J-S43034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD FRIEDMAN                           :
                                               :
                       Appellant               :   No. 161 WDA 2018

                 Appeal from the PCRA Order January 5, 2018
    In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0002902-2015


BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 24, 2018

       Appellant Richard Friedman appeals from the order dismissing his first

petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. Appellant contends that Birchfield v. North Dakota, 136 S. Ct. 2160

(2016), applies retroactively to his case and that his plea counsel was

ineffective for failing to pursue the claim in a post-sentence motion or on direct

appeal. We affirm.

       On November 24, 2015, Appellant pled guilty to driving under the

influence (DUI)—incapable of safely driving and related offenses.1             On
____________________________________________


1 75 Pa.C.S. § 3802(a)(1), 35 P.S. § 780-113(a)(32), and 75 Pa.C.S. §
1543(b) respectively. We note Appellant’s section 1543(b) conviction was
under the version of the statute that expires on October 20, 2018. This was
Appellant’s third DUI offense in ten years, and he refused blood testing at the
time of his arrest. Because of Appellant’s prior convictions and his refusal to
submit to blood testing, the grade of Appellant’s DUI offense was increased to
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December 11, 2015, the trial court sentenced Appellant to an aggregate term

of eighteen to thirty-six months’ imprisonment followed by three years of

probation.     Appellant’s plea counsel filed a timely post-sentence motion.

According to the PCRA court, Appellant withdrew the post-sentence motion at

a hearing on January 28, 2016.2

       On June 23, 2016, the United States Supreme Court decided Birchfield,

holding that a motorist may not be criminally punished for exercising his right

to refuse a warrantless blood test.            See Birchfield, 136 S. Ct. at 2186.

Birchfield thus invalidated the enhanced penalty for refusal contained in 75

Pa.C.S. § 3804(c). See Commonwealth v. Giron, 155 A.3d 635, 639 (Pa.

Super. 2017).

       On October 19, 2016, Appellant timely filed the instant pro se PCRA

petition. Appointed counsel filed an amended petition on January 10, 2017,

alleging that Appellant’s sentence was illegal pursuant to Birchfield and that

plea counsel was ineffective for failing to pursue the claim post-sentence. The

PCRA court ultimately dismissed the petition, concluding that Birchfield is not

applicable to cases on collateral review. This timely appeal followed.
____________________________________________


a misdemeanor of the first degree, and the mandatory minimum sentence was
increased to one year. See 75 Pa.C.S. §§ 3803(b)(4), 3804(c)(3).

2 The record does not contain an order memorializing the withdrawal of the
post-sentence motion or otherwise denying relief, nor does the docket reflect
the entry of such an order. However, the comments to Pa.R.Crim.P. 720 state
that “when a defendant withdraws a post-sentence motion in open court and
on the record, the judge should orally enter an order memorializing the
withdrawal for the record, and give the defendant notice” of the time for
appeal. Pa.R.Crim.P. 720 cmt.

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       Appellant presents the following issues for our review:

       1. [Appellant]’s sentence is illegal under Birchfield v. North
          Dakota, 136 S. Ct. 2160 (2016)[,] and Appellant is entitled to
          resentencing.

       2. Trial counsel was ineffective for failing to file a post-sentence
          motion/appeal raising the above Birchfield claims challenging
          the excessive/illegal sentence.


Appellant’s Brief at 1.

       Our standard of review of the denial of a PCRA petition is well-settled.

We “review[] the PCRA court’s findings of fact to determine whether they are

supported by the record, and review[] its conclusions of law to determine

whether they are free from legal error.” Commonwealth v. Spotz, 84 A.3d

294, 311 (Pa. 2014) (citation omitted).

       Appellant first claims that he is entitled to relief because Birchfield

should apply retroactively and therefore his sentence—based on his refusal to

submit to blood testing—was illegal. However, this Court recently addressed

an identical claim and held that “Birchfield does not apply retroactively in

Pennsylvania to cases pending on collateral review.”        Commonwealth v.

Olson, 179 A.3d 1134, 1139 (Pa. Super. 2018), appeal granted, 111 WAL

2018 (Pa. Aug. 7, 2018).3            More precisely, a petitioner cannot invoke



____________________________________________


3 Although our Supreme Court has granted allowance of appeal in Olson,
Olson remains binding precedent unless and until reversed by our Supreme
Court. See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013)
(noting that one panel of the Superior Court “is not empowered to overrule
another panel of the Superior Court”).

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Birchfield in a timely PCRA petition as a basis for relief.    See id.   Thus,

Appellant’s first claim warrants no relief.

      In his remaining claim, Appellant alleges that plea counsel was

ineffective for failing to raise the Birchfield issue after sentencing.

Appellant’s Brief at 4. However, “[t]he law is clear that counsel cannot be

held ineffective for failing to anticipate a change in the law.” Commonwealth

v. Cox, 983 A.2d 666, 702 (Pa. 2009) (citation omitted). Here, Appellant

notes that the United States Supreme Court granted writ of certiorari in

Birchfield on the day he was sentenced.       The Supreme Court’s decision,

however, was not rendered until June of the following year, approximately

four months after Appellant’s sentence became final.     Therefore, Appellant

cannot now claim that his then-counsel was ineffective for failing to challenge

the legality of his sentence based on Birchfield, as the Supreme Court’s

ultimate decision, and potential effect on Pennsylvania law, was still unknown

at that time.   See id.     Accordingly, we agree with the PCRA court that

Appellant’s second issue lacks merit. For these reasons, we discern no error

in the PCRA court’s dismissal. See Spotz, 84 A.3d at 311.

      Order affirmed.




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J-S43034-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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