Com. v. Roebuck, R.

• Court: Superior Court of Pennsylvania
• Decided: March 27, 2023
• Docket: 820 MDA 2022
• Status: Unpublished

Opinion

J-S44024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : RONALD PAUL ROEBUCK : No. 820 MDA 2022

Appeal from the Judgment of Sentence Entered May 6, 2022 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0001105-2021

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 27, 2023

The Commonwealth appeals from the judgment of sentence entered

following Ronald Paul Roebuck’s guilty plea to driving under the influence

(“DUI”) – highest rate of alcohol.1 The Commonwealth argues that the court

should have sentenced him as a second-time DUI offender based on his prior

DUI that resulted in him being placed in the Accelerated Rehabilitative

Disposition (“ARD”) program. Due to this Court’s recent overruling of

Commonwealth v. Chichkin, 232 A.3d 959 (Pa.Super. 2020), we vacate the

judgment of sentence and remand for resentencing.

In February 2022, Roebuck pleaded guilty to the above offense. He had

previously been accepted into and completed ARD in 2021 for a prior DUI

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. 3802(c). J-S44024-22

conviction. At sentencing, the Commonwealth argued that the ARD counted

as a prior offense, thereby making his current DUI conviction a second offense,

increasing Roebuck’s sentencing exposure. At the time of sentencing,

Chichkin was binding precedent. In Chichkin, a three-judge panel of this

Court concluded that “prior acceptances of ARD cannot be categorized as ‘prior

convictions’ exempt from the holding of Apprendi [v. New Jersey, 530 U.S.

466 (2000)] and Alleyne [v. United States, 570 U.S. 99 (2013)].” 232 A.3d

at 967. This Court also concluded that “the particular provision of 75

Pa.C.S.[A.] § 3806(a), which defines a prior acceptance of ARD in a DUI case

as a ‘prior offense’ for DUI sentencing enhancement purposes, offends the

Due Process Clause and is therefore unconstitutional.” Id. at 971. Relying on

Chichkin, the trial court rejected the Commonwealth’s argument and

sentenced Roebuck as a first-time DUI offender. This timely appeal followed.

The Commonwealth raises one issue:

Whether the Superior Court erred in holding for DUI sentencing purposes that [Roebuck]’s conviction was a second in ten years offense as opposed to a third in ten years based upon the defective holding in Commonwealth v. Chichkin, 232 A.3d 959 (Pa.Super. 2020) that acceptance of ARD could not be treated as a prior offense?

Commonwealth’s Br. at 6.

During the pendency of this appeal, this Court sitting en banc overruled

Chichkin. See Commonwealth v. Richards, 284 A.3d 214, 220 (Pa.Super.

2022) (en banc) (expressly overruling Chichkin); Commonwealth v.

Moroz, 284 A.3d 227, 233 (Pa.Super. 2022) (en banc) (same). In Richards,

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we noted that the Vehicle Code expressly states that a prior acceptance of

ARD constitutes a conviction for purposes of sentencing. 284 A.3d at 220. We

found that defendants accepting ARD were on notice that their doing so would

count as a prior conviction for purposes of sentencing on any later DUI

conviction because it was written into the statute, and defendants are

presumptively aware of relevant statutes. Id. We thus found no due process

violation in treating ARD as a prior conviction since “a defendant voluntarily

enters the ARD program to avoid prosecution on a first DUI charge, and he is

free to reject participation in the program if he wishes to avail himself of his

full panoply of constitutional rights.” Id. (emphasis in original). We expressly

overruled Chichkin and held “that the portion of 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.”

Id. We did the same in Moroz. 284 A.3d at 233.

Richards and Moroz apply here. See Commonwealth v. Cabeza, 469

A.2d 146, 148 (Pa. 1983) (stating “where an appellate decision overrules prior

law and announces a new principle, unless the decision specifically declares

the ruling to be prospective only, the new rule is to be applied retroactively to

cases where the issue in question is properly preserved at all stages of

adjudication up to and including any direct appeal”). We vacate the judgment

of sentence and remand for resentencing consistent with Richards and

Moroz.

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Judgment of sentence vacated. Case remanded. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/27/2023

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