Commonwealth v. Shifflett, G., Aplt.

[J-75-2024] [MO: Todd, C.J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 26 MAP 2024

:

Appellee : Appeal from the order of the Superior

: Court at No. 1480 MDA 2022 dated

: April 24, 2023

v. : reversing/vacating/remanding the

: Judgment of Sentence of the Adams

: County Court of Common Pleas,

GEORGE THOMAS SHIFFLETT, : Criminal Division, at No. CP-01-CR-

: 0000650-2022 dated September 22,

Appellant : 2022.

:

: ARGUED: October 9, 2024

DISSENTING OPINION

JUSTICE MUNDY DECIDED: May 30, 2025

I dissent for two reasons. First, even if I agreed with the majority that a DUI

defendant’s previous ARD acceptance fell within the general rule of Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99, 103 (2013), 1 I

would not conclude Section 3806 of the Vehicle Code is thereby rendered facially

“unconstitutional to the extent it provides that a previous acceptance of ARD constitutes

a prior offense for the purpose of an enhanced sentence under Section 3804.” Majority

Op. at 29. Second, I disagree with the majority’s holding that under Apprendi, a prior

ARD acceptance must be found by a jury, as I find no constitutionally meaningful

distinction between a prior ARD and a prior conviction. My reasoning follows.

1 Together, Apprendi and Alleyne establish a general rule that facts which increase the

range of sentences to which a defendant is exposed must be found by a jury beyond a

reasonable doubt (hereinafter, the “Apprendi rule”). Apprendi applies to increasing the

top end of the range, while Alleyne applies to an increase in the bottom end of the range.

I.

Section 3806(a) of the Vehicle Code defines “prior offense” to include, inter alia, a

previous conviction and a previous ARD acceptance. See 75 Pa.C.S. § 3806(a). 2 That

definitional facet of the statute does not implicate Apprendi because it does not prescribe

a specific procedure for determining the existence of a prior offense. The Supreme

Court’s Apprendi cases concern procedure – due process and the right to a jury trial –

and nothing in those decisions precludes a non-conviction fact from enhancing a penalty

so long as it is found by a jury beyond a reasonable doubt. See Apprendi, 530 U.S. at

490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.”). 3 Hence, even accepting the majority’s premise that a prior

ARD acceptance must be found by a jury, Section 3806 would only be unconstitutional if

it affirmatively required that such a finding be made by a judge. But nothing in Section

3806(a) speaks to that question. Thus, the majority errs by declaring Section 3806(a)

unconstitutional to the extent it defines a “prior offense” to include a prior ARD acceptance

for purposes of sentencing under Section 3804.

2 To qualify as a prior offense for sentencing purposes, the earlier conviction or ARD must

have taken place within a ten-year lookback window. See id. § 3806(b)(1). That aspect

of the statute is not presently at issue because it is uncontested that the timing

requirement is met in this case.

3 In Apprendi’s terminology, a fact that increases the punishment beyond that which is

otherwise imposable comprises an element of a distinct, higher-graded offense. See

Commonwealth v. Dixon, 255 A.3d 1258, 1264 (Pa. 2021) (citing Alleyne, 570 U.S. at

114-15 (“When a finding of fact alters the legally prescribed punishment so as to

aggravate it, the fact necessarily forms a constituent part of a new offense and must be

submitted to the jury.”)); see also Ring v. Ariz., 536 U.S. 584, 600 (2002); Blakely v.

Wash., 542 U.S. 296, 301 (2005); United States v. Booker, 543 U.S. 220, 231 (2005);

Cunningham v. Cal., 549 U.S. 270, 282 (2007); Oregon v. Ice, 555 U.S. 160, 163 (2009);

S. Union Co. v. United States, 567 U.S. 343, 346 (2012); United States v. Haymond, 588

U.S. 634, 643 (2019); Erlinger v. United States, 144 S. Ct. 1840, 1850 (2024).

[J-75-2024] [MO: Todd, C.J.] - 2

It may be argued in response to the above that paragraph (b)(2) directs the judge

to “calculate the number of prior offenses, if any, at the time of sentencing.” 75 Pa.C.S.

§ 3806(b)(2). If the word “calculate” is understood to mean, “determine the existence of,”

that would undermine my position. But even then, only that provision would be

constitutionally infirm, not the “prior offense” definition in Section 3806(a). Furthermore,

it would be inappropriate, in my view, to interpret “calculate” to mean “determine the

existence of.” Legislation duly enacted by the General Assembly enjoys a “strong

presumption of validity,” and it will only be declared unconstitutional upon compelling

proof it “clearly, palpably, and plainly” violates the Constitution. Sands Bethworks

Gaming, LLC v. Dep’t of Revenue, 207 A.3d 315, 321 (Pa. 2019). When interpreting a

legislative enactment, we are obligated to give it a constitutional interpretation if that can

reasonably be done. See Bricklayers of W. Pa. Combined Funds, Inc. v. Scott’s Dev.

Co., 90 A.3d 682, 692 (Pa. 2014).

“Calculate” means to determine the amount of something, not the existence of

something. See WEBSTER’S NEW COLLEGE DICTIONARY 160 (3d ed. 2008). The statute

confirms this meaning with its directive that the sentencing court “calculate the number of

prior offenses.” 75 Pa.C.S. § 3806(b)(2) (emphasis added). Construing it to mean

“determine the existence and number of prior offenses” would not only fail to comply with

the Bricklayers precept mentioned above, it would amount to a judicial insertion of words

into a statute that the General Assembly did not include. It is perfectly reasonable,

moreover, for a jury to determine as a fact whether the defendant previously resolved a

specific DUI charge through the ARD program, and/or whether the defendant was

previously convicted of DUI, and for the judge at sentencing to calculate the number of

prior offenses based on the jury’s findings. Because the statute would be valid under

those circumstances, it is not facially unconstitutional. See Clifton v. Allegheny Cnty.,

[J-75-2024] [MO: Todd, C.J.] - 3

969 A.2d 1197, 1222 (Pa. 2009) (a statute is facially unconstitutional only where there is

no set of circumstances under which it would be valid). 4

The Pennsylvania District Attorneys Association, as amicus curiae, forwards an

argument along these lines:

[I]f a defendant who accepted ARD for a DUI offense is then . . . convicted

of a subsequent DUI offense, the only requirement should be that the

Commonwealth prove beyond a reasonable doubt that the defendant

previously accepted ARD for a DUI offense . . .. This is the sentencing

enhancement contemplated by the General Assembly in Section 3806 . . ..

Accordingly, the Commonwealth submits that if it is required to prove facts

beyond a reasonable doubt to comply with Alleyne, that burden is satisfied

by proving beyond a reasonable doubt that the defendant previously

accepted ARD for a DUI offense . . ..

Brief for amicus PDAA at 23. I would credit this argument. It may be notedin this respect

that there is no preserved claim that, even where the procedures required by Apprendi

are followed – namely, proof to a jury beyond a reasonable doubt – a statute that

enhances a DUI penalty based on a prior ARD acceptance is substantively

unconstitutional. To the contrary, the issue we accepted for review is framed solely in

terms of the procedure:

4 Concerns about the prejudicial effect of evidence of a prior ARD can be alleviated

through a bifurcated proceeding in which the Commonwealth’s evidence of the earlier

ARD may be admitted during the second phrase of the trial. See Spencer v. Texas, 385

U.S. 554, 567 (1967) (observing this system was used in Great Britain and in

Connecticut); Accord Apprendi, 530 U.S. at 521 n.10 (Thomas, J., concurring); see also

Almendarez-Torres v. United States, 523 U.S. 224, 259 (1998) (Scalia, J., dissenting)

(referring to the “traditional practice” of having a jury find recidivism beyond a reasonable

doubt). See generally People v. Epps, 18 P.3d 2, 3 (Cal. 2001); Butler v. State, 848

S.E.2d 97, 101 (Ga. 2020); People v. Chavez, 621 P.2d 1362, 1366 (Colo. 1981); cf.

Graham v. West Virginia, 224 U.S. 616, 621-22 (1912) (describing a system where a

separate jury was empaneled to decide the question of recidivism). See generally Nancy

J. King, Juries & Prior Convictions: Managing the Demise of the Prior Conviction

Exception to Apprendi, 67 SMU L. REV. 577 (2014) (discussing various methods for

limiting jury prejudice stemming from knowledge of prior convictions).

[J-75-2024] [MO: Todd, C.J.] - 4

In light of Alleyne[], is it unconstitutional to consider an acceptance of ARD

as a prior offense for sentencing purposes without the procedural

protections afforded by Alleyne, i.e., a prior offense can only be determined

by a jury by proof beyond a reasonable doubt?

Commonwealth v. Shifflett, 316 A.3d 616, 617 (Pa. 2024) (per curiam). That being the

case, any suggestion by the majority that Section 3806 is facially unconstitutional on the

grounds it enhances a penalty based on an ARD acceptance is unwarranted. Further,

the majority’s rejoinder that Sections 3804 and 3806 can be described as a “sentencing

scheme,” Majority Op. at 23 n.16, does not constitute the kind of clear, plain, and palpable

proof that our cases require before we may declare that the work product of our coequal

branch of government is repugnant to the Constitution, and hold that it must be voided.

Nor is the majority’s argument persuasive to the extent it references a decision of

the United States Supreme Court finding facial invalidity notwithstanding hypothetical

outlier situations in which the enactment could potentially be utilized in a constitutional

manner. See id. at 25-26 (discussing City of Los Angeles v. Patel, 576 U.S. 409 (2015));

see also Dissenting Op. at 5 (Dougherty, J.) (noting that in the hypothetical situations

referenced in Patel the statute was irrelevant). This case has nothing to do with

hypothetical outliers. It asks whether a statute that facially allows for a constitutionally

valid application in every case should nonetheless be declared facially unconstitutional

by assuming that in every case a constitutionally invalid process will be used.

As well, I find no salience in the majority’s suggestion that we should err on the

side of negating the work product of a coequal branch of government here because we

invalidated a different statute upon finding it to be “irremediably unconstitutional on its

face.” Id. at 26 (quoting Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016)). The

statute presently under review is not irremediably unconstitutional on its face. In any

event, it is an unusual theory to suggest we should repeat an action here on the basis

that, even if such action amounts to error, we have made similar errors before.The

[J-75-2024] [MO: Todd, C.J.] - 5

majority finally refuses to acknowledge that Sections 3804 and 3806 could be saved

simply by ruling that, consistent with Alleyne, any finding of a prior ARD must be made by

a jury. It justifies such refusal by pointing out that that is not how those provisions were

applied in this particular matter – and adding that the same problem would arise in any

future prosecution where a judge was permitted to find the fact of a prior ARD. See id. at

26-27. The majority stresses that “our focus must be on the impact Sections 3804 and

3806 have on Appellant and similarly situated individuals who have not had their previous

acceptance of ARD determined by a jury.” Id. at 27.

I agree. My point is that that is only a facial problem with those provisions if we

also determine that the Vehicle Code (or some other statute) affirmatively requires the

judge, and not the jury, to find the fact of the defendant’s prior ARD. The majority neither

makes that determination nor submits to the inevitable logical consequence that the

statute is not facially invalid. 5 Sections 3804 and 3806 can be applied consistently with

Alleyne and Apprendi in every case going forward – and they undoubtedly would be if the

majority would just exercise a little restraint and grant Appellant relief on the basis that

they were unconstitutionally applied in the present case.

II.

My second reason for dissenting is that I also am not aligned with the majority’s

holding that a prior ARD acceptance is the type of fact that must be found by a jury under

the Apprendi rule. My reasons are spelled out in the opinion I filed in Commonwealth v.

Verbeck, 290 A.3d 260 (Pa. 2023) (per curiam) (affirming by an evenly divided Court),

5 The majority does suggest our decision in Wolfe disfavors having a jury alone find facts

that support an enhanced sentence. See id. (describing Wolfe as acknowledging that the

“the sentencing court was bound to make its own determination at sentencing”). In Wolfe,

however, the statute expressly required the judge to make that finding. See Wolfe,140

A.3d at 653. As noted above, the same is not true of Sections 3804 and 3806. Thus,

Wolfe is materially distinguishable from this case and provides no support for the

majority’s holding.

[J-75-2024] [MO: Todd, C.J.] - 6

and they need not be repeated herein at length. See id. at 261-76 (Opinion in Support of

Reversal (OISR) by Mundy, J.). It is enough at present to point out the difficulty with the

majority’s reasoning by observing it places determinative weight on the earlier conviction

having been reached in compliance with the constitutional predicates necessary to the

imposition of criminal punishment. The majority also stresses that those safeguards

contrast with the procedures attendant to the resolution of a DUI charge through the ARD

program. See Majority Op. at 19-23. In my view, such considerations are a red herring.

Apprendi only applies to contested facts. Facts admitted or stipulated by the

defendant do not come within the Apprendi rule. See Cunningham v. California, 549 U.S.

270, 275 (2007). Therefore, any holding by this Court in the instant case can only apply

when the prior ARD acceptance is contested, because it is only then that the question, to

whom must it be proved?, has any relevance. See Verbeck, 290 A.3d at 273-75 & n.15

(OISR). But what meaningful difference, constitutionally speaking, is there between the

contested fact of a prior ARD acceptance and the contested fact of a prior conviction? In

neither instance does the constitutional adequacy of the procedures used to resolve the

earlier charges have any bearing. The only questions raised are whether it occurred at

all, and whether the defendant then was the same as the defendant now.

Suppose, for example, that in the prior-conviction scenario, the defendant argues

the government is proceeding based on inauthentic documents or mistaken identity, e.g.,

the prior defendant was a different person with the same name. See generally People v.

Epps, 18 P.3d 2, 5-7 (Cal. 2001) (positing grounds on which the fact of a prior conviction

may be challenged, including mistaken identity and fabricated, insufficient, inaccurate, or

inauthentic records). 6 Why does it matter whether the defendant in that prosecution was

6 A dispute over the fact of a prior conviction could also arise if the names are different

but the prosecution claims they are aliases for the same person. See, e.g., Graham v.

West Virginia, 224 U.S. 616, 621 (1912); see also Almendarez-Torres v. United States,

(continued…)

[J-75-2024] [MO: Todd, C.J.] - 7

“cloaked with the panoply of constitutional trial rights,” Majority Op. at 10, if the defendant

in the present case denies he was ever convicted? 7 The same is true of a prior ARD.

The only question is whether it happened, and happened to this defendant. So again,

even assuming any prior conviction arose from a constitutionally valid process – and as

discussed below, this is merely an assumption, not something the Commonwealth must

prove – how is the contested fact of a prior conviction different from the contested fact of

a prior ARD in any constitutionally meaningful way? It is not.

To illustrate further: the statutory terms “prior offense” in Section 3806(a), and

“second offense” in Section 3804(a)(2), are not magic words. The Legislature could just

as easily have provided that anyone who receives a “stern warning” from the government

not to drink and drive, and then drives under the influence thereafter notwithstanding the

benefit of that warning, is subject to the penalties listed in Section 3804(a)(2). Then in

3806(a), the Legislature could have defined “stern warning” to include both a prior

conviction with its imposition of criminal penalties, and a prior ARD resolution with its

imposition of substantial civil penalties. 8 The majority, in essence, argues that if the

523 U.S. 224, 268 (1998) (Scalia, J., dissenting) (recounting the difficulties prosecuting

authorities face on the question of recidivism when an individual possesses documents

reflecting different aliases).

7 The defendant need not affirmatively state, in so many words, that the conviction never

took place. In any prosecution where the defendant does not stipulate to the prior

conviction, that is his position – the government has to prove it.

8 We have explained that ARD is not a “trivial mechanism for avoiding a conviction and

expunging an arrest record[, but] an intensive process involving personal assessments,

safety classes, and addiction treatment, if necessary, all under court supervision for six

months to a year[.]” Whalen v. PennDOT, 32 A.3d 677, 684 (Pa. 2011); see 75 Pa.C.S.

§ 3807(b). In return for avoiding a criminal conviction, the defendant waives his right to

require the Commonwealth to prove his guilt beyond a reasonable doubt, and the court

sets conditions that may include those “imposed with respect to probation after conviction

of a crime,” such as restitution, costs, administrative expenses, and any other conditions

agreed to by the parties. Pa.R.Crim.P. 316(A); see 75 Pa.C.S. § 3807(b). See generally

Brief for Appellee at 10 (enumerating secondary consequences to a criminal conviction,

(continued…)

[J-75-2024] [MO: Todd, C.J.] - 8

government seeks a penalty based on a criminal-conviction-stern-warning, it has a

relatively low burden of proof: it must demonstrate the prior issuance of that warning to

a judge by a preponderance. But if the government seeks the same penalty based on

the defendant having received an ARD-stern-warning, it must prove the issuance of that

warning to a jury beyond a reasonable doubt.

There is no reason in logic for this different treatment. Focusing on the different

procedures used to issue those two different kinds of “stern warning” is immaterial

because, as noted, the validity of the warning is not in dispute, only its existence. Under

the Vehicle Code, there is no warrant for relitigating the earlier charge or litigating the

question of whether it was disposed of through a constitutionally-valid process. All that

matters is whether a conviction or an ARD actually happened. Thus, by emphasizing that

the procedural safeguards required for criminal punishment were (assumedly) followed in

the earlier case, the majority focuses on an irrelevancy. It is also true that the procedural

safeguards required for civil consequences, including the deprivation of constitutionally

protected liberty and property interests, see supra note 8, are assumed to have been in

place before any ARD resolution could have occurred. But again, none of that matters.

If the majority would just say, “The Apprendi rule’s exception has been phrased in terms

of a prior conviction only, and regardless of whether that exception makes any sense or

including those relating to employment, housing, professional licensing, and immigration).

In many instances, as well, the individual’s driving privileges are suspended for a period

of time. See id. § 3807(d)(2)-(4). See generally Verbeck, 290 A.3d at 264-65 (OISR)

(providing an overview of the ARD program).

These types of measures deprive the defendant of constitutionally-protected interests

including money and driving privileges. It would be difficult to argue they do not amount

to an emphatic warning to the driver that drinking and driving puts himself and others in

extreme danger – and not to do it in the future on pain of even more severe

consequences. To the degree Appellant suggests ARD acceptance is equivalent to any

other “unadjudicated arrest,” Brief for Appellant at 16, his argument is unpersuasive.

[J-75-2024] [MO: Todd, C.J.] - 9

rests on a principled basis, we have to stick to the exact words used by the Supreme

Court,” that at least would be a coherent argument.

In my own view, the exception to the Apprendi rule does not rest on a principled

basis. “When a finding of fact alters the legally-prescribed punishment so as to aggravate

it, the fact necessarily forms a constituent part of a new offense and must be submitted

to the jury.” Alleyne, 570 U.S. at 114-15; Dixon, 255 A.3d at 1262; see supra note 3.

“Necessarily” does not admit of exceptions, and it can hardly be denied that a prior

conviction alleged by the government, and not conceded by the defendant, is a fact that

must be found. At common law the “the near-uniform practice among the States” was to

treat that fact as a separate element of a higher-graded offense. Almendarez-Torres v.

United States, 523 U.S. 224, 261 (1998) (Scalia, J., dissenting). Apprendi attempted to

justify distinct treatment for prior convictions by referring to a “vast difference between

accepting the validity of a prior judgment” where the defendant enjoyed full procedural

safeguards, “and allowing the judge to find the required fact under a lesser standard of

proof.” Apprendi, 530 U.S. at 496; see also Majority Op. at 9-10 (quoting this passage).

But where a statute enhances a penalty based on recidivism, any concern about “the

validity of [the] prior judgment” is a distraction because, as explained, only the fact of the

prior judgment is at issue, not its validity.

The validity is assumed, but that is merely an assumption. Courts do not relitigate

prior charges to ensure the earlier conviction was valid, and neither Apprendi nor the

present majority suggests a sentencing court reviewing the defendant’s criminal record

must investigate and verify that, in relation to all prior convictions, the defendant really did

enjoy full procedural safeguards. For all the sentencing court knows, the earlier

proceedings were rife with constitutional error that was never challenged or the

challenges to which were erroneously rejected. Under Apprendi, if the prior conviction is

[J-75-2024] [MO: Todd, C.J.] - 10

proven as a fact, the validity of the imposition of criminal punishment is simply assumed.

But it is also true that, if a prior ARD is proven as a fact, the validity of its deprivation of

constitutionally-protected liberty and property interests is also assumed. So focusing on

the procedural safeguards that we hope were applied in the earlier prosecution – but we

do not really know for sure, and the government is not required to prove it – does not

distinguish a prior conviction from any other fact that must be found. This may be why

the four dissenting Justices in Almendarez-Torres, the case on which the Apprendi

exception was ultimately based, described the exception as “illogical,” id. at 262 (Scalia,

J., dissenting), and the Apprendi majority itself expressed that Almendarez-Torres may

have been “incorrectly decided.” Apprendi, 530 U.S. at 489. 9

But, the exception remains in force to this day, and there simply is no

constitutionally-meaningful distinction between a prior conviction and a prior ARD

acceptance. Hence, I dissent.

I note, as well, that the majority’s actual objection appears to be to an earlier ARD

constituting the basis for an enhanced penalty on the grounds that, in the ARD program,

the defendant is never proven guilty. The majority finds this point “most critical[]” in the

present controversy. Majority Op. at 19; see also id. at 20 (stressing that the defendant

also does not admit guilt). But that merely amounts to a disagreement with the General

Assembly’s legislative choices. As such, it cannot properly form the basis for a judicial

decision absent a finding of substantive unconstitutionality – which, as explained above,

is not before us in this appeal.

9 See also Shepard v. United States, 544 U.S. 13, 27-28 (2005) (Thomas, J., concurring)

(observing that a majority of the Justices, at that juncture, agreed Almendarez-Torres was

wrongly decided).

.

[J-75-2024] [MO: Todd, C.J.] - 11

The only additional observation I wish to make at present is that, although the

Supreme Court has indeed used the phrase, “other than the fact of a prior conviction,” it

has never addressed a case like this one, where the earlier resolution of criminal charges

bears many of the characteristics of a conviction that Apprendi found important, in the

sense that it has nothing to do with the defendant’s conduct in committing the present

offense, see Apprendi, 530 U.S. at 496, and it is subject to proof through certified

government records, see Shepard, 544 U.S. at 25. As I noted in Verbeck, the circuits are

split as to whether other similar matters of judicial record, such as prior juvenile

adjudications of delinquency, fall within the exception to the Apprendi rule. See Verbeck,

290 A.3d at 271, 274-75 (OISR). 10 As well, several other state appellate courts to

consider the question in the context of a diversionary program agree with my position.

See Verbeck, 290 A.3d at 276 n.18 (OISR) (citing cases). Therefore, it is my hope the

Supreme Court will grant certiorari in such a case and clarify how the Apprendi rule

applies in these circumstances.

10 Compare Commonwealth v. Chichkin, 232 A.3d 959 (Pa. 2020) (holding a prior ARD

acceptance must be proved to the jury beyond a reasonable doubt), with Commonwealth

v. Lee, 260 A.3d 208 (Pa. Super. 2021) (holding a prior juvenile adjudication is the

equivalent of a prior conviction, and thus, under Apprendi it may be proved to a judge by

a preponderance).

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