Com. v. Neal, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRADEN HOWARD NEAL : No. 1516 MDA 2021
Appeal from the Judgment of Sentence Entered October 21, 2021
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000577-2020
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: OCTOBER 28, 2022
The Commonwealth of Pennsylvania appeals from the judgment of
sentence entered following the guilty plea of Appellee, Braden Howard Neal,
to driving under the influence (“DUI”)—highest rate of alcohol, DUI—general
impairment, and accidents involving damage to unattended vehicle or
property.1 We vacate the judgment of sentence and remand for resentencing.
At approximately 3:20 a.m. on December 22, 2019, an officer with the
Ferguson Township Police Department responded to a report of a vehicle
crash. The vehicle was empty, but the officer discovered Appellee walking
along the road nearby. The officer approached Appellee, observed indicia that
Appellee had been consuming alcohol, and asked Appellee to perform field
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3802(c), 3802(a)(1), and 3745(a), respectively.
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sobriety tests, which he failed. Appellee was then taken to a hospital where
he consented to chemical testing of his blood. A laboratory analysis indicated
that Appellee had a blood alcohol content of 0.194%.
On September 17, 2021, Appellee entered an open guilty plea to the
above-stated crimes. Sentencing was deferred to allow the parties to submit
sentencing memoranda to address whether Appellee should be considered a
first- or second-time DUI offender following this Court’s decision in
Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020). In Chichkin,
we held that the Section 3806(a) of the Vehicle Code’s classification of
acceptance of Accelerated Rehabilitative Disposition (“ARD”) in an earlier DUI
prosecution as a “prior offense” violated due process.2 Id. at 969-71.
Appellee previously entered into an ARD program to resolve a DUI charge
based upon a 2016 incident, and therefore, but for Chichkin, Section 3804 of
the Vehicle Code required the trial court to sentence Appellee as a two-time
DUI offender.3
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2 A “prior offense” is defined in Section 3806(a) to include “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.” 75 Pa.C.S. § 3806(a).
3 Section 3804 of the Vehicle Code sets forth escalating mandatory minimums
for first, second, and subsequent DUI offenses. 75 Pa.C.S. § 3804. Notably,
the prior offense must have occurred within ten years of the subsequent
offense or after the date of the subsequent offense. 75 Pa.C.S. § 3806(b)(1).
Appellee’s prior ARD acceptance satisfies this temporal requirement.
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At the October 21, 2021 sentencing, the trial court determined that it
was bound by Chichkin and sentenced Appellee as a first-time DUI offender.
The court sentenced Appellee on count I, DUI—highest rate of alcohol to six
months of probation with 20 days of house arrest and a $1,000 fine, no further
punishment on count II, DUI—general impairment, and a $300 fine and $300
of restitution on count III, accidents involving damage to unattended vehicle
or property. The Commonwealth thereafter filed this timely appeal. Both the
Commonwealth and the trial court have complied with Pa.R.A.P. 1925.
The Commonwealth raises the following issue for our review:
Whether the sentencing [c]ourt erred in finding Appellee was a
first-time offender, as opposed to a second-in-ten-year offender,
under the Pennsylvania recidivist [DUI] sentencing statute where
it relied upon [Chichkin], failed to recognize [ARD] acceptance
has sufficient due process protections to be equated to a prior
conviction, failed to recognize and follow controlling Pennsylvania
precedential case law, and failed to consider guiding extra-
jurisdictional decisions?
Commonwealth Brief at 7.
The Commonwealth argues that Chichkin erroneously concluded that
Pennsylvania’s ARD procedure does not provide adequate due process
protections, the decision is based upon a flawed reading of our precedent as
well as Alleyne v. United States, 570 U.S. 99 (2013), and that decisions of
our sister states reinforce the conclusion of our legislature that placement in
diversionary programs with adequate due process protections may properly
be considered a prior conviction for the purpose of sentencing a DUI recidivist.
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The Commonwealth’s argument addressing the constitutionality of the
DUI sentencing statute implicates the legality of Appellee’s sentence. See
Commonwealth v. Prinkey, 277 A.3d 554, 556 (Pa. 2022). “The defendant
or the Commonwealth may appeal as of right the legality of the sentence.” 42
Pa.C.S. § 9781(a). A claim relating to the legality of a sentence presents a
pure question of law as to which our standard of review is de novo and our
scope of review is plenary. Commonwealth v. Derrickson, 242 A.3d 667,
673 (Pa. Super. 2020).
This Court, sitting en banc, addressed the Commonwealth’s challenge
to Chichkin in two recent opinions. See Commonwealth v. Richards, ___
A.3d ___, 2022 PA Super 170 (filed October 4, 2022) (en banc);
Commonwealth v. Moroz, ___ A.3d ___, 2022 PA Super 169 (filed October
4, 2022) (en banc).4 In these decisions, we noted that the General Assembly
expressly provided in the Vehicle Code that prior acceptance of ARD
constitutes a conviction for purpose of computing sentences on subsequent
convictions. Richards, 2022 PA Super 170, slip op. at 6-7; Moroz, 2022 PA
Super 169, slip op. at 6-8. Furthermore, we reviewed Alleyne and related
United States Supreme Court precedent and determined that ARD falls into
the “prior conviction” exception to the general rule that any fact that increases
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4 We note that our Supreme Court has granted the Commonwealth’s petition
for allowance of appeal in another case applying Chichkin in order to address
whether Chichkin was correctly decided. See Commonwealth v. Verbeck,
270 A.3d 1098 (Pa. 2022) (per curiam order).
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a criminal penalty must be submitted to the jury and proved beyond a
reasonable doubt. Richards, 2022 PA Super 170, slip op. at 8, 11-12; Moroz,
2022 PA Super 169, slip op. at 8, 11-12. Accordingly, we “expressly
overrule[d] 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.”
Richards, 2022 PA Super 170, slip op. at 12; see also Moroz, 2022 PA Super
169, slip op. at 12.
Here, the trial court relied on Chichkin in disregarding Appellee’s earlier
acceptance of ARD as a prior offense when it sentenced him as a first-time
DUI offender. In light of Richards and Moroz, this ruling was in error. See
Moroz, 2022 PA Super 169, slip op. at 12 (concluding that “the trial court
erred in sentencing [the a]ppellee as a first-time DUI offender without
considering his acceptance of ARD for a prior DUI”); see also
Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (noting
that Pennsylvania appellate courts apply law in effect at time of decision and
parties are entitled to benefit of changes in law while appeal is pending).
Accordingly, we vacate Appellee’s judgment of sentence and remand for
resentencing consistent with this decision. See Moroz, 2022 PA Super 170,
slip op. at 12.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2022
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