Com. v. Sullivan, R. ( 2023 )

J-A09039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT DANIEL SULLIVAN :
:
Appellant : No. 716 MDA 2022
Appeal from the Judgment of Sentence Entered April 29, 2022,
in the Court of Common Pleas of Adams County,
Criminal Division at No(s): CP-01-CR-0000251-2021.
BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 8, 2023
Robert Sullivan appeals from the judgment of sentence entered
following his guilty plea to driving under the influence (DUI).1 Because this
Court’s holdings preclude Sullivan’s arguments, we affirm.
On December 10, 2020, Sullivan was charged with, inter alia, DUI. He
ultimately pled guilty and was sentenced. Notably, Sullivan reserved his right
to challenge the prior offenses, grading, and applicable penalties. The trial
court treated the DUI as a third offense based on Sullivan’s two out-of-state
cases: (1) a guilty plea to driving while ability impaired (DWAI) in New York,
and (2) a guilty plea and entry into a probation before judgment (PBJ)
program for DUI in Maryland.2
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1 75 Pa.C.S.A. § 3802(d)(2).
2 N.Y. Veh. & Traf. § 1192(1); Md. Code Transp. § 21-902(a)(2).
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Sullivan timely appealed. Sullivan and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
Sullivan presents two questions for our review:
I. Whether the lower court erred when it considered the
Maryland DUI PBJ as a “prior offense” under 75 Pa.C.S.[A.]
§ 3806?
II. Whether the lower court erred when it considered the
conviction for New York DWAI as a “prior offense” under 75
Pa.C.S.[A.] § 3806?
Sullivan’s Brief at 4.
When a court imposes a sentence for DUI, it is required to calculate the
defendant’s prior offenses. 75 Pa.C.S.A. § 3806(b)(2). Subject to timing
requirements not in dispute here, “prior offense” means:
any conviction for which judgment of sentence has been imposed,
adjudication of delinquency, juvenile consent decree, acceptance
of Accelerated Rehabilitative Disposition [(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);
(2) an offense under former section 3731;
(3) an offense substantially similar to an offense under
paragraph (1) or (2) in another jurisdiction; or
(4) any combination of the offenses set forth in paragraph
(1), (2) or (3).
75 Pa.C.S.A. § 3806(a). The interpretation of Section 3806 is a question of
law, for which our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Mock, 186 A.3d 434, 435 (Pa. Super. 2018),
aff’d, 219 A.3d 1155 (Pa. 2019) (citation omitted).
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Sullivan first disputes that his guilty plea to DUI in Maryland and entry
into the PBJ program counts as a prior offense. The trial court ruled based on
this Court’s holding that entry into the PBJ program for a DUI in Maryland
counts as a prior offense under Section 3806. Trial Court Opinion, 5/13/22,
at 3–5 (citing Commonwealth v. Hayes, 266 A.3d 679 (Pa. Super. 2021)).
Sullivan argues that we should address the unanswered question from Hayes
and find Section 3806 unconstitutional under Commonwealth v. Chichkin,
232 A.3d 959 (Pa. Super. 2020).3 He submits that because Section 3806
permits counting any “other form of preliminary disposition” as a “prior
offense,” it allows trial courts to infer guilt of an out-of-state prior offense
without the requisite protections of due process. Sullivan concludes that this
Court cannot usurp the legislature by rewriting Section 3806 to conform to
constitutional standards, and that we should therefore remand for the trial
court to sentence without counting his Maryland PBJ as a prior offense.
This Court held that Section 3806(a) violated the Due Process Clause by
counting an acceptance of ARD as a prior offense, absent proof of the prior
offenses beyond a reasonable doubt. Chichkin, 232 A.3d at 971. We
distinguished Chichkin in Hayes, where the record showed that the
defendant/appellee had pled not guilty to DUI in Maryland before entering the
PBJ program. Because Maryland law required a plea of guilty or nolo
contendere before entering PBJ, we reasoned that Maryland PBJ law provided
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3As described below, this Court sitting en banc overruled Chichkin after
Sullivan filed his appellate brief.
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the procedural safeguards that Pennsylvania ARD law lacked. Hayes, 266
A.3d at 684. In holding for the Commonwealth, we avoided the constitutional
issue raised in the alternative. Id. at 682 & n.3.
Subsequently, we revisited our Chichkin holding. Commonwealth v.
Richards, 284 A.3d 214, 216 (Pa. Super. 2022) (en banc); Commonwealth
v. Moroz, 284 A.3d 227, 230 (Pa. Super. 2022) (en banc). Noting the
purposes of DUI laws and the procedures underlying the admission into ARD,
we held that Section 3806(a)’s counting admission into ARD as a prior offense
passed constitutional muster. Richards, 284 A.3d at 220. We therefore
overruled Chichkin. Id.4
Here, we conclude that Sullivan’s constitutional argument fails based on
Richards and Moroz. Based on current decisional law, there is no
constitutional defect in Section 3806(a) counting acceptance into ARD as a
prior offense. Richards, 284 A.3d at 220. It follows that counting any “other
form of preliminary disposition”—here, PBJ—likewise comports with due
process. Therefore, the trial court did not err by following Hayes and counting
Sullivan’s PBJ in Maryland as a prior offense.
Sullivan next contends that the trial court should not have counted his
New York DWAI conviction as a prior offense because it is not “substantially
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4 The Supreme Court of Pennsylvania addressed this issue, affirming our
Chichkin-based holding by operation of law. Commonwealth v. Verbeck,
290 A.3d 260 (Pa. Feb. 28, 2023). Verbeck lacks precedential value because
it is a plurality opinion from an evenly divided court. See Commonwealth
v. Baldwin, 985 A.2d 830, 835 (Pa. 2009) (citing Kelley v. State
Employees’ Ret. Bd., 932 A.2d 61, 67–68 (Pa. 2007)).
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similar” to any Pennsylvania DUI offense. See 75 Pa.C.S.A. § 3806(a)(3).
We considered and rejected this argument in Commonwealth v. Pombo, 26
A.3d 1155, 1159 (Pa. Super. 2011). Sullivan argues that this Court’s holding
in Pombo was improper because it used the wrong test for substantial
similarity. Id. at 1157–58 (following the test for substantial similarity
described in Wroblewski v. Commonwealth, 809 A.2d 247, 248 (Pa. 2002),
and enacted as described in Commonwealth v. Northrip, 985 A.2d 734, 738
n.5 (Pa. 2009)). Because the New York DWAI statute applies to a lower level
of impairment than any Pennsylvania DUI statute, Sullivan concludes that it
is not substantially similar, we should overrule Pombo, and the trial court
should not count the DWAI as a prior offense.
This panel of the Superior Court cannot overrule another panel of the
Superior Court. Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super.
2013) (citing Commonwealth v. Taylor, 649 A.2d 453, 455 (Pa. Super.
1994)). This Court held that DWAI in New York is substantially similar to DUI
in Pennsylvania. Pombo, 26 A.3d at 1159. Although Sullivan urges us to use
a different test for substantial similarity to compare these statutes, we lack
the power to distinguish Pombo in this way. Beck, supra. We conclude that
the trial court correctly followed Pombo in counting Sullivan’s New York DWAI
as a prior offense. We therefore affirm Sullivan’s judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2023
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