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HomeMy WebLinkAboutCP-21-CR-0687-2005 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CARL MARLIN SHANNON CP-2l-CR-0687-2005 IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., November 30, 2005. This criminal case presents the issue of whether, under the "DNA Act," a person whose sentence expired on a conviction for a crime encompassed by the act may be subjected to DNA testing on the basis of a new sentence for a crime not encompassed by the act. For disposition in this regard is a post-sentence motion filed by such a defendant requesting that his new sentence be modified to eliminate a requirement that he provide a sample of his DNA. F or the reasons stated in this opinion, Defendant's motion will be granted. STATEMENT OF FACTS On April 8, 1991, Defendant was sentenced to a term of imprisonment of not less than three months nor more than 23 1/2 months on a felony drug conviction. On October 12, 1992, he was sentenced to a term of imprisonment of not less than four years nor more than eight years on another felony drug conviction. The maximum on the first sentence expired in 1993, and the maximum on the second expired in 2001. As a result of access device fraud, a misdemeanor of the third degree, which occurred in October of 2004, Defendant was sentenced on August 16,2005, to a term of imprisonment of not less than three months nor more than 12 months. As recommended by the presentence investigation report, the sentence included a requirement that he submit a DNA sample. On August 25, 2005, Defendant filed a post-sentence motion requesting that his sentence be modified by a deletion of the requirement that a DNA sample be submitted. In so moving, Defendant contended that the DNA Act, 44 Pa. C.S. 92301 et seq., did not authorize the imposition of such a requirement under the circumstances of his case. A hearing on the motion was held on October 21,2005.1 DISCUSSION The history of the DNA Act prior to the current version which governs this case was summarized by the Pennsylvania Commonwealth Court in Smith v. Department of Corrections, 837 A.2d 652 (Pa. Commw. Ct. 2003): In 1995, the legislature enacted the DNA Detection of Sexual and Violent Offenders Act (1995 DNA Act), Act of May 28, 1995, P.L. 1009, repealed by the Act ofJune 19,2002, P.L. 394. Section 306(b) of the 1995 DNA Act provided as follows: A person who has been convicted or adjudicated delinquent for a felony sex offense or other specified offense before the effective date of this section and who is still serving a term of confinement in connection therewith on the effective date of this section shall not be released in any manner prior to the expiration of his maximum term of confinement unless and until a DNA sample has been withdrawn. Dial v. Vaughn, 733 A.2d 1,3 (Pa. Cmwlth. 1999). In 2002, the legislature repealed the 1995 DNA Act but amended the Judicial Code to provide for DNA testing of prisoners (2002 DNA Act). See sections 4701 to 4741 of the Judicial Code, 42 Pa. c.s. ~ ~ 4701-4741. In the 2002 DNA Act, the legislature expanded the list of offenses for which DNA testing is mandated to include burglary and robbery. See section 4703 of the Judicial Code, 42 Pa. c.s. ~ 4703 (defining "other specified offense"). The legislature also amended the former section 306(b), now section 4716(b) of the Judicial Code, to state: (1) A person who has been convicted or adjudicated delinquent for a felony sex offense or other specified offense and who serves a term of confinement in connection therewith on or after the effective date of this chapter [Chapter 47] shall not be released in any manner unless and until a DNA sample has been withdrawn. 1 Pursuant to an agreement of counsel, the record was subsequently supplemented by the addition of two documentary items. 2 (2) This chapter shall apply to incarcerated persons convicted or adjudicated delinquent for a felony sex offense prior to the effective date of this chapter? 42 Pa. c.s. 94716 (emphasis added). The current version of the DNA Act was enacted on November 30, 2004, and will be quoted in pertinent part below. The history of the act has been one of expanded coverage. Thus, the 1995 act encompassed the crimes of certain felony sex offenses and other specified offenses in the form of murder, harassment and stalking, and indecent assault. 3 The 2002 act encompassed an expanded list of felony sex offenses and an expanded list of "other specified offenses" that included kidnapping, luring children into vehicles, burglary and robbery. 4 The 2004 act, which applies to the present case, retained the list of felony sex offenses from the 2002 act and expanded its list of "other specified offenses" to include every felony offense in the Crimes Code.5 Although the evolution of the act in terms of offenses encompassed is clear, and although the class of persons encompassed by the initial 1995 act was clear, the scope of the class of persons encompassed by later versions of the act has been less easily comprehended. The 1995 act applies to persons sentenced to prison for one of the qualifying offenses on or after the effective date of the act and to persons sentenced to prison for such an offense prior to the effective date of the act but still serving the sentence on or after the effective date of the act. 6 The language of the 2002 act, while certainly not restricting the boundaries of the class of affected persons, was subject to debate with respect to its intended scope: 2 Id. at 653-54. 3 Act of May 28, 1995, P.L. 1009, ~103, 35 P.S. ~7651.l03 (definitions). In summarizing the scope of the several versions of the DNA Act, the court has oversimplified the provisions for the sake of clarity. 4 Act of June 19,2002, P.L. 394, ~l, 42 Pa. C.S. ~4703 (definitions). 5 Act of Nov. 30,2004, P.L. 1428, ~3, 44 Pa. C.S. ~2303 (definitions). 6 Act of May 28,1995, P.L 1009, ~306(a), (b), 35 P.S. ~7651.306(a), (b). 3 (a) General rule.-A person who is convicted. . . for [one of the qualifying offenses] and is or remains incarcerated on or after the effective date of this [act] shall have a DNA sample drawn as follows: (1) A person who is sentenced... to a term of confinement for [a qualifying offense] shall have a DNA sample drawn upon intake to [ a] prison . . .. If the person is already confined at the time of sentencing . . ., the person shall have a DNA sample drawn immediately after the sentencing . . . . (2) A person who is convicted. . . for [a qualifying offense] shall have a DNA sample drawn as a condition for any sentence. . . which disposition will not involve an intake into a prison . . . . (3) Under no circumstances shall a person who is convicted . . . for [a qualifying offense] be released in any manner after such disposition unless and until a DNA sample has been withdrawn. (b) Condition ofrelease.- (1) A person who has been convicted... for [a qualifying offense] and who serves a term of confinement in connection therewith on or after the effective date of this chapter shall not be released in any manner unless and until a DNA sample has been withdrawn. (2) This [act] shall apply to incarcerated persons convicted . . . for a felony sex offense prior to the effective date of this chapter. 7 In Smith, 837 A.2d 652 (Pa. Commw. Ct. 2003), the Pennsylvania Commonwealth Court held that this language did not subject a defendant who had convictions for the qualifying crimes of robbery and burglary in his background, but whose maximum sentence for those offenses had expired prior to his current confinement for a (putatively) nonqualifying crime. In so holding, the Court stated that "Section 47l6(b) of the Judicial Code authorizes the taking of a DNA sample only when a person has been convicted of a specified offense and the person is confined in connection with that offense on or after December 16, 2002, the effective date of the amended statute." Id at 654 (emphasis added). 77 Act of June 19,2002, P.L. 394, ~l, 42 Pa. C.S. ~47l6(a), (b). 4 The language of the 2004 act, which applies to the present case, is also a matter of dispute with respect to the extent of the intended class of affected persons: (a) General rule.-A person who is convicted. . . for a [qualifying offense] and who is or remains incarcerated for a [qualifying offense] on or after the effective date of this chapter shall have a DNA sample drawn as follows: (1) A person who is sentenced... to a term of confinement for [a qualifying offense] shall have a DNA sample drawn upon intake to a prison . . .. If the person is already confined at the time of sentencing . . . , the person shall have a DNA sample drawn immediately after the sentencing . . . . (2) A person who is convicted. . . for [a qualifying offense] shall have a DNA sample drawn as a condition for any sentence. . . which disposition will not involve an intake into a prison . . . . (3) Under no circumstances shall a person who is convicted . . . for [a qualifying offense] be released in any manner after such disposition unless and until a DNA sample has been withdrawn. (b) Condition of release, probation or parole.- (1) A person who has been convicted... for a [qualifying offense] and who serves a term of confinement in connection therewith after [the date of the 2002 act] shall not be released in any manner unless and until a DNA sample has been withdrawn. (2) This [act] shall apply to incarcerated persons convicted. . . for a felony sex offense prior to [the date of the 2002 act]. (3) This [act] shall apply to incarcerated persons who were convicted . . . for [a qualifying offense] prior to the effective date of this [act].8 An intent in the 2004 legislation (and in the 2002 legislation) to preserve the temporal advantages of the earlier DNA legislation in connection with retroactivity challenges can be discerned. But had the legislature intended by the 2004 statute to change the broad premise, derived by the Smith case, that the class of persons to be subjected to DNA testing did not extend to those whose sentences 8 Act of Nov. 30,2004, P.L. 1428, ~3, 44 Pa. C.S. ~23l6(a), (b) (2005 Supp.). 5 for qualifying crimes had expired, it could have done so by language far more explicit than was employed. Given the general rule of statutory construction that penal statutes are to be strictly construed,9 the Court finds itself unable to accede to the Commonwealth's position that the present DNA act subjects a person whose sentence expired on a conviction for a crime encompassed by the act to DNA testing on the basis of a new sentence for a crime not encompassed by the act. F or this reason, the following order will be entered: ORDER OF COURT AND NOW, this 30th day of November, 2005, upon consideration of Defendant's post-sentence motion to modify sentence, following a hearing held on October 21, 2005, and for the reasons stated in the accompanying opinion, the motion is granted and the sentencing order of court dated August 16, 2005, is amended to delete the requirement that Defendant submit a DNA sample. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. John C. Dailey, Esq. Senior Assistant District Attorney Aria M. Waller, Esq. Deputy Public Defender 9 See 1 Pa. C.S. ~1928(b)(1) (strict construction of penal statutes); Com. v. Ostrosky, 866 A.2d 423, 427 (Pa. Super. Ct. 2005) (noting that penal statutes are to be strictly construed in favor of the accused). 6 7 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CARL MARLIN SHANNON CP-2l-CR-0687-2005 IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. ORDER OF COURT AND NOW, this 30th day of November, 2005, upon consideration of Defendant's post-sentence motion to modify sentence, following a hearing held on October 21, 2005, and for the reasons stated in the accompanying opinion, the motion is granted and the sentencing order of court dated August 16, 2005, is amended to delete the requirement that Defendant submit a DNA sample. BY THE COURT, 1. Wesley Oler, Jr., 1. John C. Dailey, Esq. Senior Assistant District Attorney Aria M. Waller, Esq. Deputy Public Defender