Opinion
1472 MDA 2021 J-A04001-23
05-15-2023
COMMONWEALTH OF PENNSYLVANIA v. H.C.G. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 18, 2021 In the Court of Common Pleas of Mifflin County Criminal Division at No(s): CP-44-CR-0000110-2021
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM
DUBOW, J.
Appellant, H.C.G., appeals from the judgment of sentence entered on October 18, 2021, after the trial court convicted him of, inter alia, Driving Under the Influence ("DUI")-General Impairment. Appellant challenges the trial court's denial of his motion to compel his inclusion in the Mifflin County accelerated rehabilitative disposition ("ARD") program. After careful review, we remand for further proceedings.
ARD "is a pretrial disposition of certain cases, in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant's successful participation in a rehabilitation program, the content of which is to be determined by the court and applicable statutes." Commonwealth v. Lutz, 495 A.2d 928, 931 (Pa. 1985).
See 75 Pa.C.S.A. § 3803.
On February 5, 2021, the Commonwealth charged Appellant with, inter alia, DUI-General Impairment. This was Appellant's first DUI offense. At some point between February 5, 2021, and May 20, 2021, Appellant submitted a request to the Mifflin County District Attorney's Office that his case be considered for admission into the ARD program. The Commonwealth denied Appellant's request.
On May 20, 2021, Appellant filed a motion to compel, seeking admission into the ARD program. On June 8, 2021, the trial court held a hearing on Appellant's motion. At this hearing, the Commonwealth explained that in light of Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), discussed infra, the district attorney's office had instituted a policy of "not offering ARDs across the board for DUIs here in Mifflin County."
We note that Appellant styled his motion as seeking to compel the Commonwealth to move for his admission into the ARD program.
N.T. Hr'g, 6/8/21, at 7.
On July 19, 2021, the court denied the motion. On October 18, 2021, Appellant proceeded to a stipulated bench trial where the court convicted him of, inter alia, DUI. The court sentenced Appellant the same day.
The court sentenced Appellant to 6 months' probation and granted him bail pending appeal.
Appellant timely filed a Notice of Appeal and both he and the trial court complied with Pa.R.A.P. 1925. Appellant raises the following issues on appeal:
1. Did the trial court abuse its discretion in holding that the Commonwealth's denial of ARD for all [DUI] charges did not violate statutory mandates that ARD be considered in such cases as set forth in 75 Pa.C.S. § 3807 and 75 Pa.C.S. §[ ]1552 and constitute an abuse of discretion?
2. Did the trial court err in holding that the Commonwealth did not abuse its discretion in denying ARD in the instant matter when said denial was based solely as a response to the Superior Court's decision in Chichkin,[ 232 A.3d 959] which held that ARD was no longer a "prior offense" of DUI, so said denial was patently and without doubt unrelated to the protection of society and/or the likelihood of a person's success in rehabilitation?Appellant's Br. at 4.
On appeal, Appellant challenges the trial court's denial of his motion to compel his admission into the ARD program. Appellant's Br. at 8-27. Appellant argues that the Commonwealth's blanket refusal to admit DUI offenders into the ARD program is impermissible, as it is not related to the protection of the public or the defendant's rehabilitation. Id. As a result, the trial court erred by refusing to compel his admission into the program. Id. After careful review, we agree.
Appellant's issues are interrelated and, thus, we address them together.
Section 3807 of the Motor Vehicle Code states that "a defendant charged with a violation of [S]ection 3802 (relating to [DUI]) may be considered by the attorney for the Commonwealth for participation in an [ARD] program[.]" 75 Pa.C.S. § 3807(a)(1). The decision to submit a case for ARD is in the discretion of the Commonwealth. Commonwealth v. LaBenne, 21 A.3d 1287, 1291 (Pa. Super. 2011). See also Pa.R.Crim.P. 310.
The Commonwealth enjoys broad discretion in determining whether to submit a case for ARD. Commonwealth v. Pypiak, 728 A.2d 970, 972 (Pa. Super. 1999). The Commonwealth's discretion is cabined only by the requirement that the "reasons [for denying ARD] must relate to the protection of society or to the likelihood of the candidate's successful rehabilitation." Commonwealth v. Agnew, 600 A.2d 1265, 1268 (Pa. Super. 1991). See also Commonwealth v. Lutz, 495 A.2d 928, 935 (Pa. 1985) (recognizing that the Commonwealth abuses its discretion only where it utilizes "some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person's success in rehabilitation")
Agnew also recognizes that the Commonwealth "must openly specify reasons for not submitting a case for ARD." 600 A.2d at 1268 (citation omitted).
Once the Commonwealth has denied a defendant admission into ARD, "the trial court's role is limited to [determining] whether the Commonwealth abused its discretion." Commonwealth v. Sohnleitner, 884 A.2d 307, 313 (Pa. Super. 2005). A trial court's ability to compel admission into an ARD program is extremely limited: "the trial court cannot admit a defendant to ARD without the Commonwealth's motion unless there is an abuse of the district attorney's discretion." Id. at 313 n.4 (citation omitted). We review the trial court's determination for an abuse of discretion. Commonwealth v. Fleming, 955 A.2d 450, 453 (Pa. Super. 2008).
Finally, it is necessary to our disposition to briefly summarize the law related to sentencing of DUI offenders. Section 3804 of the Vehicle Code sets forth escalating mandatory minimum sentences for first, second, and subsequent DUI offenses. 75 Pa.C.S. § 3804(a). Section 3806(a) defines the term "prior offense" as including "acceptance of [ARD.]" Id. at § 3806(a). In Chichkin, 232 A.3d at 969-71, this Court determined that Section 3806(a)'s inclusion of acceptance of ARD in an earlier DUI prosecution as a "prior offense" constituted a violation of due process.
At the June 8, 2021 hearing, the Commonwealth explained that in the wake of this Court's decision in Chichkin, it instituted a blanket policy of refusing ARD to all defendants charged with DUI. N.T. Hr'g, 6/8/21, at 7. The Commonwealth argued that the decision to refuse ARD to all DUI defendants furthers the protection of society because it ensures that, should those defendants commit another DUI, they will be subject to the increased sentencing provisions for repeat DUI offenders provided by 75 Pa.C.S. § 3804(a). N.T. Hr'g at 7-23.
In support of its denial of Appellant's motion to compel, the trial court explained that it "was persuaded by the [Commonwealth] that the denial of ARD for first time DUI offenses in light of Chichkin . . . is for the protection of society." Trial Ct. Op., 1/11/22, at 2 (unpaginated). It credited the Commonwealth's argument that because acceptance of ARD does not count as a "prior offense," permitting DUI offenders into the ARD program would create "a danger to the public . . . in light of Chichkin." Id.
We also note that the trial court credited the Commonwealth's explanation that "the manpower needed to keep track of repeat offenders, who have previously received ARD and expunged their record of ARD, is not available in [Mifflin C]ounty[.]" Trial Ct. Op. at 2. This excuse by the Commonwealth is unavailing; the failure by the Office of the District Attorney ("DA") to allocate necessary resources to track individuals who have received ARD is not related to the protection of society or rehabilitation of the offender but, rather, the DA's office's determination of resource allocation.
Chichkin, however, is no longer controlling law in Pennsylvania. In Commonwealth v. Moroz, 284 A.3d 227, 233 (Pa. Super. 2022) (en banc), this Court "expressly overrule[d] Chichkin" and held that the Motor Vehicle Code's recognition of acceptance of ARD as a prior conviction "for purposes of imposing a Section 3804 mandatory minimum sentence, passes constitutional muster." Since this Court has overruled Chichkin, the Commonwealth's blanket policy of ARD refusal to DUI defendants is arbitrary and bears no relation to the protection of society or the potential for successful rehabilitation of the offender. The Commonwealth's refusal to admit Appellant into ARD based on this policy was, thus, an abuse of its discretion.
The trial court's failure to admit Appellant into the ARD program is likewise an abuse of discretion. We recognize that this Court decided Moroz during the pendency of Appellant's direct appeal. The trial court was, thus, proceeding according to the law in effect at the time it rendered its decision. Appellant is nonetheless entitled to application of Moroz on direct appeal. See Commonwealth v. Moore, 263 A.3d 1193, 1199 (Pa. Super. 2021).
Considering the above, we remand this case for the trial court to conduct an ARD hearing pursuant to Pa.R.Crim.P. 312 and 313 and proceed accordingly. As a result of our disposition, we vacate Appellant's October 18, 2021 conviction and judgment of sentence.
ARD is governed by Pa.R.Crim.P. 310-320 and 75 Pa.C.S. § 3807.
We note that because we vacate Appellant's conviction for a reason other than insufficient evidence or prosecutorial misconduct, the Double Jeopardy Clause would not preclude retrial for the instant charges should Appellant not qualify for, refuse to accept, or fail to complete ARD. See Commonwealth v. Johnson, 231 A.3d 807, 820 (Pa. 2020). See also Commonwealth v. McMullen, 721 A.2d 370, 371 (Pa. Super. 1998) (explaining that "the Double Jeopardy Clause does not impose a limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed solely because of insufficiency of the evidence" (citation and quotation marks omitted)).
Conviction and judgment of sentence vacated. Case remanded. Jurisdiction relinquished.
Judge McCaffery joins the memorandum.
Judge Stabile files a dissenting memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
STABILE, J.
Because I believe the record reflects an appropriate exercise of discretion on the part of the district attorney at the time the decision was made, and because subsequent developments in the law do not entitle Appellant to the relief the Majority orders, I respectfully dissent.
The Mifflin County District Attorney declined to move for Appellant's admission into Accelerated Rehabilitative Disposition ("ARD"), because under Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), overruled, Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc) Commonwealth v. Moroz, 284 A.3d 227 (Pa. 2021) (en banc), the prevailing jurisprudence at the time, a prior ARD could not be considered a first offense in the event the defendant committed another DUI offense. The Mifflin County District Attorney decided public safety would be best served by not offering ARD for DUI offenses, because the DUI statute provides harsher punishments for repeat offenders.1
Refusal of ARD in order to protect the public is well within the district attorney's discretion. In Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985), our Supreme Court explained that "[a]dmission to an ARD program is not a matter of right, but a privilege." Id. at 933. Thus, no criminal defendant may move to submit his or her own case to ARD; the discretion to do so rests with the prosecuting attorney.
[S]ociety, for its own protection, has an interest in carrying out the penalties prescribed by the legislature for drunk driving, except in the cases where even society's representative in the case, the district attorney, acting in conjunction with the court, […] determines that ARD is preferable to conviction because of the strong likelihood that a given criminal defendant will in fact be rehabilitated by an ARD program.Id.
The prosecutor's discretion in this matter is subject to few limitations. "Since the judgment about who can benefit from ARD is subjective, and since society may be seriously damaged by a wrong judgment, the district attorney is not to be faulted if he errs on the side of caution." Id. at 935. So long as the decision is related to the protection of society, courts will not disturb the district attorney's decision.
In any event, the decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for
admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person's success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender.Id. at 935. (Emphasis added).
The District Attorney articulated his reasons well. In the District Attorney's view, public protection was served better by denying ARD while Chichkin was in force, because anyone who completed an ARD and then reoffended would not be subject to the more severe penalties typically applicable to recidivist DUI offenders. N.T. Hearing, 6/8/21, at 8-10. Further, the District Attorney explained that, under his policy, the DUI recidivist penalties would apply automatically, without the need to argue to the trial court for a more severe sentence based on a prior ARD that, under Chichkin, technically is not a prior offense. Id. at 22-23. The district attorney noted that its policy was in line with the protection of the public, the statutory DUI penalty scheme, and our Supreme Court's opinion in Lutz. Id. at 23.
The Majority, though it acknowledges the broad discretion afforded the District Attorney, concludes that this Court's overruling of Chichkin requires us to vacate the judgment of sentence and remand for further consideration because Chichkin, the impetus for the Mifflin County District Attorney's blanket policy on ARD, has been overruled. I disagree. The District Attorney's view, put simply, is that the protection of the public is better served by ensuring that recidivist DUI offenders are sentenced in accord with § 3803. That decision, at the time it was made, was well within the District Attorney's discretion under Lutz. The Majority does not contend otherwise and offers no legal basis for winding the clock back to revisit the decision based on a subsequent change in the law.
Appellant already has been tried and convicted, and I discern no reason why the overruling of Chichkin is grounds for disturbing the result of the trial. As noted above, ARD is a privilege, not a right. Lutz, 495 A.2d at 933. Thus, for present purposes, the overruling of Chichkin implicates nothing more than a privilege offered to some DUI defendants at the discretion of the prosecuting attorney. Despite Appellant's lack of a right to ARD (indeed, the lack of a right even to move his own admission into ARD), and despite the broad discretion afforded to prosecutors in determining which cases are appropriate for ARD, the Majority forces the Mifflin County District Attorney into a choice between moving Appellant into ARD or expending the public resources necessary to retry him. Because the overruling of Chichkin does not warrant this result, I would affirm the judgment of sentence.
I respectfully dissent.