Commonwealth v. Wall

867 A.2d 578, 2005 Pa. Super. 24, 2005 Pa. Super. LEXIS 106
CourtSuperior Court of Pennsylvania
DecidedJanuary 20, 2005
StatusPublished
Cited by26 cases

This text of 867 A.2d 578 (Commonwealth v. Wall) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Wall, 867 A.2d 578, 2005 Pa. Super. 24, 2005 Pa. Super. LEXIS 106 (Pa. Ct. App. 2005).

Opinions

OPINION BY POPOVICH, J.:

¶ 1 Christopher A. Wall appeals from the February 6, 2004 judgment of sentence entered in the Court of Common Pleas, Venango County, following his conviction for driving under the influence of alcohol. Upon review, we reverse the imposition of the additional assessment pursuant to 18 Pa.C.S.A. § 7508.1(c).

¶ 2 On July 12, 2002, Wall was arrested for driving under the influence of alcohol pursuant to 75 Pa.C.S.A. § 3731(a)(4) (amount of alcohol by weight in the blood is 0.10% or greater). His blood alcohol content (BAC) level was 0.24%. On November 5, 2003, Wall entered his guilty plea. On February 6, 2004, the trial court sentenced Wall to three to twenty-four months imprisonment, to pay a fine of $700.00, to pay costs, and to pay the $200.00 additional assessment pursuant to 18 Pa.C.S.A. § 7508.1(c). This was Wall’s second driving under the influence of alcohol offense.

¶ 3 On February 9, 2004, Wall filed post-sentence motions challenging the imposition of the additional assessment pursuant to § 7508.1(c). The trial court denied the motions, and Wall timely appealed. Wall filed a court-ordered Pa.R.A.P. 1925(b) statement, and the trial court indicated [580]*580that it would rely on its February 23, 2004 opinion.

¶4 On appeal, Wall questions whether the trial court may impose the $200.00 additional assessment pursuant to 18 Pa. C.S.A. § 7508.1(c) because the statute went into effect after he committed the DUI-alcohol offense. Wall argues that such an imposition violates the prohibition against ex post facto laws contained in the United States Constitution and the Pennsylvania Constitution.

¶ 5 “A trial court’s application of a statute is a question of law, and our standard of review is plenary.” Commonwealth v. Fleming, 801 A.2d 1234, 1236 (Pa.Super.2002) (citation omitted). “Moreover, our review is limited to determining whether the trial court committed an error of law.” Id., 801 A.2d at 1236 (citation omitted).

¶ 6 Pennsylvania enacted § 7508.1(c) on December 9, 2002, and the statute took effect sixty days later, specifically, on February 7, 2003. Section 7508.1 established the Substance Abuse Education and Demand Reduction Fund as an account in the State Treasury. See 18 Pa.C.S.A. § 7508.1(a). Subsection (c) provides an additional assessment of $200.00 to all persons convicted for violation of 75 Pa.C.S.A. § 3731 (now § 3802) where the amount of alcohol by weight in the blood is 0.15% (now 0.16%)1 or greater. See 18 Pa.C.S.A. § 7508.1(c). Subsection (d) provides that the money shall be divided equally between county substance abuse programs and the state’s Substance Abuse Education and Demand Reduction Fund. The Legislature did not declare that § 7508.1 should apply retroactively.

¶ 7 In the present case, the incident from which the offense stems occurred on July 12, 2002. The additional assessment was adopted on December 9, 2002, and went into effect on February 7, 2003. Wall pleaded guilty on November 5, 2003, after the effective date of § 7508.1(c). The trial court sentenced Wall on February 6, 2004, and imposed the additional assessment. The trial court imposed the additional assessment pursuant to § 7508.1(c) because Wall’s BAC level was greater than 0.15%. See Trial court opinion, 2/23/04, at 1. Wall argues such action violated the prohibition against ex post facto laws in the United States and Pennsylvania constitutions.

¶ 8 The United States Constitution and the Pennsylvania Constitution prohibit the passing of ex post facto laws. See U.S. Const, Art. 1, § 10; Pa. Const., Art. 1, § 17. “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.’” Fleming, 801 A.2d at 1237 (citation omitted).

¶9 The record clearly indicated that Wall’s arrest for driving under the influence of alcohol occurred before the enactment of additional assessment pursuant to § 7508.1(c). Therefore, the only issue is whether the imposition of the additional assessment inflicted upon Wall a greater punishment than the DUI-alcohol law in effect when he committed the offense. The trial court found that the additional assessment was remedial in nature and did not constitute punishment; accordingly, the trial court found that imposing the additional assessment did not violate the [581]*581ex post facto laws. We disagree with the trial court’s finding and conclude that the imposition of the additional assessment pursuant to § 7508.1(c) constituted punishment. In reaching this conclusion, we employ the Artway/Verniero test as set forth in Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999).2

¶ 10 Under the Artway¡Vemiero test, a statutory provision will be considered punishment where any of the following three criterion are found: “(1) the legislature’s actual purpose is punishment, (2) the objective purpose is punishment, or (3) the effect of the statute is so harsh that ‘as a matter of degree’ it constitutes punishment.” Gaffney, 557 Pa. at 331, 733 A.2d at 618 (citation omitted).

¶ 11 The Artway ¡Vemiero test requires us first to look at whether the adverse effect on individuals results from a desire on the part of the legislature to punish past conduct or is a by-product of a bona fide legislative effort to remedy a perceived societal problem. If the Legislature intended the additional assessment to be “punishment,” i.e., retribution was one of its actual purposes, then it must fail constitutional scrutiny. If, on the other hand, the additional assessment results from a relevant incident to a regulation, the measure will pass this first prong. Cf. De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960).

¶ 12 The Legislature imposed the additional assessment in order to fund county substance abuse programs and the newly created Substance Abuse Education and Demand Reduction Fund. Fifty percent of the funds collected remains in the county that the violation occurred to be used for substance abuse treatment or prevention programs. See 18 Pa.C.S.A. § 7508.1(d). The remaining fifty percent collected is deposited into the Substance Abuse Education and Demand Reduction Fund. See 18 Pa.C.S.A. § 7508.1(d). We can conclude that the Legislative purpose of the additional assessment was not punishment.

¶ 13 Under the Artway/Vemiero test, we must next consider whether the objective purpose of the additional assessment is punitive. The Gaffney Court set forth the following factors when considering this prong of the test:

The “objective” prong of this test focuses on “whether analogous measures have traditionally been regarded in our society as punishment,” and has three subparts: (A) “proportionality — whether the remedial purpose of [the measure] ... can explain all the adverse effects on those involved,” (B) whether the measure has been historically considered punishment, and (C) whether the measure serves both a remedial and a deterrent purpose.

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Bluebook (online)
867 A.2d 578, 2005 Pa. Super. 24, 2005 Pa. Super. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-wall-pasuperct-2005.