Com. v. Richards, J.

J-E01004-22

2022 PA Super 170

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JONATHAN RICHARDS :
:
Appellant : No. 1673 EDA 2020

Appeal from the Judgment of Sentence Entered August 19, 2020
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000738-2020

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., STABILE,
J., KUNSELMAN, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

OPINION BY KING, J.: FILED OCTOBER 4, 2022

Appellant, Jonathan Richards, appeals from the judgment of sentence

entered in the Bucks County Court of Common Pleas, following his guilty plea

to two counts of driving under the influence (“DUI”) and related Motor Vehicle

Code violations.1 We affirm.

The relevant facts and procedural history of this appeal are as follows.

Police arrested Appellant for DUI in March 2011. Appellant subsequently

accepted and completed participation in the Accelerated Rehabilitative

Disposition (“ARD”) program in conjunction with this offense. On August 31,

2019, police again stopped Appellant for DUI. The Commonwealth charged

Appellant with one count of DUI—general impairment (second offense), one

count of DUI—highest rate of alcohol (second offense), and summary traffic

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1 75 Pa.C.S.A. §§ 3802(a)(1), (c), 3309, 3112(a)(3)(i).
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offenses.

On May 20, 2020, this Court issued its opinion in Commonwealth v.

Chichkin, 232 A.3d 959 (Pa.Super. 2020), holding that the portion of the DUI

statute equating prior acceptance of ARD to a prior conviction for purposes of

imposing a mandatory minimum sentence for a second or subsequent DUI

offense was unconstitutional. That same day, Appellant filed a pretrial motion

to bar consideration of the prior ARD acceptance at sentencing. On June 23,

2020, the Commonwealth filed a motion to treat the current DUI offense as a

second or subsequent offense. The Commonwealth stated that, per Chichkin,

it was permitted the opportunity to prove beyond a reasonable doubt that

Appellant had committed the 2011 DUI underlying his ARD acceptance.

On June 24, 2020, Appellant filed a motion to bar the Commonwealth

from attempting to prove the prior ARD/DUI offense. Specifically, Appellant

argued that it would be illegal for the court to use his acceptance of ARD to

enhance the sentence for the subsequent DUI. Also on June 24, 2020,

Appellant entered an open guilty plea to all charges.

The court conducted Appellant’s sentencing hearing on August 19, 2020.

At that time, the court permitted the Commonwealth to present testimony

from Detective Anthony Marsaglia, the arresting officer in Appellant’s 2011

DUI case. Based upon this testimony, the court held that the Commonwealth

had proven beyond a reasonable doubt that Appellant had committed a DUI

underlying his previous ARD acceptance. Accordingly, the court treated

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Appellant as a second-time DUI offender in the instant case. The court

sentenced Appellant to three (3) to twenty-three (23) months’ incarceration,

plus a concurrent term of twenty-four (24) months of probation.

On September 1, 2020, Appellant timely filed a notice of appeal. The

court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal on September 4, 2020. Appellant timely filed his

Rule 1925(b) statement on September 24, 2020.

On October 8, 2021, a three-judge panel of this Court vacated the

judgment of sentence and remanded the matter for the trial court to

resentence Appellant as a first-time offender. The Commonwealth timely filed

an application for reargument en banc on October 22, 2021. On December

20, 2021, this Court granted en banc review and withdrew the prior panel’s

decision.

Appellant now raises five issues for this Court’s review:

Whether treating an “ARD acceptance disposition” as the
equivalent of a prior conviction under 75 Pa.C.S. § 3806 for
recidivist mandatory minimum sentencing purposes under
75 Pa.C.S. § 3804 violates substantive and procedural due
process of law?

Is it not a fundamentally unfair violation of due process for
a successfully completed ARD to be considered a prior
offense for the imposition of a recidivist mandatory
minimum sentence?

Did not the unconstitutional statute, 75 Pa.C.S. § 3806,
result in not only an unconstitutional mandatory minimum
sentence, but also an illegal recidivist grading of the offense
as a misdemeanor of the first degree under 75 Pa.C.S.A. §
3803 that unconstitutionally raised the maximum penalty

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for the DUI offense?

Would not any purported agreement to waive a challenge to
the unconstitutional statute, 75 Pa.C.S. § 3806, be an
unenforceable agreement to an illegal sentence?

Whether the [trial] court erred by imposing a mandatory
minimum sentence based on evidence of the defendant’s
guilt on the ARD acceptance case at sentencing even though
this procedure did not cure the constitutional deficiencies of
the statute, and by failing to recognize that any procedures
to rewrite an unconstitutional statute may only be done by
the legislature, not the judiciary?

(Appellant’s Brief at 2-3).

“The defendant or the Commonwealth may appeal as of right the legality

of the sentence.” 42 Pa.C.S.A. § 9781(a). “As long as the reviewing court

has jurisdiction, a challenge to the legality of the sentence is non-waivable

and the court can even raise and address it sua sponte.” Commonwealth v.

Infante, 63 A.3d 358, 363 (Pa.Super. 2013). “A challenge to the legality of

sentence is a question of law; our standard of review is de novo and our scope

of review is plenary.” Commonwealth v. Alston, 212 A.3d 526, 528

(Pa.Super. 2019).

“A claim that implicates the fundamental legal authority of the court to

impose a particular sentence constitutes a challenge to the legality of the

sentence.” Infante, supra at 363 (quoting Commonwealth v. Catt, 994

A.2d 1158, 1160 (Pa.Super. 2010) (en banc)). “If no statutory authorization

exists for a particular sentence, that sentence is illegal and subject to

correction. An illegal sentence must be vacated.” Id. (quoting Catt, supra

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at 1160).

On appeal, Appellant argues that Section 3806, which defines “prior

offenses” for purposes of DUI sentencing, violates both substantive and

procedural due process by equating ARD acceptance with a prior conviction

for purposes of sentencing. While Appellant recognizes that the legislature

may treat recidivists with an aggravated punishment, he asserts that “[a]n

acceptance of ARD, unlike a conviction, involves no finding of culpability for a

charged offense because there is an absence of any guilt determination.”

(Appellant’s Brief at 17). Appellant also claims “that it is fundamentally unfair

and a violation of due process for an acceptance of ARD that was successfully

completed[,] to years later be considered a ‘prior offense’ under Section

3806….” (Id. at 37). Appellant insists “that due process fairness principles

require that the Commonwealth’s valid legal agreement with a defendant must

be enforceable.” (Id. at 34). Further, Appellant asserts that he did not waive

his right to challenge the constitutionality of Section 3806.

Further, Appellant contends that “[t]he procedure employed by the

[trial] judge did not cure the unconstitutional Section 3806.” (Id. at 47-48).

Appellant contends that our “legislature’s intentions with Section 3806 are

clear by its terms,” and the statute violates the U.S. Supreme Court’s ruling

in Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013). (Id. at 48). Based upon the foregoing, Appellant concludes that this

Court must find Section 3806 to be unenforceable. We disagree.

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“Section 3804 [of the Motor Vehicle Code] sets forth mandatory

minimum sentence terms for first, second, and subsequent DUI offenses.”

Chichkin, supra at 963. Section 3806 governs “prior offenses” as follows:

§ 3806. Prior offenses

(a) General rule.—Except as set forth in subsection
(b), the term “prior offense” as used in this chapter shall
mean any conviction for which judgment of sentence has
been imposed, adjudication of delinquency, juvenile
consent decree, acceptance of Accelerated Rehabilitative
Disposition or other form of preliminary disposition before
the sentencing on the present violation for any of the
following:

(1) an offense under section 3802 (relating to driving
under influence of alcohol or controlled substance)[.]

75 Pa.C.S.A. § 3806(a)(1). “Thus, a defendant who had accepted ARD for a

prior DUI offense is considered a second-time offender under the Section 3804

penalty provisions.” Chichkin, supra at 963.

“[T]he essence of the seriousness of the crime of drunk driving is that

it is a life-threatening act.” Commonwealth v Lutz, 508 Pa. 297, 312-13,

495 A.2d 928, 936 (1985). “[S]ociety, for its own protection, has an interest

in carrying out the penalties prescribed by the legislature for drunk driving….”

Id. at 307, 495 A.2d at 933. ARD is one such penalty:

The primary purpose of this program is the rehabilitation of
the offender; secondarily, the purpose is the prompt
disposition of charges, eliminating the need for costly and
time-consuming trials or other court proceedings. These
rules contemplate that ordinarily the defendants eligible for
the ARD program are first offenders who lend themselves to
treatment and rehabilitation rather than punishment and

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that the crime charged is relatively minor and does not
involve a serious breach of the public trust. The program is
intended to encourage offenders to make a fresh start after
participation in a rehabilitative program and offers them the
possibility of a clean record if they successfully complete the
program.

Pa.R.Crim.P. Ch. 3, Explanatory Comment.

“ARD is not some trivial mechanism for avoiding a conviction and

expunging an arrest record.” Whalen v. Com., Dept. of Transp., Bureau

of Driver Licensing, 613 Pa. 64, 75-76, 32 A.3d 677, 684 (2011). “Rather,

it is an intensive process involving personal assessments, safety classes, and

addiction treatment if necessary, all under court supervision….” Id. at 76, 32

A.3d at 684.

[A] defendant [may] be placed in the ARD program only
after he or she has requested acceptance into the program,
has indicated an understanding of the proceedings, and has
accepted and agreed to comply with the conditions imposed
by the trial court.

Commonwealth v. Scheinert, 519 A.2d 422, 428 (Pa.Super. 1986), appeal

denied, 517 Pa. 606, 536 A.2d 1330 (1987). See also Pa.R.Crim.P. 300-320

(governing ARD proceedings generally).

“Although ARD is legally distinct from a conviction, the General

Assembly has chosen to equate ARD with a conviction under a variety of

circumstances.” Whalen, supra at 71, 32 A.3d at 681. “For example, ARD

may be statutorily construed as a conviction for purposes of computing

sentences on subsequent convictions.” Id. (internal quotation marks

omitted).

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Regarding sentencing enhancements generally, “any fact that, by law,

increases the penalty for a crime is an ‘element’ that must be submitted to

the jury and found beyond a reasonable doubt.” Alleyne, supra at 103, 133

S.Ct. at 2155, 186 L.Ed.2d at ___. Both Alleyne and Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), however,

“recognized a narrow exception to this general rule for the fact of a prior

conviction.” Id. at 111 n.1, 133 S.Ct. at 2160 n.1, 186 L.Ed.2d at ___ n.1.

[P]rior commission of a serious crime … is as typical a
sentencing factor as one might imagine. Perhaps reflecting
this fact, the lower courts have almost uniformly interpreted
statutes (that authorize higher sentences for recidivists) as
setting forth sentencing factors, not as creating new crimes
(at least where the conduct, in the absence of the
recidivism, is independently unlawful).

Almendarez-Torres v. U.S., 523 U.S. 224, 230, 118 S.Ct. 1219, 1224, 140

L.Ed.2d 350, ___ (1998).

This Court evaluated many of these principles in Chichkin, the relevant

facts of which are as follows:

Chichkin was arrested and charged with DUI for an incident
that occurred on December 8, 2017. His case proceeded to
a trial in Municipal Court on May 18, 2018, at which time the
court found him guilty of two counts of DUI—general
impairment under 75 Pa.C.S.A. § 3802(a)(1). On June 25,
2018, Chichkin was sentenced to a term of 30 days to six
months’ imprisonment, with two months’ concurrent
probation. The 30-day mandatory minimum was imposed
under 75 Pa.C.S.A. § 3804(b)(2)(i), because Chichkin had
accepted ARD for a prior DUI offense in 2013.

Chichkin, supra at 961 (internal footnote omitted).

On appeal, this Court addressed whether Section 3806’s reference to

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ARD as a “prior offense” violated the constitutional protections dictated by

Alleyne. The Chichkin Court determined that prior acceptances of ARD could

not be categorized as “prior convictions” exempt from the holdings of

Apprendi and Alleyne. See id. at 967. Further, the Court announced that

“[t]he ‘fact’ that a defendant accepted ARD does not carry with it the

procedural safeguards of a traditional conviction following a judge or jury

trial.” Id. Consequently, Chichkin held that the “portion of 75 Pa.C.S. §

3806(a), which statutorily equates a prior acceptance of ARD to a prior

conviction for purposes of subjecting a defendant to a mandatory minimum

sentence under Section 3804, is unconstitutional.” Id. at 968 (internal

footnote omitted). The Court went on to state: “[I]f the Commonwealth seeks

to enhance a defendant’s DUI sentence based upon that defendant’s prior

acceptance of ARD, it must prove, beyond a reasonable doubt, that the

defendant actually committed the prior DUI offense.” Id. at 970-71 (internal

footnote omitted).

Instantly, Appellant’s first DUI incident occurred in March 2011. For this

offense, Appellant was admitted into the ARD program, which he successfully

completed. The second DUI occurred in September 2019. At sentencing for

the second DUI, the court heard testimony from the arresting officer for

Appellant’s prior DUI. Based upon this testimony, the court considered the

September 2019 DUI as a second offense for purposes of sentencing.

The court elaborated on its sentencing decision as follows:

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Appellant argues that Section 3806 is unconstitutional
because it treats Appellant’s prior acceptance of ARD as a
prior DUI conviction and violates Appellant’s due process
[rights]. This argument must fail because the Superior
Court in Chichkin held “if the Commonwealth seeks to
enhance a defendant’s DUI sentence based upon that
defendant’s prior acceptance of ARD, it must prove, beyond
a reasonable doubt, that the defendant actually committed
the prior DUI offense. Any lesser standard would violate
due process concerns.”

This court properly sentenced Appellant as a second
offender. On August 19, 2020, the Commonwealth
presented evidence of Appellant’s first DUI. The
Commonwealth provided discovery to Appellant. Appellant
called Detective Marsaglia as its witness, and Appellant had
the opportunity to cross-examine Detective Marsaglia. [The
c]ourt explained that this is not a full trial, the proceeding
was only to show, beyond a reasonable doubt, that
Appellant committed the prior DUI offense and subsequently
received ARD. [The c]ourt found that the Commonwealth
met its burden of proof because the Commonwealth
demonstrated, through Detective Marsaglia’s testimony,
that Appellant was in actual physical control of a vehicle, he
was driving erratically by making a wider turn than normal,
he was impaired as shown by his bloodshot eyes, slurred
speech, unsteadiness on his feet, and he admitted to
drinking a few beers earlier in the evening.

[The] court did not sentence Appellant pursuant to 75
Pa.C.S.A. § 3806(a) as Appellant contends. [The c]ourt
sentenced Appellant pursuant to the mandatory minimum
for a second DUI offense because the Commonwealth
proved beyond a reasonable doubt that Appellant actually
committed the prior DUI offense and received ARD.

(Trial Court Opinion, filed 1/5/21, at 7-8) (internal citations omitted).

Although the trial court relied on Chichkin to support its actions, we

emphasize that our legislature has “statutorily construed [ARD] as a conviction

for purposes of computing sentences on subsequent convictions.” See

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Whalen, supra at 71, 32 A.3d at 681. A defendant receives ARD only after

he has requested acceptance into the program, indicated an understanding of

the proceedings, and agreed to comply with the conditions imposed by the

trial court. See Scheinert, supra. See also Pa.R.Crim.P. 312, 313. The

entire assessment process for the ARD program is conducted under court

supervision. See Whalen, supra.

The fact that ARD will constitute a prior offense for purposes of

sentencing on a second or subsequent DUI conviction is written directly into

Section 3806, and a defendant is presumed to be aware of the relevant

statute. See Commonwealth v. Robertson, 186 A.3d 440, 446 (Pa.Super.

2018), appeal denied, 649 Pa. 179, 195 A.3d 852 (2018) (reiterating that

individuals are presumed to know statutory law and developments in case

law). We also note that the exception established in Almendarez-Torres

remains in place. See Alleyne, supra. Significantly, we disagree with the

conclusion in Chichkin that a defendant’s prior acceptance of ARD cannot be

categorized as a “prior conviction” exempt from the holdings in Apprendi and

Alleyne. Although the “fact” that a defendant accepted ARD does not carry

the same procedural safeguards of a conviction following a bench or jury trial,

we deem the safeguards in place to be adequate. We emphasize that Section

3806(a) appropriately notifies a defendant that earlier ARD acceptance will be

considered a prior DUI offense for future sentencing purposes.

Moreover, a defendant voluntarily enters the ARD program to avoid

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prosecution on a first DUI charge, and he is free to reject participation in the

program if he wishes to avail himself of his full panoply of constitutional rights.

These factors of notice and voluntary ARD acceptance mitigate the due

process concerns advanced in Chichkin. Thus, a defendant’s prior acceptance

of ARD fits within the limited “prior conviction” exception set forth in Apprendi

and Alleyne. See Almendarez-Torres, supra.

Accordingly, we expressly overrule Chichkin. We now hold that the

portion of Section 3806(a), which equates prior acceptance of ARD to a prior

conviction for purposes of imposing a Section 3804 mandatory minimum

sentence, passes constitutional muster. Here, despite the trial court’s reliance

on Chichkin, it still imposed a Section 3804 mandatory sentence in light of

Appellant’s acceptance of ARD for a prior DUI. Therefore, we affirm the

judgment of sentence, albeit on different grounds.2 See Infante, supra.

Judgment of sentence affirmed.

President Judge Panella, Judge Bowes and Judge McLaughlin join this

opinion.

Judge Stabile files a concurring opinion.

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2 “[W]here the result is correct, an appellate court may affirm a lower court’s
decision on any ground without regard to the ground relied upon by the lower
court itself.” Commonwealth v. Lehman, 275 A.3d 513, 520 n.5 (Pa.Super.
2022) (quoting Commonwealth v. Singletary, 803 A.2d 769, 772-73
(Pa.Super. 2002)).

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Judge McCaffery files a dissenting opinion, in which President Judge

Emeritus Bender, Judge Lazarus and Judge Kunselman join.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/4/2022

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