The Legal Intelligencer
June 12, 2025
The Pennsylvania Supreme Court has ruled that 75 Pa.C.S.A.
3806 of the Motor Vehicle Code—which includes accelerated rehabilitation
disposition (ARD) in the definition of a prior offense for purpose of
sentencing on a second or subsequent driving under the influence
conviction—unconstitutional.
The court found that ARD does not equate to a conviction
because it lacks the procedural safeguards of a criminal trial, such as the
right to a jury trial and the requirement of proof beyond a reasonable doubt.
The high court’s decision finally puts to rest the evolving
question of whether admission into the ARD program can be used as a sentence
enhancement for purposes of deterring recidivist conduct on Pennsylvania’s
roadways.
In May 2020, the Pennsylvania Superior Court turned the DUI
statute on its head.
Igor Chichkin was charged with DUI in Philadelphia in 2017.
Chichkin had a prior DUI charge in which he received ARD, a diversion program.
Upon acceptance into the ARD program a defendant need not plead guilty or not
guilty. If the defendant successfully completes the program the charges are
dismissed and the defendant may seek the expungement of the charge.
Prior to the decision is Chichkin, if a defendant was
arrested within 10 years of accepting ARD, he or she could be charged with a
DUI second offense which carried a mandatory minimum of 30 days in jail, 75
Pa.C.S.A. 3804 (b) (2). For sentencing purposes in Pennsylvania an ARD was
considered a prior offense, Section 3806 (a).
Chichkin went to trial on his new offense and was convicted
of DUI. As a result of his prior ARD, he was sentenced to 30 days to six months
in jail.
On appeal, Chichkin raised the landmark U.S. Supreme Court
decision of Alleyne v. United States, 570 U.S. 99 (2013). The Alleyne court
held that the Sixth Amendment guarantees an 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 beyond a reasonable doubt.
Alleyne was an expansion of the high court's prior
ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Alleyne 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."
As a result, the court vacated Chichkin’s mandatory minimum
sentence.
The court wrote about the prior offense excused by ARD,
“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,” see Commonwealth v. Chichkin, 232 A.3d 959 (Pa.
Super. 2020).
The Chichkin decision created chaos for
prosecutors and the courts. However, that chaos was short lived. In fact, I
anticipated the recent Pennsylvania Supreme Court decision in an article for “The Legel Intelligencer” in January
2023. I wrote then, “The prosecution of repeat DUI offenders is back where it
was prior to 2020 ... this is not the last we will hear on this subject. Stay
tuned, this matter will most likely end up before the Pennsylvania Supreme
Court.”
How did this matter ultimately get to the high court?
In Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc),
and Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. 2022) (en banc), the
Superior Court held that, pursuant to Section 3806, a defendant’s previous
acceptance of ARD for a DUI constitutes a prior offense for purposes of
imposing a mandatory minimum sentence under Section 3804.
The court made it clear that the decision of a defendant to
enter the ARD program is voluntary. A defendant “is free to reject
participation in the program if he wishes to avail himself of his full panoply
of constitutional rights.”
Applying for, and being accepted into, the ARD program does
not carry the same procedural safeguards of a conviction following trial. The
court found “The safeguards in place to be adequate.” The court emphasized that
“Section 3806(a) appropriately notifies a defendant that earlier ARD acceptance
will be considered a prior DUI offense for future sentencing purposes.” The
voluntary nature of the ARD program mitigates the due process concerns
expressed by the U.S. Supreme Court. As a result, a defendant’s prior
acceptance of ARD fits within the limited “prior conviction” exception set
forth in Apprendi.
The Superior Court was unequivocal in its holding in Richards,
“We expressly overrule Chichkin.”
On May 30, 2025, the Pennsylvania Supreme Court
decided Commonwealth v. Shifflett, No. 26 MAP 2024. In 2012, Shifflett was
charged with the offense of driving under the influence of alcohol 75 Pa.C.S.
Section 3802(d)(3). He was accepted into an ARD program.
In 2022, George Thomas Shifflett was arrested for another
DUI and, based on his previous acceptance of ARD for his 2012 offense, he was
charged with DUI as a second offense.
Shifflett pleaded guilty to the second DUI. At that time,
the commonwealth asserted that, pursuant to Section 3806 the plea constituted a
second DUI offense. The trial court agreed with Shifflett’s claim that the
prior ARD should be considered a prior offense.
The commonwealth appealed, arguing that the trial court
erred in failing to treat the appellant’s 2012 offense as a prior offense under
Section 3806 and impose an enhanced sentence under Section 3804 as a result of
the decisions in Richards and Moroz holding that, pursuant
to Section 3806, a defendant’s previous acceptance of ARD for a DUI constitutes
a prior offense for purposes of imposing a mandatory minimum sentence under
Section 3804.
According to the opinion in Shifflett, the trial court,
in its opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate
Procedure, concluded that, in light of Richards and Moroz, it
erred in granting the appellant’s motion to exclude at sentencing evidence of
his previous acceptance of ARD for his 2012 offense, and, accordingly, requested
that the Superior Court remand the case for resentencing. In a unanimous,
unpublished memorandum opinion, the Superior Court vacated Shifflett’s judgment
of sentence and remanded for resentencing.
The Pennsylvania Supreme Court agreed to hear Shifflett’s
appeal focusing on the U.S. Supreme Court’s decision in Alleyne, and
whether it was unconstitutional to consider Shifflett’s previous acceptance of
ARD as a prior offense for sentencing purposes.
Pennsylvania Supreme Court Chief Justice Debra Todd, writing
for a 4-3 majority, found “acceptance into an ARD program does not offer a
defendant any of the constitutional safeguards that accompany either a criminal
conviction or a guilty plea proceeding.”
The safeguards recognized by the U.S. Supreme Court’s
in Apprendi and Alleyne, namely that any fact which
increases the penalty for a crime beyond the statutory maximum, other than the
fact of a prior conviction, must be submitted to a jury and proven beyond a
reasonable doubt are not present with admission to ARD.
The high court continued, “Thus, an individual’s previous
acceptance of ARD, which, when construed as a prior offense under Section 3806
to increase the penalty for a subsequent conviction pursuant to Section 3804,
is a fact that must be submitted to a jury and proven beyond a reasonable
doubt.”
The reasoning in Chichkin is again the law of the
commonwealth. Once and for all, admission to ARD is not considered a prior
offense for purposes of enhancing a driving under the influence sentence.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly and George and the former district attorney of Lawrence County,
Pennsylvania. He is the author of "The Executioner’s Toll." You can
follow him on Bluesky @matthewmangino.bsky.social or contact him at
mmangino@lgkg.com.
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