Commonwealth v. Chichkin, No. 3473 EDA 2018
| Decision Date | 20 May 2020 |
| Docket Number | No. 3473 EDA 2018,No. 3475 EDA 2018 |
| Parties | COMMONWEALTH of Pennsylvania v. Igor CHICHKIN, Appellant Commonwealth of Pennsylvania v. Lisa Roche, Appellant |
| Court | Pennsylvania Superior Court |
Karl Baker, Public Defender, and Leonard Sosnov, Assistant Defender, Philadelphia, for appellant.
Lawrence J. Goode, Assistant District Attorney, Joanna R. H. Kunz, Assistant District Attorney, Shawn D. Baldwin, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.
OPINION BY McCAFFERY, J.:
In these two appeals,1 we consider the constitutionality of the provision of the mandatory minimum sentencing statute for driving under the influence (DUI),2 75 Pa.C.S. § 3806, which treats a prior acceptance of accelerated rehabilitative disposition (ARD) in a DUI case as a prior conviction for sentencing enhancement purposes. Igor Chichkin and Lisa Roche (collectively Appellants) appeal from the judgments of sentence entered in the Philadelphia Court of Common Pleas, confirmed by the denial of their petitions for writ of certiorari , following their convictions of DUI in the Philadelphia Municipal Court. Because we agree Appellants were not afforded their constitutional protections under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), we vacate Appellants' judgments of sentence and remand for resentencing as first-time DUI offenders.
The pertinent facts and procedural history underlying each appeal are as follows.
Chichkin was arrested and charged with DUI for an incident that occurred on December 8, 2017. His case proceeded to a trial in Municipal Court on May 18, 2018, at which time the court found him guilty of two counts of DUI-general impairment under 75 Pa.C.S. § 3802(a)(1).3 On June 25, 2018, Chichkin was sentenced to a term of 30 days to six months' imprisonment, with two months' concurrent probation. The 30-day mandatory minimum was imposed under 75 Pa.C.S. § 3804(b)(2)(i), because Chichkin had accepted ARD for a prior DUI offense in 2013. See 75 Pa.C.S. § 3804(b)(2)(i) (). See also 75 Pa.C.S. § 3806(a) ().
On July 5, 2018, Chichkin filed a timely motion for reconsideration, seeking to "bar consideration of [his] prior ARD acceptance for sentencing purposes because the statutory framework violates several provisions of the United States and Pennsylvania Constitutions." Chichkin's Motion for Reconsideration, 7/5/18, at ¶ 5. The court granted reconsideration and vacated the June 25th sentence. However, following a hearing on July 30, 2018, the Municipal Court denied reconsideration and reinstated the sentence imposed on June 25, 2018.
On August 6, 2018, Chichkin filed a timely petition for writ of certiorari in the Court of Common Pleas. The trial court denied the writ on November 26, 2018, but stayed Chichkin's sentence pending an appeal. Chichkin filed this timely appeal, and complied with the trial court's directive to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On June 13, 2018, Roche entered a negotiated guilty plea in the Municipal Court to one count of DUI-general impairment with accident. N.T. Roche Guilty Plea, 6/13/18, at 4. The Commonwealth noted it was "a mandatory minimum matter." Id. The case proceeded to sentencing on September 17, 2018, at which time the Municipal Court stated Roche's record "showed a prior offense" and thus her guilty plea would constitute a "second offense." N.T.Roche Sentencing H'rg, 9/17/18, at 3. Roche's counsel objected to the court's characterization, arguing that because the alleged "prior offense" was an acceptance of ARD, it "should not recidivize[,]" and the DUI mandatory minimum statute was unconstitutional under Alleyne . Id. at 3-4. The Municipal Court rejected Roche's argument and imposed a sentence of 30 days to four months' imprisonment, and two years' concurrent probation. The 30-day mandatory minimum sentence was likewise imposed under 75 Pa.C.S. § 3804(b)(2)(i), based upon the fact that Roche had accepted ARD for a prior DUI offense in 2010. See 75 Pa.C.S. § 3804(b)(2)(i). See also 75 Pa.C.S. § 3806(a).
On September 18, 2018, Roche filed a timely petition for writ of certiorari in the Court of Common Pleas. Following a hearing, the trial court denied the writ on November 26, 2018, but stayed Roche's sentence. Roche filed this timely appeal, and complied with the trial court's directive to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellants raise the following identical three questions on appeal:
Chichkin's Brief at 2; Roche's Brief at 2.
When an appellant challenges a trial court's denial of a petition for writ of certiorari , "[w]e will not disturb the lower court's [decision] unless we find an abuse of discretion." Commonwealth v. Noss , 162 A.3d 503, 507 (Pa. Super. 2017). Here, in all three of their claims, Appellants contend the statutes which the Municipal Court applied to increase their mandatory minimum sentence — 75 Pa.C.S. §§ 3804 and 3806 — are unconstitutional, and, thus, their sentences are illegal. "A challenge to the legality of sentence is a question of law; our standard of review is de novo and our scope of review is plenary." Commonwealth v. Alston , 212 A.3d 526, 528 (Pa. Super. 2019).
Each of Appellants' claims on appeal involves the interplay between Sections 3804 and 3806 of the Motor Vehicle Code (MVC). Section 3804 sets forth mandatory minimum sentence terms for first, second, and subsequent DUI offenses. 75 Pa.C.S. § 3804. Section 3806 defines the term "prior offense" as, inter alia :
75 Pa.C.S. § 3806(a)(1) (emphasis added). Thus, a defendant who had accepted ARD for a prior DUI offense is considered a second-time offender under the Section 3804 penalty provisions.
In their first issue, Appellants contends the aforementioned DUI penalty statutes are unconstitutional pursuant to the United States Supreme Court's decision in Alleyne , which held "a defendant has due process rights to specific notice in the charging document and proof beyond a reasonable doubt, as well as, the constitutional guarantee of a jury determination" with regard to "any factual determination that triggers a mandatory minimum sentence[.]" Chichkin's Brief at 5; Roche's Brief at 5. Although Appellants recognize Alleyne and its progeny provide an exception for prior convictions, they insist "[a]cceptance of ARD ... bears no relationship to a prior conviction because it involves no finding of guilt beyond a reasonable doubt (or even misconduct)." Chichkin's Brief at 10; Roche's Brief at 11. Furthermore, they assert that, with the exception of the designation in the DUI penalty statute, this Court has "repeatedly held" that acceptance of ARD does not constitute a prior conviction. Chichkin's Brief at 11; Roche's Brief at 11. Regardless of how the Legislature characterizes a prior ARD acceptance, Appellants insist, it is not a "prior conviction" and, therefore, is a "fact" triggering an enhanced sentence which, under Alleyne , "must be found by a jury beyond a reasonable doubt." Chichkin's Brief at 12; Roche's Brief at 13. Because they were not "afford[ed] the constitutional procedural protections of Alleyne ," Appellants argue, we must vacate the mandatory minimum sentences and remand for resentencing. Chichkin's Brief at 13; Roche's Brief at 14.
The Commonwealth agrees that Appellants' mandatory minimum sentences should be vacated under Alleyne because "the portion of 75 Pa.C.S. § 3806 that increases a mandatory sentence based upon a prior acceptance of ARD without the fact of the acceptance being established beyond a reasonable doubt is unconstitutional." Commonwealth's Brief at 6.4 Although the Commonwealth notes it did provide notice, in Appellants’ criminal complaints, of the potential mandatory minimum sentence, it acknowledges it did not "establish at the trial stage that [Appellants were] ever convicted of a prior DUI, or had previously accepted ARD." Id. at 7-8. Thus, the Commonwealth concurs that we "should remand [these cases] to the trial court to resentence [Appellants] in accordance with a first offense DUI." Id. at 8.
In denying Appellants' petitions for writ of certiorari , however, the trial court...
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