Com. v. Cunnane, B., 2952 EDA 2015

Appellant Brian C. Cunnane was arrested for a first DUI (May 10, 2014) and then committed a second DUI on August 29, 2014 before the first DUI conviction was entered.
Commonwealth charged the second DUI as a "highest tier"/first-degree misdemeanor on the theory the earlier incident qualified as a prior offense under 75 Pa.C.S. § 3806.
Pennsylvania law before an October 27, 2014 amendment (as interpreted in Commonwealth v. Haag) treated a prior only if a conviction existed before the subsequent offense, so Cunnane’s first DUI would not count as a prior.
The statute was amended to count prior convictions “whether or not judgment of sentence has been imposed” for purposes of grading/penalties, and that amended text was in effect at sentencing.
Appellant argued the amendment, applied to conduct that predated it, violated the Ex Post Facto Clauses; the trial court applied the amended statute, imposed a higher-graded offense and longer mandatory minimum, and later resentenced (same term) but granted immediate parole.
Superior Court vacated the judgment of sentence and remanded, holding application of the amended § 3806 violated the federal Ex Post Facto Clause because it retrospectively increased punishment.

Issue	Cunnane's Argument	Commonwealth's Argument	Held
Whether applying the post-offense amendment to § 3806 to grade/penalize the Aug 29, 2014 DUI violated the Ex Post Facto Clause	Amendment is retrospective and increases punishment (higher grade, higher mandatory minima); sentencing law in effect at time of conduct (Haag) meant no prior offense	Amendment applies only to sentencing after its effective date; it does not criminalize new conduct and merely implements legislature’s sentencing intent; penalties for DUI existed regardless	Judgment vacated and remanded: application of the amended § 3806 was an ex post facto violation because it changed legal consequences to Cunnane’s detriment and increased punishment

Commonwealth v. Haag, 981 A.2d 902 (Pa. 2009) (prior-conviction must exist before commission of subsequent offense to count as a prior under § 3806(b))
Peugh v. United States, 133 S. Ct. 2072 (2013) (applying sentencing law enacted after crime can violate Ex Post Facto Clause when it presents a sufficient risk of increased punishment)
Commonwealth v. Rose, 127 A.3d 794 (Pa. 2015) (discussing Ex Post Facto protections and fair notice principles)
Weaver v. Graham, 450 U.S. 24 (1981) (effect, not form, controls whether a law is retrospective for ex post facto purposes)
Garner v. Jones, 529 U.S. 244 (2000) (availability of sentencing discretion does not eliminate Ex Post Facto protections)
Miller v. Florida, 482 U.S. 423 (1987) (fair notice and governmental restraint are central to ex post facto analysis)
Commonwealth v. McCoy, 895 A.2d 18 (Pa. Super. 2006) (applied § 3806 where statute and conduct occurred same day; distinguished on notice grounds)