Commonwealth v. Olson
Decision Date | 14 February 2018 |
Docket Number | No. 158 WDA 2017,158 WDA 2017 |
Citation | 179 A.3d 1134 |
Parties | COMMONWEALTH of Pennsylvania v. Jeffrey Alan OLSON, Appellant |
Court | Pennsylvania Superior Court |
David T. Leake, Somerset, for appellant.
Tara M. Y. Collier, Assistant District Attorney, Somerset, for Commonwealth, appellee.
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 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) ( ). 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 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:
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 , 624 Pa. 446, 86 A.3d 795, 803 (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). 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 , 558 Pa. 313, 737 A.2d 214, 223 (1999) (); Commonwealth v. Miller , 102 A.3d 988, 995–96 (Pa. Super. 2014) ( ); Commonwealth v. Ruiz , 131 A.3d 54, 60–61 (Pa. Super. 2015) ( ).
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 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) ("implied consent to a blood test cannot lawfully be based on the threat of such enhanced penalties") that ; 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) ( ).
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 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) ( ).
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) (). 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 , 636 Pa. 301, 142 A.3d 810, 814 (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 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:
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