J-A08039-21
2021 PA Super 148
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICOLE LEE :
:
Appellant : No. 1396 EDA 2020
Appeal from the Order Entered July 20, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002265-2019
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JULY 27, 2021
Appellant, Nicole Lee, appeals from the order entered in the Court of
Common Pleas of Monroe County which denied her “Motion to Determine
Legality of Sentence” filed with the court during a revocation of probation
hearing. Herein, Appellant contends that the application of the mandatory
minimum sentencing provision of 75 Pa.C.S.A. § 3806, designating a prior
adjudication of delinquency as a “prior offense” triggering the mandatory
sentencing enhancements of 75 Pa.C.S.A. § 3806 was both unconstitutional
and in conflict with governing decisional law. We affirm.
On January 22, 2020, Appellant entered a counseled guilty plea to one
count of DUI-Controlled Substance, Impaired Ability under 75 Pa.C.S. §
3802(d)(2). The Commonwealth had initially filed the charge as a first offense
and offered Appellant Accelerated Rehabilitated Disposition (“ARD”), but it
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* Former Justice specially assigned to the Superior Court.
J-A08039-21
amended the criminal information to charge her as an ARD-ineligible second
offender, upon discovering her 2011 adjudication of delinquency for DUI. See
75 Pa.C.S. § 3806(a) (prior offense for DUI sentencing includes adjudication
of delinquency).1
On June 16, 2020, the trial court sentenced Appellant to probation for a
period of 24 months, with a condition that she serve 90 days under house
arrest with electronic home monitoring. This 90-day mandatory minimum
penalty was imposed pursuant to 75 Pa.C.S. § 3804(c)(2)(i), which provides
that an individual who violates Section 3802(d) as a second DUI offense shall
undergo not less than 90 days imprisonment. The court also imposed a
mandatory $1,500 fine, additional fees and costs, and suspended her driving
privileges for 18 months.
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1 Section 3806 defines the term “prior offense” as follows:
§ 3806. Prior offenses
(a) General rule.—Except as set forth in subsection (b), the term
“prior offense” as used in this chapter shall mean any conviction
for which judgment of sentence has been imposed, adjudication
of delinquency, juvenile consent decree, acceptance of
Accelerated Rehabilitative Disposition or other form of preliminary
disposition before the sentencing on the present violation for any
of the following:
(1) an offense under section 3802 (relating to driving under
influence of alcohol or controlled substance)
75 Pa.C.S. § 3806(a)(1).
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Two days later, on June 18, 2020, Appellant tested positive for opiates
and fentanyl, at which time she also made a written admission that she used
heroin intravenously on June 15, 2020. She tested positive again on June 22,
2020, and she signed an admission that she had used heroin on June 18,
2020. Accordingly, the court scheduled a revocation of probation hearing for
July 20, 2020.
On July 16, 2020, four days prior to the scheduled revocation hearing,
Appellant filed a “Motion to Determine Legality of Sentence” assailing the
Commonwealth’s use of her adjudication of delinquency-DUI as a prior offense
for purposes of imposing a second-offender mandatory sentencing
enhancement. On July 20, 2020, at the conclusion of the revocation hearing,
the trial court denied Appellant’s motion, revoked her probation, and
resentenced her to a term of incarceration of not less than 90 days nor more
than 24 months less one day, to be served in the Monroe County Correctional
Facility.
On July 23, 2020, Appellant filed the present appeal in which she raises
one question for our review:
Whether, considering the holding in [Commonwealth v.]
Chichkin, [232 A.3d 959 (Pa. Super. 2020)], the Sentencing
Court erred in grading [Appellant’s] DUI offense as a 2 nd offense
based upon a prior adjudication of delinquency for DUI?
Appellant’s brief, at 4.
Following probation violation proceedings, this Court's scope
of review is limited to verifying the validity of the proceeding and
the legality of the sentence imposed. Commonwealth v.
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Heilman, 876 A.2d 1021 (Pa. Super. 2005). “The defendant or
the Commonwealth may appeal as of right the legality of the
sentence.” 42 Pa.C.S.A. § 9781(a). As long as the reviewing court
has jurisdiction, a challenge to the legality of the sentence is nonwaivable and the court can even raise and address it sua sponte.
Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa. Super.
2001). See also Commonwealth v. Robinson, 931 A.2d 15,
19–20 (Pa. Super. 2007). “Issues relating to the legality of a
sentence are questions of law....” Commonwealth v. Diamond,
945 A.2d 252, 256 (Pa. Super. 2008), appeal denied,
598 Pa. 755,
955 A.2d 356 (2008). As with all questions of law on appeal, our
“standard of review is de novo and our scope of review is plenary.”
Id.
“A claim that implicates the fundamental legal authority of the
court to impose a particular sentence constitutes a challenge to
the legality of the sentence.” Commonwealth v. Catt, 994 A.2d
1158, 1160 (Pa. Super. 2010) (en banc). “If no statutory
authorization exists for a particular sentence, that sentence is
illegal and subject to correction. An illegal sentence must be
vacated.” Id. (quoting Commonwealth v. Watson,
945 A.2d
174, 178–79 (Pa. Super. 2008)). Likewise, a sentence that
exceeds the statutory maximum is illegal. Commonwealth v.
Bradley, 575 Pa. 141,
834 A.2d 1127 (2003). If a court “imposes
a sentence outside of the legal parameters prescribed by the
applicable statute, the sentence is illegal and should be remanded
for correction.” Commonwealth v. Vasquez, 560 Pa. 381, 388,
744 A.2d 1280, 1284 (2000).
Commonwealth v. Infante,
63 A.3d 358, 363 (Pa. Super. 2013).
Initially, we note that Appellant’s sole issue on appeal challenging the
legality of her sentence focuses not on the propriety of the revocation
proceedings and revocation sentence, per se, but on the legality of her
underlying DUI—second offender sentence, which she claims was unlawfully
based on the court’s determination that her prior adjudication of delinquency
for DUI qualifies as a “prior offense” for purposes of DUI sentencing. When
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previously confronted with a procedurally irregular claim of sentence illegality,
this Court has opined as follows:
When, on appeal from a sentence imposed following
probation revocation, an appellant collaterally attacks the legality
of the underlying conviction or sentence,
such an approach is incorrect and inadequate for two
reasons. First any collateral attack of the underlying
conviction [or sentence] must be raised in a petition
pursuant to the Post–Conviction Relief Act. Second, such
an evaluation ignores the procedural posture of [the] case,
where the focus is on the probation revocation hearing and
the sentence imposed consequent to the probation
revocation, not the underlying conviction and sentence.
Commonwealth v. Beasley, 391 Pa. Super. 287,
570 A.2d
1336, 1338 (1990). The PCRA provides the sole means for
obtaining collateral review of a judgment of sentence.
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super.
2007), appeal denied, 596 Pa. 715,
944 A.2d 756 (2008); 42
Pa.C.S.A. § 9542. “[A] court may entertain a challenge to the
legality of the sentence so long as the court has jurisdiction to
hear the claim. In the PCRA context, jurisdiction is tied to the
filing of a timely PCRA petition.” Id. at 592 (quoting
Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super.2005)
(en banc), appeal denied, 591 Pa. 688,
917 A.2d 844 (2007)).
“Although legality of sentence is always subject to review within
the PCRA, claims must still first satisfy the PCRA's time limits or
one of the exceptions thereto.” Fowler, supra. Pennsylvania law
makes clear no court has jurisdiction to hear an untimely PCRA
petition. Commonwealth v. Robinson, 575 Pa. 500,
837 A.2d
1157 (2003). Thus, a collateral claim regarding the legality of a
sentence can be lost for failure to raise it in a timely manner under
the PCRA. Commonwealth v. Wojtaszek, 951 A.2d 1169, 1173
n. 9 (Pa.Super.2008), appeal denied, 600 Pa. 733,
963 A.2d 470
(2009).
Infante, 63 A.3d at 363–65.
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Here, because Appellant filed her motion challenging the legality of the
DUI sentence more than 10 days after the lower court’s sentencing order, it
may not qualify as a timely post-sentence motion. Nor was her motion filed
with this Court as a direct appeal from her Underlying DUI sentence.
However, consistent with our above-referenced jurisprudence, we may
consider her counseled challenge to the legality of the underlying DUI
sentence as a timely first PCRA petition, as it was filed within one year of the
time her judgment of sentence became final. We, therefore, proceed with
merits review of her claim.
As our disposition of the present matter turns in significant part on an
interpretation of Vehicle Code Section 3806(a), and given our need to
ascertain and effectuate the intent of the legislature in the absence of a
determination by the Pennsylvania Supreme Court regarding the use of a prior
adjudication of delinquency as a predicate “prior offense” for imposing a
mandatory sentencing enhancement under the relevant statutory scheme, we
set forth the following standard of review regarding statutory interpretation:
The legislature has directed that “[w]hen the words of a statute
are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §
1921(b). See also Commonwealth v. Heberling, 451 Pa.
Super. 119,
678 A.2d 794, 795 (1996). Accordingly, “even where
legislation demonstrates a ‘recidivist philosophy,’ that philosophy
cannot be exalted over the plain meaning of the statute.” West
v. Commonwealth Dep't of Transp., 685 A.2d 649, 651 (Pa.
Cmwlth. 1996).
Consequently, “[i]n construing a statute to determine its meaning,
the courts must first determine whether the issue may be resolved
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by reference to the express language of the statute, which is to
be read according to the plain meaning of the words.” Id. See
also Commonwealth v. Harner, 533 Pa. 14, 20,
617 A.2d 702,
705 (1992) (“When language of a statute is clear and
unambiguous, it must be given effect in accordance with its plain
and common meaning.”). We will consider the language of a
statute ambiguous “only where it will bear two or more meanings.”
City of Philadelphia v. Schaller, 148 Pa.Super. 276,
25 A.2d
406, 409 (1942). See also Pennsylvania Assigned Claims
Plan v. English, 541 Pa. 424, 430,
664 A.2d 84, 87 (1995)
(reasoning that statute is ambiguous if “unclear or susceptible of
differing interpretations.”). “Words having a precise and well-settled legal meaning must be given that meaning when they
appear in statutes unless there is a clear expression of legislative
intent to the contrary.” Commonwealth v. Hicks, 365 Pa. 153,
154,
74 A.2d 178, 178 (1950). See also 1 Pa.C.S. § 1903(a).
Moreover, where a general provision in one statute is in conflict
with a specific provision in the same or another statute, the
specific provision will prevail. Olshansky v. Montgomery
County Election Bd., 488 Pa. 365, 370,
412 A.2d 552, 555
(1980). See also Commonwealth v. Klingensmith, 437
Pa.Super. 453,
650 A.2d 444, 447 (1994).
Commonwealth v. Thomas,
743 A.2d 460, 464-65 (Pa. Super. 1999).
Appellant argues her sentence for DUI, second offense, is illegal because
it was based on the court’s erroneous determination that her adjudication of
delinquency for DUI constituted a prior conviction for purposes of the Vehicle
Code’s sentencing scheme referenced supra. Specifically, she posits “a
juvenile adjudication does not have adequate constitutional protections to
count as a first offense after Chichkin[,]” referring to this Court’s recent
decision declaring unconstitutional the mandate within Section 3806 that a
sentence enhancement apply for a prior acceptance of ARD-DUI.
For its part, the Commonwealth argues that Chichkin is strictly limited
to that part of Section 3806 pertaining to prior acceptances of ARD, which,
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this Court observed, lack due process protections afforded in a criminal trial
precisely because the DUI case is not actually prosecuted if the defendant
completes the program. Dissimilarly, an adjudicatory hearing involves the
vast majority of due process standards—most notably, the requirement of
proof beyond a reasonable doubt—applicable in a criminal trial, the
Commonwealth maintains.
In Chichkin, this Court, analyzing Section 3806(a)(1), and applying
the United States Supreme Court's decisions in Alleyne v. United States,
570 U.S. 99 (2013), and Apprendi v. New Jersey,
530 U.S. 466 (2000),
concluded that Section 3806(a)(1)'s inclusion of ARD as a “prior offense” for
purposes of applying the second offender sentencing enhancement set forth
in Section 3804 is unconstitutional. Consistent with due process principles
recognized in Alleyne, we held that acceptance of ARD was not tantamount
to a prior conviction and, therefore, could not qualify as an exception to the
Apprendi/Alleyne directive that any fact increasing a defendant’s
punishment must be submitted to a jury and proven beyond a reasonable
doubt.
Chichkin outlined the relevant jurisprudence, as follows:
In Alleyne, the United States Supreme Court, held “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a reasonable
doubt.” Alleyne, 570 U.S. at 103,
133 S.Ct. 2151 (emphasis
added). The decision was an expansion of the Court's prior ruling
in Apprendi [ ], which applied only to those facts that increased
the penalty for a crime beyond the “prescribed statutory
maximum.” Alleyne, 570 U.S. at 107,
133 S.Ct. 2151, citing
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Apprendi, 530 U.S. at 490,
120 S.Ct. 2348. In Alleyne, the
Court vacated the defendant's mandatory minimum sentence,
which the trial court imposed after it found, by a preponderance
of the evidence, that the defendant had “brandished” — as
opposed to simply used or carried — a firearm during the
commission of his offense. Alleyne, 570 U.S. at 117,
133 S.Ct.
2151. The Court opined: “Because the finding of brandishing
increased the penalty to which the defendant was subjected, it
was an element, which had to be found by the jury beyond a
reasonable doubt.” Id.
...
Applying the mandate of Alleyne, the Courts of this
Commonwealth have concluded that many of our mandatory
minimum sentencing statutes are unconstitutional because they
permit judicial fact finding by the sentencing court, under a
preponderance of the evidence standard, absent pretrial notice to
the defendant. See Commonwealth v. Wolfe, 636 Pa. 37,
140
A.3d 651 (2016) (prior version of 42 Pa.C.S. § 9718(a)(1),
imposing mandatory minimum when victim of sexual assault is
less than 16 years old);[] Commonwealth v. Hopkins, 632 Pa.
36,
117 A.3d 247 (2015) (18 Pa.C.S. § 6317, imposing mandatory
minimum for delivery of drugs within 1,000 feet of school);
Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014)
(18 Pa.C.S. § 7508, imposing mandatory minimum based upon
weight of controlled substances); Commonwealth v. Newman,
99 A.3d 86 (Pa. Super. 2014) (en banc) (42 Pa.C.S. § 9712.1,
imposing mandatory minimum based upon drug offender's
proximity to firearm).
Nevertheless, the United States Supreme Court, in both Apprendi
and Alleyne, recognized an exception to this general rule based
upon its prior decision in Almendarez-Torres v. United States,
523 U.S. 224,
118 S.Ct. 1219,
140 L.Ed.2d 350 (1998), where the
Supreme Court rejected a defendant's “constitutional claim that
his recidivism[, which increased the penalty for his crime,] must
be treated as an element of his offense.” See Almendarez-Torres, 523 U.S. at 247,
118 S.Ct. 1219 (emphasis added).
Therefore, the Apprendi Court held: “Other than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” Apprendi, 530
U.S. at 490,
120 S.Ct. 2348 (emphasis added). See also
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Alleyne, 570 U.S. at 111 n.1,
133 S.Ct. 2151 (Almendarez-Torres recognized “a narrow exception to this general rule for the
fact of a prior conviction”). Although the Apprendi Court
questioned the continued vitality of Almendarez-Torres,[] to
date the decision has not [been] overruled or modified. See
Commonwealth v. Aponte, 579 Pa. 246,
855 A.2d 800, 802
(2004) (holding sentencing enhancement, which increased
statutory maximum penalty “upon proof of a prior conviction for a
similar offense, without requiring proof beyond a reasonable doubt
before a jury,” was constitutionally valid).
Therefore, pursuant to the foregoing authority, it is clear that any
fact used to increase a defendant's sentence, which is not
included as an element of the offense charged — such as the
amount of drugs sold, the proximity of the drugs to a firearm, the
distance of a drug sale to a school — must be submitted to a jury
and found beyond a reasonable doubt. Furthermore, it is also
clear that when a defendant is subjected to an increased sentence
based upon a prior conviction, the “fact” of the prior conviction
need not be submitted to a jury and found beyond a reasonable
doubt. See Commonwealth v. Reid, 117 A.3d 777, 785 (Pa.
Super. 2015) (imposition of mandatory minimum at 42 Pa.C.S. §
9714(a), based upon appellant's prior conviction of second crime
of violence, did not violate Alleyne). Accord Commonwealth
v. Bragg, 133 A.3d 328, 332–33 (Pa. Super. 2016) (United States
Supreme Court recognized narrow exception to Alleyne rule for
prior convictions), aff'd, 642 Pa. 13,
169 A.3d 1024 (2017).
Chichkin,
232 A.3d at 964-965. (emphasis in original).
The appellants’ prior acceptances of ARD on charges of DUI could not
be categorized as “prior convictions” exempt from the holding of Apprendi
and Alleyne, the Chichkin Court reasoned, because “‘ARD . . . is a pretrial
disposition’ and admission into an ARD program is ‘not equivalent to a
conviction . . . since charges are deferred until completion of the program.’”
Id. at 970 (citations omitted). To view prior ARD participation as sufficient
proof of recidivism warranting enhanced sentencing penalties when the
accused has been “adjudged guilty of no [prior] crime,” Chichkin continued,
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flouts due process considerations protecting one from conviction “except upon
proof beyond a reasonable doubt” that the accused “actually committed the
prior DUI offense.” Id.
Therefore, the Chichkin Court declared that “the particular provision of
75 Pa.C.S. § 3806(a), which defines a prior acceptance of ARD in a DUI case
as a ‘prior offense’ for DUI sentencing enhancement purposes, offends the
Due Process Clause and is therefore unconstitutional.” Id. at 971. “[A]bsent
proof beyond a reasonable doubt that Appellants committed the prior
offenses[,]” the Court concluded, the lower court violated the defendants’
constitutional rights by increasing their sentences “based solely upon their
prior acceptances of ARD.” Id.
Appellant contends it is a “necessary and logical extension of Chichkin”
to conclude that an adjudication of delinquency also falls short of the
procedural and substantive due process required of a criminal conviction.
Appellant’s brief, at 17. Because an adjudicatory hearing denies the right to
both a public trial and jury trial and entails a diminished adversarial tenor
given its primary aim of rehabilitation rather than punishment, Appellant
maintains, an adjudication of delinquency may not properly serve as a prior
offense triggering the mandatory minimum sentencing statute for DUI at
Section 3804. We disagree.
Clear differences between acceptance of ARD and an adjudication of
delinquency belie Appellant’s argument. Most notable among these is that an
adjudication of delinquency does not, like acceptance of ARD, involve the
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suspension of the Commonwealth’s obligation to present charges before a
court and prove each and every element thereof beyond a reasonable doubt.
Commonwealth v. C.L. 963 A.2d 489, 494 (Pa. Super. 2008).
Indeed, the Commonwealth’s burden in an juvenile hearing is the
functional equivalent to that of a prosecutor in a criminal trial, as an
adjudication of delinquency attains only when the Commonwealth convinces
the finder of fact that it has cleared the highest evidentiary bar in making its
case that the juvenile has committed an act that would constitute a crime
were he or she not a minor.
Other features to an adjudicatory hearing assist in fulfilling the
constitutional mandate that significant due process protections be afforded an
accused juvenile. Indeed, it is well-settled that the “Due Process Clause does
require application during the adjudicatory hearing of ‘the essentials of due
process and fair treatment.” In re Winship, 397 U.S. 358, 359 (U.S. 1970)
(quoting In re Gault,
387 U.S. 1, 30 (1967)). These due process rights
include the right to notice of the charges, to counsel, appointed if necessary,
to confrontation and cross-examination of witnesses, and to the privilege
against self-incrimination. In Int. of Borden,
546 A.2d 123, 124 (Pa. Super.
1988) (citing In re Gault). Other rights include the right to production of
exculpatory evidence under Brady v. Maryland,
373 U.S. 83 (1963),2 the
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2 Appeal of Cowell,
364 A.2d 718, 722 (Pa. Super. 1976).
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right to a speedy trial,3 and the right to a direct appeal.4 In re Winship, 397
U.S. at 368.
The requirement for such protections stems from recognition that,
despite official pronouncements reassuring juvenile proceedings are designed
‘not to punish, but to save the child,’ “civil labels and good intentions do not
themselves obviate the need for criminal due process safeguards in juvenile
courts, for ‘(a) proceeding where the issue is whether the child will be found
to be ‘delinquent’ and subjected to the loss of his liberty for years is
comparable in seriousness to a felony prosecution.’” In re Winship, 397 U.S.
at 366 (citation omitted). See also In re R.M.,
790 A.2d 300, 304-05 (Pa.
2002) (“Although by design juvenile proceedings are characterized by a
degree of informality and flexibility, where constitutionally protected interests
are at stake, the Due Process Clauses of the United States Constitution impose
a requirement of fundamental fairness.”). Likewise, this Court has
acknowledged that, “[i]n juvenile proceedings, constitutional due process
guarantees a juvenile almost the full panoply of constitutional protections
afforded at an adult criminal trial.” C.L.
963 A.2d at 494 (citing In Interest
of J.F.,
714 A.2d 467, 470 (Pa. Super. 1998), appeal denied,
557 Pa. 647,
734 A.2d 395 (1990), cert denied,
528 U.S. 814,
120 S.Ct. 49,
145 L.Ed.2d
44 (1999)).
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3 Commonwealth v. Dalenbach,
729 A.2d 1218 (Pa. Super 1999).
4 In re J.B.,
189 A.3d 390, 414 (Pa. 2018).
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Though not specifically referenced in Appellant’s brief, we take judicial
notice of the passage in Apprendi regarding the importance of both the right
to a trial by jury and proof beyond a reasonable doubt, see infra, and we
acknowledge that under our Juvenile Act, there is no right to either a jury trial
or a public trial. Nevertheless, on this point, we join the consensus reached
by all but one U.S. Circuit Court of Appeals addressing the issue that the
absence of a public trial and jury trial in a juvenile proceeding which otherwise
provides the constitutional protections discussed above does not offend the
Apprendi/Alleyne mandate.
For example, the United States Court of Appeals for the Third Circuit has
held that Pennsylvania’s juvenile proceedings afford sufficient due process
protections to allow future use of an adjudication of delinquency as a prior
conviction for purposes of increasing one’s punishment consistent with
Apprendi.
In U.S. v. Jones (3rd Cir. 2003), a case arising out of the Western
District of Pennsylvania, the defendant/appellant raised an Apprendi
challenge to the Commonwealth’s use of a juvenile adjudication of delinquency
for aggravated assault and robbery as one of three strikes in an Armed Career
Criminal Act (“ACCA”) mandatory sentencing enhancement case. The Third
Circuit Court held that the prior nonjury juvenile adjudication afforded all
constitutionally-required procedural safeguards and, thus, qualified as a “prior
conviction” for purposes of the exception to the Apprendi requirement that
any fact, other than prior conviction, that increases penalty for crime beyond
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a prescribed statutory maximum must be submitted to a jury and proven
beyond reasonable doubt.
In so holding, the Third Circuit considered the above-referenced
admonition in Apprendi cautioning:
There is a vast difference between accepting the validity of a prior
judgment of conviction entered in a proceeding in which the
defendant had the right to a jury trial and the right to require the
prosecutor to prove guilt beyond a reasonable doubt, and allowing
the judge to find the required fact under a lesser standard of proof.
Jones, 332 F.3d at 695 (quoting Apprendi, 530 U.S. at 496). It then
surveyed two relevant decisions filed in its sister courts of the Ninth Circuit
and Eighth Circuit Courts of Appeals, respectively, which had reached different
conclusions on whether the lack of a jury trial in a juvenile hearing precluded
the resulting adjudication of delinquency from attaining “prior offense” status
under the exception to the Apprendi general rule.
In the first of these decisions, United States v. Tighe, 266 F.3d 1187
(9th Cir.2001), a majority of the Ninth Circuit Court of Appeals determined
that the “prior conviction” exception to Apprendi's general rule must be
limited to prior convictions obtained through proceedings that included the
right to a jury trial and proof beyond a reasonable doubt.
Tighe at 1194.
Though it might appear at “first blush” that a juvenile adjudication would
qualify for Apprendi' s exception, the Ninth Circuit Court decided such an
appearance vanishes upon consideration of the constitutional differences
between adult trials and juvenile adjudicatory hearings, most importantly, the
lack of a right to a jury in most juvenile matters.
Id. at 1192-93.
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The Third Circuit Court in Jones, however, found persuasive the
rationale of the Eighth Circuit Court of Appeals as expressed in its unanimous
decision, United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002), cert.
denied,
537 U.S. 1114,
123 S.Ct. 870,
154 L.Ed.2d 790 (2003), holding that
a prior juvenile adjudication may serve as a “prior conviction” under Apprendi
despite the absence of a right to a jury:
“the Smalley court examined the reality of actual juvenile
adjudications to determine whether they are sufficiently reliable
so as to not offend constitutional rights if used to qualify for the
Apprendi exception. Id. at 1033. The court noted that juvenile
defendants receive process that has been held to satisfy
constitutional standards, including the right to notice, right to
counsel, right to confront and cross-examine witnesses, and the
privilege against self-incrimination. Id. Furthermore, to convict
a juvenile, a judge must find guilt beyond a reasonable doubt. Id.
The court found these procedural safeguards to be sufficient for
purposes of the Apprendi exception. Id. In short, the Smalley
court concluded that the absence of the right to a jury trial does
not automatically disqualify juvenile adjudications for purposes of
the Apprendi exception.
...
The Government . . . urges us to adopt the reasoning of the Eighth
Circuit in Smalley. It notes that in McKeiver v. Pennsylvania,
403 U.S. 528,
91 S.Ct. 1976,
29 L.Ed.2d 647 (1971), the Supreme
Court held that due process does not require providing juveniles
with the right to a jury trial. It follows, according to the
Government, that when a juvenile is adjudicated guilty beyond a
reasonable doubt in a bench trial that affords all the due process
protections that are required, the adjudication should be counted
as a conviction for purposes of subsequent sentencing under the
ACCA. We agree.
Jones, 332 F.3d at 696.
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To date, Jones remains both controlling decisional law in the Third
Circuit and consistent with the holdings reached in every other circuit of the
United States Court of Appeals addressing the issue, save for the Ninth Circuit
Court, for which Tighe remains precedential.5
Consonant with this jurisprudence, we reject the inference Appellant
claims to draw from Apprendi and Alleyne that use of a prior offense to
increase punishment is constitutional only if the prior offense was first proven
to a finder of fact’s satisfaction in a proceeding—either the prior or present
one--where the accused had the right to a jury. Instead, we agree with the
prevailing view that constitutional due process considerations, as interpreted
by Apprendi and Alleyne, do not preclude sentence enhancement of an adult
offender based on a prior adjudication of delinquency reached in a proceeding
that conformed with the process due and conferred to the juvenile the catalog
of rights described above, even in the absence of the right to a jury.
In the remainder of her argument, Appellant asserts her sentence
enhancement diverges from controlling decisional law that has declined to
regard adjudications of delinquency as predicates for increasing punishment.
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5 Jones is among a majority of the federal circuit decisions concluding
Apprendi does not bar the use of a juvenile adjudication to enhance a
sentence because it provides sufficient procedural safeguards to ensure the
reliability that Apprendi requires. See United States v. Wright, 594 F.3d
259, 264 (4th Cir. 2010); United States v. Crowell,
493 F.3d 744, 750 (6th
Cir. 2007); Welch v. United States,
604 F.3d 408, 426 (7th Cir. 2010);
United States v. Smalley,
94 F.3d 1030, 1033 (8th Cir. 2002); United
States v. Burge,
407 F.3d 1183, 1191 (11th Cir. 2005).
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We find such decisions distinguishable, however, as they mainly relied on an
interpretation of the particular language of the statute then under review.
In Commonwealth v. Hale, 85 A.3d at 585 (Pa. Super. 2014), this
Court reviewed the mandatory sentencing enhancement scheme of 18 Pa.C.S.
§ 6105, Persons Not to Possess, and concluded that its terms mandated
increased penalties only where the defendant’s record established the
presence of a prescribed prior “conviction.”
Specifically, Section 6105 differentiates how prior convictions and prior
adjudications of delinquency shall affect the grading of a Persons Not to
Possess offense. In subsection (b), “convictions” for certain enumerated
crimes shall subject the defendant to a mandatory sentencing enhancement.
In contrast, it is a separate subsection, subsection (c), that provides
defendants adjudicated delinquent of certain offenses are subject to the
general proscription of Persons Not to Possess as set forth in subsection (a),
namely, that they may not carry a firearm. Unlike subsection (b), subsection
(c) contains no provision setting forth mandatory sentence enhancements.
Declining the Commonwealth’s invitation to construe the term
“conviction” as inclusive of adjudications of delinquency for purposes of
subsection (b), this Court noted that the term “conviction” has a legal
connotation not generally understood to incorporate juvenile adjudications.
See id. at 582. Therefore, we held that there existed no reason to interpret
Section 6105 as applying sentence enhancements for prior adjudications of
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delinquency where such adjudications were addressed in a separate
subsection that did not apply mandatory enhancements.
After granting Appellant’s petition for allowance of appeal, the
Pennsylvania Supreme Court, at the outset of its opinion in affirmance, noted
the Superior Court’s observation that the Juvenile Act provides that
adjudications are not convictions. See 42 Pa.C.S. § 6354(a) (prescribing that
“[a]n order of disposition or other adjudication in a proceeding under this
chapter is not a conviction of a crime” (emphasis added)). Commonwealth
v. Hale, 128 A.3d 781, 783 (Pa. 2015). Within that setting, the high court
further reiterated that courts may not “disregard the language of the persons-
not-to-possess statute, render portions of that statute surplusage, and
increase the grading of the offense to a second-degree felony.” Hale, 128
A.3d at 783–84 (citing Hale, 85 A.3d at 585).
Significant for our inquiry, the Supreme Court’s opinion emphasized that
the very terms and structure of Section 6105, Persons Not to Possess, set
forth the distinction between adjudications of delinquency and convictions for
purposes of sentence enhancement. Specifically, the Court recognized that
the General Assembly added subsection (c) to apply Section 6105’s general
proscription against carrying a firearm to individuals who have been
“adjudicated delinquent” based on the commission of certain acts. Notably,
the Court observed, subsection (c) did not incorporate the mandatory
sentencing enhancement applicable to certain “convictions” specifically
delineated in subsection (b).
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On the role of courts regarding the principle of statutory interpretation
and the deference required when confronted with an unambiguous statute
such as Section 6105, enacted by the General Assembly, the Supreme Court
stated as follows:
On the merits, Appellee's arguments adhere closely to the
Superior Court's rationale. He highlights the explicit distinction,
made within Section 6105's own terms, between juvenile
adjudication and convictions; the Juvenile Act's specific
admonition that an adjudication “is not a conviction,” 42 Pa.C.S.
§ 6354(a); and the principle of statutory construction requiring
penal provisions to be construed narrowly, see 1 Pa.C.S. §
1928(b)(1).
...
“Upon review, we agree with the Superior Court and Appellee on
all of the material points discussed above. As noted, Baker arose
in the context of a discretionary sentencing determination—not a
mandatory grading enhancement—and certainly not an
enhancement reposited within a statute that, on its terms,
expressly distinguishes between convictions and
adjudications.[]
...
The controlling point here is that Section 6105 does not
proceed, along any such lines, to predicate the
misdemeanor-to-felony enhancement upon adjudications
of delinquency. Indeed, as emphasized by the
intermediate court and Appellee, the consequence of a
juvenile adjudication is otherwise addressed within the
four corners of the statute. See 18 Pa.C.S. § 6105(c)(7).
Accordingly, Section 6105 presents a context in which the
legislative admonition that an adjudication of delinquency
“is not a conviction” should be respected. 42 Pa.C.S. §
6354(a).
The Supreme Court of the United States recently discussed
considerations relevant to determining the constitutionally
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appropriate range of legal consequences attaching to the acts of
minors in Miller v. Alabama, [567] U.S. [460], [471-478], 132
S.Ct. 2455, 2464–68,
183 L.Ed.2d 407 (2012) (touching upon a
litany of empirical information supporting the Court's conclusion
that “children are constitutionally different from adults for purpose
of sentencing”). As a corollary, the case highlights the substantial
policy considerations involved in determining culpability and the
boundaries of attendant legal consequences for the actions of
minors. In Pennsylvania, subject to the limits of the
Constitution, such matters are generally reserved, in the
first instance, to the General Assembly. See, e.g., Lance,
624 Pa. at 264–65 & n. 26, 85 A.3d at 454 & n. 26
(recognizing that the General Assembly's ability to
examine social policy issues and to balance competing
considerations is superior to that of the judicial branch).
For this reason, as well, we decline to superimpose the
policy considerations underlying the Baker decision onto
the mandatory enhancement requirement reposited in
Section 6105(a.1)(1).
Here, we agree with the Superior Court and Appellee that
the plain language of Section 6105(a.1)(1) should be
enforced according to its terms.
Hale, 128 A.3d at 784, 785-86 (emphasis added) (footnotes deleted).
In contrast with Section 6105 and the legislative intent recognized
therein to segregate adjudications of delinquency from criminal convictions
with respect to sentencing enhancements applicable to gun possession, the
statutory regime at issue in the case sub judice clearly reflects legislative
intent to categorize both prior DUI adjudications of delinquency and prior DUI
convictions as predicate offenses which mandate increased punishment for
recidivist drunk driving. Thus, the present case is distinguishable from Hale.
Similarly, Appellant relies on Commonwealth v. Thomas, 743 A.2d
460 (Pa. Super. 1999), in which this Court addressed the question of “whether
prior juvenile adjudications may be treated as ‘convictions’ for the purpose of
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sentence enhancement under 42 Pa.C.S. § 9714(a)(2)[,]” commonly
described as the “three strikes” provision.6 As explained by Thomas,
This section provides for imposition of a mandatory sentence on
any defendant previously convicted of one or more of thirteen
enumerated “crimes of violence.” See id. § 9714(g). Any such
person is presumed to be a “high risk dangerous offender” and is
subject to substantial sentence enhancement upon conviction of a
second or third offense. See id. § 9714(c). If the defendant fails
to rebut the statutory presumption, the trial court must impose a
sentence of total confinement for at least ten years, and with two
prior convictions, twenty-five years to life. See 42 Pa.C.S. §
9714(a)(1), (2) (respectively).
Thomas, at 461.
A majority of the three-judge panel in Thomas concluded that
“application of section 9714(a)(2) to juvenile adjudications would expand this
provision beyond the scope intended by the legislature and would violate the
express language of the Juvenile Act. See 42 Pa.C.S. § 6354(a).” Thomas
at 461. Specifically, the Thomas rationale reveals that the panel determined
such a result was compelled by controlling statutory language expressly
limiting the reach of Section 9714 to “convictions” and otherwise failing to
designate juvenile adjudications as either the equivalent of convictions or
qualifying predicate offenses:
Upon review, we conclude that section 9714 is written in
terms with precise legal meanings that clearly restrict
application of the measure to criminal defendants found
guilty as adults, and not to juvenile delinquents. This section
directs imposition of a mandatory sentence on “[a]ny person who
____________________________________________
6 42 Pa.C.S.A. § 9714, prior version held unconstitutional by Commonwealth
v. Butler, 760 A.2d 384 (Pa. 2000).
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is convicted ... of a crime of violence” if that person has
“previously been convicted of two or more such crimes of
violence.” See 42 Pa.C.S. § 9714(a)(1), (2) (emphasis added).
Our legislature has defined conviction in the Crimes Code as
follows:
There is a conviction if the prosecution resulted in a judgment of
conviction which has not been reversed or vacated, a verdict of
guilty which has not been set aside and which is capable of
supporting a judgment, or a plea of guilty accepted by the court.
18 Pa.C.S. § 109(3). We have applied this definition under
circumstances analogous to those in this case, determining for
purposes of recidivist sentencing enhancement, that an
adjudication of delinquency is not a conviction of crime. See
Commonwealth v. Rudd, 366 Pa. Super. 473,
531 A.2d 515
(1987) (refusing to recognize adjudications of delinquency as prior
convictions for purposes of enhanced sentencing under DUI
statute, 75 Pa.C.S. § 3731). We have recognized also that the
fundamental considerations on which an adult conviction is based
are not operative in juvenile adjudications. See In re Holmes,
379 Pa. 599, 603,
109 A.2d 523, 525 (1954) (“[Juvenile
proceedings] are not in the nature of a criminal trial, but constitute
merely a civil inquiry or action looking to the treatment,
reformation and rehabilitation of the minor child. Their purpose is
not penal but protective.”). Significantly, we find no language
in section 9714 that purports to alter the presumptions
underlying the juvenile justice system or to apply a more
expansive definition of conviction. Section 9714 does not
purport to prescribe a penalty on the basis of any form of
decision other than conviction, and makes no reference in
any context, to adjudications of delinquency. We find these
omissions dispositive. Given the penal nature of section
9714 and the limited import of its language, we must
consider specific prohibitions of the Juvenile Act that limit
the subsequent effect of an adjudication of delinquency.
See Olshansky, 488 Pa. at 370,
412 A.2d at 554.
The Juvenile Act, pursuant to which the defendant was
adjudicated delinquent prior to his conviction in this case, states
precisely and without equivocation that a juvenile adjudication is
not a conviction of crime and may be considered in subsequent
proceedings only for limited purposes. The general rule
propounded by the Juvenile Act codifies the long-standing policy
of this Commonwealth, as follows:
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§ 6354. Effect of adjudication
General rule.—An order of disposition or other
adjudication in a proceeding under this chapter is not
a conviction of crime and does not impose any civil
disability ordinarily resulting from a conviction or
operate to disqualify the child in any civil service
application or appointment.
42 Pa.C.S. § 6354(a) (emphasis added). According this
language its accepted legal meaning, we find this provision
a conclusive expression of the legislature's intent that
those adjudicated delinquent shall not be subject to the
penalties associated with “conviction.”
Thomas, at 465-466 (emphasis added).
Here, again, Section 3806 of the Vehicle Code contains precisely the
affirmative, transformative language that Thomas declared was necessary to
infer the legislative intent to make prior adjudications of delinquency
predicates for enhancing the sentences of adult DUI offenders. The lack of
such language in the Three Strikes Law, which confined itself strictly to
“convictions,” was “dispositive” of the issue before it, the Thomas majority
explained. There appeared nothing in the statute suggesting an intent to
depart from either our Crimes Code or Juvenile Code provisions, or decisional
law interpretations, that historically distinguished adjudications of delinquency
from convictions for purposes of meting out punishment. Section 3806, in
clear contrast, expressly makes both prior DUI adjudications and convictions
sentencing enhancement predicates.
Therefore, Appellant may find no relief from either Hale or Thomas, as
both decisions are distinguishable on their facts and, therefore, inapposite.
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Each decision turned on the lack of explicit statutory language that would
enable a court to infer legislative intent to use adjudications of delinquency to
enhance sentencing. Through Section 3806, however, the General Assembly
explicitly designates adjudications of delinquency for such a use, and thus
allows for the inference that the statute reflects legislative intent to depart
from prior authority confining such use to criminal convictions.
Therefore, having found the Vehicle Code’s statutory scheme in question
both constitutional under the Apprendi/Alleyne construct and free from
conflict with decisional law, we deem Appellant’s appeal devoid of merit.
Accordingly, we affirm the order denying Appellant’s Motion to
Determine the Legality of Sentence, which motion we construe as a timely
first PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2021
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