Commonwealth v. Kizak
148 A.3d 854
Pa. Super. Ct.2016Background
- Appellant Kriz Cecilia Kizak committed a DUI on December 10, 2014 (BAC .138%) while attending a courthouse preliminary hearing for an earlier September 24, 2014 DUI charge.
- The Pennsylvania legislature amended 75 Pa.C.S. § 3806(b) (signed Oct. 27, 2014) changing the 10‑year look‑back for prior DUI offenses to run from the date of sentencing; the amendment became effective December 26, 2014 and stated it "shall apply to persons sentenced on or after" that effective date.
- Appellant was charged for the December 10 offense on January 23, 2015, pled guilty on May 20, 2015, and was sentenced July 14, 2015 as a second‑offense DUI under the amended § 3806(b) because of the prior September 24 incident (which had resulted in ARD).
- Appellant argued the trial court’s use of the post‑enactment amendment to classify her as a repeat offender violated the constitutional prohibition on ex post facto laws because the amendment’s effective date was after her offense date.
- The trial court and this Court concluded Appellant had fair notice because the statute was enacted (signed) before her December 10, 2014 offense and the amendment was applied at sentencing after its effective date; therefore no ex post facto violation occurred.
Issues
| Issue | Appellant's Argument | Commonwealth/Trial Court Argument | Held |
|---|---|---|---|
| Whether applying the Oct. 27, 2014 amendment to § 3806(b) to Appellant’s Dec. 10, 2014 DUI created an ex post facto punishment | Amendment became effective Dec. 26, 2014; applying it to an offense on Dec. 10, 2014 is retroactive and increases punishment in violation of ex post facto clauses | Statute was enacted/signed before Appellant’s offense (Oct. 27); Appellant had notice when she offended; amendment applies to persons sentenced on/after effective date, so applying it at sentencing is lawful | Court affirmed: no ex post facto violation; amendment validly applied at sentencing after its effective date |
Key Cases Cited
- Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014) (standard of review for statutory application challenges)
- Commonwealth v. Descardes, 136 A.3d 493 (Pa. 2016) (de novo review for pure questions of law)
- Weaver v. Graham, 450 U.S. 24 (U.S. 1981) (ex post facto test: law must be retrospective and disadvantage the offender)
- Landgraf v. USI Film Products, 511 U.S. 244 (U.S. 1994) (new statutes are retroactive only if they attach new legal consequences to completed events)
- Commonwealth v. Wall, 867 A.2d 578 (Pa. Super. 2005) (application of post‑enactment assessment to pre‑enactment DUI reversed as ex post facto when offense preceded enactment)
- Commonwealth v. Rose, 127 A.3d 794 (Pa. 2015) (ex post facto prohibition protects fair notice and legislative restraint)