sentencing on the present violation in Pennsylvania

2024On May 20, 2020, a three-judge panel of this Court in Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), held that characterizing a DUI charge as a first offense when a defendant completes ARD for those charges violates a defendant’s due process rights.

2024As Hollabaugh highlights, Chichkin held that “the particular provision of 75 Pa. C.S.A. § 3806(a), which defines a prior acceptance of ARD in a DUI case as a ‘prior offense’ for DUI sentencing enhancement purposes … [is] unconstitutional.” Chichkin, 232 A.3d at 971 .

2025See Richards, 284 A.3d at 220 ; see also Moroz, 284 A.3d at 233 (“[s]ection 3806(a), which equates prior acceptance of ARD to a prior conviction for purposes of imposing a [s]ection 3804 mandatory minimum sentence, passes constitutional muster”). -4- J-S42027-24 his sentence must be vacated and the case remanded so that he can be sentenced as a first-time offender.

2023See Moroz, supra at 230. -3- J-S35045-21 relevant statute.’ Richards, 284 A.3d at 220 (citation omitted); Moroz, 284 A.3d at 233 .

2025See Richards, 284 A.3d at 220 ; see also Moroz, 284 A.3d at 233 (“[s]ection 3806(a), which equates prior acceptance of ARD to a prior conviction for purposes of imposing a [s]ection 3804 mandatory minimum sentence, passes constitutional muster”). -4- J-S42027-24 his sentence must be vacated and the case remanded so that he can be sentenced as a first-time offender.

2023See Moroz, supra at 230. -3- J-S35045-21 relevant statute.’ Richards, 284 A.3d at 220 (citation omitted); Moroz, 284 A.3d at 233 .

2022“Thus, a defendant who had accepted ARD for a prior DUI offense is considered a second-time offender under the Section 3804 penalty provisions.” Chichkin, supra at 963. “[T]he essence of the seriousness of the crime of drunk driving is that it is a life-threatening act.” Commonwealth v Lutz, 508 Pa. 297 , 312-13, 495 A.2d 928 , 936 (1985). “[S]ociety, for its own protection, has an interest in carrying out the penalties prescribed by the legislature for drunk driving….” Id. at 307 , 495 A.2d at 933 .

2022“Thus, a defendant who had accepted ARD for a prior DUI offense is considered a second-time offender under the Section 3804 penalty provisions.” Chichkin, supra at 963. “[T]he essence of the seriousness of the crime of drunk driving is that it is a life-threatening act.” Commonwealth v Lutz, 508 Pa. 297 , 312-13, 495 A.2d 928 , 936 (1985). “[S]ociety, for its own protection, has an interest in carrying out the penalties prescribed by the legislature for drunk driving….” Id. at 307 , 495 A.2d at 933 .

2008See Commonwealth v. Nieves, 935 A.2d 887 (Pa.Super.2007); Commonwealth v. Stafford, 932 A.2d 214 (Pa.Super.2007). ¶ 9 Based on the foregoing, the judgment of sentence is affirmed. ¶ 10 Affirmed. . 75 Pa.C.S.A. § 3802. .

2008The purpose of section 3806(b) is to merely provide courts with a means to determine which prior offenses occurred within the ten-year look-back period of the present violation.” Commonwealth v. Nieves, 935 A.2d 887, 889 (Pa.Super.2007), appeal denied, — Pa. -, 951 A.2d 1162 (2008). ¶ 10 The plain language of the statute clearly sets forth that acceptance of ARD, or other forms of preliminary dispositions, constitutes the equivalent of a conviction for sentencing purposes.

2022“Thus[,] a defendant who [] accepted ARD for a prior DUI offense is considered a second-time offender under the Section 3804 penalty provisions.” Commonwealth v. Richards, ___ A.3d ___, 2022 WL 4869856 , at *3 (Pa. Super. filed Oct. 4, 2022) (slip copy) (en banc), citing Chichkin, 232 A.3d at 963 . -3- J-S07012-22 In Alleyne, supra, the Supreme Court of the United States held 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, 570 U.S. at 103 ; see also Apprendi v. New Jersey, 530 U.S

2021In Chichkin, this Court, analyzing Section 3806(a)(1), and applying the United States Supreme Court’s decisions in Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), concluded that Section 3806(a)(1)’s inclusion of ARD as a “prior offense” for sentencing purposes is unconstitutional.2 As Filan points out, Chichkin was filed prior to her sentencing. ____________________________________________ 2 Specifically, this Court concluded that the particular provision of 75 Pa.C.S.[A.] § 3806(a), which defines a prior acceptance of ARD in a DUI case as a “prio

2025See Commonwealth v. Kennedy, 266 A.3d 1128 , 1132 n.8 (Pa.Super. 2021) (“The prisoner mailbox rule provides that a pro se prisoner’s document is deemed filed on the date he delivers it to prison authorities for mailing.” (citation omitted)). 2 In relevant part, this section states: “[T]he term ‘prior offense’ as used in this chapter shall mean . . . acceptance of [ARD] or other form of preliminary disposition before the sentencing on the present violation for” any offense relating to DUI.

2024See 75 Pa.C.S.A. § 3806(a)(3) (“Except as set forth in subsection (b), the term “prior offense” . . . shall mean any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for . . . an offense substantially similar to an offense under [section 3802] or [under former section 3731] in another jurisdiction[.]”). 5 See NY CLS Veh & Tr § 1192. 6 See 75 Pa.C.S.A. § 3802. 7 See Commonwealth v. Jabbie, 20

2017Cesare v. Department of Transportation, Bureau of Driver Licensing, 16 A.3d 545 , 548 n.6 (Pa. Cmwlth. 2011). 7 As pertinent, Section 3806(a) of the Vehicle Code provides: (a) General rule.--Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following: (1) an offense under sect

2017Thus, under Section 3806(a), “acceptance of ARD, or other forms of preliminary dispositions, constitutes the equivalent of a conviction for sentencing purposes.” Commonwealth v. Love, 957 A.2d 765, 768 (Pa. Super. 2008) (citing the former Section 3806 of the Vehicle Code) (emphasis added).

2016See Whalen, 32 A.3d at 680 (holding that, “based strictly on the plain text of Section 3805, the ignition interlock requirement is applicable when a person ‘violates’ Section 3802, and also, within the preceding ten years, had a ‘prior offense,’ i.e., a prior conviction or prior acceptance of ARD for an offense under Section 3802 or similar provision.”) Accordingly, we affirm the trial court’s order sustaining Licensee’s statutory appeal to the extent that it directed the Department to impose a twelve- month suspension, but reverse it to the extent that the court failed to require Licensee to

2011“The basic tenet of statutory construction requires a court to construe the words of the statute according to their plain meaning.” Grom v. Burgoon, 448 Pa.Super. 616 , 672 A.2d 823, 825 (1996).

2011“The basic tenet of statutory construction requires a court to construe the words of the statute according to their plain meaning.” Grom v. Burgoon, 448 Pa.Super. 616 , 672 A.2d 823, 825 (1996).

2006Prior offenses (a) General rule. — Except as set forth in subsection (b), the term "prior offense" as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following: (1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance); (2) an offense under former section 3731; (3) an offense substantially similar to an offense under paragraph (1) or (2) in

2006Prior offenses (a) General rule. — Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following: (1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance); (2) an offense under former section 3731; (3) an offense substantially similar to an offense under paragraph (1) or (2) in

2006Prior offenses (a) General rule. — Except as set forth in subsection (b), the term "prior offense" as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following: (1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance); (2) an offense under former section 3731; (3) an offense substantially similar to an offense under paragraph (1) or (2) in

2006Prior offenses (a) General rule. — Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following: (1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance); (2) an offense under former section 3731; (3) an offense substantially similar to an offense under paragraph (1) or (2) in

2006When possible, every statute should be construed to give effect to all its provisions. 1 Pa.C.S.A. § 1921(a); Commonwealth v. Drummond, 775 A.2d 849, 855-56 (Pa.Super.2001) ( en banc), appeal denied, 567 Pa. 756 , 790 A.2d 1013 (2001).

2006When possible, every statute should be construed to give effect to all its provisions. 1 Pa.C.S.A. § 1921(a); Commonwealth v. Drummond, 775 A.2d 849, 855-56 (Pa.Super.2001) (en banc), appeal denied, 567 Pa. 756 , 790 A.2d 1013 (2001).