Com. v. Sullivan, R.

• Court: Superior Court of Pennsylvania
• Decided: May 8, 2023
• Docket: 716 MDA 2022
• Status: Unpublished

Opinion

J-A09039-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT DANIEL SULLIVAN : : Appellant : No. 716 MDA 2022

Appeal from the Judgment of Sentence Entered April 29, 2022, in the Court of Common Pleas of Adams County, Criminal Division at No(s): CP-01-CR-0000251-2021.

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 8, 2023

Robert Sullivan appeals from the judgment of sentence entered

following his guilty plea to driving under the influence (DUI).1 Because this

Court’s holdings preclude Sullivan’s arguments, we affirm.

On December 10, 2020, Sullivan was charged with, inter alia, DUI. He

ultimately pled guilty and was sentenced. Notably, Sullivan reserved his right

to challenge the prior offenses, grading, and applicable penalties. The trial

court treated the DUI as a third offense based on Sullivan’s two out-of-state

cases: (1) a guilty plea to driving while ability impaired (DWAI) in New York,

and (2) a guilty plea and entry into a probation before judgment (PBJ)

program for DUI in Maryland.2 ____________________________________________

1 75 Pa.C.S.A. § 3802(d)(2). 2 N.Y. Veh. & Traf. § 1192(1); Md. Code Transp. § 21-902(a)(2). J-A09039-23

Sullivan timely appealed. Sullivan and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

Sullivan presents two questions for our review:

I. Whether the lower court erred when it considered the Maryland DUI PBJ as a “prior offense” under 75 Pa.C.S.[A.] § 3806?

II. Whether the lower court erred when it considered the conviction for New York DWAI as a “prior offense” under 75 Pa.C.S.[A.] § 3806?

Sullivan’s Brief at 4.

When a court imposes a sentence for DUI, it is required to calculate the

defendant’s prior offenses. 75 Pa.C.S.A. § 3806(b)(2). Subject to timing

requirements not in dispute here, “prior offense” means:

any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition [(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);

(2) an offense under former section 3731;

(3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or

(4) any combination of the offenses set forth in paragraph (1), (2) or (3).

75 Pa.C.S.A. § 3806(a). The interpretation of Section 3806 is a question of

law, for which our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Mock, 186 A.3d 434, 435 (Pa. Super. 2018),

aff’d, 219 A.3d 1155 (Pa. 2019) (citation omitted).

-2- J-A09039-23

Sullivan first disputes that his guilty plea to DUI in Maryland and entry

into the PBJ program counts as a prior offense. The trial court ruled based on

this Court’s holding that entry into the PBJ program for a DUI in Maryland

counts as a prior offense under Section 3806. Trial Court Opinion, 5/13/22,

at 3–5 (citing Commonwealth v. Hayes, 266 A.3d 679 (Pa. Super. 2021)).

Sullivan argues that we should address the unanswered question from Hayes

and find Section 3806 unconstitutional under Commonwealth v. Chichkin,

232 A.3d 959 (Pa. Super. 2020).3 He submits that because Section 3806

permits counting any “other form of preliminary disposition” as a “prior

offense,” it allows trial courts to infer guilt of an out-of-state prior offense

without the requisite protections of due process. Sullivan concludes that this

Court cannot usurp the legislature by rewriting Section 3806 to conform to

constitutional standards, and that we should therefore remand for the trial

court to sentence without counting his Maryland PBJ as a prior offense.

This Court held that Section 3806(a) violated the Due Process Clause by

counting an acceptance of ARD as a prior offense, absent proof of the prior

offenses beyond a reasonable doubt. Chichkin, 232 A.3d at 971. We

distinguished Chichkin in Hayes, where the record showed that the

defendant/appellee had pled not guilty to DUI in Maryland before entering the

PBJ program. Because Maryland law required a plea of guilty or nolo

contendere before entering PBJ, we reasoned that Maryland PBJ law provided ____________________________________________

3As described below, this Court sitting en banc overruled Chichkin after Sullivan filed his appellate brief.

-3- J-A09039-23

the procedural safeguards that Pennsylvania ARD law lacked. Hayes, 266

A.3d at 684. In holding for the Commonwealth, we avoided the constitutional

issue raised in the alternative. Id. at 682 & n.3.

Subsequently, we revisited our Chichkin holding. Commonwealth v.

Richards, 284 A.3d 214, 216 (Pa. Super. 2022) (en banc); Commonwealth

v. Moroz, 284 A.3d 227, 230 (Pa. Super. 2022) (en banc). Noting the

purposes of DUI laws and the procedures underlying the admission into ARD,

we held that Section 3806(a)’s counting admission into ARD as a prior offense

passed constitutional muster. Richards, 284 A.3d at 220. We therefore

overruled Chichkin. Id.4

Here, we conclude that Sullivan’s constitutional argument fails based on

Richards and Moroz. Based on current decisional law, there is no

constitutional defect in Section 3806(a) counting acceptance into ARD as a

prior offense. Richards, 284 A.3d at 220. It follows that counting any “other

form of preliminary disposition”—here, PBJ—likewise comports with due

process. Therefore, the trial court did not err by following Hayes and counting

Sullivan’s PBJ in Maryland as a prior offense.

Sullivan next contends that the trial court should not have counted his

New York DWAI conviction as a prior offense because it is not “substantially ____________________________________________

4 The Supreme Court of Pennsylvania addressed this issue, affirming our Chichkin-based holding by operation of law. Commonwealth v. Verbeck, 290 A.3d 260 (Pa. Feb. 28, 2023). Verbeck lacks precedential value because it is a plurality opinion from an evenly divided court. See Commonwealth v. Baldwin, 985 A.2d 830, 835 (Pa. 2009) (citing Kelley v. State Employees’ Ret. Bd., 932 A.2d 61, 67–68 (Pa. 2007)).

-4- J-A09039-23

similar” to any Pennsylvania DUI offense. See 75 Pa.C.S.A. § 3806(a)(3).

We considered and rejected this argument in Commonwealth v. Pombo, 26

A.3d 1155, 1159 (Pa. Super. 2011). Sullivan argues that this Court’s holding

in Pombo was improper because it used the wrong test for substantial

similarity. Id. at 1157–58 (following the test for substantial similarity

described in Wroblewski v. Commonwealth, 809 A.2d 247, 248 (Pa. 2002),

and enacted as described in Commonwealth v. Northrip, 985 A.2d 734, 738

n.5 (Pa. 2009)). Because the New York DWAI statute applies to a lower level

of impairment than any Pennsylvania DUI statute, Sullivan concludes that it

is not substantially similar, we should overrule Pombo, and the trial court

should not count the DWAI as a prior offense.

This panel of the Superior Court cannot overrule another panel of the

Superior Court. Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super.

2013) (citing Commonwealth v. Taylor, 649 A.2d 453, 455 (Pa. Super.

1994)). This Court held that DWAI in New York is substantially similar to DUI

in Pennsylvania. Pombo, 26 A.3d at 1159. Although Sullivan urges us to use

a different test for substantial similarity to compare these statutes, we lack

the power to distinguish Pombo in this way. Beck, supra. We conclude that

the trial court correctly followed Pombo in counting Sullivan’s New York DWAI

as a prior offense. We therefore affirm Sullivan’s judgment of sentence.

-5- J-A09039-23

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/8/2023

-6-