J-A13005-23
2023 PA Super 122
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH WILLIAM CORSON :
:
Appellant : No. 929 MDA 2022
Appeal from the Judgment of Sentence Entered June 1, 2022
In the Court of Common Pleas of Union County Criminal Division at
No(s): CP-60-CR-0000168-2021
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY BOWES, J.: FILED JUNE 11, 2023
Keith William Corson appeals from the judgment imposed for his
convictions of multiple counts of driving under the influence (“DUI”) and
summary offenses. Specifically, Appellant challenges the denial of his pre-
trial motion to compel the District Attorney (“DA”) to nominate him for an
Accelerated Rehabilitative Disposition (“ARD”) program. Upon review, we
vacate Appellant’s judgment of sentence and convictions and remand for
further proceedings consistent with this opinion.
We begin with some background information pertinent to our discussion.
“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
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* Former Justice specially assigned to the Superior Court.
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program, the content of which is to be determined by the court and applicable
statutes.” Commonwealth v. Gano, 781 A.2d 1276, 1278 (Pa.Super. 2001).
“The impetus behind the creation of ARD was and remains a belief that some
cases which . . . involve social or behavioral problems can best be solved by
programs and treatment rather than by punishment.” Id. (cleaned up).
Our legislature has mandated that each judicial district’s court of
common pleas “establish and implement a program for [ARD] for persons
charged with [DUI] in accordance with the [pertinent provisions of the Vehicle
Code] and rules adopted by the Supreme Court.” 75 Pa.C.S. § 1552. Our
High Court issued Pa.R.Crim.P. 300 through 320 to supply the procedures for
ARD.1 Pursuant to these rules, “the initial decision to recommend a case for
ARD lies solely with the prosecutor.” Commonwealth v. Cline, 800 A.2d
978, 981 (Pa.Super. 2002). When such a recommendation is made, the trial
court conducts a hearing pursuant to Pa.R.Crim.P. 312 and 313 to determine
whether the defendant understands ARD and agrees to its terms, whereupon
it then decides to grant or deny ARD.2 Id. The prosecutor may withdraw the
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1 “[T]he Rules promulgated by the Supreme Court . . are the sole applicable
criteria to govern the procedures for admission into the ARD program.”
Commonwealth v. Corrigan, 992 A.2d 126, 131 (Pa.Super. 2010).
2 These Rules provide, inter alia, that after the defendant indicates an
understanding of ARD and the Commonwealth presents the facts of the case,
the judge either accepts the case for ARD and state the conditions of the
program or declines to accept and orders that the case proceed in the ordinary
fashion. See Pa.R.Crim.P. 312 (“Hearing, Explanation of Program”);
Pa.R.Crim.P. 313 (“Hearing, Manner of Proceeding”).
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ARD recommendation at any time before the trial court rules upon it. Id. at
982.
If the DA declines to move for a defendant’s admission to ARD, the
defendant may ask the trial court to compel the Commonwealth to move for
his admission. The trial court reviews the prosecutor’s refusal for an abuse of
discretion. An abuse of discretion in this context occurs if the DA based the
decision upon reasons “wholly, patently and without doubt unrelated to the
protection of society and/or the likelihood of a person’s success in
rehabilitation, such as race, religion or other such obviously prohibited
considerations.” Commonwealth v. LaBenne, 21 A.3d 1287, 1291
(Pa.Super. 2011) (cleaned up).
If ARD is granted, but a defendant fails to comply with its conditions,
the program may be terminated by order of court for the Commonwealth to
proceed with the prosecution. See Pa.R.Crim.P. 318. On the other hand,
when a defendant successfully completes ARD, he may move for an order of
court dismissing the charges and expunging the defendant’s arrest record as
it pertains to the charged offense. See Pa.R.Crim.P. 319-320. However, by
statute, the acceptance into ARD nonetheless counts as a prior offense for
sentencing purposes should the defendant be convicted of a subsequent DUI.
See 75 Pa.C.S. §§ 3804 (providing enhanced penalties for second and
subsequent DUI violations), 3806(a)(1) (including ARD in the definition of
“prior offense”).
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In May 2020, this Court decided Commonwealth v. Chichkin, 232
A.3d 959, 967 (Pa.Super. 2020), holding that it was unconstitutional to
categorize prior acceptance into ARD as a prior conviction in light of the
requirement of Alleyne v. United States, 570 U.S. 99 (2013), that any fact
that enhances a sentence must be determined by the fact-finder beyond a
reasonable doubt.3 In response, DAs in some judicial districts altered their
approach to nominating DUI defendants for ARD.
In Union County, where the instant matter arose, the DA initially
required first-time DUI offenders to admit guilt and waive the right to seek
expungement for ten years before ARD would be offered. The trial court struck
down those conditions on June 16, 2021, as a result of challenges raised by
other defendants. See Attachment to Trial Court Opinion, 8/26/22 (trial court
opinion in Commonwealth v. Vera, CP-60-CR-0000037-2020 (Union Co.
C.C.P. August 31, 2021)). Consequently, the DA adopted the blanket policy
of refusing to nominate any DUI offenders for ARD. The trial court upheld this
decision, concluding that, while it may disagree with the DA’s assessment, the
articulated reasons validly were based upon the protection of society and
success in rehabilitation and therefore not an abuse of discretion. See Vera,
supra (slip. op. at unnumbered 2-3)
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3As we discuss infra, Chichkin was later overruled by Commonwealth v.
Richards, 284 A.3d 214 (Pa Super. 2022) (en banc), appeal granted, 518
MAL 2022, 2023 WL 2520895 (Pa. March 15, 2023), and Commonwealth v.
Moroz, 284 A.3d 227 (Pa.Super. 2022) (en banc).
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Upon this background, we consider the facts of the instant case.
Appellant was arrested on April 10, 2021, and charged with two counts of DUI
and three summary offenses. He submitted an application to the DA to be
nominated for ARD. The DA declined to nominate Appellant pursuant to the
blanket policy implemented following Chichkin, indicating that he believed
that giving defendants a “free DUI” would make recidivism more likely, to the
detriment of public safety. See Omnibus Pretrial Motion, 8/24/21, at ¶ 6. In
his omnibus pretrial motion, Appellant challenged the DA’s refusal and asked
the court to compel his nomination, contending that implementing the policy
was an abuse of discretion, unrelated to public safety or a likelihood of possible
success in rehabilitation, and in violation of § 1552’s mandate that a DUI
program be implemented for first-time DUI offenders. Id. at 25-28.
The trial court denied Appellant’s motion by order of December 22,
2022, for the reasons stated in its ruling in Vera, supra. Appellant proceeded
to a stipulated non-jury trial at which he was convicted of all charges. He was
sentenced to probation and fines on June 1, 2022. This timely appeal
followed, and both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant asserts that the trial court abused its discretion in
denying his motion to compel his nomination to the ARD program because the
DA’s complete Chichkin-based policy of refusal and the reasons behind it
constitute an abuse of discretion and “an unlawful de facto termination of a
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legislatively mandated program pursuant to 75 Pa.C.S. § 1552[.]” Appellant’s
brief at 7 (citation altered).
We review a trial court’s order declining a request to compel the
prosecutor to nominate a defendant for an ARD program for an abuse of
discretion. See Commonwealth v. Fleming, 955 A.2d 450, 453 (Pa.Super.
2008). “Discretion is abused when the course pursued represents not merely
an error of judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the action is a
result of partiality, prejudice, bias or ill will.” Id. (cleaned up).
Appellant argues that he is entitled to relief for the reasons proffered in
his omnibus pretrial motion, namely that the DA’s refusal to nominate any DUI
defendants for ARD was an abuse of discretion because it: (1) was “not
rationally related to either the protection of society or an individual’s ability to
succeed under the program,” and (2) constituted “a de facto termination” of
§ 1552’s legislative mandate that ARD programs shall be established and
implemented for DUI defendants. See Appellant’s brief at 12, 23.
The trial court and the Commonwealth contend that the DA’s decision
was not an abuse of discretion for the reasons stated in Vera, supra. See
Trial Court Opinion, 8/26/22, at unnumbered 4; Commonwealth’s brief at 4.
The Commonwealth asserts that “[c]learly, the Superior Court’s decision in
[Chichkin] impacted the [DA’s] policy regarding the admission of first offense
[DUI] offenders into the ARD program.” Commonwealth’s brief at 2-3. It
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further observes that, although Chichkin was overruled by Commonwealth
v. Richards, 284 A.3d 214 (Pa.Super. 2022) (en banc), appeal granted, 518
MAL 2022, 2023 WL 2520895 (Pa. March 15, 2023), and Commonwealth v.
Moroz, 284 A.3d 227 (Pa.Super. 2022) (en banc),4 while this appeal was
pending, “Chichkin was in effect at all times relevant to the instant case and
held generally that an ARD disposition could not be used as a first offense
when grading a second or subsequent DUI offense.” Commonwealth’s brief
at 3.
This Court recently examined the impact of Chichkin’s overruling on a
Chichkin-based wholesale refusal to consider DUI defendants for ARD in
Commonwealth v. H.C.G., 1472 MDA 2021, 2023 WL 3451897 (Pa.Super.
May 15, 2023) (non-precedential decision). In that case, the Mifflin County
DA, “in the wake of this Court’s decision in Chichkin, . . . instituted a blanket
policy of refusing ARD to all defendants charged with DUI.” Id. at *2. When
the DUI defendant H.C.G. sought to compel the DA to nominate him for ARD,
the trial court denied the defendant’s motion, explaining that “it was
persuaded by the Commonwealth that the denial of ARD for first time DUI
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4 Subsequent to our overruling of Chichkin, its holding was affirmed per
curiam by an equally divided Court in Commonwealth v. Verbeck, 290 A.3d
260 (Pa. 2023). Since Verbeck has no precedential value, Richards and
Moroz are currently the controlling law such that ARD counts as a prior
offense for purposes of sentencing for a subsequent DUI offense. See, e.g.,
Commonwealth v. Mosley, 114 A.3d 1072, 1082 (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.”).
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offenses in light of Chichkin is for the protection of society.” Id. at *2
(cleaned up).
This Court addressed H.C.G.’s challenge to the trial court’s denial of his
motion to compel the DA to move for his admission to the ARD program as
follows:
Chichkin . . . is no longer controlling law in Pennsylvania.
In [Moroz, supra], this Court expressly overruled Chichkin and
held that the Motor Vehicle Code’s recognition of acceptance of
ARD as a prior conviction for purposes of imposing a [§] 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
______
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
[H.C.G.]’s direct appeal. The trial court was, thus,
proceeding according to the law in effect at the time it
rendered its decision. [H.C.G.] is nonetheless entitled to
application of Moroz on direct appeal.
Id. at *3 (cleaned up). Therefore, this Court vacated H.C.G.’s convictions and
sentence and remanded for the trial court to hold an ARD hearing pursuant to
Pa.R.Crim.P. 312 and 313.
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We are persuaded in part by the reasoning of the H.C.G. decision.5 That
decision correctly observes that, even when a trial court’s decision was not
legally erroneous at the time it was made, a criminal defendant has the right
to benefit from a change in the law on appeal when he has preserved the issue
for review. See, e.g., Commonwealth v. Ardestani, 736 A.2d 552, 556
(Pa. 1999) (plurality) (holding that a decision issued during the pendency of
the defendant’s direct appeal overruling the trial court’s basis for denying the
defendant’s pretrial motion applied to require reversal and remand for a new
trial); Commonwealth v. Chaney, 350 A.2d 829, 830 (Pa. 1975) (same).
Therefore, we agree that Appellant is entitled to relief where the overruling of
Chichkin wholly undermined the basis of the trial court’s conclusion that the
DA’s blanket policy was a fair exercise of his discretion.
However, rather than remand for an ARD hearing as did the H.C.G.
Court, we deem it more appropriate to remand for the DA to reconsider
Appellant’s application to be nominated for ARD in light of the prevailing law
rather than proceed directly to an ARD hearing which, in accordance with Rule
312 and 313, is premised upon a DA’s prior nomination of Appellant into ARD.
Nonetheless, we must vacate Appellant’s judgment of sentence and
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5 While non-precedential decisions may be cited for their persuasive value in
light of the 2019 amendments to Pa.R.A.P. 126, they remain, by definition,
non-binding in other cases. See Commonwealth v. Rowe, 293 A.3d 733,
744 (Pa.Super. 2023) (citing Pa.R.A.P. 126(b)(2)).
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convictions to reset the case to the pre-trial stage.6 Accord Commonwealth
v. Corrigan, 992 A.2d 126, 132 (Pa.Super. 2010) (vacating judgment of
sentence and remanding for reconsideration of ARD application).
Judgment of sentence and convictions vacated. Case remanded for
further proceedings consistent with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/11/2023
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6 As did the H.C.G. Court, we make it plain “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.” Commonwealth v. H.C.G., 1472 MDA
2021, 2023 WL 3451897, at *3 n.11 (Pa.Super. May 15, 2023).
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