Acceptance of ARD as a prior offense for sentencing purposes
Commonwealth v. Shifflet, 2023 WL 3051454 (Pa. Super.) (unreported), allocatur granted Apr. 3, 2024, appeal docket 26 MAP 2024
The Pennsylvania Supreme Court granted allocatur in this case to consider whether under Alleyne v. United States, 570 U.S. 99 (2013), in which the United States Supreme Court held that “facts that increase mandatory minimum sentences must be submitted to the jury” applies to preclude acceptance of ARD as a “prior offense” under the Vehicle Code for sentencing purposes.
Section 3804(c) of the Vehicle Code sets forth the mandatory minimum sentencing for an individual who violates Section 3802(d), in pertinent part, as follows:
(1) For a first offense, to:
(i) undergo imprisonment of not less than 72 consecutive hours;
(ii) pay a fine of not less than $1,000[.00] nor more than $5,000[.00];
(iii) attend an alcohol highway safety school approved by the department; and
(iv) comply with all drug and alcohol treatment requirements imposed under [75 Pa.C.S.A. §§]3814 and 3815.
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days;
(ii) pay a fine of not less than $1,500[.00];
(iii) attend an alcohol highway safety school approved by the department; and
(iv) comply with all drug and alcohol treatment requirements imposed under [S]ections 3814 and 3815.
75 Pa.C.S.A. § 3804(c)(1 and 2). Section 3806 defines “prior offense,” in pertinent part, as follows:
the 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.A. § 3806(a)(1).
Superior Court summarized the relevant factual background as follows:
…on July 21, 2022, Shifflett pleaded guilty generally to one count of DUI. N.T., 7/21/22, at 6, see also Trial Court Order, 8/5/22; N.T., 9/22/22, at 2. At the plea hearing, to preserve the issue for possible appeal, the Commonwealth asserted that Shifflett had been previously convicted of a DUI offense (“ARD-DUI”) and that the prior ARD-DUI conviction, despite being disposed of pursuant to the accelerated rehabilitative disposition program, qualified as a prior DUI offense for purpose of sentencing. N.T., 7/21/22, at 2 (stating, “the Commonwealth is still asserting that a prior [ARD-DUI] should count as a prior offense [for purpose of sentencing] and that we would have the opportunity at sentencing [to] prove the prior [ARD-DUI]”); see also Trial Court Order, 8/5/22 (noting that, “[t]he Commonwealth alleges [Shifflett’s current DUI conviction] is a [second offense] based on a prior ARD[-DUI, and Shifflett] alleges [his current DUI conviction] is a first offense DUI for sentencing purposes”). Shifflett pleaded guilty generally to the DUI conviction and contested that his DUI was a second offense. N.T., 7/21/22, at 2, 6; see also N.T., 9/22/22, 2.
On July 28, 2022, Shifflett filed a motion to exclude admission and consideration of his alleged prior ARD-DUI offense at the time of sentencing. In his motion to exclude his alleged prior ARD-DUI, Shifflett asserted, inter alia, that evidence of his alleged prior ARD-DUI “is not admissible under Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013)[, as well as] Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. [ ] 2020)[,] and should not be considered for the purpose of a ‘prior offense’ under 75 Pa.C.S.A. § 3806.” Motion to Exclude Admission and Consideration of Alleged Prior Offense at Sentencing, 7/28/22, at ¶4(b). On July 29, 2022, the trial court granted Shifflett’s motion to exclude admission and consideration of his alleged prior ARD-DUI at sentencing. Trial Court Order, 7/29/22.
On September 22, 2022, the trial court imposed a sentence of six months’ probation with a restrictive DUI condition of ten days of house arrest with electronic monitoring. N.T., 9/22/22, at 2; see also Sentencing Order, 9/30/22.
Slip op. at 2-4. The Commonwealth appealed, arguing that:
… this Court’s en banc decisions in Richards, [284 A.3d 214, 217 (Pa. Super. 2022) (en banc)], and Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. 2022) (en banc), correctly held that 75 Pa.C.S.A. § 3606(a) equates a prior ARD-DUI to a prior conviction for purpose of imposing a mandatory minimum sentence pursuant to 75 Pa.C.S.A. § 3804 and is constitutionally sound and does not violate Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne, supra.
Slip op. at 5. In its Rule 1925(a) opinion, the trial court agreed with the Commonwealth’s position, stating that it “mistakenly granted [Shifflett’s] motion to exclude admission and consideration of [his] alleged [prior ARD-DUI] at sentencing” based upon Richards, supra, and Moroz, supra.” Slip op. at 5.
Superior Court held that the trial court erred as a matter of law in granting Shifflett’s motion to exclude admission and consideration of evidence pertaining to his ARD-DUI prior to sentencing him for the current DUI offense. Superior Court observed that:
In Alleyne, the Supreme Court of the United States recognized its prior decision that carved out a “prior conviction exception” to the general rule that any fact that subjects a defendant to a mandatory minimum sentence must be submitted to the jury and determined beyond a reasonable doubt. Alleyne, 570 U.S. at 111 n.1, citing Almendarez-Torres v. United States, 523 U.S. 224 (1998).
Slip op at 7 n. 8. Superior Court explained that in Richards, 284 A.3d at 220 and Moroz, 284 A.3d at 233, Superior Court applied Alleyne to hold that “a defendant’s prior acceptance of ARD fits within the limited ‘prior conviction’ exception set forth in Apprendi and Alleyne.” Slip op. at 7. Additionally, Superior Court observed that a divided Pennsylvania Supreme Court in Commonwealth v. Verbeck, 290 A.3d 260 (Pa. 2023) addressed the issue of whether prior acceptance of ARD fell within the “prior conviction” exception of Apprendi and Alleyne, explaining that:
In Verbeck, Verbeck was found guilty of, inter alia, driving under the influence – general impairment pursuant to 75 Pa.C.S.A. § 3802(a). Verbeck, –– A.3d ––, 2023 WL 2342405, at *1. At sentencing, the trial court was aware that Verbeck had previously been charged with a DUI offense that had been resolved through the ARD program. Id. In fashioning its sentence, the trial court treated Verbeck’s driving under the influence – general impairment offense as a second offense because of his prior DUI that had been resolved through the ARD program, and sentenced Verbeck to a mandatory minimum sentence pursuant to Section 3804(a)(2). Verbeck, –– A.3d ––, 2023 WL 2342405, at *2. On direct appeal, this Court vacated Verbeck’s judgment of sentence as it related to his driving under the influence – general impairment conviction and remanded for resentencing on the driving under the influence – general impairment as a first offense pursuant to this Court’s then-recent decision in Chichkin, supra. Verbeck, –– A.3d ––, 2023 WL 2342405, at *3; see also Commonwealth v. Verbeck, 253 A.3d 266 (Pa. Super. filed Apr. 9, 2021) (unpublished memorandum). This Court’s order vacating Verbeck’s judgment of sentence as it related to his driving under the influence – general impairment conviction was affirmed by our Supreme Court in a per curiam order because our Supreme Court, upon discretionary review, was evenly divided in its mandate. Verbeck, –– A.3d ––, 2023 WL 2342405, at *1.
Slip op. at 7-8. Superior Court concluded:
Pursuant to Richards, supra, and Moroz, supra, which remain current and binding precedents in light of our Supreme Court’s non-precedential determination in Verbeck, supra, the Commonwealth was permitted to introduce evidence of Shifflett’s prior ARD-DUI at the time of sentencing to establish that his current DUI offense was a second offense. The trial court can then consider the evidence in reaching a conclusion on whether the ARD-DUI constituted a “prior conviction” (a first offense in the case sub judice) for purpose of sentencing Shifflett pursuant to Section 3804 of the Vehicle Code without offending the constitutional protections afforded by Apprendi, Alleyne, and their progeny. Richards, 284 A.3d at 220; see also Moroz, 284 A.3d at 233. 233. Because the Commonwealth was prohibited from establishing that Shifflett’s current DUI was a second offense for purpose of sentencing, we vacate Shifflett’s judgment of sentence, reverse the trial court’s July 29, 2022 order granting Shifflett’s motion to exclude admission and consideration of his alleged prior ARD-DUI at sentencing, and remand this case for resentencing in accordance with this memorandum
Slip op. at 12-13.
The Pennsylvania Supreme Court will consider the following issue:
In light of Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), is it unconstitutional to consider an acceptance of ARD as a prior offense for sentencing purposes without the procedural protections afforded by Alleyne, i.e., a prior offense can only be determined by a jury by proof beyond a reasonable doubt?
For more information, contact Kevin McKeon or Dennis Whitaker.