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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES CARLTON MARSHALL, JR.

                            Appellant                 No. 160 MDA 2017


           Appeal from the Judgment of Sentence December 19, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0008139-2015


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 08, 2017

        James Carlton Marshall, Jr., appeals from his judgment of sentence,

entered in the Court of Common Pleas of York County, following the entry of

a negotiated guilty plea to Driving under Suspension-DUI related with Blood

Alcohol Content (BAC) .02 or higher1 and DUI: High Rate of Alcohol (BAC

.10-.16),2 Tier 2, 2nd Offense.3 After careful review, we quash the appeal.

        On April 21, 2016, Marshall entered a guilty plea to the above-stated

offenses. Sentencing was deferred pending completion of a drug and alcohol

evaluation.    On June 1, 2016, the court sentenced Marshall on the DUI-

suspension charge to 90 days in York County Prison, a $1,000 fine and costs
____________________________________________


1
    75 Pa.C.S. § 1543(b)(1.1)(i) (summary offense).
2
    Marshall’s BAC registered a .121.
3
    75 Pa.C.S. § 3802(b) (misdemeanor).
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and a consecutive sentence for the DUI-high rate charge of 6 months of

intermediate punishment (IP) to be spent on electronically monitored house

arrest with electronic alcohol monitoring.       Marshall filed a nunc pro tunc

motion to withdraw his plea on July 1, 2016, claiming that there was a

manifest injustice because he did not knowingly, intelligently, and voluntarily

enter his plea based upon the United States Supreme Court’s decision,

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).4 Following a hearing,

the court granted the motion on August 25, 2016, vacated Marshall’s DUI-

high rate sentence, released him, and scheduled a pretrial conference for

October.5     On September 6, 2016, the Commonwealth filed a motion to

reconsider the court’s order granting Marshall’s request to withdraw his

guilty plea due to the trial court’s lack of jurisdiction.

       On September 7, 2016, the trial court granted the Commonwealth’s

motion, finding that it lacked jurisdiction to grant Marshall’s motion to
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4
  On June 23, 2016, the United States Supreme Court decided Birchfield, in
which it invalidated any criminal sanction assessed for refusing to submit to
a blood test in the absence of a warrant. The Court determined that with
regard to blood tests, the police must either seek a warrant or show exigent
circumstances. As a result, the Court 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.      In the case where a motorist is not
prosecuted for refusing a test but rather has submitted to a test where the
police gave inaccurate information that the law required submission, the
Court remanded the case to the state court to “reevaluate the motorist’s
consent given the partial inaccuracy of the officer’s advisory.” Id.
5
  Because Marshall’s DUI-high rate sentence was vacated and he had already
served two months of his sentence for the license suspension charge, he was
immediately released.


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withdraw, vacated its prior August 25, 2016 order, and reinstated Marshall’s

sentence effective as of the original sentencing date.         At a December 19,

2016 hearing for an alleged violation of the IP portion of his sentence, 6

counsel indicated that Marshall never received notice of his reinstated

sentence. At the conclusion of the hearing, the court noted that Marshall’s

“sentence [had] previously been reinstated” and permitted Marshall ten days

to file a nunc pro tunc post-sentence motion.            See N.T. IP Punishment

Violation Hearing, 12/19/2016, at 7-8. No post-trial motions were filed.

       On January 18, 2017, Marshall filed a notice of appeal from the

December 19, 2016 order reinstating his judgment of sentence. On March

27,   2017,    Marshall    filed   a   court-ordered   Pa.R.A.P.   1925(b)   concise

statement of matters complained of on appeal.                On appeal, Marshall

presents the following issues for our consideration:

       (1)    The trial court erred when it vacated its prior order
              granting [Marshall’s] post-sentence motion to withdraw
              plea nunc pro tunc when[:] [a] the U.S. Supreme Court’s
              holding in Birchfield v. North Dakota was decided within
              the 30-day deadline before the court lost jurisdiction[;] [b]
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6
  On November 18, 2016, the York County Adult Probation and Parole
Department filed a motion to revoke Marshall’s IP, claiming that he violated
the conditions of his supervision by: (1) failing to report to the Probation
Officer for his scheduled appointment; (2) failure to pay court costs/fees; (3)
committing public drunkenness and disorderly conduct; and (4) failing to
provide the Probation Office with verification that he completed DUI
Education classes. At the hearing, counsel indicated that his office failed to
give Marshall notice of the court’s reinstatement of his guilty plea as a
defense to the claim that Marshall had violated the term of his IP, where
Marshall no longer thought that that sentence was still effective and believed
he was released and would be going to trial.


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            denying his request constitutes a manifest injustice
            because the evidence against him was obtained in violation
            of the 4th Amendment of the United States Constitution[;]
            and [c] the Birchfield decision makes [Marshall’s] plea
            unknowing and involuntary under the circumstances all of
            which “demonstrate sufficient cause” for filing the Motion
            more than 10 days after sentencing and that Birchfield
            constitutes an “extraordinary circumstance[]” which
            “excuse[s] the tardiness.”

      (2)   The trial court erred by determining that it lacked the
            jurisdiction to grant [Marshall’s] Post-Sentence motion to
            withdraw plea nunc pro tunc as the U.S. Supreme Court’s
            holding in Birchfield v. North Dakota “demonstrate[s]
            sufficient cause” for filing the Motion more than 10 days
            after sentencing and that Birchfield constitutes an
            “extraordinary circumstance[]” which “excuse[s] the
            tardiness.”

Defendant’s Brief, at 4.

      In reinstating Marshall’s sentence, the court noted:

      In the instant case, the [Defendant] had not properly preserved
      the issue of the voluntariness of the blood draw at all stages of
      adjudication. Therefore, this court was without jurisdiction to
      decide . . . [Defendant’s] motion to withdraw the guilty plea.

      Here, Birchfield is a new rule of law, but the Supreme Court did
      not declare its ruling only to be prospective. Therefore, as the
      case law states, in order for the Birchfield rule to be applied
      retroactively, the issue in question would had to have been
      preserved at all stages of adjudication. Here, the issue of the
      voluntariness of the blood draw was not properly preserved at all
      stages of adjudication. Further, the post-sentence motion was
      untimely, and the court’s order to withdraw the guilty plea was
      86 days after sentencing. The motion to withdraw the guilty
      plea was more than 10 days after sentencing. In fact, it was
      approximately 31 days [after].

Trial Court Opinion, 4/26/2017, at 5.

      We disagree with the trial court’s waiver analysis. The court concludes

that Marshall has waived this issue on appeal for failing to raise it either at


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his plea colloquy or during sentencing. To apply the waiver doctrine would

ignore the reality that the issue in Birchfield did not arise prior to or during

the entry of Marshall’s plea and sentencing.              Here, Birchfield was not

decided until 21 days after Marshall was sentenced. See Commonwealth

v. Geschwendt, 454 A.2d 991, 999 (Pa. 1982) (“[A] party whose case is

pending on direct appeal is entitled to the benefit of changes in law which

occurs before the judgment becomes final.”).7

       However, while Marshall may not have waived the issue, before

addressing his claim we must first establish that we have jurisdiction over

this appeal.

       Pursuant to Pa.R.Crim.P. 720, “a written post-sentence motion shall be

filed no later than 10 days after imposition of sentence.”              Pa.R.Crim.P.

720(A)(1). If a defendant does not file a timely post-sentence motion, the

defendant’s notice of appeal must be filed within 30 days of imposition of

sentence.      Pa.R.Crim.P. 720(A)(3).         A motion challenging the validity of a

guilty plea is one of the requests for relief that a defendant can make in a

post-sentence motion. Pa.R.Crim.P. 720(B)(1)(a)(i).

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7
  We note that Birchfield may also implicate the legality of a sentence and
such issues cannot be waived. Commonwealth v. Dickson, 918 A.2d 95,
99 (Pa. 2007). Moreover, we may raise legality issues sua sponte on
appeal. See Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011)
(sentencing issues relating to court's statutory authority to impose sentence
implicate legality of sentence); see also Commonwealth v. Dickson, 918
A.2d 95 (exception to issue-preservation requirement exists where challenge
is one implicating legality of defendant’s sentence).


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        Instantly, Marshall did not file a post-sentence motion within 10 days

after sentence was imposed. Pa.R.Crim.P. 702(A)(1). Therefore, he had to

file a notice of appeal within 30 days following sentencing, or by July 1,

2016.     See Pa.R.Crim.P. 720(A)(3).    Instead of filing a notice of appeal,

Marshall filed a “Motion to Withdraw Plea Nunc Pro Tunc” thirty days after

sentencing.

        Under 42 Pa.C.S. § 5505, “Except as otherwise provided or prescribed

by law, a court upon notice to the parties may modify or rescind any order

within 30 days after its entry, notwithstanding the prior termination of any

term of court, if no appeal from such order has been taken or allowed.” 42

Pa.C.S. § 5505. While Marshall filed his motion seeking nunc pro tunc relief

within the timeframe under section 5505 and before any appeal had been

taken, the trial court did not rule on Marshall’s request to withdraw his guilty

plea nunc pro tunc until August 25, 2016 – 85 days after imposition of

Marshall’s sentence.    Because any decision by the trial court to modify,

rescind or vacate the sentence had to have been rendered within 30 days of

the imposition of sentence, the trial court did not have jurisdiction to act

after July 1, 2016. Therefore, the court’s August 25, 2016 order granting

Marshall’s motion to withdraw his plea, its September 7, 2016 order

reinstating Marshall’s guilty plea and sentence, and its December 19, 2016

order reinstating Marshall’s plea and sentence and granting him the right to

file nunc pro tunc post-trial motions are not valid as the court did not have

jurisdiction to enter those orders.


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        Accordingly, because Marshall did not file his notice of appeal within 30

days of the trial court’s June 1, 2016 judgment of sentence, his appeal must

be quashed. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30

days after entry of order from which appeal taken); Pa.R.A.P. 902 (“Failure

of an appellant to take any step other than the timely filing of a notice

of appeal does not affect the validity of the appeal[.]”).

        Appeal quashed.8




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8
    We note that the affidavit of probable cause indicates that:

        The defendant was transported to York Hospital for a blood draw
        to determine his B.A.C. On 11/26/15, at approximately 0025hrs
        we arrived at York Hospital. At approximately 0030hrs I read
        MARSHALL his implied Consent and [Commonwealth, Dep’t of
        Trans. v.] O’Connell Warnings where he agreed to a blood test.
        At 0033hrs two (2) grey top tubes of blood were drawn from
        MARSHALL’S left arm by a Phlebotomist.           He was then
        transported back to the checkpoint to be processed by the York
        County Sheriff’s Department.

Affidavit of Probable Cause, 11/29/15.         The O'Connell warnings are
contained on Pennsylvania’s DL-26 form, which provides that if a person
refuses to consent to a blood test, his or her license could be suspended for
at least one year and that, if convicted of violating 75 Pa.C.S. § 3802(a), he
or she will face more severe penalties because of the refusal. Thus,
Birchfield could potentially be implicated in Marshall’s guilty plea to his DUI
offenses. However, because Marshall has failed to file timely post-trial
motions or a timely direct appeal, the only conceivable recourse is a timely
filed Post Conviction Relief Act Petition. See 42 Pa.C.S. §§ 9541-9546.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2017




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