Commonwealth v. Richards

284 A.3d 214

COMMONWEALTH of Pennsylvania, Appellee

v.Jonathan RICHARDS, Appellant

No. 1673 EDA 2020

Superior Court of Pennsylvania.

Argued April 20, 2022

Filed October 4, 2022

Thomas George Barnes, Cinnaminson, for appellant.

Eugene Tsvilik, Assistant District Attorney, Doylestown, for Commonwealth, 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, Jonathan Richards, appeals from the judgment of sentence entered in the Bucks County Court of Common Pleas, following his guilty plea to two counts of driving under the influence ("DUI") and related Motor Vehicle Code violations.¹ We affirm.

The relevant facts and procedural history of this appeal are as follows. Police arrested Appellant for DUI in March 2011. Appellant subsequently accepted and completed participation in the Accelerated Rehabilitative Disposition ("ARD") program in conjunction with this offense. On August 31, 2019, police again stopped Appellant for DUI. The Commonwealth charged Appellant with one count of DUI—general impairment (second offense), one count of DUI—highest rate of alcohol (second offense), and summary traffic offenses.

On May 20, 2020, 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. That same day, Appellant filed a pretrial motion to bar consideration of the prior ARD acceptance at sentencing. On June 23, 2020, the Commonwealth filed a motion to treat the current DUI offense as a second or subsequent offense. The Commonwealth stated that, per Chichkin , it was permitted the opportunity to prove beyond a reasonable doubt that Appellant had committed the 2011 DUI underlying his ARD acceptance.

On June 24, 2020, Appellant filed a motion to bar the Commonwealth from attempting to prove the prior ARD/DUI offense. Specifically, Appellant argued that it would be illegal for the court to use his acceptance of ARD to enhance the sentence for the subsequent DUI. Also on June 24, 2020, Appellant entered an open guilty plea to all charges.

The court conducted Appellant's sentencing hearing on August 19, 2020. At that time, the court permitted the Commonwealth to present testimony from Detective Anthony Marsaglia, the arresting officer in Appellant's 2011 DUI case. Based upon this testimony, the court held that the Commonwealth had proven beyond a reasonable doubt that Appellant had committed a DUI underlying his previous ARD acceptance. Accordingly, the court treated Appellant as a second-time DUI offender in the instant case. The court sentenced Appellant to three (3) to twenty-three (23) months’ incarceration, plus a concurrent term of twenty-four (24) months of probation.

On September 1, 2020, Appellant timely filed a notice of appeal. The court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal on September 4, 2020. Appellant timely filed his Rule 1925(b) statement on September 24, 2020.

On October 8, 2021, a three-judge panel of this Court vacated the judgment of sentence and remanded the matter for the trial court to resentence Appellant as a first-time offender. The Commonwealth timely filed an application for reargument en banc on October 22, 2021. On December 20, 2021, this Court granted en banc review and withdrew the prior panel's decision.

Appellant now raises five issues for this Court's review:

Whether treating an "ARD acceptance disposition" as the equivalent of a prior conviction under 75 Pa.C.S. § 3806 for recidivist mandatory minimum sentencing purposes under 75 Pa.C.S. § 3804 violates substantive and procedural due process of law?

Is it not a fundamentally unfair violation of due process for a successfully completed ARD to be considered a prior offense for the imposition of a recidivist mandatory minimum sentence?

Did not the unconstitutional statute, 75 Pa.C.S. § 3806, result in not only an unconstitutional mandatory minimum sentence, but also an illegal recidivist grading of the offense as a misdemeanor of the first degree under 75 Pa.C.S.A. § 3803 that unconstitutionally raised the maximum penalty for the DUI offense?

Would not any purported agreement to waive a challenge to the unconstitutional statute, 75 Pa.C.S. § 3806, be an unenforceable agreement to an illegal sentence?

Whether the [trial] court erred by imposing a mandatory minimum sentence based on evidence of the defendant's guilt on the ARD acceptance case at sentencing even though this procedure did not cure the constitutional deficiencies of the statute, and by failing to recognize that any procedures to rewrite an unconstitutional statute may only be done by the legislature, not the judiciary?

(Appellant's Brief at 2-3).

"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, Appellant argues that Section 3806, which defines "prior offenses" for purposes of DUI sentencing, violates both substantive and procedural due process by equating ARD acceptance with a prior conviction for purposes of sentencing. While Appellant recognizes that the legislature may treat recidivists with an aggravated punishment, he asserts that "[a]n acceptance of ARD, unlike a conviction, involves no finding of culpability for a charged offense because there is an absence of any guilt determination." (Appellant's Brief at 17). Appellant also claims "that it is fundamentally unfair and a violation of due process for an acceptance of ARD that was successfully completed[,] to years later be considered a ‘prior offense’ under Section 3806...." (Id. at 37). Appellant insists "that due process fairness principles require that the Commonwealth's valid legal agreement with a defendant must be enforceable." (Id. at 34). Further, Appellant asserts that he did not waive his right to challenge the constitutionality of Section 3806.

Further, Appellant contends that "[t]he procedure employed by the [trial] judge did not cure the unconstitutional Section 3806." (Id. at 47-48). Appellant contends that our "legislature's intentions with Section 3806 are clear by its terms," and the statute violates the U.S. Supreme Court's ruling in Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). (Id. at 48). Based upon the foregoing, Appellant concludes that this Court must find Section 3806 to be unenforceable. We disagree.

" 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 is the prompt disposition of charges, eliminating the need for costly and time-consuming trials or other court proceedings. These rules contemplate that ordinarily the defendants eligible for the ARD program are first offenders who lend themselves to treatment and rehabilitation rather than punishment and that the crime charged is relatively minor and does not involve a serious breach of the public trust. The program is intended to encourage offenders to make a fresh start after participation in a rehabilitative program and offers them the possibility of a clean record if they successfully complete the program.

Pa.R.Crim.P. Ch. 3, Explanatory Comment .

"ARD is not some trivial mechanism for avoiding a conviction and expunging an arrest record." Whalen v. Com., Dept. of Transp., Bureau of Driver Licensing , 613 Pa. 64, 75-76, 32 A.3d 677, 684 (2011). "Rather, it is an intensive process involving personal assessments, safety classes, and addiction treatment if necessary, all under court supervision...." Id. at 76, 32 A.3d at 684.

[A] defendant [may] be placed in

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