Commonwealth v. Kizak ( 2016 )

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2016 PA Super 211COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KRIZ CECILIA KIZAK,
Appellant No. 1556 MDA 2015
Appeal from the Judgment of Sentence July 14, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000715-2015
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
OPINION BY SHOGAN, J.: FILED SEPTEMBER 14, 2016
Appellant, Kriz Cecilia Kizak, appeals from the judgment of sentence
entered following her conviction of driving under the influence of alcohol
(“DUI”). Appellant asks us to determine whether the trial court erred in
sentencing her as a repeat offender because application of 75 Pa.C.S.
§ 3806 (“prior offenses”) resulted in an ex post facto punishment. Under
the facts of this case, we conclude that there was no ex post facto violation.
Accordingly, we affirm.
The trial court summarized the history of this case as follows:
[On January 23, 2015, Appellant] was charged with Count
1: DUI: General Impairment/Incapable of Safe Driving pursuant
to 75 [Pa.C.S.] § 3802(A)(1) and Count 2: DUI: Highest Rate of
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Alcohol pursuant to 75 [Pa.C.S.] § 3802(B) for conduct that
occurred on December 10, 2014.[1] [Appellant] entered a guilty
plea on May 20, 2015. On July 14, 2015, [Appellant] was
sentenced under Count 2 to undergo imprisonment in the Centre
County Correctional Facility for a period of not less than thirty
(30) days nor more than six (6) months. [Appellant] was
sentenced as a second offense DUI, because she was also
charged with DUI for conduct that occurred on September 24,
2014. [Appellant] was accepted into the Accelerated
Rehabilitation Disposition (ARD) program on the first offense
DUI.
Trial Court Opinion and Order, 8/20/15, at 1.
On July 17, 2015, Appellant filed a post-sentence motion, which was
denied on August 20, 2015. Appellant filed this timely appeal on
September 11, 2015. Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
1. The Trial Court made an error of law when it determined that
[Appellant’s] DUI was a second offense when the Court applied
the new DUI statute effective December 26, 2014 ex post facto
to an offense that occurred on December 10, 2014.
Appellant’s Brief at 1.2
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1
On the morning of December 10, 2014, Appellant appeared at the Centre
County Courthouse for a preliminary hearing on previous DUI charges that
had been filed on September 24, 2014. While at the courthouse, police
noticed that Appellant exhibited signs of intoxication. Appellant performed
unsatisfactorily on field sobriety tests, and a preliminary breath test showed
the presence of alcohol. A subsequent blood test revealed that Appellant’s
blood alcohol content (“BAC”) was .138%.
2
We note that the Commonwealth argues that the issue is waived due to
Appellant’s failure to notify the Attorney General pursuant to Pa.R.A.P. 521
(Footnote Continued Next Page)
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Appellant argues that the trial court erred in imposing the sentence.
Appellant’s Brief at 3-7. Appellant contends that the trial court should not
have imposed the recidivist sentencing law to Appellant’s offense that
occurred on December 10, 2014, because the changes in the sentencing law
did not become effective until December 26, 2014. Appellant asserts that
the application of the law to her offense amounts to an ex post facto
punishment and she should have been sentenced under the sentencing
provisions that were in place when she actually committed the crime.
We observe that a challenge to the application of a statute by a trial
court presents a question of law. Commonwealth v. Perez, 97 A.3d 747,
750 (Pa. Super. 2014). Where an issue presents a question of law, the
appellate court’s standard of review is de novo. Commonwealth v.
Descardes, 136 A.3d 493, 496-497 (Pa. 2016). In addition, our scope of
review in this matter is plenary. Id.To the extent that Appellant raises an issue challenging the
constitutionality of a statute, “[w]e note that duly enacted legislation carries
_______________________
(Footnote Continued)
(Notice to Attorney General of Challenge to Constitutionality of Statute).
Commonwealth’s Brief at 12. However, Pa.R.A.P. 521(a) clearly states that
the requisite notice is to be filed “in any matter in an appellate court to
which the Commonwealth or any officer thereof, acting in his official
capacity, is not a party. . . .” The Commonwealth is a party to this matter.
Therefore, no notice under Pa.R.A.P. 521 was required. Commonwealth v.
Miller, 80 A.3d 806, 811 n.3 (Pa. Super. 2013) (citing Commonwealth v.
Balog, 672 A.2d 319 (Pa. Super. 1996)). Thus, we will review the merits of
this issue.
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with it a strong presumption of constitutionality.” Commonwealth v.
Turner, 80 A.3d 754, 759 (Pa. 2013) (citation omitted). “A presumption
exists ‘[t]hat the General Assembly does not intend to violate the
Constitution of the United States or of this Commonwealth’ when
promulgating legislation.” Commonwealth v. Baker, 78 A.3d 1044, 1050
(Pa. 2013) (quoting 1 Pa.C.S. § 1922(3)).
In conducting our review, we are guided by the principle
that acts passed by the General Assembly are strongly presumed
to be constitutional, including the manner in which they were
passed. Thus, a statute will not be found unconstitutional unless
it clearly, palpably, and plainly violates the Constitution. If there
is any doubt as to whether a challenger has met this high
burden, then we will resolve that doubt in favor of the statute’s
constitutionality.
Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (quotation
marks and citations omitted).
Both the United States Constitution and the Pennsylvania Constitution
prohibit the enactment of ex post facto laws. U.S. Const. art. I, § 10; Pa.
Const. art. I, § 17. Our Supreme Court has interpreted these constitutional
ex post facto clauses to be effectively identical. Commonwealth v.
Woodruff, 135 A.3d 1045, 1048 (Pa. Super. 2016) (citing Commonwealth
v. Young, 637 A.2d 1313 (Pa. 1993)). The purpose of this proscription is
“to preserve for persons the right to fair warning that their conduct will give
rise to criminal penalties.” Commonwealth v. Grady, 486 A.2d 962, 964
(Pa. Super. 1984) (quoting Commonwealth v. Hoetzel, 426 A.2d 669, 672
(Pa. Super. 1981)). We have explained that “[a] state law violates the ex
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post facto clause if it was adopted after the complaining party committed
the criminal acts and ‘inflicts a greater punishment than the law annexed to
the crime, when committed.’” Commonwealth v. Fleming, 801 A.2d
1234, 1237 (Pa. Super. 2002) (citation omitted; emphasis added). As our
Supreme Court observed in Commonwealth v. Rose, 127 A.3d 794 (Pa.
2015), “Almost 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.’” Id. at 798-799
(quoting Miller v. Florida, 482 U.S. 423, 430 (1987)).
Moreover, “[a] statute is not made retroactive merely because it draws
upon antecedent facts for its operation.” Alexander v. Com., Dept. of
Transp., 880 A.2d 552, 558 (Pa. 2005) (citation omitted). “Retroactive
laws have been defined as those which take away or impair vested rights
acquired under existing laws, create new obligations, impose a new duty, or
attach a new disability in respect to the transaction or consideration already
past.” Id. at 559 (citation omitted).
The constitutional provision prohibiting ex post facto laws
serves as a limitation on the legislature. It is a proscription
which attempts “to preserve for persons the right to fair warning
that their conduct will give rise to criminal penalties.” It has
been said that a law will be found constitutionally infirm on
grounds that it is an ex post facto law only where one of the
following effects is present:
1. The law makes an act criminal which was not
criminal when done;
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2. The law aggravates a crime -- one which makes it
greater than it was when committed;
3. The law changes a punishment, and makes it
greater than it was when a punishable act was
committed;
4. The law alters the rules of evidence and requires
less or different testimony than the law required at
the time the offense was committed in order to be
convicted.
Grady, 486 A.2d at 964 (citations omitted). Furthermore, “[i]n 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.’” Rose, 127 A.3d at 799 (quoting Weaver v.
Graham, 450 U.S. 24, 29 (1981)). As the United States Supreme Court
explained, “A statute does not operate ‘retrospectively’ merely because it is
applied in a case arising from conduct antedating the statute’s enactment, or
upsets expectations based in prior law.” Landgraf v. USI Film Products,
511 U.S. 244, 269 (1994) (citations omitted). Instead, “the court must ask
whether the new provision attaches new legal consequences to events
completed before its enactment.” Id. at 269-270.3
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3
Interestingly, we note that in Weaver, the United State Supreme Court
was faced with a situation in which it addressed the applicability of a Florida
law concerning the calculation of a prison term upon a petitioner who
committed a crime in 1976. In 1978, the Florida legislature enacted a new
statute addressing the calculation formula. “The new provision was
(Footnote Continued Next Page)
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In Commonwealth v. Wall, 867 A.2d 578 (Pa. Super. 2005), this
Court addressed the ex post facto application of a statute imposing
particular fines for DUI. The court in Wall explained that on July 12, 2002,
the appellant was arrested for driving under the influence of alcohol
pursuant to 75 Pa.C.S. § 3731(a)(4) (amount of alcohol by weight in the
blood is 0.10% or greater). The appellant’s BAC level was 0.24%.
Subsequently, on December 9, 2002, Pennsylvania enacted 18 Pa.C.S.
§ 7508.1, which established the Substance Abuse Education and Demand
Reduction Fund as an account in the State Treasury. Wall, 867 A.2d at 580.
_______________________
(Footnote Continued)
implemented on January 1, 1979, . . .” Weaver, 450 U.S. at 27. In
reaching its conclusion that the Florida statute was unconstitutional as an ex
post facto law as applied to the petitioner, the Weaver Court failed to make
a distinction between the date of the enactment of the statute and the date
that it became effective. Indeed, in its analysis and conclusion the Court
used both terms interchangeably, as reflected in the following language:
Thus, the new provision constricts the inmate’s opportunity to
earn early release, and thereby makes more onerous the
punishment for crimes committed before its enactment.
This result runs afoul of the prohibition against ex post facto
laws.
* * *
We find Fla. Stat. § 944.275 (1) (1979) void as applied to
petitioner, whose crime occurred before its effective date.
Weaver, 450 U.S. at 36 (emphases added). Undeniably, the facts in
Weaver are dissimilar from the instant case because the crime in Weaver
was committed in 1976, which was before the new Florida statute was
enacted in 1978 and became effective on January 1, 1979. Hence, we do
not find Weaver to be instructive with regard to the circumstantial time
frame presently before us.
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The statute took effect sixty days later, specifically, on February 7, 2003.
Id. In order to subsidize the fund, the statute provided that additional
assessments be imposed upon persons convicted of certain crimes, including
DUI. As the Court explained, “Subsection (c) of the statute provided an
additional assessment of $200.00 to all persons convicted for violation of 75
Pa.C.S.A. § 3731 (now § 3802) where the amount of alcohol by weight in
the blood is 0.15% (now 0.16%).” Id. The appellant in Wall pled guilty on
November 5, 2003, approximately eleven months after the enactment date,
and nine months after the effective date of § 7508.1(c). Id. On February 6,
2004, fourteen months after the enactment of the statute and almost one
year after the stated effective date, the trial court sentenced the appellant
and imposed the additional assessment pursuant to 18 Pa.C.S. § 7508.1(c)
because his BAC level was greater than 0.15%. The appellant eventually
brought a direct appeal to this Court and argued that imposing the
assessment under the statute violates the prohibition against ex post facto
laws contained in the United States Constitution and the Pennsylvania
Constitution. Id. After concluding that the assessment amounted to a fine,
and historically the imposition of fines amounts to punishment, the court in
Wall held “Because [the appellant] committed the act of DUI prior to the
enactment of § 7508.1(c) and this section inflicts a greater punishment,
such imposition of the additional assessment violated the ex post facto
clause of the United States Constitution.” Id. at 583 (emphasis added).
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Accordingly, the Court reversed the imposition of the additional assessment
pursuant to 18 Pa.C.S. § 7508.1(c). In reaching its conclusion, the Wall
Court considered the enactment date of the statute and not the date that
the statutory provision became effective. We find this analysis, particularly
the consideration of the enactment date of the statute, to be instructive.
Instantly, the relevant statute is 75 Pa.C.S. § 3806, which addresses
the calculation of prior DUI offenses to determine whether a defendant is a
repeat offender for sentencing purposes. The statute was originally signed
into law on September 30, 2003, and took effect on February 1, 2004.
Subsequently, our General Assembly enacted amendments to the language
of the law, and the governor signed the changes to the statute on
October 27, 2014. P.L. 2905, No. 189 (Act 2014-189). The following is the
pertinent language of the statute, with the new language shown in italics
and the deleted language shown with a “strikethrough” line:
(b) Repeat offenses within ten years. - The calculation of
prior offenses for purposes of sections 1553(d.2)(relating to
occupational limited license), 3803 (relating to grading) and
3804 (relating to penalties) shall include any conviction, whether
or not judgment of sentence has been imposed for the violation,
adjudication of delinquency, juvenile consent decree, acceptance
of Accelerated Rehabilitative Disposition or other form of
preliminary disposition within the ten years before the present
violation occurred sentencing on the present violation for any of
the following:
(1) an offense under section 3802;
(2) an offense under former section 3731;
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(3) an offense substantially similar to an offense under
paragraph (1) or (2) in another jurisdiction; or
(4) any combination of the offenses set forth in paragraph (1),
(2) or (3).
75 Pa.C.S. § 3806(b). Thus, under the 2014 amendment, the ten-year “look
back” period for determining prior offenses became the date of sentencing
and was no longer the date that the offense occurred. Also, Section 2 of Act
2014-189 provides that the amendment of section 3806(b) “shall apply to
persons sentenced on or after [December 26, 2014,] the effective date of
this section.” (emphasis added).
In addressing Appellant’s issue and determining that Appellant’s ex
post facto argument lacked merit, the trial court offered the following
analysis:
In reference to a previous amendment to 75 Pa.C.S. §
3806, the Superior Court of Pennsylvania specifically stated the
change would not apply to convictions which occurred prior to
the effective date of February 1, 2004. Commonwealth v.
McCoy, 2006 PA Super. 33, 895 A.2d 18, 34. The Court,
however, did not address how the change would apply to
offenses, rather than convictions, which occurred prior to the
effective date. Here, the new amendment was applied at
[Appellant’s] sentencing for her DUI conviction after the effective
date of December 26, 2014. [Appellant] was on notice of the
new sentencing scheme at the time of the offense because the
offense occurred after the amendment was approved[, on
October 27, 2014]. As such, no ex post facto violation occurred
in [Appellant’s] sentencing.
It is the passage of the statute, giving [Appellant] notice of
the punishment, which is dispositive. “Critical to relief under the
Ex Post Facto Clause is not an individual’s right to less
punishment, but the lack of fair notice and governmental
restraint when the legislature increases punishment beyond what
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was prescribed when the crime was consummated.” Weaver,
450 U.S. at 28. Here, the amendment is not being applied to
events that occurred prior to its enactment. The amendment
was approved, i.e. enacted, on October 27, 2014, and the
offense in question occurred on December 14, 2014. The
legislature specifically included guidance, and notice, that “[t]he
amendment of 75 Pa.C.S. § 3806(b) shall apply to persons
sentenced on or after the effective date of this section.”
[Appellant] was on notice at the time the crime was committed
that sentencing for the offense after December 26, 2014 would
take place pursuant to the amendment.
Trial Court Opinion, 8/20/15, at 4-5.
Our review of the record compels our agreement with the trial court.
The amendment to the law in question was signed by the Governor of
Pennsylvania on October 27, 2014. Over six weeks later, on December 10,
2014, Appellant committed the instant DUI offense. The amendment to
section 3806(b) took effect on December 26, 2014. Furthermore, the
legislature specified in the statute that the amendment of section 3806(b)
“shall apply to persons sentenced on or after [December 26, 2014,] the
effective date of this section.” Act 2014-189 § 2 (emphasis added).
Appellant was charged with the instant DUI offense on January 23,
2015. On May 20, 2015, Appellant entered her guilty plea. Thereafter, on
July 14, 2015, the trial court, applying the amendment to section 3806(b),
imposed Appellant’s judgment of sentence.
Here, the new law was not applied to events occurring before its
enactment, that being October 27, 2014, because the instant offense was
committed on December 10, 2014. Moreover, Appellant had fair notice of
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the change in the statute as her offense occurred more than six weeks after
the amendment to the statute was signed into law. Accordingly, we are
satisfied that there was no ex post facto violation in the instant matter. As
such, we conclude that Appellant’s contrary claim lacks merit.
Judgment of sentence affirmed.
Judge Ott joins the Opinion.
Judge Strassburger Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2016
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