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Commonwealth v. Wall1/20/2005
1 Christopher A. Wall appeals from the February 6, 2004 judgment of sentence entered in the Court of Common Pleas, Venango County, following his conviction for driving under the influence of alcohol. Upon review, we reverse the imposition of the additional assessment pursuant to 18 Pa.C.S.A. § 7508.1(c).
2 On July 12, 2002, Wall was arrested for driving under the influence of alcohol pursuant to 75 Pa.C.S.A. § 3731(a)(4) (amount of alcohol by weight in the blood is 0.10% or greater). His blood alcohol content (BAC) level was 0.24%. On November 5, 2003, Wall entered his guilty plea. On February 6, 2004, the trial court sentenced Wall to three to twenty-four months imprisonment, to pay a fine of $700.00, to pay costs, and to pay the $200.00 additional assessment pursuant to 18 Pa.C.S.A. § 7508.1(c). This was Wall's second driving under the influence of alcohol offense.
3 On February 9, 2004, Wall filed post-sentence motions challenging the imposition of the additional assessment pursuant to § 7508.1(c). The trial court denied the motions, and Wall timely appealed. Wall filed a court-ordered Pa.R.A.P. 1925(b) statement, and the trial court indicated that it would rely on its February 23, 2004 opinion.
4 On appeal, Wall questions whether the trial court may impose the $200.00 additional assessment pursuant to 18 Pa.C.S.A. § 7508.1(c) because the statute went into effect after he committed the DUI-alcohol offense. Wall argues that such an imposition violates the prohibition against ex post facto laws contained in the United States Constitution and the Pennsylvania Constitution.
5 "A trial court's application of a statute is a question of law, and our standard of review is plenary." Commonwealth v. Fleming, 801 A.2d 1234, 1236 (Pa. Super. 2002) (citation omitted). "Moreover, our review is limited to determining whether the trial court committed an error of law." Id., 801 A.2d at 1236 (citation omitted).
6 Pennsylvania enacted § 7508.1(c) on December 9, 2002, and the statute took effect sixty days later, specifically, on February 7, 2003. Section 7508.1 established the Substance Abuse Education and Demand Reduction Fund as an account in the State Treasury. See 18 Pa.C.S.A. § 7508.1(a). Subsection (c) provides an additional assessment of $200.00 to all persons convicted for violation of 75 Pa.C.S.A. § 3731 (now § 3802) where the amount of alcohol by weight in the blood is 0.15% (now 0.16%) or greater. See 18 Pa.C.S.A. § 7508.1(c). Subsection (d) provides that the money shall be divided equally between county substance abuse programs and the state's Substance Abuse Education and Demand Reduction Fund. The Legislature did not declare that § 7508.1 should apply retroactively.
7 In the present case, the incident from which the offense stems occurred on July 12, 2002. The additional assessment was adopted on December 9, 2002, and went into effect on February 7, 2003. Wall pleaded guilty on November 5, 2003, after the effective date of § 7508.1(c). The trial court sentenced Wall on February 6, 2004, and imposed the additional assessment. The trial court imposed the additional assessment pursuant to § 7508.1(c) because Wall's BAC level was greater than 0.15%. See Trial court opinion, 2/23/04, at 1. Wall argues such action violated the prohibition against ex post facto laws in the United States and Pennsylvania constitutions.
8 The United States Constitution and the Pennsylvania Constitution prohibit the passing of ex post facto laws. See U.S. Const, Art. 1, § 10; Pa. Const., Art. 1, § 17. "A state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and 'in
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