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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    ALEXANDER OTT                                 :
                                                  :
                       Appellant                  :   No. 3995 EDA 2017

           Appeal from the Judgment of Sentence November 6, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0005017-2017


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                             FILED SEPTEMBER 19, 2018

        Alexander Ott appeals from the judgment of sentence, entered in the

Court of Common Pleas of Delaware County, following his negotiated guilty

plea to driving under the influence (“DUI”)- controlled substance – Schedule I

(a Tier 3 first offense).1 Ott was sentenced to six months of intermediate

punishment with the first twenty days on electronic home monitoring, eighty

hours of community service, a $1,000 fine, and a $100 cost assessment. No

post-sentence motions were filed.              Ott filed a timely notice of appeal on

December 5, 2017, with the assistance of counsel. On December 6, 2017, the

court ordered Ott to provide a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal within twenty-one days. On December 22, 2017,




____________________________________________


1   75 Pa.C.S.A. § 3802(d)(1)(i).
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counsel notified the court of his intention to file a petition to withdraw and a

brief pursuant to Anders v. California, 386 U.S. 738 (1967).

       Counsel filed with this Court a motion to withdraw and an Anders brief.2

We denied counsel’s petition to withdraw, remanded the case with

instructions, and retained panel jurisdiction. See Commonwealth v.

Alexander Ott, No. 3995 EDA 2017 (unpublished memorandum, filed July

13, 2018). Counsel was ordered to include, as part of the certified record on

appeal, the DL-26 form that was allegedly signed by Ott at the time of his

arrest evidencing his consent to draw blood. See Birchfield v. North

Dakota, 136 S. Ct. 2160, 2184-86 (2016) (holding warrantless blood draws

violate Fourth Amendment and drivers cannot be found to have consented to

warrantless blood draw if they believe their refusal constitutes criminal

offense); see also 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[;]”

holding, as matter of first impression, Birchfield ban on warrantless blood

tests for driving under influence (DUI) of alcohol suspects applied to

individuals suspected of DUI of controlled substances). Cf. Commonwealth

v. Olson, 179 A.3d 1134 (Pa. Super. 2018), appeal granted, 111 WAL 2018

(August 7, 2018) (new rule of law that rendered implied consent scheme
____________________________________________


2 Counsel has complied with the requirements of Anders                     and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).                       See
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).


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unconstitutional insofar as it threatened to impose enhanced penalties for

refusal to submit to blood test did not apply retroactively).

       The Pennsylvania Department of Transportation (PennDOT) revised the

DL-26 form within a week of the June 23, 2016 Birchfield decision, to remove

the warnings mandated by 75 Pa.C.S.A. § 3804 that, theretofore, informed

individuals suspected of DUI that they would face enhanced criminal penalties

if they refused to submit to a blood test. See Commonwealth v. Robertson,

186 A.3d 440, 444 (Pa. Super. 2018).3 The revised form, known as Form DL-

26B (which does not include warnings regarding enhanced criminal penalties)

should have been utilized by Officer Laspina in this case, which occurred

approximately one year after Birchfield. As such, we noted in our July 13,

2018 memorandum decision that if an outdated form was used, counsel may

have been ineffective in failing to file a motion to suppress the blood test

results. The parties here had stipulated that the blood test results and the

affidavit of probable cause formed the factual basis of the plea.    See N.T.

Guilty Plea Hearing, 11/6/17, at 6.




____________________________________________


3 The warnings contained on PennDOT’s former DL-26 form provided that if a
person refuses to consent to a blood test he or she will face more severe
criminal penalties because of the refusal. See Commonwealth v.
Robertson, supra (holding PennDOT had authority to amend DL–26 form
prior to the enactment of Act 30, which amended 75 Pa.C.S.A. § 3804 to
comport with Birchfield). The new form, the DL-26B, states that there may
be civil penalties associated with refusal, but the language regarding enhanced
criminal penalties was removed. See Robertson, supra.

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      Counsel has now filed an amended Anders brief and accompanying

motion to withdraw.      Although unable to locate the DL-26 form that Ott

allegedly signed, counsel has outlined his efforts as follows:

      1. Initially, we searched our own file to see if it was there. It was
         not.

      2. The Assistant District Attorney assigned to the case was
         gracious enough to let us review his file to see if it was in there.
         It was not.

      3. We contacted the arresting officer, Officer Joseph L. Laspina,
         Jr., of the Morton Police Department, who volunteered to see if
         he could find it in his office. He could not.

      4. Officer Laspina suggested that we contact PennDOT since his
         Department occasionally sends forms there.            We then
         contacted Tiffany D. Curtis, Esquire, who is with PennDOT’s
         Office of Chief Counsel. After searching her records, Ms. Curtis
         stated that the Department had no Form DL-26 on file for Mr.
         Ott in this case. She also pointed out that the Department
         would not likely come into possession of the document unless
         the motorist had refused the blood test, and it was clear that
         Mr. Ott had consented to it.

Letter from Attorney Patrick J. Connors, 8/1/18.

      Counsel presents the following issues which might arguably support the

appeal:

          1. Whether the sentence of 6 months’ intermediate
             punishment (with the first 20 days on electronic home
             monitoring) imposed on Mr. Ott was harsh and excessive
             under the circumstances?

          2. Whether counsel was ineffective in failing to challenge the
             admissibility of Mr. Ott’s blood test results and whether, as
             a result, the factual basis for his plea, and the plea itself, is
             defective?

Amended Anders Brief, at 2.

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      It is well settled Pennsylvania law that by entering a negotiated guilty

plea, a defendant waives his right to challenge on direct appeal all

nonjurisdictional defects except the legality of the sentence and the validity of

the plea. See Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super.

1991) (“[A] plea of guilty amounts to a waiver of all defects and defenses

except those concerning the jurisdiction of the court, the legality of the

sentence, and the validity of the guilty plea.”); see also Commonwealth v.

Moyer, 444 A.2d 101 (Pa. 1982); Commonwealth v. Coles, 530 A.2d 453

(Pa. Super. 1987). Therefore, with respect to issue one, Ott has waived any

challenge to the discretionary aspects of his sentence. Reichle, supra.

      Of concern here, however, is whether the apparent Birchfield violation,

which would have resulted in suppression of the blood test results, affected

the validity of Ott’s plea.

      The affidavit of probable cause provides as follows:

      On Friday June 2, 2017 at approximately 12:00 I[,] Patrolman
      Joseph LaSpina[,] was in the area of 21 Kedron [A]ve[.] in Morton
      Borough when I observed a white in color Toyota [b]earing PA
      registration KDX1493 and could smell a strong odor of burnt
      marijuana emanating from the vehicle as it proceeded in traffic. I
      observed the vehicle enter the Wawa parking lot and park in a
      spot. As I was approaching the vehicle the driver later identified
      as Alexander Ott started to put his window up. I knocked on the
      window and Ott would not put his window down. Ott did put his
      window down and I could immediately smell a strong odor of burnt
      marijuana emanating from the vehicle. I did conduct a search of
      the vehicle and recovered 7 small bags of marijuana [,] 2 metal
      grinders containing marijuana residue and a glass pipe containing
      marijuana residue.

      Ott stated that he had just smoked marijuana moments
      before he saw my police vehicle. I observed Ott to have blood

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      shot glassy eyes and an unsteady gait. I asked Ott to perform [a]
      field sobriety test which he agreed[;] prior to the test I asked Ott
      if he had any physical or mental disabilit[ies] that would hinder
      him from performing the test[; he] stated no. Field test 1, walk
      and turn I advised Ott to walk 10 steps heel to toe turn and walk
      10 steps back. Ott appeared to be off balance and was unable to
      count how many steps he was taking. Field test 2 one leg stand,
      I advised Ott to keep his hands at his side[,] tilt his head back and
      hold his foot straight out and six inches off the ground. Ott was
      unable to follow directions and only held his foot approximately 1
      inch from the ground and appeared to be off balance. Field test 3
      finger to nose, Ott was instructed to hold his arms out[,] close his
      eyes[,] tilt his head back and touch the tip of his nose with his
      finger 10 times. Ott did miss his nose 3 times and was unable to
      keep count of how many times he was touching his nose.

      Ott was read the DL26 form in its entirety[,] signed, and
      agreed to provide blood. At this time the vehicle was towed by
      Bills Auto Body and Ott was transported to Springfield Hospital
      where a blood sample was taken. Ott was then transported back
      to Police Headquarters where he was released to a family member.
      Blood was sent to Drug scan and awaiting results.

      Based on the above facts and circumstances I[,] Patrolman Joseph
      LaSpina[,] respectfully request a summons be issued to the
      defendant Alexander Ott so he may answer to these charges in a
      court of law.

      (Signature of Affiant)

Affidavit of Probable Cause, 6/13/17 (emphasis added).

      Counsel opines that even if trial counsel had no reasonable basis for

failing to file a motion to suppress Ott’s blood test results in light of the

apparent Birchfield violation, there was no prejudice because Ott admitted

to Officer Laspina that he had smoked marijuana in his car. As noted above,

at the plea hearing, the parties stipulated as follows:

         Q: Mr. Martini, is there a stipulation the Affidavit of Probable
         Cause and the Toxicological Report form the appropriate
         factual basis of the guilty plea?

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         A: Yes, Your Honor.

N.T. Plea Hearing, 11/6/17, at 6. Counsel argues that if the blood test results

are excised from the record, an adequate factual basis for Ott’s guilty plea still

exists because in the affidavit of probable cause, Officer Laspina states that

Ott admitted smoking marijuana in his car. See Amended Anders Brief, at

10.

      We reiterate that Ott entered into a negotiated agreement in exchange

for dismissal of other charges. However, despite the fact that the desire to

benefit from a plea bargain is a strong indicator of the voluntariness of a plea,

Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999), based upon

our independent review of the record, we remain unconvinced that Ott’s plea

was knowingly, intelligently and voluntarily entered. See Commonwealth

v. Shekerko, 639 A.2d 810 (Pa. Super. 1994) (our law is clear that, to be

valid, guilty plea must be knowingly, voluntarily and intelligently entered).

       Assessing whether the plea was knowing, voluntary, and intelligent

requires a consideration of the totality of the circumstances surrounding the

entry of the plea. See id. at 813 (analysis of voluntariness of plea warrants

consideration of totality of circumstances surrounding entry of guilty plea).

Ott’s knowledge of the applicable law was obviously critical to his

understanding of the factual basis for his plea.         Contrary to counsel’s

argument, that “suppression of the test results would not have gained [Ott]

anything[,]” it is conceivable that, had a motion to suppress the blood tests

been granted, which appears unquestionable under Birchfield, Ott may not


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have entered a plea of guilty.         See Amended Anders Brief, at 10.        At a

minimum, Ott and his counsel should have been aware of Birchfield and,

specifically, whether the appropriate DL-26B warnings were given.              See

Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011); see also

Commonwealth v. Fluharty, 632 A.2d 312, 314-15 (Pa. Super. 1993) (“It

is clear that before accepting a plea of guilty, the trial court must satisfy itself

that there is a factual basis for the plea.”). Thus, we do not find this issue is

frivolous.

       Because an attempt to establish that a plea was unknowing or

involuntary due to deficient legal advice sounds in ineffectiveness, see

Commonwealth v. Hickman, 799 A.2d 136 (Pa. Super. 2002), Ott’s relief

lies in collateral review under the Post Conviction Relief Act (“PCRA”). See 42

Pa.C.S.A. §§ 9541-9546. The consequences of any oversight here can only

be undone, if at all, in a properly raised ineffectiveness claim through the

PCRA.        See Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)

(ineffectiveness claims should be deferred to PCRA review).4 However, Ott

has likely completed serving his sentence, and therefore he may be ineligible


____________________________________________


4  See Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013) (holding trial
court retained discretion to hear ineffectiveness claims on post-verdict
motions and direct appeal where claim is apparent from record and
meritorious to extent immediate consideration best serves interest of justice,
or where good cause is shown and defendant knowingly and expressly waives
subsequent PCRA review from conviction and sentence).




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for collateral relief.    See Commonwealth v. O’Berg, 880 A.2d 597 (Pa.

2005) (Court declined to recognize categorical “short sentence” exception to

Grant’s general deferral rule).5

       We, therefore, affirm Ott’s judgment of sentence. We deny counsel’s

petition to withdraw at this juncture in the event Ott is eligible for PCRA relief.

See Commonwealth v. Tukhi, 149 A.3d 881, 889 (Pa. Super. 2016)

(denying counsel's petition to withdraw when “independent review of the

record reveals a potentially non-frivolous issue not raised by counsel”).

       Judgment of sentence affirmed. Motion to withdraw denied. Jurisdiction

relinquished.




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5 We recognize that deferral here may be pointless in the event Ott has
completed serving his sentence. The lower court docket, however, does not
indicate the start date of Ott’s sentence, nor does it indicate whether it was
deferred until disposition of his direct appeal. In any event, our Supreme
Court’s reasons in Grant for deferring review of ineffectiveness claims (lack
of trial court opinion, lack of sufficient record, and transformation of appellate
court into factfinder) all are present here, in the “short sentence” scenario.
See Commonwealth v. Delgros, 183 A.3d 352, 359 (Pa. 2018) (in short
sentence scenario, deferral to collateral proceedings remains appropriate even
though some defendants may not be eligible for PCRA review under section
9543(a) of the PCRA). See also O’Berg, 880 A.2d at 603 (Castille, J.,
concurring) (“With respect to “short-sentence” cases, in drafting the PCRA,
the General Assembly made a presumptively valid legislative judgment that
direct review provides sufficient due process for relatively minor infractions,
no matter how grave a defaulted constitutional violation may have occurred.
The General Assembly elected to provide a reasonable time limitation for filing
a PCRA petition and to exclude from its purview those petitioners who are not
presently imprisoned or on parole or probation, i.e., those for whom habeas
corpus review traditionally would have been unavailable.”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/18




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