Commonwealth v. Commonwealth

304 A.3d 413

COMMONWEALTH of Pennsylvania, Appellant v. Robert Charles HIND

Commonwealth of Pennsylvania, Appellant v. Alexander Joseph Wiesenberg

No. 1787 EDA 2022

No. 1789 EDA 2022

Superior Court of Pennsylvania.

Submitted May 1, 2023

Filed October 10, 2023

Reargument Denied December 12, 2023

Jamie L. Wagenoffer, Assistant District Attorney, Milford, for Commonwealth, appellant.

Thomas E. Mincer, Milford, for appellee.

BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E. ^*

OPINION BY NICHOLS, J.:

In these two appeals, ¹ the Commonwealth appeals from judgments of sentence imposed after Robert Charles Hind and Alexander Joseph Wiesenberg (collectively, Appellees) each pled guilty to driving under the influence (DUI) of alcohol—highest rate. In both appeals, the Commonwealth argues that the trial court should have treated Appellees' prior acceptance of Accelerated Rehabilitative Disposition (ARD) for a DUI charge as a prior offense for sentencing purposes in accordance with Commonwealth v. Richards , 284 A.3d 214 (Pa. Super. 2022) ( Richards I ) ( en banc ), appeal granted , 294 A.3d 300 (Pa. 2023) ( Richards II ) ( per curiam order), and Commonwealth v. Moroz , 284 A.3d 227 (Pa. Super. 2022) ( en banc ). After careful review, we affirm the judgments of sentence.

The relevant facts and procedural history underlying each appeal is as follows:

Commonwealth v. Hind - 1787 EDA 2022

Hind was arrested for DUI and related traffic offenses following a vehicle stop on October 7, 2020. The Commonwealth filed bills of information charging Hind with DUI—general impairment (second offense) and DUI—highest rate of alcohol (second offense). ² On February 17, 2022, Hind entered a guilty plea to DUI—highest rate of alcohol.

On June 3, 2022, the trial court conducted a sentencing hearing. At that time, the Commonwealth argued that Hind's DUI conviction should be considered a second offense because he had completed ARD for a DUI charge within the previous ten years. N.T. Sentencing Hr'g ( Hind ), 6/3/22, at 4. Ultimately, the trial court concluded that it would consider Hind a first-time offender for sentencing purposes in accordance with Chichkin . See Chichkin , 232 A.3d at 969-71 (holding that 75 Pa.C.S. § 3806(a), which classified ARD as a prior offense in a DUI prosecution, violates due process), overruled by Richards I , 284 A.3d at 220, and Moroz , 284 A.3d at 233. Therefore, the trial court sentenced Hind to a term of 72 hours to six months' incarceration, the mandatory minimum sentence for DUI—highest rate (first offense), plus mandatory fines and court costs. See 75 Pa.C.S. § 3804(c)(1).

The Commonwealth filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed a Rule 1925(a) opinion addressing the Commonwealth's claim.

Commonwealth v. Wiesenberg - 1789 EDA 2022

Wiesenberg was arrested for DUI and related traffic offenses following a vehicle stop on October 21, 2020. The Commonwealth filed bills of information charging Appellee with, inter alia , DUI—general impairment (second offense) and DUI—highest rate of alcohol (second offense). On February 17, 2022, Appellee entered a guilty plea to DUI—highest rate of alcohol.

On June 3, 2022, the trial court conducted a sentencing hearing. At that time, the Commonwealth argued that Appellee's DUI conviction should be considered a second offense because he had a prior DUI-related ARD within the previous ten years. N.T. Sentencing Hr'g, 6/3/22 ( Wiesenberg ), at 6-7. Ultimately, just as in Hind , the trial court concluded that Wiesenberg would be considered a first-time offender for sentencing purposes in accordance with Chichkin . Therefore, the trial court sentenced Appellee to a term of 72 hours to six months' incarceration plus mandatory fines and court costs.

The Commonwealth filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed a Rule 1925(a) opinion addressing the Commonwealth's claim. ³

Analysis

In both appeals, the Commonwealth raises the following issue for our review:

Whether the sentence imposed is an illegal sentence, when [Appellee's] acceptance of ARD for DUI should qualify as a prior offense for the purposes of the DUI sentencing enhancement provisions at 75 Pa.C.S. § 3803, 75 Pa.C.S. § 3804, and 75 Pa.C.S. § 3806, contrary to the holding of Commonwealth v. Chichkin , 232 A.3d 959 (Pa. Super. 2020) ?

Commonwealth's Brief ( Hind ) at 4; Commonwealth's Brief ( Wiesenberg ) at 4 (formatting altered).

In its sole issue on appeal, the Commonwealth contends that the trial court imposed illegal sentences when it imposed the mandatory minimum sentence for a first DUI offense. In support, the Commonwealth reiterates that Hind entered the ARD program in 2014, and Wiesenberg entered the ARD program in 2021, both of which were during the ten-year lookback period for DUI offenses. Commonwealth's Brief ( Hind ) at 14-15; Commonwealth's Brief ( Wiesenberg ) at 14-15. Therefore, the Commonwealth concludes that in accordance with Richards I and Moroz , we should vacate Appellees' respective sentences and remand for resentencing.

In reviewing the Commonwealth's claim, we are guided by the following principles:

Issues relating to the legality of a sentence are questions of law. When the legality of a sentence is at issue, our standard of review over such questions is de novo and our scope of review is plenary. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated.

Commonwealth v. Ramos , 197 A.3d 766, 768-69 (Pa. Super. 2018) (citations omitted and formatting altered).

As noted previously, the trial court sentenced Appellees as first-time offenders based on this Court's decision in Chichkin . However, while the instant appeal was pending, an en banc panel of this Court overruled Chichkin and held that, " 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 I , 284 A.3d at 220 ; see also Moroz , 284 A.3d at 233 (same). ^{4 ,5}

Following Richards I and Moroz , this Court has held that a defendant who completed the ARD program for a DUI offense within the ten-year lookback period of Section 3806 should be treated as a second-time offender for purposes of DUI sentencing. See Commonwealth v. Hummel , 295 A.3d 719, 721 (Pa. Super. 2023) (vacating the defendant's judgment of sentence and remanding for resentencing); see also Commonwealth v. Scheppard , 2261 EDA 2022, 2023 WL 4417518, at *2-3 (Pa. Super. filed July 10, 2023) (unpublished mem.) (applying Hummel and vacating a defendant's judgment of sentence and remanding for resentencing for a second-offense DUI after the defendant completed the ARD program for a DUI offense within the ten-year lookback).

Our Supreme Court has mandated that all Pennsylvania courts, appellate and trial courts alike, are duty bound to apply the law in effect at the time of a decision. See Behers v. Unemployment Compensation Bd. of Review , 577 Pa. 55, 842 A.2d 359, 367 (2004) (explaining that it is the duty of the "courts below ... to effectuate the decisional law of [our Supreme] Court"); see also Smith v. A.O. Smith Corp. , 270 A.3d 1185, 1194 (Pa. Super. 2022) (noting that trial courts are bound by existing precedent), appeal denied , 283 A.3d 1247 (Pa. 2022) ; Commonwealth v. Seskey , 170 A.3d 1105, 1109 (Pa. Super. 2017) (holding that this Court is bound to follow our Supreme Court's decisional law). Further, litigants are entitled to the benefit of changes in the law that occur before the judgment is final. Commonwealth v. Chesney , 196 A.3d 253, 257 (Pa. Super. 2018) ; see also Hummel , 295 A.3d at 721 (applying Chesney to conclude that the Commonwealth benefited from a change in the law that occurred while the Commonwealth's appeal was pending).

Here, in both cases, the record reflects that at sentencing, the Commonwealth acknowledged that the trial court had no choice but to sentence Appellees as first-time DUI offenders pursuant to Chichkin , which was in effect at the time of both sentencing hearings. See N.T. Sentencing Hr'g ( Hind ), 6/3/22, at 7; N.T. Sentencing Hr'g ( Wiesenberg ), 6/3/22, at 6. However, the Commonwealth did not request that the trial court stay Appellees' sentences while the instant appeals were pending. The Commonwealth also made the following argument:

[T]he Commonwealth does believe that there is an argument against [sentencing Appellee as a first-time DUI offender], and that argument is currently pending in [the appellate courts]. We do believe that this is something that could potentially change, and we do believe it has a significant merit in order to allow the Commonwealth to see these DUI offenses with an underlying ARD offense prior to it being graded in the future as a subsequent ... DUI. However, in this case, it would be a second [offense]. So, Your Honor I do believe that at this point in time although the Commonwealth believes that it should be graded as a second offense DUI the case law does not allow for that. However, that may change given the pending cases that are up on [a]ppeal.

N.T. Sentencing Hr'g ( Hind ), 6/3/22, at 7-8. ⁶

In his brief, Hind notes that he has finished serving his sentence for DUI in its entirety and is no longer under the supervision of Pike County Probation and Parole Department. Hind's Brief at 6. The record further reflects that Hind has paid the fines, costs, and fees associated with this case in their entirety. See Trial Ct. Criminal Docket at CP-52-CR-0000173-2021 ( Hind ); R.R. at 13a. ⁷ Therefore, Hind argues that "it would be unjust to reopen this matter as Chichkin was controlling during the plea, sentencing, and completion of the sentence." Hind's Brief at 6. Likewise, Wiesenberg states that he completed serving his...