Com. v. H.C.G.

J-A04001-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
H.C.G. :
:
Appellant : No. 1472 MDA 2021

Appeal from the Judgment of Sentence Entered October 18, 2021
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000110-2021

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED: MAY 15, 2023

Appellant, H.C.G., appeals from the judgment of sentence entered on

October 18, 2021, after the trial court convicted him of, inter alia, Driving

Under the Influence (“DUI”)—General Impairment. Appellant challenges the

trial court’s denial of his motion to compel his inclusion in the Mifflin County

accelerated rehabilitative disposition (“ARD”) program.1 After careful review,

we remand for further proceedings.

On February 5, 2021, the Commonwealth charged Appellant with, inter

alia, DUI—General Impairment.2 This was Appellant’s first DUI offense. At

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1 ARD “is a pretrial disposition of certain cases, in which the attorney for the
Commonwealth agrees to suspend prosecution for an agreed upon period of
time in exchange for the defendant’s successful participation in a rehabilitation
program, the content of which is to be determined by the court and applicable
statutes.” Commonwealth v. Lutz, 495 A.2d 928, 931 (Pa. 1985).

2 75 Pa.C.S. § 3802(a)(1).
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some point between February 5, 2021, and May 20, 2021, Appellant submitted

a request to the Mifflin County District Attorney’s Office that his case be

considered for admission into the ARD program. The Commonwealth denied

Appellant’s request.

On May 20, 2021, Appellant filed a motion to compel, seeking admission

into the ARD program.3 On June 8, 2021, the trial court held a hearing on

Appellant’s motion. At this hearing, the Commonwealth explained that in light

of Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), discussed

infra, the district attorney’s office had instituted a policy of “not offering ARDs

across the board for DUIs here in Mifflin County.”4

On July 19, 2021, the court denied the motion. On October 18, 2021,

Appellant proceeded to a stipulated bench trial where the court convicted him

of, inter alia, DUI. The court sentenced Appellant the same day.5

Appellant timely filed a Notice of Appeal and both he and the trial court

complied with Pa.R.A.P. 1925. Appellant raises the following issues on appeal:

1. Did the trial court abuse its discretion in holding that the
Commonwealth’s denial of ARD for all [DUI] charges did not
violate statutory mandates that ARD be considered in such cases
as set forth in 75 Pa.C.S. § 3807 and 75 Pa.C.S. §[ ]1552 and
constitute an abuse of discretion?

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3 We note that Appellant styled his motion as seeking to compel the
Commonwealth to move for his admission into the ARD program.

4 N.T. Hr’g, 6/8/21, at 7.

5The court sentenced Appellant to 6 months’ probation and granted him bail
pending appeal.

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2. Did the trial court err in holding that the Commonwealth did not
abuse its discretion in denying ARD in the instant matter when
said denial was based solely as a response to the Superior Court’s
decision in Chichkin,[ 232 A.3d 959] which held that ARD was no
longer a “prior offense” of DUI, so said denial was patently and
without doubt unrelated to the protection of society and/or the
likelihood of a person's success in rehabilitation?

Appellant’s Br. at 4.

On appeal, Appellant challenges the trial court’s denial of his motion to

compel his admission into the ARD program.6 Appellant’s Br. at 8-27.

Appellant argues that the Commonwealth’s blanket refusal to admit DUI

offenders into the ARD program is impermissible, as it is not related to the

protection of the public or the defendant’s rehabilitation. Id. As a result, the

trial court erred by refusing to compel his admission into the program. Id.

After careful review, we agree.

Section 3807 of the Motor Vehicle Code states that “a defendant charged

with a violation of [S]ection 3802 (relating to [DUI]) may be considered by

the attorney for the Commonwealth for participation in an [ARD] program[.]”

75 Pa.C.S. § 3807(a)(1). The decision to submit a case for ARD is in the

discretion of the Commonwealth. Commonwealth v. LaBenne, 21 A.3d

1287, 1291 (Pa. Super. 2011). See also Pa.R.Crim.P. 310.

The Commonwealth enjoys broad discretion in determining whether to

submit a case for ARD. Commonwealth v. Pypiak, 728 A.2d 970, 972 (Pa.

Super. 1999). The Commonwealth’s discretion is cabined only by the

requirement that the “reasons [for denying ARD] must relate to the protection
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6 Appellant’s issues are interrelated and, thus, we address them together.

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of society or to the likelihood of the candidate’s successful rehabilitation.”

Commonwealth v. Agnew, 600 A.2d 1265, 1268 (Pa. Super. 1991).7 See

also Commonwealth v. Lutz, 495 A.2d 928, 935 (Pa. 1985) (recognizing

that the Commonwealth abuses its discretion only where it utilizes “some

criteria for admission to ARD wholly, patently and without doubt unrelated to

the protection of society and/or the likelihood of a person’s success in

rehabilitation”)

Once the Commonwealth has denied a defendant admission into ARD,

“the trial court’s role is limited to [determining] whether the Commonwealth

abused its discretion.” Commonwealth v. Sohnleitner, 884 A.2d 307, 313

(Pa. Super. 2005). A trial court’s ability to compel admission into an ARD

program is extremely limited: “the trial court cannot admit a defendant to ARD

without the Commonwealth’s motion unless there is an abuse of the district

attorney’s discretion.” Id. at 313 n.4 (citation omitted). We review the trial

court’s determination for an abuse of discretion. Commonwealth v.

Fleming, 955 A.2d 450, 453 (Pa. Super. 2008).

Finally, it is necessary to our disposition to briefly summarize the law

related to sentencing of DUI offenders. Section 3804 of the Vehicle Code sets

forth escalating mandatory minimum sentences for first, second, and

subsequent DUI offenses. 75 Pa.C.S. § 3804(a). Section 3806(a) defines the

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7 Agnew also recognizes that the Commonwealth “must openly specify
reasons for not submitting a case for ARD.” 600 A.2d at 1268 (citation
omitted).

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term “prior offense” as including “acceptance of [ARD.]” Id. at § 3806(a). In

Chichkin, 232 A.3d at 969-71, this Court determined that Section 3806(a)’s

inclusion of acceptance of ARD in an earlier DUI prosecution as a “prior

offense” constituted a violation of due process.

At the June 8, 2021 hearing, the Commonwealth explained that in the

wake of this Court’s decision in Chichkin, it instituted a blanket policy of

refusing ARD to all defendants charged with DUI. N.T. Hr’g, 6/8/21, at 7. The

Commonwealth argued that the decision to refuse ARD to all DUI defendants

furthers the protection of society because it ensures that, should those

defendants commit another DUI, they will be subject to the increased

sentencing provisions for repeat DUI offenders provided by 75 Pa.C.S. §

3804(a). N.T. Hr’g at 7-23.

In support of its denial of Appellant’s motion to compel, the trial court

explained that it “was persuaded by the [Commonwealth] that the denial of

ARD for first time DUI offenses in light of Chichkin . . . is for the protection

of society.” Trial Ct. Op., 1/11/22, at 2 (unpaginated). It credited the

Commonwealth’s argument that because acceptance of ARD does not count

as a “prior offense,” permitting DUI offenders into the ARD program would

create “a danger to the public . . . in light of Chichkin.” Id.8

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8 We also note that the trial court credited the Commonwealth’s explanation
that “the manpower needed to keep track of repeat offenders, who have
previously received ARD and expunged their record of ARD, is not available in
[Mifflin C]ounty[.]” Trial Ct. Op. at 2. This excuse by the Commonwealth is
(Footnote Continued Next Page)

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Chichkin, however, is no longer controlling law in Pennsylvania. In

Commonwealth v. Moroz, 284 A.3d 227, 233 (Pa. Super. 2022) (en banc),

this Court “expressly overrule[d] Chichkin” and held that the Motor Vehicle

Code’s recognition of acceptance of ARD as a prior conviction “for purposes of

imposing a Section 3804 mandatory minimum sentence, passes constitutional

muster.” Since this Court has overruled Chichkin, the Commonwealth’s

blanket policy of ARD refusal to DUI defendants is arbitrary and bears no

relation to the protection of society or the potential for successful

rehabilitation of the offender. The Commonwealth’s refusal to admit Appellant

into ARD based on this policy was, thus, an abuse of its discretion.9

Considering the above, we remand this case for the trial court to conduct

an ARD hearing pursuant to Pa.R.Crim.P. 312 and 313 and proceed

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unavailing; the failure by the Office of the District Attorney (“DA”) to allocate
necessary resources to track individuals who have received ARD is not related
to the protection of society or rehabilitation of the offender but, rather, the
DA’s office’s determination of resource allocation.

9 The trial court’s failure to admit Appellant into the ARD program is likewise
an abuse of discretion. We recognize that this Court decided Moroz during
the pendency of Appellant’s direct appeal. The trial court was, thus,
proceeding according to the law in effect at the time it rendered its decision.
Appellant is nonetheless entitled to application of Moroz on direct appeal. See
Commonwealth v. Moore, 263 A.3d 1193, 1199 (Pa. Super. 2021).

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accordingly.10 As a result of our disposition, we vacate Appellant’s October 18,

2021 conviction and judgment of sentence.11

Conviction and judgment of sentence vacated. Case remanded.

Jurisdiction relinquished.

Judge McCaffery joins the memorandum.

Judge Stabile files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 05/15/2023

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10 ARD is governed by Pa.R.Crim.P. 310-320 and 75 Pa.C.S. § 3807.

11We note that because we vacate Appellant’s conviction for a reason other
than insufficient evidence or prosecutorial misconduct, the Double Jeopardy
Clause would not preclude retrial for the instant charges should Appellant not
qualify for, refuse to accept, or fail to complete ARD. See Commonwealth v.
Johnson, 231 A.3d 807, 820 (Pa. 2020). See also Commonwealth v.
McMullen, 721 A.2d 370, 371 (Pa. Super. 1998) (explaining that “the Double
Jeopardy Clause does not impose a limitation upon the power of the
government to retry a defendant who has succeeded in persuading a court to
set his conviction aside, unless the conviction has been reversed solely
because of insufficiency of the evidence” (citation and quotation marks
omitted)).

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