J-S46029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

    MATTHEW P. MIKOTTIS,

                           Appellant                   No. 1991 MDA 2016


          Appeal from the Judgment of Sentence November 22, 2016
            In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0003289-2015

BEFORE: BOWES and OLSON, JJ., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY OLSON, J.:                     FILED JUNE 01, 2018

        My learned colleagues conclude that the trial court correctly denied

Appellant’s motion to withdraw his guilty plea – albeit for substantially

different reasons.    As I disagree with the rationale offered by both my

colleagues, and believe that the trial court erred by denying Appellant’s motion

to withdraw his guilty plea, I respectfully dissent.

        As Justice Stevens notes, our Supreme Court mandates that trial courts

liberally grant a defendant’s request to withdraw his or her guilty plea prior to

sentencing. Majority Memorandum,1 ante at 2, quoting Commonwealth

v. Carrasquillo, 115 A.3d 1284, 1291-1292 (Pa. 2015).            In determining



1 Although it is better characterized as a memorandum announcing the
judgment of the court, for simplicity I refer to Justice Stevens’ memorandum
as the Majority Memorandum.


* Former Justice specially assigned to the Superior Court
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whether to grant a presentence motion for withdrawal of a guilty plea, “the

test to be applied by the trial court[] is fairness and justice.” Commonwealth

v. Kerbacher, 594 A.2d 655, 656 (Pa. 1991) (internal alteration and citation

omitted); see Majority Memorandum, ante at 2, quoting Carrasquillo,

115 A.3d at 1291-1292.2 Therefore, if a defendant provides a fair and just

reason to withdraw his or her guilty plea, the trial court should grant it unless

it would substantially prejudice the Commonwealth.         Commonwealth v.

Hvizda, 116 A.3d 1103, 1105 (Pa. 2015) (citation omitted); see Majority

Memorandum, ante at 2, quoting Carrasquillo, 115 A.3d at 1291-1292.3




2 The Concurring Memorandum takes issue with this “nebulous” test. See
Concurring Memorandum, ante at 10. The wisdom of this test, however,
is immaterial to our disposition of this case. As this Court recently explained,
“we are duty-bound to effectuate our Supreme Court's decisional law.”
Commonwealth v. Edwards, 177 A.3d 963, 971 n.15 (Pa. Super. 2018)
(internal quotation marks, alteration, and citation omitted). As the Chief
Justice of the United States stated, “it’s my job to call balls and strikes and
not to pitch or bat.” Commonwealth v. Herman, 161 A.3d 194, 222 n.4
(Pa. 2017) (Wecht, J., concurring and dissenting) (citation omitted). In this
case, calling balls and strikes requires granting Appellant relief.

3  Judge Bowes believes it is a “short jump” from finding a reason to withdraw
a guilty plea is fair and just to finding that same reason must be accepted
after sentencing to avoid manifest injustice.                See Concurring
Memorandum, ante at 10-11. In other words, she does not believe that
there is a meaningful difference between the standards employed when
reviewing a motion to withdraw a guilty plea filed prior to sentencing and one
filed after sentencing. As this Court has explained, our Supreme Court has
rejected this reasoning. Commonwealth v. Pardo, 35 A.3d 1222, 1226 (Pa.
Super. 2011), appeal denied, 50 A.3d 125 (Pa. 2012), citing Commonwealth
v. Lesko, 467 A.2d 307, 310 (Pa. 1983) (“Our Supreme Court has established
significantly different standards of proof for defendants who move to withdraw
a guilty plea before sentencing and for those who move to withdraw a plea
after sentencing.”).


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      In finding Appellant’s claim waived, the Majority Memorandum relies on

the rule that, when a defendant pleads guilty, he or she waives all non-

jurisdictional defects relating to that conviction.   Although this is a correct

statement of the law, it is inapposite when considering the issue presented in

this appeal. Simply put, pleading guilty does not foreclose the existence or

emergence of a fair and just reason to seek withdrawal of one’s plea. The

Majority Memorandum does not cite a single case in which this Court or our

Supreme Court held that, by pleading guilty, a defendant waives his or her

right to seek review of an order denying a motion to withdraw a guilty plea.

To the contrary, the only case cited by the Majority Memorandum in the

substantive portion of the analysis stands for the opposite proposition. In

Commonwealth v. Lincoln, 72 A.3d 606 (Pa. Super. 2013), appeal denied,

87 A.3d 319 (Pa. 2014), this Court noted that a defendant does not waive his

or her right to seek withdrawal of his or her guilty plea (or appeal the denial

of such a motion) by pleading guilty. See id. at 609-610. Instead, this Court

held that a defendant only waives his or her right to seek withdrawal of a

guilty plea if he or she files the motion to withdraw more than ten days after

sentencing. See id. at 610. In this case, Appellant moved to withdraw his

guilty plea before sentencing.    Hence, the lone case cited by the Majority

Memorandum supports my position.

      In her Concurring Memorandum, Judge Bowes, on the other hand,

asserts that Appellant’s claim is properly characterized as an ineffective



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assistance of counsel claim.     Respectfully, I believe that this assertion

misapprehends the test for withdrawing a guilty plea before sentencing and

misinterprets Appellant’s argument.        Relying on Commonwealth v.

Hickman, 799 A.2d 136 (Pa. Super. 2002), the Concurring Memorandum

correctly notes that “an attempt to establish that a plea was unknowing or

involuntary due to deficient legal advice sounds in ineffectiveness.”

Concurring Memorandum, ante at 3. Appellant, however, was not required

to show that his plea was unknowing or involuntary. Instead, Appellant was

only required to provide a fair and just reason for withdrawing his guilty plea.

Carrasquillo, 115 A.3d at 1291-1292. Although an unknowing or involuntary

plea may be a fair and just reason for seeking withdrawal of a guilty plea,

there are other fair and just reasons for withdrawing a guilty plea. I am not

aware of any case law that holds that a major change in the law is not a fair

and just reason.4

      A recent decision of this Court illustrates why I believe that my learned

colleagues’ conclusions are incorrect. In Commonwealth v. Islas, 156 A.3d

1185 (Pa. Super. 2017), the defendant, after entering a guilty plea, learned

from new defense counsel about his right to call character witnesses. This


4 The Concurring Memorandum states that “our precedents do not directly
address whether an ineffectiveness claim premised on a desire to pursue a
Fourth Amendment suppression remedy which was bolstered by a change in
law constitutes a fair and just reason[.]” Concurring Memorandum, ante
at 8. As discussed infra, there is case law which, while not directly on point,
indicates that a change in the law may constitute a fair and just reason for
withdrawing a guilty plea.


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Court found that was a fair and just reason for permitting withdrawal of the

guilty plea.   Id. at 1191.   The defendant in Islas waived his right to call

character witnesses by pleading guilty. Nonetheless, this Court held that he

provided a fair and just reason for withdrawing his guilty plea. In other words,

although a defendant waives all non-jurisdictional defects by pleading guilty

to an offense, he or she does not waive the right to seek withdrawal of that

guilty plea and/or challenge the voluntariness of that plea on appeal. This

holding raises grave doubts about the conclusion that waiver precludes

Appellant’s challenge to the order denying his motion to withdraw his guilty

plea.

        Furthermore, this Court did not treat Islas’ claim as an ineffective

assistance of counsel claim. The Concurring Memorandum asserts that this

Court’s holding in Islas was based on a claim of innocence and that was

consistent with Carrasquillo – a case in which the defendant’s reason for

seeking withdrawal of his guilty plea was a claim of innocence.            See

Concurring Memorandum, ante at 7-8.               Although correct that the

defendant in Islas proclaimed innocence when seeking to withdraw his guilty

plea, the Concurring Memorandum concedes that this Court considered the

defendant’s discovery (through new counsel) of his right to call character

witnesses when determining whether he had a fair and just reason for

withdrawing his guilty plea. Id. It is impossible to cull Islas’ discovery about

the right to call character witnesses from his assertion of innocence in



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determining whether he came forward with a fair and just reason to withdraw

his plea.   This Court considered both factors when determining if Islas

provided sufficient grounds to withdraw his plea.

      As the Concurring Memorandum notes, in Commonwealth v. Holmes,

79 A.3d 562 (Pa. 2013), our Supreme Court held that, except in limited

circumstances not present in the case sub judice, a defendant may not raise

an ineffective assistance of counsel claim on direct appeal.   Because Islas’

argument that he learned of his right to call character witnesses was not an

ineffectiveness of counsel claim, there is no tension between Islas and

Holmes.     Instead, Islas raised his discovery of the right to call character

witnesses as a fair and just reason for seeking withdrawal. Thus, this Court

properly considered that factor when determining if Islas presented a fair and

just reason for seeking withdrawal.

      Relying on Commonwealth v. Orlando, 156 A.3d 1274 (Pa. Super.

2017),5 the Concurring Memorandum concludes that the appropriate avenue

for Appellant to seek relief is the PCRA. See Concurring Memorandum,

ante at 11. Respectfully, this argument offers Appellant the sleeves out of a

vest. Indeed, Pennsylvania case law bars Appellant from seeking PCRA relief

on the grounds suggested by the Concurring Memorandum. Our Supreme


5 In Orlando, the petitioner argued that his plea counsel was ineffective for
failing to notify him that the relevant criminal statute did not cover his
conduct. Orlando, 156 A.3d at 1281. This Court recognized that a claim that
plea counsel was ineffective is cognizable under the PCRA. See id.



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Court “has repeatedly held trial counsel cannot be deemed ineffective for

failing to anticipate” a change in the law. Commonwealth v. Hannibal, 156

A.3d 197, 231–232 (Pa. 2016). In Hannibal, the defendant in a capital case

argued that his counsel was ineffective for failing to seek a jury instruction

that informed the jury that he would not be eligible for parole if he were

sentenced to life imprisonment. Prior to Hannibal’s trial, the Supreme Court

of the United States granted certiorari and heard oral argument in Simmons

v. South Carolina, 512 U.S. 154 (1994). The decision in Simmons, which

held that defendants are entitled to such a jury instruction in certain

circumstances, was issued after Hannibal’s trial. Our Supreme Court rejected

Hannibal’s ineffective assistance of counsel argument and reiterated that

counsel can never be deemed ineffective for failing to anticipate a change in

the law – even when it appears likely that such a change will occur in the near

future. Hannibal, 156 A.3d at 231–232. As the law at the time of Hannibal’s

trial did not entitle him to such a jury instruction, his counsel was not

ineffective in failing to request it.

      A similar situation is present in the case at bar. Although prior to entry

of Appellant’s plea the Supreme Court of the United States granted certiorari

and heard argument in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016),

the subsequent favorable ruling in that case would not constitute valid grounds




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for PCRA relief based on counsel’s failure to file a suppression motion.6 Such

a suppression motion would have required anticipation that Birchfield would

upset the implied consent laws in Pennsylvania. Thus, under a long line of

cases, including Hannibal, Appellant will be barred from pursuing PCRA relief

based on counsel’s failure to pursue a suppression motion.

      The Concurring Memorandum’s attempt to distinguish Hannibal is

unpersuasive. No difference exists between a change in the law affecting a

trial court’s ability to give a requested jury instruction and a change in the law

affecting a trial court’s ability to grant a suppression motion.         In both

circumstances, the trial court is bound by precedent to reach a certain result.

In Hannibal, our Supreme Court reiterated that a defendant cannot claim

counsel was ineffective for failing to anticipate a change in the law – even

when the issue was argued before the Supreme Court of the United States

prior to the trial court’s ruling.   Therefore, the Concurring Memorandum’s

suggestion that the PCRA is the correct avenue for Appellant to seek redress

for his grievance is fundamentally flawed. Instead, this direct appeal is the


6 The Concurring Memorandum states “that [Birchfield] could have been
decided the other way.” Concurring Memorandum, ante at 9. However,
prior to Appellant’s guilty plea, Supreme Court experts predicted that
Birchfield would strike down the laws in question. See Amy Howe, Argument
analysis: Criminal penalties for refusal to take a Breathalyzer test in
jeopardy?, SCOTUSblog (Apr. 20, 2016, 9:55 PM) (available at goo.gl/SpqZXt)
(“[A]fter today’s argument, blood tests without a warrant may be a lost cause.
The only real question may be whether enough [j]ustices are convinced that,
even if a breath test is only minimally invasive, warrants are easy enough to
obtain that they should be required anyway.”).



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only means for Appellant to seek review of the trial court’s decision denying

him permission to withdraw his guilty plea. I believe that decisions from both

our Supreme Court and this Court strongly support Appellant’s present right

to raise such a challenge.7

      In addition to the recent Islas case, I find instructive the prior decision

of this Court in Commonwealth v. Reider, 386 A.2d 559 (Pa. Super. 1978)

(per curiam). In Reider, the defendant physically attacked his parents after

which his parents sought a declaration that the defendant was mentally

disabled.   A psychiatrist determined that the defendant was competent to

stand trial. Thereafter, he pled guilty. “After his plea of guilty and prior to

sentencing, the [trial] court ordered [the defendant] to undergo diagnostic

observation and examination for a period not exceeding [60] days.            The

resulting report indicated that [the defendant] possessed certain psychotic

characteristics in particular, paranoia.” Id. at 559.

      Based on this report, the defendant sought to withdraw his guilty plea

and the trial court denied the request. On appeal, this Court reversed and

found that the report was a fair and just reason for permitting withdrawal.

See id. at 560. This Court reasoned that “[a]lthough the [defendant] and his

attorney were aware of his past history, the report by [the original




7 For this reason, I do not proceed from the assumption that this defendant
must be permitted to withdraw his guilty plea.               See Concurring
Memorandum, ante at 8. Instead, I believe Appellant is entitled to raise
this issue on direct appeal and is barred from receiving collateral relief.


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psychiatrist] apparently extinguished any hope of an insanity defense. The

second report . . . did not conclude that [the defendant] was legally insane,

but it did state he suffered from paranoia.” Id.

      An analogous situation is present in this case. At a minimum, Appellant

and his counsel could have been aware that the Supreme Court of the United

States granted certiorari in Birchfield five months prior to Appellant’s guilty

plea. See Birchfield v. North Dakota, 136 S.Ct. 614 (2015) (per curiam).

Nonetheless, Appellant was not aware that the outcome of that case would

render his blood draw subject to challenge. Thus, although Appellant should

have waited to plead guilty until Birchfield was decided, that does not mean

the Birchfield decision failed to provide a fair and just reason for Appellant

to seek withdrawal of his guilty plea.8 See Reider, 386 A.2d at 560.

      As the Concurring Memorandum notes, Reider was decided prior to

Holmes and other cases that bar defendants from raising ineffective

assistance   of   counsel   claims   on   direct   appeal.   See   Concurring

Memorandum, ante at 6-7. The concurrence, however fails to note that in

Reider this Court did not analyze the defendant’s argument under the

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349, 352-353

(Pa. 1967), overruled, Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987),


8 The Concurring Memorandum’s critique of this statement is puzzling. See
Concurring Memorandum, ante at 9 n.4.             Viewed from Appellant’s
perspective, the risk associated with waiting (the Commonwealth possibly
withdrawing its plea offer) was dwarfed by the possible benefit (suppression
of the blood test evidence).


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framework, which was the governing law regarding ineffective assistance of

counsel in 1978.    Instead, this Court conducted the fair and just reason

analysis required when evaluating a request to withdraw a guilty plea. See

Concurring Memorandum, ante at 6.            Thus, the fact that Reider was

decided when ineffective assistance of counsel claims could be raised on direct

appeal does not distinguish it from the case at bar as no such ineffectiveness

claim was presented in Reider.

      I acknowledge that three of seven members of this Court previously

stated that a change in the law is not a fair and just reason for permitting

withdrawal of a guilty plea. Commonwealth v. West, 378 A.2d 1289, 1292

(Pa. Super. 1977) (Spaeth, J., opinion announcing the judgment of the court).

I find West unpersuasive for several reasons. First, as noted above, Judge

Spaeth’s opinion in West failed to garner a majority of the judges that heard

the case. Second, the statement in West was dicta. Finally, the two cases

cited for this proposition in West, Commonwealth v. Williams, 375 A.2d

155 (Pa. Super. 1977), and Commonwealth v. Kamenca, 323 A.2d 162 (Pa.

Super. 1974), do not discuss changes in the law or whether such changes are

fair and just reasons for permitting withdrawal of a guilty plea. Thus, I find

Reider, decided one year after West, to be more instructive.

      As noted above, motions to withdraw guilty pleas prior to sentencing

should be liberally granted. Commonwealth v. Garcia, 43 A.3d 470, 476-

477 (Pa. 2012); Majority Memorandum, ante at 2 (citation omitted). In



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this case, after Appellant pled guilty, but prior to being sentenced, the law

significantly changed as to require further inquiry to determine if his blood

draw were consensual and voluntary. This change substantially altered the

calculus of whether to file a motion to suppress. If, in light of Birchfield,

Appellant successfully moved to suppress the results of his blood draw, this

would no doubt have had a substantial impact on his decision to plead guilty

to DUI – highest rate of alcohol, since this charge could no longer be proved.

Accordingly, I conclude that Appellant provided a fair and just reason for

withdrawing his guilty plea.9

      Having determined that Appellant provided a fair and just reason, I turn

to whether the Commonwealth would be substantially prejudiced by Appellant

withdrawing his guilty plea.    Neither the trial court, the Commonwealth,

Justice Sevens, nor Judge Bowes point to any substantial prejudice that would

result from Appellant withdrawing his guilty plea and I am similarly unable to

detect any such prejudice. As such, I conclude that the Commonwealth will

not be substantially prejudiced by the withdrawal of Appellant’s guilty plea

and I would vacate Appellant’s judgment of sentence and remand for further

proceedings.


9 Contrary to Judge Bowes’ argument, I am not attempting to “manufacture[]
retroactive application of Birchfield.” Concurring Memorandum, ante at
10. An opinion I joined, authored by now-Justice Donohue, shows that I
believe that retroactive application of a rule is only appropriate on direct
appeal if “the defendant preserved the issue in the trial court.”
Commonwealth v. Brown, 71 A.3d 1009, 1016 (Pa. Super. 2013), appeal
denied, 77 A.3d 635 (Pa. 2013).


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      Under the Majority Memorandum’s rationale, it would be very difficult,

if not impossible, for a defendant to provide a fair and just reason to withdraw

his or her guilty plea prior to sentencing.      On the other hand, under the

Concurring Memorandum’s rationale, a defendant is never entitled to relief

based on a change in the law that occurs prior to sentencing as such a claim

would be deemed ineffective assistance of counsel which cannot be raised until

collateral review and once considered, would offer no relief since counsel

cannot be deemed ineffective for failing to anticipate a change in the law. Our

Supreme Court, however, has repeatedly held that requests to withdraw guilty

pleas should be liberally granted. In this case, the trial court failed to liberally

grant Appellant’s request.10 Therefore, I respectfully dissent.




10 The Concurring Memorandum posits that, even if I am correct regarding a
change in the law being a fair and just reason to seek withdrawal of a guilty
plea, we should vacate and remand for an evidentiary hearing instead of
reversing. See Concurring Memorandum, ante at 8. The foundation of
this position is that Appellant is raising an ineffective assistance of counsel
claim. As I have explained, I believe that this foundational assumption is
incorrect. Therefore, an evidentiary hearing is not necessary.


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