Opinion
134 EDA 2023 J-S36035-23
09-11-2024
COMMONWEALTH OF PENNSYLVANIA v. OLEG AVETISOV Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered December 2, 2022 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000088-2022
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM
KING, J.
Appellant, Oleg Avetisov, appeals from the judgment of sentence entered in the Pike County Court of Common Pleas, following his negotiated guilty plea to driving under the influence of alcohol-highest rate of alcohol ("DUI"). We affirm.
The relevant facts and procedural history of this appeal are as follows. On September 28, 2021, Pennsylvania State Police Trooper Dominick Marino was dispatched to a motor vehicle accident at the entrance to the Wild Acres community in Delaware Township. Upon arriving at the scene, Trooper Marino saw Appellant standing outside of his vehicle. The vehicle had fresh damage from a collision. Appellant told the trooper that "he struck a large rock on the left side of the entrance" to Wild Acres. (Affidavit of Probable Cause, dated 10/21/21, at 1). Trooper Marino immediately detected the odor of an alcoholic beverage emanating from Appellant's breath and person. Appellant "indicated that he consumed one 'beer' when asked." (Id.) Trooper Marino also interviewed a Wild Acres security officer, who had observed an open alcoholic beverage container inside of Appellant's vehicle.
Based upon the foregoing, Trooper Marino asked Appellant to perform standard field sobriety tests. Appellant complied with the trooper's request, but he failed the tests. Trooper Marino took Appellant into custody for suspicion of DUI, and the trooper provided Appellant with implied consent warnings. Appellant consented to blood alcohol testing, and another trooper transported Appellant to the local police station. Once at the station, testing revealed that Appellant's blood alcohol concentration was 0.205%.
Appellant's preliminary hearing was scheduled for February 22, 2022. On that date, Appellant waived the hearing and posted bail. On April 25, 2022, the Commonwealth filed a criminal information charging Appellant with two counts of DUI and summary violations of the Motor Vehicle Code. The information indicated that the current charges constituted a second DUI offense for Appellant. The information, however, did not elaborate on the circumstances of Appellant's prior DUI.
At the time the information was filed, Commonwealth v. Chichkin, 232 A.3d 959 (Pa.Super. 2020), held that the Commonwealth could not rely on evidence of a defendant's prior admission into an Accelerated Rehabilitative Disposition ("ARD") program as proof of a prior conviction for purposes of enhanced penalties for repeat DUI offenders. This Court later overruled Chichkin in Commonwealth v. Richards, 284 A.3d 214 (Pa.Super. 2022) (en banc), appeal granted, Pa., 294 A.3d 300 (2023) and Commonwealth v. Moroz, 284 A.3d 227 (Pa.Super. 2022) (en banc).
On June 30, 2022, Appellant executed a written guilty plea colloquy setting forth a plea agreement. Specifically, Appellant agreed to plead guilty to one count of DUI graded as a first-degree misdemeanor. All remaining charges would be dismissed at the time of sentencing. The preprinted colloquy form included a section titled "Sentence Recommendation." (Written Colloquy, filed 6/30/22, at 1). This section included the following term: "Imprisonment: Minimum Mandatory[.]" The colloquy later explained that the "minimum mandatory sentence" was ninety (90) days, and Appellant's maximum sentencing exposure was five (5) years' imprisonment. (Id. at 4). Nevertheless, the Commonwealth agreed to recommend Appellant for enrollment in Pike County C.A.R.E., a program for probation with restrictive conditions, if Appellant satisfied certain prerequisites. The preprinted colloquy form stated:
An individual who violates Section 3802(c) shall be sentenced for a second offense to "imprisonment of not less than 90 days[.]" 75 Pa.C.S.A. § 3804(c)(2)(i). Additionally, the statutory maximum sentence for a first-degree misdemeanor is five (5) years' imprisonment. 18 Pa.C.S.A. § 106(b)(6).
The Commonwealth agrees to recommend Pike C.A.R.E. if the defendant files the application w/ in 30 days of prelim. hearing, has no bail violations, and completes C.R.N. & D/A evaluations before 1st sentencing hearing.(Id. at 1). That same day, the court conducted Appellant's guilty plea hearing. At the hearing, Appellant confirmed that the information included in the written colloquy was accurate, and Appellant understood the terms of the plea agreement. (See N.T. Plea Hearing, 6/30/22, at 2-3; R.R. at 50a-51a). After a brief oral colloquy, the court accepted the plea and scheduled the matter for sentencing.
Appellant initially appeared for sentencing on September 30, 2022. At the start of the hearing, the prosecutor reiterated that Appellant's plea agreement explicitly stated that "this is a guilty plea to a misdemeanor of the first degree [and] reflected that it is a second [DUI] offense. It also indicates that the minimum/mandatory is ninety (90) days and the maximum is five (5) years." (N.T. Hearing, 9/30/22, at 3; R.R. at 56a). Regarding Appellant's prior offense, the prosecutor submitted a copy of the criminal complaint for a 2018 DUI. Defense counsel immediately objected, arguing that Appellant's prior DUI was expunged. Defense counsel invoked Chichkin and stated that
The transcripts for Appellant's sentencing hearings do not appear in the certified record. The parties, however, do not dispute the material facts at issue. Consequently, we will consider the copies of the transcripts included in Appellant's reproduced record. See Commonwealth v. Holston, 211 A.3d 1264, 1276 (Pa.Super. 2019) (en banc) (explaining that where accuracy of document is undisputed, we may consider item included in reproduced record that was omitted from certified record).
Appellant "can't plead to a second offense" where his first DUI offense was expunged. (Id. at 4; R.R. at 57a). The prosecutor responded, "We've had individuals previously agree that they are second offenses so that they can get the benefit of Pike C.A.R.E., which is what this colloquy was for." (Id.) The prosecutor also explained that his office uses a different preprinted colloquy form for offenders who "make an argument or a non-acceptance that it was a second offense DUI[.]" (Id.) In light of the parties' arguments, the court opted to defer sentencing. The court did not instruct the parties to submit briefs before the next hearing date.
Four days later, on October 4, 2022, this Court issued its decisions in Richards and Moroz.
The parties again appeared for sentencing on December 2, 2022. Initially, the prosecutor stated that he agreed with the Probation Department's sentencing recommendation of ninety (90) days to five (5) years' imprisonment, which comported with the mandatory minimum statute governing a second DUI offense. (See Guideline Sentence Form, filed 12/6/22, at 1). Defense counsel disagreed. First, counsel reiterated that Chichkin was controlling law when the Commonwealth charged Appellant, "which would have made this a first offense DUI." (N.T. Sentencing Hearing, 12/2/22, at 2; R.R. at 75a). Counsel also complained that the written colloquy stated that the C.A.R.E. program application should be filed within thirty days of the preliminary hearing. Because the parties executed the written colloquy more than thirty days after the preliminary hearing, counsel argued that Appellant could not possibly file a timely application for the C.A.R.E. program. Therefore, the plea agreement was "void because of the condition precedent that cannot be satisfied and could not at that time of the signing" of the written colloquy. (Id. at 3; R.R. at 76a).
The prosecutor disputed this argument and claimed that a defendant may apply for the C.A.R.E. program "at any point[.]" (Id. at 4; R.R. at 77a). The prosecutor also indicated that Appellant did not file his application for the C.A.R.E. program until after Appellant's original sentencing hearing: "This is not like an application came in after a guilty plea and we're saying no. This is a total failure of applying for Pike C.A.R.E." (Id. at 5; R.R. at 78a). Further, the prosecutor emphasized the language from Appellant's written colloquy, arguing:
Appellant included a copy of his C.A.R.E. program application, dated October 13, 2022, in the reproduced record. (See Application, dated 10/13/22, at 1-12; R.R. at 62a-73a). Regarding the filing requirements, the application states: "To guarantee your application will be processed in time for court, you MUST RETURN THIS APPLICATION (which includes completion of all requirements listed within) to the Pike County District Attorney's Office no later than 2 weeks prior to your Court Order Sentencing date." (Id. at 3; R.R. at 64a) (emphasis in original).
[T]his colloquy is different from the other Chichkin colloquies that we've had as this specifically says that this is a misdemeanor of the first degree. If we were to go to the factual basis page and we indicate the minimums and the maximums, it clearly identifies this as a second offense DUI indicating that the minimum mandatory is a ninety (90) day sentence and that the maximum is a five (5) year sentence, and this was done in this matter for the benefit of
Pike C.A.R.E. If this was an issue in which we were going to be discussing Chichkin at the time that this agreement was made, the Chichkin colloquy would have been provided leaving all of this information open to the court's discretion and Pike C.A.R.E. would not have been offered at all because we have not offered Pike C.A.R.E. on any of the Chichkin cases that we've had thus far.(Id.)
Ultimately, the court elected to treat the current DUI as a second offense for sentencing purposes. Prior to the imposition of sentence, defense counsel made an oral motion to withdraw Appellant's guilty plea. (See id. at 7; R.R. at 80a). The court immediately dictated an order from the bench to deny the oral motion. (Id.) Thereafter, the court sentenced Appellant to ninety (90) days to five (5) years' imprisonment. The court also permitted Appellant to remain at liberty on bail pending any appeal.
On December 12, 2022, Appellant timely filed a post-sentence motion. In it, Appellant argued that: 1) Chichkin was controlling law at the time of his preliminary hearing, guilty plea, and the September 30, 2022 sentencing hearing; 2) under Chichkin, Appellant's prior acceptance of ARD for the 2018 DUI would not have counted as a first offense for purposes of subjecting Appellant to an enhanced penalty; and 3) because of Chichkin, the mandatory sentence mentioned in the plea agreement was illegal. Appellant insisted that he should "have been subject to the penalties for a first offense DUI, consisting of a period of incarceration of not less than 72 hours nor more than 6 months." (Post-Sentence Motion, filed 12/12/22, at ¶25). For these reasons, Appellant concluded that the court needed to vacate his sentence and permit withdrawal of the guilty plea. By order entered December 14, 2022, the court denied Appellant's post-sentence motion.
Appellant timely filed a notice of appeal on January 9, 2023. On January 11, 2023, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant timely filed his Rule 1925(b) statement on January 30, 2023.
Appellant now raises two issues for our review:
Whether the trial court erred when denying [Appellant's] presentence motion to withdraw his guilty plea when at the time of entering the plea the proposed sentence was illegal?
Whether the trial court erred when sentencing [Appellant] to a period of incarceration instead of the Pike C.A.R.E. program as set forth in the guilty plea?(Appellant's Brief at 5).
Appellant's issues are related, and we address them together. Appellant asserts that he established a "fair and just" reason warranting withdrawal of the guilty plea because the parties "never had a clear agreement as to … the minimum mandatory sentence contained" in the written plea colloquy. (Id. at 13). Appellant maintains that he was "guided by the then controlling law set forth in Chichkin, with the understanding that this would be considered a first offense DUI with a minimum mandatory period of incarceration of 72 hours." (Id.) Because the Commonwealth "apparently believed" that Appellant had committed a second offense DUI, Appellant suggests that "there was never a meeting of the minds," and his guilty plea was not knowing or intelligent. (Id. at 14). Appellant also claims that "the guilty plea in and of itself was not a legal plea" because Chichkin applied, and the court could not treat the instant DUI as a second offense. (Id.) Appellant acknowledges that this Court overruled Chichkin by the time the court imposed his sentence, but he insists that the change in law did not cure the "inherent defect in the guilty plea that existed at the time it was entered and accepted by the court." (Id.)
Moreover, Appellant argues that the Commonwealth breached the plea agreement by refusing to recommend Appellant for admission into the C.A.R.E. program. Regarding the admission criteria, Appellant notes that he "had no bail violations and completed [all] evaluations in a timely manner, prior to the first sentencing hearing." (Id. at 15). To the extent that the program required the submission of an application within thirty days of the preliminary hearing, Appellant reiterates that this "condition precedent" was impossible for him to satisfy based upon the timing of the entry of his plea. (Id.) Appellant concludes that this Court must vacate his judgment of sentence and remand the matter for the withdrawal of the plea or a new sentence directing Appellant's admission into the C.A.R.E. program. We disagree.
Generally, the entry of a guilty plea constitutes a waiver of all defects and defenses except lack of jurisdiction, invalidity of the plea, and legality of the sentence. See Commonwealth v. Main, 6 A.3d 1026 (Pa.Super. 2010). This Court reviews the denial of a presentence motion to withdraw a guilty plea for an abuse of discretion. Commonwealth v. Gordy, 73 A.3d 620 (Pa.Super. 2013), appeal denied, 624 Pa. 687, 87 A.3d 318 (2014). See also Pa.R.Crim.P. 591(A) (stating: "At any time before the imposition of sentence, the court may, in its discretion, permit, upon motion of the defendant, or direct, sua sponte, the withdrawal of a plea of guilty or nolo contendere and the substitution of a plea of not guilty").
"[T]he proper inquiry on consideration of such a withdrawal motion is whether the accused has made some colorable demonstration, under the circumstances, such that permitting withdrawal of the plea would promote fairness and justice." Commonwealth v. Carrasquillo, 631 Pa. 692, 706, 115 A.3d 1284, 1292 (2015).
In the seminal case of Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), the Supreme Court set forth the standard for determining when a motion to withdraw a guilty plea prior to sentencing should be granted. The Court
stated that "[a]lthough there is no absolute right to withdraw a guilty plea, properly received by the trial court, it is clear that a request made before sentencing … should be liberally allowed." 450 Pa. at 190, 299 A.2d at 271. The Court then outlined the now well-established two[-]prong test for determining when to grant a pre-sentence motion to withdraw a plea: (1) the defendant has provided a "fair and just reason" for withdrawal of his plea; and (2) the Commonwealth will not be "substantially prejudiced in bringing the case to trial." Id.Commonwealth v. Muhammad, 794 A.2d 378, 382-83 (Pa.Super. 2002).
Where a withdrawal request is based on an allegation that the plea colloquy was inadequate, we look to Rule of Criminal Procedure 590, which states that when considering a plea agreement: "The judge shall conduct a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based." Pa.R.Crim.P. 590(B)(2). The comment to Rule 590 sets forth the following information that the judge must ascertain in determining whether to accept a plea:
(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to trial by jury?
(4) Does the defendant understand that he or she is presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?
(7) Does the defendant understand that the Commonwealth has a right to have a jury decide the degree of guilt if the defendant pleads guilty to murder generally?Pa.R.Crim.P. 590 (Comment).
This Court will evaluate the adequacy of the plea colloquy and the voluntariness of the resulting plea by examining the totality of the circumstances surrounding the entry of that plea. See Muhammad, supra. A guilty plea will be deemed valid if an examination of the totality of the circumstances surrounding the plea shows that the defendant had a full understanding of the nature and consequences of his plea such that he knowingly and voluntarily entered the plea of his own accord. See Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006). Pennsylvania law presumes a defendant who entered a guilty plea was aware of what he was doing, and the defendant bears the burden of proving otherwise. See Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 2003). "A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy." Id. at 523.
Additionally, the following principles govern the enforcement of plea agreements:
Plea bargaining is not some adjunct to the criminal justice system; it is the criminal justice system. Accordingly, it is critical that plea agreements are enforced, to avoid any possible perversion of the plea bargaining system. The
disposition of criminal charges by agreement between the prosecutor and the accused, … is an essential component of the administration of justice. Properly administered, it is to be encouraged. In this Commonwealth, the practice of plea bargaining is generally regarded favorably, and is legitimized and governed by court rule…. A "mutuality of advantage" to defendants and prosecutors flows from the ratification of the bargain.
* * *
Although a plea agreement occurs in a criminal context, it remains contractual in nature and is to be analyzed under contract-law standards. Furthermore, disputes over any
particular term of a plea agreement must be resolved by objective standards. A determination of exactly what
promises constitute the plea bargain must be based upon the totality of the surrounding circumstances and involves a case-by-case adjudication.
Any ambiguities in the terms of the plea agreement will be construed against the Government. Nevertheless, the
agreement itself controls where its language sets out the terms of the bargain with specificity. Regarding the
Commonwealth's duty to honor plea agreements, well-settled Pennsylvania law states:
Our courts have demanded strict compliance with that duty in order to avoid any possible perversion of the plea bargaining system, evidencing the concern that a defendant might be coerced into a bargain or fraudulently induced to give up the very valued constitutional guarantees attendant the right to trial by jury.
Whether a particular plea agreement has been breached depends on what the parties to the agreement reasonably understood to be the terms of the agreement.Commonwealth v. Moose, 245 A.3d 1121, 1129-30 (Pa.Super. 2021) (en banc), appeal denied, Pa., 268 A.3d 1077 (2021) (internal citation omitted). See also Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa.Super. 1994), cert. denied, 516 U.S. 818, 116 S.Ct. 75, 133 L.Ed.2d 34 (1995) (stating, "[I]n a 'negotiated' plea agreement, where a sentence of specific duration has been made part of a plea bargain, it would clearly make a sham of the negotiated plea process for courts to allow defendants to later challenge their sentence; this would, in effect, give defendants a second bite at the sentencing process").
Nevertheless, "a criminal defendant cannot agree to an illegal sentence, so the fact that the illegality was a term of his plea bargain is of no legal significance." Commonwealth v. Warunek, 279 A.3d 52, 54 (Pa.Super. 2022) (quoting Commonwealth v. Rivera, 154 A.3d 370, 381 (Pa.Super. 2017) (en banc)). "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction." Id. (quoting Commonwealth v. Ramos, 197 A.3d 766, 769 (Pa.Super. 2018)).
Instantly, the trial court evaluated Appellant's arguments and determined that the written plea colloquy properly informed Appellant about his possible sentencing exposure:
[Appellant] was represented by competent counsel at all relevant stages of the prosecution, including negotiation of the terms of the plea agreement, review of the written guilty plea colloquy, and entry of the plea in open court. He acknowledged and understood the nature, elements, and grading of the offense to which he entered his plea. Furthermore, at oral argument on the post-sentence motion, counsel for the Commonwealth indicated that the grading of the offense was a deliberate choice by [Appellant], in order to open eligibility for the Pike C.A.R.E. program, which would not otherwise have been available had the DUI been graded as a first offense ungraded misdemeanor.(Trial Court Opinion, filed 3/15/23, at 2-3) (unnumbered). Regarding Chichkin, the court observed that Appellant's reliance on its validity "was a risk that [Appellant] took if it was indeed his intent to seek a post hoc voiding of his plea." (Id. at 3).
Under the circumstances of this case, we cannot say that the court abused its discretion in denying Appellant's presentence request to withdraw the guilty plea. See Gordy, supra. We emphasize the court's observation that Appellant obtained the possibility of a recommendation for the C.A.R.E. program by accepting the terms of the plea agreement. Appellant, however, inexplicably delayed the completion of his program application, which resulted in the Commonwealth withholding its recommendation. The Commonwealth's decision to withhold the recommendation was reasonable where Appellant failed to file his program application prior to the date of the original sentencing hearing. To the extent Appellant continues to argue that he could not submit a timely application more than thirty days after the preliminary hearing, the express terms of the application belie this claim. (See Application, dated 10/13/22, at 3; R.R. at 64a).
Moreover, this is not a case where Appellant is arguing that he was innocent, or he entered the plea under duress. See Carasquillo, supra (explaining that defendant's plausible claim of innocence may amount to fair and just reason for presentence withdrawal of plea); Commonwealth v. Elia, 83 A.3d 254, 264 (Pa.Super. 2013), appeal denied, 626 Pa. 674, 94 A.3d 1007 (2014) (stating that defendant presented fair and just reason supporting presentence withdrawal of plea where he felt "bullied" by counsel into taking plea offer, and defendant was inclined to challenge Commonwealth's evidence at trial). Compare Commonwealth v. Broaden, 980 A.2d 124 (Pa.Super. 2009), appeal denied, 606 Pa. 644, 992 A.2d 885 (2010) (holding that defendant was not entitled to presentence withdrawal of guilty plea where his arguments were directed at convincing sentencing court not to impose mandatory minimum sentence; defendant did not move to withdraw plea prior to sentencing hearing and did not assert innocence). This is also not a case where Appellant was unaware of the maximum possible penalty for his crime. Likewise, Appellant did not plead guilty to avoid a sentence that the court did not have the power to impose. See Commonwealth v. Hodges, 789 A.2d 764, 767 (Pa.Super. 2002) (holding "in the event the maximum sentence communicated to a criminal defendant is in fact an illegal sentence, the plea process has been tainted from the outset and manifest injustice is established"). See also Commonwealth v. Lenhoff, 796 A.2d 338, 343 (Pa.Super. 2002) (explaining that defendant made on-the-record statement that he entered plea to avoid ten-year sentence, however, court did not have authority to impose that sentence; "plea was fatally flawed from the start, as in Hodges, by the defendant's desire to avoid a sentence that the court did not have the power to impose").
Here, Appellant executed a written guilty plea colloquy confirming that: 1) he was pleading guilty to DUI; 2) the offense was graded as a first-degree misdemeanor; 3) the offense included a mandatory minimum term of ninety (90) days and a maximum penalty of five (5) years' imprisonment; and 4) the Commonwealth agreed to recommend admission to the C.A.R.E. program if Appellant satisfied certain prerequisites. The court subsequently imposed a legal sentence that was consistent with these terms. See Moroz, supra; Richards, supra While Appellant now attempts to claim that the plea agreement did not represent a "meeting of the minds" as to sentencing, Appellant is bound by his statement from the oral colloquy that he understood the terms of the agreement. See Pollard, supra. The agreement made no mention of a seventy-two (72) hour minimum sentence pursuant to Chichkin. If this is the sentence Appellant truly expected to receive, he should have taken steps to memorialize his expectation in the agreement. Based upon the foregoing, we affirm the judgment of sentence.
Although Richards remains pending with our Supreme Court, we are still bound by its holding. See Commonwealth v. Boyd, 284 A.3d 895 (Pa.Super. 2022) (reiterating general rule that appellate courts apply law in effect at time of appellate review).
Judgment of sentence affirmed.
Judge Bowes concurs in the result.
Judgment Entered.
CONCURRING MEMORANDUM
NICHOLS, J.
I agree with the Majority's conclusion that the trial court did not abuse its discretion when it denied Appellant's pre-sentence request to withdraw his guilty plea, and that the judgment of sentence should be affirmed. See Majority Mem. at 14-15. Although I agree with the Majority's decision, I write separately to emphasize the significance of this Court's en banc decision in Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc), to the case at bar, particularly as it pertains to Appellant's argument that the trial court imposed an illegal sentence. See Appellant's Brief at 14.
Richards expressly overruled Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), while the instant appeal was pending; therefore, Appellant's sentence is not illegal. See Richards, 284 A.3d at 220 (expressly overruling Chichkin); see also Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. 2022) (en banc) (same). Moreover, absent a plea agreement in the instant case, the Commonwealth would have been able to present evidence of Appellant's prior ARD-DUI at the time of sentencing to establish that his current DUI offense is a second offense. See Commonwealth v. Shifflett, 1480 MDA 2022, 2023 WL 3051454 at *5 (Pa. Super. filed April 24, 2023) (unpublished mem.).
Unpublished memoranda filed after May 1, 2019 may be cited for their persuasive value. Pa.R.A.P. 126(b).
Here, the record indicates that on June 30, 2022, Appellant entered into a plea agreement for one count of DUI-Tier 3 (highest rate of alcohol), graded as a first-degree misdemeanor. Pursuant to the plea agreement, the Commonwealth agreed to recommend that Appellant be admitted into a local diversionary program, provided that Appellant complete certain prerequisites for admission into the program. See Appellant's Written Guilty Plea Colloquy, 6/30/22, at 1. The written guilty plea colloquy reflected that Appellant was subject to a mandatory minimum sentence of ninety days imprisonment with a maximum sentence of five years, which is consistent with a second-offense DUI-Tier 3. Id. at 4; see 75 Pa.C.S. §§ 3804(c)(2)(i), (d). Appellant failed to comply with the prerequisites required for entry into the local diversionary program; therefore, the Commonwealth recommended that Appellant be sentenced to the mandatory minimum sentence of ninety days to five years' imprisonment. See N.T. Sentencing Hr'g, 12/2/22, at 2, 4-5. Prior to imposing sentence, the trial court denied Appellant's motion to withdraw the guilty plea. Id. at 7. The trial court ultimately imposed a sentence of ninety days to five years' imprisonment at the sentencing hearing on December 2, 2022. Id. at 8.
The Vehicle Code states that a violation of Section 3802(c) for a person that has a prior DUI offense within the last ten years shall be graded as a first-degree misdemeanor. 75 Pa.C.S. § 3803(b)(4).
This Court has long recognized the critical role that plea agreements play in our criminal justice system. See Commonwealth v. Snook, 230 A.3d 438, 444 (Pa. Super. 2020) (noting that ninety-four percent of state convictions are the result of plea agreements). When a defendant enters a plea agreement, he or she waives his or her right to proof beyond a reasonable doubt. Commonwealth v. Farabaugh, 136 A.3d 995, 1002 (Pa. Super. 2016) (citing Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa.
Super. 2013) (en banc)). Accordingly, I would conclude that Appellant's argument that the plea agreement called for an illegal sentence is without merit, because by entering into the instant plea agreement, Appellant waived his right to have the factual basis of his arrest giving rise to his entry into the ARD program proven beyond a reasonable doubt. See Farabaugh, 136 A.3d at 1002; Hainesworth, 82 A.3d at 449.
The Chichkin Court prohibited equating entry into the ARD program as a prior conviction, but it did not preclude the Commonwealth from proving the facts giving rise to Appellant's entry into the ARD program. Chichkin, 232 A.3d at 970-71 (stating that "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. Appellant's guilty plea, on its face, therefore, was not invalid, and I conclude that Appellant has not articulated sufficient grounds for withdrawing his guilty plea. Accordingly, the trial court did not abuse its discretion in its decision to deny Appellant's motion to withdraw his guilty plea.
At the time Appellant entered into his plea agreement, Chichkin remained the controlling case law in this Commonwealth. In the instant case, the Commonwealth attempted to introduce evidence of the underlying facts of the charges giving rise to Appellant's previous entry into the ARD program. Before this Court issued its decisions in Richards and Moroz, the Commonwealth was prepared to enter into evidence a criminal complaint dated July 2, 2017. N.T. Sentencing Hr'g, 9/30/22, at 3-4. After Appellant objected based on Chichkin, the trial court continued the sentencing hearing to take counsel's arguments under advisement, until December 2, 2022. Id. at 6. At the December 2, 2022 sentencing hearing, the trial court imposed the mandatory minimum sentence of ninety days to five years' imprisonment requested by the Commonwealth based on the terms of the plea agreement after Appellant failed to complete the prerequisites for admission to the local diversionary program. N.T. Sentencing Hr'g, 12/2/22, at 2, 4-5.
Further, in the interim between the sentencing hearings, on October 4, 2022, this Court issued its decision in Richards and Moroz, overturning Chichkin, such that both cases were in effect on the date that the trial court imposed Appellant's sentence. On this record, the trial court did not impose an illegal sentence, nor did it abuse its discretion when it denied Appellant's motion to withdraw his guilty plea based on Appellant's non-compliance with the diversionary program prerequisites and the controlling case law in effect on the date of his sentencing; therefore, I would affirm the judgment of sentence.
It is well settled that this Court is duty bound to apply the law in effect at the time of its decision. See Commonwealth v. Hind, 304 A.3d 413, 417 (Pa. Super. 2023). Moreover, both a defendant and the Commonwealth may benefit from changes in the law before a judgment of sentence becomes final. Id. at 418 (citing Commonwealth v. Hummel, 295 A.3d 719, 721 (Pa. Super. 2023) (recognizing that the Commonwealth may benefit from a change in the law during the pendency of a direct appeal); Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018)). While not relevant here, there are clearly limitations to obtaining a benefit from a change in the law. For instance, while the Commonwealth may benefit from changes in the law during the pendency of a direct appeal, it may not benefit from an ex post facto law, which is forbidden by both the United States and Pennsylvania Constitutions. See U.S. Const., Art. I, §§ 9, 10; Pa. Const. Art. I, § 17.
Finally, I note that the Supreme Court of Pennsylvania has granted allocatur and is reviewing this Court's decisions in Richards to consider whether it is "unconstitutional to consider an acceptance of ARD as a prior offense for sentencing purposes without the procedural protections afforded by Alleyne [v. United States, 570 U.S. (2013)], i.e. a prior offense can only be determined by proof beyond a reasonable doubt[.]" Commonwealth v. Richards, 294 A.3d 300 (Pa. 2023). Additionally, in Richards, our Supreme
While our Supreme Court has granted the petition for allowance of appeal in Richards, the petition for allowance of appeal in Moroz is being held by the Supreme Court pending Commonwealth v. Shifflett, 26 MAP 2024. Commonwealth v. Moroz, 520 MAL 2022 (Pa. filed April 26, 2024).
Court will consider whether it is "fundamentally unfair and a violation of due process to equate a prior acceptance of ARD with a prior conviction for purposes of a recidivist mandatory minimum sentence even though that acceptance involved no proof of guilt beyond a reasonable doubt[.]" Id.; see also Commonwealth v. Schifflett, 316 A.3d 616 (Pa. 2024) (granting allowance of appeal to determine whether it is unconstitutional to consider the acceptance of ARD as a prior offense for sentencing purposes without the procedural protections afforded by Alleyne).
Our Supreme Court first considered these issues in Commonwealth v. Verbeck, 290 A.3d 260 (Pa. 2023), which was argued and decided after the death of the late Chief Justice Baer. The Court deadlocked 3-3, therefore, this Court's decision was affirmed. See Verbeck, 290 A.3d at 261; see also Commonwealth v. Verbeck, 2021 WL 1328551 (Pa. Super. filed April 9, 2021) (unpublished mem.).
For these reasons, I respectfully concur with the Majority in its decision to affirm the trial court's denial of Appellant's motion to withdraw his guilty plea and to affirm Appellant's judgment of sentence.