Com. v. Shifflett, G. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GEORGE THOMAS SHIFFLETT : No. 1480 MDA 2022
Appeal from the Judgment of Sentence Entered September 22, 2022
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000650-2022
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 24, 2023
Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”)
appeals from the September 22, 2022 judgment of sentence1 entered in the
Court of Common Pleas of Adams County.2 In imposing sentence on George
Thomas Shifflett (“Shifflett”), the trial court considered Shifflett’s present
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1 The trial court imposed its sentence on September 22, 2022, as discussed
infra. The sentencing order, however, was not entered on the trial court
docket until September 30, 2022. A judgment of sentence exists as of the
date a sentence is announced in open court regardless of the date the
sentencing order is filed. Commonwealth v. Green, 862 A.2d 613, 619
(Pa. Super. 2004) (en banc), appeal denied, 882 A.2d 477 (Pa. 2005). Thus,
the judgment of sentence in the case sub judice is properly identified as having
been imposed on September 22, 2022, the date the trial court announced the
sentence in open court. N.T., 9/22/22, at 2-3. The caption has been corrected
accordingly.
2 Pennsylvania Rule of Criminal Procedure 721 permits the Commonwealth to
“challenge a sentence by filing a motion to modify sentence, by filing an appeal
on a preserved issue, or by filing a motion to modify sentence followed by an
appeal.” Pa.R.Crim.P. 721(A)(1).
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conviction for driving under the influence of alcohol and drugs, or a
combination of drugs,3 (“DUI”) to be his first DUI offense and sentenced
Shifflett to, inter alia, six months’ probation. We vacate Shifflett’s judgment
of sentence and the trial court’s July 29, 2022 order, as discussed infra, and
remand this case for resentencing in accordance with this memorandum.
The record demonstrates that on July 21, 2022, Shifflett pleaded guilty
generally to one count of DUI.4 N.T., 7/21/22, at 6, see also Trial Court
Order, 8/5/22; N.T., 9/22/22, at 2. At the plea hearing, to preserve the issue
for possible appeal, the Commonwealth asserted that Shifflett had been
previously convicted of a DUI offense (“ARD-DUI”) and that the prior ARD-DUI
conviction, despite being disposed of pursuant to the accelerated rehabilitative
disposition program,5 qualified as a prior DUI offense for purpose of
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3 75 Pa.C.S.A. § 3802(d)(3).
4 The Commonwealth charged Shifflett with, inter alia, DUI as a second
offense. Criminal Information, 6/3/22, at Count 6.
5 This Court previously described the accelerated rehabilitative disposition
program (“ARD”) as follows:
In Pennsylvania, ARD is a pretrial, diversionary program under the
control of the district attorneys’ offices. The decision to submit
the case for ARD rests in the sound discretion of the district
attorney[,] and the attorney for the Commonwealth must be free
to submit a case[,] or not submit [a case,] for ARD consideration
based on his[, or her,] view of what is most beneficial for society
and the offender. Thus, [a] defendant who successfully completes
ARD never admits guilt, nor does a [trial] court find the defendant
guilty beyond a reasonable doubt.
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sentencing. N.T., 7/21/22, at 2 (stating, “the Commonwealth is still asserting
that a prior [ARD-DUI] should count as a prior offense [for purpose of
sentencing] and that we would have the opportunity at sentencing [to] prove
the prior [ARD-DUI]”); see also Trial Court Order, 8/5/22 (noting that, “[t]he
Commonwealth alleges [Shifflett’s current DUI conviction] is a [second
offense] based on a prior ARD[-DUI, and Shifflett] alleges [his current DUI
conviction] is a first offense DUI for sentencing purposes”). Shifflett pleaded
guilty generally to the DUI conviction and contested that his DUI was a second
offense. N.T., 7/21/22, at 2, 6; see also N.T., 9/22/22, 2.
On July 28, 2022, Shifflett filed a motion to exclude admission and
consideration of his alleged prior ARD-DUI offense at the time of sentencing.
In his motion to exclude his alleged prior ARD-DUI, Shifflett asserted, inter
alia, that evidence of his alleged prior ARD-DUI “is not admissible under
Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013)[, as well as]
Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. [] 2020)[,] and
should not be considered for the purpose of a ‘prior offense’ under 75
Pa.C.S.A. § 3806.” Motion to Exclude Admission and Consideration of Alleged
Prior Offense at Sentencing, 7/28/22, at ¶4(b). On July 29, 2022, the trial
court granted Shifflett’s motion to exclude admission and consideration of his
alleged prior ARD-DUI at sentencing. Trial Court Order, 7/29/22.
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Commonwealth v. Hayes, 266 A.3d 679, 684 (Pa. Super. 2021) (citations,
quotation marks, ellipsis, and original brackets omitted).
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On September 22, 2022, the trial court imposed a sentence of six
months’ probation with a restrictive DUI condition of ten days of house arrest
with electronic monitoring.6 N.T., 9/22/22, at 2; see also Sentencing Order,
9/30/22. This appeal follows.7
The Commonwealth raises the following issue for our review:
Did the trial court err in barring consideration of [Shifflett’s] prior
ARD-DUI without providing [the Commonwealth] the opportunity
to prove, beyond a reasonable doubt, that [Shifflett] actually
committed the prior [ARD-DUI] offense?
Commonwealth’s Brief at 6 (extraneous capitalization omitted).
The Commonwealth’s issue raises a challenge to the legality of Shifflett’s
sentence for which our standard and scope of review are well-settled.
Commonwealth v. Richards, 284 A.3d 214, 217 (Pa. Super. 2022) (en
banc) (stating, whether placement in ARD following a prior arrest for driving
under the influence constitutes a prior conviction for sentencing purposes
implicates the legality of a sentence (relying on Commonwealth v. Infante,
63 A.3d 358, 363 (Pa. Super. 2013)), appeal granted, ___ A.3d ___, 2023 WL
2520895 (Pa. filed Mar. 15, 2023) (slip copy). “A challenge to the legality of
sentence is a question of law[ for which] our standard of review is de novo
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6 As part of his sentence, Shifflett was also ordered to undergo a drug and
alcohol evaluation and complete any treatment recommendations and to pay
a mandatory fine of $1,000.00, as well as $283.00 in court costs. N.T.,
9/22/22, at 2; see also Sentencing Order, 9/30/22.
7 Both the Commonwealth and the trial court complied with Pa.R.A.P. 1925.
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and our scope of review is plenary.” Richards, 284 A.3d at 217, quoting
Commonwealth v. Alston, 212 A.3d 526, 528 (Pa. Super. 2019).
Here, the Commonwealth asserts that the trial court erred in granting
Shifflett’s motion to exclude admission and consideration of his prior ARD-DUI
at the time of sentencing for his current DUI conviction. Commonwealth’s
Brief at 12. The Commonwealth argues that this Court’s en banc decisions in
Richards, supra, and Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super.
2022) (en banc), correctly held that 75 Pa.C.S.A. § 3606(a) equates a prior
ARD-DUI to a prior conviction for purpose of imposing a mandatory minimum
sentence pursuant to 75 Pa.C.S.A. § 3804 and is constitutionally sound and
does not violate Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne,
supra. Commonwealth’s Brief at 12. The trial court, in its Rule 1925(a)
opinion, agrees with the Commonwealth’s position. Rule 1925(a) Opinion,
11/28/22 (stating that, the trial court “mistakenly granted [Shifflett’s] motion
to exclude admission and consideration of [his] alleged [prior ARD-DUI] at
sentencing” based upon Richards, supra, and Moroz, supra (extraneous
capitalization omitted)).
Section 3804(c) of the Vehicle Code sets forth the mandatory minimum
sentencing for an individual who violates Section 3802(d), in pertinent part,
as follows:
(1) For a first offense, to:
(i) undergo imprisonment of not less than 72 consecutive
hours;
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(ii) pay a fine of not less than $1,000[.00] nor more than
$5,000[.00];
(iii) attend an alcohol highway safety school approved by
the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under [75 Pa.C.S.A. §§ ]3814 and
3815.
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days;
(ii) pay a fine of not less than $1,500[.00];
(iii) attend an alcohol highway safety school approved by
the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under [S]ections 3814 and 3815.
75 Pa.C.S.A. § 3804(c)(1 and 2). Section 3806 defines “prior offense,” in
pertinent part, as follows”
the term “prior offense” as used in this chapter shall mean any
conviction for which judgment of sentence has been imposed,
adjudication of delinquency, juvenile consent decree, acceptance
of [ARD,] or other form of preliminary disposition before the
sentencing on the present violation for any of the following:
(1) an offense under section 3802 (relating to driving under
influence of alcohol or controlled substance);
75 Pa.C.S.A. § 3806(a)(1).
In Chichkin, supra, this Court, in a three-judge panel, held that,
because [a defendant’s] prior acceptances of ARD do not
constitute convictions cloaked in all the constitutional safeguards,
[the prior acceptance of ARD is] 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.
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Chichkin, 323 A.3d at 968 (footnote and some quotation marks omitted).
The Chichkin Court held that the “portion of [Section] 3806(a), which
statutorily equates a prior acceptance of ARD to a prior conviction for purposes
of subjecting a defendant to a mandatory minimum sentence under Section
3804, is unconstitutional.” Id. (footnote omitted).
In Richards, supra, and Moroz, supra, en banc panels of this Court
expressly over-ruled Chichkin, holding that “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; see also Moroz, 284 A.3d at 233.
Thus, “a defendant's prior acceptance of ARD fits within the limited ‘prior
conviction’ exception set forth in Apprendi and Alleyne.”8 Richards, 284
A.3d at 220; see also Moroz, 284 A.3d at 233.
Recently, our Supreme Court, in a divided court, addressed the issue of
whether prior acceptance of ARD fell within the “prior conviction” exception of
Apprendi and Alleyne. Commonwealth v. Verbeck, ___ A.3d ___, 2023
WL 2342405 (Pa. filed Feb. 28, 2023) (slip copy). In Verbeck, Verbeck was
found guilty of, inter alia, driving under the influence – general impairment
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8 In Alleyne, the Supreme Court of the United States recognized its prior
decision that carved out a “prior conviction exception” to the general rule that
any fact that subjects a defendant to a mandatory minimum sentence must
be submitted to the jury and determined beyond a reasonable doubt.
Alleyne, 570 U.S. at 111 n.1, citing Almendarez-Torres v. United States,
523 U.S. 224 (1998).
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pursuant to 75 Pa.C.S.A. § 3802(a). Verbeck, ___ A.3d ___, 2023 WL
2342405, at *1. At sentencing, the trial court was aware that Verbeck had
previously been charged with a DUI offense that had been resolved through
the ARD program. Id. In fashioning its sentence, the trial court treated
Verbeck’s driving under the influence – general impairment offense as a
second offense because of his prior DUI that had been resolved through the
ARD program, and sentenced Verbeck to a mandatory minimum sentence
pursuant to Section 3804(a)(2). Verbeck, ___ A.3d ___, 2023 WL 2342405,
at *2. On direct appeal, this Court vacated Verbeck’s judgment of sentence
as it related to his driving under the influence – general impairment conviction
and remanded for resentencing on the driving under the influence – general
impairment as a first offense pursuant to this Court’s then-recent decision in
Chichkin, supra. Verbeck, ___ A.3d ___, 2023 WL 2342405, at *3; see
also Commonwealth v. Verbeck, 253 A.3d 266 (Pa. Super. filed Apr. 9,
2021) (unpublished memorandum). This Court’s order vacating Verbeck’s
judgment of sentence as it related to his driving under the influence – general
impairment conviction was affirmed by our Supreme Court in a per curiam
order because our Supreme Court, upon discretionary review, was evenly
divided in its mandate. Verbeck, ___ A.3d ___, 2023 WL 2342405, at *1.
Justice Mundy, writing in support of reversal, held that “under Sections
3804 and 3806 of the Vehicle Code, a defendant's prior ARD acceptance may
constitutionally be treated by the sentencing court as a prior offense” without
offending Apprendi and Alleyne. Verbeck, ___ A.3d ___, 2023 WL
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2342405, at *12 (joined by JJ. Dougherty and Brobson). Justice Mundy
reasoned that,
A defendant charged as a first-time DUI offender is under no legal
compulsion to accept ARD and, as such, enjoys the full panoply of
constitutional rights attendant to a criminal prosecution. By the
time such a defendant accepts ARD, he[, or she,] has been
advised of the charges against him, [or her,] and a preliminary
hearing has been held or voluntarily waived. [The defendant] has
had a chance to obtain a lawyer or have one appointed for him,
[or her,] and to review pretrial discovery. Even if he[, or she,] is
offered the option of resolving charges through ARD, he[, or she,]
is under no obligation to do so and may assert his[, or her,] right
to have the Commonwealth prove every element of the offense
beyond a reasonable doubt. If [a defendant] applies to resolve
the charges through ARD, any information he[, or she,] supplies
in connection with that application cannot be used against him[,
or her,] for any purpose (other than prosecution for giving false
information). Assuming the defendant wishes to proceed with
ARD, Section 3806(a) puts him[, or her,] on notice that successful
completion of the program will count as a “prior offense” in the
event he[, or she,] re-offends. [The defendant] thus voluntarily
accepts that state of affairs as a necessary corollary to a benefit
he[, or she,] presently receives by avoiding criminal penalties.
Furthermore, during the proceedings, a court hearing is held with
the defendant's counsel present in which the [trial] court ensures
that the defendant understands and agrees to the terms of the
program. The [trial] court then holds an off-the-record inquiry
into the underlying facts at which time interested parties,
including the defendant and the victim (if any), may present
information. Again, the information the defendant gives during
that hearing may not be used against him[, or her]. If at the end
of the hearing, the [trial] court agrees that ARD is appropriate,
the record is opened and the defendant states affirmatively
whether he[, or she,] accepts the conditions and agrees to comply
with them. An ARD participant who violates the conditions of the
program is returned to the status quo ante, and retains the same
constitutional rights as before.
Verbeck, ___ A.3d ___, 2023 WL 2342405, at *7 (citations and footnote
omitted). Justice Mundy explained that,
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if the defendant re-offends, it would make little sense to read
Apprendi as requiring that the fact of his[, or her,] earlier ARD
acceptance must be proved to a jury beyond a reasonable doubt.
Imposing such a requirement would raise the risk of unfairness
the Supreme Court [of the United States] expressly sought to
avoid in Almendarez-Torres because prior-bad-acts evidence
would have to be put before [a] jury. It would make even less
sense to require the Commonwealth to prove guilt of the prior
charge beyond a reasonable doubt, as Chichkin held.
Verbeck, ___ A.3d ___, 2023 WL 2342405, at *8 (citation omitted). The
Commonwealth, Justice Mundy explained, would still be required to “establish
the existence of the prior ARD acceptance via certified records or by whatever
other means of proof the Commonwealth wishes to use” but the treatment of
a DUI offense that was resolved through the ARD program as a prior offense
pursuant to Sections 3804 and 3806 is constitutionally sound. Thus, the
opinion in support of reversal in Verbeck expressed support to uphold this
Court’s decisions in Richards and Moroz.
Chief Justice Todd, writing in support of affirmance, held that “the
language in Section 3806[,] which includes acceptance of ARD as a prior
offense and directs the trial court at sentencing to determine the number of
ARD acceptances, if any, for purposes of enhancing the defendant's sentence,
is unconstitutional under Apprendi and Alleyne.” Verbeck, ___ A.3d ___,
2023 WL 2342405, at *12 (joined by JJ. Donohue and Wecht).9 Chief Justice
Todd reasoned that “ARD acceptance does not offer the constitutional
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9Justice Wecht wrote separately in support of affirmance. Verbeck, ___ A.3d
___, 2023 WL 2342405, at *18-*27. Justice Donohue joined Justice Wecht’s
opinion in support of affirmance. Id. at *27.
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safeguards that accompany a criminal conviction, safeguards on which the
Supreme Court [of the United States] based its tolerance for excepting prior
convictions from the Apprendi/Alleyne general rule.” Id. at *16 (stating
that, “[i]ndeed, ARD acceptance lacks the reliability of a prior conviction, as
ARD acceptance evidently has no inherent reliability, considering that, if the
conditions of the program are violated, the Commonwealth begins again and
proceeds with a trial de novo on the deferred charges[,] a trial at which the
defendant's statements at the ARD hearing are not admissible”). Chief Justice
Todd explained,
our criminal procedural rules do not require a determination of
guilt to be made during an ARD proceeding, as the rules do not
place upon the Commonwealth the burden to prove the
defendant's culpability beyond a reasonable doubt, nor do they
require the defendant to admit guilt. Further, our criminal
procedural rules do not require that the defendant be informed
that acceptance into the ARD program may serve as a prior
offense for purposes of future sentence enhancement.
[Pennsylvania] Rule of Criminal Procedure 312 requires only that
the record reflect the defendant's understanding that: (1)
acceptance and satisfactory completion of the ARD program offers
an opportunity to earn dismissal of the pending charges; and (2)
should the defendant fail to complete the ARD program, the
defendant waives the applicable statute of limitations and the
constitutional right to a speedy trial during the enrollment period.
The defendant is not informed that his[, or her,] ARD acceptance
will act as a waiver of the constitutional protections afforded by
Apprendi and Alleyne, which otherwise apply to sentence
enhancements untethered to a prior conviction. Upon successful
completion of the ARD program, the defendant may move for
dismissal of the charges and, absent objection by the
Commonwealth, the defendant's arrest record is expunged.
Finally, and most notably, no criminal penalty results from a
defendant's violation of the ARD conditions; rather, if the ARD
conditions are violated, the case proceeds on the deferred criminal
charges as provided by law.
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Verbeck, ___ A.3d ___, 2023 WL 2342405, at *16 (citations omitted).
Because “the defendant is not informed that his[, or her,] acceptance of ARD
may serve to enhance his[, or her,] sentence in a subsequent DUI matter or
that he[, she,] waives the constitutional protections afforded by Apprendi
and Alleyne[,] there can be no knowing and voluntary waiver of the
constitutional guarantees afforded by those decisions.” Id. at *17. Thus, the
opinion in support of affirmance expressed support to overturn this Court’s
decisions in Richards and Moroz, and return to the holding set forth in
Chichkin.
Turning to the case sub judice, we discern that the trial court erred as
a matter of law in granting Shifflett’s motion to exclude admission and
consideration of evidence pertaining to his ARD-DUI prior to sentencing him
for the current DUI offense. Pursuant to Richards, supra, and Moroz,
supra, which remain current and binding precedents in light of our Supreme
Court’s non-precedential determination in Verbeck, supra, the
Commonwealth was permitted to introduce evidence of Shifflett’s prior
ARD-DUI at the time of sentencing to establish that his current DUI offense
was a second offense. The trial court can then consider the evidence in
reaching a conclusion on whether the ARD-DUI constituted a “prior conviction”
(a first offense in the case sub judice) for purpose of sentencing Shifflett
pursuant to Section 3804 of the Vehicle Code without offending the
constitutional protections afforded by Apprendi, Alleyne, and their progeny.
Richards, 284 A.3d at 220; see also Moroz, 284 A.3d at 233. Because the
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Commonwealth was prohibited from establishing that Shifflett’s current DUI
was a second offense for purpose of sentencing, we vacate Shifflett’s
judgment of sentence, reverse the trial court’s July 29, 2022 order granting
Shifflett’s motion to exclude admission and consideration of his alleged prior
ARD-DUI at sentencing, and remand this case for resentencing in accordance
with this memorandum.10
Judgment of sentence vacated. Order reversed. Case Remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/24/2023
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10 Based upon the record before us, we do not express whether Shifflett’s
alleged ARD-DUI constitutes a second offense. The Commonwealth, at the
resentencing hearing, is required to establish the validity of Shifflett’s
ARD-DUI via certified records or by whatever means the Commonwealth
deems appropriate. The trial court must then determine whether the
Commonwealth sufficiently established a second DUI offense pursuant to
Section 3806(a)(1) for purpose of fashioning Shifflett’s new sentence.
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