J-S26041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    v.                      :
                                            :
SHANE JORGE ALVAREZ-GRAULAU,                :
                                            :
                            Appellant       :     No. 1632 MDA 2016

              Appeal from the Judgment of Sentence June 21, 2016
                 In the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0000671-2016

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                              FILED MARCH 23, 2018

        Appellant, Shane Jorge Alvarez-Graulau, appeals from the June 21,

2016 Judgment of Sentence entered in the York County Court of Common

Pleas after he entered a negotiated guilty plea to one count of Driving Under

the Influence (“DUI”) (highest rate of alcohol).1      After careful review, we

affirm.

        In January 2016, Appellant drove his Honda Accord through several

backyards, damaged a fence, and his vehicle became stuck in a drainage

culvert.   After a police officer responded to the scene of the accident and

spoke with Appellant, the officer arrested Appellant based on his suspicion




*Former    Justice specially assigned to the Superior Court.

1   75 Pa.C.S. § 3802(c).
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that Appellant was driving while intoxicated.2 Police gave Appellant implied

consent warnings pursuant to 75 Pa.C.S. § 1547(b)(2) (describing officer’s

duty to inform individuals about the mandatory penalties and consequences

of refusing chemical testing).   Appellant consented to a blood draw, from

which his blood alcohol concentration (“BAC”) was determined to be

0.163%.

        Based on Appellant’s BAC, he was charged with, inter alia, the above-

stated DUI offense. Notably, Appellant did not file any pre-trial motions.

        On June 21, 2016, Appellant entered a negotiated guilty plea to DUI

(highest rate of alcohol).3 That same day, the trial court imposed a term of

five years’ intermediate punishment, with the first thirty days in York County

Prison followed by sixty days on house arrest with alcohol monitoring, as

well as a $1,500 fine.4

        Two days after Appellant’s sentencing hearing, the United States

Supreme Court decided Birchfield v. North Dakota, ___ U.S. ___, 136

S.Ct. 2160, 195 L.Ed.2d 560 (2016), holding that warrantless blood tests


2 Appellant’s eyes appeared blood shot and glassy, his breath smelled of
alcohol, he failed three field sobriety tests, and he admitted that he had
recently consumed three beers.

3   The Commonwealth nolle prossed several charges.

4 For clarity, we note that our review of the certified record indicates that the
trial court did not impose a mandatory minimum sentence based on
Appellant’s refusal to consent to a warrantless blood test, and Appellant does
not claim that it did.



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taken pursuant to implied consent laws are an unconstitutional invasion of

privacy. Id. at 2186. 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[,]” and concluded that Birchfield could not be convicted of

refusing a warrantless blood draw following his DUI arrest. Id.

      On June 30, 2016, Appellant filed a Post-Sentence Motion in which he

requested to withdraw his guilty plea based on the Birchfield decision. On

August 30, 2016, the trial court denied Appellant’s Post-Sentence Motion,

concluding that Appellant failed to demonstrate a manifest injustice

warranting the withdrawal of his negotiated guilty plea.

      Appellant filed a Notice of Appeal on September 29, 2016.            Both

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

      Appellant presents one issue for our review:

      The trial court erred when it denied Appellant’s Post–Sentence
      Motion to Withdraw Plea... [sic] denying his request constitutes a
      manifest injustice because the evidence against him was
      obtained in violation of the 4th Amendment of the United States
      Constitution, and... [sic] the Birchfield decision makes
      Appellant’s plea unknowing and involuntary under the
      circumstances.

Appellant’s Brief at 4 (footnote omitted).

      After the imposition of sentence, a trial court may grant a motion to

withdraw a guilty plea only to correct a manifest injustice. Commonwealth

v. Baez, 169 A.3d 35, 39 n.1 (Pa. Super. 2017). A defendant can establish

manifest injustice if, based on the totality of circumstances surrounding the



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plea, “the plea was not tendered knowingly, intelligently, and voluntarily.”

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009). This

Court has held that even “[a] deficient plea does not per se establish

prejudice on the order of manifest injustice.” Id.

      This Court will not disturb the decision of the trial court absent an

abuse of discretion, which we have often described as instances where “the

law is overridden or misapplied, or the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown

by the evidence or the record[.]” Id. at 128.

      In Pennsylvania, it has long been the rule that criminal defendants are

not entitled to retroactive application of a new constitutional rule unless they

raise and preserve the issue at all stages of adjudication. Commonwealth

v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc).                See also

Commonwealth v. Moyer, 171 A.3d 849, 855 (Pa. Super. 2017) (denying

retroactive application of Birchfield to defendant sentenced two days before

Birchfield decision where defendant did not challenge the voluntariness of

his consent to a warrantless blood draw in the lower court until Post-

Sentence Motion); Commonwealth v. Kehr, ___ A.3d ___, 2018 PA Super

44 (Pa. Super. filed Feb. 28, 2018) (same, where defendant sentenced three

days before Birchfield decision).

      Appellant argues that the trial court erred in refusing to permit him to

withdraw his guilty plea given the Birchfield decision, which Appellant



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claims rendered his guilty plea “unknowing and involuntary.”        Appellant’s

Brief at 11.

       As explained above, the United States Supreme Court handed down

Birchfield two days after Appellant entered his guilty plea and secured his

negotiated sentence.    Appellant never challenged the voluntariness of his

consent to the warrantless blood draw in a pre-trial motion, and he did not

raise any issue implicated by the Birchfield decision until his Post-Sentence

Motion.5 Thus, he is not entitled to retroactive application of Birchfield and

the trial court properly denied Appellant’s Post-Sentence Motion seeking

permission to withdraw his guilty plea.6     Kehr, supra; Moyer, supra at

855.


5  We reject Appellant’s assertion that he raised this issue at the earliest
possible opportunity since it would have been “frivolous” prior to the
Birchfield decision. See Appellant’s Brief at 13. Such challenges were not
frivolous to the attorneys representing the consolidated defendants in the
Birchfield case; they presented those arguments and, in part, succeeded
before the United States Supreme Court despite failing to persuade many
state courts. Moreover, defendants have filed pre-trial motions to suppress
evidence of non-consensual and warrantless blood tests for decades—dating
back nearly to the imposition of the federal exclusionary rule on states itself.
See, e.g., Commonwealth v. Murray, 271 A.2d 500 (Pa. 1970) (reversing
denial of pre-trial motion to suppress blood test results, obtained without a
warrant or consent, and granting a new trial where police obtained blood on
the night of accident but not incident to the defendant’s arrest 13 days
later).

6 Appellant’s challenge to his guilty plea solely focuses on the Birchfield
decision. Appellant does not otherwise attack his plea. Accordingly, we
agree with the trial court’s reasoning that Appellant freely entered his plea
knowingly, intelligently, and voluntarily. See Trial Court Opinion, 1/11/17,
at 3-7.



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      Judgment of Sentence affirmed.

      Justice Fitzgerald did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/23/2018




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