J-S08035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DANIEL LEE STOVALL                         :
                                               :   No. 1170 WDA 2017
                       Appellant

                   Appeal from the PCRA Order July 14, 2017
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                            CP-25-CR-0003162-2013


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 13, 2018

        Appellant Daniel Lee Stovall appeals from the Order entered in the Court

of Common Pleas of Erie County on July 14, 2017, denying his petition filed

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

        A prior panel of this Court set forth the relevant facts and procedural

history herein as follows:

               On September 14, 2013, at 2:28 a.m., Patrolman Bruce E.
        Kosko of the Erie Police Department responded to a report of an
        accident involving a vehicle crash into a house. When he arrived
        at the scene, he observed a Cadillac with damage to its rear
        resting against a house. Patrolman Kosko interviewed a witness
        who reported that he observed a dark-colored sedan driving in
        reverse at a high rate of speed strike the rear of the Cadillac. The
        Cadillac rolled for a distance and ran into the house; the sedan
        fled the scene. Patrolman Kosko also interviewed the owner of the
        Cadillac, who indicated that he did not park his vehicle in its
        present location and that there was no damage to it when he
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S08035-18


     parked it. Based on this information, at 2:45 a.m., Patrolman
     Kosko issued a radio dispatch report for police to be on the lookout
     for a dark-colored sedan, possibly with heavy rear-end damage.
            Approximately one hour later, Lieutenant Mark Sanders
     observed Appellant’s vehicle, a silver sedan with heavy rear-end
     damage, traveling on a street located approximately seven blocks
     from the scene of the collision. He stopped Appellant’s vehicle and
     radioed for backup. Appellant exhibited signs of intoxication
     including slurred speech and an odor of alcohol; he could not stand
     on his own, and immediately failed a field sobriety test. Police
     arrested Appellant and called an ambulance for his front seat
     passenger, who was unresponsive and nearly unconscious.
     Although Appellant initially consented to a blood draw, police
     deemed it unsafe to administer after he became belligerent at the
     hospital.
            On February 4, 2014, Appellant filed a motion to suppress
     evidence, claiming that the stop of his vehicle was illegal. The
     court entered an opinion and order denying the motion on April 7,
     2014, following a hearing.
            On the morning of trial, June 9, 2015, Appellant’s appointed
     counsel of record filed a motion seeking pro hac vice admission of
     Robert F. DiCello, Esq., a member of the Ohio bar,1 to represent
     Appellant in this case.2 The trial court denied the motion and
     ordered Appellant’s counsel of record to represent him at trial.
     However, it permitted Attorney DiCello to participate in Appellant’s
     defense in an advisory capacity.
            Appellant proceeded to trial and the jury found him guilty of
     DUI on June 10, 2015. On July 20, 2015, with the benefit of a pre-
     sentence investigation report (PSI),3 the trial court sentenced
     Appellant to a term of not less than fourteen nor more than
     twenty-eight months’ incarceration, a sentence in the standard
     range of the sentencing guidelines. The court denied Appellant’s
     timely post-sentence motion on July 30, 2015. This timely appeal
     followed.4
     ____________________________________________
     1 Appellant resides in Ohio. (See              N.T. Suppression Hearing,
     4/03/14, at 3).
     2 See Pennsylvania Bar Admission Rule 301(b) (requiring, inter

     alia, that motions for pro hac vice admission be filed at least three
     days prior to appearance before court).
     3 The PSI revealed a previous DUI conviction in New York in 2006

     and an operating a vehicle while intoxicated (OVI) conviction in
     Ohio in September 2012. (See Trial Court Opinion, 10/12/15, at
     7; Appellant’s Brief, at 9).


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      4Pursuant to the trial court’s order, Appellant filed a timely concise
      statement of errors complained of on appeal on September 11,
      2015. The court filed an opinion on October 12, 2015. See
      Pa.R.A.P. 1925.

Commonwealth v. Stovall, No. 1329 WDA 2015, unpublished memorandum

at 1-3 (Pa.Super. filed May 6, 2016).

      Appellant filed a petition for allowance of appeal with the Pennsylvania

Supreme Court on June 1, 2016. The Supreme Court denied allowance of

appeal on February 15, 2017.

      On March 22, 2017, Appellant timely filed a PCRA petition pro se.

Counsel was appointed and filed a “supplement” to Appellant’s PCRA petition

on May 1, 2017. On June 19, 2017, the PCRA Court filed its Notice of Intent

to Dismiss PCRA Without a Hearing Pursuant to Pa.R.Crim.P. 907(1) and

accompanying Opinion. On July 14, 2017, Appellant entered its Order denying

Appellant’s PCRA petition, and on August 10, 2017, Appellant filed a timely

notice of appeal.

      The PCRA court did not Order, and Appellant did not file, a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b);

however, on August 16, 2017, the PCRA court filed what it titled

“Memorandum Opinion” wherein it indicated it would be relying upon the

reasoning it had set forth in its Opinion and Notice of Intent to Dismiss PCRA

dated June 19, 2017, as its basis for its July 14, 2017, Order.

      In his brief, Appellant presents the following seven issues for our review:




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      A. WHETHER THE APPELLANT WAS AFFORDED INEFFECTIVE
      ASSISTANCE OF COUNSEL IN THAT COUNSEL FAILED TO COMPLY
      WITH THE MANDATES FOR THE PROVISION OF PRO HAC VICE
      STATUS TO THE APPELLANT'S PRIVATELY RETAINED ATTORNEY?

      B. WHETHER THE APPELLANT WAS AFFORDED INEFFECTIVE
      ASSISTANCE OF COUNSEL IN THAT COUNSEL WAS UTTERLY AND
      PATENTLY UNPREPARED FOR TRIAL GIVEN THAT HE HAD
      DEFERRED TO PRIVATELY RETAINED COUNSEL TO UNDERTAKE
      THE MATERIAL ASPECTS OF THE DEFENSE CASE AND THEN
      GIVEN THE FAILURE TO ACT TO SECURE PRO HAC VICE STATUS
      FOR SAID COUNSEL, HE WAS THEN PLACED IN THE UNTENABLE
      POSITION OF HAVING TO REPRESENT THE APPELLANT WHEN
      ADMITEDLY [sic] HE WAS NOT PREPARED?

      C. WHETHER THE LOWER COURT ERRED IN FAILING TO GRANT
      PRO HAC VICE STATUS UNTO THE PRIVATELY RETAINED
      ATTORNEY UNDER THE CIRCUMSTANCES GIVEN THE SELF-
      ADMITED UNPREPARDENESS OF COUNSEL WHEREIN THE COURT
      COMPELLED COUNSEL TO PROCEED, WHICH REDOUNDED FULLY
      TO THE DETRIMENT AND PREJUDICE OF THE APPELLANT AND NOT
      COUNSEL?

      D. WHETHER THE TRIAL COURT ERRED IN UNDULY FRAMING THE
      CONTENTS OF THE POLICE REPORTS FOR REVIEW BY THE JURY?

      E. WHETHER THE APPELLANT WAS AFFORDED INEFFECTIVE
      ASSISTANCE OF COUNSEL IN THAT COUNSEL FAILED TO
      PRESENT AND EXHAUST ALL AVAILABLE LEGAL ARGUMENT IN
      FURTERANCE [sic] OF THE SUPPRESSION MOTION?

      F. WHETHER THE APPELLANT POSSESSES A PREDICATE FOR
      CHALLENGE TO THE WARRANTLESS BLOOD DRAW AND THE
      CONSENT ISSUE PURSUANT TO THE HOLDING OF BIRCHFIELD V
      NORTH DAKOTA?

      G. WHETHER THE MANDATORY MINIMUM SENTENCE IMPOSED
      WAS ILLEGAL UNDER ALLEYNE?

Brief of Appellant at 2.

      When reviewing an order denying PCRA relief, this Court must discern

whether the record supports the PCRA court's determination and whether the


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PCRA court's determination is free of legal error. Commonwealth v. Phillips,

31 A.3d 317, 319 (Pa.Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa.Super. 2005)). The PCRA court's findings will not be

disturbed unless there is no support for the findings in the certified record. Id.

(citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001)).

      In order to be eligible for PCRA relief, a petitioner must prove by
      a preponderance of the evidence that his conviction or sentence
      resulted from one or more of the enumerated circumstances found
      at 42 Pa.C.S. § 9543(a)(2) (delineating the eligibility
      requirements of the PCRA). A petitioner also must demonstrate
      that the issues raised in his PCRA petition have not been
      previously litigated or waived. Id. at § 9543(a)(3). An issue has
      been previously litigated if “the highest appellate court in which
      the petitioner could have had review as a matter of right has ruled
      on the merits of the issue.” Id. at § 9544(a)(2). For purposes of
      the PCRA, a claim is waived “if the petitioner could have raised it
      but failed to do so before trial, at trial, during unitary review, on
      appeal or in a prior state postconviction proceeding.” Id. at §
      9544(b).

Commonwealth v. Wholaver, ___ Pa. ____, ____, 177 A.3d 136, 144

(2018).

      We commence our analysis with a determination as to what issues, if

any, Appellant has preserved for our review. Counsel’s PCRA petition,

captioned as a “supplement” to Appellant’s pro se petition, indicates that the

pro se PCRA petition filed on March 22, 2017, is “incorporated by reference as

if fully set forth herein.”   See “Supplement to Motion for Post Conviction

Collateral Relief,” filed 5/1/17, at ¶ 1. Thus, PCRA counsel attempts both to

preserve all issues raised in the pro se petition and to litigate separate claims

in the “supplement.”    Appellant’s pro se petition is comprised of six pages of

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single spaced, disjointed text, and were we to permit it to be coupled with

counsel’s “supplement,” itself a six-page narrative that is not divided into clear

issues, it would be difficult for this Court to ascertain the precise issues

Appellant is attempting to assert.       When recently considering a similar

situation, this Court found counsel’s attempt to preserve issues raised in a pro

se PCRA petition failed. In doing so, we reasoned as follows:

      Counsel's attempt to incorporate by reference, without any further
      explanation or elaboration upon the legal validity of such claims,
      amounts to hybrid representation, which is not permitted. See
      Commonwealth v. Tedford, 960 A.2d 1, 10 n.4 (Pa. 2008) (“[A]
      criminal defendant currently represented by counsel is not entitled
      to ‘hybrid representation’—i.e., he cannot litigate certain issues
      pro se while counsel forwards other claims.”) (citations omitted);
      Commonwealth v. Markowitz, 32 A.3d 706, 713 n.5 (Pa.Super.
      2011) (“[T]he PCRA court is only permitted to address issues
      raised in a counseled petition.”) (citations omitted). It is
      incumbent upon counsel to examine the merits of the pro se
      claims and determine whether those issues are worth pursuing in
      an amended petition. Thus, the pro se claims could not be merely
      incorporated, and, in turn, are waived on appeal. Accordingly, we
      find that the sole claim preserved for our review is the one
      contained in the counseled PCRA petition.

Commonwealth v. Johnson, 2018 WL 897484, at * 2 (Pa.Super. Feb. 15,

2018) (footnote omitted).

      The only claims preserved in the counseled PCRA herein pertain to

counsels’ ineffectiveness; however, for the reasons that follow, we would

conclude Appellant is not entitled to relief even if the remaining issues he

presents in his appellate brief had been properly preserved.

      In his first, second, and fifth issues, Appellant raises various challenges

to pre-trial and trial counsel’s effectiveness.      Ineffectiveness claims are

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cognizable under the PCRA. Commonwealth v. Lambert, 568 Pa. 346, 363,

797 A.2d 232, 242 (2001); 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering

an allegation of ineffective assistance of counsel, counsel is presumed to have

provided effective representation unless the PCRA petitioner pleads and

proves that: (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable basis for his or her conduct; and (3) Appellant was prejudiced by

counsel's action or omission. Commonwealth v. Pierce, 515 Pa. 153, 159,

527 A.2d 973, 975–976 (1987). “In order to meet the prejudice prong of the

ineffectiveness standard, a defendant must show that there is a reasonable

probability that but for the act or omission in question the outcome of the

proceeding would have been different.” Commonwealth v. Wallace, 555

Pa. 397, 407, 724 A.2d 916, 921 (1999). A claim of ineffective assistance of

counsel will fail if the petitioner does not meet any of the three prongs.

Commonwealth v. Williams, 581 Pa. 57, 70, 863 A.2d 505, 513 (2004).

      Appellant avers trial counsel’s failure to secure pro hac vice status for

his privately-retained counsel left trial counsel “wholly unprepared” to

represent him at trial. While Appellant acknowledges this Court “reviewed and

adjudicated on direct appeal insofar as the trial court’s exercise of discretion

in rejecting the untimely and unfulfilled motion[,]” he baldly maintains that

counsel’s ineffectiveness “caused patent prejudice to [Appellant] in terms of

the election of counsel and in depriving him of effective, prepared and

informed counsel at trial.” Brief for Appellant at 7-8.


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      Initially, we agree with Appellant that he previously litigated the

underlying substantive issue regarding the trial court's rulings; however, he

now presents a wholly distinct legal claim of ineffective assistance of counsel

cognizable under the PCRA.      See Wholaver, supra at ____, 177 A.3d at

147. On direct appeal, Appellant argued the trial court had violated his Sixth

Amendment right to counsel during his jury trial in denying him the right to

counsel of his choice when it refused to grant pro hac vice admission to

Attorney DiCello.     This Court acknowledged the record reflected that

Appellant’s motion seeking permission for Attorney DiCello to represent him

until the morning of trial had been untimely and that Attorney DiCello failed

to comply with other applicable procedural requirements necessary before an

out-of-state attorney may seek pro hac vice admission. Thus, we determined

the trial court acted properly in declining the non-complaint application and in

restricting Appellant’s right to choose his own counsel. Importantly, we also

found “Appellant [had] not shown that the court’s ruling undermined the

reliability of his trial in any way.” Commonwealth v. Stovall, No. 1329 WDA

2015, unpublished memorandum at 9 (Pa.Super. filed May 6, 2016) (citing

Commonwealth v. Padilla, 80 A.3d 1238, 1252 (Pa. 2013)), cert. denied,

134 S.Ct. 2725 (2014) (citations omitted).

       Assuming, arguendo, as the PCRA court found, that trial counsel had

been ineffective for failing to timely file for pro hac vice status for Attorney

DiCello, see Opinion and Notice of Intent to Dismiss PCRA Without Hearing


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Pursuant to Pa.R.Crim.P. 907(1), following our review of the certified record

and notes of testimony, we find Appellant’s allegations of counsel’s

unpreparedness fail to demonstrate that but for trial counsel’s error the result

of the proceeding would have been different. Trial Counsel presented

argument, questioned witnesses, and had the assistance of Attorney DiCello

as stand-by counsel.    N.T., 6/9/15 at 8.    As the PCRA court stressed, it

permitted Attorney DiCello to remain in the courtroom where he was able to

“assist trial counsel, advise and discuss the case with him in court and out,

and [be] present and available at all times.” See Opinion and Notice, at 1.

The PCRA court further stated that trial counsel had represented Appellant in

this matter for months prior to trial and “was familiar and knowledgeable as

to the extent of all pre-trial matters in this case.” Id. at 1-2. As Appellant

has failed to substantiate his claim per the requisite Pierce factors, these

claims challenging trial counsel’s effectiveness must fail. Commonwealth v.

Cousar, ___ Pa. ____, ____, 154 A.3d 287, 308 (2017).

       Appellant also submits pre-trial counsel was ineffective for failing “to

exhaust and present all viable claims in support of the suppression motion

propounded and litigated on his behalf.” Brief for Appellant at 12. While he

admits this Court adjudicated the trial court’s denial of the suppression on

direct appeal, Appellant insists counsel’s failure to rely upon the Pennsylvania

Supreme Court’s decision in Commonwealth v. Edwards, 513 A.2d 445 (Pa.

1986) (sic), a decision that “would have been dispositive and controlling but


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for the failure of counsel to tender the argument and underlying pleading[,]”

entitles him to relief. Id. 2

        We note that a panel of this Court, not the Pennsylvania Supreme Court,

decided the Edwards case to which Appellant refers and its facts are

distinguishable from those presented herein.       In Edwards, pursuant to a

police department internal policy to stop vehicles with the appearance of fresh

damage in order to determine whether a necessary accident report had been

filed, officers stopped a vehicle that showed evidence of recent body damage.

This Court ultimately determined that the traffic stop violated the operator's

reasonable expectation of privacy pursuant to the Fourth Amendment of the

United States Constitution and in doing so noted that the Vehicle Code

required that accidents to vehicles must be reported only under certain

circumstances and that evidence of an accident alone does not justify a traffic

stop.

        Notwithstanding, we would later hold in Commonwealth v. Hall, 929

A.2d 1202, 1206 (Pa.Super. 2007) that “Edwards was decided well before

the February 1, 2004 amendment of 75 Pa.C.S.A. § 6308(b), which, since the

date of amendment, authorizes police to stop a vehicle whenever an officer

has a reasonable suspicion that a violation of the Vehicle Code is occurring or


____________________________________________


2A review of the record herein reveals that while pre-trial counsel did not
mention Edwards at the pretrial suppression hearing, trial counsel brought
Edwards to the trial court’s attention prior to the commencement of trial.
See N.T. Trial, 6/9/15, at 9.

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has occurred.” (emphasis in original). As we further explained, “[p]rior to

the amendment of Section 6308(b), police were required to have probable

cause to suspect that a Vehicle Code violation had occurred in order to effect

a traffic stop. Therefore, Edwards was decided at a time when the police

were required to have probable cause to suspect that a Vehicle Code violation

had occurred in order to effect a lawful traffic stop.” Id. at 1206 n. 2. (citation

omitted) (emphasis in original). On direct appeal, this Court previously found

no merit to Appellant’s argument that the trial court erred in determining the

investigatory stop was supported by reasonable suspicion. Commonwealth

v. Stovall, No. 1329 WDA 2015, unpublished memorandum at 4-7 (Pa.Super.

filed May 6, 2016). Because the premise underlying this claim of ineffective

assistance of counsel is belied by the record, it warrants no relief.

Commonwealth v. Wholaver, supra, at ____, 177 A.3d at 147.

      Appellant next avers the trial court erred when it refused to afford

Attorney DiCello pro hac vice status. Appellant did not raise this claim in his

“supplemental” petition; therefore, it is waived.        See Johnson, supra.

Moreover, in raising this issue Appellant attempts to reassert an issue

previously raised and decided on direct appeal.        See Commonwealth v.

Stovall, No. 1329 WDA 2015, unpublished memorandum at 7-9 (Pa.Super.

filed May 6, 2016). Therefore, this claim has been previously litigated. 42

Pa.C.S.A. § 9544(a)(2).




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       Appellant further posits the trial court erred “in framing the contents of

the BOLO call for consideration by the jury.”             Brief for Appellant at 11

(unnecessary capitalization omitted). Aside from his failure to raise this claim

in his “supplemental” petition, Appellant also has waived this claim for our

review because he offers it as if he were presenting it on direct appeal.

“Generally, an appellant may not raise allegations of error in an appeal from

the denial of PCRA relief as if he were presenting the claims on direct appeal.”

Commonwealth v. Price, 876 A.2d 988, 995 (Pa.Super. 2005), appeal

denied, 587 Pa. 706, 897 A.2d 1184 (2006), cert. denied, 549 U.S. 902, 127

S.Ct. 224, 166 L.Ed.2d 179 (2006); see also 42 Pa.C.S.A. § 9544(b) (stating

issue is waived if petitioner failed to raise it and it could have been raised

before trial, at trial, during unitary review, or in prior proceeding under PCRA).

Therefore, we will give this issue no further attention.

       Appellant next maintains he is entitled to relief under the United States

Supreme Court’s decision in Birchfield v. North Dakota, ___ U.S. ____, 136

S.Ct. 2160, 195 L.Ed.2d 560 (2016).3 Once again, this claim is not contained

in the “supplemental” petition. Notwithstanding, it presents a challenge to

the legality of Appellant’s sentence.          We have observed that as long as this

Court has jurisdiction over a matter, a legality of sentencing issue is


____________________________________________


3 This Court affirmed Appellant’s judgment of sentence on May 6, 2016, and
the United States Supreme Court decided Birchfield on June 23, 2016;
therefore, the first opportunity for Appellant to raise this claim was in a PCRA
petition.

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reviewable and cannot be waived where it has been raised in a timely filed

PCRA Petition over which we have jurisdiction. Commonwealth v. Olson,

2018 WL 847859, at *2 (Pa.Super. Feb. 14, 2018).

      In Birchfield, the United States Supreme Court held that a state may

not “insist upon an intrusive blood test, but also ... impose criminal penalties

upon the refusal to submit to such a test.” Birchfield, 136 S.Ct. at 2185.

Moreover, the Supreme Court emphasized that “motorists cannot be deemed

to have consented to a blood test upon pain of committing a criminal offense.”

Id. at 2186. As the defendant consented to a blood test only after police had

informed him erroneously that he could be penalized criminally if he refused

to do so, the Birchfield Court remanded for the trial court to “reevaluate

[defendant’s] consent given the partial inaccuracy of the officer's advisory.”

Id. However, as this Court recently explained:

             Nevertheless, the Birchfield Court emphasized that its
      holding did not apply to the imposition of civil penalties and
      evidentiary consequences upon motorists suspected of DUI who
      refused blood testing upon their arrest:
           It is well established that a search is reasonable when
           the subject consents, and that sometimes consent to a
           search need not be express but may be fairly inferred
           from context. Our prior opinions have referred
           approvingly to the general concept of implied-consent
           laws that impose civil penalties and evidentiary
           consequences on motorists who refuse to comply.
           Petitioners do not question the constitutionality of those
           laws, and nothing we say here should be read to cast
           doubt on them.
      Birchfield, 136 S.Ct. at 2185 (emphasis added) (citations
      omitted).




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Commonwealth v. Smith, 2017 WL 6615821 at *9 (Pa.Super. December

28, 2017).

       In the three paragraphs of argument Appellant devotes to this issue,

aside from his summary of the Birchfield case and subsequent county court

decisions that have found “retroactive application to be mandated,” Appellant

simply asserts that he “seeks the rescindment of his conviction and finding no

consent to the warrantless blood draw and vacating the sentence and fines

imposed and dismissal of the charges.” Brief for Appellant at 13. Appellant’s

utter lack of development of this issue aside, in raising it he completely ignores

the fact that due to his belligerent behavior in the hospital, medical

professionals deemed it unsafe to perform a blood draw and, thus, there was

no warrantless blood draw. See N.T. Trial, 6/9/15, at 101. Appellant does

not otherwise provide any analysis of the manner in which Birchfield was

relevant or controlling in his case. Indeed, he could not, for in Olson, supra,

this Court recently held that Birchfield does not constitute a new substantive

rule and does not apply retroactively in Pennsylvania to cases pending on

collateral review.   Commonwealth v. Olson, 2018 WL 847859 at *2, *4

(Pa.Super. Feb. 14, 2018).

      Finally, Appellant contends the mandatory minimum sentence of one

year he received for his DUI offense arose from an “unconstitutional statute”

in that it required the “judge making the factual determination at sentencing

by a preponderance standard” and is illegal in light of Alleyne v. United


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States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).               Brief for

Appellant at 14. Despite the fact that he was sentenced following a jury trial,

Appellant further stresses Alleyne is applicable where the conviction arose

following a guilty plea. Id. at 15.

        Again, we observe that this claim has not been raised in the

“supplemental” PCRA petition; however, as it presents a challenge to the

legality of Appellant’s sentence we will consider its merits. See Olson, supra.

Preliminarily, while this Court considered the legality of Appellant’s sentence

on direct review and found his argument to be specious, the basis for

Appellant’s challenge at that juncture was the trial court’s treatment of the

instant conviction as Appellant’s third DUI offense in the last ten years.

Commonwealth v. Stovall, No. 1329 WDA 2015, unpublished memorandum

at 9-12 (Pa.Super. filed May 6, 2016). Appellant’s argument herein is based

upon a novel legal theory, for in Alleyne, the United States Supreme Court

held that any fact other than a prior conviction that triggers a mandatory

minimum sentence must be submitted to a jury and proved beyond a

reasonable doubt. Alleyne, 570 U.S. at 116, 133 S.Ct. at 2163.

        Notwithstanding, we conclude that this claim does not merit relief, for

Appellant’s mandatory minimum sentence was imposed as a result of this

conviction being a third offense, and this Court previously determined “the

trial   court   properly   treated    Appellant’s   DUI   as   a   third   offense.”

Commonwealth v. Stovall, No. 1329 WDA 2015, unpublished memorandum


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at 11 (Pa.Super. May 6, 2016).      In addition, the standard sentencing

guidelines range called for minimum sentence of twelve (12) months to

sixteen (16) months, and Appellant’s sentence of fourteen (14) months to

twenty-eight (28) months falls within that range.   Id. at 10-11; see also

Guideline Sentence Form, 7/21/15, at 1; N.T. Sentencing, 7/20/15, at 10.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/13/2018




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