Superior Court Case Affirms That ARD Cannot Be Considered A Criminal Conviction

A Superior Court case, Commonwealth v. Richards, has affirmed the ruling in the case of Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), that a prior ARD offense cannot, should not, and will not be considered a criminal offense and therefore a defendant should not be tried or sentenced as a second-time offender if they received ARD for a prior offense. Musi, Merkins, Daubenberger & Clark wanted to take the opportunity to inform readers about the facts of this case and how it worked to uphold the importance of the Chichkin case.

During this case, the Defendant was charged on two counts of Driving Under the Influence (DUI) and related summary offenses. Both of the DUI offenses Defendant was charged with were graded in the criminal information as second offenses because the Defendant had previously completed the Accelerated Rehabilitative Disposition (ARD) program for a DUI offense in 2011. The Commonwealth had argued that the ruling in Chichkin allowed them to grade offenses based on the Defendant’s ARD DUI if it proved beyond a reasonable doubt at sentencing that the prior DUI offense had actually occurred. The Defendant had entered numerous motions to argue that after Chichkin, the Commonwealth was not able to rely on his prior ARD offense in order to bring forth the mandatory minimum sentence for a second DUI offense because this proposed procedure violated his due process rights as well as the protection against double jeopardy. Defendant had argued that after he had completed ARD, the case should have been expunged. The Court ultimately denied the defendant’s motions and allowed the Commonwealth to present their evidence regarding Defendant’s prior DUI offense, thus sentencing him as a second-time offender. The defendant went on to appeal the trial court’s decision and during appeal used the Commonwealth v. Chichkin case to argue two important issues in this case.

The very first issue that the defendant brings to light is the fact that his sentence as a second-time offender is illegal under Chichkin because neither that decision nor the Motor Vehicle Code allow the court to force the mandatory minimum sentence based solely on factual finding made at sentencing that he had committed the prior DUI offense that was the underlier of the ARD case. The second main issue that the Defendant argues for this case is that the idea of him being sentenced as a second-time offender undoubtedly is a violation of his due process rights to use his successful completion of ARD to increase his sentence for the current case. Both of these issues that Defendant brought to the attention of the court are prominent in the case of Commonwealth v. Chichkin.

During the case of Chichkin, the Court examined the recidivist sentencing statutes for DUI offenses in 75 Pa.C.S. §§ 3804 and 3806. Section 3804 is what set the mandatory sentences for DUI offenses, with higher penalties going to recidivist offenders. But looking at section 3806, the Defendant was able to argue that a prior offense is defined as “any conviction for which judgement 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…” 75 Pa.C.S. §3806(a). When looking at the case presented, Defendant showed the court that treating a prior acceptance of ARD as a prior conviction for the sole purpose of enhancing a sentence violated the case of Alleyne v. U.S., 570 U.S. 99 (2013). In the case of Alleyne, the court held that any fact that increases the penalty for a criminal offense must be proved to the jury beyond a reasonable doubt with the exception of the fact of a prior conviction, but ARD does not apply to this exception due to the fact that it is not a conviction but rather an alternative rehabilitative program. In addition to violating the case law presented in Alleyne, Defendant concluded that treating acceptance of ARD as a prior offense ultimately violates procedural and substantive due process laws. This is solely due to the fact that ARD is a pretrial disposition and cannot be classified as a criminal conviction. In conclusion, Chichkin never authorized for the trial court to impose the mandatory minimum sentenced determined from a factual determination beyond a reasonable doubt at sentencing.

In the final analysis of the Defendant’s arguments using case law from Commonwealth v. Chichkin and Alleyne v. U.S., the court vacated the judgement of sentence and the case was remanded for further proceedings.  

Musi, Merkins, Daubenberger & Clark is full of seasoned attorneys who are committed to providing clients with the best possible outcome of their cases. We are equipped with the skills to help you in cases of a prior ARD offense and how to handle the sentencing of a second, third, or fourth offense. If you are struggling or in a situation like this, please contact us at 610-891-8806 to make an appointment today.