Com. v. Marks, M.

J-S26004-21
2021 PA Super 237COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MATTHEW COLLINS MARKS
Appellant No. 341 MDA 2021
Appeal from the Judgment of Sentence Entered February 11, 2021
In the Court of Common Pleas of the 39th Judicial District, Franklin County
Branch, Civil Division at No: 2020-02305
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
OPINION BY STABILE, J.: FILED: DECEMBER 7, 2021
Appellant, Matthew Collins Marks, appeals form the February 11, 2021
judgment of sentence imposing a flat 150 days of incarceration for violation
of a Protection From Abuse (“PFA”) order. Appellant argues the flat sentence
is illegal. We affirm.
On August 13, 2020, the trial court entered a temporary PFA order
against Appellant. An indirect criminal contempt (“ICC”) charge was filed
against Appellant on September 1, 2020, and, on September 10, 2020, the
trial court found Appellant in indirect criminal contempt and imposed a
$300.00 fine and six months of probation. Also on September 10, 2020, the
trial court entered a final protection from abuse order. On November 25,
2020, the trial court conducted a probation violation hearing (a Gagnon I
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hearing)1 based on Appellant’s alleged reporting violations and use of a
controlled substance. On February 11, 2021, Appellant waived his right to a
Gagnon II hearing and admitted the violations. N.T. 2/11/21, at 3-4. The
trial court imposed a flat sentence of 150 days of incarceration with
appropriate credit for time served. This timely appeal followed.
Appellant’s only argument is that the flat sentence is illegal. This
presents a question of law for which our standard of review is de novo and
our scope of review is plenary. Commonwealth v. Wolfe, 106 A.3d 800,
801-02 (Pa. Super. 2014), affirmed 140 A.3d 65 (Pa. 2016). Likewise, the
interpretation and construction of a statute is a question of law.
Commonwealth v. J.C., 199 A.3d 394, 398 (Pa. Super. 2018), appeal
denied, 210 A.3d 268 (Pa. 2019). Our goal is to effectuate the General
Assembly’s intent and give effect to all provisions of a statute. 1 Pa.C.S.A.
§ 1921(a).2
In Wagner v. Wagner, 564 A.2d 162 (Pa. Super. 1989), appeal
denied, 578 A.2d 415 (Pa. 1990), this Court held that a flat sentence is
permissible under the PFA statute. There, the defendant received a flat
sentence for ICC. He argued that because ICC is a crime, the
minimum/maximum rule set forth in the Pennsylvania Sentencing Code
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2 See generally, the Statutory Construction Act, 1 Pa.C.S.A. §§ 1501-1991.
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prohibits a flat sentence: “The court shall impose a minimum sentence of
confinement which shall not exceed one-half of the maximum sentence
imposed.” 42 Pa.C.S.A. § 9756(b)(1).
The Wagner Court disagreed, noting that the “PFA Act ‘has its roots in
equity and is essentially civil,” and that “a court’s use of its inherent power to
enforce its orders under the Act through contempt does not preclude a later
criminal prosecution to protect the Commonwealth’s interest in preventing
crime.” Id. at 163 (quoting Commonwealth v. Allen, 486 A.2d 363 (Pa.
1984)). The Wagner Court also noted that a contemnor under the PFA has
no right to a preliminary hearing or jury trial. Id. Further, the PFA Act was
meant to address spousal and child abuse, and its goal is to prevent future
abuse rather than impose punishment for past abuse. Id. at 163-64 (citing
Eichenlaub v. Eichenlaub, 490 A.2d 918, 920-22 (Pa. Super. 1985)). Thus,
the imposition of sanctions for contempt rests within the court’s inherent
power to enforce its orders. Id. at 164. In summary,
While a PFA proceeding is criminal in nature, it does not
receive all of the protections that regular criminal proceedings
receive. While criminal contempt is a crime, the sanctions
imposed because of it are best left to the discretion of the offended
court limited by only a few legislative restrictions. The PFA Act
was enacted as specific remedial legislation and for this court to
require that contemnors under this Act receive minimum as well
as maximum sentences would only weaken the effectiveness of
the Act. Had the legislature intended that minimum and
maximum sentencing requirements be part of the sanctions for
indirect criminal contempt under the PFA, it would have included
such language in the Act.
Id.
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Appellant argues that Wagner no longer controls because of
subsequent amendments to the PFA statute. Wagner considered former
§ 1019(b):
(b) Notwithstanding any provision of the law to the
contrary any sentence for this contempt may include
imprisonment up to six months or a fine not to exceed $1,000 or
both and the defendant shall not have a right to a jury trial on
such a charge.
35 Pa.C.S.A. § 1019(b), repealed (emphasis added). The current version of
the statue, codified at § 6114(b)(1) of the Domestic Relations Code, omits the
bolded phrase (hereinafter the “Notwithstanding Clause”):
(1) A sentence for contempt under this chapter may include:
(i)(A) a fine of not less than $300 nor more than $1,000 and
imprisonment up to six months; or
(B) a fine of not less than $300 nor more than $1,000 and
supervised probation not to exceed six months; and
(ii) an order for other relief set forth in this chapter.
23 Pa.C.S.A. § 6114(b)(1).
Citing Commonwealth v. Bell, 645 A.2d 211 (Pa. 1994), Appellant
argues that the change in language from former § 1019(b) to current
§ 6114(b)(1) renders Wagner inapplicable. In Bell, our Supreme Court
considered a constitutional challenge to the then-existing mandatory
minimum sentence for marijuana trafficking, 18 Pa.C.S.A. § 7508 (held
unconstitutional by Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018)).
Section 7508 provided that, “Notwithstanding any other provision of this or
any other act to the contrary […]” certain mandatory minimums would apply
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to drug trafficking offenses. Bell, 645 A.2d at 214-15. The minimum
sentence for a crime involving at least 10 pounds but less than 50 pounds of
marijuana was three years; the minimum for an offense involving at least 50
pounds of marijuana was five years. Id. at 215. The Controlled Substance,
Drug, Device and Cosmetic Act (“Drug Act”), on the other hand, capped the
sentencing for certain offenses at five years. 35 P.S. § 780-113(f)(2).
Because, for some offenses, the applicable three-year minimum exceeded half
of the Drug Act’s five-year maximum and, for other offenses, five years was
the minimum and maximum, the defendants argued the statutory scheme
conflicted with § 9756 and was unconstitutionally vague in violation of the Due
Process clause of Article 1, § 9 of the Pennsylvania Constitution. The Supreme
Court disagreed, holding that the “Notwithstanding […]” language in § 7508
created an exception to the minimum/maximum rule of § 9756. Bell, 645
A.2d at 217. That is, the sentencing scheme could be applied as written,
notwithstanding that it was at odds with the minimum/maximum rule of
§ 9756.
Appellant argues, in accord with the Supreme Court’s reasoning in Bell,
that the Notwithstanding Clause of former § 1019(b) carved out an exception
to § 9756. Because that clause is absent in current t§ 6114(b)(1), Appellant
argues that § 9756 applies and prohibits a flat sentence.
We disagree, finding Bell distinguishable and Wagner controlling. The
Wagner Court did not rely on the Notwithstanding Clause to arrive at its
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holding. Rather, as explained above, the Wagner Court held that indirect
criminal contempt sanctions under the PFA arise from the trial court’s inherent
authority to enforce its orders and not from the Crimes Code. The Wagner
Court noted other distinctions between PFA and criminal procedure, such as
the lack of a preliminary hearing and jury trial. Bell, in contrast, involved
drug trafficking offenses under the Crimes Code, for which the defendants
underwent criminal trials and enjoyed all applicable constitutional rights. The
distinctions between the PFA and the Crimes Code render Bell inapposite.
Further, Wagner held that the PFA would include an express reference to
§ 9756 if the legislature wanted it to apply to PFA contempt sanctions.
Subsequent amendments to the PFA have not referenced § 9756. For these
reasons, we conclude that the omission of the Notwithstanding Clause from
§ 6114(b)(1) does not undermine or implicitly overrule Wagner. Wagner
remains good law, its analysis of the applicability of § 9756 to PFA contempt
sanctions remains binding on this panel, and it controls the outcome here.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/07/2021
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