Com. v. Jordan, V. ( 2023 )

J-S35045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
VALERIE JEAN JORDAN : No. 833 MDA 2021
Appeal from the Judgment of Sentence Entered June 22, 2021
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001220-2020
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: APRIL 19, 2023
The Commonwealth of Pennsylvania appeals from the judgment of
sentence imposed in the Court of Common Pleas of Centre County (trial court)
on Valerie Jean Jordan (Jordan) following her entry of an open guilty plea to
driving under the influence of alcohol (DUI), as a first-time DUI offender.1 On
appeal, the Commonwealth contends that Jordan’s prior acceptance of
Accelerated Rehabilitative Disposition (“ARD”) constitutes 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.
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(b) (high rate of alcohol).
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2022) (en banc), we vacate the judgment of sentence and remand for
resentencing.
I.
The relevant facts and procedural history of this case are as follows. On
June 14, 2020, police arrested Jordan for DUI after a traffic stop in which they
observed signs of her impairment including a strong odor of alcohol and her
red, glassy eyes. Jordan admitted to drinking alcohol and consented to a
blood draw, which measured her blood alcohol content at .133 percent. The
Commonwealth charged Jordan with various traffic and DUI-related offenses.
On March 23, 2021, Jordan entered an open guilty plea to one count of
DUI (high rate of alcohol) and the remaining charges were nolle prossed. At
the May 24, 2021 sentencing hearing, defense counsel argued that Jordan
must be sentenced as a first-time offender under this Court’s decision in
Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), despite her
acceptance of ARD for a 2013 DUI offense. The Chichkin Court held that the
portion of the DUI statute equating prior acceptance of ARD to a prior
conviction for purposes of imposing a mandatory minimum sentence for a
second or subsequent DUI offense was unconstitutional. See Chichkin at
961.2 The Commonwealth objected and stated its position that Jordan should
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2See also 75 Pa.C.S. § 3806(a) (classifying ARD as a prior offense in a DUI
prosecution), 75 Pa.C.S. § 3804 (setting forth heightened mandatory
minimum sentencing requirements for second, third and subsequent DUI
(Footnote Continued Next Page)
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be sentenced as a second-time offender. The trial court found that Chichkin
controlled and sentenced Jordan to six months of probation with restrictive
DUI conditions.3 The Commonwealth timely appealed and it and the trial court
complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).
II.
The Commonwealth challenges the application of Chichkin in light of
more recent case law and requests that this case be remanded for
resentencing in light of Jordan’s prior ARD acceptance. It points to this Court’s
recent en banc decisions in Richards and Moroz, supra, which were issued
while the instant matter was pending on appeal, as controlling this issue. (See
Commonwealth’s Brief, 11/28/22, at 33-37).4 We agree.
As we recently explained in Commonwealth v. Hummel, 2023 WL
276443 (Pa. Super. filed April 4, 2023):
[The] Richards and Moroz [] 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
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offenses) and 75 Pa.C.S. § 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[.]”)
3 The trial court entered an amended sentencing order on June 22, 2021, for
the apparent purpose of correcting the docket number listed in the caption.
4 Because this issue concerns the legality of Jordan’s sentence, our standard
of review is de novo and our scope of review is plenary. See Moroz, supra
at 230.
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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
minimum sentence, passes constitutional muster.’ Richards, 284
A.3d at 220; Moroz, 284 A.3d at 233.
Id. at *1.
Instantly, the trial court did not apply Jordan’s prior acceptance of ARD
as a prior conviction and sentenced her as a first-time offender for the current
DUI offense. As a result of our decisions in Richards and Moroz, the trial
court’s ruling based upon Chichkin, while correct at the time, must be
reversed now. See Hummel, supra at *2 (explaining that appellate courts
apply law in effect at time of decision and parties will be entitled to benefit of
any changes in law occurring before judgment of sentence is final).5
Accordingly, we vacate Jordan’s judgment of sentence and remand for
resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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5 We note that while the Pennsylvania Supreme Court recently addressed
application of Chichkin in Commonwealth v. Verbeck, 2023 WL 2342406(Pa. filed Feb. 28, 2023), the Court was equally divided and the decision,
therefore, does not establish a binding precedent. See Hummel, supra at
*1 n.1.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/19/2023
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