Petition for Writ of Certiorari — Schaub v. Pennsylvania (No. 08-1432)

2% | Supreme Court, U.S.

No 081432 MAR 26 2009

OFFICE OF THE CLERK

In the Supreme Court of the United

States

Matthew J. Shaub,

Petitioner.

Vv.

Commonwealth or Pennsylvania,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Pennsylvania

PETITION FOR A WRIT OF CERTIORARI

Jerome C. Finefrock*

Law Office of Jerome C. Finefrock

316 North Pine St.

Lancaster, PA 17603-3333

(717) 808-482]

Fax (717) 392-4488

Admitted October 1], 1983

James A. Nettleton, Jr.

Law Office of James a. Nettleton, Jr.

PO Box 4852

Lancaster, PA 17604:°4852

*Counsel of Record

QUESTIONS PRESENTED

J

Does 75 Pa.C.S. §3806(b) act as an ex post facto

provision, when its ten year lookback provision is

apphed retroactively, especially as to the Petitioner, who

has completed an Accelerated Rehabilitative Disposition

(““ARD”) program, in lieu of a conviction, under its

predecessor statutes, who has kept the bargain of 75

Pa.C.S. §3731(e) (repealed), the prior seven year

lookback rule, and who has been caught in the deeper

dragnet of §3806(b), so as to be exposed to a considerably

longer prison sentence under §3804(c) upon a second

conviction for DUI?

I]

Has the Commonwealth of Pennsylvania

performed a substantive and procedural violation of

Petitioner's rights under the XIV Amendment when it

assessed him an enhanced sentence even though its own

u

statutes, § 21(2) and § 21(5) of Act 24 of 2003, 2003

Pa. saws 120, forbad such an enhancement.

1

TABLE OF CONTENTS

Page

QUESTION PRESENTED....................c00000+ eateton 1

TABS GE AUTHOR TIIG, « «05 scccssessersecvessccceessesonzeenis iv

Se RE SN onc bis sicevsicv tes tacndcancaaascteaeenerenee 1

ee I ic isidecs dus bcc chy y chgu een daeavans deaieecnsamenens 2

CONSTITUTIONAL AND STATUTORY

PROV LEO EINE woo sce venssescaveseccsscateneenesseavense 3

Be BOE sg csek orca nccov casi anceens s ipuler ape enplcasauennareceed 4

REASONS FOR GRANTING THE PETITION........... 7

I. Statement of Facts and Procedural History......... 7

Li. Bx Fost Facto APpBcation........2..c0ccccccocseoverencess 9

JJJ. XIV Amendment Due Process.......................... 13

RA POR MON cic sc os civ caches wenveruaanesaaw cue tuna teccosmieeee ae

iV

TABLE OF AUTHORITIES

Page

Federal Constitutional Provisions

Ee, A, PU Sr i i cot bce ii ca apinescsiiercieancaivrzies 12

Te SE FI FI onic is iain shox cased tstanstensxsasdononses 17

U.S. Citations

Beazel] v. Ohio, 269 U.S. 167 (1925)............cccececeeeeeeees 9

Calder v. Bull, 3 U.S. 386 (1798).............ccccccecese eee. 9,13

Carmell v. Texas, 529 U.S. 513 (2000)..........0.00..ceeee. 15

Collins v. Youngblood, 497 U.S. 37, (1990)....0......0000... 9

Cummings v. Mrssour?, 71 U.S. 277 , (1867).........000... 9

Dobbert v. Florida, 432 U.S. 282, 292 (1977)... 9

Fletcher v. Peck,10 U.S. 87 (1810)..............00cccecceeecceeees 9

rat v, Siete, FE GB. SE CII oes oes cases cesccecssnseeceasee 9

Miller v. Florida, 482 U.S. 423, 430 (1987).......000000.... 9

Smith v. Doe, 538 U.S.84 (2003),

reh. den. 538 U.S. 1009 (2003).......................... Meare 12

Stogner v. Califormia, 589 U.S. 607 (2003)...0000.0...002.. 13

v

Whitte v. United States, 515 U.S. 389 (19985).......... 6,15

Pennsylvania Court Citations

Com. v. Estman, 915 A.2d 1191 (Pa.2007)............ 11, 16

Com. Ce Gee FT vvvivvccncsiscicenccscncceces 11, 16

Com. v. McCoy, 895 A.2d 18

i I ao rescscsn cated cdsinarasnseisiavacnes ars 5 12, 15

Com. v. Smith, 904 A.2d 30 (2006)...............2......0e- 11 15

Com. v. Tustin, 2005 Pa.Super 386; 888 A.2d 843

| SS pled setae CTA SC) Aa alone 6, 9, 10, 11, 14

Statutes

9 Rae pL) Sa Oem Read 2 MORN 8, 10

§ 21(2) and § 21(5) of Act 24 of 2003, 2003 Pa. Laws

SESE ene en PEROT Ore Oe Mey rere SOT AN YOO >:,5 8, 10, 14

PU We ke dass so canccbnitavvocnss ones eres eda tesa teem 7

(iB FORT |) nae arena eee EMITS Ly ee 7

75 Pa. CS. §3806(b) ae. ceseve ty O, 30, 12, 18, 1S

}

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

Petitioner’s Petition for Allowance of Appeal

was denied, per curiam, by the Pennsylvania

Supreme Court on December 30. 2008, sub

nom Commonwealth of Pennsylvania, v.

Matthew John Shaub, 963 A. 2d 469 (Pa.

2008).

The decision of the Pennsylvania Superior

Court is entered, without printed opinion, at

959 A.2d 973 (Pa. Super. 2008) and is

included as Appendix “A”.

The decision and order of the Court of

Common Pleas of Lancaster County,

Pennsylvania, Commonwealth of

Pennsylvania v. Matthew .. Shaub, No. 5656

of 2006 is unreported and 1s included as

Appendix “B”.

2

JURISDICTION

Petitioner’s Petition for Allowance of Appeal

was denied, per curiam, by the Pennsylvania

Supreme Court on December 30, 2008, sub nom

Commonwealth of Pennsylvania, v. Matthew John

Shaub, 963 A. 2d 469 (Pa. 2008).

This Court’s jurisdiction 1s invoked under 28

U.S.C. § 1257(a).

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution: Art. I, § 10, cl. 1

No State shall enter into any Treaty, Alliance,

or Confederation; grant Letters of Marque and

Reprisal; coin Money; emit Bills of Credit; make

anything but goild and silver Coin a Tender in

Payment of Debts; pass any Bill of Attainder, ex

post facto Law, or Law impairing the Obligation of

Contracts, or grant any Title of Nobility.

United States Constitution: XIV Amendment

1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty ,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

4

STATEMENT

A. The Trial Court Proceedings

On November 1, 2007 the Honorable David J.

Ashworth rendered the Court of Common Pleas of

Lancaster County, Pennsylvania decision in the

instant matter holding that the ten year “look back”

provision of 75 Pa. C. S. A. § 3806(b) did not violate

the constitutional and due process protections

against ex post facto laws. Petitioner Shaub was

arrested on April 14, 1998 for DUI. On August 25,

1998 he entered the Accelerated Rehabilitative

Disposition Program (“ARD”), which he successfully

completed on March 27, 2000. At the time of his

completion of ARD, 75 Pa. C.S. A. § 3731(e) was

the law of Pennsylvania. Under that statute a

defendant who was arrested a second time within

seven years for DUI was subject to an enhanced

penalty, but was within a safe harbor after the

5

seventh year. On February 1, 2004 the DUI statute

was changed by the aforesaid 75 Pa. C. S.A. §

3806(b) which increased the “look back” period to

ten years. On August 29, 2006 Petitioner Shaub

was again arrested for DUI, within the new ten

year “look back” thus losing the protection of the

seven year safe harbor. The Court based its opinion

on Commonwealth v. McCoy, 895 A. 2d 18 (Pa

Super. 2006), which held, 895 A. 2d at 34 that the

statute merely enhanced McCoy’s punishment for

the second offense.

B. The Pennsylvania Superior Court Decision

Petitioner timely appealed the trial court’s order,

continuing to argue the constitutional issues of due

process and ex post facto application of the sentence

rendered. The Superior Court affirmed the Tria]

Court holding that Commonwealth v. McCoy, supra

6

disposed of Shaub’s ex post facto argument and that

Commonwealth v. Tustin, 888 A. 2d 843 (Pa. Super

2005),( citing therein at 846, this Court’s opinion in

Whitte v. United States, 515 U.S. 389, 400 (1995)),

disposed of his due process argument.

C. The Pennsylvania Supreme Court Decision

Petitioner's Petition for Allowance of Appeal

wasdenied, per curiam, by the Pennsylvania

Supreme Court on December 30, 2008, sub nom

Commonwealth of Pennsylvania, v. Matthew John

Shaub, 963 A. 2d 469 (Pa. 2008).

f

REASONS FOR GRANTING THE PETITION

|

STATEMENT OF FACTS AND PROCEDURAL

HISTORY

This case arises from a motor vehicle stop in

Lititz, Lancaster County, PA on August 29, 2006

during which your Petitioner, Matthew J. Shaub

(defendant and appellant below) was charged with a

violation of Title 75 C.S.A.§3801 et seq, (DWI). He

was determined to have a BAC of .21%, in violation

of §3804(c) (Highest level of alcohol). On June 18,

2007, Shaub plead guilty as charged and a pre-

sentence investigation was ordered . Shaub stood

for sentencing before the Honorable David L.

Ashworth on September 17, 2007. In a Sentencing

Memorandum, Shaub challenged the legality of a

sentence that would find him culpable as a second

offender under §3806, but regardless, was

8

sentenced to 90 days 1n Lancaster County Prison,

based on Shaub’s prior DUI on April 14, 1998.

In that case, Shaub was allowed to enter the ARD

program, which he completed in a timely manner on

March 27, 2000. At the time, there was a seven (7)

year “lookback” rule, which rule was expanded to

ten (10) years by §3806. Thus, Shaub had completed

his seven (7) year window under §3731(e), but he

fell into the ten (10) year window of §3806. The

basis of Shaub’s appeal is that the ten (10) year

window is being applied unconstitutionally and in

derogation of the specific exclusion of Section 21(2)

and 21(5) of Act 24 of 2003.’ Because of his

successful completion of ARD, Shaub did not suffer

a conviction for the first offense. In September and

October of 2007, various motions were filed on

‘Act of Sept. 30, 2003, P.L. 120 No.24, effective

February 1, 2004 (P.L. 24), which repealed the

former DU] Statute, 75 Pa. C.S.A. §373

9

Shaub’s behalf as he continued to challenge the

legality and constitutional nature of his sentence.

I]

iX POST FACTO APPLICATION

Shaub maintains that his September 17, 2007

sentence is in violation of ex post facto

jurisprudence, as stated in this Court’s precedent.’

The matter was appealed in timely fashion to the

Superior Court, where argument was held, and from

which an “Non-precedentia] Opinion” was issued on

July 16, 2008, wherein Shaub’s sentence was

deemed to be constitutional. The Superior Court

found, following Commonwealth v. Tustin, 2005

Pa.Super 386; 888 A.2d 843 (2005), that the 10 year

> Calder v. Bull. 3 U.S. 386. 3 Dall. 386. 1 L. Ed.

648 (1798): Fletcher v. Peck, 6 Cranch 87, 138

(1810); Cummings v. Missour1, 4 Wall. 277,

325-326, (1867): Gut v. State, 9 Wall. 35, 38 (1870):

Reazell v. Ohio, 269 US. 167 (1925); ; Dobbert v.

Florida, 432 U.S. 282, 292 (1977); Miller v. Florida,

482 US. 423, 430 (1987); Collins v. Youngblood,

497 U.S. 37, 41, 111 L.Ed. 2d 30 (1990).

10

lookback rule of 75 Pa.C.S. § 3806, was

constitutional. In that case a sentence was

contested as a Due Process violation by a defendant

who was sentenced as a second offender. He, like

Shaub, had been convicted under former 75 Pa.C.S.

§3731. The court specifically did not address the ex

post facto issue, indicating in fn. 2 that Tustin

limited his appeal to the due process matter. Tustin,

888 A.2d at 844. Here, Shaub is specifically

challenging the ex post facto application, and asserts

that under our Constitution, and especially as

addressed by the General Assembly in the Act of Sep

30, 2003, P.L. 120, No. 24, no retrospective or ex

post facto apphicaticn shall occur.

Section 21(2) states:

The repeal of 18 Pa.C.S. § 7514 and 75 Pa.C.S. §

3731 shall not affect offenses committed prior to

February 1, 2004, or civil and administrative

penalties imposed as a result of those offenses.

Section 21(5)(i) states:

11

Except as set forth in subparagraph (ii) or (iii), this

act shall not affect an offense committed before

February 1, 2004, or any criminal, civil and

administrative penalty assessed as a result of that

offense

This issue 1s not addressed by the Tustin court in

its opinion, which did not deal with the ex post facto

objection.

The Superior Court, in its opinion below, also cites

a number of other decisions upon which it relies:

Commonwealth. v. McCoy, 895 A.2d 18 (Pa.Super.

2006); Commonwealth. v. Smith, 904 A.2d 30 (20086):

and Commonwealth. v. Cook, 941 A.2d 7 (2007).

However, the Superior Court did not address the

Pennsylvania Supreme Court's opinion in

Commonwealth. v. Estman, 915 A.2d 1191 (Pa.

2007), where the important difference between

substantive and procedural siatutes was resolved.

Estman was raised before the Superior Court, but

was ignored.

12

The Pennsylvania Supreme Court has never

addressed the ex post facto application of §3806(b),

as complained of by Shaub.

This petition follows, alleging that Shaub has been

deprived of his rights under the U.S. Constitution

Art. I, §10, Cl.1. In Smith v. Doe, 538 U.S.84, 155

L.Ed. 2d 164 (2003), reh. den. 538 U.S. 1009 (2003);

L. Ed.2d 844 (2003), the United States Supreme

Court differentiated between punitive statutes

(subject to the ex post facto Clause) and “civil

proceedings” which are not subject to constitutional

prohibitions. Id. @ 538 U.S. 84, 92-97.

Shaub draws this Court’s attention to the punitive

nature of §3806(b). Under the prior act a Trial

Court imposed a punishment, in Shaub’s case, ARD

plus a seven year period within which he must not

again violate the DUI Jaw. In essence he was on

probation for seven years. Now the new act

13

increased that probation to ten years. This action

clearly violates Justice Chase’s first alternative

—— 3 “Every law that changes the punishment,

and inflicts a greater punishment, than the law

annexed to the crime, when committed.” Calder v.

Bull, 3 U.S. 386 (1798) at 390-391. Indeed this

Court’s opinion in Stogner v. California, 539 U.S.

607 (2003) suggests that Justice Chase’s first

alternative Category 2 “Every law that aggravates a

crime, or makes it greater than it was, when

committed.” Calder at 390-391, also applies to the

instant case. If, however, this Court finds that the

greater penalty is not punitive in nature, then it

must of necessity be a “civil proceeding.”

In the latter case, the instant application of the

statute clearly violates the “civil and administrative

penalty” provision of the statute. If §3806(b) is

punitive, then it 1s in and of itself ex post ficto.

14

II.

XIV AMENDMENT DUE PROCESS

Further, Shaub maintains that his sentence

unconstitutionally deprives him of due process by

ignoring §21 of the Act of 2004 wherein the DUI

laws in Pennsylvania were re-written to comply with

the federal mandate that .08% BAC would be the

national limit for drivers, beyond which criminal

penalties would attach.

Section 21(2) and Section 21(5)(D) are set out in full

at page 10 supra. The matter was appealed in timely

fashion to the Superior Court, where argument was

held, and from which an “Non-precedential Opinion”

was issued on July 16, 2008, wherein the act was

held to be ineffective in Shaub’s case, and his

sentence was deemed to be constitutional. The

Superior Court found that Tustin governed,

15

that the 10 year lookback rule of 75 Pa.C.S. § 3806

was not a due process violation, and that the

sentence was constitutional. In its opinion the

Tustin Court cites this Court’s opinion in Witte v.

United States, 515 U.S. 389, 400 (1995). The

Superior Court’s reliance on that case is misplaced.

Witte is inapposite to the issue of due process as

applied to Shaub as it interprets the Federal

Sentencing Guidelines under the double jeopardy

clause. Here, on the other hand, Shaub has a due

process right to require the Commonwealth of

Pennsylvania to “play by its own rules’, Carmel] v.

Texas, 529 U.S. 513, 533 (2000).

The Superior Court, 1n its opinion below, also cites a

number of other decisions upon which it relies:

Commonwealth. v. McCoy, 895 A.2d 18 (Pa.Super.

2006); Commonwealth. v. Smith, 904 A.2d 30 (2006);

and Commonwealth. v. Cook, 941 A.2d 7 (2007).

16

However, the Superior Court did not address the

Pennsylvania Supreme Courts Commonwealth. v.

Estman, 915 A.2d 1191 (Pa. 2007), where the

important difference between substantive and

procedural statutes was resolved. Estman was

raised before the Superior Court, but was ignored.

Clearly, under Estman the retroactive application of

the ten year “look back” along with the possible

increase of sentence would be a question of

substantive due rights not procedural ones. Estman

at 1195. Pennsylvania law definitively presumes

against the retroactive effect of substantive statutes,

Id. at 1193, particularly since the legislature is

presumed to not intend an unconstitutional result,

Id. at 1195. “Because [the statute in Estman] is

substantive, it cannot be apphed retroactively.” Id.

At 1196. Estman did not reach the #x Post Facto

17

grounds as the due process violation was sufficient

to overturn Estman’s conviction.

As in that case, XIV Amendment due process

requires that Pennsylvania must “play by its own

rules’ and protect Petitioner’s right to elemental

fairness.

CONCLUSION

The Commonwealth of Pennsylvania has denied

Petitioner Shaub his constitutional rights as

guaranteed by Art. I, § 10, Cl. 1 of the United States

Constitution and the XIV Amendment thereunto.

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

this 26th day of March, 2009

Se

2 __

Jekome C. Finelreck*

316NNprth Pine Street

Lancaster, PA 17603-3333

(717) 808-4821

PA Bar # 29146

Admitted October 11, 1983

James A. Nettleton, Jr.

PO Box 4852

Lancaster, PA 17604-4852

PA Bar #55791

*Counsel of Record

APPENDIX 1

J.A13023/08

NON-PRECEDENTIAL DECISION - SEE

SUPERIOR COURT 1.0.P. 65.37

COMMONWEALTH ; IN THE SUPERIOR

OF PENNSYLVANIA, ~ : COURT OF

PENNSYLVANIA

Appellee

v.

MATTHEW JOHN

SHAUB,

Appellant: No. 1749 MDA 2007

Appeal from the Judgement of Sentence Entered

September 13, 2007, Court of Common Pleas,

Lancaster County, Criminal Division,

at No. CP-36-CR-0005656-2006.

BEFORE: LALLY-GREEN, SHOGAN, and

COLVILLE*, Ju.

MEMORANDUM: FILED: July 16, 2008

Appellant, Matthew John Shaub, appeal from

the judgment of sentence entered on September 13,

J.A13023/08

2007,’ following his guilty plea to driving under the

influence of alcohol (“DUI”). We affirm.

The trial court set forth the relevant facts and

procedural history of this case as follows:

Appellant was stopped on August 29,

2006, at approximately 10:05 p.m., by Officer

Jared A. Hahn of the Lititz Borough Police

Department for a traffic violation. Appellant,

who emitted a strong odor of alcohol and

presented with red blood shot eyes, and

slurred speech, agreed to submit to

standardized field sobriety testing. Based

upon his performance, he was deemed to have

failed and was subsequently placed under

arrest. Appellant was then advised of the

Pennsylvania Implied Consent DL-26 form

which he acknowledged and agreed and

agreed to provided a chemical test. Utilizing

‘Appellant purports to appeal from the order entered on

September 20, 2007, denying his post:sentence motion, but a

criminal appeal hes from the judgment of sentence imposed

Commonwealth v. Clark, 746 A.2d 1128, 1130 (Pa. Super

2000) (en banc), appeal denied, 564 Pa. 702, 764 A.2d 1064

(2000). Hence, we have amended the caption.

*Retired Senior Judge assigned to the Superior Court

J.A13023/08

the Intoximeter RBT IV, Appellant provided a

chemical test of breath which yielded a blood-

alcohol concentration of .210% at 10:47 p.m.,

approximately 40 minutes after the traffic

stop.

On December 5, 2006, [Appellant] was

charged with DU] (highest rate of alcohol),

DUI (general impairment), and the summary

offense of improper stop. Thereafter, on June

18, 2007, Appellant appeared with counsel

before the Honorable William Henry to enter

open guilty pleas to all charges. After

conducting a thorough colloquy, Judge Henry

accepted the pleas and ordered a presentence

investigation report (PSI). The PSI revealed

that Appellant had previously been arrested

for a DUI on April 14, 1998. On August 25,

1998, he entered the accelerated rehabilitative

disposition (ARD) program, which he

completed successfully on March 27, 2000.

Because Appellant’s blood-alcohol

concentration at the time of his arrest was

.210%, he was subject to 75 Pa.C.S.A. §

3804(c) for sentencing purposes. The

Commonwealth's position at sentencing was

that § 3804(c)(2) applied and Appellant must

serve a minimum 90 days as a second offender

because of the 1998 DUI. Appellant filed a

sentencing memorandum of law in which he

|

'

Lod

'

J.A13023/08

argued that he was entitled to be sentenced as

a first offender under § 3804(c)(1) because he

completed the ARD program in 2000 and went

an additional six years before being arrested

for the instant offenses, thus surpassing the

seven-year “look back” period of the former 75

Pa.C.S.A. § 3804(e). Effective February 1,

2004, there were various statutory changes to

the DUI statute, the most relevant to this

proceeding being the enlargement of the “look-

back” period from seven to ten years for

determining which prior offenses impact

sentencing. Appellant was challenging the

ten-year “look back” provision of the newly

enacted § 3806 as an ex post facto application

of the law.

At the sentencing hearing on

September 13, 2007, [the trial court]

considered the statute, Appellant’s sentencing

memorandum, and the presentence

investigation report before imposing the

mandatory sentence of 90 days to 23 months

‘nearceration for a second-time DUI offender.

Appellant was further ordered to pay fines

and costs.

On September 19, 2007, Appellant filed

a timely motion to reconsider sentence, which

was denied by order of [the trial court] on

September 20, 2007. Appellant

eo

J.A13023/08

contemporaneously filed a petition for bail

while post-sentence motions were pending.

This petition was also denied of September 20,

2007, as there were then no pending motions

before the court.

A notice of appeal was filed by

Appellant’s counsel on October 9, 2007.

* ~~ ©

Appellant had been directed to identify the

matter complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure

1925(b). On October 30, 2007, he filed a Rule

1925(b) statement identifying just one issue

on appeal: whether the ten-year “look back”

provision of § 3806(b) violates the

constitutional and due process protections

against ex post facto laws.

Trial Court Opinion, 11/1/07, at 1-4 (footnotes

omitted).’

On appeal, Appellant raises two issues for our

review:

?We noted that Appellant's brief violates Pa.R.A.P.

2111(a)(9) and (b) in that it does not include a copy of the trial

court’s Pa.R.A.P. 1925(a) opinion.

x, ™

—

J.A13023/08

A.

Does 75 Pa.C.S. §3806(b) operate in an un-

Constitutional manner when its 10 year

lookback provision is applied to any person,

especially Appellant Matthew J. Shaub, who

has completed an ARD program under its

predecessor statutes, who has kept the

bargain of §3731{e), the 7 year Jookback rule,

and who has been caught in the deeper

dragnet of §3806(b), so as to be exposed to a

considerably longer prison sentence under

§3804(c) upon a second conviction for DUI?

Is the sentence :mposed in derogation of

§21(2) which reads as follows:

The repeal of 18 Pa.C.S. § 7514 and 75

Pa.C.S. § 3731 shal/ not affect offenses

committed prior to February 1, 2004, or civil

and administrative penalties imposed as a

result of those offenses.

Appellant’s Brief at 5 (emphasis original).

Appellant challenges the legality of his

sentence in that he challenges the constitutionality

of the cited statute as apphed to his situation.

Commonwealth v. Tustin, 88 A.2d 843, 845 (Pa.

-6-

J.A13023/08

Super. 2005). “The determination as to whether the

trial court imposed an illegal sentence is a question

of law; our standard of review in cases dealing with

questions of law is plenary.” Commonwealth v.

Williams, 868 A.2d 529, 532 (Pa. Super 2005),

appeal denied, 586 Pa. 726, 890 A.2d 1059 (2005).

Appellant first argues that application of the

ten-year “look back” provision of section 3806(b) of

the Vehicle Code to his completed 1998 ARD

disposition was an ex post facto violation. According

to Appellant, he “had a vested contractual

substantive right to be treated as a 1* offender at his

subsequent sentencing for DUI. The ten year

lookback prov‘sion of 75 Pa.C.S.A. §3806(c)

unilaterally stripped [him] of that right, in

derogation of... the PA Constitution and the

3

J.A13023/08

Constitution of the United States.”

Appellant’s Brief at 7.

When an appellant challenges the

constitutionality of a statute, the appellant

presents this Court with a question of law.

Our consideration of questions of law is

plenary. A statute is presumed to be

constitutional and will not be declared

unconstitutional unless it clearly, palpably,

and plainly violates the constitution. Thus,

the party challenging the constitutionality of

a statute has a heavy burden of persuasion.

Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.

Super. 2004) (interna) citations omitted).

Since the new DUI law became effective on

February 1, 2004, this Court has repeatedly

addressed the question of whether the ten-year “look

back” period of section 3806 is constitutionally

infirm. See Tustin, supra (holding that application

of ten-year “look back” period to defendant’s prior

J.A13023/08

DUI conviction did not violate his due process

rights); Commonwealth v. McCoy, 895 A.2d 18 (Pa.

Super. 2006) (en bano (holding that enhancement of

sentence on current DUI violation based on DUI

conviction within ten-year “look back” period was not

unconstitutional ex post facto application of DUI

law); Commonwealth v. Smith, 904 A.2d 30 (Pa.

Super. 2006) (rejecting claim of ex post facto

violation where ten-year “look back” prevision of

Section 3806(b) applied to two prior convictions)’.

Moreover, we have applied Tustin, McCoy,

and Smith to the situation at hand, /e.,

enhancement of a current DUI sentence based on a

concluded ARD within the ten-year “look back”

*Most recently, we reiterated the rule of law set forth in

Tustin and its progeny in Commonwealth v. Cook, 941 A.2d 7

(Pa. Super. 2007).

-Q-

J.A13023/08

period of section 3806(b). See Commonwealth v.

Fulton, 921 A.2d 1239 (Pa. Super. 2007), appea/

dented, 594 Pa. 686, 934 A.2d 72 (2007) (concluding

there was no error in imposition of DUI sentence

enhanced by prior ARD pursuant to section 3806(b));

Commonwealth v. Pleger, 934 A.2d 715 (Pa. Super.

2007) (rejecting trial court’s contract law analysis

and reversing sentence not enhanced by ARD within

ten-year “look back” period of section 3806(b)).

In ght of this overwhelming authority, we

conclude that no ex post facto violation occurred in

the case at hand. The trial court properly treated

Appellant's 1998 ARD as a prior offense pursuant to

section 3806(b).

Next, Appellant claims the trial court

sentenced him in derogation of the Act of Sept. 30,

-10-

J.A13023/08

2003, P.L. 120, No. 24, effective Feb. 1, 2004 (“Act

24”), which repealed the former DUI statute, 75

Pa.C.S.A. § 3731. “According to §21(2) and §21(5)()”

of Act 24,’ Appellant argues, the new law “can have

‘Section 21(2) provides as follows: “The repeal of... 75

Pa.C.S. § 3731 shall not affect offenses committed prior to

February 1, 2004, or civil and administrative penalties imposed

as a result of those offenses.” Section 21(5) provides that:

The following apply to offenses committed before

February 1, 2004:

(i) Expect as set forth in subparagraph (ii) or

(iii), this act shal} not affect an offense

committed before February 1, 2004, or any

criminal, civil and administrative penalty

assessed as a result of that offense.

(ii) Subparagraph (i) does not apply if a

provision added or amended by this act

specified application to an offense committed

before February 1, 2004, or to any criminal, civil

or administrative penalty assessed as a result of

that offense.

(ut) Subparagraph (i) does not apply to the

following provisions:

(A) The amendment of 42 Pa.C.S. §

7003(5) in section 3 of this act.

«Pie

J.A13023/08

no effect on'an ARD resolution under §3731; 7.e., it

cannot take away from one who has entered and

completed ARD the provisions which protect him

from a ‘second offense’ prosecution if the 7 year

element of §3731(e) was satisfied.” Appellant’s Brief

at 10 (emphasis original).

Upon review, we conclude that Appellant

misunderstands the non-retroactivity provisions of

(B) The amendment of 75 Pa.C.S. §

1516(c) and (d).

(C) The amendment of 75 Pa.CS. §

1534(b).

(D) The amendment of 75 Pa.CS. §

1547(d) in section 9.1 of this act.

(E) The amendment of 75 Pa.CS. §

3731(a)(4)() and (a.1)(1)@) in section 13

of this act.

Id. at § 21(5) (footnote omitted).

J.A13023/08

Act 24. Pursuant to subsections 21(2) and (5), the

new DUI law does not apply to offenses committed

before February 1, 2004, unless otherwise provided.

Appellant’s 1998 ARD predates the effective date of

Act 24. Moreover, non of the exceptions set forth in

Section 21(5)(ii) or (iii) applies. Therefore,

Appellant’s 1998 DUI conviction was not subject to

the penalties of the new DUI] law. However, “our

courts have held that a statute does not operate

retrospectively merely because some of the facts or

conditions upon which its application depends came

into existence prior to its enactment.” McCoy, 895

A.2d at 34 (quoting A/Jexander v. DOT, Bureau of

Driver Licensing, 583 Pa. 592, 604, 880 A.2d 552,

559 (2005)). Specifically, we have held that the new

DUI statute “does not reach into the past and

5%.

J.A13023/08

increase punishment for concluded DUI convictions.

The statute, rather, consider ‘facts or conditions’

which came into existence prior to its enactment, se.

prior DUI convictions, and effects [sic] only the

punishment for a new conviction under the newly

enacted DUI law.” Jd. This Court explained in

Tustin that “the enhanced punishment imposed for a

later offense is not to be viewed as either a new

jeopardy or additional penalty for the earlier crimes,

but instead as ‘a stiffened penalty for the latest

crime, which is considered to be an aggravated

offense because it is a repetitive one.” Tustin, 888

A.2d at 846 (quoting Witte v. United States, 515

U.S. 389, 400°(1995)).

Applying the above principles to the case at

hand, we conclude that, even though Appellant's

-)4.

J.A13023/08

1998 ARD came into existence prior to enactment of

the new DUI law, the trial court could consider if for

purposes of applying the ten-year look back

provision to his present conviction, which occurred

more than two years after the repeal of section 3731.

McCoy. In doing so, the trial court did not further

punish Appellant for his 1998 ARD, but created an

enhanced penalty for the present conviction, which

was a repetitive offense. Tustin. Therefore,

Appellant’s second claim fails.

Judgment of sentence affirmed.

Judgement Entered:

/s/ James S. McCullough

Deputy Prothonotary

Date: July 16, 2008

APPENDIX 2

IN THE COURT OF COMMON PLEAS OF

LANCASTER COUNTY, PENNSYLVANIA

CRIMINAL

COMMONWEALTH No. 5656 of 2006

OF PENNSYLVANIA :

‘CLERK OF COURTS

v. - 2007 NOV-1 PM 1:42

‘LANCASTER COUNTY,

MATTHEW J.SHAUB :PA

OPINION SUR PA R.A.P. 1925(a)

BY: ASHWORTH, J.,. NOVEMBER 1, 2007

Matthew J. Shaub has filed a direct appeal

from the judgment of sentence following his guilty

plea to driving under the influence of alcohol (DUD.

This opinion is filed pursuant to Rule 1925(a) of the

Pennsylvania Rules of Appellate Procedure.

1. Background

The relevant facts and procedural history are

as follows. Appellant was stopped on August 29,

2006, at approximately 10:05 p.m., by Officer Jared

A. Hahn of the Lititz Borough Police Department for

a traffic violation. Appellant, who emitted a strong

odor of alcoho] and presented with red blood shot

eyes, and slurred speech, agreed to submit a

standardized field sobriety testing. Based upon his

performance, he was deemed to have failed and was

subsequently placed under arrest. Appellant was

then advised of the Pennsylvania Implied Consent

DL-26 form which he acknowledged and agreed to

provide a chemical test. Utilizing the Intoximeter

RBT IV, Appellant provided a chemical test of breath

which yielded a blood-alcohol concentration of .210%

at 10:47 p.m., approximately 40 minutes after the

traffic stop.

On December 5, 2006, Shaub was charged

with DUI (highest rate of alcohol),’ DUI (general

'75 Pa. CSA. § 3802(c)

impairment),’ and the summary offense of improper

stop.* Thereafter, on June 18, 2007, Appellant

appeared with counsel before the Honorable William

Henry’ to enter open guilty pleas to all charges.

After conducting a thorough colloquy, Judge Henry

accepted the pleas and ordered a presentence

investigation report (PSI). The PSI revealed that

Appellant had previously been arrested for a DUI on

April 14, 1998. On August 25, 1998, he entered the

accelerated rehabilitative disposition (ARD)

program, which he completed siccessfully on March

27, 2000.

Because Appellant’s blood-alcohol

°75 Pa. C.S.A. § 3802(a)(1).

°75 Pa. C.S.A. § 3351 (a).

4 : ao p ‘

Judge Henry 1s a visiting senior judge from Jefferson

County.

2

concentration at the time of his arrest was .210%, he

was subject to 75 Pa. C.S.A. § 3804(c)° for sentencing

purposes. The Commonwealth’s position at

sentencing was that § 3804(c)(2) applied and

Section 3804(c) provides in pertinent part:

(c) Incapacity; highest blood alcohol; controlled substances.- An

individual who violates section 3802(a)(1) and refused testing of

blood or breath or an individual who violates section 3802(c) or

(d) shal) be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 72

consecutive hours;

(ii) pay a fine of not less than $1,000 nor more

than $5,000;

(iii) attend an alcohol highway safety school

approved by the department:

and

(iv) comply with all drug and alcohol treatment

requirements imposed under section 3814 and

3815.

(2) For a second offense, to:

(1) undergo imprisonment of not less than 90

days:

(11) pay a fine of not less than $1,500;

(iii) attend an alcohol highway safety school

approved by the department;

and

(iv) comply with all drug and alcohol treatment

requirements 10posed under section 3814 and

3815.

75 Pa. C.S.A §3804(c).

Appellant must serve a minimum of 90 days as a

second offender because of the 1998 DUI]. Appellant

filed a sentencing memorandum of law in which he

argued that he was entitled to be sentenced as a first

offender under § 3804(c)(1) because he completed the

ARD program in 2000 and went an additional six

years before being arrested for the instant offenses,

thus surpassing the seven-year “look back” period of

the former 75 Pa. C.S.A. § 3731(e). Effective February

1, 2004, there were various statutory changes to the

DUI statute, the most relevant to this proceeding

being the enlargement of the “lookback” period from

seven to ten years for determining which prior

offenses impact sentencing. Appellant was

challenging the ten-year “look back” provision for the

newly enacted § 3806° as an ex post facto apwlication of

the law.

At the sentencing hearing on September 13,

2007, I considered the statute, Appellant’s

sentencing memorandum, and the presentence

investigation report before imposing the mandatory

sentence of 90 days to 23 months incarceration for a

second-time DUI offender. Appellant was further

°Section 3806 provides in relevant part:

(b) Repeat offenses with ten years.--The calculation of

prior offenses for purposes of section 1553(d.2) (relating

to occupational limited license), 3803 (relating to

grading) and 3804 (relating to penalties) shall include

any conviction, adjudication of delinquency, juvenile

consent decree, acceptance of Accelerated

Rehabilitative Disposition or other form of preliminary

disposition within the ten years before the present

violation occurred for any of the following:

(1) an offense under section 3802:

(2) an offense under former section 3731:

(3) an offense substantially similar to an offense under

paragraph ()}) or (2) in another jurisdiction: or

(4) any combination of the offenses set forth in

paragraph (1), (2) or (3).

75 Pa. C.S.A. §5806(b).

ordered to pay fines and costs.

On September 19, 2007, Appellant filed a

timely motion to reconsider sentence, which was

denied by order of this Court on September 20, 2007.

Appellant contemporaneously field a petition for bail

while post-sentence motions were pending. This

petition was also denied on September 20, 2007, as

there were then no pending motions before the court.

A notice of appeal was filed by Appellant’s

counsel on October 9, 2007. On October 15, 2007,

Appellant filed with the Superior Court of

Pennsylvania an “emergency petition for bail during

appeal and supersedeas.” By per curiam order

entered on October 18, 2007, the Superior Court

remanded the matter to this court, for a period not to

exceed 20 days, during which time the trial court

was directed to state on the record its reasons for

denying bail pursuant to Pa. R.Crim.P. 521(B)(1). A

bail hearing was subsequently held on October 25,

2007. at which time Appellant’s request for bail was

granted and he was released on ROR bail pending

his appeal.

In the interim, Appellant had been directed to

identify the matters complained of on appeal

pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b). On October 30, 2007, he filed a

Rule 1925(b) statement identifying just one issue on

appeal: whether the ten-year “look back” provision of

§ 3806(b) violates the constitutional and due process

protections against ex post facto laws.

\]. Discussion

Appellant contends that 75 Pa. C.S.A. §

3806(b) amounts to an ex post facto application of

the DUI statute, contrary to the provisions of the

8

United States and Pennsylvania Constitutions. (See

Statement of Matters J 4.) Specifically, Appellant

argues that

§ 3806(b) operates in an un-Constitutional

manner when its 10 year lookback provision 1s

applied to any person, especially Shaub, who

has completed an ARD program under its

predecessor statutes, who has kept the

bargain of § 3731(e), the 7 year lookback rule,

and who has been caught in the deeper

dragnet. of § 3806(b), so as to be exposed to a

considerably longer prison sentence under §

3804(c). This amounts to a substantive

violation of Shaub’s due process right of

freedom and an ex post facto application of

law, where it is not precisely enunciated by

the legislature to be so intended.

(Id. at ¥ 6.)

The Superior Court definitively addressed this

issue 1n 2006. In Commonwealth v. McCoy, 895

A.2d 18 (Pa. Super. 2006), the Court concluded that

there is no ex post facto violation in the application

of the ten-year “look back” provision of § 3806(b) for

several reasons.

First, there is a presumption that ‘[nlo statute

shall be construed to be retroactive unless

clearly and manifestly so intended by the

General Assembly. 1 Pa. C.S.A. §1926. Here,

the General Assembly did not ‘clearly and

manifestly’ intend the DUI law to be

retroactive. For instance, the ten year ‘Jook

back’ would not apply to DUI convictions

which occurred before February 1, 2004. In

any event, this principle ‘becomes pertinent

only after it has been determined that a

proposed operation of a statute would indeed

be retrospective. In this regard, our courts

have held that a statue does not operate

retrospectively merely because some of the

facts or conditions upon which its application

depends came into existence prior to its

enactment.’ ...

The statute does not reach into the past and

increase punishment for concluded DU]

convictions. The statute, rather, considers

‘facts or conditions’ which came into existence

prior to its enactment, i.e. prior DU]

convictions, and effects only the punishment

for a new conviction under the newly enacted

DUI law.

Id. at 34-35 (citation omitted). See also

Commonwealth v. Smith, 904 A.2d 30, 39-40 (Pa.

Super. 2006). This conclusion was most recently

10

affirmed by the October 9, 2007, Superior Court

opinion 1n Commonwealth v. Pleger, --- A.2d ---,

2007 WL 2917392 (Pa. Super. 2007).

As the Court noted in McCoy: “The fact is,

appellant is a DUI recidivist. He may not like that

the new statute now looks back ten years making is

1995 DU] a prior offense, thereby enhancing his

punishment for his new DUI offense, but that is

whether the legislature intended. There is no ex

post facto violation.” 895 A.2d at 34. Similarly,

Appellant is a DUI recidivist. His first offense was

in 1998. His second offense was in August 2006,

fully two and one-half years after the effective date

of the statutory amendments to the DUI law.

Accordingly, Appellant had notice of the new law

before his new offense and could gauge his future

conduct. The court’s application of the ten-year “look

)]

back” provision in § 3806(b) did not affect in any way

the punishment for the concluded DUI conviction

from 1998. It simply created an enhanced penalty

for Appellant’s 2006 offense. This court was bound

by law to give Appellant a mandatory sentence of 90

days as a second DUI offender.

Ili. Conclusion

For the reasons set forth above, it js

respectfully suggested that the judgment of sentence

of Matthew J. Shaub be affirmed.

Accordingly, I enter the following:

IN THE COURT OF COMMON PLEAS OF

LANCASTER COUNTY, PENNSYLVANIA

CRIMINAL

COMMONWEALTH : No. 5656 of 2006

OF PENNSYLVANIA

v.

MATTHEW J. SHAUB

ORDER

AND NOW, this 1" day of November, 2007,

the Court hereby submits this Opinion pursuant to

Rule 1925(a) of the Pennsylvania Rules of Appellate

Procedure.

BY THE COURT:

/s/ David L. Ashworth

DAVID L. ASHWORTH

JUDGE

Copies to: Christine L. Wilson, Esquire

James A. Nettleton, Esquire

13

SUPPLEMENTAL APPENDIX

963 A.2d 469; 2008 Pa. LEXIS 2335, *

COMMONWEALTH OF PENNSYLVANIA,

Respondent v. MATTHEW JOHN SHAUB,

Petitioner

No. 535 MAL 2008

SUPREME COURT OF PENNSYLVANIA

963 A.2d 469; 2008 Pa. LEXIS 2335

December 30, 2008, Decided

NOTICE:

DECISION WITHOUT PUBLISHED OPINION

PRIOR HISTORY: [*1]

Petition for Allowance of Appeal from the Order of

the Superior Court.

Commonwealth v. Shaub, 959 A.2d 973, 2008 Pa.

Super. LEXJS 3402 (Pa. Super. Ct., 2008)

OPINION

ORDER

PER CURIAM

AND NOW, this 30” day of December 2008, the

Petition for Allowance of Appeal is DENIED.