Com. v. Johnson, T.

J-S35040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THOMAS W. JOHNSON : No. 391 MDA 2022
Appeal from the Judgment of Sentence Entered February 14, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001816-2021
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 30, 2022
The Commonwealth appeals from the judgment of sentence entered in
the Court of Common Pleas of Dauphin County, which, pursuant to controlling
precedent of this Court at the time, reclassified Appellee Thomas W. Johnson’s
Driving Under the Influence (“DUI”) offense as a first offense—rather than as
a second offense as charged—because Johnson had been accepted into and
completed an Accelerated Rehabilitative Disposition (“ARD”) program for the
prior offense. 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).
On June 7, 2021, the Commonwealth filed an information charging
Johnson with driving under the influence, highest rate, second offense, as well
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* Former Justice specially assigned to the Superior Court.
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as a second offense general impairment DUI. The Commonwealth alleged it
was Johnson’s second DUI offense because he had been accepted into an ARD
program in relation to a prior DUI charge. On February 8, 2022, the trial court
granted Johnson’s counseled petition for writ of habeas corpus and reclassified
the instant offense as his first. On February 14, 2022, Johnson pleaded guilty
and was sentenced as a first-time offender over the Commonwealth’s
objection. See N.T., 2/14/22, at 2-3. The Commonwealth’s timely appeal
followed.
The Commonwealth concedes that this Court’s three-judge panel
opinion in Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020)
(holding unconstitutional, under Apprendi v. New Jersey 1 and Alleyne v.
United States, 2 the portion of 75 Pa.C.S. § 3806(a) that includes acceptance
of ARD as a “prior offense” for purposes of DUI sentencing under Section
3804) constrained the trial court to treat Johnson’s present DUI offense as his
first for purposes of sentencing. Nevertheless, the Commonwealth preserved
its present challenge by raising it with first with the trial court in both its brief
in opposition to Johnson’s habeas petition and its objection to the trial court’s
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1 Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding 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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order amending the charge from a second offense DUI to a first offense DUI,
N.T., 2/14/22, 2-3. On appeal, it reasserts in a 50-page argument section to
its brief that Appellant’s DUI charge should be treated as a second offense
because Chichkin was wrongly decided. It follows, the Commonwealth
concludes, that the trial court erred in sentencing Johnson as a first-time DUI
offender.
Johnson 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 (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
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(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
75 Pa.C.S. § 3804(a).
Section 3806(a) 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).
As noted, Chichkin held that Section 3806(a) is unconstitutional to the
extent it listed ARD as a “prior offense,” id. at 970-71, and it remained
controlling authority at the time of Johnson’s sentencing. However, during
the pendency of this appeal, this Court sitting en banc expressly overruled
Chichkin with our Moroz decision.
Specifically, Moroz ruled:
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.
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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. Based on this rationale, we held the trial court “erred
in sentencing [Moroz] as a first-time DUI offender without considering his
acceptance of ARD for a prior DUI.” Id.
In all pertinent respects, Moroz is on point, and we therefore find it
controls our disposition of the present 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 assertion,
preserved in the trial court, that Johnson was subject to the mandatory
minimum sentence applicable to second-time offenders based upon his prior
acceptance of ARD. See Commonwealth v. Malenfant, --- A.3d ----, No.
1297 EDA 2020, 2022 WL 10224994, at *4 (Pa. Super. filed Oct. 18, 2022)
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(unpublished memorandum decision).3 Thus, we vacate Johnson's judgment
of sentence and remand for resentencing consistent with Moroz.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2022
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3 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019 may be cited for
their persuasive value).
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