J-S28041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   N THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MARIA ALANA MCELROY                      :
                                          :
                   Appellant              :       No. 1811 MDA 2017

         Appeal from the Judgment of Sentence October 19, 2017
             in the Court of Common Pleas of Luzerne County,
           Criminal Division at No(s): CP-40-CR-0000909-2017

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:

     Maria Alana McElroy (“McElroy”) appeals from the judgment of sentence

entered following her guilty plea to driving under the influence of alcohol

(DUI)-highest rate of alcohol (third offense). See 75 Pa.C.S.A. § 3802(c).

We affirm.

     The guilty plea colloquy is not part of the certified record. The Affidavit

of probable cause indicates that on November 19, 2016, at about 3:00 a.m.,

Dupont Police Officer Cassandra Marie Kudzinowski (“Officer Kudzinowski”)

observed McElroy drive her vehicle the wrong way on a one-way road.

Affidavit of Probable Cause (Officer Kudzinowski), 12/30/16, at 1.        After

stopping McElroy’s vehicle, Officer Kudzinowski noticed that McElroy’s eyes

were bloodshot, and her speech was slurred.       Id.   When asked, McElroy

indicated that she had traveled from a bar in Scranton.         Id.   At Officer

Kudzinowski’s request, McElroy agreed to take a Preliminary Breath Test
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(“PBT”), which showed a .16% level of alcohol on McElroy’s breath.         Id.

Officer Kudzinowski asked if McElroy would go to Geisinger Hospital and give

blood for an alcohol test, and McElroy replied “yes.” Id. At the request of

Officer Kudzinowski, McElroy contacted friends to retrieve her vehicle. Id.

Officer Kudzinowski asked McElroy for her keys, and advised McElroy that she

could wait for her friends in McElroy’s vehicle. Id. As McElroy reached for her

purse containing the keys, Officer Kudzinowski observed a box of alcohol on

the front seat.     Id.   As Officer Kudzinowski bent to retrieve the box, she

observed drug paraphernalia on the front passenger seat.            Searching

McElroy’s vehicle, Officer Kudzinowski discovered additional paraphernalia, as

well as a small plastic bag containing marijuana. Id.

       At the hospital, Officer Kudzinowski read McElroy the O’Connell

warnings,1 indicating increased criminal penalties for refusing to consent to a

blood draw. Id. at 2. McElroy signed the form and submitted to blood testing.

Id. The test revealed McElroy’s blood alcohol content to be .179%. Id.




____________________________________________


1 “O’Connell warnings” refer to the obligation of police officers to inform
motorists, of whom the officer requests chemical testing, that the Miranda
rights are inapplicable to such tests under the Pennsylvania Implied Consent
Law. See Commonwealth, Dep’t of Transp. v. O’Connell, 555 A.2d 873
(Pa. 1989). Critical to this case, the officer informed McElroy that she would
suffer legal consequences if she refused her consent to the blood draw.




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        McElroy subsequently was charged with two counts each of DUI-highest

rate of alcohol and DUI-general impairment,2 and one count each of driving

the wrong way on a one-way street,3 possession of a small amount of

marijuana4 and possession of drug paraphernalia.5          On August 2, 2017,

McElroy entered a negotiated guilty plea to the charge of DUI-highest rate of

alcohol (third offense), in exchange for a recommended sentence of 1-2 years

of incarceration, to be served in house arrest.      Thereafter, the trial court

sentenced McElroy to 1-2 years in jail, after which McElroy filed the instant,

timely appeal,6 followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

        McElroy presents the following claim for our review:

        Was [] McElroy sentenced illegally, by being sentenced under the
        highest tier of the DUI statute[,] after being read implied consent
        warnings which were found unconstitutional in Birchfield [v.
        North Dakota, 136 S. Ct. 2160 (2016)], a United States Supreme
        Court decision which invalidated Pennsylvania’s implied consent
        contained in DL-26B[?]
____________________________________________


2   75 Pa.C.S.A. § 3802(a)(1).

3   Id. § 3308(b).

4   75 P.S. § 780-113(a)(31)(i).

5   Id. § 780-113(a)(32).

6 The 30-day time period for McElroy to file her direct appeal expired on
Saturday, November 18, 2017. McElroy filed her Notice of Appeal on Monday,
November 20, 2017, the first business day following the expiration of the
appeal period. Accordingly, McElroy’s appeal was timely filed. See 1
Pa.C.S.A. § 908 (“Computation of time”).



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Brief for Appellant at 5.

       McElroy contends that her sentence for DUI-highest rate of alcohol is

illegal, as it relied upon a blood draw that was the result of the O’Connell

warnings, which were declared unconstitutional by the United States Supreme

Court in Birchfield.7 Id. at 9. McElroy points out that the police obtained no

warrant for a blood draw, and that her consent to the blood draw was the

direct result of the threat of greater jail time should she not consent to the

blood draw. Id. According to McElroy, her sentence was based on “something

it could not have been based upon, on proof which was legally unavailable to

the trial court.” Id. at 10.

       This Court has summarized the holding in Birchfield, and its application

to Pennsylvania’s implied consent statutes, as follows:

       In Birchfield, the United States Supreme Court recognized that
       “[t]here must be a limit to the consequences to which motorists
       may be deemed to have consented by virtue of a decision to drive
       on public roads.” Birchfield, 136 S. Ct. at 2185. Of particular
       significance, Birchfield held that “motorists cannot be deemed to
       have consented to submit to a blood test on pain of committing a
       criminal offense.” Id. at … 2186. Accordingly, this Court has
       recognized that Pennsylvania’s implied consent scheme was
       unconstitutional insofar as it threatened to impose enhanced
       criminal penalties for the refusal to submit to a blood test.
       Commonwealth v. Ennels, 167 A.3d 716, 724 (Pa. Super.
       2017), reargument denied (Sept. 19, 2017) (noting that
       “implied consent to a blood test cannot lawfully be based on the


____________________________________________


7 “[A]n appellant may raise legality of sentencing claims for the first time on
direct appeal.” Commonwealth v. Lankford, 164 A.3d 1250, 1252 n.5 (Pa.
Super. 2017).

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      threat of such enhanced penalties”); Commonwealth v. Evans,
      153 A.3d 323, 330-31 (Pa. Super. 2016).

Commonwealth v. Kurtz, 172 A.3d 1153, 1157 (Pa. Super. 2017).

      Our review of the record discloses that McElroy did not dispute the

admissibility of the blood test results, or the validity of her consent to undergo

blood testing, at any point prior to filing her Notice of Appeal; the first time

she raised the issue was in her Pa.R.A.P 1925(b) Concise Statement.

Furthermore, McElroy pled guilty to the DUI charge in question. Thus, McElroy

has waived any challenge to the admissibility of her blood test results based

upon Birchfield. See, e.g., Commonwealth v. Singleton, 169 A.3d 79, 81

(Pa. Super. 2017) (stating that “a plea of guilty constitutes a waiver of all

non[-]jurisdictional defects and defenses[,] and waives the right to challenge

anything but the legality of the sentence and the validity of the plea.”)

(internal quotation marks omitted).

      McElroy attempts to avoid waiver by casting her Birchfield claim as a

challenge to the legality of her sentence. As set forth above, McElroy contends

that her sentence was based on “something it could not have been based

upon, on proof which was legally unavailable to the trial court.”        Brief for

Appellant at 10.

      This   Court   has   rejected   a   similar   argument,   explaining   that

“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.      In this case, where [the defendant] did not

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refuse and did not seek suppression of the blood evidence, there is no illegality

to correct.” Commonwealth v. Kehr, 180 A.3d 754, 759 n.2 (Pa. Super.

2018) (citation omitted).

       Here, McElroy did not receive an increased punishment due to a refusal

to submit to chemical testing, nor did she seek suppression of her blood test

results. Accordingly, McElroy’s sentence is not rendered illegal by Birchfield.

See id. Consequently, we cannot grant McElroy relief on this claim.

       McElroy also asserts that, because her sentence is illegal, her plea was

involuntary, because she was not advised that “the law prohibited the

introduction of her blood test results, and that the sentence being offered was

above the range of those offered for a general impairment violation of the DUI

statute.” Brief for Appellant at 11. McElroy argues that the trial court had the

obligation to inquire into the facts surrounding the plea, including the blood

draw forming the basis of her plea. Id. According to McElroy, “a plea to the

highest tier [was] unknowing, unintelligent, and probably involuntary.”8 Id.



____________________________________________



8McElroy also argues that there was a chance to suppress significant evidence
and her plea counsel rendered ineffective assistance for not filing a pre-trial
suppression motion. Brief for Appellant at 11. We decline to address
McElroy’s ineffectiveness claim without prejudice for her to raise it in post-
conviction collateral proceedings. See Commonwealth v. Woeber, 174
A.3d 1096, 1109 n.16 (Pa. Super. 2017) (recognizing that, as a general rule,
a defendant should wait to raise claims of ineffective assistance of trial counsel
until collateral review). Such claims are within the purview of the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


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      The trial court and the Commonwealth agree with McElroy’s assertion.

See Brief for the Commonwealth at 3 (stating that “McElroy appears to be

correct that the blood draw that provided the factual basis for her plea and

sentence under 3802(c) … would have been suppressed under Birchfield v.

North Dakota.”); Trial Court Opinion, 1/25/18, at 2 (stating that “McElroy[]

should have been [s]entenced pursuant to 3802[(A)(1)], 3rd offense, resulting

in a sentence of 10 days to 2 years.”).

      Our review of the record discloses that McElroy did not raise this claim

by filing a post-sentence motion.

      [A] request to withdraw a guilty plea on the grounds that it was
      involuntary is one of the claims that must be raised by motion in
      the trial court in order to be reviewed on direct appeal. ...
      Moreover, for any claim that was required to be preserved, this
      Court cannot review a legal theory in support of that claim unless
      that particular legal theory was presented to the trial court….

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citations

omitted). Thus, the claim is not preserved for our review.

      Even if McElroy had preserved this claim, it is not clear, based upon the

record before us, whether McElroy would be entitled to relief. In the Affidavit

of Probable Cause, Officer Kudzinowski stated that at the scene of the vehicle

stop, she “asked [McElroy] if [McElroy] would go to Geisenger Hospital with

[her] and give blood for an alcohol test. She said yes.” Affidavit of Probable

Cause (Officer Kudzinowski), 12/30/16, at 1.      Officer Kudzinowski further

stated that “[m]yself and [McElroy] arrived at the hospital at approximately

03:50 hrs. I then read her the chemical testing warnings (DL-26B)[,] which

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she signed agreeing to submit a sample of blood, which she did so at

approximately 04:01 hrs.” Id. at 1-2.

      In Commonwealth v. Haines, 168 A.3d 231 (Pa. Super. 2017), this

Court addressed a situation in which it was unclear as to whether the

defendant had consented to the blood test before or after having been read

the DL-26 form, which improperly threatened criminal penalties for refusal to

submit to the blood test, in violation of Birchfield and its progeny. This Court

explained that,

      [i]f [the defendant] validly consented before being informed that
      he faced enhanced criminal penalties for failure to [submit to a
      blood draw], then his consent would not be tainted by the warning
      and the blood test results would be admissible. If, however, he
      did not consent until after [the officer] informed him that he would
      face enhanced criminal penalties if he refused to consent, then the
      trial court did not necessarily err in granting his motion to
      suppress the test results.

Haines, 168 A.3d at 236 (emphasis omitted).

      Here, as in Haines, the trial court’s Opinion does not address the

important temporal distinction between the O’Connell warning and McElroy’s

consent to the blood draw. The trial court states instead that “[a] review of

the [A]ffidavit of [P]robable [C]ause reflects that [McElroy] was arrested on

November 19, 2016, and a blood draw was completed on that date.” Trial

Court Opinion, 1/25/18, at 2.     However, the Affidavit of Probable Cause

indicates that McElroy consented to the blood draw before being wrongfully

informed of increased penalties for refusing the blood draw.        Affidavit of

Probable Cause (Officer Kudzinowski), 12/30/16, at 1. By not filing a motion

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to withdraw her guilty plea, McElroy has deprived the trial court of the

opportunity to address the issue regarding the timing of McElroy’s consent,

and whether Birchfield is implicated in this case. We therefore conclude that,

because McElroy did not raise this issue before the trial court, it is not

preserved for our review.   See Rush, 959 A.2d at 949; Pa.R.A.P. 302(a)

(stating that a claim cannot be raised for the first time on appeal).

Accordingly, we affirm McElroy’s judgment of sentence.

      Judgment of sentence affirmed.

      Judge Kunselman joins the Memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/18




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