Com. v. Scheppard, J.
This text of Com. v. Scheppard, J. (Com. v. Scheppard, J.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J-S16012-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JOHN M. SCHEPPARD : No. 2261 EDA 2022
Appeal from the Judgment of Sentence Entered August 12, 2022 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000026-2016
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 10, 2023
The Commonwealth appeals from the August 12, 2022 Judgment of
Sentence entered in the Pike County Court of Common Pleas following
Appellee John Scheppard’s guilty plea to Driving Under the Influence (“DUI”)
– Highest Rate of Alcohol.1 The Commonwealth argues that the sentence is
illegal because the trial court failed to classify Appellee’s acceptance of
Accelerated Rehabilitative Disposition (“ARD”) for a 2013 DUI charge as a
“prior offense” for purposes of sentencing on the current offense. Based upon
our recent decisions in Commonwealth v. Richards, 284 A.3d 214 (Pa.
Super. 2022) (en banc), appeal granted, 294 A.3d 300 (Pa. 2023), and
Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. 2022) (en banc), we
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1 75 Pa.C.S. § 3802(c). J-S16012-23
vacate the judgment of sentence and remand for resentencing consistent with
this decision.2
In February 2016, the Commonwealth charged Appellee with two counts
of Driving Under the Influence.3 On April 28, 2016, Appellee entered into a
negotiated plea agreement to Driving Under the Influence—Highest Rate of
Alcohol. The plea agreement did not indicate whether it was a first or second
DUI offense. Appellee, however, did not appear at his June 2016 sentencing.
Following his eventual arrest in July 2022, the court held a sentencing
hearing on August 12, 2022, at which the Commonwealth argued that
Appellee should be sentenced for the DUI as a second offense based upon
Appellee’s prior acceptance of ARD for the 2013 DUI. It acknowledged the
then-precedential decision in Commonwealth v. Chichkin, 232 A.3d 959
(Pa. Super. 2020), which forbid the classification of ARD as a prior offense,
but argued that Chichkin was wrongly decided.
That same day, the trial court applied Chichkin and sentenced Appellee
as a first-time offender. The court imposed the mandatory minimum sentence
of 72 hours to 6 months of incarceration, with credit for 3 days of time served,
and a fine of $1,000, instead of the mandatory minimum sentence for a second
2 The Supreme Court held the Petition for Allowance of Appeal filed in Commonwealth v. Moroz, 520 MAL 2022 (Pa. April 17, 2023), pending its decision in Richards.
375 Pa.C.S. §§ 3802(a)(1) (DUI-General Impairment), 3802(c) (DUI-Highest Rate of Alcohol). The Commonwealth classified these charges as second offenses.
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offense of 90 days and a fine of $1,500.4 The court ordered Appellee to be
released on parole.
On September 7, 2022, the Commonwealth filed its Notice of Appeal
and its Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal,
reiterating its disagreement with Chichkin. On October 4, 2022, this Court
filed its en banc Opinions in Richards, 284 A.3d at 220, and Moroz, 284 A.3d
at 233, overruling Chichkin. On November 8, 2022, the trial court filed its
Rule 1925(b) Opinion, in which it recognized that this Court, in Moroz, had
overruled Chichkin after Appellee’s sentencing and noted that it would
“accept the instant case on remand as may be directed by the Superior
Court.”5
Before this Court, the Commonwealth presents the following question:
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.A. § 3803, 75 Pa.C.S.A. § 3804, and 75 Pa.C.S.A. § 3806, contrary to the holding of Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020).
Commonwealth’s Brief at 4.
In challenging the legality of the sentence, the Commonwealth presents
a pure question of law. Accordingly, our standard of review is de novo, and
4 75 Pa.C.S. § 3804(c). The court imposed additional costs and conditions not relevant to this appeal.
5 Tr. Ct. Op., 11/8/22, at 3.
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our scope of review is plenary. Commonwealth v. Stoops, 290 A.3d 721,
723 (Pa. Super. 2023).
The question of whether to consider acceptance of ARD as a “prior
offense” for purposes of the enhanced sentencing scheme under Section 3804
of the Vehicle Code is an issue that has repeatedly come before this Court and
is currently pending in the Pennsylvania Supreme Court. Section 3804
provides for enhanced mandatory minimum sentences for second and
subsequent DUI offenses. 75 Pa.C.S. § 3804. Section 3806 defines “prior
offense” for purposes of Section 3804 sentencing to include “acceptance of
[ARD] or other form of preliminary disposition before the sentencing on the
present violation for any of the following: (1) an offense under section 3802
(relating to driving under influence of alcohol or controlled substance)[,]”
where the prior offense occurred “within 10 years prior to the date of the
offense for which the defendant is being sentenced.” 75 Pa.C.S. § 3806(a)(1),
(b)(1)(i).
In 2020, this Court in Chichkin concluded that the classification of ARD
acceptance as a prior offense for purposes Section 3804 sentencing violated
due process.6 In 2022, however, an en banc panel of this Court overruled ____________________________________________
6 The Chichkin panel opined that “prior acceptances of ARD do not constitute convictions cloaked in all the constitutional safeguards[.]” Chichkin, 232 A.3d at 968 (internal quotation marks omitted). The Chichkin court reasoned, therefore, that the prior acceptance of ARD was “a fact that, pursuant to Alleyne[ v. United States, 133 S. Ct. 2151, 2163 (2013)], Apprendi [v. New Jersey, 530 U.S. 466 (2000)] and their progeny, must be (Footnote Continued Next Page)
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Chichkin in Richards and Moroz, holding “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” as it satisfied the “prior conviction” exception to
Apprendi and Alleyne. Richards, 284 A.3d at 220; Moroz, 284 A.3d at
233.
Applying Richards and Moroz, this Court more recently in
Commonwealth v. Hummel, 292 A.3d 1137 (Pa. Super. 2023), vacated a
sentence based upon the trial court’s failure to classify a defendant’s prior
acceptance of ARD as a prior offense for purposes of Section 3804, while
noting that the trial court had properly followed Chichkin at the time of
sentencing. Although we recognized that Richards and Moroz were pending
before the Supreme Court, we reiterated that “appellate courts apply the law
in effect at the time of decision and the parties will be entitled to the benefit
of changes in the law occurring before the judgment of sentence is final.”7 Id.
at 1138. We, therefore, vacated the defendant’s judgment of sentence and
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