Commonwealth, Aplt. v. Rose, S. ( 2015 )

[J-20-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 26 WAP 2014
:
Appellant : Appeal from the Order of the Superior
: Court entered November 25, 2013 at No.
: 45 WDA 2011, vacating the Judgment of
v. : Sentence of the Court of Common Pleas
: of Allegheny County entered December 7,
: 2010 at No. CP-02-CR-0000810-2008 and
STEVENSON LEON ROSE, : remanding.
:
Appellee : ARGUED: April 8, 2015
OPINION
MADAME JUSTICE TODD DECIDED: NOVEMBER 18, 2015
The issue in this discretionary appeal is whether a defendant convicted of third-
degree murder must be sentenced under the sentencing statute in effect at the time the
defendant committed the ultimately deadly assault upon the victim, or whether the
defendant is subject to an enhanced penalty pursuant to a subsequently-enacted
sentencing statute which was in effect at the time of the victim’s death 14 years later.
As we conclude that imposition of a sentence in excess of that prescribed by statute at
the time the defendant committed the deadly assault violates and is prohibited by the Ex
Post Facto Clause of the United States Constitution, we are constrained to affirm the
order of the Superior Court vacating Appellee Stevenson Leon Rose’s sentence and
remanding for resentencing.1
I. Factual and Procedural Background
The facts of this case are particularly heinous. On July 13, 1993, Appellee Rose
and Shawn Sadik brutally attacked Mary Mitchell in a park in the East Liberty
neighborhood of Pittsburgh. During the attack, the men kicked the victim in the head
approximately 60 times, stabbed her in the throat, and inserted a 16-inch piece of
aluminum framing into her vagina, causing serious internal injuries. The victim was left
naked and bleeding until she was discovered by two individuals. The attack left the
victim in a vegetative state. An investigation led police to Rose and Sadik, and police
recovered bloody clothing and shoes from Rose’s apartment later that day. Rose
provided police with a statement in which he admitted that he and Sadik attacked the
victim after drinking and doing drugs.
In March 1994, a jury convicted Rose of attempted murder,2 aggravated assault,3
involuntary deviate sexual intercourse,4 recklessly endangering another person,5 and
criminal conspiracy,6 and, on March 16, 1994, he was sentenced to 15 to 30 years
incarceration. His judgment of sentence was affirmed on appeal by the Superior Court,
and this Court denied his petition for allowance of appeal. Commonwealth v. Rose, 664
A.2d 1059 (Pa. Super. 1995), appeal denied, 672 A.2d 306 (Pa. 1995).
1
Our decision herein does not alter Rose’s original aggregate sentence of 15 to 30
years incarceration for his 1994 conviction for attempted murder and related offenses.
Our holding speaks only to the sentence that may be constitutionally imposed for
Rose’s subsequent conviction in 2007 for third-degree murder.
2
18 Pa.C.S. § 901(a).
3
18 Pa.C.S. § 2702(a)(1).
4
18 Pa.C.S. § 3123 (1972).
5
18 Pa.C.S. § 2705.
6
18 Pa.C.S. § 903.
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On September 17, 2007, the victim succumbed to the injuries she sustained in
the attack 14 years earlier, and, on October 9, 2007, the Commonwealth charged Rose
with criminal homicide.7 Rejecting his diminished capacity defense,8 the jury convicted
Rose of third-degree murder.9 At sentencing, Rose maintained that he could be
sentenced only to a maximum term of incarceration of 10 to 20 years, because, at the
time he assaulted the victim, that was the maximum allowable sentence for third-degree
murder under 18 Pa.C.S. § 1103(1), which provides that a person convicted of a felony
of the first degree may be sentenced “for a term which shall be fixed by the court at not
more than 20 years.” 18 Pa.C.S. § 1103(1). The Commonwealth argued, however, that
because the victim’s death did not occur until 2007, Rose’s crime of homicide was not
“complete” until that time, and, therefore, Rose was subject to the 20 to 40 year
sentence for third-degree murder prescribed under 18 Pa.C.S. § 1102, which was
amended in 1995 (two years after the attack) and provides: “Notwithstanding section
1103, a person who has been convicted of murder of the third degree . . . shall be
sentenced to a term which shall be fixed by the court at not more than 40 years.” 18
Pa.C.S. § 1102(d). The sentencing court agreed with the Commonwealth, and
sentenced Rose to 20 to 40 years incarceration. Rose was credited with approximately
17½ years of time served for his prior conviction.
Rose appealed, and a panel of the Superior Court vacated his sentence and
remanded for resentencing. The Commonwealth requested, and was granted, en banc
7
At common law, a person could not be convicted of murder unless the victim died
within a year and a day “from the time the fatal blow was given or the cause of death
administered.” Commonwealth v. Ladd, 166 A.2d 501, 504 (Pa. 1960). In Ladd,
however, this Court concluded that the common law rule was a rule of evidence, and
not part of the definition of murder. Id.8
Rose asserted a voluntary intoxication defense at trial.
9
18 Pa.C.S. § 2502(c).
[J-20-2015] - 3
review by the Superior Court. The en banc panel of the Superior Court, in an opinion
written by Judge Mary Jane Bowes, recognized that “[n]either the framers nor the
ratifiers of the Pennsylvania or federal constitution contemplated application of the ex
post facto law to the factual situation herein,” and, further, that no Pennsylvania case
has yet addressed the issue. Commonwealth v. Rose, 81 A.3d 123, 129 (Pa. Super.
2013) (en banc).10 However, the court found instructive the decisions of other states
that have addressed analogous issues, see infra, and reasoned that, “[a]lthough the
crime of third degree murder was not consummated until the victim died, all of the
criminal acts causing the victim’s death were completed” prior to the enactment of
Section 1102(d), which increased the penalty for the acts that caused the victim’s death.
Id. at 136. Accordingly, the en banc court concluded Rose’s sentence of 20 to 40 years
violated the Ex Post Facto Clauses of both the United States and Pennsylvania
Constitutions. Then-Judge, now-President Judge, Susan P. Gantman filed a dissenting
opinion, which was joined by Judge Cheryl Allen. Judge Gantman opined that, because
a murder is “committed only when the victim of the assault dies,” the trial court properly
sentenced Rose for third-degree murder under the sentencing statute in effect at the
time of the victim’s death in 2007. Id. at 136-37. The Commonwealth filed a petition for
allowance of appeal with this Court, which we granted in order to consider whether the
Superior Court erred in holding that sentencing Rose pursuant to 18 Pa.C.S. § 1102(d),
which became effective after he committed the deadly assault on the victim, but before
the victim died, would violate the prohibition against ex post facto laws.
II. The Ex Post Facto Clause
10
As the Superior Court observed, Rose’s challenge to Section 1102(d) is an “as
applied” challenge to its constitutionality, in that he does not contend the law is
unconstitutional as written, but that its application to him in this instance is
unconstitutional. Rose, 81 A.3d at 126-27.
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The Ex Post Facto Clause of the United States Constitution is contained in Article
1, § 10, which provides: “No State shall . . . pass any Bill of Attainder, ex post facto Law,
or Law impairing the Obligation of Contracts . . . .” U.S. Const. art. I, § 10.11 The
definition of an ex post facto law in the context of American law was first set forth more
than two centuries ago in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), wherein Justice
Chase offered the following description of the term:
1st. Every law that makes an action, done
before the passing of the law, and which was
innocent when done, criminal; and punishes
such action. 2nd. Every law that aggravates a
crime, or makes it greater than it was, when
committed. 3rd. Every law that changes the
punishment, and inflicts a greater punishment,
than the law annexed to the crime, when
committed. 4th. Every law that alters the legal
rules of evidence, and receives less, or
different, testimony, than the law required at
the time of the commission of the offence, in
order to convict the offender.
3 U.S. (3 Dall.) 386, 390 (1798). As noted by the lower courts in the instant case,
Rose’s sentence implicates the third Calder category, in that it arguably increases the
punishment for his crime of third-degree murder at the time of the victim’s death from
11
As the Ex Post Facto Clause of the United States and the Ex Post Facto Clause of
the Pennsylvania Constitution, Art. 1, § 17, are virtually identical in language, this Court
has explained that the standards applied to determine ex post facto violations under
both constitutions are comparable, and a law that violates an appellant’s federal ex post
facto rights will be held violative of his state ex post facto rights. Commonwealth v.
Young, 637 A.2d 1313, 1317 n.7 (Pa. 1993). In light of our determination that the trial
court’s sentence violated Rose’s federal ex post facto rights, we need not separately
consider whether his sentence also violated his rights under the Pennsylvania
Constitution.
[J-20-2015] - 5
the punishment that was applicable at the time he committed the acts which led to the
victim’s death.
The phrase “‘ex post facto law’ was a term of art with an established meaning at
the time of the framing.” Peugh v. United States, 133 S.Ct. 2072, 2081 (2013) (quoting
Collins v. Youngblood, 497 U.S. 37, 41 (1990)).12 The high Court has observed that,
“[b]uilding on Justice Chase’s formulation of what constitutes an ‘ex post facto Law,’ our
cases ‘have not attempted to precisely delimit the scope of this Latin phrase, but have
instead given it substance by an accretion of case law.’” Id. (quoting Dobbert v. Florida,
432 U.S. 282, 292 (1977)).
The ex post facto prohibition
forbids the Congress and the States to enact any law “which
imposes a punishment for an act which was not punishable
at the time it was committed; or imposes additional
punishment to that then prescribed.” Through this
prohibition, the Framers sought to assure that legislative
Acts give fair warning of their effect and permit individuals to
rely on their meaning until explicitly changed. The ban also
restricts governmental power by restraining arbitrary and
potentially vindictive legislation.
Weaver v. Graham, 450 U.S. 24, 28-29 (1981) (footnotes and citations omitted); see
also Miller v. Florida, 482 U.S. 423, 430 (1987) (“[A]lmost from the outset, we have
recognized that central to the ex post facto prohibition is a concern for ‘the lack of fair
notice and governmental restraint when the legislature increases punishment beyond
what was prescribed when the crime was consummated.’” (quoting Weaver, 450 U.S. at12
One commentator has suggested that “[o]ne who reads the surviving record of the
constitutional debates of 1787-88 cannot avoid the conclusion that the policy against
statutory retroactivity was a major force behind the adoption of the U.S. Constitution.”
Robert G. Natelson, Statutory Retroactivity: The Founders’ View, 39 Idaho L. Rev. 489,
527 (2003).
[J-20-2015] - 6
30)), disapproved in part on other grounds Calif. Dep’t of Corrections v. Morales, 514
U.S. 499, 506 n.3 (1995).13
In addition, the ex post facto prohibition “upholds the separation of powers by
confining the legislature to penal decisions with prospective effect and the judiciary and
executive to applications of existing penal law.” Weaver, 450 U.S. at 29 n.10. In
discussing the protections afforded by the Ex Post Facto Clause, one scholar observed
an additional asserted basis for the protection: “namely, that it ‘assures the legislature
can make recourse to stigmatizing penalties of the criminal law only when its core
purpose of deterrence could thereby possibly be served.’” Wayne R. LaFave, Criminal
Law 116 (5th ed. 2010) (hereinafter “LaFave”) (citations omitted).
The ex post facto prohibition is concerned with legislative acts, as opposed to
judicial decisions. Rogers v. Tennessee, 532 U.S. 451 (2001). In Rogers, the Supreme
Court rejected the petitioner’s suggestion that, because both the Due Process and Ex
Post Facto Clauses safeguard the interest in fundamental fairness (through notice and
fair warning) and the prevention of arbitrary and vindictive legislation, the strictures of
the Ex Post Facto Clause should be extended to the context of judicial construction.
Acknowledging that its opinion in Bouie v. City of Columbia, 378 U.S. 347 (1964),
contains “some expansive language that is suggestive of the broad interpretation for
which petitioner argues,” Rogers, 532 U.S. at 458, the high Court held:
13
On this latter point, another commentator has suggested that the theory that the Ex
Post Facto Clause restricts governmental power by restraining arbitrary and vindictive
legislation “bears no substance beyond that borne by the first and primary concern for
notice,” in that “[a] law may be condemned as irrationally spiteful or as an impermissible
breach of restrictions on legislative power, but the constitutional basis for that review will
not be the Ex Post Facto Clause unless the spitefulness or overreach takes the form of
retroactive punishment.” Andrew C. Adams, One-Book, Two Sentences: Ex Post Facto
Considerations of the One-Book Rule after United States v. Kumar, 39 Am. J. Crim. L.
231, 236 (2012).
[J-20-2015] - 7
Extending the [Ex Post Facto] Clause to courts through the
rubric of due process . . . would circumvent the clear
constitutional text. It also would evince too little regard for
the important institutional and contextual differences
between legislating, on the one hand, and common law
decisionmaking, on the other.
Id. at 460.
In order for a criminal or penal law to be deemed an ex post facto law, “two
critical elements” must be met: “it must be retrospective, that is, it must apply to events
occurring before its enactment, and it must disadvantage the offender affected by it.”
Weaver, 450 U.S. at 29 (footnote omitted); see also Young, 637 A.2d at 1318 (“Only
those laws which disadvantage a defendant and fall within a Calder category are ex
post facto laws and constitutionally infirm.” (emphasis original)).
The Commonwealth does not dispute that sentencing Rose on his third-degree
murder conviction under 18 Pa.C.S. § 1102(d), which provides a maximum sentence of
40 years incarceration, instead of 18 Pa.C.S. § 1103(1), which provides a maximum
sentence of 20 years, disadvantages Rose by subjecting him to an increased sentence.
We thus focus on the question of whether imposition of a sentence pursuant to Section
1102(d) constitutes a retroactive application of the sentencing statute.
In asserting the Superior Court erred in holding that a sentence for third-degree
murder pursuant to 18 Pa.C.S. § 1102(d) violates Rose’s ex post facto rights under
Calder’s third category because it inflicts upon Rose a greater punishment than the
statute in effect at the time he assaulted the victim, the Commonwealth stresses that the
Ex Post Facto Clause “only prohibits the legislature from increasing the punishment
against a defendant for his past crimes.” Commonwealth’s Brief at 20 (emphasis
added). As noted above, the Commonwealth maintains that, because the death of the
victim is an essential element of the crime of criminal homicide, Rose’s crime of
[J-20-2015] - 8
homicide was not complete until 2007, the year the victim died. Id. at 24-25 (citing
Commonwealth v. Ramunno, 68 A. 184 (Pa. 1907) (“Murder is committed only when the
victim of the assault dies.”)). Accordingly, the Commonwealth contends that, because
Rose was sentenced under the statute in effect at the time of the victim’s death in 2007,
there was no retroactive application of a sentencing statute, and, thus, no ex post facto
violation.14
In support of its position, the Commonwealth relies on the language of
Pennsylvania’s Crimes Code, which provides, in relevant part, that “[a] person is guilty
of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the
death of another human being.” 18 Pa.C.S. § 2501(a). The Commonwealth observes
that, pursuant to 42 Pa.C.S. § 5552, “[a]n offense is committed either when every
element occurs, or, if a legislative purpose to prohibit a continuing course of conduct
plainly appears, at the time when the course of conduct or the complicity of the
defendant therein is terminated.” 42 Pa.C.S. § 5552(d). The Commonwealth further
notes that the legislature has defined the phrase “element of an offense,” as “[s]uch
conduct or such attendant circumstances or such a result of conduct as . . . is included
in the description of the forbidden conduct in the definition of the offense.” 18 Pa.C.S.
§ 103. In reference to the Calder categories described above, the Commonwealth
contends that the Superior Court, in reaching its conclusion, “conspicuously discarded
the word ‘crime’ expressly used in the third Calder category and replaced it with the
14
Rose’s crime of third-degree murder in the instant case may be characterized as a
“straddle offense.” In his law review article “On Straddle Crimes and the Ex Post Facto
Clauses,” J. Richard Broughton defines straddle offenses as crimes involving elements
which occur both before and after a change in the law that either criminalizes the
combination of elements or increases the punishment for their completion. J. Richard
Broughton, On Straddle Crimes and the Ex Post Facto Clauses, 18 Geo. Mason L. Rev.
719, 720 (Spring 2011) (hereinafter “Broughton”); see also U.S. v. Zimmer, 299 F.3d
710, 718 (8th Cir. 2002).
[J-20-2015] - 9
word ‘acts.’” Commonwealth’s Brief at 29. According to the Commonwealth, the
Superior Court’s substitution in this regard conflates Calder’s first and third ex post facto
categories, and extends the third category beyond what was intended. Id.Rose, on the other hand, maintains that the Superior Court’s holding is correct,
and that the court properly rejected the Commonwealth’s suggestion that the ex post
facto prohibition applies only to prior completed crimes, and not to prior conduct. Rose
avers that neither this Court nor the United States Supreme Court has expressly limited
application of the Ex Post Facto Clause in this manner, and instead have accepted a
more expansive definition, which, consistent with the original meaning of the federal and
state Ex Post Facto Clauses, encompasses past acts, conduct, or activity. Rose further
offers that other state appellate courts which have faced this issue have uniformly held
that the Ex Post Facto Clause prohibits increased punishment for such prior criminal
acts.
Regarding the Commonwealth’s position that, because the offense of criminal
homicide requires the death of the victim, Rose did not “commit” the crime of homicide
until 2007, and, thus, there was no retroactive application of a sentencing statute, there
does not appear to be any Pennsylvania caselaw governing this set of circumstances.
However, the North Carolina Supreme Court addressed a similar situation in State v.
Detter, 260 S.E.2d 567 (N.C. 1979). In Detter, the defendant attempted to kill her
husband on several occasions between January and March 1977 by poisoning him with
concentrated lead, ant killer, and various drugs, including cocaine and PCP. The victim
died on June 9, 1977, and an autopsy revealed he died of arsenic poisoning, the
primary ingredient in ant killer. The defendant was convicted of first-degree murder and
sentenced to death. On appeal, she argued, inter alia, that imposition of a death
sentence violated her ex post facto rights because, at the time she engaged in all of her
[J-20-2015] - 10
efforts to kill her husband, the maximum penalty for first-degree murder was life
imprisonment, as North Carolina’s death penalty statute did not take effect until June 1,
1977. The court explained:
[T]he question presented is whether this murder was
committed when the murderous acts were performed so that
the punishment is life imprisonment or whether this murder
was committed when death resulted so that the sentence of
death imposed pursuant to G.S. 15A-2002 is constitutionally
permissible under the Ex post facto provisions of the United
States and North Carolina constitutions. It is true that the
definition of murder includes the unlawful killing of a human
being with malice aforethought by means of poisoning, in
which case premeditation and deliberation are presumed.
. . . Therefore, murder is a crime requiring both an act and a
result. We held in State v. Williams, [49 S.E.2d 617 (N.C.
1948)], that one who rendered aid after the fatal blow was
struck but before the resulting death could not be convicted
of accessory after the fact to murder because the crime of
murder was not complete until the resulting death occurred.
However, when it becomes necessary to choose
between the time the fatal blow is struck or the time of
death for some special purpose, such as accessory after
the fact to murder or to determine if a certain
punishment is barred by the Ex post facto clause, the
choice should be dictated by the nature of the inquiry.
Perkins, Criminal Law (2d ed. 1969).
Id. at 590 (emphasis added). The court continued:
Therefore, our decision in State v. Williams . . . in which we
chose the time of death as the time the murder was
committed for the purpose of deciding if defendant was an
accessory after the fact to murder, is sound, although, for
purposes of the prohibition against Ex post facto legislation,
we hold that the date(s) of the murderous acts rather than
the date of death is the date the murder was committed.
Id.
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The Detter court observed that the “scant authority that exists on this question”
was consistent with its holding. Id. Specifically, the court cited People v. Gill, 6 Cal.
637 (1856), and Debney v. State, 45 Neb. 856, 64 N.W. 446 (1895). In Gill, the
defendant attacked a victim; a month later, the California legislature divided the crime of
murder into first and second degree. The victim subsequently died of the injuries
suffered in the attack, and the defendant was tried and convicted of second-degree
murder, for which he was subject to a potential life sentence. The court, without
expressly discussing the Ex Post Facto Clause, resolved:
The blow was given before, but the death ensured after, the
passage of the last statute. The death must be made to
relate back to the unlawful act which occasioned it, and as
the party died in consequence of wounds received on a
particular day, the day on which the act was committed, and
not the one on which the result of the act was determined, is
the day on which the murder is properly to be charged.
6 Cal. at 638.
In Debney, the Supreme Court of Nebraska, referencing Gill, supra, and
observing that a crime is deemed committed in the county where the fatal wounds were
given, even if the victim died in another county, reasoned:
[I]t follows that the offense was committed when such
wounds were inflicted. True, the death occurred at a
subsequent date, but it relates back to the time the mortal
injury was received. The accused committed all the acts
constituting the offense on July 4th; the death which ensued
in Platte county, on July 9th, merely characterized his acts.
The crime of murder consists in intentionally and unlawfully
causing the death, and, while it is true that the crime is not
complete until death occurs, yet it is incorrect to say that the
death is an element in the crime. It is merely a necessary
condition to it. The elements of the crime are the acts of the
perpetrator, such as the malice, intent, and the wound or
blow. The crime was committed when the mortal wounds
were inflicted, and he is to be tried by the laws then in force.
[J-20-2015] - 12
64 N.W. at 448.15
Other courts have since relied on Detter for the proposition that the date of an
offense for one purpose, such as meeting the statutory elements of a crime, may be
different than the date of the offense for another purpose, such as an ex post facto
inquiry. In Little v. United States, 709 A.2d 708 (D.C. App. 1998), for example, the court
held that the defendant could not be convicted of being an accessory after the fact to
murder based on actions taken while the decedent was still alive, where the victims
were still alive at the time the defendant drove away from the scene of the crime. In so
holding, the court relied on Detter’s “nature of the inquiry” language, and noted “[t]he
fact that a homicide is complete for one purpose does not make it complete for all
purposes.” Id. at 712 n.9.
Consistent with the foregoing authority, including the North Carolina Supreme
Court’s approach in Detter, we conclude that, for purposes of evaluating whether a
defendant’s sentence violates the Ex Post Facto Clause, the date on which all of the
elements of the statutory crime of third-degree murder are met, including the death of
the victim, is not dispositive. Rather, in determining whether imposition of a sentence
under a statute that was amended after a defendant committed the deadly acts upon
the victim, but prior to the victim’s death, violates the ex post facto prohibition, we must
consider the intent behind the Ex Post Facto Clause.
15
In addition to the decisions in Gill and Debney, the Detter Court also found support for
its holding in several treatises, including Perkins, Criminal Law (2nd ed. 1969), and
LaFave & Scott, Criminal Law 93-94 (1972) (“With those crimes which consist of both
conduct and the result of conduct, as is the case with criminal homicide, . . . [i]f the
theory behind the prohibition on retroactivity is that of giving fair warning, it seems clear
that for ex post facto purposes the date of the blow should be the date of the offense.”).
[J-20-2015] - 13
Nearly a century ago, in Beazell v. Ohio, the United States Supreme Court
offered the following definition of an ex post facto law, alluding to, inter alia, Justice
Chase’s opinion in Calder:
It is settled, by decisions of this court so well known that their
citation may be dispensed with, that any statute which
punishes as a crime an act previously committed, which was
innocent when done, which makes more burdensome the
punishment for a crime, after its commission, or which
deprives one charged with crime of any defense available
according to law at the time when the act was committed, is
prohibited as ex post facto.
269 U.S. 167, 169-70 (1925). Examining the underlying rationale of the ex post facto
prohibition, the Beazell Court explained:
The constitutional prohibition and the judicial interpretation of
it rest upon the notion that laws, whatever their form, which
purport to make innocent acts criminal after the event, or to
aggravate an offense, are harsh and oppressive, and that
the criminal quality attributable to an act, either by the legal
definition of the offense or by the nature or amount of the
punishment imposed for its commission, should not be
altered by legislative enactment, after the fact, to the
disadvantage of the accused.
Id. at 170.
The high Court again discussed the characteristics of an ex post facto law in
De Veau v. Braisted, emphasizing that the essence of an ex post facto law is the
punishment for prior acts:
The mark of an ex post facto law is the imposition of what
can fairly be designated punishment for past acts. The
question in each case where unpleasant consequences are
brought to bear upon an individual for prior conduct, is
whether the legislative aim was to punish that individual for
past activity, or whether the restriction of the individual
comes about as a relevant incident to a regulation of a
present situation.
[J-20-2015] - 14
363 U.S. 144, 160 (1960) (emphasis added).
In 1981, the high Court in Weaver, supra, held that a Florida statute that repealed
a prior statute and reduced the amount of “gain time” for good conduct a state prisoner
could receive against his sentence violated the ex post facto rights of a prisoner who
pled guilty to second-degree murder and was sentenced before the statute’s effective
date. In so holding, the Court first explained that the “presence or absence of an
affirmative, enforceable right is not relevant . . . to the ex post facto prohibition, which
forbids the imposition of punishment more severe than the punishment assigned by law
when the act to be punished occurred.” Weaver, 450 U.S. at 30 (emphasis added). In
rejecting the State’s argument that the new statute was not retrospective because, on
its face, it applied only after its effective date, the Court concluded “[t]his argument fails
to acknowledge that it is the effect, not the form, of the law that determines whether it is
ex post facto. The critical question is whether the law changes the legal consequences
of acts completed before its effective date.” Id. at 31 (emphasis added). The Court
further observed:
“The Constitution deals with substance, not shadows. Its
inhibition was levelled at the thing, not the name. It intended
that the rights of the citizen should be secure against
deprivation for past conduct by legislative enactment, under
any form, however disguised.” Cummings v. Missouri, 4
Wall. 277, 325, 18 L.Ed. 356 (1867).
Id. at 31 n.15 (emphasis added).
More than 60 years after Beazell, the high Court, in Collins v. Youngblood, 497
U.S. 37 (1990), reaffirmed the Beazell definition of the term “ex post facto law” and its
focus on acts:
The Beazell formulation is faithful to our best knowledge of
the original understanding of the Ex Post Facto Clause:
Legislatures may not retroactively alter the definition of
[J-20-2015] - 15
crimes or increase the punishment for criminal acts.
Several early State Constitutions employed this definition of
the term, and they appear to have been a basis for the
Framers’ understanding of the provision. See The Federalist
No. 44, p. 301 (J. Cooke ed. 1961) (J. Madison); 2 M.
Farrand, Records of the Federal Convention of 1787, p. 376
(1911); Calder, 3 Dall., at 391-392 (opinion of Chase, J.); id.,
at 396-397 (opinion of Paterson, J.). The Constitutions of
Maryland and North Carolina, for example, declared that
“retrospective laws, punishing facts committed before the
existence of such laws, and by them only declared criminal,
are oppressive, unjust, and incompatible with liberty;
wherefore no ex post facto law ought to be made.” See
Constitution of Maryland, Declaration of Rights, Art. XV
(1776); Constitution of North Carolina, Declaration of Rights,
Art. XXIV (1776). Other State Constitutions, though not
using the phrase “ex post facto,” included similar articles.
See Declaration of Rights and Fundamental Rules of the
Delaware State § 11 (1776); Constitution or Form of
Government for the Commonwealth of Massachusetts,
Declaration of Rights, Art. XXIV (1780).
Another historical reference, Blackstone’s
Commentaries, which was discussed by the Framers during
debates on the Ex Post Facto Clause, see 2 M. Farrand,
Records of the Federal Convention of 1787, pp. 448-449
(1911), and deemed an authoritative source of the technical
meaning of the term in Calder, see 3 Dall., at 391 (opinion of
Chase, J.); id., at 396 (opinion of Paterson, J.), buttresses
this understanding. According to Blackstone, a law is ex
post facto “when after an action (indifferent in itself) is
committed, the legislator then for the first time declares it to
have been a crime, and inflicts a punishment upon the
person who has committed it.” 1 W. Blackstone,
Commentaries. Although increased punishments are not
mentioned explicitly in the historical sources, the Court has
never questioned their prohibition, apparently on the theory
that “[t]he enhancement of a crime, or penalty, seems to
come within the same mischief as the creation of a crime or
penalty.” Calder, supra, at 397 (opinion of Paterson, J.).
The Beazell definition, then, is faithful to the use of the term
“ex post facto law” at the time the Constitution was adopted.
[J-20-2015] - 16
497 U.S. at 43-44 (emphasis added).
Although the Commonwealth maintains that the ex post facto prohibition applies
only to prior completed crimes,16 not prior acts, the language employed by the Court in
Beazell, De Veau, Weaver, and Youngblood suggests that the Ex Post Facto Clause
was intended to prohibit the legislature from retroactively increasing the punishment not
simply for completed crimes, but for an individual’s prior criminal acts. See also
Broughton, at 728 (suggesting that the meaning of the phrase “acts completed,” as
referred to in Weaver, “does not necessarily mean a fully completed crime. Rather, it
could refer to the completion or fulfillment of any part of the actus reus of a crime or any
element of the crime that requires an affirmative act on the part of the defendant.”).
Indeed, criminal law scholar Wayne R. LaFave has opined that, in determining
the date of an offense for ex post facto purposes, it is the date of the criminal act which
is relevant:
With those crimes that consist of both conduct and the result
of conduct, as is the case with criminal homicide (a blow with
a resulting death is needed), there may arise a question as
16
The Commonwealth acknowledges that “the United States Supreme Court has
conflated the words ‘acts’ and ‘crime’ or ‘acts’ and ‘offense’ when analyzing Calder
questions,” and specifically references the high Court’s language in Peugh, supra:
We consider here whether there is an ex post facto violation
when a defendant is sentenced under Guidelines
promulgated after he committed his criminal acts and the
new version provides a higher applicable Guidelines
sentencing range than the version in [] place at the time of
the offense.
Commonwealth Brief at 35 (quoting Peugh, 133 S.Ct. at 2078). The Commonwealth
contends, however, “that lack of precision in phrasing does not a constitutional
protection make because in Peugh, the difference between the two words did not
control the question before the Court.” Id. The Commonwealth fails to address the high
Court’s recurring use of the term “act” in the other cases discussed above; indeed, the
Commonwealth’s brief contains no reference to Beazell, De Veau, or Weaver.
[J-20-2015] - 17
to the time of the offense for purposes of applying the ex
post facto clause. Thus, if the defendant delivers the mortal
blow on April 1, a new homicide statute becomes law on
April 10, and the victim dies from his wounds on April 20,
can the new statute, if disadvantageous to the defendant,
constitutionally be applied to his situation? If the theory
behind the prohibition on retroactivity is that of giving
fair warning, it seems clear that for ex post facto
purposes the date of the blow should be the date of the
offense.
LaFave, at 121 (emphasis added); see also Joseph G. Cook, Constitutional Rights of
the Accused § 1:18 (3rd ed.) (July 2015) (hereinafter “Cook”) (“For ex post facto law
purposes . . . it is the time of the acts rather than the time of the result which is key.
Such results are consistent with insuring that the accused has received notice of the
criminality and potential consequences of his act.”).
The courts of our sister states have similarly concluded that, for purposes of
determining the date of an offense when evaluating an ex post facto claim, the date on
which the criminal act was committed is controlling. See, e.g., Detter, 260 S.E.2d at
590 (for purposes of the prohibition against ex post facto legislation, “the date(s) of the
murderous acts rather than the date of death is the date the murder was committed.”)
Id. at 590; State v. Masino, 43 So.2d 685, 687 (La. 1949) (noting that, for ex post facto
purposes, “the crime is committed on the date on which the deed, the original act, is
performed, and not on the date of the victim’s death”).17 This focus on acts is consistent
with one of the Ex Post Facto Clause’s underlying rationales − fair warning. See Miller,
482 U.S. at 430; Weaver, 450 U.S. at 28-29; see also Broughton, at 728; LaFave, at
121; Cook, at § 1:18.
17
In State v. Hare, 208 N.W.2d 264, 267 (Neb. 1973), the Nebraska Supreme Court, in
addressing a sufficiency challenge, likewise held “in a prosecution for manslaughter in
the commission of an assault and battery, the time of the offense is affixed at the time
the fatal blow was struck.”
[J-20-2015] - 18
In the case sub judice, Rose’s assault on the victim occurred in 1993, when the
maximum sentence for third-degree murder was 20 years imprisonment. Although the
legislature later increased the maximum sentence for third-degree murder to 40 years
imprisonment, all of Rose’s criminal acts occurred prior to the increase, and, at the time
he committed the criminal acts, he could not have had fair warning that he could face 40
years imprisonment if the victim died as a result of his actions.
Notwithstanding the above, the Commonwealth maintains that the “right to fair
warning” protected by the Ex Post Facto Clause is not implicated in the instant case
because Rose was convicted of third-degree murder, which does not require specific
intent. Commonwealth’s Brief at 34. The Commonwealth highlights the following
observation by the Superior Court below:
Where the individual does not possess a specific intent to
commit the crime, he cannot possibly be contemplating
potential punishment for the crime. Therefore, notice of a
particular punishment cannot dissuade the commission of
the offense where there is no intent requirement for the
crime. Phrased differently, the notice interest that the ex
post facto clauses (sic) was intended to serve is weakest
when the third Calder category is at issue and at its
strongest when the first two categories are in question.
Commonwealth’s Brief at 34 (quoting Rose, 81 A.3d at 134). In effect, the
Commonwealth contends that the prohibition against ex post facto laws does not apply
to unintentional crimes.
However, in the sentence following the above-quoted language, the Superior
Court, quoting the United States Supreme Court, concluded: “Of course, ‘the absence of
a reliance interest is not an argument in favor of abandoning the category itself.’” Rose,
81 A.3d at 134 (quoting Carmell v. Texas, 529 U.S. 513, 531 n.21 (2000)). In Carmell,
the high Court considered an ex post facto challenge to a Texas law, an amendment to
[J-20-2015] - 19
which altered the rules of evidence for crimes committed prior to the amendment. The
defendant was charged with committing sexual offenses against his stepdaughter
between 1991 and 1995, when the victim was between 12 and 16 years old. At that
time, Texas law provided that testimony of a victim over the age of 14 could not support
a conviction unless corroborated by other evidence, or the victim had informed another
person of the offense within six months of its occurrence. If a victim was under the age
of 14, the victim’s testimony alone could support a conviction. In 1993, the law was
amended to allow a conviction based on a victim’s testimony alone if the victim was
under the age of 18. The defendant was convicted in 1996, and on appeal, he argued
that his convictions on the four counts that were based on conduct that occurred after
the victim turned 14 could not stand under the pre-1993 version of the law because the
victim was not under 14 and had not made a timely outcry.
In reversing the defendant’s four convictions, the high Court concluded the
amendment to the law violated the Ex Post Facto Clause, as the amendment fell within
Calder’s fourth category, authorizing a conviction on less evidence than previously
required. The Court opined, “[t]he fourth category, so understood, resonates
harmoniously with one of the principal interests that the Ex Post Facto Clause was
designed to serve, fundamental justice.” 529 U.S. at 531. The Court further observed:
The Clause is, of course, also aimed at other concerns,
“namely that legislative enactments give fair warning of their
effect and permit individuals to rely on their meaning until
explicitly changed,” . . . and at reinforcing the separation of
powers . . . . But those are not its only aims, and the
absence of a reliance interest is not an argument in favor of
abandoning the category itself. If it were, the same
conclusion would follow for Calder’s third category
(increases in punishment), as there are few, if any, reliance
interests in planning future criminal activities based on the
expectation of less severe repercussions.
[J-20-2015] - 20
Id. at 531 n.21. Thus, in at least one context, namely, crimes implicating the fourth
Calder category, the high Court has condemned the reliance interest argument
advanced by the Commonwealth − rejecting the notion that protection of an individual’s
reliance interests is the sole aim of the Ex Post Facto Clause − and suggested that such
an argument would be equally unavailing in the context of the third Calder category at
issue herein.
Additionally, the Commonwealth cites no case law which would support limiting
the ex post facto prohibition to intentional crimes; to the contrary, other courts have
found ex post facto violations in circumstances involving unintentional crimes. See,
e.g., Masino, supra (holding the date of the criminal negligence by contractors who
failed to properly encase underground gas pipes in concrete, resulting in leakage and
an accumulation of gas which caused an explosion that killed several people, not the
date of the consequences of such negligence, was the relevant date of the unintentional
crime for purposes of an ex post facto analysis); State v. Bunn, 440 P.2d 528 (Haw.
1968) (engaging in ex post facto analysis in case involving negligent homicide by
vehicle).
Finally, as the United States Supreme Court noted in Carmell regarding the
protection provided by the Ex Post Facto Clause:
There is plainly a fundamental fairness interest, even apart
from any claim of reliance or notice, in having the
government abide by the rules of law it establishes to govern
the circumstance under which it can deprive a person of his
or her liberty or life.
529 U.S. at 533.
For all of the reasons discussed above, we conclude that, for purposes of an ex
post facto inquiry, the Commonwealth’s focus on the result of an individual’s criminal
acts − in this case, the death of the victim − is misplaced. Rather, we hold that, where a
[J-20-2015] - 21
crime requires both a criminal act and a subsequent result (e.g., a homicide), the
imposition of a more severe sentence based on a statute that was amended after the
act was committed, but prior to the result of that act, violates the ex post facto
prohibition.
This Court must adhere to the principles set forth in the United States
Constitution, as interpreted by the high Court. As Rose’s assault on the victim occurred
in 1993, when the applicable statute provided for a maximum sentence of 20 years for
third-degree murder, the trial court’s imposition of a longer sentence − a maximum term
of 40 years − under an amendment to the statute that occurred subsequent to the
assault, violated Rose’s rights under the Ex Post Facto Clause. Thus, the Superior
Court properly vacated the trial court’s sentence and remanded for resentencing.
Order affirmed.
Mr. Chief Justice Saylor and Messrs. Justice Eakin and Baer join the opinion.
Mr. Chief Justice Saylor files a concurring opinion.
Mr. Justice Eakin files a concurring opinion.
Mr. Justice Stevens files a dissenting opinion.
[J-20-2015] - 22