Com. v. Mikottis, M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
MATTHEW P. MIKOTTIS
Appellant No. 1991 MDA 2016
Appeal from the Judgment of Sentence November 22, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0003289-2015
BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*
CONCURRING MEMORANDUM BY BOWES, J.: FILED JUNE 01, 2018
I concur, as I agree with President Judge Emeritus Stevens that the
suppression claim is waived. However, I view the significance of the waiver
as pertaining to Appellant’s decision to forego suppression motions as part of
his plea bargain, which was negotiated based on then-existing law. I write
separately to express my view that Appellant’s claim is, in truth, an ineffective
assistance of counsel claim, and is therefore subject to the general rule that
such claims must be brought under the PCRA.
On May 4, 2016, Appellant entered a guilty plea to one count of driving
under the influence at the highest rate. Following his guilty plea, but before
sentencing, the United States Supreme Court issued Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016), holding that warrantless blood tests were
* Former Justice specially assigned to the Superior Court.
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not per se authorized as a search incident to arrest. 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). Appellant then sought
to withdraw his guilty plea so he could take advantage of Birchfield by filing
a suppression motion contesting the validity of his consensual blood draw. At
no time did he claim he was innocent. The trial court denied the request,
holding that Appellant waived any suppression issue by pleading guilty.
Pre-sentence motions to withdraw a guilty plea traditionally require a
claim of innocence. Herein, although Appellant does not frame his claim as
such, his attempt to withdraw sounds in ineffectiveness as the sole basis for
withdrawing his plea is that he wished to litigate the Birchfield issue.
However, Appellant could have pursued precisely the same suppression issue
when he pleaded guilty even if Birchfield was not then-pending.1 As we
explained in Commonwealth v. Hickman, 799 A.2d 136 (Pa.Super. 2002),
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1 The Supreme Court of the United States had occasion to decide Birchfield
because the attorneys in the consolidated cases preserved and pursued the
issues. Therefore, the notion that Appellant could not have similarly sought
suppression is objectively incorrect. Surely, pre-Birchfield an attorney might
think that the probability of succeeding on such a motion was quite low, but
that point speaks to the generic issue of retroactive application of new law.
Had Appellant elected to immediately proceed to sentencing, he clearly would
not be entitled to raise the suppression issue on appeal. See Commonwealth
v. Cabeza, 469 A.2d 146 (Pa. 1983) (application of new rule applies where
issue is properly preserved at all stages of litigation).
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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).
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.
Accordingly, Appellant’s claim is an allegation that his plea was
involuntary due to ineffective assistance of counsel. 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 motion to withdraw the plea and, concomitantly, our
ability to review that claim on direct review. By requiring Appellant to raise
this claim during collateral review, I view our decision as faithfully
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implementing the Supreme Court’s directive against creating exceptions to
the deferral rule.
I now address the learned Dissent’s thoughtful criticisms of this
analytical framework. Preliminarily, it appears that Judge Olson agrees the
instant claim sounds in ineffectiveness, writing:
At a minimum, Appellant and his counsel could have been aware
that the Supreme Court of the United States granted certiorari in
Birchfield five months prior to Appellant’s guilty plea.
Nonetheless, Appellant was not aware that the outcome of that
case would render his blood draw subject to challenge. Thus,
although Appellant should have waited to plead guilty until
Birchfield was decided, that does not mean the Birchfield
decision failed to provide a fair and just reason for Appellant to
seek withdrawal of his guilty plea.
Dissenting Memorandum, at 10-11 (citations and footnote omitted).
Respectfully, that is a longer way of saying “counsel was ineffective for
advising Appellant to accept the plea in lieu of pursuing a suppression motion
based on Birchfield.” The Dissent opts to characterize counsel’s omissions,
i.e. purported ineffectiveness, as constituting a fair and just reason to grant
withdrawal. However, applying the label of “fairness and justice” cannot avoid
the fact that Appellant’s underlying theory of relief is a claim of ineffective
assistance of counsel.
I now address the Dissent’s attempt to fit this case into existing case
law. Our Supreme Court observed in Commonwealth v. Carrasquillo, 115
A.3d 1284, 1292 (Pa. 2015), that “the proper inquiry on consideration of such
a withdrawal motion is whether the accused has made some colorable
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demonstration, under the circumstances, such that permitting withdrawal of
the plea would promote fairness and justice.” Id. at 1292. The Dissent views
the reference to “fairness and justice” as encompassing claims seeking to undo
a plea based solely upon deficient legal advice.
I recognize that the pertinent Rule of Criminal Procedure does not
expressly limit withdrawals to claims of innocence; instead, it simply provides:
(A) At any time before the imposition of sentence, the court may,
in its discretion, permit, upon motion of the defendant, or
direct, sua sponte, the withdrawal of a plea of guilty or nolo
contendere and the substitution of a plea of not guilty.
Pa.R.Crim.P. 591.
Carrasquillo set forth a standard to be applied for Rule 591 motions to
withdraw that raise innocence, and rejected the notion that a bare assertion
of innocence justifies withdrawal. “This case, in our view, illustrates why the
existing per se approach to innocence claims is unsatisfactory.” Id. at 1292
(emphasis added). Since Carrasquillo rejected a per se approach that
required a trial court to always grant an innocence claim, I find the Dissent’s
per se approach to claims that have absolutely nothing to do with innocence
untenable. In this regard, Carrasquillo did not hold that cases such as
Commonwealth v. Tennison, 969 A.2d 572, 578 (Pa.Super. 2009), which
held that an attempt to withdraw a guilty plea was properly denied as pre-
textual in that the defendant simply wished to delay the proceedings, were
incorrectly decided.
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The Dissent discusses Commonwealth v. Reider, 386 A.2d 559
(Pa.Super. 1978) (per curiam), in which the Court appeared to embrace
ineffectiveness as a basis for permitting withdrawal. Therein, the defendant
pled guilty after a psychiatrist determined that he was mentally competent to
stand trial. A later competency examination ordered by the trial court
revealed that the defendant possessed psychotic characteristics. Id. at 559.
This Court held that the trial court improperly denied the request to withdraw
the guilty plea:
Although the appellant and his attorney were aware of his past
history, the [first] report . . . apparently extinguished any hope of
an insanity defense. The second report, that was made after the
plea was accepted, did not conclude that appellant was legally
insane, but it did state he suffered from paranoia. We do not feel
that appellant's “fair and just” reason is a very substantial one
since he already was aware of the possibility of an insanity defense
from his prior history. However, when we balance this against
the second factor, the prejudice to the Commonwealth, we find
that the requested withdrawal should have been granted.
Id. at 560.
I agree that Reider implicitly concluded that ineffectiveness, i.e. the
failure to procure a favorable expert report at an earlier time, provided a “fair
and just” reason to permit withdrawal, which was balanced against prejudice
to the Commonwealth. However, Reider predates our Supreme Court’s line
of cases deferring ineffectiveness claims to collateral review. Therefore, I do
not agree that Reider is dispositive. Furthermore, Reider cited
Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973) for the proposition that
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requests to withdraw guilty pleas prior to sentencing should be liberally
allowed. However, Forbes was an innocence case: “Obviously, appellant, by
this assertion of innocence—so early in the proceedings—offered a ‘fair and
just’ reason for withdrawal of his plea.” Id. at 272 (emphasis added). See
Carrasquillo, supra (discussing Forbes).
The Dissent also discusses a more recent opinion from this Court,
Commonwealth v. Islas, 156 A.3d 1185, 1192 (Pa.Super. 2017), which held
that the trial court erred in denying a pre-sentence motion to withdraw a guilty
plea. This holding was predicated, in part, on counsel’s misadvice. However,
the case is distinguishable, as the ineffectiveness claim therein was a
subsidiary component of his actual innocence claim.
Islas' assertion of innocence, unlike that of the defendants in
Carrasquillo and [Commonwealth v. Blango, 150 A.3d 45
(Pa.Super. 2016)], was not “mere, bare, or non-colorable” but
instead was “at least plausible.” At the hearing on his motion to
withdraw, Islas testified that: he did not engage in the charged
conduct; he had maintained his innocence when interviewed by
law enforcement; had the conduct occurred as alleged, it would
have been witnessed by other campers and counselors in the cabin
at the time; the victim had a motive to fabricate the charges; the
victim had delayed in reporting the first incident; and Islas was of
good character, had no criminal record, and had never received a
similar complaint in the many years he had been working in the
field. Islas further testified that his new counsel had explained to
him, as prior counsel had not, his available defenses, including his
ability to call character witnesses on his behalf.
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Id. at 1191 (citations to transcript omitted).2 This foregoing quotation
illustrates that Islas sought withdrawal on innocence grounds, and his prior
counsel’s advice was but one of many reasons relied upon by Islas. Thus,
while Islas considered the ineffectiveness of counsel’s advice, i.e. the failure
to explain the right to call character witnesses, that fact was considered as
one component of an innocence assertion. Unlike Appellant herein, Islas
desired to proceed to trial and contest his guilt, not raise a suppression issue
that has nothing to do with guilt or innocence.
In sum, our precedents do not directly address whether an
ineffectiveness claim premised on a desire to pursue a Fourth Amendment
suppression remedy which was bolstered by a change in law constitutes a fair
and just reason to permit withdrawal. In this regard, I disagree with the
Dissent’s assumption that fairness and justice clearly require the trial court to
permit Appellant to withdraw his plea. My reasoning follows.
First, the Dissent adopts a per se rule, holding that Appellant was
absolutely entitled to withdraw his plea without an evidentiary hearing.
However, there is nothing in the record to indicate whether counsel considered
the possibility of filing a suppression motion in this case. By permitting
Appellant to withdraw his guilty plea without even establishing ineffectiveness
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2As reflected by the reference to new counsel, the motion to withdraw in Islas
did not assert counsel’s own ineffectiveness, unlike the situation herein.
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of counsel as described in Hickman, supra, the Dissent’s rule means that
defendants may always benefit from favorable changes in the law while
avoiding unfavorable outcomes. Herein, Appellant entered his plea prior to
Birchfield, and the Dissent does not acknowledge that the case could have
been decided the other way. 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).3 Obviously, Appellant would not have sought
withdrawal had Justice Thomas’s opinion carried the day. Viewed this way,
the pre-sentence motion to withdraw is effectively a sentence testing
mechanism: if the law changes in a way that is favorable to the defendant, he
may withdraw his plea; if not, he keeps his plea intact.4
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3 The Dissent, citing SCOTUSblog, states that United States Supreme Court
watchers predicted that Birchfield would result in a defendant-friendly
outcome. I do not dispute that point, but I question its relevance. If the
SCOTUSblog experts were uncertain of the outcome, does that mean relief
would not be automatically warranted? The Dissent’s rule, in my view, is
categorical: a favorable change in the law requires relief.
4 The Dissent states that Appellant “should have waited to plead guilty until
Birchfield was decided,” as any risk associated with the possibility of the
Commonwealth withdrawing a plea offer dwarfed the possible benefit of
raising Birchfield after that case was issued. That may be true, but it fails
to recognize that the Commonwealth is not obligated to consent to a
postponement designed to delay trial.
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On the other hand, had Appellant sought suppression from the start and
lost, he almost certainly would have ended up with a worse sentence 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. 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 the normal risks that accompanies a guilty
plea.”) (cleaned up). This point alone demonstrates the wisdom of rejecting
the Dissent’s per se approach.
Second, the Dissent’s application of fairness and justice in reality
manufactures retroactive application of Birchfield.5 However, even assuming
that the nebulous phrase “fairness and justice” justifies permitting Appellant
to benefit from Birchfield, the Dissent’s rule simply creates another type of
unfairness, as those individuals who were already on direct appeal when
Birchfield was decided surely cannot benefit from its ruling. Furthermore, if
a change in law constitutes a “fair and just” reason pre-sentencing, as the
Dissent posits, it is but a short jump to claiming a change in law satisfies the
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5 I refer to manufacturing issue preservation in the sense that, but for the
motion to withdraw, Appellant could not raise application of Birchfield on
direct appeal.
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“manifest injustice” standard applicable to post-sentencing motions to
withdraw. In short, the Dissent fails to explain why Appellant is entitled to
greater benefits than similarly-situated defendants.6
We can avoid this disparate treatment problem by simply requiring
these defendants to litigate their involuntary plea claims via an ineffective
assistance of counsel claim. Nothing we say today forecloses Appellant from
seeking relief, as he remains free to pursue his ineffectiveness claim through
the PCRA. See Commonwealth v. Orlando, 156 A.3d 1274, 1282 (Pa.
2017) (reviewing denial of PCRA relief based on claim that trial counsel
ineffectively advised a guilty plea). Indeed, pursuant to Holmes, supra,
Appellant could have immediately sought this same relief in a post-sentence
motion by waiving his right to direct appeal. Thus, our holding does not find
Appellant’s claim waived in the sense that he is forever barred from raising
his underlying ineffectiveness claim; rather, it is waived in the sense that he
waived his opportunity to seek suppression by accepting a plea based on
counsel’s advice. That consequence can only be undone, if at all, through a
proper ineffectiveness claim.
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6 The Dissent states that I have failed to recognize that different standards
apply at the post-sentencing and pre-sentencing stages. My point is not that
the same standard applies—it surely does not—but rather that if it is “unfair
and unjust” to deprive Appellant the benefit of a favorable change in law, it is
no less unjust or unfair to deny the same benefit to a defendant who raises
his claim post-sentencing, or on direct appeal. In those cases, the failure to
file a suppression motion precludes application of the new rule.
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Finally, I address the Dissent’s assertion that my analysis regarding
Appellant’s potential ineffectiveness claim “is fundamentally flawed.”
Dissenting Memorandum, at 9. What follows that conclusion is an explanation
for why that claim would doubtlessly fail, since counsel is not required to
anticipate changes in the law.
However, the exact same criticism lodged by the Dissent against my
analysis applies to the settled law that a PCRA petitioner must generally assert
PCRA counsel’s ineffectiveness in a timely PCRA petition, despite the fact it is
often impossible to do so. We state that PCRA petitioners must bring such
claims in a PCRA petition, even in cases where the one-year time period for
doing so has already expired. Just as those claims must be channeled through
the PCRA, so too must the instant allegation. Thus, whether Appellant could
ultimately achieve relief under the PCRA is distinct from the question of
whether the claim must be heard under its framework.
Second, I agree that achieving relief would be difficult, but I am not
persuaded that it is impossible. In Commonwealth v. Haines, 166 A.3d 449
(Pa.Super. 2017), we examined whether the trial court erred in denying a
post-verdict motion for arrest of judgment based on Birchfield, which was
decided the day before the verdict in Haines’s case. The trial court denied the
motion on the basis that “counsel should have known that Birchfield was
pending in the Supreme Court and raised the issue before trial.” Id. at 459
(citation to transcript omitted). Haines argued that his counsel was not
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ineffective, and asked this Court to grant relief on direct appeal. We concluded
that his argument was “best addressed through PCRA proceedings[.]” Id. at
n.14. With respect to the issue identified by Judge Olson, we observed:
We make no judgment here about whether counsel was ineffective
for failing to raise an issue then pending before the Supreme
Court. We note, however, that while “counsel cannot be held
ineffective for failing to anticipate a change in the
law[,]” Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 702
(2009), the issue of blood draws in DUI cases was before the
United States Supreme Court at the time Haines filed his omnibus
pre-trial motion. See Birchfield v. North Dakota, ––– U.S. –––
–, 136 S. Ct. 614, 193 L. Ed. 2d 494 (2015) (granting certiorari on
December 11, 2015). Thus, Haines' case does not fit into the
prototypical situation where counsel is charged with
ineffectiveness because he failed to consult the “crystal ball.” See,
e.g., Commonwealth v. Williams, 364 Pa.Super. 630, 528 A.2d
980, 982–83 (1987) (finding counsel not ineffective for failing to
anticipate United States Supreme Court's decision in Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)
and mount challenge to jury composition); but
cf. Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717,
719–20 (1977) (concluding that counsel was ineffective for failing
to object to witnesses' comments on defendant's silence despite
lack of binding authority where (1) issue was scheduled to be
reargued before the Pennsylvania Supreme Court, (2) several
federal courts had decided the issue favorably to defendant, and
(3) counsel showed unawareness of current state of Pennsylvania
law).
Id. at n.15. Thus, Haines recognizes the general principle that counsel is not
required to predict changes in the law but surmised that Haines may
nonetheless have a viable claim based on the pendency of Birchfield.
However, Haines does not discuss the case cited by the Dissent,
Commonwealth v. Hannibal, 156 A.3d 197, 231-32 (Pa. 2016). In
Hannibal, defense counsel did not ask the trial court to inform the jury that
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life imprisonment in Pennsylvania precludes the possibility of parole. Prior to
Hannibal’s trial, the United States Supreme Court heard argument in
Simmons v. South Carolina, 512 U.S. 154 (1994) (plurality). Simmons
ultimately held that in appropriate circumstances such an instruction is
required; however, the decision was not issued until after Hannibal was
convicted. Hannibal argued that trial counsel was ineffective for failing to
request the instruction because Simmons had been argued at the time of his
trial. Our Supreme Court disagreed, citing the familiar principle that counsel
cannot be deemed ineffective for failing to anticipate changes in the law.
The Dissent persuasively states that this case presents a similar
situation, since the United States Supreme Court had heard argument in
Birchfield at the time of Appellant’s plea. Accordingly, like the defendant in
Hannibal, any ineffectiveness claim premised on a failure to anticipate a
change in law based on a pending case before the United States Supreme
Court would fail.
However, I am not convinced that the present circumstances are akin
to Hannibal. In that case, our Supreme Court recognized that, until
Simmons was issued, a trial court had no authority to issue the requested
instruction. Id. at 231 (citing Commonwealth v. Travaglia, 792 A.2d 1261,
1265 (Pa.Super. 2002)). A failure to request a jury instruction necessarily
arises in the context of a trial, and a trial judge is at a loss to do anything but
deny the request even knowing that the law might soon change.
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In contrast, Appellant could have pursued the suppression motion based
on a Birchfield theory. True, the trial court could not have granted the
motion prior to Birchfield, but Appellant controlled the path of his litigation:
accept the favorable plea and waive the suppression claim, or litigate the
claim, proceed to trial, and gamble on a favorable change in law that would
result in relief on direct appeal.7 In the Hannibal situation, a trial court
obviously cannot issue a conditional instruction. I express no opinion on the
ultimate viability of that possible distinction or any other distinguishable factor
but simply recognize, like our published opinion in Haines, that these
particular circumstances do not necessarily preclude relief.
This case forces this Court to choose between authorizing trial courts to
litigate ineffectiveness claims prior to sentencing versus adhering to the
general rule of deferring such claims to collateral review. Absent clear
direction from our Supreme Court authorizing litigation of effectiveness claims
prior to sentencing, I believe that Appellant must litigate his theory as an
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7 The Dissent submits that no difference exists between these situations, as
in both cases “the trial court is bound by precedent to reach a certain result.”
Dissenting Memorandum, at 9. The Dissent therefore focuses only on what
would occur at the trial court level, whereas my analysis recognizes that, if
counsel had pursued the suppression motion, that claim would be preserved
for retroactive application on direct review. If, as the Dissent posits, the
writing was on the wall with respect to Birchfield, then it seems to me that
counsel could be ineffective for failing to anticipate that particular change in
law, as distinguished from failing to anticipate changes in law as a generic
proposition. See Haines, supra.
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ineffectiveness claim, regardless of how difficult that task may be. Therefore,
I concur.
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