Opinion
No. 1 MAP 2022
02-28-2023
COMMONWEALTH of Pennsylvania, Appellant v. Steven Leonard VERBECK, Appellee
Bernard Flynn Cantorna, Esq., Matthew Frederick Metzger, Esq., Centre County District Attorney's Office, for Appellant. Marc Andrew Decker, Esq., Decker Bradburn, Attorneys at Law, for Appellee. Michelle Ann Henry, Esq., Benjamin Garrett Minegar, Esq., Pennsylvania Office of Attorney General, for Amicus Curiae Pennsylvania Office of Attorney General. Kevin Francis McCarthy, Esq., Allegheny County District Attorney's Office, Kevin R. Steele, Esq., Montgomery County District Attorney's Office, for Amicus Curiae Pennsylvania District Attorneys Association.
Bernard Flynn Cantorna, Esq., Matthew Frederick Metzger, Esq., Centre County District Attorney's Office, for Appellant.
Marc Andrew Decker, Esq., Decker Bradburn, Attorneys at Law, for Appellee.
Michelle Ann Henry, Esq., Benjamin Garrett Minegar, Esq., Pennsylvania Office of Attorney General, for Amicus Curiae Pennsylvania Office of Attorney General.
Kevin Francis McCarthy, Esq., Allegheny County District Attorney's Office, Kevin R. Steele, Esq., Montgomery County District Attorney's Office, for Amicus Curiae Pennsylvania District Attorneys Association.
ORDER
PER CURIAM
AND NOW, this 28th day of February, 2023, the Court being evenly divided, the order of the Superior Court is AFFIRMED . In reporting the opinions, the Opinion in Support of Reversal shall be set forth first.
The Late Chief Justice Baer did not participate in the decision of this matter.
OPINION IN SUPPORT OF REVERSAL
JUSTICE MUNDY
In this discretionary appeal we address the sentencing implications, for a driving-under-the influence (DUI) conviction, of a defendant's prior acceptance of accelerated rehabilitative disposition (ARD). More particularly, we consider whether such acceptance may constitutionally qualify as a prior offense for sentencing purposes if found by a judge on a preponderance rather than by a jury beyond a reasonable doubt.
In 2018, on the day in question, the police initiated a vehicle stop after observing Appellee driving erratically. The officers noticed an odor of marijuana and alcohol emanating from Appellee and from his car, and they saw drug-related items inside the vehicle. After Appellee failed field sobriety tests, and a breathalyzer showed the presence of alcohol in his system, Appellee was taken into custody and transported to the hospital for a blood draw. He was ultimately charged and found guilty at a non-jury trial of several offenses, including DUI-general impairment.
See generally Commonwealth v. Verbeck , 2021 WL 1328551, at *1 & n.1 (Pa. Super. Apr. 9, 2021) (giving a full list of charges and convictions). DUI-general impairment is defined as driving after consuming enough alcohol to be unable to drive safely, or to have a blood-alcohol content between 0.08% and 0.10%. See 75 Pa.C.S. § 3802(a).
Sentencing took place in November 2019. By that time, the court was aware Appellee had previously been charged with DUI in 2015 and elected to resolve that matter through the ARD program. Notably, under the Vehicle Code, ARD acceptance is listed within the definition of a prior offense for purposes of DUI recidivist sentencing:
(a) General rule.-- ... the term "prior offense" as used in this chapter [i.e. , Chapter 38 of the Vehicle Code, relating to driving after imbibing alcohol or utilizing drugs] 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. § 3806(a) (emphasis added). The above applies so long as the prior offense occurred within a ten-year lookback period, see id. § 3806(b), which it did here. In compliance with the Vehicle Code, therefore, the court treated the present DUI conviction as a second offense and sentenced Appellee accordingly under Section 3804(a):
(a) General impairment.-- ... an individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) shall be sentenced as follows:
(1) For a first offense, to: (i) undergo a mandatory minimum term of six months' probation; (ii) pay a fine of $300; (iii) attend an alcohol highway safety school approved by the department; and (iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 (relating to drug and alcohol assessments) and 3815 (relating to mandatory sentencing).
(2) For a second offense, to: (i) undergo imprisonment for not less than five days; (ii) pay a fine of not less than $300 nor more than $2,500; (iii) attend an alcohol highway safety school approved by the department; and (iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.
(3) For a third or subsequent offense, to: (i) undergo imprisonment for not less than ten days; (ii) pay a fine of not less than $500 nor more than $5,000; and (iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.
75 Pa.C.S. § 3804(a). In particular, the court sentenced Appellee under (a)(2). It imposed a fine of $1,500 and ordered Appellee to undergo a term of intermediate punishment for a period of five years, including an initial period of restrictive intermediate punishment for 120 days in home detention, with the remainder to be served on standard probation. As can be seen from the above, this was a higher penalty than if the ARD acceptance did not qualify as a prior offense and Appellee had been sentenced as a first-time offender.
County intermediate punishment is available as a sentencing option for certain non-violent offenders who would otherwise be sentenced to partial or total confinement. See 42 Pa.C.S. § 9802 (defining "eligible offender"). See generally Commonwealth v. Wegley , 574 Pa. 190, 829 A.2d 1148, 1152-53 (2003) (discussing the legislative intent behind intermediate punishment and the range of options available under that scheme, as well as its differences from ordinary probation).
On appeal to the Superior Court, Appellee initially raised issues unrelated to this appeal. After that tribunal affirmed his judgment of sentence, see Commonwealth v. Verbeck , 2020 WL 7259716 (Pa. Super. Dec. 10, 2020) (table) (withdrawn), it granted his request for reconsideration together with leave to brief an additional issue: whether, based on that court's then-recent published decision in Commonwealth v. Chichkin , 232 A.3d 959 (Pa. Super. 2020), the county court should have sentenced him on the DUI-general impairment charge as a first-time offender rather than a second-time offender.
By way of background, Chichkin addressed the issue presently before this Court. It held that a defendant's prior acceptance into the ARD program could not itself qualify as a sentencing factor in light of the precept, set forth in Alleyne v. United States , 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), that any fact which by law increases the mandatory minimum sentence for a crime, other than the fact of a prior conviction, is an element of the offense that must be proved to the factfinder beyond a reasonable doubt. See Chichkin , 232 A.3d at 967. Chichkin observed Alleyne was an expansion of the rule announced in Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that any fact, other than a prior conviction, which increases the penalty for a crime beyond the otherwise-imposable statutory maximum, must be submitted to a jury and proved beyond a reasonable doubt. According to Chichkin , therefore, to invoke the recidivist sentence under the Vehicle Code consistent with Alleyne and Apprendi , the Commonwealth must, as part of the current proceedings, prove beyond a reasonable doubt that the defendant "actually committed" the previous DUI offense that was resolved through ARD acceptance. Chichkin , 232 A.3d at 971. Thus, Chichkin declared Section 3806(a) unconstitutional to the extent it "equates a prior acceptance of ARD to a prior conviction for purposes of subjecting a defendant to a mandatory minimum sentence under Section 3804." Id. at 968.
The Commonwealth did not seek allowance of appeal in Chichkin . During the pendency of the present appeal, however, Chichkin , which was decided by a three-judge panel, was overruled by an en banc panel in two cases filed the same day. See Commonwealth v. Moroz , 284 A.3d 227 (Pa. Super. 2022) ; Commonwealth v. Richards , 284 A.3d 214 (Pa. Super. 2022).
In Chichkin the defendants had been sentenced under Section 3804(b) instead of 3804(a) because their current DUI offenses involved property damage. See 75 Pa.C.S. § 3804(b). That distinction is of no moment because subsections 3804(a) and 3804(b) both rely on Section 3806(a)'s inclusion of ARD within its definition of "prior offense," and Chichkin declared Section 3806(a) unconstitutional as applied to prior ARD acceptances.
Returning to the present case, on reconsideration the Superior Court reaffirmed its denial of relief on Appellee's original claims. Citing Chichkin , however, it vacated Appellee's judgment of sentence and remanded for resentencing on the DUI-general impairment charge as a first offense. See Commonwealth v. Verbeck , 2021 WL 1328551, at *4 (Pa. Super. April 9, 2021) (unpublished decision). This Court granted the Commonwealth's request for further review, in which the Commonwealth framed the question presented as:
Whether the Superior Court erred in holding for DUI sentencing purposes that the Defendant's conviction was a first offense in ten years as opposed to a second offense in ten years based upon the defective holding in Commonwealth v. Chichkin , 232 A.3d 959 (Pa. Super. 2020), that acceptance of ARD could not be treated as a prior conviction?
Commonwealth v. Verbeck , 270 A.3d 1098 (Pa. 2022) (per curiam ).
As previously explained, the Superior Court recently overruled Chichkin in Moroz and Richards . See supra note 3. The court held that recidivist DUI sentencing which, per Section 3806(a) of the Vehicle Code, includes an ARD acceptance as a prior offense, may take place consistent with Apprendi / Alleyne , even where that circumstance is not proved to the fact finder beyond a reasonable doubt. See Moroz , 284 A.3d at 233 ("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."); Richards , 284 A.3d at 220 (same). That development does not render this appeal moot or improvident, however, as Appellee's sentence is more lenient than it would be under now-prevailing Pennsylvania law as set forth in Moroz / Richards . Even more important, we note that DUI sentencing takes place with some frequency in this Commonwealth, and the Moroz / Richards decisions were both decided by a 5-4 vote of the intermediate court's en banc panel. These circumstances suggest it would be helpful for this Court to decide the issue without further delay. As the issue has been briefed and argued, we now turn to its merits.
By way of brief overview, when a defendant is charged with DUI under Section 3802 as a first offense in ten years, the attorney for the Commonwealth, subject to certain exceptions, may offer the defendant the ability to resolve those charges through ARD. See 75 Pa.C.S. § 3807(a) (relating to eligibility). See generally Pa.R.Crim.P. Chapter 3 (governing the procedures pertaining to ARD). ARD is a diversionary program, see PennDOT v. McCafferty , 563 Pa. 146, 758 A.2d 1155, 1162 (2000), which may result in a license suspension, see 75 Pa.C.S. § 3807(d), but which is otherwise largely rehabilitative in nature. See id. § 3807(b) (relating to evaluation and treatment). See generally Pa.R.Crim.P. Ch. 3, Explanatory Cmt. (indicating ARD's primary purpose "is the rehabilitation of the offender").
Not all first-time DUI defendants are given this opportunity. As we have explained:
Society has no interest in blindly maximizing the number of ARD's passing through the criminal justice system, and the criminal defendant has no right to demand that he be placed on ARD merely because any particular offense is his first. Rather, society, for its own protection, has an interest in carrying out the penalties prescribed by the legislature for drunk driving, except in the cases where even society's representative in the case, the district attorney, acting in conjunction with the court ... determines that ARD is preferable to conviction because of the strong likelihood that a given criminal defendant will in fact be rehabilitated by an ARD program.
Commonwealth v. Lutz , 508 Pa. 297, 495 A.2d 928, 931 (1985).
Upon successful completion of ARD, the defendant may move to dismiss the charges. If the motion is granted, the defendant's arrest record is expunged absent compelling reasons to the contrary. See Pa.R.Crim.P. 320 & Comment. See generally J.F. v. DHS , ––– Pa. ––––, 245 A.3d 658, 661-62 (2021) (providing an overview of ARD procedures). For its part, PennDOT is notified any time a defendant accepts ARD, and if the defendant maintains a clean driving record for ten years thereafter, PennDOT expunges the ARD record. See 75 Pa.C.S. § 1534. This Court has thus noted that the procedural rules governing the ARD program
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 Cmt.; see also Lutz , 495 A.2d at 931 (explaining that the ARD rules are based on the belief that in some cases social or behavioral problems can be solved by "treatments" rather than by punishment). At the same time, ARD "is not some trivial mechanism for avoiding a conviction and expunging an arrest record. Rather, it is an intensive process involving personal assessments, safety classes, and addiction treatment, if necessary, all under court supervision for six months to a year[.]" Whalen v. PennDOT , 613 Pa. 64, 32 A.3d 677, 684 (2011). Additionally, because drunk driving is a serious offense and a "life-threatening act," Lutz , 495 A.2d at 936, deterring DUI recidivism through penalties that increase in severity with each new offense is an important societal goal, including for individuals who resolve their first DUI charge through ARD. See generally Birchfield v. North Dakota , 579 U.S. 438, 465, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) (acknowledging states have a compelling interest in creating deterrents to drunk driving). Such individuals
have chosen to drive drunk after having been placed under court supervision, after having been enrolled in alcohol highway safety school, and after having had their operating privileges suspended. It is rational to conclude that such individuals are less easily deterred from continuing to drink and drive than first time offenders who have had no prior contact with the criminal justice system.
Commonwealth v. Becker , 366 Pa.Super. 54, 530 A.2d 888, 892 (1987) ; accord Commonwealth v. Shawver , 18 A.3d 1190, 1199 (Pa. Super. 2011) (indicating that drivers who commit a second DUI offense despite the benefits of the ARD program should receive a greater punishment than those who have not had a prior chance to reform).
A defendant's acceptance of ARD does not constitute a conviction. See Whalen , 32 A.3d at 681 (citing Lutz , 495 A.2d at 933 ). But such acceptance is deemed to reflect a decision by the defendant not to "dispute[ ] the commission of the offense" as, for example, the defendant agrees to undergo rehabilitation and to reimburse others for financial losses he or she caused – all of which would make little sense if the offender disputed having committed the offense. Id. at 684 ; cf. id . (explaining that, while ARD acceptance does not constitute a guilty plea as such, that "should not ... obscure the common sense observation that a defendant who actively denies that he committed a violation of law is simply not a likely or promising candidate for ARD"). In this way, although ARD acceptance does not trigger criminal penalties, it does imply a concession by the defendant that he or she, in fact, committed the offense – a circumstance recognized by numerous aspects of the Vehicle Code. See, e.g. , 75 Pa.C.S. §§ 3807(d) (relating to the suspension of operating privileges as the result of ARD acceptance), 1542(c) (listing acceptance of ARD as "an offense" for purposes of the Vehicle Code's definition of a "habitual offender" subject to license revocation), 3806(a) (including ARD acceptance within the definition of a "prior offense" for sentencing purposes), 1539(c) (providing that ARD acceptance for a DUI offense constitutes a prior suspension of driving privileges for purposes determining whether the current suspension is a first, second, or third, or subsequent one). The question for present purposes is whether acceptance of ARD thereby falls within the exception to the rule set forth in the Apprendi / Alleyne line of cases. Inasmuch as the United States Supreme Court has not analyzed that specific issue, we obtain guidance by reviewing its reasoning reflected in that line of cases and considering how courts in other jurisdictions have ruled on this question.
The Justices supporting affirmance object to the concept that ARD acceptance implies such a concession, see Opinion in Support of Affirmance (OISA) at 281–82 (Todd, C.J.); OISA at 291 (Wecht, J.), but we made this same observation in Whalen . In that matter we reviewed the responsibilities associated with ARD and determined that they
imply that a defendant who accepts ARD has indeed committed a DUI offense .... It would make no sense to require, as a condition of participation in ARD, that a defendant compensate those who incurred financial losses "as a result of [his or her] actions which resulted in the offense" if, in fact, none of the defendant's actions resulted in the offense.
In addition, ... it is difficult to envision how the primary purpose of ARD – rehabilitation of the offender – could be accomplished if the offender disputed the commission of the offense. ... [Whalen] is, of course, correct in his assertion that acceptance of ARD does not involve a guilty plea. However, that ... should not be allowed to obscure the common sense observation that a defendant who actively denies that he committed a violation of law is simply not a likely or promising candidate for ARD.
Whalen , 32 A.3d at 684. Thus, Whalen concluded ARD acceptance is logically incompatible with any denial of culpability by the defendant. There simply is no daylight between that conclusion and the concept that ARD acceptance subsumes an implicit concession by the defendant that he or she did commit the offense.
For his part, Justice Wecht speculates that innocent drivers are being charged with DUI and choosing ARD over going to trial. See OISA at 293–94 & n.74. He cites no data, empirical or otherwise, to support such conjecture. In any event, it is just as easy to speculate that some prior convictions were obtained through a guilty plea by innocent drivers who chose to plead guilty to a lesser charge rather than going to trial and risking a conviction on a more serious charge – and indeed Justice Wecht goes to some length to make that very point. See id. at 294–96. None of that makes any difference, however, as a driver who previously pled guilty or accepted ARD, even though innocent, is still subject to recidivist sentencing on a new DUI conviction; he is not entitled to relitigate the prior charges no matter how they were resolved, and he is subject to same sentencing consequences whether a prior ARD is proven to the jury or the judge. The main difference is that if the prior ARD is proven to the jury, then the jury would become aware of prior-bad-acts evidence in addition to the Commonwealth's proofs of guilt on the present DUI charge. To the extent Justice Wecht objects to ARD being the basis for recidivist sentencing, his disagreement is with the General Assembly.
In Apprendi , the defendant fired shots into a residential property, and there was conflicting evidence on whether he did so with a racially-biased motive for purposes of the state's hate-crime sentencing enhancement. He pleaded guilty to possessing a firearm for an unlawful purpose, and at sentencing the judge found the presence of a biased motive by a preponderance of the evidence, which raised his punishment. The Supreme Court held that such procedure violated the defendant's constitutional rights – namely, his Sixth Amendment right to trial by jury, combined with his right to due process of law as guaranteed by the Fourteenth Amendment – and that the state's decision to label the provision as a sentencing factor was of no relevance. See Apprendi , 530 U.S. at 476, 120 S.Ct. 2348. The Court ultimately concluded, as a general precept:
The Sixth Amendment jury right applies to the states via the Fourteenth Amendment. See Duncan v. Louisiana , 391 U.S. 145, 162, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) ; Parker v. Gladden , 385 U.S. 363, 364, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). Due process requires the government to prove every element of a crime beyond a reasonable doubt. See In re Winship , 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.
Id . at 490, 120 S.Ct. 2348. The "statutory maximum" under Apprendi is the highest sentence a judge can impose based only the facts reflected in the jury's verdict or admitted by the defendant. See Blakely v. Washington , 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Subsequently, in Alleyne , the Supreme Court held this principle applies with equal force to facts which increase the mandatory minimum sentence. See Alleyne , 570 U.S. at 108, 133 S.Ct. 2151. That Court has reaffirmed this holding in multiple contexts in the years since Apprendi was decided. See Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (sentence of death); Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (sentence in excess of the standard range under the state's sentencing guidelines); United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (same under the federal sentencing guidelines); Cunningham v. California , 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (state determinate sentencing scheme exposing defendant to elevated sentence); Southern Union Co. v. United States , 567 U.S. 343, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012) (imposition of criminal fines); United States v. Haymond , ––– U.S. ––––, 139 S. Ct. 2369, 204 L.Ed.2d 897 (2019) (revocation of supervised release and imposition of a prison term).
One exception is Oregon v. Ice , 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), where the Supreme Court upheld a state enactment governing whether multiple sentences should be run concurrently or consecutively. The statute made concurrent sentences the default but it gave the sentencing court discretion to run them consecutively upon a judicial finding of certain facts – such as that the offenses did not arise from the same continuous course of conduct, or if they did, that the offense showed the defendant's willingness to commit more than one offense or created a risk of independent harm to a different victim. See id. at 165, 129 S.Ct. 711. The Court reasoned that, even though such facts did not consist of prior convictions, the choice between concurrent and consecutive sentences historically fell within the domain of state legislatures and not that of the jury. See id. at 169, 129 S.Ct. 711 ; see also id. at 170, 129 S.Ct. 711 (stating the scope of the Sixth Amendment jury right "must be informed by the historical role of the jury at common law"). As such, it did not implicate Apprendi ' s "animating principle" which is to preserve the jury's "historic role as a bulwark between the State and the accused at the trial for an alleged offense." Id . at 168, 129 S.Ct. 711.
The Apprendi rule's exclusion of prior convictions was based largely on the Court's decision two years earlier in United States v. Almendarez-Torres , 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). In that matter, the defendant illegally reentered the United States after having been deported following his conviction of aggravated felonies. His illegal reentry would ordinarily have triggered a maximum prison term of two years, but Congress had authorized a penalty of up to 20 years if the deportation followed an aggravated-felony conviction. The Court focused its analysis on whether that statutory provision simply authorized an enhanced penalty for the existing crime, or whether it was instead an element of a new crime, in which case it would have had to appear in the indictment (which it did not). See Hamling v. United States , 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). Because the subject matter of the provision was recidivism, the Court held it was a sentencing factor, not an element of a separate crime. The Court expressed that recidivism "is as typical a sentencing factor as one might imagine." Almendarez-Torres , 523 U.S. at 230, 118 S.Ct. 1219 ; see id. at 241, 118 S.Ct. 1219 (same); id. at 243, 118 S.Ct. 1219 (same). In this respect, the Court highlighted that the fact the defendant had recidivated "does not relate to the commission of the [present] offense, but goes to the punishment only[.]" Id. at 244, 118 S.Ct. 1219 (quoting Graham v. West Virginia , 224 U.S. 616, 629, 32 S.Ct. 583, 56 L.Ed. 917 (1912) ) (emphasis removed). Additionally, in discussing Congress's likely intent underlying the sentencing enhancement, the Court observed that any contrary interpretation, whereby the fact of the prior offense would be considered an element of the present crime which must be proved to a jury, would risk unfairness to the defendant because evidence of the defendant's prior bad acts would have to be introduced at trial. See id . at 234-35, 118 S.Ct. 1219.
In this line of cases, the facts which, under the Sixth Amendment (in conjunction with due process), must be proved to a jury beyond a reasonable doubt pertain to the commission of the present offense, and not to the defendant's prior record. These include such items as the defendant's conduct and mens rea , as well as any attendant circumstances which the criminal statute makes relevant. This is evident in at least two ways. First, and most obvious, the rule by its terms excludes prior offenses as facts that must be proved to a jury. Second, the Supreme Court has repeatedly stated its conclusions in terms which speak of the aggravating facts that a jury must find as constituting a new, more serious offense. See, e.g. , Alleyne , 570 U.S. at 114-15, 133 S.Ct. 2151 ("When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.") (emphasis added); People v. Black , 41 Cal.4th 799, 62 Cal.Rptr.3d 569, 161 P.3d 1130, 1144 (2007) (noting Apprendi has treated the crime together with its sentencing enhancement as the equivalent of "a single, greater crime") (internal quotation marks omitted). Because the defendant is, in effect, on trial for that more serious offense relative to which the Sixth Amendment jury right has full effect for every element, the focus on the defendant's conduct in committing this offense is consistent with the "core concern" underlying the Apprendi rule: "to reserve to the jury the determination of facts that warrant punishment for a specific statutory offense[.]" Southern Union , 567 U.S. at 349, 132 S.Ct. 2344 (internal quotation marks and citation omitted).
This is confirmed by a review of the Supreme Court cases in which the Apprendi rule has been applied to invalidate a sentence based on judicial fact-finding. In all such cases, the facts in question have related to the commission of the current offense. They have never related to the defendant's record of prior conduct. Thus, the Supreme Court has invalidated sentences where the sentencing judge found that: a defendant convicted of possessing a firearm for an unlawful purpose acted with racial animus, see Apprendi , 530 U.S. at 471, 120 S.Ct. 2348 ; a defendant convicted of felony murder was the actual killer and a major participant in the armed robbery, the offense was carried out to obtain money, and it was committed in an especially heinous, cruel, or depraved manner, see Ring , 536 U.S. at 594-95, 122 S.Ct. 2428 ; a defendant convicted of kidnapping involving domestic violence and use of a firearm acted with deliberate cruelty, see Blakely , 542 U.S. at 300-01, 124 S.Ct. 2531 ; a defendant convicted of drug possession possessed a certain quantity of crack cocaine at the time of the offense in addition to the drugs the jury found him to have possessed, see Booker , 543 U.S. at 235, 125 S.Ct. 738 ; a defendant convicted of continuous sexual abuse of a child engaged in violent conduct when committing the offense, see Cunningham , 549 U.S. at 275, 127 S.Ct. 856 ; a defendant corporation convicted of knowingly storing hazardous waste without a permit violated the statute for a specific number of days, see Southern Union , 567 U.S. at 347, 132 S.Ct. 2344 ; and a sex offender knowingly possessed child pornography while on supervised release following imprisonment, see Haymond , 139 S. Ct. at 2374. The same can be said of cases in which the Supreme Court acknowledged an Apprendi violation but deemed it waived or harmless, as well as all of the examples Appellee provides. See Brief for Appellee at 14 (citing cases involving the age of the victim, the proximity of the crime to a school, and the quantity of drugs possessed).
See United States v. Cotton , 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (holding defendants, who were convicted of possession with intent to distribute a "detectable amount" of cocaine had waived their objection to indictment's failure to state the quantity of the drugs which was found by the sentencing court and which enhanced the statutory maximum penalty, and such failure was not plain error); Washington v. Recuenco , 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (where the defendant was convicted of assault with a deadly weapon, and the sentencing judge found that that weapon was a firearm, holding that the Blakely error inherent in such judicial finding was not "structural").
We note that, in Schriro v. Summerlin , 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the Court acknowledged Ring had invalidated Arizona's capital sentencing statute to the extent it allowed a judge to find aggravating circumstances, and one such circumstance was the existence of a prior felony conviction involving use or threatened use of violence. See id . at 350, 124 S.Ct. 2519. However, Ring did not involve that aggravator, and in Schriro the Court ultimately upheld the death sentence on the basis that Apprendi did not apply retroactively to cases already final on direct review. Thus, in the unique capital sentencing arena, a finding of a prior history of violent offenses may be subject to the Apprendi rule. But Almendarez-Torres clearly evidences that in other contexts, the fact of recidivism does not fall within that rule.
This is not to say that no facts concerning the offender may ever be encompassed by the rule. But during the quarter-century beginning with Almendarez-Torres and continuing to the present day, the Supreme Court has never considered factors relating to recidivism, as opposed to the commission of the present crime, an essential part of the "bulwark between the State and the accused" that Apprendi is designed to preserve, Ice , 555 U.S. at 168, 129 S.Ct. 711, in light of its view that recidivism is "a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Almendarez-Torres , 523 U.S. at 243, 118 S.Ct. 1219 (emphasis added). Not only does the fact of recidivism not pertain to the crime itself, but "unlike virtually any other consideration used to enlarge the possible penalty for an offense ..., a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees," Jones v. United States , 526 U.S. 227, 249, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), or through a voluntary waiver of those rights, e.g. , via a guilty or nolo contendere plea. See Brady v. United States , 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (recognizing a guilty plea is the defendant's waiver of his right to a trial before a judge or jury and his consent that a judgment of conviction may be entered).
The Supreme Court has declined to endorse an offense/offender distinction in the Apprendi context. See Cunningham , 549 U.S. at 291 n.14, 127 S.Ct. 856.
Indeed, in explaining why prior convictions are exempt from the general rule, Apprendi made two salient observations. First, and consistent with the above, it noted that recidivism does not pertain to the commission of the present crime, whereas the biased-motive inquiry at issue in that case went "precisely to what happened in the ‘commission of the offense.’ " Apprendi , 530 U.S. at 496, 120 S.Ct. 2348 (quoting Almendarez-Torres , 523 U.S. at 230, 118 S.Ct. 1219 ). Apprendi 's second observation also directly relates to the present controversy. The Court recognized that
there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.
Id.
A defendant charged as a first-time DUI offender is under no legal compulsion to accept ARD and, as such, enjoys the full panoply of constitutional rights attendant to a criminal prosecution. By the time such a defendant accepts ARD, he has been advised of the charges against him, and a preliminary hearing has been held or voluntarily waived. He has had a chance to obtain a lawyer or have one appointed for him, and to review pretrial discovery. Even if he is offered the option of resolving charges through ARD, he is under no obligation to do so and may assert his right to have the Commonwealth prove every element of the offense beyond a reasonable doubt. If he applies to resolve the charges through ARD, any information he supplies in connection with that application cannot be used against him for any purpose (other than prosecution for giving false information). See Pa.R.Crim.P. 311(B). Assuming the defendant wishes to proceed with ARD, Section 3806(a) puts him on notice that successful completion of the program will count as a "prior offense" in the event he re-offends. See Commonwealth v. Robertson , 186 A.3d 440, 446 (Pa. Super. 2018) (observing courts presume defendants are aware of the statutory law relating to the crime with which they are charged). He thus voluntarily accepts that state of affairs as a necessary corollary to a benefit he presently receives by avoiding criminal penalties. Furthermore, during the proceedings, a court hearing is held with the defendant's counsel present in which the court ensures that the defendant understands and agrees to the terms of the program. See Pa.R.Crim.P. 312, 313. The court then holds an off-the-record inquiry into the underlying facts at which time interested parties, including the defendant and the victim (if any), may present information. Again, the information the defendant gives during that hearing may not be used against him. If at the end of the hearing, the court agrees that ARD is appropriate, the record is opened and the defendant states affirmatively whether he accepts the conditions and agrees to comply with them. See id . An ARD participant who violates the conditions of the program is returned to the status quo ante , see Pa.R.Crim.P. 318(c), and retains the same constitutional rights as before. See, e.g. , Pa.R.Crim.P. 318, 600(A)(2)(c) (relating to prompt trial after ARD termination), 1013(I) (same for municipal court); accord Brief for Appellee at 24.
Justice Wecht observes this purported awareness is not sufficient to waive a defendant's Sixth Amendment rights. See OISA at 292–93. Neither is it necessary. See Pa.R.Crim.P. 590 & cmt.; Commonwealth v. Williams , 557 Pa. 207, 732 A.2d 1167, 1184 & n.11 (1999). Regardless, ARD is not a criminal prosecution. Thus, no valid Sixth Amendment waiver is required for ARD acceptance to comply with due process. See discussion infra at 273–74.
As discussed above, the defendant's successful completion of the ARD program is not technically a conviction, but it is part of the defendant's record of prior conduct unrelated to the present offense; it arose after Appellee, who had the right to require the Commonwealth to prove his guilt on every element of his first DUI charge to a jury beyond a reasonable doubt, voluntarily waived that right in favor of ARD acceptance. For purposes of the court's recidivism inquiry, then, it is substantially similar to a conviction based on a guilty plea in the sense that the defendant's actions in waiving his constitutional rights and accepting ARD lend sufficient reliability to those proceedings to satisfy due process. Cf. United States v. Smalley , 294 F.3d 1030, 1032-33 (8th Cir. 2002) ("[W]e conclude that the question of whether juvenile adjudications should be exempt from Apprendi 's general rule should not turn on the narrow parsing of words, but on an examination of whether juvenile adjudications, like adult convictions, are so reliable that due process of law is not offended by such an exemption.").
Smalley disagreed with the result reached by a sister circuit in United States v. Tighe , 266 F.3d 1187 (9th Cir. 2001), which held the use of juvenile adjudications as sentence enhancers violates Apprendi where such adjudications do not afford a jury-trial right and a beyond-a-reasonable-doubt burden of proof. See id . at 1194. Both courts focused on whether the defendant at the prior proceeding was afforded adequate process. See also United States v. Jones , 332 F.3d 688, 696 (3d Cir. 2003) (favoring Smalley over Tighe ); Commonwealth v. Lee , 260 A.3d 208, 217-18 (Pa. Super. 2021) (following Jones ).
In light of the above, if the defendant re-offends, it would make little sense to read Apprendi as requiring that the fact of his earlier ARD acceptance must be proved to a jury beyond a reasonable doubt. Imposing such a requirement would raise the risk of unfairness the Supreme Court expressly sought to avoid in Almendarez-Torres because prior-bad-acts evidence would have to be put before the jury. See Almendarez-Torres , 523 U.S. at 234-35, 118 S.Ct. 1219. It would make even less sense to require the Commonwealth to prove guilt of the prior charge beyond a reasonable doubt, as Chichkin held. Nothing in the Apprendi line remotely suggests such a mandate. Notably, the Supreme Court has "warned against ‘wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.’ " Ice , 555 U.S. at 172, 129 S.Ct. 711 (quoting Cunningham , 549 U.S. at 295, 127 S.Ct. 856 (Kennedy, J., dissenting)). To help reviewing courts perceive the doctrine's "necessary boundaries," the Court added that "the jury-trial right is best honored through a principled rationale that applies the rule of the Apprendi cases within the central sphere of their concern." Id . (internal quotation marks and citation omitted). In turn, the central sphere of the Apprendi cases' concern is to prevent encroachment by sentencing judges upon facts historically found by the jury. Where that concern is not implicated, the Supreme Court has declined to apply the Apprendi rule. See Ice , 555 U.S. at 169, 129 S.Ct. 711 ; see also Dillon v. United States , 560 U.S. 817, 828-29, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (finding Apprendi inapplicable to facts found by a judge at a retroactive sentence-reduction hearing permitted by an amendment to the federal sentencing guidelines, where the sentence-reduction process was not constitutionally compelled, and thus, there was no threat to the jury's traditional domain). For its part, even the Supreme Court has not applied Apprendi 's "any fact" rule in an absolutist fashion, as in Ice the Court held it was permissible for the judge to find facts, other than the fact of a prior conviction, which increased the defendant's aggregate sentence. See Ice , 555 U.S. at 173, 129 S.Ct. 711 (Scalia, J., dissenting) (pointing out the majority was not applying the Apprendi rule literally).
The Sixth Amendment also allows judges deciding whether to apply an enhanced penalty under the Armed Career Criminal Act, 18 U.S.C § 924 (ACCA), to find facts about prior convictions, and not just the fact of the prior conviction, based on such items as the conviction record, indictments, verdict slips, plea agreements, plea colloquy transcripts, and jury instructions. See A.L. v. Pennsylvania State Police , ––– Pa. ––––, 274 A.3d 1228, 1234-35 (2022) (describing the "modified categorical approach" used by federal courts for ACCA sentencing). Judicial records of "conclusive significance" may be consulted in this regard. Shepard v. United States , 544 U.S. 13, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality); Kirkland v. United States , 687 F.3d 878, 885 (7th Cir. 2012) (concluding from Shepard that Apprendi ' s recidivism exception includes findings about prior convictions "traceable to a prior judicial record of conclusive significance"). Such facts include a determination of which elements contained in a state criminal statute were necessarily implicated by the defendant's earlier conviction, see A.L. , 274 A.3d at 1235, as well as whether two or more prior offenses were committed on different occasions. See Kirkland , 687 F.3d at 886 (citing cases).
The bottom line is that, in ascertaining whether a recidivist sentencing statute violates the rule of Apprendi / Alleyne , reviewing courts need not place controlling weight on whether the earlier proceeding that makes the defendant a repeat offender was technically a "conviction." If it was a conviction, it clearly falls outside the Apprendi rule. But where the prior offense was resolved via a statutory diversionary program aimed at rehabilitation, courts should then ask whether the challenged procedure in the present matter assigns to a judge a decision that "traditionally belonged to the jury." Ice , 555 U.S. at 172, 129 S.Ct. 711 ; accord State v. Rourke , 773 N.W.2d 913, 920 (Minn. 2009) ; Cruz v. Smith , 2009 WL 816749, at *10 n.15 (S.D.N.Y. 2009). Here, the judge's role under Sections 3804(a) and 3806(a) of the Vehicle Code entails making a finding as to the number of prior offenses committed by the defendant. Ascertaining whether the defendant's record includes a previous ARD acceptance is no more the type of determination traditionally made by a jury than assessing whether the defendant has a prior DUI conviction.
Appellee objects on the basis that ARD acceptance does not reflect a finding of guilt, and he references numerous decisions in this and other jurisdictions suggesting penalties may not be assessed absent a finding of guilt. See Brief for Appellee at 17-22. Not only are some of those holdings based on specific statutory features, see, e.g. , Khan v. State Bd. of Auctioneer Exam'rs , 577 Pa. 166, 842 A.2d 936, 950 (2004) (noting the Auctioneer and Auction Licensing Act only authorized reciprocal discipline where the out-of-state proceeding involved a specific finding of guilt), his argument overlooks that the present DUI conviction does reflect a finding of guilt. He thus conflates legal prerequisites for an original civil or criminal penalty with those relating to sentence enhancements.
Appellee also relies on J.F. v. DHS , ––– Pa. ––––, 245 A.3d 658 (2021), but that case is materially distinguishable. In J.F. , the Administrative Agency Law gave a parent seeking to challenge a founded report of child abuse the "right to be heard" in an administrative hearing, albeit subject to the proviso, established in case law, that the parent could not use such a hearing to collaterally attack a prior judicial determination of guilt that formed the basis for the report. This Court held the no-collateral-attack rule does not apply to ARD acceptance because the ARD process does not include a recorded evidentiary hearing in which the person is able to employ the usual adversarial tools such as cross-examination and the presentation of favorable evidence, and an ARD court does not undertake to resolve the issues reflected in such a report. See id. at 673. Our decision rested on the administrative appellate rights supplied by statute, and while a founded report of child abuse gives rise to civil consequences such as limitations on employment, it does not result in criminal penalties. Even assuming J.F. can be seen as upholding rights that mirror procedural due process, which guarantees notice and a reasonable opportunity to be heard, see Bundy v. Wetzel , 646 Pa. 248, 184 A.3d 551, 557 (2018), the dispute had nothing to do with recidivism; in other words, it involved procedures relating to consequences of the present conduct, not a prior offense. That being the case, the factors discussed above, such as whether the fact of recidivism is a determination historically made by juries, were not at issue.
Finally, Appellee references precedent indicating that prior arrests may not be used as a basis to enhance a defendant's sentence. See Brief for Appellee at 23-24 & n.9. Under the Vehicle Code, arrests alone do not comprise the basis for a finding of recidivist conduct, whereas ARD acceptance does. Relative to unadjudicated arrests, moreover, the policy justifications for enhanced penalties based on ARD acceptance (summarized above) do not apply, nor does the defendant waive any rights in exchange for beneficial treatment by the government.
We pause here to comment on the basis offered by the Justices favoring affirmance for Apprendi 's prior-conviction exception. They direct attention almost exclusively to the circumstance that such convictions are presumed to have occurred after the defendant benefitted from the protections guaranteed by the Sixth Amendment. See, e.g. , OISA at 279 (Todd, C.J.); OISA at 288 (Wecht, J.). And that is certainly "one basis" for viewing prior convictions as constitutionally distinct. Jones , 526 U.S. at 249, 119 S.Ct. 1215 (emphasis added). But an exclusive focus on that factor cannot be reconciled with the Supreme Court's decision in Ice , where the fact which resulted in an enhanced sentence was not a prior conviction, nor was it required by due process or the Sixth Amendment to be proved to a jury beyond a reasonable doubt. Justice Wecht notably explains that the Ice Court reached its conclusion because the concurrent-versus-consecutive-sentences decision was historically governed by legislation and not by juries. See OISA at 287 n.37. He thus references the limits to the historical role of juries in explaining why Ice found that the Apprendi rule did not apply to a non-conviction fact which increased the defendant's punishment. We do the same thing here.
An exclusive focus on the constitutional safeguards of the prior proceedings also suffers from theoretical difficulties. Suppose the person convicted of the present offense defends against recidivist sentencing on the grounds of mistaken identity, i.e. , that he is not the same person who was convicted of the earlier crime. Then, even though the defendant in the earlier case enjoyed the full panoply of Fifth and Sixth Amendment rights, the identity of the prior defendant is a factual issue that must be resolved before an enhanced sentence may be imposed. If one focuses solely on the procedural benefits of the earlier conviction, it is unclear that any principled reason exists why that factual issue need not be submitted to a jury and proved beyond a reasonable doubt, while all other factual issues which impact upon sentencing must be so submitted and so proved. More precisely, there is no evident basis in logic to support the concept that the contested fact of a prior conviction need not be found by a jury beyond a reasonable doubt, but the contested fact of a prior ARD acceptance must be.
See generally People v. Epps , 25 Cal.4th 19, 104 Cal.Rptr.2d 572, 18 P.3d 2, 5-7 (Cal. 2001) (positing various bases on which the fact of the prior conviction may be challenged, including mistaken identity and fabricated, insufficient, inaccurate, or inauthentic records).
The Justices supporting affirmance do not attempt to resolve this logical difficulty, and Justice Wecht criticizes our raising it because such circumstances are not before this Court. See OISA at 288–89 n.47. But our holding in this matter can only make a practical difference when the prior ARD acceptance is contested, because it is only then that the question of to whom it must be proved has any relevance. Notably, the jury trial guarantee as construed in Apprendi only has meaning in relation to contested facts. See Cunningham , 549 U.S. at 275, 127 S.Ct. 856 (facts admitted by the defendant do not come within the Apprendi rule); Commonwealth v. Dixon , ––– Pa. ––––, 255 A.3d 1258, 1264 (2021) (same). It is thus appropriate, for purposes of resolving the issue before this Court, to ask whether there is any meaningful difference, constitutionally speaking, between a contested prior ARD and a contested prior conviction. We are not aware of any and, as explained, the Justices supporting affirmance have not suggested one.
Although the procedural protections associated with ARD acceptance are lower than those prerequisite to criminal convictions, see OISA at 279–81 (Todd, C.J.); OISA at 291–92 (Wecht, J.), there is no present dispute they are sufficient to satisfy due process in relation to ARD – which does not involve criminal punishment. In this respect, the federal appellate courts have largely eschewed a singular focus on the term "conviction" and have instead looked to the adequacy of the procedural safeguards associated with the earlier adjudication in ascertaining whether it falls within the exception to Apprendi . Most frequently, federal courts have taken that approach in considering whether a prior juvenile adjudication can be used for recidivist sentencing notwithstanding that the prior offense was proved to a judge based on a lower standard of proof than beyond a reasonable doubt. The vast majority have ruled that juvenile adjudications can be so used because the earlier procedure satisfied due process. See United States v. Matthews , 498 F.3d 25, 35 (1st Cir. 2007) ; United States v. Jones , 332 F.3d 688, 696 (3d Cir. 2003) ; United States v. Wright , 594 F.3d 259, 264 (4th Cir. 2010) ; United States v. Crowell , 493 F.3d 744, 750-51 (6th Cir. 2007) ; Welch v. United States , 604 F.3d 408, 428 (7th Cir. 2010) ; United States v. Smalley , 294 F.3d 1030, 1032-33 (8th Cir. 2002) ; United States v. Burge , 407 F.3d 1183, 1191 (11th Cir. 2005) ; see also State v. Hitt , 273 Kan. 224, 42 P.3d 732, 740 (2002). But see United States v. Tighe , 266 F.3d 1187, 1194 (9th Cir. 2001) (reaching the opposite conclusion). Any distinction drawn between a juvenile adjudication and an ARD acceptance on the basis that only the former reflects proven conduct, see, e.g. , OISA at 279–81 (Todd, C.J.), runs headlong into the conclusions we reached in Whalen , see supra note 6 – and more fundamentally, it reflects a mere policy difference with the General Assembly as to whether ARD acceptance should constitute a valid basis for elevated sentencing in a subsequent DUI prosecution.
These observations raise the question of why the Apprendi Court viewed the fact of a prior conviction as having less stringent proof requirements than other facts impacting upon a defendant's punishment. Again, the Justices favoring affirmance propose the exception for prior convictions exists primarily because of the constitutional guarantees inherent in the criminal proceedings from which the previous convictions arose, see OISA at 279 (Todd, C.J.); see also OISA at 290–91 (Wecht, J.), that is, because of the constitutional validity of the prior conviction. As explained, however, the validity of the earlier conviction is only material at sentencing if the fact of the conviction is assumed – and it cannot be assumed where it is contested. And where it is contested, under Apprendi its existence still only needs to be proved to a judge by a preponderance. Thus, if Apprendi is understood to predicate the exception for prior convictions solely, or even primarily, on their assumed validity, the decision contains an internal disconnect because it avoids explaining how the fact of a prior conviction, if contested, stands on a different footing from any other contested fact.
Justice Wecht suggests that the fact the police included the phrase "2nd OFFENSE" in the charging document indicates the fact of the first offense is an element of the current offense that must be proved to a jury. See OISA at 290. But the police could have included that same phrase if Appellee's first DUI charge had been resolved by a criminal conviction. See generally Almendarez-Torres , 523 U.S. at 244, 118 S.Ct. 1219 ("[A] charge under a recidivism statute does not state a separate offense, but goes to punishment only.") (quoting Parke v. Raley , 506 U.S. 20, 27, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) ). Consistent with the above, this raises the question of why, logically, the first conviction, if contested, should not be considered an element of the present offense, whereas the earlier ARD acceptance should be so considered. It is insufficient to proffer that the prior conviction was obtained in compliance with the Sixth Amendment.
The explanation, then, must lie in the Apprendi Court's other observation concerning why prior convictions are qualitatively different from other contested facts affecting punishment. The Court explained that "recidivism ‘does not relate to the commission of the offense’ itself"; it contrasted this with New Jersey's biased-purpose inquiry, which went "precisely to what happened in the commission of the offense." Apprendi , 530 U.S. at 490, 120 S.Ct. 2348 (internal quotation marks omitted). It thus recognized that the fact of recidivism stands apart from other contested facts, and does not represent an element of the present offense, because it does not pertain to the defendant's conduct in committing the present offense, which is primarily what juries are empaneled to decide. Accord Almendarez-Torres , 523 U.S. at 244, 118 S.Ct. 1219 (observing "recidivism ... goes to the punishment only , and therefore ... may be subsequently decided") (emphasis in original, internal quotation marks and citation omitted). In sum, then, we would hold that, under Sections 3804 and 3806 of the Vehicle Code, a defendant's prior ARD acceptance may constitutionally be treated by the sentencing court as a prior offense. As with a prior conviction, such acceptance is a matter of public record, it has nothing to do with the facts and circumstances of the present offense, and the associated procedural safeguards, which, again, have not been challenged here, are presumed to satisfy due process. The Commonwealth must still establish the existence of the prior ARD acceptance via certified records or by whatever other means of proof the Commonwealth wishes to use. In the present controversy, Appellee has never disputed that the Commonwealth carried that burden at sentencing.
A second distinguishing feature a prior ARD acceptance shares with a prior conviction is that it is essentially binary in nature, either it occurred or it did not, and its existence can be gleaned from "prior judicial records" of "conclusive significance." Shepard , 544 U.S. at 25, 125 S.Ct. 1254 ; see supra note 13. In this regard, factual disputes over prior adjudications are likely to involve arguments over the validity and significance of court records, a topic with which judges are more familiar than lay juries. Hence, the institutional advantage juries ordinarily enjoy in resolving disputed factual issues is reduced in relation to such records. Compare People v. Montoya , 141 P.3d 916, 923 (Colo. Ct. App. 2006) (upholding enhanced sentencing based on a judicial finding that the defendant was on probation or parole when he committed the present offense, as that finding was based on "prior judicial records" of "conclusive significance"), with State v. Bray , 342 Or. 711, 160 P.3d 983, 990 (2007) (holding that whether a defendant's criminal record establishes "persistent involvement in similar offenses" must be submitted to the jury, as that inquiry involves inferences to be made from the number and frequency of prior convictions; as such, it cannot be ascertained solely from prior judicial records).
Accord Brown v. State , 2017 WL 89059, at *7 (Del. Super. Jan. 7), adopted by 170 A.3d 148 (Del. 2017) (table) (rejecting a defendant's Apprendi -based claim and holding that, for purposes of Delaware law, a Pennsylvania DUI "moves [him] into the category of repeat offender"); see also State v. Laboy , 117 A.3d 562, 568 (Del. 2015) (indicating a program of DUI rehabilitation falls under the Apprendi exception for prior convictions); State v. Tapedo , 2003 WL 22283150 (Kan. Ct. App. 2003) (same under Kansas law); cf. People v. Owens , 405 Ill.Dec. 894, 59 N.E.3d 187 (Ill. Ct. App. 2016) (concluding that a prior license revocation based on a DUI is the functional equivalent of a prior conviction).
Accordingly, we would reverse the order of the Superior Court and remand the matter for reinstatement of Appellee's judgment of sentence.
Justices Dougherty and Brobson join this opinion in support of reversal.
OPINION IN SUPPORT OF AFFIRMANCE
CHIEF JUSTICE TODD
In Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the United States Supreme Court set forth the general rule that any fact that increases the penalty for a crime is an element of the offense that must be stated in the charging document, submitted to the jury, and proved beyond a reasonable doubt. The high Court has recognized a narrow exception to that rule, applicable to the fact of a prior conviction, due in large part to the certainty and constitutional safeguards afforded in the previous criminal proceedings, including establishing guilt beyond a reasonable doubt.
The Opinion In Support of Reversal ("OISR") reasons that a defendant's acceptance of accelerated rehabilitative disposition ("ARD") on a charge of driving under the influence ("DUI") is the equivalent of a prior conviction, notwithstanding that, inter alia , the Commonwealth bears no burden of establishing guilt in an ARD proceeding and the defendant is not required to admit guilt. The OISR opines that, similar to the fact of a prior conviction, the fact of ARD acceptance may constitutionally qualify as a prior offense for sentencing purposes if found by a judge based on a preponderance of the evidence. I respectfully disagree, as such a conclusion conflicts with Apprendi and Alleyne . In my view, the significantly different procedures underlying a prior conviction and ARD acceptance render the prior conviction exception inapplicable here, and require this Court to adhere to the general rule that any fact that increases the penalty for a crime must be stated in the charging document, submitted to a jury, and proved beyond a reasonable doubt.
Accordingly, I would hold that the language in Section 3806 of the Vehicle Code, 75 Pa.C.S. § 3806, which includes acceptance of ARD as a prior offense and directs the trial court at sentencing to determine the number of ARD acceptances, if any, for purposes of enhancing the defendant's sentence, is unconstitutional under Apprendi and Alleyne . Due to this constitutional infirmity, I would affirm the judgment of the Superior Court, which vacated Appellee Steven Leonard Verbeck's sentence entered pursuant to Section 3806(a), and remand for resentencing. My reasoning follows.
- - - - - - - -
My analysis begins, as it must, with an examination of the prior conviction exception, the substance of which arose in Almendarez-Torres v. United States , 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), two years before the Court's landmark ruling in Apprendi . In Almendarez-Torres , the Court examined a federal grand jury indictment charging the defendant with violating a federal statute, 8 U.S.C. § 1326(a), which rendered it a crime for a deported alien to return to the United States without special permission, and authorized a maximum sentence of two years. Almendarez-Torres , 523 U.S. at 226, 118 S.Ct. 1219. The statute further authorized a maximum term of 20 years imprisonment if the initial "deportation was subsequent to a conviction for commission of an aggravated felony." Id. (citing 8 U.S.C. § 1326(b)(2) ).
The defendant pled guilty to violating Section 1326, and admitted that his initial deportation had resulted from three convictions for aggravated felonies. The sentencing court thereafter imposed a sentence of 85 months imprisonment, rejecting the defendant's contention that the sentence enhancement in Section 1326(b)(2) was inapplicable because his indictment failed to reference his prior aggravated felony convictions.
The high Court agreed, and held that a criminal statute which enhances a sentence based upon a prior conviction does not create a separate crime that the government must charge as a fact in the indictment but, rather, is a penalty provision authorizing an enhanced sentence for recidivists. Id. , 523 U.S. at 226-27, 118 S.Ct. 1219. Observing that the subject matter of recidivism is typically viewed as a sentencing factor, the Court examined the statutory language, structure, context, and history of the provisions, and concluded that Congress intended to set forth a sentencing factor and not a separate criminal offense. Id. at 235, 118 S.Ct. 1219.
The following term, recognizing that the fact of a prior conviction in Almendarez-Torres involved recidivism, the Court decided Jones v. United States , 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and explained why the fact of a prior conviction was constitutionally distinct from other sentence-enhancing facts. The Court opined, "unlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." Id. at 249, 119 S.Ct. 1215. The Court further expounded upon Almendarez-Torres's discussion of a prior conviction in its seminal decision in Apprendi . In Apprendi , the defendant pled guilty to possessing a firearm for an unlawful purpose, which offense carried a sentence of five to ten years. At the sentencing proceeding, the prosecutor sought application of New Jersey's hate-crime sentencing enhancement, which provided for an increased sentence if a trial court finds, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group based on race, a fact that had not been separately charged. The trial court found by a preponderance of the evidence that the defendant's offense was racially motivated, and sentenced him to 12 years imprisonment, exceeding the statutory maximum for the firearms' offense.
The Supreme Court held that the New Jersey sentencing procedure violated the defendant's Sixth Amendment right to a trial by jury, as well as his right to due process of law as guaranteed by the Fourteenth Amendment, because any fact that increases the penalty for a crime is an element of the offense. Apprendi , 530 U.S. at 483 n.10, 120 S.Ct. 2348. Accordingly, the Court declared that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348.
Germane to this appeal, while adopting the exception for a prior conviction based on its decision in Almendarez-Torres , the Court in Apprendi emphasized the constitutional protections attendant to criminal convictions (which, as I will discuss below, are absent in ARD proceedings). The Court reasoned:
Because Almendarez-Torres had admitted the three earlier convictions for aggravated felonies – all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own – no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court.
Id. at 488, 120 S.Ct. 2348 (emphasis original). The Apprendi Court stressed that such procedural safeguards undergirded the prior conviction exception:
Moreover, there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.
Id. at 496, 120 S.Ct. 2348 ; see also id. at 488, 120 S.Ct. 2348 ("Both the certainty that procedural safeguards attached to any ‘fact’ of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that ‘fact’ in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.").
Indeed, Apprendi not only cabined the prior conviction exception to those convictions arising from proceedings cloaked with the panoply of constitutional trial rights, but went further, casting some doubt on the validity of the prior conviction exception itself:
Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision's validity and we
need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence.
Id. at 489-90, 120 S.Ct. 2348 (footnote omitted).
In expressing its reservations regarding the prior conviction exception, the Apprendi Court found it "noteworthy" that the Court's extensive discussion of the term "sentencing factor" in Almendarez-Torres "virtually ignored the pedigree of the pleading requirement at issue." Apprendi , 530 U.S. at 489 n.15, 120 S.Ct. 2348 (citing United States v. Reese , 92 U.S. 214, 232-233, 23 L.Ed. 563 (1875) (Clifford, J., concurring) (providing that "the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted")).
Finally, about a decade later in Alleyne , the Supreme Court held that the Apprendi rule, applying to facts that increase the statutory maximum sentence, likewise applies to facts that increase the mandatory minimum sentence (which is at issue here). The Court acknowledged that prior convictions are excepted from the Apprendi rule, as substantively described in Almendarez-Torres , but did not revisit the issue, as the parties did not contest the exception. Alleyne , 570 U.S. at 111 n.1, 133 S.Ct. 2151.
With respect to the issue before us, this governing federal jurisprudence establishes that, while recidivism is traditionally considered to be a sentencing factor that is unrelated to the actual commission of the offense, the prior conviction exception is grounded primarily upon the constitutional guarantees that are inherent in the criminal proceedings from which the previous convictions arose. Respectfully, the OISR relies on the former sentiment in finding that Section 3806(a) of the Vehicle Code passes constitutional muster, without appreciating the significance of the latter. See OISR at 268–69 (suggesting that, because the cases applying the Apprendi rule to invalidate a sentence have involved judicial fact-finding relating to the commission of the current offense, as opposed to facts relating to a defendant's record of prior conduct, the latter may not fall within Apprendi's reach); id. at 272–73 (opining that recidivist determinations such as ascertaining the number of prior convictions committed by a defendant and determining whether a defendant previously accepted ARD are sentencing determinations not traditionally made by a jury; thereby suggesting that they are not protected under the Apprendi rule).
Contrary to the OISR, I do not view my position as incompatible with Oregon v. Ice , 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). Rather than examining the prior conviction exception to Apprendi's general rule, Ice involved the unique inquiry of whether Apprendi was even implicated by the challenged state statute, which provided that sentences for multiple offenses shall run concurrently, unless the sentencing judge finds statutorily-described facts. The Supreme Court held that the Sixth Amendment did not prohibit states from assigning to judges the factual assessment necessary to determine whether to impose sentences consecutively or concurrently, emphasizing that such function was within the prerogative of state legislatures, and not a traditional role of a jury. Id. at 168, 129 S.Ct. 711. Considering that Ice did not specifically address the scope of the prior criminal conviction exception to Apprendi's general rule, I do not interpret that decision as evidencing the high Court's retreat from its recognition in Apprendi and Jones that the constitutional procedural safeguards inherent in a prior criminal conviction are an essential predicate to the application of the prior conviction exception. This is not to say, however, that a defendant can challenge the validity of his prior conviction via an Apprendi claim. Rather, in my view, Apprendi and Jones simply instruct that, for a sentencing court to find the fact of a prior conviction, there must be a prior conviction, which is absent here, as there was only ARD acceptance.
Criminal Information, 9/27/2018, at 1, ct. 3 (capitalization in original). In addition to the general impairment count, the Commonwealth charged Verbeck with five other DUI-related counts, each of which the Commonwealth designated as a "2nd OFFENSE." Id. at 1-2, cts. 4-8.
As the OISR acknowledges, ARD does not constitute a criminal conviction. See Whalen v. Com., Dep't of Transp., Bureau of Driver Licensing , 613 Pa. 64, 32 A.3d 677, 681 (2011) (citing Commonwealth v. Lutz , 508 Pa. 297, 495 A.2d 928, 933 (1985) ). Rather,
ARD is a pretrial disposition of certain cases, governed primarily by Chapter 3 of the Pennsylvania Rules of Criminal Procedure, which suspends formal criminal proceedings before conviction and provides the accused with certain rehabilitative conditions, the completion of which results in the dismissal of the pending criminal charges and a clean record for the defendant.
J.F. v. Department of Human Services , ––– Pa. –––, 245 A.3d 658, 661-62 (2021).
To illustrate, in an ARD proceeding, there is no requirement that an evidentiary record of the alleged criminal conduct be admitted. See Pa.R.Crim.P. 313 (providing that the ARD hearing record is open to indicate the defendant's request for acceptance into the program and the defendant's understanding of the proceedings, and is closed while the trial court is apprised of the facts of the case; the record is reopened thereafter to state the conditions of the program and the defendant's acceptance thereof). The defendant's statements at the ARD hearing may not be used against the defendant in any criminal proceeding, except one based upon the falsity of the statements given. Pa.R.Crim.P. 313(b).
Critically, as discussed, our criminal procedural rules do not require a determination of guilt to be made during an ARD proceeding, as the rules do not place upon the Commonwealth the burden to prove the defendant's culpability beyond a reasonable doubt, nor do they require the defendant to admit guilt. Further, our criminal procedural rules do not require that the defendant be informed that acceptance into the ARD program may serve as a prior offense for purposes of future sentence enhancement. Rule of Criminal Procedure 312 requires only that the record reflect the defendant's understanding that: (1) acceptance and satisfactory completion of the ARD program offers an opportunity to earn dismissal of the pending charges; and (2) should the defendant fail to complete the ARD program, the defendant waives the applicable statute of limitations and the constitutional right to a speedy trial during the enrollment period. Pa.R.Crim.P. 312. The defendant is not informed that his ARD acceptance will act as a waiver of the constitutional protections afforded by Apprendi and Alleyne , which otherwise apply to sentence enhancements untethered to a prior conviction. Upon successful completion of the ARD program, the defendant may move for dismissal of the charges and, absent objection by the Commonwealth, the defendant's arrest record is expunged. Pa.R.Crim.P. 319, 320. Finally, and most notably, no criminal penalty results from a defendant's violation of the ARD conditions; rather, if the ARD conditions are violated, the case proceeds on the deferred criminal charges as provided by law. Pa.R.Crim.P. 318.
It is clear from a review of these procedural rules that ARD acceptance does not offer the constitutional safeguards that accompany a criminal conviction, safeguards on which the Supreme Court based its tolerance for excepting prior convictions from the Apprendi / Alleyne general rule. Indeed, ARD acceptance lacks the reliability of a prior conviction, as ARD acceptance evidently has no inherent reliability, considering that, if the conditions of the program are violated, the Commonwealth begins again and proceeds with a trial de novo on the deferred charges, Pa.R.Crim.P. 318, a trial at which the defendant's statements at the ARD hearing are not admissible, Pa.R.Crim.P. 313(b). I query how ARD acceptance can be sufficiently reliable for recidivist purposes when it has no inherent legal import of its own, and the OISR never addresses this glaring legal inconsistency. For these reasons, I would adhere to Apprendi's clear distinction between accepting the validity of a prior conviction "entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof." Apprendi , 530 U.S. at 496, 120 S.Ct. 2348.
I am unpersuaded by the OISR's reliance upon cases applying enhanced penalties under the Armed Criminal Career Act, 18 U.S.C. § 924 ("ACCA"), to support its contrasting position. OISR at 272 n.13. Respectfully, cases involving the ACCA are an inapt comparison because, unlike Section 3806(a), the ACCA enhances the sentence based upon a prior conviction, not ARD acceptance. See 18 U.S.C. § 924(e)(1) (providing that a person who commits an enumerated offense and has three "previous convictions" for a violent felony or a serious drug offense shall be imprisoned not less than 15 years). Thus, cases addressing the ACCA offer no insight as to whether ARD acceptance is the equivalent of a prior conviction for purposes of Apprendi and Alleyne .
It logically follows that ARD acceptance falls under the general rule of Apprendi and Alleyne , requiring that any fact that increases the penalty for a crime is an element of the offense that must be stated in the charging document, submitted to the jury, and proved beyond a reasonable doubt. These requisites were not satisfied here because, inter alia , the trial court, consistent with Section 3806, determined the fact of Appellee's prior ARD acceptance at the time of sentencing by a preponderance of the evidence. See Commonwealth v. Wolfe , 636 Pa. 37, 140 A.3d 651, 660-61 (2016) (holding that, because the challenged statute plainly required judicial fact-finding of the crime victim's age be determined at the time of sentencing by a preponderance of the evidence, the provision violated Alleyne ).
Section 3806(b)(2) provides that "[t]he court shall calculate the number of prior offenses, if any, at the time of sentencing." 75 Pa.C.S. § 3806(b)(2).
Apprendi v. New Jersey , 530 U.S. 466, 483 n.10, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("[F]acts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense."); id. at 490, 120 S.Ct. 2348 (concluding that any "facts that increase the prescribed range of penalties to which a criminal defendant is exposed" are elements of the crime).
The OISR reaches a contrary conclusion here, reasoning that the General Assembly's enactment of Section 3806(a), providing that ARD acceptance constitutes a "prior offense" for sentencing purposes, "impl[ies] a concession by the defendant that he or she, in fact, committed the offense ...." OISR at 265; see also id. at 271 ("[f]or purposes of the court's recidivism inquiry, then, [ARD acceptance] is substantially similar to a conviction based on a guilty plea in the sense that the defendant's actions in waiving his constitutional rights and accepting ARD lend sufficient reliability to those proceedings to satisfy due process.").
In this regard, the OISR relies upon this Court's decision in Whalen , supra, for the proposition that the responsibilities associated with ARD acceptance, including the payment of fees, costs, and restitution arising from a DUI offense, imply that the defendant, indeed, committed the DUI offense. OISR at 266 n.6 (citing Whalen , 32 A.3d at 684 ). Accepting the OISR's reading of Whalen in this regard does not alter my position, as the issue there was one of statutory interpretation, and not of constitutional dimension.
Almendarez-Torres v. United States , 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) ; see also Cunningham v. California , 549 U.S. 270, 274-75, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) ("As this Court's decisions instruct, the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose [an increased sentence] based on a fact, other than a prior conviction , not found by a jury or admitted by the defendant.") (emphasis added).
Respectfully, I am aware of no constitutional procedure enabling a defendant to implicitly concede guilt. While constitutional rights can certainly be waived, Commonwealth v. Ball , 637 Pa. 100, 146 A.3d 755, 766 (2016), it is well-settled that "courts indulge every reasonable presumption against waiver of fundamental constitutional rights," and "we do not presume acquiescence in [their] loss"; indeed, "[a] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (footnotes and citations omitted, emphasis added).
Consistent with this foundational law, our criminal procedural rules relating to guilty pleas – unlike the rules applicable to ARD proceedings – require that the trial court must conduct a guilty plea colloquy and determine, based upon the totality of the circumstances surrounding the entry of the plea, that the defendant had a full understanding of the nature and consequences of his plea and that he knowingly and voluntarily decided to enter the plea. Pa.R.Crim.P. 590 ; see also Commonwealth v. Hines , 496 Pa. 555, 437 A.2d 1180, 1182 (1981) (holding that, "[b]ecause 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").
As has been established, here, no guilty plea colloquy was conducted, Appellee did not admit guilt when accepting ARD, and the Commonwealth did not prove Appellee's guilt beyond a reasonable doubt during the ARD proceeding. Accordingly, in my view, ARD acceptance is not substantially similar to a prior conviction and should not be treated as such under Apprendi and its progeny.
Further unavailing is the OISR's assertion that Appellee waived his procedural due process rights by accepting ARD. Waivers of constitutional rights "not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States , 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ; see also Commonwealth v. Vega , 553 Pa. 255, 719 A.2d 227, 230 (1998) (providing that a waiver is knowing and intelligent if the right holder is aware of both the nature of the right and the risk of forfeiting it). A defendant may waive certain rights in connection with the acceptance of ARD. For example, the defendant may waive the right to the applicable statute of limitations and the constitutional right to a speedy trial during the ARD enrollment period, and the trial court, under Pa.R.Crim.P. 312, is charged with ensuring that the defendant understands the nature of such rights, and voluntarily waives them. However, the defendant is not informed that his acceptance of ARD may serve to enhance his sentence in a subsequent DUI matter or that he waives the constitutional protections afforded by Apprendi and Alleyne . Thus, there can be no knowing and voluntary waiver of the constitutional guarantees afforded by those decisions.
In closing, like the OISR, I recognize the important societal goal of deterring DUI recidivism and do not question the General Assembly's policy determination, set forth in Section 3806(a), that defendants who commit a second DUI offense after having accepted ARD may warrant greater punishment than those who have not been afforded a prior chance to reform. See OISR at 265 (emphasizing that "deterring DUI recidivism through penalties that increase in severity with each new offense is an important societal goal, including for individuals who resolve their first DUI charge through ARD"). The basis for my position, however, is that such deterrence must be carried out through constitutional means. The Supreme Court in Apprendi focused on the adequacy of the state procedures, not the substantive basis for the state sentencing enhancement, emphasizing that the "strength of the state interests that are served by the hate crime legislation has no more bearing on this procedural question than the strength of the interests served by other provisions of the criminal code." Apprendi , 530 U.S. at 475, 120 S.Ct. 2348. The same is true here: the strength of the state's interest in punishing recidivists in Section 3806, however weighty, has no bearing on the procedural question before us. The General Assembly's valid interest in deterring recidivist conduct simply must be furthered in a manner that protects the procedural due process and jury trial rights of those involved. In my view, Section 3806 fails to do that.
Because I conclude that Section 3806 violates procedural due process in violation of Apprendi and Alleyne , I do not reach Appellee's contention that it also violates substantive due process.
Justices Donohue and Wecht join this opinion in support of affirmance.
OPINION IN SUPPORT OF AFFIRMANCE
JUSTICE WECHT
On September 27, 2018, the Commonwealth filed a criminal information charging Steven Verbeck with driving under the influence ("DUI")—general impairment.1 The Commonwealth specifically designated the DUI—general impairment count as a "2nd OFFENSE."2 The decision to charge Verbeck as a second-time DUI offender was not a mere formality. That count implicated a provision in the Motor Vehicle Code which mandates increased penalties upon conviction for recidivist DUI offenders.3 Because these increased penalties are dependent upon proof of a fact—the existence of a "prior offense"—that fact constitutes an "element" of the offense which must be proven to a jury (not a judge) beyond a reasonable doubt.4 The Supreme Court of the United States has recognized only one narrow exception to this constitutional rule. That narrow exception applies only when the fact/element which boosts the sentence is the fact of a prior criminal conviction.5
Subsection 3806(a) of the Motor Vehicle Code defines a "prior offense" for purposes of a second-time DUI offense as including acceptance into the Accelerated Rehabilitative Disposition ("ARD") diversionary program.6 The ultimate question in this case is whether acceptance into ARD is a "prior conviction" that can compel increased penalties without the formalities required by the Sixth Amendment right to trial by jury, or whether it is a fact, the particulars of which must be proven beyond a reasonable doubt to a jury before it can operate to increase a defendant's sentence. The Opinion in Support of Reversal ("OISR") concludes that ARD is neither of these, but also would hold that ARD still can be considered a "prior offense" which can enhance a person's sentence without violating the Sixth Amendment. Nothing in the Supreme Court's precedents would allow this Court to sidestep the core holdings of the Apprendi line of cases in this way. In accord with those precedents, I would affirm the Superior Court's order in this case. The decision to enter into ARD is not a prior conviction for Apprendi purposes. Instead, the Commonwealth must prove the circumstances of the prior offense to a jury beyond a reasonable doubt before that offense can increase a criminal defendant's sentence.
The OISR concedes that ARD is not a conviction, nor the functional equivalent of a conviction. See OISR at 265–66.
The Sixth Amendment to the United States Constitution guarantees to those "accused" of a "crime" the right to be tried before an "impartial jury." Independent and impartial juries are a "critical protection of individual liberty." They are not
U.S. Const. amend. VI.
Bruce Antkowiak, The Ascent of an Ancient Palladium: the Resurgent Importance of Trial by Jury and the Coming Revolution in Pennsylvania Sentencing, 13 Widener L.J. 11, 16 (2003) (discussing, generally, United States v. Gaudin , 515 U.S. 506, 513, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) ).
quaint nuances existing today simply for decorative purposes . They are not to be treated as a mere vestige of a time when criminal justice could be dolled out more leisurely. They may not be readily dispensed with when efficiencies of a modern war on crime dictate. They exist as more than just a right of an individual; they are a conduit for the whole criminal system to find legitimacy by requiring the forces of government to get authorization from a committee of the governed before they may deprive one of "the governed" of life or liberty.
[J]uries, while appearing within the judicial framework, operate with a true and necessary independence from any branch of the government. Indeed, since they are constituted as a tribunal of the people, they operate as a check on the branches of government for which they are the source of authority in the first instance.
Id. (footnote omitted; emphasis in original).
The right to trial by jury, "in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt." It was in 1999, in Jones v. United States , that the Supreme Court first noted its concern that these historical Sixth and Fourteenth Amendment principles raised serious questions regarding the constitutionality of sentencing practices that allowed judges to make factual findings which increased an offender's sentence.
Alleyne v. United States , 570 U.S. 99, 104, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (citations omitted).
526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).
The following year, in Apprendi , the Court resolved the concerns that it had raised in Jones . At issue in Apprendi was a New Jersey statute that allowed a sentencing judge to impose an "extended term" of imprisonment if that judge found by a preponderance of the evidence that the underlying offense was a hate crime, even if that extension resulted in a sentence that exceeded the statutorily prescribed maximum sentence for the underlying offense. The Supreme Court held that the Sixth Amendment prohibits such a sentencing scheme. The Court ruled that the Sixth Amendment requires that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."
Apprendi , 530 U.S. at 468-69, 120 S.Ct. 2348 (citation omitted).
Id. at 491, 120 S.Ct. 2348.
Id. at 490, 120 S.Ct. 2348.
The "rule's animating principle is the preservation of the jury's historic role as a bulwark between the State and the accused at trial for an alleged offense." The Apprendi Court examined that historic function in depth, noting that, at the nation's creation, the common law treated elements of the offenses and sentencing factors as equivalents. Criminal offenses tended to be "sanction-specific": there was a particular punishment prescribed for each criminal offense. Criminal indictments had to include all of the relevant facts that were necessary to prove not only the crime, but also the facts necessary to warrant the imposition of the sentence linked to that offense. Judges were afforded no material discretion in fashioning a sentence. Judges were required to impose the sentence "annexed to the crime" and based upon the facts set forth in the indictment and proven to the jury beyond a reasonable doubt. If a prosecutor believed that a higher sentence than that prescribed by the statute was warranted, that prosecutor was obliged to charge the defendant under a different statute, and then prove to a jury all of the necessary facts to justify the sentence attached to the latter crime. Consistent with the historical practices extant at the times that the Sixth and Fourteenth Amendments were adopted, the Apprendi Court held that any "facts that increase the prescribed range of penalties to which a criminal defendant is exposed" are "elements of the crime." The Court declared that the Sixth Amendment does not permit a defendant to be "expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone."
Oregon v. Ice , 555 U.S. 160, 168, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009) (citing Apprendi , 530 U.S. at 477, 120 S.Ct. 2348 ).
Alleyne , 570 U.S. at 108, 133 S.Ct. 2151 (citations omitted).
Apprendi , 530 U.S. at 478, 120 S.Ct. 2348 (citations omitted).
Id. at 478-79, 120 S.Ct. 2348 (citations omitted).
Id. at 480, 120 S.Ct. 2348.
Id. at 490, 120 S.Ct. 2348 (citations omitted).
Alleyne , 570 U.S. at 111, 133 S.Ct. 2151.
Apprendi , 530 U.S. at 483, 120 S.Ct. 2348 (emphasis removed).
The Apprendi Court further held that the rule applies equally to circumstances in which the government mischaracterizes additional findings made by the judge as mere "sentencing factor[s]." Because New Jersey's statutory scheme transferred the jury's fact-finding function to a judge, and reduced the level of proof needed to establish an element of a crime below the constitutionally required standard, it constituted an "unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system." This was a violation of the Sixth Amendment.
Id. at 492, 120 S.Ct. 2348.
See In re Winship , 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (holding that due process requires every element of an offense to be proven by the government beyond a reasonable doubt).
Apprendi , 530 U.S. at 497, 120 S.Ct. 2348.
In the years that followed, the Supreme Court proceeded to apply the "long standing common-law practice" that lay at the heart of Apprendi to a number of circumstances. The Court invoked Apprendi to assess cases involving facts the government must prove to justify the imposition of a death sentence, criteria that permitted upward deviations from the standard range in a state sentencing guideline system, facts triggering elevated sentencing ranges in the then-mandatory federal sentencing guideline system, facts permitting a sentence in the "upper term" of a determinate sentencing scheme, and "judicial factfinding that increase[d] the mandatory minimum sentence for a crime."
Ring v. Arizona , 536 U.S. 584, 602, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
Blakely v. Washington , 542 U.S. 296, 304-05, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
United States v. Booker , 543 U.S. 220, 243-44, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Cunningham , 549 U.S. at 274, 127 S.Ct. 856.
Alleyne , 570 U.S. at 103, 133 S.Ct. 2151.
In Apprendi 's wake, the Supreme Court has consistently reaffirmed its core ruling. In Ring , the Court explained that Apprendi held that the historical roots of the Sixth Amendment entitled a defendant to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." In Blakely , the Court addressed the prior crime exception, quoting Apprendi directly: "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In Cunningham , the Court noted that it "has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence."
Ring , 536 U.S. at 602, 122 S.Ct. 2428 (quoting Apprendi , 530 U.S. at 477, 120 S.Ct. 2348 ).
Blakely , 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi , 530 U.S. at 490, 120 S.Ct. 2348 ).
Cunningham , 549 U.S. at 281, 127 S.Ct. 856.
In today's case, the OISR would conclude that the ARD-as-prior-offense statute falls outside of the Apprendi rule because the provision addresses recidivist conduct "as opposed to the commission of the present crime." The Supreme Court has never drawn this distinction. Nor is there any basis in any of the High Court's opinions that would lead us to conclude that it would do so. To the contrary, in no case in which the Court has articulated and applied the Apprendi rule has the Court ever stated that the rule applies only to the facts or circumstances of the offense for which the defendant has been charged and convicted.
OISR at 269.
It is true, as the OISR avers, that the Supreme Court also has never found that a fact related to a prior incident is the type of fact that must be proven beyond a reasonable doubt in order to comply with the Sixth Amendment. The Supreme Court has never addressed whether facts related to the offender, instead of to the present offense, are exempted from the Apprendi line of cases. The question is not settled. The OISR seizes upon the dearth of specific guidance in order to minimize what the Sixth Amendment requires. But the absence of law is not law.
Id. at 268–69 (listing cases).
In Ice , the Supreme Court considered an Apprendi -type challenge to an Oregon statute that required trial judges to impose consecutive sentences upon a judicial (not a jury) finding of certain facts. Ice , 555 U.S. at 165, 129 S.Ct. 711. The Supreme Court held that the decision to order sentences to run consecutively to each other did not fall within the scope of the Apprendi rule. This was because the decision historically was governed by legislative enactment, not by jury determination. Id. at 170, 129 S.Ct. 711. As such, the statute did not implicate traditional Sixth Amendment functions. Id. at 168, 129 S.Ct. 711. Ice is plainly distinguishable from the instant matter, as consideration of ARD as a prior offense for purposes of increasing an offender's sentence is not historically a legislative function, but instead falls squarely within the Sixth Amendment's "animating principle" of enforcing the jury's traditional "role as a bulwark between the State and the accused." Id.
The OISR maintains that its exemption of ARD from the Apprendi rule is similar to the Supreme Court's decision in Ice , because ARD is a "non-conviction fact" that increases a defendant's punishment. OISR at 273 ("We do the same thing here."). Yet, the OISR makes no attempt to liken ARD to the concurrent-versus-consecutive statute at issue in Ice . Nor does the OISR demonstrate that the fact of admission into ARD is a factor historically delegated to legislative policies and enactments, a feature that was essential to the Supreme Court's ruling in Ice . Ice , 555 U.S. at 170, 129 S.Ct. 711. Instead, the OISR extensively analogizes and synonymizes ARD with a prior conviction, all of which is not only factually and legally incorrect, but also irrelevant if indeed the OISR holds that admission into ARD is neither a prior conviction nor a fact that must be proven to a jury, and instead something akin to the statute at issue in Ice .
The OISR attempts to resolve the question by cobbling together snippets from the Supreme Court's pre- Apprendi cases in an effort to exempt ARD from the strict procedural requirements of the Sixth Amendment. The endeavor is misguided and unconvincing. The OISR cites Almendarez-Torres for the proposition that recidivism "is as typical a sentencing factor as one might imagine," and is "a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Then, the OISR quotes Jones v. United States , in which the Supreme Court explained that, "unlike virtually any other consideration used to enlarge the possible penalty for an offense ..., a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." The OISR's citations beg the question: why would one presume that ARD is a "prior offense?" In the post- Apprendi world, these cases do not permit the broad use of any fact or circumstance related to an offender's past conduct. To the contrary, in the wake of Apprendi , the Supreme Court has confined those earlier decisions strictly to the circumstance of a formal prior conviction . There is little reason to suppose that the Court would extend those pre- Apprendi precedents any further. It is more likely that the Court would abrogate those cases rather than extend them.
OISR at 267–68 (citing Almendarez-Torres , 523 U.S. at 230, and 243, 118 S.Ct. 1219 ).
Id. at 269–70 (quoting Jones , 526 U.S. at 249, 119 S.Ct. 1215 ).
While the Apprendi Court put an end to judicial fact-finding in the sentencing realm, it had no choice but to recognize the exception to its rule for prior convictions. But it did so begrudgingly. Noting that the prior conviction exception constituted an "exceptional departure from the historic practice," the Apprendi Court suggested that Almendarez-Torres "arguabl[y] ... was incorrectly decided." However, because the parties before it did not challenge the exception's "validity," the Apprendi Court declined to revisit Almendarez-Torres and was obliged to treat that case's holding "as a narrow exception" to the Apprendi rule. Perhaps signaling a willingness to reconsider Almendarez-Torres , the Supreme Court noted for a second time in Alleyne that no one had yet challenged the viability of the prior conviction exception. And, in Shepard v. United States , Justice Clarence Thomas noted that a majority of the members of the Court as comprised at the time in 2005 had opined in various decisions that Almendarez-Torres was "wrongly decided."
See Almendarez-Torres , 523 U.S. at 244, 118 S.Ct. 1219.
Apprendi , 530 U.S. at 487, 120 S.Ct. 2348.
Id. at 489, 120 S.Ct. 2348.
Id. at 490, 120 S.Ct. 2348.
Alleyne , 570 U.S. at 111, n.1, 133 S.Ct. 2151.
544 U.S. 13, 27, 125 S.Ct. 1254, 161 L.Ed.2d 205 (Thomas, J, concurring in part) (citations omitted).
Notwithstanding this evidence that the prior conviction exception stands "on shaky ground," the OISR not only champions it; it leaps far beyond it, expanding the exception to encompass a non- conviction circumstance: ARD. The Supreme Court already has considered recidivism and has limited its use only to formal criminal convictions. The OISR ignores this. It emphasizes "recidivism" while ignoring the Supreme Court's post- Apprendi treatment of the prior conviction exception. The OISR's reasoning is untethered to any of the operative and binding text of the relevant Supreme Court opinions. Almendarez-Torres addressed prior convictions . The exception has never been extended to any fact or circumstance related to an offender's past criminal (or non-criminal) conduct. Unsurprisingly, the Supreme Court consistently has referred to the prior conviction exception as one encompassing only prior convictions , nothing more. Not once has the Court indicated that the exception is broader than that. If anything, the Court appears poised to restrict, or eliminate entirely, the exception, not to expand or add to it. There is no reason to believe that the Supreme Court's precedents open the door through which the OISR would walk.
Meg E. Sawyer, Note, The Prior Convictions Exception: Examining the Continued Viability of Almendarez-Torres Under Alleyne , 72 Wash & Lee L. Rev. 409, 412 (2015).
The Supreme Court already has instructed courts on how to assess and categorize a statutory sentencing factor for Sixth Amendment purposes. The general rule bears repeating here: the Sixth Amendment right to a jury trial requires that any fact that increases an offender's sentence must be proven to a jury beyond a reasonable doubt, unless that fact is a prior conviction. The exception arises because the prior conviction already resulted from a process imbued with all of the essential constitutional protections. The question in today's case is whether ARD is a "fact," triggering the Apprendi rule, or rather a "sentencing factor," which does not. The OISR answers the question by venturing into new theories and attempting to create new exceptions. This is error. We must follow the Supreme Court's articulated test.
The OISR concedes that one reason prior convictions currently are exempted from the Apprendi protocol is because they arose only "after the defendant benefitted from the protections guaranteed by the Sixth Amendment." OISR at 273. The OISR then addresses at length the "theoretical difficulties" that arise from focusing upon the constitutional safeguards that exempt prior convictions from factual proof in future prosecutions. Among these "difficulties," the OISR explains, is the possibility that certain aspects of that conviction may be contested later by a defendant and require proof in the future prosecution. Such circumstances are not currently before the Court and should not distort our focus. That said, these purported "difficulties" do not justify creating new exceptions to the Apprendi rule. We cannot mischaracterize ARD for Apprendi purposes in order to avoid some hypothetical consequence not at issue in this case.
In an effort to show that the procedural safeguards attendant to a criminal conviction are not the only way that a sentencing factor can evade the Apprendi rule, the OISR notes that several federal courts have held that the fact of a juvenile adjudication can be used for purposes of determining recidivism without first being found by a jury, notwithstanding that such adjudications require fewer procedural protections as a constitutional matter. OISR at 274. The OISR discerns no reason to distinguish ARD from juvenile adjudications. Id. Yet, this conclusion "runs headlong" into the OISR's own assertion that ARD is not a prior adjudication but is instead a sentencing factor similar to that at issue in Ice . See OISR at 273–74; Ice , 555 U.S. at 170, 129 S.Ct. 711. Moreover, the asserted parallel between ARD and juvenile adjudications is in any event just as inapt as the OISR's comparison of the former to a criminal conviction. It is true that juvenile adjudications are not subject to the constitutional right to a jury trial. But the adjudication nonetheless requires proof of the commission of the offense beyond a reasonable doubt, as well as all of the other constitutional trial rights. An adjudication of juvenile delinquency shares no similarities with a diversionary program such as ARD for purposes of Apprendi .
As I explain below, the OISR's maneuverings between prior convictions, juvenile delinquency adjudications, and sentencing factors that escape Apprendi are unnecessary, and each of them ignores the Supreme Court's teachings. We must ask only whether "whether the fact constitutes an ‘element’ or ‘ingredient’ of the charged offense." Alleyne , 570 U.S. at 107, 133 S.Ct. 2151 (citations omitted). The OISR's comparisons and ruminations are flawed, and are in any event irrelevant to the ultimate inquiry.
See Ice , supra , n.37.
In Alleyne , the Court explained that the "touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of the charged offense." The dispositive assessment, the Court has noted, is "one not of form, but of effect." "If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt." The guiding principle underlying Apprendi and its progeny is the constitutional obligation "to reserve to the jury the determination of facts that warrant punishment for a specific statutory offense."
Alleyne , 570 U.S. at 107, 133 S.Ct. 2151 (citations omitted).
Apprendi , 530 U.S. at 494, 120 S.Ct. 2348 ; Ring , 536 U.S. at 602, 122 S.Ct. 2428 (quoting Apprendi , 530 U.S. at 494, 120 S.Ct. 2348 ).
Ring , 536 U.S. at 602, 122 S.Ct. 2428 (citing Apprendi , 530 U.S. at 482-83, 120 S.Ct. 2348 ).
Southern Union Co. v. United States , 567 U.S. 343, 349, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012) (quoting Ice , 555 U.S. at 170, 129 S.Ct. 711 ).
When considering whether the nature of a circumstance is a "fact" or a "sentencing factor," the question is not whether the circumstance relates to the present offense or to a past one, or whether it speaks to the offender or to the offense, or whether it touches upon recidivism or upon future behavior. The question simply is whether it is an "element" or an "ingredient" of the charged statutory offense. This inquiry is consistent with Apprendi 's recalibration of modern sentencing procedures to conform to those that were utilized at the nation's founding.
See Apprendi , 530 U.S. at 478-80, 120 S.Ct. 2348.
Using the correct legal framework, the answer is obvious. In the criminal information, the Commonwealth expressly charged Verbeck as a second-time DUI offender. Once Verbeck was convicted of this offense as charged, the trial court was bound by law to sentence him to the higher penalties statutorily prescribed for the commission of a second DUI offense under 75 Pa.C.S. § 3804(a)(2). The effect of a jury's verdict on such a charge is to simultaneously convict the second-time offender of DUI and to authorize the imposition of increased penalties for repeat offenders, which is consistent with the criminal practices at the time of the adoption of the Sixth Amendment. Based upon the history and purposes animating the Supreme Court's Apprendi line of cases, the "2nd OFFENSE" designation undoubtedly constituted an "element" or an "ingredient" of the offense, and was a "fact" for purposes of the Sixth Amendment that must be proven to a jury beyond a reasonable doubt.
Criminal Information, 9/27/2018, at 1, ct. 3.
Apprendi , 530 U.S. at 478, 120 S.Ct. 2348 (citations omitted).
Alleyne , 570 U.S. at 107, 133 S.Ct. 2151 (citations omitted).
In charging Verbeck as a second-time offender, the Commonwealth was required to prove Verbeck's prior offense beyond a reasonable doubt to the jury in the instant prosecution. In this instance, the alleged prior offense was Verbeck's previous admission into ARD, as authorized by 75 Pa.C.S. § 3806(a). As with all Apprendi -type "facts," the only way that the Commonwealth could be relieved of its evidentiary burden is if ARD constitutes a prior conviction . It unequivocally does not. Indeed, even the OISR agrees.
See , e.g. , Blakely , 542 U.S. at 301, 124 S.Ct. 2531 (recognizing prior conviction exception).
See OISR at 265 ("A defendant's acceptance of ARD does not constitute a conviction.").
The "animating principle" of the Sixth Amendment's right to a trial by jury is the criminal defendant's "right to have a jury find those facts beyond a reasonable doubt" that operate to increase his or her sentence. For all practical purposes, a prior conviction is exempted from this broad mandate because the circumstances that led to that conviction already have been proven to a jury beyond a reasonable doubt. That conviction, in other words, comes pre-packaged with the protection of all of the constitutional rights that are required to satisfy the Sixth Amendment. ARD, on the other hand, contains the protection of none of those rights, nor any other relevant constitutional rights for that matter.
Ice , 555 U.S. at 168, 129 S.Ct. 711 ; Alleyne , 570 U.S. at 111, 133 S.Ct. 2151 (citing Apprendi , 530 U.S. at 484, 120 S.Ct. 2348 ).
Prior criminal convictions differ from ARD in a number of other substantive ways as well. The conviction occurs only after the criminal defendant has been represented by competent and effective defense counsel, who reviewed the case, prepared and filed motions, met with the defendant, and vigorously constructed a defense (even if that defense was nothing more than challenging the Commonwealth's proof at trial). The defendant then is afforded a speedy and public trial, at which the Commonwealth must shoulder the burden of proof and must prove each and every element of the charged offenses to the jury (or judge in a bench trial) beyond a reasonable doubt. The defendant is accompanied by his or her attorney, who objects to inadmissible evidence and advocates in the defendant's best interests. The defendant is entitled to confront the witnesses against him or her through cross-examination, to present his or her own witnesses, and to testify on his or her own behalf. Only after all of these constitutional protections have been satisfied, or voluntarily, knowingly, and intelligently waived by the defendant, can a jury convict that defendant. It is because all of these procedural and substantive constitutional safeguards have been provided that such a conviction requires no additional proof to be used to increase a defendant's sentence in a future case.
Admission into ARD, on the other hand, requires no such constitutional compliance. In Commonwealth v. Lutz, we explained the purpose of Pennsylvania's ARD program:
508 Pa. 297, 495 A.2d 928 (1985).
ARD ... is a pretrial disposition of certain cases, in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant's successful participation in a rehabilitation program, the content of which is to be determined by the court and applicable statutes.
Under the ARD rules, which this Court created in 1972 pursuant to our authority to supervise the lower courts, the district attorney has the discretion to refuse to submit a case for ARD, and if the case is submitted for ARD, the court must approve the defendant's admission. These rules ... also provide that the defendant must agree to the terms of the ARD, and that after he has completed the program successfully, the charges against him will be dismissed, upon order of court. If he does not complete the ARD successfully, he may be prosecuted for the offense with which he was charged. The district attorney's utilization of ARD is optional under the rules.
The impetus behind the creation of such rules was the belief ... that some "cases which are relatively minor or which involve social or behavioral problems ... can best be solved by programs and treatments rather than by punishment."
Id. at 931 (citations omitted).
ARD is a diversionary program. It is not a trial. When a defendant is identified as an ARD candidate, he or she is proffered ARD conditions, to which he or she must consent. If the defendant accepts those conditions, he or she must appear (with counsel) before a judge and, under oath, agree to them, typically orally and in writing. The judge must accept both the conditions and the defendant's willingness to partake in the diversionary program. Once the defendant's entry into ARD is accepted by the judge, the practical effect of this diversionary program is to hold the criminal case in abeyance until the defendant successfully completes the program, at which point that case is dismissed and the defendant's record expunged. If the defendant fails to complete the program, the case is listed for trial.
By agreeing to enter ARD and to complete the terms of the program, the defendant is not convicted of any crime. The defendant never admits guilt nor the veracity of any of the facts underlying the charged offense(s). He or she waives no constitutional rights, except the right to a speedy trial due to the length of time it takes to complete the program. There is no trial, there are no witnesses, and there are no defenses. There are no motions to be litigated, no evidence to object to, no witnesses to confront. The Commonwealth has no burden and is required to prove no factual allegations, let alone prove them beyond a reasonable doubt. Put simply, ARD is an opportunity for (mostly) first-time non-violent, minor offenders to be given a chance to clear their criminal records. ARD bears no similarities to a criminal conviction, and cannot be treated as the equivalent thereof.
Although the OISR admits that ARD is not a prior criminal conviction, it nonetheless attempts to draw comparisons between the two in an attempt to demonstrate that ARD should be exempted from the Apprendi rule. None of the OISR's arguments are persuasive. The OISR lists some of the protections enjoyed by an ARD defendant, noting that the defendant is not required to participate in ARD, and that, by the time the defendant does enter the program, he or she has been advised of the charges and has had a preliminary hearing. The defendant also is represented by counsel, who can review pretrial discovery. While important, these procedural protections are not what places prior convictions in a separate category for Apprendi purposes. That the defendant enjoyed some constitutional protections (not including the preliminary hearing, which is not constitutionally required) does not mean that ARD can be treated in the same manner as a criminal conviction. Again, with ARD, there is no trial, no jury, no admission or finding of guilt, no cross-examination, and no proof beyond a reasonable doubt. The OISR's identification of some minor pre-trial protections does not erase these undeniable differences.
See OISR at 269–70.
Id.
See Coleman v. Alabama , 399 U.S. 1, 9-10, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (plurality).
The OISR suggests that, because the ARD defendant does not have to accept the ARD offer or because he or she has statutory notice that ARD can serve as a prior offense for DUI purposes, ARD can escape the Sixth Amendment's requirements. This too is incorrect. The Sixth Amendment does not simply step aside because a person enters into a diversionary program. Nowhere in the Supreme Court's precedents is there support for the proposition that entering a diversionary program functions as a waiver of the Sixth Amendment in future cases. To the contrary, as noted, the Court's decisions have, at most, tolerated one narrow exception for prior convictions. The Court has expressed no inclination toward expanding that exception or creating a new one to encompass a defendant's decision to opt into a program like ARD. If anything, the Court appears more inclined to do away with any exceptions to the Sixth Amendment's strict requirements.
The argument that section 3806 purportedly provides notice to defendants that entry into ARD will constitute a prior offense for future DUI prosecutions fails to manufacture a valid in futuro waiver of the defendant's Sixth Amendment rights. Any waiver of a constitutional right must be knowing, intelligent, and voluntary. A waiver must be a deliberate, conscious act by the defendant. It cannot occur by happenstance or automatically by virtue of a statute. There is no evidence in the record before this Court that Verbeck was provided actual notice at the time he entered into the ARD program to the effect that his participation in ARD would serve as a prior offense in some hypothetical future case. Even then, Verbeck would have had to choose knowingly, intelligently, and voluntarily to waive his future Sixth Amendment rights. He cannot not simply be told now that he did so then, as today's OISR suggests.
See Commonwealth v. Ball , 637 Pa. 100, 146 A.3d 755, 767 (2016) (explaining that, although any constitutional right can be waived, "[w]e are unaware of any constitutional right that can be waived by operation of a rule or procedure that does not explicitly provide for the waiver."); see also Commonwealth v. Goodwin , 460 Pa. 516, 333 A.2d 892, 894 (1975) (requiring the waiver of a constitutional right to be "knowing, intelligent and voluntary").
See Commonwealth v. Carey , 235 Pa.Super. 366, 340 A.2d 509, 510 (1975) (quoting Johnson v. Zerbst , 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ).
The OISR finds no material difference between ARD and a prior conviction because the ARD defendant "had the right to require the Commonwealth to prove his guilt on every element of his first DUI charge to a jury beyond a reasonable doubt," but "voluntarily waived that right in favor of ARD acceptance." The OISR points to no place in this record, or in the ARD record, where Verbeck voluntarily waived the right. That is because there is no evidence of such a broad waiver. Nor does the OISR cite any case from this Court or the United States Supreme Court that supports the idea that entry into ARD, ipso facto , constitutes a waiver of any constitutional rights. ARD is a diversionary program pursuant to which the case file is set aside while the defendant completes the conditions. The defendant is not required to waive his right to have the charges proven, nor is the ARD judge required to ask for any such waiver. This is because the right is never actually waived. Like the case file, that right, like all of the other constitutional trial rights, is simply set aside temporarily. If the defendant fails to complete the ARD conditions, those rights are once again available to the defendant. They have never been waived. The OISR's bald, unsupported claim to the contrary is incorrect.
OISR at 271.
The OISR even goes a step further, claiming that entry into ARD is "substantially similar" to a guilty plea. The two are nothing alike. In a guilty plea, the defendant executes a lengthy written waiver that explains to the defendant each and every constitutional right that he or she is waiving by pleading guilty, and that notifies the defendant that his or her appellate rights are significantly curtailed by the plea. The trial judge then must colloquy the defendant under oath in open court, to ensure that the defendant is aware of all of his or her rights for a second time, and to certify that the defendant's waiver of all of those rights is knowing, intelligent, and voluntary. ARD requires no such waiver. The defendant must only accept the conditions of the program. After hearing a brief statement of the facts, the judge must formally admit the defendant into the program. The defendant does not waive any of his rights, as he or she must in a guilty plea, except the right to a speedy trial. A guilty plea results in a conviction and a criminal record. Completion of ARD results in a dismissal and an expungement. The two are not "substantially similar" in any way.
Id.
See generally Pa.R.Crim.P. 590.
Id.
See Pa.R.Crim.P. 313.
See Pa.R.Crim.P. 312(2).
Rule 313 of the Pennsylvania Rules of Criminal Procedure requires the ARD judge to hear an off-record summary of the facts. The defendant is not required to accede to the accuracy or veracity of those facts. He or she is not required to admit guilt in any fashion. While the decision to enter ARD reflects a choice not to fight the charges, that decision cannot be taken as a "concession by the defendant that he or she, in fact, committed the offense." Because the program allows for the expungement of one's criminal record, and allows for the case to be dismissed without the time, expense, and stress of a criminal trial, many undoubtedly choose ARD as a better, safer, and more beneficial option than fighting the charges and risking a more severe penalty, regardless of whether they are guilty or not.
See OISR at 265. The OISR goes even further in its attempt to synonymize ARD with a prior conviction by asserting broadly that, pursuant to this Court's similar and factually unsupportable speculation in Whalen v. Commonwealth , 613 Pa. 64, 32 A.3d 677 (2011), it is "logically incompatible" for a defendant to enter ARD and also to maintain his or her innocence of the crimes charged. OISR at 266, n.6. The OISR (like the Whalen Court) assumes too much. As I explain herein, we have no way of knowing why a person enters into the program. The defendant is not required to admit guilt before his or her admittance. We can only surmise. I cannot subscribe to a constitutional analysis premised—even in part—upon speculation, supposition, and assumption.
Despite offering no empirical data, scholarship, or social science backing its assertion that only the guilty enter ARD, and despite there being a similar dearth of support in Whalen for its even broader assumptions, the OISR nonetheless criticizes my retort to its premise as unsupported conjecture. It is hardly conjecture to acknowledge that not all of those who find themselves ensnared by the criminal legal system are guilty of the crimes charged, or to recognize that some of those charged defendants elect to pursue a path of lesser resistance to resolve the charges against them, including choosing ARD over a prolonged trial. Former Justice Eakin recognized as much in his dissent in Whalen . Justice Eakin explained that, while ARD "requires no admission of guilt by the accused nor proof thereof by the prosecution, ... to state that every person who enters ARD has ‘violated’ [the DUI statute] is just not accurate." Justice Eakin then astutely recognized that some defendants "facing DUI charges often request ARD, to be sure, for if available, acceptance eliminates mandatory incarceration," which he observed was "not an insignificant consideration."
Id.
See The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/Exoneration-by-Year.aspx (depicting a year-by-year graph for the 3,371 exonerations that have occurred in the United States since 1989) (last visited January 31, 2023); see also Josh Bowers, Punishing the Innocent , 156 U. Pa. L. Rev. 1117, 1124 (2008) ("There is no longer any serious question that innocent people are charged with and convicted of crimes.").
Whalen , 32 A.3d at 687 (Eakin, J., dissenting).
Id.
That some defendants opt not to fight charges despite their innocence needs no empirical support to warrant acknowledgment by this Court. "It is hardly a new observation that guilty pleas may prove attractive to the innocent." The practice already is widely accepted as a common occurrence in the criminal legal system. It is, instead, the OISR's "everyone who enters ARD is guilty" approach that has been disproven over time. It is easy to presume that, in a system that offers "adversarial trials in which anyone accused of criminal activity may contest his guilt," innocent defendants "will in fact contest charges lodged against them." However, the legal annals are replete with instances in which "[i]nnocent defendants may nonetheless [accept plea offers] rather than contest their guilt[.]" "[B]ecause of prior experiences of pressures applied to them as they are processed through the criminal justice system," many innocent individuals "conclude that it is in their best interest to plead guilty although they know they did not commit the crime with which they are charged." For instance, an innocent defendant might elect to plead guilty because of:
See Bowers, supra n.76, at 1120.
John L. Barkai, Accuracy Inquiries for all Felony and Misdemeanor Pleas: Voluntary Pleas but Innocent Defendants? 126 U. Pa. L. Rev. 88, 95-96 (1977).
Id. at 96.
Id.
(1) the potentially overwhelming nature of the evidence against him; (2) the disparity in punishment between conviction by plea and conviction at trial; (3) a desire to protect family or friends from prosecution; (4) the conditions of pretrial incarceration; (5) a concern that fuller inquiry at trial may result in disclosure of additional facts which could increase the sentence in the present case or result in additional prosecutions; (6) a desire to expedite the proceedings because of feelings of hopelessness, powerlessness, or despair when faced with the power of the state; (7) pressure from family, friends, or attorneys; and (8) "ignorance, deception, delusion, feelings of moral guilt, or self-destructive inclinations."
Id. at 96-97 (citing, inter alia , State v. Reali , 26 N.J. 222, 139 A.2d 300 (1958) (a guilty plea was entered after defendant was told by his attorney that his pretrial escape was tantamount to signing a confession); Cortez v. United States , 337 F.2d 699 (9th Cir. 1964) (the defendant's guilty plea was entered in exchange for a promise that his pregnant wife would be allowed to plead guilty to a lesser charge); Kent v. United States , 272 F.2d 795 (1st Cir. 1959) (a guilty plea was induced by a promise not to prosecute defendant's fiancee); Newbold v. State , 492 S.W.2d 809 (Mo. 1973) (the defendant agreed to plead guilty in order to be transferred out of the local jail); People v. Johnson , 33 A.D.2d 573, 305 N.Y.S.2d 274 (1969) (defendant's guilty plea was entered in order to obtain treatment for narcotic addiction); Morgan v. State , 287 A.2d 592 (Me. 1972) (plea entered to expedite the process to alleviate emotional duress caused by the charges); People v. Heirens , 4 Ill.2d 131, 122 N.E.2d 231 (1954) (defendant succumbed to pressure from defense attorneys and parents and pleaded guilty); and State v. Durham , 108 Ariz. 327, 498 P.2d 149 (1972) (defendant's plea was based upon emotions rather than a concession of actual guilt)).
While the actual number of innocent defendants who plead guilty is not quantifiable, there can be no real question that "innocent defendants do plead guilty." For many defendants, particularly those facing petty charges, "the best resolution is a quick plea in exchange for a light, bargained-for sentence." "In low-stakes cases plea bargaining is of near-categorical benefit to innocent defendants, because the process costs of proceeding to trial often dwarf plea prices." Simply put, it is well-documented that guilt is not the only reason that criminal defendants plead guilty. The same undoubtedly holds true for defendants who elect to resolve their cases through diversionary programs. This observation is not remarkable. The OISR's denial of it is.
Id. at 97.
See Bowers, supra n.76, at 1120.
Id. at 1132; see also id. at 1134 ("The costs of pleading guilty may prove so comparatively low in minor cases that pleading becomes a reasonable option even before assessing the real danger of trial conviction and subsequent sentence. Like the driver who summarily pays the undeserved traffic ticket, defendants may conclude that the fight is not worth it, especially when they may plead guilty at arraignments, just hours after their arrests. It is small wonder, then, that so many defendants--innocent and guilty--have little interest in engaging in process in these cases and simply wish to "get [them] over with.").
The OISR itself notes that "[n]one of that makes any difference." Ultimately, I agree. A defendant's reasons for choosing to enter ARD are irrelevant to our Apprendi analysis. I do not offer this exploration of a defendant's possible reasons in order to suggest otherwise, but rather to expose the fallacy in the OISR's assumption that entrance into ARD, ipso facto , is an admission of guilt. The OISR assumes guilt, while simultaneously discounting any other motive as irrelevant. The OISR cannot have it both ways. ARD is not a prior conviction for Apprendi purposes. No amount of speculation by the OISR as to the defendant's motives can change that. A significant number of defendants enter ARD across Pennsylvania each year. It is factually and legally unsupportable to suggest that every one of them did so only because they were guilty of the charge. It is even worse to use that baseless and unprovable assumption as a reason to deny a person his or her Sixth Amendment rights.
OISR at 266, n.6.
ARD is not a prior criminal conviction. The ARD process shares no substantive similarities with a formal criminal conviction. As such, it cannot be treated the same for purposes of the Sixth Amendment. Nor is ARD a sentencing factor historically delegated to legislative policies and enactments. Thus, it can only be a fact for Apprendi purposes, and the Commonwealth must prove the circumstances of that earlier offense beyond a reasonable doubt before it may use that offense as a sentencing-enhancing factor. This is not, as the OISR proclaims, a mere disagreement with the General Assembly. The recidivist statute plainly violates the Sixth Amendment.
See OISR at 266, n.6.
Justice Donohue joins this opinion in support of affirmance.