Com. v. Hayes, G.

• Court: Superior Court of Pennsylvania
• Decided: July 16, 2021
• Docket: 3 MDA 2021
• Status: Unpublished

Opinion

J-A16013-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.*

JUDGMENT ORDER BY KUNSELMAN, J.: FILED JULY 16, 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 It disagrees with the trial court’s

extension of Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020),

to declare new portions of 75 Pa.C.S.A. § 3806(a) (defining “Prior Offense” for

DUI purposes)2 to be unconstitutional.

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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 Prior Offense “shall mean 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), unconstitutional in part, Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020). J-A16013-21

In Chichkin, we held the Constitution of the United States prohibits the

General Assembly from counting an “Accelerated Rehabilitation Disposition”

as a prior offense. Doing so “offends the Due Process Clause and is therefore

unconstitutional.” Chichkin, 232 A.3d at 971. However, we did not perform

a severability analysis to see if the rest of the statute survived our declaration

of unconstitutionality. See id.

The trial court therefore undertook that analysis in the instant case. See

Trial Court Opinion, 2/10/21, at 6-7. It determined that a related phrase of

Section 3806(a), i.e., “or other form of preliminary disposition,” was not

severable from the portion of that statute that we deemed unconstitutional in

Chichkin. Thus, the trial court concluded the General Assembly likewise may

not count out-of-state, ARD-like dispositions as “prior offenses” under the Due

Process Clause;3 Alleyne v. United States, 570 U.S. 99, (2013); and

Apprendi v. New Jersey, 530 U.S. 466, (2000). The court held “the entire

provision of [75 Pa.C.S.A.] § 3806(a), ‘acceptance of Accelerated

Rehabilitative Disposition or other form of preliminary disposition,’ is

unconstitutional.” Trial Court Opinion, 2/10/21, at 7.

This Court may not address the merits of that holding, because we lack

subject-matter jurisdiction over this appeal. Whether we have subject-matter

jurisdiction presents a pure question of law, for which “the standard of review

3 The Due Process Clause dictates that, “No State shall . . . deprive any person

of life, liberty, or property without due process of law . . . .” U.S. Const. amnd. XIV.

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. . . is de novo, and the scope of review is plenary.” In re Admin. Order No.

1-MD-2003, 936 A.2d 1, 5 (Pa. 2007) (case citations and some punctuation

omitted). The issue of subject-matter jurisdiction “may be raised at any time

. . . including by a reviewing court sua sponte.” Id.

According to the Pennsylvania Judicial Code, the appellate jurisdiction

of this Court is residual. In other words, we have subject-matter jurisdiction

over appeals that fall outside the jurisdiction of the other appellate courts.

“Superior Court shall have exclusive appellate jurisdiction of all appeals from

final orders of the courts of common pleas . . . except such classes of appeals

as are . . . within the exclusive jurisdiction of the Supreme Court or the

Commonwealth Court.” 42 Pa.C.S.A. § 742 (emphasis added).

Among other direct appeals, the Supreme Court of Pennsylvania has

exclusive appellate jurisdiction if a “court of common pleas has held invalid

as repugnant to the Constitution . . . any statute of this Commonwealth . . .”

42 Pa.C.S.A. § 722(7). Because the trial court extended Chichkin to declare

additional words of 75 Pa.C.S.A. § 3806 unconstitutional, the Commonwealth

should have appealed directly to the Supreme Court of Pennsylvania. Under

42 Pa.C.S.A. § 705, we transfer its appeal there.

Appeal transferred to the Supreme Court of Pennsylvania.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/16/2021

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