Com. v. Richards, J.

2022 Pa. Super. 170, 284 A.3d 214

• Court: Superior Court of Pennsylvania
• Decided: October 4, 2022
• Docket: 1673 EDA 2020
• Status: Unpublished

Opinion

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2022 PA Super 170

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JONATHAN RICHARDS : : Appellant : No. 1673 EDA 2020

Appeal from the Judgment of Sentence Entered August 19, 2020 In the Court of Common Pleas of Bucks County Criminal Division at No: CP-09-CR-0000738-2020

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., STABILE, J., KUNSELMAN, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

CONCURRING OPINION BY STABILE, J.: FILED OCTOBER 4, 2022

I concur fully in the Majority’s decision to overrule this Court’s prior

panel decision in Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super.

2020). Chichkin did not accord our Legislature the deference due its

judgment to declare that a prior acceptance into the accelerated rehabilitative

disposition (ARD) program in the prosecution of a driving under the influence

(DUI) reoffender shall be considered as a "prior offense" for DUI sentencing

enhancement purposes as per 75 Pa.C.S.A. § 3806(a). A defendant who

reoffends after being given the grace of accepting ARD for DUI demonstrates

that he or she is not worthy of the chance to rehabilitate themselves in

exchange for forgoing a criminal conviction. Consequently, our Legislature

declared that if a defendant reoffends, prior acceptance of ARD shall be

considered a “prior offense” for sentencing purposes. Our Legislature was well J-E01004-22

within its prerogative to increase punishment for re-offense of this serious

crime. Plain and simple, drunk driving kills people.1

I write separately, however, to address the statement in Chichkin,

relying upon Alleyne,2 that “if the Commonwealth seeks to enhance a

defendant’s DUI sentence based upon that defendant’s prior acceptance of

ARD, it must prove, beyond a reasonable doubt, that the defendant actually

committed the prior DUI offense.” Id. at 970-71 (footnote omitted). The

Commonwealth here did so during sentencing in the belief that proving the

fact of the prior ARD would resolve any Alleyne problem. As well-intentioned

as that effort may have been, it did not solve the Alleyne problem.

In Alleyne, the United States Supreme Court, held “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be submitted

to the jury and found beyond a reasonable doubt.” Alleyne, 570 U.S. at 103.

Establishing the fact of a prior ARD at sentencing during an evidentiary hearing

conducted only by the sentencing judge, without the benefit of Section

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1 Sadly, it appears that many people do not consider driving while impaired to

be a serious offense. In the continuation of a twenty year campaign known as Operation Nighthawk, the Pennsylvania State Police announced the arrests of 492 individuals who were driving under the influence of alcohol or controlled substances during a two-day detail on August 12-13, 2022. See https://www.abc27.com/local-news/operation-nighthawk-nets-nearly-500- dui-arrests-in-pennsylvania/

2 Alleyne v. United States, 570 U.S. 99 (2013).

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3806(a), does not satisfy a defendant’s right to have all facts that increase

the penalty for a crime determined by a jury.

Alternatively, I also have serious concerns about attempting to prove a

prior ARD during the trial of a current DUI offense. As a general rule, evidence

of a defendant’s other crimes or wrongful acts is not admissible to prove the

current offense being tried. See Pa.R.E. 404(b). The impact of introducing

evidence of other crimes is significant and may be highly prejudicial.

Commonwealth v. Hicks, 156 A.3d 1114, 1128 (Pa. 2017). Were we to

affirm the panel decision in Chichkin, the practical effect of doing so would

likely be a complete inability of the Commonwealth to seek a sentencing

enhancement for a defendant who is a DUI reoffender. Given this dilemma,

it is likely that prosecutors would substantially curtail their discretion to offer

ARD, thus defeating the use of a program designed to encourage offenders to

make a fresh start after participation in a rehabilitative program. See Majority

Opinion, at 6-7.

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