COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN RICHARDS :
:
Appellant : No. 1673 EDA 2020
Appeal from the Judgment of Sentence Entered August 19, 2020
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0000738-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., STABILE,
J., KUNSELMAN, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.
CONCURRING OPINION BY STABILE, J.: FILED OCTOBER 4, 2022
I concur fully in the Majority’s decision to overrule this Court’s prior
panel decision in Commonwealth v. Chichkin,
(Pa. Super.
2020). Chichkin did not accord our Legislature the deference due its
judgment to declare that a prior acceptance into the accelerated rehabilitative
disposition (ARD) program in the prosecution of a driving under the influence
(DUI) reoffender shall be considered as a "prior offense" for DUI sentencing
enhancement purposes as per 75 Pa.C.S.A. § 3806(a). A defendant who
reoffends after being given the grace of accepting ARD for DUI demonstrates
that he or she is not worthy of the chance to rehabilitate themselves in
exchange for forgoing a criminal conviction. Consequently, our Legislature
declared that if a defendant reoffends, prior acceptance of ARD shall be
considered a “prior offense” for sentencing purposes. Our Legislature was well
J-E01004-22
within its prerogative to increase punishment for re-offense of this serious
crime. Plain and simple, drunk driving kills people.1
I write separately, however, to address the statement in Chichkin,
relying upon Alleyne,2 that “if the Commonwealth seeks to enhance a
defendant’s DUI sentence based upon that defendant’s prior acceptance of
ARD, it must prove, beyond a reasonable doubt, that the defendant actually
committed the prior DUI offense.” Id. at 970-71 (footnote omitted). The
Commonwealth here did so during sentencing in the belief that proving the
fact of the prior ARD would resolve any Alleyne problem. As well-intentioned
as that effort may have been, it did not solve the Alleyne problem.
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.
Establishing the fact of a prior ARD at sentencing during an evidentiary hearing
conducted only by the sentencing judge, without the benefit of Section
____________________________________________
1 Sadly, it appears that many people do not consider driving while impaired to
be a serious offense. In the continuation of a twenty year campaign known
as Operation Nighthawk, the Pennsylvania State Police announced the arrests
of 492 individuals who were driving under the influence of alcohol or controlled
substances during a two-day detail on August 12-13, 2022. See
https://www.abc27.com/local-news/operation-nighthawk-nets-nearly-500-
dui-arrests-in-pennsylvania/
2 Alleyne v. United States,
(2013).
-2-
J-E01004-22
3806(a), does not satisfy a defendant’s right to have all facts that increase
the penalty for a crime determined by a jury.
Alternatively, I also have serious concerns about attempting to prove a
prior ARD during the trial of a current DUI offense. As a general rule, evidence
of a defendant’s other crimes or wrongful acts is not admissible to prove the
current offense being tried. See Pa.R.E. 404(b). The impact of introducing
evidence of other crimes is significant and may be highly prejudicial.
Commonwealth v. Hicks,
(Pa. 2017). Were we to
affirm the panel decision in Chichkin, the practical effect of doing so would
likely be a complete inability of the Commonwealth to seek a sentencing
enhancement for a defendant who is a DUI reoffender. Given this dilemma,
it is likely that prosecutors would substantially curtail their discretion to offer
ARD, thus defeating the use of a program designed to encourage offenders to
make a fresh start after participation in a rehabilitative program. See Majority
Opinion, at 6-7.
-3-
