J-S12038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
           v.                            :
                                         :
DAVID GREGORY GEHR,                      :
                                         :
                 Appellant               :           No. 1012 MDA 2016

            Appeal from the Judgment of Sentence June 7, 2016
             in the Court of Common Pleas of Lycoming County,
             Criminal Division, No(s): CP-41-CR-0001010-2015

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED APRIL 13, 2017

     David Gregory Gehr (“Gehr”) appeals from the judgment of sentence

imposed following his guilty plea to person not to possess a firearm, driving

under the influence (“DUI”)-refusal, possession of a small amount of

marijuana, and possession of drug paraphernalia.         See 18 Pa.C.S.A.

§ 6105(a)(1); 75 Pa.C.S.A. § 3802(a)(1); 35 P.S. § 780-113(a)(31), (32).1

Additionally, Gehr’s counsel, Joshua M. Bower, Esquire (“Attorney Bower”),

has filed a Petition to Withdraw as Counsel and an accompanying brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967).        We deny

Attorney Bower’s Petition, vacate the judgment of sentence, and remand for

resentencing.

     On January 11, 2015, Gehr backed his vehicle into David Lunger’s

(“Lunger”) vehicle. Gehr fled the scene without exchanging any information

1
  Gehr also pled guilty to various summary traffic offenses.         See 75
Pa.C.S.A. §§ 1786(f), 3309(1), 3714(a), 3745(a).
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with Lunger. Lunger called the police and began to follow Gehr. The police

eventually stopped Gehr. Gehr was found to be intoxicated, and possessed

a small amount of marijuana, a glass pipe, and a .22 caliber rifle. Gehr told

the police that he was drinking vodka at a friend’s home, and that he

smokes marijuana every day to relax.          The police arrested Gehr and

transported him to the hospital, where Gehr refused to submit to a blood

test. Subsequently, the police determined that Gehr was a convicted felon

and was not permitted to possess a firearm.

      On January 5, 2016, Gehr pled guilty to the above-mentioned crimes.

On April 20, 2016, the trial court sentenced Gehr to five to ten years in

prison for the person not to possess a firearm conviction, and a consecutive

prison term of one and one-half to five years for the DUI-refusal conviction.

The trial court also imposed fines upon Gehr.   The trial court did not impose

any further prison sentences on the remaining convictions. Gehr filed Post-

Sentence Motions, seeking to withdraw his guilty plea and reconsideration of

his sentence. The trial court denied Gehr’s request to withdraw his plea, but

granted Gehr’s reconsideration of sentence request. On June 7, 2016, the

trial court imposed the same sentences for the person not to possess a

firearm and DUI-refusal convictions, but imposed them concurrently.       The

trial court did not change the remaining part of the prior sentencing Order.

Gehr filed a timely Notice of Appeal.




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     We must first determine whether Attorney Bower has complied with

the dictates of Anders in petitioning to withdraw from representation. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc) (stating that “[w]hen faced with a purported Anders brief, this Court

may not review the merits of any possible underlying issues without first

examining counsel’s request to withdraw.”). Pursuant to Anders, when an

attorney believes that an appeal is frivolous and wishes to withdraw as

counsel, he or she must

     1) petition the court for leave to withdraw stating that, after
     making a conscientious examination of the record, counsel has
     determined that the appeal would be frivolous; 2) furnish a copy
     of the brief to the defendant; and 3) advise the defendant that
     he or she has the right to retain private counsel or raise
     additional arguments that the defendant deems worthy of the
     court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc).

     Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders brief must

     (1) provide a summary of the procedural history and facts, with
     citations to the record; (2) refer to anything in the record that
     counsel believes arguably supports the appeal; (3) set forth
     counsel’s conclusion that the appeal is frivolous; and (4) state
     counsel’s reasons for concluding that the appeal is frivolous.
     Counsel should articulate the relevant facts of the record,
     controlling case law, and/or statutes on point that have led to
     the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).




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      Here, Attorney Bower has complied with the requirements set forth in

Anders by indicating that he has conscientiously examined the record and

determined that an appeal would be frivolous.          Further, Attorney Bower

provided a letter to Gehr, informing Gehr of his intention to withdraw, and

advising Gehr of his rights to retain new counsel, proceed pro se, and file

additional claims.      Finally, Attorney Bower’s Anders brief meets the

standards set forth in Santiago by providing a factual summary of Gehr’s

case, with support for Attorney Bower’s conclusion that Gehr’s plea was

knowingly, voluntarily, and intelligently made. Because Attorney Bower has

complied   with   the    procedural   requirements     for   withdrawing   from

representation, we will independently review the record to determine

whether Gehr’s appeal is, in fact, wholly frivolous.

      In the Anders brief, Attorney Bower raises the following question for

our review:

      Did the [trial] court err when it denied [Gehr’s] [M]otion to
      withdraw his guilty plea, after sentencing, when [] Gehr made a
      showing of manifest injustice after testifying [that] he entered
      into the plea with an expectation of receiving a county
      sentence[,] despite the nature of the crime and his prior record
      score?

Anders Brief at 9 (unnumbered). Gehr did not file a response.

      Gehr contends that the trial court erred in denying his Motion to

withdraw his guilty plea. Anders Brief at 14 (unnumbered). Gehr argues

that he did not knowingly plead guilty because he expected a county

sentence, not a state sentence. Id. at 14-15 (unnumbered). Gehr asserts


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that he did not have sufficient time to discuss the plea with his attorney

prior to the guilty plea hearing. Id. at 15 (unnumbered).

            Our law is clear that, to be valid, a guilty plea must be
      knowingly, voluntarily and intelligently entered. There is no
      absolute right to withdraw a guilty plea, and the decision as to
      whether to allow a defendant to do so is a matter within the
      sound discretion of the trial court. To withdraw a plea after
      sentencing, a defendant must make a showing of prejudice
      amounting to “manifest injustice.” A plea rises to the level of
      manifest injustice when it was entered into involuntarily,
      unknowingly, or unintelligently. A defendant’s disappointment in
      the sentence imposed does not constitute “manifest injustice.”

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008)

(citation omitted).

      In order to ensure a voluntary, knowing, and intelligent plea, trial

courts are required to ask the following questions in the guilty plea colloquy:

      1) Does the defendant understand the nature of the charges to
         which he or she is pleading guilty or nolo contendere?

      2) Is there a factual basis for the plea?

      3) Does the defendant understand that he or she has the right to
         a trial by jury?

      4) Does the defendant understand that he or she is presumed
         innocent until found guilty?

      5) Is the defendant aware of the permissible ranges of sentences
         and/or fines for the offenses charged?

      6) Is the defendant aware that the judge is not bound by the
         terms of any plea agreement tendered unless the judge
         accepts such agreement?

Id. (citation omitted); see also Pa.R.Crim.P. 590, cmt.




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            The guilty plea colloquy must affirmatively demonstrate
      that the defendant understood what the plea connoted and its
      consequences. Once a defendant has entered a plea of guilty, it
      is presumed that he was aware of what he was doing, and the
      burden of proving involuntariness is upon him. In determining
      whether a guilty plea was entered knowingly and voluntarily, ...
      a court is free to consider the totality of the circumstances
      surrounding the plea.

Bedell, 954 A.2d at 1212 (citations and quotation marks omitted).

      At the plea colloquy, Gehr indicated that he understood the English

language, and that he was not under the influence of alcohol or drugs.

Written Guilty Plea Colloquy, 1/5/16, at 5.       Gehr understood the charges

against him, and admitted to the facts that led to those charges. Id. at 2,

5. Gehr also indicated that by pleading guilty, he understood that he was

foregoing certain rights, including, inter alia, the presumption of innocence,

the right to a jury trial, and most of his direct appeal rights.        Id. at 2-5.

Gehr affirmed that he was pleading guilty of his own free will, that no one

had forced him to plead guilty, and that he was satisfied with his attorney’s

representation. Id. at 5, 6. Further, Gehr understood that he was entering

an open guilty plea, and that the trial court was not bound by the terms of

the plea.     Id. at 1, 2.     The trial court also informed Gehr about the

permissible ranges of sentences for each of the convictions. Id. at 1, 2; see

also id. at 2 (wherein Gehr acknowledged that nobody had promised or

suggested the actual sentence that the judge would impose).

      Based    upon   the    foregoing,   we   conclude   that   Gehr   knowingly,

voluntarily and intelligently tendered his guilty plea. See Commonwealth


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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); Commonwealth v. Muhammad, 794

A.2d 378, 384 (Pa. Super. 2002) (stating that appellant cannot claim that he

involuntarily entered a guilty plea where he stated that no one threatened

him to plead guilty).     In point of fact, Gehr specifically stated that he

understood the permissible ranges of sentence and that no specific prison

sentence, whether county or state, was promised to him.                     See

Muhammad, 794 A.2d at 383 (stating that “disappointment by a defendant

in the sentence actually imposed does not represent manifest injustice.”).

Thus, Gehr’s claim is frivolous.

      However, we must conduct an independent review of the record to

determine whether there are any other non-frivolous issues that Gehr could

raise on appeal.2 We will first determine whether the imposition of Gehr’s

sentence for the DUI-refusal conviction violated the recent United States

Supreme Court holding in Birchfield v. North Dakota, 136 S. Ct.




2
   We acknowledge that “[t]he entry of a guilty plea constitutes a waiver of
all defects and defenses except lack of jurisdiction, invalidity of the plea, and
illegality of the sentence.” Commonwealth v. Tareila, 895 A.2d 1266,
1267 (Pa. Super. 2006).



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2160 (2016).3

      In Birchfield, the Supreme Court concluded that “a breath test, but

not a blood test, may be administered as a search incident to a lawful arrest

for drunk driving.”   Birchfield, 136 S. Ct. at 2185.        Additionally, the

Supreme Court held that blood tests taken pursuant to implied consent laws

are an unconstitutional invasion of privacy.    Id. at 2186.    The Supreme

Court stated that “motorists cannot be deemed to have consented to submit

to a blood test on pain of committing a criminal offense.” Id.; see also id.

(concluding that the petitioner could not be convicted of refusing a

warrantless blood draw following an arrest for driving under the influence).

      Here, at the time of his sentencing and resentencing hearing, Gehr




3
  In the letter informing Gehr of his request to withdraw as counsel, Attorney
Bower states that the Birchfield decision may impact Gehr’s DUI-refusal
conviction. See Letter, 11/28/16. However, Attorney Bower indicated that
Birchfield was decided after Gehr’s sentence, and while his appeal was
pending, and thus, did not raise a Birchfield claim in the Anders brief.
See id. Here, Birchfield was decided on June 23, 2016, after Gehr’s
sentence was imposed, but during the pendency of the instant appeal.
Because this issue relates to the legality of sentence, and Birchfield was
decided during the pendency of Gehr’s appeal, we may address the legality
challenge. See Commonwealth v. Barnes, 151 A.3d 121, 125-26 (Pa.
2016); see also Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (stating
that a United States Supreme Court decision resulting in a new rule of law
“applies to all criminal cases still pending on direct review.”).


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was subject to the penalties set forth in section 3804(c)(2), 4 as he pled

guilty to DUI under section 3802(a)(1), his second offense, and refused to

consent to a blood test. See N.T., 4/20/16, at 4 (noting that the mandatory

minimum was ninety days); Sentencing Order, 4/20/16, at 3 (unnumbered)

(stating that Gehr must pay the mandatory minimum fine of $1,500).5

        As the Birchfield Court held that the practice of criminalizing the

failure to consent to blood testing following a driving under the influence

arrest was unconstitutional, we conclude that the trial court improperly


4
    Section 3804(c)(2) states the following:

        (c)   Incapacity;     highest     blood     alcohol;    controlled
        substances.--An individual who violates     section 3802(a)(1) and
        refused testing of blood or breath or an    individual who violates
        section 3802(c) or (d) shall be sentenced   as follows:

                                        ***

        (2) For a second offense, to:

        (i)      undergo imprisonment of not less than 90 days;

        (ii)     pay a fine of not less than $1,500;

        (iii)    attend an alcohol highway safety school approved by
                 the department; and

        (iv)     comply with all drug and alcohol treatment
                 requirements imposed under sections 3814 and 3815.

75 Pa.C.S.A. § 3804(c)(2).
5
  As part of its June 7, 2016 Sentencing Order, the trial court stated that
apart from imposing the sentences concurrently, the remainder of the April
20, 2016 Sentencing Order remained in effect. See Sentencing Order,
6/7/16, at 2 (unnumbered).


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relied upon section 3804(c)(2) in imposing a mandatory minimum sentence

upon Gehr.    See Commonwealth v. Giron, 2017 PA Super 23, *4 (Pa.

Super. 2017) (holding that “pursuant to Birchfield, in the absence of a

warrant or exigent circumstances justifying a search, a defendant who

refuses to provide a blood sample when requested by police is not subject to

the enhanced penalties provided in 75 Pa.C.S.A. §§ 3803-3804.”). Because

there was no statutory authority to impose the sentence, we must vacate

the judgment of sentence and remand for resentencing.6 See id.

     Based upon the foregoing, we affirm Gehr’s convictions, vacate his

sentence and remand for resentencing.       Accordingly, we deny Attorney

Bower’s Petition to Withdraw.7




6
  We note that the trial court imposed a sentence of one and one-half to five
years in prison for the DUI-refual conviction, well above the mandatory
minimum, and ran this sentence concurrent to the persons not to possess
firearm conviction.    Ostensibly, the trial court could impose the same
sentence during resentencing. However, in imposing the sentence, the trial
court cannot consider the mandatory minimum sentence in section
3804(c)(2), and cannot impose the mandatory fine.
7
   Gehr has filed a separate Motion for Change of Appointed Counsel.
However, based upon our disposition of this case and denial of Attorney
Bower’s Petition to Withdraw, we deny Gehr’s Motion. Nevertheless, Gehr is
free to file such a motion with the trial court upon remand for resentencing.


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     Petition to Withdraw as Counsel denied.     Judgment of sentence

vacated. Case remanded for resentencing. Motion for Change of Appointed

Counsel denied. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2017




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