J-A08032-20 & J-A08033-20

                                   2020 PA Super 121


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    IGOR CHICHKIN                              :
                                               :
                       Appellant               :   No. 3473 EDA 2018

       Appeal from the Judgment of Sentence Entered November 26, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): MC-51-CR-0036944-2017



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LISA ROCHE                                 :
                                               :
                       Appellant               :   No. 3475 EDA 2018

       Appeal from the Judgment of Sentence Entered November 26, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): MC-51-CR-0001090-2018


BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

OPINION BY McCAFFERY, J.:                                 FILED MAY 20, 2020

       In these two appeals,1 we consider the constitutionality of the provision

of the mandatory minimum sentencing statute for driving under the influence
____________________________________________


1 We address these appeals together because they involve the same issue. In
fact, the petitions for writ of certiorari in both cases were filed by the same
assistant public defenders, and considered and denied by the same trial court
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(DUI),2 75 Pa.C.S. § 3806, which treats a prior acceptance of accelerated

rehabilitative disposition (ARD) in a DUI case as a prior conviction for

sentencing enhancement purposes. Igor Chichkin and Lisa Roche (collectively

Appellants) appeal from the judgments of sentence entered in the Philadelphia

Court of Common Pleas, confirmed by the denial of their petitions for writ of

certiorari, following their convictions of DUI in the Philadelphia Municipal

Court. Because we agree Appellants were not afforded their constitutional

protections under Alleyne v. United States, 570 U.S. 99 (2013), we vacate

Appellants’ judgments of sentence and remand for resentencing as first-time

DUI offenders.

        The pertinent facts and procedural history underlying each appeal are

as follows.

                Commonwealth v. Chichkin – 3473 EDA 2018

        Chichkin was arrested and charged with DUI for an incident that

occurred on December 8, 2017. His case proceeded to a trial in Municipal

Court on May 18, 2018, at which time the court found him guilty of two counts

of DUI-general impairment under 75 Pa.C.S. § 3802(a)(1).3       On June 25,

____________________________________________


judge. The briefs and trial court opinions in both appeals are identical.
Moreover, we note that on July 3, 2019, both appellants filed an Application
for Extraordinary Jurisdiction in the Pennsylvania Supreme Court, which the
Court denied on October 15, 2019. See 75 EM 2019; 76 EM 2019.

2   75 Pa.C.S. § 3802.

3 On one of the counts, the trial court found Chichkin guilty of DUI with an
accident. See N.T. Trial, 5/18/18, at 20.

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2018, Chichkin was sentenced to a term of 30 days to six months’

imprisonment, with two months’ concurrent probation.             The 30-day

mandatory minimum was imposed under 75 Pa.C.S. § 3804(b)(2)(i), because

Chichkin had accepted ARD for a prior DUI offense in 2013. See 75 Pa.C.S.

§ 3804(b)(2)(i) (individual who commits second offense under Section

3802(a) where there is accident involving property damage shall be sentenced

to “imprisonment of not less than 30 days”). See also 75 Pa.C.S. § 3806(a)

(prior offense for DUI sentencing includes acceptance of ARD).

     On July 5, 2018, Chichkin filed a timely motion for reconsideration,

seeking to “bar consideration of [his] prior ARD acceptance for sentencing

purposes because the statutory framework violates several provisions of the

United States and Pennsylvania Constitutions.”         Chichkin’s Motion for

Reconsideration, 7/5/18, at ¶ 5.     The court granted reconsideration and

vacated the June 25th sentence. However, following a hearing on July 30,

2018, the Municipal Court denied reconsideration and reinstated the sentence

imposed on June 25, 2018.

     On August 6, 2018, Chichkin filed a timely petition for writ of certiorari

in the Court of Common Pleas. The trial court denied the writ on November

26, 2018, but stayed Chichkin’s sentence pending an appeal. Chichkin filed

this timely appeal, and complied with the trial court’s directive to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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               Commonwealth v. Roche – 3475 EDA 2019

      On June 13, 2018, Roche entered a negotiated guilty plea in the

Municipal Court to one count of DUI-general impairment with accident. N.T.

Roche Guilty Plea, 6/13/18, at 4.        The Commonwealth noted it was “a

mandatory minimum matter.”        Id.    The case proceeded to sentencing on

September 17, 2018, at which time the Municipal Court stated Roche’s record

“showed a prior offense” and thus her guilty plea would constitute a “second

offense.” N.T.Roche Sentencing H’rg, 9/17/18, at 3. Roche’s counsel objected

to the court’s characterization, arguing that because the alleged “prior

offense” was an acceptance of ARD, it “should not recidivize[,]” and the DUI

mandatory minimum statute was unconstitutional under Alleyne. Id. at 3-4.

The Municipal Court rejected Roche’s argument and imposed a sentence of 30

days to four months’ imprisonment, and two years’ concurrent probation. The

30-day mandatory minimum sentence was likewise imposed under 75 Pa.C.S.

§ 3804(b)(2)(i), based upon the fact that Roche had accepted ARD for a prior

DUI offense in 2010. See 75 Pa.C.S. § 3804(b)(2)(i). See also 75 Pa.C.S.

§ 3806(a).

      On September 18, 2018, Roche filed a timely petition for writ of

certiorari in the Court of Common Pleas. Following a hearing, the trial court

denied the writ on November 26, 2018, but stayed Roche’s sentence. Roche

filed this timely appeal, and complied with the trial court’s directive to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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                                       Analysis

      Appellants raise the following identical three questions on appeal:

      1. Are not the mandatory minimum DUI statutes unconstitutional
      because they do not provide the constitutional procedural
      protections mandated by Alleyne v. United States, 570 U.S. 99
      (2013), for the triggering factual determination, a prior DUI ARD
      acceptance?

      2. Do not the mandatory minimum DUI statutes violate both
      substantive and procedural due process under Nelson v.
      Colorado, 137 S.Ct. 1249 (2017), and other relevant case law,
      because they treat a prior acceptance of ARD, that entails no proof
      of misconduct, as conclusive irrebuttable proof of a prior offense?

      3. Do not the mandatory minimum DUI statutes that treat a prior
      acceptance of ARD as a prior offense violate separation of powers
      and Article V of the Pennsylvania Constitution because the
      legislature has no authority to declare a defendant guilty of an
      offense, and its statutes are inconsistent with the Pennsylvania
      Supreme Court’s rules governing acceptance of ARD?

Chichkin’s Brief at 2; Roche’s Brief at 2.

      When an appellant challenges a trial court’s denial of a petition for writ

of certiorari, “[w]e will not disturb the lower court’s [decision] unless we find

an abuse of discretion.” Commonwealth v. Noss, 162 A.3d 503, 507 (Pa.

Super. 2017).    Here, in all three of their claims, Appellants contend the

statutes which the Municipal Court applied to increase their mandatory

minimum sentence — 75 Pa.C.S. §§ 3804 and 3806 — are unconstitutional,

and, thus, their sentences are illegal. “A challenge to the legality of sentence

is a question of law; our standard of review is de novo and our scope of review

is plenary.”   Commonwealth v. Alston, 212 A.3d 526, 528 (Pa. Super.

2019).


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J-A08032-20 & J-A08033-20



      Each of Appellants’ claims on appeal involves the interplay between

Sections 3804 and 3806 of the Motor Vehicle Code (MVC). Section 3804 sets

forth mandatory minimum sentence terms for first, second, and subsequent

DUI offenses.    75 Pa.C.S. § 3804.    Section 3806 defines the term “prior

offense” as, inter alia:

      any conviction for which judgment of sentence has been imposed,
      adjudication of delinquency, juvenile consent decree, acceptance
      of Accelerated Rehabilitative Disposition or other form of
      preliminary disposition before the sentencing on the present
      violation for . . .

         (1) an offense under section 3802 (relating to driving under
         influence of alcohol or controlled substance)[.]

75 Pa.C.S. § 3806(a)(1) (emphasis added).        Thus, a defendant who had

accepted ARD for a prior DUI offense is considered a second-time offender

under the Section 3804 penalty provisions.

      In their first issue, Appellants contends the aforementioned DUI penalty

statutes are unconstitutional pursuant to the United States Supreme Court’s

decision in Alleyne, which held “a defendant has due process rights to specific

notice in the charging document and proof beyond a reasonable doubt, as well

as, the constitutional guarantee of a jury determination” with regard to “any

factual determination that triggers a mandatory minimum sentence[.]”

Chichkin’s Brief at 5; Roche’s Brief at 5.     Although Appellants recognize

Alleyne and its progeny provide an exception for prior convictions, they insist

“[a]cceptance of ARD . . . bears no relationship to a prior conviction because

it involves no finding of guilt beyond a reasonable doubt (or even



                                      -6-
J-A08032-20 & J-A08033-20



misconduct).” Chichkin’s Brief at 10; Roche’s Brief at 11. Furthermore, they

assert that, with the exception of the designation in the DUI penalty statute,

this Court has “repeatedly held” that acceptance of ARD does not constitute a

prior conviction. Chichkin’s Brief at 11; Roche’s Brief at 11. Regardless of

how the Legislature characterizes a prior ARD acceptance, Appellants insist, it

is not a “prior conviction” and, therefore, is a “fact” triggering an enhanced

sentence which, under Alleyne, “must be found by a jury beyond a reasonable

doubt.” Chichkin’s Brief at 12; Roche’s Brief at 13. Because they were not

“afford[ed] the constitutional procedural protections of Alleyne,” Appellants

argue, we must vacate the mandatory minimum sentences and remand for

resentencing. Chichkin’s Brief at 13; Roche’s Brief at 14.

       The Commonwealth agrees that Appellants’ mandatory minimum

sentences should be vacated under Alleyne because “the portion of 75

Pa.C.S. § 3806 that increases a mandatory sentence based upon a prior

acceptance of ARD without the fact of the acceptance being established

beyond a reasonable doubt is unconstitutional.” Commonwealth’s Brief at 6.4

Although the Commonwealth notes it did provide notice, in Appellants’ criminal

complaints, of the potential mandatory minimum sentence, it acknowledges it

did not “establish at the trial stage that [Appellants were] ever convicted of a

prior DUI, or had previously accepted ARD.”          Id. at 7-8.     Thus, the

____________________________________________


4The argument portions of the Commonwealth’s briefs are identical in both
appeals.


                                           -7-
J-A08032-20 & J-A08033-20



Commonwealth concurs that we “should remand [these cases] to the trial

court to resentence [Appellants] in accordance with a first offense DUI.” Id.

at 8.

        In denying Appellants’ petitions for writ of certiorari, however, the trial

court found that their prior ARD acceptance was not an element of the crime,

as in Alleyne, that required a jury determination. Trial Ct. Op., 5/9/19, at

5.5 Rather, the court determined it was simply “a sentencing factor that is

taken into consideration when sentencing an individual [for a subsequent]

DUI.”    Id.   The trial court noted that Alleyne recognized the distinction

between “broad sentencing discretion, informed by judicial fact[ ]finding,”

which is constitutionally permissible, and judicial fact finding at sentencing

concerning “elements to the actual crime,” which is unconstitutional. Id. at

4-5, quoting Alleyne, 570 U.S. at 116. Because Appellants’ prior acceptances

of ARD were “unrelated to the current DUI for which [they were] convicted,”

the court concluded that those facts did not require a jury determination. Id.

at 5.

        Our analysis of Appellants’ claim begins with Alleyne. In Alleyne, the

United States Supreme Court, held “[a]ny fact that, by law, increases the

penalty for a crime is an ‘element’ that must be submitted to the jury and

found beyond a reasonable doubt.”              Alleyne, 570 U.S. at 103 (emphasis

____________________________________________


5As noted supra, the same trial court judge denied both petitions for writ of
certiorari, and filed two identical opinions (save for the procedural history of
each case) on the same day.

                                           -8-
J-A08032-20 & J-A08033-20



added). The decision was an expansion of the Court’s prior ruling in Apprendi

v. New Jersey, 530 U.S. 466 (2000), which applied only to those facts that

increased the penalty for a crime beyond the “prescribed statutory maximum.”

Alleyne, 570 U.S. at 107, citing Apprendi, 530 U.S. at 490. In Alleyne, the

Court vacated the defendant’s mandatory minimum sentence, which the trial

court imposed after it found, by a preponderance of the evidence, that the

defendant had “brandished” — as opposed to simply used or carried — a

firearm during the commission of his offense. Alleyne, 570 U.S. at 117. The

Court opined: “Because the finding of brandishing increased the penalty to

which the defendant was subjected, it was an element, which had to be found

by the jury beyond a reasonable doubt.” Id.

      While the Alleyne Court held the “fact” that subjected the defendant to

a mandatory minimum sentence had to be determined by a jury under the

“beyond a reasonable doubt” standard, the Court cautioned that it did not

intend to eliminate all judicial fact finding at sentencing:

      Our ruling today does not mean that any fact that influences
      judicial discretion must be found by a jury. We have long
      recognized that broad sentencing discretion, informed by judicial
      factfinding, does not violate the Sixth Amendment. This position
      has firm historical roots as well. . . .

         “[W]ithin the limits of any discretion as to the punishment
         which the law may have allowed, the judge, when he
         pronounces sentence, may suffer his discretion to be
         influenced by matter shown in aggravation or mitigation,
         not covered by the allegations of the indictment.”

      “[E]stablishing what punishment is available by law and setting a
      specific punishment within the bounds that the law has prescribed
      are two different things.” Our decision today is wholly consistent

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J-A08032-20 & J-A08033-20


       with the broad discretion of judges to select a sentence within the
       range authorized by law.

Alleyne, 570 U.S. at 116–17 (citations omitted).

       Applying the mandate of Alleyne, the Courts of this Commonwealth

have concluded that many of our mandatory minimum sentencing statutes are

unconstitutional because they permit judicial fact finding by the sentencing

court, under a preponderance of the evidence standard, absent pretrial notice

to the defendant. See Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016)

(prior version of 42 Pa.C.S. § 9718(a)(1), imposing mandatory minimum when

victim of sexual assault is less than 16 years old);6 Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015) (18 Pa.C.S. § 6317, imposing mandatory

minimum for delivery of drugs within 1,000 feet of school); Commonwealth

v. Cardwell, 105 A.3d 748 (Pa. Super. 2014) (18 Pa.C.S. § 7508, imposing

mandatory      minimum       based    upon     weight   of   controlled   substances);

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) (42

____________________________________________


6 We note in Wolfe, supra, the Pennsylvania Supreme Court found the
sentencing provision in the statute 42 Pa.C.S. § 9718(a) unconstitutional,
despite the fact that the aggravating factor, i.e., the victim’s age, was an
element of the offense for which the defendant was convicted, and thus
was found by the jury beyond a reasonable doubt. Wolfe, 140 A.3d at 661.
The Wolfe Court concluded, however, the language of Section 9718(c)
nevertheless required the sentencing court to engage in judicial fact-finding
and “make its own determination at sentencing,” which violated Alleyne. Id.
That language, which appeared in many of our mandatory minimum statutes,
stated, in relevant part, that the provisions of the statute subjecting the
defendant to a mandatory minimum sentence “shall not be an element of the
crime, [and] shall be determined at sentencing[, by the sentencing court,] by
a preponderance of the evidence[.]” See 42 Pa.C.S. § 9718(c), Dec. 30,
1982, P.L. 1472, No. 334, § 1, eff. in 60 days.


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Pa.C.S. § 9712.1, imposing mandatory minimum based upon drug offender’s

proximity to firearm).

       Nevertheless, the United States Supreme Court, in both Apprendi and

Alleyne, recognized an exception to this general rule based upon its prior

decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998),

where the Supreme Court rejected a defendant’s “constitutional claim that his

recidivism[, which increased the penalty for his crime,] must be treated as

an element of his offense.”          See Almendarez-Torres, 523 U.S. at 247

(emphasis added). Therefore, the Apprendi Court held: “Other than the

fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis

added).     See also Alleyne, 570 U.S. at 111 n.1 (Almendarez-Torres

recognized “a narrow exception to this general rule for the fact of a prior

conviction”). Although the Apprendi Court questioned the continued vitality

of Almendarez-Torres,7 to date the decision has not overruled or modified.

See Commonwealth v. Aponte, 855 A.2d 800, 802 (Pa. 2004) (holding

sentencing enhancement, which increased statutory maximum penalty “upon




____________________________________________


7 See Apprendi, 530 U.S. at 489 (“Even though it is arguable that
Almendarez-Torres was incorrectly decided . . . [the defendant] does not
contest the decision’s validity and we need not revisit it for purposes of our
decision today[.]”).


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J-A08032-20 & J-A08033-20



proof of a prior conviction for a similar offense, without requiring proof beyond

a reasonable doubt before a jury,” was constitutionally valid).

      Therefore, pursuant to the foregoing authority, it is clear that any fact

used to increase a defendant’s sentence, which is not included as an element

of the offense charged — such as the amount of drugs sold, the proximity of

the drugs to a firearm, the distance of a drug sale to a school — must be

submitted to a jury and found beyond a reasonable doubt. Furthermore, it is

also clear that when a defendant is subjected to an increased sentence based

upon a prior conviction, the “fact” of the prior conviction need not be

submitted to a jury and found beyond a reasonable doubt.                    See

Commonwealth v. Reid, 117 A.3d 777, 785 (Pa. Super. 2015) (imposition

of mandatory minimum at 42 Pa.C.S. § 9714(a), based upon appellant’s prior

conviction of second crime of violence, did not violate Alleyne).        Accord

Commonwealth v. Bragg, 133 A.3d 328, 332–33 (Pa. Super. 2016) (United

States Supreme Court recognized narrow exception to Alleyne rule for prior

convictions), aff'd, 169 A.3d 1024 (Pa. 2017).

      Thus, the question presented in the present appeals is whether

Appellants’ prior acceptances of ARD constitute an unproven “fact,” which

must be submitted to a jury, or a prior conviction, which may be determined

by the court at sentencing.

      In Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985), the Pennsylvania

Supreme Court explained the purpose of Pennsylvania’s ARD program as

follows:

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            ARD . . . is a pretrial disposition of certain cases, in which
      the attorney for the Commonwealth agrees to suspend
      prosecution for an agreed upon period of time in exchange for the
      defendant’s successful participation in a rehabilitation program,
      the content of which is to be determined by the court and
      applicable statutes.

            Under the ARD rules, which this Court created in 1972
      pursuant to our authority to supervise the lower courts, the district
      attorney has the discretion to refuse to submit a case for ARD,
      and if the case is submitted for ARD, the court must approve the
      defendant’s admission. These rules . . . also provide that the
      defendant must agree to the terms of the ARD, and that
      after he has completed the program successfully, the
      charges against him will be dismissed, upon order of court.
      If he does not complete the ARD successfully, he may be
      prosecuted for the offense with which he was charged. The district
      attorney’s utilization of ARD is optional under the rules.

              The impetus behind the creation of such rules was the belief
      . . . that some “cases which are relatively minor or which involve
      social or behavioral problems . . . can best be solved by programs
      and treatments rather than by punishment.”

Id. at 931 (citations omitted and emphasis added).

      It is well-established that the admission into the ARD program is not

considered a conviction for any purpose, other than classification of a

defendant as a subsequent or habitual offender under the MVC.                 In

Commonwealth v. Knepp, 453 A.2d 1016 (Pa. Super. 1982), this Court

explained that admission to ARD is “not equivalent to a conviction . . . since

charges are deferred until completion of the program.” Id. at 1019 (footnote

omitted). In that case, we concluded a trial court is permitted to consider the

defendant’s prior acceptance of ARD as a sentencing factor in determining the

appropriate sentence within the guidelines range, so long as the court does

“not ignore the presumption of innocence nor regard the prior arrest


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J-A08032-20 & J-A08033-20



information as evidence of criminal conduct.” 8 Id. Nevertheless, as noted

above, the MVC requires a trial court, in certain circumstances, to consider a

defendant’s prior acceptance of ARD as a prior conviction. See 75 Pa.C.S. §§

1542(c) (ARD acceptance “shall be considered an offense” for determining if

defendant is habitual offender whose license must be revoked), 1603

(definition of “conviction” includes acceptance of ARD), 3806(a) (acceptance

of ARD constitutes “prior offense” for sentencing purposes).

       Relevant herein, Section 3804 of the MVC mandates that an individual

convicted of DUI, where there was an accident causing damage to a vehicle

or property, shall be imprisoned for “not less than 30 days” when the DUI is

the individual’s “second offense.” 75 Pa.C.S. § 3804(b)(1)(2)(i). As noted

supra, Section 3806 defines “the term ‘prior offense’ as used in this chapter”

to include a prior “acceptance of [ARD.]” 75 Pa.C.S. § 3806(a)(1). Subsection

(b)(2) requires the court to “calculate the number of prior offenses, if any, at

the time of sentencing.” 75 Pa.C.S. § 3806(b)(2).

       With this background in mind, we conclude Appellants’ prior acceptances

of ARD cannot be categorized as “prior convictions” exempt from the holding

of Apprendi and Alleyne. First, the Apprendi Court described the “prior

conviction” exception as “an exceptional departure from [ ] historic practice”

and the Alleyne Court categorized it as “a narrow exception to [the] general

____________________________________________


8 Significantly, we note Knepp was decided prior to Alleyne, and did not
involve a mandatory minimum sentence.


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rule.” Alleyne, 570 U.S. at 112 n.1; Apprendi, 530 U.S. at 487. Second, in

analyzing the exception set forth in Almendarez-Torres, the Apprendi

Court emphasized that the defendant in that case “had admitted the three

earlier convictions for aggravated felonies — all of which had been entered

pursuant to proceedings with substantial procedural safeguards of their

own[.]” Apprendi, 530 U.S. at 488. The Court concluded:

      Both the certainty that procedural safeguards attached to any
      “fact” of prior conviction, and the reality that [the defendant in
      Almendarez-Torres] did not challenge the accuracy of that
      “fact” in his case, mitigated the due process and Sixth Amendment
      concerns otherwise implicated in allowing a judge to determine a
      “fact” increasing punishment beyond the maximum of the
      statutory range.

                                  *    *       *

      [T]here is a vast difference between accepting the validity of a
      prior judgment of conviction entered in a proceeding in which the
      defendant had the right to a jury trial and the right to
      require the prosecutor to prove guilt beyond a reasonable
      doubt, and allowing the judge to find the required fact under a
      lesser standard of proof.

Id. at 488, 496 (footnote omitted and emphasis added). See also Aponte,

855 A.2d at 811 (“Where . . . the judicial finding [at sentencing] is the fact of

a prior conviction, submission to a jury is unnecessary, since the prior

conviction is an objective fact that initially was cloaked in all the

constitutional safeguards, and is now a matter of public record.”)

(emphasis added).

      As explained above, ARD is a pretrial disposition of charges. Lutz, 495

A.2d at 931.    Upon successful completion of the program, a defendant is


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entitled to move for dismissal of the charges and expungement of the

corresponding arrest record.         Pa.R.Crim.P. 319, 320(a).   The “fact” that a

defendant accepted ARD does not carry with it the procedural safeguards of a

traditional conviction following a judge or jury trial. Indeed, the participating

defendant need not admit his or her guilt, and the Commonwealth is not

required to prove the defendant’s culpability beyond a reasonable doubt.

Therefore, we are compelled to conclude Appellants’ prior acceptances of ARD

do not fit within the limited “prior conviction” exception set forth in Apprendi,

and by extension, Alleyne.9

       Nevertheless, the trial court here found that Appellants’ “prior ARD[s

are] a sentencing factor,” unlike the facts at issue in Alleyne “that were

elements to the actual crime.” Trial Ct. Op. at 5 (emphasis added). Because

Appellants’ prior ARDs are “unrelated” to their current DUI offenses, the trial

court concluded they constituted “a sentencing factor that is taken into

consideration when sentencing an individual of a DUI.” Id. Therefore, the

court found no “violation of Appellant[s’] due process rights and [their] right

to a jury trial.” Id.

       Our review of the language in Alleyne upon which the trial court relies

— supporting continued judicial fact finding in sentencing — reveals the

____________________________________________


9The fact that the MVC and the Rules of Criminal Procedure label a defendant’s
prior acceptance of ARD as a “prior conviction” or offense does not control.
See Apprendi, 530 U.S. at 496 (“[T]he mere presence of [the hate crime
sentence] ‘enhancement’ in a sentencing statute does not define its
character.”) (footnote omitted).

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Supreme Court was attentive to the “broad discretion of judges to select a

sentence within the range authorized by law.” See Alleyne, 570 U.S. at

117 (emphasis added). Indeed, the High Court did not intend to restrict a

sentencing court’s discretion to consider numerous factors when imposing a

sentence within the sentencing guideline ranges determined by the

Legislature. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10

(Pa. Super. 2014) (en banc) (deadly weapon sentencing enhancement statute

does not implicate Alleyne because it does not mandate minimum sentence;

although, if applicable, enhancement statute requires court to raise standard

guideline range, court “retains the discretion to sentence outside the guideline

range”).

      Rather, the Alleyne Court focused on “facts” that statutorily increased

a defendant’s sentence absent any discretion on the part of the trial court,

i.e., mandatory minimum sentencing statutes. See Alleyne, 570 U.S. at 114-

15 (“When a finding of fact alters the legally prescribed punishment so as to

aggravate it, the fact necessarily forms a constituent part of a new offense

and must be submitted to the jury.”). Alleyne mandates that any fact that

increases the defendant’s sentence, with the narrow exception of a prior

conviction, must be submitted to a jury and found beyond a reasonable doubt.

The Supreme Court did not intend to permit a sentencing court to determine

certain “facts” under the guise that they are general “sentencing factors,”

when the court has no discretion whether or not to impose the mandatory

minimum term.

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        Therefore, because Appellants’ prior acceptances of ARD do not

constitute convictions “cloaked in all the constitutional safeguards,”10 we

conclude they are a “fact” that, pursuant to Alleyne, Apprendi, and their

progeny, 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.            Accordingly, that portion of 75 Pa.C.S. §

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.11 Thus, we are constrained

to vacate Appellants’ sentences for DUI, and remand for resentencing as first-

time DUI offenders.

        What remains unresolved, however, is exactly what “facts” the

Commonwealth must prove, beyond a reasonable doubt, in order to satisfy

the constitutional concerns of Alleyne and its progeny. The Commonwealth


____________________________________________


10   See Aponte, 855 A.2d at 811.

11 We note that in 2011, the Commonwealth argued to this Court that a
defendant, who had accepted ARD for a prior DUI offense, but subsequently
withdrew from ARD and was later acquitted of those charges, should have
been sentenced as second-time DUI offender under Section 3806, for a
subsequent charge. Commonwealth v. Bowers, 25 A.3d 349, 351 (Pa.
Super. 2011). This Court agreed, holding “ARD acceptance qualifies as a prior
DUI offense for purposes of sentencing on a future DUI conviction, 75
Pa.C.S.A. § 3806(b), despite the fact that the defendant was ultimately
acquitted of the DUI charges leading to his or her ARD acceptance.” Id. at
358. However, Bowers was issued before, and thus not governed by, the
Supreme Court’s 2013 decision in Alleyne.


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suggests proof a defendant accepted ARD for a prior DUI offense, without

more, is sufficient to enhance the present sentence. Commonwealth’s Brief

at 9. The Commonwealth argues: “The Pennsylvania Legislature may enact

statutes and ordinances for the welfare and health of its citizens, so long as

statutes or ordinances are reasonable and not arbitrary and do not invade

fundamental liberties.” Id. Further, because “[t]he General Assembly had

more than a rational basis to impose increasing punishments for recidivist

drunk drivers[,]” the Commonwealth insists proof of a prior acceptance of ARD

is a proper sentencing enhancement. Id. at 11.

       We disagree. Instead, we agree with Appellants 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.”12 See Chichkin’s Brief at 13; Roche’s Brief at

14.




____________________________________________


12 Appellants do not engage in an Edmunds analysis; instead their challenge
is limited to the protections provided by the Due Process Clause in the United
States Constitution. See Commonwealth v. Edmunds, 586 A.2d 887, 895
(Pa. 1991) (to raise challenge for higher protection under Pennsylvania
Constitution appellant must “brief and analyze” four factors including text of
the Pennsylvania provision, history of the provision, related caselaw from
other states, and policy considerations).




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J-A08032-20 & J-A08033-20



       The Pennsylvania Supreme Court recently explained the fundamental

differences between procedural and substantive due process concerns:13

       Procedural due process “is a flexible concept which ‘varies with
       the particular situation.’” Bundy v. Wetzel, 646 Pa. 248, 258,
       184 A.3d 551, 557 (2018) (quoting Zinermon v. Burch, 494 U.S.
       113, 127, 110 S. Ct. 975, 984, 108 L.Ed.2d 100 (1990)). Its
       “central demands” are “an ‘opportunity to be heard at a
       meaningful time and in a meaningful manner.’” Id. (quoting
       Commonwealth v. Maldonado, 576 Pa. 101, 108, 838 A.2d
       710, 714 (2003)). Such requirements, however, “are implicated
       only by adjudications, not by state actions that are legislative in
       character.” Small v. Horn, 554 Pa. 600, 613, 722 A.2d 664, 671
       (1998).
                                   *   *    *

             Under the heading of “substantive due process,” the Due
       Process Clause not only guarantees a fair process, but “provides
       heightened protection against government interference with
       certain   fundamental     rights   and      liberty   interests.”
       Commonwealth v. Bullock, 590 Pa. 480, 491, 913 A.2d 207,
       214 (2006) (quoting Washington v. Glucksberg, 521 U.S. 702,
       719-20, 117 S. Ct. 2258, 2267, 138 L.Ed.2d 772 (1997)).

Sutton v. Bickell, 220 A.3d 1027, 1032-33 (Pa. 2019). “[F]or substantive

due process rights to attach there must first be the deprivation of a property

right or other interest that is constitutionally protected.” Khan v. State Bd.

of Auctioneer Examiners, 842 A.2d 936, 946 (Pa. 2004). Prominent in due

process jurisprudence is the protection afforded to those accused of a crime:

       Lest there remain any doubt about the constitutional stature of
       the reasonable-doubt standard, we explicitly hold that the Due
       Process Clause protects the accused against conviction except

____________________________________________


13 The Due Process Clause is embedded in Section 1 of the Fourteenth
Amendment to the United States Constitution, which provides, inter alia: “No
State shall . . . deprive any person of life, liberty, or property, without due
process of law[.]” U.S. CONST., amend XIV, § 1.

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J-A08032-20 & J-A08033-20


      upon proof beyond a reasonable doubt of every fact necessary to
      constitute the crime with which he is charged.

In re Winship, 397 U.S. 358, 364 (1970).

      In Nelson v. Colorado, 137 S. Ct. 1249 (U.S. 2017), the United States

Supreme Court considered whether a state is “obliged to refund fees, court

costs, and restitution exacted from [a] defendant upon, and as a consequence

of, [a] conviction” when that conviction is subsequently “invalidated by a

reviewing court and no retrial will occur[.]” Nelson, 137 S. Ct. at 1252. The

statute at issue permitted the state to retain the funds “unless and until” the

exonerated defendant proved “her innocence by clear and convincing

evidence” in a separate civil proceeding. Id. The Nelson Court held “[t]his

scheme . . . offends the Fourteenth Amendment’s guarantee of due process”

because “[a]bsent conviction of a crime, one is presumed innocent.”        Id.

Specifically, in concluding the procedure violated substantive due process

concerns, the Court explained:

      “[A]xiomatic and elementary,” the presumption of innocence “lies
      at the foundation of our criminal law.” [A state] may not retain
      funds taken from [defendants] solely because of their now-
      invalidated convictions, for [a state] may not presume a person,
      adjudged guilty of no crime, nonetheless guilty enough for
      monetary exactions.

Id. at 1255–56 (citations and footnotes omitted).

      Here, the Commonwealth seeks to label Appellants as “recidivist drunk

drivers” based solely on their prior acceptances of ARD. See Commonwealth’s

Brief at 11.   However, as we explained supra, “ARD . . . is a pretrial

disposition” and admission into an ARD program is “not equivalent to a


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J-A08032-20 & J-A08033-20



conviction . . . since charges are deferred until completion of the program.”

Lutz, 495 A.2d at 931; Knepp, 453 A.2d at 1019 (footnote omitted). By

treating a defendant’s mere prior acceptance of ARD as a prior conviction for

sentencing purposes, the Legislature, like the state in Nelson, determined a

defendant, who has been “adjudged guilty of no crime” is “nonetheless guilty

enough” to be considered a recidivist drunk driver subject to enhanced

penalties. Nelson, 157 S.Ct. at 1256.

       Due process considerations protect those accused of committing a crime

from conviction “except upon proof beyond a reasonable doubt.” Winship,

397 U.S. at 364. Under the statutory scheme at issue here, Appellants’ prior

acceptances of ARD are treated as prior convictions of DUI, absent the

constitutional protections of a trial or guilty plea — most significantly, a finding

or admission of guilt beyond a reasonable doubt.              Accordingly, if the

Commonwealth seeks to enhance a defendant’s DUI sentence based upon that

defendant’s prior acceptance of ARD, it must prove, beyond a reasonable

doubt, that the defendant actually committed the prior DUI offense.14 Any

lesser standard would violate due process concerns.
____________________________________________


14We note the fact Roche had a prior DUI offense was referred to at her guilty
plea hearing in the following manner:

            [Commonwealth:] Your Honor, we are proceeding by way
       of 3802(a)(1), with accident. This is a mandatory minimum
       matter, and this should be a Tier II offense.

              THE COURT: You’re expecting that there is a prior offense?



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J-A08032-20 & J-A08033-20



       Therefore, we conclude the particular provision of 75 Pa.C.S. § 3806(a),

which defines a prior acceptance of ARD in a DUI case as a “prior offense” for

DUI sentencing enhancement purposes, offends the Due Process Clause and

is   therefore   unconstitutional.        We   thus   further   conclude   Appellants’

constitutional rights were violated when the trial court increased their

sentences based solely upon their prior acceptances of ARD, absent proof

beyond a reasonable doubt that Appellants committed the prior offenses.

Accordingly, we vacate the judgments of sentence, and remand for

resentencing consistent with this opinion.


____________________________________________


              [Roche’s Counsel]: That’s correct, Your Honor.

N.T., Guilty Plea, at 4.

      Nevertheless, during her plea colloquy, Roche was not asked to confirm
her prior DUI arrest, nor her prior acceptance of ARD. Rather, the sole
mention of her mandatory minimum sentence was during the colloquy in the
following exchange, when the Commonwealth informed Roche of her limited
appeal rights:

       [Commonwealth: Y]ou could argue that the sentence the judge
       was impose is an unlawful sentence. However, I can assure you
       that the sentence which has been negotiated between your
       attorney and me to the mandatory minimum sentence . . . is the
       lowest sentence allowed by law.

              Do you understand that?

       [Roche]: Yes, sir.

N.T. Guilty Plea at 8. Nowhere during the guilty plea hearing did the
Commonwealth prove, or did Roche concede, that she committed the prior
DUI offense. Accordingly, her enhanced sentence violates Alleyne and due
process concerns.


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J-A08032-20 & J-A08033-20



      Judgments of sentence vacated.     Cases remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2020




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