J-E03004-18
2019 PA Super 117
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DANIEL C. WOOD
Appellant No. 1193 MDA 2017
Appeal from the Judgment of Sentence Entered June 29, 2017 In the Court of Common Pleas of Berks County Criminal Division at No: CP-XX-XXXXXXX-2013
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
Appellant No. 1194 MDA 2017
Appeal from the Judgment of Sentence June 29, 2017 In the Court of Common Pleas of Berks County Criminal Division at No: CP-XX-XXXXXXX-2017
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 J-E03004-18
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
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
____________________________________________
1 U.S. CONST. art. I, § 9, cl. 3, art. I, § 10, cl. 1.
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.
-2- J-E03004-18
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.
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
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.
-3- J-E03004-18
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
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.
-4- J-E03004-18
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
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
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.
5 Obviously, no court has statutory authority to impose sentence under a law that has yet to take effect.
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J-E03004-18
2019 PA Super 117
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DANIEL C. WOOD
Appellant No. 1193 MDA 2017
Appeal from the Judgment of Sentence Entered June 29, 2017 In the Court of Common Pleas of Berks County Criminal Division at No: CP-XX-XXXXXXX-2013
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
Appellant No. 1194 MDA 2017
Appeal from the Judgment of Sentence June 29, 2017 In the Court of Common Pleas of Berks County Criminal Division at No: CP-XX-XXXXXXX-2017
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 J-E03004-18
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
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
____________________________________________
1 U.S. CONST. art. I, § 9, cl. 3, art. I, § 10, cl. 1.
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.
-2- J-E03004-18
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.
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
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.
-3- J-E03004-18
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
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.
-4- J-E03004-18
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
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
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.
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.
-5- J-E03004-18
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
President Judge Emeritus Bender and Judge Bowes join this Concurring
Opinion.
7 This result would not impact the continued validity of the statute at issue in Kizak, only its application in that case.
-6-