Com. v. Kehr, II, J. , 180 A.3d 754 ( 2018 )

J-S26038-17
2018 PA Super 44COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY ALLEN KEHR, II :
:
Appellant : No. 1611 MDA 2016
Appeal from the Judgment of Sentence June 21, 2016
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001875-2016
BEFORE: BOWES, J., DUBOW, J., and FITZGERALD*, J.
OPINION BY BOWES, J.: FILED FEBRUARY 28, 2018
Jeffrey Allen Kehr, II appeals from the judgment of sentence imposed
following his conviction for one count of DUI. Appellant asserts that the trial
court erred in denying his timely post-sentence motion to withdraw his guilty
plea to enable him to take advantage of the United States Supreme Court
decision North Dakota v. Birchfield, 136 S. Ct. 2160 (2016). We affirm.
The facts are simple. On February 5, 2016, Pennsylvania State Police
Trooper Richard Daldo suspected Appellant of driving under the influence
during a routine traffic stop. Appellant consented to a blood draw, and was
subsequently charged with various DUI crimes. On June 20, 2016, he
entered into a negotiated guilty plea, and, the following day, was sentenced
to six months intermediate punishment. He did not file a motion seeking
suppression of the blood.
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* Former Justice specially assigned to the Superior Court.
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On June 23, 2016, the United States Supreme Court issued
Birchfield, which held that warrantless blood tests cannot be justified under
the search incident to arrest rationale, and, as a result, a driver may not be
informed they are subject to increased punishment in the event of refusal.
See Commonwealth v. Ennels, 167 A.3d 716, 724 (Pa.Super. 2017)
(“Birchfield makes plain that the police may not threaten enhanced
punishment for refusing a blood test in order to obtain consent[.]”)
(emphasis in original).
On June 29, 2016, trial counsel filed a post-sentence motion seeking
withdrawal of the plea based on a desire to pursue a suppression motion
pursuant to Birchfield. The trial court held a hearing and thereafter denied
the motion. Appellant filed a timely appeal, presenting the following issue
for our consideration:
The trial court erred when it denied Appellant's Post–Sentence
Motion to Withdraw Plea . . . denying his request constitutes a
manifest injustice because the evidence against him was
obtained in violation of the 4th Amendment of the United States
Constitution, and . . . the Birchfield decision makes Appellant's
plea unknowing and involuntary under the circumstances.
Appellant’s brief at 4.
We begin by setting forth our standard of review. In Commonwealth
v. Broaden, 980 A.d 124 (Pa.Super. 2009), we summarized the principles
governing post-sentence motions to withdraw pleas:
[P]ost-sentence motions for withdrawal are subject to higher
scrutiny since courts strive to discourage entry of guilty pleas as
sentence-testing devices. A defendant must demonstrate that
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manifest injustice would result if the court were to deny his post-
sentence motion to withdraw a guilty plea. Manifest injustice
may be established if the plea was not tendered knowingly,
intelligently, and voluntarily. In determining whether a plea is
valid, the court must examine the totality of circumstances
surrounding the plea. A deficient plea does not per se establish
prejudice on the order of manifest injustice.
Id. at 129 (citations omitted). “It is well-settled that the decision whether
to permit a defendant to withdraw a guilty plea is within the sound discretion
of the trial court.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa.Super.
2017) (applying abuse of discretion in post-sentencing context). The term
discretion
imports the exercise of judgment, wisdom and skill so as to
reach a dispassionate conclusion, and discretionary power can
only exist within the framework of the law, and is not exercised
for the purpose of giving effect to the will of the judges.
Discretion must be exercised on the foundation of reason, as
opposed to prejudice, personal motivations, caprice or arbitrary
action. Discretion is abused when the course pursued represents
not merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or
where the record shows that the action is a result of partiality,
prejudice, bias or ill will.
Commonwealth v. Shaffer, 712 A.2d 749, 751 (Pa. 1998) (citation
omitted).
We begin by examining the trial court’s rationale for denying the
motion.
In the present case, the plea was entered into voluntarily and
knowingly. A full and complete colloquy was conducted that
included the six mandatory inquiries set out by the Supreme
Court, and is included as a part of this record. Defendant was
aware of the nature of the offense and possible range of
sentences when he entered into a negotiated plea bargain.
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Instead of litigating the numerous pre-trial issues, including the
legality of the stop and arrest and the legality of the blood draw
and test results, then going to trial, Defendant chose instead to
accept the plea agreement the Commonwealth offered, for a
certain, known resolution of the case.
Trial Court Opinion, 1/11/17, at 6. Appellant attacks this conclusion by
asserting that his plea was involuntary due to a subsequent change in the
law.
In this instance, once the U.S. Supreme Court issued Birchfield,
a non-final judgment of sentence based on a plea due to an
invalid consent to a blood draw became unknowing and
involuntary. First, the charge to which Appellant plead[ed] was
no longer a possibility given the illegality of blood evidence
obtained based on invalid consents.
....
Second, because of Birchfield, Appellant no longer knew the
permissible range of sentences in order to make an informed
decision of whether to enter a plea or elect his constitutionally
protected right to a trial. . . . It defies reality to think that if
Kehr's plea hearing had been scheduled for June 24, 2016 that
he would not have entered a plea to the Tier I general
impairment subsection rather than Tier III combined
alcohol/drug subsection.
Appellant’s brief at 10-11.
Thus, Appellant assumes, with little discussion, that there is “sufficient
cause” on the order of “manifest injustice” inherent in a change of law, such
that a trial court is required to grant a post-sentence motion seeking to
undo a guilty plea. We disagree.
Preliminary, we do not accept Appellant’s fundamental position that his
plea on June 20, 2016, retroactively became unknowing and involuntary due
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to Birchfield. The question is whether his plea was knowing and voluntary,
an inquiry that must be examined in light of what was known and said on
that day.1 That point is demonstrated by the unremarkable observation that
Birchfield could have been decided in a manner unfavorable to criminal
defendants. See Birchfield, supra at 2198 (“The better (and far simpler)
way to resolve these cases is by applying the per se rule that . . . both
warrantless breath and blood tests are constitutional.”) (Thomas, J.,
concurring and dissenting). According to Appellant, his plea would have
been voluntary if Justice Thomas’s view had prevailed, yet somehow became
involuntary when the majority ruled as it did in Birchfield. That approach is
untenable.
Such an argument also ignores the settled principle that a change in
law applies only to cases where the issue was properly preserved. We note
that following submission of the briefs in these cases, we decided
Commonwealth v. Moyer, 171 A.3d 849 (Pa.Super. 2017), which dealt
with a similar issue. Therein, Moyer proceeded to trial on, inter alia, DUI
charges. Like Appellant, Moyer did not file a suppression motion challenging
the admissibility of the evidence derived from a blood draw. Following trial,
Moyer was sentenced on June 21, 2016, and, on July 13, 2016, filed an
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1 As an absurd example, no one would suggest that a defendant’s decision to
reject a plea offer in favor of a jury trial “became” involuntary once the
defendant lost and received a harsher sentence than offered by the plea.
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untimely post-sentence motion “asking the trial court to vacate her DUI
conviction under Birchfield.” Id. at 852. The motion validly tolled the
appeal period. Id. (citing Commonwealth v. Dreves, 839 A.2d 1122(Pa.Super. 2003) (en banc)). We held that the trial court did not err in
denying the motion:
Next, Appellant argues that the trial court erred in declining to
vacate her DUI conviction under Birchfield. As explained above,
the United States Supreme Court handed down Birchfield two
days after Appellant's sentence. Appellant never challenged the
warrantless blood draw during trial, and did not raise any issue
under Birchfield until her nunc pro tunc post-sentence motion.
In Pennsylvania, it has long been the rule that criminal
defendants are not entitled to retroactive application of a new
constitutional rule unless they raise and preserve the issue
during trial. Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.
Super. 2014) (en banc), appeal denied, 632 Pa. 693, 121 A.3d
496 (2014). The Newman Court relied on Commonwealth v.
Cabeza, 503 Pa. 228, 469 A.2d 146, 148 (1983). There, the
Supreme Court wrote:
[W]here an appellate decision overrules prior law
and announces a new principle, unless the decision
specifically declares the ruling to be prospective only,
the new rule is to be applied retroactively to cases
where the issue in question is properly preserved at
all stages of adjudication up to and including any
direct appeal.
Id. (emphasis added). Instantly, Appellant failed to challenge
the warrantless blood draw at any stage of the litigation prior to
her nunc pro tunc post-sentence motion. Thus, she is not
entitled to retroactive application of Birchfield.
Appellant argues that she should not have been required to
anticipate the United States Supreme Court's Birchfield opinion.
The same could be said, however, in nearly every case in which
a defendant is denied retroactive application of a new
constitutional principle. The rule permitting retroactive
application was created for the benefit of defendants who raised
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and preserved the issue in question and in whose case the issue
remained pending while a higher court decided the issue in a
similar case.
Id. at 854–55.
Moyer does not directly control, as that case concerned a post-
sentence motion seeking to vacate the conviction, whereas here Appellant
seeks to undo his plea. In the former context, the necessity of filing a
suppression motion is clear, as the question on appeal would be whether the
suppression court correctly applied the law regarding the admissibility of the
blood evidence. Compare Commonwealth v. Evans, 153 A.3d 323 (Pa.
Super. 2016) (remanding for evaluation of the validity of the defendant's
consent). Nevertheless, the logic employed in Moyer mandates the same
outcome.
Returning to Appellant’s argument, it is beyond question that
Birchfield represented a clear change in the law. Where Appellant’s
argument fails is in explaining why a favorable change in the law constitutes
“manifest injustice” such that the defendant must be given an opportunity
to, in effect, manufacture retroactive application of a new rule. As we noted
in Moyer, the “rule permitting retroactive application was created for the
benefit of defendants who raised and preserved the issue in question and in
whose case the issue remained pending while a higher court decided the
issue in a similar case.” Moyer, supra at 855. Simply put, there is little
distinction between defendants in Appellant’s position and defendants whose
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cases were already on appeal when Birchfield was announced. Clearly, the
latter class of individuals are not entitled to retroactive application of
Birchfield.2
Speaking to this point, we firmly disagree with Appellant’s claim that
he could not have raised the Birchfield issue until the case was decided:
Trial counsel raised the Birchfield issue at the earliest possible
time i[t] could have been raised. . . . The Birchfield decision
first impacted Kehr's case within the deadline to file a post-
sentence motion to withdraw his plea, and before Appellant's
Judgment of Sentence became final. This was the earliest this
issue could have been raised by trial counsel.
Appellant’s brief at 12. That assertion is objectively incorrect. Appellant
could have pursued his suppression issue even if Birchfield was not then-
pending.3
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2 Similarly, while Birchfield issues may raise a question regarding the
legality of sentence, that principle applies only if the defendant received an
increased punishment due to a refusal. See Commonwealth v. Giron, 155
A.3d 635, 639 (Pa.Super. 2017) (“Accordingly, we must determine if
Appellant received criminal penalties for his refusal to submit to a
warrantless blood test. If he did, his sentence was illegal.”) (footnote
omitted). In this case, where Appellant did not refuse and did not seek
suppression of the blood evidence, there is no illegality to correct.
Furthermore, assuming arguendo that Birchfield rendered Appellant’s
consent involuntary, then the blood evidence must be suppressed and we
would be required to grant a new trial, not modify his sentence. Whatever
the contours of the illegality of sentence construct, it limits this Court to
correcting defects regarding sentences, not convictions.
3 The Supreme Court of the United States had occasion to decide Birchfield
because the attorneys in the consolidated cases preserved and pursued the
issues. Surely, pre-Birchfield, an attorney might think that the probability
(Footnote Continued Next Page)
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More importantly, Appellant overlooks the role of trial counsel in this
situation. In truth, Appellant sought to undo his guilty plea on a theory of
ineffective assistance of counsel; to wit, counsel ineffectively advised entry
of the pleas due to the forthcoming, and potentially favorable, Birchfield
decision. That claim fails to account for the fact that Appellant can
confidently assert that he should have filed a Birchfield motion only
through the lens of hindsight. Had the case come out the other way, there
is no doubt that Appellant would happily keep his plea on the books.
At the end of the day, Appellant’s real complaint is that his counsel
ineffectively advised that he accept the plea due to the possibility of a
favorable outcome in the then-pending Birchfield decision.4 However, as
we explained in Commonwealth v. Hickman, 799 A.2d 136 (Pa.Super.
2002), an attempt to establish that a plea was unknowing or involuntary due
to deficient legal advice sounds in ineffectiveness.
A criminal defendant has the right to effective counsel during a
plea process as well as during a trial. Hill v. Lockhart, 474 U.S.
52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Allegations of
ineffectiveness in connection with the entry of a guilty plea will
serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea.
Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999).
(Footnote Continued) _______________________
of succeeding on such a motion was quite low, but that point speaks to the
generic issue of retroactive application of new law. It has nothing to do with
whether or not Appellant could have made the claim.
4There is a further problem with the instant motion: Trial counsel could not
assert his own ineffectiveness.
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Where the defendant enters his plea on the advice of counsel,
“the voluntariness of the plea depends on whether counsel's
advice ‘was within the range of competence demanded of
attorneys in criminal cases.’” Hill, 474 U.S. at 56, 106 S.Ct. 366,
88 L.Ed.2d 203 (quoting McMann v. Richardson, 397 U.S. 759,
771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).
Id. at 141.
Appellant’s claim is indistinguishable from an allegation that his plea
was involuntarily entered due to the ineffective assistance of plea counsel.
Therefore, the trial court correctly held that the plea was not involuntary or
unknowing, as Appellant freely gave up his opportunity to file a suppression
motion in exchange for the negotiated guilty plea. The question of whether
that choice was knowing and voluntary in light of counsel’s advice is a
question that must be raised via an ineffective assistance of counsel claim.
In this regard, we note that in Commonwealth v. Holmes, 79 A.3d
562 (Pa. 2013), our Supreme Court reiterated its preference that claims
pertaining to ineffectiveness be deferred to PCRA review. “By way of
summary, we hold that [the] general rule of deferral to PCRA review remains
the pertinent law on the appropriate timing for review of claims of ineffective
assistance of counsel; we disapprove of expansions of the exception to that
rule[.]” Id. at 563.
This stated preference poses an impediment to the trial court’s ability
to entertain the instant motions to withdraw the pleas, and, concomitantly,
our ability to review those decisions on direct review. Furthermore,
Appellant urges the adoption of a per se rule, whereby a trial court is
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required to permit a defendant to withdraw a plea post-sentencing on the
basis of a change of law. The effect of such a rule would permit a defendant
to withdraw his guilty plea without establishing ineffectiveness of counsel as
described in Hickman, supra.
Such a proposed rule means that criminal defendants may always
benefit from favorable changes in the law while completely avoiding
unfavorable outcomes. Appellant accepted his plea prior to Birchfield;
generally speaking, the possibility that circumstances might change after the
negotiation concluded is a risk that accompanies any bargain. Had Appellant
sought suppression from the start and lost, he may have ended up with a
worse sentence than offered by the plea if the United States Supreme Court
had ultimately decided Birchfield in an unfavorable manner. The mitigation
of risk through foregoing suppression motions is part and parcel of the plea
process.5 See United States v. Johnson, 410 F.3d 137, 153 (4th Cir.
2005) (“A plea agreement, like any contract, allocates risk. And the
possibility of a favorable change in the law occurring after a plea is one of
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5 It is only with the benefit of hindsight that we can say counsel erred in
failing to raise and litigate the Birchfield issue. Suppose that counsel had
advised Appellant to challenge the evidence by guaranteeing that Birchfield
would result in a favorable ruling, but Justice Thomas’s view prevailed. Is
there any doubt that we would say counsel was ineffective for promising a
change in the law?
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the normal risks that accompanies a guilty plea.”) (cleaned up).6 We agree
with that proposition. Accordingly, the trial court did not abuse its discretion
in declining to permit a post-sentence withdrawal of guilty pleas on the basis
of a change in law.
Judgment of sentence affirmed.
Justice Fitzgerald did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/18
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6 “Cleaned up” is a new parenthetical designed to “tell readers that they
have removed extraneous material for readability and guarantee that
nothing removed was important.” See Metzler, Jack, Cleaning Up
Quotations (March 17, 2017). Journal of Appellate Practice and Process,
2018, Forthcoming. Available at http://dx.doi.org/10.2139/ssrn.2935374.
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