Com. v. Burger, A.

J-S34041-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
AMBER NICOLE BURGER : No. 613 MDA 2021
Appeal from the Judgment of Sentence Entered April 20, 2021
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000668-2020
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 6, 2022
The Commonwealth appeals from the judgment of sentence imposed in
the Centre County Court of Common Pleas, after the trial court, sitting without
a jury, found Amber Nicole Burger (Appellee) guilty of driving under the
influence of a controlled substance (DUI – controlled substance).1 Pursuant
to the recent en banc decision in Commonwealth v. Moroz, ___ A.3d ___,
2022 WL 4869900 (Pa. Super. Oct. 4, 2022) (en banc),2 we are constrained
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1 75 Pa.C.S. § 3802(d)(2) (“An individual may not drive, operate or be in
actual physical control of the movement of a vehicle [when t]he individual is
under the influence of a drug or combination of drugs to a degree which
impairs [her] ability to safely drive, operate or be in actual physical control of
the movement of the vehicle.”).
2 That same day, this Court issued a virtually identical en banc decision in
Commonwealth v. Richards, ___ A.3d ___, 2022 WL 4869856 (Pa. Super.
Oct. 4, 2022) (en banc). Because the Moroz decision is more factually similar
to the appeal before us, we will refer only to Moroz in our analysis.
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to vacate Appellee’s judgment of sentence and remand for further
proceedings.
A detailed recitation of the facts underlying Appellee’s DUI conviction is
not relevant to this appeal.3 Briefly, we note that Appellee was arrested on
April 6, 2020, after she was discovered at 11:50 a.m. sleeping in the driver’s
seat of a running vehicle parked at a convenience store in Potter Township,
Centre County. See Affidavit of Probable Cause, 5/18/20, at 1. On July 30,
2022, the Commonwealth filed a criminal information charging Appellee with
the following offense: “DUI: Controlled Substance – Impaired Ability – 3rd
Offense – (M1).” Information, 7/30/20 (emphasis added). It is undisputed
that Appellant had two prior DUI adjudications. In 2016, she entered the
accelerated rehabilitative disposition (ARD) program for her first DUI offense.
Thereafter, in May of 2020, she entered a guilty plea to DUI for a 2019 arrest.
The present case proceeded to a non-jury trial on March 12, 2021, at
the conclusion of which the trial court found Appellee guilty of DUI – controlled
substance. In announcing its verdict, the trial court stated that it made “no
finding . . . regarding whether this is a third offense for [Appellant] as charged
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3 The trial transcript is not included in the certified record. As the appellant,
it was the Commonwealth’s burden to ensure the certified record was
complete on appeal. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.
Super. 2006).
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in the information, [because it understood] that counsel . . . agreed that is a
matter to be addressed at the time of sentencing.” Verdict, 3/12/21.4
At the time of Appellee’s conviction, the controlling decision concerning
the grading of multiple DUI convictions was Commonwealth v. Chichkin,
232 A.3d 959 (Pa. Super. 2020). The Chichkin Court considered the interplay
between Section 3806 of the Motor Vehicle Code, which defines a prior offense
as, inter alia, the acceptance of ARD, and Section 3804, which outlines the
penalties for recidivist DUI offenders. Chichkin, 232 A.3d at 963, citing 75
Pa.C.S. §§ 3804, 3806(a)(1). The panel concluded that a defendant’s prior
acceptance of ARD is not “cloaked in all the constitutional safeguards” of a
criminal conviction, and therefore, cannot constitute a prior conviction for
purposes of the DUI recidivist sentencing statute. See Chichkin, 232 A.3d
at 968 (citations, quotation marks & footnote omitted). Therefore, the
Chichkin Court held: “[T]hat portion of [Section] 3806(a), which statutorily
equates a prior acceptance of ARD to a prior conviction for purposes of
subjecting a defendant to a mandatory minimum sentence under Section
3804, is unconstitutional.” Id. (footnote omitted).
Prior to Appellee’s sentencing, the Commonwealth filed a memorandum
of law arguing that Chichkin was erroneously decided, and that the trial court
should sentence Appellee as a third-offense DUI offender as a result of her
2016 acceptance of ARD and 2020 guilty plea. See Commonwealth’s
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4 The verdict was docketed three days later on March 15, 2021.
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Memorandum of Law, 4/9/21, at 1-21. It attached two documents to the
memorandum: (1) a copy of Appellee’s Certified Driver History from the
Pennsylvania Department of Transportation’s Bureau of Driver Licensing,
which noted, inter alia, she had received ARD for a prior DUI conviction,5 and
(2) the August 27, 2020, sentencing order for Appellee’s 2020 DUI conviction.
See id. at Exhibit A, Appellee’s Certified Driving History; B, Sentencing Order.
At the April 20, 2021, sentencing hearing, the trial court heard argument
from both the Commonwealth and Appellee concerning the applicability of
Chichkin to the facts before it. The court determined that it was “bound by
the Pennsylvania Superior Court ruling in . . . Chichkin” and, accordingly,
entered an order “determin[ing] that [Appellee’s] conviction [was] a second
offense for sentencing purposes.” N.T., 4/20/21, at 9; Order, 5/11/21. The
court then proceeded to sentence Appellee to a term of five years’ restrictive
probation, with the first 120 days on an “in-home detention/electronic
monitoring system[.]” N.T., 4/20/21, at 29. The Commonwealth filed this
timely appeal on May 13, 2021, and complied with the court’s directive to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
court filed an opinion, in which it “relie[d] on the transcript of the sentencing
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5 We note the Driver History indicates Appellee accepted ARD for a March
2013 violation. See Commonwealth’s Memorandum of Law, Exhibit A,
Appellee’s Certified Driver History, 6/5/20, at 2 (unpaginated). However, both
Appellee and the Commonwealth aver that she accepted ARD for a 2016
offense. See Appellee’s Brief at 3; Commonwealth’s Brief at 7-8. We need
not resolve this discrepancy for purposes of our disposition.
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hearing held on April 20, 2021[,]” and the order filed on May 11th. See Trial
Ct. Op., 5/25/21.
The Commonwealth presents one issue on appeal:
Did the sentencing [c]ourt err in finding [Appellee] was a second
in ten year offender, as opposed to a third in ten year offender,
under the Pennsylvania recidivist [DUI] sentencing statute where
the relied upon case, [Chichkin] failed to recognized [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’s Brief at 6.
Because the Commonwealth’s claim challenges the legality of the
sentence imposed, “our standard of review is de novo and our scope of review
is plenary.” Moroz, ___ A.3d at ___, 2022 WL 4869900 at *2.
When this appeal first appeared before this panel, we issued a stay
pending the en banc resolution of Moroz, an appeal which directly challenged
the viability of Chichkin’s holding. See Order, 11/29/21. As noted supra,
on October 4th, a majority of the en banc Court in Moroz overruled the
decision in Chichkin.6 See Moroz, ___ A.3d at ___, 2022 WL 4869900 at
*5. Thus, we are now constrained to apply Moroz to the facts before us.
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6 This writer authored the Dissenting Opinion in Moroz, which three judges
joined. See Moroz, ___ A.3d at ___, 2022 WL 4869900 at *7 (Dissenting
Op. by McCaffery J.). For the reasons expressed therein, I continue to believe
Moroz was wrongly decided. Id. at *7-11. Moreover, we note that the
Pennsylvania Supreme Court granted allowance of appeal, and heard
argument, in another appeal challenging the holding of Chichkin; to date, the
(Footnote Continued Next Page)
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As noted supra, in Chichkin, a panel of this Court held that a
defendant’s prior acceptance of ARD did not constitute a prior conviction for
purposes of applying the DUI mandatory minimum sentencing statute, and,
therefore, the Commonwealth was required to prove the “fact” of the prior
ARD acceptance pursuant the holding of Alleyne v. United States, 570 U.S.
99 (2013). See Chichkin, 232 A.3d at 967. The Chichkin Court recognized
that, while a defendant’s prior criminal convictions are exempt from Alleyne,7
a defendant’s acceptance of ARD is a “pretrial disposition” that “does not
carry with it the procedural safeguards of a traditional conviction[.]” Id. at
965, 967. Indeed, the panel concluded that “[t]he treatment of an ARD
acceptance conclusively as a prior offense, resulting in enhanced punishment
with a mandatory minimum sentence, offends both substantive and
procedural due process.” Id. at 969 (citations & footnote omitted).
In overruling Chichkin, the en banc Majority in Moroz emphasized that
the Pennsylvania legislature “statutorily construed [ARD] as a conviction for
purposes of computing sentences on subsequent convictions[,]” and that a
defendant who accepts ARD “is presumed to be aware of the relevant statute.”
Moroz, ___ A.3d at ___, 2022 WL 4899900 at *5. Further, the Majority
highlighted the fact that ARD is a voluntary program, in which a defendant
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Supreme Court has not issued an opinion. See Commonwealth v. Verbeck,
1 MAP 2022.
7 See Almendarez-Torres v. United States, 523 U.S. 224 (1998).
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must request acceptance and acknowledge their understanding of both the
proceedings and the court-imposed conditions. See id. Indeed, the Majority
noted “[t]he entire assessment process for the ARD program is conducted
under court supervision.” Id. Although the Majority acknowledged that “the
‘fact’ that a defendant accepted ARD does not carry the same procedural
safeguards of a conviction following a bench or jury trial, [it deemed] the
safeguards in place to be adequate[,]” particularly since Section 3806(a)
“appropriately notifies a defendant that earlier ARD acceptance will be
considered a prior DUI offense for future sentencing purposes.” Id. Finally,
the Majority emphasized that ARD is a voluntary program, which a defendant
“is free to reject participation in . . . if he wishes to avail himself of his full
panoply of constitutional rights.” Id.Consequently, the Moroz Majority “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.” Moroz, __
A.3d at ___, 2022 WL 4899900 at *5.
In the present case, the trial court graded Appellee’s conviction as a
second-offense DUI based solely on the holding in Chichkin. Because that
decision has been overruled by an en banc panel of this Court, we are
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compelled to vacate Appellee’s judgment of sentence and remand for further
proceedings.8
Judgment of sentence vacated. Case remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2022
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8 Appellee argues the Commonwealth waived its right to argue that her prior
acceptance of ARD constitutes a prior conviction because it failed to present
“any evidence . . . related to the specific facts and circumstance of [her]
individual 2016 ARD disposition.” Appellee’s Brief at 5. However, as noted
supra, the Commonwealth attached a copy of Appellee’s Certified Driver
History to its Memorandum of Law that was filed before the sentencing
hearing. See Commonwealth’s Memorandum of Law, at Exhibit A, Appellee’s
Certified Driving History. That document indicates that Appellee accepted ARD
for a prior DUI violation. See id. at 2 (unpaginated). Thus, the
Commonwealth did not waive its argument on appeal.
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