J-S07044-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRYSTEENA DAWN CLEVENGER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1365 MDA 2023

Appeal from the Judgment of Sentence Entered September 18, 2023

In the Court of Common Pleas of Adams County Criminal Division at 

No(s): CP-01-CR-0000081-2022

BEFORE: LAZARUS, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED AUGUST 15, 2024

Appellant, Chrysteena Dawn Clevenger, appeals from the judgment of 

sentence imposed following her guilty plea to driving under the influence 

(“DUI”)—controlled substance.1 We affirm. 

We previously set forth the history of this case leading up to the 

Commonwealth’s earlier appeal from the initial sentence imposed by the lower 

court:

On November 2, 2021, [Appellant] was arrested following a traffic 

stop, and she was subsequently charged with various DUI offenses 

and a summary motor vehicle offense. The DUI offenses were 

charged as second offenses and graded as first-degree 

misdemeanors based upon [Appellant]’s resolution of a prior DUI 

charge through the accelerated rehabilitative disposition (“ARD”) 

process. At a hearing held on April 18, 2022, [Appellant] made 

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(d)(1)(i).
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an oral motion to bar consideration of her earlier ARD as a prior 

offense at sentencing. N.T., 4/18/22, at 2-3.

At that time, this Court’s decision in Commonwealth v. 

Chichkin, 232 A.3d 959 (Pa. Super. 2020), set forth the 

prevailing law on whether acceptance of ARD in an earlier DUI 

case could be considered a prior offense for sentencing in a 

subsequent DUI prosecution. In Chichkin, we held that the 

classification of ARD as a prior offense in Section 3806(a) of the 

Vehicle Code violated due process and therefore a defendant could 

not be sentenced as a recidivist DUI offender on that basis. Id.

at 969-71; 75 Pa.C.S. § 3806(a) (defining a “prior offense” to 

include acceptance of ARD); see also 75 Pa.C.S. § 3804 (setting 

forth escalating mandatory minimums for first, second, and 

subsequent DUI offenses).

The trial court granted [Appellant]’s motion to bar consideration 

of the prior ARD as a first DUI offense at the April 18, 2022 

hearing. N.T., 4/18/22, at 2-3; Order, 4/19/22. [Appellant] then 

entered a negotiated guilty plea to one count of DUI—controlled 

substance as a first offense, ungraded misdemeanor. On June 20, 

2022, the trial court sentenced [Appellant] pursuant to the 

negotiated agreement to serve six months’ probation, including 

ten days of house arrest, and pay a fine of $1,000. Sentencing 

Order, 6/20/22.

Commonwealth v. Clevenger, No. 995 MDA 2022, 2023 WL 3298958, *1

(Pa. Super., filed May 8 2023). 

The Commonwealth appealed, arguing that the trial court erred in 

barring consideration of Appellant’s ARD as a prior offense in light of two

subsequent en banc Superior Court decisions in Commonwealth v. 

Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc), appeal granted, 294 

A.3d 300 (Pa. 2023), and Commonwealth v. Moroz, 284 A.3d 227 (Pa. 

Super. 2022) (en banc). We agreed with the Commonwealth that Richards

and Moroz expressly overruled Chichkin and held that “the General Assembly 

provided that ARD will constitute a prior offense for purposes of sentencing on 
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a second or subsequent DUI conviction” and that Section 3806 of the Vehicle 

Code, which classifies an ARD as a prior offense, “passes constitutional 

muster.” Clevenger, 2023 WL 3298958, *2 (citation omitted). We therefore 

vacated the sentence imposed upon Appellant as a first-time DUI offender and 

remanded for resentencing. Id. 

Following remand, Appellant filed a motion to preclude the trial court’s 

consideration of her prior DUI ARD, which the court promptly denied. Motion, 

7/5/23; Order, 7/10/23. The matter then proceeded to a hearing on 

September 18, 2023, at which Appellant stipulated that she was admitted into 

the ARD program in 2019 to resolve a DUI offense, notwithstanding her 

objection to the admission of the ARD for sentencing purposes. N.T., 9/18/23, 

at 2. On that date, the trial court sentenced Appellant for DUI—controlled 

substance as a second offense to 24 months’ probation, with a 90-day 

restrictive term to be served on house arrest. Sentencing Order, 9/18/23. On 

September 28, 2023, Appellant filed a notice of appeal. 

In this Court, Appellant challenges her sentence as a second-time DUI 

offender based upon her prior ARD.

2

 Put succinctly, Appellant argues that 

Richards and Moroz “were not correctly decided” and that, in fact, “Section 

3806 does not pass constitutional muster, and this Court should not have 

overruled Chichkin” in those en banc opinions. Appellant’s Brief at 19, 24. 

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2 Appellant’s appellate argument implicates the legality of her sentence; our 

standard of review of this issue is de novo and our scope of review is plenary. 

Moroz, 284 A.3d at 230. 
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Appellant accordingly requests that we vacate her judgment of sentence and 

remand for her to be resentenced to DUI as a first offense. Id. at 30.

Appellant is not entitled to relief in this appeal as Richards and Moroz

remain binding precedent in this Commonwealth, and these cases clearly 

mandate the sentence imposed by the court below. See Commonwealth v. 

Tejada, 107 A.3d 788, 799 (Pa. Super. 2015) (Superior Court is bound by 

prior en banc panel decisions) (citing Pa.R.A.P. 3103(b)). Our Supreme 

Court’s grant of the defendant’s petition for allowance of appeal in Richards

does not alter our conclusion that we are bound by its holding. See 

Commonwealth v. Koehler, 914 A.2d 427, 439 n.4 (Pa. Super. 2006); 

Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006). “At this 

point in time, our high court has done no more than grant an appeal for the 

purpose of determining whether Section [3806] is unconstitutional[.]” Pepe, 

897 A.2d at 465. “Because our Supreme Court has not yet ruled upon the 

question, our Court’s prior decision[s] in [Richards and Moroz are] binding”

in this appeal. Id. We thus affirm Appellant’s judgment of sentence.3

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3 We note that while the petition for allowance of appeal in Richards was 

pending, our Supreme Court decided the case of Commonwealth v. 

Verbeck, 290 A.3d 260 (Pa. 2023). Because the Court was equally divided 

(3-3) in Verbeck, the issue was not resolved. See Commonwealth v. 

Mosley, 114 A.3d 1072, 1082 n.11 (Pa. Super. 2015) (“When a judgment of 

sentence is affirmed by an equally divided court, [] no precedent is established 

and the holding is not binding on other cases.”). The Court has since granted 

the petition for allowance of appeal in Richards but subsequently stayed that 

case, pending resolution of another case with the same issue, 

Commonwealth v. Shifflett, No. 26 MAP 2024. In that case, the parties 

filed briefs, but the Court has not scheduled oral argument yet.
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We address one additional issue that came to light during our review of 

the record and implicates the legality of Appellant’s sentence. See

Commonwealth v. Derrickson, 242 A.3d 667, 673 (Pa. Super. 2020) 

(issues related to the legality of a sentence may be raised sua sponte). On 

October 25, 2023, the trial court entered an order, upon motion from the 

Commonwealth, purporting to amend the September 18, 2023 sentencing 

order to “assign the amount of $3.50” to Appellant “as costs of prosecution 

payable to Adams County General Fund c/o District Attorney’s Office.” Order, 

10/25/23. This order was a nullity because it was entered more than thirty 

days after the sentencing order and after Appellant had already filed her notice 

of appeal. See 42 Pa.C.S. § 5505 (“Except as otherwise provided or 

prescribed by law, a court upon notice to the parties may modify or rescind 

any order within 30 days after its entry, notwithstanding the prior termination 

of any term of court, if no appeal from such order has been taken or 

allowed.”); Commonwealth v. Hart, 174 A.3d 660, 663 n.4 (Pa. Super. 

2017) (order entered by trial court after notice of appeal was filed was legal 

nullity). While a sentencing order may be modified at any time to fix “a clear 

clerical error (or a patent and obvious mistake)” that is apparent on the face 

of the record, Commonwealth v. Rosario, 248 A.3d 599, 606 (Pa. Super. 

2021) (citation omitted), the October 25, 2023 order did not correct a mistake 

but simply added an additional cost that Appellant would be obligated to pay. 

We therefore vacate the October 25, 2023 order.
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Judgment of sentence affirmed. Trial court order of October 25, 2023 

vacated. Jurisdiction relinquished. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 08/15/2024