J-S36035-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

OLEG AVETISOV 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 134 EDA 2023

Appeal from the Judgment of Sentence Entered December 2, 2022

In the Court of Common Pleas of Pike County Criminal Division at No(s): 

CP-52-CR-0000088-2022

BEFORE: BOWES, J., NICHOLS, J., and KING, J.

CONCURRING MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 11, 2024

I agree with the Majority’s conclusion that the trial court did not abuse 

its discretion when it denied Appellant’s pre-sentence request to withdraw his 

guilty plea, and that the judgment of sentence should be affirmed. See 

Majority Mem. at 14-15. Although I agree with the Majority’s decision, I write 

separately to emphasize the significance of this Court’s en banc decision in 

Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc), to 

the case at bar, particularly as it pertains to Appellant’s argument that the 

trial court imposed an illegal sentence. See Appellant’s Brief at 14. 

Richards expressly overruled Commonwealth v. Chichkin, 232 A.3d 

959 (Pa. Super. 2020), while the instant appeal was pending; therefore, 

Appellant’s sentence is not illegal. See Richards, 284 A.3d at 220 (expressly 

overruling Chichkin); see also Commonwealth v. Moroz, 284 A.3d 227 

(Pa. Super. 2022) (en banc) (same). Moreover, absent a plea agreement in 
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the instant case, the Commonwealth would have been able to present 

evidence of Appellant’s prior ARD-DUI at the time of sentencing to establish 

that his current DUI offense is a second offense. See Commonwealth v. 

Shifflett, 1480 MDA 2022, 2023 WL 3051454 at *5 (Pa. Super. filed April 24, 

2023) (unpublished mem.).1 

Here, the record indicates that on June 30, 2022, Appellant entered into 

a plea agreement for one count of DUI-Tier 3 (highest rate of alcohol), graded 

as a first-degree misdemeanor.2 Pursuant to the plea agreement, the 

Commonwealth agreed to recommend that Appellant be admitted into a local 

diversionary program, provided that Appellant complete certain prerequisites

for admission into the program. See Appellant’s Written Guilty Plea Colloquy, 

6/30/22, at 1. The written guilty plea colloquy reflected that Appellant was 

subject to a mandatory minimum sentence of ninety days imprisonment with 

a maximum sentence of five years, which is consistent with a second-offense 

DUI-Tier 3. Id. at 4; see 75 Pa.C.S. §§ 3804(c)(2)(i), (d). Appellant failed 

to comply with the prerequisites required for entry into the local diversionary 

program; therefore, the Commonwealth recommended that Appellant be 

sentenced to the mandatory minimum sentence of ninety days to five years’ 

imprisonment. See N.T. Sentencing Hr’g, 12/2/22, at 2, 4-5. Prior to 

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1 Unpublished memoranda filed after May 1, 2019 may be cited for their 

persuasive value. Pa.R.A.P. 126(b).

2 The Vehicle Code states that a violation of Section 3802(c) for a person that 

has a prior DUI offense within the last ten years shall be graded as a firstdegree misdemeanor. 75 Pa.C.S. § 3803(b)(4).
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imposing sentence, the trial court denied Appellant’s motion to withdraw the 

guilty plea. Id. at 7. The trial court ultimately imposed a sentence of ninety 

days to five years’ imprisonment at the sentencing hearing on December 2, 

2022. Id. at 8.

This Court has long recognized the critical role that plea agreements 

play in our criminal justice system. See Commonwealth v. Snook, 230 A.3d 

438, 444 (Pa. Super. 2020) (noting that ninety-four percent of state 

convictions are the result of plea agreements). When a defendant enters a 

plea agreement, he or she waives his or her right to proof beyond a reasonable 

doubt. Commonwealth v. Farabaugh, 136 A.3d 995, 1002 (Pa. Super. 

2016) (citing Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. 

Super. 2013) (en banc)). Accordingly, I would conclude that Appellant’s 

argument that the plea agreement called for an illegal sentence is without 

merit, because by entering into the instant plea agreement, Appellant waived 

his right to have the factual basis of his arrest giving rise to his entry 

into the ARD program proven beyond a reasonable doubt. See 

Farabaugh, 136 A.3d at 1002; Hainesworth, 82 A.3d at 449. 

The Chichkin Court prohibited equating entry into the ARD program as 

a prior conviction, but it did not preclude the Commonwealth from proving the 

facts giving rise to Appellant’s entry into the ARD program. Chichkin, 232 

A.3d at 970-71 (stating that “if the Commonwealth seeks to enhance a 

defendant’s DUI sentence based upon that defendant’s prior acceptance of 

ARD, it must prove, beyond a reasonable doubt, that the defendant actually 
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committed the prior DUI offense. Appellant’s guilty plea, on its face, 

therefore, was not invalid, and I conclude that Appellant has not articulated 

sufficient grounds for withdrawing his guilty plea. Accordingly, the trial court 

did not abuse its discretion in its decision to deny Appellant’s motion to 

withdraw his guilty plea.

At the time Appellant entered into his plea agreement, Chichkin

remained the controlling case law in this Commonwealth. In the instant case, 

the Commonwealth attempted to introduce evidence of the underlying facts 

of the charges giving rise to Appellant’s previous entry into the ARD program. 

Before this Court issued its decisions in Richards and Moroz, the 

Commonwealth was prepared to enter into evidence a criminal complaint 

dated July 2, 2017. N.T. Sentencing Hr’g, 9/30/22, at 3-4. After Appellant 

objected based on Chichkin, the trial court continued the sentencing hearing

to take counsel’s arguments under advisement, until December 2, 2022. Id.

at 6. At the December 2, 2022 sentencing hearing, the trial court imposed the 

mandatory minimum sentence of ninety days to five years’ imprisonment

requested by the Commonwealth based on the terms of the plea agreement 

after Appellant failed to complete the prerequisites for admission to the local 

diversionary program. N.T. Sentencing Hr’g, 12/2/22, at 2, 4-5.

Further, in the interim between the sentencing hearings, on October 4, 

2022, this Court issued its decision in Richards and Moroz, overturning 

Chichkin, such that both cases were in effect on the date that the trial court 

imposed Appellant’s sentence. On this record, the trial court did not impose 
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an illegal sentence, nor did it abuse its discretion when it denied Appellant’s 

motion to withdraw his guilty plea based on Appellant’s non-compliance with 

the diversionary program prerequisites and the controlling case law in effect 

on the date of his sentencing; therefore, I would affirm the judgment of 

sentence.3

Finally, I note that the Supreme Court of Pennsylvania has granted

allocatur and is reviewing this Court’s decisions in Richards4to consider 

whether it is “unconstitutional to consider an acceptance of ARD as a prior 

offense for sentencing purposes without the procedural protections afforded 

by Alleyne [v. United States, 570 U.S. (2013)], i.e. a prior offense can only 

be determined by proof beyond a reasonable doubt[.]” Commonwealth v. 

Richards, 294 A.3d 300 (Pa. 2023). Additionally, in Richards, our Supreme 

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3

It is well settled that this Court is duty bound to apply the law in effect at 

the time of its decision. See Commonwealth v. Hind, 304 A.3d 413, 417

(Pa. Super. 2023). Moreover, both a defendant and the Commonwealth may 

benefit from changes in the law before a judgment of sentence becomes final. 

Id. at 418 (citing Commonwealth v. Hummel, 295 A.3d 719, 721 (Pa. 

Super. 2023) (recognizing that the Commonwealth may benefit from a change 

in the law during the pendency of a direct appeal); Commonwealth v. 

Chesney, 196 A.3d 253, 257 (Pa. Super. 2018)). While not relevant here, 

there are clearly limitations to obtaining a benefit from a change in the law. 

For instance, while the Commonwealth may benefit from changes in the law 

during the pendency of a direct appeal, it may not benefit from an ex post 

facto law, which is forbidden by both the United States and Pennsylvania 

Constitutions. See U.S. Const., Art. I, §§ 9, 10; Pa. Const. Art. I, § 17. 

4 While our Supreme Court has granted the petition for allowance of appeal in 

Richards, the petition for allowance of appeal in Moroz is being held by the 

Supreme Court pending Commonwealth v. Shifflett, 26 MAP 2024. 

Commonwealth v. Moroz, 520 MAL 2022 (Pa. filed April 26, 2024).
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Court will consider whether it is “fundamentally unfair and a violation of due 

process to equate a prior acceptance of ARD with a prior conviction for 

purposes of a recidivist mandatory minimum sentence even though that 

acceptance involved no proof of guilt beyond a reasonable doubt[.]” Id.; see 

also Commonwealth v. Schifflett, 316 A.3d 616 (Pa. 2024) (granting 

allowance of appeal to determine whether it is unconstitutional to consider the 

acceptance of ARD as a prior offense for sentencing purposes without the 

procedural protections afforded by Alleyne).

5

 

For these reasons, I respectfully concur with the Majority in its decision 

to affirm the trial court’s denial of Appellant’s motion to withdraw his guilty 

plea and to affirm Appellant’s judgment of sentence.

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5 Our Supreme Court first considered these issues in Commonwealth v. 

Verbeck, 290 A.3d 260 (Pa. 2023), which was argued and decided after the 

death of the late Chief Justice Baer. The Court deadlocked 3-3, therefore, this 

Court’s decision was affirmed. See Verbeck, 290 A.3d at 261; see also 

Commonwealth v. Verbeck, 2021 WL 1328551 (Pa. Super. filed April 9, 

2021) (unpublished mem.).