Commonwealth v. Littlehales

CONCURRING AND DISSENTING OPINION BY

JOYCE, J.:

¶ 11 concur in the Majority’s determination that Appellant has raised a challenge to the discretionary aspects of the sentence; that he has properly preserved the issue through post-sentence motions; and that he has complied with Pa.R.A.P. 2119(f) by setting forth a substantial question in his brief. However, I do not agree with the Majority’s reading of 42 Pa.C.S.A. § 9717(a). Therefore, I dissent and write separately.

¶ 2 The provision in question is as follows:

§ 9717. Sentences for offenses against elderly persons
(a) Mandatory sentence. — A person under 60 years of age convicted of the following offenses when the victim is *667over 60 years of age and not a police officer shall be sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 3922 (relating to theft by deception) — not less than 12 months, but the imposition of the minimum sentence shall be discretionary with the court where the court finds justifiable cause and that finding is written in the opinion.

42 Pa.C.S.A. § 9717(a) (emphasis added).

¶ 3 The Majority reads the above language to require a written finding of justifiable cause to impose the mandatory minimum of 12 months.8 I cannot agree with the Majority’s interpretation of what it calls the statute’s “plain language.” Majority Opinion, at ¶ 10. Instead, I read the provision to require the imposition of a minimum sentence of 12 months unless the court finds justifiable cause to impose a lesser sentence, and explains that finding in a written opinion.

¶ 4 The trial court did not express any basis for imposing a lesser sentence because the trial judge determined that he did not “find ... justifiable cause to not follow the mandatory.” N.T., 4/6/06, at 17 (emphasis added). Subsequently, in its Rule 1925(a) opinion, the trial court explained that “this Court determined that the appropriate sentence was issued. Therefore, this Court is of the opinion that it did not abuse its discretion by imposing the discretionary mandatory.” Trial Court Opinion, 6/5/06, at 5. While the trial court employs an oxymoron when referring to the “discretionary mandatory,” I agree— as does the Majority — that the provision in question does create, in effect, a discretionary mandatory minimum sentence. Unlike the Majority, however, I find that the trial court correctly interpreted § 9717 with respect to theft by deception, and did not abuse its discretion by imposing a 12 month minimum sentence in accordance with § 9717. Therefore, I would affirm the judgment of sentence.

¶ 5 The statutory language in question is far from a model of clarity. I believe an argument can be made for the Majority’s reading of the provision as well as for my interpretation. Faced with the ambiguous language of § 9717, it is appropriate to look beyond the words of the statute to resolve the ambiguity. As our Supreme Court has stated:

[Wjhere the intent of the legislature is clear from the plain meaning of the statute, courts need not pursue statutory interpretation. Only when the language of the statute is ambiguous does statutory construction become necessary. In addition, we note that penal statutes are to be strictly construed. Strict construction does not require that the words of a penal statute be given their narrowest possible meaning or that legislative intent be disregarded. It does mean, however, that where ambiguity exists in the language of a penal statute, such language should be interpreted in the light most favorable to the accused.

Commonwealth v. Packer, 568 Pa. 481, 488-89, 798 A.2d 192, 196 (2002) (quotations and citations omitted). I would submit that interpreting § 9717 to allow imposition of less than the mandatory minimum sentence, as long as the lesser sentence is supported by justifiable cause, is the interpretation that is most favorable to the accused.

¶ 6 In light of the ambiguity on the face of the provision, I urge the Legislature to *668revisit § 9717(a) with respect to the crime of theft by deception, and indicate whether the trial court must justify in writing the imposition of the mandatory minimum sentence, or whether the trial court must justify the imposition of less than the mandatory minimum sentence.9 I would also encourage the Legislature to clarify the directive relating to a written opinion supporting the finding of justifiable cause, by confirming whether a separate written opinion is mandated, or whether — as the Majority concludes — “a court satisfies the requirement of a written ‘justifiable cause’ opinion if it states on the record, in the defendant’s presence during sentencing, its determination of justifiable cause and the factual findings underlying that determination.” Majority Opinion, at ¶ 11.

¶ 7 For the reasons set forth above, I concur in part and dissent in part, and would affirm the judgment of sentence imposed by the trial court.

. The trial court in the case sub judice imposed the mandatory minimum of 12 months, but did not support its sentence with a written finding of justifiable cause. Therefore, the Majority concluded that the trial court abused its discretion by misapplying the law.

. The information reported in the Pennsylvania Legislative Journal is not helpful in resolving the ambiguity. On the House of Representative’s third consideration of Senate Bill 1151, the legislation passed by the House did not include a mandatory minimum for theft by deception. S.B. 1151, Pa. Legis. Journal—House, at pp. 1169-71 (November 9, 1982). The Senate, however, did not concur in the legislation as passed by the House, and the bill was referred to conference committee. S.B. 1151, Pa. Legis. Journal—Senate, at p. 2560 (November 9, 1982). The Senate subsequently adopted the report of the conference committee. S.B. 1151, Pa. Legis. Journal—Senate, at p. 2790 (November 23, 1982). The legislation enacted as Act 334 of 1982 included the provision in dispute here. Although the provision apparently was added by the conference committee, there is no indication why it was added, or why theft by deception is the only one of the four crimes addressed in § 9717 that includes any discretionary language.