Commonwealth v. Kizak

148 A.3d 854

2016 PA Super 211

Commonwealth of Pennsylvania, Appellee

v.Kriz Cecilia Kizak, Appellant

No. 1556 MDA 2015

Superior Court of Pennsylvania.

Submitted March 14, 2016

Filed September 14, 2016

Brian V. Manchester, Bellefonte, for appellant.

Stacy P. Miller, District Attorney and Megan A. McGoron, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.

BEFORE: SHOGAN, OTT, and STRASSBURGER,^* JJ.

OPINION BY SHOGAN, J.:

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 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

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 with it a strong presumption of constitutionality.” Commonwealth v. Turner , 622 Pa. 318, 80 A.3d 754, 759 (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 , 621 Pa. 401, 78 A.3d 1044, 1050 (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 , 624 Pa. 53, 84 A.3d 603, 611 (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 , 536 Pa. 57, 637 A.2d 1313 (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 , 337 Pa.Super. 174, 486 A.2d 962, 964 (1984) (quoting Commonwealth v. Hoetzel , 284 Pa.Super. 623, 426 A.2d 669, 672 (1981) ). We have explained that “[a] state law violates the ex 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, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) ).

Moreover, “[a] statute is not made retroactive merely because it draws upon antecedent facts for its operation.” Alexander v. Com., Dept. of Transp. , 583 Pa. 592, 880 A.2d 552, 558 (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;

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, 101 S.Ct. 960, 67 L.Ed.2d 17 (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, 114 S.Ct. 1483, 128 L.Ed.2d 229 (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, 114 S.Ct. 1483.³

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. 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...