Commonwealth v. Eid, K., Aplt.

[J-85-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 10 EAP 2020
:
Appellee : Appeal from the Judgment of
: Superior Court entered on
: 07/11/2019 at No. 1670 EDA 2017
v. : (reargument denied 08/28/2019)
: affirming vacating and remanding
: the Judgment of Sentence entered
KHALID EID, : 04/26/2017 in the Court of Common
: Pleas, Philadelphia County, Criminal
Appellant : Division at No. CP-51-CR-0003605-
: 2016.
:
: ARGUED: October 20, 2020

OPINION

JUSTICE WECHT DECIDED: April 29, 2021
This case presents constitutional challenges to the Vehicle Code’s1 enhancement

of sentences for those who refuse chemical testing after driving under a suspended

license (“DUS”). Although we conclude that the evidence was sufficient to sustain Khalid

Eid’s conviction for refusing to submit to a warrantless breath test—which, unlike a

warrantless blood draw, does not violate established constitutional safeguards against

unreasonable searches and seizures—we vacate his sentence of imprisonment because

the sentencing statute in question fails to specify a maximum term, and thus is

unconstitutionally vague in contravention of state and federal due process principles.

1 75 Pa.C.S. § 101, et seq.
 I.

At approximately 11:30 p.m. on February 25, 2015, Philadelphia Police Officer

Stephen Nagy observed a black Nissan parked on a one-way street with its engine still

running. The Nissan previously had collided with two parked cars and was facing the

wrong direction. Notes of Testimony (“N.T.”), 3/2/2016, at 6-8. Officer Nagy approached

the Nissan and asked the driver, Eid, for his driver’s license, registration, and proof of

insurance. Eid appeared disheveled, his eyes were red and glassy, he smelled of alcohol,

and he had a difficult time retrieving the requested items from his back pocket. Officer

Nagy asked Eid to step out of the vehicle. When Eid opened the door, Officer Nagy

smelled “a moderate odor of an alcoholic beverage emanating from the vehicle and [Eid’s]

person.” Id. at 7-8. Eid handed his license and registration to Officer Nagy. Eid’s license

was suspended. Id. at 23-24, 25.

Officer Nagy called for a wagon to transport Eid to the Accident Investigation

District (“AID”) for chemical testing. As they waited, Eid urinated on himself. At

approximately 1:40 a.m., following Eid’s transfer to AID, Officer Gary Harrison

encountered Eid and read the O’Connell warnings to him.2 At Eid’s first trial, Officer

Harrison gave the following account of his interaction with Eid:

He was polite, quiet. He had bloodshot, watery eyes. He had a wet stain
on his pants that he had urinated on himself. He had low speech,
whispering. He was sweating. He moved slowly. His pupils were dilated
in room light. He had a moderate odor of an alcoholic beverage on his
breath.

He had a lot of marijuana debris also, Your Honor, in his mouth. And he
had marijuana debris on his tongue, which also indicated to me, Your
Honor, that he did smoke recently.

2 See Pa. Dep’t of Transp. v. O’Connell, 555 A.2d 873, 876 (Pa. 1989) (requiring
warnings to be read to motorists so that they may make a knowing and conscious decision
whether to submit to chemical testing).

[J-85-2020] - 2
 He refused immediately, Your Honor, when he came in the room and then
said “whatever you want.” I told him it’s his decision. Then he said “no test.”

Again, I read him the O’Connell Warnings and the 75-439. He signed them
and said no to the test. I read him the DL-26. Again, he said no to the test.
I asked him two more times at the nurse’s station. And, again, he said no.
And, again, he did sign all forms.

At 2:03 a.m., Your Honor, based on him repeatedly saying no to the test, I
deemed him to be a refusal. And I did offer him – initially, I offered him a
breath or a blood. Then after I noticed the marijuana, it was a blood test
that he refused.
Id. at 18-19.3

Eid was charged with several offenses for driving under the influence (“DUI”), one

of which subjected him to elevated penalties due to his refusal to submit to chemical

testing, along with a single count of DUS pursuant to 75 Pa.C.S. § 1543(a).4 Following a

bench trial on March 3, 2016, in the Municipal Court of Philadelphia, Eid was convicted

on all charges. At a sentencing hearing on April 12, defense counsel asked the court to

impose “the mandatory minimum which is 90 days to six months,” with immediate parole.

N.T., 4/12/2016, at 4. Instead, the court imposed, inter alia, an aggregate sentence of

one to two years’ imprisonment, a $2,500 fine, and an eighteen-month license

suspension. Id. at 6.

Eid appealed, and proceeded to a de novo bench trial before the Honorable Paul

P. Panepinto in the Court of Common Pleas on December 5, 2016. At the beginning of

3 Included in the certified record is a copy of the DL-26 implied consent form signed
by Eid, which depicts a circle drawn around the words “blood, breath” and a slash mark
through “breath.” There was no testimony as to who made the slash mark or its
significance.
4 Specifically, Eid was charged with three counts of DUI-general impairment under
75 Pa.C.S. § 3802(a)(1), two of which included sentencing enhancements: one due to the
vehicle damage caused by the accident, see id. § 3803(b)(1), and one due to Eid’s
chemical test refusal, see id. § 3803(b)(2).

[J-85-2020] - 3
the trial, the Commonwealth stated that, notwithstanding the charge listed in the initial

criminal information, it would be prosecuting the DUS offense under 75 Pa.C.S.

§ 1543(b)(1.1)(i), rather than subsection (a).5 The Commonwealth amended the

information accordingly.

The applicable subsection of the DUS statute determines the permissible range of

sentences available upon conviction. Subsection 1543(a) relates generally to driving with

a suspended or revoked license, and prescribes a penalty of a $200 fine. Id. § 1543(a).

Subsection 1543(b) applies when the license suspension resulted from a previous DUI

offense. It prescribes an elevated penalty: a $500 fine and a term of imprisonment not

less than sixty days nor more than ninety days. Id. § 1543(b). Subsection 1543(b)(1.1)

5 Subsection 1543(b)(1.1)(i) provides:
A person who has an amount of alcohol by weight in his blood that is equal
to or greater than .02% at the time of testing or who at the time of testing
has in his blood any amount of a Schedule I or nonprescribed Schedule II
or III controlled substance, as defined in the act of April 14, 1972 (P.L. 233,
No. 64), known as The Controlled Substance, Drug, Device and Cosmetic
Act, or its metabolite or who refuses testing of blood or breath and who
drives a motor vehicle on any highway or trafficway of this Commonwealth
at a time when the person's operating privilege is suspended or revoked as
a condition of acceptance of Accelerated Rehabilitative Disposition for a
violation of section 3802 or former section 3731 or because of a violation of
section 1547(b)(1) or 3802 or former section 3731 or is suspended under
section 1581 for an offense substantially similar to a violation of
section 3802 or former section 3731 shall, upon a first conviction, be guilty
of a summary offense and shall be sentenced to pay a fine of $1,000 and
to undergo imprisonment for a period of not less than 90 days.
75 Pa.C.S. § 1543(b)(1.1)(i). Notably, the General Assembly has not yet amended this
subsection in response to Birchfield, as it has for other statutes that provided for an
enhanced penalty based upon the refusal of a warrantless blood test. Compare
75 Pa.C.S. § 3804(c) (“An individual who violates section 3802(a)(1) and refused testing
of breath . . . or testing of blood pursuant to a valid search warrant . . .”), with former
75 Pa.C.S. § 3804(c), effective July 9, 2012, to July 19, 2017, (“An individual who violates
section 3802(a)(1) and refused testing of blood or breath . . .”) (emphases added).

[J-85-2020] - 4
sets forth a further elevated tier of punishment: a fine of $1,000 and a ninety-day minimum

term of imprisonment, applicable when the motorist drove with a DUI-related suspended

license and has a blood alcohol concentration of at least .02%, or any amount of a

controlled substance in his blood, or “refuses testing of blood or breath.” Id.

§ 1543(b)(1.1)(i). This latter sentencing provision presently is at issue.

Following an evidentiary presentation similar to that developed in the Municipal

Court, the trial court convicted Eid on all charges.6 N.T., 12/5/2016, at 31. Sentencing

was deferred until April 26, 2017, at which time the case was transferred to the Honorable

Pamela P. Dembe. The sentencing court merged Eid’s DUI convictions and imposed a

term of ninety days to six months’ imprisonment (to be served on weekends), plus two

years’ probation and a $2,500 fine. As to the DUS conviction, the court imposed an

identical term of imprisonment and probation, to be served concurrently with the DUI

sentence, and an additional $1,000 fine. N.T. 4/26/2017, at 8-11.

Eid appealed to the Superior Court. In his Pa.R.A.P. 1925(b) statement, he

argued, in relevant part, that the applicable DUS statute, 75 Pa.C.S. § 1543(b)(1.1)(i),

contains a provision rendered unconstitutional by the Supreme Court of the United States’

decision in Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016), because it

penalizes the refusal to submit to a warrantless blood test.7 Eid further contended that

his sentence for DUS was illegal because it exceeded ninety days, which he understood

to be the statutory maximum term. The sentencing court’s opinion, which was authored

6 The Commonwealth moved to introduce the transcripts from Eid’s first trial,
specifically as they pertained to Officer Harrison’s testimony, in light of that officer’s death
following Eid’s conviction. N.T., 12/5/2016, at 4-5, 22-23.
7 Birchfield held that, although warrantless breath tests constitutionally may be
compelled under the search incident to arrest doctrine, “motorists cannot be deemed to
have consented to submit to a blood test on pain of committing a criminal offense.”
136 S.Ct. at 2186.

[J-85-2020] - 5
by a judge other than the one who presided over Eid’s trial, addressed only the first of

these claims. The authoring judge concluded that Birchfield was inapplicable because

Eid also refused a breath test. See Tr. Ct. Op., 12/28/2017, at 4-5 (unpaginated). The

trial court did not address the range of permissible sentences.

In a unanimous memorandum, the Superior Court vacated Eid’s judgment of

sentence and remanded for resentencing. Commonwealth v. Eid, 1670 EDA 2017, 2019

WL 3046587 (Pa. Super. July 11, 2019). Eid challenged the sufficiency of the evidence

with respect to both the DUI and DUS offenses, asserted that the portion of the DUS

statute penalizing warrantless blood test refusals is unconstitutional under Birchfield, and

argued that his sentences for both DUS and DUI were illegal because they exceeded the

statutory maximum penalties.

The court concluded that the evidence was sufficient to sustain Eid’s convictions

for both DUI and DUS. With regard to DUI, the court deemed Officer Nagy’s testimony

describing Eid’s apparently intoxicated state sufficient to establish that Eid was unable to

safely operate a vehicle, thereby satisfying the elements of DUI-general impairment under

75 Pa.C.S. § 3802(a)(1). As for DUS, the court observed that the record included

“evidence of [Eid’s] refusal to take a blood test,” and thus was sufficient to sustain his

conviction under 75 Pa.C.S. § 1543(b)(1.1)(i). Eid, 2019 WL 3046587, at *4.

The panel rejected Eid’s Birchfield argument because he had advanced it under

the banner of a sufficiency challenge to his DUS conviction. Id. (“Birchfield addresses

suppression issues and sentencing issues, but not challenges to the sufficiency of the

evidence.”). The Superior Court deemed Birchfield “not relevant in evaluating the

sufficiency of the evidence in this case.” Id.

However, the court agreed with Eid that, due to the length of the probationary tails

imposed, his sentences for both DUI and DUS exceeded the statutory maximums. A

[J-85-2020] - 6
sentencing court may impose a split sentence including both incarceration and probation,

the panel noted, but “the total amount of time imposed in a split sentence cannot exceed

the statutory maximum.” Id. at *6 (citing Commonwealth v. Crump, 995 A.2d 1280, 1283-

84 (Pa. Super. 2010)). The court observed that the statutory maximum sentence for Eid’s

merged DUI offenses was six months, see 75 Pa.C.S. § 3803(b)(1), (2), whereas the

sentencing court imposed a sentence of ninety days to six months’ imprisonment plus a

two-year probationary term.

The court likewise determined that the statutory maximum for DUS also was six

months. The panel recognized that 75 Pa.C.S. § 1543(b)(1.1)(i) contains no express

statutory maximum penalty, only a minimum term of ninety days’ imprisonment. See Eid,

2019 WL 3046587, at *6 n.11. Despite the absence of a specific statutory maximum for

this offense, the court nonetheless gleaned a six-month maximum from 75 Pa.C.S.

§ 6503(a), which sets a maximum term of imprisonment of six months for an individual

“convicted of a second or subsequent violation” of, inter alia, 75 Pa.C.S. § 1543(a).

Because the sentencing court imposed a sentence of ninety days to six months’

imprisonment plus a two-year probationary term, the probation tails caused both

sentences to exceed the lawful maximum. Thus, the Superior Court concluded that Eid’s

sentence was illegal. Accordingly, the court vacated the sentence and remanded for

resentencing.

II.

We granted allowance of appeal in order to assess the constitutionality of Eid’s

sentence under 75 Pa.C.S. § 1543(b)(1.1)(i).8 A constitutional challenge to a sentencing

8 Specifically, we granted review of the following questions, as framed by Eid:
(1) Is Petitioner’s sentence under 75 Pa.C.S. § 1543(b)(1.1)(i) illegal
because the statute is unconstitutional under Birchfield v. North Dakota, ___
U.S. ___, 136 S.Ct. 2160 (2016), Article I, Section 8, due process, and this

[J-85-2020] - 7
statute presents a question of law, which we review de novo. Commonwealth v. Bell, 211

A.3d 761, 765 (Pa. 2019).

A.

Eid first claims that his sentence is illegal because the statute at issue imposes

criminal penalties for refusing to submit to a warrantless blood draw. As a threshold

matter, he concedes that his argument presumes a “favorable resolution of the factual

dispute that his refusal was based upon the rejection of a request to submit to a blood

test.” Eid’s Brief at 13 n.11. Eid correctly claims that, in light of Birchfield, his conviction

and sentence pursuant to 75 Pa.C.S. § 1543(b)(1.1)(i) would be unlawful to the extent

that his punishment was predicated solely upon his refusal to consent to a warrantless

blood test. See Birchfield, 136 S.Ct. at 2185-86; see also Commonwealth v. Monarch,

200 A.3d 51, 57 (Pa. 2019). However, as the Commonwealth aptly observes, the record

supports Eid’s conviction for refusing a breath test, which Birchfield categorically excluded

from the Fourth Amendment’s warrant requirement as a permissible search incident to

arrest.9 Birchfield, 136 S.Ct. at 2184 (concluding “that the Fourth Amendment permits

warrantless breath tests incident to arrests for drunk driving”); id. at 2185 (“Because

breath tests are significantly less intrusive than blood tests and in most cases serve law

enforcement interests, we conclude that a breath test, but not a blood test, may be

Court’s precedents because it increases the punishment for a criminal
offense based upon the refusal to submit to a warrantless blood test?
(2) Is Petitioner’s sentence ordered by a three judge Panel of the Superior
Court under 75 Pa.C.S. § 1543(b)(1.1)(i) illegal because the statute is
unconstitutionally vague in that it fails to provide for a maximum penalty,
and therefore, any sentence above a 90 [day] flat sentence violates the
state and federal Due Process Clauses?
Commonwealth v. Eid, 226 A.3d 566 (Pa. 2020) (per curiam).
9 To the extent that the Superior Court affirmed Eid’s conviction because he refused
blood testing, that court erred in overlooking Birchfield’s prohibitions.

[J-85-2020] - 8
administered as a search incident to a lawful arrest for drunk driving. As in all cases

involving reasonable searches incident to arrest, a warrant is not needed in this

situation.”).

The notes of testimony from Eid’s first trial, which were introduced at his

subsequent prosecution, confirm that he refused both blood and breath testing roughly

half a dozen times between 1:40 a.m. and 2:03 a.m. on February 26, 2015, shortly after

being transferred to AID. As the late Officer Harrison recounted, upon entering the room

where the officer waited to process him, Eid—unprompted—initially refused all testing.

Eid refused again after Officer Harrison read him the O’Connell warnings and 75-439

Report for Chemical Testing. See N.T., 3/2/2016, at 18, 19 (“He signed them and said

no to the test.”). He refused once more after being read the DL-26 form, on which the

words “breath” and “blood” were handwritten on a blank line next to a prompt indicating

the specific tests requested by the officer. And then he refused twice at the nurses’

station.

Although Officer Harrison indicated that he offered Eid a blood test after noticing

marijuana debris in Eid’s mouth, significantly—and fatal to Eid’s presumption—the signed

DL-26 form corroborates Officer Harrison’s testimony that Eid also specifically refused

breath testing. Eid thus was “provided with an opportunity to make a ‘knowing and

conscious choice’ between providing voluntary consent to a chemical test”—pertinently,

of his breath—“or accepting the consequences that will follow from the refusal to do so.”

Commonwealth v. Myers, 164 A.3d 1162, 1180-81 (Pa. 2017). That evidence was

sufficient to sustain Eid’s conviction pursuant to subsection 1543(b)(1.1)(i) for refusing a

breath test. Neither Birchfield nor the other grounds asserted in Eid’s first question

[J-85-2020] - 9
presented for review compels us to reverse that determination under these

circumstances.10

B.

Turning to the second issue, Eid contends that the sentencing provision in

subsection 1543(b)(1.1)(i) “is illegal because the Legislature failed to provide a clear

statutory maximum penalty applicable to the crime rendering the permissible range of

sentences unconstitutionally vague in violation of due process under both the

10 We recognize that a reasonable argument could be made that our recent decision
in Monarch entitles Eid to relief. However, Monarch is distinguishable. There, the trial
court instructed the jury to “make a finding [whether Monarch] did not or did refuse testing
of blood” following his DUI arrest. 200 A.3d at 53 (quoting N.T., 2/12/2016, at 317). When
the jury found Monarch guilty and determined that he had refused a blood test, the court
imposed a mandatory minimum term of imprisonment. We vacated the judgment of
sentence in light of Birchfield’s rule that a warrantless blood draw, when compelled on
pain of criminal punishment, violates the Fourth Amendment. We also rejected the
Superior Court’s conclusion that the sentence was lawful on alternative grounds because
Monarch had refused breath testing. That was so, we reasoned, notwithstanding the
presumptive constitutionality of warrantless breath testing under Birchfield, because “the
question of whether [Monarch] refused breath testing was not submitted to the jury,” and,
thus, “any sentence based on such a refusal [would be] unconstitutional in violation of
Alleyne” v. United States, 570 U.S. 99, 103 (2013) (holding that “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to the jury and
found beyond a reasonable doubt”). Monarch, 200 A.3d at 57-58 (emphasis added).
Accordingly, because the fact-finder was not asked whether Monarch had refused breath
testing, and therefore did not make such a finding beyond a reasonable doubt, we
concluded that “there was no legal basis for [Monarch’s] enhanced mandatory minimum
sentence.” Id. at 58.
Monarch thus stands for the proposition that, when a jury is available to make
factual findings in the first instance upon which a particular conviction or sentence might
turn, neither the trial court nor a reviewing court may resolve, post hoc, unanswered
questions of fact. While facts that trigger sentencing enhancements constitute elements
of the underlying crimes and need to be found beyond a reasonable doubt at trial
regardless of whether the fact-finder is a judge or jury, see, e.g., Commonwealth v. Bizzel,
107 A.3d 102, 105 (Pa. Super. 2014); Commonwealth v. Cardwell, 105 A.3d 748, 750-51
(Pa. Super. 2014); Commonwealth v. Fennell, 105 A.3d 13, 16 (Pa. Super. 2014);
Commonwealth v. Munday, 78 A.3d 661, 666 (Pa. Super 2013), whether Alleyne requires
more of a trial court sitting as fact-finder is an open question. As we are without developed
advocacy on that issue, we ought not attempt to resolve it today.

[J-85-2020] - 10
Pennsylvania and Federal Constitutions.” Eid’s Brief at 18. He observes that both the

Supreme Court of the United States and this Court have held that vague sentencing

provisions violate due process because such provisions deprive a person of liberty

without fair notice of the consequences of their actions. Id. at 18-19 (citing Michigan v.

Long, 463 U.S. 1032 (1983); Commonwealth v. Bell, 645 A.2d 211, 215 n.9 (Pa. 1994)

(“We believe that fairness [under the independent tenets of the Commonwealth’s due

process principles] requires that a defendant be notified of the maximum sentence he

could face for committing a particular offense.”)). Eid posits that a court cannot fill in the

gaps of a vague sentencing statute where the General Assembly “has abdicated its duty

to define the maximum range of a penalty.” Id. at 20 (citing Commonwealth v.

Derhammer, 173 A.3d 723, 733 (Pa. 2017) (Wecht, J., concurring) (explaining that the

judiciary is not empowered to rewrite the law by guessing what the General Assembly

might do)).

Eid asserts that any interpretation of the DUS statute that would impose a

maximum term of more than ninety days’ imprisonment for refusing chemical testing is

constitutionally infirm. However, pointing to the statute’s mandatory $1,000 fine for a DUS

conviction under the same provision, Eid also claims that, had the Legislature intended

to direct courts to impose a mandatory ninety-day flat sentence, it would have said so

directly. An express directive would have been necessary, in his view, to overcome the

Sentencing Code’s general rule that each criminal sentence be indeterminate, with a

minimum term that is no greater than half of its maximum term. See 42 Pa.C.S.

§ 9756(b)(1). Additionally, Eid notes that the General Assembly’s express invocation of

a minimum and maximum sentencing range for the general DUS provision in

subsection 1543(b)(1)(i) (providing that a violator “shall be sentenced to pay a fine of $500

and to undergo imprisonment for a period of not less than 60 days nor more than 90

[J-85-2020] - 11
days”) demonstrates its ability to use that limiting phrase. The General Assembly’s failure

to do so in subsection 1543(b)(1.1)(i), Eid argues, is glaring. Eid’s Brief at 30-35.

The Commonwealth counters that the DUS statute can be read so as to mandate

a minimum sentence of ninety days with a maximum term not to exceed six months. In

its view, as applied to a sentencing provision, the phrase “not less than” plainly sets the

lower end of a mandatory sentencing range. Commonwealth’s Brief at 15 (citing

subsection 1543(b)(1.1)(ii)-(iii) (grading second and subsequent DUS violations as

misdemeanors punishable by terms of imprisonment “not less than six months” and “not

less than two years,” respectively)); see also id. at 16-17 (citing Commonwealth v.

O’Brien, 514 A.2d 618, 620 (Pa. Super. 1986) (“The words ‘not less than’ used in the

statute unambiguously connote a minimum term of imprisonment. It strains all notions of

common sense to suggest that ‘not less than’ can reasonably be interpreted as meaning

‘maximum.’”)).

In support of its position, the Commonwealth cites Commonwealth v. Koskey, 812

A.2d 509 (Pa. 2002), in which this Court reviewed a sentence imposed under a prior

version of subsection 1543(b)(1) (relating to DUS-DUI generally). At the time,

paragraph (b)(1) mandated a sentence of “not less than 90 days” upon conviction. In

affirming a flat ninety-day sentence under the predecessor statute to

subsection 1543(b)(1.1)(i), the Court found that “‘the plain language of the statutory

scheme required sentencing courts to adhere to the mandatory minimum sentencing

guidelines for violations of Section 1543(b)(1).’” Commonwealth’s Brief at 17-18 (quoting

Koskey, 812 A.2d at 511); see also Commonwealth v. Yale, 657 A.2d 987, 988 (Pa.

Super. 1995) (“[A] violation of 75 Pa.C.S. § 1543(b) requires a mandatory minimum

sentence of ninety days imprisonment, plus fines.”). The Commonwealth notes that the

same penalty term found in paragraph (b)(1) was later included in paragraph (b)(1.1)(i)

[J-85-2020] - 12
when Section 1543 was amended in 2002. Thus, the Commonwealth asserts that

Koskey’s holding should apply to the successor statute’s indistinguishable language. Id.

at 18 (citing Hous. Auth. of Cty. of Chester v. Pa. State Civil Serv. Comm’n, 730 A.2d 935,

946 (Pa. 1999) (“When the meaning of a word or phrase is clear when used in one section,

it will be construed to mean the same thing in another section of the same statute.”)).

The absence of an express maximum penalty for a first violation of

subsection 1543(b)(1.1)(i) does not invalidate the statute, the Commonwealth claims,

because, when read in conjunction with Section 6503 of the Vehicle Code (relating to

subsequent convictions for certain offenses), a statutory limit of six months’ imprisonment

may be inferred where a maximum sentence for a summary DUS-DUI offense is

unspecified. The Commonwealth points to the statutes’ historical development, which it

believes demonstrates that the maximum term for a summary DUS violation under

Section 1543(a) also covers summary DUS-DUI offenses under Section 1543(b).

Commonwealth’s Brief at 19. Specifically, Section 6503 mandates that a person who

commits a second or subsequent DUS violation under Section 1543(a)—a summary

offense—may be sentenced to a term of imprisonment “‘of not more than six months.’”

Id. at 20 (quoting 75 Pa.C.S. § 6503(a)-(a.1)). Positing that Subsection 1543(b)(1.1)(i),

which grades a first DUS violation as a summary offense, cannot be considered in

isolation from the penalty provision of Section 6503, the Commonwealth concludes that

Section 6503’s six-month maximum should also apply to paragraph (b)(1.1). Id.

As the Commonwealth recounts, prior to December 3, 2002, the recidivist penalties

under Section 6503 were not limited to repeat offenders of Section 1543(a). Instead, the

former version of Section 6503 called for terms of “‘imprisonment for not more than six

months’” for all second or subsequent convictions under Section 1543. Id. (quoting Act

of Dec. 21, 1998, P.L. 1126, No. 151, § 58). A 2002 amendment narrowing

[J-85-2020] - 13
Section 6503’s express terms to violations of Section 1543(a) was adopted in the same

bill that created paragraph (b)(1.1). Id. at 21 (citing P.L. 845, No. 123, §§ 3, 10.1). The

Commonwealth notes that the legislation left intact the mandatory penalty of “not less

than 90 days” for DUS-DUI violations under subsection 1543(b)(1)—identical to the

penalty mandated under the newly-enacted paragraph (b)(1.1)(i)—without stating an

explicit maximum term for subsequent violations. The Commonwealth claims that these

simultaneous amendments to Sections 1543(b) and 6503 reveal the General Assembly’s

intent that the statutory maximum penalty for a summary offense under both

subsections 1543(b)(1) and (b)(1.1)(i) be six months. The Commonwealth asserts that a

contrary interpretation would result in individuals who commit multiple DUS-DUI offenses

under subsection 1543(b)(1), as well as first-time offenders of paragraph (b)(1.1), being

sentenced to less severe penalties than those who commit multiple offenses under the

arguably less serious Section 1543(a), where the license suspension is unrelated to a

DUI. Id. at 21.

The evolution of the DUS statutes thus demonstrates that the language in

Section 6503 was limited to violations of Section 1543(a), the Commonwealth claims,

simply because the General Assembly already understood that the statutory maximum

penalty for a violation of paragraphs (b)(1) and (b)(1.1)(i) was six months’ imprisonment.

Id. at 22 (citing Bell, 645 A.2d at 217-18 (holding that statute setting forth mandatory

sentences was not unconstitutionally vague, although the statute provided no maximum

sentences, where sentences which “further[ed] the intent of the legislature” could be

reasonable inferred from other statutory provisions)). Although the penalty under

paragraph (b)(1) has since been amended, the Commonwealth again notes that the

language in paragraph (b)(1.1)(i) was left unchanged. Id. at 23.

[J-85-2020] - 14
 The Commonwealth also contests Eid’s assertion that Section 1543 of the Vehicle

Code is subject to the Sentencing Code’s general requirement of minimum-maximum

sentencing. Id. at 24. Section 1543 is not subject to that rule, the Commonwealth claims,

because the implied six-month maximum sentence complies with constitutional limits for

summary traffic offenses. Id. (citing Baldwin v. New York, 399 U.S. 66, 69 (1970) (“[N]o

offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment

for more than six months is authorized.”)). In that regard, the Commonwealth rightly

observes that Section 6503 was amended in 1986 to reduce the maximum sentence from

one year to six months in order to bring it within the constitutional limit announced in

Baldwin. Id. at 24-25 (citing Commonwealth v. Sperry, 577 A.2d 603, 605 n.3 (Pa. Super.

1990) (en banc) (“Following the 1986 amendment, the statute, [Section 6503,] provided

for a maximum prison term of six months, to comply with the decision in Baldwin v. New

York.”)); see also Blanton v. Cty. of N. Las Vegas, 489 U.S. 538, 543-45 (1989) (holding

that offenses carrying a maximum prison term of six months or less are presumed to be

“petty” for purposes of the Sixth Amendment, therefore a DUI offense providing a

maximum penalty of six months’ imprisonment and a $1,000 fine was presumed to be a

petty offense and did not entitle violators to a jury trial).

Lastly, the Commonwealth suggests that Eid’s reliance upon the Sentencing

Code’s general rule of indeterminate sentences is misplaced here because the Vehicle

Code establishes a separate sentencing scheme for summary DUS-DUI offenses. See

Commonwealth’s Brief at 25 (quoting Bell, 645 A.2d at 217 (noting that although “the

minimum-maximum rule of [Section] 9756(b) is a longstanding concept in our

Commonwealth, it is a statutory and not a constitutional provision”)). The Commonwealth

concludes that Section 9756(b)’s general rule must yield to the specific provision of

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Section 9756(c.1), which authorizes flat sentences for DUS-DUI offenders.

Commonwealth’s Brief at 27 n.14.

With the preceding arguments in mind, we begin by reiterating the longstanding

precept that legislative enactments are presumed to be constitutional. One who

challenges the constitutionality of a statute bears a heavy burden of persuasion.

Commonwealth v. Mikulan, 470 A.2d 1339, 1340 (Pa. 1983). “Accordingly, legislation will

not be declared unconstitutional unless it ‘clearly, palpably and plainly’ violates the

constitution.” Id. (citation omitted).

Eid asserts that the DUS statute under which he was sentenced lacks a statutory

maximum penalty, and thus is unconstitutionally vague in violation of state and federal

due process principles. Generally speaking, in criminal matters, “the void-for-vagueness

doctrine requires that a penal statute define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v.

Lawson, 461 U.S. 352, 357 (1983). It is well-settled that vague sentencing provisions

violate due process where they fail to provide offenders with fair notice of the

consequences for a particular crime. Johnson v. United States, 576 U.S. 591, 595-96

(2015) (“The prohibition of vagueness in criminal statutes . . . appl[ies] not only to statutes

defining elements of crimes, but also to statutes fixing sentences.”) (citing United States

v. Batchelder, 442 U.S. 114, 123 (1979)).

We begin, as we must, with the statute’s text. In pertinent part, a person who

drives with a suspended license in Pennsylvania and who refuses a chemical breath test

is guilty of a summary offense (upon a first conviction) “and shall be sentenced to pay a

fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.”

75 Pa.C.S. § 1543(b)(1.1)(i). We share the Commonwealth’s view that the phrase “not

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less than 90 days,” by its plain terms, establishes a mandatory minimum term below which

a sentencing court may not fall when imposing a penalty for a first-time DUS offender.

See O’Brien, 514 A.2d at 620. We also recognize, as do the parties, that the statute is

silent as far as the available maximum sentence is concerned.

Concluding that the duty falls to this Court to fill that gap by inferring a particular

duration of punishment, the Commonwealth submits that a six-month maximum is

appropriate for several reasons. Adopting the Superior Court’s analysis, the

Commonwealth points to Section 6503 of the Vehicle Code as a potential gap-filler.11

11 Section 6503 (“Subsequent convictions of certain offenses”) provides:
(a) General offenses.—Every person convicted of a second or subsequent
violation of any of the following provisions shall be sentenced to pay a fine
of not less than $200 nor more than $1,000 or to imprisonment for not more
than six months, or both:

Section 1543(a) (relating to driving while operating privilege is
suspended or revoked) except as set forth in subsection (a.1).

Section 3367 (relating to racing on highways).

Section 3734 (relating to driving without lights to avoid
identification or arrest).

Section 3748 (relating to false reports).

(a.1) Certain repeat offenses.—A person convicted of a sixth or
subsequent offense under section 1543(a) shall be sentenced to pay a fine
of not less than $1,000 and to imprisonment for not less than 30 days but
not more than six months.

(b) Driving without a license.—Every person convicted of a second or
subsequent violation of section 1501(a) (relating to drivers required to be
licensed) within seven years of the date of commission of the offense
preceding the offense for which sentence is to be imposed shall be
sentenced to pay a fine of not less than $200 nor more than $1,000 or to
imprisonment for not more than six months, or both.
75 Pa.C.S. § 6503.

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Section 6503 indeed sets a maximum term of six months’ imprisonment, but that

punishment is applicable only to “a second or subsequent violation” of certain enumerated

offenses—not including subsection 1543(b)(1.1)(i) of the DUS statute. Because the

instant case relates to a first DUS offense, of a class not enumerated in Section 6503, the

Commonwealth’s reliance upon that provision is misplaced.

The Commonwealth then relies heavily upon this Court’s decision in Bell, which,

at first glance, lends some credence to its view that sentencing terms can be inferred.

There we rejected a vagueness challenge to 18 Pa.C.S. § 7508(a)(1)(ii)-(iii), a mandatory

minimum sentencing statute for marijuana trafficking that similarly lacked a maximum

term. The provisions at issue mandated minimum terms of three or five years’

imprisonment for violations of clauses (12), (14), or (30) of subsection (a) of the Controlled

Substance, Drug, Device and Cosmetic Act (“Drug Act”), 35 P.S. § 780-113, dependent

upon the weight of the drugs possessed for delivery by the offender. Bell, 645 A.2d at

214-15. A separate provision of the Drug Act commanded that any person who violated

those same clauses “shall be sentenced to imprisonment not exceeding five years.”

35 P.S. § 780-113(f)(2). Consequently, the Court was forced to acknowledge the “alleged

inconsistency” arising from these conflicting sentencing provisions, which it concluded

were “incompatible with” the minimum-maximum rule contained in Section 9756(b) of the

Sentencing Code. Bell, 645 A.2d at 215.

To resolve these conflicts, the Bell Court simply sidestepped the rule. The Court

reasoned that Section 9756(b) “is a statutory and not a constitutional provision,” and

therefore would not bar a sentence of three to five years’ imprisonment or a flat sentence

of five years given the exception it deemed “carve[d]” out by the prefatory language in

Section 7508(a) (“General rule.—Notwithstanding any other provision of this or any other

act to the contrary . . .”). Id. at 217. Relying upon the legislative history of Section 7508,

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the Court found “this interpretation to be the most desirable since it further[ed] the intent

of the legislature to invoke harsher minimum penalties for drug trafficking, without raising

constitutional concerns.” Id. Having divined this punitive intent from the legislative record,

the Court held that the absence of maximum sentencing terms from Section 7508 would

not require the statute to be invalidated where those terms—namely, a five-year

maximum for each of the crimes at issue—“can be reasonably implied when that section

is read together with [Section] 113(f)(2) of the Drug Act.” Id. at 218.

We have not applied Bell’s holding beyond the particular circumstances of the Drug

Act’s mandatory sentencing scheme. See Commonwealth v. Ramos, 83 A.3d 86, 92-93

(Pa. 2013) (holding that the general rule regarding minimum and maximum sentences

must yield to 42 Pa.C.S § 9712.1(a)’s offense-specific five-year mandatory minimum,

which “applies only to the subset of criminals who have been convicted of 35 P.S. § 780-

113(a)(3) while in physical possession of a firearm”). And we decline to do so today, as

attempting to infer a maximum term here “would force us to engage in sheer speculation

as to which sentence the General Assembly intended.” Bell, 645 A.2d at 217. As an

initial matter, there is no similar prefatory language in the DUS statute by which to carve

out an exception à la Bell. We must therefore assume that the Sentencing Code’s general

rule of minimum-maximum sentencing applies to the pertinent section of the Vehicle Code

at issue. If we were to infer a statutory maximum of six months as the Commonwealth

requests, however, then “not less than” necessarily would also mean “not more than”

ninety days in order to comply with the general rule, in which case the limiting phrase

would be superfluous. A similar problem would arise if we were to infer any maximum

below six months, as it immediately would run counter to the general rule. Given the

absence of a statutory hook by which to fashion a principled exception to the rule in that

manner, that result would be particularly untenable.

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 Moreover, contrary to the Commonwealth’s suggestion, we do not read

Section 9756(c.1) of the Sentencing Code as expressly sanctioning the imposition of flat

sentences for violations of the Vehicle Code. That provision merely permits the imposition

of a sentence of imprisonment without parole where, among other things, “the maximum

sentence of total confinement imposed on one or more indictments to run consecutively

or concurrently total 90 days or less.” 42 Pa.C.S. § 9756(c.1)(2). Notwithstanding its

applicability in certain circumstances where the Vehicle Code (and other statutes)

expressly provides for sentences of incarceration of ninety days or less—which is not the

case under subsection 1543(b)(1.1)(i)’s mandatory minimum sentencing requirement—

Section 9756(c.1) does not constitute a standalone exception to the general rule of

minimum-maximum sentencing specifically applicable here. And even though the

Commonwealth is correct that this Court affirmed a ninety-day flat sentence for DUS in

Commonwealth v. Koskey, we note that no challenge was raised to the legality of that

sentence or to the portion of the sentencing statute providing for it. As such, Koskey does

not resolve the question now before us. Nor would resolution of that question be helpful

here, where no flat sentence was imposed.12

Finally, the Commonwealth proffers that the six-month maximum should be

assumed based upon conditions that the General Assembly has imposed in roughly

12 Although we have not been asked to review the legality of flat sentencing under
these circumstances, we are cognizant of the conflicting Superior Court precedents on
this matter, the resolution of which must await an appropriate case or controversy.
Compare Commonwealth v. Klingensmith, 650 A.2d 444, 447-48 (Pa. Super. 1994)
(holding that a prior version of Section 1543(b) of the Vehicle Code “implicitly creates an
exception to” the minimum-maximum sentence rule “by specifically authorizing a trial
court to impose a flat minimum mandatory sentence of ninety days for driving with a
suspended license when the license was suspended as a result of a prior DUI
conviction”), with Commonwealth v. Postie, 110 A.3d 1034, 1044-45 (Pa. Super. 2015)
(holding that a flat sentence of four months’ imprisonment for a conviction under
Section 1543(a) of the Vehicle Code violated the minimum-maximum sentencing rule).

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comparable contexts—i.e., six months for summary offenses where the right to a jury is

not afforded. See Sperry, 577 A.2d at 605 n.3. Once again, we disagree. Though it

appears likely that the General Assembly is constrained to cap the punishment for

summary DUS offenses at six months’ imprisonment given the constitutional restrictions

outlined by the Supreme Court in Baldwin, we decline to infer that limit inasmuch as the

Legislature is not required to set the maximum sentence that high. It is neither the

judiciary’s role, nor within our constitutional authority, to fill gaps in sentencing statutes

resulting from the General Assembly’s omissions. See Derhammer, 173 A.3d at 732

(Wecht, J., concurring) (“Filling such gaps is an inherently legislative function, which the

judiciary should leave to those who have been elected by the people to write the laws.”).

In order to afford sufficient notice for due process purposes, a sentencing statute

“must specify the range of available sentences with ‘sufficient clarity.’” Beckles v. United

States, ___ U.S. ___, 137 S.Ct. 886, 892 (2017) (quoting Batchelder, 442 U.S. at 123).

As the foregoing analysis demonstrates, that clarity is lacking here. The statutory history

relied upon by the Commonwealth unmistakably reveals the existence of a gap in the

DUS statute that has persisted since the inception of paragraph (b)(1.1)(i) nearly two

decades ago. We hold that the absence of a maximum term renders the pertinent DUS

sentencing provision unconstitutionally vague and inoperable for the time being. We

leave it to the General Assembly to remedy this impediment, if it so chooses, either by

amending the statute to provide for a maximum term of imprisonment or by expressly

permitting flat sentencing within a range not to exceed that maximum sentence.

Accordingly, while we affirm the Superior Court’s order upholding Eid’s conviction

for refusing chemical testing after driving under a suspended license, albeit on alternative

grounds, we vacate his sentence of imprisonment for that offense. Because the only

punishment that lawfully may be imposed at this time for a violation of DUS pursuant to

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subsection 1543(b)(1.1)(i) is the mandatory $1,000 fine, we affirm that portion of Eid’s

sentence. The case is remanded to the Superior Court for further proceedings consistent

with this opinion.

Chief Justice Baer and Justices Todd, Donohue, Dougherty and Mundy join the

opinion.

Justice Saylor files a concurring and dissenting opinion.

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