Com. v. Ruse, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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