Com. v. Hind, R.

2023 Pa. Super. 196, 304 A.3d 413

• Court: Superior Court of Pennsylvania
• Decided: October 10, 2023
• Docket: 1787 EDA 2022
• Status: Published

Opinion

J-S13004-23 J-S13005-23 2023 PA Super 196

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ROBERT CHARLES HIND : No. 1787 EDA 2022

Appeal from the Judgment of Sentence Entered June 3, 2022 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000173-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ALEXANDER JOSEPH WIESENBERG : No. 1789 EDA 2022

Appeal from the Judgment of Sentence Entered June 3, 2022 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000146-2021

BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY NICHOLS, J.: FILED OCTOBER 10, 2023

In these two appeals,1 the Commonwealth appeals from judgments of

sentence imposed after Robert Charles Hind and Alexander Joseph

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 We address both these appeals together, pursuant to Pa.R.A.P. 513. These cases involve not only the same issue, but the appeals were filed by the same (Footnote Continued Next Page) J-S13004-23 J-S13005-23

Wiesenberg (collectively, Appellees) each pled guilty to driving under the

influence (DUI) of alcohol—highest rate. In both appeals, the Commonwealth

argues that the trial court should have treated Appellees’ prior acceptance of

Accelerated Rehabilitative Disposition (ARD) for a DUI charge as a prior

offense for sentencing purposes in accordance with Commonwealth v.

Richards, 284 A.3d 214 (Pa. Super. 2022) (Richards I) (en banc), appeal

granted, 294 A.3d 300 (Pa. 2023) (Richards II) (per curiam order), and

Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. 2022) (en banc). After

careful review, we affirm the judgments of sentence.

The relevant facts and procedural history underlying each appeal is as

follows:

Commonwealth v. Hind - 1787 EDA 2022

Hind was arrested for DUI and related traffic offenses following a vehicle

stop on October 7, 2020. The Commonwealth filed bills of information

charging Hind with DUI—general impairment (second offense) and DUI—

highest rate of alcohol (second offense).2 On February 17, 2022, Hind entered

a guilty plea to DUI—highest rate of alcohol.

assistant district attorney and both judgments of sentence were imposed by the same trial court judge. The briefs for the Commonwealth and the trial court opinions in both appeals are virtually identical. See, e.g., Commonwealth v. Chichkin, 232 A.3d 959, 961 n.1 (Pa. Super. 2020) (addressing related appeals in a single opinion).

2 75 Pa.C.S. §§ 3802(a)(1) and (c), respectively.

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On June 3, 2022, the trial court conducted a sentencing hearing. At that

time, the Commonwealth argued that Hind’s DUI conviction should be

considered a second offense because he had completed ARD for a DUI charge

within the previous ten years. N.T. Sentencing Hr’g (Hind), 6/3/22, at 4.

Ultimately, the trial court concluded that it would consider Hind a first-time

offender for sentencing purposes in accordance with Chichkin. See

Chichkin, 232 A.3d at 969-71 (holding that 75 Pa.C.S. § 3806(a), which

classified ARD as a prior offense in a DUI prosecution, violates due process),

overruled by Richards I, 284 A.3d at 220, and Moroz, 284 A.3d at 233.

Therefore, the trial court sentenced Hind to a term of 72 hours to six months’

incarceration, the mandatory minimum sentence for DUI—highest rate (first

offense), plus mandatory fines and court costs. See 75 Pa.C.S. § 3804(c)(1).

The Commonwealth filed a timely notice of appeal and a court-ordered

Pa.R.A.P. 1925(b) statement. The trial court filed a Rule 1925(a) opinion

addressing the Commonwealth’s claim.

Commonwealth v. Wiesenberg - 1789 EDA 2022

Wiesenberg was arrested for DUI and related traffic offenses following

a vehicle stop on October 21, 2020. The Commonwealth filed bills of

information charging Appellee with, inter alia, DUI—general impairment

(second offense) and DUI—highest rate of alcohol (second offense). On

February 17, 2022, Appellee entered a guilty plea to DUI—highest rate of

alcohol.

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On June 3, 2022, the trial court conducted a sentencing hearing. At that

time, the Commonwealth argued that Appellee’s DUI conviction should be

considered a second offense because he had a prior DUI-related ARD within

the previous ten years. N.T. Sentencing Hr’g, 6/3/22 (Wiesenberg), at 6-7.

Ultimately, just as in Hind, the trial court concluded that Wiesenberg would

be considered a first-time offender for sentencing purposes in accordance with

Chichkin. Therefore, the trial court sentenced Appellee to a term of 72 hours

to six months’ incarceration plus mandatory fines and court costs.

The Commonwealth filed a timely notice of appeal and a court-ordered

Pa.R.A.P. 1925(b) statement. The trial court filed a Rule 1925(a) opinion

addressing the Commonwealth’s claim.3

Analysis

In both appeals, the Commonwealth raises the following issue for our

review:

Whether the sentence imposed is an illegal sentence, when [Appellee’s] acceptance of ARD for DUI should qualify as a prior offense for the purposes of the DUI sentencing enhancement provisions at 75 Pa.C.S. § 3803, 75 Pa.C.S. § 3804, and 75

3 While this appeal was pending, on January 6, 2023, James R. Elliott, Esq.,

filed a praecipe to enter his appearance on behalf of Wiesenberg. On April 4, 2023, Wiesenberg sent this Court a pro se correspondence, in which he indicated that he may have been abandoned by counsel. This Court entered an order on May 4, 2023, directing the trial court to determine whether Attorney Elliott abandoned Wiesenberg and, if necessary, to take further action as required to protect Wiesenberg’s rights. Order, 1789 EDA 2022, 5/4/23. The trial court, after holding a hearing, appointed Matthew J. Galasso, Esq., to represent Wiesenberg. Attorney Galasso subsequently filed an appellate brief on Wiesenberg’s behalf.

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Pa.C.S. § 3806, contrary to the holding of Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020)?

Commonwealth’s Brief (Hind) at 4; Commonwealth’s Brief (Wiesenberg) at

4 (formatting altered).

In its sole issue on appeal, the Commonwealth contends that the trial

court imposed illegal sentences when it imposed the mandatory minimum

sentence for a first DUI offense. In support, the Commonwealth reiterates

that Hind entered the ARD program in 2014, and Wiesenberg entered the ARD

program in 2021, both of which were during the ten-year lookback period for

DUI offenses. Commonwealth’s Brief (Hind) at 14-15; Commonwealth’s Brief

(Wiesenberg) at 14-15. Therefore, the Commonwealth concludes that in

accordance with Richards I and Moroz, we should vacate Appellees’

respective sentences and remand for resentencing.

In reviewing the Commonwealth’s claim, we are guided by the following

principles:

Issues relating to the legality of a sentence are questions of law. When the legality of a sentence is at issue, our standard of review over such questions is de novo and our scope of review is plenary. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated.

Commonwealth v. Ramos, 197 A.3d 766, 768-69 (Pa. Super. 2018)

(citations omitted and formatting altered).

As noted previously, the trial court sentenced Appellees as first-time

offenders based on this Court’s decision in Chichkin. However, while the

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instant appeal was pending, an en banc panel of this Court overruled Chichkin

and held that, “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.” Richards I, 284 A.3d at 220; see

also Moroz, 284 A.3d at 233 (same).4,5

Following Richards I and Moroz, this Court has held that a defendant

who completed the ARD program for a DUI offense within the ten-year

lookback period of Section 3806 should be treated as a second-time offender

for purposes of DUI sentencing. See Commonwealth v. Hummel, 295 A.3d

719, 721 (Pa. Super. 2023) (vacating the defendant’s judgment of sentence

and remanding for resentencing); see also Commonwealth v. Scheppard,

2261 EDA 2022, 2023 WL 4417518, at *2-3 (Pa. Super. filed July 10, 2023)

(unpublished mem.) (applying Hummel and vacating a defendant’s judgment

4 As noted above, our Supreme Court has granted an appeal from this Court’s

decision in Richards I, on the question of whether the sentencing scheme set forth in the DUI statute regarding the classification of acceptance of ARD is constitutional. See Richards II, 294 A.3d at 300-01. However, because our Supreme Court has not yet decided this issue, we remain bound by existing precedent. See Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (stating that we are bound by existing precedent until such time it is overturned).

5 We note that the Pennsylvania Supreme Court recently addressed this Court’s application of Chichkin in Commonwealth v. Verbeck, 290 A.3d 260 (Pa. 2023). However, because the Verbeck Court was equally divided, we can derive no precedential value from that decision. See Commonwealth v. Mosley, 114 A.3d 1072, 1082 n.11 (Pa. Super. 2015) (stating that “[w]hen a judgment of sentence is affirmed by an equally divided court . . . no precedent is established and the holding is not binding on other cases” (citation omitted)).

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of sentence and remanding for resentencing for a second-offense DUI after

the defendant completed the ARD program for a DUI offense within the ten-

year lookback).

Our Supreme Court has mandated that all Pennsylvania courts,

appellate and trial courts alike, are duty bound to apply the law in effect at

the time of a decision. See Behers v. Unemployment Compensation Bd.

of Review, 842 A.2d 359, 367 (Pa. 2004) (explaining that it is the duty of

the “courts below . . . to effectuate the decisional law of [our Supreme]

Court”); see also Smith v. A.O. Smith Corp., 270 A.3d 1185, 1194 (Pa.

Super. 2022) (noting that trial courts are bound by existing precedent), appeal

denied, 283 A.3d 1247 (Pa. 2022); Commonwealth v. Seskey, 170 A.3d

1105, 1109 (Pa. Super. 2017) (holding that this Court is bound to follow our

Supreme Court’s decisional law). Further, litigants are entitled to the benefit

of changes in the law that occur before the judgment is final.

Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018); see

also Hummel, 295 A.3d at 721 (applying Chesney to conclude that the

Commonwealth benefited from a change in the law that occurred while the

Commonwealth's appeal was pending).

Here, in both cases, the record reflects that at sentencing, the

Commonwealth acknowledged that the trial court had no choice but to

sentence Appellees as first-time DUI offenders pursuant to Chichkin, which

was in effect at the time of both sentencing hearings. See N.T. Sentencing

Hr’g (Hind), 6/3/22, at 7; N.T. Sentencing Hr’g (Wiesenberg), 6/3/22, at 6.

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However, the Commonwealth did not request that the trial court stay

Appellees’ sentences while the instant appeals were pending. The

Commonwealth also made the following argument:

[T]he Commonwealth does believe that there is an argument against [sentencing Appellee as a first-time DUI offender], and that argument is currently pending in [the appellate courts]. We do believe that this is something that could potentially change, and we do believe it has a significant merit in order to allow the Commonwealth to see these DUI offenses with an underlying ARD offense prior to it being graded in the future as a subsequent . . . DUI. However, in this case, it would be a second [offense]. So, Your Honor I do believe that at this point in time although the Commonwealth believes that it should be graded as a second offense DUI the case law does not allow for that. However, that may change given the pending cases that are up on [a]ppeal.

N.T. Sentencing Hr’g (Hind), 6/3/22, at 7-8.6

In his brief, Hind notes that he has finished serving his sentence for DUI

in its entirety and is no longer under the supervision of Pike County Probation

and Parole Department. Hind’s Brief at 6. The record further reflects that

Hind has paid the fines, costs, and fees associated with this case in their

entirety. See Trial Ct. Criminal Docket at CP-52-CR-0000173-2021 (Hind);

R.R. at 13a.7 Therefore, Hind argues that “it would be unjust to reopen this

matter as Chichkin was controlling during the plea, sentencing, and

completion of the sentence.” Hind’s Brief at 6. Likewise, Wiesenberg states

6The Commonwealth made a virtually identical argument in Wiesenberg. N.T. Sentencing Hr’g (Wiesenberg), 6/3/22, at 6-7.

7 We may refer to the reproduced record for the parties’ convenience.

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that he completed serving his sentence in its entirety, is no longer under the

supervision of Pike County Probation and Parole Department, and has paid all

fines, fees, and costs associated with his conviction. See Trial Ct. Criminal

Docket at CP-52-CR-0000146-2021 (Wiesenberg); Wiesenberg’s Brief at 20.

Wiesenberg argues that being subject to resentencing would be a violation of

his rights against double jeopardy, as he is entitled to an expectation of finality

in his sentence. Id. at 19.

Initially, we note that although Hummel and Scheppard8 involved

circumstances similar to the instant case, neither of those decisions addressed

double jeopardy. Therefore, we conclude that the holdings in Hummel and

Scheppard are distinguishable from the instant appeal.9

The Double Jeopardy Clause in the Fifth Amendment to the United

States Constitution and Article I, Section 10 of the Pennsylvania Constitution

8 Scheppard involved a nearly identical factual and procedural posture as the

instant appeals, as these appeals and Scheppard are Commonwealth appeals from judgments of sentence entered by the Court of Common Pleas of Pike County in which the trial court sentenced prior participants in the ARD program as first-time offenders pursuant to Chichkin. See Scheppard, 2023 WL 4417518 at *1. We further acknowledge that there may be other cases pending before this Court raising similar issues and with similar procedural postures. Those cases will be addressed in separate dispositions.

9 The defendant in Hummel did not file an appellate brief with this Court in

response to the Commonwealth’s appeal. Pursuant to this Court’s disposition, the trial court in Hummel re-sentenced the defendant on June 19, 2023. Neither party appealed from the trial court’s June 19, 2023 judgment of sentence. See Court of Common Pleas of Adams County Criminal Docket at CP-01-CR-0000309-2022.

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provide that no person may be “twice put in jeopardy” for the same offense.

U.S. Const., amend. V; Pa. Const. Art. I, § 10. The Double Jeopardy Clause

“protects a defendant in a criminal proceeding against multiple punishments

or repeated prosecutions for the same offense.” United States v. Dinitz,

424 U.S. 600, 606 (1976) (citations and footnote omitted). Our Supreme

Court has held that a sentence that exposes a defendant to double jeopardy

is an illegal sentence. Commonwealth v. Hill, 238 A.3d 399, 411 (Pa. 2020).

However, the protection against double jeopardy does not attach until

after the defendant has a legitimate expectation of finality in the sentence.

Commonwealth v. Kunish, 602 A.2d 849, 852-53 (Pa. 1992). This Court

has explained that “[w]here a sentence is statutorily subject to appeal by the

defendant or the Commonwealth, the defendant has no legitimate expectation

of finality in his sentence and double jeopardy protection does not attach.”

Commonwealth v. Minnis, 83 A.3d 1047, 1050-51 (Pa. Super. 2014) (en

banc) (citations omitted); see also Commonwealth v. Postell, 693 A.2d

612, 614-16 (Pa. Super. 1997) (finding no violation of the defendant’s double

jeopardy rights when the trial court imposed a longer minimum sentence

based on the Commonwealth’s post-sentence motion). However, a defendant

has an expectation of finality in his sentence once an appeal has concluded or

when the period in which an appeal can be filed has expired. See generally

Commonwealth v. Jones, 554 A.2d 50, 52 (Pa. 1989).

In Hess, an en banc panel of this Court considered the double jeopardy

implications of resentencing a defendant who had already finished serving his

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original sentence. Commonwealth v. Hess, 502 A.2d 707, 709 (Pa. Super.

1985) (en banc). In that case, the defendant pled guilty to one count of DUI.

Id. at 708. At sentencing, the Commonwealth argued that the defendant had

been convicted of a previous DUI offense during the statutory lookback period

and was therefore subject to a higher mandatory minimum sentence. Id.

Despite the Commonwealth’s arguments, the trial court “refused to consider

any prior convictions of [the defendant] because the criminal information did

not allege any prior convictions.” Id.

On appeal, the Hess Court concluded that because the trial court failed

to properly apply the mandatory minimum sentence statute, the defendant’s

sentence was illegal. Id. at 709. Further, the Court explained that the DUI

statute in effect at the time of the defendant’s sentencing permitted the

Commonwealth to appeal from a judgment of sentence if the mandatory

minimum sentence was not properly imposed. Id. at 710. The Court

ultimately concluded that in a situation where the trial court imposes an illegal

judgment of sentence, and the sentencing statute at issue grants the

Commonwealth the right to appeal, it “leaves open the possibility of the

original sentence being vacated because it is not in compliance with the

statute and the proper, legislatively mandated, increased minimum sentence

being imposed.” Id. at 711. Therefore, this Court vacated the defendant’s

illegal judgment of sentence and remanded the case for re-sentencing, even

though the defendant had already served the underlying sentence in its

entirety. Id.

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In Commonwealth v. Sojourner, 518 A.2d 1145 (Pa. 1986), our

Supreme Court granted review in two cases where the defendants had been

convicted and sentenced for DUI, both of whom were first-time DUI offenders.

Sojourner, 518 A.2d at 1146. The Philadelphia Municipal Court imposed a

sentence on each defendant of one year of probation on the condition that the

defendants receive treatment for alcoholism.10 Id. Ultimately, the Sojourner

Court concluded that because the sentencing provision set forth in the DUI

statute was mandatory, the trial court was precluded from exercising its

discretion to impose a sentence that was less than the statutory minimum.

Id. at 1148. The Court then explained that “[t]he United States Supreme

Court has held that where punishment pursuant to a statute is clear and

explicit, principles of double jeopardy are not violated where that statute

permits authorities to obtain an increased sentence on appeal.” Id. at 1149

(citation omitted). Therefore, to the extent resentencing on the DUI offenses

could potentially affect the defendants’ double jeopardy rights, the Sojourner

Court concluded that it was “amply apparent that resentencing pursuant to

[the DUI sentencing statute] does not violate federal double jeopardy

standards[]” or the double jeopardy guarantee included in the Pennsylvania

constitution. Id. at 1149 & n.6 (citations omitted).

10 The mandatory minimum sentence in effect at the time the Sojourner defendants were sentenced required a sentencing court to impose a term of imprisonment of not less than forty-eight consecutive hours and a fine of not less than $300.00. 75 Pa.C.S. § 3731(e)(1)(i) (repealed eff. Feb. 1, 2004).

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Here, unlike the sentence in Hess, it is undisputed that Appellees’

sentences were legal at the time they were imposed. Cf. Hess, 502 A.2d at

709 (noting that the defendant’s sentence was patently illegal at the time it

was imposed because the trial court did not apply the mandatory minimum

sentence statute).11 Further, unlike the defendants in Sojourner, both

Appellees have completed serving their sentences. See Sojourner, 518 A.2d

at 1146 (reflecting that the defendants had received a suspended sentence,

which had the practical effect of staying the sentence until the defendants

completed alcohol treatment). Therefore, we conclude that both Hess and

Sojourner are distinguishable.

Additionally, our research has not revealed any Pennsylvania appellate

court decisions vacating a sentence that was legal at the time it was imposed

and remanding for resentencing because of changes in case law that were not

in effect until after the defendant completed serving the underlying sentence

in its entirety. Cf. Hess, 502 A.2d at 709 (remanding for resentencing despite

the fact that the defendant had already served sentence in its entirety because

the trial court imposed an illegal sentence that was not authorized by current

authority).

When confronted with an issue not yet decided “by the courts of this

Commonwealth, we may turn to the courts of other jurisdictions. . . . for

11 We do note, however, that the current DUI sentencing statute does permit

the Commonwealth to appeal from a judgment of sentence that does not comply with the DUI sentencing scheme. See 75 Pa.C.S. § 3804(h).

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guidance to the degree we find them useful and not incompatible with

Pennsylvania law.” Commonwealth v. Manivannan, 186 A.3d 472, 483-84

(Pa. Super. 2018) (citation omitted and formatting altered).

In Massachusetts, appellate courts have considered the following factors

when determining whether a defendant had an expectation of finality in a

sentence: (1) whether the underlying sentence was legal or illegal; (2) the

timeliness of the motion to revise or revoke the sentence; (3) whether a

motion to stay the execution of sentence pending appeal has been filed; and

(4) whether the sentence has already been fully served. Commonwealth v.

Ellsworth, 146 N.E.3d 1121, 1127 (Mass. 2020). We note, however, that

Massachusetts case law prohibits resentencing a defendant who has already

served the entirety of the original underlying sentence. Commonwealth v.

Scott, 22 N.E.3d 171, 173-74 (Mass. App. 2015); see also Commonwealth

v. Parillo, 14 N.E.3d 919, 921 (Mass. 2014) (stating that a judge may not

resentence the defendant on convictions “for which the defendant has already

served his sentence, because any such resentencing would result in an

increase in punishment in violation of double jeopardy principles” (citation

omitted)).

Similarly, in New York, criminal defendants have a legitimate

expectation of finality in a completed sentence; however, that expectation

does not apply until either an appeal has been completed or the time for filing

an appeal has expired. See People v. Williams, 925 N.E.2d 878, 891 (N.Y.

2010).

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In Pennsylvania, we recognize that Section 3804(h) of the Motor Vehicle

Code provides the Commonwealth with the authority to appeal from a

judgment of sentence that does not comply with the applicable mandatory

minimum sentence provisions. See 75 Pa.C.S. § 3804(h). However, in the

instant case, at the time the trial court imposed its judgment of sentence on

June 3, 2022, Chichkin remained in effect, and would remain so until October

4, 2022, when an en banc panel of this Court overturned Chichkin in

Richards I. We acknowledge that Appellees’ original sentences that were

legally imposed on June 3, 2022, are now inconsistent with this Court’s

October 4, 2022, en banc decision, Richards I, which is pending review

before our Supreme Court. See Richards II, 294 A.3d at 300-01. However,

Appellees have completed serving their sentences. Indeed, the record reflects

that Appellees have served their respective sentences in their entirety, are no

longer under the supervision of the Pike County Probation and Parole

Department, and have paid all fines, fees, and costs associated with their

respective convictions.

Under the unique and limited circumstances in this case, we conclude

that because Appellees served their entire sentences for their underlying DUI

convictions, and the judgments of sentence imposed in their respective cases

were legal at the time they were imposed, vacating Appellees’ judgments of

sentence and remanding for resentencing would violate Appellees’

constitutional protections against double jeopardy.

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In reaching this conclusion, we are fully aware of the Pennsylvania case

law which states that there is no expectation of the finality of sentence for

double jeopardy purposes in cases where the Commonwealth has the

statutory right to appeal from the judgment of sentence. See Minnis, 83

A.3d at 1050-51; 75 Pa.C.S. § 3804(h). Instantly, however, given the

pendency of appellate review for certain Chichkin related cases, the

Commonwealth, at the time of the June 3, 2022 sentencing of Appellees,

chose not to request the trial court to stay Appellees’ sentences. Accordingly,

the trial court properly imposed its sentences consistent with then-controlling

case law, which it is duty bound to do, and Appellees completed serving their

sentences. As we have discussed, other jurisdictions, under similar

circumstances, have determined that the interests of justice are best served

by concluding that a defendant may not be resentenced after serving the

underlying sentence in its entirety. These cases although not binding, are

instructive for consideration by our courts. See Scott, 22 N.E.3d at 173-74;

Williams, 925 N.E.2d at 891.

For these reasons, under current Pennsylvania law, we hold that

instantly, Appellees have a legitimate expectation of the finality of their

completed sentences, which were legal and proper when imposed by the trial

court. Cf. Sojourner, 518 A.2d at 1146-49. Under these circumstances,

even if the Commonwealth had the statutory right to appeal, we conclude that

a new sentence would violate the constitutional protections guaranteed to

Appellees against double jeopardy under the United States Constitution and

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the Pennsylvania Constitution. See U.S. Const., amend. V; Pa. Const. Art. I,

§ 10. Accordingly, we affirm.

Judgments of sentence affirmed. Jurisdiction relinquished.

Date: 10/10/2023

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