J-S92004-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRUCE TODD GRUVER,

Appellant No. 1876 WDA 2015

Appeal from the Judgment of Sentence November 5, 2015

In the Court of Common Pleas of Butler County

Criminal Division at No(s): CP-10-CR-0000072-2015

BEFORE: SHOGAN, MOULTON, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 9, 2017

Appellant, Bruce Todd Gruver, appeals from the judgment of sentence 

entered following his conviction of driving under the influence (“DUI”), 

general impairment; DUI, highest rate of alcohol; and careless driving. We 

affirm.

The trial court summarized the facts of this case as follows:

On August 27, 2014, [Appellant] was arrested for a 

violation of 75 Pa.C.S.A. § 3802(c) at case numbered CP-10-CR0001838-2014. On June 22, 2015, [Appellant] entered a guilty 

plea in that case and was sentenced on July 2, 2015. In the 

case at hand, [Appellant] was arrested on December 6, 2014 

and on September 21, 2015, following a stipulated non-jury trial, 

this [c]ourt found [Appellant] guilty of violating § 3802(a)(1), 

general impairment, an ungraded misdemeanor, § 3802(c), 

highest rate of alcohol, a misdemeanor of the first degree and 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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the summary offense of careless driving. In accordance with 75 

Pa.C.S.A. § 3803(b)(4) [pertaining to grading], this court found 

that the § 3802(c) conviction was a misdemeanor of the first 

degree because [Appellant] had a prior conviction of § 3802 

within ten (10) years before sentencing at case numbered CP10-CR-0001838-2014.[1]

 

Trial Court Opinion, 3/29/16, at 1. Appellant was sentenced as follows: on 

the DUI, general impairment, no penalty; on the DUI, highest rate of 

alcohol, second offense, sixty months of intermediate punishment, with the 

first thirty days to be served in restrictive punishment at the Butler County 

Prison followed by 335 days on house arrest with electronic monitoring, the 

costs of prosecution, and a $1,500 fine; and on careless driving, costs of 

prosecution and a $25 fine. Sentencing Order, 11/5/15, at 1-3. 

Appellant timely appealed. The trial court and Appellant complied with 

Pa.R.A.P. 1925. 

Appellant presents the following issue for our review:

I. Whether the trial court erred by sentencing [Appellant] 

pursuant to 75 Pa. C.S.A. §3806(b), since [Appellant’s] offense 

was committed on December 6, 2014, prior to the effective date 

of this statute on December 26, 2014?

Appellant’s Brief at 8 (full capitalization omitted).

Appellant challenges the trial court’s application of 75 Pa.C.S. § 3806, 

as effective December 26, 2014 to May 24, 2016. Appellant’s Brief at 14. 

Instead, Appellant asserts, the trial court should have applied the version of 

____________________________________________

1

 The term “prior offense” is defined at 75 Pa.C.S. § 3806. 
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said statute that was effective as of the December 6, 2014 offense 

(“offense-at-issue”). Id. Appellant further argues that:

The previous version, which was effective on the date of the 

offense at issue, was nearly identical to the new version with the 

exception that the . . . text “whether or not judgment of 

sentence has been imposed for the violation” is omitted. The 

prior version did not include a pending or subsequently resolved 

D.U.I. charge as a “prior offense” unless it had resulted in a 

conviction prior to the offense date for the D.U.I. charge at 

issue. The new version of the statute defines a “prior offense” to 

include the pending or subsequently resolved D.U.I. charge as a 

“prior offense” regardless of whether sentence had been 

imposed prior to the offense date of the D.U.I. charge at issue. 

Therefore, Application of the statute in effect as of the date of 

Appellant’s offense results in said offense being treated as a first 

offense, whereas application of the statute post-dating the 

offense results in Appellant’s offense being treated as a second 

or subsequent offense.

Id. at 14-15. Appellant contends that the trial court’s application of the 

statute that became effective after the date of the underlying offense 

constituted a violation of the constitutional provision prohibiting ex post 

facto laws as applied to Appellant. Id. at 16. 

We observe that a challenge to the application of a statute by a trial 

court presents a question of law. Commonwealth v. Perez, 97 A.3d 747, 

750 (Pa. Super. 2014). Where an issue presents a question of law, the 

appellate court’s standard of review is de novo. Commonwealth v. 

Descardes, 136 A.3d 493, 496-497 (Pa. 2016). In addition, our scope of 

review in this matter is plenary. Id.

This Court recently set forth the principles related to ex post facto laws 

as follows:
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Both the United States Constitution and the Pennsylvania 

Constitution prohibit the enactment of ex post facto laws. U.S. 

Const. art. I, § 10; Pa. Const. art. I, § 17. Our Supreme Court 

has interpreted these constitutional ex post facto clauses to be 

effectively identical. Commonwealth v. Woodruff, 135 A.3d 

1045, 1048 (Pa. Super. 2016) (citing Commonwealth v. 

Young, 637 A.2d 1313 (Pa. 1993)). The purpose of this 

proscription is “to preserve for persons the right to fair warning 

that their conduct will give rise to criminal penalties.” 

Commonwealth v. Grady, 486 A.2d 962, 964 (Pa. Super. 

1984). We have explained that “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.’” 

Commonwealth v. Fleming, 801 A.2d 1234, 1237 (Pa. Super. 

2002) (citation omitted; emphasis added). As our Supreme 

Court observed in Commonwealth v. Rose, 127 A.3d 794 (Pa. 

2015), “Almost from the outset, we have recognized that central 

to the ex post facto prohibition is a concern for ‘the lack of fair 

notice and governmental restraint when the legislature increases 

punishment beyond what was prescribed when the crime was 

consummated.’” Id. at 798-799 (quoting Miller v. Florida, 482 

U.S. 423, 430 (1987)).

Moreover, “a statute is not made retroactive merely 

because it draws upon antecedent facts for its operation.” 

Alexander v. Com., Dept. of Transp., 880 A.2d 552, 558 (Pa. 

2005) (citation omitted). “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.” Id. at 559 (citation omitted).

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;
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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.

Grady, 486 A.2d at 964 (citations omitted). 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.’” Rose, 127 A.3d at 799 (quoting Weaver v. Graham, 450 

U.S. 24, 29 (1981)). As the United States Supreme Court 

explained, “A statute does not operate ‘retrospectively’ merely 

because it is applied in a case arising from conduct antedating 

the statute’s enactment, or upsets expectations based in prior 

law.” Landgraf v. USI Film Products, 511 U.S. 244, 269 

(1994) (citations omitted). Instead, “the court must ask 

whether the new provision attaches new legal consequences to 

events completed before its enactment.” Id. at 269-270.

Commonwealth v. Kizak, 143 A.3d 854, 856-857 (Pa. Super. 2016). 

The relevant statute is 75 Pa.C.S. § 3806, which addresses the 

calculation of prior DUI offenses to determine whether a defendant is a 

repeat offender for sentencing purposes. The statute originally was signed 

into law on September 30, 2003, and took effect on February 1, 2004. A 

subsequent amendment was enacted on October 27, 2014, and became 

effective December 26, 2014. P.L. 2905, No. 189 (Act 2014-189). The 
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following is the pertinent language of the statute, with the new language 

shown in italics and the deleted language shown with a “strikethrough” line:

(b) Repeat offenses within ten years. - The calculation of 

prior offenses for purposes of sections 1553(d.2)(relating to 

occupational limited license), 3803 (relating to grading) and 

3804 (relating to penalties) shall include any conviction, whether 

or not judgment of sentence has been imposed for the violation,

adjudication of delinquency, juvenile consent decree, acceptance 

of Accelerated Rehabilitative Disposition or other form of 

preliminary disposition within the ten years before the present 

violation occurred sentencing on the present violation for any of 

the following:

(1) an offense under section 3802;

(2) an offense under former section 3731;

(3) an offense substantially similar to an offense under 

paragraph (1) or (2) in another jurisdiction; or

(4) any combination of the offenses set forth in paragraph (1), 

(2) or (3).

75 Pa.C.S. § 3806(b). 

Thus, under the 2014 amendment, the triggering event of the ten-year 

“look back” period for determining prior offenses became the date of 

sentencing and was no longer the date that the offense occurred. 

Additionally, the calculation of prior offenses was deemed to include any 

previous conviction, whether or not judgment of sentence had been imposed 

for the violation, within the ten-year “look-back” period. Also, Section 2 of 

Act 2014-189 provides that the amendment of section 3806(b) “shall apply

to persons sentenced on or after [December 26, 2014,] the effective date 

of this section.” Act 2014-189 (emphasis added). 
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We addressed this issue in a strikingly similar scenario in Kizak, 148 

A.3d 854. In Kizak, the appellant was charged on January 23, 2015, with 

count 1: DUI, general impairment, pursuant to 75 Pa.C.S. § 3802(A)(1) and 

Count 2: DUI, highest rate of alcohol pursuant to 75 Pa.C.S. § 3802(B) for 

conduct that occurred on December 10, 2014. Id. at 855. The appellant 

entered a guilty plea on May 20, 2015, and was sentenced on July 14, 2015. 

Id. Kizak was sentenced as a second-time offender because she was also 

charged with a prior DUI for conduct that occurred on September 24, 2014, 

for which she was accepted into the Accelerated Rehabilitation Disposition 

(ARD) program. Id. The appellant argued that the trial court erred when it 

determined that her DUI was a second offense by applying the new DUI 

statute effective December 26, 2014, ex post facto to an offense that 

occurred on December 10, 2014. Id. at 856. This Court, however, 

concluded that there was no ex post facto violation. Id. at 859-860. The 

2014 amendment was enacted on October 27, 2014, and the apellant’s 

offense occurred six weeks after that enactment, on December 10, 2014. 

Id. at 860. Thus, when the offense occurred, the law had already been 

enacted. Id. 

Here, Appellant’s offense-at-issue occurred on December 6, 2014. 

Thus, the 2014 amendment was not applied ex post facto to events 

occurring before its enactment on October 27, 2014. Kizak, 148 A.3d at 

857 (“A state law violates the ex post facto clause if it was adopted after 
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the complaining party committed the criminal acts and ‘inflicts a greater 

punishment than the law annexed to the crime, when committed.’”) 

(emphasis added). Moreover, Appellant had fair notice of the change in the 

statute as his offense occurred more than six weeks after the amendment to 

the statute was signed into law. 

We also note that Appellant was not charged on the December 6, 2014 

offense until January 15, 2015, which was after the effective date of the 

statute. Additionally, Appellant was sentenced on November 5, 2015, well 

after the effective date of the amendment, in compliance with the statute. 

Kizak, 148 A.3d at 860 (“The amendment of 75 Pa.C.S. § 3806(b) shall 

apply to persons sentenced on or after [December 26, 2014].”). 

Accordingly, we are satisfied that there was no ex post facto violation in the 

instant matter. As such, we conclude that Appellant’s contrary claim lacks 

merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/9/2017