Com. v. Wright, B.

• Court: Superior Court of Pennsylvania
• Decided: January 5, 2024
• Docket: 478 WDA 2023
• Status: Unpublished

Opinion

J-S41019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN K. WRIGHT : : Appellant : No. 478 WDA 2023

Appeal from the Judgment of Sentence Entered March 23, 2023 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-CR-0000200-2022

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED: JANUARY 5, 2024

Appellant, Brian K. Wright, appeals from the judgment of sentence

entered on March 23, 2023 in the Criminal Division of the Court of Common

Pleas of Armstrong County. We affirm.

The relevant procedural facts are straightforward. Appellant was

charged with driving under the influence (DUI) in violation of 18 Pa.C.S.A.

§ 3802(a)(2) on or about January 25, 2022; thereafter, he pled guilty to that

offense on November 2, 2022. Appellant had a prior DUI arrest from 2015 in

Arizona that was resolved by a pretrial diversionary program substantially

similar to Pennsylvania’s Accelerated Rehabilitation Disposition program

(ARD). On March 23, 2023, Appellant was sentenced to 5 days to 6 months

imprisonment, which is the standard sentence for a Tier 1, second offense

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* Former Justice specially assigned to the Superior Court. J-S41019-23

DUI. Appellant filed post-sentence motions which were denied by operation

of law pursuant to Pa.R.Crim.P. 720(B)(3)(a). Appellant then filed an appeal

with this Court.

On appeal, Appellant argues in his brief that the trial court violated due

process, his right to a jury trial, and his right to equal protection under the

law in treating his completion of a pretrial diversionary program in 2015 as a

“prior conviction” pursuant to 75 Pa.C.S.A. § 3806 and in imposing enhanced

penalties under 75 Pa.C.S.A. § 3804. See Appellant’s Brief at 4-5. These

contentions merit no relief.

Appellant claims that his most recent DUI should have been treated as

a first offense, as we held in Commonwealth v. Chichkin, 232 A.3d 959 (Pa.

Super. 2020). In Chichkin, we said that a DUI that was resolved under an

ARD program cannot be treated as a prior offense for sentencing purposes in

a subsequent DUI because the prosecution had no burden to prove the

supporting facts beyond a reasonable doubt. See Chichkin, 232 A.3d at 971.

Chichkin was subsequently overruled by an en banc panel of this Court

in a pair of cases captioned as Commonwealth v. Moroz, 284 A.3d 227 (Pa.

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

Super. 2022) (en banc). See Commonwealth v. Hummel, 295 A.3d 719,

721 (Pa. Super. 2023). Interpreting 18 Pa.C.S.A. § 3806, Moroz held that a

DUI that was disposed of by participation in an ARD program can be

considered a prior conviction for sentencing purposes in a subsequent DUI

prosecution. See Moroz, 284 A.3d at 233. Moroz and Richards overruled

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Chichkin on October 4, 2022, defining - as of that date - the state of

Pennsylvania law. Accordingly, the approach adopted in Moroz and

Richards applied when Appellant entered his guilty plea and received his

sentence. See Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super.

2018) (parties are entitled to benefit of changes in the law occurring before a

judgment of sentence becomes final). Hence, the trial court correctly applied

Moroz and Richards in this case.

Appellant’s reliance upon the later decision of our Supreme Court in

Commonwealth v. Verbeck, 290 A.3d 260 (Pa. 2023) is unavailing.

Although Verbeck upheld the view we expressed in Chichkin, Verbeck

represented a 3-3 split on the Supreme Court; thus, the decision only had the

effect of affirming the Superior Court ruling then under review. It lacked

precedential value as a majority announcement of the Supreme Court’s

position on the matter. Since Verbeck was a split decision of the Supreme

Court and was not precedential, it did not overrule Moroz and Richards, and

those cases remain binding law. See Commonwealth v. Shifflett, 2023 WL

3051454, at *5 (Pa. Super. 2023) (“Pursuant to Richards, supra, and

Moroz, supra, which remain current and binding precedents in light of our

Supreme Court's non-precedential determination in Verbeck, supra, the

Commonwealth was permitted to introduce evidence of Shifflett's prior

ARD-DUI at the time of sentencing to establish that his current DUI offense

was a second offense.”). The trial court correctly applied the prevailing case

law in this matter. As a result, Appellant is not entitled to the relief he seeks.

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Judgment of sentence affirmed.

FILED: 1/5/2024

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