The Allegheny County district attorney's office will ask the state Supreme Court to determine what sentencing law should be followed for a defendant whose victim was injured in 1993 and died in 2007.
The decision will mean the difference between a sentence of 20 to 40 years in prison and 10 to 20 years for Stevenson Rose, convicted of third-degree murder in the death of Mary Mitchell.
Experts think the Pennsylvania Supreme Court will take the case, even though it accepts only about 5 percent of all the petitions for appeal it receives each year.
"I absolutely expect the Supreme Court will take it," said Bruce Antkowiak, a law professor at Saint Vincent College and a former prosecutor. "There's essentially no controlling Pennsylvania precedent on this issue at all."
The question at issue in the appeal is whether Rose should be sentenced under the law at the time he attacked Mitchell -- in 1993, which would call for a maximum penalty of 10 to 20 years in prison, or at the time she died, in 2007, which would call for a maximum sentence of 20 to 40 years.
Mitchell was attacked in Larimer Park on July 13, 1993. She was beaten and stomped and penetrated by a 16-inch piece of metal that caused massive internal injuries. Mitchell remained in a vegetative state until her death Sept. 17, 2007.
Rose was arrested the same day as the attack and was convicted of aggravated assault, recklessly endangering another person and involuntary deviate sexual intercourse. He was sentenced in 1994 to 15 to 30 years in prison.
But after Mitchell died in 2007, Rose and his co-defendant, Shawn Sadik, who were both still in prison from the earlier conviction, were charged with criminal homicide. Sadik was found guilty of first-degree murder, but the jury in Rose's case believed testimony at trial that he was so drunk at the time of the crime that he could not form the requisite intent to kill necessary to find him guilty of first-degree.
Rose, 49, is being held at the State Correctional Institution at Albion and has been in the state Department of Corrections system since March 23, 1994. If he is resentenced to 10 to 20 years, he would already be at his maximum release date on the homicide count.
Defense attorney William Kaczynski argued during two sessions before the state Superior Court -- one before a three-judge panel, and another before an en banc panel of nine -- that Rose must be sentenced under the penalties available at the time of the attack.
"[Rose] argues that the ex post facto provisions of both the Pennsylvania and federal constitutions apply to acts and conduct. Since [Rose's] acts and conduct were completed in 1993, he maintains that he could not be punished more harshly for those acts based on a statute that the legislature passed after the fact," the Superior Court summarized in its recent opinion.
According to Rose, "[r]etroactively making the consequences of a given act more severe by increasing the punishment is a clear ex post facto violation. Simply put, [Rose] submits, for purposes of ex post facto analysis, that the murder was committed on the date he attacked the victim."
But Chief Trial Deputy District Attorney Dan Fitzsimmons disagrees.
He argued that Rose must be sentenced under the penalty at the time Mitchell died, since the actual act of murder was not completed until her death occurred.
"Since the crime was not complete until after the passage of the sentencing statute at issue, it maintains that [Rose's] claims must fail. The Commonwealth highlights that [Rose] could not have been charged with homicide until more than a decade after the penalty for third-degree murder was increased," the Superior Court summarized.
While the en banc panel agreed with that assessment, Judge Mary Jane Bowes wrote for the six-person majority: "Although 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 before the passage of the third-degree murder sentencing statute at issue. Since the criminal acts that caused the victim's death were completed prior to the passage of [the new law] and that statute increased the penalty for the acts causing the victim's death, we find that [Rose] was improperly sentenced in violation of the respective federal and Pennsylvania ex post facto clauses."
But Mr. Antkowiak thinks -- like the prosecution -- the issue to be sent to the Supreme Court does not revolve so much around a traditional ex post facto violation, but on whether that claim can be made when the crime being prosecuted had not been completed.
In Pennsylvania, the crimes code requires, as an element of murder, the death of the victim. If the crime of murder in this case was not completed until Mitchell died, the commonwealth will argue that Rose must be sentenced under the statute in place at that time -- 2007. And therefore, Mr. Antkowiak continued, no ex post facto violation occurred.
If there is no question that Mitchell's death was caused by the actions of Rose and Sadik, then that should strengthen the prosecution's case, he continued.
"The commonwealth is clearly correct that at no point prior to the death of the victim could they prosecute these people for murder," Mr. Antkowiak said. "It further supports their view that the crime is committed at the time all relevant elements are met, and it is not consummated until that moment."
Either way, he continued, it's a case the Supreme Court should take on, because it will likely reoccur in the future -- though likely not with such vicious underlying circumstances.
"It's an absolutely horrific crime, and it's remarkable the victim survived at all," Mr. Antkowiak said. "If it was being decided on the basis of moral merit, there wouldn't be any question at all."
Paula Reed Ward: email@example.com, 412-263-2620 or on Twitter @PaulaReedWard.