Sunday, July 26, 2020

The Legal: Pa. Superior Court Strikes Blow to DUI Sentencing Scheme

Matthew T. Mangino
The Legal Intelligencer
July 24, 2020
The Pennsylvania Superior Court recently changed the sentencing landscape for those facing prosecution for a second, or subsequent charge, of Driving Under the Influence. In Commonwealth v. Chichkin, 2020 Pa. Super. 121, No. 3473 EDA 2018 and Commonwealth v. Roche, 2020 Pa.Super. 121, No. 3475 EDA 2018, the Superior Court ruled the prior acceptance of accelerated rehabilitative disposition (ARD) does not qualify as a prior conviction for purposes of driving under the influence (DUI) sentencing.
Igor Chichkin was arrested and charged with DUI in Philadelphia for an incident that occurred during fall 2017. His case proceeded to trial in the Philadelphia Municipal Court in spring 2018, at which time he was found guilty of two counts of DUI-general impairment under 75 Pa.C.S. Section 3802 (a) (1), “An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.”
A violation of Section 3802 (a) (1) is punishable by six months of probation and $300 fine. However, in 2013, Chichkin had been arrested for DUI and was accepted into the ARD program pursuant to 75 Pa.C.S. Section 3807.
As a result, the court applied 75 Pa.C.S. Section 3804 (b) (2) (i) and imposed a mandatory minimum sentence of 30 days in jail because the current DUI was considered a second offense within 10 years.
The facts in Lisa Roche’s case were similar. She pleaded guilty in Philadelphia in 2018 and was sentenced to 30 days to four months because she had been admitted into the ARD program within the previous 10 years.
In both cases, the appellants argued that the application of a mandatory minimum sentence violated well-established decisions by Pennsylvania appellate courts and the U.S. Supreme Court.
In 1982, the Pennsylvania Superior Court ruled in Commonwealth v. Knepp, 453 A.2d 1016 (1982) admission into the ARD program is not considered a conviction for any purpose, other than the classification of the defendant as a recidivist.
For 38 years it has been clear that ARD is not a conviction. Defendants who enter the ARD program do not plead guilty. They apply to participate in the ARD program, admission is at the discretion of the district attorney. Once an applicant successfully completes the program he can apply for the expungement of their record.
Chichkin and Roche appealed their convictions to the Superior Court arguing the enhancement of their sentence based on a conviction for DUI within 10 years of a prior ARD is unconstitutional.
Relying on Alleyne v. United States, 570 U.S. 99 (2013) the appellants argued that in order to apply a mandatory minimum—without a trial or guilty plea on the prior offense—the commonwealth must prove the prior DUI beyond a reasonable doubt.
Allen Ryan Alleyne robbed a convenience store manager in Virginia. He was convicted of robbery and firearm possession by the U.S. District Court for the Eastern District of Virginia.
At the time, carrying a firearm during a violent crime carried a mandatory minimum penalty of five years. If the defendant was found to have “brandished” the firearm during the crime the mandatory minimum would increase to seven years. The judge, not the jury, determined at sentencing that Alleyne had “probably” brandished the firearm during the robbery, and imposed the seven-year mandatory minimum.
Alleyne’s case made its way to the U.S. Supreme Court. Justice Clarence Thomas wrote the opinion for a 5-4 majority. The court held that the Sixth Amendment guarantees the accused a right to a trial by a fair and impartial jury, which can only be accomplished if all of the facts that are elements of the crime are presented to the jury. If an element of the crime increases the mandatory minimum punishment, it must be submitted to the jury and found to be true beyond a reasonable doubt.
Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466 (2000) wherein the high court ruled criminal sentences cannot be enhanced above the limits provided by statute unless the jury finds beyond a reasonable doubt the existence of the specific aggravating factors giving rise to the enhancement.
Prior to Apprendi and Alleyne it was common in Pennsylvania drug prosecutions to enhance penalties without proving beyond a reasonable doubt the elements necessary to increase the sentence. For instance, the one-year enhancement for selling drugs within 1,000 feet of a school was determined by a judge not a jury. Having possession of a gun during a drug transaction or enhancing a sentence based on the volume of drugs were typically not proven beyond a reasonable doubt.
In 2014, the Superior Court ruled in Commonwealth v. Newman, 99 A.3d 86 (2014) applying sentence enhancements or imposing mandatory minimums without a jury finding was unconstitutional. In 2017, the Pennsylvania Supreme Court in Commonwealth v. Hopkins, 164 A.3d 1133 (2017), found the “1,000 feet of a school enhancement” unconstitutional. In order to enhance or impose a mandatory sentence, the trier of fact must make a finding beyond a reasonable doubt that the defendant committed the conduct that increased the penalty.
As a result, a number of mandatory minimum sentencing statutes have been struck down, because they allowed judges to make findings by a preponderance of the evidence instead of requiring the elements be found by a jury beyond a reasonable doubt.
The Chichkin and Roche opinion authored by Judge Daniel D. McCaffery analogized the Apprendi and Alleyne decisions—which struck down mandatory minimum sentences—to 75 Pa.C.S. Section 3806 that allowed for a defendant to receive an increased DUI sentence for a second or subsequent DUI despite no finding of guilt on the first DUI.
There was an exception carved out for prior convictions in the holdings in Apprendi and Alleyne. A prior conviction stood for itself and did not have to be proven beyond a reasonable doubt when used to enhance a subsequent sentence. However, ARD is not a prior conviction.
McCaffrey wrote, “We conclude the appellant’s acceptances of ARD cannot be categorized as ‘prior convictions’ exempt from the holding of Apprendi and Alleyne.”
Following this reasoning it is unconstitutional to apply heightened DUI penalties to individuals whose prior cases have not been subject to an admission or a verdict of guilt following trial. The Superior Court further reasoned that the purpose of the ARD program is not to convict the defendant but rather offer rehabilitation, treatment and a clean start. Therefore, the mere acceptance of ARD is not the same as a conviction.
In Chichkin and Roche, “The commonwealth seeks to label appellants as ‘recidivist drunk drivers’ based solely on their prior acceptances of ARD.”
McCaffery concluded, “75 Pa.C.S. Section 3806 (a), which defines a prior acceptance of ARD in a DUI case as a ‘prior offense’ for DUI sentencing enhancement purposes, offends the due process clause and is therefore unconstitutional.”
As a result, what was once a second offense is now a “second-first offense” for purposes of DUI sentencing. That alone will have a significant impact on those who come before the court after re-offending. In addition, for those who have already come before the court and have been sentenced as recidivist this decision may open the door to post-conviction relief. Expect a spike in petitions from those sentenced on second, third or subsequent DUI offenses who remain in jail, on parole or serving a term of probation.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George in New Castle. His weekly column on crime and punishment is syndicated by GateHouse Media. He is the author of The Executioner’s Toll, 2010. You can reach him at and follow him on Twitter @MatthewTMangino.
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