J-A16013-21
2021 PA Super 232
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
GARRETT JAMES HAYES : No. 3 MDA 2021
Appeal from the Judgment of Sentence Entered November 24, 2020,
in the Court of Common Pleas of Adams County,
Criminal Division at No(s): CP-01-CR-0000190-2020.
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
OPINION BY KUNSELMAN, J.: FILED DECEMBER 02, 2021
The Commonwealth appeals from the judgment of sentence imposing
five years’ probation (with 90 days of restrictive, driving-under-the-influence
conditions) against Garrett James Hayes.1 The sentencing court determined
that this was Hayes’ second DUI offense; it did not consider his driving-while-
intoxicated (“DWI”) case from Maryland in 2011 to be a prior offense, under
Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020).2 This holding
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* Former Justice specially assigned to the Superior Court.
1 Sitting without a jury, the trial court convicted Hayes under 75 Pa.C.S.A. §§
3709(a) (littering on the highway), 3714(a) (careless driving), 3802(a)(1)
(DUI), and 3802(c) (DUI – highest rate of alcohol).
2 In Commonwealth v. Chichkin,
232 A.3d 959 (Pa. Super. 2020), this Court
concluded that 75 Pa.C.S.A. § 3806(a)(1)’s inclusion of ARD as a “prior
offense” for purposes of Section 3804’s DUI sentencing enhancement is
unconstitutional, 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 (internal quotations
and citations omitted).
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rested upon a misinterpretation of Maryland’s procedural law. Therefore, we
vacate the sentence and remand.
Prior to the offense at issue in this case, Hayes was twice arrested for
DWI in the State of Maryland: once in 2011 and again in 2014. In 2019, the
Commonwealth of Pennsylvania charged him with DUI, third offense.
Hayes moved to exclude evidence of his 2011 DWI. As the trial court
noted:
[he] filed a motion in limine to bar admission of evidence
underlying a prior probation before judgment for DUI
recidivist sentencing purposes. [Hayes] argued that [his]
prior probation before judgment (“PBJ”) disposition in
Maryland on July 14, 2011, as evidence of a “prior offense”
under 75 Pa.C.S.A. § 3806 of the Vehicle Code, was barred
by the Superior Court case Commonwealth v. Chichkin,
supra.
[At the hearing on the motion in limine,] the only
evidence presented by the Commonwealth was a document
from the District Court for Carroll County, Maryland for a
Garrett James Hayes. It showed a disposition on July 14,
2011, with a plea of not guilty and disposition of [PBJ] for
driving/attempting to drive vehicle while under the influence
of alcohol per se. [The trial court] entered an order on
October 20, 2020 granting [the] Motion in Limine to Bar
Admission of Evidence Underlying a Prior PBJ for DUI
Recidivist Sentencing Purposes.
On November 24, 2020 a stipulated nonjury trial was
held[, and Hayes] was found guilty [on two counts of DUI].
The Commonwealth presented a certified document from
the District Court for Carroll County, Maryland for Garrett
James Hayes, showing a July 14, 2011 plea of not guilty with
a disposition of [PBJ] for driving, attempting to drive vehicle
while under the influence of alcohol per se.
Trial Court Opinion, 2/10/21, at 1-2.
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After reviewing the documents from the District Court of Carroll County,
the sentencing court opined that, under Chichkin, supra, “the issue is
whether [Hayes’] prior acceptance of a PBJ in Maryland constitutes an
unproven ‘fact’ which must be submitted to the fact finder at trial or a ‘prior
conviction’ which may be determined by the Court at sentencing.” Id. at 4.
The court ruled the certified document was not proof of a “prior offense,”
because it indicated that Hayes pleaded not guilty before the District Court of
Carroll County, which then imposed a PBJ. The sentencing court went on to
state, “As set forth in section 6-220(g)(1) of the Maryland Code of Criminal
Procedure, after successful completion of a PBJ disposition, the case is
discharged without a conviction being recorded.” Id. at 5.
Thus, the sentencing court held “that the PBJ disposition from July 14,
2011 [did] not meet the ‘prior conviction exception’ and [the Commonwealth]
did not prove beyond a reasonable doubt that [Hayes’] actually committed the
prior DUI offense” in 2011. Id. at 6. Therefore, the court did not count Hayes’
2011 DWI as a prior DUI offense when calculating his mandatory-minimum
sentence under Pennsylvania law. This timely appeal followed.
The Commonwealth raises two issues, which we have reordered so that
the non-constitutional issue appears first.3 They are:
1. Did the [sentencing] court err in finding that a [PBJ]
under Maryland Law does not constitute a prior
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3 We thereby “adhere to the sound tenet of jurisprudence that courts should
avoid constitutional issues when the [case] may be decided upon other
grounds.” Commonwealth v. Herman, 161 A.3d 194, 209 (Pa. 2017).
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offense for purposes of sentencing on a new DUI when
that disposition requires either that a defendant admit
guilt or that the state prove culpability beyond a
reasonable doubt before it can be imposed?
2. Did the [sentencing] court err in ruling that the fact of
a prior conviction for purposes of gradation and
determination of DUI offense for sentencing purposes
is required to be proven by the Commonwealth at the
time of trial, as opposed to an issue to be determined
at the time of sentence?
Commonwealth’s Brief at 6.
First, the Commonwealth contends the trial court misinterpreted the
Maryland statute on PBJ dispositions. The Commonwealth concedes that the
documents from the Maryland court indicate Hayes pleaded not guilty in 2011.
However, it contends, as a matter of Maryland law, Hayes’ 2011 PBJ for DWI
“could only be entered upon either a plea of guilty or nolo contendere, or a
finding of guilt beyond a reasonable doubt.” Id. at 11.
It argues the only logical “conclusion to draw, in light of the governing
[Maryland statute, is] that [Hayes] pleaded not guilty before being adjudicated
guilty and given a PBJ disposition in lieu of sentence.” Id. “Because that PBJ
could only have been entered after a finding or admission of guilt beyond a
reasonable doubt, the lower court erred in sentencing [Hayes] on a second
offense DUI,” as opposed to his third. Id. at 11-12.
In response, like the sentencing court, Hayes focuses upon the fact that
the certified document indicates he pleaded not guilty. See Hayes’ Brief at 7-
8. He claims, “The Commonwealth argued that a PBJ should at least be
treated differently than ARD, but then brazenly admitted only evidence that
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specifically said there was a plea of not guilty attached to the PBJ disposition.”
Id. at 8. In his view, “Similar to ARD, a PBJ does not result in a conviction if
the conditions are satisfied, and, therefore, the same due process concerns
[that arose in Chichkin] are present.” Id. at 9.
This issue implicates the legality of Hayes’ sentence. “A challenge to
the legality of sentence is a question of law; our standard of review is de novo,
and our scope of review is plenary.” Commonwealth v. Alston, 212 A.3d
526, 528 (Pa. Super. 2019).
The General Assembly of Pennsylvania has defined “prior offense” for
sentencing purposes as “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 . . . .” 75 Pa.C.S.A. § 3806(a). At issue here is the
phrase “other form of preliminary disposition” and whether Hayes’ 2011 PBJ
disposition falls within the scope of that clause.
To make that determination, we turn to the Maryland statute governing
PBJ dispositions. The Maryland General Assembly has provided district courts
with the power to “stay the entering of judgment [of sentence]; defer further
proceedings, and place the defendant on probation . . . if . . . the defendant
gives written consent after determination of guilt or acceptance of a nolo
contendere plea.” Md.Code A., Crim. Proc. § 6-220(b)(1)(ii). But, if the
defendant violates the conditions of probation, “the court may enter judgment
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[of sentence] and proceed as if the defendant had not been placed on
probation.” Md.Code A., Crim. Proc. § 6-220(f).
Under Maryland law, a conviction is “the final judgment and sentence
rendered by the court,” while a finding of guilt is “the mere determination of
guilt.” Myers v. State, 496 A.2d 312 (Md. 1985). Thus, because the PBJ
does not impose a final judgment and sentence but only a determination of
guilt, the statute provides district courts with a procedure for a “preliminary
disposition” of the case without a formal conviction or judgment of sentence.
75 Pa.C.S.A. § 3806(a). Hence, a Maryland PBJ is a “form of preliminary
disposition” that meets the definition of “prior offense” under the Pennsylvania
law. Id.
However, here, the sentencing court declared the phrase “preliminary
disposition” in Section 3806(a) to be repugnant to the Fourteenth Amendment
to the Constitution of the United States. That Amendment dictates that “No
State shall . . . deprive any person of life, liberty, or property, without due
process of law . . . .”4 U.S. Const. amnd. XIV. Applying that provision, the
sentencing court extended the rationale of Chichkin, supra, to hold that
“preliminary disposition” was not severable from “acceptance of Accelerated
Rehabilitative Disposition,” the clause Chichkin declared unconstitutional.
____________________________________________
4 The court of common pleas first declared the phrase “preliminary offense”
unconstitutional when Hayes filed his motion in limine. The court repeated its
declaration of unconstitutionality at sentencing, when the Commonwealth
admitted the Maryland record to enhance Hayes’ DUI to a third offense.
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Chichkin found that the Due Process Clause bars the General Assembly
of Pennsylvania from counting an acceptance of ARD as a prior conviction for
DUI-recidivist-sentencing under 75 Pa.C.S.A. § 3806(a). We based this ruling
on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United
States,
570 U.S. 99 (2013), and held that ARD is a “pretrial disposition of
charges.” Chichkin,
232 A.3d at 967.
Relying on Alleyne, we opined that, because “prior acceptances of ARD
do not constitute convictions ‘cloaked in all the constitutional safeguards [of
due process],’ . . . they are a ‘fact’ that . . . must be presented to the fact
finder and determined beyond a reasonable doubt before a trial court may
impose a mandatory minimum sentence under Section 3804.” Id. at 968.
We declared the “portion of 75 Pa.C.S.A. § 3806(a), which statutorily equates
a prior acceptance of ARD to a prior conviction for purposes of subjecting a
defendant to a mandatory minimum sentence under Section 3804, is
unconstitutional.” Id. at 968. Thus, under Chichkin, acceptance of ARD may
only serve as a prior offense if the Commonwealth proves “beyond a
reasonable doubt, that the defendant actually committed the prior DUI
offense.” Id. at 971.
Here, the sentencing court combined the above logic with the fact that
the Maryland PBJ documentation indicated Hayes pleaded not guilty. The
court concluded that PBJ is the equivalent of Pennsylvania’s ARD. Thus, the
sentencing court inferred that a PBJ is not a “conviction” and, therefore, is not
“cloaked in all the constitutional safeguards” of due process. Id. at 968. This
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determination rested upon a misapprehension of Maryland criminal procedure.
The sentencing court drew a false equivalency between PBJ and ARD.
In Pennsylvania, ARD is a pretrial, diversionary program under the
control of the district attorneys’ offices. “[T]he decision to submit the case
for ARD rests in the sound discretion of the district attorney and . . . the
attorney for the Commonwealth must be free to submit a case or not submit
it for ARD consideration based on his view of what is most beneficial for
society and the offender.” Commonwealth v. Lutz, 495 A.2d 928, 935 (Pa.
1985). Thus, the defendant who successfully completes ARD never admits
guilt, nor does a court find the defendant guilty beyond a reasonable doubt.
It was the absence of any guilt determination that the Chichkin Court found
to be violative of
Alleyne, supra, if an ARD disposition is later counted as a
prior offense.
By contrast, the Maryland PBJ disposition is a post-trial matter of grace
within the sentencing discretion of Maryland’s district courts. The statute
provides, “When a defendant pleads guilty or nolo contendere or is
found guilty of a crime, a court may stay the entering of judgment, defer
further proceedings, and place the defendant on probation . . . if . . . the
defendant gives written consent after determination of guilt or acceptance of
a nolo contendere plea.” Md.Code A., Crim. Proc. § 6-220(b)(1)(ii) (emphasis
added).
“The probation before judgment statute plainly requires that a
determination of guilt must precede the granting of probation before
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judgment.” Howard Cty. Dep't Of Soc. Servs. v. Linda J., 869 A.2d 404,
409 (Md. App. 2005). This requirement allows the Maryland district courts “to
revoke probation [if violated] and to impose a sentence for the original offense
without the necessity of conducting a de novo trial on the merits.” Myers,
496 A.2d at 315. Thus, Hayes’ not guilty plea has no bearing on our analysis;
the Maryland court could not have imposed PBJ disposition without a finding
of guilt or a plea of guilty or nolo contendere.
Therefore, we conclude that the due process safeguards missing from
Pennsylvania’s ARD program were present in Hayes’ 2011 DWI trial before the
District Court of Carroll County. As such, the burden-of-proof requirements
of Alleyne, supra, were satisfied through the procedural safeguards found in
Maryland law. The sentencing court erred by not treating the 2011 DWI as a
prior conviction under 75 Pa.C.S.A. § 3806(a).
Based on this conclusion, we need not address the Commonwealth’s
second issue, regarding the trial court’s declaration of unconstitutionality.
Judgment vacated. Case remanded for resentencing as a third-offense
DUI.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/02/2021
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