Opinion
1673 EDA 2020
10-08-2021
COMMONWEALTH OF PENNSYLVANIA v. JONATHAN RICHARDS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered August 19, 2020 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09- CR-0000738-2020
BEFORE: McLAUGHLIN, J., KING, J., and PELLEGRINI, J. [*]
MEMORANDUM
PELLEGRINI, J.
Jonathan Richards (Richards) appeals from the August 19, 2020 judgment of sentence imposed by the Court of Common Pleas of Bucks County (trial court) after he pled guilty to two counts of Driving Under the Influence (DUI) and related summary offenses. Richards challenges the legality of his sentence pursuant to this Court's decision in Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020). We vacate the judgment of sentence and remand for Richards to be sentenced as a first-time offender.
75 Pa.C.S. §§ 3802(a)(1) & (c), 3309, 3112.
I.
The facts of the instant offense are not necessary to our disposition. Briefly, on February 24, 2020, the Commonwealth charged Richards with the above-mentioned offenses. Both DUI offenses were graded in the criminal information as second offenses because Richards had previously completed the Accelerated Rehabilitative Disposition (ARD) program for a DUI offense in 2011. On May 20, 2020, Richards filed a motion to bar consideration of a prior ARD acceptance at sentencing seeking to prevent the application of the recidivist sentencing statute. That same day, this Court published the decision in Chichkin, supra, holding that the portion of the statute treating a prior acceptance of ARD as a prior offense was unconstitutional.
On June 23, 2020, the Commonwealth filed a motion to treat DUI offense as second or subsequent offense. It contended that Chichkin allowed the Commonwealth to grade the offenses as second offenses based on Richards' 2011 ARD DUI if it proved beyond a reasonable doubt at sentencing that the prior DUI offense had actually occurred. The Commonwealth also argued that the Chichkin decision failed to acknowledge that in entering the ARD program, an offender agrees to waive certain constitutional rights and agrees that the ARD offense can be used as a prior offense for grading purposes. Finally, it argued that allowing Richards to avoid being sentenced as a recidivist offender would violate the public policy underlying ARD.
After Richards entered an open guilty plea, he filed several motions to foreclose the Commonwealth from attempting to prove the prior ARD DUI offense. Those motions argued that after Chichkin, the Commonwealth could not rely on his prior ARD offense to invoke the mandatory minimum sentence for a second DUI offense because the proposed procedure of proving the ARD DUI at the sentencing hearing violated his right to due process and the protection against double jeopardy. He pointed out that after he completed ARD, the case should have been expunged, and that proceeding to fact-finding regarding the underlying offense violated protections against double jeopardy and Pa.R.Crim.P. 600 and undermined the finality of the ARD disposition.
The Commonwealth responded that Chichkin permitted it to prove the prior ARD offense at the sentencing hearing for the instant offense. It argued that sentencing enhancements do not trigger double jeopardy concerns, and it was not seeking to obtain a conviction on the prior offense by introducing evidence of it at the current sentencing hearing. Because Richards had not petitioned for expungement following his completion of ARD, it still had the reports related to the underlying offense, which it provided in discovery in the instant case. It contended that Richards had adequate time and notice to prepare to challenge the factual basis for the underlying offense. Finally, it argued that Richards had waived many constitutional rights related to the ARD DUI case, including the right to file pretrial motions when he entered the ARD program.
The trial court denied Richards' motions and allowed the Commonwealth to present evidence related to the underlying ARD DUI offense. After hearing the testimony of Detective Anthony Marsaglia, the affiant in the ARD DUI case, the trial court held that the Commonwealth had proven beyond a reasonable doubt that Richards had committed the DUI offense underlying his ARD case. Accordingly, it sentenced him as a second-time offender to 3 to 23 months' incarceration and a concurrent period of 2 years' probation. It allowed Richards to serve the incarceration portion of the sentence on house arrest and imposed the mandatory $1, 500 fine and court costs. Richards timely appealed and he and the trial court have complied with Pa.R.A.P. 1925.
Detective Marsaglia testified that he did not specifically remember the incident because approximately nine years had passed. He testified based on the written report he had authored at the time of the incident. In addition, he said that the dash camera footage of the incident had been deleted pursuant to department policy.
II.
A.
Richards raises two related issues on appeal. First, he argues that his sentence as a second-time offender is illegal under Chichkin as neither that decision nor the Motor Vehicle Code (MVC) allow the trial court to impose the mandatory minimum based on a factual finding made at sentencing that he actually committed the DUI offense underlying his ARD case. Second, he argues that it is fundamentally unfair and a violation of due process to use his successful completion of ARD to increase his sentence for the instant case.
A challenge to the legality of a sentence presents a pure question of law, over which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Lekka, 210 A.3d 343, 355 (Pa. Super. 2019).
In Chichkin, this Court examined the recidivist sentencing statutes for DUI offenses in 75 Pa.C.S. §§ 3804 and 3806. Section 3804 sets the mandatory penalties for DUI offenses, with higher penalties for recidivist offenders. Section 3806 defined a "prior offense" for the purposes of Section 3804 as "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. . . ." 75 Pa.C.S. § 3806(a). The statute requires the trial court to calculate the number of prior offenses at sentencing. 75 Pa.C.S. § 3806(b)(2).
Chichkin consolidated identical appeals from two defendants, Chichkin and Roche, who were sentenced under the recidivist statute based on their prior participation in the ARD program for DUI. In their subsequent cases, Chichkin was convicted of DUI following a trial and Roche entered a guilty plea.
We held that treating a prior acceptance of ARD as a prior conviction for sentencing enhancement purposes violated Alleyne v. U.S., 570 U.S. 99 (2013), which held that any fact that increases the penalty for a criminal offense must be submitted to and determined by a jury beyond a reasonable doubt. Chichkin, supra, at 967-68. While we recognized that there is a narrow exception to Alleyne for the "fact" of a prior conviction, we concluded that the exception does not apply to the acceptance of ARD because ARD is not a "conviction." Id. at 966-67. Acceptance of ARD does not require the Commonwealth to prove that the underlying DUI occurred beyond a reasonable doubt subject to all due process protections attendant to a trial, nor does it require the defendant to admit to the underlying conduct. Id. at 967-68.
In addition to violating Alleyne, we concluded that treating acceptance of ARD as a prior offense violated procedural and substantive due process. We emphasized that ARD is a pretrial disposition and is not the equivalent of a criminal conviction. Id. at 970. Relying on Nelson v. Colorado, 137 S.Ct. 1249 (2017), we held that Section 3806 impermissibly enhanced a defendant's sentence even though he had not been found guilty of the underlying ARD offense. Id.
B.
The dispute in the instant case concerns language at the end of the Chichkin opinion:
Due process considerations protect those accused of committing a crime from conviction "except upon proof beyond a reasonable doubt." [In re Winship, 397 U.S. 358, 364 (1970)]. Under the statutory scheme at issue here, Appellants' prior acceptances of ARD are treated as prior convictions of DUI, absent the constitutional protections of a trial or guilty plea-most significantly, a finding or admission of guilt beyond a reasonable doubt.
Accordingly, if the Commonwealth seeks to enhance a defendant's DUI sentence based upon that defendant's prior acceptance of ARD, it must prove, beyond a
reasonable doubt, that the defendant actually committed the prior DUI offense.14 Any lesser standard would violate due process concerns.Id. at 970-71 (emphasis added). In footnote 14, we noted that Appellant Roche was not asked to confirm her prior DUI arrest or acceptance of ARD in her guilty plea colloquy, even though both counsel agreed on the record that there was a "mandatory minimum" and a "prior offense." Id. at 971 n.14. We concluded: "Nowhere during the guilty plea hearing did the Commonwealth prove, or did Roche concede, that she committed the prior DUI offense. Accordingly, her enhanced sentence violates Alleyne and due process concerns." Id.
Richards argues that Chichkin did not authorize a trial court to impose the mandatory minimum sentence based on a factual determination beyond a reasonable doubt at sentencing. He argues that the contested language is mere dictum, and that the trial court usurped the role of the legislature and impermissibly rewrote Section 3806 when it held the hearing related to the ARD DUI offense at sentencing for the instant offense. The Commonwealth responds that the contested language was not dictum, but rather an instruction to the lower courts on how to apply Section 3806 in compliance with the decision.
"Obiter dictum" is a "judicial comment made while delivering a judicial opinion, but one that is not essential to the decision and therefore not binding even if it may later be accorded some weight." Dictum, Black's Law Dictionary (11th ed. 2019). "Judicial dictum" is "a statement a court expressly uses to guide parties in their future conduct." HTR Rests., Inc. v. Erie Ins. Exch., ___ A.3d __, 902 & 903 WDA 2020, at *8 n.3 (Pa. Super. Aug. 10, 2021).
As a general rule, such an expression of opinion on a point involved in a case, argued by counsel and deliberately mentioned by the court, although not essential to the disposition of the case, is distinct from mere obiter dictum, and becomes authoritative when the court expressly declares it to be a guide for future conduct. Thus, judicial dictum should receive dispositive weight in a lower court.Id. (citing 21 C.J.S. § 226; Dictum Revisited, 4 Stan. L. Rev. 509 (1952)). "The doctrine of 'stare decisis' is limited to actual determinations in respect to litigated and necessarily decided questions and is not applicable to dicta or obiter dicta. Thus, a dictum is not binding authority and has no precedential value." Assocs. of Chapman Lake v. Long, ___ A.3d ___, 347 MDA 2020, at *6 (Pa. Super. April 22, 2021) (citations omitted). In contrast, a holding is "[a] court's determination of a matter of law pivotal to its decision" and is binding in future cases. Holding, Black's Law Dictionary (11th ed. 2019).
Our review of Chichkin reveals that the appellants raised challenges to the legality of their sentences. Chichkin, supra, at 962. The parties did not argue that any particular procedure would make Section 3806 constitutional regarding treating ARD as a prior offense. This Court did not analyze the potential remedy for the Alleyne or due process violation in any significant detail, save for the single sentence the Commonwealth and the trial court found controlling in this case. Finally, this single sentence was not intended as instruction for the remand of the cases consolidated in Chichkin. If the language was intended as "a guide for future conduct," HTR Rests., Inc., supra, the Court could have remanded the cases for a hearing like the one employed here. Instead, we ordered that the appellants be resentenced as first-time DUI offenders. Id. at 961. Based on these circumstances, the contested language is obiter dictum and not judicial dictum or a holding in the case.
In addition, this Court has remanded subsequent cases for resentencing in accordance with Chichkin's mandate, but has not expanded on the procedures that must take place at resentencing. See, e.g., Commonwealth v. Panick, 1238 EDA 2020, at *5 (Pa. Super. June 8, 2021) (unpublished memorandum) (concluding that the defendant's DUI must be considered a first offense and remanding for resentencing "in light of the holding in Chichkin"); Commonwealth v. Filan, 942 MDA 2020, at *3 (Pa. Super. Mar. 19, 2021) (unpublished memorandum) (same); Commonwealth v. Verbeck, 1947 MDA 2019, at *4-5 (Pa. Super. Apr. 9, 2021) (unpublished memorandum) (same). Our review confirms that the procedure undertaken here based on the language in Chichkin has not been approved by later binding precedent from this Court. In re L.J., 79 A.3d 1073, 1081-82 (Pa. 2013) (considering whether later cases elevated non-binding dicta in an earlier case to give it precedential effect).
The only published decision analyzing Chichkin concerned whether its holding should be expanded to apply to a prior adjudication of delinquency for DUI. Commonwealth v. Lee, A.3d, 1396 EDA 2020 (Pa. Super. July 27, 2021). We declined to extend the reasoning in Chichkin to those circumstances. Id. at *8.
We agree with Richards' contention that the contested Chichkin language is dictum and not a directive to the trial courts to engage in trial-within-a-trial factfinding to impose the mandatory minimum sentence. The problems that would arise with such an approach are numerous. Depending on the length of time that had passed since an offender's ARD case, a witness's memory of the events might be lost (as occurred here). Important evidence related to the case, such as dash camera footage, may have been destroyed (as occurred here). If expungement procedures are followed, written reports related to the offense may be lost, rendering it impossible for the Commonwealth to present competent evidence of the underlying ARD offense even if such evidence existed at the time the offender entered the program. An offender who wishes to exercise his right to a jury trial would surely not want the same jury to hear prejudicial evidence and render a factual finding regarding whether he had committed a DUI offense in the past.
Moreover, the approach taken here does not remedy the Alleyne violation that Chichkin identified, lending further support to Richards' argument that this Court did not intend for a factual finding of culpability years after the ARD DUI to cure any unconstitutionality in Section 3806. As Chichkin recognized, Alleyne mandates that "[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne, supra, at 103 (emphasis added); Chichkin, supra, at 964. A factual determination made at sentencing, after the defendant has been found guilty by the fact-finder or entered his plea without conceding the relevant fact, does not conform to these requirements.
This mandate applies equally to bench trials. Commonwealth v. Bizzel, 107 A.3d 102, 103 n.2 (Pa. Super. 2014).
Footnote 14 of the Chichkin opinion, which the Commonwealth and the trial court omit from their analysis, supports this conclusion. There, we concluded that Appellant Roche must be resentenced as a first-time offender because she did not concede, nor did the Commonwealth prove beyond a reasonable doubt at her guilty plea hearing, that she had committed the prior ARD offense. In absence of the requisite factual finding beyond a reasonable doubt in a procedure that complied with Alleyne, we remanded for resentencing as a first-time offender, not for further fact-finding after a final adjudication on the merits of the case had already been reached. Chichkin, supra, at 961. Alleyne concluded that a fact increasing the penalty for a crime must be considered an element of the offense, and it is beyond cavil that all elements of the crime charged must be proven or conceded in a plea hearing before a conviction may enter. A factual finding at sentencing is too little, too late.
Finally, a trial-within-a-trial before the conviction is entered conflicts with the plain language of Section 3806. The statute specifically mandates that "[t]he court shall calculate the number of prior offenses, if any, at the time of sentencing." 75 Pa.C.S. § 3806(b)(2) (emphasis added). This language forecloses the possibility of proving the underlying ARD DUI as a prior offense during the trial or plea stage. As Richards points out, courts do not have the authority to rewrite a statute to create a new procedure that complies with the dictates of Alleyne or Chichkin. See Commonwealth v. Wolfe, 140 A.3d 651, 662-63 (Pa. 2016) (holding that mandatory minimum sentencing statute that requires judicial fact-finding at sentencing is unconstitutional under Alleyne and that the Court could not rewrite the statute to allow the mandatory minimum sentence based on a jury finding); Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa. 2015) (holding that after provisions of a mandatory minimum sentencing statute became unconstitutional pursuant to Alleyne, the Court could not "judicially usurp the legislative function and rewrite [the statute] or create a substantive offense which the General Assembly clearly did not desire.").
Consequently, if the Chichkin language did allow for the Commonwealth to prove that the ARD DUI actually occurred during the trial or plea phase for the second offense, it is inconsistent with Section 3806(b)(2). If the Chichkin language was intended to allow the Commonwealth to prove that the ARD DUI offense actually occurred at the sentencing phase for the second offense, it is inconsistent with Alleyne. We cannot conclude that the Chichkin Court intended either result. See Commonwealth v. Romero, 183 A.3d 364, 400 n.18 (Pa. 2018) (OAJC) ("Of course, dicta often present risks of unforeseen complications and unintended consequences, which is why reliance upon them to resolve those same complications can be difficult to justify, it not ill-advised."). We agree with Richards that the Chichkin language is obiter dictum and did not authorize trial courts to sentence an offender as a recidivist based on a factual finding made at the sentencing hearing. Therefore, we vacate his judgment of sentence and remand for resentencing as a first-time offender.
The Commonwealth argues on appeal that Chichkin was wrongly decided but candidly acknowledges that a three-judge panel of this Court cannot overturn the decision of another three-judge panel. Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013).
Judgment of sentence vacated. Case remanded for further proceedings. Jurisdiction relinquished.
Judge King files a concurring memorandum in which Judge McLaughlin joins.
Judge McLaughlin concurs in the result.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.