COMMONWEALTH OF PENNSYLVANIA v. IGOR CHICHKIN
No. 3473 EDA 2018
IN THE SUPERIOR COURT OF PENNSYLVANIA
MAY 20, 2020
2020 PA Super 121
OPINION BY McCAFFERY, J.
J-A08032-20 & J-A08033-20; Appeal from the Judgment of Sentence Entered November 26, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0036944-2017
COMMONWEALTH OF PENNSYLVANIA v. LISA ROCHE
No. 3475 EDA 2018
IN THE SUPERIOR COURT OF PENNSYLVANIA
MAY 20, 2020
2020 PA Super 121
OPINION BY McCAFFERY, J.
J-A08032-20 & J-A08033-20; Appeal from the Judgment of Sentence Entered November 26, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0001090-2018
BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.
In these two appeals,1 we consider the constitutionality of the provision of the mandatory minimum sentencing statute for driving under the influence (DUI),2
The pertinent facts and procedural history underlying each appeal are as follows.
Commonwealth v. Chichkin - 3473 EDA 2018
Chichkin was arrested and charged with DUI for an incident that occurred on December 8, 2017. His case proceeded to a trial in Municipal Court on May 18, 2018, at which time the court found him guilty of two counts of DUI-general impairment
On July 5, 2018, Chichkin filed a timely motion for reconsideration, seeking to “bar consideration of [his] prior ARD acceptance for sentencing purposes because the statutory framework violates several provisions of the United States and Pennsylvania Constitutions.” Chichkin‘s Motion for Reconsideration, 7/5/18, at ¶ 5. The court granted reconsideration and vacated the June 25th sentence. However, following a hearing on July 30, 2018, the Municipal Court denied reconsideration and reinstated the sentence imposed on June 25, 2018.
On August 6, 2018, Chichkin filed a timely petition for writ of certiorari in the
Commonwealth v. Roche - 3475 EDA 2019
On June 13, 2018, Roche entered a negotiated guilty plea in the Municipal Court to one count of DUI-general impairment with accident. N.T. Roche Guilty Plea, 6/13/18, at 4. The Commonwealth noted it was “a mandatory minimum matter.” Id. The case proceeded to sentencing on September 17, 2018, at which time the Municipal Court stated Roche‘s record “showed a prior offense” and thus her guilty plea would constitute a “second offense.” N.T. Roche Sentencing H‘rg, 9/17/18, at 3. Roche‘s counsel objected to the court‘s characterization, arguing that because the alleged “prior offense” was an acceptance of ARD, it “should not recidivize[,]” and the DUI mandatory minimum statute was unconstitutional under Alleyne. Id. at 3-4. The Municipal Court rejected Roche‘s argument and imposed a sentence of 30 days to four months’ imprisonment, and two years’ concurrent probation. The 30-day mandatory minimum sentence was likewise imposed under
On September 18, 2018, Roche filed a timely petition for writ of certiorari in the Court of Common Pleas. Following a hearing, the trial court denied the writ on November 26, 2018, but stayed Roche‘s sentence. Roche filed this timely appeal, and complied with the trial court‘s directive to file a statement of errors complained of on appeal pursuant to
Analysis
Appellants raise the following identical three questions on appeal:
- Are not the mandatory minimum DUI statutes unconstitutional because they do not provide the constitutional procedural protections mandated by Alleyne v. United States, 570 U.S. 99 (2013), for the triggering factual determination, a prior DUI ARD acceptance?
- Do not the mandatory minimum DUI statutes violate both substantive and procedural due process under Nelson v. Colorado, 137 S.Ct. 1249 (2017), and other relevant case law, because they treat a prior acceptance of ARD, that entails no proof of misconduct, as conclusive irrebuttable proof of a prior offense?
- Do not the mandatory minimum DUI statutes that treat a prior acceptance of ARD as a prior offense violate separation of powers and Article V of the Pennsylvania Constitution because the legislature has no authority to declare a defendant guilty of an offense, and its statutes are inconsistent with the Pennsylvania Supreme Court‘s rules governing acceptance of ARD?
Chichkin‘s Brief at 2; Roche‘s Brief at 2.
When an appellant challenges a trial court‘s denial of a petition for writ of certiorari, “[w]e will not disturb the lower court‘s [decision] unless we find an abuse of discretion.” Commonwealth v. Noss, 162 A.3d 503, 507 (Pa. Super. 2017). Here, in all three of their claims, Appellants contend the statutes which the Municipal Court applied to increase their mandatory minimum sentence —
Each of Appellants’ claims on appeal involves the interplay between Sections 3804 and 3806 of the Motor Vehicle Code (MVC). Section 3804 sets forth mandatory minimum sentence terms for first, second, and subsequent DUI offenses.
any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for . . .
(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance)[.]
In their first issue, Appellants contends the aforementioned DUI penalty statutes are unconstitutional pursuant to the United States Supreme Court‘s decision in Alleyne, which held “a defendant has due process rights to specific notice in the charging document and proof beyond a reasonable doubt, as well as, the constitutional guarantee of a jury determination” with regard to ”any factual determination that triggers a mandatory minimum sentence[.]” Chichkin‘s Brief at 5; Roche‘s Brief at 5. Although Appellants recognize Alleyne and its progeny provide an exception for prior convictions, they insist “[a]cceptance of ARD . . . bears no relationship to a prior conviction because it involves no finding of guilt beyond a reasonable doubt (or even misconduct).” Chichkin‘s Brief at 10; Roche‘s Brief at 11. Furthermore, they assert that, with the exception of the designation in the DUI penalty statute, this Court has “repeatedly held” that acceptance of ARD does not constitute a prior conviction. Chichkin‘s Brief at 11; Roche‘s Brief at 11. Regardless of how the Legislature characterizes a prior ARD acceptance, Appellants insist, it is not a “prior conviction” and, therefore, is a “fact” triggering an enhanced sentence which, under Alleyne, “must be found by a jury beyond a reasonable doubt.” Chichkin‘s Brief at 12; Roche‘s Brief at 13. Because they were not “afford[ed] the constitutional procedural protections of Alleyne,” Appellants argue, we must vacate the mandatory minimum sentences and remand for resentencing. Chichkin‘s Brief at 13; Roche‘s Brief at 14.
The Commonwealth agrees that Appellants’ mandatory minimum sentences should be vacated under Alleyne because “the portion of
Our analysis of Appellants’ claim begins with Alleyne. In Alleyne, the United States Supreme Court, held ”[a]ny 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.” Alleyne, 570 U.S. at 103 (emphasis added). The decision was an expansion of the Court‘s prior ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), which applied only to those facts that increased the penalty for a crime beyond the “prescribed statutory maximum.” Alleyne, 570 U.S. at 107, citing Apprendi, 530 U.S. at 490. In Alleyne, the Court vacated the defendant‘s mandatory minimum sentence, which the trial court imposed after it found, by a preponderance of the evidence, that the defendant had “brandished” — as opposed to simply used or carried — a firearm during the commission of his offense. Alleyne, 570 U.S. at 117. The Court opined: “Because the finding of brandishing increased the penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt.” Id.
While the Alleyne Court held the “fact” that subjected the defendant to a mandatory minimum sentence had to be determined by a jury under the “beyond a reasonable doubt” standard, the Court cautioned that it did not intend to eliminate all judicial fact finding at sentencing:
Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment. This position has firm historical roots as well. . . .
“[W]ithin the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment.”
“[E]stablishing what punishment is available by law and setting a specific punishment within the bounds that the law has prescribed are two different things.” Our decision today is wholly consistent with the broad discretion of judges to select a sentence within the range authorized by law.
Alleyne, 570 U.S. at 116–17 (citations omitted).
Nevertheless, the United States Supreme Court, in both Apprendi and Alleyne, recognized an exception to this general rule based upon its prior decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), where the Supreme Court rejected a defendant‘s “constitutional claim that his recidivism[, which increased the penalty for his crime,] must be treated as an element of his offense.” See Almendarez-Torres, 523 U.S. at 247 (emphasis added). Therefore, the Apprendi Court held: ”Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added). See also Alleyne, 570 U.S. at 111 n.1 (Almendarez-Torres recognized “a narrow exception to this general rule for the fact of a prior conviction“). Although the Apprendi Court questioned the continued vitality of Almendarez-Torres,7 to date the decision has not overruled or modified. See Commonwealth v. Aponte, 855 A.2d 800, 802 (Pa. 2004) (holding sentencing enhancement, which increased statutory maximum penalty “upon proof of a prior conviction for a similar offense, without requiring proof beyond a reasonable doubt before a jury,” was constitutionally valid).
Therefore, pursuant to the foregoing authority, it is clear that any fact used to increase a defendant‘s sentence, which is not included as an element of the offense charged — such as the amount of
Thus, the question presented in the present appeals is whether Appellants’ prior acceptances of ARD constitute an unproven “fact,” which must be submitted to a jury, or a prior conviction, which may be determined by the court at sentencing.
In Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985), the Pennsylvania Supreme Court explained the purpose of Pennsylvania‘s ARD program as follows:
ARD . . . is a pretrial disposition of certain cases, in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant‘s successful participation in a rehabilitation program, the content of which is to be determined by the court and applicable statutes.
Under the ARD rules, which this Court created in 1972 pursuant to our authority to supervise the lower courts, the district attorney has the discretion to refuse to submit a case for ARD, and if the case is submitted for ARD, the court must approve the defendant‘s admission. These rules . . . also provide that the defendant must agree to the terms of the ARD, and that after he has completed the program successfully, the charges against him will be dismissed, upon order of court. If he does not complete the ARD successfully, he may be prosecuted for the offense with which he was charged. The district attorney‘s utilization of ARD is optional under the rules.
The impetus behind the creation of such rules was the belief . . . that some “cases which are relatively minor or which involve social or behavioral problems . . . can best be solved by programs and treatments rather than by punishment.”
Id. at 931 (citations omitted and emphasis added).
It is well-established that the admission into the ARD program is not considered a conviction for any purpose, other than classification of a defendant as a subsequent or habitual offender under the MVC. In Commonwealth v. Knepp, 453 A.2d 1016 (Pa. Super. 1982), this Court explained that admission to ARD is “not equivalent to a conviction . . . since charges are deferred until completion of the program.” Id. at 1019 (footnote omitted). In that case, we concluded a trial court is permitted to consider the defendant‘s prior acceptance of ARD as a sentencing factor in determining the appropriate sentence within the guidelines range, so long as the court does “not ignore the presumption of innocence nor regard the prior arrest information as evidence of criminal conduct.”8 Id. Nevertheless, as
Relevant herein, Section 3804 of the MVC mandates that an individual convicted of DUI, where there was an accident causing damage to a vehicle or property, shall be imprisoned for “not less than 30 days” when the DUI is the individual‘s “second offense.”
With this background in mind, we conclude Appellants’ prior acceptances of ARD cannot be categorized as “prior convictions” exempt from the holding of Apprendi and Alleyne. First, the Apprendi Court described the “prior conviction” exception as “an exceptional departure from [ ] historic practice” and the Alleyne Court categorized it as “a narrow exception to [the] general rule.” Alleyne, 570 U.S. at 112 n.1; Apprendi, 530 U.S. at 487. Second, in analyzing the exception set forth in Almendarez-Torres, the Apprendi Court emphasized that the defendant in that case ”had admitted the three earlier convictions for aggravated felonies — all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own[.]” Apprendi, 530 U.S. at 488. The Court concluded:
Both the certainty that procedural safeguards attached to any “fact” of prior conviction, and the reality that [the defendant in Almendarez-Torres] did not challenge the accuracy of that “fact” in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a “fact” increasing punishment beyond the maximum of the statutory range.
* * *
[T]here is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.
Id. at 488, 496 (footnote omitted and emphasis added). See also Aponte, 855 A.2d at 811 (“Where . . . the judicial finding [at sentencing] is the fact of a prior conviction, submission to a jury is unnecessary, since the prior conviction is an objective fact that initially was cloaked in all the constitutional safeguards, and is now a matter of public record.“) (emphasis added).
As explained above, ARD is a pretrial disposition of charges. Lutz, 495 A.2d at 931. Upon successful completion of the program, a defendant is entitled to move for dismissal of the charges and expungement of the corresponding arrest record.
Nevertheless, the trial court here found that Appellants’ “prior ARD[s are] a sentencing factor,” unlike the facts at issue in Alleyne “that were elements to the actual crime.” Trial Ct. Op. at 5 (emphasis added). Because Appellants’ prior ARDs are “unrelated” to their current DUI offenses, the trial court concluded they constituted “a sentencing factor that is taken into consideration when sentencing an individual of a DUI.” Id. Therefore, the court found no “violation of Appellant[s‘] due process rights and [their] right to a jury trial.” Id.
Our review of the language in Alleyne upon which the trial court relies — supporting continued judicial fact finding in sentencing — reveals the Supreme Court was attentive to the “broad discretion of judges to select a sentence within the range authorized by law.” See Alleyne, 570 U.S. at 117 (emphasis added). Indeed, the High Court did not intend to restrict a sentencing court‘s discretion to consider numerous factors when imposing a sentence within the sentencing guideline ranges determined by the Legislature. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc) (deadly weapon sentencing enhancement statute does not implicate Alleyne because it does not mandate minimum sentence; although, if applicable, enhancement statute requires court to raise standard guideline range, court “retains the discretion to sentence outside the guideline range“).
Rather, the Alleyne Court focused on “facts” that statutorily increased a defendant‘s sentence absent any discretion on the part of the trial court, i.e., mandatory minimum sentencing statutes. See Alleyne, 570 U.S. at 114-15 (“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.“). Alleyne mandates that any fact that increases the defendant‘s sentence, with the narrow exception of a prior conviction, must be submitted to a jury and found beyond a reasonable doubt. The Supreme Court did not intend to permit a sentencing court to determine certain “facts” under the guise that they are general “sentencing factors,” when the court has no discretion whether or not to impose the mandatory minimum term.
Therefore, because Appellants’ prior acceptances of ARD do not constitute convictions “cloaked in all the constitutional safeguards,”10 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 Section 3804. Accordingly, that portion of
What remains unresolved, however, is exactly what “facts” the Commonwealth must prove, beyond a reasonable doubt, in order to satisfy the constitutional concerns of Alleyne and its progeny. The Commonwealth suggests proof a defendant accepted ARD for a prior DUI offense, without more, is sufficient to enhance the present sentence. Commonwealth‘s Brief at 9. The Commonwealth argues: “The Pennsylvania Legislature may enact statutes and ordinances for the welfare and health of its citizens, so long as statutes or ordinances are reasonable and not arbitrary and do not invade fundamental liberties.” Id. Further, because “[t]he General Assembly had more than a rational basis to impose increasing punishments for recidivist drunk drivers[,]” the Commonwealth insists proof of a prior acceptance of ARD is a proper sentencing enhancement. Id. at 11.
We disagree. Instead, we agree with Appellants that “[t]he treatment of an ARD acceptance conclusively as a prior offense, resulting in enhanced punishment with a mandatory minimum sentence, offends both substantive and procedural due process.”12 See Chichkin‘s Brief at 13; Roche‘s Brief at 14.
The Pennsylvania Supreme Court recently explained the fundamental differences between procedural and substantive due process concerns:13
Procedural due process “is a flexible concept which ‘varies with the particular situation.‘” Bundy v. Wetzel, 646 Pa. 248, 258, 184 A.3d 551, 557 (2018) (quoting Zinermon v. Burch, 494 U.S. 113, 127 (1990)). Its “central demands” are “an ‘opportunity to be heard at a meaningful time and in a meaningful manner.‘” Id. (quoting Commonwealth v. Maldonado, 576 Pa. 101, 108, 838 A.2d 710, 714 (2003)). Such requirements, however, “are implicated only by adjudications, not by state actions that are legislative in character.” Small v. Horn, 554 Pa. 600, 613, 722 A.2d 664, 671 (1998).
* * *
Under the heading of “substantive due process,” the Due Process Clause not only guarantees a fair process, but “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Commonwealth v. Bullock, 590 Pa. 480, 491, 913 A.2d 207, 214 (2006) (quoting Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997)).
Sutton v. Bickell, 220 A.3d 1027, 1032-33 (Pa. 2019). “[F]or substantive due process rights to attach there must first be the deprivation of a property right or other interest that is constitutionally protected.” Khan v. State Bd. of Auctioneer Examiners, 842 A.2d 936, 946 (Pa. 2004). Prominent in due process jurisprudence is the protection afforded to those accused of a crime:
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
In re Winship, 397 U.S. 358, 364 (1970).
In Nelson v. Colorado, 137 S. Ct. 1249 (U.S. 2017), the United States Supreme Court considered whether a state is “obliged to refund fees, court costs, and restitution exacted from [a] defendant upon, and as a consequence of, [a] conviction” when that conviction is subsequently “invalidated by a reviewing court and no retrial will occur[.]” Nelson, 137 S. Ct. at 1252. The statute at issue permitted the state to retain the funds “unless and until” the exonerated defendant proved “her innocence by clear and convincing evidence” in a separate civil proceeding. Id. The Nelson Court held “[t]his scheme . . . offends the Fourteenth Amendment‘s guarantee of due process” because “[a]bsent conviction of a crime, one is presumed innocent.” Id. Specifically, in concluding the procedure violated substantive due process concerns, the Court explained:
“[A]xiomatic and elementary,” the presumption of innocence “lies at the foundation of our criminal law.” [A state] may not retain funds taken from [defendants] solely because of their now-invalidated convictions, for [a state] may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.
Id. at 1255–56 (citations and footnotes omitted).
Here, the Commonwealth seeks to label Appellants as “recidivist drunk drivers” based solely on their prior acceptances of ARD. See Commonwealth‘s Brief at 11. However, as we explained supra, “ARD . . . is a pretrial disposition” and admission into an ARD program is “not equivalent to a conviction . . . since charges are deferred until completion of the program.” Lutz, 495 A.2d at 931; Knepp, 453 A.2d at 1019 (footnote omitted). By treating a defendant‘s mere prior acceptance of ARD as a prior conviction for sentencing purposes, the Legislature, like the state in Nelson, determined a defendant, who has been “adjudged guilty of no crime” is “nonetheless guilty enough” to be considered a recidivist drunk driver subject to enhanced penalties. Nelson, 137 S.Ct. at 1256.
Due process considerations protect those accused of committing a crime from conviction “except upon proof beyond a reasonable doubt.” Winship, 397 U.S. at 364. 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
Therefore, we conclude the particular provision of
[Roche‘s Counsel]: That‘s correct, Your Honor.
N.T., Guilty Plea, at 4.
Nevertheless, during her plea colloquy, Roche was not asked to confirm her prior DUI arrest, nor her prior acceptance of ARD. Rather, the sole mention of her mandatory minimum sentence was during the colloquy in the following exchange, when the Commonwealth informed Roche of her limited appeal rights:
[Commonwealth: Y]ou could argue that the sentence the judge was impose is an unlawful sentence. However, I can assure you that the sentence which has been negotiated between your attorney and me to the mandatory minimum sentence . . . is the lowest sentence allowed by law.
Do you understand that?
[Roche]: Yes, sir.
N.T. Guilty Plea at 8. Nowhere during the guilty plea hearing did the Commonwealth prove, or did Roche concede, that she committed the prior DUI offense. Accordingly, her enhanced sentence violates Alleyne and due process concerns.
Judgments of sentence vacated. Cases remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2020
Notes
[Commonwealth:] Your Honor, we are proceeding by way of 3802(a)(1), with accident. This is a mandatory minimum matter, and this should be a Tier II offense.
THE COURT: You‘re expecting that there is a prior offense?