J-A05015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    GARY EDWARD HOPTON                         :
                                               :
                       Appellant               :      No. 147 WDA 2018

            Appeal from the PCRA Order Entered December 29, 2017
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0004475-2014,
                            CP-02-CR-0016344-2014


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY GANTMAN, P.J.E.:                      FILED FEBRUARY 28, 2019

        Appellant, Gary Edward Hopton, appeals from the order entered in the

Allegheny County Court of Common Pleas, which denied his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm and grant

counsel’s petition to withdraw.

        In its opinion, the PCRA court accurately set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

        Preliminarily, appellate counsel has filed a motion to withdraw as

counsel and an accompanying brief pursuant to Commonwealth v. Turner,

518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d


____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
J-A05015-19


213 (Pa.Super. 1988) (en banc). Before counsel can be permitted to withdraw

from representing a petitioner under the PCRA, Pennsylvania law requires

counsel to file a “no-merit” brief or letter pursuant to Turner and Finley.

Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).

         [C]ounsel must…submit a “no-merit” letter to the [PCRA]
         court, or brief on appeal to this Court, detailing the nature
         and extent of counsel’s diligent review of the case, listing
         the issues which the petitioner wants to have reviewed,
         explaining why and how those issues lack merit, and
         requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must also send to the petitioner a copy of the “no-merit” letter or brief and

motion to withdraw and advise petitioner of his right to proceed pro se or with

privately retained counsel.     Id.    “Substantial compliance with these

requirements will satisfy the criteria.” Karanicolas, supra at 947.

      Instantly, appellate counsel filed a motion to withdraw as counsel and a

Turner/Finley brief detailing the nature of counsel’s review and explaining

why Appellant’s issues lack merit.     Counsel’s brief also demonstrates he

reviewed the certified record and found no meritorious issues for appeal.

Counsel notified Appellant of counsel’s request to withdraw, and advised

Appellant regarding his rights. Thus, counsel substantially complied with the

Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.

      Counsel raises the following issues on Appellant’s behalf:

         WHETHER [APPELLANT] IS ENTITLED TO RE-SENTENCING
         BECAUSE, WHEN HE CONSENTED TO BLOOD TESTS, HE DID
         SO UNDER THE THREAT OF ADDITIONAL CRIMINAL

                                      -2-
J-A05015-19


          PENALTIES FOR REFUSING SUCH TESTS WHICH IS
          UNCONSTITUTIONAL UNDER BIRCHFIELD V. NORTH
          DAKOTA, ___ U.S. ___, 136 S.CT 2160[, 195 L.Ed.2d 560]
          (2016)?

          WHETHER [APPELLANT] IS ENTITLED TO REINSTATEMENT
          OF HIS RIGHT TO APPEAL HIS AUGUST 20, 2014 JUDGMENT
          OF SENTENCE AT CP-02-CR-0004475-2014 AND APRIL 17,
          2015 JUDGMENT OF SENTENCE AT CP-02-CR-0016344-
          2014, WHERE TRIAL COUNSEL FAILED TO ADVISE
          [APPELLANT] CERTIORARI WAS PENDING BEFORE AND/OR
          GRANTED BY THE UNITED STATES SUPREME COURT ON
          THE CONSTITUTIONALITY OF IMPOSING GREATER
          CRIMINAL PENALTIES FOR REFUSAL TO SUBMIT TO A
          CHEMICAL TEST OF BLOOD DURING THE TIME PERIOD
          WITHIN WHICH [APPELLANT] COULD HAVE TIMELY
          COMMENCED       PCRA    PROCEEDINGS      TO    SEEK
          REINSTATEMENT OF HIS RIGHT TO APPEAL SAID
          SENTENCES?

(Turner/Finley Brief at 2).2

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). This Court grants great deference to the findings of the PCRA

court if the record contains any support for those findings. Commonwealth

v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). If the record supports a post-conviction court’s credibility

determination, it is binding on the appellate court.    Commonwealth v.


____________________________________________


2 Appellant has not responded to the Turner/Finley brief pro se or with newly
retained private counsel.

                                           -3-
J-A05015-19


Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable David R.

Cashman, we conclude Appellant’s issues merit no relief.        The PCRA court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See PCRA Court Opinion, filed October 24, 2018, at 5-14)

(finding: Appellant’s PCRA petition is untimely with respect to any claims

concerning his original pleas, convictions, and judgments of sentence imposed

on August 20, 2014 and April 17, 2015; nevertheless, Appellant’s PCRA

petition is timely with respect to claims concerning his revocation sentence;

however, Appellant is not entitled to relief under Birchfield, where court

imposed revocation sentence on January 4, 2016, Appellant did not appeal

revocation sentence, his revocation sentence became final before Birchfield

was decided on June 23, 2016, and Birchfield has not been held to apply

retroactively to cases on collateral review; further, U.S. Supreme Court

granted certiorari in Birchfield on December 11, 2015, and decided it on June

23, 2016, so Appellant cannot prove counsel gave him improper advice

concerning state of law in 2014 and early 2015, when Appellant entered his

original guilty pleas; counsel is not ineffective for failing to predict change in

law). Accordingly, we affirm based on the PCRA court’s opinion. Following an

independent review of the record, we grant counsel’s petition to withdraw.

      Order affirmed; counsel’s petition to withdraw is granted.


                                      -4-
J-A05015-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2019




                          -5-
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      IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEAL         OF PENNSYLVANIA
                               COUNTY OF ALLEGHENY


      COMMONWEALTH OF PENNSYLVANIA          CRIMINAL DI SION
                                            CC No. 2014044 5;201416344
                                            Superior Court o. 147WDA2018

                 vs.

      GARY EDWARD HOPTON
                                            OPINION

                                            JUDGE DAVID R. CASHMAN
                                            308 Courthouse
                                            436 Grant Stree
                                            Pittsburgh, PA 5219
                                            (412) 350-3905


                                            Copies Sent To:

                                            Michael Streily, Esquire (Interoffice)
                                            Office of the Dis rict Attorney
                                            4th Floor, Court ouse
                                            Pittsburgh, PA 5219
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                  ·'         ,...-:'.

         ..
                             rL
                                            Charles R. Pass III, Esquire
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      IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEAL HOF PENNSYLVANIA
                               COUNTY OF ALLEGHENY
                                 CRIMINAL DIVISION



      COMMONWEALTH OF PENNSYLVANIA                  ) CCNo.20140 475;201416344
              vs.                                   ) Superior Cour No. 147WDA2018
      GARY EDWARD HOPTON                            )


                                            OPINION

            On May 6, 2014, Appellant, Gary Hopton (hereinafter r ferred to as

      "Hopton"), was charged at CC 201404475 with one count each f DUI - Highest Rate

      (75 Pa.C.S.A. § 3802(c)), DUI - General Impairment: Accident nvolving Injury or

      Damage to Property (75 Pa.C.S.A. §§ 3802(a)(l), 3804(b)), DUI - General

      Impairment (75 Pa.C.S.A. § 3802(a)(l)), and Driving Without      License (75

      Pa.C.S.A. § 150l(a)), in connection with an incident that occur ed on February 3,

      2014. On August 20, 2014, Hopton entered a guilty plea at all our counts, and was

      thereafter sentenced by this Court, at Count 1, to serve three ( ) days at the

      Allegheny County Jail to be followed by five (5) months of prob tion. Counts 2 and

      3 merged with Count 1 and Hopton received no further penalt at Count 4.

      Appellant did not file post-sentence motions or a direct appeal ollowing his guilty

      plea at CC 201404475.

            On January 22, 2015, Hopton was charged at CC 201416 44 with one count

      each of DUI - Highest Rate (75 Pa.C.S.A. §§ 3802(c)i 3803(b)(4), DUI - General

      Impairment: Accident Involving Injury or Damage to Property 75 Pa.C.S.A. §§

      3802(a)(l), 3804(b)), DUI - General Impairment (75 Pa.C.S.A. § 3802(a)(l)),



                                                2
. f




      Accident Involving Death or Personal Injury (75 Pa.C.S.A. § 3 42(a)), Accident

      Involving Death or Personal Injury While Not Properly Licen ed (75 Pa.C.S.A.

      §3742.1 (a)), and three summary traffic offenses, in relation t an incident that

      occurred on October 6, 2014, while Hopton was serving his pr bation at CC

      201404475.

            On April 17, 2015, Hopton appeared before this Court t CC 201416344 and

      entered a negotiated guilty plea and was sentenced at Count      to serve three (3)

      years of probation with six (6) months to be served on Interm diate Punishment.

      Counts 2 and 3 merged with Count 1, Count 4 was withdraw , and Hopton received

      no further penalty at Counts 5-8. On May 5, 2015, this Court entered a modified

      Order of Sentence to reflect a change in the amount of restitu ion. Hopton did not

      file post-sentence motions or a direct appeal following his gui y plea at CC

      201416344.

            On January 4, 2016, this Court found that Hopton viol ted his probation

      imposed at CC 201416344 and resentenced Hopton at Count          to serve two (2) to

      four (4) years at SCI Camp Hill. Hopton's RRRI minimum se tence in that case

      was 18 months of incarceration. Also, on January 4, 2016, th s Court found that

      Hopton had violated his probation at CC 201404475 and ther fore resentenced him,

      at Count 1, to serve two (2) months to five-and-a-half (5 1/2)   onths at SCI Camp

      Hill. This sentence was to be served consecutively to the sent nee of incarceration

      imposed at CC 201416344. Hopton's RRRI minimum sentenc at this case was one-

      and-a-half (1 1/2) months of incarceration. As such, the aggr gate sentence imposed




                                                 3
at the two cases for the probation violation was a minimum o two (2) years and two

(2) months to a maximum of four (4) years and five-and-a-hal (5 1/2) months of

incarceration.

      Hopton did not file post-sentence motions or a direct a    eal following the

revocation of his probation. However, on August 17, 2016, H      ton filed a prose

petition pursuant to the Post Conviction Relief Act (hereinaft r referred to as

"PCRA") in relation to both cases. On July 10, 2017, Hopton led an amended

PCRA petition and the Commonwealth thereafter filed an an wer to Hopton's

PCRA petition. After a hearing on Hopton's PCRA petition, t is Court denied

Hopton's requests for PCRA relief by Order dated December 9, 2017. The instant

appeal followed.

      Hopton's concise statement of matters complained of o appeal (hereinafter

referred to as "1925(b) statement"), sets forth two claimed err rs. First, Hopton

asserts that he is entitled to re-sentencing because, when he    nsented to blood

tests, he did so under the threat of additional criminal penalti es for refusing such

tests. Hopton argues that his consent to blood tests under th eat of additional

penalties was unconstitutional under the United States Supr me Court's decision in

Birchfield v. North Dakota.1

      The second claim raised in Hop ton's 1925(b) statement · s an ineffective

assistance of counsel claim. Specifically, Hopton argues that e is entitled to

reinstatement of his right to appeal his August 20, 2014, jud     ent of sentence at



      Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).

                                           4
CC 20144475 and April 17, 2015, judgment of sentence at CC 201416344 because

his trial counsel failed to advise him that certiorari was pend ng before and/or

granted by the United States Supreme Court on the constitut onality of imposing

greater criminal penalties for refusal to submit to a chemical est of blood during

the time period within which he could have timely commence PCRA proceedings to

seek reinstatement of his right to appeal his sentences.

       Based upon the claims raised in his 1925(b) statement, Hopton is seeking to

have this Court's Order denying PCRA relief vacated and req esting that the

matter be remanded for re-sentencing in accordance with law

       The Post-Conviction Relief Act ("PCRA"), codified at 42 Pa.C.S.A. § 9541 et.

seq, is intended to, "provide the sole means for obtaining coll eral review and

relief, encompassing all other common law rights and remedi s, including habeas
                                       -1.1-1..-23
corpu�.·" Com. v. Lantzy, 558 Pa. 214l1999); 42 Pa.C.S.A. § 9      2; Com. v. Hall, 565

Pa. 92,��001). The PCRA was enacted to provide collateral re ief to those

individuals who are innocent of the crime for which they wer convicted or are

serving an unlawful sentence. 42 Pa.C.S.A. § 9542. There is o constitutional right

to any post-conviction relief. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990

(1987). Because the relief afforded to PCRA petitioners is av ilable only, "through

the grace of the legislature," the filing of a PCRA petition is s bject to strict

jurisdictional rules. Com. v. Alcom, 703 A.2d 1054, 1057 (Pa. uper. 1997); Com. v.

Abu-Jamal, 833 A.2d 719, 723-724 (Pa. 2003).




                                              5
       Before a court can reach the merits of a PCRA claim, t e petitioner must first

show that he is currently serving or waiting to serve a senten e of imprisonment,

probation, or parole for the crimes at issue. 42 Pa.C.S.A. § 95 3(a)(l)(i). In

addition, any PCRA petition, "including a second or subsequen petition, [must] be

filed within one year of the date the judgment becomes final. .. ' 42 Pa.C.S.A. §

9545(b)(l). For purposes of application of the PCRA, "a judgm nt becomes final at

the conclusion of direct review, including discretionary review      the Supreme Court

of the United States and the Supreme Court of Pennsylvania, o at the expiration of

time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3). Finally the issues raised in

the PCRA petition must not have been previously litigated or w ived. 42 Pa.C.S.A.

§ 9544(a), (b). An issue has been previously litigated if, "the hi   est court in which

the petitioner could have had a review as a matter of right has      led on the merits

of the issue." 42 Pa.C.S.A. § 9544(a)(2). Additionally, an issue i waived, "if the

petitioner could have raised it but failed to do so before trial, at rial, during unitary

review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S.A. §

9544(b).

       If a PCRA petition satisfies the jurisdictional requirement of the PCRA, a

petitioner must plead and prove, by a preponderance of the evide ce, that the

conviction or sentence resulted from one or more of the following:

           1. A violation of the Constitution of this Commonwealt
              Constitution or laws of the United States which, int e circumstances
              of the particular case, so undermined the truth-dete ming process
              that no reliable adjudication of guilt or innocence co ld have taken
              place;



                                            6
         2. Ineffective assistance of counsel which, in the ci umstances of the
            particular case, so undermined the truth-determ ning process that no
            reliable adjudication of guilt or innocence could ave taken place;

         3. A plea of guilty unlawfully induced where the ci cumstance make it
            likely that the inducement caused the petitioner to plead guilty and
            the petitioner is innocent;
         4. The improper obstruction by government official of the petitioner's
            right of appeal where a meritorious appealable i sue existed and was
            properly preserved in the trial court;

          5. The unavailability at the time of trial of exculpa ory evidence that has
             subsequently become available and would have anged the outcome of
             the trial if it had been introduced; and/or

          6. The imposition of a sentence greater than the la ful maximum.
             A proceeding in a tribunal without jurisdiction. 2 Pa.C.S.A. §
             9543(a)(2).

      As a preliminary matter, Hopton's PCRA petition was ntimely with respect

to any claims he seeks to assert concerning his original jud     ents of sentence and

convictions that followed his guilty pleas on August 20, 2014 nd April 17, 2015.

With respect to his conviction at CC 201404475, Hopton was entenced on August

20, 2014, and he did not file a direct appeal from the judgmen of sentence. As such,

Hop ton's judgment of sentence became final thirty (30) days l ter on September 19,

2014. Hopton then had one (1) year from that date, or until, eptember 19, 2015, to

file for PCRA relief from his original judgment of sentence an conviction. Because

Hopton did not file his prose PCRA petition untilAugust 17, 016, his PCRA

petition was untimely with respect to any claims that he asse ted in relation to CC

201404475.

       Similarly, with respect to his conviction at CC 2014163 4, Hopton was

sentenced on April 17, 2015, and he did not file a direct appe    from the judgment of


                                           7
sentence. Hopton's judgment of sentence therefore became fi al thirty (30) days

later, on May 17, 2015. Hopton then had one year from that ate, or until, May 17,

2016, to file for PCRA relief from his original judgment of sen nee and conviction.

Because he did not file his prose PCRA petition until August 7, 2016, Hopton's

petition was untimely with respect to any claims that Hopton ought to assert

concerning his original judgment of sentence and conviction a CC 20141634.

      With respect to any claims that Hopton asserted in rela ion to the sentence

imposed following the revocation of his probation, Hopton met he jurisdictional

requirements of the PCRA. He was serving or waiting to serv his sentence of two

(2) years and two (2) months to a maximum of four (4) years a d five-and-a-half (5

1/2) months of incarceration imposed by this Courton January 4, 2016, following

the revocation of his probation. In addition, Hopton filed his p   se PCRA petition

within one (1) year of his judgment of sentence becoming final fter the revocation

of his probation. Hopton was resentenced by this Court on Jan ary 4, 2016, and did

not thereafter file a direct appeal. Thus, Hopton's judgment of entence related to

his probation violation became final on February 3, 2016, when is time period to

file a timely notice of appeal to the Superior Court expired. Ho ton then had one

year from that date, or until February 3, 2017, to file a timely P RA petition based

on the revocation of his probation. Hopton therefore timely file his pro se PCRA

petition on August 17, 2016. As such, Hopton's PCRA petition       as timely with

respect to claims related to the sentence imposed following the r vocation of his




                                          8
probation. However, for reasons detailed more fully herein,       opton's appeal is

meritless, and he is not entitled to the relief.

       The first claimed error raised by Hopton in the instant appeal relates to the

constitutionality of his sentences. Specifically, Hopton assert that he is entitled to

have his sentences at CC 201416344 and CC 20144475 vacat d and remanded for

resentencing because, when he consented to blood tests, he di so under the threat

of additional penalty for refusal. Hopton's constitutional clai    is based on the

United States Supreme Court's 2016 decision in Birchfield v.      orth Dakota, 136

S.Ct. 2160 (2016), in which the Supreme Court held that impl ed consent laws with

additional criminal penalties are unconstitutional and a warr nt is required to

draw blood. Hop ton's claims related to the unconstitutionalit of his sentence must

fail because Hopton's sentence was not illegal and he is note titled to the

retroactive application of the rule announced in Birchfield.

      First, Hopton's sentence is not illegal under Birchfield ecause his judgment

of sentence was made final before the Birchfield case was deci ed by the United

States Supreme Court in June 2016. Hopton was originally s ntenced at CC

201404475 on August 20, 2014, and at CC 201416344 on Apri 17, 2015. Hopton did

not file a direct appeal from the judgment of sentence in eithe case. Furthermore,

after the revocation of his probation at both cases, Hopton wa resentenced by this

Court on January 4, 2016, and he did not subsequently file a irect appeal from the

judgment of sentence in either case. As such, Hopton's judgm nt of sentence from




                                            9
his probation revocation at both cases became final on Febru ry 3, 2016, when his

time period to file a timely notice of appeal had expired.

      Birchfield was decided by the Supreme Court in June 016. Although the

Birchfield Court did hold that criminalization of a suspect's r fusal to consent to a

blood test violates the Fourth Amendment to the United Stat s Constitutions, the

Birchfield case was not decided until several months after Ho ton's judgment of

sentence from his probation revocation became final. Thus,      opton's sentence was

not illegal when imposed by this Court because Birchfield ha not yet been decided

at the time at which the sentence was imposed.

      In addition, Hopton is not entitled to the benefit of the ew rule announced in

Birchfield because the rule has not been held to apply retroac ively to cases on

collateral review, such as Hopton's case. In Com. v. Moyer, 71 A.3d 849, which

was a direct review case, the Superior Court recognized the a iomatic principle that

"[iJn Pennsylvania, it has long been the rule that criminal de ndants are not

entitled to retroactive application of a new constitutional rule unless they raise and

preserve the issue during trial." Id. Moreover, the new rule o law established in

Birchfield does not fall under one of the two exceptions to the ule against

retroactivity on collateral review set forth in Teague v. Lane, 89 U.S. 288, 307

(1989).

      Under Teague, for a new rule of constitutional law, ret activity is accorded

only to rules deemed substantive in character, and to "waters ed rule of criminal



2     See also Com. v. Moyer, 171 A.3d 849 (Pa.Super. 2017) discussing Birchfield).

                                           10
procedure," which "alter our understanding of the bedrock pr cedural elements" of

the adjudicatory process. Teague, 489 U.S. at 311. First, the    irchfield decision is

not substantive, because it does not prohibit punishment for n entire class of

offenders, nor does it decriminalize conduct. Birchfield v. No th Dakota, 136 S.Ct.

2160. Rather, the decision regulates the manner of determini g a defendant's

culpability, requiring that the manner of obtaining evidence c ntained within a

suspect's blood follow a certain process. Id. It does not auto atically invalidate all

convictions where a defendant refused a blood draw, only tho e where a defendant

was threatened with an enhanced criminal penalty. Id.

      Even where a procedural error has infected a trial, the esulting conviction or

sentence may still be valid, and, by extension, the defendant' continued

confinement may still be lawful. Montgomery v. Louisiana, 1 6 S. Ct. 718, 730

(2016). For this reason, a trial conducted under a procedure f und to be

unconstitutional in a later case does not, as a general matter, ave the automatic

consequence of invalidating a defendant's conviction or sente ce. Id. Because the

Supreme Court's decision in Birchfield does not announce an xtraordinary,

watershed rule of criminal procedure, Hopton's sentence was ot invalidated by

Birch{ield and should not be disturbed.

      The second claim raised in Hopton's 1925(b) statement s that he is entitled

to reinstatement of his right to appeal his August 20, 2014 an April 17, 2015,

sentences because his trial counsel failed to advise him that   irchfield was was

pending before the United States Supreme Court. Hopton ar ues that, had he been



                                          11
advised of the fact that Birchfield was pending, he could have timely commenced

PCRA proceedings to seek reinstatement of his right to appe       said sentences.

      In order to prevail on a claim of ineffectiveness of coun el under the Post-

Conviction Relief Act, a petitioner must plead and prove, by a preponderance of the

evidence, that: (1) the underlying issue has arguable merit; (    counsel's actions

lacked an objective reasonable basis; and (3) actual prejudice esulted from

counsel's act or failure to act. Com. v. Pander, 100 A.3d 626, 30-631 (Pa.Super.

2014) (en bane) (internal citations and quotations omitted).     here the petitioner

fails to plead or meet any of these elements, his claim must f ·1. Id.

      A claim has arguable merit where the factual avermen s, if accurate, could

establish cause for relief. Id. Whether the facts rise to the le el of arguable merit is

a legal determination. Id. The test for deciding whether cou sel had a reasonable

basis for his action or inaction is whether no competent couns 1 would have chosen

that action or inaction, or, the alternative, not chosen, offered a significantly greater

potential chance of success. Id. Counsel's decisions will be co sidered reasonable if

those decisions effectuated his or her client's interests, and co rts will not employ a

hindsight analysis in comparing trial counsel's actions with o her efforts he may

have taken. Id. Prejudice is established only if there is a rea onable probability

that, but for counsel's errors, the result of the proceeding wou d have been different.

Id. A reasonable probability is a probability sufficient to und rmine confidence in

the outcome. Id.




                                           12
       In the instant appeal, Hopton argues that his counsel      as ineffective for

failing to advise him that, "certiorari was pending before and r granted by the

United States Supreme Court on the constitutionality of imp       ing greater criminal

penalties for refusal to submit to a chemical test of blood dur ng the time period in

which Defendant could have timely commenced PCRA procee ings to seek

reinstatement of his right to appeal said sentences." However like his

constitutional claim, Hopton's ineffectiveness of counsel claim is baseless and does

not entitle him to relief. Hopton has neither alleged, nor prov n, that his counsel

improperly advised him concerning the state of the law at the time at which he

plead guilty. Furthermore, Hopton cannot sustain his burden for establishing

ineffective assistance of counsel on the basis that his counsel   iled to predict

changes in the law.

      Hopton was sentenced at CC 201404475 on August 20, 014, and was

subsequently sentenced at CC 201416344 on April 17, 2015.         he United States

Supreme Court did not grant certiorari in Birchfield until Dec mber 11, 2015, and

Birchfield was not decided until June 23, 2016. Accordingly, t the time at which

Hopton pled guilty, the Supreme Court had not yet granted ce tiorari, much less

decided the case. Accordingly, to the extent that Hopton relie on Birchfield to

support his ineffective assistance of counsel claim, he has not roven that his

counsel improperly advised him concerning the state of the la     at the time at which

he entered his plea.




                                          13
         Hopton is ostensibly arguing that his trial counsel sho Id have possessed the

foresight to determine that: (1) the Supreme Court was going o grant certiorari in

Birchfield; and (2) the Supreme Court would then issue a ne      rule of law in

Birchfield which would apply to his case. As the Pennsylvani Supreme Court has

made clear, "[ijt is well-settled that counsel cannot be deeme ineffective for failing

to predict changes in the law. Com. v. Cousar, 154 A.3d 287, 03 (Pa. 2017). As

such, Hopton's counsel was not ineffective for allowing him to plead guilty where

Birchfield had not yet been decided, and Hopton is not entitle to relief on this

basis.

                            BY THE COURT:


                               __z__
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                                                                     .J.

DATED:
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                                           14
