Com v. Derk

• Decision Date: 23 March 2006
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Misty J. DERK, Appellant. Commonwealth of Pennsylvania, Appellee, v. Kurt Rodney Bingaman, Appellant.
• Court: Pennsylvania Superior Court

895 A.2d 622

COMMONWEALTH of Pennsylvania, Appellee, v. Misty J. DERK, Appellant.

Commonwealth of Pennsylvania, Appellee, v. Kurt Rodney Bingaman, Appellant.

Superior Court of Pennsylvania.

Argued November 29, 2005.

Filed March 23, 2006.

Robert H. Steinberg, Middleburg, for appellants.

Michael H. Sholley, Asst. Dist. Atty., Middleburg, for Com., appellee.

BEFORE: JOYCE, ORIE MELVIN and TAMILIA, JJ.

OPINION BY JOYCE, J:

¶ 1 In these consolidated appeals, Appellants Misty Derk and Kurt Bingaman each appeal their judgments of sentence entered March 29, and March 3, 2005, respectively, in the Court of Common Pleas of Snyder County. They both contend that the trial court erred in requiring them to submit a deoxyribonucleic acid (DNA) sample to be stored in a DNA data bank and pay a mandatory cost of $250. These provisions were ordered pursuant to 44 Pa.C.S.A. §§ 2301-2336 (hereinafter the "DNA Act" or "Act"), relating to DNA data and testing.¹ After careful review, we find that the trial court did not err in ordering Derk to submit a DNA sample and affirm her judgment of sentence. However, since Bingaman does not fall within the purview of the DNA Act, it was an error for the trial court to order him to comply with its provisions and his judgment of sentence is reversed in part.

¶ 2 The statutory authority requiring certain defendants to provide a DNA sample is found at 44 Pa.C.S.A. §§ 2301-2336. Section 2316 provides:

(a) General rule. — A person who is convicted or adjudicated delinquent for a felony sex offense or other specified offense or who is or remains incarcerated for a felony sex offense or other specified offense on or after the effective date of this chapter shall have a DNA sample drawn as follows:

(1) A person who is sentenced or receives a delinquency disposition to a term of confinement for an offense covered by this subsection shall have a DNA sample drawn upon intake to a prison, jail or juvenile detention facility or any other detention facility or institution. If the person is already confined at the time of sentencing or adjudication, the person shall have a DNA sample drawn immediately after the sentencing or adjudication. If a DNA sample is not timely drawn in accordance with this section, the DNA sample may be drawn any time thereafter by the prison, jail, juvenile detention facility, detention facility or institution.

(2) A person who is convicted or adjudicated delinquent for an offense covered by this subsection shall have a DNA sample drawn as a condition for any sentence or adjudication which disposition will not involve an intake into a prison, jail, juvenile detention facility or any other detention facility or institution.

(3) Under no circumstances shall a person who is convicted or adjudicated delinquent for an offense covered by this subsection be released in any manner after such disposition unless and until a DNA sample has been withdrawn.

(b) Condition of release, probation or parole.—

(1) A person who has been convicted or adjudicated delinquent for a felony sex offense or other specified offense and who serves a term of confinement in connection therewith after June 18, 2002, shall not be released in any manner unless and until a DNA sample has been withdrawn.

(2) This chapter shall apply to incarcerated persons convicted or adjudicated delinquent for a felony sex offense prior to June 19, 2002.

(3) This chapter shall apply to incarcerated persons and persons on probation or parole who were convicted or adjudicated delinquent for other specified offenses prior to the effective date of this paragraph.

...

(d) Supervision of DNA samples. — All DNA samples taken pursuant to this section shall be taken in accordance with regulations promulgated by the State Police in consultation with the Department of Corrections.

(d.1) Mandatory submission. — The requirements of this chapter are mandatory and apply regardless of whether a court advises a person that a DNA sample must be provided to the State DNA Data Base and the State DNA Data Bank as a result of a conviction or adjudication of delinquency. A person who has been sentenced to death or life imprisonment without the possibility of parole or to any term of incarceration is not exempt from the requirements of this chapter. Any person subject to this chapter who has not provided a DNA sample for any reason, including because of an oversight or error, shall provide a DNA sample for inclusion in the State DNA Data Base and the State DNA Data Bank after being notified by authorized law enforcement or corrections personnel. If a person provides a DNA sample which is not adequate for any reason, the person shall provide another DNA sample for inclusion in the State DNA Data Base and the State DNA Data Bank after being notified by authorized law enforcement or corrections personnel.

(e) Definition. — As used in this section, the term "released" means any release, parole, furlough, work release, prerelease or release in any other manner from a prison, jail, juvenile detention facility or any other place of confinement.

44 Pa.C.S.A. § 2316. Additionally, § 2322 states that, except for a finding that undue hardship will result, "a mandatory cost of $250, which will be in addition to any other costs imposed pursuant to statutory authority, shall automatically be assessed on any person convicted [of]... a felony sex act or other specified offense. . . ."

¶ 3 "A trial court's application of a statute is a question of law, and our standard of review is plenary. Moreover, our review is limited to determining whether the trial court committed an error of law." Commonwealth v. Wall, 867 A.2d 578, 580 (Pa.Super.2005). With these standards in mind, we now turn to consider each of the appeals before us.

Commonwealth v. Misty Derk 586 MDA 2005

¶ 4 On July 21, 2003, Derk was arrested for retail theft after she was caught stealing a carton of cigarettes. Since she had two prior retail theft convictions, the offense was graded a felony of the third degree pursuant to 18 Pa.C.S.A. § 3929(b). Derk entered a guilty plea on March 19, 2005, and was immediately sentenced to five years of probation. Additionally, the court ordered that she submit a DNA sample to be stored in a DNA data bank and pay a mandatory cost of $250.00

¶ 5 Derk filed a post-sentence motion challenging the mandate that she submit a DNA sample and pay the assessment fee as violations of the ex post facto clauses of the United States and Pennsylvania Constitutions. The motion was denied and a timely appeal was filed. Derk was ordered to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), with which she complied. In her appeal, she alleges that the trial court abused its discretion in requiring her to supply a DNA sample and to pay the associated $250 assessment.

¶ 6 Initially, Derk argues that the trial court erred in requiring her to submit a DNA sample because her retail theft conviction is not a predicate offense as contemplated by the DNA Act. Derk contends that the legislature only sought to receive DNA samples from those person convicted of sex offenses or violent offenses. We disagree.

¶ 7 The general rule states that those who are convicted of a felony sex offense or "other specified offense" shall have a DNA sample drawn. 44 Pa.C.S.A. § 2316(a). An "other specified offense" is "a felony offense or an offense under 18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle) or 3126 (relating to indecent assault) or an attempt to commit such an offense." 44 Pa.C.S.A. § 2303 (emphasis added). Contrary to Derk's assertions, we find that the General Assembly made its intentions known that the Act encompasses all convicted felons, no matter what the crime, by including simple and straightforward language to that effect. Since Derk's retail theft conviction was graded as a felony of the third degree, it is a qualifying offense, and she is subject to the mandates of the Act and must submit a DNA sample. Thus, this argument fails.

¶ 8 Derk next contends that she committed her crime before the amended version of the statute came into effect and subjecting her to its strictures constitutes an ex post facto violation.² The application of an ex post facto law is in contradiction of Article 1, § 10 of the United States Constitution and Article 1, § 17 of the Pennsylvania Constitution. "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.'" Wall, supra, citing Commonwealth v. Fleming, 801 A.2d 1234, 1236 (Pa.Super.2002). There is no ex post facto violation if the legislation is not penal in nature, but is merely procedural. Commonwealth v. Kline, 695 A.2d 872 (Pa.Super.1997), alloc. denied, 552 Pa. 694, 716 A.2d 1248 (1998).

¶ 9 In determining whether a legislative enactment is unconstitutionally punitive, a two part test is utilized. First, it must be determined whether the legislative intent was to punish. If not, then the purpose and effect of the statute will be evaluated to assess whether it "nevertheless provide[s] for sanctions so punitive as to transform what was clearly intended as a civil remedy into a criminal penalty." Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962, 971-972 (2003), citing United States v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). This latter prong encompasses an analysis of a non-exhaustive list of considerations including: "(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on finding of scienter; (4) whether its operation will promote traditional aims of punishment; (5) whether behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected...