J-E01003-22
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: 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.
CONCURRING OPINION BY STABILE, J.: FILED: OCTOBER 4, 2022
I concur fully in the Majority’s decision to overrule this Court’s prior
panel decision in Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super.
2020). Chichkin did not accord our Legislature the deference due its
judgment to declare that a prior acceptance into the accelerated rehabilitative
disposition (ARD) program in the prosecution of a driving under the influence
(DUI) reoffender shall be considered as a “prior offense“ for DUI sentencing
enhancement purposes as per 75 Pa.C.S.A. § 3806(a). A defendant who
reoffends after being given the grace of accepting ARD for prior DUI
demonstrates that he or she is not worthy of the chance to rehabilitate
themselves in exchange for forgoing a criminal conviction. Consequently, our
Legislature declared that if a defendant reoffends, prior acceptance of ARD
shall be considered a “prior offense” for sentencing purposes. Our Legislature
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was well within its prerogative to increase punishment for re-offense of this
serious crime. Plain and simple, drunk driving kills people.1 I write separately,
however, to address the statement in Chichkin that, based upon Alleyne, 2
“if the Commonwealth seeks to enhance a defendant’s DUI sentence based
upon that defendant’s prior acceptance of ARD, it must prove, beyond a
reasonable doubt, that the defendant actually committed the prior DUI
offense.” Id. at 970-71 (footnote omitted). The Commonwealth attempted to
do so here by suggesting that a “blind judge” separately hear evidence on the
prior DUI charge. The trial court ultimately rejected this suggestion and,
relying upon Chichkin, sentenced the defendant as a first-time offender. As
well-intentioned as the Commonwealth’s attempt may have been to address
the Alleyne problem at sentencing, its proposed solution would not have
solved the Alleyne problem. In Alleyne, the United States Supreme Court,
held “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a reasonable
doubt.” Alleyne, 570 U.S. at 103. Establishing the fact of a prior ARD at
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1Sadly, it appears that many people do not consider driving while impaired to
be a serious offense. In the continuation of a twenty-year campaign known
as Operation Nighthawk, the Pennsylvania State Police announced the arrests
of 492 individuals who were driving under the influence of alcohol or controlled
substances during a two-day detail on August 12-13, 2022. See
https://www.abc27.com/local-news/operation-nighthawk-nets-nearly-500-
dui-arrests-in-pennsylvania/
2 Alleyne v. United States, 570 U.S. 99 (2013).
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sentencing during an evidentiary hearing conducted only by the sentencing
judge or a blind judge, without the benefit of Section 3806(a), does not satisfy
a defendant’s right to have all facts that increase the penalty for a crime
determined by a jury.
Alternatively, I also have serious concerns about any attempt to prove
a prior ARD during the trial of a current DUI offense. As a general rule,
evidence of a defendant’s other crimes or wrongful acts is not admissible to
prove the current offense being tried. See Pa.R.E. 404(b). The impact of
introducing evidence of other crimes is significant and may be highly
prejudicial. Commonwealth v. Hicks, 156 A.3d 1114, 1128 (Pa. 2017).
Were we to affirm the panel decision in Chichkin, the practical effect of doing
so would likely be a complete inability of the Commonwealth to seek a
sentencing enhancement for a defendant who is a DUI reoffender. Given this
dilemma, it is likely that prosecutors would substantially curtail their discretion
to offer ARD, thus defeating the use of a program designed to encourage
offenders to make a fresh start after participation in a rehabilitative program.
See Majority Opinion, at 6-7.
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