On May 20, 2020, the Pennsylvania Superior Court decided the consolidated cases of Igor Chichkin & Lisa Roche. Both Chichkin & Roche had previously been accepted into the DUI ARD program. Chichkin & Roche were later convicted of second offense, low tier DUIs as ungraded misdemeanors. Both received sentences that included an increased mandatory minimum due to their classification as a second offense and the fact the both convictions involved accidents. Both Chichkin & Roche objected to the classification of ARD as a prior offense.
The Pennsylvania Superior Court, in Chichkin, ruled squarely that ARD acceptance alone does not prove a prior offense in a Pennsylvania DUI case.
It is important to note that all the DUI convictions in these cases were ungraded misdemeanors with maximum sentences of six months. We know that these charges are not currently allowed jury trials. This appears to be the first case in Pennsylvania applying Apprendi/Alleyne to cases that do not traditionally afford a jury trial.
Nonetheless, this distinction was not raised by the Superior Court. The Court used the standard Apprendi/Alleyne language requiring submission of any fact that raises a statutory maximum (grading) or a mandatory minimum to a jury.
It can therefore be argued that all recidivising offenses that count ARD as a prior (retail theft for example) and all mandatory minimum summaries (1543b for example), require a the allowance of a jury trial if the Commonwealth seeks to impose mandatory minimum sentences or an increase in grading based upon something less than a true Court of Common Pleas conviction.
While the likely outcome is that prior ARD acceptance will not lead to sentencing enhancement, it is important to recognize that the Superior Court did not find that ARD acceptance prohibits using that alleged offense as a prior. Rather, the Court found that ARD acceptance, alone, does not prove beyond a reasonable doubt that the current offense is a second of subsequent offense. Essentially, the Commonwealth must put on two trials if they seek to use the prior ARD as a sentencing enhancement. This is unlikely to occur.
If the Commonwealth attempts to use an ARD alleged offense as a prior and attempts to prove both cases beyond a reasonable doubt, defense counsel should not allow this. Defense Counsel should raise 404(b) concerns and demand a bifurcated trial.
It would appear that the Chichkin/Roche holding should be capable of providing PCRA relief to anyone sentenced on a “second” or “third” offense PCRA within the last year, so long as they are still on probation or parole. As Alleyne was the law at the time, the question of retroactivity should not apply.
See Commonwealth v. Fennell, 105 A.3d (Pa. Super. 2015), Commonwealth v. Vasquez-Santana, 1735 MDA 2014 (unpublished), Commonwealth v. Argudin, 84 WDA 2015 (Unpublished) and other opinions I am not yet aware of. (Cites need to be checked)
Relief for the above individuals would be sought based upon the ineffectiveness of prior counsel, amongst other reasons.
Relief may also be eligible for those sentenced over a year ago, but still serving the probation and/or parole portion of their sentence so long as they file immediately. Relief for these individuals, however, may be even more tenuous.
Relief under Alleyne:
Anyone currently serving an incarceration, work-release or house arrest portion of a DUI sentence. (other than first offense convictions)
Relief under Apprendi:
Anyone convicted and sentenced of any of the following DUIs within the past year:
2nd Offense, High-Tier, >.159 BAC DUI
3rd Offense, Low-Tier, <.099 BAC DUI
3rd Offense, Mid-Tier, .1-.159 BAC DUI
The 18 Pa.C.S. Sec. 3929, Retail Theft, statute was modified in 2014 to allow prior ARD acceptance to count as a prior offense for recidivism purposes. The application of the Commonwealth v. Chichkin/Commonwealth v. Roche holding on ARD acceptance as a non-conviction, should apply equally to shoplifting and retail theft.
Here, however, the relief is obtained through Apprendi rather than Alleyne as the prior ARD increases the statutory maximum, or grading, rather than the mandatory minimum.
Those currently charged with misdemeanor or felony retail theft, based upon a prior ARD acceptance, should contest the grading of those offenses.
Most tenuous of all the leaps we can take from the Chichkin/Roche holding is the possibility that mandatory minimums in summaries have been eviscerated. We can reach this conclusion through two theories. But, first we must come back to the fact that all of the DUIs in Chichkin & Roche were ungraded misdemeanors with statutory maximums of six months, even with the illegal enhancements. These were not cases eligible for jury trials.
Nonetheless, the Superior Court itself phrased the question before it as:
“Thus, the question presented in the present appeals is whether Appellants’ prior acceptances of ARD constitute an unproven “fact,” which must be submitted to a jury, or a prior conviction, which may be determined by the court at sentencing.” Chichkin/Roche at Pg. 12.
The Superior Court goes on to say that:
“Alleyne mandates that any fact that increases the defendant’s sentence, with the narrow exception of a prior conviction, must be submitted to a jury and found beyond a reasonable doubt.” Chichkin/Roche at Pg. 17.
The Superior Court knew they were dealing with non-jury cases but did not once stop to qualify whether submission to a judge was sufficient in these cases. At every turn, the Superior Court mandated submission to a jury.
Now, on to the summaries. We have two types of summaries with mandatory minimums, blanket Mandatory minimum summaries such as a 1543(b) (which also recidivises) and mandatory minimums based upon recidivism alone, a 1543(a).
Easiest to analogize to Chichkin/Roche is the 1543(a), which has a mandatory triggered by a sixth offense. (the statutory maximum also has a recidivism trigger at a second offense but lets set that aside for now) At first glance, on the surface, we have no problem raised here because there is no ARD and these sentences only recidivse based upon “convictions.” However, Alleyne, Apprendi, & Chichkin/Roche all hold that prior convictions need not be submitted to a jury only because they are “cloaked in all the all the constitutional safeguards.”
Pennsylvania already recognizes that summary “convictions” are not true convictions. We have cases in the civil realm that disallow summary convictions from being admitted in civil cases because they lack these safeguards. These same cases regarding summary “convictions” hold that summaries often result in a “conviction” as a matter of convenience to the accused, much like ARD. Remember, Chichkin/Roche held ARD as inadmissible but ARD requires at least two court hearings and, in many cases, an off the record admission. On the other hand, summaries “convictions” require none of these procedural safeguards and are often created in absentia.
It appears that the Pennsylvania Sentencing Commission may also agree with the interpretation that summaries are non-convictions for the purposes of sentencing. When it created the 2020 resentencing guidelines, it defined convictions in Section 307.1(b)(1) as:
“A finding of guilty or the entering of a plea of guilty or nolo contendere for a misdemeanor or felony in a court of record, whether or not a judgement of sentence has been imposed. “
The Sentencing Commission specifically exempted not only summaries as a conviction but any disposition in the magisterial district courts, including ungraded misdemeanors.
Defense Counsel should strenuously contest the use of prior summary “convictions” for the purposes of recidivism.
Summaries with Mandatory Minimum upon first Conviction – 1543(b)
Most tenuous of all the leaps from Chichkin/Roche is the proposition the 1543(b) mandatories are invalid without a jury trial. Nonetheless, a 1543(b) has a mandatory minimum sentence of 60 days, whereas the mandatory minimum sentences imposed in Chichkin/Roche were only 30-40 days. The Chichkin/Roche lower court cases allowed the defendant the appointment of a public defender, discovery and pre-trial motions but none of these are commonly allowed for a summary offense. Nonetheless, it appears the Superior Court has found that a 30-day mandatory minimum triggers a jury trial even if the maximum is 6 months or less and would not otherwise require a jury trial.
There appears to be, at least, a moral argument that a 60-day mandatory minimum in a summary offense, triggered by a DUI related suspension, that occurred with no hearing at all, should be entitled to the same protections.