J-A04001-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : H.C.G. : : Appellant : No. 1472 MDA 2021
Appeal from the Judgment of Sentence Entered October 18, 2021 In the Court of Common Pleas of Mifflin County Criminal Division at No(s): CP-44-CR-0000110-2021
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED: MAY 15, 2023
Appellant, H.C.G., appeals from the judgment of sentence entered on
October 18, 2021, after the trial court convicted him of, inter alia, Driving
Under the Influence (“DUI”)—General Impairment. Appellant challenges the
trial court’s denial of his motion to compel his inclusion in the Mifflin County
accelerated rehabilitative disposition (“ARD”) program.1 After careful review,
we remand for further proceedings.
On February 5, 2021, the Commonwealth charged Appellant with, inter
alia, DUI—General Impairment.2 This was Appellant’s first DUI offense. At
____________________________________________
1 ARD “is a pretrial disposition of certain cases, in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant’s successful participation in a rehabilitation program, the content of which is to be determined by the court and applicable statutes.” Commonwealth v. Lutz, 495 A.2d 928, 931 (Pa. 1985).
2 75 Pa.C.S. § 3802(a)(1). J-A04001-23
some point between February 5, 2021, and May 20, 2021, Appellant submitted
a request to the Mifflin County District Attorney’s Office that his case be
considered for admission into the ARD program. The Commonwealth denied
Appellant’s request.
On May 20, 2021, Appellant filed a motion to compel, seeking admission
into the ARD program.3 On June 8, 2021, the trial court held a hearing on
Appellant’s motion. At this hearing, the Commonwealth explained that in light
of Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), discussed
infra, the district attorney’s office had instituted a policy of “not offering ARDs
across the board for DUIs here in Mifflin County.”4
On July 19, 2021, the court denied the motion. On October 18, 2021,
Appellant proceeded to a stipulated bench trial where the court convicted him
of, inter alia, DUI. The court sentenced Appellant the same day.5
Appellant timely filed a Notice of Appeal and both he and the trial court
complied with Pa.R.A.P. 1925. Appellant raises the following issues on appeal:
1. Did the trial court abuse its discretion in holding that the Commonwealth’s denial of ARD for all [DUI] charges did not violate statutory mandates that ARD be considered in such cases as set forth in 75 Pa.C.S. § 3807 and 75 Pa.C.S. §[ ]1552 and constitute an abuse of discretion?
3 We note that Appellant styled his motion as seeking to compel the Commonwealth to move for his admission into the ARD program.
4 N.T. Hr’g, 6/8/21, at 7.
5The court sentenced Appellant to 6 months’ probation and granted him bail pending appeal.
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2. Did the trial court err in holding that the Commonwealth did not abuse its discretion in denying ARD in the instant matter when said denial was based solely as a response to the Superior Court’s decision in Chichkin,[ 232 A.3d 959] which held that ARD was no longer a “prior offense” of DUI, so said denial was patently and without doubt unrelated to the protection of society and/or the likelihood of a person's success in rehabilitation?
Appellant’s Br. at 4.
On appeal, Appellant challenges the trial court’s denial of his motion to
compel his admission into the ARD program.6 Appellant’s Br. at 8-27.
Appellant argues that the Commonwealth’s blanket refusal to admit DUI
offenders into the ARD program is impermissible, as it is not related to the
protection of the public or the defendant’s rehabilitation. Id. As a result, the
trial court erred by refusing to compel his admission into the program. Id.
After careful review, we agree.
Section 3807 of the Motor Vehicle Code states that “a defendant charged
with a violation of [S]ection 3802 (relating to [DUI]) may be considered by
the attorney for the Commonwealth for participation in an [ARD] program[.]”
75 Pa.C.S. § 3807(a)(1). The decision to submit a case for ARD is in the
discretion of the Commonwealth. Commonwealth v. LaBenne, 21 A.3d
1287, 1291 (Pa. Super. 2011). See also Pa.R.Crim.P. 310.
The Commonwealth enjoys broad discretion in determining whether to
submit a case for ARD. Commonwealth v. Pypiak, 728 A.2d 970, 972 (Pa.
Super. 1999). The Commonwealth’s discretion is cabined only by the
requirement that the “reasons [for denying ARD] must relate to the protection ____________________________________________
6 Appellant’s issues are interrelated and, thus, we address them together.
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of society or to the likelihood of the candidate’s successful rehabilitation.”
Commonwealth v. Agnew, 600 A.2d 1265, 1268 (Pa. Super. 1991).7 See
also Commonwealth v. Lutz, 495 A.2d 928, 935 (Pa. 1985) (recognizing
that the Commonwealth abuses its discretion only where it utilizes “some
criteria for admission to ARD wholly, patently and without doubt unrelated to
the protection of society and/or the likelihood of a person’s success in
rehabilitation”)
Once the Commonwealth has denied a defendant admission into ARD,
“the trial court’s role is limited to [determining] whether the Commonwealth
abused its discretion.” Commonwealth v. Sohnleitner, 884 A.2d 307, 313
(Pa. Super. 2005). A trial court’s ability to compel admission into an ARD
program is extremely limited: “the trial court cannot admit a defendant to ARD
without the Commonwealth’s motion unless there is an abuse of the district
attorney’s discretion.” Id. at 313 n.4 (citation omitted). We review the trial
court’s determination for an abuse of discretion. Commonwealth v.
Fleming, 955 A.2d 450, 453 (Pa. Super. 2008).
Finally, it is necessary to our disposition to briefly summarize the law
related to sentencing of DUI offenders. Section 3804 of the Vehicle Code sets
forth escalating mandatory minimum sentences for first, second, and
subsequent DUI offenses. 75 Pa.C.S. § 3804(a). Section 3806(a) defines the
7 Agnew also recognizes that the Commonwealth “must openly specify reasons for not submitting a case for ARD.” 600 A.2d at 1268 (citation omitted).
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term “prior offense” as including “acceptance of [ARD.]” Id. at § 3806(a). In
Chichkin, 232 A.3d at 969-71, this Court determined that Section 3806(a)’s
inclusion of acceptance of ARD in an earlier DUI prosecution as a “prior
offense” constituted a violation of due process.
At the June 8, 2021 hearing, the Commonwealth explained that in the
wake of this Court’s decision in Chichkin, it instituted a blanket policy of
refusing ARD to all defendants charged with DUI. N.T. Hr’g, 6/8/21, at 7. The
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J-A04001-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : H.C.G. : : Appellant : No. 1472 MDA 2021
Appeal from the Judgment of Sentence Entered October 18, 2021 In the Court of Common Pleas of Mifflin County Criminal Division at No(s): CP-44-CR-0000110-2021
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED: MAY 15, 2023
Appellant, H.C.G., appeals from the judgment of sentence entered on
October 18, 2021, after the trial court convicted him of, inter alia, Driving
Under the Influence (“DUI”)—General Impairment. Appellant challenges the
trial court’s denial of his motion to compel his inclusion in the Mifflin County
accelerated rehabilitative disposition (“ARD”) program.1 After careful review,
we remand for further proceedings.
On February 5, 2021, the Commonwealth charged Appellant with, inter
alia, DUI—General Impairment.2 This was Appellant’s first DUI offense. At
____________________________________________
1 ARD “is a pretrial disposition of certain cases, in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant’s successful participation in a rehabilitation program, the content of which is to be determined by the court and applicable statutes.” Commonwealth v. Lutz, 495 A.2d 928, 931 (Pa. 1985).
2 75 Pa.C.S. § 3802(a)(1). J-A04001-23
some point between February 5, 2021, and May 20, 2021, Appellant submitted
a request to the Mifflin County District Attorney’s Office that his case be
considered for admission into the ARD program. The Commonwealth denied
Appellant’s request.
On May 20, 2021, Appellant filed a motion to compel, seeking admission
into the ARD program.3 On June 8, 2021, the trial court held a hearing on
Appellant’s motion. At this hearing, the Commonwealth explained that in light
of Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), discussed
infra, the district attorney’s office had instituted a policy of “not offering ARDs
across the board for DUIs here in Mifflin County.”4
On July 19, 2021, the court denied the motion. On October 18, 2021,
Appellant proceeded to a stipulated bench trial where the court convicted him
of, inter alia, DUI. The court sentenced Appellant the same day.5
Appellant timely filed a Notice of Appeal and both he and the trial court
complied with Pa.R.A.P. 1925. Appellant raises the following issues on appeal:
1. Did the trial court abuse its discretion in holding that the Commonwealth’s denial of ARD for all [DUI] charges did not violate statutory mandates that ARD be considered in such cases as set forth in 75 Pa.C.S. § 3807 and 75 Pa.C.S. §[ ]1552 and constitute an abuse of discretion?
3 We note that Appellant styled his motion as seeking to compel the Commonwealth to move for his admission into the ARD program.
4 N.T. Hr’g, 6/8/21, at 7.
5The court sentenced Appellant to 6 months’ probation and granted him bail pending appeal.
-2- J-A04001-23
2. Did the trial court err in holding that the Commonwealth did not abuse its discretion in denying ARD in the instant matter when said denial was based solely as a response to the Superior Court’s decision in Chichkin,[ 232 A.3d 959] which held that ARD was no longer a “prior offense” of DUI, so said denial was patently and without doubt unrelated to the protection of society and/or the likelihood of a person's success in rehabilitation?
Appellant’s Br. at 4.
On appeal, Appellant challenges the trial court’s denial of his motion to
compel his admission into the ARD program.6 Appellant’s Br. at 8-27.
Appellant argues that the Commonwealth’s blanket refusal to admit DUI
offenders into the ARD program is impermissible, as it is not related to the
protection of the public or the defendant’s rehabilitation. Id. As a result, the
trial court erred by refusing to compel his admission into the program. Id.
After careful review, we agree.
Section 3807 of the Motor Vehicle Code states that “a defendant charged
with a violation of [S]ection 3802 (relating to [DUI]) may be considered by
the attorney for the Commonwealth for participation in an [ARD] program[.]”
75 Pa.C.S. § 3807(a)(1). The decision to submit a case for ARD is in the
discretion of the Commonwealth. Commonwealth v. LaBenne, 21 A.3d
1287, 1291 (Pa. Super. 2011). See also Pa.R.Crim.P. 310.
The Commonwealth enjoys broad discretion in determining whether to
submit a case for ARD. Commonwealth v. Pypiak, 728 A.2d 970, 972 (Pa.
Super. 1999). The Commonwealth’s discretion is cabined only by the
requirement that the “reasons [for denying ARD] must relate to the protection ____________________________________________
6 Appellant’s issues are interrelated and, thus, we address them together.
-3- J-A04001-23
of society or to the likelihood of the candidate’s successful rehabilitation.”
Commonwealth v. Agnew, 600 A.2d 1265, 1268 (Pa. Super. 1991).7 See
also Commonwealth v. Lutz, 495 A.2d 928, 935 (Pa. 1985) (recognizing
that the Commonwealth abuses its discretion only where it utilizes “some
criteria for admission to ARD wholly, patently and without doubt unrelated to
the protection of society and/or the likelihood of a person’s success in
rehabilitation”)
Once the Commonwealth has denied a defendant admission into ARD,
“the trial court’s role is limited to [determining] whether the Commonwealth
abused its discretion.” Commonwealth v. Sohnleitner, 884 A.2d 307, 313
(Pa. Super. 2005). A trial court’s ability to compel admission into an ARD
program is extremely limited: “the trial court cannot admit a defendant to ARD
without the Commonwealth’s motion unless there is an abuse of the district
attorney’s discretion.” Id. at 313 n.4 (citation omitted). We review the trial
court’s determination for an abuse of discretion. Commonwealth v.
Fleming, 955 A.2d 450, 453 (Pa. Super. 2008).
Finally, it is necessary to our disposition to briefly summarize the law
related to sentencing of DUI offenders. Section 3804 of the Vehicle Code sets
forth escalating mandatory minimum sentences for first, second, and
subsequent DUI offenses. 75 Pa.C.S. § 3804(a). Section 3806(a) defines the
7 Agnew also recognizes that the Commonwealth “must openly specify reasons for not submitting a case for ARD.” 600 A.2d at 1268 (citation omitted).
-4- J-A04001-23
term “prior offense” as including “acceptance of [ARD.]” Id. at § 3806(a). In
Chichkin, 232 A.3d at 969-71, this Court determined that Section 3806(a)’s
inclusion of acceptance of ARD in an earlier DUI prosecution as a “prior
offense” constituted a violation of due process.
At the June 8, 2021 hearing, the Commonwealth explained that in the
wake of this Court’s decision in Chichkin, it instituted a blanket policy of
refusing ARD to all defendants charged with DUI. N.T. Hr’g, 6/8/21, at 7. The
Commonwealth argued that the decision to refuse ARD to all DUI defendants
furthers the protection of society because it ensures that, should those
defendants commit another DUI, they will be subject to the increased
sentencing provisions for repeat DUI offenders provided by 75 Pa.C.S. §
3804(a). N.T. Hr’g at 7-23.
In support of its denial of Appellant’s motion to compel, the trial court
explained that it “was persuaded by the [Commonwealth] that the denial of
ARD for first time DUI offenses in light of Chichkin . . . is for the protection
of society.” Trial Ct. Op., 1/11/22, at 2 (unpaginated). It credited the
Commonwealth’s argument that because acceptance of ARD does not count
as a “prior offense,” permitting DUI offenders into the ARD program would
create “a danger to the public . . . in light of Chichkin.” Id.8
8 We also note that the trial court credited the Commonwealth’s explanation that “the manpower needed to keep track of repeat offenders, who have previously received ARD and expunged their record of ARD, is not available in [Mifflin C]ounty[.]” Trial Ct. Op. at 2. This excuse by the Commonwealth is (Footnote Continued Next Page)
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Chichkin, however, is no longer controlling law in Pennsylvania. In
Commonwealth v. Moroz, 284 A.3d 227, 233 (Pa. Super. 2022) (en banc),
this Court “expressly overrule[d] Chichkin” and held that the Motor Vehicle
Code’s recognition of acceptance of ARD as a prior conviction “for purposes of
imposing a Section 3804 mandatory minimum sentence, passes constitutional
muster.” Since this Court has overruled Chichkin, the Commonwealth’s
blanket policy of ARD refusal to DUI defendants is arbitrary and bears no
relation to the protection of society or the potential for successful
rehabilitation of the offender. The Commonwealth’s refusal to admit Appellant
into ARD based on this policy was, thus, an abuse of its discretion.9
Considering the above, we remand this case for the trial court to conduct
an ARD hearing pursuant to Pa.R.Crim.P. 312 and 313 and proceed
unavailing; the failure by the Office of the District Attorney (“DA”) to allocate necessary resources to track individuals who have received ARD is not related to the protection of society or rehabilitation of the offender but, rather, the DA’s office’s determination of resource allocation.
9 The trial court’s failure to admit Appellant into the ARD program is likewise an abuse of discretion. We recognize that this Court decided Moroz during the pendency of Appellant’s direct appeal. The trial court was, thus, proceeding according to the law in effect at the time it rendered its decision. Appellant is nonetheless entitled to application of Moroz on direct appeal. See Commonwealth v. Moore, 263 A.3d 1193, 1199 (Pa. Super. 2021).
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accordingly.10 As a result of our disposition, we vacate Appellant’s October 18,
2021 conviction and judgment of sentence.11
Conviction and judgment of sentence vacated. Case remanded.
Jurisdiction relinquished.
Judge McCaffery joins the memorandum.
Judge Stabile files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 05/15/2023
10 ARD is governed by Pa.R.Crim.P. 310-320 and 75 Pa.C.S. § 3807.
11We note that because we vacate Appellant’s conviction for a reason other than insufficient evidence or prosecutorial misconduct, the Double Jeopardy Clause would not preclude retrial for the instant charges should Appellant not qualify for, refuse to accept, or fail to complete ARD. See Commonwealth v. Johnson, 231 A.3d 807, 820 (Pa. 2020). See also Commonwealth v. McMullen, 721 A.2d 370, 371 (Pa. Super. 1998) (explaining that “the Double Jeopardy Clause does not impose a limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed solely because of insufficiency of the evidence” (citation and quotation marks omitted)).
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