J-A24010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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