J-E03005-18

2019 PA Super 118

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

JASON ALLEN LIPPINCOTT

Appellant No. 2057 EDA 2014

Appeal from the Order June 17, 2014

In the Court of Common Pleas of Northampton County

Criminal Division at Nos: CP-48-CR-0003839-2012, 

CP-48-CR-0003840-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., 

LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.

CONCURRING OPINION BY STABILE, J.: FILED APRIL 15, 2019

I join the Majority’s well-reasoned opinion, but write separately to 

express my opinion that Commonwealth v. Kizak, 148 A.3d 854 (Pa. Super. 

2016), should be overruled in its entirety. Today, in conformity with the Ex 

Post Facto Clause,1 we hold that a law is unconstitutional as applied because 

it imposes increased punishment to an offense that pre-dated its effective 

date. This Court in Kizak affirmed a conviction where the defendant received 

a greater penalty under a statute whose effective date post-dated the 

defendant’s offense. The Majority tries to salvage Kizak as being 

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1

 U.S. CONST. art. I, § 9, cl. 3, art. I, § 10, cl. 1. 

 
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distinguishable from this case upon the basis that this Court in Kizak was 

simply attempting to honor the legislature’s intent. 

I would overrule Kizak in its entirety, because it is clear after today’s 

holding that no part of the Kizak opinion remains good law.2 The Majority, 

however, distinguishes Kizak because Kizak addressed a statute that 

expressly applied only to offenders sentenced after its effective date. Thus, 

according to the Majority, the Kizak decision honored the legislature’s intent. 

To the extent the Majority’s distinction of Kizak implies that Kizak remains 

good law, I disagree. The statute at issue in Kizak, in providing for increased 

punishment to offenses that pre-dated it, directly violated the Ex Post Facto

Clause as it was applied in that case. No statement of legislative intent could 

repair that constitutional infirmity.

3

 

Furthermore, precedent from the United States Supreme Court strongly 

supports my position. In addition to Weaver v. Graham, 450 U.S. 24 (1981), 

analyzed in depth in the Majority Opinion, the Supreme Court in Peugh v. 

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2

 Likewise, this Court’s opinion in Commonwealth v. McGarry, 172 A.3d 60 

(Pa. Super. 2017), appeal denied, 185 A.3d 966 (Pa. 2018), is no longer 

good law to the extent that it relied on Kizak. 

3

 By way of example, our Supreme Court held that SORNA’s registration 

provisions were punitive, despite the General Assembly’s stated intent of 

promoting public safety “through a civil, regulatory scheme.” 

Commonwealth v. Muniz, 164 A.3d 1189, 1209-10 (Pa. 2017), cert. 

denied, 138 S. Ct. 925 (2018). The General Assembly’s stated intent did not 

prevent our Supreme Court from holding that SORNA’s registration 

requirements constituted criminal punishment. 
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U.S., 599 U.S. 530 (2013), held that a change in the federal sentencing 

guidelines violated the Ex Post Facto Clause where the sentence range would 

have been 30 to 37 months when the defendant committed the offense, but 

was 70 to 87 months at the time of sentencing. Id. at 534. Thus, application 

of the guidelines in effect at the defendant’s sentencing created a 

significant risk of a higher sentence than the law in place at the time of the 

offense. Id. at 550. 

Similarly, in Miller v. Florida, 482 U.S. 423 (1987), abrogated as 

stated in Peugh, 599 U.S. at 541 n.4, Florida’s sentencing guidelines 

specified a presumptive sentence of 31⁄2 to 41⁄2 years of incarceration when the 

defendant committed his offense on April 25, 1984. Id. at 424, 427. On May 

8, 1984, the Florida Supreme Court proposed new guidelines, and the Florida 

legislature adopted those recommendations, to be effective on July 1, 1984. 

Id. at 427. The new guidelines provided a presumptive sentence of 51⁄2 to 7 

years of incarceration for the same offense. Id. at 424. The defendant was 

convicted in August of 1984 and sentenced on October 2, 1984, under the 

guidelines that had taken effect on July 1 of that year. Id. at 427. The Florida 

Supreme Court held that “the trial court may sentence a defendant pursuant 

to the guidelines in effect at the time of sentencing.” Id. at 428 (emphasis 

added). The United States Supreme Court reversed that holding. Id. at 429. 

Quoting Weaver, the Miller Court noted that a law is retrospective, for 

purposes of the Ex Post Facto Clause, if it “changes the legal consequences of 
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acts completed before its effective date.” Id. at 430 (quoting Weaver, 

450 U.S. at 31) (emphasis added). 

As in Weaver, the Miller and Peugh Courts did not have occasion to 

address a law that had been enacted but had yet to take effect. Also like 

Weaver, the Miller Court appeared not to distinguish between the enactment 

of a law and its effective date: 

The law at issue in this case, like the law in Weaver, ‘makes 

more onerous the punishment for crimes committed before its 

enactment.’ Weaver, supra, 450 U.S., at 36, 101 S.Ct., at 968. 

Accordingly, we find that Florida's revised guidelines law, 1984 

Fla. Laws, ch. 84-328, is void as applied to petitioner, whose crime 

occurred before the law’s effective date.

Id. at 435–36 (emphasis added).4 

Nonetheless, I do not believe a law’s passage date provides fair warning 

of the applicable punishment under Weaver, Miller, and Peugh. See 

Peugh, 569 U.S. at 544 (noting that the Ex Post Facto Clause requires fair 

warning of the applicable punishment). To hold otherwise would replace fair 

warning with unfair speculation, because two people who commit identical 

offenses on the same day can receive different penalties if one is convicted 

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4

 In Peugh and Miller, the parties disputed whether amended guidelines 

constituted an increased in punishment. Instantly there is no question after 

Muniz that SORNA’s registration requirements constitute punishment, nor is 

there any question that SORNA’s registration requirements are more onerous 

that Megan’s Law III, its statutory predecessor. 
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and sentenced before the effective date5 but the other is not. In this scenario, 

I do not believe either offender has fair warning of the applicable punishment. 

Both are at the mercy of the speed of the justice system, and the same is true 

for all persons whose offense falls between a law’s passage and its effective 

date.6 Thus, the passage of a law does not provide fair warning that all future 

offenses will be subject to harsher punishment. The Majority’s holding 

eliminates any uncertainty, and any concern about fair notice, by limiting the 

applicability of a greater penalty to offenses committed on or after its effective 

date. 

Given the bright-line rule that the Majority correctly draws, Kizak is no 

longer good law. I would therefore expressly overrule Kizak in its entirety 

because it is abundantly clear that the outcome in Kizak could not happen 

after our holding today.7 

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5

 Obviously, no court has statutory authority to impose sentence under a law 

that has yet to take effect. This point further illustrates why the Majority’s 

distinction of Kizak is not meaningful. 

6

 The Majority, in raising this point, seems concerned about the potential for 

disparate treatment of similarly situated offenders. I believe that concern is 

valid, but it does not directly implicate the Ex Post Facto Clause. Another 

potential concern, not directly related to the Ex Post Facto Clause, is the 

potential for the prosecution to have an unfair advantage in pressing for an 

early guilty plea. 

7

 This result would not impact the continued validity of the statute at issue in 

Kizak, only its application in that case. 
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President Judge Emeritus Bender and Judge Bowes join this Concurring 

Opinion.