J-S08033-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KEVIN LEE SHOLAR : No. 385 MDA 2022
Appeal from the Judgment of Sentence Entered February 1, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004181-2021
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: MAY 8, 2023
The Commonwealth appeals from the judgment of sentence imposed
following the guilty plea of Appellee, Kevin Lee Sholar, to driving under the
influence (“DUI”)—high rate of alcohol and required financial responsibility.1
We vacate the judgment of sentence and remand for resentencing.
On July 11, 2021, Appellee was arrested and charged with various DUI
offenses and required financial responsibility after being involved in a single-
vehicle crash. The DUI offenses were charged as second offenses based upon
Appellee’s resolution of a prior DUI charge through the accelerated
rehabilitative disposition (“ARD”) process. On December 7, 2021, Appellee
entered an open guilty plea to one count of DUI—high rate of alcohol and
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3802(b) and 1786(f), respectively.
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required financial responsibility, noting his objection to the DUI being treated
as a second offense for the purpose of sentencing. N.T., 12/7/21, at 6.
Sentencing was deferred to permit the Commonwealth to present argument
as to whether the instant DUI offense should be considered a first or second
offense. Id. at 7-8.
At that time, this Court’s decision in Commonwealth v. Chichkin, 232
A.3d 959 (Pa. Super. 2020), set forth the prevailing law on whether
acceptance of ARD in an earlier DUI case could be considered a prior offense
for sentencing in a subsequent DUI prosecution. In Chichkin, we held that
the classification of ARD as a prior offense in Section 3806(a) of the Vehicle
Code violated due process and therefore a defendant could not be sentenced
as a recidivist DUI offender on that basis. Id. at 969-71; 75 Pa.C.S. § 3806(a)
(defining a “prior offense” to include acceptance of ARD); see also 75 Pa.C.S.
§ 3804 (setting forth escalating mandatory minimums for first, second, and
subsequent DUI offenses).
At the February 1, 2022 sentencing hearing, the trial court did not
permit the Commonwealth to submit Appellee’s certified driving record as
proof that he committed the prior DUI offense that was resolved through ARD.
N.T., 2/1/22, at 2-4. The court indicated that it was treating Appellee’s plea
to DUI—high rate of alcohol as a first offense and sentenced him to pay a $500
fine and serve six months on restrictive probation, including two days of house
arrest, on the DUI charge. Id. at 8; Sentencing Order, 2/1/22. The trial court
further ordered Appellee to pay a fine of $200 on the required financial
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responsibility charge. N.T., 2/1/22, at 8; Sentencing Order, 2/1/22. The
Commonwealth then filed this timely appeal.
The Commonwealth raises the following issue before this Court:
Whether the [t]rial [c]ourt improperly sentenced [Appellee] as a
first-time offender to Driving Under the Influence?
Commonwealth Brief at 4. The Commonwealth argues on appeal that
Chichkin was wrongly decided as the decision is based upon a flawed reading
of our precedent as well as Alleyne v. United States, 570 U.S. 99 (2013),
and that Pennsylvania’s ARD procedure provides adequate due process
protections such that ARD can be considered a prior offense for sentencing
purposes.
The Commonwealth’s argument implicates the legality of Appellee’s
sentence, which the Commonwealth may appeal as of right. See 42 Pa.C.S.
§ 9781(a); Commonwealth v. Moroz, 284 A.3d 227, 230 (Pa. Super. 2022)
(en banc). A claim relating to the legality of a sentence presents a question
of law as to which our standard of review is de novo and our scope of review
is plenary. Moroz, 284 A.3d at 230.
This Court’s en banc decisions in Commonwealth v. Richards, 284
A.3d 214, 217 (Pa. Super. 2022) (en banc), appeal granted, No. 518 MAL
2022 (Pa. March 15, 2023), and Moroz, which were filed during the pendency
of this appeal, squarely address the issue presently before this Court. As we
have recently explained,
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The [Richards and Moroz] decisions emphasize that the General
Assembly provided that “ARD will constitute a prior offense for
purposes of sentencing on a second or subsequent DUI conviction
. . ., and a defendant is presumed to be aware of the relevant
statute.” Richards, 284 A.3d at 220 (citation omitted); Moroz,
284 A.3d at 233. The nearly identical decisions therefore
expressly overruled Chichkin and held “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; Moroz, 284 A.3d at 233.
Commonwealth v. Hummel, ___ A.3d ___, 2023 PA Super 57, *3-4 (Pa.
Super. filed April 4, 2023) (footnote omitted).2
Here, the trial court disregarded Appellee’s earlier acceptance of ARD
and sentenced him as a first-time DUI offender in accordance with Chichkin.
Under Richards and Moroz, this ruling was in error. See Moroz, 284 A.3d
at 233 (concluding that “the trial court erred in sentencing [the a]ppellee as
a first-time DUI offender without considering his acceptance of ARD for a prior
DUI”); Hummel, 2023 PA Super 57, *4 (same); see also Commonwealth
v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (noting that Pennsylvania
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2 Our Supreme Court addressed this issue more recently in Commonwealth
v. Verbeck, 290 A.3d 260 (Pa. 2023), splitting evenly on the question of
whether a DUI ARD falls within the “prior conviction” exception to the general
rule that a fact that increases punishment must be submitted to the fact finder
and proven beyond a reasonable doubt. While our Supreme Court’s ruling had
the effect of affirming this Court’s decision remanding for the defendant’s
resentencing as a first-time offender, Verbeck lacks precedential effect. See
Commonwealth v. Mosley, 114 A.3d 1072, 1082 n.11 (Pa. Super. 2015)
(“When a judgment of sentence is affirmed by an equally divided court, [] no
precedent is established and the holding is not binding on other cases.”).
Therefore, our en banc decisions of Richards and Moroz remain the binding
law on this issue. See Hummel, 2023 PA Super 57, *4 n.1.
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appellate courts apply law in effect at time of decision and parties are entitled
to benefit of changes in law while direct appeal is pending). We therefore
vacate Appellee’s judgment of sentence and remand for resentencing
consistent with this decision. See Moroz, 284 A.3d at 233; Hummel, 2023
PA Super 57, *4.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judge Olson joins the memorandum.
Judge McCaffery files a concurring statement in which Judge Colins
joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2023
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