J-S21023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JOSHUA A. RUSE                           :
                                          :
                    Appellant             :   No. 1317 WDA 2017

                 Appeal from the PCRA Order June 30, 2017
    In the Court of Common Pleas of Greene County Criminal Division at
                      No(s): CP-30-CR-0000094-2013

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                               FILED MAY 08, 2018

      Joshua A. Ruse (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      On February 13, 2013, at docket number CP-30-CR-0000094-2013 (94-

2013), Appellant was arrested by the Waynesburg Borough Police Department

after he was stopped for various Motor Vehicle Code violations, and charged

with driving under the influence of alcohol (DUI), general impairment; DUI –

high rate of alcohol; driving under suspension (DUS), DUI-related; fraudulent

use or removal of a registration plate; operation of a vehicle without financial

responsibility; operation of a vehicle in violation of the general lighting

requirements; and operation of a vehicle without an official certificate of
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inspection.1 At the time of his arrest, Appellant’s BAC was measured at .114%

from a breathalyzer.

       On July 31, 2013, Appellant pled guilty to each of the aforementioned

violations of the Pennsylvania Motor Vehicle Code.             According to his

Presentence Investigation Report, Appellant had seven prior DUI convictions,

including three in the preceding ten years. Appellant failed to appear for his

sentencing hearing on October 1, 2013 and the trial court issued a bench

warrant for his arrest.

       On August 2, 2014, at docket number CP-30-CR-0000275-2014 (275-

2014) Appellant, following a motor vehicle accident, was arrested by the

Southwest Regional Police Department and subsequently charged with DUI,

general impairment; DUI – highest rate of alcohol; DUS, DUI-related;

operation a vehicle without financial responsibility; operation a vehicle without

the required registration and certificate of title; operation of a vehicle without

a valid certificate of inspection; failure to drive on the right side of the

roadway; and failure to drive at a safe speed.2 After consenting to a blood

draw, Appellant’s BAC was measured at .203%.           Prior to the blood draw,




____________________________________________


1 75 Pa.C.S.A. §§ 3802(a)(1), (b), 1543(b)(1.1)(ii), 7124, 1786(f), 4303(a),
4703.

2 75 Pa.C.S.A. §§ 3802(a)(1), (c), 1543(b)(1), 1786(f), 1301, 4703, 3301,
3361.

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Appellant received warnings indicating that he would receive enhanced,

mandatory penalties if he did not consent to the blood draw.

      On December 15, 2015, Appellant pled guilty to each of the

aforementioned violations of the Pennsylvania Motor Vehicle Code at docket

number 275-2014. The same day, the trial court sentenced Appellant at both

docket numbers 94-2013 and 275-2014 pursuant to a negotiated plea

agreement that included an aggregate sentence of 32 months to 11 years of

incarceration. Appellant did not seek to withdraw his guilty plea and did not

file a direct appeal from his judgment of sentence.

      On September 21, 2016, Appellant filed a timely PCRA petition and the

PCRA court appointed counsel to represent him for his PCRA proceedings. On

January 27, 2017, Appellant filed an amended PCRA petition in which he

argued that the court should vacate his judgment of sentence because he is

entitled to the retroactive application of Birchfield v. North Dakota, 136 S.

Ct. 2160 (2016), which held that a blood draw incident to a DUI arrest cannot

be administered without a warrant and that police cannot seek consent to

conduct a blood draw under the threat of enhanced criminal penalties for

refusing consent. Id. at 2185-86. Appellant further asserted that because

his consent to a blood draw at docket number 275-2014 was elicited in an

unconstitutional manner, his guilty plea was unlawfully induced. Appellant

also argued that his plea counsel was ineffective for failing to file a pre-trial

motion challenging the constitutionality of his blood draw.


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      On May 4, 2017, the PCRA issued notice of its intent to dismiss

Appellant’s PCRA petition pursuant to Rule 907 of the Pennsylvania Rules of

Criminal Procedure, based on its determination that Appellant failed to

preserve a challenge the constitutionality of his blood draw before the trial

court. Trial Court Order, 5/4/17, at 4. On June 30, 2017, the PCRA court

formally dismissed Appellant’s PCRA petition. This timely appeal followed.

      On appeal, Appellant presents the following issues for review:

      1. Whether the [PCRA] court erred in finding that Appellant was
      not entitled to a new trial under the law announced by the United
      States Supreme Court in Birchfield v. North Dakota.

      2. Whether the [PCRA] court erred in finding that Appellant’s
      [plea] counsel was not ineffective for failing to properly seek
      suppression of inadmissible evidence, and allowing that evidence
      to be used against [Appellant] to induce a guilty plea.

      3. Whether the [PCRA] court erred in finding that [Appellant]’s
      plea was not unlawfully induced, where the circumstance[s] make
      it likely that the inducement caused [him] to plead guilty and [he]
      is innocent.

      4. Whether the [PCRA] court erred in denying [Appellant]’s
      [PCRA] Petition.

Appellant’s Brief at 9.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and

citations omitted).       “To be entitled to PCRA relief, [an] appellant must

establish, by a preponderance of the evidence, his conviction or sentence




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resulted from one or more of the enumerated errors in 42 Pa.C.S.[A.] §

9543(a)(2)[.]” Id.

      We address Appellant’s first and third issues together because they are

related. For these issues, Appellant argues that he is entitled to withdraw his

guilty plea and proceed to trial. Appellant contends that his guilty pleas at

docket numbers 94-2013 and 275-2014 were unlawfully induced because in

the case at docket number 275-2014, he consented to a blood draw after

receiving unconstitutional warnings from the police that improperly informed

him he would be subject to mandatory, increased penalties if he did not

consent to the blood draw. Appellant, therefore, asserts that he is entitled to

retroactive application of the United States Supreme Court’s Birchfield

decision.

      This Court recently explained the Birchfield decision as follows:

         Birchfield involved challenges to the use of both warrantless
      breath tests and warrantless blood tests to determine the [BAC]
      of an individual arrested for DUI. . . . [T]he Court engaged in a
      familiar balancing analysis, “examin[ing] the degree to which [the
      tests] intrude upon an individual's privacy and ... the degree to
      which they are needed for the promotion of legitimate
      governmental interests.” Birchfield, 136 S.Ct. at 2176 (quoting
      Riley v. California, [134 S.Ct. 2473, 2484] (2014)) (internal
      quotation marks and some internal brackets omitted)[.]

         First, the Court addressed the impact of each test on an
      individual’s privacy interests. As to breath tests, the Court
      reasoned that: they involve an “almost negligible” physical
      intrusion, id. at 2176; “[e]xhalation is a natural process,” id. at
      2177; the tests “are capable of revealing only one bit of
      information, the amount of alcohol in the subject’s breath,” id.;
      and the tests are unlikely “to cause any great enhancement in the
      embarrassment that is inherent in any arrest,” id. Accordingly,

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     the Court concluded that “breath test[s] do[ ] not implicate
     significant privacy concerns.” Id. at 2178 (internal quotation
     marks omitted; some alterations in original).

        In contrast, the Court found that blood tests are “significantly
     more intrusive.” Id. at 2184; see also id. at 2178. It reasoned
     that: the tests “‘require piercing the skin’ and extract[ing] a part
     of the subject’s body”; unlike exhaling air, “humans do not
     continually shed blood”; and a blood sample may be preserved by
     the police and contains “information beyond a simple BAC
     reading.” Id. at 2178.

        The Court next addressed “the States’ asserted need to obtain
     BAC readings for persons arrested for drunk driving,” id., and the
     relationship between that need and “[t]he laws at issue in the
     present cases – which make it a crime to refuse to submit to a
     BAC test,” id. at 2179. Noting that state and federal governments
     have a “paramount interest ... in preserving the safety of ... public
     highways,” id. at 2178 . . . , and that alcohol continues to be a
     leading cause of traffic fatalities and injuries, id., the Court
     concluded that laws “designed to provide an incentive to
     cooperate” in DUI cases “serve a very important function.” Id. at
     2179.

        The Court then weighed the intrusion occasioned by each test
     against the government’s interest. As to breath tests, it concluded
     that “the Fourth Amendment permits warrantless breath tests
     incident to arrests for drunk driving” because the “impact of
     breath tests on privacy is slight, and the need for BAC testing is
     great.” Id. at 2184.

        The Court reached the opposite conclusion with respect to
     warrantless blood tests. Id. at 2185. In part because the
     reasonableness of blood tests “must be judged in light of the
     availability of the less invasive alternative of a breath test,” id. at
     2184, which “in most cases amply serve[s] law enforcement
     interests,” id. at 2185, it concluded that warrantless blood tests
     are not permissible as searches incident to arrest.

                                 *     *      *

        The Court next addressed whether a warrantless blood test is
     permissible under the implied-consent exception to the warrant
     requirement. The Court noted that its “prior opinions have

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      referred approvingly to the general concept of implied-consent
      laws that impose civil penalties and evidentiary consequences on
      motorists who refuse to comply” with BAC tests, and emphasized
      that “nothing we say here should be read to cast doubt on them.”
      Id. at 2185. It found, however, that it is “another matter ... for
      a State not only to insist upon an intrusive blood test, but also to
      impose criminal penalties on the refusal to submit to such a test.”
      Id. (emphasis added). It explained: “[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.” Id.
      The Court, therefore, concluded that “motorists cannot be deemed
      to have consented to submit to a blood test on pain of committing
      a criminal offense.” Id. at 2186.

Commonwealth v. Ennels, 167 A.3d 716, 718-21 (Pa. Super. 2017) (some

quotations, citations, and footnotes omitted).

      After Birchfield, this Court has held that Pennsylvania’s implied-

consent law unconstitutionally “impose[s] criminal penalties on the refusal to

submit to” a blood test. Commonwealth v. Evans, 153 A.3d 323, 331 (Pa.

Super. 2016).   Thus, where a defendant consented to a blood draw after

receiving Pennsylvania’s pre-Birchfield implied consent warnings, the blood

draw was unconstitutional because consent was elicited following the

reception of warnings relating to the now-invalidated increased, mandatory

penalty for failing to consent. Id. We emphasized that “Birchfield makes

plain that the police may not threaten enhanced punishment for refusing a

blood test in order to obtain consent, . . . whether that enhanced punishment

is (or can be) ultimately imposed is irrelevant to the question whether the

consent was valid.” Ennels, 167 A.3d at 724.




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      Nevertheless, in this case, we conclude that Appellant, whose arrest,

guilty plea, and judgment of sentence all occurred prior to the Supreme

Court’s issuance of its Birchfield decision, is not entitled to relief.

Preliminarily, we point out that Birchfield is wholly inapplicable to Appellant’s

guilty plea to the charges at docket number 94-2013, as his BAC in that case

was determined using a breathalyzer. See Birchfield, 136 S.Ct. at 2185.

      With respect to Appellant’s guilty plea to the charges at docket number

275-2014, where Appellant consented to a blood draw after receiving

Pennsylvania’s now-invalidated implied consent warnings, our Court has

determined that Birchfield is inapplicable. In Commonwealth v. Olson, --

- A.3d ----, (Pa. Super. February 14, 2018), this Court recently held that

“Birchfield does not apply retroactively in Pennsylvania to cases pending on

collateral review.”   Id. at *4. Therefore, because our Court has held that

Birchfield does not apply retroactively to cases on collateral review, Appellant




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cannot now withdraw his guilty plea on the basis of that decision through the

PCRA.3 Appellant’s first and third issues do not merit relief.4

       Finally, in his second issue, Appellant argues that his plea counsel was

ineffective for failing to challenge the constitutionality of his blood draw prior

to his guilty plea.     This claim is entirely meritless.   “The law is clear that

counsel cannot be held ineffective for failing to anticipate a change in the law.”

Commonwealth v. Cox, 983 A.2d 666, 702 (Pa. 2009). The United States

Supreme Court decided Birchfield more than six months after Appellant

pled guilty and was sentenced by the trial court. Appellant cannot now claim

that his counsel was ineffective for failing to challenge the constitutionality of

his blood draw when the Birchfield decision did not exist.            Accordingly,

Appellant’s second issue is meritless.




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3 We also note that the trial court PCRA court properly dismissed Appellant’s
Birchfield claim because he at no point challenged the voluntariness of his
consent to the blood draw before the trial court. See Commonwealth v.
Wilcox, 174 A.3d 670, 674 (Pa. Super. 2017) (holding that Appellant was not
entitled to relief under Birchfield because, inter alia, the defendant did not
challenge his consent to submit to a blood draw at any stage of the
proceedings before the trial court). Our Court’s decision in Olson was issued
several months after the denial of Appellant’s PCRA petition.

4  Moreover, we point out that in the argument section of his appellate brief,
Appellant has failed to make even a bare assertion of innocence. See 42
Pa.C.S.A. § 9543(a)(1)(stating that a PCRA petitioner is entitled to relief
where a guilty plea was unlawfully induced and “the circumstances make it
likely that the inducement caused the petitioner to plead guilty and the
petitioner is innocent”) (emphasis added).

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      Because we have determined that Appellant’s first three issues are

meritless, we conclude that the PCRA court did not err in dismissing

Appellant’s PCRA petition, which is Appellant’s fourth issue.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2018




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