J-S08038-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JOHN CINQUE

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 844 MDA 2022

Appeal from the Judgment of Sentence Entered May 17, 2022

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

No(s): CP-01-CR-0001123-2021

BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: MAY 8, 2023

The Commonwealth appeals from the judgment of sentence imposed 

following the guilty plea of Appellee, John Cinque, to driving under the 

influence (“DUI”)—controlled substance.1 We vacate the judgment of 

sentence and remand for resentencing.

On April 8, 2021, Appellee was arrested following a traffic stop, and he 

was subsequently charged with various DUI offenses, a summary motor 

vehicle offense, and violations of the Controlled Substance, Drug, Device and 

Cosmetic Act. The DUI offenses were charged as second offenses and graded 

as first-degree misdemeanors based upon Appellee’s resolution of a prior DUI 

charge through the accelerated rehabilitative disposition (“ARD”) process. 

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(d)(1)(ii).
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Appellee filed an omnibus pre-trial motion seeking to bar consideration of his 

earlier ARD as a prior offense at sentencing.

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).

At a May 17, 2022 hearing, the trial court granted Appellee’s motion to 

bar consideration of the prior ARD as a first offense for sentencing purposes. 

N.T., 5/17/22, at 3; Sentencing Order, 5/17/22. Appellee then entered a 

negotiated guilty plea to one count of DUI—controlled substance as a first 

offense, ungraded misdemeanor at the hearing. On that same date, the trial 

court sentenced Appellee 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, 5/17/22. The Commonwealth then filed this 

timely appeal.

The Commonwealth raises the following issue before this Court:
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Did the lower court err in barring consideration of [Appellee’s] 

prior ARD-DUI at sentencing without providing the 

Commonwealth the opportunity to prove, beyond a reasonable 

doubt, that [Appellee] actually committed the prior DUI offense?

Commonwealth Brief at 5 (unnecessary capitalization omitted). The 

Commonwealth challenges the application of Chichkin to this case in light of 

more recent case law and argues that the trial court erred by not allowing it 

to prove that Appellee’s acceptance of ARD in the earlier DUI case constituted 

a prior offense for the purpose of sentencing here. 

The Commonwealth’s argument implicates the legality of Appellee’s 

sentence, which the Commonwealth may appeal as of right. See 42 Pa.C.S. 

§ 9781(a); Commonwealth v. Moroz, 284 A.3d 227, 230 (Pa. Super. 2022) 

(en banc). A claim relating to the legality of a sentence presents a question 

of law as to which our standard of review is de novo and our scope of review 

is plenary. Moroz, 284 A.3d at 230.

This Court’s en banc decisions in Commonwealth v. Richards, 284 

A.3d 214, 217 (Pa. Super. 2022) (en banc), appeal granted, No. 518 MAL 

2022 (Pa. March 15, 2023), and Moroz, which were filed during the pendency 

of this appeal, squarely address the issue presently before this Court. As we 

have recently explained, 

The [Richards and Moroz] decisions emphasize that the General 

Assembly provided that “ARD will constitute a prior offense for 

purposes of sentencing on a second or subsequent DUI conviction 

. . ., and a defendant is presumed to be aware of the relevant 

statute.” Richards, 284 A.3d at 220 (citation omitted); Moroz, 

284 A.3d at 233. The nearly identical decisions therefore 

expressly overruled Chichkin and held “the portion of Section 

3806(a), which equates prior acceptance of ARD to a prior 
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conviction for purposes of imposing a Section 3804 mandatory 

minimum sentence, passes constitutional muster.” Richards, 

284 A.3d at 220; Moroz, 284 A.3d at 233.

Commonwealth v. Hummel, ___ A.3d ___, 2023 PA Super 57, *3-4 (Pa. 

Super. filed April 4, 2023) (footnote omitted).2

Here, the trial court disregarded Appellee’s earlier acceptance of ARD 

and sentenced him as a first-time DUI offender in accordance with Chichkin. 

Under Richards and Moroz, this ruling was in error. See Moroz, 284 A.3d 

at 233 (concluding that “the trial court erred in sentencing [the a]ppellee as 

a first-time DUI offender without considering his acceptance of ARD for a prior 

DUI”); Hummel, 2023 PA Super 57, *4 (same); see also Commonwealth 

v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (noting that Pennsylvania 

appellate courts apply law in effect at time of decision and parties are entitled 

to benefit of changes in law while direct appeal is pending). We therefore 

vacate Appellee’s judgment of sentence and remand for resentencing 

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2 Our Supreme Court addressed this issue more recently in Commonwealth

v. Verbeck, 290 A.3d 260 (Pa. 2023), splitting evenly on the question of 

whether a DUI ARD falls within the “prior conviction” exception to the general 

rule that a fact that increases punishment must be submitted to the fact finder 

and proven beyond a reasonable doubt. While our Supreme Court’s ruling had 

the effect of affirming this Court’s decision remanding for the defendant’s 

resentencing as a first-time offender, Verbeck lacks precedential effect. 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.”). 

Therefore, our en banc decisions of Richards and Moroz remain the binding 

law on this issue. See Hummel, 2023 PA Super 57, *4 n.1.
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consistent with this decision. See Moroz, 284 A.3d at 233; Hummel, 2023 

PA Super 57, *4.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judge Olson joins the memorandum.

Judge McCaffery files a concurring statement in which Judge Colins 

joins.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/8/2023