J-E01003-22

2022 PA Super 169

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

RICHARD ALEKSANDR MOROZ

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 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 includes 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; thus, (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’s 
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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 is simply a “trivial mechanism.” See Majority Op. at 7, 

citing Whalen v. Com., Dept. of Transp. Bureau of Driver 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”).

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1 The Majority relies on Whalen throughout its opinion presumably to 

demonstrate the Pennsylvania Supreme Court has approved of the 

Pennsylvania Legislature’s designation of ARD as a prior conviction for the 

purpose of recidivist sentencing. See Majority’s Op. at 7-8, 10-11. However, 

its 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 concerns 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 678-79. 
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Although the Majority summarizes Chichkin, it fails 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.” Alleyne, 570 U.S. at 103. Rather, the Majority bypasses an Alleyne

discussion by concluding the following: The 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 Alleyne, 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. Although 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). When 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: 
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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, and 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). 

Applying 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, 232 A.3d at 965. 

Nevertheless, as Chichkin acknowledged, 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 be 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.

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2 Apprendi v. New Jersey, 530 U.S. 466 (2000).
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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 Legislature 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 Legislature 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 constitution 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 “nonconviction” acceptance of ARD — which will result in expungement 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. 
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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 provisions, 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 significant constitutional rights they waive by accepting 

ARD. Further complicating the matter is the 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 acceptance3 of ARD, 

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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 himself of his full 

panoply of constitutional rights.” Majority Op. at 12. 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 where 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)
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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 prior 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 illegality 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. 

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admission of all the elements of a formal criminal charge, and constitutes the 

waiver of constitutionally-guaranteed rights, the voluntariness of a guilty plea 

must be affirmatively established.”); Commonwealth v. Stokes, 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[ and] 

courts indulge every reasonable presumption against waiver of such 

fundamental constitutional rights.”). As the United States Supreme Court 

declared nearly 60 years ago: “If the exercise of constitutional rights will 

thwart the effectiveness of a system of law enforcement, then there is 

something very wrong with that system.” Escobedo v. Illinois, 378 U.S. 

478, 490 (1964) (footnote omitted).
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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 mandatory 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), this Court held that the mandatory minimum statute

provisions that were violative of Alleyne, were not severable from the statute 

as a whole. Indeed, the Newman Court described the subsections which 

detailed the “facts” of the aggravated crime as the “predicate” 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 was “no 

mechanism 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 sentences in Pennsylvania following 
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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 

sentencing.” 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 statute. 

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 (footnote 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 mentions only the following regarding “safeguards” — (1) ARD is an 

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

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4 As Appellee notes in his brief, “a substantial effort” to amend the ARD statute 

to comply with Alleyne “is now 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” satisfy “[d]ue process considerations[,]” and in 

particular, the due process concerns 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). 

It 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 

administers its ARD program differently.

Thus, I conclude, as I did in Chichkin: (1) the prior acceptance of ARD 

cannot be considered a prior conviction pursuant to Almendarez-Torres

because is not “cloaked in all the constitutional safeguards[;]” (2) “that 

portion 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 Alleyne, 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 

sentence” for a second DUI pursuant to Section 3804. Chichkin, 232 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.
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President Judge Emeritus Bender, Judge Lazarus and Judge Kunselman 

join this dissenting opinion.