J-S58028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JOHN CATAQUET,

                            Appellant                    No. 2029 MDA 2014


           Appeal from the Judgment of Sentence February 22, 2010
             in the Court of Common Pleas of Lackawanna County
               Criminal Division at No.: CP-35-CR-0001318-2008


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

CONCURRING AND DISSENTING MEMORANDUM BY PLATT, J.:

                                                     FILED FEBRUARY 03, 2016

        I concur with the learned Majority’s rejection of Appellant’s challenge

to certain expert testimony. I also concur with the Majority’s conclusion that

Appellant’s sentences for IDSI are not illegal under either Wolfe or Alleyne.

However, I am constrained to disagree with the learned Majority’s conclusion

that Appellant was sentenced in violation of the proscription against ex post

facto penalties. (See Majority, at *9).

        Preliminarily, both the federal and state constitutions prohibit the

enactment of ex post facto laws.           See U.S. Const. Art. I, § 8; Pa. Const.

Art. I, § 17.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S58028-15


           Generally, a statute, or application thereof, will be
     considered invalid as an ex post facto law if one of the following
     four factors is present:

              (1) The law makes an act criminal which was not
        criminal when done; (2) The law aggravates a crime, or
        makes it greater than it was when committed; (3) The law
        changes a punishment, and makes it greater than it was
        when the punishable act was committed; and (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 convict.

Commonwealth v. Riley, 384 A.2d 1333, 1335 (Pa. Super. 1978) (en

banc) (citations omitted). See also Calder v. Bull, 3 U.S. 386, 390 (1798).

“[T]he standards applied to determine an ex post facto violation under the

Pennsylvania   Constitution   and   the   United   States   Constitution   are

comparable.”   Commonwealth v. Perez, 97 A.3d 747, 759 (Pa. Super.

2014) (citation omitted).

     Here, on independent review, I would conclude that none of the four

enumerated factors applies in this case. In particular, the third factor (new

law changes punishment, and makes it greater than it was when the

punishable act was committed), does not preclude the sentence imposed.

     To the contrary, the Guideline Sentence Form confirms that the court

properly sentenced Appellant under the version of the statute applicable

from 1995 until 2004 (specifying mandatory minimum sentence of thirty




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months’ incarceration), during which the crime occurred.1        (See Guideline

Sentence Form, 2/22/10).

       However, in any event, the court did not sentence Appellant to the

specified mandatory minimum.             Instead, the court sentenced above the

minimum (but below the maximum), to a term of not less than thirty-six

months’ (to not more than seventy-two months’) incarceration.            (See id.;

see also N.T. Sentencing, 2/22/10, at 7).             It bears noting that the

sentencing court did not refer in any way to the sentence as being a

mandatory minimum. (See N.T. Sentencing, 2/22/10, at 7). Therefore, the

whole issue of whether the sentencing court imposed a mandatory minimum

sentence is not relevant.

       I would affirm the judgment of sentence without reservation.

       Accordingly, I respectfully concur in part and dissent in part.




____________________________________________


1
  Based largely on this reference I respectfully disagree with the learned
Majority’s factual conclusion that the trial court “could only have applied” the
version of 42 Pa.C.S.A. § 9718 in effect from November 30, 2004 until
December 31, 2006. (See Majority, at *13).



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