Com. v. Gerber, M.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

MICHAEL FRANK GERBER JR. :

:

Appellant : No. 1077 EDA 2024

Appeal from the Judgment of Sentence Entered April 5, 2024 In the Court of Common Pleas of Carbon County Criminal Division at No(s): CP-13-CR-00000034-2021

BEFORE: LAZARUS, P.J., STABILE, J., and KING, J.

JUDGMENT ORDER BY KING, J.: FILED DECEMBER 2, 2024

Appellant, Michael Frank Gerber, Jr., appeals from the judgment of

sentence entered in the Carbon County Court of Common Pleas, following his

guilty plea to driving under the influence of alcohol or a controlled substance

(“DUI”).1 We affirm.

The trial court set forth the relevant facts and procedural history of this

case as follows:

On July 31, 2020, [Appellant] was arrested following a traffic stop and was subsequently charged with four counts of [DUI], two counts of possession of a controlled substance, and one count of driving under suspension. [Appellant] pled guilty to one count of [DUI], impaired ability, under 75 Pa.C.S.A. § 3802(d)(2), as a second offense, a misdemeanor of the first degree.

On April 5, 2024, [Appellant] was sentenced to a period of

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1 75 Pa.C.S.A. § 3802(d)(2).

imprisonment of not less than ninety days nor more than five years [of imprisonment]. The ninety-day mandatory minimum was imposed under 75 Pa.C.S.A. § 3804(c)(2)(i) because [Appellant] had accepted [Accelerated Rehabilitative Disposition (“ARD”)] for a prior DUI in 2016. [Appellant’s] prior ARD was considered a prior offense under Section 3806 of the Vehicle Code[.]

* * *

Also on April 5, 2024, following his sentencing, [Appellant] filed a Post-Sentence Motion, raising two issues: (1) for the court to make him eligible for work release and (2) for the court to reconsider and modify his sentence, to treat his conviction as a first offense and not consider his prior ARD as a prior offense, and to defer ruling on this issue for 120 days pending the Pennsylvania Supreme Court’s decision in Commonwealth v. Richards, [284 A.3d 214 (Pa.Super. 2022) (en banc), appeal granted, ___ Pa. ___, 294 A.3d 300 (2023)], in which the constitutionality of treating ARD as a prior offense was then before the Supreme Court. By Order dated April 9, 2024, we granted [Appellant’s] request to be made eligible for immediate work release, but denied his Motion to the extent it challenged [Appellant’s] prior ARD in 2016 as a first offense in the computation of his instant DUI conviction as a second offense.

On April 10, 2024, [Appellant] filed an appeal from the [judgment] of sentence as made final by the denial of his Post-Sentence Motion. In response to our order dated April 10, 2024, directing [Appellant] to file a concise statement of the errors complained of on appeal no later than twentyone days from the entry of the order (see Pa.R.A.P. 1925(b)), [Appellant] timely filed his Concise Statement on April 12, 2024. …

(Trial Court Opinion, filed May 31, 2024, at 1-3) (internal footnote omitted).

Appellant raises the following issues for our review:

In light of Alleyne v. United States, [570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)] is it not unconstitutional to consider an acceptance of ARD as [a] prior offense for sentencing purpose[s] without the

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procedural protections afforded by All[ey]ne, i.e., a prior offense can only be determined by proof beyond a reasonable doubt[?]

Is it not fundamentally unfair and [a] violation of due process to equate a prior acceptance of ARD with a prior conviction [for] purposes of a recidivist mandatory minimum sentence even though that acceptance involved no proof beyond a reasonable doubt.

(Appellant’s Brief at 4).

Preliminarily, Appellant acknowledges this Court’s decisions in

Richards, supra and Commonwealth v. Moroz, 284 A.3d 227 (Pa.Super.

2022) (en banc), in which this Court expressly held that a defendant’s

placement in ARD following a DUI arrest constituted a “prior offense” for

purposes of DUI sentencing. Appellant further acknowledges that the issues

he raises on appeal are identical to those pending before the Supreme Court

in Richards. Thus, Appellant filed this appeal to preserve his rights “should

the Pennsylvania Supreme Court overturn [Richards, supra], and determine

that admission into ARD is not considered a first DUI offense for grading

purposes[.]” (Appellant’s Brief at 13).2

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2 Appellant also cites our Supreme Court’s decision in Commonwealth v. Verbeck, ___ Pa. ___, 290 A.3d 260 (2023) (plurality), where the justices were evenly divided on the issue of whether a defendant’s acceptance into an ARD program qualified as a prior conviction that could compel an increased sentence for DUI. Nevertheless, “[w]hile the ultimate order of a plurality opinion, i.e., an affirmance or reversal, is binding on the parties in that particular case, legal conclusions and/or reasoning employed by a plurality certainly do not constitute binding authority.” Commonwealth v. Brown, 23 A.3d 544, 556 (Pa.Super. 2011) (internal citation omitted).

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Instantly, the trial court explained:

In [Richards, supra], the Pennsylvania Superior Court held that “the portion of Section 3806(a), which equates prior acceptance of ARD to a prior conviction for purposes of imposing a Section 3804 mandatory minimum sentence, passes constitutional muster.” Id. at 220. Its material facts—prior ARD, subsequent conviction of a new DUI offense, treatment of the prior ARD as a first offense for sentencing—are on all fours with the facts at issue here. Its holding is binding on us and confirms the constitutionality of treating [Appellant’s] prior ARD as a first offense for sentencing. See also [Moroz, supra] (same).

(Trial Court Opinion at 7-8). We agree with the trial court that Richards is

dispositive here. Although Richards remains pending with our Supreme

Court, we are still bound by its holding. See Commonwealth v. Boyd, 284

A.3d 895 (Pa.Super. 2022) (reiterating general rule that appellate courts apply

law in effect at time of appellate review). Accordingly, we affirm.

Judgment of sentence affirmed.

Date: 12/2/2024