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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 JULY 13, 2018

        Alexander Ott appeals from his judgment of sentence following the entry

of a negotiated guilty plea to the charge of driving under the influence (“DUI”)

– controlled substance – Schedule I (1st Offense).1 Counsel has filed a petition

to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and its

progeny.2 After careful review, we remand with instructions, deny counsel’s

motion to withdraw, and retain panel jurisdiction.




____________________________________________


1   75 Pa.C.S. § 3802(d)(1)(i).

2 Pursuant to Pa.R.A.P. 1925(c)(4), counsel has filed of record and served on
the trial judge his intent to file an Anders brief in lieu of a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.
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        On June 2, 2017, Officer Joseph L. Laspina, Jr., of the Morton Borough

Police Department, observed Ott’s car and smelled burnt marijuana.          He

followed the car to a Wawa parking lot and conducted a search of Ott’s

vehicle.3 He found seven bags of marijuana (30 grams or fewer) and related

paraphernalia. Officer Laspina wrote in his affidavit of probable cause that,

“Ott was read the DL[-]26 form in its entirety[,] signed, and agreed to provide

blood.” Aff. Of Probable Cause, June 4, 2017, 1. Following arraignment on

September 13, 2017, the court formally charged Ott with, inter alia, DUI–

controlled substance – Schedule I (1st Offense).4

        On November 6, 2017, Ott entered a negotiated guilty plea with regard

to the charge and sentence. Accordingly, 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 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. Counsel notified the court

of his intention to file an Anders brief on December 22, 2017.




____________________________________________


3 We note that there is a lack of information in the record regarding the stop
itself.

4   75 Pa.C.S. § 3802(d)(1)(i).

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      In order for counsel to withdraw from an appeal pursuant to Anders,

counsel must: 1) petition the court for leave to withdraw, stating that counsel

made a conscientious examination of the record and that the appeal is

frivolous; 2) file an Anders brief indicating any issues of arguable merit; and

3) provide the defendant with a copy of the brief and inform him of his right

to retain new counsel or raise additional issues before this Court.

Commonwealth v. Santiago, 978 A.2d 349, 351 (Pa. 2009).               Counsel’s

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 record,
      controlling case law, and/or statutes on point that have led to the
      conclusion that the appeal is frivolous.

Id. at 361. In addition to determining whether counsel fulfilled his obligations

under Anders, this Court is obligated to make a “full examination of the

proceedings and make an independent judgement to decide whether the

appeal is in fact wholly frivolous.” Commonwealth v. Flowers, 113 A.3d

1246, 1248 (Pa. Super. 2015) (citing Santiago, 978 A.2d at 354 n.5).

      Here, counsel timely petitioned the court for leave to withdraw,

examined the record, determined the appeal was frivolous, and provided Ott

with a copy of the Anders brief. Ott was informed of his right to obtain private

counsel or proceed pro se and file a response.        Counsel’s Anders brief,

however, may have overlooked a point of arguable merit.

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      In his Anders brief, counsel notes that whether the sentence is harsh

and excessive under the circumstances may be an issue of arguable merit.

However, counsel failed to address a possible Birchfield issue. See

Birchfield v. North Dakota, 136 U.S. 2160 (2016). In Birchfield, the

Supreme Court held that that warrantless blood draws are a violation of the

Fourth Amendment and that drivers cannot be found to have consented to a

warrantless blood draw if they believe that their refusal constitutes a criminal

offense. Id. at 2184-86.

      Applying Birchfield, the Pennsylvania Superior Court found that drivers

who refuse to provide blood cannot be charged with a higher penalty than

they would have otherwise received. See Commonwealth v. Giron, 155

A.3d 635, 640 (Pa. Super. 2017); see also Commonwealth v. Ennels, 167

A.3d 716, 721, 724 (Pa. Super. 2017) (holding Birchfield ban on warrantless

blood tests for DUI of alcohol also applied to individuals suspected of DUI of

controlled substances). Thus, a driver who agrees to have blood drawn in

order to avoid increased criminal penalties, which was the language of the

warnings contained on the pre-Birchfield DL-26 form, cannot be said to have

consented to the procedure. See Commonwealth v. Evans, 153 A.3d 323,

331 (Pa. Super. 2016).

      As noted above, Ott consented to a blood draw after Officer Laspina read

him the DL-26 form; that form, however, has been modified by the

Pennsylvania Department of Transportation in light of the Supreme Court’s


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decision in Birchfield. See Commonwealth v. Robertson, 2018 PA Super

110, at *5. (Pa. Super. filed May 3, 2018). The record in this case does not

indicate whether Ott was read the warnings from a pre-Birchfield DL-26

form5 or the language on the revised DL-26B form.

       Here, counsel correctly states that Ott entered into a negotiated guilty

plea, thereby limiting the issues he can raise on appeal. Ott, in entering a

negotiated guilty plea, waived his rights to “challenge on direct appeal all non-

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

plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013). He

may not, therefore, challenge the discretionary aspects of his sentence.

Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa. Super. 2015).

Moreover, Ott waived the ability to challenge the validity of his plea by failing

to object during the plea colloquy or by failing to file a post-sentence motion

to withdraw the plea within ten days of sentencing. Lincoln, 72 A.3d at 609-

10. However, Ott may have a valid claim of ineffectiveness of counsel.

       The failure of trial counsel to file a motion to suppress the blood test

results and failure to file a post-trial motion withdrawing the plea may amount


____________________________________________


5 The warnings contained on the Pennsylvania Department of Transportation’s
former DL-26 form provide 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
Robertson, supra at *6. The DL-26 form was revised within one week of the
Supreme Court’s decision in Birchfield. Robertson, supra at *5. 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 id.

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to ineffectiveness of counsel. Such challenges are typically appropriate for

collateral review, not direct appeal.   Commonwealth v. Grant, 813 A.3d

726, 738 (Pa. 2002). There are, however, “extraordinary” cases where a trial

court may “determine that a claim (or claims) of ineffectiveness is both

meritorious and apparent from the record so that immediate consideration

and relief is warranted.” Commonwealth v. Holmes, 621 Pa. 595, 621 (Pa.

2013).    The Holmes Court noted that such “unitary review” allows

“defendants with shorter prison sentences or probationary sentences the

prospect of litigating their constitutional claims sounding in trial counsel

ineffectiveness; for many of these defendants, post-appeal PCRA review may

prove unavailable.” Id. at 622.

      Ott may fall into the category of defendants for whom PCRA relief may

be unavailable due to his short sentence, and for whom a Holmes exception

may be appropriate.       Furthermore, Ott may have grounds to claim

ineffectiveness of counsel if he did not voluntarily consent to have his blood

drawn under Birchfield and Evans, since no post-sentence motions were filed

preserving his right to challenge the validity of his plea.   Indeed, the plea

colloquy specifically notes that the Affidavit of Probable Cause and the

Toxicological Report formed the basis of Ott’s guilty plea. N.T. Sentencing,

11/6/17, at 6. Whether Ott may claim counsel’s ineffectiveness for failing to

address the possible Birchfield issue hinges on the content of the warnings

on the form he was read before consenting to have his blood drawn. As noted


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above, the record before us does not reflect whether the officer used the pre-

Birchfield DL-26 form or the revised version of the form, the DL-26B. Thus,

we are unable to conclude that there are no non-frivolous issues or that the

appeal is wholly frivolous.

      In sum, our review of the certified record indicates that the form the

officer read to Ott has not been included in the record submitted to this Court.

Without this form, neither counsel nor this Court can fulfill its obligations under

Anders and its progeny. Accordingly, we deny counsel’s petition to withdraw

and   remand    this   case    for   further   proceedings   consistent   with   this

memorandum.

      Upon remand, counsel must obtain the form used at Ott’s arrest and

ensure its inclusion in the certified record within twenty days of the filing of

this decision. After review of the entire certified record, counsel shall, within

thirty days, file either an advocate’s brief or a new petition to withdraw and

an Anders brief that fully complies with the requirements detailed above. The

Commonwealth shall have fifteen days to file a response brief or notify this

Court that it does not intend to file a response brief.

      Motion for leave to withdraw denied. Case remanded with instructions.

Panel jurisdiction retained.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/18




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