J

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

COMMONWEALTH OF PENNSYLVANIA

v.

JACOB ALEXANDER KOPP

Appellant : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 741 MDA 2023 Appeal from the Judgment of Sentence Entered March 7, 2023 In the Court of Common Pleas of York County Criminal Division at No(s): CP

- 67

- CR

- 0002235

- 2020
BEFORE: LAZARUS, P.J., KUNSELMAN, J., and COLINS, J. * MEMORANDUM BY KUNSELMAN, J.: FILED: APRIL 25, 2024 Jacob Alexander Kopp appeals from the judgment of sentence imposing five years of restrictive punishment after a jury convicted him of driving under the influence (“DUI”) of controlled substances and rel a ted offenses

. 1 For the
reasons below, w e affirm.
In 2017, the Commonwealth charged Kopp with a prior DUI offense , docketed at CP

- 21

- CR

- 2401

- 2017

. That proceeding ended with accelerated

rehabilitati ve disposition (“ARD”).

Then , on July 2, 2020, the Commonwealth charged Kopp with two

counts of DUI , graded as Kopp’s second DUI , despite the prior ARD

. Kopp

filed a motion to reduce the DUI counts to a first offense , based on this Court ’s

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 See 35 Pa.C.S.A. § 780

- 113(a)(31)(i) , (a)(32) (possessing a small amount of cannabis and possessing drug paraphernalia ) and 75 Pa.C.S.A. §§ 3313(d)(1) (driving in the righthand lane) ; 3802(d)(2) (DUI

– controlled substances); 3802(d)(1)(i) (DUI

– controlled substances as a second offence) ; and 3802 (d)(1)(iii) (DUI

– controlled substances as a second offense).J

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then

- controlling decision in Commonwealth v. Chichkin , 232 A.3d 959 ( Pa.
Super. 2020), overruled by Commonwealth v. Richards , 284 A.3d 214 ( Pa.
Super. 2022) ( en banc ) , and Commonwealth v. Moroz , 284 A.3d 227 ( Pa.
Super. 2022) ( en banc ).

In Chic

hki n , a panel of this Court held that the “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, offends the

Due Process Clause [ 2 ] and is therefore unconstitutional.” Id. at 971

. Accordingly , in Kopp’s motion to reduce the grading of his DUI charges, he

contended that “a prior acceptance into the ARD program to resolve an earlier
DUI charge could not be considered a ‘ prior conviction ’ under the DUI statute.”
Trial Court Opinion, 8/9/23 , at 2. The trial court stayed this case, pending resolution of Richards and

Moroz

. When this Court , sitting en banc , overruled Chichkin by a vote of 5

- 4, 3 Kopp’s case proceeded to a jury trial.
The jury convicted Kopp , and the trial court sentenced him as described

above. T he sentencing court applied Commonwealth v. Richards , 284 A.3d

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2 Under the Due Process Clause of the Fourteenth Amendment to the federal
c onstitution, “ No State shall

. . . deprive any person of life, liberty, or property, without due process of law . . . .”

3 Judge King, joined by then

- President Judge Panella, Judge Bowes, Judge Stabile, Judge McLaughlin, authored the majority opinion in Commonwealth v. Moroz , 284 A.3d 227 ( Pa. Super. 2022) ( en banc ) , which overrul ed Commonwealth v. Chichkin , 232 A.3d 959 ( Pa. Super. 2020)

. Judge (now

Justice ) McCaffery, joined by President Judge Emeritus Bender, Judge (now

President Judge) Lazarus, and this author, dissented.J

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214 (Pa. Super. 2022) ( en banc ) , appeal granted , 294 A.3d 300 (Pa. 2023 )

. As such , it deemed this DUI to be Kopp’s second and imposed the higher
penalties accompanying a second DUI conviction

. This timely appeal followed.
Kopp raises three issues

. I n all of them, he assumes the Supreme Court

will reverse Richards and reinstate the holding of Chichkin

. His claims of

error are as follows:

1. Assuming the [Supreme Court of Pennsylvania holds ] in Richards that acceptance into the ARD program cannot be equated with a prior conviction for DUI sentencing purposes, is Kopp’s sentence illegal for violation of Apprendi v. New Jersey [, 530 U.S. 466 ( 2000),] where the offense he resolved through ARD was used to increase the grading and maximum sentence for his DUI convictions based on facts not found by a jury beyond reasonable doubt?
2. A ssuming the [Supreme Court of Pennsylvania holds] in Richards that acceptance into the ARD program cannot be equated with a prior conviction for DUI sentencing purposes, is Kopp’s sentence illegal under Apprendi , despite the pretrial finding that, beyond a reasonable doubt, he was guilty of the prior DUI resolved through ARD?
3. Further assuming the [Supreme Court of Pennsylvania hold s ] in Richards that acceptance into the ARD program cannot be equated with a prior conviction for DUI sentencing purposes but this Court determines that a finding that Kopp was guilty of the prior DUI resolved through ARD can allow an increase in grading and maximum penalty, is Kopp’s sentence illegal under Apprendi , where that finding was made by a judge as opposed to a jury?

Kopp’s Brief at 4. We address the three issues simultaneously. Kopp’s arguments all rest upon an unproven premise: namely, that the Supreme Court of Pennsylvania will reverse Richards , supra

. However, that

has yet to occur, and it “ is beyond the power of a Superior C ou rt panel toJ

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overrule a prior decision of the Superior Court, except in circumstances where
intervening authority by our Supreme Court calls into question a previous

decision of this Court. ” Commonwealth v. Pepe , 897 A.2d 463, 465 ( Pa.
Super. 2006) (citation omitted).

“ At this point in time, our H igh C ourt has done no more than grant an appeal for the purpose of determining whether [ 75 Pa.C.S.A. § 3806(a) ] is

unconstitutional ” under the Due Process Clause. Id. “ Because our Supreme Court has not yet ruled upon th at question, this Cour t ’ s prior decision in
[ Richards , supra , remains] bindin g” upon this panel. Id.
Hence, we lack authority to grant Kopp appellate relief. 4 All three issues

dismissed as meritless. Judgment of sentence affirmed.
Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 04/25/2024

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4 We recognize that Kopp filed this appeal to preserve his appellate issues pending the Supreme Court’s decision in Richards

.