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2022 PA Super 169
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RICHARD ALEKSANDR MOROZ : No. 282 MDA 2021
Appeal from the Judgment of Sentence Entered February 4, 2021
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001515-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., STABILE,
J., KUNSELMAN, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.
DISSENTING OPINION BY McCAFFERY, J.: FILED: OCTOBER 4, 2022
The Majority’s decision to overrule Commonwealth v. Chichkin, 232
A.3d 959 (Pa. Super. 2020), may be summarized as follows: (1) DUI is a
serious offense; (2) ARD is not merely a “trivial mechanism” to avoid a
conviction, but rather, an intensive process under court supervision; (3) while
acceptance of ARD is not a criminal conviction, it includes procedural
safeguards that are “adequate” enough; (4) the legislature has decided that
ARD should constitute a conviction for purposes of the DUI recidivism statute;
(5) acceptance of ARD is voluntary, and a defendant is presumed to know the
recidivism statute treats their ARD acceptance as a first conviction; thus, (6)
“notice and voluntary ARD acceptance mitigate the due process concerns
advanced in Chichkin.” Majority Op. at 7-8, 10-12 (citation omitted).
Because I conclude the Majority’s decision does not address Chichkin’s
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holding that 75 Pa.C.S. § 3806(a) is constitutionally deficient in light of
Alleyne v. United States, 570 U.S. 99 (2013), I strongly dissent.
Preliminarily, I am compelled to emphasize that the Chichkin decision
does not in any way imply that DUI is not a serious offense; indeed, all
criminal offenses are serious. That said, the constitutionality of a criminal
statute is not judged on a sliding scale based upon the seriousness of the
crime. Chichkin also does not imply, as the Majority suggests, that
acceptance of ARD is simply a “trivial mechanism.” See Majority Op. at 7,
citing Whalen v. Com., Dept. of Transp. Bureau of Driver Licensing, 32
A.3d 677, 684 (Pa. 2011).1 However, as the Majority agrees, ARD is “legally
distinct from a [criminal] conviction[,]” and “does not carry the same
procedural safeguards of a conviction following a bench or jury trial[.]” Id. at
8, 11, citing Whalen, 32 A.3d at 681. See Chichkin, 232 A.3d at 967-68
(noting ARD participant “need not admit his or her guilt, and the
Commonwealth is not required to prove the defendant’s culpability beyond a
reasonable doubt”).
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1 The Majority relies on Whalen throughout its opinion presumably to
demonstrate the Pennsylvania Supreme Court has approved of the
Pennsylvania Legislature’s designation of ARD as a prior conviction for the
purpose of recidivist sentencing. See Majority’s Op. at 7-8, 10-11. However,
its reliance on Whalen is misplaced for two reasons. First, Whalen was
decided in 2011, before the United States Supreme Court issued its Alleyne
decision in 2013; thus, the Court did not consider or address the concerns of
Alleyne. Second, Whalen concerned the propriety of a requirement that a
repeat DUI offender must install an ignition interlock system on their vehicles
prior to the restoration of their license — a requirement which is not the same
as mandatory minimum criminal sentence. See Whalen, 32 A.3d at 678-79.
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Although the Majority summarizes Chichkin, it fails to address
Chichkin’s ultimate determination that Section 3806 violates the holding of
Alleyne — “[a]ny fact that, by law, increases the penalty for a crime is an
‘element’ that must be submitted to the jury and found beyond a reasonable
doubt.” Alleyne, 570 U.S. at 103. Rather, the Majority bypasses an Alleyne
discussion by concluding the following: The fact of a prior conviction, as
delineated by the Supreme Court in Almendarez-Torres v. United States,
523 U.S. 224 (1998), remains an exception to Alleyne, and the Pennsylvania
Legislature has “statutorily construed [ARD to be] a conviction for purposes
of computing sentences on subsequent convictions.” Majority Op. at 10-11
(quotation marks omitted), citing Whalen, 32 A.3d at 681. Although the
acceptance of ARD “does not carry the same procedural safeguards of a
conviction following a bench or jury trial, . . . the safeguards in place [are]
adequate.” Majority Op. at 11 (emphasis added). When a defendant
voluntarily accepts ARD, they are “presumed to be aware” of Section 3806,
which equates their acceptance of ARD to a prior conviction for future
sentencing purposes. Id. Thus, the Majority pronounces that Section 3806(a)
“passes constitutional muster.” Id. at 12.
The Majority’s decision in untenable. I begin by emphasizing that
Alleyne “effected a sea change in this area of the law.” Commonwealth v.
Hopkins, 117 A.3d 247, 257 (Pa. 2015). As the Pennsylvania Supreme Court
explained:
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[I]n Alleyne, the United States Supreme Court extended
its Apprendi[2] line of cases, overturned its prior decisions . . .
and concluded that, when a factual determination is necessary for
the imposition of a mandatory minimum sentence, the facts must
be considered an element of a new, distinct aggravated offense.
Moreover, as an element of the offense, the factual determination
must be specifically alleged in the charging document, and the
defendant has a right to have that fact determined by a jury
beyond a reasonable doubt.
Id. at 256-57 (some citations and quotation marks omitted; emphasis added).
Applying Alleyne’s mandate, “the Courts of this Commonwealth have
concluded that many of our mandatory minimum sentencing statutes are
unconstitutional because they permit judicial fact finding by the sentencing
court, under a preponderance of the evidence standard, absent pretrial notice
to the defendant.” Chichkin, 232 A.3d at 965.
Nevertheless, as Chichkin acknowledged, the narrow exception
outlined in Almendarez-Torres still applies — “when a defendant is
subjected to an increased sentence based upon a prior conviction, the ‘fact’
of the prior conviction need not be submitted to a jury and found beyond a
reasonable doubt.” Chichkin, 232 A.3d at 966 (some emphasis added).
Thus, the relevant question presented in Chichkin, (as well as the case sub
judice), was whether the defendant’s “prior acceptance[ ] of ARD constitute[s]
an unproven ‘fact,’ which must be submitted to a jury, or a prior conviction,
which may be determined by the court at sentencing.” Id.
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2 Apprendi v. New Jersey, 530 U.S. 466 (2000).
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The Majority insists a defendant’s voluntary acceptance of ARD should
constitute a prior offense for recidivism purposes because (1) the
Pennsylvania Legislature has deemed it so, and (2) a defendant who
voluntarily accepts ARD “is presumed to be aware of” Section 3806. Majority
Op. at 10-11. I disagree.
The fact the Legislature has deemed the acceptance of ARD to be a
prior conviction for DUI recidivism sentencing purposes does not control our
review. Rather, the “separation of powers in our tripartite system of
government typically depends upon judicial review to check acts or omissions
by the other branches in derogation of constitutional requirements.” William
Penn Sch. Dist. v. Pennsylvania Dep't of Educ., 170 A.3d 414, 418 (Pa.
2017). See Marbury v. Madison, 5 U.S. 137, 138 (1803) (“An act of
congress repugnant to the constitution cannot become a law.”). Thus, the
courts have not only the authority — but the responsibility — to consider
whether a law enacted by the legislature passes constitutional muster.
Moreover, although the Majority relies on the legal precept that a
defendant is presumed to be aware of relevant statutory law, I emphasize
that the Pennsylvania Rules of Criminal Procedure do not require the
Commonwealth or the trial court to inform a defendant that their “non-
conviction” acceptance of ARD — which will result in expungement of the
charges if the defendant successfully completes the program — is still
considered a prior conviction should they be found guilty of a subsequent DUI.
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See Pa.R.Crim.P. 300-320. In fact, Rule 312, mandates the court ascertain,
on the record, that the defendant understands only that:
(1) acceptance into and satisfactory completion of the accelerated
rehabilitative disposition program offers the defendant an
opportunity to earn a dismissal of the pending charges; [and]
(2) should the defendant fail to complete the program, the
defendant waives the appropriate statute of limitations and the
defendant's right to a speedy trial under any applicable Federal or
State constitutional provisions, statutes or rules of court during
the period of enrollment in the program.
Pa.R.Crim.P. 312(1)-(2). There is no requirement that the court or the
Commonwealth inform the defendant of the ramifications of Section 3806, or
for that matter, of the significant constitutional rights they waive by accepting
ARD. Further complicating the matter is the fact that each county administers
its ARD program differently; accordingly, the fact that some counties may
inform defendants that their acceptance of ARD may be treated as a prior
conviction is of no moment.
Nevertheless, the Majority reasons that the defendant’s “presumed”
notice of Section 3806, coupled with their voluntary acceptance3 of ARD,
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3 I take issue with the Majority’s cavalier statement that a defendant “is free
to reject participation in the program if he wishes to avail himself of his full
panoply of constitutional rights.” Majority Op. at 12. Defendants should not
be required to choose whether to give up their constitutional rights absent any
requirement that they be informed of those rights. Indeed, in other
situations where a defendant waives constitutional rights — such as a guilty
plea or bench trial — the law requires an on-the-record colloquy so that the
trial court is satisfied that the waiver of constitutional rights is knowing and
voluntary. See Commonwealth v. Hines, 437 A.2d 1180, 1182 (Pa. 1981)
(“Because a guilty plea is not only an admission of conduct but also is an
(Footnote Continued Next Page)
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“mitigate[s] the due process concerns advanced in Chichkin.” See Majority
Op. at 11-12. This argument mirrors the “waiver” line of reasoning advocated
by the Commonwealth. See Commonwealth’s Brief at 25-26. The
Commonwealth maintains:
The Chichkin [C]ourt wholly ignored the fact that by accepting
ARD, a defendant knowingly, voluntarily, and intelligently waives
any rights they have under Apprendi and Alleyne to compel the
Commonwealth to prove beyond a reasonable doubt their guilty
of the DUI offense in order for it to count as a prior conviction.
Id. (emphasis added). This claim must be rejected for several reasons.
First, “a criminal defendant cannot agree to an illegal sentence[.]”
Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014) (explaining
“the fact that the illegality was a term of his plea bargain is of no legal
significance”). Second, a defendant cannot knowingly waive constitutional
rights of which they are not explicitly informed. See Hines, 437 A.2d at 1182;
Stokes, 299 A.2d at 276.
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admission of all the elements of a formal criminal charge, and constitutes the
waiver of constitutionally-guaranteed rights, the voluntariness of a guilty plea
must be affirmatively established.”); Commonwealth v. Stokes, 299 A.2d
272, 276 (Pa. 1973) (“The constitutional right to trial by jury, as with other
constitutional rights, will not lightly be deemed to have been waived[ and]
courts indulge every reasonable presumption against waiver of such
fundamental constitutional rights.”). As the United States Supreme Court
declared nearly 60 years ago: “If the exercise of constitutional rights will
thwart the effectiveness of a system of law enforcement, then there is
something very wrong with that system.” Escobedo v. Illinois, 378 U.S.
478, 490 (1964) (footnote omitted).
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Third, this Court has consistently rejected attempts to overcome
Alleyne by operating outside the offending statutory framework. See
Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. Super. 2014) (defendant’s
stipulation to weight of drugs which triggered mandatory minimum sentence
for conviction of possession with intent to deliver did not satisfy Alleyne);
Commonwealth v. Valentine, 101 A.3d 801, 804, 812 (Pa. Super. 2014)
(Commonwealth’s amendment of information to include “fact” which triggered
mandatory minimum, and which was submitted to and found by the jury, was
impermissible). In Commonwealth v. Newman, 99 A3d 86, 101 (Pa. Super.
2014) (en banc), this Court held that the mandatory minimum statute
provisions that were violative of Alleyne, were not severable from the statute
as a whole. Indeed, the Newman Court described the subsections which
detailed the “facts” of the aggravated crime as the “predicate” arms of the
statute, and the subsections requiring the trial court to determine those “facts”
at sentencing by a preponderance of the evidence, as the “enforcement” arms
— the Court observed that without the “enforcement” arm, there was “no
mechanism in place to determine whether the predicate” arm had been met.
Id. Accordingly, the en banc panel opined: “[I]t is manifestly the province
of the General Assembly to determine what new procedures must be created
in order to impose mandatory minimum sentences in Pennsylvania following
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Alleyne.” Id. at 102. The same is true here.4 While Section 3806 does not
include the same “preponderance of the evidence” language as the other
unconstitutional mandatory minimum statutes, it does explicitly state: “The
court shall calculate the number of prior offenses, if any, at the time of
sentencing.” 75 Pa.C.S. § 3806(b)(2). Thus, a defendant’s presumed notice
and voluntary acceptance of the fact that their non-conviction may be later
treated as a conviction for recidivist sentencing purposes does not cure the
unconstitutionality of the statute.
Lastly, the Majority fails to refute Chichkin’s determination that a prior
acceptance of ARD cannot be deemed a prior conviction because it is not
“cloaked in all the constitutional safeguards” of a criminal conviction.
Chichkin, 232 A.3d at 968 (footnote and citation omitted). Rather, the
Majority simply proclaims: “Although the ‘fact’ that a defendant accepted ARD
does not carry the same procedural safeguards of a conviction following a
bench or jury trial, we deem the safeguards in place to be adequate.” Majority
Op. at 11. The Majority fails to elaborate as to what the “safeguards in place”
are, or how they protect a defendant’s constitutional right to due process, and
the concomitant finding of guilty beyond a reasonable doubt. Indeed, the
opinion mentions only the following regarding “safeguards” — (1) ARD is an
“intensive process[;]” (2) ARD involves assessments and treatment, if
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4 As Appellee notes in his brief, “a substantial effort” to amend the ARD statute
to comply with Alleyne “is now under way.” Appellee’s Brief at 40 n.10, citing
House Bill No. 521 (Printer’s No. 1143).
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necessary; and (3) ARD is court-supervised. See id. at 7 (citation omitted).
None of these “safeguards” satisfy “[d]ue process considerations[,]” and in
particular, the due process concerns that “protect those accused of committing
a crime from conviction ‘except upon proof beyond a reasonable doubt.’”
Chichkin, 232 A.3d at 970, citing In re Winship, 397 U.S. 358, 364 (1970).
It is difficult to believe that any unspecified “safeguards” are “adequate,” when
the Rules of Criminal Procedure do not require a defendant be informed of the
constitutional rights they waive by accepting ARD, and each county
administers its ARD program differently.
Thus, I conclude, as I did in Chichkin: (1) the prior acceptance of ARD
cannot be considered a prior conviction pursuant to Almendarez-Torres
because is not “cloaked in all the constitutional safeguards[;]” (2) “that
portion of [Section] 3806, which statutorily equates a prior acceptance of ARD
to a prior conviction for purposes of subjecting a defendant to a mandatory
minimum sentence under [75 Pa.C.S. §] 3804, is unconstitutional[;]” and,
therefore, (3) pursuant to Alleyne, a defendant’s prior acceptance of ARD is
a “fact” that “must be presented to the fact finder and determined beyond a
reasonable doubt before a trial court may impose a mandatory minimum
sentence” for a second DUI pursuant to Section 3804. Chichkin, 232 A.3d at
968 (footnotes, quotation marks, and citation omitted). Accordingly, I
conclude Chichkin was property decided, and would affirm Appellee’s
judgment of sentence.
For the foregoing reasons, I dissent.
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President Judge Emeritus Bender, Judge Lazarus and Judge Kunselman
join this dissenting opinion.
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