J-S31006-16

                                    2016 PA Super 211



COMMONWEALTH 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.
J-S31006-16


       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

____________________________________________


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

____________________________________________


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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