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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DONNA L. MELHORN : No. 671 MDA 2022
Appeal from the Judgment of Sentence Entered April 21, 2022
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0001137-2021
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, Donna L. Melhorn, to driving under the
influence (“DUI”)—high rate of alcohol.1 We vacate the judgment of sentence
and remand for resentencing.
On July 25, 2021, Appellee was arrested following a traffic stop, and she
was subsequently charged with various DUI and summary motor vehicle
offenses, as well as violations of the Controlled Substance, Drug, Device and
Cosmetic Act. 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. Appellee filed an omnibus pre-trial
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(b).
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motion seeking to bar consideration of his earlier ARD as a prior offense at
sentencing.
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 a February 15, 2022 hearing, the trial court granted Appellee’s motion
to bar consideration of the prior ARD as a first offense for sentencing purposes.
N.T., 2/15/22, at 2; Order, 2/16/22. Appellee then entered a negotiated guilty
plea to one count of DUI—high rate of alcohol as a first offense, ungraded
misdemeanor on that date. On April 21, 2022, the trial court sentenced
Appellee pursuant to the negotiated agreement to serve six months’
probation, including seven days of house arrest, and pay a fine of $500.
Sentencing Order, 4/21/22. The Commonwealth then filed this timely appeal.
The Commonwealth raises the following issue before this Court:
Did the lower court err in barring consideration of [Appellee’s]
prior ARD-DUI at sentencing without providing the
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Commonwealth the opportunity to prove, beyond a reasonable
doubt, that [Appellee] actually committed the prior DUI offense?
Commonwealth Brief at 5 (unnecessary capitalization omitted). The
Commonwealth challenges the application of Chichkin to this case in light of
more recent case law and argues that the trial court erred by not allowing it
to prove that Appellee’s acceptance of ARD in the earlier DUI case constituted
a prior offense for the purpose of sentencing here.
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,
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
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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 her 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
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.
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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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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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