J-S60022-17


                                   2018 PA Super 31

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JEFFREY ALAN OLSON,                        :
                                               :
                      Appellant                :   No. 158 WDA 2017

                Appeal from the PCRA Order December 22, 2016
               In the Court of Common Pleas of Somerset County
               Criminal Division at No.: CP-56-CR-0000544-2015

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY DUBOW, J.:                                FILED FEBRUARY 14, 2018

        Appellant, Jeffrey Alan Olson, appeals from the December 22, 2016

Order entered in the Somerset County Court of Common Pleas dismissing his

first Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. Relying on Birchfield1, Appellant challenges the legality of

his sentence.       After careful review, we conclude that Birchfield does not

apply retroactively in Pennsylvania to cases pending on collateral review.

We, thus, affirm.

        On September 18, 2015, Appellant entered an open guilty plea to one

count of Driving Under the Influence (“DUI”).2,3 On December 21, 2015, the


____________________________________________


1Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed. 2d
560 (2016).

2   75 Pa.C.S. § 3802(a)(1).


____________________________________
* Former Justice specially assigned to the Superior Court.
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trial court sentenced Appellant to an aggregate term of 18 months’ to 5

years’ imprisonment, applying the mandatory minimum sentencing provision

set forth in 75 Pa.C.S. § 3804(c)(3) (imposing a mandatory minimum

sentence of one year of imprisonment and a fine of $2,500 for failing to

consent to a blood test). Appellant did not file a direct appeal. Appellant’s

Judgment of Sentence, therefore, became final on January 20, 2016. See

42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).

      Appellant filed the instant pro se PCRA Petition, his first, on August 17,

2016, challenging, inter alia, the legality of his mandatory minimum

sentence pursuant to Birchfield.4 The PCRA court appointed counsel, and

conducted a hearing on October 26, 2016. The PCRA court held the matter

under advisement, and counsel filed an Amended PCRA Petition on



(Footnote Continued) _______________________

3The Commonwealth withdrew several summary charges in exchange for
Appellant’s guilty plea, but there was no agreement with respect to
Appellant’s sentence.

4 In Birchfield, supra, filed June 23, 2016, the United States Supreme
Court held that warrantless blood tests taken pursuant to implied consent
laws are an unconstitutional invasion of privacy. Id. at 2185. 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. at 2186. In
contrast, the Court held that the Fourth Amendment permits warrantless
breath tests incident to arrests for drunk driving.       Id. at 2184.      In
Commonwealth v. Ennels, 167 A.3d 716, 724 (Pa. Super. 2017), this
Court held that Pennsylvania’s implied consent scheme was unconstitutional
insofar as it threatened to impose enhanced criminal penalties for the refusal
to submit to a blood test.



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November 8, 2016. On December 23, 2016, the PCRA court dismissed the

Petition.

       Appellant filed a timely Notice of Appeal on January 19, 2017. Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

       Appellant presents three issues for our review:

       I. Whether lower court erred in dismissing Appellant’s PCRA
       Petition based on the reasoning that [A]ppellant “waived” the
       constitutional challenge to his sentence?

       II. Whether the lower court erred in not applying [Birchfield]
       retroactively to [A]ppellant’s sentence?

       III. Whether this Court should reverse the decision of the lower
       court or reinstate Appellant’s appellate rights nunc pro tunc
       based on equitable principles?

Appellant’s Brief at 3.5

       We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.       Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).      To be eligible for relief pursuant to the PCRA, Appellant must

establish, inter alia, that his conviction or sentence resulted from one or

more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2).

____________________________________________


5 Appellant’s Birchfield claim regarding his sentence implicates the legality
of his sentence and such issues cannot be waived. Commonwealth v.
Dickson, 918 A.2d 95, 99 (Pa. 2007). Moreover, this Court may raise
legality issues sua sponte. See, e.g., Commonwealth v. Foster, 17 A.3d
332, 352 (Pa. 2011). Thus, the PCRA court’s and the Commonwealth’s
claims regarding waiver are misplaced.



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Appellant must also establish that the issues raised in the PCRA petition

have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An

allegation of error “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.” 42 Pa.C.S. § 9544(b).

       As long as this Court has jurisdiction over the matter, a legality of

sentencing issue is reviewable and cannot be waived. Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007).             However, a legality of

sentencing issue must be raised in a timely filed PCRA Petition over which

we have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always

subject to review within the PCRA, claims must still first satisfy the PCRA’s

time limits or one of the exceptions thereto.”); Commonwealth v. Miller,

102 A.3d 988, 995-96 (Pa. Super. 2014) (explaining that the decision in

Alleyne6 does not invalidate a mandatory minimum sentence when

presented in an untimely PCRA Petition); Commonwealth v. Ruiz, 131

A.3d 54, 60-61 (Pa. Super. 2015) (remanding for resentencing without

mandatory minimum where defendant was sentenced 12 days before

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6 In Alleyne, the U.S. Supreme Court held that any fact, other than the fact
of a prior conviction, that increases the penalty for a crime beyond the
prescribed statutory minimum must be submitted to a jury and proved
beyond a reasonable doubt. Alleyne v. United States, 133 S.Ct. 2151,
2160-61 (2013).



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Alleyne, his judgment of sentence was not final on the date Alleyne was

decided, and the defendant filed a timely PCRA Petition over which this Court

had jurisdiction).

       In his first two issues on appeal, Appellant claims his PCRA Petition is

timely filed within one year of his Judgment of Sentence pursuant to 42

Pa.C.S. § 9545(b)(1).         He essentially claims that he is entitled to relief

because the court sentenced him pursuant to a mandatory minimum

sentencing statute that was rendered unconstitutional by Birchfield.

Appellant’s Brief at 9-15. He also contends that Birchfield provides a new

substantive rule that is fully retroactive on timely collateral review.     While

we recognize that new substantive rules are fully retroactive on timely

collateral review, we conclude that Birchfield does not constitute a new

substantive rule.7

       This Court recently described the Birchfield holding as follows:

       In Birchfield, the United States Supreme Court recognized that
       “[t]here must be a limit to the consequences to which motorists
       may be deemed to have consented by virtue of a decision to
       drive on public roads.” Birchfield, 136 S.Ct. at 2185. Of
       particular significance, Birchfield held that “motorists cannot be
       deemed to have consented to submit to a blood test on pain of
       committing a criminal offense.” Id. at 2185-86. Accordingly,
       this Court has recognized that Pennsylvania’s implied consent
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7 Appellant is not contesting a conviction based on any law criminalizing the
refusal to consent to blood testing as a separate crime. Thus, we do not
opine on the retroactivity of the main holding in Birchfield as it applies to
such criminal laws. Rather, we are narrowly addressing the retroactivity of
Birchfield insofar as that holding implicates Pennsylvania’s DUI statutes.



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     scheme was unconstitutional insofar as it threatened to impose
     enhanced criminal penalties for the refusal to submit to a blood
     test. Commonwealth v. Ennels, 167 A.3d 716, 724 (Pa.
     Super. 2017), reargument denied (Sept. 19, 2017) (noting that
     “implied consent to a blood test cannot lawfully be based on the
     threat of such enhanced penalties”); Commonwealth v. Evans,
     153 A.3d 323, 330-31 (Pa. Super. 2016).

Commonwealth v. Kurtz, 172 A.3d 1153, 1157 (Pa. Super. 2017). See

also Commonwealth v. Giron, 155 A.3d 635, 636 (Pa. Super. 2017)

(vacating and remanding for resentencing after holding that “pursuant to

[Birchfield] 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. §§ 3803–3804.”).

     In the instant case, the certified record indicates that on December 21,

2015, the trial court imposed enhanced penalties for Appellant’s refusal to

consent to a blood draw.     See N.T. Plea, 9/15/15, at 3, 6; N.T. Plea,

12/21/15, at 4-7; Pennsylvania Guideline Sentencing Form, filed 4/5/16, at

1; Sentencing Order, filed 12/23/15, at 1-3; Police Criminal Complaint,

dated 4/20/15; Affidavit of Probable Cause, dated 4/27/15; Criminal

Information, filed 8/18/15. Pursuant to Birchfield, a sentencing court today

could not have sentenced Appellant to the mandatory minimum sentence

under Section 3804(c)(3).    However, Appellant’s Judgment of Sentence

became final on January 20, 2016, six months before the United States

Supreme Court decided Birchfield on June 23, 2016.       Although Appellant

filed a timely PCRA Petition, because his Judgment of Sentence became final


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before Birchfield was decided, pursuant to Riggle, we are unable to apply

the mandates of Birchfield.           See Commonwealth v. Riggle, 119 A.3d

1058 (Pa. Super. 2015) (declining to give Alleyne retroactive effect to cases

on timely collateral review when the defendant’s judgment of sentence had

been finalized before Alleyne was decided).

        Appellant summarily urges this Court to conclude, as a matter of first

impression, that Birchfield is a new substantive rule that is fully retroactive

on timely collateral review. See Appellant’s Brief at 14-15. Appellant cites

an unrelated unpublished memorandum for support, which is improper

pursuant to this Court’s Internal Operating Procedure § 65.37 (“Unpublished

Memoranda Decisions”).          See Commonwealth v. Phinn, 761 A.2d 176,

179 (Pa. Super. 2000) (“Unpublished memoranda of this court have no

precedential value.”).      Moreover, that inapplicable case involved the direct

appeal of a defendant’s judgment of sentence that was not final when

Birchfield was decided.

        “[A] new rule of law does not automatically render final, pre-existing

sentences illegal.”     Commonwealth v. Washington, 142 A.3d 810, 814

(Pa. 2016). “Under the Teague[8] framework, an old rule applies both on

direct and collateral review, but a new rule is generally applicable only to



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8   Teague v. Lane, 489 U.S. 288 (1989) (plurality).



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cases that are still on direct review.” Commonwealth v. Ross, 140 A.3d

55, 59 (Pa. Super. 2016) (citations omitted).

      “A new rule applies retroactively in a collateral proceeding only if (1)

the rule is substantive or (2) the rule is a ‘watershed rule of criminal

procedure’ implicating the fundamental fairness and accuracy of the criminal

proceeding.”     Id. (citations omitted).    “Substantive rules are those that

decriminalize conduct or prohibit punishment against a class of persons.”

Id. (citation and quotation omitted). “[R]ules that regulate only the manner

of determining the defendant’s culpability are procedural.” Id. (citations and

quotation omitted).

      Pennsylvania’s implied consent statute reads, in relevant part, as

follows:

      (a) General rule.--Any person who drives, operates or is in
      actual physical control of the movement of a vehicle in this
      Commonwealth shall be deemed to have given consent to one or
      more chemical tests of breath or blood for the purpose of
      determining the alcoholic content of blood or the presence of a
      controlled substance if a police officer has reasonable grounds to
      believe the person to have been driving, operating or in actual
      physical control of the movement of a vehicle:

           (1) in violation of section 1543(b)(1.1) (relating to driving
           while operating privilege is suspended or revoked), 3802
           (relating to driving under influence of alcohol or controlled
           substance) or 3808(a)(2) (relating to illegally operating a
           motor vehicle not equipped with ignition interlock)[.]

75 Pa.C.S. § 1547(a)(1).

      Relevant to the instant case, Section 3804 provides that an individual

convicted of a third or subsequent DUI (General Impairment) offense who

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refused to provide a blood sample faces a mandatory minimum of one year’s

imprisonment. 75 Pa.C.S. § 3804(c)(3)(i). Section 3804(c)(3)(i) effectively

increases the punishment when a driver refuses to consent to a blood test.

Id.

      The new Birchfield rule, as it applies to Pennsylvania’s DUI statutes

providing for enhanced penalties, does not alter the range of conduct or the

class of persons punished by the law: DUI remains a crime, and blood tests

are permissible with a warrant or consent. Rather, the new rule precludes

application of this mandatory minimum sentencing provision providing an

enhanced penalty for Appellant’s refusal to submit to blood testing.              This

change in the Pennsylvania sentencing enhancements applicable to DUI

convictions is procedural because the new Birchfield rule regulates only the

manner    of    determining   the   degree     of   defendant’s     culpability   and

punishment.

      Based on the foregoing, we hold that Birchfield does not apply

retroactively   in   Pennsylvania   to   cases pending on         collateral review.

Accordingly, Appellant’s Judgment of Sentence is not illegal on account of

Birchfield and he is not entitled to relief.

      In his third claim, Appellant argues that this Court should reinstate his

appellate rights nunc pro tunc based on “equitable principles.” Appellant’s

Brief at 15-17. Appellant does not cite any pertinent authority to support his

argument. Moreover, the PCRA does not grant such unrestrained authority


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to this or any other post-conviction court.           See 42 Pa.C.S. § 9543

(“Eligibility for relief”).   Thus, Appellant is not entitled to relief based on

“equitable principles of fairness” that are not otherwise delineated in the

PCRA.

      Order affirmed.

      President Judge Emeritus Stevens joins the Opinion.

      Judge Olson concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2018




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