Acceptance of ARD as a Prior Conviction for DUI Sentencing Purposes

Commonwealth v. Verbeck, 2021 WL 1328551 (Pa. Super. 2021) (unreported), allocatur granted Jan 4, 2022, appeal docket 1 MAP 2022

Steven Leonard Verbeck was convicted of four separate counts of driving under the influence (“DUI”) – controlled substance, one count of possession of a small amount of marijuana, DUI – general impairment, possession of drug paraphernalia, failing to yield right, driving on roadways laned for traffic, careless driving, and failure to use a safety belt. Treating Verbeck’s prior acceptance of ARD in another matter as a prior offense for sentencing purposes, the court sentenced Verbeck to five years of intermediate punishment, with 120 days to be served on in-home detention. Verbeck appealed, arguing that the sentencing court erroneously treated his prior acceptance of ARD as a prior offense for sentencing purposes, ultimately subjecting him to an illegal sentence because his prior acceptance of ARD is a “fact” that enhanced his sentence, which, pursuant to Alleyne v. United States, 570 U.S. 99 (2013), must have therefore been found beyond a reasonable doubt.

Superior Court vacated Verbeck’s judgment of sentence pursuant to Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), in which Superior Court, using Alleyne as a guidepost, held that increasing the mandatory minimum sentence requires the Commonwealth to “prove, beyond a reasonable doubt, that the [ARD] defendant actually committed the prior DUI offense.” Slip op. at 10 (quoting Chichkin, 232 A.3d at 971). Applying Chichkin to Verbeck’s case, the court reasoned that:

Here, by utilizing his prior acceptance of ARD under § 3806(a), the sentencing court increased Verbeck’s sentence without any kind of corresponding hearing or adjudication as to whether Verbeck actually committed the predicate DUI offense. Without the Commonwealth establishing a necessary element for the enhancement of his sentence under § 3804 in a constitutional manner, Verbeck’s judgment of sentence must be vacated, and we remand for resentencing as a first-time DUI offender.

Slip op. at 10. Superior Court acknowledged that the Commonwealth argued that Chichkin was incorrectly decided, but emphasized that the court was “bound by the prior panel’s determination in that matter until it is overturned by an en banc panel of this Court or by our Supreme Court.” Id.

The Supreme Court granted allocatur limited to the following issue:

Whether the Superior Court erred in holding for DUI sentencing purposes that the Defendant’s conviction was a first offense in ten years as opposed to a second offense in ten years based upon the defective holding in Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020) that acceptance of ARD could not be treated as a prior conviction?


For more information, contact Kevin McKeon or Dennis Whitaker.