Facial Unconstitutionality of §3806: Apprendi Protections for ARD-Based Sentencing Enhancements

Introduction

Commonwealth v. Shifflett, G., Aplt. (No. 26 MAP 2024), decided May 30, 2025 by the Supreme Court of Pennsylvania, addresses a critical question: may a defendant’s prior acceptance of Accelerated Rehabilitative Disposition (ARD) be treated as a “prior offense” for mandatory enhanced sentencing under 75 Pa.C.S. §3804 without the Sixth Amendment protections articulated in Apprendi v. New Jersey and Alleyne v. United States? The Commonwealth (appellee) sought to impose a mandatory minimum under Pennsylvania’s DUI statute based on Shifflett’s earlier ARD. The Superior Court had reversed and remanded, and the Supreme Court’s majority ultimately held §3806 facially unconstitutional. Justice Dougherty’s dissent, which we examine here, argues the Court should have confined relief to an as-applied remedy and highlighted procedures by which §3806 can be constitutionally applied.

Summary of the Judgment

The Pennsylvania Supreme Court’s majority concluded that 75 Pa.C.S. §3806 (which defines “prior offense” to include prior ARD) violates the Sixth Amendment under the Apprendi rule whenever it is applied without jury fact-finding beyond a reasonable doubt or a valid waiver. The majority deemed this defect “facial”—no conceivable application of §3806 could pass constitutional muster—thereby invalidating the statute in all circumstances. Justice Dougherty dissented, arguing the remedy should have been limited to an “as-applied” holding for Shifflett, and identifying two classes of cases in which §3806 can be saved: (1) where a jury decides the existence of a prior ARD via a special interrogatory; and (2) where the defendant knowingly waives his Apprendi rights at the time of ARD acceptance.

Analysis

Precedents Cited

Apprendi v. New Jersey (530 U.S. 466, 2000): Any fact that increases the statutory maximum or mandatory minimum must be submitted to a jury and proved beyond a reasonable doubt.
Alleyne v. United States (570 U.S. 99, 2013): Reinforced Apprendi’s rule by holding that any fact increasing the mandatory minimum is an “element” of the offense.
Erlinger v. United States (602 U.S. 821, 2024): Clarified the scope of Apprendi in the federal system.
Commonwealth v. Verbeck (290 A.3d 260, 2023): Per curiam affirmance by an evenly divided Pennsylvania Supreme Court, with Justice Mundy’s dissent arguing prior ARD is analogous to a prior conviction and thus exempt from Apprendi scrutiny.
City of Los Angeles v. Patel (576 U.S. 409, 2015): Addressed facial Fourth Amendment challenges to warrantless searches statutes and clarified that “all applications” means “all actual applications” of the law.
Planned Parenthood v. Casey (505 U.S. 833, 1992): Demonstrated the proper focus in facial challenges is on those individuals to whom the statute actually applies.
Commonwealth v. Pownall (278 A.3d 885, 2022): Recognized facial challenges are “generally disfavored” and require showing no set of circumstances exists where the statute would be valid.
Commonwealth v. Wolfe (140 A.3d 651, 2016) & Commonwealth v. Hopkins (117 A.3d 247, 2015): Struck down sentencing statutes that allowed judge-only fact-finding by a preponderance of the evidence, in conflict with Alleyne.
Commonwealth v. King (234 A.3d 549, 2020) & Commonwealth v. Samuel (961 A.2d 57, 2008): Discussed the use—and limited scope—of special jury interrogatories in criminal trials.
Brady v. United States (397 U.S. 742, 1970), Blakely v. Washington (542 U.S. 296, 2004), Peretz v. United States (501 U.S. 923, 1991): Addressed the validity of waivers of constitutional rights, including jury trial rights.

Legal Reasoning

Justice Dougherty’s dissent centers on two doctrinal pillars:

Facial vs. As-Applied Challenge: Pennsylvania law distinguishes between as-applied challenges—which invalidate a statute only in its particular application—and facial challenges, which block a statute entirely when “no set of circumstances exists under which the statute would be valid.” (Pownall; City of Chicago v. Morales, 527 U.S. 41, 74 (1999)). Dougherty argues §3806 is unconstitutional as applied to Shifflett, but is valid in many other contexts.
Possible Constitutional Applications of §3806: Even accepting Apprendi’s applicability, §3806 can be salvaged in two scenarios:
- Jury Special Interrogatory: The jury hears only the new‐offense evidence, returns a verdict, and then—via a post‐verdict interrogatory—unanimously finds beyond a reasonable doubt the defendant previously accepted ARD. This procedure conforms to Apprendi and §3806’s directive that “the court shall calculate the number of prior offenses … at the time of sentencing.”
- Knowing, Voluntary Waiver: A defendant may waive Apprendi jury-trial rights at ARD acceptance, as authorized by Brady, Blakely, and Peretz. At least 19 Pennsylvania counties require such a waiver for ARD. No constitutional harm arises later when the enhanced sentencing provision is applied.

Because §3806 can be validly applied under these circumstances, Dougherty concludes that facial invalidation is incorrect. Where a statute has at least one constitutional application, it cannot be struck down in all its applications.

Impact

The majority’s decision to invalidate §3806 on its face carries profound practical and policy consequences:

District attorneys may cease offering ARD for first‐time DUI offenders, fearing no statutory enhancement if the defendant reoffends. This undermines the “bait” of mandatory minimums that incentivize rehabilitation.
First‐time offenders lose the opportunity to avoid a criminal conviction and record, increasing collateral consequences on employment, housing, and family life.
Courts lose an efficient diversion tool that conserves judicial resources, reduces litigation costs, and furthers public safety through monitored rehabilitation.

Historical experience under Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), shows that facial invalidations of ARD-enhancement provisions quickly lead to suspension of ARD programs by many counties.

Complex Concepts Simplified

ARD (Accelerated Rehabilitative Disposition): A pretrial diversion program allowing eligible first‐time offenders to complete treatment and supervision instead of facing conviction.
Apprendi Rule: Any fact (other than the fact of a prior conviction) that increases the penalty above the statutory maximum or triggers a mandatory minimum must be charged as an element and submitted to a jury, proved beyond a reasonable doubt.
Alleyne Principle: Clarifies that any fact increasing a mandatory minimum is an “element” of the offense, subject to Apprendi protections.
Facial vs. As-Applied Challenge: Facial challenges seek to invalidate a statute entirely, requiring proof that no lawful application exists; as-applied challenges target a statute’s application in a specific set of facts.
Special Interrogatory: A targeted jury question after the general verdict that allows fact‐finding on specific contested issues without exposing the jury to prejudicial evidence during the main trial.
Waiver of Constitutional Rights: Defendants may knowingly and voluntarily give up certain rights, including the right to jury determination of sentencing factors, so long as the waiver is intelligent and voluntary.

Conclusion

Commonwealth v. Shifflett reshapes Pennsylvania’s DUI sentencing landscape by barring any use of prior ARD as a sentencing enhancer absent jury fact-finding or waiver. In dissent, Justice Dougherty persuasively argues the majority’s facial invalidation of §3806 is both doctrinally unsound—because valid applications remain—and pragmatically harmful—because it threatens the statewide viability of ARD. The decision underscores the enduring tension between Sixth Amendment jury-trial rights and legislative efforts to incentivize rehabilitation through sentencing enhancements. Going forward, practitioners and lawmakers must consider whether procedural safeguards (special interrogatories, waivers) or statutory revisions can reconcile ARD’s rehabilitative promise with constitutional guarantees.