Com. v. Disbrow, J. ( 2023 )

J-S39009-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOLENE DANIELLE DISBROW :
:
Appellant : No. 746 MDA 2023
Appeal from the Judgment of Sentence Entered May 16, 2023
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0001257-2022
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 26, 2023
Appellant Jolene Danielle Disbrow appeals from the May 16, 2023
Judgment of Sentence entered by the Adams County Court of Common Pleas
following her convictions related to Driving Under the Influence of Alcohol and
Controlled Substances (“DUI”). She argues that the trial court erred in
considering her prior acceptance into Accelerated Rehabilitative Disposition
(“ARD”) to be a first offense, when the court later removed her from ARD and
the Commonwealth nolle prossed the relevant charge. After review and based
upon controlling precedent, we affirm.
The relevant facts as set forth in the parties’ stipulation are as follows.
At approximately 3:10 AM on July 29, 2022, a Pennsylvania State Police
Trooper stopped Appellant after noticing that her passenger side headlight
was inoperable. Upon approaching the vehicle, the trooper noticed a strong
order of burnt marijuana and that Appellant’s eyes were glassy and bloodshot.
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Ultimately, the troopers placed Appellant under arrest after she demonstrated
impairment during field sobriety tests. Appellant consented to a blood draw,
which revealed “a Blood Alcohol Concentration (BAC) of 0.091, active
Marijuana compounds (Delta-9 THC), as well as active Marijuana metabolites
(11-Hydroxy Delta-9 THC) and inactive Marijuana metabolites (Delta-9
Carboxy THC)[, and] Methamphetamine.” Stipulation, 5/16/23, at ¶ 17.
The Commonwealth charged Appellant with seven counts of DUI based
upon the presence of alcohol and the controlled substances, in addition to a
summary violation for her inoperable headlight.1 The Commonwealth
designated the DUI offenses as second offenses based upon Appellant’s prior
acceptance into ARD in 2014.2 Relevantly, Appellant entered ARD on January
22, 2014, but the court removed her from the ARD program on December 17,
2014. Ultimately, on August 18, 2015, the Commonwealth nolle prossed the
DUI charges, and Appellant pled guilty to Recklessly Endangering Another
Person. Id. at ¶ 19.
In the instant case, Appellant filed a Motion in Limine to Bar Admission
of Evidence Underlying ARD for DUI Recidivist Sentencing Purposes (“Motion
in Limine”). Appellant asserted that the Commonwealth should not have
charged the current DUI offenses as second offenses, arguing that her 2014
acceptance into ARD should not be considered a prior offense given that the
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1 75 Pa.C.S. §§ 3802(a)(1), (a)(2), (d)(1)(i), (d)(1)(ii), (d)(1)(iii), (d)(2),
(d)(3); 4303(a).
2 CP-21-CR-3391-2013.
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court removed her from ARD and the Commonwealth ultimately nolle prossed
the DUI charge. She claimed that she “cannot reasonably be convicted of a
2nd offense DUI when the 1st offense was dismissed.” Motion in Limine,
11/28/22.
On January 26, 2023, after hearing argument, the court denied the
Motion in Limine. Based on Commonwealth v. Bowers, 25 A.3d 349 (Pa.
Super. 2011), the court concluded that Appellant’s “prior acceptance of ARD
will be considered a first offense for sentencing purposes in this matter.” Trial
Ct. Order, 1/26/23.
On May 16, 2023, following a stipulated bench trial, the court found
Appellant guilty of the seven counts of DUI, as second offenses, as well as the
summary violation for the inoperable headlamp. Pursuant to the parties’
agreement, the court sentenced Appellant on Count 3, DUI-Controlled
Substance,3 to 60 months of probation with restrictive DUI conditions,
involving 90 days of house arrest. The other DUI convictions merged for
sentencing purposes, and the court imposed a $25 fine for the summary
violation, in addition to mandated fees, fines, and costs.
On May 18, 2023, Appellant filed a post-sentence motion again
challenging the designation of the 2014 ARD acceptance as a prior DUI
offense. The trial court denied the motion on May 18, 2023.
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3 75 Pa.C.S. § 3802(d)(1)(i).
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Appellant filed a Notice of Appeal on May 22, 2023. Both Appellant and
the trial court complied with Pa.R.A.P. 1925. On May 23, 2023, the trial court
granted Appellant’s request that it stay her sentence pending appeal.
Before this Court, Appellant raises the following issue:
Whether Appellant’s prior admission into ARD, removal from ARD
and then dismissal of the DUI, constitutes a prior offense for
purposes of the DUI sentencing enhancement[?]
Appellant’s Br. at 6.
A.
Appellant challenges the legality of the trial court’s decision to sentence
her as a second time DUI offender under the Vehicle Code. As Appellant
presents a question of law, “our standard of review is de novo[,] and our scope
of review is plenary.” Commonwealth v. Moroz, 284 A.3d 227, 230 (Pa.
Super. 2022) (citation omitted).
The Vehicle Code sets forth the penalties for DUI-Controlled Substances,
which include mandatory maximum sentences that increase based upon
whether the individual has one or more prior offenses. 75 Pa.C.S. § 3804. In
relevant part, the Vehicle Code defines a “prior offense” as including any
“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 section 3802 (relating to driving under influence of alcohol or controlled
substance).” 75 Pa.C.S. § 3806(a)(1). For purposes of sentencing under
Section 3804, “the prior offense must have occurred: (i) within 10 years prior
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to the date of the offense for which the defendant is being sentenced[.]” Id.
§ 3806(b)(1)(i).
ARD is a pretrial diversionary program “established to promptly resolve
relatively minor cases involving social or behavioral problems which can best
be solved by programs and treatments rather than by punishment.”
Commonwealth v. Jenkins, ___ A.3d ___, 2023 WL 6885054, at *2 (Pa.
Super. Oct. 19, 2023). (citations and internal quotation marks omitted). The
program offers offenders “the possibility of a clean record if they successfully
complete the program.” Pa.R.Crim.P. Ch. 3, Explanatory Cmt.
“Admission to an ARD program is not a matter of right, but a privilege.”
Commonwealth v. Lutz, 495 A.2d 928, 933 (Pa. 1985). “A defendant may
be placed in the ARD program only after he or she has requested acceptance
into the program, has indicated an understanding of the proceedings, and has
accepted and agreed to comply with the conditions imposed by the trial court.”
Moroz, 284 A.3d at 231 (citation omitted). Moreover, completion of ARD is
not guaranteed. Rather, “ARD has simply suspended the criminal
proceedings, which may be reactivated upon the defendant’s withdrawal or
removal from the program.” Jenkins, 2023 WL 6885054, at *5; see also
Pa. R. Crim. P. 318. This potential of removal followed by reactivation of the
criminal process results in the situation in the case at bar, where an offender
who has been accepted into ARD is later cleared of the underlying criminal
charges.
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Regardless of the ultimate resolution of the charges, this Court has held
that Section 3806 unambiguously mandates that the relevant event for
purposes of determining the existence of a “prior offense” is the offender’s
acceptance into ARD. Bowers, 25 A.3d at 353-54 (relying upon
Commonwealth v. Becker, 530 A.2d 888, 893 (Pa. Super. 1987) (en banc),
interpreting similar language in a predecessor statute, 75 Pa.C.S. § 3731
(repealed)). “Section 3806(b), by its clear terms, only asks whether the
defendant has accepted ARD in the ten years preceding the occurrence of the
present Section 3802 offense; it does not contemplate the guilt or innocence
of a defendant at the time of ARD acceptance.” Id. at 354. While recognizing
the harsh result of finding an acquittal to constitute a “prior offense,” the Court
emphasized that any other interpretation would “require us to deviate from
the statute modifying this clear directive from our General Assembly, which
we cannot do.”4 Id.
The Court in Bowers additionally rejected Bower’s claim that Section
3806 violated due process by equating his acquittal of DUI to a prior offense
of DUI. The Court found that Section 3806’s “sentencing enhancement” was
not fundamentally unfair given that the offender voluntarily entered ARD after
having notice that acceptance of ARD would be considered a prior DUI offense.
Id. at 356. “These factors—advance[] notice and voluntary ARD acceptance—
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4 In Bowers, the trial court accepted Bowers into ARD but later removed him
from ARD based upon new DUI charges. Ultimately, the court acquitted
Bowers of the initial DUI charges for which he had accepted ARD.
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support our determination that due process permits treating Bowers’s ARD
acceptance as a prior offense in a subsequent sentencing proceeding, despite
a later acquittal on the underlying charge giving rise to ARD acceptance.” Id.
This Court, however, arguably abrogated Bowers in Commonwealth
v. Chichkin, 232 A.3d 959, 968 n.11 (Pa. Super. 2020), overruled by
Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc),
appeal granted, 294 A.3d 300 (Pa. 2023), and Commonwealth v. Moroz,
284 A.3d 227 (Pa. Super. 2022) (en banc). In Chichkin, the Court reasoned
that Section 3806 violated the Due Process Clause to the extent that it
“define[d] a prior acceptance of ARD in a DUI case as a ‘prior offense’ for DUI
sentencing enhancement purposes[,]” “absent proof beyond a reasonable
doubt that [the defendants] committed the prior offenses.’” Chichkin, 232
A.3d at 971 (relying upon Alleyne v. United States, 570 U.S. 99, 103 (2013)
(holding that “any fact that, by law, increases the penalty for a crime is an
‘element’ that must be submitted to the jury and found beyond a reasonable
doubt.”). The decision in Chichkin noted that Bowers predated the Supreme
Court’s decision in Alleyne. Chichkin, 232 A.3d at 968 n.11.
As indicated, however, this Court overruled Chichkin in Richards and
Moroz. In these en banc decisions, this Court held that “a defendant’s prior
acceptance of ARD fits within the limited ‘prior conviction’ exception set forth
in Apprendi [v. New Jersey, 530 U.S. 466 (2000)] and Alleyne.”
Richards, 284 A.3d at 220. As in Bowers, the Court concluded that the
notice provided by Section 3806 and the voluntary nature of ARD “mitigate[d]
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the due process concerns advanced in Chichkin.” Id. We conclude that the
en banc decisions in Richards and Moroz lifted the shadow which Chichkin
placed over the holding in Bowers. Thus, absent action by the Supreme
Court, we are bound by Richards, Moroz, and Bowers.5
B.
Appellant argues that “[t]he trial court erred when it . . . sentenced
Appellant to a second offense DUI when there is no first offense DUI on her
record.” Appellant’s Br. at 9. Appellant reiterates that she “entered the ARD
program, the Commonwealth then removed her from that program[,] and
then the Commonwealth dismissed the DUI charge.” Id. Appellant contends
that it is absurd to read the statutory language to equate the Commonwealth’s
dismissal of her charge with a prior DUI offense. Invoking the arguments in
Richards, Moroz, and Chichkin, Appellant also maintains “that a prior DUI
charge which was nolle prosed is insufficient proof of the commission of a prior
offense in violation of [Apprendi and Alleyne].” Appellant’s Br. at 11.
Indeed, Appellant distinguishes her case from Richards, Moroz, and
Chichkin, emphasizing that those cases involved defendants who completed
ARD, whereas the Commonwealth nolle prossed her charges. Appellant,
however, does not confront Bowers, despite the trial court’s express reliance
on that decision.
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5 On March 15, 2023, the Pennsylvania Supreme Court granted review of
Richards, 294 A.3d 300, and previously split evenly on the constitutionality
of Section 3806’s definition of a prior DUI offense as including acceptance into
ARD in Commonwealth v. Verbeck, 290 A.3d 260 (Pa. 2023).
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As the trial court recognized, this Court in Bowers held that the
unambiguous language of Section 3806 looks solely to “whether the defendant
has accepted ARD in the ten years preceding the occurrence of the present
Section 3802 offense.” Bowers, 25 A.3d at 354; see also Trial Ct. Op.,
6/12/23, at 2. Moreover, while Appellant distinguishes Richards and Moroz
factually from her case, given that the defendants in those cases completed
ARD rather than being removed from it, she fails to explain how that
distinction alters the applicability of the reasoning of those cases, which hold
that the relevant portion of Section 3806 “passes constitutional muster.”
Richards, 284 A.3d at 220. Indeed, the reasoning of Richards and Moroz
is based not on the completion of ARD but instead on the due process
surrounding an offender’s acceptance into ARD, specifically the notice
provided by Section 3806 of the repercussions of entering ARD and the
voluntariness of the decision to enter ARD. The trial court, therefore, properly
concluded that Appellant’s prior acceptance of ARD was a first offense for
sentencing purposes under Section 3806(b) and that the instant DUI
constituted a second offense.6
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6 Appellant also relies upon Rickell v. Dep't of Transportation, Bureau of
Driver Licensing, 289 A.3d 1155 (Pa. Cmwlth. 2023)., which refused to
consider a prior acceptance of ARD, followed by a revocation of ARD, to be a
first offense. Not only is this decision of our sister court not binding on this
Court, Rickell is also distinguishable as it involved an attempt by the
Department to count the same DUI incident twice, by counting the offender’s
acceptance into ARD as the initial offense and the subsequent prosecution of
the same incident as a second offense. Id. at 1161. Reliance on Rickell,
accordingly, is inapt.
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Judgment of Sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/26/2023
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