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2023 PA Super 196
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ROBERT CHARLES HIND : No. 1787 EDA 2022
Appeal from the Judgment of Sentence Entered June 3, 2022
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000173-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ALEXANDER JOSEPH WIESENBERG : No. 1789 EDA 2022
Appeal from the Judgment of Sentence Entered June 3, 2022
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000146-2021
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY NICHOLS, J.: FILED OCTOBER 10, 2023
In these two appeals,1 the Commonwealth appeals from judgments of
sentence imposed after Robert Charles Hind and Alexander Joseph
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* Former Justice specially assigned to the Superior Court.
1 We address both these appeals together, pursuant to Pa.R.A.P. 513. These
cases involve not only the same issue, but the appeals were filed by the same
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Wiesenberg (collectively, Appellees) each pled guilty to driving under the
influence (DUI) of alcohol—highest rate. In both appeals, the Commonwealth
argues that the trial court should have treated Appellees’ prior acceptance of
Accelerated Rehabilitative Disposition (ARD) for a DUI charge as a prior
offense for sentencing purposes in accordance with Commonwealth v.
Richards, 284 A.3d 214 (Pa. Super. 2022) (Richards I) (en banc), appeal
granted,
294 A.3d 300 (Pa. 2023) (Richards II) (per curiam order), and
Commonwealth v. Moroz,
284 A.3d 227 (Pa. Super. 2022) (en banc). After
careful review, we affirm the judgments of sentence.
The relevant facts and procedural history underlying each appeal is as
follows:
Commonwealth v. Hind - 1787 EDA 2022
Hind was arrested for DUI and related traffic offenses following a vehicle
stop on October 7, 2020. The Commonwealth filed bills of information
charging Hind with DUI—general impairment (second offense) and DUI—
highest rate of alcohol (second offense).2 On February 17, 2022, Hind entered
a guilty plea to DUI—highest rate of alcohol.
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assistant district attorney and both judgments of sentence were imposed by
the same trial court judge. The briefs for the Commonwealth and the trial
court opinions in both appeals are virtually identical. See, e.g.,
Commonwealth v. Chichkin, 232 A.3d 959, 961 n.1 (Pa. Super. 2020)
(addressing related appeals in a single opinion).
2 75 Pa.C.S. §§ 3802(a)(1) and (c), respectively.
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On June 3, 2022, the trial court conducted a sentencing hearing. At that
time, the Commonwealth argued that Hind’s DUI conviction should be
considered a second offense because he had completed ARD for a DUI charge
within the previous ten years. N.T. Sentencing Hr’g (Hind), 6/3/22, at 4.
Ultimately, the trial court concluded that it would consider Hind a first-time
offender for sentencing purposes in accordance with Chichkin. See
Chichkin, 232 A.3d at 969-71 (holding that 75 Pa.C.S. § 3806(a), which
classified ARD as a prior offense in a DUI prosecution, violates due process),
overruled by Richards I,
284 A.3d at 220, and Moroz,
284 A.3d at 233.
Therefore, the trial court sentenced Hind to a term of 72 hours to six months’
incarceration, the mandatory minimum sentence for DUI—highest rate (first
offense), plus mandatory fines and court costs. See 75 Pa.C.S. § 3804(c)(1).
The Commonwealth filed a timely notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) statement. The trial court filed a Rule 1925(a) opinion
addressing the Commonwealth’s claim.
Commonwealth v. Wiesenberg - 1789 EDA 2022
Wiesenberg was arrested for DUI and related traffic offenses following
a vehicle stop on October 21, 2020. The Commonwealth filed bills of
information charging Appellee with, inter alia, DUI—general impairment
(second offense) and DUI—highest rate of alcohol (second offense). On
February 17, 2022, Appellee entered a guilty plea to DUI—highest rate of
alcohol.
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On June 3, 2022, the trial court conducted a sentencing hearing. At that
time, the Commonwealth argued that Appellee’s DUI conviction should be
considered a second offense because he had a prior DUI-related ARD within
the previous ten years. N.T. Sentencing Hr’g, 6/3/22 (Wiesenberg), at 6-7.
Ultimately, just as in Hind, the trial court concluded that Wiesenberg would
be considered a first-time offender for sentencing purposes in accordance with
Chichkin. Therefore, the trial court sentenced Appellee to a term of 72 hours
to six months’ incarceration plus mandatory fines and court costs.
The Commonwealth filed a timely notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) statement. The trial court filed a Rule 1925(a) opinion
addressing the Commonwealth’s claim.3
Analysis
In both appeals, the Commonwealth raises the following issue for our
review:
Whether the sentence imposed is an illegal sentence, when
[Appellee’s] acceptance of ARD for DUI should qualify as a prior
offense for the purposes of the DUI sentencing enhancement
provisions at 75 Pa.C.S. § 3803, 75 Pa.C.S. § 3804, and 75
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3 While this appeal was pending, on January 6, 2023, James R. Elliott, Esq.,
filed a praecipe to enter his appearance on behalf of Wiesenberg. On April 4,
2023, Wiesenberg sent this Court a pro se correspondence, in which he
indicated that he may have been abandoned by counsel. This Court entered
an order on May 4, 2023, directing the trial court to determine whether
Attorney Elliott abandoned Wiesenberg and, if necessary, to take further
action as required to protect Wiesenberg’s rights. Order, 1789 EDA 2022,
5/4/23. The trial court, after holding a hearing, appointed Matthew J. Galasso,
Esq., to represent Wiesenberg. Attorney Galasso subsequently filed an
appellate brief on Wiesenberg’s behalf.
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Pa.C.S. § 3806, contrary to the holding of Commonwealth v.
Chichkin, 232 A.3d 959 (Pa. Super. 2020)?
Commonwealth’s Brief (Hind) at 4; Commonwealth’s Brief (Wiesenberg) at
4 (formatting altered).
In its sole issue on appeal, the Commonwealth contends that the trial
court imposed illegal sentences when it imposed the mandatory minimum
sentence for a first DUI offense. In support, the Commonwealth reiterates
that Hind entered the ARD program in 2014, and Wiesenberg entered the ARD
program in 2021, both of which were during the ten-year lookback period for
DUI offenses. Commonwealth’s Brief (Hind) at 14-15; Commonwealth’s Brief
(Wiesenberg) at 14-15. Therefore, the Commonwealth concludes that in
accordance with Richards I and Moroz, we should vacate Appellees’
respective sentences and remand for resentencing.
In reviewing the Commonwealth’s claim, we are guided by the following
principles:
Issues relating to the legality of a sentence are questions of law.
When the legality of a sentence is at issue, our standard of review
over such questions is de novo and our scope of review is plenary.
If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence
must be vacated.
Commonwealth v. Ramos, 197 A.3d 766, 768-69 (Pa. Super. 2018)
(citations omitted and formatting altered).
As noted previously, the trial court sentenced Appellees as first-time
offenders based on this Court’s decision in Chichkin. However, while the
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instant appeal was pending, an en banc panel of this Court overruled Chichkin
and held that, “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.” Richards I, 284 A.3d at 220; see
also Moroz,
284 A.3d at 233 (same).4,5
Following Richards I and Moroz, this Court has held that a defendant
who completed the ARD program for a DUI offense within the ten-year
lookback period of Section 3806 should be treated as a second-time offender
for purposes of DUI sentencing. See Commonwealth v. Hummel, 295 A.3d
719, 721 (Pa. Super. 2023) (vacating the defendant’s judgment of sentence
and remanding for resentencing); see also Commonwealth v. Scheppard,
2261 EDA 2022,
2023 WL 4417518, at *2-3 (Pa. Super. filed July 10, 2023)
(unpublished mem.) (applying Hummel and vacating a defendant’s judgment
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4 As noted above, our Supreme Court has granted an appeal from this Court’s
decision in Richards I, on the question of whether the sentencing scheme set
forth in the DUI statute regarding the classification of acceptance of ARD is
constitutional. See Richards II, 294 A.3d at 300-01. However, because our
Supreme Court has not yet decided this issue, we remain bound by existing
precedent. See Commonwealth v. Reed,
107 A.3d 137, 143 (Pa. Super.
2014) (stating that we are bound by existing precedent until such time it is
overturned).
5 We note that the Pennsylvania Supreme Court recently addressed this
Court’s application of Chichkin in Commonwealth v. Verbeck,
290 A.3d
260 (Pa. 2023). However, because the Verbeck Court was equally divided,
we can derive no precedential value from that decision. See Commonwealth
v. Mosley,
114 A.3d 1072, 1082 n.11 (Pa. Super. 2015) (stating that “[w]hen
a judgment of sentence is affirmed by an equally divided court . . . no
precedent is established and the holding is not binding on other cases”
(citation omitted)).
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of sentence and remanding for resentencing for a second-offense DUI after
the defendant completed the ARD program for a DUI offense within the ten-
year lookback).
Our Supreme Court has mandated that all Pennsylvania courts,
appellate and trial courts alike, are duty bound to apply the law in effect at
the time of a decision. See Behers v. Unemployment Compensation Bd.
of Review, 842 A.2d 359, 367 (Pa. 2004) (explaining that it is the duty of
the “courts below . . . to effectuate the decisional law of [our Supreme]
Court”); see also Smith v. A.O. Smith Corp.,
270 A.3d 1185, 1194 (Pa.
Super. 2022) (noting that trial courts are bound by existing precedent), appeal
denied,
283 A.3d 1247 (Pa. 2022); Commonwealth v. Seskey,
170 A.3d
1105, 1109 (Pa. Super. 2017) (holding that this Court is bound to follow our
Supreme Court’s decisional law). Further, litigants are entitled to the benefit
of changes in the law that occur before the judgment is final.
Commonwealth v. Chesney,
196 A.3d 253, 257 (Pa. Super. 2018); see
also Hummel, 295 A.3d at 721 (applying Chesney to conclude that the
Commonwealth benefited from a change in the law that occurred while the
Commonwealth's appeal was pending).
Here, in both cases, the record reflects that at sentencing, the
Commonwealth acknowledged that the trial court had no choice but to
sentence Appellees as first-time DUI offenders pursuant to Chichkin, which
was in effect at the time of both sentencing hearings. See N.T. Sentencing
Hr’g (Hind), 6/3/22, at 7; N.T. Sentencing Hr’g (Wiesenberg), 6/3/22, at 6.
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However, the Commonwealth did not request that the trial court stay
Appellees’ sentences while the instant appeals were pending. The
Commonwealth also made the following argument:
[T]he Commonwealth does believe that there is an argument
against [sentencing Appellee as a first-time DUI offender], and
that argument is currently pending in [the appellate courts]. We
do believe that this is something that could potentially change,
and we do believe it has a significant merit in order to allow the
Commonwealth to see these DUI offenses with an underlying ARD
offense prior to it being graded in the future as a subsequent . . .
DUI. However, in this case, it would be a second [offense]. So,
Your Honor I do believe that at this point in time although the
Commonwealth believes that it should be graded as a second
offense DUI the case law does not allow for that. However, that
may change given the pending cases that are up on [a]ppeal.
N.T. Sentencing Hr’g (Hind), 6/3/22, at 7-8.6
In his brief, Hind notes that he has finished serving his sentence for DUI
in its entirety and is no longer under the supervision of Pike County Probation
and Parole Department. Hind’s Brief at 6. The record further reflects that
Hind has paid the fines, costs, and fees associated with this case in their
entirety. See Trial Ct. Criminal Docket at CP-52-CR-0000173-2021 (Hind);
R.R. at 13a.7 Therefore, Hind argues that “it would be unjust to reopen this
matter as Chichkin was controlling during the plea, sentencing, and
completion of the sentence.” Hind’s Brief at 6. Likewise, Wiesenberg states
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6The Commonwealth made a virtually identical argument in Wiesenberg.
N.T. Sentencing Hr’g (Wiesenberg), 6/3/22, at 6-7.
7 We may refer to the reproduced record for the parties’ convenience.
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that he completed serving his sentence in its entirety, is no longer under the
supervision of Pike County Probation and Parole Department, and has paid all
fines, fees, and costs associated with his conviction. See Trial Ct. Criminal
Docket at CP-52-CR-0000146-2021 (Wiesenberg); Wiesenberg’s Brief at 20.
Wiesenberg argues that being subject to resentencing would be a violation of
his rights against double jeopardy, as he is entitled to an expectation of finality
in his sentence. Id. at 19.
Initially, we note that although Hummel and Scheppard8 involved
circumstances similar to the instant case, neither of those decisions addressed
double jeopardy. Therefore, we conclude that the holdings in Hummel and
Scheppard are distinguishable from the instant appeal.9
The Double Jeopardy Clause in the Fifth Amendment to the United
States Constitution and Article I, Section 10 of the Pennsylvania Constitution
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8 Scheppard involved a nearly identical factual and procedural posture as the
instant appeals, as these appeals and Scheppard are Commonwealth appeals
from judgments of sentence entered by the Court of Common Pleas of Pike
County in which the trial court sentenced prior participants in the ARD program
as first-time offenders pursuant to Chichkin. See Scheppard, 2023 WL
4417518 at *1. We further acknowledge that there may be other cases
pending before this Court raising similar issues and with similar procedural
postures. Those cases will be addressed in separate dispositions.
9 The defendant in Hummel did not file an appellate brief with this Court in
response to the Commonwealth’s appeal. Pursuant to this Court’s disposition,
the trial court in Hummel re-sentenced the defendant on June 19, 2023.
Neither party appealed from the trial court’s June 19, 2023 judgment of
sentence. See Court of Common Pleas of Adams County Criminal Docket at
CP-01-CR-0000309-2022.
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provide that no person may be “twice put in jeopardy” for the same offense.
U.S. Const., amend. V; Pa. Const. Art. I, § 10. The Double Jeopardy Clause
“protects a defendant in a criminal proceeding against multiple punishments
or repeated prosecutions for the same offense.” United States v. Dinitz,
424 U.S. 600, 606 (1976) (citations and footnote omitted). Our Supreme
Court has held that a sentence that exposes a defendant to double jeopardy
is an illegal sentence. Commonwealth v. Hill,
238 A.3d 399, 411 (Pa. 2020).
However, the protection against double jeopardy does not attach until
after the defendant has a legitimate expectation of finality in the sentence.
Commonwealth v. Kunish, 602 A.2d 849, 852-53 (Pa. 1992). This Court
has explained that “[w]here a sentence is statutorily subject to appeal by the
defendant or the Commonwealth, the defendant has no legitimate expectation
of finality in his sentence and double jeopardy protection does not attach.”
Commonwealth v. Minnis,
83 A.3d 1047, 1050-51 (Pa. Super. 2014) (en
banc) (citations omitted); see also Commonwealth v. Postell,
693 A.2d
612, 614-16 (Pa. Super. 1997) (finding no violation of the defendant’s double
jeopardy rights when the trial court imposed a longer minimum sentence
based on the Commonwealth’s post-sentence motion). However, a defendant
has an expectation of finality in his sentence once an appeal has concluded or
when the period in which an appeal can be filed has expired. See generally
Commonwealth v. Jones,
554 A.2d 50, 52 (Pa. 1989).
In Hess, an en banc panel of this Court considered the double jeopardy
implications of resentencing a defendant who had already finished serving his
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original sentence. Commonwealth v. Hess, 502 A.2d 707, 709 (Pa. Super.
1985) (en banc). In that case, the defendant pled guilty to one count of DUI.
Id. at 708. At sentencing, the Commonwealth argued that the defendant had
been convicted of a previous DUI offense during the statutory lookback period
and was therefore subject to a higher mandatory minimum sentence.
Id.
Despite the Commonwealth’s arguments, the trial court “refused to consider
any prior convictions of [the defendant] because the criminal information did
not allege any prior convictions.”
Id.
On appeal, the Hess Court concluded that because the trial court failed
to properly apply the mandatory minimum sentence statute, the defendant’s
sentence was illegal. Id. at 709. Further, the Court explained that the DUI
statute in effect at the time of the defendant’s sentencing permitted the
Commonwealth to appeal from a judgment of sentence if the mandatory
minimum sentence was not properly imposed.
Id. at 710. The Court
ultimately concluded that in a situation where the trial court imposes an illegal
judgment of sentence, and the sentencing statute at issue grants the
Commonwealth the right to appeal, it “leaves open the possibility of the
original sentence being vacated because it is not in compliance with the
statute and the proper, legislatively mandated, increased minimum sentence
being imposed.”
Id. at 711. Therefore, this Court vacated the defendant’s
illegal judgment of sentence and remanded the case for re-sentencing, even
though the defendant had already served the underlying sentence in its
entirety.
Id.
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In Commonwealth v. Sojourner, 518 A.2d 1145 (Pa. 1986), our
Supreme Court granted review in two cases where the defendants had been
convicted and sentenced for DUI, both of whom were first-time DUI offenders.
Sojourner,
518 A.2d at 1146. The Philadelphia Municipal Court imposed a
sentence on each defendant of one year of probation on the condition that the
defendants receive treatment for alcoholism.10
Id. Ultimately, the Sojourner
Court concluded that because the sentencing provision set forth in the DUI
statute was mandatory, the trial court was precluded from exercising its
discretion to impose a sentence that was less than the statutory minimum.
Id. at 1148. The Court then explained that “[t]he United States Supreme
Court has held that where punishment pursuant to a statute is clear and
explicit, principles of double jeopardy are not violated where that statute
permits authorities to obtain an increased sentence on appeal.”
Id. at 1149
(citation omitted). Therefore, to the extent resentencing on the DUI offenses
could potentially affect the defendants’ double jeopardy rights, the Sojourner
Court concluded that it was “amply apparent that resentencing pursuant to
[the DUI sentencing statute] does not violate federal double jeopardy
standards[]” or the double jeopardy guarantee included in the Pennsylvania
constitution.
Id. at 1149 & n.6 (citations omitted).
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10 The mandatory minimum sentence in effect at the time the Sojourner
defendants were sentenced required a sentencing court to impose a term of
imprisonment of not less than forty-eight consecutive hours and a fine of not
less than $300.00. 75 Pa.C.S. § 3731(e)(1)(i) (repealed eff. Feb. 1, 2004).
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Here, unlike the sentence in Hess, it is undisputed that Appellees’
sentences were legal at the time they were imposed. Cf. Hess, 502 A.2d at
709 (noting that the defendant’s sentence was patently illegal at the time it
was imposed because the trial court did not apply the mandatory minimum
sentence statute).11 Further, unlike the defendants in Sojourner, both
Appellees have completed serving their sentences. See Sojourner,
518 A.2d
at 1146 (reflecting that the defendants had received a suspended sentence,
which had the practical effect of staying the sentence until the defendants
completed alcohol treatment). Therefore, we conclude that both Hess and
Sojourner are distinguishable.
Additionally, our research has not revealed any Pennsylvania appellate
court decisions vacating a sentence that was legal at the time it was imposed
and remanding for resentencing because of changes in case law that were not
in effect until after the defendant completed serving the underlying sentence
in its entirety. Cf. Hess, 502 A.2d at 709 (remanding for resentencing despite
the fact that the defendant had already served sentence in its entirety because
the trial court imposed an illegal sentence that was not authorized by current
authority).
When confronted with an issue not yet decided “by the courts of this
Commonwealth, we may turn to the courts of other jurisdictions. . . . for
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11 We do note, however, that the current DUI sentencing statute does permit
the Commonwealth to appeal from a judgment of sentence that does not
comply with the DUI sentencing scheme. See 75 Pa.C.S. § 3804(h).
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guidance to the degree we find them useful and not incompatible with
Pennsylvania law.” Commonwealth v. Manivannan, 186 A.3d 472, 483-84
(Pa. Super. 2018) (citation omitted and formatting altered).
In Massachusetts, appellate courts have considered the following factors
when determining whether a defendant had an expectation of finality in a
sentence: (1) whether the underlying sentence was legal or illegal; (2) the
timeliness of the motion to revise or revoke the sentence; (3) whether a
motion to stay the execution of sentence pending appeal has been filed; and
(4) whether the sentence has already been fully served. Commonwealth v.
Ellsworth, 146 N.E.3d 1121, 1127 (Mass. 2020). We note, however, that
Massachusetts case law prohibits resentencing a defendant who has already
served the entirety of the original underlying sentence. Commonwealth v.
Scott,
22 N.E.3d 171, 173-74 (Mass. App. 2015); see also Commonwealth
v. Parillo,
14 N.E.3d 919, 921 (Mass. 2014) (stating that a judge may not
resentence the defendant on convictions “for which the defendant has already
served his sentence, because any such resentencing would result in an
increase in punishment in violation of double jeopardy principles” (citation
omitted)).
Similarly, in New York, criminal defendants have a legitimate
expectation of finality in a completed sentence; however, that expectation
does not apply until either an appeal has been completed or the time for filing
an appeal has expired. See People v. Williams, 925 N.E.2d 878, 891 (N.Y.
2010).
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In Pennsylvania, we recognize that Section 3804(h) of the Motor Vehicle
Code provides the Commonwealth with the authority to appeal from a
judgment of sentence that does not comply with the applicable mandatory
minimum sentence provisions. See 75 Pa.C.S. § 3804(h). However, in the
instant case, at the time the trial court imposed its judgment of sentence on
June 3, 2022, Chichkin remained in effect, and would remain so until October
4, 2022, when an en banc panel of this Court overturned Chichkin in
Richards I. We acknowledge that Appellees’ original sentences that were
legally imposed on June 3, 2022, are now inconsistent with this Court’s
October 4, 2022, en banc decision, Richards I, which is pending review
before our Supreme Court. See Richards II, 294 A.3d at 300-01. However,
Appellees have completed serving their sentences. Indeed, the record reflects
that Appellees have served their respective sentences in their entirety, are no
longer under the supervision of the Pike County Probation and Parole
Department, and have paid all fines, fees, and costs associated with their
respective convictions.
Under the unique and limited circumstances in this case, we conclude
that because Appellees served their entire sentences for their underlying DUI
convictions, and the judgments of sentence imposed in their respective cases
were legal at the time they were imposed, vacating Appellees’ judgments of
sentence and remanding for resentencing would violate Appellees’
constitutional protections against double jeopardy.
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In reaching this conclusion, we are fully aware of the Pennsylvania case
law which states that there is no expectation of the finality of sentence for
double jeopardy purposes in cases where the Commonwealth has the
statutory right to appeal from the judgment of sentence. See Minnis, 83
A.3d at 1050-51; 75 Pa.C.S. § 3804(h). Instantly, however, given the
pendency of appellate review for certain Chichkin related cases, the
Commonwealth, at the time of the June 3, 2022 sentencing of Appellees,
chose not to request the trial court to stay Appellees’ sentences. Accordingly,
the trial court properly imposed its sentences consistent with then-controlling
case law, which it is duty bound to do, and Appellees completed serving their
sentences. As we have discussed, other jurisdictions, under similar
circumstances, have determined that the interests of justice are best served
by concluding that a defendant may not be resentenced after serving the
underlying sentence in its entirety. These cases although not binding, are
instructive for consideration by our courts. See Scott, 22 N.E.3d at 173-74;
Williams,
925 N.E.2d at 891.
For these reasons, under current Pennsylvania law, we hold that
instantly, Appellees have a legitimate expectation of the finality of their
completed sentences, which were legal and proper when imposed by the trial
court. Cf. Sojourner, 518 A.2d at 1146-49. Under these circumstances,
even if the Commonwealth had the statutory right to appeal, we conclude that
a new sentence would violate the constitutional protections guaranteed to
Appellees against double jeopardy under the United States Constitution and
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the Pennsylvania Constitution. See U.S. Const., amend. V; Pa. Const. Art. I,
§ 10. Accordingly, we affirm.
Judgments of sentence affirmed. Jurisdiction relinquished.
Date: 10/10/2023
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