J-E01003-22
2022 PA Super 169
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
RICHARD ALEKSANDR MOROZ :
:
Appellee : No. 282 MDA 2021
Appeal from the Judgment of Sentence Entered February 4, 2021
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001515-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., STABILE,
J., KUNSELMAN, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.
OPINION BY KING, J.: FILED: OCTOBER 4, 2022
Appellant, the Commonwealth of Pennsylvania, appeals from the
judgment of sentence entered in the Centre County Court of Common Pleas,
following the guilty pleas of Appellee, Richard Aleksandr Moroz, to driving
under the influence—high rate of alcohol (“DUI”), careless driving, and general
lighting requirements.1 We vacate the judgment of sentence and remand the
matter for further proceedings.
The relevant facts and procedural history of this appeal are as follows.
On July 12, 2019, police arrested Appellee for DUI, and the Commonwealth
charged him with various offenses at docket number 1516 of 2019. On August
5, 2019, police arrested Appellee for a second DUI, and the Commonwealth
charged him with various offenses at docket number 1515 of 2019. On
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1 75 Pa.C.S.A. §§ 3802(b), 3714, 4303(a).
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February 12, 2020, Appellee entered the Accelerated Rehabilitative
Disposition (“ARD”) program for the charges stemming from the July arrest.
That same day, Appellee tendered a negotiated guilty plea for the charges
stemming from the August arrest, with the DUI considered as a second
offense. The court deferred sentencing on the matter. Prior to sentencing,
however, this Court issued its opinion in Commonwealth v. Chichkin, 232
A.3d 959 (Pa.Super. 2020), holding that the portion of the DUI statute
equating prior acceptance of ARD to a prior conviction for purposes of
imposing a mandatory minimum sentence for a second or subsequent DUI
offense was unconstitutional.
Appellee proceeded to a hearing on June 16, 2020. The trial court
summarized the outcome of this hearing as follows:
At sentencing on June 16, 2020, [Appellee] objected to
being sentenced based on a second offense raising the
Pennsylvania Superior Court’s recent ruling in [Chichkin,
supra]. As a result, the Commonwealth amended the
criminal information to add two counts reflecting first
offense DUI charges. [Appellee] then withdrew his original
guilty plea and entered an open guilty plea to all charges on
the criminal information. The Commonwealth argued the
Chichkin decision required the Commonwealth to prove the
first DUI entered into the ARD program at docket no. CP-
14-CR-1516-2020 beyond a reasonable doubt at an
evidentiary hearing in order to establish the DUI at docket
no. CP-14-CR-1515-2020 as a second offense DUI for
sentencing purposes.
The Commonwealth proposed holding an evidentiary
hearing before a different judge acting as a “blind” judge
without knowledge of the other pending DUI who could rule
on whether the Commonwealth proved the first DUI beyond
a reasonable doubt. After the “blind” judge’s ruling, the
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parties would return before [the original jurist] for
sentencing on either a first offense or second offense DUI.
The evidentiary hearing was scheduled to be heard by the
[“blind” judge] on August 7, 2020, but [the “blind” judge]
would not hold an evidentiary hearing unless the parties
filed motions explaining the purpose of the hearing. The
Commonwealth believed filing motions would defeat the
purpose of having a “blind” judge, and [Appellee] had
objections to the procedures proposed for the evidentiary
hearing. The parties agreed that any argument over the
evidentiary hearing procedure should be made before [the
original jurist, who] sits as the sentencing judge.
As a result, the Commonwealth filed a praecipe for hearing
on August 31, 2020 requesting an evidentiary hearing be
held before the sentencing judge. The evidentiary hearing
would address whether the Commonwealth could prove
[Appellee’s] first DUI beyond a reasonable doubt. A hearing
on whether to grant the Commonwealth’s praecipe for
hearing was held on October 20, 2020.
(Trial Court Opinion, filed 12/28/20, at 2-3).
On October 20, 2020, the Commonwealth raised certain objections to
the potential application of the Chichkin decision. On December 28, 2020,
the court denied the Commonwealth’s praecipe for hearing. On February 4,
2021, the court conducted a sentencing hearing regarding the charges at
docket number 1515 of 2019. Relying on Chichkin, the court sentenced
Appellee as a first-time DUI offender to forty-eight (48) hours to six (6)
months’ imprisonment. The court also imposed additional fines and costs for
the summary traffic offenses.
On March 5, 2021, the Commonwealth timely filed a notice of appeal.
On March 11, 2021, the court ordered the Commonwealth to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. The
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Commonwealth timely filed its Rule 1925(b) statement on March 31, 2021.
We subsequently determined that the appeal should be considered by this
Court sitting en banc. On November 17, 2021, this Court entered its order
directing en banc certification.
The Commonwealth now raises two issues for our review:
Whether a defendant’s previous acceptance of [ARD] for
[DUI] should qualify as a “prior offense” for the purposes of
the DUI sentencing enhancement provision at 75 Pa.C.S.A.
§ 3804 contrary to the holding in [Chichkin, supra]?
Whether the three-judge panel’s conclusion in Chichkin,
that 75 Pa.C.S.A. § 3806(a)(1) is unconstitutional, must be
overruled?
(Commonwealth’s Brief at 6).
“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 non-waivable
and the court can even raise and address it sua sponte.” Commonwealth v.
Infante, 63 A.3d 358, 363 (Pa.Super. 2013). “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).
“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.” Infante, supra at 363 (quoting Commonwealth v. Catt,
994
A.2d 1158, 1160 (Pa.Super. 2010) (en banc)). “If no statutory authorization
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exists for a particular sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated.” Id. (quoting
Catt, supra
at 1160).
On appeal, the Commonwealth contends that the General Assembly
possesses the authority to create laws and define the terms within those laws.
Regarding the statutory scheme for DUI, the Commonwealth emphasizes that
Section 3806(a) demonstrates the legislature’s intent for acceptance of ARD
to count as a prior offense for purposes of DUI sentencing. The
Commonwealth acknowledges Alleyne v. United States, 570 U.S. 99,
133
S.Ct. 2151,
186 L.Ed.2d 314 (2013) and Apprendi v. New Jersey,
530 U.S.
466,
120 S.Ct. 2348,
147 L.Ed.2d 435 (2000), which held that any facts
enhancing a sentence must be submitted to a fact finder and proven beyond
a reasonable doubt. Nevertheless, the Commonwealth relies on
Almendarez-Torres v. United States,
523 U.S. 224,
118 S.Ct. 1219,
140
L.Ed.2d 350 (1998), for the proposition that the fact of a prior conviction is
not an element that must be proven beyond a reasonable doubt for enhanced
statutory penalties to apply. The Commonwealth maintains that the General
Assembly “has equated acceptance of ARD for a first-time DUI with a prior
conviction for DUI, [and] it is not a fact that needs to be proved beyond a
reasonable doubt pursuant to Almendarez-Torres.” (Commonwealth’s Brief
at 23).
The Commonwealth argues that this Court must overrule Chichkin
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because “prior acceptance [of ARD] is clearly a sentencing factor outside the
purview of Alleyne, as has been the historical viewpoint in prior Pennsylvania
appellate decisions on the matter.” (Id. at 30). Contrary to the holding in
Chichkin, the Commonwealth explains that Pennsylvania’s ARD protocols
contain numerous, effective due process protections. Procedurally, “ARD
placement is a structured, defined, and protected process,” which “maintains
the entire panoply of Constitutional rights attendant to a criminal
prosecution.” (Id. at 35). Based upon the foregoing, the Commonwealth
concludes that a defendant’s voluntary acceptance of ARD must be recognized
as a “prior conviction” for recidivist DUI sentencing purposes. We agree.
“Section 3804 [of the Motor Vehicle Code] sets forth mandatory
minimum sentence terms for first, second, and subsequent DUI offenses.”
Chichkin, supra at 963. Section 3806 governs “prior offenses” 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.A. § 3806(a)(1). “Thus, a defendant who had accepted ARD for a
prior DUI offense is considered a second-time offender under the Section 3804
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penalty provisions.” Chichkin, supra at 963.
“[T]he essence of the seriousness of the crime of drunk driving is that
it is a life-threatening act.” Commonwealth v Lutz, 508 Pa. 297, 312-13,
495 A.2d 928, 936 (1985). “[S]ociety, for its own protection, has an interest
in carrying out the penalties prescribed by the legislature for drunk driving….”
Id. at 307,
495 A.2d at 933. ARD is one such penalty:
The primary purpose of this program is the rehabilitation of
the offender; secondarily, the purpose is the prompt
disposition of charges, eliminating the need for costly and
time-consuming trials or other court proceedings. These
rules contemplate that ordinarily the defendants eligible for
the ARD program are first offenders who lend themselves to
treatment and rehabilitation rather than punishment and
that the crime charged is relatively minor and does not
involve a serious breach of the public trust. The program is
intended to encourage offenders to make a fresh start after
participation in a rehabilitative program and offers them the
possibility of a clean record if they successfully complete the
program.
Pa.R.Crim.P. Ch. 3, Explanatory Comment.
“ARD is not some trivial mechanism for avoiding a conviction and
expunging an arrest record.” Whalen v. Com., Dept. of Transp., Bureau
of Driver Licensing, 613 Pa. 64, 75-76,
32 A.3d 677, 684 (2011). “Rather,
it is an intensive process involving personal assessments, safety classes, and
addiction treatment if necessary, all under court supervision….”
Id. at 76,
32
A.3d at 684.
[A] defendant [may] be placed in the ARD program only
after he or she has requested acceptance into the program,
has indicated an understanding of the proceedings, and has
accepted and agreed to comply with the conditions imposed
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by the trial court.
Commonwealth v. Scheinert, 519 A.2d 422, 428 (Pa.Super. 1986), appeal
denied,
517 Pa. 606,
536 A.2d 1330 (1987). See also Pa.R.Crim.P. 300-320
(governing ARD proceedings generally).
“Although ARD is legally distinct from a conviction, the General
Assembly has chosen to equate ARD with a conviction under a variety of
circumstances.” Whalen, supra at 71,
32 A.3d at 681. “For example, ARD
may be statutorily construed as a conviction for purposes of computing
sentences on subsequent convictions.”
Id. (internal quotation marks
omitted).
Regarding sentencing enhancements generally, “any 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, supra at 103,
133
S.Ct. at 2155,
186 L.Ed.2d at ___. Both Alleyne and Apprendi, however,
“recognized a narrow exception to this general rule for the fact of a prior
conviction.”
Id. at 111 n.1,
133 S.Ct. at 2160 n.1,
186 L.Ed.2d at ___ n.1.
[P]rior commission of a serious crime … is as typical a
sentencing factor as one might imagine. Perhaps reflecting
this fact, the lower courts have almost uniformly interpreted
statutes (that authorize higher sentences for recidivists) as
setting forth sentencing factors, not as creating new crimes
(at least where the conduct, in the absence of the
recidivism, is independently unlawful).
Almendarez-Torres, supra at 230,
118 S.Ct. at 1224,
140 L.Ed.2d at ___
(internal citations omitted).
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This Court evaluated many of these principles in Chichkin, the relevant
facts of which are as follows:
Chichkin was arrested and charged with DUI for an incident
that occurred on December 8, 2017. His case proceeded to
a trial in Municipal Court on May 18, 2018, at which time the
court found him guilty of two counts of DUI—general
impairment under 75 Pa.C.S.A. § 3802(a)(1). On June 25,
2018, Chichkin was sentenced to a term of 30 days to six
months’ imprisonment, with two months’ concurrent
probation. The 30-day mandatory minimum was imposed
under 75 Pa.C.S.A. § 3804(b)(2)(i), because Chichkin had
accepted ARD for a prior DUI offense in 2013.
Chichkin, supra at 961 (internal footnote omitted).
On appeal, this Court addressed whether Section 3806’s reference to
ARD as a “prior offense” violated the constitutional protections dictated by
Alleyne. The Chichkin Court determined that prior acceptances of ARD could
not be categorized as “prior convictions” exempt from the holdings of
Apprendi and Alleyne. See id. at 967. Further, the Court announced that
“[t]he ‘fact’ that a defendant accepted ARD does not carry with it the
procedural safeguards of a traditional conviction following a judge or jury
trial.”
Id. Consequently, Chichkin held that the “portion of 75 Pa.C.S. §
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 (internal
footnote omitted). The Court went on to state: “[I]f 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
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defendant actually committed the prior DUI offense.” Id. at 970-71 (internal
footnote omitted).
Instantly, Appellee was involved in two DUI incidents. The first incident
occurred in July 2019 for which Appellee was admitted into the ARD program.
The second incident occurred a month later in August 2019. The parties
dispute the proper sentence for the second incident. Regarding the August
2019 charges, the trial court denied the Commonwealth’s request to prove
beyond a reasonable doubt that Appellee had previously accepted ARD. The
court subsequently sentenced Appellee as a first time DUI offender for the
August 2019 incident. The court reasoned as follows:
[The c]ourt is bound by the precedent set by the
Pennsylvania Superior Court in Chichkin, and the Chichkin
ruling has been applied in subsequent Superior Court cases.
In none of the subsequent cases where the defendants’
sentences were remanded to the trial court, did the Superior
Court remand for an evidentiary hearing where the trial
court could make a finding the first offense occurred beyond
a reasonable doubt and sentence the defendants based on
a second offense. Each case was remanded for sentencing
on a first offense basis.
(Trial Court Opinion at 5) (internal citations omitted).
Although the trial court relied on Chichkin to support its determination,
we emphasize that our legislature has “statutorily construed [ARD] as a
conviction for purposes of computing sentences on subsequent convictions.”
See Whalen, supra at 71,
32 A.3d at 681. A defendant receives ARD only
after he has requested acceptance into the program, indicated an
understanding of the proceedings, and agreed to comply with the conditions
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imposed by the trial court. See Scheinert, supra. See also Pa.R.Crim.P.
312, 313. The entire assessment process for the ARD program is conducted
under court supervision. See
Whalen, supra.
The fact that ARD will constitute a prior offense for purposes of
sentencing on a second or subsequent DUI conviction is written directly into
Section 3806, and a defendant is presumed to be aware of the relevant
statute. See Commonwealth v. Robertson, 186 A.3d 440, 446 (Pa.Super.
2018), appeal denied,
649 Pa. 179,
195 A.3d 852 (2018) (reiterating that
individuals are presumed to know statutory law and developments in case
law). We also note that the exception established in Almendarez-Torres
remains in place. See
Alleyne, supra. Significantly, we disagree with the
conclusion in Chichkin that a defendant’s prior acceptance of ARD cannot be
categorized as a “prior conviction” exempt from the holdings in Apprendi and
Alleyne. Although the “fact” that a defendant accepted ARD does not carry
the same procedural safeguards of a conviction following a bench or jury trial,
we deem the safeguards in place to be adequate. We emphasize that Section
3806(a) appropriately notifies a defendant that earlier ARD acceptance will be
considered a prior DUI offense for future sentencing purposes.
Moreover, a defendant voluntarily enters the ARD program to avoid
prosecution on a first DUI charge, and he is free to reject participation in the
program if he wishes to avail himself of his full panoply of constitutional rights.
These factors of notice and voluntary ARD acceptance mitigate the due
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process concerns advanced in Chichkin. Thus, a defendant’s prior acceptance
of ARD fits within the limited “prior conviction” exception set forth in Apprendi
and Alleyne. See Almendarez-Torres, supra.
Accordingly, we expressly overrule Chichkin. We now hold that the
portion of Section 3806(a), which equates prior acceptance of ARD to a prior
conviction for purposes of imposing a Section 3804 mandatory minimum
sentence, passes constitutional muster. Thus, the trial court erred in
sentencing Appellee as a first-time DUI offender without considering his
acceptance of ARD for a prior DUI. Accordingly, we vacate the judgment of
sentence and remand this case for further proceedings consistent with this
opinion. See Infante, supra.
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Judgment of sentence vacated. Case remanded. Jurisdiction is
relinquished.
President Judge Panella, Judge Bowes and Judge McLaughlin join this
opinion.
Judge Stabile files a concurring opinion.
Judge McCaffery files a dissenting opinion, in which President Judge
Emeritus Bender, Judge Lazarus and Judge Kunselman join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2022
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