Com. v. Wall

• Decision Date: 20 January 2005
• Citation: 867 A.2d 578
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Christopher A. WALL, Appellant.
• Court: Pennsylvania Superior Court

867 A.2d 578

COMMONWEALTH of Pennsylvania, Appellee, v. Christopher A. WALL, Appellant.

Superior Court of Pennsylvania.

Submitted September 7, 2004.

Filed January 20, 2005.

Michael R. Hadley, Oil City, for appellant.

James P. Carbone, Asst. Dist. Atty., Franklin, for Com., appellee.

BEFORE: JOYCE, TAMILIA and POPOVICH, JJ.

OPINION BY POPOVICH, J.:

¶ 1 Christopher A. Wall appeals from the February 6, 2004 judgment of sentence entered in the Court of Common Pleas, Venango County, following his conviction for driving under the influence of alcohol. Upon review, we reverse the imposition of the additional assessment pursuant to 18 Pa.C.S.A. § 7508.1(c).

¶ 2 On July 12, 2002, Wall was arrested for driving under the influence of alcohol pursuant to 75 Pa.C.S.A. § 3731(a)(4) (amount of alcohol by weight in the blood is 0.10% or greater). His blood alcohol content (BAC) level was 0.24%. On November 5, 2003, Wall entered his guilty plea. On February 6, 2004, the trial court sentenced Wall to three to twenty-four months imprisonment, to pay a fine of $700.00, to pay costs, and to pay the $200.00 additional assessment pursuant to 18 Pa.C.S.A. § 7508.1(c). This was Wall's second driving under the influence of alcohol offense.

¶ 3 On February 9, 2004, Wall filed post-sentence motions challenging the imposition of the additional assessment pursuant to § 7508.1(c). The trial court denied the motions, and Wall timely appealed. Wall filed a court-ordered Pa.R.A.P. 1925(b) statement, and the trial court indicated that it would rely on its February 23, 2004 opinion.

¶ 4 On appeal, Wall questions whether the trial court may impose the $200.00 additional assessment pursuant to 18 Pa.C.S.A. § 7508.1(c) because the statute went into effect after he committed the DUI-alcohol offense. Wall argues that such an imposition violates the prohibition against ex post facto laws contained in the United States Constitution and the Pennsylvania Constitution.

¶ 5 "A trial court's application of a statute is a question of law, and our standard of review is plenary." Commonwealth v. Fleming, 801 A.2d 1234, 1236 (Pa.Super.2002) (citation omitted). "Moreover, our review is limited to determining whether the trial court committed an error of law." Id., 801 A.2d at 1236 (citation omitted).

¶ 6 Pennsylvania enacted § 7508.1(c) on December 9, 2002, and the statute took effect sixty days later, specifically, on February 7, 2003. Section 7508.1 established the Substance Abuse Education and Demand Reduction Fund as an account in the State Treasury. See 18 Pa.C.S.A. § 7508.1(a). Subsection (c) provides an additional assessment of $200.00 to all persons convicted for violation of 75 Pa.C.S.A. § 3731 (now § 3802) where the amount of alcohol by weight in the blood is 0.15% (now 0.16%)¹ or greater. See 18 Pa.C.S.A. § 7508.1(c). Subsection (d) provides that the money shall be divided equally between county substance abuse programs and the state's Substance Abuse Education and Demand Reduction Fund. The Legislature did not declare that § 7508.1 should apply retroactively.

¶ 7 In the present case, the incident from which the offense stems occurred on July 12, 2002. The additional assessment was adopted on December 9, 2002, and went into effect on February 7, 2003. Wall pleaded guilty on November 5, 2003, after the effective date of § 7508.1(c). The trial court sentenced Wall on February 6, 2004, and imposed the additional assessment. The trial court imposed the additional assessment pursuant to § 7508.1(c) because Wall's BAC level was greater than 0.15%. See Trial court opinion, 2/23/04, at 1. Wall argues such action violated the prohibition against ex post facto laws in the United States and Pennsylvania constitutions.

¶ 8 The United States Constitution and the Pennsylvania Constitution prohibit the passing of ex post facto laws. See U.S. Const, Art. 1, § 10; Pa. Const., Art. 1, § 17. "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.'" Fleming, 801 A.2d at 1237 (citation omitted).

¶ 9 The record clearly indicated that Wall's arrest for driving under the influence of alcohol occurred before the enactment of additional assessment pursuant to § 7508.1(c). Therefore, the only issue is whether the imposition of the additional assessment inflicted upon Wall a greater punishment than the DUI-alcohol law in effect when he committed the offense. The trial court found that the additional assessment was remedial in nature and did not constitute punishment; accordingly, the trial court found that imposing the additional assessment did not violate the ex post facto laws. We disagree with the trial court's finding and conclude that the imposition of the additional assessment pursuant to § 7508.1(c) constituted punishment. In reaching this conclusion, we employ the Artway/Verniero test as set forth in Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999).²

¶ 10 Under the Artway/Verniero test, a statutory provision will be considered punishment where any of the following three criterion are found: "(1) the legislature's actual purpose is punishment, (2) the objective purpose is punishment, or (3) the effect of the statute is so harsh that `as a matter of degree' it constitutes punishment." Gaffney, 557 Pa. at 331, 733 A.2d at 618 (citation omitted).

¶ 11 The Artway/Verniero test requires us first to look at whether the adverse effect on individuals results from a desire on the part of the legislature to punish past conduct or is a by-product of a bona fide legislative effort to remedy a perceived societal problem. If the Legislature intended the additional assessment to be "punishment," i.e., retribution was one of its actual purposes, then it must fail constitutional scrutiny. If, on the other hand, the additional assessment results from a relevant incident to a regulation, the measure will pass this first prong. Cf. De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960)

.

¶ 12 The Legislature imposed the additional assessment in order to fund county substance abuse programs and the newly created Substance Abuse Education and Demand Reduction Fund. Fifty percent of the funds collected remains in the county that the violation occurred to be used for substance abuse treatment or prevention programs. See 18 Pa.C.S.A. § 7508.1(d). The remaining fifty percent collected is deposited into the Substance Abuse Education and Demand Reduction Fund. See 18 Pa.C.S.A. § 7508.1(d). We can conclude that the Legislative purpose of the additional assessment was not punishment.

¶ 13 Under the Artway/Verniero test, we must next consider whether the objective purpose of the additional assessment is punitive. The Gaffney Court set forth the following factors when considering this prong of the test:

The "objective" prong of this test focuses on "whether analogous measures have traditionally been regarded in our society as punishment," and has three subparts: (A) "proportionality — whether the remedial purpose of [the measure] ... can explain all the adverse effects on those involved," (B) whether the measure has been historically considered punishment, and (C) whether the measure serves both a remedial and a deterrent purpose. If question (C) is answered in the affirmative, then a measure will be considered punitive if: (a) the "deterrent purpose is an unnecessary complement to the measure's salutary operation," (b) "the measure is operating in an unusual manner inconsistent with its historically mixed purposes," or (c) "the deterrent purpose overwhelms the salutary purpose."

Gaffney, at 334, 733 A.2d at 619-20 (quoting Commonwealth v. Gaffney, 702 A.2d 565, 567 (Pa.Super.1997)).

¶ 14 Historically, courts have reviewed analogous monetary measures imposed at sentencing, i.e., costs, fines, or restitution, under a direct or collateral consequence analysis to determine if the measure constitutes punishment.

¶ 15 A collateral consequence has been defined as "one that is not related to the length or nature of the sentence imposed on the basis of the plea." United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir.1988). A sampling of collateral consequences for pleading guilty includes: sexual offender registration requirement, 42 Pa.C.S.A. §§ 9791-9799.7; loss of the right to vote, U.S. Const. Amend. XIV, § 2; loss of right to enlist in the armed services, 10 U.S.C.A. § 504; loss of right to own a firearm, 18 Pa.C.S.A. § 6105, or fishing license, 30 Pa.C.S.A. § 928; loss of right to inherit property, 20 Pa.C.S.A. §§ 8802-11, and loss of right to practice a particular profession, e.g., 63 Pa.C.S.A. § 479.11(a)(funeral director) and 63 Pa.C.S.A. § 34.19(a)(8)(architect). See Commonwealth v. Frometa, 520 Pa. 552, 556 n. 1, 555 A.2d 92, 93 n. 1 (1989)

(finding deportation is a collateral consequence of pleading guilty). Additionally, driver's license suspensions are collateral civil consequences rather than criminal penalties. Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994).

¶ 16 In contrast, a direct consequence "is one that has a `definite, immediate, and largely automatic' effect on the range of the defendant's punishment." Parry v. Rosemeyer, 64 F.3d 110, 114 (3d Cir.1995), superseded by statute as stated in Dickerson v. Vaughn, 90 F.3d 87 (3d Cir.1996)

. Indeed, the United States Court of Appeals for the Third Circuit has held that "the only consequences considered direct are the maximum prison term and fine for the offense charged." Parry, 64 F.3d at 114 (quoting United States v. Salmon, 944 F.2d 1106, 1130 (3d Cir.1991)).

¶ 17 Often following a criminal conviction, the trial court places a monetary imposition on the defendant. The imposition of costs and restitution are not considered punishment. Both costs and restitution are designed to have the defendant make the government and the...