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COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JASON ALLEN LIPPINCO TT 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

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CP

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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 wh ere 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

_________________ __________ ______ ____ _______ 1 U.S. C ONST . art. I, § 9, cl. 3, art. I, § 10, cl. 1.J

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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

e xpressly 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.

_________________ __________ ______ ____ _______ 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 e xample, 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.J

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U.S. , 599 U.S. 530 (2013), held t hat 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, ap plication 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 i

n 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 propo sed 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 defen dant 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 ofJ

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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 th e 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 differ ent penalties if one is convicted

_________________ __________ ______ ____ _______ 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 requirem ents are more onerous that Megan’s Law III, its statutory predecessor.J

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and sentenced before the effective date 5 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, a nd 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 elimi nates 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

_________________ __________ ______ ____ _______ 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 p otential 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.J

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President Judge Emeritus Bender and Judge Bowes join this Concurring O pinion.