J-S26032-17, J-S26033-17, J-S26034-17, J-S26035-17, J-S26036-17,

J-S26037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
           v.                         :
                                      :
                                      :
JASON ERIC FETROW                     :
                                      :
                  Appellant           :   No. 1284 MDA 2016

          Appeal from the Judgment of Sentence June 14, 2016
 In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0001107-2016


COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
           v.                         :
                                      :
                                      :
WILLIE LEE SUMMERS                    :
                                      :
                  Appellant           :   No. 1285 MDA 2016

          Appeal from the Judgment of Sentence June 14, 2016
 In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0000891-2016


COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
           v.                         :
                                      :
                                      :
ELNORA I. SMITH                       :
                                      :
                  Appellant           :   No. 1316 MDA 2016

          Appeal from the Judgment of Sentence June 13, 2016
 In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0000501-2016
J-S26032-17, J-S26033-17, J-S26034-17, J-S26035-17, J-S26036-17,

J-S26037-17


COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
           v.                         :
                                      :
                                      :
STEVEN M. ARNOLD                      :
                                      :
                 Appellant            :   No. 1317 MDA 2016

          Appeal from the Judgment of Sentence June 13, 2016
 In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0001676-2016


COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
           v.                         :
                                      :
                                      :
HUI CHEN KUO                          :
                                      :
                 Appellant            :   No. 1318 MDA 2016

          Appeal from the Judgment of Sentence June 13, 2016
 In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0006756-2015


COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
           v.                         :
                                      :
                                      :
AIMEE LEAH HELLER                     :
                                      :
                 Appellant            :   No. 1319 MDA 2016

          Appeal from the Judgment of Sentence June 13, 2016
 In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0004132-2015



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J-S26032-17, J-S26033-17, J-S26034-17, J-S26035-17, J-S26036-17,

J-S26037-17


BEFORE:      BOWES, J., DUBOW, J., and FITZGERALD,* J.

MEMORANDUM BY BOWES, J.:                              FILED FEBRUARY 28, 2018

        These consolidated cases present the same issue: whether the trial

court erred in denying a post-sentence motion to withdraw a guilty plea

nunc pro tunc to enable the appellant to take advantage of the United States

Supreme Court decision North Dakota v. Birchfield, 136 S. Ct. 2160

(2016). We affirm on the basis of Commonwealth v. Kehr, --- A.3d ---,

1611 MDA 2016 (Pa.Super. 2018), issued in conjunction with these appeals.

        In each of these cases, a guilty plea was entered on June 13 or 14,

2016, to charges involving various permutations of driving under the

influence.    See 75 Pa.C.S. § 3802.           All of the appellants provided blood

samples, but failed to litigate a suppression motion. Instead, all entered into

negotiated pleas, and were all sentenced on the same day as the plea.

        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



____________________________________________


*
    Former Justice specially assigned to the Superior Court.



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J-S26032-17, J-S26033-17, J-S26034-17, J-S26035-17, J-S26036-17,

J-S26037-17

punishment for refusing a blood test in order to obtain consent[.]”)

(emphasis in original).

       On July 1, 2016, all appellants filed motions seeking to withdraw their

guilty pleas nunc pro tunc.         On July 5, 2016, the trial court denied the

motions on their merits. The trial court thereafter granted all appellants the

right to file an appeal nunc pro tunc.1

____________________________________________


1 As a subsidiary issue, the briefs all ask this Court to resolve whether the
trial court granted permission to file a nunc pro tunc post-sentence motion.

In Commonwealth v. Capaldi, 112 A.3d 1242 (Pa.Super. 2015), we
reiterated that an untimely post-sentence motion does not normally toll the
appeal period. Pursuant to Commonwealth v. Dreves, 839 A.2d 1122
(Pa.Super. 2003) (en banc), a post-sentence motion nunc pro tunc may toll
the appeal period, but only if (1) the nunc pro tunc request, which is
separate and distinct from the merits of the underlying motion, is filed within
thirty days of sentence, and (2) the trial court expressly permits the
untimely filing. If the trial court fails to expressly grant relief, the time for
filing the appeal is neither tolled nor extended, and a trial court’s later
resolution on the merits is not a substitute for an order granting the right to
file the motion in the first place. We noted in Capaldi that “there is a dearth
of on-point cases concerning the meaning of ‘expressly grant.’” Id. at 1245.

Presently, the untimely post-sentence motions were styled as a request for
relief nunc pro tunc and set forth reasons seeking to excuse the late filing,
which largely overlap with the merits of the claims. The requests were filed
within thirty days of sentence and the trial court issued a ruling on the
merits within same, but did not expressly grant the request to file nunc pro
tunc.

The trial court subsequently granted all appellants the right to file an appeal
nunc pro tunc. Arguably, the trial court failed to grant the nunc pro tunc
request to file untimely post-sentence motions, and, since the reinstatement
of appellate rights did not include a right to file new post-sentence motions,
the instant claims may be waived.          Since we have decided that the
(Footnote Continued Next Page)


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J-S26032-17, J-S26033-17, J-S26034-17, J-S26035-17, J-S26036-17,

J-S26037-17

      Rephrased for clarity, the following issue collectively applies to all

appeals: Did the trial court err in denying appellants’ post-sentence motions

to withdraw guilty pleas nunc pro tunc due to the change in law announced

by Birchfield?

      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
      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).




(Footnote Continued) _______________________

appellants are not entitled to relief, we accept arguendo that the untimely
post-sentence motions preserved the issues pursuant to the principles
discussed in Dreves.




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J-S26032-17, J-S26033-17, J-S26034-17, J-S26035-17, J-S26036-17,

J-S26037-17

      In conjunction with the present cases we have issued Kehr, which

presented the exact same issue, albeit in a timely post-sentence motion.

We concluded that the change in law occasioned by Birchfield does not

constitute sufficient cause on the order of manifest justice to justify granting

a post-sentence motion to withdraw a guilty plea. Kehr additionally holds

that any attempt to withdraw a plea post-sentencing is, in truth, an

allegation of ineffective assistance of counsel, which must be pursued

through the PCRA. Since Kehr is dispositive of the issue presented in these

cases, we rely on its authority.

      Judgments 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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