Commonwealth v. Acie

DEL SOLE, Judge: Ms. Alonda Acie plead guilty to three violations of the Controlled Substance, Drug, Device and Cosmetic Act.1 She was sentenced to not less than one year and no more than three years imprisonment and to pay a $5,000.00 fine. In spite of defense counsel’s efforts to persuade the sentencing court that application of 18 Pa.C.S.A. § 7508(a)(3)® did not prevent the court from allowing Appellant to serve her sentence through the Program for Female Offenders (the Program), the court directed that Appellant serve her sentence at — 353 — the Muncy State Correctional Facility, concluding that the statute precluded it from exercising any discretion in sentencing to other than a prison setting. Appellant subsequently filed a motion for reconsideration of sentence which was denied. After the period for appeal expired, trial counsel withdrew and Appellant’s present counsel was appointed. A petition under the PosNConviction Relief Act requesting reinstatement of Appellant’s right to appeal was granted and this appeal filed. First, we note that the Commonwealth, in its brief, has recommended we quash this appeal because of Appellant’s failure to comply with Pa.R.A.P. 2119(f) by not including in her brief, a “concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of [her] sentence”. In reply, Appellant has filed an amended brief containing a 2119(f) statement. The issue before this court is whether the trial court erred in interpreting 18 Pa.C.S.A. § 7508(a)(3)(i) as preventing it from sentencing Appellant to a Program for Female Offenders. This is not a discretionary sentencing question. Rather it is a question of law and as such a 2119(f) statement is not required. The issue presented is not that the trial court chose one method of confinement over another available method. Rather, it is whether the statute prohibits such a choice. This question is similar to one challenging the computation of a prior record or offense gravity score. These issues are not discretionary. Therefore, we hold that a 2119(f) statement is not required and that where the issue is one of law, even though it impacts on a sentence, there exists a right of appeal. 42 Pa.C.S.A. § 9781(a).2 Having concluded that Appellant has a right of appeal we now reach the merits of her argument. 18 Pa.C.S. § 7508(c) specifically states, “[t]here shall be no authority in — 354 — any court to impose on an offender to which this section is applicable a lesser sentence than provided for heroin or to place the offender on probation, parole, work release or prerelease or to suspend sentence.” In the recent case of Commonwealth v. Logan, 404 Pa.Super. 100, 590 A.2d 300, allocatur denied, 528 Pa. 622, 597 A.2d 1151 (1991), this court specifically held that if it were to allow an appellant to serve her sentence in the Program rather than in a correctional facility, the requirements of § 7508(c) would not be met. The Female Offender’s Program is designed to provide alternative housing in the County Jail and supervision for work release. In light of the statutory proscription against probation, parole, work release, prerelease or suspended sentences detailed in 18 Pa.C.S.A. § 7508(c), the legislature clearly intended persons sentenced under § 7508(a)(3)(iii) to serve their sentence in prison, i.e., a state correctional facility. The legislature enacted the mandatory minimum sentencing statute to deter drug traffickers with the imposition of harsh penalties. See Legislative Journal, Senate, February 23, 1988, p. 1784. Id., 404 Pa.Super. 100, 105 n. 6, 590 A.2d 300, 302 n. 6 (1991). We are therefore unpersuaded by Appellant’s argument that the lower court erred in concluding that the statute prevented it from considering alternative punishment. Both the language of the statute and the legislative intent underlying it, compelled the trial court to reject Appellant’s request. We therefore hold that the sentence of the trial court is affirmed. JOHNSON, J., files a concurring and dissenting opinion. Footnotes [1] Appellant was charged with violating the following sections: Delivery (35 Pa.S. § 780-113(a)(3)); Possession with Intent to Deliver (35 Pa.S. § 780-113(a)(30)); Possession (35 Pa.S. § 780-113(a)(16)) and one count of Criminal Conspiracy (18 Pa.C.S. § 903(a)(1)). [2] While we are aware of certain unpublished decisions of this court that seem to indicate a 2119(0 statement is necessary where a similar claim has been made, we find that they did not address the question of whether the issue under review was a discretionary sentencing question. Having concluded it is not, we reach this result.