J

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COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

RICHARD ALEKSANDR MOROZ : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 282 MDA 2021 Appeal from the Judgment of Sentence Entered February 4, 2021 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0001515

- 2019

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., STABILE,

J., KUNSELMAN, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J. DISSENTING OPINION BY McCAFFERY, J.: FILED: OCTOBER 4, 2022 The Majority’s decision to overrule Commonwealth v. Chichkin , 232 A.3d 959 (Pa. Super. 2020 ), may be summarized as follows: (1) DUI is a serious offense; ( 2 ) ARD is not merely a “trivial mechanism” to avoid a conviction, but rather, an intensive process under court supervision; (3) while acceptance of ARD is not a criminal conviction, it includ es procedural safeguards that are “adequate” enough; (4) the legislature has decided that ARD should constitute a conviction for purposes of the DUI recidivism statute; (5) acceptance of ARD is voluntary, and a defendant is presumed to know the recidivism statute treats their ARD acceptance as a first conviction; th us , (6) “notice and voluntary ARD acceptance mitigate the due process concerns advanced in Chichkin .” Majority Op. at 7

- 8, 10

- 12 (citation omitted)

. Because I conclude the Majority’s decision does not address Chichkin ’sJ

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holding that 75 Pa.C.S. § 3806(a) is constitutionally deficient in light of Alleyne v. United States , 570 U.S. 99 (2013) , I strongly dissent. Preliminarily, I am compelled to emphasize that the Chichkin decision does not in any way imply that DUI is not a serious offense ; indeed, all criminal offenses are serious

. That said, the constitutionality of a criminal
statute is not judged on a sliding scale based upon the seriousness of the
crime

. Chichkin also does not imply , as the Majority suggests, that acceptance of ARD i s simply a “trivial mechanism

. ” See Majority Op. at 7 , citing Whalen v. Com., Dept. of Transp. Bureau of Driv er Licensing , 32 A.3d 677 , 684 (Pa. 2011)

. 1 However , as the Majority agrees , ARD is “legally distinct from a [criminal] conviction [,] ” and “does not carry the same procedural safeguards of a conviction following a bench or jury trial[.]” Id. at 8 , 11, citing Whalen , 32 A.3d at 681. See Chichkin , 232 A.3d at 967

- 68 (noting ARD participant “need not admit his or her guilt, and the Commonwealth is not required to prove the defendant’s culpability beyond a reasonable doubt”).

_________________ __________ ______ ____ _______ 1 The Majority relies on Whalen throughout its opinion presumably to demonstrate the Pennsylvania Supreme Court has approved of the Pennsylvania L egislature’s designation of ARD as a prior conviction for the purpose of recidivist sentencing. See Majority’s Op. at 7

- 8, 10

- 11. However, it s reliance on Whalen is misplaced for two reasons. First, Whalen was decided in 2011, before the United States Supreme Court issued its Alleyne decision in 2013; thus, the Court did not consider or address the co ncerns of Alleyne . Second, Whalen concerned the propriety of a requirement that a repeat DUI offender must install an ignition interlock system on their vehicles prior to the restoration of their license

— a requirement which is not the same as mandatory minimum criminal sentence. See Whalen , 32 A.3d at 678

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Although the Majority summarizes Chichkin , it f ails to address Chichkin ’s ultimate determination that Section 3806 violates the holding of Alleyne

— “[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.” Alle yne , 570 U.S. at 103. Rather, the Majority bypasses an Alleyne discussion by concluding the following: T he fact of a prior conviction, as delineated by the Supreme Court in Almendarez - Torres v. United States , 523 U.S. 224 (1998), remains an exception to Alle yn e , and the Pennsylvania Legislature has “statutorily construed [ARD to be ] a conviction for purposes of computing sentences on subsequent convictions.” Majority Op. at 10

- 11 (quotation marks omitted) , citing Whalen , 32 A.3d at 681. A lt hough the acceptance of ARD “does not carry the same procedural safeguards of a conviction following a bench or jury trial, . . . the safeguards in place [are] adequate .” Majority Op. at 11 (emphasis added). W hen a defendant voluntarily accepts ARD, they are “presumed to be aware” of Section 3806, which equates their acceptance of ARD to a prior conviction for future sentencing purposes. Id. Thus, the Majority pronounces that Section 3806(a) “passes constitutional muster.” Id. at 12. The Majority’s decision in untenable. I begin by emphasizing that Alleyne “effected a sea change in this area of the law.” Commonwealth v. Hopkins , 117 A.3d 247, 257 (Pa. 2015). As the Pennsylvania Supreme Court explained:J

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[I]n Alleyne , the United States Supreme Court extended its Apprendi [ 2 ] line of cases, overturned its prior decisions

. . . and concluded that, when a factual determination is necessary for the imposition of a mandatory minimum sentence, the facts must be considered an element of a new, distinct aggravated offense. Moreover, as an element of the offense, the factual determination must be specifically alleged in the charging document, an d the defendant has a right to have that fact determined by a jury beyond a reasonable doubt. Id. at 256

- 57 (some citations and quotation marks omitted ; emphasis added ).
A pplying Alleyne ’s mandate, “ the Courts of this Commonwealth have concluded that many of our mandatory minimum sentencing statutes are unconstitutional because they permit judicial fact finding by the sentencing court, under a preponderance of the evidence standard, absent pretrial notice to the defendant. ” Chichkin , 23 2 A.3d at 965. Nevertheless, as Chichkin acknowledge d , the narrow exception outlined in Almendarez - Torres still applies

— “ when a defendant is subjected to an increased sentence based upon a prior conviction , the ‘ fact ’ of the prior conviction need not b e submitted to a jury and found beyond a reasonable doubt. ” Chichkin , 232 A.3d at 966 (some emphasis added)

. Thus, the relevant question presented in Chichkin , ( as well as the case sub judice ) , was whether the defendant’s “ prior acceptance [ ] of ARD constitute [s]
an unproven ‘ fact, ’ which must be submitted to a jury, or a prior conviction, which may be determined by the court at sentencing. ” Id.

_________________ __________ ______ ____ _______ 2 Apprendi v. New Jersey , 530 U.S. 466 (2000).J

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The Majority insists a defendant’s voluntary acceptance of ARD should constitute a prior offense for recidivism purposes because (1) the Pennsylvania L egislature has deemed it so, and (2) a defendant who voluntarily accepts ARD “is presumed to be aware of” Section 3806. Majority Op. at 10

- 11. I disagree. The fact the L egislature has deemed the acceptance of ARD to be a prior conviction for DUI recidivism sentencing purposes does not control our review . Rather, the “ separation of powers in our tripartite system of government typically depends upon judicial review to check acts or omissions by the other branches in derogation of constitutional requirements. ” William
Penn Sch. Dist. v. Pennsylvania Dep't of Educ. , 170 A.3d 414, 418 ( Pa. 2017)

. See Marbury v. Madison , 5 U.S. 137 , 138 (1803) (“An act of congress repugnant to the con stitution cannot become a law.”). Thus, the courts have not only the authority

— but the responsibility

— to consider whether a law enacted by the legislature passes constitutional muster. Moreover, although the Majority relies on the legal precept that a defendant is presumed to be aware of relevant statutory law, I emphasize that the Pennsylvania Rules of Criminal Procedure do not require the Commonwealth or the trial court to inform a defendant that their “non

conviction ” acceptance of ARD

— which wil l result in expung ement of the charges if the defendant successfully completes the program

— is still considered a prior conviction should they be found guilty of a subsequent DUI.J

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See Pa.R.Crim.P. 300

- 320. In fact, Rule 312, mandates the court ascertain, on the record, that the defendant understands only that : (1) acceptance into and satisfactory completion of the accelerated rehabilitative disposition program offers the defendant an opportunity to earn a dismissal of the pending charges; [and] (2) should the defendant fail to complete the program, the defendant waives the appropriate statute of limitations and the defendant's right to a speedy trial under any applicable Federal or State constitutional prov isions, statutes or rules of court during the period of enrollment in the program. Pa.R.Crim.P. 312 (1)

- (2). There is no requirement that the court or the Commonwealth inform the defendant of the ramifications of Section 3806 , or for that matter, of the si gnificant constitutional rights they waive by accepting
ARD

. Further complicating the matter is th e fact that each county administers its ARD program differently; accordingly, the fact that some counties may inform defendants that their acceptance of ARD may be treated as a prior conviction is of no moment. Nevertheless, the Majority reasons that the defendant’s “presumed”
notice of Section 3806 , coupled with their voluntary acceptance 3 of ARD,

_________________ __________ ______ ____ _______ 3 I take issue with the Majority’s cavalier statement that a defendant “is free to reject participation in the program if he wishes to avail hims elf of his full panoply of constitutional rights .” Majority Op. at 1 2 . Defendants should not be required to choose whether to give up their constitutional rights absent any requirement that they be informed of those rights. Indeed, in other situations w here a defendant waives constitutional rights

— such as a guilty plea or bench trial

— the law requires an on

- the

- record colloquy so that the trial court is satisfied that the waiver of constitutional rights is knowing and voluntary

. See Commonwealth v. Hines , 437 A.2d 1180, 1182 ( Pa. 1981) (“ Because a guilty plea is not only an admission of conduct but also is an (Footnote Continued Next Page)J

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“mitigate [s] the due process concerns advanced in Chichkin .” See Majority Op. at 11

- 12. This argument mirrors the “waiver” line of reasoning advocated by the Commonwealth. See Commonwealth’s Brief at 25

- 26. The Commonwealth maintains:
The Chichkin [C] ourt wholly ignored the fact that by accepting ARD, a defendant knowingly, voluntarily, and intelligently waives any rights they have under Apprendi and Alleyne to compel the Commonwealth to prove beyond a reasonable doubt their guilty of the DUI offense in order for it to count as a prio r conviction. Id. (emphasis added). This claim must be rejected for several reasons. First, “a criminal defendant cannot agree to an illegal sentence[.]” Commonwealth v. Gentry , 101 A.3d 813, 819 (Pa. Super. 2014) (explaining “the fact that the illegali ty was a term of his plea bargain is of no legal significance”). Second, a defendant cannot knowingly waive constitutional rights of which they are not explicitly informed. See Hines , 437 A.2d at 1182; Stokes , 299 A.2d at 276.

_________________ __________ ______ ____ _______ admission of all the elements of a formal criminal charge, and constitutes the waiver of constitutionally

- guaranteed rights, th e voluntariness of a guilty plea must be affirmatively established. ”); Commonwealth v. Stoke s , 299 A.2d 272, 276 (Pa. 1973) (“ The constitutional right to trial by jury, as with other constitutional rights, will not lightly be deemed to have been waived [ an d] courts indulge every reasonable presumption against waiver of such fundamental constitutional rights. ”). A s the United States Supreme Court declared nearly 60 years ago: “ If the exercise of constitutional rights will thwart the effectiveness of a syst em of law enforcement, then there is something very wrong with that system. ” Escobedo v. Ill inois , 378 U.S. 478, 490 (1964) (footnote omitted).J

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Third, this Court has consistently rejected attempts to overcome Alleyne by operating outside the offending statutory framework. See Commonwealth v. Fennell , 105 A.3d 13 , 20 (Pa. Super. 2014) (defendant’s stipulation to weight of drugs which triggered man datory minimum sentence for conviction of possession with intent to deliver did not satisfy Alleyne ) ; Commonwealth v. Valentine , 101 A.3d 801 , 804, 812 (Pa. Super. 2014) (Commonwealth’s amendment of information to include “fact” which triggered mandatory minimum, and which was submitted to and found by the jury, was impermissible). In Commonwealth v. Newman , 99 A3d 86 , 101 (Pa. Super. 2014) ( en banc ), t his Court held that the mandatory minimum statute provisions that were violative of Alleyne , were not severable f rom the statute as a whole . Indeed, the Newman Court described the subsections which detailed the “fact s ” of the aggravated crime as the “pred icate” arms of the statute, and the subsections requiring the trial court to determine those “facts” at sentencing by a preponderance of the evidence, as the “enforcement” arms

— the Court observed that without the “enforcement” arm, there w as “no mechanis m in place to determine whether the predicate” arm had been met. Id. Accordingly, the en banc panel opined: “[I]t is manifestly the province of the General Assembly to determine what new procedures must be created in order to impose mandatory minimum se ntences in Pennsylvania followingJ

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Alleyne .” Id. at 102. The same is true here. 4 While Section 3806 does not include the same “preponderance of the evidence” language as the other unconstitutional mandatory minimum statutes, it does explicitly state: “The court shall calculate the number of prior offenses, if any, at the time of
sent encing.” 75 Pa.C.S. § 3806(b)(2). Thus, a defendant’s presumed notice and voluntary acceptance of the fact that their non - conviction may be later treated as a conviction for recidivist sentencing purposes does not cure the unconstitutionality of the stat ute. Lastly, the Majority fails to refute Chichkin ’s determination that a prior acceptance of ARD cannot be deemed a prior conviction because it is not “cloaked in all the constitutional safeguards” of a criminal conviction. Chichkin , 232 A.3d at 968 (f ootnote and citation omitted). Rather, the Majority simply proclaims: “Although the ‘fact’ that a defendant accepted ARD does not carry the same procedural safeguards of a conviction following a bench or jury trial, we deem the safeguards in place to be adequate.” Majority Op. at 11. The Majority fails to elaborate as to what the “safeguards in place”
are, or how they protect a defendant’s constitutional right to due process, and the concomitant finding of guilty beyond a reasonable doubt. Indeed, the opinion mention s only the following regarding “safeguards ”

— (1) ARD is an “intensive process[;]” (2) ARD involves assessments and treatment, if

_________________ __________ ______ ____ _______ 4 As Appellee notes in his brief, “a substantial effort” to amend the ARD statute to comply with Alleyne “is n ow under way.” Appellee’s Brief at 40 n.10, citing House Bill No. 521 (Printer’s No. 1143)

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necessary; and (3) ARD is court

- supervised. See id. at 7 (citation omitted)

. None of these “safeguards” satis fy “[d]ue process considerations [,]” and in particular, th e due process concern s that “ protect those accused of committing a crime from conviction ‘except upon proof beyond a reasonable doubt.’” Chichkin , 232 A.3d at 970, citing In re Winship , 397 U.S. 358 , 364 (1970).
I t is difficult to believe that any unspecified “safeguards” are “adequate,” when the Rules of Criminal Procedure do not require a defendant be informed of the constitutional rights they waive by accepting ARD , and each county admini sters its ARD program differently. Thus, I conclud e , as I did in Chichkin : (1) the prior acceptance of ARD cannot be consider ed a prior conviction pursuant to Almendarez - Torres because is not “cloaked in all the constitutional safeguards[;]” (2) “that
por tion of [Section] 3806, which statutorily equates a prior acceptance of ARD to a prior conviction for purposes of subjecting a defendant to a mandatory minimum sentence under [ 75 Pa.C.S. § ] 3804 , is unconstitutional[;]” and, therefore, (3) pursuant to Alle yne , a defendant’s prior 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
sent ence” for a second DUI pursuant to Section 3804. Chichkin , 2 32 A.3d at 968 (footnotes, quotation marks, and citation omitted) . Accordingly, I conclude Chichkin was property decided , and would affirm Appellee’s judgment of sentence. For the foregoing reasons, I dissent.J

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President Judge Emeritus Bender, Judge Lazaru s and Judge Kunselman join this dissenting opinion.