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                                   2019 PA Super 118



    COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT
                                                               OF PENNSYLVANIA
                              Appellee

                         v.

    JASON ALLEN LIPPINCOTT

                              Appellant                       No. 2057 EDA 2014


                       Appeal from the Order June 17, 2014
               In the Court of Common Pleas of Northampton County
                 Criminal Division at Nos: CP-48-CR-0003839-2012,
                              CP-48-CR-0003840-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.

CONCURRING OPINION BY STABILE, J.:                            FILED APRIL 15, 2019

         I join the Majority’s well-reasoned opinion, but write separately to

express my opinion that Commonwealth v. Kizak, 148 A.3d 854 (Pa. Super.

2016), should be overruled in its entirety. Today, in conformity with the Ex

Post Facto Clause,1 we hold that a law is unconstitutional as applied because

it imposes increased punishment to an offense that pre-dated its effective

date. This Court in Kizak affirmed a conviction where the defendant received

a greater penalty under a statute whose effective date post-dated the

defendant’s offense.          The Majority tries to salvage Kizak as being



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1    U.S. CONST. art. I, § 9, cl. 3, art. I, § 10, cl. 1.
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distinguishable from this case upon the basis that this Court in Kizak was

simply attempting to honor the legislature’s intent.

       I would overrule Kizak in its entirety, because it is clear after today’s

holding that no part of the Kizak opinion remains good law.2 The Majority,

however, distinguishes Kizak because Kizak addressed a statute that

expressly applied only to offenders sentenced after its effective date. Thus,

according to the Majority, the Kizak decision honored the legislature’s intent.

To the extent the Majority’s distinction of Kizak implies that Kizak remains

good law, I disagree. The statute at issue in Kizak, in providing for increased

punishment to offenses that pre-dated it, directly violated the Ex Post Facto

Clause as it was applied in that case. No statement of legislative intent could

repair that constitutional infirmity.3

       Furthermore, precedent from the United States Supreme Court strongly

supports my position. In addition to Weaver v. Graham, 450 U.S. 24 (1981),

analyzed in depth in the Majority Opinion, the Supreme Court in Peugh v.



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2 Likewise, this Court’s opinion in Commonwealth v. McGarry, 172 A.3d 60
(Pa. Super. 2017), appeal denied, 185 A.3d 966 (Pa. 2018), is no longer
good law to the extent that it relied on Kizak.

3  By way of example, our Supreme Court held that SORNA’s registration
provisions were punitive, despite the General Assembly’s stated intent of
promoting   public   safety   “through   a    civil, regulatory  scheme.”
Commonwealth v. Muniz, 164 A.3d 1189, 1209-10 (Pa. 2017), cert.
denied, 138 S. Ct. 925 (2018). The General Assembly’s stated intent did not
prevent our Supreme Court from holding that SORNA’s registration
requirements constituted criminal punishment.

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U.S., 599 U.S. 530 (2013), held that a change in the federal sentencing

guidelines violated the Ex Post Facto Clause where the sentence range would

have been 30 to 37 months when the defendant committed the offense, but

was 70 to 87 months at the time of sentencing. Id. at 534. Thus, application

of the guidelines in effect at the defendant’s sentencing created a

significant risk of a higher sentence than the law in place at the time of the

offense. Id. at 550.

      Similarly, in Miller v. Florida, 482 U.S. 423 (1987), abrogated as

stated in Peugh, 599 U.S. at 541 n.4, Florida’s sentencing guidelines

specified a presumptive sentence of 3½ to 4½ years of incarceration when the

defendant committed his offense on April 25, 1984. Id. at 424, 427. On May

8, 1984, the Florida Supreme Court proposed new guidelines, and the Florida

legislature adopted those recommendations, to be effective on July 1, 1984.

Id. at 427. The new guidelines provided a presumptive sentence of 5½ to 7

years of incarceration for the same offense. Id. at 424. The defendant was

convicted in August of 1984 and sentenced on October 2, 1984, under the

guidelines that had taken effect on July 1 of that year. Id. at 427. The Florida

Supreme Court held that “the trial court may sentence a defendant pursuant

to the guidelines in effect at the time of sentencing.” Id. at 428 (emphasis

added). The United States Supreme Court reversed that holding. Id. at 429.

Quoting Weaver, the Miller Court noted that a law is retrospective, for

purposes of the Ex Post Facto Clause, if it “changes the legal consequences of


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acts completed before its effective date.” Id. at 430 (quoting Weaver,

450 U.S. at 31) (emphasis added).

       As in Weaver, the Miller and Peugh Courts did not have occasion to

address a law that had been enacted but had yet to take effect. Also like

Weaver, the Miller Court appeared not to distinguish between the enactment

of a law and its effective date:

              The law at issue in this case, like the law in Weaver, ‘makes
       more onerous the punishment for crimes committed before its
       enactment.’ Weaver, supra, 450 U.S., at 36, 101 S.Ct., at 968.
       Accordingly, we find that Florida's revised guidelines law, 1984
       Fla. Laws, ch. 84-328, is void as applied to petitioner, whose crime
       occurred before the law’s effective date.

Id. at 435–36 (emphasis added).4

       Nonetheless, I do not believe a law’s passage date provides fair warning

of the applicable punishment under Weaver, Miller, and Peugh.                 See

Peugh, 569 U.S. at 544 (noting that the Ex Post Facto Clause requires fair

warning of the applicable punishment). To hold otherwise would replace fair

warning with unfair speculation, because two people who commit identical

offenses on the same day can receive different penalties if one is convicted




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4  In Peugh and Miller, the parties disputed whether amended guidelines
constituted an increased in punishment. Instantly there is no question after
Muniz that SORNA’s registration requirements constitute punishment, nor is
there any question that SORNA’s registration requirements are more onerous
that Megan’s Law III, its statutory predecessor.




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and sentenced before the effective date5 but the other is not. In this scenario,

I do not believe either offender has fair warning of the applicable punishment.

Both are at the mercy of the speed of the justice system, and the same is true

for all persons whose offense falls between a law’s passage and its effective

date.6 Thus, the passage of a law does not provide fair warning that all future

offenses will be subject to harsher punishment.          The Majority’s holding

eliminates any uncertainty, and any concern about fair notice, by limiting the

applicability of a greater penalty to offenses committed on or after its effective

date.

        Given the bright-line rule that the Majority correctly draws, Kizak is no

longer good law. I would therefore expressly overrule Kizak in its entirety

because it is abundantly clear that the outcome in Kizak could not happen

after our holding today.7




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5 Obviously, no court has statutory authority to impose sentence under a law
that has yet to take effect. This point further illustrates why the Majority’s
distinction of Kizak is not meaningful.

6 The Majority, in raising this point, seems concerned about the potential for
disparate treatment of similarly situated offenders. I believe that concern is
valid, but it does not directly implicate the Ex Post Facto Clause. Another
potential concern, not directly related to the Ex Post Facto Clause, is the
potential for the prosecution to have an unfair advantage in pressing for an
early guilty plea.

7 This result would not impact the continued validity of the statute at issue in
Kizak, only its application in that case.

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     President Judge Emeritus Bender and Judge Bowes join this Concurring

Opinion.




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