Com. v. Saum, C.

• Court: Superior Court of Pennsylvania
• Decided: July 18, 2024
• Docket: 1523 MDA 2023
• Status: Unpublished

Opinion

J-S19028-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CODY EDWARD SAUM : : Appellant : No. 1523 MDA 2023

Appeal from the Judgment of Sentence Entered October 16, 2023 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000168-2023

BEFORE: DUBOW, J., BECK, J., and COLINS, J.*

MEMORANDUM BY BECK, J.: FILED: JULY 18, 2024

Cody Edward Saum (“Saum”) appeals from the judgment of sentence

imposed by the Adams County Court of Common Pleas (“trial court”) following

his conviction of driving under the influence (“DUI”) and obstructing

administration of law.1 On appeal, Saum argues that the trial court erred in

determining that his DUI conviction should be treated as his second offense

when he completed Accelerated Rehabilitative Disposition (“ARD”) for his first

DUI offense. We affirm.

On January 28, 2023, Trooper Jeffrey Allen stopped a vehicle driven by

Saum after observing Saum commit several violations of the Pennsylvania

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(a)(1), 5101. J-S19028-24

Vehicle Code.2 Upon approaching the vehicle, Trooper Allen observed Saum’s

eyes were bloodshot and glassy and he detected a strong odor of alcohol.

Trooper Allen then conducted field sobriety tests during which Saum showed

multiple signs of intoxication. Trooper Allen attempted to administer a breath

test, but Saum refused. He then arrested Saum. Subsequently, Saum refused

to consent to a blood draw. After a warrant was obtained to draw blood, Saum

again refused to consent. The Commonwealth charged Saum with numerous

crimes, including DUI as a second offense based on a prior ARD-DUI conviction

from 2022.

The case proceeded to a stipulated bench trial. The trial court found

Saum guilty of the above crimes. The case proceeded to sentencing, where

Saum requested that the trial court not consider his prior ARD-DUI offense as

a first offense for sentencing purposes. Ultimately, the trial court rejected

Saum’s request and sentenced him to sixty months of probation with

restrictive conditions, including ninety days of house arrest with electronic

monitoring.

Saum filed a timely appeal. Saum presents the following issue for

review: “Did the [t]rial [c]ourt err when considering [Saum’s] prior DUI-ARD

as a first offense for purposes of sentencing?” Saum’s Brief at 4.

2 75 Pa.C.S. §§ 101-9910.

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We begin our analysis by acknowledging that “a claim that the court

improperly graded an offense for sentencing purposes implicates the legality

of a sentence.” Commonwealth v. Seladones, 305 A.3d 83, 85 (Pa. Super.

2023) (citation omitted). For issues challenging the legality of a sentence,

“our standard of review is de novo and our scope of review is plenary.” Id.

(citation omitted).

Saum argues that Commonwealth v. Chichkin, which held that prior

acceptance of ARD for purposes of imposing a sentence for a subsequent DUI

offense was unconstitutional, should be controlling in this case. Saum’s Brief

at 8, 9 (citing Commonwealth v. Chichkin, 232 A.3d 959, 971 (Pa. Super.

2020), overruled by Commonwealth v. Richards, 284 A.3d 214, 220 (Pa.

Super. 2022) (en banc), appeal granted, 294 A.3d 300 (Pa. 2023), and

Commonwealth v. Moroz, 284 A.3d 227, 233 (Pa. Super. 2022) (en banc)).

Saum further observes that in Commonwealth v. Verbeck, a plurality of our

Supreme Court found that “the language in [s]ection 3806 of the Vehicle Code,

75 Pa.C.S. § 3806,[3] which includes acceptance of ARD as a prior offense and

3 Section 3806 defines “prior offenses,” in pertinent part, as:

[A]ny conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of [ARD] or other form of preliminary disposition before the sentencing on the present violation for any of the following:

(Footnote Continued Next Page)

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directs the trial court at sentencing to determine the number of ARD

acceptances, if any, for purposes of enhancing the defendant's sentence, is

unconstitutional,” supports this argument. Saum’s Brief at 8-9 (citing

Commonwealth v. Verbeck, 290 A.3d 260, 277 (Pa. 2023) (Opinion in

Support of Affirmance)).

Saum also contends that the companion cases of Richards and Moroz,

which he recognizes overruled Chichkin and held that “the portion of [s]ection

3806(a), which equates prior acceptance of ARD to a prior conviction for

purposes of imposing a [s]ection 3804[4] mandatory minimum sentence,

passes constitutional muster,” were wrongly decided. Saum’s Brief at 8 (citing

Richards, 284 A.2d at 220; Moroz, 284 A.3d at 233). In Saum’s view, ARD

cannot be considered as a prior conviction as doing so violates his procedural

and substantive due process rights. Saum’s Brief at 10.

As Saum correctly observes, an en banc panel of this Court in Richards

and Moroz expressly overruled Chichkin and held that a defendant’s

acceptance of ARD for a prior DUI can be considered a prior DUI conviction

for sentencing purposes under section 3804. Moroz, 284 A.3d at 233;

(1) An offense under section 3802 (relating to driving under influence of alcohol or controlled substance)[.]

75 Pa.C.S.A. § 3806(a)(1). 4 Section 3804 sets forth mandatory minimum sentence terms for first, second, and third or subsequent DUI convictions. 75 Pa.C.S. § 3804.

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Richards, 284 A.3d at 220; see also Commonwealth v. Hummel, 295 A.3d

719, 720-21 (Pa. Super. 2023) (holding that Richards and Moroz overruled

Chichkin and are controlling precedent). Moreover, Saum’s reliance on

Verbeck is unavailing, as that decision was the product of an equally divided

Court and therefore lacks precedential value. See Hummel, 295 A.3d at 720

n.1 (noting that a plurality decision of the Pennsylvania Supreme Court is not

precedential and is not binding on future decisions of this Court). Although

our Supreme Court has granted allowance of appeal in the Richards case, no

decision has yet to be issued, and therefore we remain bound by this Court’s

precedent in Richards and Moroz. See Commonwealth v. Pepe, 897 A.2d

463, 465 (Pa. Super. 2006) (stating that we are bound by existing precedent

until such time as it is overturned). Consequently, we lack authority to grant

Saum relief and conclude that the trial court did not err in treating Saum’s

prior conviction of DUI-ARD as a prior offense under Pennsylvania’s DUI

statute and in grading Saum’s instant conviction of DUI as his second offense.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 7/18/2024

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