Com. v. Cunnane, B. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BRIAN C. CUNNANE
Appellant No. 2952 EDA 2015
Appeal from the Order August 31, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000338-2015
BEFORE: BOWES, OTT AND SOLANO, JJ.
MEMORANDUM BY BOWES, J.: Filed January 20, 2017
Brian C. Cunnane appeals from judgment of sentence and challenges
the denial of a post-sentence motion raising an ex post facto challenge to
the July 8, 2015 judgment of sentence imposing a period of five to twenty-
three months of incarceration. We vacate and remand.
The facts are straightforward. On May 10, 2014, Appellant was
arrested for driving under the influence (“first DUI”) and charged by criminal
information. On August 29, 2014, while awaiting trial on that incident,
Appellant again operated a motor vehicle while under the influence (“second
DUI”). Following the sentence at the first DUI, imposed on October 8, 2014,
the Commonwealth filed a criminal information at the second DUI, on
February 13, 2015. This information charged Appellant with, inter alia, one
count of driving under the influence – highest tier, graded as a misdemeanor
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of the first degree, on the basis that the first DUI constituted a prior offense
for purposes of grading.
On July 8, 2015, Appellant appeared for a stipulated bench trial on the
second DUI. The trial court found Appellant guilty of driving under the
influence – highest tier.1 Appellant elected to proceed to sentencing, and
maintained that for legal purposes he had no prior offenses, as he had yet to
be convicted of the first DUI when he committed the instant crimes. The trial
court disagreed, applying a statute that was amended and made effective
after the August 29, 2014 second DUI incident date.2
Appellant filed a timely post-sentence motion for reconsideration,
again raising the ex post facto issue. On August 31, 2015, the trial court
resentenced Appellant to the exact same sentence, but granted parole
forthwith.
This timely appeal ensued. Appellant raises one issue, an as-applied
challenge to the constitutionality of applying the amended statute to his
second DUI conviction:
Whether it is an ex post facto violation of the United States
Constitution and Pennsylvania Constitution when the mandatory
minimum term of imprisonment, mandatory minimum fine,
maximum period of imprisonment/supervision, maximum
____________________________________________
1
Appellant was also found guilty of a general impairment DUI charge, and
two summary offenses.
2
We note that Appellant filed a motion on May 26, 2015, seeking to declare
the statute unconstitutional as applied, which was denied.
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possible fine and the guideline sentencing range for Appellant’s
driving under the influence conviction increased as a result of
the trial court’s application of the new version of 75 Pa.C.S. §
3806 that became effective after Appellant committed his
criminal act?
Appellant’s brief at 5.
We begin by setting forth the change in law and its effect on the
instant convictions. In general, both the grading and the applicable penalty
for a DUI offense are increased for each prior DUI offense. See 75 Pa.C.S.
§§ 3803 (grading), 3804 (penalties). Whether a prior DUI offense qualifies
as a prior offense for purposes of § 3803 and § 3804 is a statutory issue
governed by 75 Pa.C.S. § 3806. On the day Appellant committed the instant
crimes, that statute read:
(a) General rule.--Except as set forth in subsection (b), the
term “prior offense” as used in this chapter shall mean a
conviction, adjudication of delinquency, juvenile consent decree,
acceptance of Accelerated Rehabilitative Disposition or other
form of preliminary disposition before the sentencing on the
present violation for any of the following:
....
(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,
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 for any of the following:
(1) an offense under section 3802;
....
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75 Pa.C.S. § 3806. Our Supreme Court made clear in Commonwealth v.
Haag, 981 A.2d 902 (Pa. 2009), that subsection (b) overrode the generic
provisions in subsection (a). Thus, when applying the recidivist provisions in
subsection (b),
a sentencing court must first ascertain whether conviction on the
first violation occurred before the offender committed the
subsequent offense. If no conviction on that previous violation
had occurred by the time the offender committed the
subsequent violation, pursuant to Section 3806(b), the offender
cannot be sentenced as a recidivist on the subsequent violation.
Id. at 907 (emphasis in original). Therefore, under Haag, Appellant’s first
DUI was not a prior offense.
This text as interpreted by Haag remained on the books until
December 27, 2014, when an October 27, 2014 amendment to the statute
became effective. The statute, as amended, thereafter read in pertinent
part:
(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
sentencing on the present violation for any of the following:
(1) an offense under section 3802;
....
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75 Pa.C.S. § 3806 (emphasis added).3 Accordingly, under the prevailing law
at the time of sentencing, the first DUI offense qualified as a prior offense,
for purposes of both grading and the mandatory minimum penalties.
This appeal requires us to determine the constitutionality of the trial
court’s application of the revised statute to the criminal conduct which
preceded its amendment and enactment. An ex post facto challenge to
application of a statute presents a question of law, and our standard of
review is de novo. Commonwealth v. Perez, 97 A.3d 747 (Pa.Super.
2014).
As a prefatory matter, we note that Appellant challenges application of
the statute under the constitutions of both this Commonwealth and the
United States. As our Supreme Court recently stated in Commonwealth v.
Rose, 127 A.3d 794 (Pa. 2015), the Ex Post Facto Clauses in the respective
documents are virtually identical and the standards applied are comparable.4
Id. at 127. The federal 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
____________________________________________
3
This statute was amended on May 25, 2016, effective immediately. Thus,
the quoted version does not reflect the current language. The changes are
not relevant to the issue raised on appeal.
4
Rose granted relief on federal grounds and did not separately consider
whether the sentence also violated his rights under the Pennsylvania
Constitution. We find that Appellant’s federal ex post facto rights were
violated.
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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.
Rose, 127 A.3d at 798 (citations omitted). Ex post facto cases are generally
classified as falling into one of four categories. Id. (citing Calder v. Bull, 3
Dall. 386 (1798)). Herein, Appellant argues that his sentence falls under the
third category, “Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when committed.”
Id.Two conditions must be met for a law to be deemed ex post facto.
“[I]t must be retrospective, that is, it must apply to events occurring before
its enactment, and it must disadvantage the offender affected by it.” Id. at
799 (citation omitted). Appellant’s argument that application of the statute
to his second DUI satisfies those two critical elements is straightforward. He
highlights the fact that, if the trial court had applied the version of § 3806 on
the books at the time of his actual conduct, both the grading and the
mandatory minimum sentences would have been lower. Therefore, the law
is both retrospective and disadvantageous as applied. Appellant cites
Peugh v. United States, 133 S.Ct. 2072 (2013), a case finding an ex post
facto violation where a defendant was sentenced under federal guidelines
promulgated after the commission of his criminal acts, as controlling.
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The Commonwealth counters by arguing that application of the statute
is not retrospective, as the amended statute facially applies only to persons
sentenced on or after the effective date. Therefore, the statute is not
criminalizing any new conduct. Additionally, the Commonwealth maintains
that Appellant was not subjected to any greater punishment, as the
sentencing statute did not change the penalties associated with a DUI
offense. In other words, driving under the influence was a criminal act at all
relevant times irrespective of the sentencing statute, and no constitutional
error occurs when a court simply recognizes the legislature’s expression of
an intent to punish a DUI offender more severely for recidivist conduct.
“[T]he appropriate penalties are now applied in order to reflect more
accurately the legislature’s intent to punish more harshly recidivist
offenders.” Commonwealth’s brief at 10. The Commonwealth does not
discuss or distinguish Peugh, instead relying upon Commonwealth v.
McCoy, 895 A.2d 18 (Pa.Super. 2006), a case applying § 3806 where the
statute was enacted on the same day as the underlying conduct in question.
We agree with Appellant that Peugh and related cases mandate
reversal. In Peugh, Marvin Peugh committed a series of frauds that went
undetected for several years. Eventually, federal authorities discovered the
crimes and prosecuted, resulting in Peugh’s conviction for several counts of
bank fraud. At sentencing, the federal judge was required to calculate an
applicable sentencing guideline range. Peugh maintained that the
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sentencing judge was required to apply the guidelines in existence at the
time of his actual conduct. The judge disagreed, applying the version in
effect at the time of sentencing.
The United States Supreme Court granted certiorari to resolve a circuit
split in the Courts of Appeals and ultimately reversed the judgment of
sentence, finding an Ex Post Facto Clause violation. Notably, the split
resolved by the Court was whether the advisory nature of the guidelines
saved an otherwise clear ex post facto violation:
At issue here is Calder's third category of ex post facto laws,
those that “chang[e] the punishment, and inflic[t] a greater
punishment, than the law annexed to the crime, when
committed.” 3 Dall., at 390. Peugh's claim is that the Clause was
violated because the 2009 Guidelines call for a greater
punishment than attached to bank fraud in 2000, when his
crimes were completed. The Government counters that because
the more punitive Guidelines applied at Peugh's sentencing were
only advisory, there was no ex post facto problem.
. . . . The touchstone of this Court's inquiry is whether a given
change in law presents a “‘sufficient risk of increasing the
measure of punishment attached to the covered crimes.’” The
question when a change in law creates such a risk is “a matter of
degree”; the test cannot be reduced to a “single formula.”
Id. at 2081–82 (citations and footnotes omitted). Appellant aptly points out
that he was not merely subjected to a potentially higher sentence, as the
trial court’s interpretation required it to impose a higher mandatory
minimum sentence.
The Commonwealth’s brief does not discuss Peugh. Instead, the
Commonwealth simply observes that the higher mandatory minimum
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sentence was of no moment, since the trial court elected to impose an even
higher sentence. Presumably, this point is addressed to the “sufficient risk
of increasing the measure of punishment” aspect of Peugh. In effect, the
Commonwealth is treating this appeal as raising a challenge to the trial
court’s discretion in deviating from the guidelines.
However, the calculation of the guidelines or any deviation therefrom
is not at issue. The Commonwealth ignores the fact that the trial court’s
interpretation resulted in the offense being graded as a misdemeanor of the
first degree with a higher mandatory minimum sentence. As set forth supra,
Haag instructed the trial court to treat the second DUI as a first offense.
The misdemeanor of the first degree grading applies to a violation of §
3802(c) only if the defendant has a prior conviction as defined by § 3806.
Otherwise, it is an ungraded misdemeanor with a maximum of six months
imprisonment. As set forth by statute:
(b) Other offenses.—
(2) An individual who . . . violates section 3802(c) or
(d) and who has no prior offenses commits a
misdemeanor for which the individual may be
sentenced to a term of imprisonment of not more
than six months and to pay a fine under section
3804.
....
(4) An individual who . . . violates section 3802(c) or
(d) and who has one or more prior offenses commits
a misdemeanor of the first degree.
75 Pa.C.S. § 3803.
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Accordingly, the Commonwealth is simply incorrect when it claims
Appellant was always subjected to the same punishment. Appellant was not
on notice that the statutory maximum was anything other than six months.
As our Supreme Court observed in Rose, supra, “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)). The instant DUI offenses should have been graded as first
offenses.
Additionally, the trial court’s application of the statute required a
higher mandatory minimum sentence. Section 3804 delineates the
applicable penalties. A violation of 75 Pa.C.S. § 3802(c), classified as a first
offense, subjects the offender to a minimum seventy-two hour period of
imprisonment and a fine of $1,000. 75 Pa.C.S. § 3804(c)(1)(i-ii). A second
offense, however, subjects the offender to a mandatory minimum of ninety
days incarceration, and a fine of $1,500. 75 Pa.C.S. § 3804(c)(2)(i-ii). That
the trial court elected to exceed that mandatory sentence is irrelevant. “The
presence of discretion does not displace the protections of the Ex Post Facto
Clause.” Garner v. Jones, 529 U.S. 244, 255 (2000).
Next, the Commonwealth avers that the statute is not retrospective,
since by its language it applies only to sentencing procedures that take place
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on or after December 27, 2014. We disagree, as the United States Supreme
Court has made clear that the effect of a law, not its form, controls. “The
critical question is whether the law changes the legal consequences of acts
completed before its effective date.” Weaver v. Graham, 450 U.S. 24, 31
(1981) (footnote omitted).
The Commonwealth’s invocation of McCoy, supra does not aid its
cause. McCoy analyzed the applicability of § 3806 as effective on the same
day as the DUI in question and, therefore, the defendant had notice of the
change in law. That dividing line is the entire point of the ex post facto
prohibition and it cannot simply be glossed over. Accordingly, we vacate
judgment of sentence and remand for proceedings consistent with this
memorandum.
Finally, we note that following oral argument in this case, a panel of
this Court issued an opinion in Commonwealth v. Kizak, --- A.3d ---, 2016
WL 4820659 (Pa.Super. 2016), finding no ex post facto violation in
reviewing an application of the exact same statutory amendment at issue
herein. However, the facts of Kizak are distinguishable from the instant
case. In Kizak, the appellant committed two DUIs, one on September 24,
2014, and one on December 10, 2014. The sentencing court applied § 3806
when imposing sentence on the December 10, 2014 incident, finding that
the September DUI constituted a prior offense. Kizak determined that no
ex post facto violation occurred.
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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 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.
Id. at *5. Thus, Kizak holds that a citizen is on notice as of October 27,
2014 of the increased penalties, even though the law did not go into effect
until December 27, 2014. Herein, the DUI occurred before October 27,
2014. Hence, Kizak is distinguishable.
Judgment of sentence vacated. Case remanded for re-sentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2017
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