Commonwealth v. Moroz

284 A.3d 227

COMMONWEALTH of Pennsylvania, Appellant

v.Richard Aleksandr MOROZ, Appellee

No. 282 MDA 2021

Superior Court of Pennsylvania.

Argued April 20, 2022

Filed October 4, 2022

Matthew Frederick Metzger, Assistant District Attorney, Bellefonte, for Commonwealth, appellant.

Julian G. Allatt, State College, for appellee.

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., STABILE, J., KUNSELMAN, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

OPINION BY KING, J.:

Appellant, the Commonwealth of Pennsylvania, appeals from the judgment of sentence entered in the Centre County Court of Common Pleas, following the guilty pleas of Appellee, Richard Aleksandr Moroz, to driving under the influence—high rate of alcohol ("DUI"), careless driving, and general lighting requirements.¹ We vacate the judgment of sentence and remand the matter for further proceedings.

The relevant facts and procedural history of this appeal are as follows. On July 12, 2019, police arrested Appellee for DUI, and the Commonwealth charged him with various offenses at docket number 1516 of 2019. On August 5, 2019, police arrested Appellee for a second DUI, and the Commonwealth charged him with various offenses at docket number 1515 of 2019. On February 12, 2020, Appellee entered the Accelerated Rehabilitative Disposition ("ARD") program for the charges stemming from the July arrest. That same day, Appellee tendered a negotiated guilty plea for the charges stemming from the August arrest, with the DUI considered as a second offense. The court deferred sentencing on the matter. Prior to sentencing, however, this Court issued its opinion in Commonwealth v. Chichkin , 232 A.3d 959 (Pa.Super. 2020), holding that the portion of the DUI statute equating prior acceptance of ARD to a prior conviction for purposes of imposing a mandatory minimum sentence for a second or subsequent DUI offense was unconstitutional.

Appellee proceeded to a hearing on June 16, 2020. The trial court summarized the outcome of this hearing as follows:

At sentencing on June 16, 2020, [Appellee] objected to being sentenced based on a second offense raising the Pennsylvania Superior Court's recent ruling in [ Chichkin, supra ]. As a result, the Commonwealth amended the criminal information to add two counts reflecting first offense DUI charges. [Appellee] then withdrew his original guilty plea and entered an open guilty plea to all charges on the criminal information. The Commonwealth argued the Chichkin decision required the Commonwealth to prove the first DUI entered into the ARD program at docket no. CP-14-CR-1516-2020 beyond a reasonable doubt at an evidentiary hearing in order to establish the DUI at docket no. CP-14-CR-1515-2020 as a second offense DUI for sentencing purposes.

The Commonwealth proposed holding an evidentiary hearing before a different judge acting as a "blind" judge without knowledge of the other pending DUI who could rule on whether the Commonwealth proved the first DUI beyond a reasonable doubt. After the "blind" judge's ruling, the parties would return before [the original jurist] for sentencing on either a first offense or second offense DUI. The evidentiary hearing was scheduled to be heard by the ["blind" judge] on August 7, 2020, but [the "blind" judge] would not hold an evidentiary hearing unless the parties filed motions explaining the purpose of the hearing. The Commonwealth believed filing motions would defeat the purpose of having a "blind" judge, and [Appellee] had objections to the procedures proposed for the evidentiary hearing. The parties agreed that any argument over the evidentiary hearing procedure should be made before [the original jurist, who] sits as the sentencing judge.

As a result, the Commonwealth filed a praecipe for hearing on August 31, 2020 requesting an evidentiary hearing be held before the sentencing judge. The evidentiary hearing would address whether the Commonwealth could prove [Appellee's] first DUI beyond a reasonable doubt. A hearing on whether to grant the Commonwealth's praecipe for hearing was held on October 20, 2020.

(Trial Court Opinion, filed 12/28/20, at 2-3).

On October 20, 2020, the Commonwealth raised certain objections to the potential application of the Chichkin decision. On December 28, 2020, the court denied the Commonwealth's praecipe for hearing. On February 4, 2021, the court conducted a sentencing hearing regarding the charges at docket number 1515 of 2019. Relying on Chichkin , the court sentenced Appellee as a first-time DUI offender to forty-eight (48) hours to six (6) months’ imprisonment. The court also imposed additional fines and costs for the summary traffic offenses.

On March 5, 2021, the Commonwealth timely filed a notice of appeal. On March 11, 2021, the court ordered the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The Commonwealth timely filed its Rule 1925(b) statement on March 31, 2021. We subsequently determined that the appeal should be considered by this Court sitting en banc . On November 17, 2021, this Court entered its order directing en banc certification.

The Commonwealth now raises two issues for our review:

Whether a defendant's previous acceptance of [ARD] for [DUI] should qualify as a "prior offense" for the purposes of the DUI sentencing enhancement provision at 75 Pa.C.S.A. § 3804 contrary to the holding in [ Chichkin, supra ]?

Whether the three-judge panel's conclusion in Chichkin , that 75 Pa.C.S.A. § 3806(a)(1) is unconstitutional, must be overruled?

(Commonwealth's Brief at 6).

"The defendant or the Commonwealth may appeal as of right the legality of the sentence." 42 Pa.C.S.A. § 9781(a). "As long as the reviewing court has jurisdiction, a challenge to the legality of the sentence is non-waivable and the court can even raise and address it sua sponte ." Commonwealth v. Infante , 63 A.3d 358, 363 (Pa.Super. 2013). "A challenge to the legality of sentence is a question of law; our standard of review is de novo and our scope of review is plenary." Commonwealth v. Alston , 212 A.3d 526, 528 (Pa.Super. 2019).

"A claim that implicates the fundamental legal authority of the court to impose a particular sentence constitutes a challenge to the legality of the sentence." Infante, supra at 363 (quoting Commonwealth v. Catt , 994 A.2d 1158, 1160 (Pa.Super. 2010) (en banc )). "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated." Id. (quoting Catt, supra at 1160 ).

On appeal, the Commonwealth contends that the General Assembly possesses the authority to create laws and define the terms within those laws. Regarding the statutory scheme for DUI, the Commonwealth emphasizes that Section 3806(a) demonstrates the legislature's intent for acceptance of ARD to count as a prior offense for purposes of DUI sentencing. The Commonwealth acknowledges Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) and Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that any facts enhancing a sentence must be submitted to a fact finder and proven beyond a reasonable doubt. Nevertheless, the Commonwealth relies on Almendarez-Torres v. United States , 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), for the proposition that the fact of a prior conviction is not an element that must be proven beyond a reasonable doubt for enhanced statutory penalties to apply. The Commonwealth maintains that the General Assembly "has equated acceptance of ARD for a first-time DUI with a prior conviction for DUI, [and] it is not a fact that needs to be proved beyond a reasonable doubt pursuant to Almendarez-Torres ." (Commonwealth's Brief at 23).

The Commonwealth argues that this Court must overrule Chichkin because "prior acceptance [of ARD] is clearly a sentencing factor outside the purview of Alleyne , as has been the historical viewpoint in prior Pennsylvania appellate decisions on the matter." (Id. at 30). Contrary to the holding in Chichkin , the Commonwealth explains that Pennsylvania's ARD protocols contain numerous, effective due process protections. Procedurally, "ARD placement is a structured, defined, and protected process," which "maintains the entire panoply of Constitutional rights attendant to a criminal prosecution." (Id . at 35). Based upon the foregoing, the Commonwealth concludes that a defendant's voluntary acceptance of ARD must be recognized as a "prior conviction" for recidivist DUI sentencing purposes. We agree.

" Section 3804 [of the Motor Vehicle Code] sets forth mandatory minimum sentence terms for first, second, and subsequent DUI offenses." Chichkin, supra at 963. Section 3806 governs "prior offenses" as follows:

§ 3806. Prior offenses

(a) General rule.— Except as set forth in subsection (b), 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 Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:

(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance)[.]

75 Pa.C.S.A. § 3806(a)(1). "Thus, a defendant who had accepted ARD for a prior DUI offense is considered a second-time offender under the Section 3804 penalty provisions." Chichkin, supra at 963.

"[T]he essence of the seriousness of the crime of drunk driving is that it is a life-threatening act." Commonwealth v. Lutz , 508 Pa. 297, 312-13, 495 A.2d 928, 936 (1985). "[S]ociety, for its own protection, has an interest in carrying out the penalties prescribed by the legislature for drunk driving...." Id . at 307, 495 A.2d at 933. ARD is one such penalty:

The primary purpose of this program is the rehabilitation of the offender; secondarily, the purpose

...