IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tyler Andrew Smith, :
Appellant :
:
v. : No. 223 C.D. 2022
: Submitted: December 2, 2022
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: August 29, 2023
Tyler Andrew Smith (Licensee) appeals from the February 16, 2022 Order of
the Court of Common Pleas of Fayette County (common pleas). The Order
dismissed Licensee’s statutory appeal and reinstated the Commonwealth of
Pennsylvania, Department of Transportation (Department), Bureau of Driver
Licensing’s (Bureau) one-year suspension of Licensee’s operating privilege
pursuant to Section 3804(e)(2)(i) of the Vehicle Code, 75 Pa.C.S. § 3804(e)(2)(i).1
Licensee’s suspension was based on his April 19, 2021 conviction for violating
1
Section 3804(e)(2)(i) of the Vehicle Code states: “Suspension under paragraph (1) shall
be in accordance with the following: (i) Except as provided for in subparagraph (iii), 12 months
for an ungraded misdemeanor or misdemeanor of the second degree under this chapter.” 75
Pa.C.S. § 3804(e)(2)(i).
Section 3802(a)(2) of the Vehicle Code, 75 Pa.C.S. § 3802(a)(2) (relating to driving
under the influence of alcohol or controlled substance). At issue is whether
Licensee’s prior successful completion of an Accelerated Rehabilitative Disposition
(ARD) program after being cited for driving under the influence was a “prior
offense” for purposes of a one-year suspension, and whether Licensee’s negotiated
plea agreement binds the Department. Upon review, we affirm.
I. BACKGROUND
On July 24, 2018, Licensee was accepted into an ARD program after being
cited on April 7, 2018, for DUI in violation of Section 3802(c) of the Vehicle Code,
75 Pa.C.S. § 3802(c) (relating to DUI of alcohol or controlled substances – highest
rate of alcohol). (Supplemental Reproduced Record (S.R.R.) at 11b.2) In accordance
with Section 3807(d) of the Vehicle Code, 75 Pa.C.S. § 3807(d) (relating to ARD –
mandatory suspension of operating privileges), Licensee received notice that his
operating privilege was suspended for 90 days; it was restored on November 1, 2018.
(Id. at 7b-8b.) On April 19, 2021, Licensee was convicted of DUI in violation of
Section 3802(a)(2) of the Vehicle Code, 75 Pa.C.S. § 3802(a)(2). (Reproduced
Record (R.R.) Item 1 at 1.3) Licensee pled guilty to an ungraded misdemeanor
offense under Section 3802. The sentencing order stated, “[n]o license suspension
2
Licensee’s reproduced record omitted the Bureau’s Exhibit No. 1, which consists of
certified copies of the April 29, 2021 notice of suspension; report of conviction from the Fayette
County Clerk of Courts; the earlier restoration; the earlier license suspension; the report of the
Clerk of Courts of the ARD; and Licensee’s driving record. The Bureau filed a supplemental
reproduced record, attached to its brief, in which Exhibit 1 is found.
3
The pages of Licensee’s reproduced record are not numbered in accordance with the
requirements of Rule 2173 of Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2173 (relating
to the numbering of pages). Therefore, we refer to the materials in the reproduced record by item
number and the physical page number within that item.
2
in accordance with [Section 3804(a)(1) of the Vehicle Code,] 75 Pa.C.S.
[§] 3804(a)(1).”[4] (Id. at 2.) Upon receipt of the report of Licensee’s conviction,
the Bureau, by notice mailed April 29, 2021, notified Licensee of the suspension of
his operating privilege for a period of one year beginning on June 3, 2021, in
accordance with Section 3804(e)(2)(i), 75 Pa.C.S. § 3804(e)(2)(i). (S.R.R. at 2b.)
On May 7, 2021, Licensee filed a statutory appeal of the suspension of his
operating privilege with common pleas. Licensee asserted that his conviction was a
first offense, and that the Bureau incorrectly considered his conviction as a second
offense based on his prior ARD completion. (R.R. Item 3 at 4.) Common pleas held
a de novo hearing on February 16, 2022. (Id. Item 4.) At the hearing, the Bureau’s
counsel offered into evidence the Bureau’s Exhibit No. 1, which was admitted
without objection. Licensee’s counsel offered into evidence a copy of Licensee’s
sentencing order for his conviction on April 19, 2021. The Bureau argued it was not
4
Section 3804(a)(1) of the Vehicle Code states:
Except as set forth in subsection (b) or (c), an individual who violates [S]ection
3802(a) (relating to [DUI] of alcohol or controlled substance) shall be sentenced as
follows:
(1) For a first offense, to:
(i) undergo a mandatory minimum term of six months’ probation;
(ii) pay a fine of $300;
(iii) attend an alcohol highway safety school approved by the [D]epartment; and
(iv) comply with all drug and alcohol treatment requirements imposed under
[S]ections 3814 (relating to drug and alcohol assessments) and 3815 (relating to
mandatory sentencing).
75 Pa.C.S. § 3804(a)(1).
3
a party to the criminal proceedings and, therefore, not bound by the sentencing order,
and that Section 3806 of the Vehicle Code, 75 Pa.C.S. § 3806,5 defines prior offense
for purposes of a civil license suspension to include ARD. (Id. at 6.) Licensee
argued that the suspension of his operating privilege should be reversed because the
Bureau does not have the authority to treat ARD as a prior offense pursuant to
Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), overruled by
Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. 2022) (en banc).6 (Id. at 5-6.)
Licensee further argued the Bureau could not impose a suspension because the
sentencing order had stated that “no license suspension” would be imposed, and he
was entitled to the benefit of the plea agreement. (Id. at 6.) Common pleas rejected
Licensee’s first argument, noting that this Court in Ferguson v. Department of
Transportation, Bureau of Driver Licensing, 267 A.3d 628 (Pa. Cmwlth. 2021) (en
banc), petition for allowance of appeal granted, 280 A.3d 859 (Pa. 2022), held that
a license suspension is a “collateral civil consequence,” not a criminal sentence to
which Chichkin applies, and common pleas is bound by this precedent. (R.R. Item 4
at 7). The same day, common pleas issued its Order dismissing Licensee’s appeal
and reinstating the suspension. (R.R. Item 5.)
5
Section 3806(a) of the Vehicle Code states in relevant part:
the term “prior offense” as used in this chapter shall mean any conviction for which
judgment of sentence has been imposed, adjudication of delinquency, juvenile
consent decree, acceptance of [ARD] or other form of preliminary disposition
before the sentencing on the present violation for any of the following: (1) an
offense under [S]ection 3802 (relating to [DUI] of alcohol or controlled substance)
75 Pa.C.S. § 3806(a).
6
The defendant in Moroz filed a petition for allowance of appeal with the Supreme Court.
See Petition for Allowance of Appeal, Commonwealth v. Moroz (Pa., No. 520 MAL 2022). By
order dated April 17, 2023, the Supreme Court held the petition pending disposition of
Commonwealth v. Richards (Pa., No. 25 MAP 2023).
4
On March 14, 2022, Licensee filed the instant appeal to the Commonwealth
Court. Common pleas directed Licensee to file a Concise Statement of Errors
Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(b), which Licensee did. Common pleas issued a Statement in Lieu of an
Opinion, in which it reiterated its reliance on Ferguson and indicated that, pursuant
to Department of Transportation, Bureau of Driver Licensing v. Lefever, 533 A.2d
501 (Pa. Cmwlth. 1987), the Bureau is not bound by plea agreements arising from
related criminal charges. (R.R. Item 6.)
II. PARTIES’ ARGUMENTS
On appeal, Licensee raises two issues:
1. Whether [common pleas] erred as a matter of law, and violated
[Licensee’s] substantive and procedural due process rights, in determining
that [Licensee’s] prior acceptance into and successful completion of the
. . . [ARD] program for an alleged violation of Section 3802 was a “prior
offense” for the purposes of the suspension of his driving privileges, when
the Superior Court of Pennsylvania previously held in Commonwealth v
Chichkin, 232 A.3d 959 (Pa. Super. 2020)[,] that ARD was not a “prior
offense” pursuant to Section 3806 of the Vehicle Code.
2. Whether [common pleas] erred as a matter of law in upholding the
suspension of driving privileges imposed by the [Bureau] for a conviction
for [DUI] – General Impairment pursuant to Section 3802(a)(1), second
offense, when [Licensee] entered into a negotiated plea agreement that
included no license suspension . . . .
(Licensee Br. at 4.)
Licensee argues that common pleas erred and violated Licensee’s substantive
and procedural due process rights in determining that Licensee’s successful
completion of ARD was a prior offense for purposes of a license suspension under
5
the Vehicle Code. (Licensee’s Br. at 7.) Licensee asserts that the Superior Court’s
holding in Chichkin dictates that ARD is not a prior offense for the purposes of
Section of 3806 of the Vehicle Code. (Id. at 8-10.) Licensee argues that Chichkin’s
prohibition on using ARD to establish a prior offense applies to the entirety of
Section of 3806. This is because, Licensee asserts, the court in Chichkin did not
expressly condone the use of ARD to establish prior offenses for the purpose of civil
penalties separate from criminal penalties. (Id. at 10.) Licensee further argues that
because he pled guilty to a first offense DUI, which included no license suspension,
common pleas erred when it upheld the suspension of Licensee’s operating privilege.
When common pleas upheld Licensee’s suspension for a conviction for DUI
pursuant to Section 3802(a)(1) as a second offense, Licensee contends it deprived
him the benefit of his plea agreement. (Id. at 11.)
The Bureau responds that common pleas was correct in affirming the Bureau’s
suspension of Licensee’s operating privilege because Chichkin has no impact on
operating privilege suspensions because the fact of a prior ARD acceptance is not
being used to enhance a criminal sentence. (Bureau’s Br. at 8, 23.) As such, “the
Chichkin ruling does not invalidate Section 3806(a) of the Vehicle Code for civil
license suspension purposes.” (Id. at 8.) Because the suspension is a civil sanction
instead of a criminal sentence, (id. at 19, 21-23), the prohibition against using a fact
not proven beyond a reasonable doubt to enhance a criminal sentence is not violated
when ARD is treated as a prior offense for the civil suspension of a licensee’s
operating privilege, (id. at 21, 27). As to Licensee’s second argument, the Bureau
maintains that, based on the reasoning of Lefever, common pleas correctly held that
the Bureau was not bound by any pretrial agreement Licensee made with the Fayette
County District Attorney’s Office (District Attorney). (Id. at 29.) The Bureau
6
argues District Attorney had no authority to plea bargain away an operating privilege
suspension that the Bureau is mandated by statute to impose. (Id. at 30-33.)
III. DISCUSSION
On the first issue, Licensee relies on Chichkin, 232 A.3d at 971, in which a
three-judge panel of the Superior Court held “the particular provision of [Section
3806(a),] 75 Pa.C.S. § 3806(a), which defines a prior acceptance of ARD in a DUI
case as a ‘prior offense’ for DUI sentencing enhancement purposes, offends the Due
Process Clause and is therefore unconstitutional.” However, Chichkin was overruled
by an en banc panel of the Superior Court in Moroz, 284 A.3d at 233, which held
that “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.” While the defendant in Moroz is
challenging Chichkin’s overruling in his appeal to the Pennsylvania Supreme Court,7
until the Supreme Court holds otherwise, Moroz remains the law on that issue. In
addition to Chichkin being overruled, this Court held in Ferguson, 267 A.3d at 632,
that Chichkin is inapplicable to these cases, and Section 3806(a) is valid for the
purpose of civil license suspensions, because they are civil penalties imposed
separate from criminal sentencing “over which the criminal judge had no control and
for which he had no responsibility.” The Supreme Court granted an appeal in
Ferguson; however, it remains binding precedent on this Court. Pennsylvania Rule
of Appellate Procedure 3103(b), Pa.R.A.P. 3103(b).8 Based on this precedent,
7
See Petition for Allowance of Appeal at 21, Commonwealth v. Moroz (Pa., No. 520 MAL
2022).
8
Pursuant to Pennsylvania Rule of Appellate Procedure 3103(b), an en banc decision of
this Court is binding on any subsequent panel. Pa.R.A.P. 3103(b).
7
common pleas did not err in upholding the Bureau’s use of Licensee’s prior
acceptance of ARD to establish a prior conviction for the purpose of imposing a one-
year suspension of Licensee’s operating privilege.
On the second issue, Licensee argues common pleas erred in upholding the
suspension of Licensee’s operating privilege because he entered into a plea
agreement that included no license suspension in exchange for his pleading guilty to
a first offense DUI. It is well settled that “[the Bureau’s] civil suspension proceeding
is separate and distinct from the criminal proceeding initiated by the district
attorney.” Pat’s Auto Sales v. Dep’t of Transp., Bureau of Motor Vehicles, 744 A.2d
355, 359 (Pa. Cmwlth. 2000). For over 30 years this Court has held that mandatory
civil penalties, such as the suspension of Licensee’s operating privilege under the
Vehicle Code, “are not subject to the terms of a plea agreement arising from related
criminal charges.” Lefever, 533 A.2d at 503. Accordingly, the Bureau was not
bound by a sentencing order that did not impose a license suspension. Boals v. Dep’t
of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 1266 C.D. 2020, filed Oct.
20, 2022), slip op. at 16.9 “[R]egardless of whether a plea agreement existed in the
underlying criminal proceedings, it has no effect on the [Bureau’s] duty under the
relevant provisions of the Vehicle Code to impose the instant license suspension.”
Stair v. Dep’t of Transp., Bureau of Driver Licensing, 911 A.2d 1014, 1018 (Pa.
Cmwlth. 2006). Therefore, common pleas did not err in determining that Licensee’s
plea agreement with District Attorney did not bind the Bureau.
9
Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), an
unreported opinion of this Court, while not binding, may be cited for its persuasive value.
8
IV. CONCLUSION
Based on the aforementioned precedent, we discern no error in common pleas’
findings that the Bureau could use Licensee’s prior acceptance of ARD to establish
a prior offense for the purpose of suspending his operating privilege for one year and
that the Bureau was not bound by any plea agreement made between Licensee and a
third party. In light of the foregoing, we affirm the Order of common pleas.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tyler Andrew Smith, :
Appellant :
:
v. : No. 223 C.D. 2022
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
NOW, August 29, 2023, the Order of the Court of Common Pleas of Fayette
County, dated February 16, 2022, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge