J-S19028-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CODY EDWARD SAUM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1523 MDA 2023

Appeal from the Judgment of Sentence Entered October 16, 2023

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

No(s): CP-01-CR-0000168-2023

BEFORE: DUBOW, J., BECK, J., and COLINS, J.*

MEMORANDUM BY BECK, J.: FILED: JULY 18, 2024

Cody Edward Saum (“Saum”) appeals from the judgment of sentence 

imposed by the Adams County Court of Common Pleas (“trial court”) following 

his conviction of driving under the influence (“DUI”) and obstructing 

administration of law.

1

 On appeal, Saum argues that the trial court erred in 

determining that his DUI conviction should be treated as his second offense

when he completed Accelerated Rehabilitative Disposition (“ARD”) for his first 

DUI offense. We affirm.

On January 28, 2023, Trooper Jeffrey Allen stopped a vehicle driven by 

Saum after observing Saum commit several violations of the Pennsylvania 

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(a)(1), 5101.
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Vehicle Code.

2

 Upon approaching the vehicle, Trooper Allen observed Saum’s 

eyes were bloodshot and glassy and he detected a strong odor of alcohol. 

Trooper Allen then conducted field sobriety tests during which Saum showed 

multiple signs of intoxication. Trooper Allen attempted to administer a breath 

test, but Saum refused. He then arrested Saum. Subsequently, Saum refused 

to consent to a blood draw. After a warrant was obtained to draw blood, Saum 

again refused to consent. The Commonwealth charged Saum with numerous 

crimes, including DUI as a second offense based on a prior ARD-DUI conviction 

from 2022.

The case proceeded to a stipulated bench trial. The trial court found 

Saum guilty of the above crimes. The case proceeded to sentencing, where 

Saum requested that the trial court not consider his prior ARD-DUI offense as 

a first offense for sentencing purposes. Ultimately, the trial court rejected 

Saum’s request and sentenced him to sixty months of probation with 

restrictive conditions, including ninety days of house arrest with electronic 

monitoring. 

Saum filed a timely appeal. Saum presents the following issue for 

review: “Did the [t]rial [c]ourt err when considering [Saum’s] prior DUI-ARD 

as a first offense for purposes of sentencing?” Saum’s Brief at 4.

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2

 75 Pa.C.S. §§ 101-9910.
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We begin our analysis by acknowledging that “a claim that the court 

improperly graded an offense for sentencing purposes implicates the legality 

of a sentence.” Commonwealth v. Seladones, 305 A.3d 83, 85 (Pa. Super. 

2023) (citation omitted). For issues challenging the legality of a sentence, 

“our standard of review is de novo and our scope of review is plenary.” Id.

(citation omitted).

Saum argues that Commonwealth v. Chichkin, which held that prior 

acceptance of ARD for purposes of imposing a sentence for a subsequent DUI 

offense was unconstitutional, should be controlling in this case. Saum’s Brief 

at 8, 9 (citing Commonwealth v. Chichkin, 232 A.3d 959, 971 (Pa. Super. 

2020), overruled by Commonwealth v. Richards, 284 A.3d 214, 220 (Pa. 

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

Commonwealth v. Moroz, 284 A.3d 227, 233 (Pa. Super. 2022) (en banc)). 

Saum further observes that in Commonwealth v. Verbeck, a plurality of our 

Supreme Court found that “the language in [s]ection 3806 of the Vehicle Code, 

75 Pa.C.S. § 3806,[3] which includes acceptance of ARD as a prior offense and 

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3 Section 3806 defines “prior offenses,” in pertinent part, as:

[A]ny conviction for which judgment of sentence has been 

imposed, adjudication of delinquency, juvenile consent decree, 

acceptance of [ARD] or other form of preliminary disposition 

before the sentencing on the present violation for any of the 

following:

(Footnote Continued Next Page)
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directs the trial court at sentencing to determine the number of ARD 

acceptances, if any, for purposes of enhancing the defendant's sentence, is 

unconstitutional,” supports this argument. Saum’s Brief at 8-9 (citing 

Commonwealth v. Verbeck, 290 A.3d 260, 277 (Pa. 2023) (Opinion in 

Support of Affirmance)).

Saum also contends that the companion cases of Richards and Moroz, 

which he recognizes overruled Chichkin and held that “the portion of [s]ection 

3806(a), which equates prior acceptance of ARD to a prior conviction for 

purposes of imposing a [s]ection 3804[4] mandatory minimum sentence, 

passes constitutional muster,” were wrongly decided. Saum’s Brief at 8 (citing 

Richards, 284 A.2d at 220; Moroz, 284 A.3d at 233). In Saum’s view, ARD 

cannot be considered as a prior conviction as doing so violates his procedural 

and substantive due process rights. Saum’s Brief at 10.

As Saum correctly observes, an en banc panel of this Court in Richards 

and Moroz expressly overruled Chichkin and held that a defendant’s 

acceptance of ARD for a prior DUI can be considered a prior DUI conviction 

for sentencing purposes under section 3804. Moroz, 284 A.3d at 233; 

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(1) An offense under section 3802 (relating to driving under 

influence of alcohol or controlled substance)[.]

75 Pa.C.S.A. § 3806(a)(1).

4 Section 3804 sets forth mandatory minimum sentence terms for first, 

second, and third or subsequent DUI convictions. 75 Pa.C.S. § 3804.
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Richards, 284 A.3d at 220; see also Commonwealth v. Hummel, 295 A.3d 

719, 720-21 (Pa. Super. 2023) (holding that Richards and Moroz overruled 

Chichkin and are controlling precedent). Moreover, Saum’s reliance on 

Verbeck is unavailing, as that decision was the product of an equally divided 

Court and therefore lacks precedential value. See Hummel, 295 A.3d at 720 

n.1 (noting that a plurality decision of the Pennsylvania Supreme Court is not 

precedential and is not binding on future decisions of this Court). Although 

our Supreme Court has granted allowance of appeal in the Richards case, no 

decision has yet to be issued, and therefore we remain bound by this Court’s 

precedent in Richards and Moroz. See Commonwealth v. Pepe, 897 A.2d 

463, 465 (Pa. Super. 2006) (stating that we are bound by existing precedent 

until such time as it is overturned). Consequently, we lack authority to grant 

Saum relief and conclude that the trial court did not err in treating Saum’s 

prior conviction of DUI-ARD as a prior offense under Pennsylvania’s DUI 

statute and in grading Saum’s instant conviction of DUI as his second offense.

Judgment of sentence affirmed. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 7/18/2024