J-S28028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIK CURTIS STOLEE                         :
                                               :
                       Appellant               :   No. 836 MDA 2019

          Appeal from the Judgment of Sentence Entered April 22, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0005864-2018


BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                                  FILED JULY 15, 2020

        Appellant, Erik Curtis Stolee, appeals from the judgment of sentence

entered April 22, 2019, as made final by the denial of his post-sentence motion

on May 2, 2019, following his guilty plea to driving under the influence (“DUI”)

of alcohol – general impairment.1 We vacate Appellant’s judgment of sentence

and remand for resentencing as a first-time DUI offender.2

        The relevant facts and procedural history of this case are as follows.

Following entry of Appellant’s guilty plea, on April 22, 2019, the trial court

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1   75 Pa.C.S.A § 3802(a)(1).

2 The Commonwealth argues that we should quash the instant appeal because
Appellant failed to prepare or file a reproduced record. See Commonwealth’s
Brief at 3-5; see also Pa.R.A.P. 2154(a). Because the Commonwealth failed
to file an official motion for the dismissal of the matter, we decline to quash
this appeal. See Commonwealth v. Sohnleitner, 884 A.2d 307, 312-313
(Pa. Super. 2005) (explaining that an “official motion is required for this Court
to consider dismissing an appeal upon an allegation of a Rule 2154 violation”).
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sentenced him “pursuant to 75 Pa.C.S.[A.] § 3804(a)(2) to a term of six []

months intermediate punishment with the first [15] days on house arrest and

electronic monitoring.”      Trial Court Opinion, 7/22/19 at 1.    The trial court

sentenced Appellant under Section 3804(a)(2) because he was “charged on

the instant docket with a second offense due to a prior completion of

Accelerated Rehabilitative Disposition (“ARD”) for DUI.”          Id.   Thereafter,

Appellant filed a timely motion for reconsideration, seeking to “bar

consideration of [his] prior alleged ARD acceptance for sentencing purposes.”

Appellant’s Motion for Reconsideration, 4/29/19, at *1 (un-paginated). The

trial court denied reconsideration on May 2, 2019. Trial Court Order, 5/2/19,

at 1. This timely appeal followed.3

       On appeal, Appellant challenges the constitutionality of 75 Pa.C.S.A.

§ 3804 (outlining the mandatory minimum sentences for first, second and

subsequent DUI offenders) and 75 Pa.C.S.A. § 3806(a)(1) (defining “prior

offense” for sentencing purposes to include “acceptance of [ARD]” under the

Motor Vehicle Code (“MVC”)). Appellant argues that prior acceptance of ARD

is a fact that triggers the enhancement of a sentence and, as such, must be

found by a jury beyond a reasonable doubt pursuant to Alleyne v. United

States, 570 U.S. 99 (2013).             Because Appellant was not afforded the

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3 Appellant filed a notice of appeal on May 22, 2019. On May 28, 2019, the
trial court entered an order directing Appellant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). Appellant
timely complied. The court issued an opinion pursuant to Pa.R.A.P. 1925(a)
on July 22, 2019.

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constitutional protections set forth in Alleyne, he argues that he is entitled to

resentencing as a first time DUI offender.

       Recently, in Commonwealth v. Chichkin, 2020 WL 2552803, at *1

(Pa.   Super. May     20, 2020),    a panel of this Court addressed the

constitutionality of Sections 3804 and 3806 of the MVC.          Ultimately, the

Chichkin court concluded that acceptance of ARD is a “fact” that “must be

presented to the fact finder and determined beyond a reasonable doubt before

a trial court may impose a mandatory minimum sentence under Section

3804.”   Id. at *8.    As such, the Chichkin Court concluded that, under

Alleyne, the “the particular provision of 75 Pa.C.S.[A.] § 3806(a), which

defines prior acceptance of ARD in a DUI case as a ‘prior offense’ for DUI

sentencing enhancement purposes, offends the [d]ue [p]rocess [c]lause and

is therefore unconstitutional.” Id. at *10.

       Herein, the trial court considered prior acceptance of ARD as a factor

which enhanced Appellant’s sentence under Section 3804(a)(2). Nonetheless,

“[n]owhere during [Appellant’s] guilty plea hearing did the Commonwealth

prove, or did [Appellant] concede, that he [accepted ARD for a] prior DUI

offense.” Chichkin, 2020 WL 2552803, at *10, n.14; see also N.T. Guilty

Plea Hearing, 4/22/19, at 1-7. Thus, the Commonwealth did not establish a

necessary element for the enhancement of Appellant’s sentence under Section




                                      -3-
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3804(a)(2). Pursuant to Chichkin, we must vacate Appellant’s judgment of

sentence and remand for resentencing as a first-time DUI offender.4

       Judgment of sentence vacated. Remanded for resentencing.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/15/2020




____________________________________________


4 While there may be some room for disagreement as to whether acceptance
of ARD is subject to the principles set forth in Apprendi v. New Jersey, 530
U.S. 466 (200) and Alleyne, we are bound by the prior panel’s conclusion in
Chichkin unless and until that ruling is overturned by an en banc panel of this
Court or by our Supreme Court. See Commonwealth v. Morris, 958 A.2d
569, 581 n.2 (Pa. Super. 2008) (en banc) (“It is well-settled that this Court,
sitting en banc, may overrule the decision of a three-judge panel of this
Court.”).

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