J-S22033-21
2021 PA Super 165
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA TRAVIS GILL :
:
Appellant : No. 154 MDA 2021
Appeal from the PCRA Order Entered December 21, 2020
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0001779-2018
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED AUGUST 17, 2021
Joshua Travis Gill (Gill) appeals from the order entered in the Court of
Common Pleas of Lebanon County (PCRA court) dismissing his first petition
filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. Gill claims that the sentence imposed on his Driving Under the Influence
of alcohol (DUI)─Highest Rate conviction, graded as a second offense, is
illegal. We affirm.
I.
A.
The relevant facts and procedural history of this case are as follows. Gill
was charged on August 23, 2018, with DUI-Highest Rate, Second Offense;
DUI —General Impairment, Second Offense; and related Summary Offenses
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* Retired Senior Judge assigned to the Superior Court.
J-S22033-21
for an incident that occurred in June 2018.1 On October 23, 2019, a jury
convicted Gill of the DUI charges and the trial court found him guilty of the
summary offenses. The grading of the DUI charges as a second offense was
based on Gill’s acceptance and completion of an accelerated rehabilitative
disposition (ARD) program for an April 14, 2009 DUI charge which he
completed on June 2, 2010.
On January 15, 2020, the trial court sentenced Gill to a term of
incarceration of 90 days to two years less one day in the county correctional
facility on the DUI, highest rate offense. The DUI, general impairment offense,
merged with the highest rate charge for sentencing purposes and no further
penalty was imposed on the summary offenses. The trial court found it to be
his second offense because 75 Pa.C.S. § 3806 treats prior acceptance of an
ARD in a DUI case as a prior conviction for sentencing enhancement purposes.
The sentence was consistent with the permissible sentencing range for a
second DUI offense. See 75 Pa.C.S. § 3804(c)(2)(i) (providing a minimum
term of incarceration of 90 days for a second DUI, highest rate offense). Gill
did not file a direct appeal. His judgment of sentence became final on
February 14, 2020.
However, on May 20, 2020, after sentencing in this case, we held in
Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), that 75
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1 75 Pa.C.S. §§ 3802(c), 3802(a)(1), 3309 and 3714.
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Pa.C.S. § 3806 is unconstitutional insofar as it defined a previous acceptance
of an ARD in a DUI case as a prior offense for sentencing purposes. Our
decision was based on Alleyne v. United States, 570 U.S. 99 (2013), where
the United States Supreme Court addressed mandatory minimum sentences
and established a new constitutional rule of law that under the Sixth
Amendment of the United States Constitution, where any fact that, by law,
increases the penalty for a crime must be treated as an element of the offense,
submitted to a jury and found beyond a reasonable doubt. See
id. at 102.
As will be discussed more fully infra, our Supreme Court has determined that
the Alleyne holding is procedural in nature and is not applicable to cases on
collateral review. See Commonwealth v. Washington,
142 A.3d 810, 820
(Pa. 2016).
B.
Gill filed his PCRA petition on July 2, 2020, asserting that he is entitled
to relief pursuant to Section 9543(a)(2)(vii) of the PCRA because the trial
court imposed a sentence greater than the lawful maximum.2 Gill bases his
claims on this Court’s decision in Chichkin, supra, which was issued on May
20, 2020, after his judgment of sentence became final.
The Chichkin case involved a direct appeal wherein the defendant
challenged the trial court’s treatment of his acceptance of an ARD in a prior
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2 42 Pa.C.S. § 9543(a)(2)(vii).
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DUI case as a second offense for sentencing enhancement purposes. The
Court held that under Alleyne, the acceptance of an ARD in the prior case
constituted an unproven fact that must be found beyond a reasonable doubt
by the factfinder before it can be considered a second offense for sentencing
purposes. See Chichkin at 970-71. Gill posits that the Chichkin holding
applies retroactively to his case on collateral review, and that his sentence
imposing the mandatory minimum of 90 days of incarceration on the DUI
graded as a second offense should be vacated.
The PCRA court denied Gill’s petition, holding that Chichkin does not
apply to cases on collateral review, i.e., PCRA petitions, because its holding is
procedural, not substantive in nature, and procedural rulings do not apply
retroactively. (See PCRA Court Opinion, 12/21/20, at 11). Gill timely
appealed and he and the PCRA court complied with Rule 1925. See Pa.R.A.P.
1925(a)-(b).3
II.
A.
On appeal, Gill challenges the PCRA court’s finding that Chichkin is
procedural in nature and not retroactively applicable to invalidate his
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3 Our standard of review requires us to assess whether the PCRA court’s
findings of fact are supported by the record and whether its conclusions of law
are free from error. See Commonwealth v. Orner, 251 A.3d 819, 824 (Pa.
Super. 2021). We review the PCRA court’s legal determinations de novo. See
id.
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sentence. Instead, Gill contends that the Chichkin decision is substantive in
nature and prohibits the unconstitutional punishment of those who had a prior
DUI charge and completed an ARD program. Because Section 3806 of the
Vehicle Code is invalid, Gill argues that the court’s consideration of his ARD
disposition as a prior conviction in determining his sentence is illegal.
B.
We begin by noting that “new constitutional procedural rules generally
pertain to future cases and matters that are pending on direct review at
the time of the rule’s announcement.” Washington, supra at 815 (citation
omitted). A new rule applies retroactively in a collateral proceeding only if it
is substantive in nature or if it is considered a watershed rule of criminal
procedure implicating the fundamental fairness and accuracy of the
proceeding. See Commonwealth v. Ross,
140 A.3d 55, 59 (Pa. Super.
2016). Substantive rules are those that decriminalize conduct or prohibit
punishment against a class of persons. See Montgomery v. Louisiana,
577
U.S. 190, 201 (2016). Conversely, procedural rules regulate only “the
manner of determining the defendant’s culpability.”
Id. (emphasis
original).
Our Supreme Court in Washington explained:
There is presently no controversy concerning the proposition
that Alleyne sets forth a new rule of constitutional law. As to the
substantive-procedural distinction, we agree with the
Commonwealth that the Alleyne rule neither alters the range of
conduct or the class of persons punished by the law. Rather, the
holding allocates the relevant decision-making authority to a jury
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rather than a judge, while establishing the beyond-a-reasonabledoubt standard as the essential burden of proof. See Alleyne, at
2155.
…
We also have no basis for disagreeing with the
Commonwealth that the Alleyne rule is not of a groundbreaking,
‘watershed’ character. It remains lawful and, indeed, routine for
judges to increase sentences, in the discretionary sentencing
regime, based on facts that they find by a preponderance of the
evidence. See Alleyne, at 2163 (“Our ruling today does not
mean that any fact that influences judicial discretion must be
found by a jury; we have long recognized that broad sentencing
discretion, informed by judicial factfinding, does not violate the
Sixth Amendment.”). Thus, the inherent reliability of judgedetermined facts at the sentencing stage is not directly in issue,
and we find that this understanding places substantial perspective
on the fairness concerns involved.
We recognize that, per Alleyne, it is no longer permissible
for state legislatures to direct judges to apply specified minimum
sentences based on preponderance-based judicial findings of fact.
Nevertheless, we conclude that such new rule is materially
different in character from Gideon’s [v. Wainwright, 372 U.S.
335 (1963)] prescription for assistance of counsel, which is
presently enshrined as the only recognized watershed rule of
criminal procedure. . . .
We hold that Alleyne does not apply retroactively to cases
pending on collateral review, and that Appellant’s judgment of
sentence, therefore, is not illegal on account of Alleyne.
Washington, supra at 818-20 (some citations omitted).
In this case, the PCRA court concluded:
Like Alleyne, . . . we believe the portion of Section 3806 at
issue in Chichkin is a procedural, rather than substantive, rule.
A rule requiring certain facts to be determined by a jury, rather
than a judge is procedural in nature. Like the rule in Alleyne, the
Chichkin rule requires that certain facts i.e., that a defendant was
guilty of a prior DUI, be determined by a jury rather than a judge.
Chichkin does not alter the range of conduct or the class of
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persons to be punished by the law. Neither is the rule of
‘groundbreaking watershed character’ as judges retain broad
discretion in determining the appropriate sentence to be imposed
in a defendant. For these reasons, we find that the rule
enunciated in Chichkin is not applicable retroactively in this
collateral proceeding.
(PCRA Ct. Op., at 11) (some citations omitted).
We agree with the PCRA court’s rationale and find no error in its
determination that the Chichkin holding is procedural in nature and does not
apply retroactively to Gill’s collateral PCRA petition. It does not decriminalize
any type of conduct or prohibit punishment against a particular class of
persons, as it impacts only how the DUI offense is graded. See Montgomery
supra, at 201. Given the broad discretion afforded to the trial court at
sentencing and its obligation to consider the defendant’s relevant
circumstances and background, including whether he participated in an ARD
program for DUI, Chichkin does not represent a watershed procedural rule
akin to the right to counsel set forth in Gideon. Accordingly, Gill is not entitled
to relief on his claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/17/2021
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