J-S62004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellee

                        v.

    JOHN THOMAS DRESCHER

                             Appellant                   No. 1948 MDA 2016


        Appeal from the Judgment of Sentence Entered October 18, 2016
             In the Court of Common Pleas of Cumberland County
                Criminal Division at No: CP-21-CR-0002676-2015


BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED DECEMBER 21, 2017

        Appellant John Thomas Drescher appeals from the October 18, 2016,

judgment of sentence entered in the Court of Common Pleas of Cumberland

County (“trial court”), following his jury convictions for riding his bicycle under

the influence of alcohol (“DUI”) in violation of Section 3802(a)(1) of the

Vehicle Code, 75 Pa.C.S.A. § 3802(a)(1). Upon review, we vacate and remand

for resentencing.

        The facts and procedural history underlying this case are undisputed.

As recounted by the trial court:

               Late at night on June 2, 2015, Officer Jory C. Harlan initiated
        a traffic stop after witnessing [Appellant], on a bicycle without
        visible reflectors or red lights, ride past the officer’s parked
        vehicle.    Immediately upon approaching [Appellant], Officer
        Harlan detected the strong odor of alcohol and noted that
        [Appellant] appeared visibly intoxicated and had both slurred
        speech and difficulty standing. During the course of the stop,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S62004-17


       [Appellant] admitted to having consumed multiple alcoholic
       beverages. [Appellant] failed the field sobriety tests administered
       by Officer Harlan, and was arrested for DUI. Upon being brought
       to the police station and being read the refusal warnings contained
       within Pennsylvania’s DL-26 form, [Appellant] refused to provide
       a sample of his blood. [Appellant] was charged with both DUI-
       General Impairment (3rd or subsequent) and DUI-General
       Impairment with Refusal (3rd or subsequent).

            Following a jury trial on March 22, 2016, [Appellant] was
       found guilty on both counts and was ordered to appear for
       sentencing on May 24, 2016. [Appellant] failed to appear for
       sentencing on May 24, 2016, and a bench warrant was issued.
       [Appellant] was subsequently arrested on the bench warrant[.]

Trial Court Opinion, 1/6/17, 1-2. On July 29, 2016, Appellant filed a “post-

trial motion,” arguing that it would be illegal under Birchfield v. North

Dakota, 136 S. Ct. 2160 (2016), which was issued on June 23, 2016, for the

trial court to impose upon him enhanced penalties for his refusal to submit to

a blood draw. On October 18, 2016, the trial court sentenced Appellant to,

inter alia, one to five years’ imprisonment for DUI-general impairment (with

refusal).   On the same day, the trial court denied Appellant’s “post-trial

motion,” which the trial court treated as a post-sentence motion. Appellant

timely appealed. Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a)

opinion.

       On appeal,1 Appellant argues only, and the Commonwealth agrees, that

the trial court erred as a matter of law under Birchfield in imposing upon him

enhanced penalties for his refusal to provide a blood sample.

____________________________________________


1 Because Appellant’s claim implicates the legality of his sentence, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. 2014).

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J-S62004-17



      In Birchfield, the United States Supreme Court held that criminalization

of a suspect’s refusal to consent to a warrantless blood test violates the Fourth

Amendment to the United States Constitution. Birchfield, 136 S. Ct. at 2186.

Recently, we concluded that the imposition of enhanced criminal penalties for

refusing to provide a blood sample is constitutionally invalid.             See

Commonwealth v. Giron, 155 A.3d 635, 639-40 (Pa. Super. 2017) (vacating

a sentence that included increased criminal penalties based on a defendant’s

refusal to consent to a blood test).

      Instantly, as noted above, it is undisputed that Appellant was subjected

to enhanced penalties for his refusal to provide a blood sample. Appellant was

sentenced to one to five years’ imprisonment for DUI-general impairment

(with refusal). Thus, consistent with Birchfield and Giron, we agree with

Appellant and the Commonwealth that Appellant’s sentence here is illegal.

Accordingly, we vacate Appellant’s judgment of sentence and remand this

matter to the trial court for resentencing.

      Judgment of sentence vacated.           Case remanded.         Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017


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