Com. v. Briska, R. ( 2023 )

J-S08034-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RICHARD ALLEN BRISKA : No. 600 MDA 2022
Appeal from the Judgment of Sentence Entered March 17, 2022
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0001363-2021
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: MAY 8, 2023
The Commonwealth appeals from the judgment of sentence imposed
following the guilty plea of Appellee, Richard Allen Briska, to driving under the
influence (“DUI”)—controlled substance.1 We vacate the judgment of
sentence and remand for resentencing.
On June 18, 2021, Appellee was arrested following a traffic stop, and he
was subsequently charged with various DUI and summary motor vehicle
offenses. The DUI offenses were charged as second offenses and graded as
first-degree misdemeanors based upon Appellee’s resolution of a prior DUI
charge through the accelerated rehabilitative disposition (“ARD”) process. On
March 17, 2022, Appellee entered an open guilty plea to one count of DUI—
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(d)(1)(i).
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controlled substance with the issue of whether it was a first or second offense
left to be resolved by the trial court. N.T., 3/17/22, at 2.
At that time, this Court’s decision in Commonwealth v. Chichkin, 232
A.3d 959 (Pa. Super. 2020), set forth the prevailing law on whether
acceptance of ARD in an earlier DUI case could be considered a prior offense
for sentencing in a subsequent DUI prosecution. In Chichkin, we held that
the classification of ARD as a prior offense in Section 3806(a) of the Vehicle
Code violated due process and therefore a defendant could not be sentenced
as a recidivist DUI offender on that basis. Id. at 969-71; 75 Pa.C.S. § 3806(a)
(defining a “prior offense” to include acceptance of ARD); see also 75 Pa.C.S.
§ 3804 (setting forth escalating mandatory minimums for first, second, and
subsequent DUI offenses).
At the March 17, 2022 hearing, the trial court ruled that Appellee should
be sentenced as a first-time DUI offender and amended the offense to an
ungraded misdemeanor. N.T., 3/17/22, at 6; Sentencing Order, 3/17/22. The
court then sentenced Appellee to serve six months’ probation, including ten
days of house arrest, and pay a fine of $1,000. Sentencing Order, 3/17/22.
The Commonwealth then filed this timely appeal.
The Commonwealth raises the following issue before this Court:
Did the trial court err in barring consideration of Appellee’s prior
ARD-DUI without providing [the Commonwealth] the opportunity
to prove, beyond a reasonable doubt, that the Appelle[e] actually
committed the prior DUI offense?
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Commonwealth Brief at 4 (unnecessary capitalization omitted). The
Commonwealth challenges the application of Chichkin to this case in light of
more recent case law and argues that the trial court erred by not allowing it
to prove that Appellee’s acceptance of ARD in the earlier DUI case constituted
a prior offense for the purpose of sentencing here.
The Commonwealth’s argument implicates the legality of Appellee’s
sentence, which the Commonwealth may appeal as of right. See 42 Pa.C.S.
§ 9781(a); Commonwealth v. Moroz, 284 A.3d 227, 230 (Pa. Super. 2022)
(en banc). A claim relating to the legality of a sentence presents a question
of law as to which our standard of review is de novo and our scope of review
is plenary. Moroz, 284 A.3d at 230.
This Court’s en banc decisions in Commonwealth v. Richards, 284
A.3d 214, 217 (Pa. Super. 2022) (en banc), appeal granted, No. 518 MAL
2022 (Pa. March 15, 2023), and Moroz, which were filed during the pendency
of this appeal, squarely address the issue presently before this Court. As we
have recently explained,
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 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.
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Commonwealth v. Hummel, ___ A.3d ___, 2023 PA Super 57, *3-4 (Pa.
Super. filed April 4, 2023) (footnote omitted).2
Here, the trial court disregarded Appellee’s earlier acceptance of ARD
and sentenced him as a first-time DUI offender in accordance with Chichkin.
Under Richards and Moroz, this ruling was in error. See Moroz, 284 A.3d
at 233 (concluding that “the trial court erred in sentencing [the a]ppellee as
a first-time DUI offender without considering his acceptance of ARD for a prior
DUI”); Hummel, 2023 PA Super 57, *4 (same); see also Commonwealth
v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (noting that Pennsylvania
appellate courts apply law in effect at time of decision and parties are entitled
to benefit of changes in law while direct appeal is pending). We therefore
vacate Appellee’s judgment of sentence and remand for resentencing
consistent with this decision. See Moroz, 284 A.3d at 233; Hummel, 2023
PA Super 57, *4.
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2 Our Supreme Court addressed this issue more recently in Commonwealth
v. Verbeck, 290 A.3d 260 (Pa. 2023), splitting evenly on the question of
whether a DUI ARD falls within the “prior conviction” exception to the general
rule that a fact that increases punishment must be submitted to the fact finder
and proven beyond a reasonable doubt. While our Supreme Court’s ruling had
the effect of affirming this Court’s decision remanding for the defendant’s
resentencing as a first-time offender, Verbeck lacks precedential effect. 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.”).
Therefore, our en banc decisions of Richards and Moroz remain the binding
law on this issue. See Hummel, 2023 PA Super 57, *4 n.1.
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Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judge Olson joins the memorandum.
Judge McCaffery files a concurring statement in which Judge Colins
joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2023
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