268 A.3d 457 - Com. v. Marks, M.

J-S26004-21

2021 PA Super 237

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee

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
J-S26004-21

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



____________________________________________


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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