Introduction

On May 30, 2025, the Pennsylvania Supreme Court issued a landmark decision in Commonwealth v. Shifflett, holding that it is unconstitutional to treat a defendant’s prior ARD (Accelerated Rehabilitative Disposition) for DUI as a prior offense for the purpose of sentencing enhancement. The ruling invalidates part of 75 Pa.C.S. § 3806 and reinforces constitutional protections under Alleyne v. United States and Apprendi v. New Jersey. For criminal defense practitioners, DUI attorneys, and sentencing specialists, this opinion marks a significant procedural and constitutional clarification.

 

Background and Procedural Posture

George Thomas Shifflett was charged with DUI in 2022. He had previously completed ARD for a 2012 DUI offense. Under 75 Pa.C.S. § 3806, which defines “prior offense” to include ARD, the Commonwealth sought to sentence him as a repeat offender. The trial court rejected this, holding that enhancing a sentence based on ARD violated Alleyne, and sentenced Shifflett as a first-time DUI offender.

 

On appeal, the Superior Court reversed, citing Commonwealth v. Richards and Commonwealth v. Moroz, which upheld the use of ARD for enhancements. However, the Pennsylvania Supreme Court granted review and ultimately sided with the trial court.

 

The Supreme Court’s Holding

The Court held that:

 

  • Under Alleyne and Apprendi, any fact that increases a mandatory minimum sentence must be found by a jury beyond a reasonable doubt.
  • ARD is not a conviction; it does not involve a guilty plea, trial, or an adjudication of guilt.
  • ARD thus does not fall within the Almendarez-Torres exception for prior convictions that may be used without jury findings.
  • Section 3806 is facially unconstitutional to the extent it treats ARD as a “prior offense.”

 

The Court severed the ARD provision from the statute, leaving the rest intact.

 

Understanding the Almendarez-Torres Exception

By attempting to treat ARD as a “prior conviction,” the statute stretched Almendarez-Torres beyond its constitutional breaking point. The Court’s opinion in Shifflett draws a bright line: without the procedural safeguards of trial or plea, ARD cannot be used to justify an enhanced sentence.

 

Legal Reasoning

The opinion underscores that ARD is a diversionary program and does not constitute a criminal conviction. The Court reiterated that enhancing a sentence based on a fact not found by a jury or admitted by the defendant violates both the Sixth and Fourteenth Amendments. The decision also cited Commonwealth v. Chichkin and Commonwealth v. Verbeck as part of the evolving legal backdrop rejecting ARD as a conviction equivalent.

 

Facial Challenge and Severability

Importantly, the Court accepted a facial challenge to Section 3806—not just an as-applied one. This broad ruling means the statute’s language authorizing the use of ARD in sentencing enhancement is invalid across all cases, not just Shifflett’s.

 

The unconstitutional portion was severed, preserving the functionality of the remaining DUI sentencing structure under Pennsylvania law.

 

Practical Implications for Practitioners

For defense attorneys, the implications are immediate and significant:

 

  • No ARD Use in Enhancements: Prosecutors cannot treat ARD as a prior offense for mandatory DUI penalties unless the fact is found by a jury or admitted under strict procedural safeguards.
  • Retroactive Review: Cases pending sentencing or on direct appeal where ARD was used may be eligible for reconsideration.
  • Sentencing Advocacy: Defense counsel should challenge enhancements based solely on prior ARD placements.
  • Client Advising: Lawyers should advise clients that ARD now carries no future sentencing exposure under current law.

 

Conclusion

Commonwealth v. Shifflett narrows the scope of sentencing enhancements under Pennsylvania’s DUI statutes and strengthens procedural due process protections. For lawyers, it is a sharp reminder that constitutional doctrine—not statutory drafting—sets the outer bounds of sentencing authority in the Commonwealth.

 

About the Author

Ryan A. Mergl, JD, is a former prosecutor and veteran trial lawyer with nearly 20 years of courtroom experience across Pennsylvania and U.S. federal courts. He represents clients in criminal defense, personal injury, and business litigation. Mergl has been recognized as a Super Lawyers Rising Star, one of Pennsylvania’s Top 100 Criminal Defense Attorneys, and a Pittsburgh Magazine “40 Under 40” honoree.

 

Outside the courtroom, Mergl is a nationally certified Pro Board firefighter with over two decades of service, trained in interior firefighting, hazmat response, search and rescue diving, and incident command.

 

He is the author of Mergl’s Mandatum—a weekly legal directive grounded in doctrine and sharpened by decades in the courtroom. The series delivers clear, concise insight on the issues shaping today’s legal landscape—with authority earned through practice, not theory.

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United States Supreme Court Cases:

  1. Alleyne v. United States, 570 U.S. 99 (2013)

  2. Apprendi v. New Jersey, 530 U.S. 466 (2000)

  3. Almendarez-Torres v. United States, 523 U.S. 224 (1998) 

Pennsylvania Cases:

  1. Commonwealth v. Shifflett, No. J-75-2024, slip op. (Pa. May 30, 2025)

  2. Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. Ct. 2022)

  3. Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. Ct. 2022)

  4. Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. Ct. 2020)

  5. Commonwealth v. Verbeck, 290 A.3d 260 (Pa. 2023) (per curiam)