J-S80026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 ANTHONY P. BARTORELLI                   :   No. 2165 EDA 2018

            Appeal from the PCRA Order Entered June 18, 2018
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0005671-2016


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 25, 2019

     The Commonwealth of Pennsylvania appeals from the June 18, 2018

order granting Appellee Anthony P. Bartorelli PCRA relief in the nature of

resentencing in light of Birchfield v. North Dakota, 136 S.Ct. 2160 (June

23, 2016). After review, we affirm.

     We glean the following facts from the affidavit of probable cause

appended to the criminal complaint. On August 31, 2016, Marple Township

police responded to a call reporting that someone had been driving recklessly

with a flat right front tire. The vehicle was described as a dark blue pickup

truck that was stopped at the corner of Anthony Avenue and Lori Lane in

Broomall, Delaware County. When Officer John Murrin located the vehicle, it

was occupied and the engine was running. A witness approached and told the
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officer that he followed the vehicle to that location after it almost struck him

by the Haverford Preserve.

      At that time, the operator of the truck attempted to drive away,

prompting the officer to activate his overhead lights. The vehicle stopped,

and Appellee exited the truck. He walked to the rear of his vehicle, asked the

officer what was the problem, and stated that he had a flat tire. The officer

described Appellee as unsteady on his feet, with bloodshot eyes, and noted a

strong odor of alcohol emanating from him. In response to the officer’s inquiry

as to whether he had been drinking, Appellee stated he had one drink earlier

that morning.   Appellee told the officer he had hit a curb.     Officer Murrin

advised Appellee that he was under investigation for driving while intoxicated.

His performance on a field sobriety test indicated impairment and a breath

test was also administered, which showed levels of alcohol of .127. According

to the affidavit of probable cause, Officer Murrin concluded that, based on his

experience and observations, Appellee was under the influence of alcohol to a

degree that he could not safely operate a motor vehicle on the highway, and

he placed Appellee under arrest.

      The officer issued the chemical test warnings and asked Appellee to

submit to a blood test. Appellee refused. After he was placed in the patrol

vehicle, police read the DL-26B form to him, and he again refused to submit

to a blood test. Appellee refused a third time after being placed in a cell and

apprised of the contents of the form.


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      On October 24, 2016, Appellee, represented by counsel, entered a

negotiated plea to driving while under the influence – general impairment

(blood test refusal), second offense, which was graded as a first-degree

misdemeanor. He was sentenced as agreed upon to ninety days to twenty-

four months in a state correctional institution, followed by three years of state

probation, a $1,500 fine, and a $100 assessment for evaluations. He did not

file a post-sentence motion or direct appeal.

      On October 25, 2017, Appellee filed a timely pro se PCRA petition in

which he alleged that plea counsel was ineffective for refusing to file a

requested appeal on his behalf. The court appointed PCRA counsel, who filed

an amended PCRA petition on January 23, 2018. In the amended petition,

Appellee averred that plea counsel was ineffective for failing to file the

requested direct appeal as he could have argued that Appellee’s plea was

involuntarily entered pursuant to an unconstitutional sentencing enhancement

statute, and further, that his sentence was illegal based on Birchfield and its

progeny. Appellee alleged there was a strong likelihood that, if counsel had

raised these issues, he would not have entered a guilty plea to the ninety day

to two-year sentence of incarceration. Moreover, since he was not advised

that the sentence was illegal, his guilty plea was involuntary and unknowing.

He asked that his guilty plea be vacated and that he be granted a new trial or

other appropriate relief.




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       Following a hearing on May 24, 2018, at which the parties offered no

evidence, the PCRA court ruled that the issue was one of legality of sentence

and that the sentence was illegal. The court vacated the sentence and ordered

resentencing.        The    Commonwealth         timely   appealed,   and   both   the

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

       The Commonwealth presents one issue for our review: “Were the

increased penalties for a DUI conviction where the motorist refuses a blood

test rendered ‘void on their face’ by Birchfield v. North Dakota, even though

the court held that exigent circumstances or a search warrant can still justify

such penalties?” Commonwealth’s brief at 2.

       At the urging of both parties, the PCRA court applied Commonwealth

v. Giron, 155 A.3d 635 (Pa.Super. 2017), in which this Court held 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.A. §§ 3803-3804.”1 Since the defendant was subjected

to enhanced penalties for his refusal to provide a blood sample in that case,

we held that his sentence was illegal and remanded for resentencing.                In

accordance with Giron, the PCRA court herein concluded that Appellee’s




____________________________________________


1 The PCRA court also applied our unpublished, non-precedential decision in
Commonwealth v. Braddock, 2017 WL 1394012 (Pa.Super. 2017), which
relied upon Giron.

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enhanced penalties for refusing to provide a blood sample constituted an

illegal sentence, cognizable under the PCRA, and ordered re-sentencing.

      The Commonwealth concedes that Giron is controlling, but contends

that the case was wrongly decided.           The Commonwealth relies upon

Commonwealth v. Barnes, 151 A.3d 121, 127 (Pa. 2016), for the

proposition that Appellee is not serving an illegal sentence because the

increased penalties for refusing a blood test were not rendered “void on their

face” by Birchfield.     Rather, the Commonwealth asserts that Birchfield

merely held that implied consent to blood testing compelled by criminal

penalties was unconstitutional, not that the increased penalties for breath test

refusal were “void on their face.”     The Commonwealth points out that the

Birchfield Court did not prohibit enhanced penalties for refusing a blood draw

where there was a valid search warrant or a warrantless search based on

exigent circumstances.

      The   Commonwealth      argues    further   that   our   Supreme   Court’s

subsequent grant of allocatur in Commonwealth v. Braddock, 174 A.3d

572, 573 (Pa. 2017), purportedly to address whether this Court improperly

expanded the illegal sentencing doctrine by relying upon Giron to vacate

Braddock’s sentence on a non-preserved constitutional issue, signaled its




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intent to overrule Giron on this basis.2 It is the Commonwealth’s position

that Appellee is not serving an illegal sentence, and hence, he is not entitled

to resentencing.

       Appellee maintains first that Giron is controlling and correct, and that

it renders his sentence illegal.         He also argues that since plea counsel

improperly advised him that he was subject to a mandatory minimum and

permitted him to plead to an illegal sentence, his guilty plea was involuntarily

entered. He directs our attention to Commonwealth v. Melendez-Negron,

123 A.3d 1087 (Pa.Super. 2015), where we held that plea counsel was

ineffective for allowing the defendant to plead guilty to a sentence based on a

mandatory minimum sentencing enhancement. In that case, we vacated the

guilty plea and remanded the case, concluding that the misunderstanding of

the potential sentence tainted the negotiations process. Appellee maintains

that he is entitled to similar PCRA relief based on Melendez-Negron.



____________________________________________


2 Allocatur was granted in Commonwealth v. Braddock, 174 A.3d 572 (Pa.
2017) on the issue:

       Whether the Superior Court, relying on Commonwealth v.
       Giron, 2017 PA Super 23, 155 A.3d 635 (Pa. Super. 2017),
       improperly expanded the illegal sentencing doctrine when it
       vacated Braddock’s sentence on a non-preserved constitutional
       issue, holding that Birchfield v. North Dakota, 136 S.Ct. 2160,
       195 L. Ed. 2d 560 (2016), rendered enhanced penalties under 75
       Pa.C.S. §§ 3803-3804 illegal, even though Birchfield recognized
       exigent circumstances or a search warrant can still justify
       increased penalties for a blood test refusal?


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      The question presented herein is one of law. Hence, our scope of review

is plenary and non-deferential. Commonwealth v. Monarch, 200 A.3d 51,

54 (Pa. 2019). When reviewing the propriety of an order granting or denying

PCRA relief, we consider the record “in the light most favorable to the

prevailing party at the PCRA level.”    Commonwealth v. Stultz, 114 A.3d

865, 872 (Pa.Super. 2015) (quoting Commonwealth v. Henkel, 90 A.3d 16,

20 (Pa.Super. 2014) (en banc)). We are limited to determining whether the

evidence of record supports the conclusions of the PCRA court and whether

the ruling is free of legal error.

      Preliminarily, we note that we are dealing with the application of

Birchfield in the context of the PCRA rather than on direct appeal. Although

this Court recently held in Commonwealth v. Olson, 179 A.3d 1134, 1139

(Pa.Super. 2018), that Birchfield does not apply retroactively to cases

pending on collateral review, Olson is not controlling herein as retroactivity is

not implicated. Unlike Olson, Appellee was arrested, pled guilty, and was

sentenced post-Birchfield. Thus, Birchfield was law at the time of Appellee’s

arrest.

      Second, although Appellee pled guilty on October 24, 2016, roughly four

months after Birchfield, to DUI-general impairment, as defined in 75 Pa.C.S.

§3802(a)(1), the negotiated sentence reflects the mandatory minimum

sentence applicable pre-Birchfield for second DUI offenses with blood test




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refusal.    In short, it appears that the Commonwealth and plea counsel

negotiated a plea as if Birchfield had not been decided.3

       Third, after the parties filed their briefs in this appeal, the Supreme

Court affirmed our unpublished decision in Braddock, relying upon its

decision in Commonwealth v. Monarch, 200 A.3d 51 (Pa. 2019).

Commonwealth v. Braddock, 201 A.3d 735 (Pa. 2019) (per curiam). In

Monarch, our High Court concluded, consistent with our decision in Giron,

that an enhanced sentence for blood test refusal was an illegal sentence.

       Monarch was convicted under the former § 3803(b)(4), which provided

that if one violated 75 Pa.C.S. § 3802(a)(1), refused testing of blood or breath,

and had one or more prior offenses, he committed a first-degree

misdemeanor. He was sentenced under § 3804(c)(3)(i), based on a third or

subsequent offense, to a mandatory minimum sentence of imprisonment of

not less than one year.        Birchfield was thereafter decided, and Monarch

argued for the first time on direct appeal that his enhanced sentence for

refusal to submit to a warrantless blood test was unlawful under Birchfield.

Monarch relied upon the language in Barnes, supra, holding that “where the

mandatory minimum sentencing authority on which the sentencing court

____________________________________________


3 Although the sentence imposed is similar to the mandatory minimum
sentence pre-Birchfield, there was no specific reference at sentencing to the
mandatory minimum. However, the written guilty plea colloquy indicates that
Appellee was pleading guilty to “DUI –Tier III 2nd offense,” a 1st degree
misdemeanor with a maximum penalty of five years in jail and a $5,000 fine,
and “[t]he mandatory minimum sentence for this crime is 90 days in jail and
a $1,000 fine.” Guilty Plea Statement, 10/24/16, at 2.

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relied is [unconstitutional], and no separate mandatory authority supported

the sentence, any sentence entered under such purported authority is an

illegal sentence for issue preservation purposes on direct appeal.” Barnes,

supra at 127. He argued that without the mandatory minimum based on the

refusal, the court would have been permitted to exercise its discretion and

impose a sentence less than one year. Monarch, supra at 55.

      The Supreme Court agreed that Monarch’s Birchfield claim implicated

the legality of his sentence, and was therefore, non-waivable. In arriving at

that holding, it cited favorably the language in Barnes regarding sentences

based on facially-void mandatory minimum sentencing authority, and held

that “any sentence entered under such purported authority is an illegal

sentence for issue preservation purposes on direct appeal.” Barnes, supra

at 127.

      Regarding the merits, the Court concluded that, under Birchfield, the

enhanced mandatory minimum sentences authorized by statute were

unconstitutional when based on a refusal to submit to a warrantless blood

test. The Court vacated Monarch’s mandatory minimum sentence based on

the blood test refusal and remanded for resentencing.

      Thus, our High Court has spoken for purposes of direct appeal: an

enhanced sentence for refusal to submit to a warrantless blood test is an illegal

sentence that presents a non-waivable issue on appeal.      The former §§ 3803

and 3804 provided that individuals who refused a blood or breath test, and

who were subsequently convicted of DUI-general impairment, would be

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subject to the same penalty and grading as an individual convicted of DUI-

highest rate of alcohol. Where, as here, the individual also had a prior offense,

the former § 3803(b)(4) graded the offense as a first-degree misdemeanor.

Since the Commonwealth has not advanced any argument that the issue

merits different treatment herein because it arises in the context of a timely

PCRA petition rather than on direct appeal, we do not address that question.4

We find no error on the part of the PCRA court in concluding that Appellee’s

sentence was illegal, and that he was entitled to be resentenced.5

       That finding, however, does not dispose of the instant appeal. Appellee

contends that relief in the nature of resentencing is not the proper remedy

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4  We note, however, that illegal sentencing challenges premised on Alleyne
v. United States, 570 U.S. 99 (2013), raised in timely PCRA petitions where
Alleyne was decided prior to judgment of sentence being final, have been
held to be cognizable under the PCRA. Compare Commonwealth v.
DiMatteo, 177 A.3d 182 (Pa. 2018) (holding that where appellant failed to
raise on direct appeal the illegality of his mandatory minimum sentence under
Alleyne, which was decided five days after sentencing, he could challenge the
legality of his sentence in a timely PCRA petition because his judgment of
sentence was not final when Alleyne was decided); Commonwealth v. Ruiz,
131 A.3d 54 (Pa.Super. 2015) (holding that petitioner serving a mandatory
minimum sentence who filed a timely PCRA petition when his judgment of
sentence was not final at the time Alleyne was decided, was entitled to a new
sentence); with Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015)
(holding petitioner was not entitled to relief on an illegal mandatory minimum
sentencing claim raised in a timely PCRA petition as his judgment of sentence
was final prior to decision in Alleyne).

5 We would be remiss if we failed to point out that, since Appellee consented
to a breath test, he did not refuse “breath or chemical testing.” Thus, the
statute’s refusal provisions were wholly inapplicable, and there should not
have been any sentencing enhancement.



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herein. Appellee asserts that plea counsel was ineffective in negotiating a plea

to an illegal sentence, and that the misunderstanding as to his potential

sentence tainted the negotiations process and led to an unintelligent and

involuntary plea. He maintains that the PCRA court should have vacated the

guilty plea and remanded for further proceedings in accordance with

Melendez-Negron, supra.

       We note first, Appellee is now seeking different relief than the PCRA

court awarded. However, he did not file an appeal or cross-appeal raising this

issue. While an appellee is not required to file a cross-appeal simply because

the court below ruled against him on an issue, a cross-appeal is necessary

where the appellee contends that he did not obtain the relief sought, which is

the situation herein.6 See Pa.R.A.P. 511, Note. Hence, we find that Appellee

failed to preserve this claim for appellate review.

       In addition, after a thorough review of the record, we find that Appellee

abandoned his claim that his guilty plea should be vacated at the September

24, 2018 hearing. At the conclusion of argument, the parties acknowledged

on the record that they were in agreement that, “there’s no further testimony

required, no reason to augment the record, and that the court could rely on


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6 A cross-appeal was not necessary in Commonwealth v. Melendez-
Negron, 123 A.3d 1087 (Pa.Super. 2015), to reach the issue of the propriety
of resentencing on similar facts because it was the Commonwealth, as the
appellant, who argued that the proper relief was to vacate the guilty plea.



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the record.”7 N.T., 9/24/18, at 11. Shortly thereafter, the court turned to

Petitioner/Appellee’s counsel and asked:

       THE COURT: So you suggest that I should provide [Appellee] with
       the relief that you are requesting based on the law today, even
       though the law is in flux?

       [PETITIONER/APPELLEE’S COUNSEL]: It’s – we don’t know it’s in
       flux. We know it’s being reviewed. We – [the District Attorney]
       predicts, obviously that’s from the Commonwealth’s perspective,
       that it’s going to be reversed, in which case you’re right. Then he
       would be subject to the enhancement. But as of right today the
       law in Pennsylvania is that he should not have been subject to
       that enhancement, and he’s doing eight months for a second
       offense, third –

       THE COURT: And the relief –

       [PETITIONER/APPELLEE’S COUNSEL]: --tier DUI.

       THE COURT: And the relief you’re asking for is a new
       sentencing hearing?

       [PETITIONER/APPELLEE’S COUNSEL]: Correct.

N.T., 9/24/18, at 13 (emphasis added). The PCRA court granted Appellee the

relief he sought, i.e., a new resentencing hearing. Appellee cannot be heard

now to complain that this was error.

       For the foregoing reasons, we affirm the order of the PCRA court, and

remand for resentencing.



____________________________________________


7 Although Appellee pled that plea counsel was ineffective in negotiating the
plea, he did not offer any testimony from plea counsel about his strategy or
the role the enhanced mandatory minimum sentence played in those
negotiations. Appellee also did not testify as to what counsel advised him
regarding the plea.

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     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/19




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