No. 339 Harrisburg, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, No. 758 C.D. 1983.
Joshua D. Lock, Harrisburg, for appellant.
Katherine E. Holtzinger, Michael L. Rozman, Deputy District Attorneys, Harrisburg, for Com., appellee.
Wickersham, Wieand and Hester, JJ.
[ 337 Pa. Super. Page 176]
The question presented by this appeal is whether the legislature's addition of a recidivist section to the "drunk driving law," 75 Pa.C.S. § 3731(e)(1)(ii),*fn1 is unconstitutional as a violation of the proscriptions against ex post facto laws found in Art. 1, § 10 of the United States Constitution and Art. 1, § 17 of the Pennsylvania Constitution. We hold that the amendment is constitutional.
The facts are simply stated. In November, 1976, Donald Grady entered a guilty plea to driving while under the influence of alcohol in violation of Section 1037 of the Motor Vehicle Code of 1959, 75 P.S. § 1037. In 1983, Grady was again convicted of driving while under the influence of alcohol. This time, however, his offense was a violation of 75 Pa.C.S. § 3731. This section, in subparagraph (e)(1)(ii), required a mandatory minimum term of imprisonment of not less than thirty days for a defendant who had been convicted of the same or a similar offense within the previous seven years.*fn2 Grady was accordingly sentenced to
[ 337 Pa. Super. Page 177]
a minimum term of thirty days imprisonment in addition to a fine. On appeal, he argues as he did at trial, that 75 Pa.C.S. § 3731(e)(1)(ii) is constitutionally infirm as an ex post facto law.
At the outset, we observe that the statutory provision is beneficiary of a strong presumption of constitutionality. Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340 (1983); Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981). One who challenges the constitutionality of a statute bears a heavy burden. Commonwealth v. Mikulan, supra 504 Pa. at 247, 470 A.2d at 1340. The courts may refuse to enforce a statute only if it clearly, palpably, and plainly violates the Constitution. Id.; Snider v. Thornburgh, supra 496 Pa. at 166, 436 A.2d at 596. A review of the purposes to be achieved by constitutional provisions proscribing ex post facto laws compels the conclusion that § 3731(e)(1)(ii) is not a prohibited law.
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." Commonwealth v. Hoetzel, 284 Pa. Super. 623, 630, 426 A.2d 669, 672 (1981). 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;
2. The law aggravates a crime [--] one which makes it greater than it ...