Hudson, B., Aplt v. Pa.BPP ( 2019 )

[J-56-2019] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
BERT HUDSON, : No. 17 WAP 2018
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered May
: 29, 2018 at No. 444 MD 2017.
v. :
:
:
PENNSYLVANIA BOARD OF :
PROBATION & PAROLE, : SUBMITTED: MARCH 21, 2019
:
Appellee :
CONCURRING OPINION
JUSTICE WECHT DECIDED: MARCH 26, 2019
This appeal requires the Court to interpret various statutory provisions in order to
ascertain whether, in the absence of a direct legislative statement, the General Assembly
intended that a person convicted of, and sentenced for, second-degree murder1 would be
eligible for parole. In part, the learned Majority resolves this question through a plain
language analysis of 61 Pa.C.S § 6137. See Maj. Op. at 10-11. I join that aspect of the
Majority’s opinion, and I join in the Court’s ultimate disposition. I write separately because
my interpretation of one of the other statutes implicated in this case differs slightly from
that of the Majority.
In matters of statutory interpretation, our objective is to ascertain and effectuate
the General Assembly’s intent. 1 Pa.C.S. § 1921(a). “In discerning that intent, the court
first resorts to the language of the statute itself. If the language of the statute clearly and
unambiguously sets forth the legislative intent, it is the duty of the court to apply that intent
1 18 Pa.C.S. § 2502(b).
to the case at hand and not look beyond the statutory language to ascertain its meaning.”
In re L.B.M., 161 A.3d 172, 179 (Pa. 2017) (quoting Mohamed v. Commonwealth, Dep’t
of Transp., Bureau of Motor Vehicles, 40 A.3d 1186, 1193 (Pa. 2012)). “When the words
of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b).
In this case, the plain and unambiguous language that the General Assembly
expressed in subsection 6137(a) is dispositive. Our Crimes Code mandates that any
person convicted of second-degree murder be sentenced “to a term of life imprisonment.”
18 Pa.C.S. § 1102(b). Subsection 6137(a) affords the parole board the discretion to
release any inmate on parole “except an inmate condemned to death or serving life
imprisonment.” 61 Pa.C.S. § 6137(a)(1). The General Assembly’s use of the term “life
imprisonment” in both of these provisions indicates, plainly and unambiguously, that it
intended to ensure that those convicted of second-degree murder are never to be
released on parole. This unequivocal expression of legislative will is all that is necessary
to resolve the issue before the Court today.
This is so regardless of what we can glean from a survey of other statutory
provisions that might be relevant to this issue, particularly inasmuch as the meaning and
effect of those other provisions are unclear. Allow me to explain. Put aside subsection
6137(b)(1) for the moment; what remains are statutory provisions that create something
of a stalemate, with some provisions militating in favor of Hudson’s claim that parole
eligibility for a second-degree murderer not only is possible, but is required, while other
provisions foreclose even the possibility of parole. There are instances in our Crimes
Code in which the General Assembly has specified that a life sentence means “life without
parole,” but others in which the General Assembly did not include the “without parole”
language, a circumstance which supports the argument that, when the General Assembly
[J-56-2019 [MO: Saylor, C.J.] - 2
specifically intended for a life sentence to be one in which parole is not an option, it said
so explicitly. One such example is Pennsylvania’s Three Strikes Law, in which the
General Assembly has instructed that, if a person has committed three or more violent
crimes, and twenty-five years in prison is insufficient to protect the safety of the public, a
trial court may sentence the offender to “life imprisonment without parole.” 42 Pa.C.S. §
9714(a)(2) (emphasis added). Another example lies in the sentencing provision for arson
resulting in death, which is a form of second-degree murder. The General Assembly
prescribed the punishment for second-degree murder predicated upon arson as “life
imprisonment without right to parole.” 18 Pa.C.S. § 3301(b)(1) (emphasis added). As
arson already is a predicate crime for second-degree murder, see 18 Pa.C.S. § 2502(d)
(defining “perpetration of a felony” as including “robbery, rape, or deviate sexual
intercourse by force or threat of force, arson, burglary or kidnapping”), and as all other
predicates are subject only to “life imprisonment,” it is at least reasonable to infer that the
General Assembly intended to differentiate between the predicate crimes for second-
degree murder. See Commonwealth v. Spotz, 716 A.2d 580, 590 (Pa. 1998) (explaining
that the “fundamental maxim of statutory construction, ‘expresio unius est exclusio
alterius,’ stands for the principle that the mention of one thing in a statute implies the
exclusion of others not expressed.”).
The strongest evidence that the General Assembly intended that second-degree
murderers be eligible for parole can be found in the version of 42 Pa.C.S. § 9756 that was
in effect at the time Hudson was sentenced. As the Majority notes, in that provision, the
General Assembly expressly omitted “only” four categories of offenders from parole
eligibility: (1) those convicted of first-degree murder; (2) individuals sentenced for
summary offenses; (3) persons incarcerated for nonpayment of fines or costs; and (4)
offenders whose sentences do not exceed thirty days in jail. Id. § 9756(c) (1974). The
[J-56-2019 [MO: Saylor, C.J.] - 3
Majority acknowledges that the language of this statute is “somewhat confounding, as it
does seem to imply that,” a sentencing court must set a parole date in every instance
except the four enumerated categorical exceptions. See Maj. Op. at 9. Disregarding this
clear legislative directive that “only” those four categories are exempted from the general
“right to parole,” 42 Pa.C.S. § 9756(c) (1974),2 the Majority maintains instead that the
General Assembly “never intended specifically to create a personal right to be reviewed
for parole.” Maj. Op. at 10. Rather, the Majority reasons, the provision was “meant to
direct common pleas courts in discharging their sentencing obligations.” Id. For the
Majority, this means that the trial court here “settled on the concept that, in view of the
mandatory nature of the life sentence associated with [Hudson’s] offense,” the court had
no choice but to impose a sentence of life without parole. Id. I disagree respectfully with
the Majority’s interpretive approach. As noted, our first obligation is to give effect to the
words that the General Assembly actually used. In subsection 9756(c), the General
Assembly unambiguously limited a sentencing court’s ability to sentence a person without
the “right to parole” to four distinct categories of offenders. Second-degree murderers do
not fall within one of the four categories. Thus, at least at this juncture in the interpretive
process, subsection 9756(c) weighs strongly in Hudson’s favor.
However, other compelling considerations militate against parole eligibility for
second-degree murderers. Subsection 9756(b)(1) governs how sentencing courts must
calculate an offender’s minimum sentence. That provision mandates that a minimum
sentence “shall not exceed one-half of the maximum sentence imposed.” 42 Pa.C.S. §
2 The present version of subsection 9756(c) does not include first-degree murder as
one of the categories of crimes automatically excluded from parole eligibility. The other
three excluded categories remain. See 42 Pa.C.S. § 9756(c). Of course, removing first-
degree murder from subsection 9756(c) does not mean that the crime is one that carries
with it the possibility of parole. Like second-degree murder, first-degree murder, for which
a person is sentenced to life imprisonment upon conviction (or death), is governed by the
prohibition on release in subsection 6137(a)(1).
[J-56-2019 [MO: Saylor, C.J.] - 4
9756(b)(1). If, as subsection 9756(c) seemingly requires, a second-degree murderer is
entitled to a parole eligibility date, subsection 9756(b)(1) renders a sentencing court’s
obligation to set such a date “impossible of execution.” See 1 Pa.C.S. § 1922(1). As the
Majority explains, because no court can know when a life term will end, no court can set
an eligibility date that complies with the terms of subsection 9756(b)(1). See Maj. Op. at
7. Hence, the result is a statutory stalemate, with one provision requiring a court to act
while, at the same time, another provision in the same statute makes it impossible for the
court to perform that very act.
These conflicting provisions illustrate the difficulty in ascertaining the General
Assembly’s intent with regard to the question at bar in this case, absent consideration of
subsection 6137(a)(1). There is reason to believe that the General Assembly intended a
right of parole for those convicted of second-degree murder, at least as to those whose
convictions were not arson-related, while, at the same time, there is reason to believe
that the General Assembly did not so intend. Ultimately, however, we need not determine
definitively the relevance or impact of any section other than subsection 6137(a)(1). Only
that provision matters for purposes of our disposition here. Its clear and unambiguous
language expressly prohibits the parole board from releasing anyone serving a sentence
of “life imprisonment.” Anyone sentenced to second-degree murder is serving such a
sentence, and is not entitled to release at any time. For this reason, attempts to untangle
the knots created by the other statutory provisions are both futile and unnecessary, as no
resolution of those conundrums would result in Hudson’s, or any other second-degree
murderer’s, release.
To the extent that today’s resolution is not in accord with the General Assembly’s
actual intent, the onus falls upon our lawmakers to correct any misinterpretation through
the enactment of legislation. In the absence of such statutory clarification, our rules of
[J-56-2019 [MO: Saylor, C.J.] - 5
statutory construction compel reliance upon the plain language of subsection 6137(a)(1)
alone.
Justice Donohue joins this concurring opinion.
[J-56-2019 [MO: Saylor, C.J.] - 6