Com. v. Hayes, G.

2021 Pa. Super. 232, 266 A.3d 679

Opinion

J-A16013-21

2021 PA Super 232

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : GARRETT JAMES HAYES : No. 3 MDA 2021

Appeal from the Judgment of Sentence Entered November 24, 2020, in the Court of Common Pleas of Adams County, Criminal Division at No(s): CP-01-CR-0000190-2020.

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

OPINION BY KUNSELMAN, J.: FILED DECEMBER 02, 2021

The Commonwealth appeals from the judgment of sentence imposing

five years’ probation (with 90 days of restrictive, driving-under-the-influence

conditions) against Garrett James Hayes.1 The sentencing court determined

that this was Hayes’ second DUI offense; it did not consider his driving-while-

intoxicated (“DWI”) case from Maryland in 2011 to be a prior offense, under

Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020).2 This holding

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* Former Justice specially assigned to the Superior Court.

1 Sitting without a jury, the trial court convicted Hayes under 75 Pa.C.S.A. §§

3709(a) (littering on the highway), 3714(a) (careless driving), 3802(a)(1) (DUI), and 3802(c) (DUI – highest rate of alcohol).

2 In Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), this Court

concluded that 75 Pa.C.S.A. § 3806(a)(1)’s inclusion of ARD as a “prior offense” for purposes of Section 3804’s DUI sentencing enhancement is unconstitutional, because “ARD . . . is a pretrial disposition and admission into an ARD program is not equivalent to a conviction . . . since charges are deferred until completion of the program.” Id. at 970 (internal quotations and citations omitted). J-A16013-21

rested upon a misinterpretation of Maryland’s procedural law. Therefore, we

vacate the sentence and remand.

Prior to the offense at issue in this case, Hayes was twice arrested for

DWI in the State of Maryland: once in 2011 and again in 2014. In 2019, the

Commonwealth of Pennsylvania charged him with DUI, third offense.

Hayes moved to exclude evidence of his 2011 DWI. As the trial court

noted:

[he] filed a motion in limine to bar admission of evidence underlying a prior probation before judgment for DUI recidivist sentencing purposes. [Hayes] argued that [his] prior probation before judgment (“PBJ”) disposition in Maryland on July 14, 2011, as evidence of a “prior offense” under 75 Pa.C.S.A. § 3806 of the Vehicle Code, was barred by the Superior Court case Commonwealth v. Chichkin, supra.

[At the hearing on the motion in limine,] the only evidence presented by the Commonwealth was a document from the District Court for Carroll County, Maryland for a Garrett James Hayes. It showed a disposition on July 14, 2011, with a plea of not guilty and disposition of [PBJ] for driving/attempting to drive vehicle while under the influence of alcohol per se. [The trial court] entered an order on October 20, 2020 granting [the] Motion in Limine to Bar Admission of Evidence Underlying a Prior PBJ for DUI Recidivist Sentencing Purposes.

On November 24, 2020 a stipulated nonjury trial was held[, and Hayes] was found guilty [on two counts of DUI]. The Commonwealth presented a certified document from the District Court for Carroll County, Maryland for Garrett James Hayes, showing a July 14, 2011 plea of not guilty with a disposition of [PBJ] for driving, attempting to drive vehicle while under the influence of alcohol per se.

Trial Court Opinion, 2/10/21, at 1-2.

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After reviewing the documents from the District Court of Carroll County,

the sentencing court opined that, under Chichkin, supra, “the issue is

whether [Hayes’] prior acceptance of a PBJ in Maryland constitutes an

unproven ‘fact’ which must be submitted to the fact finder at trial or a ‘prior

conviction’ which may be determined by the Court at sentencing.” Id. at 4.

The court ruled the certified document was not proof of a “prior offense,”

because it indicated that Hayes pleaded not guilty before the District Court of

Carroll County, which then imposed a PBJ. The sentencing court went on to

state, “As set forth in section 6-220(g)(1) of the Maryland Code of Criminal

Procedure, after successful completion of a PBJ disposition, the case is

discharged without a conviction being recorded.” Id. at 5.

Thus, the sentencing court held “that the PBJ disposition from July 14,

2011 [did] not meet the ‘prior conviction exception’ and [the Commonwealth]

did not prove beyond a reasonable doubt that [Hayes’] actually committed the

prior DUI offense” in 2011. Id. at 6. Therefore, the court did not count Hayes’

2011 DWI as a prior DUI offense when calculating his mandatory-minimum

sentence under Pennsylvania law. This timely appeal followed.

The Commonwealth raises two issues, which we have reordered so that

the non-constitutional issue appears first.3 They are:

1. Did the [sentencing] court err in finding that a [PBJ] under Maryland Law does not constitute a prior ____________________________________________

3 We thereby “adhere to the sound tenet of jurisprudence that courts should

avoid constitutional issues when the [case] may be decided upon other grounds.” Commonwealth v. Herman, 161 A.3d 194, 209 (Pa. 2017).

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offense for purposes of sentencing on a new DUI when that disposition requires either that a defendant admit guilt or that the state prove culpability beyond a reasonable doubt before it can be imposed?

2. Did the [sentencing] court err in ruling that the fact of a prior conviction for purposes of gradation and determination of DUI offense for sentencing purposes is required to be proven by the Commonwealth at the time of trial, as opposed to an issue to be determined at the time of sentence?

Commonwealth’s Brief at 6.

First, the Commonwealth contends the trial court misinterpreted the

Maryland statute on PBJ dispositions. The Commonwealth concedes that the

documents from the Maryland court indicate Hayes pleaded not guilty in 2011.

However, it contends, as a matter of Maryland law, Hayes’ 2011 PBJ for DWI

“could only be entered upon either a plea of guilty or nolo contendere, or a

finding of guilt beyond a reasonable doubt.” Id. at 11.

It argues the only logical “conclusion to draw, in light of the governing

[Maryland statute, is] that [Hayes] pleaded not guilty before being adjudicated

guilty and given a PBJ disposition in lieu of sentence.” Id. “Because that PBJ

could only have been entered after a finding or admission of guilt beyond a

reasonable doubt, the lower court erred in sentencing [Hayes] on a second

offense DUI,” as opposed to his third. Id. at 11-12.

In response, like the sentencing court, Hayes focuses upon the fact that

the certified document indicates he pleaded not guilty. See Hayes’ Brief at 7-

8. He claims, “The Commonwealth argued that a PBJ should at least be

treated differently than ARD, but then brazenly admitted only evidence that

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specifically said there was a plea of not guilty attached to the PBJ disposition.”

Id. at 8. In his view, “Similar to ARD, a PBJ does not result in a conviction if

the conditions are satisfied, and, therefore, the same due process concerns

[that arose in Chichkin] are present.” Id. at 9.

This issue implicates the legality of Hayes’ sentence. “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).

The General Assembly of Pennsylvania has defined “prior offense” for

sentencing purposes as “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 . . . .” 75 Pa.C.S.A. § 3806(a). At issue here is the

phrase “other form of preliminary disposition” and whether Hayes’ 2011 PBJ

disposition falls within the scope of that clause.

To make that determination, we turn to the Maryland statute governing

PBJ dispositions. The Maryland General Assembly has provided district courts

with the power to “stay the entering of judgment [of sentence]; defer further

proceedings, and place the defendant on probation . . . if . . . the defendant

gives written consent after determination of guilt or acceptance of a nolo

contendere plea.” Md.Code A., Crim. Proc. § 6-220(b)(1)(ii). But, if the

defendant violates the conditions of probation, “the court may enter judgment

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[of sentence] and proceed as if the defendant had not been placed on

probation.” Md.Code A., Crim. Proc. § 6-220(f).

Under Maryland law, a conviction is “the final judgment and sentence

rendered by the court,” while a finding of guilt is “the mere determination of

guilt.” Myers v. State, 496 A.2d 312 (Md. 1985). Thus, because the PBJ

does not impose a final judgment and sentence but only a determination of

guilt, the statute provides district courts with a procedure for a “preliminary

disposition” of the case without a formal conviction or judgment of sentence.

75 Pa.C.S.A. § 3806(a). Hence, a Maryland PBJ is a “form of preliminary

disposition” that meets the definition of “prior offense” under the Pennsylvania

law. Id.

However, here, the sentencing court declared the phrase “preliminary

disposition” in Section 3806(a) to be repugnant to the Fourteenth Amendment

to the Constitution of the United States. That Amendment dictates that “No

State shall . . . deprive any person of life, liberty, or property, without due

process of law . . . .”4 U.S. Const. amnd. XIV. Applying that provision, the

sentencing court extended the rationale of Chichkin, supra, to hold that

“preliminary disposition” was not severable from “acceptance of Accelerated

Rehabilitative Disposition,” the clause Chichkin declared unconstitutional.

____________________________________________

4 The court of common pleas first declared the phrase “preliminary offense”

unconstitutional when Hayes filed his motion in limine. The court repeated its declaration of unconstitutionality at sentencing, when the Commonwealth admitted the Maryland record to enhance Hayes’ DUI to a third offense.

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Chichkin found that the Due Process Clause bars the General Assembly

of Pennsylvania from counting an acceptance of ARD as a prior conviction for

DUI-recidivist-sentencing under 75 Pa.C.S.A. § 3806(a). We based this ruling

on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United

States, 570 U.S. 99 (2013), and held that ARD is a “pretrial disposition of

charges.” Chichkin, 232 A.3d at 967.

Relying on Alleyne, we opined that, because “prior acceptances of ARD

do not constitute convictions ‘cloaked in all the constitutional safeguards [of

due process],’ . . . they are 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 968.

We declared the “portion of 75 Pa.C.S.A. § 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.” Id. at 968. Thus, under Chichkin, acceptance of ARD may

only serve as a prior offense if the Commonwealth proves “beyond a

reasonable doubt, that the defendant actually committed the prior DUI

offense.” Id. at 971.

Here, the sentencing court combined the above logic with the fact that

the Maryland PBJ documentation indicated Hayes pleaded not guilty. The

court concluded that PBJ is the equivalent of Pennsylvania’s ARD. Thus, the

sentencing court inferred that a PBJ is not a “conviction” and, therefore, is not

“cloaked in all the constitutional safeguards” of due process. Id. at 968. This

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determination rested upon a misapprehension of Maryland criminal procedure.

The sentencing court drew a false equivalency between PBJ and ARD.

In Pennsylvania, ARD is a pretrial, diversionary program under the

control of the district attorneys’ offices. “[T]he decision to submit the case

for ARD rests in the sound discretion of the district attorney and . . . the

attorney for the Commonwealth must be free to submit a case or not submit

it for ARD consideration based on his view of what is most beneficial for

society and the offender.” Commonwealth v. Lutz, 495 A.2d 928, 935 (Pa.

1985). Thus, the defendant who successfully completes ARD never admits

guilt, nor does a court find the defendant guilty beyond a reasonable doubt.

It was the absence of any guilt determination that the Chichkin Court found

to be violative of Alleyne, supra, if an ARD disposition is later counted as a

prior offense.

By contrast, the Maryland PBJ disposition is a post-trial matter of grace

within the sentencing discretion of Maryland’s district courts. The statute

provides, “When a defendant pleads guilty or nolo contendere or is

found guilty of a crime, a court may stay the entering of judgment, defer

further proceedings, and place the defendant on probation . . . if . . . the

defendant gives written consent after determination of guilt or acceptance of

a nolo contendere plea.” Md.Code A., Crim. Proc. § 6-220(b)(1)(ii) (emphasis

added).

“The probation before judgment statute plainly requires that a

determination of guilt must precede the granting of probation before

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judgment.” Howard Cty. Dep't Of Soc. Servs. v. Linda J., 869 A.2d 404,

409 (Md. App. 2005). This requirement allows the Maryland district courts “to

revoke probation [if violated] and to impose a sentence for the original offense

without the necessity of conducting a de novo trial on the merits.” Myers,

496 A.2d at 315. Thus, Hayes’ not guilty plea has no bearing on our analysis;

the Maryland court could not have imposed PBJ disposition without a finding

of guilt or a plea of guilty or nolo contendere.

Therefore, we conclude that the due process safeguards missing from

Pennsylvania’s ARD program were present in Hayes’ 2011 DWI trial before the

District Court of Carroll County. As such, the burden-of-proof requirements

of Alleyne, supra, were satisfied through the procedural safeguards found in

Maryland law. The sentencing court erred by not treating the 2011 DWI as a

prior conviction under 75 Pa.C.S.A. § 3806(a).

Based on this conclusion, we need not address the Commonwealth’s

second issue, regarding the trial court’s declaration of unconstitutionality.

Judgment vacated. Case remanded for resentencing as a third-offense

DUI.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/02/2021

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