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Pennsylvania Appeals Court Rejects Contention That Appellant’s Sentence Violates Ex Post Facto Clause

The Pennsylvania Superior Court recently rejected an appellant’s contention that her sentencing as a repeat offender for her DUI conviction resulted in ex post facto punishment.

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In January 2015, appellant Kriz Kizak was charged with DUI General Impairment/Incapable of Safe Driving (75 Pa.C.S. § 3802(A)(1)) and DUI Highest Rate of Alcohol (75 Pa.C.S. § 3802(B)) for a December 2014 incident. She pled guilty in May 2015. In July, Kizak was sentenced under the second charge to undergo imprisonment in the Centre County Correctional Facility for a period of not less than 30 days nor more than six months. Kizak was sentenced as a second offender because she was also charged with DUI for an incident that occurred on September 24, 2014. Moreover, Kizak was accepted into the Accelerated Rehabilitation Disposition (ARD) program on the first offense DUI. Kizak filed a post-sentence motion, which was denied.

On appeal, Kizak argued that the trial court erred in imposing the sentence. Specifically, Kizak contended that the trial court should not have imposed the recidivist sentencing law for the offense that occurred on December 10, 2014, since the changes in the sentencing law did not become effective until December 26, 2014. Kizak asserted that the application of the law to her offense amounted 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.

The Pennsylvania Superior Court first noted that the United States Constitution and the Pennsylvania Constitution prohibit the enactment of ex post facto laws. The Pennsylvania Supreme Court has interpreted these constitutional ex post facto clauses to be effectively identical. The purpose of this proscription is “to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties.”

The appeals court explained that pursuant to precedent, 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). Central to the ex post facto prohibition is a concern for the lack of fair notice and governmental restraint when the legislature increases a punishment beyond what was prescribed when the crime was consummated. Retroactive laws have been defined as those that take away or impair vested rights acquired under existing laws, create new obligations, impose a new duty, or attach a new disability with respect to the transaction or consideration already past.

In order for a law to be deemed ex post facto, two critical elements must be met:  (1) it must be retrospective, which means that it must apply to events occurring before its enactment; and (2) it must disadvantage the offender affected by it. The United States Supreme Court has explained that a statute does not operate retrospectively merely because it is applied in a case arising from conduct antedating the statute’s enactment, or it upsets expectations based on prior law. Instead, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.

Here, the relevant statute was 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 originally took effect in February 2004 and was amended in October 2014. Under the 2014 amendment, the 10-year “look back” period for determining prior offenses became the date of sentencing and was no longer the date that the offense occurred. The statute provides that the amendment to section 3806(b) “shall apply to persons sentenced on or after [December 26, 2014,] the effective date of this section.”

The appeals court agreed with the trial court that the new law was not applied to events occurring before its enactment (being October 27, 2014) because the offense at issue was committed on December 10, 2014. Moreover, Kizak had fair notice of the change in the statute because her offense occurred more than six weeks after the amendment to the statute was signed into law. Accordingly, the appeals court concluded that there was no ex post facto violation and affirmed Kizak’s sentence.

Hiring the right attorney can make all the difference in the world, even if your case seems straightforward or you have no criminal record.  If you find yourself arrested for a DUI, make sure you have a capable attorney on your side. Pennsylvania criminal defense attorney Zachary B. Cooper will be aggressive and will fight to make sure that your rights are protected so that your family and you can move on with your lives. Call (215) 542-0800 for a free consultation to discuss the legal options that may be available to you.

More Blog Posts:

Pennsylvania Appellate Court Reverses DUI Conviction in Light of McNeely, Pennsylvania DUI Blog, September 1, 2016.

Pennsylvania Appeals Court Holds DUI Defendant Not Constitutionally Entitled to Jury Trial, Pennsylvania DUI Blog, August 25, 2016.

Pennsylvania Superior Court Quashes DUI Appeal as Untimely, Pennsylvania DUI Lawyer Blog, August 10, 2016.

Pennsylvania Police Adjust to New DUI Laws Mandated by Supreme Court, Pennsylvania DUI Lawyer Blog, July 15, 2016.