Two weeks ago, the Pennsylvania Superior Court handed down an opinion in a companion case that was out of Philadelphia. The case—known now as the Chichkin case for the lead defendant—concluded that “prior acceptances of ARD cannot be categorized as ‘prior convictions’ exempt from the holding of Apprendi and Alleyne.” What that means, and unpacking that holding, requires an appreciation and understanding of the “holding[s] of Apprendi and Alleyne.”
Apprendi and Alleyne were cases issued out of the United States Supreme Court: Apprendi in 2000, and Alleyne in 2013. The gist of what both of those cases said is that a convicted person can’t be subject to a penalty beyond “the prescribed statutory maximum” (Apprendi), nor subject to a mandatory-minimum sentence (Alleyne), if the fact triggering the enhanced penalty or mandatory minimum wasn’t determined by the jury (or fact finder) at trial. Apprendi and Alleyne, however, carved out an exception to that general rule. They held that if the fact that triggered the enhanced sentence or mandatory minimum was merely the fact of a “prior conviction,” then the fact of the prior conviction may be found after trial by the sentencing court.
Essentially, plainly speaking, the rule since has been this: the fact of a prior conviction is okay to justify a harsher penalty, but any other fact that triggers a harsher penalty must be determined “beyond a reasonable doubt” by the fact finder.
With that background in mind, the issue before the Superior Court in Chichkin, as phrased by the Court, was whether “prior acceptances of ARD . . . [is] a prior conviction, which may be determined by the court at sentencing.” That issue only arose because of the mandatory-minimum-sentencing scheme within the DUI law.
Section 3804 of the DUI law sets forth a scheme of increasing mandatory-minimum penalties based primarily upon the number of “prior [DUI] offenses” the convicted motorists has. What qualifies as a “prior offense,” the legislature says, is the “acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation.” 75 Pa.C.S. § 3806(a). The inclusion of “acceptance of ARD” within the definition of “prior offense,” however, is what breathed life into this case.
While the general rule of Apprendi and Alleyne has been that the fact of a “prior conviction” may be determined at sentencing by a judge to impose harsher penalties, ARD doesn’t fit neatly into what qualifies as a “prior conviction” because, as the Superior Court recognized, “[i]t is well-established that the admission into the ARD program is not considered a conviction for any purpose.” In this respect, the Superior Court reasoned “[t]he ‘fact’ that a defendant accepted ARD does not carry with it the procedural safeguards of a traditional conviction” to fit it within the mold of the prior-conviction exception endorsed by Apprendi and Alleyne. More bluntly, the Court said this:
[t]he treatment of an ARD acceptance conclusively as a prior offense, resulting in enhanced punishment with a mandatory minimum sentence, offends both substantive and procedural due process.
The Court, therefore, made clear that 75 Pa.C.S. § 3806(a), defining a “prior offense,” is unconstitutional insofar as the legislature equated the prior acceptance of ARD “to a prior conviction for purposes of subjecting a defendant to a mandatory minimum sentence.”
That’s the holding of Chichkin. It all has to do with Section 3806(a), and the legislature’s inclusion of ARD into the definition of “prior offense,” which impacts the various mandatory minimums within 75 Pa.C.S. § 3804. The Court is explicit about what it holds even in its closing paragraph:
[W]e conclude the particular provision of 75 Pa.C.S. § 3806(a), which defines a prior acceptance of ARD in a DUI case as a ‘prior offense’ for DUI sentencing enhancement purposes, offends the Due Process Clause and is therefore unconstitutional. We thus further conclude Appellants’ constitutional rights were violated when the trial court increased their sentences based solely upon their prior acceptances of ARD, absent proof beyond a reasonable doubt that Appellants committed the prior offenses.
Nevertheless, for as explicit as the Superior Court may have been in Chichkin, all of this is as “clear as mud,” and it’s breading confusion among the ranks of the defense bar as to what Chichkin’s practical effect and import really is. Some are of the opinion, for instance, that a true second-time DUI offender, who received ARD in the first go around, must be treated for all purposes as a first-time offender. That includes for grading purposes since the grading of DUIs under 75 Pa.C.S. § 3803 is necessarily informed by the definition of “prior offense” as defined in Section 3806(a). So, those of this opinion believe that a motorist who previously had ARD and is convicted of a new DUI with a BAC in the highest tier (.16%) can’t be charged or convicted with a DUI as a first-degree misdemeanor as Section 3803(b)(4) says:
(4) An individual who violates . . . section 3802(c) or (d) and who has one prior offense commits a misdemeanor of the first degree.
75 Pa.C.S. § 3803(b)(4) (emphasis added).
That reasoning certainly is not without justification as there is language in Chichkin—quoting from the Commonwealth’s own brief, in fact— that reads “we should remand [these cases] to the trial court to resentence [Appellants] in accordance with a first offense DUI.” But practitioners must be mindful of the axiom that “[appellate] decisions are to be read against their facts.” See Maloney v. Valley Medical Facilities, 603 Pa. 399, 411 (Pa. 2009).
Here, while Chichkin certainly deemed 75 Pa.C.S. § 3806(a) unconstitutional for its inclusion of ARD into the definition of “prior offense,” that holding was made in a context and with advocacy that focused solely on the interplay between Section 3806(a) and the DUI law’s penalties statute, namely 75 Pa.C.S. § 3804. The Superior Court offered no discussion pertaining to Section 3803, dealing with grading, and whether the legislature is within its rights to affix different grading based upon a person’s prior acceptance of ARD.
Certainly, Chichkin offers a treasure trove of reasoning to support the point that a true second-time DUI offender, who received ARD prior, should be treated for all purposes as a first-time offender. But that’s not Chichkin’s holding. The import of Chichkin’s holding was simply this:
“[t]he treatment of an ARD acceptance conclusively as a prior offense, resulting in enhanced punishment with a mandatory minimum sentence, offends both substantive and procedural due process.”
Personal note: Chichkin is a thoughtful opinion by Judge McCaffery, and it certainly has made waves resulting in sweeping ramifications, many of which were likely unforeseen (such as some DAs now threatening to refuse offering ARD all together). Ultimately, I’m of the camp of practitioners who believe that Chichkin’s holding goes no further than invalidating mandatory-minimum penalties that factor the acceptance of ARD into the mix. I don’t think Chichkin goes so far as to hold the legislature’s grading of DUI offenses, based upon prior offenses including ARD, is unconstitutional. Any support offered from Chichkin to that point, I believe, is dicta. However, that’s not to say that defense counsel shouldn’t be litigating the point; in fact, I think defense counsel is obligated to take Chichkin to this next logical level. The frequent DUI practitioner, therefore, may want to focus their energies for their clients on challenging these provisions of Section 3803 as unconstitutional based upon Chichkin and Apprendi—3803(a)(2), (b)(3), (b)(4), (b)(4.1), (b)(5)(i)-(ii). As a final note, Chichkin is likely to stay with us for awhile as precedent since the Philadelphia DA’s office seemingly conceded to Appellants’ arguments and is therefore unlikely to appeal the decision to the Pennsylvania Supreme Court. That’s a good thing for the fight against mandatory-minimum sentences, but it’s a bad thing if county DAs opt to now refuse ARD to merely counteract a decision they don’t agree with. Stay tuned for how this all unfolds.