Com. v. Bartorelli, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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