CRIMINAL ACT IN 1993 RESULTS IN VICTIM’S DEATH IN 2007 … WHAT SENTENCING LAW APPLIES?
In the recent decision of Commonwealth v. Rose, No. 26 WAP 2014 (November 18, 2015), the PA Supreme Court has held that where a crime requires both a criminal act and a subsequent result (e.g., a homicide), the imposition of a more severe sentence based on a statute that was amended after the act was committed, but prior to the result of that act, violates the ex post facto prohibition.
In March 1994, a jury convicted Rose of attempted murder, aggravated assault, involuntary deviate sexual intercourse, recklessly endangering another person, and criminal conspiracy, after attacking and leaving his victim in a vegetative state. On March 16, 1994, he was sentenced to 15 to 30 years incarceration.
On September 17, 2007, the victim succumbed to the injuries she sustained in the attack 14 years earlier, and, on October 9, 2007, the Commonwealth charged Rose with criminal homicide and he was subsequently convicted by a jury of third-degree murder.
At sentencing, Rose maintained that he could be sentenced only to a maximum term of incarceration of 10 to 20 years because, at the time he assaulted the victim in 1993, that was the maximum allowable sentence for third-degree murder. The Commonwealth argued, however, that because the victim’s death did not occur until 2007, Rose’s crime of homicide was not “complete” until that time, and, therefore, Rose was subject to the 20 to 40 year sentence for third-degree murder which had been amended in 1995 (two years after the attack).
The sentencing court agreed with the Commonwealth, and sentenced Rose to 20 to 40 years incarceration. Rose appealed and a panel of the Superior Court vacated his sentence and remanded for re-sentencing. The Commonwealth requested, and was granted, en banc review by a panel of the Superior Court.
The en banc panel reasoned that, “[a]lthough the crime of third degree murder was not consummated until the victim died, all of the criminal acts causing the victim’s death were completed” prior to the enactment of Section 1102(d), which increased the penalty for the acts that caused the victim’s death. Accordingly, Rose’s sentence of 20 to 40 years violated the Ex Post Facto Clauses of both the United States and Pennsylvania Constitutions.
The Commonwealth subsequently filed a petition for allowance of appeal with the PA Supreme Court, which was granted in order to consider whether the Superior Court erred in holding that sentencing Rose pursuant to statute as amended in 1995 would violate the prohibition against ex post facto laws.
The issue in this discretionary appeal is whether a defendant convicted of third-degree murder must be sentenced under the sentencing statute in effect at the time the defendant committed the ultimately deadly assault upon the victim, or whether the defendant is subject to an enhanced penalty pursuant to a subsequently-enacted sentencing statute which was in effect at the time of the victim’s death 14 years later.
The imposition of a sentence in excess of that prescribed by statute at the time the defendant committed the deadly assault violates and is prohibited by the Ex Post Facto Clause of the United States Constitution. The Superior Court opinion vacating Rose’s sentence of 20-40 years and remanding the matter for re-sentencing is affirmed.
The PA Supreme Court concluded that, for purposes of an ex post facto inquiry, the Commonwealth’s focus on the result of an individual’s criminal acts − in this case, the death of the victim − is misplaced. Rather, the Court held that where a crime requires both a criminal act and a subsequent result (e.g., a homicide), the imposition of a more severe sentence based on a statute that was amended after the act was committed, but prior to the result of that act, violates the ex post facto prohibition.
FURTHER EX POST FACTO ANALYSIS
What follows is a summary of the Court’s analysis.
The definition of an ex post facto law in the context of American law was first set forth more than two centuries ago in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), wherein Justice Chase offered a description of the term to include “every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Rose’s sentence implicates this description in that it arguably increases the punishment for his crime of third-degree murder at the time of the victim’s death from the punishment that was applicable at the time he committed the acts which led to the victim’s death.
The ex post facto prohibition forbids the Congress and the States to enact any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. The ban also restricts governmental power by restraining arbitrary and potentially vindictive legislation. In addition, the ex post facto prohibition upholds the separation of powers by confining the legislature to penal decisions with prospective effect and the judiciary and executive to applications of existing penal law.
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.”
After evaluating judicial decisions from other states due to a lack of precedent in this Commonwealth, the PA Supreme Court concluded that, for purposes of evaluating whether a defendant’s sentence violates the Ex Post Facto Clause, the date on which all of the elements of the statutory crime of third-degree murder are met, including the death of the victim, is not dispositive.
Rather, in determining whether imposition of a sentence under a statute that was amended after a defendant committed the deadly acts upon the victim, but prior to the victim’s death, violates the ex post facto prohibition, the Court considered the intent behind the Ex Post Facto Clause. In doing so, the Court concluded that the critical question is whether the law changes the legal consequences of acts completed before its effective date. Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.
The Ex Post Facto Clause was intended to prohibit the legislature from retroactively increasing the punishment not simply for completed crimes, but for an individual’s prior criminal acts.
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