Com. v. Grady

CourtSuperior Court of Pennsylvania
Writing for the CourtWIEAND
Citation486 A.2d 962,337 Pa.Super. 174
PartiesCOMMONWEALTH of Pennsylvania v. Donald GRADY, Appellant.
Decision Date28 December 1984

Page 962

486 A.2d 962
337 Pa.Super. 174
COMMONWEALTH of Pennsylvania
v.
Donald GRADY, Appellant.
Superior Court of Pennsylvania.
Submitted Sept. 20, 1984.
Filed Dec. 28, 1984.

Page 963

[337 Pa.Super. 176] Joshua D. Lock, Harrisburg, for appellant.

Katherine E. Holtzinger, Michael L. Rozman, Deputy Dist. Attys., Harrisburg, for Com., appellee.

Before WICKERSHAM, WIEAND and HESTER, JJ.

WIEAND, Judge:

The question presented by this appeal is whether the legislature's addition of a recidivist section to the "drunk driving law," 75 Pa.C.S. § 3731(e)(1)(ii), 1 is unconstitutional as a violation of the proscriptions against ex post facto laws found in Art. 1, § 10 of the United States Constitution and Art. 1, § 17 of the Pennsylvania Constitution. We hold that the amendment is constitutional.

The facts are simply stated. In November, 1976, Donald Grady entered a guilty plea to driving while under the influence of alcohol in violation of Section 1037 of the Motor Vehicle Code of 1959, 75 P.S. § 1037. In 1983, Grady was again convicted of driving while under the influence of alcohol. This time, however, his offense was a violation of 75 Pa.C.S. § 3731. This section, in subparagraph (e)(1)(ii), required a mandatory minimum term of imprisonment of not less than thirty days for a defendant who had been convicted of the same or a similar

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offense within the previous seven years. 2 Grady was accordingly sentenced to [337 Pa.Super. 177] a minimum term of thirty days imprisonment in addition to a fine. On appeal, he argues as he did at trial, that 75 Pa.C.S. § 3731(e)(1)(ii) is constitutionally infirm as an ex post facto law.

At the outset, we observe that the statutory provision is beneficiary of a strong presumption of constitutionality. Commonwealth v. Mikulan, 504 Pa. 244, ---, 470 A.2d 1339, 1340 (1983); Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981). One who challenges the constitutionality of a statute bears a heavy burden. Commonwealth v. Mikulan, supra 504 Pa. at ---, 470 A.2d at 1340. The courts may refuse to enforce a statute only if it clearly, palpably, and plainly violates the Constitution. Id.; Snider v. Thornburgh, supra 496 Pa. at 166, 436 A.2d at 596. A review of the purposes to be achieved by constitutional provisions proscribing ex post facto laws compels the conclusion that § 3731(e)(1)(ii) is not a prohibited law.

The constitutional provision prohibiting ex post facto laws serves as a limitation on the legislature. It is a proscription which attempts "to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties." Commonwealth v. Hoetzel, 284 Pa.Super. 623, 630, 426 A.2d 669, 672 (1981). It has been said that a law will be found constitutionally infirm on grounds that it is an ex post facto law only where one of the following effects is present:

1. The law makes an act criminal which was not criminal when done;

2. The law aggravates a crime [--] one which makes it greater than it was when committed;

3. The law changes a punishment, and makes it greater than it was when a punishable act was committed;

4. The law alters the rules of evidence and requires less or different testimony than the law required at the time the offense was committed in order to be convicted.

[337 Pa.Super. 178] Commonwealth v. Hoetzel, supra at 630, 426 A.2d at 672, citing Commonwealth v. Riley, 253 Pa.Super. 260, 264, 384 A.2d 1333, 1335 (1978).

The enactment of 75 Pa.C.S. § 3731(e)(1) did not make criminal an act which had previously been lawful. Similarly, it did not alter the rules of evidence to require less or different testimony in order to convict. Can it be said, then, that the amendment to the Vehicle Code aggravated the crime which appellant had committed in 1976 or enlarged the punishment therefor? We think not. Appellant has already been sentenced for his 1976 offense; that sentence cannot be increased by virtue of the amendment to the Vehicle Code. The amendment did not authorize or even permit an additional or increased sentence for the 1976 offense. When appellant committed a second offense on March 5, 1983, the punishment for that second offense had already been prescribed by statute. Appellant then knew or should have known the punishment which the legislature had mandated for a second offense. The statutory

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amendment, which provided a heavier sentence for a second offense, was not constitutionally infirm merely because it required a sentencing court to consider a...

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13 practice notes
  • Com. v. Brown
    • United States
    • Pennsylvania Superior Court
    • 19 October 1999
    ...or different testimony than the law required at the time the offense was committed in order to be convicted. Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962, 964 (1984) (emphasis ¶ 12 Appellant specifically claims that section 9714, as applied to him, is an ex post facto law because ......
  • Commonwealth v. Rose
    • United States
    • Superior Court of Pennsylvania
    • 25 November 2013
    ...v. Brown, 741 A.2d 726 (Pa.Super.1999); Commonwealth v. Scott, 345 Pa.Super. 86, 497 A.2d 656 (1985); Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1984); see also Commonwealth v. McCoy, 895 A.2d 18 (Pa.Super.2006)United States v. Hardeman, 704 F.3d 1266, 1268 (9th Cir.2013) (“Sup......
  • Com. v. Fulton, No. 296 WDA 2006.
    • United States
    • Superior Court of Pennsylvania
    • 9 April 2007
    ...a recidivist sentencing statute against a second-time offender that had been amended after his first conviction. Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962, 965 (Pa.Super.1984). A new statute does not violate due process if a man of common intelligence can understand its meaning......
  • Com. v. Arriaga
    • United States
    • Superior Court of Pennsylvania
    • 7 January 1993
    ...is obvious in the notion that a recidivist should receive a stiffer sentence than a first-time offender. See Commonwealth v. Grady, 337 Pa.Super 174, 486 A.2d 962, 965 (1984) (purposes of recidivist statutes Appellant also alleges a Due Process defect in § 7508; however, in his brief, he ar......
  • Request a trial to view additional results
13 cases
  • Com. v. Brown
    • United States
    • Pennsylvania Superior Court
    • 19 October 1999
    ...or different testimony than the law required at the time the offense was committed in order to be convicted. Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962, 964 (1984) (emphasis ¶ 12 Appellant specifically claims that section 9714, as applied to him, is an ex post facto law because ......
  • Commonwealth v. Rose
    • United States
    • Superior Court of Pennsylvania
    • 25 November 2013
    ...v. Brown, 741 A.2d 726 (Pa.Super.1999); Commonwealth v. Scott, 345 Pa.Super. 86, 497 A.2d 656 (1985); Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1984); see also Commonwealth v. McCoy, 895 A.2d 18 (Pa.Super.2006)United States v. Hardeman, 704 F.3d 1266, 1268 (9th Cir.2013) (“Sup......
  • Com. v. Fulton, No. 296 WDA 2006.
    • United States
    • Superior Court of Pennsylvania
    • 9 April 2007
    ...a recidivist sentencing statute against a second-time offender that had been amended after his first conviction. Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962, 965 (Pa.Super.1984). A new statute does not violate due process if a man of common intelligence can understand its meaning......
  • Com. v. Arriaga
    • United States
    • Superior Court of Pennsylvania
    • 7 January 1993
    ...is obvious in the notion that a recidivist should receive a stiffer sentence than a first-time offender. See Commonwealth v. Grady, 337 Pa.Super 174, 486 A.2d 962, 965 (1984) (purposes of recidivist statutes Appellant also alleges a Due Process defect in § 7508; however, in his brief, he ar......
  • Request a trial to view additional results

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