J-S92004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRUCE TODD GRUVER,

                            Appellant                No. 1876 WDA 2015


          Appeal from the Judgment of Sentence November 5, 2015
               In the Court of Common Pleas of Butler County
            Criminal Division at No(s): CP-10-CR-0000072-2015


BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED FEBRUARY 9, 2017

       Appellant, Bruce Todd Gruver, appeals from the judgment of sentence

entered following his conviction of driving under the influence (“DUI”),

general impairment; DUI, highest rate of alcohol; and careless driving. We

affirm.

       The trial court summarized the facts of this case as follows:

              On August 27, 2014, [Appellant] was arrested for a
       violation of 75 Pa.C.S.A. § 3802(c) at case numbered CP-10-CR-
       0001838-2014. On June 22, 2015, [Appellant] entered a guilty
       plea in that case and was sentenced on July 2, 2015. In the
       case at hand, [Appellant] was arrested on December 6, 2014
       and on September 21, 2015, following a stipulated non-jury trial,
       this [c]ourt found [Appellant] guilty of violating § 3802(a)(1),
       general impairment, an ungraded misdemeanor, § 3802(c),
       highest rate of alcohol, a misdemeanor of the first degree and
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*
    Retired Senior Judge assigned to the Superior Court.
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       the summary offense of careless driving. In accordance with 75
       Pa.C.S.A. § 3803(b)(4) [pertaining to grading], this court found
       that the § 3802(c) conviction was a misdemeanor of the first
       degree because [Appellant] had a prior conviction of § 3802
       within ten (10) years before sentencing at case numbered CP-
       10-CR-0001838-2014.[1]

Trial Court Opinion, 3/29/16, at 1. Appellant was sentenced as follows: on

the DUI, general impairment, no penalty; on the DUI, highest rate of

alcohol, second offense, sixty months of intermediate punishment, with the

first thirty days to be served in restrictive punishment at the Butler County

Prison followed by 335 days on house arrest with electronic monitoring, the

costs of prosecution, and a $1,500 fine; and on careless driving, costs of

prosecution and a $25 fine. Sentencing Order, 11/5/15, at 1-3.

       Appellant timely appealed. The trial court and Appellant complied with

Pa.R.A.P. 1925.

       Appellant presents the following issue for our review:

       I.     Whether the trial court erred by sentencing [Appellant]
       pursuant to 75 Pa. C.S.A. §3806(b), since [Appellant’s] offense
       was committed on December 6, 2014, prior to the effective date
       of this statute on December 26, 2014?

Appellant’s Brief at 8 (full capitalization omitted).

       Appellant challenges the trial court’s application of 75 Pa.C.S. § 3806,

as effective December 26, 2014 to May 24, 2016. Appellant’s Brief at 14.

Instead, Appellant asserts, the trial court should have applied the version of

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1
    The term “prior offense” is defined at 75 Pa.C.S. § 3806.



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said statute that was effective as of the December 6, 2014 offense

(“offense-at-issue”). Id. Appellant further argues that:

      The previous version, which was effective on the date of the
      offense at issue, was nearly identical to the new version with the
      exception that the . . . text “whether or not judgment of
      sentence has been imposed for the violation” is omitted. The
      prior version did not include a pending or subsequently resolved
      D.U.I. charge as a “prior offense” unless it had resulted in a
      conviction prior to the offense date for the D.U.I. charge at
      issue. The new version of the statute defines a “prior offense” to
      include the pending or subsequently resolved D.U.I. charge as a
      “prior offense” regardless of whether sentence had been
      imposed prior to the offense date of the D.U.I. charge at issue.
      Therefore, Application of the statute in effect as of the date of
      Appellant’s offense results in said offense being treated as a first
      offense, whereas application of the statute post-dating the
      offense results in Appellant’s offense being treated as a second
      or subsequent offense.

Id. at 14-15.   Appellant contends that the trial court’s application of the

statute that became effective after the date of the underlying offense

constituted a violation of the constitutional provision prohibiting ex post

facto laws as applied to Appellant. Id. at 16.

      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.

      This Court recently set forth the principles related to ex post facto laws

as follows:

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            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). We have explained that “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.’”
     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, “in
     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.

Commonwealth v. Kizak, 143 A.3d 854, 856-857 (Pa. Super. 2016).

     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 originally was signed

into law on September 30, 2003, and took effect on February 1, 2004. A

subsequent amendment was enacted on October 27, 2014, and became

effective December 26, 2014.     P.L. 2905, No. 189 (Act 2014-189).         The


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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;

     (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 triggering event of 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.

Additionally, the calculation of prior offenses was deemed to include any

previous conviction, whether or not judgment of sentence had been imposed

for the violation, within the ten-year “look-back” period. 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.” Act 2014-189 (emphasis added).

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     We addressed this issue in a strikingly similar scenario in Kizak, 148

A.3d 854. In Kizak, the appellant was charged on January 23, 2015, with

count 1: DUI, general impairment, pursuant to 75 Pa.C.S. § 3802(A)(1) and

Count 2: DUI, highest rate of alcohol pursuant to 75 Pa.C.S. § 3802(B) for

conduct that occurred on December 10, 2014.     Id. at 855. The appellant

entered a guilty plea on May 20, 2015, and was sentenced on July 14, 2015.

Id. Kizak was sentenced as a second-time offender because she was also

charged with a prior DUI for conduct that occurred on September 24, 2014,

for which she was accepted into the Accelerated Rehabilitation Disposition

(ARD) program. Id. The appellant argued that the trial court erred when it

determined that her DUI was a second offense by applying the new DUI

statute effective December 26, 2014, ex post facto to an offense that

occurred on December 10, 2014.        Id. at 856.    This Court, however,

concluded that there was no ex post facto violation. Id. at 859-860. The

2014 amendment was enacted on October 27, 2014, and the apellant’s

offense occurred six weeks after that enactment, on December 10, 2014.

Id. at 860.    Thus, when the offense occurred, the law had already been

enacted. Id.

     Here, Appellant’s offense-at-issue occurred on December 6, 2014.

Thus, the 2014 amendment was not applied ex post facto to events

occurring before its enactment on October 27, 2014.    Kizak, 148 A.3d at

857 (“A state law violates the ex post facto clause if it was adopted after


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the complaining party committed the criminal acts and ‘inflicts a greater

punishment than the law annexed to the crime, when committed.’”)

(emphasis added). Moreover, Appellant had fair notice of the change in the

statute as his offense occurred more than six weeks after the amendment to

the statute was signed into law.

        We also note that Appellant was not charged on the December 6, 2014

offense until January 15, 2015, which was after the effective date of the

statute. Additionally, Appellant was sentenced on November 5, 2015, well

after the effective date of the amendment, in compliance with the statute.

Kizak, 148 A.3d at 860 (“The amendment of 75 Pa.C.S. § 3806(b) shall

apply    to   persons   sentenced   on    or   after   [December   26,   2014].”).

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.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




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