Com. v. Clevenger, C.

Superior Court of Pennsylvania

Com. v. Clevenger, C.

DecidedAugust 15, 2024

Docket1365 MDA 2023

StatusUnpublished

This text of Com. v. Clevenger, C. (Com. v. Clevenger, C.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Clevenger, C., (Pa. Ct. App. 2024).

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Opinion

J-S07044-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRYSTEENA DAWN CLEVENGER : : Appellant : No. 1365 MDA 2023

Appeal from the Judgment of Sentence Entered September 18, 2023 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000081-2022

BEFORE: LAZARUS, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED AUGUST 15, 2024

Appellant, Chrysteena Dawn Clevenger, appeals from the judgment of

sentence imposed following her guilty plea to driving under the influence

(“DUI”)—controlled substance.1 We affirm.

We previously set forth the history of this case leading up to the

Commonwealth’s earlier appeal from the initial sentence imposed by the lower

court:

On November 2, 2021, [Appellant] was arrested following a traffic stop, and she was subsequently charged with various DUI offenses and a summary motor vehicle offense. The DUI offenses were charged as second offenses and graded as first-degree misdemeanors based upon [Appellant]’s resolution of a prior DUI charge through the accelerated rehabilitative disposition (“ARD”) process. At a hearing held on April 18, 2022, [Appellant] made ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(d)(1)(i). J-S07044-24

an oral motion to bar consideration of her earlier ARD as a prior offense at sentencing. N.T., 4/18/22, at 2-3.

At that time, this Court’s decision in Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), set forth the prevailing law on whether acceptance of ARD in an earlier DUI case could be considered a prior offense for sentencing in a subsequent DUI prosecution. In Chichkin, we held that the classification of ARD as a prior offense in Section 3806(a) of the Vehicle Code violated due process and therefore a defendant could not be sentenced as a recidivist DUI offender on that basis. Id. at 969-71; 75 Pa.C.S. § 3806(a) (defining a “prior offense” to include acceptance of ARD); see also 75 Pa.C.S. § 3804 (setting forth escalating mandatory minimums for first, second, and subsequent DUI offenses).

The trial court granted [Appellant]’s motion to bar consideration of the prior ARD as a first DUI offense at the April 18, 2022 hearing. N.T., 4/18/22, at 2-3; Order, 4/19/22. [Appellant] then entered a negotiated guilty plea to one count of DUI—controlled substance as a first offense, ungraded misdemeanor. On June 20, 2022, the trial court sentenced [Appellant] pursuant to the negotiated agreement to serve six months’ probation, including ten days of house arrest, and pay a fine of $1,000. Sentencing Order, 6/20/22.

Commonwealth v. Clevenger, No. 995 MDA 2022, 2023 WL 3298958, *1

(Pa. Super., filed May 8 2023).

The Commonwealth appealed, arguing that the trial court erred in

barring consideration of Appellant’s ARD as a prior offense in light of two

subsequent en banc Superior Court decisions in Commonwealth v.

Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc), appeal granted, 294

A.3d 300 (Pa. 2023), and Commonwealth v. Moroz, 284 A.3d 227 (Pa.

Super. 2022) (en banc). We agreed with the Commonwealth that Richards

and Moroz expressly overruled Chichkin and held that “the General Assembly

provided that ARD will constitute a prior offense for purposes of sentencing on

-2- J-S07044-24

a second or subsequent DUI conviction” and that Section 3806 of the Vehicle

Code, which classifies an ARD as a prior offense, “passes constitutional

muster.” Clevenger, 2023 WL 3298958, *2 (citation omitted). We therefore

vacated the sentence imposed upon Appellant as a first-time DUI offender and

remanded for resentencing. Id.

Following remand, Appellant filed a motion to preclude the trial court’s

consideration of her prior DUI ARD, which the court promptly denied. Motion,

7/5/23; Order, 7/10/23. The matter then proceeded to a hearing on

September 18, 2023, at which Appellant stipulated that she was admitted into

the ARD program in 2019 to resolve a DUI offense, notwithstanding her

objection to the admission of the ARD for sentencing purposes. N.T., 9/18/23,

at 2. On that date, the trial court sentenced Appellant for DUI—controlled

substance as a second offense to 24 months’ probation, with a 90-day

restrictive term to be served on house arrest. Sentencing Order, 9/18/23. On

September 28, 2023, Appellant filed a notice of appeal.

In this Court, Appellant challenges her sentence as a second-time DUI

offender based upon her prior ARD.2 Put succinctly, Appellant argues that

Richards and Moroz “were not correctly decided” and that, in fact, “Section

3806 does not pass constitutional muster, and this Court should not have

overruled Chichkin” in those en banc opinions. Appellant’s Brief at 19, 24.

____________________________________________

2 Appellant’s appellate argument implicates the legality of her sentence; our

standard of review of this issue is de novo and our scope of review is plenary. Moroz, 284 A.3d at 230.

-3- J-S07044-24

Appellant accordingly requests that we vacate her judgment of sentence and

remand for her to be resentenced to DUI as a first offense. Id. at 30.

Appellant is not entitled to relief in this appeal as Richards and Moroz

remain binding precedent in this Commonwealth, and these cases clearly

mandate the sentence imposed by the court below. See Commonwealth v.

Tejada, 107 A.3d 788, 799 (Pa. Super. 2015) (Superior Court is bound by

prior en banc panel decisions) (citing Pa.R.A.P. 3103(b)). Our Supreme

Court’s grant of the defendant’s petition for allowance of appeal in Richards

does not alter our conclusion that we are bound by its holding. See

Commonwealth v. Koehler, 914 A.2d 427, 439 n.4 (Pa. Super. 2006);

Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006). “At this

point in time, our high court has done no more than grant an appeal for the

purpose of determining whether Section [3806] is unconstitutional[.]” Pepe,

897 A.2d at 465. “Because our Supreme Court has not yet ruled upon the

question, our Court’s prior decision[s] in [Richards and Moroz are] binding”

in this appeal. Id. We thus affirm Appellant’s judgment of sentence.3 ____________________________________________

3 We note that while the petition for allowance of appeal in Richards was pending, our Supreme Court decided the case of Commonwealth v. Verbeck, 290 A.3d 260 (Pa. 2023). Because the Court was equally divided (3-3) in Verbeck, the issue was not resolved. See Commonwealth v. Mosley, 114 A.3d 1072, 1082 n.11 (Pa. Super. 2015) (“When a judgment of sentence is affirmed by an equally divided court, [] no precedent is established and the holding is not binding on other cases.”). The Court has since granted the petition for allowance of appeal in Richards but subsequently stayed that case, pending resolution of another case with the same issue, Commonwealth v. Shifflett, No. 26 MAP 2024. In that case, the parties filed briefs, but the Court has not scheduled oral argument yet.

-4- J-S07044-24

We address one additional issue that came to light during our review of

the record and implicates the legality of Appellant’s sentence. See

Commonwealth v.

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