IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Walter Smith, : Appellant :

:

v. : No. 607 C.D. 2022

: SUBMITTED: June 5, 2023 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE LEADBETTER FILED: June 27, 2023

James Walter Smith, Licensee, appeals from the order of the Court of

Common Pleas of Fayette County denying his statutory appeal from the

Commonwealth of Pennsylvania, Department of Transportation , Bureau of Driver

Licensing ’s one

- year suspension of his driving privileges. We affirm.

Licensee was accepted into the accelerated rehabilitative disposition

(ARD) program on October 2, 2019, after being cited on May 22, 2019, for driving

under the influence (DUI) under Section 3802(b) of the Vehicle Code , 75 Pa.C.S. §

3802(b) (relating to DUI of alcohol or controlled substance

— high rate of alcohol).

In accordance with Section 3807(d)(2) of the Vehicle Code, 75 Pa.C.S. § 3807(d)(2)

(relating to ARD

—

mandatory suspension of operating privileges), Licensee’s

operating privilege w as suspended for a period of 30 days, effective November 19,

2019. Licensee’s operating privilege was restored on December 19, 2019. On2

January 20, 2022, Licensee was convicted of violating Section 3802(a)(1) of the

Vehicle Code, 75 Pa.C.S. § 3802(a)(1), on July 31, 2021. The sentencing order

entered on January 22, 2022, stated that “there is no license suspension.”

(Reproduced R. “R.R.,” Item 1. 1 ) Upon receipt of the report of Licensee’s

conviction, the Department, by notice mai led January 31, 2022, imposed a one

- year
suspension on Licensee’s operating privilege in accordance with Section

3804(e)(2)( i ) of the Vehicle Code, 75 Pa.C.S. § 3804(e)(2)(i), effective March 7,

2022.

On February 23, 2022, Licensee filed his appeal of th e suspension in

accordance with Section 1550 of the Vehicle Code, 75 Pa.C.S. § 1550 (relating to

judicial review)

, in the trial court. After a hearing de novo , the Department’s counsel

offered into evidence Department’s Exhibit No. 1 (Suppl. Reproduced R. 2 “S.R.R.”

at 1b

- 15b), which was admitted without objection. Licensee’s counsel offered into

evidence a copy of Licensee’s sentencing order for his conviction on January 20,

2022. The trial court entered an order dismissing Licensee’s statutory appeal a nd

Licensee appealed to this Court.

On appeal, Licensee raises two issues:

[(1)] Whether the trial court erred as a matter of law, and violated [Licensee’s] substantive and procedural due process rights, in determining that [his] prior acceptance

1 The pages of Licensee’s reproduced record are not numbered, contrary to the requirements of Rule 2173 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2173 (relating to the numbering of pages). Thus, we refer to the items therein by number as they are indexed in the reproduced record.

2 Licensee’s reproduced record omitted Department’s Exhibit 1, which consists of certified copies of the January 31, 2022 notice of suspension; the report of conviction from the Fayette County Clerk of Courts; th e earlier license restoration; the earlier notice of suspension; the report of the Clerk of Courts of the ARD; and Licensee’s driving record.3 into an d successful completion of the [ARD] p rogram for an alleged violation of Section 3802 was a “ prior offense ” for the purposes of the suspension of his driving privileges, when [his] entry into the ARD program did not require him to enter a plea of guilty an d the Commonwealth was not required to prove [his] culpability beyond a reasonable doubt.

[(2)] Whether the trial court erred as a matter of law in upholding the suspension of driving privileges imposed by the

. . . Department

. . . for a conviction for [DUI]

— General Impairment pursuant to Section 3802(a)(1), second offense, when [Licensee] entered into a ne gotiated plea agreement that included no license suspension.

(Licensee Br. at 4.)

With respect to his first issue, Licensee argues that his acceptance into

the ARD program should not be treated as a first offense, relying upon the reasoning

of Commonwealt h v. Chichkin , 232 A.3d 959 (Pa. Super. 2020), overruled by

Commonwealth v. Moroz , 284 A.3d 227 (Pa. Super. 2022) ( en banc ). In Chichkin

,

a three

- judge panel of the Superior Court held that Section 3806(a)(1) of the Vehicle

Code, 75 Pa.C.S. § 3806(a)(1)

, 3 was unconstitutional so far as it defines prior offense

to include acceptance of ARD for a DUI offense under Section 3802 for DUI

criminal sentencing enhancement purposes . However, in addition to Chichkin being

overruled by the Superior Court in Moroz

, this Court in Ferguson v. Department of

3 Section 3806(a)(1) provides in pertinent part as follows:

[T] he term “prior offense” as used in this chapter sh all mean any conviction for which judgment of sentence has been imposed [] . . . [or] acceptance of [ARD]

. . . for any of the following:

(1) an offense under section 3802 (relating to [DUI] of alcohol or controlled substance) [.]

75 Pa.C.S. § 3806(a)(1).4

Transportation , Bureau of Driver Licensing , 267 A.3d 628 (Pa. Cmwlth. 2021) ( en

banc ), appeal granted , 280 A.3d 859 (Pa. 2022), distinguished Chichkin , holding

that because license suspensions are civil proceedings, Section 3806(a) is still valid

for purposes of civil license suspensions. Ferguson , 267 A.3d at 632. Although our

Supreme Court has granted an appeal in Ferguson

, 4 it remains a binding precedent

on this panel under Pennsylvania Rule of Appellate Procedure 3103(b). 5 For

purposes of civil license suspension, entry into ARD still qualifies as a prior offense.

With regard to his second issue, Licensee argues that he deserves the

benefit of his plea bargain, which was memorialized in an order of the trial court

entered on January 22, 2022, stating that “there is no license suspension.” This Court

has held over 30

- plus years that the mandatory civil penalties of the Ve hicle Code

are not subject to the terms of a plea agreement. Lefever v. Dep’t of Transp., Bureau

of Driver Licensing , 533 A.2d 501, 503 (Pa. Cmwlth. 1987). Whatever the

considerations of Licensee and the Fayette County District Attorney’s office were

in bargaining the plea, and the trial court in accepting it, such an agreement does not

bind the Department.

4 The Supreme Court has granted the appeal to consider the following question:

Did the Commonwealth Court err by ignoring the controlling decisions of this Court and the United States Supreme Court [by] holding that DUI statutes that penalize a defendan t with a lengthy license suspension as a recidivist based on a prior acceptance of ARD disposition do not violate due process under the Pennsylvania and United States Constitutions even though the defendant who accepts ARD is presumed innocent and there is no proof of guilt?

Order, Ferguson v. Dep’t of Transp., Bureau of Driver Licensing (Pa., No. 28 MAL 2022, filed June 22, 2022).

5 Pursuant to Pennsylvania Rule of Appellate Procedure 3103(b), an en banc decision of

this Court is binding on any subsequen t panel. Pa.R.A.P. 3103(b).5 In light of the foregoing, we affirm.

_____________________________________ BONNIE BRIGANCE LEADBETTER, President J udge EmeritaIN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Walter Smith, : Appellant :

:

v. : No. 607 C.D. 2022

: Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

O R D E R

AND NOW, this 27 th day of June , 2023, the order of the Court of

Common Pleas of Fayette County is AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Preside nt J udge Emerita