Com. v. Disbrow, J.

• Court: Superior Court of Pennsylvania
• Decided: December 26, 2023
• Docket: 746 MDA 2023
• Status: Unpublished

Opinion

J-S39009-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOLENE DANIELLE DISBROW : : Appellant : No. 746 MDA 2023

Appeal from the Judgment of Sentence Entered May 16, 2023 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0001257-2022

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED DECEMBER 26, 2023

Appellant Jolene Danielle Disbrow appeals from the May 16, 2023

Judgment of Sentence entered by the Adams County Court of Common Pleas

following her convictions related to Driving Under the Influence of Alcohol and

Controlled Substances (“DUI”). She argues that the trial court erred in

considering her prior acceptance into Accelerated Rehabilitative Disposition

(“ARD”) to be a first offense, when the court later removed her from ARD and

the Commonwealth nolle prossed the relevant charge. After review and based

upon controlling precedent, we affirm.

The relevant facts as set forth in the parties’ stipulation are as follows.

At approximately 3:10 AM on July 29, 2022, a Pennsylvania State Police

Trooper stopped Appellant after noticing that her passenger side headlight

was inoperable. Upon approaching the vehicle, the trooper noticed a strong

order of burnt marijuana and that Appellant’s eyes were glassy and bloodshot. J-S39009-23

Ultimately, the troopers placed Appellant under arrest after she demonstrated

impairment during field sobriety tests. Appellant consented to a blood draw,

which revealed “a Blood Alcohol Concentration (BAC) of 0.091, active

Marijuana compounds (Delta-9 THC), as well as active Marijuana metabolites

(11-Hydroxy Delta-9 THC) and inactive Marijuana metabolites (Delta-9

Carboxy THC)[, and] Methamphetamine.” Stipulation, 5/16/23, at ¶ 17.

The Commonwealth charged Appellant with seven counts of DUI based

upon the presence of alcohol and the controlled substances, in addition to a

summary violation for her inoperable headlight.1 The Commonwealth

designated the DUI offenses as second offenses based upon Appellant’s prior

acceptance into ARD in 2014.2 Relevantly, Appellant entered ARD on January

22, 2014, but the court removed her from the ARD program on December 17,

2014. Ultimately, on August 18, 2015, the Commonwealth nolle prossed the

DUI charges, and Appellant pled guilty to Recklessly Endangering Another

Person. Id. at ¶ 19.

In the instant case, Appellant filed a Motion in Limine to Bar Admission

of Evidence Underlying ARD for DUI Recidivist Sentencing Purposes (“Motion

in Limine”). Appellant asserted that the Commonwealth should not have

charged the current DUI offenses as second offenses, arguing that her 2014

acceptance into ARD should not be considered a prior offense given that the ____________________________________________

1 75 Pa.C.S. §§ 3802(a)(1), (a)(2), (d)(1)(i), (d)(1)(ii), (d)(1)(iii), (d)(2), (d)(3); 4303(a).

2 CP-21-CR-3391-2013.

-2- J-S39009-23

court removed her from ARD and the Commonwealth ultimately nolle prossed

the DUI charge. She claimed that she “cannot reasonably be convicted of a

2nd offense DUI when the 1st offense was dismissed.” Motion in Limine,

11/28/22.

On January 26, 2023, after hearing argument, the court denied the

Motion in Limine. Based on Commonwealth v. Bowers, 25 A.3d 349 (Pa.

Super. 2011), the court concluded that Appellant’s “prior acceptance of ARD

will be considered a first offense for sentencing purposes in this matter.” Trial

Ct. Order, 1/26/23.

On May 16, 2023, following a stipulated bench trial, the court found

Appellant guilty of the seven counts of DUI, as second offenses, as well as the

summary violation for the inoperable headlamp. Pursuant to the parties’

agreement, the court sentenced Appellant on Count 3, DUI-Controlled

Substance,3 to 60 months of probation with restrictive DUI conditions,

involving 90 days of house arrest. The other DUI convictions merged for

sentencing purposes, and the court imposed a $25 fine for the summary

violation, in addition to mandated fees, fines, and costs.

On May 18, 2023, Appellant filed a post-sentence motion again

challenging the designation of the 2014 ARD acceptance as a prior DUI

offense. The trial court denied the motion on May 18, 2023.

____________________________________________

3 75 Pa.C.S. § 3802(d)(1)(i).

-3- J-S39009-23

Appellant filed a Notice of Appeal on May 22, 2023. Both Appellant and

the trial court complied with Pa.R.A.P. 1925. On May 23, 2023, the trial court

granted Appellant’s request that it stay her sentence pending appeal.

Before this Court, Appellant raises the following issue:

Whether Appellant’s prior admission into ARD, removal from ARD and then dismissal of the DUI, constitutes a prior offense for purposes of the DUI sentencing enhancement[?]

Appellant’s Br. at 6.

A.

Appellant challenges the legality of the trial court’s decision to sentence

her as a second time DUI offender under the Vehicle Code. As Appellant

presents a question of law, “our standard of review is de novo[,] and our scope

of review is plenary.” Commonwealth v. Moroz, 284 A.3d 227, 230 (Pa.

Super. 2022) (citation omitted).

The Vehicle Code sets forth the penalties for DUI-Controlled Substances,

which include mandatory maximum sentences that increase based upon

whether the individual has one or more prior offenses. 75 Pa.C.S. § 3804. In

relevant part, the Vehicle Code defines a “prior offense” as including any

“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. § 3806(a)(1). For purposes of sentencing under

Section 3804, “the prior offense must have occurred: (i) within 10 years prior

-4- J-S39009-23

to the date of the offense for which the defendant is being sentenced[.]” Id.

§ 3806(b)(1)(i).

ARD is a pretrial diversionary program “established to promptly resolve

relatively minor cases involving social or behavioral problems which can best

be solved by programs and treatments rather than by punishment.”

Commonwealth v. Jenkins, ___ A.3d ___, 2023 WL 6885054, at *2 (Pa.

Super. Oct. 19, 2023). (citations and internal quotation marks omitted). The

program offers offenders “the possibility of a clean record if they successfully

complete the program.” Pa.R.Crim.P. Ch. 3, Explanatory Cmt.

“Admission to an ARD program is not a matter of right, but a privilege.”

Commonwealth v. Lutz, 495 A.2d 928, 933 (Pa. 1985). “A defendant may

be placed in the ARD program only after he or she has requested acceptance

into the program, has indicated an understanding of the proceedings, and has

accepted and agreed to comply with the conditions imposed by the trial court.”

Moroz, 284 A.3d at 231 (citation omitted). Moreover, completion of ARD is

not guaranteed. Rather, “ARD has simply suspended the criminal

proceedings, which may be reactivated upon the defendant’s withdrawal or

removal from the program.” Jenkins, 2023 WL 6885054, at *5; see also

Pa. R. Crim. P. 318. This potential of removal followed by reactivation of the

criminal process results in the situation in the case at bar, where an offender

who has been accepted into ARD is later cleared of the underlying criminal

charges.

-5- J-S39009-23

Regardless of the ultimate resolution of the charges, this Court has held

that Section 3806 unambiguously mandates that the relevant event for

purposes of determining the existence of a “prior offense” is the offender’s

acceptance into ARD. Bowers, 25 A.3d at 353-54 (relying upon

Commonwealth v. Becker, 530 A.2d 888, 893 (Pa. Super. 1987) (en banc),

interpreting similar language in a predecessor statute, 75 Pa.C.S. § 3731

(repealed)). “Section 3806(b), by its clear terms, only asks whether the

defendant has accepted ARD in the ten years preceding the occurrence of the

present Section 3802 offense; it does not contemplate the guilt or innocence

of a defendant at the time of ARD acceptance.” Id. at 354. While recognizing

the harsh result of finding an acquittal to constitute a “prior offense,” the Court

emphasized that any other interpretation would “require us to deviate from

the statute modifying this clear directive from our General Assembly, which

we cannot do.”4 Id.

The Court in Bowers additionally rejected Bower’s claim that Section

3806 violated due process by equating his acquittal of DUI to a prior offense

of DUI. The Court found that Section 3806’s “sentencing enhancement” was

not fundamentally unfair given that the offender voluntarily entered ARD after

having notice that acceptance of ARD would be considered a prior DUI offense.

Id. at 356. “These factors—advance[] notice and voluntary ARD acceptance—

4 In Bowers, the trial court accepted Bowers into ARD but later removed him

from ARD based upon new DUI charges. Ultimately, the court acquitted Bowers of the initial DUI charges for which he had accepted ARD.

-6- J-S39009-23

support our determination that due process permits treating Bowers’s ARD

acceptance as a prior offense in a subsequent sentencing proceeding, despite

a later acquittal on the underlying charge giving rise to ARD acceptance.” Id.

This Court, however, arguably abrogated Bowers in Commonwealth

v. Chichkin, 232 A.3d 959, 968 n.11 (Pa. Super. 2020), overruled by

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). In Chichkin, the Court reasoned

that Section 3806 violated the Due Process Clause to the extent that it

“define[d] a prior acceptance of ARD in a DUI case as a ‘prior offense’ for DUI

sentencing enhancement purposes[,]” “absent proof beyond a reasonable

doubt that [the defendants] committed the prior offenses.’” Chichkin, 232

A.3d at 971 (relying upon Alleyne v. United States, 570 U.S. 99, 103 (2013)

(holding that “any 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.”). The decision in Chichkin noted that Bowers predated the Supreme

Court’s decision in Alleyne. Chichkin, 232 A.3d at 968 n.11.

As indicated, however, this Court overruled Chichkin in Richards and

Moroz. In these en banc decisions, this Court held that “a defendant’s prior

acceptance of ARD fits within the limited ‘prior conviction’ exception set forth

in Apprendi [v. New Jersey, 530 U.S. 466 (2000)] and Alleyne.”

Richards, 284 A.3d at 220. As in Bowers, the Court concluded that the

notice provided by Section 3806 and the voluntary nature of ARD “mitigate[d]

-7- J-S39009-23

the due process concerns advanced in Chichkin.” Id. We conclude that the

en banc decisions in Richards and Moroz lifted the shadow which Chichkin

placed over the holding in Bowers. Thus, absent action by the Supreme

Court, we are bound by Richards, Moroz, and Bowers.5

B.

Appellant argues that “[t]he trial court erred when it . . . sentenced

Appellant to a second offense DUI when there is no first offense DUI on her

record.” Appellant’s Br. at 9. Appellant reiterates that she “entered the ARD

program, the Commonwealth then removed her from that program[,] and

then the Commonwealth dismissed the DUI charge.” Id. Appellant contends

that it is absurd to read the statutory language to equate the Commonwealth’s

dismissal of her charge with a prior DUI offense. Invoking the arguments in

Richards, Moroz, and Chichkin, Appellant also maintains “that a prior DUI

charge which was nolle prosed is insufficient proof of the commission of a prior

offense in violation of [Apprendi and Alleyne].” Appellant’s Br. at 11.

Indeed, Appellant distinguishes her case from Richards, Moroz, and

Chichkin, emphasizing that those cases involved defendants who completed

ARD, whereas the Commonwealth nolle prossed her charges. Appellant,

however, does not confront Bowers, despite the trial court’s express reliance

on that decision. ____________________________________________

5 On March 15, 2023, the Pennsylvania Supreme Court granted review of Richards, 294 A.3d 300, and previously split evenly on the constitutionality of Section 3806’s definition of a prior DUI offense as including acceptance into ARD in Commonwealth v. Verbeck, 290 A.3d 260 (Pa. 2023).

-8- J-S39009-23

As the trial court recognized, this Court in Bowers held that the

unambiguous language of Section 3806 looks solely to “whether the defendant

has accepted ARD in the ten years preceding the occurrence of the present

Section 3802 offense.” Bowers, 25 A.3d at 354; see also Trial Ct. Op.,

6/12/23, at 2. Moreover, while Appellant distinguishes Richards and Moroz

factually from her case, given that the defendants in those cases completed

ARD rather than being removed from it, she fails to explain how that

distinction alters the applicability of the reasoning of those cases, which hold

that the relevant portion of Section 3806 “passes constitutional muster.”

Richards, 284 A.3d at 220. Indeed, the reasoning of Richards and Moroz

is based not on the completion of ARD but instead on the due process

surrounding an offender’s acceptance into ARD, specifically the notice

provided by Section 3806 of the repercussions of entering ARD and the

voluntariness of the decision to enter ARD. The trial court, therefore, properly

concluded that Appellant’s prior acceptance of ARD was a first offense for

sentencing purposes under Section 3806(b) and that the instant DUI

constituted a second offense.6

6 Appellant also relies upon Rickell v. Dep't of Transportation, Bureau of

Driver Licensing, 289 A.3d 1155 (Pa. Cmwlth. 2023)., which refused to consider a prior acceptance of ARD, followed by a revocation of ARD, to be a first offense. Not only is this decision of our sister court not binding on this Court, Rickell is also distinguishable as it involved an attempt by the Department to count the same DUI incident twice, by counting the offender’s acceptance into ARD as the initial offense and the subsequent prosecution of the same incident as a second offense. Id. at 1161. Reliance on Rickell, accordingly, is inapt.

-9- J-S39009-23

Judgment of Sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 12/26/2023

- 10 -