J-S26038-17


                               2018 PA Super 44

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
JEFFREY ALLEN KEHR, II                   :
                                         :
                   Appellant             :   No. 1611 MDA 2016

           Appeal from the Judgment of Sentence June 21, 2016
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0001875-2016


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

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

      Jeffrey Allen Kehr, II appeals from the judgment of sentence imposed

following his conviction for one count of DUI. Appellant asserts that the trial

court erred in denying his timely post-sentence motion to withdraw his guilty

plea to enable him to take advantage of the United States Supreme Court

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

      The facts are simple. On February 5, 2016, Pennsylvania State Police

Trooper Richard Daldo suspected Appellant of driving under the influence

during a routine traffic stop. Appellant consented to a blood draw, and was

subsequently charged with various DUI crimes.         On June 20, 2016, he

entered into a negotiated guilty plea, and, the following day, was sentenced

to six months intermediate punishment.       He did not file a motion seeking

suppression of the blood.



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S26038-17



      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

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

(emphasis in original).

      On June 29, 2016, trial counsel filed a post-sentence motion seeking

withdrawal of the plea based on a desire to pursue a suppression motion

pursuant to Birchfield. The trial court held a hearing and thereafter denied

the motion. Appellant filed a timely appeal, presenting the following issue

for our consideration:

      The trial court erred when it denied Appellant's Post–Sentence
      Motion to Withdraw Plea . . . 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 . . . the Birchfield decision makes Appellant's
      plea unknowing and involuntary under the circumstances.

Appellant’s brief at 4.

      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


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      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). The term

discretion

      imports the exercise of judgment, wisdom and skill so as to
      reach a dispassionate conclusion, and discretionary power can
      only exist within the framework of the law, and is not exercised
      for the purpose of giving effect to the will of the judges.
      Discretion must be exercised on the foundation of reason, as
      opposed to prejudice, personal motivations, caprice or arbitrary
      action. Discretion is abused when the course pursued represents
      not merely an error of judgment, but where the judgment is
      manifestly unreasonable or where the law is not applied or
      where the record shows that the action is a result of partiality,
      prejudice, bias or ill will.

Commonwealth v. Shaffer, 712 A.2d 749, 751 (Pa. 1998) (citation

omitted).

      We begin by examining the trial court’s rationale for denying the

motion.

      In the present case, the plea was entered into voluntarily and
      knowingly. A full and complete colloquy was conducted that
      included the six mandatory inquiries set out by the Supreme
      Court, and is included as a part of this record. Defendant was
      aware of the nature of the offense and possible range of
      sentences when he entered into a negotiated plea bargain.

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       Instead of litigating the numerous pre-trial issues, including the
       legality of the stop and arrest and the legality of the blood draw
       and test results, then going to trial, Defendant chose instead to
       accept the plea agreement the Commonwealth offered, for a
       certain, known resolution of the case.

Trial Court Opinion, 1/11/17, at 6.      Appellant attacks this conclusion by

asserting that his plea was involuntary due to a subsequent change in the

law.

       In this instance, once the U.S. Supreme Court issued Birchfield,
       a non-final judgment of sentence based on a plea due to an
       invalid consent to a blood draw became unknowing and
       involuntary. First, the charge to which Appellant plead[ed] was
       no longer a possibility given the illegality of blood evidence
       obtained based on invalid consents.

             ....

       Second, because of Birchfield, Appellant no longer knew the
       permissible range of sentences in order to make an informed
       decision of whether to enter a plea or elect his constitutionally
       protected right to a trial. . . . It defies reality to think that if
       Kehr's plea hearing had been scheduled for June 24, 2016 that
       he would not have entered a plea to the Tier I general
       impairment subsection rather than Tier III combined
       alcohol/drug subsection.

Appellant’s brief at 10-11.

       Thus, Appellant assumes, with little discussion, that there is “sufficient

cause” on the order of “manifest injustice” inherent in a change of law, such

that a trial court is required to grant a post-sentence motion seeking to

undo a guilty plea. We disagree.

       Preliminary, we do not accept Appellant’s fundamental position that his

plea on June 20, 2016, retroactively became unknowing and involuntary due


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to Birchfield. The question is whether his plea was knowing and voluntary,

an inquiry that must be examined in light of what was known and said on

that day.1 That point is demonstrated by the unremarkable observation that

Birchfield could have been decided in a manner unfavorable to criminal

defendants. See Birchfield, supra at 2198 (“The better (and far simpler)

way to resolve these cases is by applying the per se rule that . . . both

warrantless breath and blood tests are constitutional.”) (Thomas, J.,

concurring and dissenting).         According to Appellant, his plea would have

been voluntary if Justice Thomas’s view had prevailed, yet somehow became

involuntary when the majority ruled as it did in Birchfield. That approach is

untenable.

       Such an argument also ignores the settled principle that a change in

law applies only to cases where the issue was properly preserved. We note

that following submission of the briefs in these cases, we decided

Commonwealth v. Moyer, 171 A.3d 849 (Pa.Super. 2017), which dealt

with a similar issue.      Therein, Moyer proceeded to trial on, inter alia, DUI

charges. Like Appellant, Moyer did not file a suppression motion challenging

the admissibility of the evidence derived from a blood draw. Following trial,

Moyer was sentenced on June 21, 2016, and, on July 13, 2016, filed an

____________________________________________


1 As an absurd example, no one would suggest that a defendant’s decision to
reject a plea offer in favor of a jury trial “became” involuntary once the
defendant lost and received a harsher sentence than offered by the plea.



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untimely post-sentence motion “asking the trial court to vacate her DUI

conviction under Birchfield.”   Id. at 852.    The motion validly tolled the

appeal period.   Id. (citing Commonwealth v. Dreves, 839 A.2d 1122

(Pa.Super. 2003) (en banc)).    We held that the trial court did not err in

denying the motion:

     Next, Appellant argues that the trial court erred in declining to
     vacate her DUI conviction under Birchfield. As explained above,
     the United States Supreme Court handed down Birchfield two
     days after Appellant's sentence. Appellant never challenged the
     warrantless blood draw during trial, and did not raise any issue
     under Birchfield until her nunc pro tunc post-sentence motion.
     In Pennsylvania, it has long been the rule that criminal
     defendants are not entitled to retroactive application of a new
     constitutional rule unless they raise and preserve the issue
     during trial. Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.
     Super. 2014) (en banc), appeal denied, 632 Pa. 693, 121 A.3d
     496 (2014). The Newman Court relied on Commonwealth v.
     Cabeza, 503 Pa. 228, 469 A.2d 146, 148 (1983). There, the
     Supreme Court wrote:

           [W]here an appellate decision overrules prior law
           and announces a new principle, unless the decision
           specifically declares the ruling to be prospective only,
           the new rule is to be applied retroactively to cases
           where the issue in question is properly preserved at
           all stages of adjudication up to and including any
           direct appeal.

     Id. (emphasis added). Instantly, Appellant failed to challenge
     the warrantless blood draw at any stage of the litigation prior to
     her nunc pro tunc post-sentence motion. Thus, she is not
     entitled to retroactive application of Birchfield.

     Appellant argues that she should not have been required to
     anticipate the United States Supreme Court's Birchfield opinion.
     The same could be said, however, in nearly every case in which
     a defendant is denied retroactive application of a new
     constitutional principle. The rule permitting retroactive
     application was created for the benefit of defendants who raised

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J-S26038-17


      and preserved the issue in question and in whose case the issue
      remained pending while a higher court decided the issue in a
      similar case.

Id. at 854–55.

      Moyer does not directly control, as that case concerned a post-

sentence motion seeking to vacate the conviction, whereas here Appellant

seeks to undo his plea.    In the former context, the necessity of filing a

suppression motion is clear, as the question on appeal would be whether the

suppression court correctly applied the law regarding the admissibility of the

blood evidence. Compare Commonwealth v. Evans, 153 A.3d 323 (Pa.

Super. 2016) (remanding for evaluation of the validity of the defendant's

consent). Nevertheless, the logic employed in Moyer mandates the same

outcome.

      Returning to Appellant’s argument, it is        beyond question that

Birchfield represented a clear change in the law.          Where Appellant’s

argument fails is in explaining why a favorable change in the law constitutes

“manifest injustice” such that the defendant must be given an opportunity

to, in effect, manufacture retroactive application of a new rule. As we noted

in Moyer, the “rule permitting retroactive application was created for the

benefit of defendants who raised and preserved the issue in question and in

whose case the issue remained pending while a higher court decided the

issue in a similar case.” Moyer, supra at 855. Simply put, there is little

distinction between defendants in Appellant’s position and defendants whose


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cases were already on appeal when Birchfield was announced. Clearly, the

latter class of individuals are not entitled to retroactive application of

Birchfield.2

       Speaking to this point, we firmly disagree with Appellant’s claim that

he could not have raised the Birchfield issue until the case was decided:

       Trial counsel raised the Birchfield issue at the earliest possible
       time i[t] could have been raised. . . . The Birchfield decision
       first impacted Kehr's case within the deadline to file a post-
       sentence motion to withdraw his plea, and before Appellant's
       Judgment of Sentence became final. This was the earliest this
       issue could have been raised by trial counsel.

Appellant’s brief at 12.       That assertion is objectively incorrect.   Appellant

could have pursued his suppression issue even if Birchfield was not then-

pending.3

____________________________________________


2 Similarly, 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. See Commonwealth v. Giron, 155
A.3d 635, 639 (Pa.Super. 2017) (“Accordingly, we must determine if
Appellant received criminal penalties for his refusal to submit to a
warrantless blood test. If he did, his sentence was illegal.”) (footnote
omitted). In this case, where Appellant did not refuse and did not seek
suppression of the blood evidence, there is no illegality to correct.

Furthermore, assuming arguendo that Birchfield rendered Appellant’s
consent involuntary, then the blood evidence must be suppressed and we
would be required to grant a new trial, not modify his sentence. Whatever
the contours of the illegality of sentence construct, it limits this Court to
correcting defects regarding sentences, not convictions.
3 The Supreme Court of the United States had occasion to decide Birchfield
because the attorneys in the consolidated cases preserved and pursued the
issues. Surely, pre-Birchfield, an attorney might think that the probability
(Footnote Continued Next Page)


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      More importantly, Appellant overlooks the role of trial counsel in this

situation. In truth, Appellant sought to undo his guilty plea on a theory of

ineffective assistance of counsel; to wit, counsel ineffectively advised entry

of the pleas due to the forthcoming, and potentially favorable, Birchfield

decision.    That claim fails to account for the fact that Appellant can

confidently assert that he should have filed a Birchfield motion only

through the lens of hindsight. Had the case come out the other way, there

is no doubt that Appellant would happily keep his plea on the books.

      At the end of the day, Appellant’s real complaint is that his counsel

ineffectively advised that he accept the plea due to the possibility of a

favorable outcome in the then-pending Birchfield decision.4      However, as

we explained in Commonwealth v. Hickman, 799 A.2d 136 (Pa.Super.

2002), an attempt to establish that a plea was unknowing or involuntary due

to deficient legal advice sounds in ineffectiveness.

      A criminal defendant has the right to effective counsel during a
      plea process as well as during a trial. Hill v. Lockhart, 474 U.S.
      52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Allegations of
      ineffectiveness in connection with the entry of a guilty plea will
      serve as a basis for relief only if the ineffectiveness caused the
      defendant to enter an involuntary or unknowing plea.
      Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999).
(Footnote Continued) _______________________

of succeeding on such a motion was quite low, but that point speaks to the
generic issue of retroactive application of new law. It has nothing to do with
whether or not Appellant could have made the claim.

4There is a further problem with the instant motion: Trial counsel could not
assert his own ineffectiveness.



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      Where the defendant enters his plea on the advice of counsel,
      “the voluntariness of the plea depends on whether counsel's
      advice ‘was within the range of competence demanded of
      attorneys in criminal cases.’” Hill, 474 U.S. at 56, 106 S.Ct. 366,
      88 L.Ed.2d 203 (quoting McMann v. Richardson, 397 U.S. 759,
      771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).

Id. at 141.

      Appellant’s claim is indistinguishable from an allegation that his plea

was involuntarily entered due to the ineffective assistance of plea counsel.

Therefore, the trial court correctly held that the plea was not involuntary or

unknowing, as Appellant freely gave up his opportunity to file a suppression

motion in exchange for the negotiated guilty plea. The question of whether

that choice was knowing and voluntary in light of counsel’s advice is a

question that must be raised via an ineffective assistance of counsel claim.

      In this regard, we note that in Commonwealth v. Holmes, 79 A.3d

562 (Pa. 2013), our Supreme Court reiterated its preference that claims

pertaining to ineffectiveness be deferred to PCRA review. “By way of

summary, we hold that [the] general rule of deferral to PCRA review remains

the pertinent law on the appropriate timing for review of claims of ineffective

assistance of counsel; we disapprove of expansions of the exception to that

rule[.]” Id. at 563.

      This stated preference poses an impediment to the trial court’s ability

to entertain the instant motions to withdraw the pleas, and, concomitantly,

our ability to review those decisions on direct review.          Furthermore,

Appellant urges the adoption of a per se rule, whereby a trial court is

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required to permit a defendant to withdraw a plea post-sentencing on the

basis of a change of law. The effect of such a rule would permit a defendant

to withdraw his guilty plea without establishing ineffectiveness of counsel as

described in Hickman, supra.

       Such a proposed rule means that criminal defendants may always

benefit from favorable changes in the law while completely avoiding

unfavorable outcomes.         Appellant accepted his plea prior to Birchfield;

generally speaking, the possibility that circumstances might change after the

negotiation concluded is a risk that accompanies any bargain. Had Appellant

sought suppression from the start and lost, he may have ended up with a

worse sentence than offered by the plea if the United States Supreme Court

had ultimately decided Birchfield in an unfavorable manner. The mitigation

of risk through foregoing suppression motions is part and parcel of the plea

process.5    See United States v. Johnson, 410 F.3d 137, 153 (4th Cir.

2005) (“A plea agreement, like any contract, allocates risk.         And the

possibility of a favorable change in the law occurring after a plea is one of



____________________________________________


5 It is only with the benefit of hindsight that we can say counsel erred in
failing to raise and litigate the Birchfield issue. Suppose that counsel had
advised Appellant to challenge the evidence by guaranteeing that Birchfield
would result in a favorable ruling, but Justice Thomas’s view prevailed. Is
there any doubt that we would say counsel was ineffective for promising a
change in the law?




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the normal risks that accompanies a guilty plea.”) (cleaned up).6 We agree

with that proposition. Accordingly, the trial court did not abuse its discretion

in declining to permit a post-sentence withdrawal of guilty pleas on the basis

of a change in law.

       Judgment 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




____________________________________________


6 “Cleaned up” is a new parenthetical designed to “tell readers that they
have removed extraneous material for readability and guarantee that
nothing removed was important.”          See Metzler, Jack, Cleaning Up
Quotations (March 17, 2017). Journal of Appellate Practice and Process,
2018, Forthcoming. Available at http://dx.doi.org/10.2139/ssrn.2935374.



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