J-S28028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERIK CURTIS STOLEE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 836 MDA 2019

Appeal from the Judgment of Sentence Entered April 22, 2019

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0005864-2018

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED JULY 15, 2020

Appellant, Erik Curtis Stolee, appeals from the judgment of sentence 

entered April 22, 2019, as made final by the denial of his post-sentence motion 

on May 2, 2019, following his guilty plea to driving under the influence (“DUI”) 

of alcohol – general impairment.1 We vacate Appellant’s judgment of sentence 

and remand for resentencing as a first-time DUI offender.2

The relevant facts and procedural history of this case are as follows. 

Following entry of Appellant’s guilty plea, on April 22, 2019, the trial court 

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1 75 Pa.C.S.A § 3802(a)(1). 

2 The Commonwealth argues that we should quash the instant appeal because 

Appellant failed to prepare or file a reproduced record. See Commonwealth’s 

Brief at 3-5; see also Pa.R.A.P. 2154(a). Because the Commonwealth failed 

to file an official motion for the dismissal of the matter, we decline to quash 

this appeal. See Commonwealth v. Sohnleitner, 884 A.2d 307, 312-313 

(Pa. Super. 2005) (explaining that an “official motion is required for this Court 

to consider dismissing an appeal upon an allegation of a Rule 2154 violation”).
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sentenced him “pursuant to 75 Pa.C.S.[A.] § 3804(a)(2) to a term of six [] 

months intermediate punishment with the first [15] days on house arrest and 

electronic monitoring.” Trial Court Opinion, 7/22/19 at 1. The trial court 

sentenced Appellant under Section 3804(a)(2) because he was “charged on 

the instant docket with a second offense due to a prior completion of 

Accelerated Rehabilitative Disposition (“ARD”) for DUI.” Id. Thereafter, 

Appellant filed a timely motion for reconsideration, seeking to “bar 

consideration of [his] prior alleged ARD acceptance for sentencing purposes.” 

Appellant’s Motion for Reconsideration, 4/29/19, at *1 (un-paginated). The 

trial court denied reconsideration on May 2, 2019. Trial Court Order, 5/2/19, 

at 1. This timely appeal followed.3

On appeal, Appellant challenges the constitutionality of 75 Pa.C.S.A.

§ 3804 (outlining the mandatory minimum sentences for first, second and 

subsequent DUI offenders) and 75 Pa.C.S.A. § 3806(a)(1) (defining “prior 

offense” for sentencing purposes to include “acceptance of [ARD]” under the 

Motor Vehicle Code (“MVC”)). Appellant argues that prior acceptance of ARD 

is a fact that triggers the enhancement of a sentence and, as such, must be 

found by a jury beyond a reasonable doubt pursuant to Alleyne v. United 

States, 570 U.S. 99 (2013). Because Appellant was not afforded the 

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3 Appellant filed a notice of appeal on May 22, 2019. On May 28, 2019, the 

trial court entered an order directing Appellant to file a concise statement of 

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). Appellant 

timely complied. The court issued an opinion pursuant to Pa.R.A.P. 1925(a) 

on July 22, 2019. 
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constitutional protections set forth in Alleyne, he argues that he is entitled to 

resentencing as a first time DUI offender. 

Recently, in Commonwealth v. Chichkin, 2020 WL 2552803, at *1

(Pa. Super. May 20, 2020), a panel of this Court addressed the 

constitutionality of Sections 3804 and 3806 of the MVC. Ultimately, the 

Chichkin court concluded that acceptance of ARD is a “fact” that “must be 

presented to the fact finder and determined beyond a reasonable doubt before 

a trial court may impose a mandatory minimum sentence under Section 

3804.” Id. at *8. As such, the Chichkin Court concluded that, under 

Alleyne, the “the particular provision of 75 Pa.C.S.[A.] § 3806(a), which 

defines prior acceptance of ARD in a DUI case as a ‘prior offense’ for DUI 

sentencing enhancement purposes, offends the [d]ue [p]rocess [c]lause and 

is therefore unconstitutional.” Id. at *10. 

Herein, the trial court considered prior acceptance of ARD as a factor 

which enhanced Appellant’s sentence under Section 3804(a)(2). Nonetheless, 

“[n]owhere during [Appellant’s] guilty plea hearing did the Commonwealth 

prove, or did [Appellant] concede, that he [accepted ARD for a] prior DUI 

offense.” Chichkin, 2020 WL 2552803, at *10, n.14; see also N.T. Guilty 

Plea Hearing, 4/22/19, at 1-7. Thus, the Commonwealth did not establish a 

necessary element for the enhancement of Appellant’s sentence under Section 
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3804(a)(2). Pursuant to Chichkin, we must vacate Appellant’s judgment of 

sentence and remand for resentencing as a first-time DUI offender.4 

Judgment of sentence vacated. Remanded for resentencing. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/15/2020

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4 While there may be some room for disagreement as to whether acceptance 

of ARD is subject to the principles set forth in Apprendi v. New Jersey, 530 

U.S. 466 (200) and Alleyne, we are bound by the prior panel’s conclusion in 

Chichkin unless and until that ruling is overturned by an en banc panel of this 

Court or by our Supreme Court. See Commonwealth v. Morris, 958 A.2d 

569, 581 n.2 (Pa. Super. 2008) (en banc) (“It is well-settled that this Court, 

sitting en banc, may overrule the decision of a three-judge panel of this 

Court.”).