Com. v. Roebuck, R. ( 2023 )

J-S44024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RONALD PAUL ROEBUCK : No. 820 MDA 2022
Appeal from the Judgment of Sentence Entered May 6, 2022
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001105-2021
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 27, 2023
The Commonwealth appeals from the judgment of sentence entered
following Ronald Paul Roebuck’s guilty plea to driving under the influence
(“DUI”) – highest rate of alcohol.1 The Commonwealth argues that the court
should have sentenced him as a second-time DUI offender based on his prior
DUI that resulted in him being placed in the Accelerated Rehabilitative
Disposition (“ARD”) program. Due to this Court’s recent overruling of
Commonwealth v. Chichkin, 232 A.3d 959 (Pa.Super. 2020), we vacate the
judgment of sentence and remand for resentencing.
In February 2022, Roebuck pleaded guilty to the above offense. He had
previously been accepted into and completed ARD in 2021 for a prior DUI
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. 3802(c).
J-S44024-22
conviction. At sentencing, the Commonwealth argued that the ARD counted
as a prior offense, thereby making his current DUI conviction a second offense,
increasing Roebuck’s sentencing exposure. At the time of sentencing,
Chichkin was binding precedent. In Chichkin, a three-judge panel of this
Court concluded that “prior acceptances of ARD cannot be categorized as ‘prior
convictions’ exempt from the holding of Apprendi [v. New Jersey, 530 U.S.
466 (2000)] and Alleyne [v. United States, 570 U.S. 99 (2013)].” 232 A.3d
at 967. This Court also concluded that “the particular provision of 75
Pa.C.S.[A.] § 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.” Id. at 971. Relying on
Chichkin, the trial court rejected the Commonwealth’s argument and
sentenced Roebuck as a first-time DUI offender. This timely appeal followed.
The Commonwealth raises one issue:
Whether the Superior Court erred in holding for DUI
sentencing purposes that [Roebuck]’s conviction was a
second in ten years offense as opposed to a third in ten
years based upon the defective holding in Commonwealth
v. Chichkin, 232 A.3d 959 (Pa.Super. 2020) that
acceptance of ARD could not be treated as a prior offense?
Commonwealth’s Br. at 6.
During the pendency of this appeal, this Court sitting en banc overruled
Chichkin. See Commonwealth v. Richards, 284 A.3d 214, 220 (Pa.Super.
2022) (en banc) (expressly overruling Chichkin); Commonwealth v.
Moroz, 284 A.3d 227, 233 (Pa.Super. 2022) (en banc) (same). In Richards,
-2-
J-S44024-22
we noted that the Vehicle Code expressly states that a prior acceptance of
ARD constitutes a conviction for purposes of sentencing. 284 A.3d at 220. We
found that defendants accepting ARD were on notice that their doing so would
count as a prior conviction for purposes of sentencing on any later DUI
conviction because it was written into the statute, and defendants are
presumptively aware of relevant statutes. Id. We thus found no due process
violation in treating ARD as a prior conviction since “a defendant voluntarily
enters the ARD program to avoid prosecution on a first DUI charge, and he is
free to reject participation in the program if he wishes to avail himself of his
full panoply of constitutional rights.” Id. (emphasis in original). We expressly
overruled Chichkin and 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.”
Id. We did the same in Moroz. 284 A.3d at 233.
Richards and Moroz apply here. See Commonwealth v. Cabeza, 469
A.2d 146, 148 (Pa. 1983) (stating “where an appellate decision overrules prior
law and announces a new principle, unless the decision specifically declares
the ruling to be prospective only, the new rule is to be applied retroactively to
cases where the issue in question is properly preserved at all stages of
adjudication up to and including any direct appeal”). We vacate the judgment
of sentence and remand for resentencing consistent with Richards and
Moroz.
-3-
J-S44024-22
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2023
-4-