J-S69042-17

                                   2017 PA Super 357


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    NATHAN ROI WILCOX                          :
                                               :   No. 986 WDA 2017
                       Appellant

                   Appeal from the PCRA Order June 14, 2017
     In the Court of Common Pleas of Crawford County Criminal Division at
                       No(s): CP-20-CR-0000221-2015


BEFORE:      BOWES, J., RANSOM, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                          FILED NOVEMBER 13, 2017

       Appellant Nathan Roi Wilcox appeals from the Order entered in the Court

of Common Pleas of Crawford County on June 14, 2017, dismissing his first

petition filed pursuant to the Post Conviction Relief Act (PCRA).1 We affirm.

       On May 26, 2015, Appellant entered a negotiated guilty plea to Driving

Under the Influence of Alcohol or Controlled Substance-Highest Rate of Alcohol

and Driving on Roadways Laned for Traffic.2 On July 16, 2015, Appellant was

sentenced to a term of sixty (60) months of intermediate punishment, with

the first thirty (30) days being spent in the county correctional facility.




____________________________________________


1 42 Pa.C.S.A. §§ 9541-9546.
2 75 Pa.C.S.A. §§ 3802(c) and 3309(1), respectively. The Criminal Complaint
alleged Appellant had been operating a vehicle on a public road at a time when
his BAC was .30%. Appellant had a prior DUI offense on August 24, 2013.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S69042-17



Appellant did not file a pre-trial motion to suppress the results of the blood

draw, nor did he file a post-sentence motion or a direct appeal.

       On July 15, 2016, Appellant filed a timely PCRA petition pro se. Therein,

Appellant maintained that he had pled guilty in light of the BAC revealed in

the warrantless blood draw performed upon him and that his counsel informed

him “the Supreme Court ruled the Fourth Amendment does not permit

warrantless blood tests incident to arrests for drunk driving.”      See PCRA

Petition, filed 7/16/25, at 3. A counselled, Amended Second Petition for Post-

Conviction Collateral Relief was filed on November 7, 2016, wherein Appellant

specifically argued he is entitled to have his conviction vacated in light of the

United States Supreme Court’s decision of June 23, 2016, in Birchfield v.

North Dakota, ___ U.S. ____, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016).3



____________________________________________


3 In Birchfield, the Supreme Court held that the search-incident-to-arrest
exception to the warrant requirement did not justify warrantless blood testing
of individuals arrested on DUI charges. Id. at 2185. In doing so, the Supreme
Court emphasized that “motorists cannot be deemed to have consented to a
blood test on pain of committing a criminal offense.” Id. at 2186. Following
that decision, this Court held the implied consent warnings contained in the
former version of the DL-26 Form, a copy of which had been read to the
appellant, were partially inaccurate. Therefore, we vacated the suppression
court’s order as well as the appellant's judgment of sentence and remanded
the matter to the trial court to reevaluate the appellant's consent in light of
the totality of the circumstances given the partial inaccuracy of the officer's
advisory. Commonwealth v. Evans, 153 A.3d 323, 331 (Pa.Super. 2017);
see also Commonwealth v. Giron, 155 A.3d 635 (Pa.Super. 2017)
(vacating sentence that included increased criminal penalties based on the
defendant’s refusal to consent to blood test).



                                           -2-
J-S69042-17



      The PCRA court conducted a hearing on Appellant’s petition on February

17, 2017, at which time the parties agreed that the sole issue before the court

was whether the holding in Birchfield applies retroactively to Appellant. In

its Order entered on June 14, 2017, the PCRA court dismissed the PCRA

petition. Appellant filed a timely notice of appeal on June 29, 2017.

      On July 5, 2017, the PCRA court ordered Appellant to file a concise

statement of the matters complained of on appeal pursuant to Pa.R.A.P. 1925.

Appellant filed his concise statement the next day wherein he raised the

following issue: “Whether the pcra court erred in not applying the United

States Supreme Court decision of Birchfield vs. North Dakota retroactively to

appellant’s DUI case?” The PCRA court filed its Pa.R.A.P. 1925(a) Opinion on

July 17, 2017, wherein it adopted the reasoning of the trial court in a separate

matter decided in the Court of Common Pleas of Crawford County wherein the

court held that “Birchfield regulates the manner of determining whether a

[d]efendant’s conduct is such that enhanced penalty applies, and therefore is

a procedural rule, and does not apply retroactively.” Trial Court Opinion, filed

7/17/17, at 1.     Appellant presents the same issue for our review in his

appellate brief.

      Our standard of review of a PCRA court's [dismissal] of a petition
      for post[-]conviction relief is well-settled: We must examine
      whether the record supports the PCRA court's determination, and
      whether the PCRA court's determination is free of legal error. The
      PCRA court's findings will not be disturbed unless there is no
      support for the findings in the certified record.




                                     -3-
J-S69042-17


Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010) (citation

omitted).

      Appellant maintains that the Birchfield decision created a new

substantive law, not a new procedural law, that is to be applied retroactively

to his case. In the alternative, Appellant asserts that if this Court were to

conclude the Birchfield case created a new rule of criminal procedure as

opposed to a new substantive rule of law, his conviction still should be vacated

pursuant to 75 Pa.C.S.A. § 3802(c). Brief for Appellant at 15-16.

      Neither the United States Supreme Court nor our Supreme Court has

held that Birchfield is to be applied retroactively to cases like the one herein

where the judgment of sentence had become final prior to its disposition. The

United States Supreme Court has stated that where, as in Birchfield, one of

its decisions “results in a ‘new rule,’ that rule applies to all criminal cases still

pending on direct review. As to convictions that are already final, however,

the rule applies only in limited circumstances.” Schriro v. Summerlin, 542

U.S. 348, 351, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442, ___ (2004) (emphasis

added). “Case law is clear [ ] that in order for a new rule of law to apply

retroactively to a case pending on direct appeal, the issue had to be

preserved at ‘all stages of adjudication up to and including the direct appeal.’”

Commonwealth v. Tilley, 566 Pa. 312, 318, 780 A.2d 649, 652 (2001)

(emphasis added) (quoting Commonwealth v. Cabeza, 503 Pa. 228, 469

A.2d 146, 148 (1983)). An exception to the issue-preservation requirement


                                        -4-
J-S69042-17


exists where the challenge is one implicating the legality of one’s sentence.

Commonwealth v. Barnes, ___ Pa. ___, ____, 151 A.3d 121, 124 (2016)

(citation omitted).

      Recently, this Court considered a matter wherein the appellant argued

the trial court had erred in declining to vacate her DUI conviction in light of

Birchfield where the Birchfield decision was handed down two days after

the appellant had been sentenced. In finding the appellant was not entitled

to retroactive application of Birchfield, we reasoned as follows:

      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 and preserved the issue
      in question and in whose case the issue remained pending while a


                                     -5-
J-S69042-17


      higher court decided the issue in a similar case. The Cabeza Court
      explained:

           In both cases, a defense challenge to the ruling was
           raised during trial and the issue preserved and argued
           in post trial motions and on appeal. The only noteworthy
           difference between [Commonwealth v. Scott, 496 Pa.
           188, 436 A.2d 607 (1981),] and the appellee is that
           Scott was argued and decided first. The instant case
           may well have been the case which overruled prior law
           if Scott had not been decided while appellee's appeal to
           the Superior Court was pending. The question of
           whether to apply an enlightened rule in favor of a
           discredited one should not be determined by the fortuity
           of who first has his case decided by an appellate court.
      Id.
      In contrast, Appellant's case could not have been the case that
      invalidated warrantless blood draws coerced by the threat of
      criminal prosecution because Appellant never raised the issue.
      Absent further development of the law of retroactivity from the
      Pennsylvania Supreme Court, Appellant is not entitled to rely on
      Birchfield. The trial court did not err in refusing to vacate
      Appellant's DUI sentence.

Commonwealth v. Moyer, ___ A.3d ____, 2017 WL 4348121 at *4-5

(Pa.Super. Oct. 2, 2017).

      Herein, Appellant did not assert in his PCRA petition that his sentence is

illegal, nor did he challenge his consent to submit to a blood draw at any stage

of the proceedings in the Court of Common Pleas.         Thus, in light of the

foregoing, Appellant is not entitled to relief under Birchfield. Moreover, even

had the United States Supreme Court or our Supreme Court held Birchfield

is to be applied retroactively to cases in which the judgment of sentence has

become final, in setting forth his arguments, Appellant fails to acknowledge

that he had pled guilty to the charges on which he was sentenced.


                                     -6-
J-S69042-17


      In Commonwealth v. Singleton, ___ A.3d. ____, 2017 WL 3528693,

at *1 (Pa.Super. August 17, 2017), this Court reiterated the well-settled

principle that by entering a guilty plea, a defendant waives all nonjurisdictional

defects and defenses as well as his right to challenge anything but the legality

of the sentence and the validity of the plea.       Appellant's issue does not

constitute a challenge to the legality of his sentence or to the validity of his

guilty plea which he entered over a year prior to the Birchfield decision.

Significantly, Appellant did not maintain in a pre-trial suppression motion or

otherwise present any claim that his pre-arrest blood draw and subsequent

testing were performed involuntarily without his consent or were coerced, and

he nowhere now alleges that he is innocent or that his guilty plea was entered

involuntarily, unknowingly or unintelligently.

      To the contrary, in his plea colloquy, Appellant represented that he

understood the English language and the charges against him, and he

admitted to the facts that led to those charges. Appellant also indicated that

by pleading guilty, he understood he was foregoing certain rights, including,

inter alia, the presumption of innocence, certain defenses, the right to a jury

trial, and most of his direct appeal rights. Appellant affirmed that he was

pleading guilty of his own free will, that no one had forced him to plead guilty,

and that he had the right to be represented by counsel at both the guilty plea

and trial. Written Guilty Plea Colloquy, 5/26/15, at 36-42.




                                      -7-
J-S69042-17


       Because Appellant is not disputing the validity of his plea or the legality

of his sentence, the sole claim he presents for this Court’s review is waived.

See Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011)

(stating that a person who elects to plead guilty is bound by the statements

he made during the plea colloquy, and may not later assert grounds for

withdrawing the plea which contradict those statements). Accordingly, the

trial court did not err in refusing to vacate Appellant’s DUI sentence. 4

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2017




____________________________________________


4 This Court is not bound by rationale of a trial court and may affirm the trial
court's order on any basis. Commonwealth v. Doty, 48 A.3d 451, 456
(Pa.Super. 2012).




                                           -8-
