. The

Shiffler Court found that the claim implicated the legality of the sentence because, “in

the absence of the twenty-five year mandatory minimum sentence provided for in

Section 9714(a)(2), appellant would have been exposed to a maximum sentence of only

twenty years of imprisonment for the burglary conviction. If the three strikes provision

were deemed inapplicable, appellant's sentence would exceed the lawful maximum, and

hence, would be deemed illegal.” 879 A.2d at 189 (citation and footnote omitted). In

this appeal, if the Court were to find that the mandatory fine dictated by Section

1518(b)(2) of the Gaming Act is constitutionally excessive, the non-discretionary fine

imposed would be illegal.

In sum, we hold that appellant’s claim, challenging the Gaming Act’s mandatory

fine on grounds that it is unconstitutionally excessive under Article I, Section 13,

implicates the legality of the sentence for purposes of Section 9781. Cf. In re M.W., 725

A.2d 729, 731 (Pa. 1999) (claim by juvenile concerning lower court’s authority to order

restitution implicates legality of dispositional order and not exercise of discretion;

adverting generally to court’s power to review issues respecting lawfulness of

sentences; and further noting that Section 9781(f)’s restriction concerning sentencing

[J-21-2013] - 14
appeals as of right does not preclude review of legal principles (citing Commonwealth v.

Smith, 673 A.2d 893, 895 (Pa. 1996)). 11

III. The Merits

A. Arguments

Appellant claims that the mandatory $75,000 fine imposed here violates the

Pennsylvania Constitution’s prohibition on excessive fines, arguing that the amount of

the fine is grossly disproportionate to the severity of his offense -- a theft of $200.

Appellant asserts that this fine, which is 375 times greater than the amount he stole

from his employer, should be deemed excessive in light of the relatively de minimis

nature of the violation. Appellant’s Brief at 10 (citing Commonwealth v. Heggenstaller,

699 A.2d 767 (Pa. Super. 1997) (imposition of $6,550 fine for failure to pay $28.75 in

911 fees deemed excessive)). Appellant also argues that the mandatory minimum fine

makes no measurable contribution to the goals of punishment and that it is irrational

and unreasonable. Id. at 10-11 (citing Commonwealth v. Gipple, 613 A.2d 600, 602

(Pa. Super. 1992) and Commonwealth v. Strunk, 582 A.2d 1326, 1328 (Pa. Super.

1990)). Appellant adds that the mandatory fine is “grossly out of proportion to the fines

associated with heinous crimes like Murder, Rape, and Arson.” Id. at 11. Responding

to the notion that the fine should be deemed appropriate as a deterrent, appellant points

11
The OAJC in Foster opined that, “where a sentencing court is required to impose a
mandatory minimum sentence, and that mandatory minimum sentence affects a trial
court’s traditional sentencing authority or the General Assembly’s intent in fashioning
punishment for criminal conduct, a defendant’s challenge thereto sounds in legality of
sentence is therefore nonwaivable.” Foster, 17 A.3d at 345. Although that expression
did not garner majority support in a case where the question was issue preservation, the
description seems an apt one for purposes of the Section 9781 distinction.

[J-21-2013] - 15
out that all fines can be so described, and yet the constitutional protection against

excessive fines persists. Appellant’s Brief at 8-9.

The Commonwealth responds that appellant’s reliance on Heggenstaller is

misplaced, since that case involved a penalty set by local ordinance, while this

mandatory fine was established by a statewide statutory scheme governing legalized

gaming. More generally, the Commonwealth contends that the General Assembly’s

decision to require such a substantial mandatory fine for a first theft offense under the

Gaming Act is neither irrational nor unreasonable under Gipple. This is so, the

Commonwealth argues, because the primary purpose of the fine is to protect the public

by punishing and deterring criminal behavior that would undermine public confidence in

the gaming industry. Commonwealth’s Brief at 26 (citing 4 Pa.C.S. § 1102(1)). The

Commonwealth notes that Pennsylvania appellate courts have repeatedly upheld

substantial fines citing to the General Assembly’s valid objectives of punishment and

deterrence. Id. at 20-24 (citing Eckhart v. Dep’t of Agriculture, 8 A.3d 401 (Pa. Cmwlth.

2010) (roughly $15,000 in administrative penalties which arose from thirty violations

regarding dog kennel operation not excessive in light of prior infractions);

Commonwealth v. CSX Transp., Inc., 653 A.2d 1327 (Pa. Cmwlth. 1995) ($100,000 fine

appropriate and not excessive where $10.00 statutory penalty for each fish killed by

effluent discharge was intended to protect fisheries and wildlife); and Commonwealth v.

Church, 522 A.2d 30 (Pa. 1987) ($13,000 fine not excessive where statutory scheme

penalized overweight vehicles on sliding scale without regard for ability to pay or cost to

Commonwealth of noncompliance)). Finally, the Commonwealth asserts that

appellant’s comparison of the fine here with fines imposable for general theft offenses

and other crimes is unavailing because the Legislature was concerned with upholding

public confidence in an industry through which a vast amount of money is exchanged.

[J-21-2013] - 16
The Commonwealth then adds that “[i]t is the policy of the law not to permit

prosecutions under the general provisions of the penal code when there are applicable

special provisions available.” Id. at 27 (citing Commonwealth v. Leber, 802 A.2d 648,

650 (Pa. Super. 2002)).

The trial court found that the General Assembly had the discretion to require

such a minimum fine, which the court was then bound to apply absent further guidance

by the appellate courts. The trial court also dismissed appellant’s reliance on the

Heggenstaller case, noting the distinction between a local ordinance and “an act of our

Legislature.” Trial Ct. Op. at 4-5.

B. The Excessive Fines Clause

As a starting point, we note that the Commonwealth does not dispute that the

fine imposed here is a penalty, and therefore an Article I, Section 13 claim is

cognizable. The remaining question is whether the mandatory fine is excessive. See

Commonwealth v. 5444 Spruce St., 832 A.2d 396, 399 (Pa. 2003).12 Whether a fine is

excessive under our Constitution is a question of law, therefore our standard of review

is de novo and our scope of review is plenary. See Commonwealth v. Baker, 78 A.3d

1044, 1047 & n.3 (Pa. 2013).

The constitutional provision at issue is both brief and plain: “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel punishments inflicted.” By its

12
The Commonwealth also acknowledges that prior decisions have stated that the
Pennsylvania prohibition against excessive fines is co-extensive with the Eighth
Amendment, see 5444 Spruce St., 832 A.2d at 399, and thus, appellant was not
required to support his state constitutional claim in conformance with Commonwealth v.
Edmunds, 586 A.2d 887 (Pa. 1991) (suggesting briefing and analysis of several factors
regarding claims alleging the distinctiveness of a Pennsylvania constitutional provision
which has a federal analog).

[J-21-2013] - 17
plain language, the middle clause employs a concept of proportionality; the difficulty is

articulating a principle by which to measure excessiveness or proportionality.

Pennsylvania’s prohibition against excessive fines dates back to the Constitution

of 1776. A convention of representatives under the chairmanship of Benjamin Franklin

began drafting the Pennsylvania Constitution less than two weeks after the colonies

declared their independence from Great Britain.13 Section 29 of the 1776 Pennsylvania

Constitution provided: “Excessive bail shall not be exacted for bailable offences: And all

fines shall be moderate.” PA. CONST. of 1776, Plan or Frame of Gov’t, § 29. Eleven

years later, in September 1787, following the successful conclusion of the Revolutionary

War, and in response to perceived failures in the Articles of Confederation, the U.S.

Constitution was drafted and submitted to the states for approval. On December 12,

1787, Pennsylvania delegates ratified the U.S. Constitution, but that document did not

contain any such protection against excessive federal fines. In response to ratification

of the U.S. Constitution, Pennsylvania’s anti-federalist delegates penned “The Address

and reasons of dissent of the minority of the convention, of the state of Pennsylvania, to

their constituents” in which they explained that they had offered several proposed

amendments, including adding a provision: “That excessive bail ought not to be

required, nor excessive fines imposed nor cruel nor unusual punishments inflicted.”14 It

has been suggested that “[t]he amendments thus unofficially offered were the

13
“This constitution was framed by a convention (called in accordance with the
expressed wish of the Continental Congress) which assembled at Philadelphia July 15,
1776, and completed its labors September 28, 1776.” PA. CONST. of 1776 (epilogue).
14
This language mirrors a provision of the English Bill of Rights of 1689 created
following the reign of King James II, who, the drafters claimed, “by the assistance of
divers evil counsellors, judges and ministers employed by him, did endeavour to subvert
and extirpate the Protestant religion and the laws and liberties of [the] kingdom[.]” See
English Bill of Rights of 1689.

[J-21-2013] - 18
forerunners of those of Massachusetts and Virginia, and undoubtedly formed the basis

of what Mr. Madison laid before the House of Representatives in 1789” – a reference to

what would become the Bill of Rights. HISTORICAL SOCIETY OF PENNSYLVANIA,

PENNSYLVANIA AND THE FEDERAL CONSTITUTION, 1787-1788 (1888).

Meanwhile, Pennsylvania held a second state constitutional convention, adopting

in 1790 the above wording of the excessive fines clause, which is nearly identical to its

current form. See PA. CONST. of 1790 art. IX, § 13.15 A coordinate prohibition against

excessive fines was eventually enshrined in the Eighth Amendment of the U.S.

Constitution and adopted along with the other federal Bill of Rights on December 15,

1791.

This Court has rarely had occasion to interpret the excessive fines proscription,

and many of the cases which did interpret the term lack developed reasoning. See

Respublica v. Donagan, 2 Yeates 437 (Pa. 1799) ($10,000 bond after and despite

acquittal did not violate excessive fines clause because trial court acted within its

discretion and “[u]nsafe would the community be, if such characters could prowl at large

through the country, without a sufficient tie on them.”); Mastrangelo v. Buckley, 250

A.2d 447, 464 (Pa. 1969) (finding, sua sponte and without elaboration, that $6.00 fine

for parking violation not excessive); Commonwealth v. Smith, 187 A.2d 267 (Pa. 1963)

(graduated fines for overweight vehicles not irrational or unreasonable, and therefore

not excessive).16

15
The provision was later moved to its current location in Article I (formerly the plan of
government for the legislative branch), which became home to the Declaration of Rights
in the Pennsylvania Constitution of 1874. See PA. CONST. of 1874 art. I, § 13.
16
The federal analog also lay effectively dormant for nearly two centuries. See Beth A.
Colgan, Reviving the Excessive Fines Clause, 102 CAL. L. REV. 277, 297 (2014)
(“Though the Excessive Fines Clause was ratified in 1791, nearly two centuries passed
(continuedM)
[J-21-2013] - 19
 In the mid-1990s, this Court began to more critically analyze the Excessive Fines

Clause in the context of forfeiture matters; in those cases, we followed the lead of the

U.S. Supreme Court’s interpretation of the federal clause in Austin v. United States, 509

U.S. 602 (1993) and United States v. Bajakajian, 524 U.S. 321 (1998). See, e.g., 5444

Spruce St., 832 A.2d at 402-03; Commonwealth v. Wingait Farms, 690 A.2d 222, 225-

27 (Pa. 1997); In re King Properties, 635 A.2d 128, 131-33 & n.10 (Pa. 1993)

(explaining Excessive Fines Clause in relation to forfeiture matters) (relying on Austin,

509 U.S. at 623-28 (Scalia, J., concurring)).17 In Bajakajian, the High Court reiterated

that “at the time the Constitution was adopted, the word ‘fine’ was understood to mean a

payment to a sovereign as punishment for some offense. The Excessive Fines Clause

thus limits the government’s power to extract payments, whether in cash or in kind, as

punishment for some offense.” 524 U.S. at 327-28 (quoting Austin; Browning-Ferris

Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265 (1989)) (some quotation

marks omitted). Without a viable test apparent from the plain text or history of the

Clause, the High Court found precedent regarding the companion Cruel and Unusual

Punishment Clause to be relevant, and ultimately adopted a standard whereby a fine

“violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a

defendant’s offense.” Bajakajian at 334-36 (citing, inter alia, Solem v. Helm, 463 U.S.

277, 290 (1983) (involving challenge raised under Cruel and Unusual Punishment

Clause)).

(Mcontinued)
before the [United States] Supreme Court undertook its first meaningful foray into
analyzing the Clause.”).

17
That much of the existing decisional law in this area involves forfeiture matters does
not diminish its relevance, as the cases required a predicate finding that a punitive
forfeiture is a fine under the meaning of the excessive fines clauses. See Bajakajian,
524 U.S. at 344; 5444 Spruce St., 832 A.2d at 399.

[J-21-2013] - 20
 With respect to the Excessive Fines Clause under Article I, Section 13, this Court

has looked to the gross disproportionality standard from Bajakajian, which includes a

threshold comparison between the amount of the fine and the gravity of the offense

triggering the fine. See 5444 Spruce St., 832 A.2d at 398-403 (remanding for trial court

to determine value of subject property and weigh against seriousness of offense).

Notably, in determining whether a fine is so excessive as to constitute a deprivation of

property without due process of law, this Court and the Commonwealth Court have

rejected the notion that there must be strict proportionality between the harm resulting

from the offense and the penalty imposed. Church, 522 A.2d at 34 (“[T]he amount of a

fine need not be limited to the cost incurred by the Commonwealth for each violation.”);

CSX Transp., Inc., 653 A.2d at 1332 (same).

Bajakajian and 5444 Spruce Street teach that a proportionality analysis requires

a comparison of the amount of the fine to the gravity of the offense; but, the additional

factors employed in those cases to evaluate excessiveness (e.g., how the forfeiture

compares with the maximum criminal penalty imposable for the offense) are of little use

here, where the challenge involves a mandatory fine/penalty. The next logical place to

seek practical guidance is from cases arising under the companion clauses under which

the excessive fines jurisprudence developed (i.e., federal or state cruel punishments

clauses, due process clauses, or the federal excessive fines clause). And, in fact, this

Court’s recent decision in Commonwealth v. Baker, 78 A.3d 1044 (Pa. 2013), a case

involving a challenge to a mandatory sentence as cruel (and unusual) affords some

guidance.

In Baker, the appellant challenged as constitutionally disproportionate the

imposition of a mandatory minimum sentence of 25 years for his second conviction of

possessing child pornography. Baker’s disproportion claim adverted to both the Eighth

[J-21-2013] - 21
Amendment’s “cruel and unusual punishments” clause as well as the “cruel

punishments” proscription found in Article I, Section 13 of the Pennsylvania

Constitution. The Baker Court noted at the outset that we were not necessarily holding

that the approach to such a claim should be coterminous under the federal and state

charters, but that we would analyze the claim “purely under the federal standard”

because the appellant deemed that standard to be controlling and did not provide a

distinct argument under the Pennsylvania Constitution. 78 A.3d at 1048 & n.5; accord

id. at 1053 (Castille, C.J., concurring, joined by Saylor & Todd, JJ.). In rejecting the

claim on the merits, the Court explained that the federal proportionality test, which

derives from Solem v. Helm, examines: “(i) the gravity of the offense and the harshness

of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction;

and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”

78 A.3d at 1047 (quoting Solem, 463 U.S. at 292). Ultimately, the Court did not reach

the latter two Solem prongs because the threshold comparison of the sentence imposed

and the gravity of the offense did not yield an inference of gross disproportionality. Id.

at 1047-48, 1052 (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (controlling

opinion by Justice Kennedy).18

18
Justice Scalia wrote the lead Opinion in Harmelin, which was joined by Chief Justice
William Rehnquist, taking the position that the Eighth Amendment has no proportionality
guarantee, and so Solem v. Helm should be overruled. Justice Kennedy wrote a
Concurring Opinion (joined by Justices O’Conner & Souter) that acknowledged a narrow
proportionality principle. 501 U.S. at 996-1009 (noting that “intrajurisdictional and
interjurisdictional analyses are appropriate only in the rare case in which a threshold
comparison of the crime committed and the sentence imposed leads to an inference of
gross disproportionality”). In a later decision, Graham v. Florida, 560 U.S. 48 (2010),
the High Court followed Justice Kennedy’s view:

The controlling opinion in Harmelin explained its approach
for determining whether a sentence for a term of years is
grossly disproportionate for a particular defendant's crime. A
(continuedM)
[J-21-2013] - 22
 Notably, this author filed a Concurring Opinion in Baker, which represented the

views of three of the six participating Justices. The concurrence joined the Court’s

Eighth Amendment analysis, but went on to note that the proper approach to a

proportionality claim sounding in the Pennsylvania Constitution might not follow federal

law lockstep:
There is a colorable claim to be made that the federal test for gross
disproportionality should not be followed lockstep in Pennsylvania,
certainly at least insofar as it includes a federalism-based constraint that
looks to sentences for similar offenses in other states. . . . [A] defendant
pursuing a Pennsylvania sentencing disproportionality claim may allege
that comparative and proportional justice is an imperative within
Pennsylvania's own borders, to be measured by Pennsylvania's
comparative punishment scheme. In that circumstance, it may be that the
existing Eighth Amendment approach does not sufficiently vindicate the
state constitutional value at issue, where sentencing proportionality is at
issue.

Id. at 1055 (Castille, C.J., concurring, joined by Saylor and Todd, JJ.). The parties did

not have the benefit of Baker at the time they briefed and argued this matter. However,

it is notable that much of appellant’s disproportionality argument turns on comparisons

(Mcontinued)
court must begin by comparing the gravity of the offense and
the severity of the sentence. 501 U.S., at 1005, 111 S. Ct.
2680 (opinion of KENNEDY, J.). “[I]n the rare case in which
[this] threshold comparison . . . leads to an inference of
gross disproportionality” the court should then compare the
defendant's sentence with the sentences received by other
offenders in the same jurisdiction and with the sentences
imposed for the same crime in other jurisdictions. Ibid. If
this comparative analysis “validate[s] an initial judgment that
[the] sentence is grossly disproportionate,” the sentence is
cruel and unusual. Ibid.
Id. at 60.

[J-21-2013] - 23
between the mandatory fine imposed in his matter and the fines imposable for other

crimes in Pennsylvania, including more serious crimes. We believe this intra-

Pennsylvania approach is particularly persuasive in this case. With these background

observations in mind, we turn to the constitutionality of the statutory fines construct at

issue.

C. Analysis

Preliminarily, we recognize that “acts passed by the General Assembly are

strongly presumed to be constitutional . . . . Accordingly, a statute will not be declared

unconstitutional unless it clearly, palpably, and plainly violates the Constitution. If there

is any doubt that a challenger has failed to reach this high burden, then that doubt must

be resolved in favor of finding the statute constitutional.” Pa. State Ass’n of Jury

Comm'rs v. Commonwealth, 64 A.3d 611, 618 (Pa. 2013) (internal citations and

quotation marks omitted). It is also settled “that the legislature has the exclusive power

to pronounce which acts are crimes, to define crimes, and to fix the punishment for all

crimes. The legislature also has the sole power to classify crimes. . . .” Church, 522

A.2d at 35. Moreover, “[t]here is no constitutional requirement prohibiting the legislature

from imposing a mandatory sentence where, in its judgment, such a sentence is

necessary.” Id. at 34 (citing Commonwealth v. Wright, 494 A.2d 354 (Pa. 1985)

(upholding Section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. §

9712)). With specific respect to fines, this Court has emphasized that:
[T]he primary purpose of a fine or a penalty is twofold[:] to punish
violators and to deter future or continued violations. Since it serves not
only as a punishment but also as a deterrent, the amount of the fine can
be raised to whatever sum is necessary to discourage future or continued
violations, subject, of course, to any restriction imposed on the amount of
the fine by the enabling statute or the Constitution.

[J-21-2013] - 24
Id. (quoting Mastrangelo, 250 A.2d at 464).

The Gaming Act was signed into law on July 5, 2004. The stated goal was to

protect the public through comprehensive regulation of the gaming industry. 4 Pa.C.S.

§ 1102 (“The primary objective of this part to which all other objectives and purposes

are secondary is to protect the public through the regulation and policing of all activities

involving gaming and practices that continue to be unlawful.”).

At the time of its enactment, the Gaming Act delineated thirteen criminal acts,

twelve of which were subject to a $75,000 mandatory minimum fine for a first offense.

See 4 Pa.C.S. § 1518(a)-(b) (2004) (subsequently amended). The criminal offenses

subject to the fine included: (1) perjury or false swearing vis-à-vis information required

under the Act; (2) failure to pay a licensing fee or tax assessment; (3) operation of slot

machines by unlicensed persons; (4) supplying slot machines to a gaming facility

without authority from the Gaming Board; (5) operating a slot machine after expiration of

a license and prior to license renewal; (6) using counterfeit currency; (7) using a

cheating device or counterfeit billet or token; (8) unauthorized persons possessing or

using while on gaming premises a key or device suitable for opening any slot machine

or coin box; (9) possessing any device made, sold, or tampered with in violation of the

Act; (10) working in a casino without a license required for the position; (11) gaming

entities operating slot machines at a racetrack while the racetrack license is suspended;

(12) and employing unlicensed or unpermitted persons. Id. §§ 1518(a)(1) - (a)(12).

The thirteenth provision prohibited persons under 18 years of age “in the area where

slot machines are operated,” and carried no specific fine. Id. §§ 1518(a)(13) & 1518(b).

On January 7, 2010, the General Assembly amended the Gaming Act primarily to

authorize and regulate table games, but also to address additional concerns regarding

the industry. As part of this legislation, four additional prohibited acts were added to

[J-21-2013] - 25
Section 1518(a): the theft offense at issue here; prohibiting persons under 21 years of

age from entering casinos and playing table games and slot machines; prohibiting

gaming facilities from requiring wagers outside the stated minimum and maximum

wagers; and prohibiting underage purchase and consumption of alcohol. See Act of

January 7, 2010 (P.L. 1, No.1). Of the four newly prohibited acts, only the theft offense

was added to Section 1518(b)(2), thus requiring imposition of a mandatory minimum

fine of $75,000. The remaining offenses authorize the imposition of fines ranging from

$200 to $1,000 for first time offenders, and include some mandatory provisions. See,

e.g., 4 Pa.C.S. § 1518(b)(3) (requiring, for first violation of subsection (13) and (13.1)

regarding persons under age in casino or operating machines, imposition of fine not

less than $200 nor more than $1,000; optional imposition of community service not to

exceed forty hours), and 4 Pa.C.S. § 1518(b)(4) (requiring, for underage drinking

offense under subsection (a)(16), restriction of vehicle operating privileges pursuant to

18 Pa.C.S. §§ 6308 and 6310.4, and fine imposed “shall be not less than $350 nor more

than $1,000”).19

Mandatory fines are not unheard of in Pennsylvania’s statutory scheme, but they

are unusual. Appellant logically adverts to the fines construct in the Crimes Code,

which governs the vast majority of Pennsylvania criminal cases, including non-Gaming

Act theft offenses. The Crimes Code generally reposes a considerable amount of

discretion in the sentencing judge. Typically, the court is authorized to impose a fine up

to a maximum set by statute. Thus, for example, if appellant had been charged with

theft under Chapter 39 of the Crimes Code, he would have faced the prospect of a fine

19
Although the Gaming Act does not establish a specific fine with regard to the violation
of wager limits, that prohibition strictly targets the licensed gaming facilities; a violation
would leave the facilities open to board-imposed administrative sanctions. See 4
Pa.C.S. § 1518(c).

[J-21-2013] - 26
up to $10,000, in the discretion of the trial judge. See 18 Pa.C.S. §§ 3903 & 1101(4).

Indeed, as appellant notes, even the most serious of offenses in Pennsylvania, murder

in the first degree, affords the sentencing court discretion in determining the appropriate

fine, and the maximum fine imposable is $50,000. 18 Pa.C.S. § 1101(1). The same

general construct is found with respect to drug offenses, which are set forth in Title 35.

See 35 P.S. § 780-113 (subsection (a) enumerates thirty-nine prohibited acts related to

various narcotics; subsections (b) through (o) grade each of thirty-nine offenses and

directs court to impose fines “not exceeding” certain amounts).

On the other hand, there are indeed some offenses where the General Assembly

has determined that mandatory fines are appropriate. For example, in the realm of drug

trafficking, Section 7508(a)(3)(iii) of Title 18 requires that when a person is convicted of

possessing at least 100 grams of cocaine, the court must impose, at a minimum, “four

years in prison and a fine of $25,000 or such larger amount as is sufficient to exhaust

the assets utilized in and the proceeds from the illegal activity[.]” 18 Pa.C.S. §

7508(a)(3)(iii). Notably, the qualifier “as is sufficient to exhaust the assets” employed in

Section 7508 reflects a proportionality approach (at least insofar as the fine will exceed

$25,000), that is not present in the provision subject to challenge in the case sub

judice.20

20
As the trial court noted, this Court accepted review of a disproportionality challenge to
Section 7508 in Commonwealth v. Carela-Tolentino. Ultimately, the Court entered a
summary, per curiam affirmance. See 48 A.3d 1221. This author filed a Dissenting
Statement, which concluded as follows:

The language of Section 7508 regarding how fines above the minimum
are to be assessed, combined with constitutional concerns focusing on
reasonability, rationality, and proportionality, as demonstrated by the more
nuanced approach of forfeiture cases like Bajakajian and 5444 Spruce
Street, would restore discretion to sentencing courts -- the entities best
suited to determine how the goals of punishment, deterrence, and
(continuedM)
[J-21-2013] - 27
 In our view, the fine here, when measured against the conduct triggering the

punishment, and the lack of discretion afforded the trial court, is constitutionally

excessive. Simply put, appellant, who had no prior record, stole $200 from his

employer, which happened to be a casino. There was no violence involved; there was

apparently no grand scheme involved to defraud either the casino or its patrons.

Employee thefts are unfortunately common; as noted, appellant’s conduct, if charged

under the Crimes Code, exposed him to a maximum possible fine of $10,000. Instead,

because appellant’s theft occurred at a casino, the trial court had no discretion, under

the Gaming Act, but to impose a minimum fine of $75,000 – an amount that was 375

times the amount of the theft.

In addition to the sheer disproportion of the fine to the amount stolen is the fact

that $75,000, by any common measure, is a considerable amount of money. As

illustration, the minimum wage in Pennsylvania is currently $7.25 per hour, and the

average Pennsylvania household earns approximately $51,000 per year.21 The fine

imposed here would exhaust approximately five years of pre-tax income of a minimum

wage worker, and the average family would not fare much better. In other words, the

mandatory nature of the provision could act to effectively pauperize a defendant for a

(Mcontinued)
depletion of illegal gains should be achieved in a given case. This would
ensure that punishment is just, but not excessive. By contrast . . .
mechanical imposition of mandatory minimums, as applied in cases like
appellant's, can result in violation of constitutional prohibitions against
excessive fines.
Carela-Tolentino, 48 A.3d at 1229 (per curiam) (Castille, C.J., dissenting, joined by
Todd, J.).
21
U.S. CENSUS BUREAU, Three-Year-Average Median Household Income by State:
2010 to 2012, available at
http://www.census.gov/hhes/www/income/data/statemedian/index.html (page last
revised September 19, 2013).

[J-21-2013] - 28
single act. It is not a measure targeted solely at high rollers, at the casino itself, or even

at thefts from patrons, which might implicate the integrity of the gaming business.

Rather, the statute affords the trial court no discretion to inquire into the specific facts or

the individual circumstances of a case, which, in this instance, happens to include a

twenty-six year old defendant with no prior record who was, at the time of sentencing,

enrolled full-time as a student, living with his fiancée, expecting his first child, and did

not own a house.22

The Commonwealth argues that the mandatory fine is not constitutionally

excessive because a fine serves both to punish and to deter, and in the Legislature’s

judgment, the amount here was necessary to accomplish both in light of the public

perception of the gaming industry and the significant amount of money exchanged in

casinos. We acknowledge that all fines serve the twin purposes of punishment and

deterrence. At the same time, however, we note that the extension of the mandatory

fine to this offense was adopted in 2010, and it was accompanied by no separate

legislative statement of purpose. The only statement of purpose is that attending the

initial Gaming Act legislation, i.e., the general statement of purpose to protect the public

through regulation of the gaming industry. The Commonwealth cites nothing in the later

legislation, its legislative history, or logic to explain the sheer amount of this fine for this

particular added offense, and the reason for making the offense subject to a mandatory

fine.23

22
We acknowledge this Court’s statement in Church that “[t]here is no constitutional
requirement that invalidates the imposition of an otherwise valid fine merely because a
defendant lacks the immediate ability to pay it[.]” 522 A.2d at 33. We stress appellant’s
individual circumstances only as illustrative of the broader difficulty we see in the nature
of a mandatory fine of this size, measured against the offense at issue.
23
Cf. Carela-Tolentino, 48 A.3d at 1225 & n.4 (Castille, C.J., dissenting)
(Commonwealth Court “did not explain how it determined that the one-size-fits-all
(continuedM)
[J-21-2013] - 29
 Furthermore, the statement of purpose accompanying the original Gaming Act

does not logically embrace the extension of the hefty mandatory fine to the theft offense

at issue here. The original twelve offenses deemed subject to the mandatory fine all

involved conduct that went directly to the integrity of the fledgling industry, an industry

that naturally raises concerns about associated criminal activity. Thus, for example, the

General Assembly attempted to ensure that each entity seeking a gambling license was

forthcoming on its application, that only properly licensed entities could operate slot

machines, and that all participants refrained from cheating or counterfeiting. Even those

provisions involving persons other than industry employees, principals, or insiders

implicated obvious concerns of industry integrity. To be sure, there can be thefts

(though perhaps not of $200) in a casino setting that might implicate core concerns with

gaming integrity. But, the statute admits of no nuance. In our judgment, an employee

theft of $200, as at issue here, does not implicate the identified industry concern. The

Gaming Act establishes the same fine structure whether a casino itself perpetrates a

fraud against the Gaming Control Board, or an individual commits a theft of any amount

on the casino’s property. Compare, e.g., 4 Pa.C.S. §§ 1518(a)(1) (Chapter 49 of Title

18 related to perjury, false swearing, and unsworn falsification to authorities “shall apply

to any person providing information or making any statement, whether written or oral, to

the board, the bureau, the department, the Pennsylvania State Police or the Office of

Attorney General, as required by this part.”), and 1518(a)(2) (“It shall be unlawful for a

person to willfully: (i) fail to report, pay or truthfully account for and pay over any license

(Mcontinued)
mandatory minimum fine required by Section 7508 reflected the actual ‘price’ that drug
offenders ‘cost society,’ and the equivalence is decidedly not self-evident.”).

[J-21-2013] - 30
fee, authorization fee, tax or assessment imposed under this part; or (ii) attempt in any

manner to evade or defeat any license fee, authorization fee, tax or assessment

imposed under this part.”). On its face, the mandatory fine provision when adopted

seemed calculated to deter abuses by industry players who generate or manage

millions of dollars. By lumping the entire spectrum of theft offenses under a scheme

apparently focused on deterring instances of theft that impugn the integrity of the

industry, the General Assembly appears to have lost sight of the constitutional limitation

on excessive fines.

A comparison of the mandatory fine imposed for the offense here with the fines

imposable for other criminal offenses, a factor akin to the second Solem prong, confirms

our finding of constitutional excessiveness. We need not conduct an encyclopedic

review of the fine schemes for criminal offenses in Pennsylvania to make the point. It is

enough to note that, under the Crimes Code, the maximum fine imposable for any crime

is $50,000 (that, for a conviction of murder or attempted murder, but still within the trial

judge’s discretion), and the maximum fine imposable for Crimes Code equivalents of

appellant’s offense -- a first-degree misdemeanor -- is $10,000. See 18 Pa.C.S. §

1101(1), (4). The fine at issue here, both in an absolute sense and in a comparative

sense, is strikingly disproportionate to the manner in which other crimes are punished in

Pennsylvania. That the fine is mandatory merely exacerbates the disproportion.

Finally, the Commonwealth’s reliance on cases in which courts have upheld

substantial criminal administrative penalties in light of the Legislature’s dual objectives

of punishment and deterrence, is misplaced. In those cases, the fines were tailored,

scaled, and in the strictest sense, calculated to their offenses.24 It is undoubtedly within

24
In Church, overweight vehicles were fined on a sliding scale per pound over the
weight limit. In Eckhart, the appellant kennel operator had committed numerous
(continuedM)
[J-21-2013] - 31
the Legislature’s discretion to categorize theft from a casino differently than other theft

crimes in Pennsylvania, and, in turn, to fashion different penalties. However, the

prohibition against excessive fines under Article I, Section 13 requires that the

Legislature not lose sight of the fact that fines must be reasonably proportionate to the

crimes which occasion them. We hold that, as imposed here, the mandatory fine

clearly, palpably and plainly violates the Pennsylvania Constitution.

III. Conclusion

For these reasons, we find the mandatory fine imposed here to be

unconstitutional. Accordingly, we vacate that portion of the judgment of sentence

involving imposition of the mandatory fine, and we remand to the trial court to

determine, in its discretion, the appropriate fine to be imposed commensurate with

appellant’s offense. Jurisdiction is relinquished.

Former Justice Orie Melvin did not participate in the consideration or decision of

this case.

(Mcontinued)
infractions incurring a fine amount in excess of $150,000 based on a $100-$500 per
dog/per day penalty scheme, $15,000 of which appellant claimed was excessive in
light of perceived triviality of the offense. In CSX, the appellant’s train car leaked
enough corn syrup into the Youghiogheny River to kill approximately 10,000 fish, and
thus appellant incurred a roughly $100,000 fine, based on a $10 per fish calculation.
It is also worth noting that the fine scheme at issue in Carela-Tolentino, to the extent it
authorized fines exceeding $25,000, included a limiting principle that it only be large
enough “as is sufficient to exhaust the assets utilized in and the proceeds from the
illegal activity[.]” 18 Pa.C.S. § 7508(a)(3)(iii). No such limitation exists under the
Gaming Act’s mandatory fines provision.

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 Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd and Mr. Justice

McCaffery join the opinion.

[J-21-2013] - 33