The Superior Court has decided the case of Commonwealth v. Kizak, No. 1556 MDA 2015 (September 14, 2016), holding that because the enactment of the recidivist amendment to the DUI sentencing statute occurred before the conduct for which she was ultimately sentenced, Kizak was on notice of the amendment and it was not an ex post facto violation for the trial court to apply the newly-enacted provision to her sentence, even though the statute did not take effect until after the conduct for which she was sentenced.


Defendant Kizak was charged with the instant DUI offense on January 23, 2015. On May 20, 2015, Appellant entered her guilty plea. Thereafter, on July 14, 2015, the trial court, applying a newly-enacted amendment to the DUI sentencing statute, imposed Kizak’s judgment of sentence.

The amendment to the law in question was signed by the Governor of Pennsylvania on October 27, 2014. Over six weeks later, on December 10, 2014, Kizak committed the instant DUI offense. The amendment to the DUI sentencing statute took effect on December 26, 2014. Furthermore, the legislature specified in the statute that the amendment of the DUI sentencing statute “shall apply to persons sentenced on or after December 26, 2014, the effective date of this section.”


Was it an ex post facto punishment for the trial court to sentence Kizak as a repeat offender pursuant to the recently-enacted recidivist provision of the DUI sentencing statute?


Under the facts of Kizak’s case, the Superior Court concluded that there was no ex post facto violation


The Superior Court first outlined the analysis to be applied to ex post facto challenges, explaining that a state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and it inflicts a greater punishment than the law annexed to the crime, when committed. Furthermore, it noted that a statute is not made retroactive merely because it draws upon antecedent facts for its operation.

Retroactive laws have been defined as those which take away or impair vested rights acquired under existing laws, create new obligations, impose a new duty, or attach a new disability in respect to the transaction or consideration already past.

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. 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; or

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.

Furthermore, in order for a criminal or penal law to be deemed an ex post facto law, two critical elements must be met: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.

In essence, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.

Here, the new law was not applied to events occurring before its enactment, that being October 27, 2014, because the instant offense was committed on December 10, 2014. Moreover, Appellant had fair notice of the change in the statute as her offense occurred more than six weeks after the amendment to the statute was signed into law. Accordingly, the Superior Court was satisfied that there was no ex post facto violation in the instant matter.

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