Summary
holding that a prior acceptance of ARD in a DUI case is a prior offense, and not unconstitutional in license suspension civil proceedings
Summary of this case from R.W. v. Dep't of Educ.Opinion
282 MDA 2021 J-E01003-22
10-04-2022
COMMONWEALTH OF PENNSYLVANIA Appellant v. RICHARD ALEKSANDR MOROZ Appellee
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
KING, J.
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. 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 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
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 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 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 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 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
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).
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 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 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 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.
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.
CONCURRING OPINION
STABILE, J.
I concur fully in the Majority's decision to overrule this Court's prior panel decision in Commonwealth v. Chichkin, 232 A.3d 959 (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 prior 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 within its prerogative to increase punishment for re-offense of this serious crime. Plain and simple, drunk driving kills people. I write separately, however, to address the statement in Chichkin that, based upon Alleyne, "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 attempted to do so here by suggesting that a "blind judge" separately hear evidence on the prior DUI charge. The trial court ultimately rejected this suggestion and, relying upon Chichkin, sentenced the defendant as a first-time offender. As well-intentioned as the Commonwealth's attempt may have been to address the Alleyne problem at sentencing, its proposed solution would not have solved 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 or a blind judge, without the benefit of Section 3806(a), does not satisfy a defendant's right to have all facts that increase the penalty for a crime determined by a jury.
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-500dui-arrests-in-pennsylvania/
Alleyne v. United States, 570 U.S. 99 (2013).
Alternatively, I also have serious concerns about any attempt 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, 156 A.3d 1114, 1128 (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.
DISSENTING OPINION
McCAFFERY, J.
The Majority's decision to overrule Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), may be summarized as follows: (1) DUI is a serious offense; (2) ARD is not merely a "trivial mechanism" to avoid a conviction, but rather, an intensive process under court supervision; (3) while acceptance of ARD is not a criminal conviction, it includes procedural safeguards that are "adequate" enough; (4) the legislature has decided that ARD should constitute a conviction for purposes of the DUI recidivism statute; (5) acceptance of ARD is voluntary, and a defendant is presumed to know the recidivism statute treats their ARD acceptance as a first conviction; thus, (6) "notice and voluntary ARD acceptance mitigate the due process concerns advanced in Chichkin." Majority Op. at 7-8, 10-12 (citation omitted). Because I conclude the Majority's decision does not address Chichkin's holding that 75 Pa.C.S. § 3806(a) is constitutionally deficient in light of Alleyne v. United States, 570 U.S. 99 (2013), I strongly dissent.
Preliminarily, I am compelled to emphasize that the Chichkin decision does not in any way imply that DUI is not a serious offense; indeed, all criminal offenses are serious. That said, the constitutionality of a criminal statute is not judged on a sliding scale based upon the seriousness of the crime. Chichkin also does not imply, as the Majority suggests, that acceptance of ARD is simply a "trivial mechanism." See Majority Op. at 7, citing Whalen v. Com., Dept. of Transp. Bureau of Driver Licensing, 32 A.3d 677, 684 (Pa. 2011). However, as the Majority agrees, ARD is "legally distinct from a [criminal] conviction[,]" and "does not carry the same procedural safeguards of a conviction following a bench or jury trial[.]" Id. at 8, 11, citing Whalen, 32 A.3d at 681. See Chichkin, 232 A.3d at 967-68 (noting ARD participant "need not admit his or her guilt, and the Commonwealth is not required to prove the defendant's culpability beyond a reasonable doubt").
The Majority relies on Whalen throughout its opinion presumably to demonstrate the Pennsylvania Supreme Court has approved of the Pennsylvania Legislature's designation of ARD as a prior conviction for the purpose of recidivist sentencing. See Majority's Op. at 7-8, 10-11. However, its reliance on Whalen is misplaced for two reasons. First, Whalen was decided in 2011, before the United States Supreme Court issued its Alleyne decision in 2013; thus, the Court did not consider or address the concerns of Alleyne. Second, Whalen concerned the propriety of a requirement that a repeat DUI offender must install an ignition interlock system on their vehicles prior to the restoration of their license - a requirement which is not the same as mandatory minimum criminal sentence. See Whalen, 32 A.3d at 678-79.
Although the Majority summarizes Chichkin, it fails to address Chichkin's ultimate determination that Section 3806 violates the holding of Alleyne - "[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. Rather, the Majority bypasses an Alleyne discussion by concluding the following: The fact of a prior conviction, as delineated by the Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224 (1998), remains an exception to Alleyne, and the Pennsylvania Legislature has "statutorily construed [ARD to be] a conviction for purposes of computing sentences on subsequent convictions." Majority Op. at 10-11 (quotation marks omitted), citing Whalen, 32 A.3d at 681. Although the acceptance of ARD "does not carry the same procedural safeguards of a conviction following a bench or jury trial, . . . the safeguards in place [are] adequate." Majority Op. at 11 (emphasis added). When a defendant voluntarily accepts ARD, they are "presumed to be aware" of Section 3806, which equates their acceptance of ARD to a prior conviction for future sentencing purposes. Id. Thus, the Majority pronounces that Section 3806(a) "passes constitutional muster." Id. at 12.
The Majority's decision in untenable. I begin by emphasizing that Alleyne "effected a sea change in this area of the law." Commonwealth v. Hopkins, 117 A.3d 247, 257 (Pa. 2015). As the Pennsylvania Supreme Court explained:
[I]n Alleyne, the United States Supreme Court extended its Apprendi line of cases, overturned its prior decisions . . . and concluded that, when a factual determination is necessary for the imposition of a mandatory minimum sentence, the facts must be considered an element of a new, distinct aggravated offense. Moreover, as an element of the offense, the factual determination must be specifically alleged in the charging document, and the defendant has a right to have that fact determined by a jury beyond a reasonable doubt.Id. at 256-57 (some citations and quotation marks omitted; emphasis added). Applying Alleyne's mandate, "the Courts of this Commonwealth have concluded that many of our mandatory minimum sentencing statutes are unconstitutional because they permit judicial fact finding by the sentencing court, under a preponderance of the evidence standard, absent pretrial notice to the defendant." Chichkin, 232 A.3d at 965.
Apprendi v. New Jersey, 530 U.S. 466 (2000).
Nevertheless, as Chichkin acknowledged, the narrow exception outlined in Almendarez-Torres still applies - "when a defendant is subjected to an increased sentence based upon a prior conviction, the 'fact' of the prior conviction need not be submitted to a jury and found beyond a reasonable doubt." Chichkin, 232 A.3d at 966 (some emphasis added). Thus, the relevant question presented in Chichkin, (as well as the case sub judice), was whether the defendant's "prior acceptance[ ] of ARD constitute[s] an unproven 'fact,' which must be submitted to a jury, or a prior conviction, which may be determined by the court at sentencing." Id.
The Majority insists a defendant's voluntary acceptance of ARD should constitute a prior offense for recidivism purposes because (1) the Pennsylvania Legislature has deemed it so, and (2) a defendant who voluntarily accepts ARD "is presumed to be aware of" Section 3806. Majority Op. at 10-11. I disagree.
The fact the Legislature has deemed the acceptance of ARD to be a prior conviction for DUI recidivism sentencing purposes does not control our review. Rather, the "separation of powers in our tripartite system of government typically depends upon judicial review to check acts or omissions by the other branches in derogation of constitutional requirements." William Penn Sch. Dist. v. Pennsylvania Dep't of Educ., 170 A.3d 414, 418 (Pa. 2017). See Marbury v. Madison, 5 U.S. 137, 138 (1803) ("An act of congress repugnant to the constitution cannot become a law."). Thus, the courts have not only the authority - but the responsibility - to consider whether a law enacted by the legislature passes constitutional muster.
Moreover, although the Majority relies on the legal precept that a defendant is presumed to be aware of relevant statutory law, I emphasize that the Pennsylvania Rules of Criminal Procedure do not require the Commonwealth or the trial court to inform a defendant that their "non-conviction" acceptance of ARD - which will result in expungement of the charges if the defendant successfully completes the program - is still considered a prior conviction should they be found guilty of a subsequent DUI. See Pa.R.Crim.P. 300-320. In fact, Rule 312, mandates the court ascertain, on the record, that the defendant understands only that:
(1) acceptance into and satisfactory completion of the accelerated rehabilitative disposition program offers the defendant an opportunity to earn a dismissal of the pending charges; [and]
(2) should the defendant fail to complete the program, the defendant waives the appropriate statute of limitations and the defendant's right to a speedy trial under any applicable Federal or State constitutional provisions, statutes or rules of court during the period of enrollment in the program.Pa.R.Crim.P. 312(1)-(2). There is no requirement that the court or the Commonwealth inform the defendant of the ramifications of Section 3806, or for that matter, of the significant constitutional rights they waive by accepting ARD. Further complicating the matter is the fact that each county administers its ARD program differently; accordingly, the fact that some counties may inform defendants that their acceptance of ARD may be treated as a prior conviction is of no moment.
Nevertheless, the Majority reasons that the defendant's "presumed" notice of Section 3806, coupled with their voluntary acceptance of ARD, "mitigate[s] the due process concerns advanced in Chichkin." See Majority Op. at 11-12. This argument mirrors the "waiver" line of reasoning advocated by the Commonwealth. See Commonwealth's Brief at 25-26. The Commonwealth maintains:
I take issue with the Majority's cavalier statement that a defendant "is free to reject participation in the program if he wishes to avail himself of his full panoply of constitutional rights." Majority Op. at 12. Defendants should not be required to choose whether to give up their constitutional rights absent any requirement that they be informed of those rights. Indeed, in other situations where a defendant waives constitutional rights - such as a guilty plea or bench trial - the law requires an on-the-record colloquy so that the trial court is satisfied that the waiver of constitutional rights is knowing and voluntary. See Commonwealth v. Hines, 437 A.2d 1180, 1182 (Pa. 1981) ("Because a guilty plea is not only an admission of conduct but also is an admission of all the elements of a formal criminal charge, and constitutes the waiver of constitutionally-guaranteed rights, the voluntariness of a guilty plea must be affirmatively established."); Commonwealth v. Stokes, 299 A.2d 272, 276 (Pa. 1973) ("The constitutional right to trial by jury, as with other constitutional rights, will not lightly be deemed to have been waived[ and] courts indulge every reasonable presumption against waiver of such fundamental constitutional rights."). As the United States Supreme Court declared nearly 60 years ago: "If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system." Escobedo v. Illinois, 378 U.S. 478, 490 (1964) (footnote omitted).
The Chichkin [C]ourt wholly ignored the fact that by accepting ARD, a defendant knowingly, voluntarily, and intelligently waives any rights they have under Apprendi and Alleyne to compel the Commonwealth to prove beyond a reasonable doubt their guilty of the DUI offense in order for it to count as a prior conviction.Id. (emphasis added). This claim must be rejected for several reasons.
First, "a criminal defendant cannot agree to an illegal sentence[.]" Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014) (explaining "the fact that the illegality was a term of his plea bargain is of no legal significance"). Second, a defendant cannot knowingly waive constitutional rights of which they are not explicitly informed. See Hines, 437 A.2d at 1182; Stokes, 299 A.2d at 276.
Third, this Court has consistently rejected attempts to overcome Alleyne by operating outside the offending statutory framework. See Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. Super. 2014) (defendant's stipulation to weight of drugs which triggered mandatory minimum sentence for conviction of possession with intent to deliver did not satisfy Alleyne); Commonwealth v. Valentine, 101 A.3d 801, 804, 812 (Pa. Super. 2014) (Commonwealth's amendment of information to include "fact" which triggered mandatory minimum, and which was submitted to and found by the jury, was impermissible). In Commonwealth v. Newman, 99 A.3d 86, 101 (Pa. Super. 2014) (en banc), this Court held that the mandatory minimum statute provisions that were violative of Alleyne, were not severable from the statute as a whole. Indeed, the Newman Court described the subsections which detailed the "facts" of the aggravated crime as the "predicate" arms of the statute, and the subsections requiring the trial court to determine those "facts" at sentencing by a preponderance of the evidence, as the "enforcement" arms - the Court observed that without the "enforcement" arm, there was "no mechanism in place to determine whether the predicate" arm had been met. Id. Accordingly, the en banc panel opined: "[I]t is manifestly the province of the General Assembly to determine what new procedures must be created in order to impose mandatory minimum sentences in Pennsylvania following Alleyne." Id. at 102. The same is true here. While Section 3806 does not include the same "preponderance of the evidence" language as the other unconstitutional mandatory minimum statutes, it does explicitly state: "The court shall calculate the number of prior offenses, if any, at the time of sentencing." 75 Pa.C.S. § 3806(b)(2). Thus, a defendant's presumed notice and voluntary acceptance of the fact that their non-conviction may be later treated as a conviction for recidivist sentencing purposes does not cure the unconstitutionality of the statute.
As Appellee notes in his brief, "a substantial effort" to amend the ARD statute to comply with Alleyne "is now under way." Appellee's Brief at 40 n.10, citing House Bill No. 521 (Printer's No. 1143).
Lastly, the Majority fails to refute Chichkin's determination that a prior acceptance of ARD cannot be deemed a prior conviction because it is not "cloaked in all the constitutional safeguards" of a criminal conviction. Chichkin, 232 A.3d at 968 (footnote and citation omitted). Rather, the Majority simply proclaims: "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." Majority Op. at 11. The Majority fails to elaborate as to what the "safeguards in place" are, or how they protect a defendant's constitutional right to due process, and the concomitant finding of guilty beyond a reasonable doubt. Indeed, the opinion mentions only the following regarding "safeguards" - (1) ARD is an "intensive process[;]" (2) ARD involves assessments and treatment, if necessary; and (3) ARD is court-supervised. See id. at 7 (citation omitted). None of these "safeguards" satisfy "[d]ue process considerations[,]" and in particular, the due process concerns that "protect those accused of committing a crime from conviction 'except upon proof beyond a reasonable doubt.'" Chichkin, 232 A.3d at 970, citing In re Winship, 397 U.S. 358, 364 (1970). It is difficult to believe that any unspecified "safeguards" are "adequate," when the Rules of Criminal Procedure do not require a defendant be informed of the constitutional rights they waive by accepting ARD, and each county administers its ARD program differently.
Thus, I conclude, as I did in Chichkin: (1) the prior acceptance of ARD cannot be considered a prior conviction pursuant to Almendarez-Torres because is not "cloaked in all the constitutional safeguards[;]" (2) "that portion of [Section] 3806, which statutorily equates a prior acceptance of ARD to a prior conviction for purposes of subjecting a defendant to a mandatory minimum sentence under [75 Pa.C.S. §] 3804, is unconstitutional[;]" and, therefore, (3) pursuant to Alleyne, a defendant's prior acceptance of ARD is 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" for a second DUI pursuant to Section 3804. Chichkin, 232 A.3d at 968 (footnotes, quotation marks, and citation omitted). Accordingly, I conclude Chichkin was property decided, and would affirm Appellee's judgment of sentence.
For the foregoing reasons, I dissent.
President Judge Emeritus Bender, Judge Lazarus and Judge Kunselman join this dissenting opinion.