J-S46029-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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),



____________________________________________


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



____________________________________________


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




____________________________________________


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


____________________________________________


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.


____________________________________________


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



____________________________________________


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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