Com. v. Malenfant, J.

J-A15009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JONATHAN J. MALENFANT : No. 1297 EDA 2020
Appeal from the Judgment of Sentence Entered June 3, 2020
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0000385-2020
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 18, 2022
The Commonwealth appeals from the judgment of sentence imposed
upon Jonathan J. Malenfant (“Appellee”) after he pled guilty to driving under
the influence (“DUI”). Specifically, the Commonwealth contends that the trial
court erred in sentencing Appellee to the mandatory minimum of six months
of probation applicable to a first DUI offense, rather than the minimum
sentence of five days of incarceration mandated for a second DUI conviction.
We reverse and remand for resentencing consistent with this Court’s decision
in Commonwealth v. Moroz, ___ A.3d ___, 2022 PA Super 169, 2022 WL
4869900 (Pa.Super. Oct. 4, 2022) (en banc).
The pertinent facts are as follows. Appellee was charged with DUI in
the instant case in October 2019. The Commonwealth alleged that it was
Appellee’s second DUI offense because he had been accepted into an
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Accelerated Rehabilitative Disposition (“ARD”) program in 2016 in relation to
a prior DUI charge. While the instant charges remained pending, this Court
held in Commonwealth v. Chichkin, 232 A.3d 959 (Pa.Super. 2020), that,
to the extent that 75 Pa.C.S. § 3806 includes acceptance of ARD as a “prior
offense” for purposes of DUI sentencing, it is unconstitutional pursuant to
Apprendi v. New Jersey1 and Alleyne v. United States.2 See Chichkin,
supra at 971.
Nonetheless, the Commonwealth moved to treat the instant DUI charge
as Appellee’s second offense based upon three justifications. First, the
Commonwealth asserted that Chichkin was wrongly decided because “the
Chichkin [C]ourt wholly ignored the fact that by accepting ARD, a defendant
waives any rights he has under Apprendi and Alleyne to compel the
Commonwealth to prove beyond a reasonable doubt his guilt of the DUI
offense in order for it to count as a prior conviction.” Memorandum of Law,
6/1/20, at 4-5. Second, the Commonwealth claimed that not counting the
ARD acceptance as a prior conviction deprives the Commonwealth of the
benefit of its bargain with Appellee. Id. at 7-9. Third, it argued that it is “bad
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1 Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that facts that
“increase the prescribed range of penalties to which a criminal defendant is
exposed” constitutes elements of the crime at issue).
2 Alleyne v. United States, 570 U.S. 99, 103 (2013) (“Mandatory minimum
sentences increase the penalty for a crime. It follows, then, that any fact that
increases the mandatory minimum is an ‘element’ that must be submitted to
the jury.”).
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public policy” and contrary to the purpose of ARD to allow a recidivist to
dispute whether he committed the prior DUI offense after having participated
in the ARD program, since, if the defendant had committed no offense,
rehabilitation was unnecessary in the first place. Id. at 9-10.
On June 3, 2020, Appellee and the Commonwealth appeared at a guilty
plea hearing. At that time, the Commonwealth conceded that, “[u]nder the
case law,” the trial court did not have the authority to deem the instant case
as Appellee’s second offense. N.T. Guilty Plea and Sentencing, 6/3/20, at 16.
The trial court, acknowledging that the Commonwealth had preserved its
objections, ruled that Chichkin prohibited consideration of Appellee’s earlier
ARD acceptance as a prior conviction for sentencing purposes and proceeded
to sentence Appellee to the mandatory minimum applicable for a first offense.
Id. at 21, 24.
The Commonwealth filed a timely notice of appeal, and both it and the
trial court complied with Pa.R.A.P. 1925. The Commonwealth presents the
following questions for our consideration:
A. Did the sentencing court err in imposing an incorrect
mandatory minimum sentence for Appellee’s second,
subsequent DUI offense under 75 Pa.C.S. § 3804 when it
declined to hold that 75 Pa.C.S. § 3806(a) is a valid waiver of
a defendant’s right to have the Commonwealth prove a
previous DUI-ARD beyond a reasonable doubt in order for it to
constitute a prior offense for sentencing purposes?
B. Notwithstanding 75 Pa.C.S. § 3806(a), did the sentencing court
err in imposing an incorrect mandatory minimum sentence for
Appellee’s second, subsequent DUI offense under 75 Pa.C.S.
§ 3804 when Appellee, in accepting the terms of his written
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ARD agreement, waived his right to have the Commonwealth
prove his previous DUI-ARD beyond a reasonable doubt in
order for it to constitute a prior offense for sentencing
purposes?
C. Did the sentencing court deprive the Commonwealth of the
benefit of its bargain when it failed to enforce Appellee’s explicit
agreement that the Commonwealth could consider his
acceptance of ARD for a DUI offense as a prior conviction for
sentencing purposes on any subsequent DUI offense?
Commonwealth’s brief at 4 (unnecessary capitalization omitted).
We begin with the pertinent legal principles. The applicability of a
mandatory minimum sentence is “a question of law for which our scope of
review is plenary, and our standard of review is de novo.” Commonwealth
v. Mazzetti, 44 A.3d 58, 63 (Pa. 2012).
In the instant case, Appellee was charged with, and pled guilty to, DUI—
general impairment pursuant to 75 Pa.C.S. §3802(a)(1). Our legislature has
specified the following minimum penalties for such convictions:
General impairment.--[With exceptions not pertinent in the
instant case], an individual who violates section 3802(a) (relating
to driving under influence of alcohol or controlled substance) shall
be sentenced as follows:
(1) For a first offense, to:
(i) undergo a mandatory minimum term of six
months’ probation;
(ii) pay a fine of $300;
(iii) attend an alcohol highway safety school
approved by the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814
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(relating to drug and alcohol assessments) and
3815 (relating to mandatory sentencing).
(2) For a second offense, to:
(i) undergo imprisonment for not less than five
days;
(ii) pay a fine of not less than $300 nor more than
$2,500;
(iii) attend an alcohol highway safety school
approved by the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and
3815.
75 Pa.C.S. § 3804(a). The following statute governs which convictions count
in assessing the proper mandatory sentence:
[T]he 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 [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).
In Chichkin, this Court held that § 3806(a) is unconstitutional to the
extent that it includes ARD within the definition of the term “prior offense.”
Chichkin, supra at 970–71. The trial court at the time of Appellee’s
sentencing properly applied the then-applicable precedent, expressly
observing that the Commonwealth had preserved its arguments that Chichkin
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was wrongly decided, that § 3806(a) is constitutional, and that the statute
applied to mandate sentencing Appellee as a second offender.
On October 4, 2022, while the case sub judice was pending on appeal,
this Court sitting en banc expressly overruled Chichkin in Moroz, supra. In
that case, which was in the same procedural posture as the instant case, we
ruled as follows:
The fact that ARD will constitute a prior offense for purposes of
sentencing on a second or subsequent DUI conviction is written
directly into Section 3806, and a defendant is presumed to be
aware of the relevant statute. We . . . disagree with the
conclusion in Chichkin that a defendant’s prior acceptance of ARD
cannot be categorized as a “prior conviction” exempt from the
holdings in Apprendi and Alleyne. Although the “fact” that a
defendant accepted ARD does not carry the same procedural
safeguards of a conviction following a bench or jury trial, we deem
the safeguards in place to be adequate. We emphasize that
Section 3806(a) appropriately notifies a defendant that earlier
ARD acceptance will be considered a prior DUI offense for future
sentencing purposes.
Moreover, 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. These factors of notice and
voluntary ARD acceptance mitigate the due process concerns
advanced in Chichkin. Thus, a defendant’s prior acceptance of
ARD fits within the limited “prior conviction” exception set forth in
Apprendi and Alleyne.
Moroz, supra at *5.
Therefore, because “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,” we held
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the trial court “erred in sentencing [Moroz] as a first-time DUI offender without
considering his acceptance of ARD for a prior DUI.” Id.
The Moroz decision is squarely on point and controls our disposition of
this appeal. See, e.g., Commonwealth v. Hays, 218 A.3d 1260, 1266 (Pa.
2019) (“[W]here 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.” (cleaned up)). Pursuant to Moroz, the
Commonwealth must prevail in its position, preserved in the trial court, that
Appellee was subject to the mandatory minimum sentence applicable to
second-time offenders based upon his prior acceptance of ARD. Thus, we
vacate Appellee’s judgment of sentence and remand for resentencing
consistent with Moroz.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judge Musmanno did not participate in the consideration or decision of
this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2022
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