Com. v. Hummel, H. ( 2023 )

J-S44013-22
2023 PA SUPER 57
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HEATHER LOUISE HUMMEL : No. 1147 MDA 2022
Appeal from the Judgment of Sentence Entered July 25, 2022
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000309-2022
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
OPINION BY PANELLA, P.J.: FILED: APRIL 4, 2023
The Commonwealth of Pennsylvania appeals from the judgment of
sentence imposed following the guilty plea entered by Heather Louise Hummel
to driving under the influence of alcohol and controlled substances (“DUI”), in
violation of 75 Pa.C.S.A. § 3802(d)(3), as a first-time DUI offender. On appeal,
the Commonwealth argues it should have been permitted to establish
Hummel’s prior acceptance of Accelerated Rehabilitative Disposition (“ARD”)
as a prior offense. Applying this Court’s recent decisions in Commonwealth
v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc), appeal granted,
518 MAL 2022 (Pa. Mar. 15, 2023), and Commonwealth v. Moroz, 284 A.3d
227 (Pa. Super. 2022) (en banc), we vacate the judgment of sentence and
remand for resentencing.
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* Retired Senior Judge assigned to the Superior Court.
J-S44013-22
Hummel was arrested and charged with various traffic and DUI-related
offenses following an incident on November 26, 2021. The DUI offenses were
initially charged as second offenses and graded as first-degree misdemeanors.
Hummel filed an omnibus pretrial motion seeking exclusion of her prior
acceptance of ARD for a 2017 incident, based upon Commonwealth v.
Chichkin, 232 A.3d 959, 969-71 (Pa. Super. 2020) (holding that 75 Pa.C.S.A.
§ 3806(a), which classified ARD as a prior offense in a DUI prosecution,
violates due process). See 75 Pa.C.S.A. § 3804 (setting forth heightened
sentencing requirements for second, third and subsequent DUI offenses); 75
Pa.C.S.A. § 3806(a) (defining a “prior offense” as any conviction for which
judgment of sentence has been imposed …, acceptance of [ARD] or other form
of preliminary disposition before the sentencing on the present violation…”).
In granting the pretrial motion, the trial court stated Hummel would be
considered a first-time offender for sentencing purposes and altered the
offenses to ungraded misdemeanors.
On July 25, 2022, Hummel entered a guilty plea to DUI – alcohol and
controlled substances as a first offense. Pursuant to the plea agreement, the
trial court sentenced Hummel to 6 months of probation with restrictive DUI
conditions, including 10 days of house arrest. The Commonwealth filed a
timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
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The Commonwealth challenges the application of Chichkin in light of
more recent case law and argues it should have been allowed to prove
Hummel’s prior acceptance of ARD during sentencing. See Commonwealth’s
Brief at 10-11.
The Commonwealth’s argument concerning the constitutionality of 75
Pa.C.S.A. § 3806(a) challenges the legality of Hummel’s sentence. See
Moroz, 284 A.3d at 230; see also 42 Pa.C.S.A. § 9781(a) (“The defendant
or the Commonwealth may appeal as of right the legality of the sentence.”).
Therefore, our standard of review is de novo and our scope of review is
plenary. See Moroz, 284 A.3d at 230.
While the instant matter was pending on appeal, this Court, sitting en
banc, squarely addressed this issue in Richards and Moroz. The decisions
emphasize that the General Assembly provided that “ARD will constitute a
prior offense for purposes of sentencing on a second or subsequent DUI
conviction …, and a defendant is presumed to be aware of the relevant
statute.” Richards, 284 A.3d at 220 (citation omitted); Moroz, 284 A.3d at
233. The nearly identical decisions therefore expressly overruled Chichkin
and held “the portion of Section 3806(a), which equates prior acceptance of
ARD to a prior conviction for purposes of imposing a Section 3804 mandatory
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minimum sentence, passes constitutional muster.” Richards, 284 A.3d at
220; Moroz, 284 A.3d at 233.1
Here, the trial court did not apply Hummel’s prior acceptance of ARD as
a prior conviction and sentenced Hummel as a first-time offender for the
current DUI offense. As a result of this Court’s recent en banc decisions in
Richards and Moroz, the trial court’s ruling based upon Chichkin, was
correct at the time but must be reversed now. See Commonwealth v.
Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (explaining that our appellate
courts apply the law in effect at the time of decision and the parties will be
entitled to the benefit of changes in the law occurring before the judgment of
sentence is final). Accordingly, we must vacate Hummel’s judgment of
sentence and remand for resentencing.
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1 We note that the Pennsylvania Supreme Court recently addressed the
application of Chichkin in Commonwealth v. Verbeck, 1 MAP 2022, 2023
WL 2342405 (Pa. filed Feb. 28, 2023). However, the Verbeck Court was
equally divided. See Commonwealth v. Mosley, 114 A.3d 1072, 1082 n.11
(Pa. Super. 2015) (“When a judgment of sentence is affirmed by an equally
divided court … no precedent is established and the holding is not binding on
other cases.” (citation omitted)).
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Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2023
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