Judges Opinions, — September 28, 2022 11:12 — 0 Comments

Commonwealth of Pennsylvania, v. Kierra Jo Heist

Commonwealth of Pennsylvania, v. Kierra Jo Heist

 

Criminal Action-Constitutional Law-Due Process-Driving Under the Influence-Enhanced Sentencing Provisions-Prior Conviction-Accelerated Rehabilitative Disposition Placement-Proof of Prior Conviction Beyond a Reasonable Doubt at Sentencing

 

Kierra Jo Heist (“Defendant”) was charged with two (2) counts of Driving under the Influence (“DUI”) as a first offense following a motor vehicle accident.  The Commonwealth subsequently amended the Criminal Information alleging that the incident was a second Driving Under the Influence offense based upon the claimant’s convictions at a prior docket that had resulted in Accelerated Rehabilitation Disposition (“ARD”) placement.  The Commonwealth sought to use the convictions resulting in ARD placement as a prior conviction to enhance the potential sentence on the current DUI charges.

 

  1. The Pennsylvania General Assembly has created an escalating sentence scheme for the offense of DUI, creating enhanced penalties for second, third, fourth and subsequent DUI charges.

 

  1. Title 75 Pa.C.S. § 3806 defines a prior offense for purposes of sentence enhancement of DUI charges as acceptance of ARD or other form of preliminary disposition before the sentencing on the present violation.

 

  1. In Commonwealth v. Chichkin, 232 A.3d 959 (Pa.Super. 2020), the Pennsylvania Superior Court held that prior acceptance of ARD does not constitute a conviction cloaked in constitutional safeguards of due process and must be presented to the factfinder and determined by that factfinder beyond a reasonable doubt that the defendant actually committed the prior DUI offense before the court may impose an enhanced sentence.

 

  1. Every statute enjoys a strong presumption of constitutionality.

 

  1. When one (1) component of a statute is declared to be unconstitutional, such declaration does not necessarily or automatically destroy the viability of other components of the same statute.

 

  1. A prior DUI with an ARD disposition may be considered as part of sentencing for a DUI conviction, and the facts of the prior DUI are relevant only as they relate to sentencing.

 

  1. The facts of the prior DUI must be determined by a jury beyond a reasonable doubt.

 

  1. A trial court has broad discretion in determining how a jury trial should be conducted.

 

  1. To comport with the decision in Chichkin, if Defendant is found guilty of the current DUI charges after trial by jury, the jury will not be excused and sentencing will be commenced, at which time the parties may present evidence and argument with regard to the prior DUI charge for which Defendant was accepted into the ARD program, and the jury will determine whether the Commonwealth established that Defendant committed the prior DUI charge beyond a reasonable doubt. If the jury determines that Defendant committed the prior DUI charge beyond a reasonable doubt, the same will be considered by the Court when sentencing Defendant upon the current DUI convictions.

 

L.C.C.C.P. No. CP-38-CR-0001245-2020, Opinion by Bradford H. Charles, Judge, December 23, 2021.

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                             : 

PENNSYLVANIA                                       :                                                                                                                            :        NO. CP-38-CR-1245-2020

  1. :       

                                                                   :

KIERRA JO HEIST                                   :

:

ORDER OF COURT

 

 

AND NOW, this 23rd day of December, 2021, in accordance with the attached Opinion, both counsel are to appear before this Court for a Status Conference to address scheduling issues.  That conference is to occur on the 30th day of December, 2021 at 1:30pm in Courtroom #3.  At the Status Conference, we will establish a date and time for trial.

 

BY THE COURT:

 

__________________________J.

BRADFORD H. CHARLES

BHC/pmd

Cc:    Court Administration (order only)

Courtney McMonagle Esq.

Nicholas Sidelnick, Esq.

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                             : 

PENNSYLVANIA                                       :                                                                                                                            :        NO. CP-38-CR-1245-2020

  1. :

                                                                   :       

KIERRA JO HEIST                                   :

:

APPEARANCES

 

Courtney McMonagle, Esquire                        For Commonwealth of

DISTRICT ATTORNEY’S OFFICE                     Pennsylvania

 

Nicholas Sidelnick, Esquire                            For Kierra Jo Heist

PUBLIC DEFENDER’S OFFICE

OPINION BY CHARLES, J., December 23, 2021

 

Pennsylvania’s Superior Court has created a DUI sentencing conundrum for trial courts.  In Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), the Superior Court declared the sentencing enhancement component of Pennsylvania’s DUI Sentencing law to be unconstitutional as it related to prior ARD placements.  However, the Superior Court stated that if the Commonwealth could prove the prior event beyond a reasonable doubt, the DUI sentencing enhancement could still apply.  Since Chichkin, the Superior Court has penned several “unpublished, non-binding” opinions that have not eliminated our conundrum.  Today, we will do our best to follow the clear intent of Pennsylvania’s General Assembly regarding DUI sentencing while simultaneously honoring the Superior Court’s published decision in Chichkin.  As we do this, we urge Pennsylvania’s Superior Court to respond to the inevitable appeal of our decision with binding en banc guidance.

 

  1. FACTS

Late on the rainy evening of July 6, 2020, Cleona Borough Patrolman Robert Henning, Jr. (hereafter “Ptlm. Henning”) responded to a single vehicle crash in North Annville Township. Ptlm. Henning made contact with Kierra Heist (hereafter “Defendant”) and her almost two year old child outside of the overturned vehicle. Ptlm. Henning observed that Defendant sustained injuries to her legs, knees and face. At that time, Ptlm. Henning also observed what he believed to be the smell of an alcoholic beverage emanating from the  Defendant.

Upon a follow-up conversation with Defendant, Ptlm. Henning observed a more apparent odor of an alcoholic beverage, as well as Defendant’s glassy eyes. Due to Defendant’s aforementioned injuries on her legs and knees—as well as the weather conditions—Ptlm. Henning did not administer the Standard Field Sobriety Tests (SFST). Instead, Defendant was asked and consented to a Preliminary Breath Test (PBT).  That test yielded a positive result for the presence of alcohol. Defendant was taken into custody, consented to a legal blood draw at Good Samaritan Hospital, and the blood test showed a blood alcohol content of 0.128%.

Defendant was charged with two counts of Driving Under the Influence (DUI)[1] and a summary offense[2] on September 17, 2020. In its first Criminal Information, the Commonwealth charged Defendant’s DUI as a first offense. It was later amended on April 30, 2021 to a second offense DUI. The Amended Criminal Information was a result of Defendant’s prior docket No. CP-38-CR-0723-2017, a DUI charge which resulted in Accelerated Rehabilitation Disposition (ARD) placement.

On November 2, 2021, a Scheduling Conference was held before this Court. There, the Commonwealth sought to use Defendant’s ARD DUI as a prior conviction to enhance the current DUI to a second offense. More specifically, the Commonwealth wished to introduce evidence of the ARD DUI in order to prove that this matter would be a second offense. The parties were directed to file briefs on the question of whether Defendant’s prior ARD disposition can be counted as a prior offense for the DUI sentence enhancement scheme, and if so, how the Commonwealth would prove a prior DUI for purposes of that sentencing enhancement scheme. Those briefs have now been received. Today, we attempt to navigate the current less than clear state of Pennsylvania law regarding use of a prior ARD in our Commonwealth’s DUI sentencing scheme.

 

 

  1. DISCUSSION

We will begin our analysis of this case by discussing Pennsylvania’s DUI Sentencing law.  We will next address Commonwealth v. Chichkin, supra.  Thereafter, we will describe some of the unpublished, non-binding decisions of the Superior Court.  We will end with our own conclusions as to how the above-referenced case should proceed.

  1. Statutory Sentencing Scheme

Pennsylvania’s General Assembly has created an escalating sentence scheme for Driving Under the Influence (DUI).  Section 3804 of the Vehicle Code segregates punishment for General Impairment, Driving With a High Rate of Blood Alcohol, and Driving Under the Influence of the “Highest Blood Alcohol” Content or a Controlled Substance.  See¸75 Pa. C.S.A. § 3804(a),(b) and (c).  For each type of DUI, the statute enhances penalties for a second, third, fourth or subsequent offense.  The General Assembly felt so strongly about its sentencing scheme that it included the following language:

“The Commonwealth has the right to appeal directly to the Superior Court any Order of Court which imposes a sentence for violation of this section which does not meet the requirements of this section.  The Superior Court shall remand the case to the Sentencing Court for imposition of a sentence in accordance with the provisions of this section.” 75 Pa. C.S.A. § 3804(h)

 

The DUI statute contains a specific section defining the term “prior offense”.  Section 3806 states that the term “prior offense” for purposes of escalating sentencing includes “acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation…” 75 Pa. C.S.A. § 3806

 

  1. Commonwealth v. Chichkin

In Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), the defendant had accepted ARD placement for a prior DUI offense in 2013.  He was then arrested for another DUI on December 8, 2017.  A Bench Trial ensued in Philadelphia County.  As a result of that trial, the Defendant was found guilty of two counts of DUI-General Impairment.  Thereafter, the court sentenced the Defendant as a second offender to thirty days – six months of imprisonment.

The Defendant filed a Motion for Reconsideration of Sentence in which he challenged the statutory DUI sentencing framework as violative of the United States and Pennsylvania Constitutions.  The Defendant argued that the Sentencing Court should not be permitted to consider a prior ARD acceptance as a prior offense.  When the Philadelphia County Court affirmed the original sentencing decision, the Defendant appealed to the Pennsylvania Superior Court.

On appeal, the Defendant relied upon the United States Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013).  Alleyne was described by the Superior Court as “an expansion of the Court’s prior ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000)”.  Read together, Alleyne and Apprendi required that facts subjecting a defendant to a sentencing enhancement must be determined by a jury beyond a reasonable doubt.  Chichkin at page 964.  The court in Chichkin provided numerous examples of circumstances where Pennsylvania had interpreted Alleyne to require a jury determination of facts relevant to sentencing.  See, e.g. Commonwealth v. Wolfe, 140 A.3d 651 (2016) (Age of victim of sexual assault); Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (Delivery of drugs within 1,000 feet of a school); Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014) (Weight of drugs) and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (Drug offender’s proximity to a firearm).  The court in Chichkin recognized a “narrow exception” to the rule enunciated in Alleyne “for the fact of a prior conviction”.  See, Almendarez-Torres v. United States, 523 U.S. 224 (1998).  Nevertheless, the court in Chichkin concluded:

“It is clear that any fact used to increase a defendant’s sentence, which is not included as an element of the offense charged…must be submitted to a jury and found beyond a reasonable doubt.”

Id at page 964 (emphasis in original)

 

          The Superior Court in Chichkin held that the Defendant’s prior acceptance into the ARD program “cannot be categorized as ‘prior convictions’ exempt from the holding of Apprendi and Alleyne.”  Id at page 967.  The Superior Court emphasized that ARD “is a pre-trial disposition of charges.” Id at page 967 (emphasis in original).  The Court noted “The ‘fact’ that a defendant accepted ARD does not carry with it the procedural safeguards of a traditional conviction following a judge or jury trial.” Id at page 967.  The Court then concluded:

“Because Appellants’ prior acceptances of ARD do not constitute convictions ‘cloaked in all constitutional safeguards’, we conclude they are a ‘fact’ that, pursuant to Alleyne, Apprendi, and their progeny, must be presented to the fact finder and determined beyond a reasonable doubt before a trial court may impose a mandatory minimum sentence under §3804 [75 Pa. C.S.A. §3804]…Thus, we are constrained to vacate Appellants’ sentences for DUI, and remand for a re-sentencing as first time DUI offenders.”

Id at page 968-969.

 

          The Superior Court did not end its opinion with this proclamation.  The Superior Court also questioned what type of “facts” need to be proven beyond a reasonable doubt in order to satisfy the constitutional concerns of Alleyne and its progeny.  The Commonwealth suggested that proof that a defendant accepted ARD is, by itself, sufficient to enhance the present sentence.  The Superior Court disagreed.  The Court could not accept any scheme that equated ARD admission with a criminal conviction.  The Court stated:

“Due process considerations protect those of committing a crime from conviction ‘except upon proof beyond a reasonable doubt’…Under the statutory scheme at issue here, Appellants’ prior acceptances of ARD are treated as prior convictions of DUI, absent the constitutional protections of a trial or guilty plea – most significantly, a finding or admission of guilt beyond a reasonable doubt.  Accordingly, if the Commonwealth seeks to enhance a defendant’s DUI sentence based upon that defendant’s prior acceptance of ARD, it must prove, beyond a reasonable doubt, that the defendant actually committed the prior DUI offense.  Any lesser standard would violate due process concerns.”

Id at page 970-971

  1. Unpublished Opinions

Since Chichkin was decided, Pennsylvania’s Superior Court has authored several additional opinions.  While these opinions can be accessed through legal research support platforms such as Westlaw, they are characterized as “unpublished”.  As such, they are not deemed to have binding precedential merit through the Doctrine of stare decisisSee, Commonwealth v. Phinn, 761 A.2d 176 (Pa. Super. 2000) Commonwealth v. Swinson, 626 A.2d 627, 629 (Pa. Super. 1993).  Nevertheless, these opinions can illustrate how individual panels of the Superior Court view issues such as the one at hand.  Therefore, we will follow the lead of both the Commonwealth and the defense attorney by describing these non-binding decisions.

The Commonwealth cites Commonwealth v. Verbeck, 253 A.3d 266 (Pa. Super. 2021).  Verbeck followed Chichkin by overturning a sentence that was improperly predicated upon a defendant’s prior acceptance of ARD.  However, the panel that decided Verbeck predicated its decision upon the fact that the court did not conduct “any kind of hearing or adjudication as to whether Verbeck actually committed the predicate DUI offense.” The court in Verbeck reiterated that sentencing enhancement could not occur unless underlying “facts” were proven in a constitutional manner.

In Commonwealth v. Richards, 2021 WL4704157 (Pa. Super. 2021), the Commonwealth presented evidence at the sentencing hearing about the defendant’s prior acceptance of ARD.  The Superior Court rejected this process and emphasized once more that “any fact that, by law, increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt.” The court noted that evidence of a prior DUI presented only to a judge at sentencing was “too little, too late” because such evidence could only be constitutionally assessed by a jury.  The court in Richards dismissed the language in Chichkin about proving the prior DUI event “beyond a reasonable doubt” as nothing more than “obiter dictum”.  Effectively, the panel that decided Richards viewed Chichkin as preventing any consideration of a prior ARD when sentencing a defendant for DUI.

The case of Commonwealth v. Stewart, 2021 WL5410657 (Pa. Super. 2020) emanated from Lebanon County.  In Stewart, this Court sentenced the defendant as a first offender.  The Commonwealth appealed.  The Commonwealth argued that this Court erred “by prematurely quashing Stewart’s instant charges, as second-offense DUIs, because it deprived the Commonwealth of the opportunity to prove the prior offenses.”  Of critical importance is the fact that the Stewart case arose within the context of a guilty plea that was devoid of any admission by Stewart that he had committed a prior DUI offense.  In the absence of a finding by the jury or an admission, the Superior Court could not as a matter of law declare the defendant’s prior ARD to be a ”first offense”.[3]  See also, Commonwealth v. Stolee, 239 A.3d 71 (Pa. Super. 2020) (Unpublished opinion).

Also relevant is the case of Commonwealth v. Myers, 2021 WL4704085 (Pa. Super. 2021).  In Myers, the Commonwealth withdrew numerous charges in return for the defendant’s plea of guilty to DUI as a second offense.  The defendant then challenged the sentence based upon the premise that the Commonwealth could not lawfully characterize his offense as a second one because his prior ARD should not “count” under Chichkin.  The Commonwealth argued that it “could have proven beyond a reasonable doubt” the existence of the defendant’s prior DUI.  The Superior Court agreed, thereby signaling that it is possible to prove the prior incident independent of the ARD disposition.  The Court reasoned that adopting the defendant’s argument would effectively deprive the Commonwealth of the benefits of its plea bargain.  In order to afford both parties with the benefit of their negotiated agreement, the Superior Court remanded the case with instructions that the lower court should vacate both the defendant’s sentence and his guilty plea.  Effectively, the Superior Court in Myers placed the parties in precisely the same position as the parties in this case.

In Commonwealth v. Hayes, 2021 WL5707051 (Pa. Super. 2021), the court was faced with the decision of whether a Maryland process entitled Probation Before Judgment (PBJ) constituted evidence of a prior offense for purposes of Pennsylvania’s DUI Sentencing Enhancement Law.  The trial court equated Maryland’s PBJ process with Pennsylvania’s ARD disposition and held that it did not.  The Superior Court analyzed Maryland law and determined that PBJ requires a determination of guilt before the program is offered.  Because of this, the Superior Court did not equate PBJ with ARD and held that the burden of proof requirements of Alleyne were inapplicable.

In Commonwealth v. Little, 239 A.3d 102 (Pa. Super. 2020), the Superior Court was faced with a question identical to the one presented in Chichkin.  Once again the Superior Court declared that proof of ARD, without more, does not justify a sentencing enhancement.  However, the court left open the possibility that the Commonwealth could prove the prior offense beyond a reasonable doubt.

With the possible exception of Richards, all of the unpublished opinions referenced above re-affirmed the language in Chichkin that it is possible to prove the existence of a prior DUI that resulted in an ARD disposition.  All of those same cases emphasize that proof of the initial offense must be beyond a reasonable doubt.  Unfortunately, none of the cases provide guidance with respect to how or when this proof can be accomplished.  And the issue is further clouded by Richards, which is explicitly dismissive of the notion that there could be any way to prove the existence of a prior DUI that resulted in ARD.

None of the cases outlined in this section are binding, and that is a good thing because collectively the cases in this section provide very little guidance that would help us render a decision in this case.  While we have read and considered all of the Superior Court’s post-Chichkin pronouncements regarding DUI ARD dispositions, we will not afford those decisions with significant weight.  Rather, we will predicate our decision primarily upon Pennsylvania Statutory law and Chichkin.

 

  1. Analysis and Conclusion

We begin with the nearly sacrosanct axiom that laws in America should be written by Legislatures, not courts.  Unless a statute is clearly offensive to our constitution, courts must respect and enforce it. Every statute enjoys a strong presumption of constitutionality. Commonwealth v. Barud, 681 A.2d 162, 165 (Pa. 1996) (citing Commonwealth v. Mikulan, 470 A.2d 1339, 1340 (Pa. 1983)). Moreover, when one component of a statute is declared unconstitutional, such declaration does not necessarily or automatically destroy the viability of other components of the same law.  See, e.g. Rothermel v. Meyerle, 20 A. 583, 587 (Pa. 1890) (“A statute may be void only so far as its provisions are repugnant to the constitution. One provision may be void, and this will not affect other provisions of the statute.”).  A fiortori, if the unconstitutionality of a statute can be cured by removing a constitutional impediment, then the impediment should be removed and the remainder of the law should be enforced.  See, e.g. Commonwealth v. Mockaitis, 834 A.2d 488, 502 (Pa. 2003).

As it relates to DUI Sentencing, Pennsylvania’s Superior Court declared the ARD enhancement provision to be unconstitutional.  However, they did so based upon a line of United States Supreme Court decisions that emphasized the importance of a trial by jury that was embedded in our Constitution by our Founding Fathers.  In  Alleyne, supra and Apprendi, supra, our nation’s Highest Court declared that no criminal defendant should face an enhanced sentence based upon facts that were not determined beyond a reasonable doubt by a jury.

“[T]he essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact. It is obvious, for example, that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction… The essential point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable doubt.”

Alleyne, supra at 114–16.

As it relates to sentencing, Alleyne and Apprendi prevent courts from enhancing sentences based upon potentially disputed “facts” unless a jury has ruled on those “facts”.[4]

Had the Superior Court ended its Chichkin decision by simply declaring that ARD cannot be “counted” in the sentencing enhancement scheme, our decision today would be easy.  We would simply declare that the above-referenced docket represents a first offense.  However, the Superior Court included additional language.  Specifically, the Superior Court stated:

“If the Commonwealth seeks to enhance a defendant’s DUI sentence based upon that defendant’s prior acceptance of ARD, it must prove beyond a reasonable doubt, that the defendant actually committed the prior DUI offense.”  Id at page 971.

 

The addition of this language, combined with the Superior Court’s reliance upon Alleyne and Apprendi, convinces us that it is possible for a prior ARD disposition to be considered as part of DUI sentencing.  In fact, the language in Chichkin outlined above would be nothing more than surplusage if we were to hold otherwise.

As a trial court, we can, should and must conclude that the Pennsylvania Superior Court means what it says.  As it relates to DUI sentencing enhancement, the Superior Court said: “If the Commonwealth seeks to enhance a defendant’s DUI sentence, based upon that defendant’s prior acceptance of ARD, it must prove, beyond a reasonable doubt, that the defendant actually committed the prior DUI offense.”  Without being flippant, what this means is that if the Commonwealth seeks to enhance a defendant’s DUI sentence, it must prove, beyond a reasonable doubt, that the defendant actually committed the prior DUI offense.  By definition, this language presupposes that if the Commonwealth does prove a prior DUI event beyond a reasonable doubt, then the sentence for the defendant can and should be enhanced.

So how can proof of a prior DUI offense be undertaken within the context of a trial that must, of necessity, focus upon what occurred on August 5, 2020?  If we were to permit the Commonwealth to introduce evidence of the prior DUI incident when it presents the August 5, 2020 incident, the Defendant would no doubt object based upon the premise that prior crimes are not generally admissible as proof that the defendant committed the one now before a court.  See, e.g. Commonwealth v. Allen, 292 A.2d 373, 375 (1972) (“It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge.”).

A trial judge has broad discretion when determining how a jury trial should be conducted.  See, e.g. Commonwealth v. Potts, 460 A.2d 1127, 1137 (1983) (“[A] judge has broad discretion as to the manner in which a trial is to be conducted…”). In this case, we recognize that the Defendant successfully completed her prior ARD and that she cannot be “convicted” for that offense following that successful completion of the program.  Therefore, the events surrounding the prior DUI are relevant in this case only as it relates to sentencing.  Under Alleyne and Apprendi, however, those facts must be determined beyond a reasonable doubt by a jury.

Based upon everything outlined above, we have decided to employ the following procedure in the above-referenced case:

  1. A Criminal Jury Trial will be conducted in the above-referenced matter regarding the August 5, 2020 incident that is currently pending before this Court. This trial will be conducted without reference to the prior DUI allegations or the Defendant’s participation in the ARD program.
  2. If the Defendant is found not guilty, the trial is over and no further proceedings will occur.
  3. If the Defendant is found guilty by the jury of the events now before this Court, we will not excuse the jury. Rather, we will commence a sentencing proceeding.  As part of that sentencing proceeding, we will permit the Commonwealth and the defense to present evidence and argument pertaining to the prior DUI allegations for which the Defendant was accepted into the ARD program.  The jury will then be asked to determine beyond a reasonable doubt whether the Defendant committed the prior offense.
  4. If the jury finds beyond a reasonable doubt that the Defendant did commit the crime of DUI as alleged in the prior Criminal Complaint, we will not declare that finding to be a “conviction”, nor will we impose any sanctions for that prior incident beyond those that were previously imposed as a part of the Defendant’s participation in the ARD program. However, we will consider the jury’s determination when we sentence the Defendant in the currently pending docket.

 

III.    CONCLUSION

We have done our best to address the conundrum triggered by the Defendant’s prior ARD placement for DUI.  We believe that our decision today affords required deference to the DUI sentencing scheme created by Pennsylvania’s General Assembly.  We also conclude that our decision is consistent with the Pennsylvania Superior Court’s proclamation in Commonwealth v. Chichkin, supra.  Finally, our decision respects the importance of a right to trial by jury that was emphasized in Alleyne and Apprendi.

We recognize that it will be difficult in some cases for the Commonwealth to prove the prior DUI incident beyond a reasonable doubt.  Indeed, if records were expunged after a defendant completed his/her ARD successfully, it may be difficult or even impossible for the Commonwealth to establish proof beyond a reasonable doubt.  In addition, we recognize that our decision today will likely incentivize the Commonwealth to object going forward whenever a defendant seeks to have ARD records expunged.  As it relates to all of the above, we respond: So be it.

We believe that Pennsylvania’s General Assembly wanted a DUI sentencing judge to consider a defendant’s prior ARD placement.  We also believe that Commonwealth v. Chichkin, supra permits us to do so only when the facts surrounding the prior event have been proven to a jury beyond a reasonable doubt.  We cannot perceive any procedure other than the one we have created that would respect and honor both Chichkin and the General Assembly’s DUI sentencing scheme.  The fact that the process we have developed may create practical problems of proof for the Commonwealth is of only tertiary concern to this Court.

We will enter an Order consistent with this Opinion.  We advise both parties that because the facts of the prior DUI will have to addressed immediately following a jury’s determination about what occurred on August 5, 2020, and because this will require preparation by both sides, we will sua sponte postpone the trial in this case that is currently scheduled for the January 2022 term of Criminal Court.  Our Order today will schedule another Status Conference to address issues pertaining to Rule 600, issues pertaining to discovery and a scheduling of trial.

 

[1] 75 Pa.C.S.A. §§3802(b); 3802(a)(1).

[2] 75 Pa.C.S.A. §3361.

[3] This case is different because no guilty plea has been proffered and no trial has been conducted.  Here, we still have a proverbial blank slate within which to create a process that complies with Pennsylvania’s Sentencing Law without violating the admonition of Chichkin.  Such was not the case in Stewart.

[4] However, Appellate Courts have long recognized that prior criminal convictions do not need to be established by a jury beyond a reasonable doubt in order to be considered at sentencing.  Courts have reasoned that the existence of a conviction was already established beyond a reasonable doubt during the proceedings that lead to the conviction.  See, e.g. Commonwealth v. Aponte, 855 A.2d 800, 811-12 (Pa. 2004).  In Chichkin, the Superior Court refused to equate ARD placement with a conviction.  The Superior Court ruled that the former was established beyond a reasonable doubt while the latter was not.

 

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